author: STEWART, J.

text:
    Mack McCOY, Plaintiff-Appellee v. CITY OF SHREVEPORT, et al, Defendants-Appellants.
    No. 42,662-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 2007.
    Edward F. Jones, Assistant City Attorney, for Appellant, City of Shreveport.

      Billy R. Casey, Shreveport, for Appellant, Municipal Fire & Police Civil Service Board.
    Klotz, Simmons & Brainard, by B. Trey Morris, Shreveport, for Appellee, Mack McCoy.
    Before STEWART, CARAWAY and MOORE, JJ.
   STEWART, J.

11 After the Municipal Fire and Police Civil Service Board of the City of Shreveport (“the Board”) failed for almost three years to file a transcript of its review of the City of Shreveport’s disciplinary action against firefighter, Mack McCoy, and then to hold a rehearing in the time ordered, the district court granted by ex parte order McCoy’s motion to overturn the Board’s decision and set aside the disciplinary action taken by the City. The City appealed. For the following reasons, we reverse the district court’s judgment and remand for further proceedings.

FACTS

On October 9, 2003, Mack McCoy, an employee of the City of Shreveport’s fire department, filed a petition in district court seeking review of the Board’s decision to uphold, but reduce, the disciplinary action taken against him by the City for insubordination. He alleged that the actions of the City and the Board were arbitrary, capricious, and not taken in good faith for cause. McCoy’s petition further requested that the Board be ordered to file into the record the transcript of its proceedings, or written findings of fact and all papers relating to its decision.

The district court signed an order on October 15, 2003, directing the Board to file a certified transcript of the record, or written findings of fact, and all related papers. Both the Board and the City filed answers on November 17 and 24, 2003, respectively, in which they asserted that the disciplinary action was taken .in good faith for cause. No transcript, findings of fact, or other related papers were filed by the Board into the record.

| Jn fact, no further action of record was taken until March 8, 2006, when McCoy filed a rule for contempt against the Board for failing to file the documents as requested by the petition and ordered by the district court. The district court ordered the Board to appear on April 10, 2006, to show cause why it should not be held in contempt, fined, ordered to pay all attorney fees and costs of the rule, and ordered to immediately file the transcript. The minutes show that the Board did not appear at the hearing on' April 10, 2006. A judgment was rendered in favor of McCoy ordering the Board to file into the record a certified copy of the transcript or written findings of fact, along with all papers related to the Board’s decision, within five days from the notice of judgment. The judgment also stated that the failure to file as ordered would preclude the Board from presenting a defense to this matter before the district court. The Board did not comply with the order.

On May 4, 2006, the district court remanded the matter to the Board for a new hearing to be held within ninety days for the creation of a proper record. As explained in the remand order, the district court determined that the Board had not complied with the April 10, 2006, judgment, that ample time had elapsed, and that the matter had been pending since October 9, 2003. Therefore, the district court concluded that the Board “either will not comply or cannot comply because the record is lost...

The remand order galvanized the Board to action. On May 11, 2006, the Board filed three items into the record. First, the Board filed a pleading entitled “Exception and Answer to Appeal.” The Board asserted exceptions |3of no cause of action and no right of action on the grounds that it is not a party, that its review of the City’s discipline of McCoy was quasi-judicial in nature, and that the trial court’s jurisdiction is limited to reviewing whether the decision was made in good faith for cause. Second, the Board — at last — filed a copy of the transcript from the September 10, 2006, disciplinary hearing. Third, the Board filed a motion for reconsideration of the remand order. The Board asserted that the contract court reporter had difficulty transcribing the record of the hearing to meet the deadline ordered on April 10, 2006, that some of the members who reviewed McCoy’s case are no longer on the Board, and that the expense and delays of a remand weigh in favor of the district court simply proceeding with McCoy’s appeal by reviewing the submitted transcript.

The district court set a hearing on the Board’s motion for May 22, 2003. However, the record does not indicate whether the hearing took place. The minutes reflect only that the Board’s motion was denied.

On September 14, 2006, the Board filed a motion requesting more time to hold a new hearing. The Board alleged that it met on June 28, 2006, and scheduled a hearing for July 12, 2006, to obtain a date for a new hearing on McCoy’s case. However, neither McCoy nor his counsel appeared at the hearing on July 12, 2006. The Board then set October 11, 2006, as the date for the new hearing and sent McCoy notice of this date. The Board asserted that it was acting with due diligence to have the hearing as ordered by the court.

|40n September 18, 2006, McCoy filed a pleading entitled “Objection to Motion for Continuance and Request to Overturn Decision of the Board.” The pleading sets forth the procedural history and explains that phone calls and correspondence were exchanged between McCoy’s and the Board’s counsel for over two and a half years in an effort to the get the transcript filed in the record. McCoy asserts that Pamela Nathan, the Board’s counsel during that time, assured his counsel that the relevant documents were being prepared. Because the Board failed to file the transcript or other documents as required by law, McCoy filed the May 8, 2006, motion for contempt. McCoy’s pleading states that the 90-day time period for holding a new hearing had elapsed and that he had not received any notice from the Board about a new hearing. However, McCoy alleged that conducting a new hearing three years after the original hearing, particularly with more delays by the Board, would be prejudicial. He noted that witnesses may no longer be available due to having retired or moved out of state and that facts may have been forgotten over time. McCoy asserted that the only just remedy after three years of delay by the Board would be for its decision to be overturned, the City’s disciplinary action set aside, and the City ordered to remove the matter from his personnel file.

On September 22, 2006, the district court denied the Board’s request for an extension of time and granted, by ex parte order, McCoy’s motion to overturn the Board’s decision. The district court ordered the disciplinary action set aside and dismissed, along with the removal of all information relating to the disciplinary action from McCoy’s personnel records.

| fiIn response to the ex parte ruling, the Board filed a motion for reconsideration. The Board alleged that neither it nor the City received a copy of McCoy’s motion to have the Board’s decision overturned and that neither party was given the opportunity to respond prior to the court granting the requested relief. The Board contended that a hearing should be scheduled to allow arguments on McCoy’s motion and the Board’s motion for more time in which to have a new hearing. The district court set a hearing date for January 22, 2007.

Counsel for McCoy, the Board, and the City appeared at the hearing. The City asserted that it should not be penalized because of the Board’s actions. The City explained that it funds the Board but does not control it. In response to its request that the Board be allowed to proceed with a new hearing, the district court expressed no confidence that the Board would actually hold the hearing as ordered. Alternatively, the City asked for review of the transcript filed by the Board and a decision on the merits. Again, the district court declined on the basis of having no confidence in the Board or its transcript.

A judgment denying the Board’s motion to reconsider was rendered on March 13, 2007. The City, which was aggrieved by the order setting aside its disciplinary action against McCoy and directing it to remove the matter from his personnel records, appealed.

I fiDISCUSSION

In its appeal, the City argues that the district court erred in dismissing the disciplinary action without reviewing the matter to determine whether the City and Board acted in good faith for cause in disciplining McCoy for insubordination. The City contends that the district court should have reviewed the record of the Board’s proceedings rather than base its decisions to remand for a new hearing and then to set aside the discipline on the lateness of the Board’s filing. The City believes that the delay does not provide an adequate basis for the district court’s loss of confidence in the Board and its transcript. Additionally, the City maintains that McCoy has not been prejudiced by the delay; rather, the district court’s rulings have prejudiced the City by penalizing it for the Board’s deficiencies. The City would have this court reverse the district court, review the transcript, and render a judgment upholding the disciplinary action.

McCoy asserts that the district court had authority to remand for a new hearing, particularly considering the years of delay by the Board before filing the hearing transcript. McCoy notes that the district court did not admit the transcript into the record and asserts that this court should not consider it on appeal or remand for review. McCoy asserts that either the Board should be ordered to conduct a new hearing, or the ruling of the district court should be affirmed.

La. R.S. 33:2501(A) provides that a regular employee in the classified service who feels he has been disciplined without just cause may appeal to the Board for a hearing to determine the reasonableness of the action. If the |7employee then believes that the Board’s decision is prejudicial, the employee may then appeal to the district court in the parish of the Board’s domicile. La. R.S. 33:2501(E)(1); Walsworth v. Municipal Fire & Police Civil Service Bd. of City of Shreveport, 567 So.2d 712 (La.App. 2d Cir.1990); Linton v. Bossier City Municipal Fire and Police Civil Service Board, 428 So.2d 515 (La.App. 2d Cir.1983). With regard to the review by the district court, La. R.S. 33:2501(E)(2) and (3) direct as follows:

(2) The appeal shall be taken by serving the board, within thirty days after entry of its decision, a written notice of the appeal, stating the grounds thereof and demanding that a certified transcript of the record, or written findings of facts, and all papers on file in the office of the board affecting or relating to such decision, be filed with the designated court. The board shall, within ten days, after the filing of the notice of appeal, make, certify, and file the complete transcript with the designated court, and that court shall thereupon proceed to hear and determine the appeal in a summary manner.
(3) This hearing shall be confined to the determination of whether the decision made by the board was made in good faith for cause under the provisions of this Part. No appeal to the court shall be taken except upon these grounds and except as provided in Subsection D of this Section.

Review by the district court does not include a trial de novo. Walsworth, supra; Linton, supra. Rather, the district court sits as a reviewing court and determines from the record of the Board’s proceedings whether its decision was made in good faith for cause. Walsworth, supra. The Board’s decision will not be overturned unless it is manifestly erroneous or arbitrary and capricious. Linton, supra.

