author: WILLIAMS, Judge.

text:
    STATE of Louisiana, Appellee, v. Frank FOWLER, Appellant.
    No. 41,443-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 27, 2006.

      Edward K. Bauman, Lake Charles, for Appellant.
    Prank Fowler, Pro Se.
    Paul J. Carmouche, District Attorney, Geya D. Williams, Catherine M. Estopinal, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, CARAWAY and DREW, JJ.
   WILLIAMS, Judge.

hThe defendant, Frank Fowler, was charged by bill of information with battery of a correctional facility employee, a violation of LSA-R.S. 14:34.5. After a jury trial, the defendant was found guilty as charged. The district court imposed a sentence of five years at hard labor to run consecutively with any other sentence to be served. Defendant appeals his conviction. We affirm.

FACTS

On November 13, 2003, the defendant was an inmate at Forcht Wade Correctional Center and he had been assigned to a work crew that was cleaning the grounds of the facility. After making vulgar comments to a female corrections officer who had ordered him to return to work, defendant was handcuffed and taken to Lieutenant Randall Wilkinson so he could be placed in administrative segregation for violating inmate disciplinary rules. As Lt. Wilkinson and another officer were escorting defendant to the lobby of the administrative segregation cell block, he became loud, combative and noncompliant. When defendant refused to walk up the stairs to his cell, each officer grabbed an arm of defendant, who kicked a desk and knocked over a chair. The officers then carried him up the stairs and into the cell. Because defendant had his legs tucked underneath him, the officers placed him on the floor and as they did so, defendant rolled onto his back. As the other officer left the cell, Lt. Wilkinson was still bending over defendant, holding him in place. Once he let go, the defendant kicked Lt. Wilkinson in the chest with his left foot.

Wilkinson stepped outside the cell and contacted his supervisors. [«> When they arrived, defendant continued to refuse their instructions to strip down and pass all items outside of the cell so the officers could check for contraband. Assistant Warden Anthony Batson and other officers tried to verbally calm defendant. Because of his continued noncompliance, the officers sprayed him with chemical deterrents. When this did not work, a tactical team entered the cell to restrain defendant and check for contraband.

Subsequently, Asst. Warden Batson referred the matter to the Caddo Parish District Attorney for prosecution. After a jury trial, defendant was convicted of felony battery of a correctional facility employee. Defendant agreed to a five-year sentence at hard labor, to run consecutively to any sentence he was serving, in exchange for an agreement that the state would not file a multiple offender bill of information.

DISCUSSION

The defendant contends the evidence presented was insufficient to support the conviction of battery of a correctional facility employee. The defendant argues that the state failed to prove that he possessed the specific intent required for a battery. Defendant concedes that he may have kicked Wilkinson in the chest, but that his “uncontrollable anger” was much like a sudden passion or heat of blood that deprived him of the necessary reflection and coolness of mind to form the specific intent to commit the battery. Defendant further argues in the alternative that his conviction should be reduced to the general intent crime of simple battery and his case remanded for a new sentence.

The standard of appellate review for a sufficiency of the evidence Uclaim 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). This standard, now legislatively embodied in LSA-C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/04/96), 680 So.2d 1165. 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, writ denied, 98-2723 (La.2/05/99), 737 So.2d 747.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of witnesses, the matter is one of the weight, not the sufficiency, of the evidence. State v. Allen, 36,180 (La.App. 2d Cir.09/18/02), 828 So.2d 622, writ denied, 02-2595 (La.03/28/03), 840 So.2d 566, 02-2997 (La.06/27/03), 847 So.2d 1255, cert. denied, Allen v. Louisiana, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.08/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.

Further, the Jackson standard does not provide a defendant with a 14means of arguing alternative and inconsistent defenses in different forums, raising one defense before the jury and when that fails, a second defense presupposing a different set of facts in an appellate court conducting a sufficiency review under Jackson and LSA-C.Cr.P. art. 821(E). State v. Juluke, 98-0341 (La.01/08/99), 725 So.2d 1291.

Defendant testified at trial that he did not know whether he kicked Lt. Wilkinson, but that he may have unintentionally kicked Wilkinson when he rolled over after being dropped on the ground. Defendant testified that he resisted being taken to administrative segregation because he thought his placement there was unfair; however, he did not testify about an uncontrollable anger that would have deprived him of the ability to form specific intent. The argument that defendant lacked specific intent to commit the battery because of his uncontrollable anger is inconsistent with his trial defense argument that any such kick was an accident. Because defendant raises this alternative argument presupposing different facts for the first time on appeal, it is not a proper argument for this court to consider in performing its sufficiency review under Jackson and Article 821(E).

Even so, defendant’s alternative argument on appeal is without merit. In State v. Elliot, 00-2687 (La.App. 1st Cir.06/22/01), 809 So.2d 203, the court addressed the argument that the evidence was insufficient to support a conviction for battery of a correctional facility employee because the offender’s “rage and uncontrollable anger” deprived him of the ability to form specific intent. The court rejected the argument that the sudden passion or heat of blood language contained in the manslaughter statute was ^applicable to the case because the offense involved was not a homicide. State v. Elliot, 809 So.2d at 205. Sudden passion or heat of blood is not a justification for criminal actions under LSA-R.S. 14:18, or for the use of force in defense in a non-homicide under LSA-R.S. 14:19. Moreover, sudden passion or heat of blood only reduces the level of culpability in a homicide by reducing the charges of first or second degree murder to manslaughter; it does not relieve the defendant of all criminal liability. LSA-R.S. 14:31(A)(1). Therefore, defendant’s argument that his uncontrollable anger should be likened to a sudden passion or heat of blood and, thereby, reduce or relieve him of culpability for the battery of a correctional facility employee is without merit.

In any event, battery of a correctional facility employee is a general intent, rather than a specific intent, crime. A battery is defined as any intentional use of force on the person of another. LSA-R.S. 14:33. Battery of a correctional facility employee is defined as a battery committed without the consent of the victim when the offender has reasonable grounds to believe the victim is a correctional facility employee acting in the performance of his duty. LSA-R.S. 1454.5(A)(1). If the offense is committed when the offender is in the legal custody of the Department of Public Safety and Corrections, or is being detained in any jail, prison or correctional facility, the offender shall be fined not more than one thousand dollars and imprisoned with or without hard labor without benefit of parole, probation or suspension of sentence for not less than one year nor more than five years. LSA-R.S. 14:34.5(B)(2).

In State v. Elliot, supra, the court explained that battery of a correctional facility employee is a general intent crime:

Criminal intent may be specific or general. Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. LSA-R.S. 14:10(1). Proof of specific intent is required where the statutory definition of a crime includes the intent to produce or accomplish some prescribed consequence. State v. Fuller, 414 So.2d 306, 309 (La.1982)(deter-mining LSA-R.S. 14:34.1, second degree battery, to be a specific intent crime). The statutory definition of battery of a correctional facility employee does not include the intent to produce or accomplish some prescribed consequence. General intent requires a showing that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act. LSA-R.S. 14:10(2); [State v.] Howard, [94-0023 (La.06/03/94),] 638 So.2d [216,] at 217. In general intent crimes, criminal intent necessary to sustain a conviction is shown by the very doing of the acts which would have been declared criminal. Howard, 638 So.2d at 217. The criminal intent necessary to sustain a conviction for battery of a correctional facility employee is shown by the very doing of the acts which have been declared criminal in the definition of the crime.

In the present case, Lt. Wilkinson testified that defendant kicked him, leaving an abrasion on his chest. Defendant admitted during his testimony that he may have kicked the officer. Lt. Wilkinson further testified that at the time of this incident he was in uniform, that he was on duty and that he had not given defendant permission to kick him. Thus, there was evidence from which a reasonable fact finder could determine that defendant kicked Lt. Wilkinson in the chest, that he knew Wilkinson was a correctional facility employee acting in the performance of his duty and that Lt. Wilkinson had not consented to the battery. In addition, the evidence of 17defendant’s noncompliant and combative behavior when he was brought to his cell supports a determination that defendant possessed the general intent necessary to commit this crime.

The defendant presented the testimony of two other inmates, who stated that they were in administrative segregation on the day of the incident and that they heard corrections officers threatening the defendant. However, the verdict rendered against defendant indicates that the jury accepted the account of the incident set forth by the state’s witnesses and gave little credit to defendant’s witnesses, who admitted they were not able to observe the confrontation.