The district court did not review the record of the Board’s proceedings to determine if its decision regarding McCoy was made in good faith for cause. Because of the Board’s gross delay in producing the | stranscript of its proceedings, the district court concluded that it had no confidence in the transcript and did not review it under the applicable standard. While we understand and agree with the district court’s desire to send a strong message to the Board regarding its inexcusable failure, over almost three years, to produce the transcript and, most importantly, to timely respond to the court’s orders, we are constrained to conclude that the district court’s actions are not authorized by the statutory provisions of La. R.S. 33:2501. Rather, R.S. 33:2501(E) specifically limits the district court’s reviewing authority to determining whether the Board’s decision was made in good faith for cause. The district court may not even substitute its opinion for that of the Board, such as by reducing its penalty. See Marchiafava v. Baton Rouge Fire and Police Civil Service Bd., 233 La. 17, 96 So.2d 26 (La.1957); Brown v. City of Bossier City, 38,915 (La.App.2d Cir.11/19/04), 887 So.2d 731. While La. R.S. 33:2501(E) requires the Board to file its transcript with the court within ten days after the filing of the notice of the appeal, it provides no penalty or remedy for a late filing.

In analogous situations involving appeals from administrative decisions, district court judgments in favor of the plaintiff that were based on the failure of the agency to file its hearing record timely have been reversed. In Bruce v. State, Dept of Health and Hospitals, 95-1175 (La.App. 3d Cir.3/6/96), 670 So.2d 680, the Department of Health and Hospitals (“DHH”) denied the plaintiffs request for Medicaid benefits, and a hearing officer affirmed the denial. On appeal before the district court of the administrative ruling, Bruce obtained a default judgment against DHH Rafter it failed to file an answer and failed to timely file a certified copy of the hearing record. The third circuit reversed upon determining that the district court, acting as a reviewing court, was limited by the provisions of the Administrative Procedure Act (“APA”) to reviewing the record of the DHH hearing. The district court’s review authority did not extend to evaluating evidence in the first instance, as required to render a default judgment. Though the APA provisions were unclear on the remedies for the agency’s failure to timely file a copy of its proceedings in the record, the court concluded:

Still, DHH cannot be permitted to indefinitely delay the filing of a certified copy of the agency proceedings. The district court “possesses inherently all of the power necessary for the exercise of its jurisdiction even though not granted expressly by law.” La.Code Civ. P. art. 191. However, a default judgment is not the proper remedy.

Bruce, 670 So.2d at 681.

In re Forgione, 36,130 (La.App.2d Cir.6/12/02), 821 So.2d 673, also involved an appeal from a denial of services by DHH in which it failed to timely file the record of its proceedings with the district court. Without the transcript, the district court judge ruled against DHH and ordered it to provide services to the plaintiff. However, this court reversed that judgment. As noted in the opinion, the statute governing judicial review of DHH’s administrative proceedings, La. R.S. 49:964, limits review to the agency’s record and does not authorize a trial de novo in which the reviewing court may substitute its judgment for that of the administrative agency. Thus, the district court’s default judgment had no express statutory basis. In addressing DHH’s failure to timely file the record of its | ^administrative proceedings, the court agreed with the decision in Bruce, supra, and rejected the remedy of a default judgment. However, the court recognized that “the trial court clearly has within its power the ability to sanction the agency or officials in the agency for such failure. La. C.C.P. arts. 224 and 191.” Forgione, 36,130, p. 6, 821 So.2d at 677. Accordingly, the court remanded the matter, noting that the district court “may yet sanction DHH for its misconduct regarding preparation of the record.” Id.

As in Bruce, supra, and Forgione, supra, the judgment in favor of McCoy rendered without review of the untimely filed transcript is improper. La. R.S. 33:2501(E) authorizes the district court to review the record of the Board’s proceedings to determine whether its decision was made in good faith for cause. It cannot conduct a trial de novo or substitute its opinion for that of the Board. The ex parte ruling overturning the Board’s decision and setting aside the disciplinary action in response to the Board’s improper conduct exceeds the authorized scope of review. The proper remedy would be to sanction the Board or its members for contempt for their failure to have filed the transcript timely and their disregard of the court’s orders. For these reasons, we reverse the ex parte ruling of the district court that overturned the Board’s decision and set aside the City’s disciplinary action against McCoy.

Now before us is the matter of the late-filed transcript and whether the Board should conduct a new hearing. Though the district court expressed a lack of confidence in the transcript, we find nothing in the record that calls into question its veracity and accuracy. McCoy has not alleged that the transcript is not an accurate account of the hearing.' And while he claims that he would be prejudiced if the transcript were subject to review, he bases this claim only on the district court’s expressed lack of confidence. McCoy has not shown that he would be prejudiced by review of the hearing transcript submitted to the district court on May 11, 2006. Moreover, McCoy’s appeal argument for remand for a new hearing by the Board in the event of our reversal of the district court is contrary to his motion filed on September 18, 2006, to have the Board’s decision overturned. Then, McCoy argued that remand for a new hearing three years after the original hearing would be prejudicial to him in that facts may have been forgotten over time and witnesses may no longer be available due to having retired and moved away. These same factors today weigh even more against remand for a new hearing by the Board.

Though we are astonished by the Board’s failings in this matter and find that its actions show a shocking disregard for its own obligations and for the rights of the firefighters and police officers it serves, we do not find an ex parte reversal of its decision to be appropriate in light of the statutory provision governing review of its rulings. We also consider that McCoy and his counsel should not have waited for over two years, when La. R.S. 33:2501(E) specifies a 10-day filing period for the Board, before seeking relief from the district court. For these reasons, we reverse the district court’s judgment and remand this matter for it to review the transcript pursuant to the criteria set forth in La. R.S. 33:2501(E) and render a judgment on the merits. The district court may, in the exercise of its | ^inherent authority, also consider further contempt proceedings and the imposition of an appropriate sanction against the Board.

CONCLUSION

For the reasons explained, the district court’s judgment is reversed, and the matter is remanded for further proceedings. Costs of the appeal are assessed to McCoy.

REVERSED and REMANDED.

      . Upon lodging of the appeal, this court ordered the City to show cause why the appeal should not be dismissed as untimely. However, it was determined that notice of the September 22, 2006, judgment was not given as required by La. C.C.P. art. 1913. Accordingly, the delay for seeking a new trial never began to run, the subsequent pleadings were timely, and the appeal was maintained.


source: Caselaw Access Project

author: CARAWAY, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Scott L. STRAIN, Appellant.
    No. 42,809-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 2007.

      Paula C. Marx, Louisiana Appellate Project, for Appellant.
    Paul J. Carmouche, District Attorney, Karelia R. Stewart, John Ford McWil-liams, Jr., Assistant District Attorneys, for Appellee.

      Before CARAWAY, DREW and MOORE, JJ.
   CARAWAY, J.

| TAfter the trial court’s appointment of a sanity commission which never reported to the court, Scott Strain pled guilty to false personation of a peace officer, in violation of La. R.S. 14:112.1, and was sentenced to two years at hard labor. He appeals his conviction arguing that the trial court committed error in accepting his guilty plea without first determining his mental capacity to proceed. Finding merit to his argument, we reverse the conviction and sentence.

Facts

In October of 2006, Scott Strain visited a Shreveport physician’s office seeking a prescription for pain pills. When Strain was refused such a prescription, he demanded the office give him a prescription for Oxycodone or refund the money for the office visit. The incident escalated to the point that security guards were called to remove him from the office.

On October 7, 2006, Strain began incessantly calling the physician’s office. Shreveport police were summoned to monitor the phone calls. In one such phone call, Strain claimed to an FBI agent, Jason Strain, who is in fact the defendant’s brother, and demanded a prescription for Oxycodone. Contact with Jason Strain confirmed that his brother, Scott, had made the phone call. Agent Strain also indicated that his brother had a drug problem. Strain was charged with one count of false personation of a peace officer and initially pled not guilty.

On February 21, 2007, the defendant’s appointed counsel filed a motion for appointment of a sanity commission. The motion stated that | (.there was good reason to believe that Strain “does not presently have the mental capacity to understand the proceedings, and may not have at the time of the offense, have [sic ] the ability to discern right from wrong.” The motion also stated that counsel had not been able to effectively communicate with Strain, and that counsel believed Strain’s mental incapacity existed “because of, or as a result of, a mental disease.” The trial court appointed a sanity commission consisting of two physicians who were ordered to examine Strain concerning both his present mental state and his mental capacity at the time of the alleged offense. The doctors were to report within 30 days of the court’s March 1, 2007 order, and a hearing was set for April 16, 2007.

Apparently before the doctors filed reports, Strain appeared in court with a different appointed counsel on March 26, 2007. The court noted that a bench conference had been held and that an offer apparently had been made to Strain to plead guilty with a recommendation by the state for a one-year hard-labor sentence. The court would not approve such a sentence at that time. An off-the-record discussion then took place, and the following exchange then occurred between the trial judge and Strain’s attorney:

ATTORNEY: Your Honor, I have conferred with my client, and at this point he would like to withdraw his original not guilty plea to the charge of false personation of a peace officer and would like to enter a guilty plea. And at this point, I would also like to make an oral motion to withdraw the appointment of a sanity commission as filed on February 21, 2007.
THE COURT: All right. This is Docket No. 253,459. Your full name, sir?

lsThe court then proceeded to take Strain’s guilty plea. Other than giving his date of birth and indicating that he was Scott Strain rather than Scott Strain, Jr., Strain’s responses to the trial judge were either ‘Tes, Sir” or “No, Sir.” The trial court accepted Strain’s guilty plea as freely and voluntarily entered. No questions were asked or discussions had, at least on the record, concerning Strain’s mental capacity.

On March 30, 2007, Strain again appeared before the court for sentencing. Strain did not testify. The trial judge reviewed Strain’s criminal history and concluded that “incarceration is absolutely mandated.” Strain was sentenced to two years at hard labor with credit for time served. Strain sought reconsideration of his sentence which was denied by written ruling on April, 18, 2007. This appeal followed.

Discussion

In his sole assignment of error, Strain argues that the trial court committed reversible error in accepting his guilty plea without adjudicating his competency to proceed after the sanity commission process had been invoked. The state argues that Strain’s motion to appoint a sanity commission made no allegations that he did not have the requisite mental capacity. Moreover, the state contends that Strain’s filing of pro se motions prior to the filing of the motion requesting the appointment of a sanity commission showed his full awareness of the nature of the proceedings. The state also argues that Strain’s guilty plea acted as a waiver of all nonju-risdictional defects.

|4A person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel and to assist in preparing his defense may not be subject to trial. State v. Nomey, 618 So.2d 157 (La.1993). Due process also demands adequate anticipatory, protective procedures to minimize the risk that an incompetent person will be convicted. Medina v. California, 505 .U.S. 437, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992). Louisiana’s statutory scheme for detecting mental incapacity “jealously guards a defendant’s right to a fair trial.” State v. Nomey, supra. Thus, when there is a bona fide question raised regarding a defendant’s capacity, the failure to observe procedures to protect a defendant’s right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial. State ex rel. Seals v. State, 00-2738 (La.10/25/02), 831 So.2d 828. Once the determination that a bona fide question has been raised regarding a defendant’s capacity, the failure to resolve the issue of capacity may result in nullification of the conviction and sentence or a nunc pro tunc hearing to determine competency retrospectively. Id.

Mental incapacity to proceed exists when, as the result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense. La.C.Cr.P. art. 641. The defendant’s mental incapacity to proceed may be raised at any time by the defense, the district attorney, or the court. When the question of the defendant’s mental incapacity to proceed is raised, there shall be no further steps in the criminal prosecution, except institution of prosecution, until the | ¡^defendant is found to have the mental capacity to proceed. La. C.Cr.P. art. 642. The court shall order a mental examination of the defendant when it has reasonable ground to doubt the defendant’s mental capacity to proceed. La.C.Cr.P. art. 643.

Under La.C.Cr.P. art. 644, within seven days after a mental examination is ordered, the court is required to appoint a sanity commission to examine and report on the mental condition of the defendant. La.C.Cr.P. art. 647 provides that the issue of mental capacity shall be determined by the court in a contradictory hearing at which the sanity commission report is admissible. La.C.Cr.P. art. 648(A) states that the criminal prosecution shall resume unless the court determines by clear and convincing evidence that the defendant does not have the mental capacity to proceed.

A trial court should not allow a case to proceed based on defense counsel’s withdrawal of a motion to appoint a sanity commission once a defendant’s mental capacity to proceed has been raised. State v. Carney, 25,518 (La.App.2d Cir.10/13/95), 663 So.2d 470. In that case, no further steps in the prosecution may be taken until the defendant is found to have capacity. Id. Permitting such a motion to be withdrawn takes the ultimate decision of competency away from the court. Id.

Shortly before the defendant entered his guilty plea, the trial court had granted defendant’s motion for appointment of a sanity commission. Thus, as noted in State v. Nomey, supra, since the examination was ordered, the trial court must have found reasonable ground to doubt defen-, dant’s mental capacity to proceed. Id. at 158, note 1; La.C.Cr.P. art. 643, Article | fi642 of the Code of Criminal Procedure insures that such doubt must be resolved by preventing any further steps in the criminal prosecution pending a competency determination. On the face of this record, before the end of the 30-day period set by the trial court for the psychiatric examinations and reports and without any contradictory hearing, the criminal proceedings did proceed to the entry of a guilty plea. This was clear error. State v. Nomey, supra.

Because of this error, the only issue is whether nullification of the conviction must occur or whether a remand is appropriate for a nunc pro tunc hearing. State v. Seals, supra; State v. Nomey, supra. These cases noted that in limited situations, the record of a case may indicate that meaningful inquiry into the defendant’s competency can still occur. Two cases where the nunc pro tunc hearings were allowed were State v. Bennett, 345 So.2d 1129 (La.1977), and State v. Snyder, 98-1078 (La.4/14/99), 750 So.2d 832, opinion after remand, 98-1078 (La.4/14/04), 874 So.2d 739, cert, granted, judgment vacated on other grounds, Snyder v. Louisiana, 545 U.S. 1137, 125 S.Ct. 2956, 162 L.Ed.2d 884 (2005). In both of those cases, however, an initial hearing on competency had occurred before the prosecution continued.

To the contrary," this case mirrors the type of proceedings involved in the Seals and Nomey decisions. There is no adequate consideration of the sanity question reflected on the record and no prior contradictory hearing on the issue. In No-mey, the guilty plea was entered after the psychiatric examinations confirming competency were conducted. Nevertheless, the ^findings of those examinations were not filed in the record prior to the plea and never, considered in a contradictory hearing. The result of nullification in Nomey must therefore be followed in this case where the record gives no indication of the psychiatric examinations or their findings. Moreover, given the absence of any process seeking to resolve the competency issue and the clear mandate of Article 642, Nomey recognized a due process issue, as follows, which supports the nullification remedy:

Regardless of whether a retroactive determination of sanity can now be made, the fact remains that defendant was deprived of the protective procedures set forth in our criminal code prior to the entry of his guilty pleas, thus depriving him of his due process rights.

Id. at 161.

Conclusion

Accordingly, we do not find the narrow circumstances warranting a nunc pro tunc hearing apparent in this record. Therefore, the defendant’s conviction and sentence are reversed.

CONVICTION AND SENTENCE REVERSED; REMANDED FOR FURTHER PROCEEDINGS.


text:
    Eric JONES, Plaintiff-Appellant v. HOLLYWOOD CASINO SHREVEPORT, Defendant-Appellee.
    Nos. 42,819-WCA, 42,820-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 2007.

      Eric Jones, In Proper Person.
    Law Offices of Ronald F. Lattier by Curtis R. Joseph, Jr., Shreveport, for Ap-pellee, Eldorado Resort Casino Shreveport.
    Before STEWART, CARAWAY and PEATROSS, JJ.
   STEWART, J.

| ^n this workers’ compensation matter, Eric Jones appeals the Workers’ Compensation Judge’s denial of his claims for temporary total disability benefits (TTD) and supplemental earnings benefits (SEB). For the reasons that follow, we affirm.

FACTS

Eric Jones was an employee with ElDo-rado Resort Casino, formerly known as Hollywood Casino (“ElDorado”), on September 6, 2003, when he was injured in a work related accident. Jones continued to receive medical and indemnity benefits even after he was released to return to regular duty on October 10, 2003, until his employment was terminated in December of 2003 for insubordination and other morale related issues. Following his termination, Jones drew unemployment benefits from December 20, 2003, until January 24, 2004. From September 27, 2004, to December 28, 2004, Jones was paid indemnity benefits by ElDorado.

Following a trial, the WCJ determined that Mr. Jones was entitled to TTD for the period beginning January 30, 2006, through August 26, 2006, at a weekly compensation rate of $282.93, for a total amount of $8,487.90. The WCJ also found that Mr. Jones was entitled to $2,000 in penalties because of ElDorado’s failure to provide indemnity payments for the above referenced period. The WCJ also found that Mr. Jones was entitled to payment of medical bills generated for treatment rendered by LSU Health Sciences Center and by Dr. Ken Stanley, pursuant to the fee schedule. However, inasmuch as the evidence did not show that Mr. Jones submitted said bills for payment from ElDorado, the court denied penalties and | ¡¡attorney fees. Moreover, the WCJ denied Mr. Jones’ request for TTD or SEB covering several other time periods following his injury. It is the WCJ’s denial of benefits that gives rise to the instant appeal by Mr. Jones.

DISCUSSION

Standard of Review

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. The issue to be resolved by the appellate court is not whether the workers’ compensation judge was right or wrong, but whether the factual conclusion was reasonable. Accordingly, where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 1996-2840 (La.07/01/97), 696 So.2d 551; Nelson v. City of Grambling, 31,303 (La.App.2d Cir.12/09/98), 722 So.2d 358, unit denied 1999-0073 (La.02/26/99), 738 So.2d 588. The question of whether the claimant is entitled to compensation benefits is ultimately a question of fact, and the workers’ compensation judge’s resolution of that issue may not be disturbed by the appellate court in the absence of manifest error or unless clearly wrong. Nelson, supra.