Based upon this record, we are convinced that the evidence, viewed in the light most favorable to the state, was sufficient to support defendant’s conviction of battery of a correctional facility employee. The assignment of error lacks merit.

Supplemental Pro Se Brief

On August 31, 2006, defendant filed a pro se brief in accordance with an order issued by this court in response to the defendant’s motion to supplement. State v. Fowler, 41,443 (La.App.2d Cir.7/28/06). Defendant now alleges that his right to compulsory process and confrontation of witnesses was hindered due to the following three circumstances: (1) the state did not present the testimony of Sergeant Dewayne Rice, who was with the victim and defendant at the time of the offense, at either the preliminary examination or the trial; (2) the trial court denied his pro se motion for production of documents requesting medical records from LSUHSC ls(“LSU”) to rebut allegedly false testimony regarding the defendant’s injuries; and (3) the trial court denied his request to have the Louisiana Department of Public Safety and Corrections give him a list of all inmates who were in the “West Max” building of the prison facility during the dates of November 13, 2003 to November 20, 2003.

The state’s failure to present the testimony of Sergeant Rice either at the preliminary examination or at trial did not violate defendant’s right to compulsory process and confrontation of witnesses. Defendant alleges that Sergeant Rice might have testified on cross-examination that he “was just following orders” of Lt. Wilkinson, who was his superior. It is unclear how this testimony would have helped defendant. Even so, defendant had the ability to subpoena this witness and the state was under no obligation to present his testimony. The trial court did not deny defendant the opportunity to subpoena Sergeant Rice, nor did defendant have the right to confront a witness on cross-examination whose testimony was not presented to the jury.

The lack of medical records from LSU did not prejudice the defendant. The evidence showed that after defendant was subdued, he was seen at the prison infirmary, where his eyes were rinsed of any chemical residue. No other physical injuries were observed on defendant following the incident. Further, there was no testimony indicating that the defendant received treatment at LSU for any injury resulting from this incident.

Defendant suffered no prejudice from the trial court denying his request to have the Louisiana Department of Public Safety and Corrections lflgive him a list of all inmates who were in the West Max building during the dates of November 13, 2003 to November 20, 2003. While defendant argues that this would have given him potential witnesses with exculpatory evidence, this claim is inconsistent with his testimony at trial.

Defendant testified that he was resisting Lt. Wilkinson and being combative because he thought it was unfair for him to be taken to administrative segregation. Further, defendant admitted that he might have unintentionally kicked Lt. Wilkinson when being placed on the floor of the cell. Even if this discovery denial violated defendant’s right to discovery, such violations do not warrant reversal unless defendant is actually prejudiced. State v. Garrick, 2003-0137 (La.4/14/04), 870 So.2d 990, citing State v. Strickland, 398 So.2d 1062 (La.1981); State v. Norwood, 396 So.2d 1307 (La.1981). Due process does not require reversal even for the failure to disclose exculpatory evidence unless the non-disclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict. State v. Garrick, supra, quoting Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999).

In light of defendant’s testimony at trial, there is no reasonable probability that the testimony of the other inmates would have produced a different verdict. Therefore, the denial of defendant’s discovery request did not prejudice his defense. The pro se assignment of error lacks merit.

Error Patent

We note that the trial court failed to state that defendant’s five-year sentence is to be served without benefit of parole, probation or suspension |inof sentence as required by the statute. However, pursuant to LSA-R.S. 15:301.1(A), the sentence is deemed to contain the statutory provision mandating that the sentence be served without benefit of parole, probation or suspension of sentence despite the sentencing court’s omission. Consequently, the sentence will automatically be served without such benefit. State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790; State v. Cooks, 36,613 (La.App.2d Cir.12/4/02), 833 So.2d 1034.

CONCLUSION

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.


source: Caselaw Access Project

author: BROWN, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Kendrick Wayne JONES, Appellant.
    No. 41,429-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 27, 2006.

      Paula C. Marx, Louisiana Appellate Project, for Appellant.
    Paul J. Carmouche, District Attorney, Brian H. Barber, Tommy J. Johnson, Assistant District Attorney, for Appellee.
    Before BROWN, GASKINS, and PEATROSS, JJ.
   BROWN, Chief Judge.

_JjA jury convicted defendant, Kendrick Wayne Jones, of illegal possession of a firearm by a convicted felon. Pursuant to an agreement, the state dismissed other pending felony charges, and defendant received a sentence of 12 1/2 years at hard labor. Defendant appeals, alleging insufficiency of proof of the crime. We amend the sentence in part and as amended, affirm.

Discussion

Sufficiency of the Evidence-Prior Felony Conviction

Defendant argues that the state failed to present sufficient evidence to prove that defendant had a previous felony conviction, a necessary element of the charged offense.

Although the record does not reflect that defendant filed a motion for post-verdict judgment of acquittal pursuant to La. C. Cr. P. art. 821, this court will consider sufficiency arguments in the absence of such a motion. State v. Henson, 38,820 (La.App.2d Cir.09/22/04), 882 So.2d 670; State v. Green, 28,994 (La.App.2d Cir.02/26/97), 691 So.2d 1273.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.02/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App. 2d Cir.08/29/02), 827 So.2d 488, writ denied, 02-2634 (La.9/05/03), 852 So.2d 1020. This standard, legislatively | ^embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.08/30/02), 827 So.2d 508, writ denied, 02-3090 (La.11/14/03), 858 So.2d 422.

In order to convict a defendant of possession of a firearm by a convicted felon, the state is required to prove beyond a reasonable doubt: (1) possession of a firearm; (2) conviction of any enumerated felony; (3) absence of the ten-year statutory period of limitation; and (4) general intent to commit the offense. La. R.S. 14:95.1; State v. Husband, 437 So.2d 269 (La.1983); State v. Phillips, 35,554 (La.App.2d Cir.01/23/02), 806 So.2d 964; State v. Woodruff, 34,454 (La.App.2d Cir.02/28/01), 780 So.2d 598.

La. R.S. 14:95.1 provides in pertinent part that it is unlawful for any person who has been convicted of any violation of the Uniform Controlled Dangerous Substances Law which is a felony to possess a firearm within ten years of the completion of the sentence imposed.

On April 2, 2005, several police officers were patrolling the area near National Liquor Bank located at the intersection of Union and 70th Streets in Shreveport,' Louisiana. They observed defendant, Kendrick Wayne Jones exit National Liquor Bank. Officer Robert Robinson, in the lead car, ^recognized defendant, and knew he had been barred from the National Liquor Bank. Officer Robinson called out to defendant, who then threw down a gun and fled the area. The gun was retrieved and found to be loaded.

Defendant was initially charged with possession of stolen property and being a felon in possession of a firearm. At trial, Officers Robinson, Deonray Belle, and John Flores testified defendant threw down a gun, shed his black jacket, and successfully fled the area; the owner of National Liquor Bank confirmed defendant had been in the store wearing a black jacket; the officers obtained information that the defendant was a convicted felon; and a police dog found defendant hiding under his bed at his home wearing the same clothes.

The officers’ testimony was clearly sufficient to prove possession of the firearm. Defendant’s appeal, however, challenges the proof of a prior felony conviction.

The burden is on the state to prove the existence of the prior felony conviction(s). Various methods may be used to carry this burden of proof, such as: testimony of witnesses, expert opinion as to the fingerprints of the accused when compared with those of the person previously convicted, photographs contained in a duly authenticated record, or evidence of identical driver’s license number, sex, race, and date of birth. State v. Watson, 40,059 (La.App.2d Cir.09/21/05), 911 So.2d 396.

The state presented the testimony of Officer Amy Muller, an expert in fingerprint analysis. Officer Muller compared prints taken in court from ^defendant with prints on a bill of information in a previous case in the First Judicial Court, Caddo Parish, Louisiana, wherein defendant pled guilty to felony possession of a Schedule II CDS on May 13, 2003. Officer Muller found the prints matched. The minute entry of the May 13 guilty plea shows that defendant was represented by counsel and that the court informed defendant of his rights per Boykin v. Alabama, 395 U.S. 236, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

In State v. Shelton, 621 So.2d 769, 770-780 (La.1993), the Louisiana Supreme Court explained the shifting burden of proof in multiple offender hearings as follows:

If the defendant denies the allegations of the bill of information, the burden is on the State to prove the existence of the prior guilty pleas and that defendant was represented by counsel when they were taken. If the State meets, this burden, the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant is able to do this, then the burden of proving the constitutionality of the plea shifts to the State. The State will meet its burden of proof if it introduces a “perfect” transcript of the taking of the guilty plea, one which reflects a colloquy between judge and defendant wherein the defendant was informed of and specifically waived his right to trial by jury, his privilege against self incrimination, and his right to confront his accusers. If the State introduces anything less than a “perfect” transcript, for example, a guilty plea form, a minute entry, an “imperfect” transcript, or any combination thereof, the judge then must weigh the evidence submitted by the defendant and by the State to determine whether the State has met its burden of proving that defendant’s prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boy-kin rights. (Footnotes omitted).

In State v. O’Neal, 34,814 (La.App.2d Cir.10/12/01), 795 So.2d 1292, 1296, in which the defendant urged the same argument (a minute entry |,4s insufficient proof to substantiate a prior plea), this court, relying on State v. Shelton, supra, held the following:

We find that the state, through the use of the minute entry, has met its burden of proof under Shelton by showing that the defendant was represented by counsel at the time of the plea. Once the state has met its burden of proof, the burden shifts to the defendant to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity. The defendant alleges that there were defects in the taking of the plea. However, the defendant did not introduce any evidence to show an infringement or irregularity. Therefore, the defendant has not met his burden of proof under Shelton.

In the instant case, defendant makes no showing, much less an affirmative one, that there was an infringement of his rights or a procedural irregularity; thus the burden did not shift back to the state to make any further showing. Accordingly, this assignment of error is without merit.

Time Period Within Which to Apply for Post-Conviction Relief

The record reveals the trial judge informed defendant that he had two and one-half years to seek post-conviction relief. The Louisiana Supreme Court has held that La. C. Cr. P. art. 930.8(C), which requires the trial court to inform the defendant of the limitations period for filing an application for post-conviction relief, is supplicatory language which does not bestow an enforceable right on an individual defendant. State v. Reed, 40,975 (La.App. 2 Cir. 04/12/06), 926 So.2d 803.

The trial court should have advised defendant, and we now inform him by this opinion, that no application for post-eonviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C. Cr. P. arts. 914 or 922.

| ftErrors Patent

The sentencing portion of La. R.S. 14:95.1 provides, that whoever is found guilty of violating the provisions of this section shall be imprisoned at hard labor for not less than 10 nor more than 15 years without the benefit of probation, parole, or suspension of sentence and be fined not less than $1,000.00 nor more than $5,000.00.

Defendant received an agreed sentence of 12 1/2 years; however, the trial court did not state that the sentence was to be served without the benefit of probation, parole, or suspension of sentence, and no fine was imposed. The state, in its brief, did not appeal the sentence as illegally lenient.

In 1999, the legislature passed La. R.S. 15:301.1, entitled “Sentences without benefit of probation, parole, or suspension of sentence; correction,” which provides that when a criminal statute requires that all or a portion of a sentence imposed for a violation of a statute be served without benefit of probation, parole, or suspension of sentence, each sentence imposed under the provisions of that statute shall be deemed to contain these provisions, regardless of whether the district court has inadvertently or purposefully omitted this language. In State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, the supreme court held that § 301.1 authorized an appellate court to correct an illegally lenient sentence absent any complaint by the state and when a defendant is the only party bringing an appeal. The court further found that the statute eliminates the need for an appellate court to remand for a ministerial correction of an illegally lenient sentence which may result |7from the failure of the sentencing court to impose punishment in conformity with that provided in the statute.

Accordingly, we revise defendant’s sentence to 12)6 years without the benefit of probation, parole, or suspension of sentence.

Conclusion

For the reasons set forth above, defendant’s conviction is AFFIRMED. Defendant’s sentence is AMENDED IN PART, and AFFIRMED. Defendant is hereby notified that he has the right to seek conviction relief within two years of the finality of his conviction.

AMENDED IN PART, AND AFFIRMED.


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. Jack S. SPEARS, Appellant.
    No. 39,302-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 27, 2006.
    Rehearing Denied Oct. 26, 2006.

      Bobby L. Culpepper, Jonesboro, for Appellant.
    Robert W. Levy, District Attorney, Clifford R. Strider, III, Pamela A. Stewart, Assistant District Attorneys, for Appellee.
    Before BROWN, WILLIAMS and DREW, JJ.
   On Remand

WILLIAMS, J.

_JjThe defendant, Jack S. Spears, was convicted of misapplication of construction contract payments, a violation of LSA-R.S. 14:202. The defendant was sentenced to serve a prison term of four years at hard labor and ordered to pay a fine of $500 and all costs of the proceedings. The defendant was also ordered to pay $103,804.22 in restitution as a condition of parole.

On appeal, we reversed the defendant’s conviction and sentence and entered a judgment of acquittal. The supreme court reversed our ruling and remanded this matter for our consideration of the defendant’s remaining assignments of error. For the reasons that follow, we affirm the defendant’s conviction and sentence.

FACTS

Richard Joe Kirkham, Jr. and Karen Walker Kirkham (“the Kirkhams”) were engaged in the business of raising chickens in Choudrant, Louisiana. In December 1999, the Kirkhams entered into a contract with the defendant, who was doing business as Spears Construction Company, Inc., to build two chicken houses for a price of $196,000. The Kirkhams obtained a mortgage to finance the construction. The contract specified that payment would be made in intermittent draws, contingent upon the completion of particular stages of construction.

Construction began on the project, and the first three draws were paid without difficulty. After the third payment, little or no further work was done on the project, despite a written demand by the Kirkhams to the defendant to complete the project. Although he had not completed the | ¡.required stage of construction, the defendant demanded the fourth payment. When the Kirkhams refused to authorize the draw, the defendant walked off of the job. The defendant returned when the Kirkhams finally agreed to authorize the payment. By the end of April 2000, construction on the chicken houses had ceased.

The Kirkhams began to receive material and labor lien notices from suppliers and workers on the project. On May 9, 2000, the Kirkhams filed a complaint with the Lincoln Parish Sheriffs Department, reporting that the defendant had misappropriated funds under the construction contract.

The defendant was arrested and charged by bill of information with misapplication of contract funds over $1,000. The bill of information was later amended to charge the defendant with misapplication of construction contract funds in an amount in excess of $10,000.

A jury found the defendant guilty as charged. The trial court denied the defendant’s motion for post-verdict judgment of acquittal, motion in arrest of judgment and motion for a new trial. Noting that the defendant had two prior felony convictions, both involving crimes "of economic gain, the trial court sentenced the defendant to serve a prison term of four years at hard labor. Additionally, he was ordered to pay $103,804.22 in restitution for misapplied payments, a $500 fine and all costs of the proceedings. The court denied the defendant’s oral motion to reconsider sentence.

The defendant appealed. Concluding that the evidence was insufficient to support a conviction, we reversed the defendant’s conviction and sentence and entered a judgment of acquittal. State v. Spears, 39,3021,(La.App. 2d Cir.3/17/05), 896 So.2d 1280. The Louisiana Supreme Court granted the state’s application for writ of certiorari, reversed our ruling and remanded this matter “for consideration of the defendant’s remaining assignments of error pretermitted on original appeal.” State v. Spears, 2005-0964 (La.4/4/06), 929 So.2d 1219, 1224.

DISCUSSION

Constitutionality ofLSA-R.S. H:202

The defendant contends the trial court erred in overruling his motion to quash the bill of information and motion in arrest of judgment, in which he argued that LSA-R.S. 14:202 was unconstitutional. In the motion to Lquash, the defendant argued that the provisions of the statute fail to put persons on notice of the activities prohibited under the statute. Following his conviction, the defendant filed a motion in arrest of judgment, asserting the same claim.

Louisiana law mandates that the Attorney General be served with a copy of the pleading challenging a statute’s constitutionality so that the Attorney General can elect whether or not to exercise his statutory right to represent the state’s interest in the proceedings. LSA-R.S. 13:4448; State v. Citizen, 2004-1841 (La.4/1/05), 898 So.2d 325; State v. Schoening, 2000-0903 (La.10/17/00), 770 So.2d 762; State v. Shumaker, 40,275 (La.App. 2d Cir.10/28/2005), 914 So.2d 1156.

In this case, notice has been sent to the attorney general by this court, as mandated by LSA-R.S. 13:4448. At the time of this opinion, no response had been received. In any event, the defendant’s argument that LSA-R.S. 14:202 is unconstitutional is without merit.