Temporary Total Disability Benefits

To obtain an award of TTD benefits, a claimant must prove by clear and convincing evidence, unaided by any presumption of disability, that he is physically unable to engage in any employment or self-employment. La. R.S. 23:1221(l)(c); Brantley v. Delta Ridge Implement, Inc., 41,190 (La.App.2d Cir.06/28/06), 935 So.2d 308. This is the standard of proof which a claimant must satisfy when he files a disputed claim form seeking an award of TTD benefits after the employer or insurer terminates voluntary payments of TTD benefits. To prove a matter by clear and convincing evidence, as required to establish entitlement to TTD benefits, means to demonstrate that the existence of a disputed fact is highly probable, i.e., much more probable than its nonexistence. Id.

Jones contended that he was entitled to indemnity benefits from January 25, 2004, until the date of trial with the exception of periods where he was paid benefits. The WCJ divided his claim into several time periods for analysis of eligibility. The first time period was from January 25, 2004, to September 26, 2004, where it was determined that Mr. Jones had no work limitations from any physicians in the records introduced at trial. However, the record shows that on September 27, 2004, Dr. Pierce Nunley excused the claimant from work until there could be a reevaluation following an MRI. The record indicates that there was a follow up with Dr. Nunley on December 3, 2004, and indemnity was paid to Mr. Jones for the period of September 27, 2004, until December 28, 2004. Because of the lack of evidence, the WCJ properly determined that the claimant failed to establish any entitlement to indemnity benefits from January 25, 2004, to September 26, 2004.

Next, the WCJ considered the time period of December 29, 2004, to January 30, 2006, and determined that there were no medical records indicating a disability or inability of Mr. Jones to work during that period of 14time. Consequently, he denied Mr. Jones claim for indemnity benefits for that period.

However, the record shows that Dr. Nunley performed surgery on Mr. Jones January 30, 2006. Dr. Nunley then took him off work for six months in a report dated February 23, 2006; thus, the WCJ determined that Mr. Jones was entitled to TTD for the period of January 30, 2006, to August 26, 2006.

Concerning the time period from August 27, 2006, to December 20, 2006, the WCJ determined that Mr. Jones did not establish by clear and convincing evidence that he was unable to engage in any employment and denied indemnity benefits. He was self employed as a construction worker, but he did not apply for any jobs. We find that Mr. Jones did not meet his burden of proof that he was unable to engage in any employment.

Supplemental Earnings Benefits

When work-related injuries do not result in total disability, but rather leave the employee unable to earn 90% of his preinjury wage, the statute authorizes an award of SEB. La. R.S. 23:1221(3). To prevail on an SEB claim, the employee must meet an initial burden of proving, by a preponderance of the evidence, that her work-related injury has resulted in an inability to earn that amount. Banks v. Industrial Roofing & Sheet Metal, supra; Taylor v. Columbian Chemicals, 32,411 (La.App. 2 Cir. 10/27/99), 744 So.2d 704. Only after the claimant makes this prima facie showing does the burden shift to the employer to show that employment is generally available within the claimant’s physical limitations and in her or the | ^employer’s reasonable geographic region. Id. The WCJ’s factual findings on a claim for SEB are subject to the manifest error rule. Seal v. Gaylord Container Corp., 97-0688 (La.12/2/97), 704 So.2d 1161; Taylor v. Columbian Chemicals, supra.

Mr. Jones testified that he had a construction and remodeling company, but he did not apply for any jobs. The WCJ found that there were no records from his physician that indicated that he was unable to work during the period of time at issue. As a result, the WCJ determined that Mr. Jones did not demonstrate that he was unable to earn at least 90 percent of his pre-injury wage. Because Mr. Jones did not meet this burden, it was not necessary for ElDorado to show his wage earning capacity.

The WCJ found that pursuant to La. R.S. 23:1021(10), Mr. Jones was entitled to a presumption of 40 hours and an average weekly wage of $424.40 with a compensation rate of $282.93 and awarded TTD from January 30, 2006, to August 26, 2006. As to the medical benefits, the WCJ found that the January 30, 2006, surgery was causally connected to the September 6, 2003, accident and medically necessary. The WCJ awarded payment of all of the claims of payments to LSU Medical Center and Dr. Ken Stanley, but because those bills were never presented for that treatment, he did not award attorney fees or penalties for failure to pay within 60 days of written notice pursuant to La. R.S. 23:1201(E). However, the WCJ awarded $2,000 because of ElDorado’s failure to reasonably controvert the claim for indemnity benefits for the six months following Jones’ surgery on January 30, 2006. We find no error in this ruling.

^CONCLUSION

Based on the above and foregoing, we affirm the ruling of the WCJ. Costs assessed to Mr. Jones.

AFFIRMED.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Termaine Deon CUNNINGHAM, Appellant.
    No. 42,831-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 2007.

      Louisiana Appellate Project, by Carey J. Ellis, III, for Appellant.
    Paul J. Carmouche, District Attorney, William Jacob Edwards, Tommy J. Johnson, Assistant District Attorneys, for Ap-pellee.
    Before PEATROSS, MOORE and LOLLEY, JJ.
   MOORE, J.

| Jermaine Deon Cunningham appeals his concurrent sentences of 23 years, 11 years and 9 years at hard labor, following his trial and conviction on two counts of simple burglary and one count of illegal possession of stolen things valued at over $500, and his adjudication as a fourth felony offender on one of the simple burglary convictions. We affirm.

On Sunday morning, August 14, 2005, a group of men gathered for softball practice at Southern Hills Park in southwest Shreveport. They parked their vehicles in a lot visible from the field. During practice, one of the players noticed a person rummaging through a team member’s Ford Explorer. Several of the players hurried to the parking lot, some 400 feet away, to stop the defendant. The defendant started to climb into a black 2005 Ford Expedition, but one of the players physically dragged him out and another sat on him while a third phoned the police. Shreveport Police Corporal J.P. Creighton arrived, arrested, Mimndized and searched him. The players had already recovered from the defendant’s person a wallet and a bottle of cologne taken from one team member’s Chevrolet Silverado; Cpl. Creighton allowed the owner to keep these items.

On the defendant’s person, Cpl. Creighton found a single key with tag indicating the Expedition had come from Rountree Ford. Personnel at Rountree had not noticed the SUV missing until the police called; a co-owner of the dealership testified that it had just been delivered and was not yet on the lot for sale. He added that it was a midline model with an invoice price of $36,000 and an MSRP of $40,000.

| ¡Unce in custody, the defendant told Cpl. Creighton his name was Tyrone Ealy, gave him three different birth dates, and said he lived on Quinton Street; however, another officer checked that address and found it was not where the defendant lived. The defendant also said that the Expedition belonged to his 16-year-old brother, who worked at Rountree Ford. Only later did officers find that the defendant’s name was Termaine Deon Cunningham.

Cunningham was charged by bill of information with illegal possession of stolen things valued at over $500 (the Ford Expedition) and two counts of simple burglary (breaking into the 1992 Ford Explorer and 1998 Chevy Silverado in the Southern Hills parking lot). He proceeded to a three-day trial in May 2006, after which the six-member jury unanimously found him guilty as charged on all counts.

The state then charged Cunningham as a fourth felony offender, citing (1) a 1998 guilty plea to simple burglary, (2) a 1998 guilty plea to unauthorized use of a motor vehicle, and (3) a 2004 guilty plea to illegal possession of stolen things. At a hearing in December 2006, the state amended the bill to specify that the enhancement would apply to only one charge of simple burglary. After receiving evidence, the district court adjudicated Cunningham a fourth felony offender.

After a hearing in January 2007, the court sentenced Cunningham to 23 years at hard labor as a fourth offender on one count of simple burglary, to 11 years at hard labor on the other count of simple burglary, and to 9 |ayears at hard labor on the illegal possession of stolen things. The court specified that all three sentences were to be concurrent, but consecutive to any other sentences Cunningham may be serving. The court also stated that all sentences were to be without benefit of probation or suspension of sentence, but subject to parole if he was otherwise eligible. The court later denied a motion to reconsider sentence; this appeal followed.

By one assignment of error, Cunningham urges the court erred in imposing an unduly harsh and excessive total sentence of 23 years. He submits that all items taken in the car burglaries were returned to their rightful owners, resulting in no permanent loss, and that his three prior felonies were not crimes or violence or drug-related. He contends that the 23-year sentence for him, a 28-year-old offender, makes no reasonable contribution to acceptable penal goals.

The state responds that the sentence imposed was only three years above the mandatory minimum for simple burglary enhanced to a fourth felony offense. It submits that the sentence does not shock the sense of justice “in light of the fact that the criminal justice system will get some long-term relief from this defendant.”

Appellate review of sentences for excessiveness is a two-pronged inquiry. First, the record must show that the sentencing court complied with La. C. Cr. P. art. 894.1. The court need not list every aggravating or mitigating factor so long as the record reflects that it adequately considered the guidelines. State v. Smith, 433 So.2d 688 (La.1983); State v. Woods, 41,-420 (La.App. 2 Cir. 11/1/06), 942 So.2d 658, writ denied, 2006-2768, |42781 (La.6/22/07), 959 So.2d 494. When the record shows an adequate factual basis for the sentence imposed, remand is unnecessary even in the absence of full compliance with the article. State v. Landos, 419 So.2d 475 (La.1982). The court is not required to assign any particular weight to any specific matters at sentencing. State v. Quiambao, 36,587 (La.App. 2 Cir. 12/11/02), 833 So.2d 1103, writ denied, 2003-0477 (La.5/16/03), 843 So.2d 1130.