In State v. Piazza, 596 So.2d 817 (La.1992), the district court quashed the defendant’s indictment for violation of LSA-R.S. 14:202, | .¡declaring the statute unconstitutional. The Louisiana Supreme Court reversed the district court’s ruling and upheld the validity of the statutory provisions, stating, “[T]he conflicting penalty provisions of Section 202 do not render the statute unconstitutional, but may be construed together so as to give effect to both provisions, resolving any conflict in favor of the person on whom the penalty is imposed by applying the lesser penalty.” Id. at 818. The court further noted, “The present case does not involve a conflict in the portion of the criminal statute which defines the conduct that will be considered criminal, but rather involves a conflict in the penalty portion of the statute.” Id. at 820.

In the instant case, the main thrust of the defendant’s constitutional argument involves an alleged vagueness in the “criminal portion” of LSA-R.S. 14:202, i.e., the provisions of the statute fail to put persons on notice with regard to what activities are prohibited. The defendant further presented a list of hypothetical facts in which the statute would not give notice of a crime.

To determine the constitutionality of a statute, we must follow the basic rules of statutory construction. State v. Shumaker, supra. A statute is presumed to be constitutional, and the burden of clearly establishing unconstitutionality rests upon the party who attacks the statute. State v. Cunningham, 2004-2200 (La.6/13/05), 903 So.2d 1110. A statute should be upheld whenever possible. State v. Shumaker, supra.

To prove that a law is unconstitutional, a defendant is required to |fishow that an ordinary person of reasonable intelligence could not understand and follow the law. State v. Hair, 2000-2694 (La.5/15/01), 784 So.2d 1269. Broad language is not in itself vague, particularly where it is clear that the legislature intended to make criminal all acts of a certain kind. Id. Louisiana criminal statutes must be “given genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.” LSA-R.S. 14:3.

LSA-R.S. 14:202 provides, in pertinent part, “No person ..., who has received money on account of a contract for the construction, erection or repair of a building, structure, or other improvement, ... shall knowingly fail to apply the money received as necessary to settle claims for material and labor due for the construction or under the contract.”

A plain reading of the activity proscribed by the statute is sufficiently narrow and gives adequate notice to those who would engage in such conduct, ie., fail to apply monies received pursuant to a construction contract as necessary to settle claims for material and labor, that the conduct is proscribed. Thus, we conclude that the defendant failed to meet his burden of clearly establishing that the statute is unconstitutional. This assignment lacks merit.

Amendment of Bill of Information

In another assignment of error, the defendant contends the trial court erred, as a matter of law, in permitting the state to amend the bill of information on the day of trial. The state argues the amendment was proper 17and non-prejudicial.

The defendant was originally charged by bill of information with violating LSA-R.S. 14:202, misapplication of payments in an amount greater than $1,000. On July 29, 2003, in open court, before the first prospective juror was called for examination, the state requested leave of court to amend the bill to charge the defendant with misapplication of payments in an amount greater than $10,000 under the same statute. The trial court permitted the amendment, over the defendant’s objection.

The substance of an indictment may be amended before trial begins. LSA-C.Cr.P. art. 487. In a jury trial, trial begins when the first prospective juror is called for examination. LSA-C.Cr.P. art. 761. If a defendant can show that he has been prejudiced by the amendment to the charge against him, he is entitled to a continuance. LSA-C.Cr.P. art. 489. The purpose of the continuance authorized by Article 489 is to protect a defendant from surprise or prejudice which may result from such an amendment. The defendant bears the burden of proving that he has been prejudiced by the amendment. The trial court has great discretion in deciding such matters, and its ruling will not be disturbed on appeal absent an abuse of that discretion. State v. Ignot, 29,745 (La.App. 2d Cir.8/24/97), 701 So.2d 1001, writ denied, 1999-0336 (La.6/18/99), 745 So.2d 618; State v. Cleveland, 25,628 (La.App. 2d Cir.1/19/94), 630 So.2d 1365.

In this case, the minutes reveal that the state moved to amend the bill of information before any prospective jurors were called for examination. Therefore, the trial had not commenced, and the state was entitled to amend |sthe bill pursuant to LSA-C.Cr.P. arts. 487 and 761. Further, the defendant’s remedy for any potential prejudice was a motion for a continuance. However, the defendant did not request a continuance, and he objected to the state’s motion to continue.

Additionally, even if the defendant had requested a continuance, the defendant has failed to show that his defense was prejudiced as a result of the amendment to the bill of information. The only change to the bill was the amount of payments the defendant had allegedly misapplied. The defendant knew that he was to be tried for the misapplication of payments, a violation of LSA-R.S. 14:202. Thus, there was no element of surprise. The amount of money involved in the misapplication only affected the penalty upon conviction. Moreover, shortly after the amendment, the trial court continued the trial until October 28, 2003. Thus, the defendant was provided ample time to conduct any further discovery and to file any additional pre-trial motions.

The defendant also argues that the amendment to the bill asserting a misappropriation greater than $10,000 is vague in that it does not reflect a crime. LSA-R.S. 14:202 provides for misapplication of contract funds under $1,000, as well as funds in excess of $1,000. We cannot say that the trial court erred in allowing the amendment to the bill to charge the defendant with misapplication of greater than $10,000, as the amount of the misapplication determines the sentence under the statute. Therefore, the | gdefendant’s arguments lack merit.

Arraignment

The defendant also contends the trial court erred by failing to arraign him on the amended bill of information. The state maintains that the defendant waived this argument because he did not object to the court’s failure to rearraign him.

LSA-C.Cr.P. art. 555 provides:

Any irregularity in the arraignment, including a failure to read the indictment, is waived if the defendant pleads to the indictment without objecting thereto. A failure to arraign the defendant or the fact that he did not plead, is waived if the defendant enters upon the trial without objecting thereto, and it shall be considered as if he had pleaded not guilty.

In this case, the defendant did not object to the failure to arraign him on the amended charge before the trial commenced. Thus, the issue is waived. See, State v. Ignot, supra. This argument lacks merit.

Motion to Continue

Next, the defendant contends the trial court erred, as a matter of law, in granting the state’s motion for a continuance on the date of trial, as the motion was not filed at least seven days prior to the commencement of trial as required by LSA-C.Cr.P. art. 707. The defendant also argues that the trial court erred in granting the continuance after the trial had commenced.

The record shows that on the morning of July 29, 2003, a panel of fourteen potential jurors was called, sworn and questioned. Following a recess, the state notified the trial court that one of its witnesses, Debbie ImSpears, was refusing to appear and testify because of her alleged fear of the defendant. The state made an oral motion for continuance, which was granted by the trial court over the defendant’s objection.

A motion for a continuance must be filed at least seven days prior to the commencement of the trial. LSA-C.Cr.P. art. 707. Nevertheless, in the interest of justice, the trial court may grant a continuance upon written motion at any time after a contradictory hearing. State v. Winfrey, 1997-427 (La.App. 5th Cir.10/28/97), 703 So.2d 63.

LSA-C.Cr.P. art. 708 makes a distinction between a “continuance” and a “recess,” as follows:

A continuance is the postponement of a scheduled trial or hearing, and shall not be granted after the trial or hearing has commenced. A recess is a temporary adjournment of a trial or hearing that occurs after a trial or hearing has commenced.

In this case, the minutes reveal that the state moved for a continuance after the first panel of potential jurors had been called, sworn and questioned. Thus, the trial had already commenced, and the state was required to request a recess.

It is well settled that whether the motion was improperly styled as one of continuance or recess, the court may examine the motion as though it had been properly denominated. State v. White, 389 So.2d 1300 (La.1980); State v. Bertrand, 381 So.2d 489 (La.1980); State v. Dickinson, 370 So.2d 557 (La.1979); State v. Mizell, 341 So.2d 385 (La.1976). Thus, although Inthe motion may have been improperly styled as one for “continuance,” it can be reviewed as if it had been properly named as one for recess. State v. Dooley, 38,763 (La.App. 2d Cir.9/22/04), 882 So.2d 731, writ denied, 2004-2645 (La.2/18/05), 896 So.2d 30; State v. Smith, 25,841 (La.App. 2d Cir.02/23/94), 632 So.2d 887.