Here, the court stated that it had reviewed the presentence investigation report (“PSI”) and the Art. 894.1 guidelines, particularly noting Cunningham’s lengthy criminal history of same or similar offenses. This may be no paragon of Art. 894.1 compliance, but having presided over the trial on the merits and the multiple offender hearing the court obviously had a full grasp of the facts of the offense and the offender’s background. We find an adequate factual basis for the sentence imposed.

The second prong is constitutional excessiveness. A sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless imposition of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is deemed grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice or makes no reasonable contribution to acceptable penal goals. State v. Guzman, 99-1528 (La.5/16/00), 769 So.2d 1158. The habitual offender law has been found constitutional in its entirety, and the minimum sentences |Bit imposes upon recidivists are also presumed to be constitutional. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672; State v. Thomas, 41,734 (La.App. 2 Cir. 1/24/07), 948 So.2d 1151, writ denied, 2007-0401 (La.10/12/07), 965 So.2d 396. The burden is on the defendant to rebut the presumption that a mandatory minimum sentence is constitutional. To do so, the defendant must

clearly and convincingly show that he is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.

State v. Johnson, at p. 8, 709 So.2d at 676; State v. Henry, 42,416 (La.App. 2 Cir. 9/19/07), 966 So.2d 692. Critically, the district court may not rely solely on the non-violent nature of the instant or past crimes as evidence to justify rebutting the presumption of constitutionality. The lack of violence cannot be the only reason, or even the major reason, for declaring such a sentence excessive. State v. Johnson, at pp. 7-8, 709 So.2d at 676; State v. Henry, supra.

The penalty for simple burglary is imprisonment with or without hard labor for no more than 12 years, a fine of not more than $2,000, or both. La. R.S. 14:62 B. As a fourth felony offender convicted of simple burglary, Cunningham faced a minimum sentence of 20 years and a maximum of life, at hard labor and without benefit of probation or suspension of sentence. La. R.S. 15:529.1 A(l)(e)(i), G. His sentence of 23 years, while long, is at the low end of this range. His PSI discloses a long list of prior offenses and criminal charges. Notably, he had one brief period of probation in 1998 | ¿which was revoked because he committed another offense, and on three prior occasions he was released from custody on parole only to have this revoked for noncompliance with conditions or for committing another offense. Tellingly, he has been charged at least five times with either unauthorized use of a movable or of a motor vehicle. For most of his life, he has been in state custody or had criminal charges pending against him. The PSI also shows that Cunningham, 26 years old at the time of the offense and 28 at sentencing, has no work history whatsoever. Finally, he had been released from prison on parole only one month before committing the instant offenses, and he gave police false information when he was arrested.

On this record, we simply cannot say the sentence shocks the sense of justice, is grossly disproportionate to the offense and the offender, or evinces a legislative failure to assign meaningful sentences. The assigned error lacks merit.

Finally, we have reviewed the entire record pursuant to La. C. Cr. P. art. 920(2) and find nothing we consider to be error patent. For the reasons expressed, Ter-maine Deon Cunningham’s convictions, fourth offender adjudication and sentences are affirmed.

AFFIRMED.

      . Corporal Creighton’s offense report and trial testimony both referred to the owner as champion Ford, but the dealership is now known as Rountree Ford.


author: GASKINS, J.

text:
    STATE of Louisiana In the Interest of J.M., Plaintiff-Appellee v. Robin BROOKS and Ted Malant, Defendant-Appellant.
    No. 42,846-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 2007.

      Michael D. Cox, Lake Charles, for Appellant, Theodore J. Malant.
    Legal Services of North, Louisiana, Inc. by David K. Handelman, Margherita McWilliams, Shreveport, for Appellee, Robin Brooks.
    Wilbert Pryor, for J.M.
    Before BROWN, STEWART and GASKINS, JJ.
   GASKINS, J.

hThe appellant, Ted Malant, appeals from a decision by the juvenile court denying his motion to have Robin Brooks found in contempt. The contempt issue arose out of the court’s order regarding custody issues concerning the couple’s child, J.M. For the following reasons, we affirm.

FACTS

Ted Malant and Robin Brooks are the parents of J.M., born May 23, 2000. The parties were never married. They have been before the court on several other occasions.

Mr. Malant was convicted of sexual assault of a child in’ Texas in 1991 and was placed on probation for seven years. The parties originally’had joint custody of J.M. and Ms. Brooks was named domiciliary parent. This was followed by complaints of abuse by J.M., claiming that his mother bit him, inflicted a closed head injury and, along with her brother, touched him inappropriately. Mr. Malant filed for a change of custody. In 2005, a judgment was en-teréd designating Mr. Malant as domiciliary parent during the school year and granting the same to Ms. Brooks during the summer. The judgment set forth a visitation schedule for the noncustodial parent and ordered that Ms. Brooks’ brother have no contact with the child.

In 2006, Mr. Malant filed a motion for contempt alleging that Ms. Brooks had again beaten the child and had allowed her brother to be around J.M. Joint custody was maintained and no decision was made as to contempt. That judgment was appealed by Mr. Malant. In 2006, while that ruling was on appeal, Mr. Malant filed a complaint with the Louisiana Department of Social Services (DSS) alleging physical and sexual abuse by LMs. Brooks. DSS filed an affidavit asserting physical abuse by Ms. Brooks and emotional abuse by Mr. Malant. J.M. was taken into state custody and was adjudicated a child in need of care. The child was in foster care for several months.

This court ruled on Mr. Malant’s appeal, holding that the juvenile court did not err in considering his conviction in Texas, in refusing to allow him to call J.M. as a witness in the proceedings, in determining that Mr. Malant emotionally abused the child and in finding that the child was in need of care. State ex rel. J.M. v. Malant, 41,670 (La.App.2d Cir.12/13/06), 945 So.2d 189.

In August 2006, while the appeal in the prior case was pending, the juvenile court held a ease review and modified the judgment, removing J.M. from state custody and placing him in the custody of Mr. Malant, with visitation to Ms. Brooks. The judgment included a protective order specifying that the parents were not to abuse or neglect the child. Ms. Brooks was ordered not to use corporal punishment on the child, not to sleep with him or to bathe him, and not to allow her brother to have any contact with the child. The custody judgment also ordered that the parents are entitled to speak with the child by telephone at reasonable times and intervals when the child is with the other parent. The court specified that Mr. Ma-lant was responsible for ensuring that the minor child attend counseling with Dr. Susan Vigen for as long as Dr. Vigen deems necessary.

The DSS and Ms. Brooks appealed that decision. See State ex rel. J.M. v. Brooks, 41,952 (La.App.2d Cir.12/20/06), 946 So.2d 302. This Iscourt found that the juvenile court did not err in granting custody to Mr. Malant and in lifting a protective order prohibiting the father from making recorded interviews with the child for purposes of showing that Ms. Brooks was abusing the child.

In January 2007, Mr. Malant filed the present rule to show cause why Ms. Brooks should not be found to be in contempt of the protective order. Mr. Malant claimed that Ms. Brooks was sleeping with the child, not permitting phone calls, threatening to beat the child if he did not misbehave and perform poorly in school, and threatening to return him to foster care.

In February 2007, Ms. Brooks filed her own rule for contempt, alleging that Mr. Malant has failed to abide by the court’s custody award which required Mr. Malant to ensure that the child attend counseling sessions with Dr. Vigen.

When the rules for contempt were originally brought before the court for hearing, Mr. Malant tried to introduce evidence of other incidents not alleged in his rule for contempt. The matter was continued by the trial court. Mr. Malant filed an amended rule to show cause why Ms. Brooks should not be held in contempt. He alleged that on February 3, 2007, Ms. Brooks hit the child in the groin. According to Mr. Malant, the child had a cold and he took him to a doctor on February 5, 2007. During that appointment, the child stated that Ms. Brooks hit him in the groin. Later, while drying J.M.’s hair, Mr. Malant noted a small bruise on the child’s head. J.M. claimed that Ms. Brooks hit him in the head while he was |4sleeping. Mr. Malant alleged that this occurred on February 16, 2007. He took the child to the doctor on February 21, 2007.

At the conclusion of the hearing, the juvenile court denied the rule to show cause and the amended rule to show cause for contempt filed by Mr. Malant against Ms. Brooks. On April 17, 2007, the judgment was filed denying Mr. Malant’s claims. Mr. Malant appealed.

CONTEMPT

Mr. Malant argues that the juvenile court erred in not finding that the child was intentionally abused by his mother when she slept in the same bed with him, and hit him in the head and the groin. He also argues that the juvenile court erred in failing to consider the best interest of the child when it denied the motion for contempt against Ms. Brooks. These arguments are without merit.

Legal Principles

The wilful disobedience of any lawful judgment or order of the court constitutes a constructive contempt of court. La. C.C.P. art. 224(2). To find a person guilty of constructive contempt, it is necessary to find that he or she violated the order of the court intentionally, knowingly, and purposely, without justification. In re S.L.G., 40,858 (La.App.2d Cir.1/25/06), 920 So.2d 363; Midyett v. Midyett, 32,208 (La.App.2d Cir.9/22/99), 744 So.2d 669.