The standard of review of a motion for recess is the same as the review of a motion for a continuance. State v. White, supra; State v. Dooley, supra. The granting or denial of a motion for continuance or a motion for recess is within the sound discretion of the trial judge, and his ruling will not be disturbed on appeal absent a showing of abuse and specific prejudice. LSA-C.Cr.P. art. 712; State v. Martin, 1993-0285 (La.10/17/94), 645 So.2d 190; State v. Dooley, supra; State v. Gipson, 28,113 (La.App. 2d Cir.6/26/96), 677 So.2d 544, writ denied, 1996-2303 (La.1/31/97), 687 So.2d 402.

LSA-C.Cr.P. art. 709 provides:

A motion for a continuance based upon the absence of a witness must state:
(1) Facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial;
(2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred; and
(3) Facts showing due diligence used in an effort to procure attendance of the witness.

In this case, the record shows that although the state had not subpoenaed Ms. Spears, she and her attorney had assured the state that she fywould be present at trial. The state asserted that Ms. Spears was expected to provide material testimony with regard to the defendant’s banking records. After securing Ms. Spears’ voluntary agreement to testify, the state remained in constant contact with her and her attorney, and travel arrangements had been completed. However, the defendant, via telephone calls, had instructed her not to come to trial, and allegedly, made various threats to her. Defense counsel admitted that he and the defendant had spoken to Ms. Spears. Defense counsel informed Ms. Spears that she was not required to appear at the trial and testify because she had not been subpoenaed. Ms. Spears then rescinded her agreement to testify. In its argument to the trial court, the state assured the court that Ms. Spears would be available to testify at a future date. Only on the day of trial did the state learn that the witness was refusing to appear, stating threats by the defendant as the reason.

Under these extenuating circumstances, we cannot say that the trial court abused its discretion in granting a recess. The trial court was satisfied by the state’s allegations that the defendant had played a role in Ms. Spears’ failure to appear. There is nothing in the record to show that the trial court abused its discretion or that the defendant was prejudiced by the delay. Therefore, this assignment of error is without merit.

The Kirkkams’ Testimony

The defendant also contends the trial court erred in allowing Richard 113Kirkham to testify with regard to the cost of completing the project and the provisions of the contract. He further contends the trial court erred in allowing Karen Kirkham to testify concerning their financial difficulties, her efforts to contact the defendant and that the defendant was “driving a brand new truck.”

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. LSA-C.E. art. 401. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time. LSA-C.E. art. 403.

A trial judge is vested with wide discretion in determining the relevancy of evidence; his ruling will not be disturbed on appeal in the absence of a clear showing of an abuse of discretion. State v. Miles, 402 So.2d 644 (La.1981); State v. Jackson, 30,473 (La.App. 2d Cir.5/13/98), 714 So.2d 87, writ denied, 1998-1778 (La.11/6/98), 727 So.2d 444.

In this case, the defendant has not shown how the Kirkhams’ testimony with regard to the defendant’s failure to complete the project and the consequences of that failure was irrelevant in determining if funds were misapplied, as well as the defendant’s intent with regard to those funds. However, it may well be that the testimony that the defendant was driving a new truck had no relevance to the case. The defendant objected and moved for mistrial, asserting the testimony prejudiced his case to the extent he was | Uunable to receive a fair trial. As the state correctly points out, the defendant did not request an admonition to the jury. Moreover, the defendant has failed to show how the trial court’s rulings prejudiced his case. The defendant’s arguments lack merit.

Jury Instructions

The defendant further assigns as error the trial court’s failure to give jury instructions as requested by the defense. Specifically, the defendant submitted 24 special requests for jury instructions, and the trial court denied all but one of the proposed instructions. The defendant contends the trial court erred in denying his request for 13 of the proposed charges.

Under our law, the state and the defendant have the right to submit to the court special written charges for the jury. LSA-C.Cr.P. art. 807; State v. Gipson, supra. The requested charge shall be given if it does not require qualification, limitation or explanation, and if it is wholly correct and pertinent. Id. However, the trial court is not required to give the requested special charge if it is included in the general charge or in another special charge to be given. LSA-C.Cr.P. art. 807. Any requested special charge must be supported by the evidence. State v. Craig, 1995-2499 (La.5/20/97), 699 So.2d 865, cert. denied, 522 U.S. 935, 118 S.Ct. 343, 139 L.Ed.2d 266 (1997).

In this case, the trial court declined to include proposed jury instruction numbers 1, 7, 10 and 11, stating there is no basis in the law which would support those proposed charges. With regard to proposed jury instruction numbers 2, 4, 6 and 8, the trial court declined to include the | ^instructions based upon his finding that the cases cited by the defendant were inapplicable to the instant case. With regard to proposed jury instruction number 9, the trial court concluded that the statute cited by the defendant is a civil statute and is not applicable in criminal matters. The trial court disallowed proposed instructions numbers 12, 13 and 14, concluding that those provisions of the statute refer to the penalty for the offense and restitution, matters which are within the discretion of the judge, rather than the jury.

We have carefully reviewed the instructions requested by the defendant in light of the instructions actually given by the trial judge. Each of the instructions requested by the defendant was either in-eluded in the trial judge’s instructions or was an incorrect statement of the law which would have required correction or further explanation. Therefore, the trial judge did not err in refusing to give the requested jury instructions.

Further, errors in jury instructions are subject to the harmless error analysis. Failure to give a requested jury instruction constitutes reversible error only when there is a miscarriage of justice, prejudice to the substantial rights of the accused, or a substantial violation of a constitutional or statutory right. State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004).

In the instant case, the defendant has made no argument that his rights were substantially violated by the omission of the proposed jury instructions or that he was in any way prejudiced. Thus, we conclude that the defendant’s argument that the trial court erred in omitting the proposed jury | ^instructions is without merit.

Motion for New Trial

The defendant also assigns as error the trial court’s denial of his motion for a new trial. According to the defendant, he was entitled to a new trial because the misapplication of construction funds over $10,000 is not delineated in LSA-R.S. 14:202 as a violation of the law.

In State v. Olivier, 2003-1589 (La.App. 3d Cir.6/16/04), 879 So.2d 286, the court stated:

[T]he penalty for a violation of La.R.S. 14:202 is determined based on the total amount misapplied. The bill of information in the case at bar does not specify whether the Defendant was charged under section (B) or (C) of La.R.S. 14:202. Although value was discussed at trial and the jury returned a verdict finding a specific value, the bill of information did not properly charge the grade of the offense.
⅜ * ⅜
While La.Code.Crim.P. art. 470 does not require that an indictment include a specific monetary value, the allegations in the indictment must be sufficient to determine the grade of the offense.

Id. at 287.

In the instant case, the amended bill of information charged the defendant as follows:

JACK S. SPEARS committed the offense of misapplication of payments, as set forth in R.S. 14:202, in that he did, being a contractor, receive money on account of a contract with RICHARD KIRKHAM, JR. AND KAREN MICHELLE WALKER, for the construction or improvements of a building and did knowingly fail to apply the money received as necessary to settle claims for materials and labor due the construction or under the contract, said misapplication being greater than $10,000.

117Although the bill of information did not specify whether the defendant was being charged under section (B) or (C) of the statute, it is clear from the specific language, “said misapplication being greater than $10,000,” that the defendant was being charged under LSA-R.S. 14:202(C), since the amount at issue was “greater than one thousand dollars.” Thus, the allegations in the bill of information were sufficient to determine the grade of the offense charged.

The defendant also argues that he was entitled to a new trial because the jury instructions and jury verdict form failed to provide for a determination of the amount of contract funds misapplied.

The record shows that the trial court read the bill of information to the jury verbatim, including the charge of misapplication of funds being greater than $10,000. The trial court also specifically instructed the jury that in order to convict the defendant of the offense charged, it must find, beyond a reasonable doubt, that the state proved every essential element of the offense. The trial court proceeded to detail the elements of the offense and instructed the jury with regard to responsive verdicts, including, guilty as charged; guilty of misapplication of payments of $1,000 or less; or not guilty. At no time during the proceedings did the defendant argue that either the bill of information, the jury instructions or jury verdict was invalid due to the jury’s failure to determine the amount of funds misapplied. Nor did the defendant move for a mistrial. An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. LSA-C.Cr.P. art. 841; State v. Bosley, 29,253 (La.App. 2d Cir.4/2/97), 691 So.2d 347, writ denied, 1997-1203 (La.10/17/97), 701 So.2d 1333; State v. Hamilton, 594 So.2d 1376 (La.App. 2d Cir.1992); State v. Brown, 552 So.2d 612 (La.App. 2d Cir.1989), writ denied, 558 So.2d 581 (La.1990). The appellate court cannot consider an error with a jury charge unless there was a contemporaneous objection or motion for mistrial. State v. Neal, 275 So.2d 765 (La.1973); State v. Lee, 529 So.2d 853 (La.App. 4th Cir.1988). Thus, the defendant’s assignment of error with regard to the erroneous jury instructions will not be considered by this court.

Motion to Reconsider Sentence

Finally, the defendant contends the trial court erred in failing to reconsider the sentence, particularly in light of the failure of the jury to determine the specific amount of misapplication in question.

In this case, the defendant was charged with misapplication of funds in the amount greater than $10,000. The jury was provided with a list of responsive verdicts to the crime and could have elected to find the defendant either (1) guilty of misapplication of an amount greater than $10,000, (2) guilty of misapplication of payments of $1,000 or less, or (3) not guilty. The jury opted to find the defendant guilty as charged.

Neither the language of LSA-R.S. 14:202 nor the relevant jurisprudence requires that a jury determine the specific amount of funds misapplied. The language of the statute is clear: when the amount misapplied is $1,000 or less, the penalty is $100 to $500 or imprisonment for 90 days to six months or both. When the amount misapplied is greater )19than $1,000, the penalty is $100 to $500, imprisonment, with or without hard labor, for 90 days to six months, or both, for each $1,000 in misapplied funds, for a maximum of five years. As stated above, the defendant was charged with misapplication of an amount greater than $10,000 and was found guilty as charged. Therefore, the jury was not required to determine a specific amount of funds misapplied. This assignment lacks merit.

CONCLUSION

For the reasons set forth herein, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, CARAWAY, DREW and LOLLEY, JJ.

Rehearing denied.

      . LSA-R.S. 14:202 provides:
      A. No person, contractor, subcontractor, or agent of a contractor or subcontractor, who has received money on account of a contract for the construction, erection, or repair of a building, structure, or other improvement, including contracts and mortgages for interim financing, shall knowingly fail to apply the money received as necessary to settle claims for material and labor due for the construction or under the contract.
      B. When the amount misapplied is one thousand dollars or less, whoever violates the provisions of this Section shall be fined not less than one hundred dollars nor more than five hundred dollars, or imprisoned for not less than ninety days nor more than six months, or both.
      C.When the amount misapplied is greater than one thousand dollars, whoever violates this Section shall be fined not less than one hundred dollars nor more than five hundred dollars, or imprisoned with or without hard labor for not less than ninety days nor more than six months, or both, for each one thousand dollars in misapplied funds, provided that the aggregate imprisonment shall not exceed five years.
      D. Any person, contractor, subcontractor, or agent of a contractor or subcontractor who knowingly fails to apply construction contract payments as required in Subsection A shall pay to the court, and the court shall transfer to the person whose construction contract payments were misapplied, an amount equal to the sum of the payments not properly applied and any additional legal costs resulting from the misapplication of construction fund payments, including a fee charged by the clerk of court for handling such payments.

      . LSA-C.Cr.P. art. 532(1) provides, in pertinent part:
      A motion to quash may be based on one or more of the following grounds:
      (1) The indictment fails to charge an offense which is punishable under a valid statute.

      . In Piazza, supra, it was apparent that the Louisiana Attorney General appeared to represent the interests of the state with regard to the penalty provisions of the statute.

      . The state does not provide any explanation as to why it amended the bill of information to contain a dollar amount not included in the statute. A possible explanation is that the sentence for the offense is tied to the amount of the misappropriation, and $10,000 reflects the maximum sentence of five years.

      . A motion for continuance must be in writing but, under extenuating circumstances, an oral motion is sufficient. State v. Owens, 30,-903 (La.App. 2d Cir.9/25/98), 719 So.2d 610, writ denied, 1998-2723 (La.2/5/99), 737 So.2d 747.

      . In granting the state’s motion, the trial court forbade the defendant from initiating any contact with Ms. Spears as a condition of his bail.


author: CARAWAY, J.

text:
    STATE of Louisiana, Appellee v. Quenten YATES, Appellant.
    No. 41,247-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 27, 2006.

      G. Paul Marx, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Charles A. Smith, Assistant District Attorneys, for Appellee.
    Before BROWN, CARAWAY and MOORE, JJ.
   CARAWAY, J.

_JjThe defendant pleaded guilty to attempted possession of cocaine with intent to distribute. He was sentenced to five years at hard labor. The defendant now appeals, questioning the plea proceeding and claiming excessive sentence. The defendant’s conviction and sentence are affirmed.

Facts

The State filed a bill of information charging defendant, Quenten Yates, with one count of conspiracy to distribute cocaine. Yates later pleaded guilty to attempted possession of cocaine with intent to distribute. At the hearing, the State gave the following factual basis for the guilty plea:

Your Honor, during May 2004, office of the Louisiana State Police and Springhill Police Department were investigating a suspected distribution of controlled dangerous substance in Springhill, Webster Parish, Louisiana. At that time they sent an undercover agent who went ahead and made purchase of controlled dangerous substances, namely, cocaine, from Tamekia Thomas. Tamekia Thomas was suspected to be residing with the defendant, Quenten Yates. They made three separate purchases of cocaine, one purchase of marijuana from Tamekia Thomas. Mr. Yates I believe was present on some of those occasions when the officers executed their warrants for arrest. They were also arrested at that apartment. Substance believed to be cocaine was found at that apartment and subsequently sent to the North Louisiana Criminalistics Laboratory for testing and was determined in fact to be cocaine.

At the hearing, Yates conceded to the factual basis, and the Boykin rights were appropriately explained by the trial court and waived before the court’s acceptance of the defendant’s plea.

At the sentencing hearing, the trial court noted from the pre-sentence investigation report (PSI) that Yates was 33 years old and this was his first | ¡felony conviction. The trial court noted Yates’ history of some other minor charges, but that it was not giving those much attention. The trial court read the following portion of the PSI aloud:

Since your release on bond on October the 1st, 2004, in this instant offense, you have worked for just over a month. You’ve been working, of working age over fifteen years, but only reports twenty-two months of total work history since dropping out of school. Investigating officers in this offense indicate that you are a known drug dealer. The offense reports indicate that you used other individuals to carry illegal narcotics and money for yourself. That your primary source of income appears to have come from drugs. In this instant offense you were arrested for conspiracy to distribute Schedule II CDS. In exchange for your plea of guilty, you were allowed to the reduced plea of attempted possession of cocaine with intent to distribute.

The trial court further noted the PSI recommended sentence of no less than five years at hard labor. Yates denied prior drug activities and explained his spotty work history as being due to taking care of his mother, having SSI benefits from his wife, and doing contract labor for cash. The trial court subsequently sentenced Yates to five years at hard labor.

Discussion

The defendant argues that his conviction cannot stand because there was no factual basis for the guilty plea, claiming that the factual basis given by the State only suggests that he was “possibly present” during the offense. Defendant argues that a guilty plea is not constitutionally valid unless voluntarily made with an understanding of the nature of the charged conduct and the elements of the offense. Defendant claims that there was no such understanding due to the lack of a factual basis.

|,qA plea of guilty normally waives all non-jurisdictional defects in the proceedings prior to the plea, including insufficiency of the evidence. State v. Crosby, 338 So.2d 584, 586 (La.1976); State v. Stephan, 38,612 (La.App.2d Cir.8/18/04), 880 So.2d 201, 203. A validly entered guilty plea, or plea of nolo contendere, waives any right a defendant might have had to question the merits of the state’s case and the factual basis underlying the conviction. State v. Bourgeois, 406 So.2d 550, 552 (La.1981); State v. Hardy, 39,233 (La.App.2d Cir.1/26/05), 892 So.2d 710, 712. It also dispenses with any appellate review of the state’s case against the defendant. State v. Hardy, supra; State v. Buggs, 567 So.2d 744, 747 (La.App. 2d Cir.1990).

There is no requirement that a guilty plea be accompanied by the recitation of a factual basis for the crime. State v. Wynne, 40,921 (La.App.2d Cir.4/12/06), 926 So.2d 789 (citing State v. Griffin, 633 So.2d 358 (La.App. 1st Cir.1993), writ denied, 94-0240 (La.10/14/94), 643 So.2d 157 “[T]he due process clause imposes no constitutional duty on state trial judges to ascertain a factual basis prior to accepting a guilty plea.... Louisiana law, unlike [federal law] has no statutory provision requiring accompaniment of a guilty plea by the recitation of a factual basis.” State v. Wynne, 926 So.2d at 796). Due process requires a finding of a significant factual basis for a defendant’s guilty plea only when a defendant proclaims his innocence or when the trial court is otherwise put on notice that there is a need for an inquiry into the factual basis. State v. Brooks, 38,963 (La.App.2d, Cir.9/22/04), 882 So.2d 724, 730, writ denied, 2004-2634 (La.2/18/05), 896 So.2d 30.