The trial court is vested with great discretion in determining whether a party should be held in contempt for disobeying the court’s order and its decision will only be reversed when the appellate court can discern an abuse |fiof that discretion. In re S.L.G., supra; Midyett v. Midyett, supra; Martin v. Martin, 37,958 (La.App.2d Cir.12/10/03), 862 So.2d 1081, writ not considered, 2004-0481 (La.3/12/04), 869 So.2d 807. A proceeding for contempt in refusing to obey the court’s orders is not designed for the benefit of the litigant, though infliction of a punishment may inure to the benefit of the mover in the rule. The object of the proceeding is to vindicate the dignity of the court. Smith v. Smith, 35,378 (La.App.2d Cir.9/26/01), 796 So.2d 726; In re S.L.G., supra. Proceedings for contempt are strictly construed and extending their scope is not favored. Arrington v. Arring-ton, 41,012 (La.App.2d Cir.4/26/06), 930 So.2d 1068; Smith v. Smith, supra

La. C.C. art. 136 provides in pertinent part that a parent not granted custody or joint custody of a child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would not be in the best interest of the child. Jurisprudence emphasizes that the best interest of the child is the sole criterion for determining a noncustodial parent’s right to visitation. Because each case depends on its own facts, the determination regarding visitation is made on a case-by-case basis. Great weight is given to the trial court’s determination, and the court’s judgment will not be overturned unless a clear abuse of discretion is shown. Smith v. Smith, 41,871 (La.App.2d Cir.1/24/07), 948 So.2d 386, unit not considered, 2007-0621 (La.4/20/07), 954 So.2d 149.

Discussion

According to Mr. Malant, the child has been alleging physical abuse by the mother from the time he was able to speak in short phrases. Mr. | (¡Malant outlined the extensive court proceedings in this matter and maintained that he has consistently documented, through photos and physicians’ reports, the abuse by Ms. Brooks. He contends that in the present matter, the court had before it for the first time the child’s own testimony to prove abuse by the mother. Mr. Malant noted that Ms. Brooks chose not to testify at the hearing.

Mr. Malant maintains that the juvenile court in this matter failed to consider the best interest of the child in allowing the mother unfettered access to the child. He contends that the juvenile court should have found the mother in contempt and should have ordered that she have only-supervised visitation with the child. He claims that the prejudice against him by prior counselors has been so severe that greater injury has been caused to J.M. Mr. Malant argues that every time a legal action has been instituted, “J.M. has been given back to his mother only to be hurt again and again and again.” Mr. Malant urges that the best interest of the mother continues to take precedence over the best interest of the child.

The issues before the court for decision were whether Ms. Brooks violated the court’s custody order by refusing to allow the child to speak on the phone with Mr. Malant, sleeping in the bed with the child, and hitting the child in the groin and head on separate occasions. Mr. Malant testified that the issue with phone calls improved after he filed his original rule alleging contempt. In a subsequent hearing, the juvenile court ordered Mr. Malant to schedule a counseling session for the child immediately, thereby |7addressing Ms. Brooks’ allegations seeking to have Mr. Malant found in contempt for failing to take the child to counseling.

When Mr. Malant was questioned at trial about Ms. Brooks sleeping in the bed with the child, it was revealed that the child told Dr. Vigen that he had gotten into the bed with his mother on one occasion. Mr. Malant speculated that the child was threatened to make that statement to Dr. Vigen.

Much of the evidence at trial concerned the allegations of physical abuse by Ms. Brooks against J.M. The child’s physician, Dr. William Maranto, testified by deposition that on February 5, 2007, the child was brought in for treatment of a cold. Mr. Malant told the doctor that Ms. Brooks hit the child in the groin and asked that J.M. be examined for bruises. The doctor asked J.M. about the allegation and the child stated that his mother hit him. The doctor’s examination revealed only some tenderness in the area. There was no bruising or other objective findings of injury or trauma.

On February 21, 2007, the child was again brought to Dr. Maranto, based on J.M.’s complaint that his mother hit him in the head several days before. The doctor detected a very faint bruise on the child’s head. The physician concluded that whatever trauma was sustained was not major. Dr. Maranto stated that Mr. Malant seemed very concerned for the child. The child had a very happy affect. The doctor said the encounter was very businesslike and not “super emotional.”

IsAfter the complaint that Ms. Brooks hit him in the groin, J.M. was interviewed at Gingerbread House by a forensic interviewer who testified at the hearing. She said the child related that he called Ms. Brooks by her given name, which angered her, and she hit him in the groin. The interviewer noted that the child recited his version of the incident by rote. The interviewer testified that J.M. was very serious and straightforward during the interview. He made a two- or three-sentence statement about what happened, but could not answer questions about the surrounding details. The interviewer stated that she was very concerned that the child had been coached as to what to say.

A letter from Dr. Vigen, dated March 19, 2007, was filed into evidence at the hearing. Dr. Vigen observed that J.M. is noncompliant and highly oppositional at the start of visits with Ms. Brooks and he is much better behaved with Mr. Malant. According to Dr. Vigen, J.M. is untruthful. On one occasion, the child told Mr. Malant that he stayed at home all day with Ms. Brooks when, in fact, he went skating and out to eat. According to Dr. Vigen, J.M. tells Mr. Malant that Ms. Brooks is lying when she says that he has been good at her house. Dr. Vigen stated that J.M. does not want Mr. Malant to think that he has positive feelings for his mother. Dr. Vigen opined that it is likely that J.M. is accusing Ms. Brooks of hitting him in the hope that visitation will be stopped.

Mr. Malant testified that he did not take the child to court-ordered counseling in spite of all the problems he claimed were occurring. He said that he was having trouble getting in touch with Dr. Vigen to set up |flcounseIing sessions. He also claimed that he did not report any of the alleged incidents of abuse to child protection services because he thought Gingerbread House would report the incidents and because he did not want the state to take custody of the child again.

The juvenile court allowed J.M. to testify. The judge had to instruct the child not to look at Mr. Malant’s attorney when answering questions. He questioned the child with only the attorneys for the parties present. The child repeatedly recited that he did not want to go to his mother’s house anymore because she beats, bites, and chokes him. The child stated that the last time Ms. Brooks hit him was when she struck him in the groin. The prior testimony shows that this incident was reported prior to the alleged blow to the head.

J.M. related that he has a good relationship with Ms. Brooks’ foster mother, Joanne Ross, with whom she fives, and whom the child calls “Gammy.” He stated that, in spite of the alleged abuse by his mother, he never told Gammy about any of it. J.M. seemed somewhat confused when asked about why he never tells his grandmother about the alleged abuse. The child insisted that he hated his mother and wished that she was in jail.

Ms. Ross denied any abuse of the child by Ms. Brooks and stated that if the abuse really occurred, J.M. would tell her about it. Ms. Ross said that the child seems glad to see them on visitation, but that Ms. Brooks is afraid to try to discipline the child.

Based upon the evidence and testimony presented at the hearing, we do not find that the trial court erred in denying Mr. Malant’s request that |inMs. Brooks be found in contempt of court for failure to abide by the court’s order for custody and visitation. Also, the juvenile court did not fail to consider the best interest of the child in its decision. The juvenile court judge heard the testimony in this matter and personally questioned J.M. about the allegations against Ms. Brooks. The record shows that Mr. Malant has a history of encouraging a poor relationship between Ms. Brooks and J.M. According to Dr. Vigen, the child does not want Mr. Malant to think he has any positive feelings for his mother. Mr. Malant encourages the child to call Ms. Brooks by her first name instead of referring to her as his mother, and has the child call his wife “Mom.” Dr. Vigen’s letter stated that J.M. can be untruthful and was capable of fabricating allegations of abuse in order to stop visitation with his mother. According to the interviewer from Gingerbread House, J.M. appeared to have been coached in making his allegations. The medical evidence shows that whatever trauma the child may have incurred was very minor. These factors cast doubt upon the allegations raised in this matter that the mother was sleeping in the child’s bed and struck him on two occasions. The record supports the juvenile court decision to deny Mr. Ma-lant’s request to hold Ms. Brooks in contempt.

^CONCLUSION

For the reasons stated above, we affirm the judgment of the trial court denying the rule to show cause and the amended rule to show cause filed by Ted Malant, urging that Robin Brooks be held in contempt of court. Costs in this court are assessed to Ted Malant.

AFFIRMED.

      . Mr. Malant argues many factors which are not in the record and were not before the juvenile court. Accordingly, those factors are not properly before this court for consideration.

      . Mr. Malant urges that the facts of this case are very similar to those in Arrington v. Campbell, 2004-1649 (La.App. 3d Cir.3/9/05), 898 So.2d 611, in which the third circuit found that the lower court failed to consider the best interest of the child. In Arrington v. Campbell, supra, there was significant proof of physical and sexual abuse of the child by the mother and her family. The third circuit awarded sole custody to the father and ordered that the mother have supervised visitation. Contrary to Mr. Malant’s argument, we find that the present case is more similar to S.J. v. S.M., 550 So.2d 918 (La.App. 2d Cir.1989), whf denied, 552 So.2d 398 (La.1989). In SJ. v. S.M., this court maintained sole custody of the child with the mother, finding that there was insufficient evidence to establish that the child had been the victim of sexual abuse and denying the father’s request that the child undergo further medical evaluation.


text:
    STATE of Louisiana, Appellee v. Sandy WASHINGTON, Appellant.
    No. 42,849-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 2007.

      Louisiana Appellate Project by Carey J. Ellis, III, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Assistant District Attorney, for Appellee.
    Before STEWART, CARAWAY and PEATROSS, JJ.
   STEWART, J.

h The defendant, Sandy Washington, pled guilty to manslaughter and was sentenced to 20 years of imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. The defendant now appeals the sentence imposed as excessive. For the following reasons, we amend the defendant’s sentence to reflect parole eligibility, and affirm the sentence as amended.

FACTS

On October 17, 2001, Bossier police detectives were summoned to Schumpert Hospital to investigate the death of a two-month-old baby. The child appeared to be malnourished and dehydrated. The defendant was formally charged by bill of indictment with the first degree murder of her infant son on February 23, 2005. On January 22, 2007, the defendant accepted a plea bargain agreement and entered an Alford plea to the reduced charge of manslaughter. As a part of the plea agreement, the defendant’s sentencing range was limited to 10-20 years at hard labor without benefit of probation or suspension of sentence. A pre-sentence investigation report (PSI) was ordered.

At the sentencing hearing held May 22, 2007, the trial court again noted the terms of the plea agreement, which included the sentencing range of 10-20 years at hard labor. The court also noted it had reviewed the PSI. It observed that the defendant, a mother of four, is a first felony offender with a minor criminal history. The trial court observed that there was a difference of opinion, as to the cause of the child’s death, between the doctor who performed the autopsy and the defendant’s experts. The ^defendant was sentenced to 20 years at hard labor without benefit of probation, parole, or suspension of sentence., Defense counsel objected to the sentence as excessive. A motion to reconsider sentence was denied by the trial court. This appeal ensued.

DISCUSSION

Excessive Sentence

The defense argues the that the sentence imposed by the trial court is reviewable despite the provisions of La. C. Cr. P. art. 881.2. It was understood by the State, the defendant, and the Court that the defendant would be allowed to review the sentence imposed by the trial court. The state counters that the sentence imposed is within the agreed range and is not excessive.

The defendant cites our recent decision in State, v. Foster, 42,212 (La.App.2d Cir.08/15/07), 962 So.2d 1214, to support the contention that the sentence can be reviewed by this court. In Foster, this court determined that the provisions of La. C. Cr. P. art. 881.2 cannot serve as a bar to a constitutional right of review of a defendant’s sentence where the defendant has not “intelligently waived” such rights. The instant case is distinguishable from our decision in Foster in that there was no reservation of right for review of the defendant’s sentence. The defendant refers to several points in the record to suggest that the right to review the sentence was reserved. At each juncture cited by the defendant, both during the | ¡¡guilty plea hearing and the sentencing, the trial judge noted that the defendant would be sentenced within the range of 10-20 years at hard labor. There is nothing in the language which would indicate any express or otherwise implied reservation of the right to seek review of the sentence. Thus, the defendant’s sentence, imposed within the agreed sentencing range, cannot be reviewed by this court in accordance with the provisions of La. C. Cr. P. art. 881.2.

Even if this court were to review the defendant’s sentence for constitutional ex-cessiveness, after a careful review of the record, we find that the sentence imposed is not excessive based on the facts and circumstances of this case.

The law regarding excessive sentence claims is well settled. The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Landos, 419 So.2d 475 (La.1982); State v. | Hampton, 38,017 (La.App.2d Cir.1/28/04), 865 So.2d 284, writs denied, 2004-0834 (La.3/11/05), 896 So.2d 57 and 2004-2380 (La.6/3/05), 903 So.2d 452. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.04/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.06/24/05), 904 So.2d 728. There is no requirement that specific mat- . ters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385.

Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonan-no, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La. 1992); State v. Hogan, 480 So.2d 288 (La. 1985); State v. Bradford, 29,519 (La. App.2d Cir.4/2/97), 691 So.2d 864.

The record shows that the trial court took adequate cognizance of the criteria set forth in La. C. Cr. P. art. 894.1 in tailoring this sentence to the defendant. The defendant received a great benefit by entering into the plea 15agreement wherein she reduced her initial sentence exposure from a potential death sentence to a maximum of 20 years. Furthermore, the defendant’s sentence was limited to half of the total exposure for the offense to which she pled guilty. When viewed in light of the harm done to society by such a serious offense, the defendant’s sentence does not shock the sense of justice. This record does not support a finding that the defendant’s sentence is unconstitutionally excessive.

Error Patent

This court’s error patent review reveals that the trial judge erred in ordering that the defendant’s sentence be served without benefit of parole. La. R.S. 14:31 (B) provides that the sentence should be served without benefit of probation or suspension of sentence, but does not deny parole eligibility. State v. Persley, 40,271 (La.App.2d Cir.12/16/05), 918 So.2d 491; State v. Douglas, 40,307 (La.App.2d Cir.10/26/05), 914 So.2d 608.

CONCLUSION

The defendant’s sentence is amended to delete the prohibition against parole eligibility. In all other respects, the sentence is affirmed.

SENTENCE AMENDED AND AFFIRMED AS AMENDED.

      . La. C. Cr. P. art. 881.2(A)(2) provides: The defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.


text:
    STATE of Louisiana, Appellee v. Frank E. BELL, Appellant.
    No. 42,394-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 2007.

      Paula C. Marx, Louisiana Appellate Project, for Appellant.
    Paul J. Carmouche, District Attorney, John Ford Mcwilliams, Jr., Damon Kervin, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, GASKINS and CARAWAY, JJ.
   GASKINS, J.

hThe defendant, Frank E. Bell, was convicted of simple burglary. He was then found to be a fourth felony offender and sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The defendant appealed. For the following reasons, we affirm the conviction and sentence.

FACTS

On the morning of June 14, 2004, Dr. Russell Hennessy was contacted by his security company and informed that the silent alarm in the separate garage at his residence had been triggered. He requested that the police be called. He also asked his girlfriend, Candice McWaters, to go to the residence.

Ms. McWaters arrived at the scene and surmised that someone was still inside the building. A police officer arrived soon after. Eventually, backup officers and a K-9 officer arrived at the residence.

The garage was used to store a 1998 Chevy Astro van, a 1971 Corvette Stingray, and a 1995 Corvette, as well as household items. A bag was lying outside the building containing tools and other things belonging to Dr. Hennessy. The bag had been used to store “t-tops” to one of the vehicles. A bicycle was lying close to the bag. The door to the building was locked.

After Dr. Hennessy arrived, the building was opened with his key. The K-9 officer entered the building and ordered the intruder to come out. After several warnings, the dog was released. The animal found the |2defendant hiding under boxes and bedding that had been stored in the building. The dog bit the defendant.

The defendant was arrested and charged with simple burglary. A sanity commission was appointed and the defendant was found not competent to stand trial in 2004. In 2005, the defendant was determined to be competent to stand trial. He was tried by a jury and found guilty as charged. A motion for post verdict judgment of acquittal was denied by the trial court. A multiple offender bill of information was filed against the defendant and, after a hearing, he was adjudicated a fourth felony offender. He was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

The defendant appealed, arguing that the evidence was insufficient to prove that he had the requisite specific intent to commit the offense of simple burglary. He also argues that, under the exceptional circumstances of this case, the life sentence is excessive.

SUFFICIENCY OF THE EVIDENCE

The defendant argues that the evidence was insufficient to support his conviction for simple burglary. He urges that the prosecution failed to prove beyond a reasonable doubt that he had specific intent to commit a theft or felony inside Dr. Hennessy’s garage. The defendant contends that there was no physical evidence linking him to Dr. Hennessy’s property found outside the garage. The defendant argues that someone else may have been in the area who could have taken the items out of the building. This argument is without merit.

IsLegal Principles

When considering the issue of sufficiency of evidence, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Cummings, 1995-1377 (La.2/28/96), 668 So.2d 1132; State v. Barrett, 42,303 (La.App.2d Cir.8/15/07), 963 So.2d 1072.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, wit denied, 1998-2723 (La.2/5/99), 737 So.2d 747. An appellate court reviewing the sufficiency of the evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by the evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Barakat, 38,419 (La.App.2d Cir.6/23/04), 877 So.2d 223. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Barakat, supra.

When circumstantial evidence is used to prove the commission of an offense, the provisions of La. R.S.' 15:438 mandate that, assuming every fact Uto be proved that the evidence tends to prove, every reasonable hypothesis of innocence must be excluded in order to convict. The provisions of La. R.S. 15:438 do not establish a separate standard from the Jackson standard, but rather provide a helpful methodology for determining the existence of reasonable doubt; ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Morris, 41,651 (La.App.2d Cir.12/13/06), 945 So.2d 212, writ denied, 2007-0087 (La.9/21/07), 964 So.2d 331. In circumstantial evidence cases, this court does not determine whether another possible hypothesis suggested by a defendant could afford an exculpatory explanation of the events. Rather, this court, evaluating the evidence in the light most favorable to the prosecution, determines whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt under Jackson v. Virginia, supra. State v. Davis, 92-1623 (La.5/23/94), 637 So.2d 1012, cert, denied, 513 U.S. 975, 115 S.Ct. 450, 130 L.Ed.2d 359 (1994).

To convict an accused of simple burglary, the prosecution must prove there was an unauthorized entry of any dwelling, vehicle, watercraft, or other structure, movable or immovable, or any cemetery, with the intent to commit a felony or any theft therein, other than as set forth in La. R.S. 14:60. La. R.S. 14:62. To support a conviction of simple burglary under La. R.S. 14:62, proof of the defendant’s presence in a building by means of an unauthorized entry is not alone sufficient. The prosecution must also Lprove beyond a reasonable doubt the intruder’s intent to commit a theft or felony therein. State v. Jacobs, 504 So.2d 817 (La.1987).