Yates was represented by counsel during proceedings in open court when he entered his guilty plea and conceded to the state’s recitation of the factual basis for the offense. He did not proclaim his innocence, nor did he indicate he was making a best-interest plea under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Instead, he withdrew his former not guilty plea. Nothing in our review of the hearing transcript suggests any coercion or that the trial court was put on notice that it should have ascertained a significant factual basis before proceeding. Although the state’s recitation did not specify Yates’ involvement in the offending activity with particularity, Louisiana law does not require a more detailed factual basis in this case. Thus, under these circumstances, the defendant is not entitled to withdrawal of his guilty plea. This assignment is therefore without merit.

The defendant next argues that his five-year sentence for one count of attempted possession of cocaine with intent to distribute is unconstitutionally excessive. The maximum sentence for attempted possession of cocaine with intent to distribute is fifteen years. La. R.S. 14:27 and 40:967(B)(4)(b).

In reviewing claims of excessive sentence, an appellate court uses a two-step process. 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 articulation of the factual basis for a sentence is the goal of La.C.Cr.P. art. 894.1, not a | frigid or mechanical compliance with its provisions. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects that it adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688, 698 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641, 643. 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. Lanclos, 419 So.2d 475, 478 (La.1982). 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, 1051-52 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.4/22/04), 873 So.2d 747, 753, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728.

Second, whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const. Art. 1, § 20 if it makes no measurable contribution to acceptable goals of punishment and is nothing more than the purposeless imposition of pain and suffering and is grossly out of proportion to the severity of the crime. State v. Dorthey, 623 So.2d 1276, 1280 (La.1993); State v. Bonanno, 384 So.2d 355, 358 (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. Hogan, 480 So.2d 288, 291 (La.1985).

16There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,-111 (La.App.2d Cir.3/01/00), 754 So.2d 392, 394, writ denied, 2000-1467 (La.2/02/01), 783 So.2d 385. However, a substantial advantage obtained by means of a plea bargain is a legitimate consideration in sentencing. State v. Ross, 35,552 (La.App.2d Cir.2/27/02), 811 So.2d 176, 179. Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, 670, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. The trial court has broad discretion to sentence within the statutory limits, and the appellate court will not set aside a sentence as excessive absent a showing of manifest abuse of discretion. State v. Hardy, 39,233 (La.App.2d Cir.1/26/05), 892 So.2d 710, 712-713.

The transcript of the sentencing hearing shows that the trial court considered Yates’ age, his work history, and that this was his first felony conviction. Thus, the court was cognizant of the sentencing considerations of La.C.Cr.P. art. 894.1. The sentence imposed is only one-third of the maximum penalty exposure for which Yates was eligible. It does not constitute a needless imposition of pain and suffering nor does it shock our sense of justice. This assignment is therefore without merit.

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).


author: DREW, J.

text:
    MARTIN MARIETTA MATERIALS OF LOUISIANA, INC., Plaintiff-Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, et al, Defendant-Appellee.
    No. 41,280-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 27, 2006.

      McMichael, Medlin, D’Anna & Wedge-worth, L.L.C. by James C. McMichael, Jr., Shreveport, Mark S. Kavanaugh, Jr., for Appellant, Martin Marietta Materials of Louisiana, Inc.
    Cheryl L. Duvieilh, Baton Rouge, for Appellee State of Louisiana DOTD.
    Krebs, Farley & Pelleteri, P.L.L.C. by David Joseph Krebs, Alberta Louise Adams, Shashauna Marie Dermody, New Orleans, for Appellee United States Fidelity & Guaranty Company.
    Before GASKINS, PEATROSS and DREW, JJ.
   DREW, J.

|TIn this suit against the Louisiana Department of Transportation (“DOTD”) and its surety on a highway project, Martin Marietta Materials appeals a judgment granting DOTD and the surety’s motions for summary judgment. We affirm.

FACTS

In 1998, DOTD entered into a contract with Neosho Construction Company, Inc. (“Neosho”) to act as the contractor on a highway construction project (“project”) in DeSoto Parish. USF & G executed a bond in the amount of $23,107,716.35 to secure the full and timely payment by Neosho of all claimants under the contract. Under this bond, Neosho was named as the principal and DOTD was named as the obligee. Martin Marietta Materials (“Martin Marietta”) provided labor and paving materials to Neosho that were used in the project. Neosho ultimately failed to pay $656,009.61 that it owed to Martin Marietta.

On August 23, 2001, Martin Marietta filed a Statement of Claim and Privilege in the mortgage records of DeSoto Parish for the amount owed by Neosho. Martin Marietta erred in identifying the contractor on this hen as Neosho Railworks instead of as Neosho Construction Company, Inc. A copy of the lien was mailed by Martin Marietta to USF & G on August 29, 2001. On August 31, 2001, Martin Marietta mailed a copy of the lien to Michael Murphy, a DOTD Project Engineer, at his field office in Mansfield, Louisiana. The letter to Murphy was stamped as received on September 11, 2001.

Neosho filed for bankruptcy in Maryland on September 20, 2001. On October 3, 2001, DOTD gave formal notice to Neo-sho that it was in default | ?pn the contract, and also gave notice to USF & G that as surety it was required to complete the remaining work.

On October 11, 2001, DOTD recorded notice of Neosho’s default on the project in the records of DeSoto Parish. This triggered a 45-day period in which Martin Marietta was required by law to deliver a copy of the sworn statement of the amount due to the Undersecretary of DOTD in Baton Rouge. Martin Marietta failed to do this.

On October 30, 2001, Martin Marietta sent an affidavit of claim to USF & G. Although the letter sent with the affidavit referred to a claim against Neosho Construction Company, Inc., the affidavit itself stated that materials had been furnished to Neosho Railworks on the project.

In February of 2002, DOTD and USF & G executed a takeover agreement. DOTD withheld over $450,000 in earned funds from Neosho and transferred that amount to USF & G.

On February 11, 2002, USF & G notified Martin Marietta that it did not consider the notice to DOTD to be in compliance with the statutory notice requirements.

In August of 2002, Martin Marietta filed a petition for concursus and for damages against DOTD, USF & G, and various subcontractors and suppliers which had provided labor and/or materials for the project and who had claims that remained unpaid. Third-party demands were filed by DOTD and USF & G against one another.

USF & G filed a motion for summary judgment in December 2002 against Martin Marietta on the grounds that Martin Marietta failed to timely provide notice of its claim to DOTD in the manner required by law, and that|sMartin Marietta failed to identify Neosho by its proper name on the lien that Martin Marietta had recorded. The trial court denied USF & G’s motion for summary judgment.

In April of 2005, USF & G filed a second motion for summary judgment on essentially the same grounds urged in the earlier motion. In September of 2005, DOTD filed a motion for summary judgment also seeking a dismissal of Martin Marietta’s claim. The trial court granted DOTD’s and USF & G’s motions for summary judgment. Martin Marietta appealed.

DISCUSSION

A motion for summary judgment shall be granted if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show ... that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. NAB Natural Resources, L.L.C. v. Willamette Industries, Inc., 28,-555 (La.App.2d Cir.8/21/96), 679 So.2d 477.

Martin Marietta raises three arguments on appeal. First, they contend that the issue surrounding notice to DOTD is one of sufficiency of notice, not timeliness of notice, and therefore, the statutory notice requirements should not be applied so as to bar its claim. Second, it argues that even if it failed to comply with the relevant statutes regarding its claim, that error only affects the concursus claim against DOTD and USF & G under La. R.S. 48:256.8. Martin Marietta maintains that it still has a viable claim against |4USF & G under La. R.S. 48:256.12 because the notice requirements do not apply to that statute. Third, Martin Marietta argues that the notice of default is void ab initio because it was filed in violation of the automatic stay of proceedings that occurred when Neosho filed bankruptcy.