The determination of whether the requisite intent is present in a criminal case is for the trier of fact. State v. Wright, 36,635 (La.App.2d Cir.3/7/03), 840 So.2d 1271. Although intent is a question of fact, it need not be proved as a fact. It may be inferred from the circumstances. Moreover, it is not necessary that an actual theft occur. Flight and attempt to avoid apprehension are circumstances from which the jury may infer a guilty conscience. State v. Barrett, supra. Displacement of the victim’s possessions may be indicative of the specific intent to commit a theft. State v. Wright, supra.

Discussion

The garage where the defendant was found was approximately 50 feet from the residence in an open field. After Ms. McWaters and Corporal Kevin Alderman of the Shreveport Police Department arrived, Ms. McWaters was facing the garage talking to the officer. She saw the defendant peek out the door of the garage and lean around the corner of the building.

Corporal Alderman testified that he saw the bushes move and thought that someone was still inside the building. He went around the garage, and looked across an open field, but did not see anyone. He observed that the grass around the building was tall and was bent under the door, indicating that someone had recently entered the building. After the K-9 officer and IfiOther backup officers arrived, the police dog was sent into the building and found the defendant hiding inside.

Sergeant Mark Sharbono of the Shreveport Police Department testified that he handcuffed the defendant and read him his Miranda rights. The defendant was informed that he was being arrested for simple burglary. The defendant stated that he was staying in the garage and did yard work around the residence. Both Dr. Hennessy and Ms. McWaters testified that the defendant was not staying in the garage, did not do yard work there, and did not have permission to be in the building. They stated that they had never seen the defendant before that day. Dr. Hennessy identified the items found outside the building as belonging to him.

The state proved through direct and circumstantial evidence that the defendant made an unauthorized entry into the garage and had the specific intent to commit a theft inside the garage. Dr. Hennessy and Ms. McWaters stated that the defendant did not have permission to be in the building. The direct evidence proves that the defendant made an unauthorized entry into the building. The jury apparently believed the statements of Dr. Hennesssy and Ms. McWaters and discredited the defendant’s statement to police that he was staying in the garage.

Possessions stored inside the building were found just outside the building and Dr. Hennessy testified that he did not put them there or ask anyone to put them there. The defendant’s displacement of Dr. Hennsessy’s property indicates his specific intent to commit a theft in the garage.

|7The defendant contends that because no one saw him put the items outside the garage, there is no proof that he did it. The timing of the silent alarm, combined with the items placed outside the garage and the defendant’s hiding inside, all lead to the reasonable conclusion that it was the defendant who committed the theft of the items.

The defendant argues that Corporal Alderman’s testimony about seeing the bushes moving was evidence that someone else could have been there and that the unknown person could be responsible for taking Dr. Hennessy’s possessions from the garage. However, Corporal Alderman testified that he looked around the garage and the open field and could not find anyone else. Other law enforcement officers who were present at the scene testified that someone running away would have been easily seen in the field where the garage was located. No other person was observed.

In addition to bagging and transporting Dr. Hennessy’s property outside the garage, contemporaneously with the alarm being triggered, the defendant’s other actions also support a guilty verdict. The defendant peered around the corner of the garage to surveil the position of the police. The defendant fled back inside the garage, locked the door, and hid. The defendant then gave a false statement in an attempt to explain his presence in the garage. Sufficient evidence was presented for the jury to conclude, beyond a reasonable doubt', that the defendant was guilty of every essential element of simple burglary.

J^EXCESSIVE SENTENCE '

The defendant argues that his mandatory life sentence as a habitual offender is excessive. He contends that he is exceptional due to his mental illness, history of substance abuse, history of non-violent offenses, and limited mental capacity. This argument is without merit.

Legal Principles

The defendant was adjudicated a fourth felony offender. At his multiple offender hearing, the state proved that the defendant pled guilty to áttempted simple burglary in December 1990, simple burglary in November 1993, and simple burglary of an inhabited dwelling in June 1998. He was convicted by a jury of the present offense of simple burglary. In sentencing multiple offenders, La. R.S. 15:529.1(A)(l)(c)(ii) provides in pertinent part:

A. (1) Any person who, after having been convicted within this state of a felony ... thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:
(c) If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then:
(ii) If the fourth felony and two of the prior felonies are felonies ... punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence. [Emphasis supplied.]

The defendant’s previous and present convictions of simple burglary and his pri- or conviction of simple burglary of an inhabited dwelling all carry a maximum sentence of twelve years at hard labor. Therefore, a life sentence, without benefit of parole, probation, or suspension of sentence in the present case was mandatory.

|9A sentencing judge must always start with the presumption that a mandatory minimum sentence under the Habitual Offender Law is constitutional. A court may only depart from the minimum sentence if it finds that there is clear and convincing evidence in the particular case before it which would rebut this presumption of constitutionality. State v. Johnson, 1997-1906 (La.3/4/98), 709 So.2d 672.

A trial judge may not rely solely upon the non-violent nature of the instant crime or of past crimes as evidence which justifies rebutting the presumption of constitutionality. While the classification of a defendant’s instant or prior offense should not be discounted, this factor has already been taken into account under the Habitual Offender Law for third and fourth offenders. State v. Johnson, supra.

To rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must clearly and convincingly show that he is exceptional, which in this context means that because of unusual circumstances, this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. State v. Johnson, supra.

When determining whether the defendant has met his burden of proof by rebutting the presumption that the mandatory minimum sentence is constitutional, the trial judge must also keep in mind the goals of the Habitual Offender Law, which include the deterrence and punishment of recidivism. State v. Johnson, supra. If the sentencing judge finds clear and | ^convincing evidence which justifies a downward departure from the minimum sentence, he is not free to sentence the defendant to whatever sentence he feels is appropriate under the circumstances. Instead, the judge must sentence the defendant to the longest sentence which is not constitutionally excessive. The court must also articulate specific' reasons why the sentence imposed instead of a mandatory minimum is the longest sentence which is not excessive under the Louisiana Constitution. State v. Johnson, supra.

Discussion

The defendant argues that the mandatory life sentence in this case is constitutionally excessive and the trial court should have made a downward departure in sentencing. The defendant claims that he is exceptional because of his history of mental illness, history of substance abuse, history of non-violent offenses, ' and his limited mental capacity. The defendant also claims the sentence is excessive because he did not cause any physical harm or monetary loss. We find that there is no justification in this case for a sentence less than the mandatory sentence required by the Habitual Offender Law. The defendant did not present any evidence ,to show that his circumstances were exceptional or that he was the victim of the legislature’s failure to assign sentences meaningfully tailored to his culpability, the gravity of the offense, and the circumstances of this case.

The defendant argues that his prior convictions were non-violent. However, State v. Johnson, supra, rejected that factor as a major reason for a lesser sentence. The defendant’s prior felony convictions show that he is a | ^career criminal; the Habitual Offender Law was intended to punish and deter recidivism.

Because the defendant had previously been found incompetent to stand trial, the court was aware of the defendant’s history of mental illness and limited mental capacity. However, no evidence was presented to indicate that the mental illness caused the defendant to commit the offense. The record shows that at the time of the offense, the defendant’s mental faculties were sufficient for him to try to avoid apprehension and to formulate an excuse for his unauthorized presence in the garage. Because the defendant has not shown that his case is exceptional and warrants a rare departure from the mandatory minimum sentence under the Habitual Offender Law, the trial court properly sentenced the defendant to the mandatory life sentence in this case.

ERROR PATENT

A review for error patent reveals that the trial court failed to advise the defendant at sentencing that he has two years from the time of finality of his conviction and sentence to seek post conviction relief as required by La.C.Cr.P. art. 930.8. The statute contains supplicatory language which does not bestow an enforceable right on an individual defendant. State v. Hunter, 36,692 (La.App.2d Cir.12/20/02), 834 So.2d 6. Furthermore, this defect has no bearing on whether the sentence is excessive and, thus, is not | ^grounds to reverse the sentence or to remand the case for resentencing. State v. Ferrell, 26,649 (La.App 2d Cir. 12/7/94), 647 So.2d 427. Therefore, the defendant is advised by this opinion that no application for post conviction relief, including applications which seek out-of-time appeal, shall be considered if filed more than two years after the judgment of conviction and sentence have become final under the provisions of La. C.Cr.P. arts. 914 and 922.

CONCLUSION

For the reasons stated above, we affirm the defendant’s conviction and sentence.

AFFIRMED.

      . The facts of this case are distinguishable from those in State v. Jacobs, 504 So.2d 817 (La.1987) and State v. Wright, supra. In Jacobs, the defendant and his brother entered an unoccupied apartment to eat and sleep. There was no evidence that they disturbed any of the contents of the dwelling. In Wright, the defendant was observed entering a house that was being remodeled. There was no showing that the defendant disturbed anything in the house. In those cases, there was no showing of the requisite specific intent to commit a felony or theft once inside the structures.

        . The record contains a "rap sheet” that shows, in addition to the convictions contained in the habitual offender bill, the following convictions: 1981-simple burglary; 1984-aggravated assault; 1988-criminal trespass; and 1990-simple battery. Other charges showing dismissal or no disposition include: 1983-driving while intoxicated; 1986-attempted simple burglary; 1988-theft, simple criminal property damage; 1990-pos-session of drug paraphernalia, disturbing the peace, felony property damage; 1991-crimi-nal trespass; 1996-entering and remaining; and 2003-simple criminal property damage.