Statutory Notice Requirements

Regarding the mechanism by which a claimant is to assert his claim, La. R.S. 48:256.5(B) states:

Any claimant shall, after the maturity of his claim and within forty-five days after the recordation of final acceptance of the work by the department or of notice of default of the contractor or subcontractor, file a copy of sworn statement of the amount due him with the department having the work done and record the original sworn statement of the amount due him in the office of the recorder of mortgages for the parish in which the work is done.

La. R.S. 48:256.5(D) sets forth DOTD’s obligations once a claimant complies with paragraph (B):

(1) The department shall withhold from progress payments and the final payment one hundred twenty-five percent of the amount claimed after receipt by the undersecretary of the department at the location specified in the recorded contract of a sworn statement of amount due from a claimant to the extent of payments due and owed the contractor after receipt of said claim.
(2) When the department makes final payment to the contractor without deducting such amounts as required in this Subsection of all outstanding claims so served on it or without obtaining a bond from the contractor to cover the total amount of all outstanding claims, the department shall become liable for the amount of these claims to the extent of its failure to withhold funds as required in this Subsection.

At the time that the DOTD entered into the contract with Neosho, it was required by law that:

The recorded portion of the contract shall state that the director of management and finance is the official of the department to | Bwhom claims against the contractor or surety or both shall be made and shall state with particularity the address for delivery of claims to the department pursuant to R.S. 48:256.5.

La. R.S. 48:256.3(A)(3). This provision was amended in 1999 to provide that:

The recorded portion of the contract shall state that the undersecretary is the official of the department to whom claims against the contractor or surety or both shall be made and shall state with particularity the address for delivery of claims to the department pursuant to R.S. 48:256.5.

In compliance with the earlier version of this statutory provision, the contract on the project stated:

Claims against the contractor or surety or both pursuant to R.S. 48:256.5 shall be made to the Department’s Director of Management and Finance and shall be delivered to Room 221 of the Department’s Headquarters Administration Building, located at 1201 Capitol Access Road, Baton Rouge, Louisiana 70802.

Under the terms of its subcontract, Martin Marietta agreed to be bound by the terms of the contract between Neosho and DOTD.

John Basilica, the Undersecretary of DOTD, stated in his affidavit that he is the Director of Management and Finance for DOTD. Basilica testified that DOTD withheld contract funds equal to 125% of the claims of subcontractors and suppliers on the project who provided notice of their claims to him prior to November 26, 2001. He added that he did not receive notice of any claim from Martin Marietta at the designated address for claims by November 26, 2001, and thus, DOTD did not withhold contract funds from Neosho in connection with Martin Marietta’s claim.

| ^Another relevant statute in this matter is La. R.S. 48:256.12, which reads, in part:

Nothing in this Part shall be construed to deprive any claimant, as defined in this Part and who has complied with the notice and recordation requirements of R.S. 48:256.5(B), of his right of action on the bond furnished pursuant to this Part, provided that said action must be brought against the surety or the contractor or both within one year from the registry of acceptance of the work or of notice of default of the contractor;....

In general, lien statutes are stricti juris and should thus be strictly construed. Guichard Drilling Co. v. Alpine Energy Services, Inc., 94-1275 (La.7/3/95), 657 So.2d 1307. Because the Public Works Act is in derogation of common rights, it is stricti juris and liability of a surety may not be expanded beyond the Act. Jean Simpson Personnel Services v. G & G Concrete, LLC, 35,497 (La.App.2d Cir.12/5/01), 803 So.2d 992, writ denied, 2002-0566 (La.4/26/02), 814 So.2d 561; U.S. Pollution Control, Inc. v. National American Ins. Co., 95,153 (La.App. 3d Cir.8/30/95), 663 So.2d 119. La. R.S. 48:250, et seq., were enacted in 1997 to exclusively govern the contracts of DOTD.

Martin Marietta urges that what is at issue is sufficiency of notice, not timeliness. Yet, the failure to properly deliver the claim to DOTD in the manner required by law is not the only defect in Martin Marietta’s claim. The lien filed by Martin Marietta did not properly name the contractor, so a search of the DeSoto Parish records for Neosho Construction, Inc. would not have led to the discovery of a lien in favor of Martin Marietta and against Neosho Construction, Inc. In fact, mortgage certificates obtained from the DeSoto Parish Clerk of Court in December of 2001 and November |7of 2002 did not show any liens in favor of Martin Marietta and against Neosho Construction, Inc.

The case of United Rentals Highway Technologies, Inc. v. St. Paul Surety, 37,-265 (La.App.2d Cir.8/20/03), 852 So.2d 1200, involved the same highway project at the center of this appeal. United Rentals had a subcontract with Neosho to provide guard rails and road work on the project. Neosho did not pay an invoice of $68,366.68. After learning of Neosho’s bankruptcy, DOTD filed the notice of default against Neosho that was recorded in the public records of DeSoto Parish on October 11, 2001. On October 5, 2001, United Rentals contacted DOTD’s engineer who referred United Rentals to USF & G for collection of the invoice amount under Neosho’s bond. Five days later, United Rentals sent a claim with an invoice and a sworn statement of amount due to USF & G. A duplicate claim was sent to DOTD on October 17, 2001. United Rentals filed its sworn statement of claim in the DeSoto Parish public records on December 1, 2002, which was more than 45 days past the date that DOTD recorded its notice of default against Neosho. United Rentals filed suit against USF & G in March of 2002. This court granted USF & G’s supervisory writ after the trial court denied USF & G’s motion for summary judgment.

United Rentals argued that the reason it did not file its statement of claim within the 45 days required by La. R.S. 48:256.5(B) was because USF & G and DOTD committed fraud in failing to advise it that DOTD had already filed a notice of default. This court rejected that argument, noting that under the public records doctrine, United Rentals was charged with knowledge of DOTD’s filing of the notice of default against Neosho. This |scourt held that because United Rentals had failed to preserve its statutory privilege by timely recording its sworn statement of claim in DeSoto Parish, its right of action to proceed under the Public Works Act was extinguished.

It is of no moment that in the present ease USF & G acknowledged receiving a copy of the lien on September 7 in an October 15, 2001, letter to Neosho, or that Murphy admitted in his deposition to receiving a copy of the lien and having been instructed to do nothing with any lien notices that he received. In United Rentals, both USF & G and DOTD had notice, prior to United Rentals filing its statement of claim, that Neosho had failed to pay an invoice for goods and services provided on the project. The DOTD engineer had even directed United Rentals to USF & G to collect the amount due. Nevertheless, despite this notice, this court still held that United Rentals lost its right of action because it had not complied with La. R.S. 48:256.5(B).

Martin Marietta cites four cases in support of its argument that technical errors regarding the statutory requirements are not sufficient to bar a claim when the contractor and surety have received timely notice of the claim. These cases are Gilchrist Const. Co., Inc. v. Terral Riverservice, Inc., 2001-1617 (La.App. 3d Cir.5/1/02), 819 So.2d 362, writ denied, 2002-2121 (La.11/8/02), 828 So.2d 1119; Bob McGaughey Lumber Sales, Inc. v. Lemoine Co., Inc., 590 So.2d 664 (La.App. 3rd Cir.1991); “K” Const., Inc. v. Burko Const., Inc., 629 So.2d 1370 (La.App. 4th Cir.1993), writ denied, 94-0149 (La.3/11/94), 634 So.2d 391; and Cole’s Const. Co., Inc. v. Knotts, 619 So.2d 876 (La.App. 3rd Cir.1993). Each is readily distinguishable from the case now before this court.

| cpilchrist dealt with a provision , in La. R.S. 48:256.12 that required a claimant that had a direct contractual relationship with a subcontractor, but not with the contractor, to give written notice by registered or certified mail to the subcontractor and surety, in addition to complying with the notice and recordation requirements of La. R.S. 48:256.5(B). The claimant in Gilchrist had properly complied with La. R.S. 48:256.5(B). The Gilchrist court held that although letters pertaining to the claim had not been sent from the claimant to the contractor using certified or registered mail as required, that defect did not defeat the claimant’s claim.

In reaching this conclusion, the Gilchrist court relied on Bob McGaughey Lumber Sales v. Lemoine Co., Inc., supra. In McGaughey, the 3rd Circuit examined the certified mail requirement of La. R.S. 38:2247, which is similar to La. R.S. 48:256.12, and held that the rationale behind the certified mail requirement was to assure actual receipt of written notice of the claim and to facilitate proof of the claim.

Although the Third Circuit relaxed the method of notice requirement in each case, so that it was unnecessary for the claimant to use registered or certified mail, this particular requirement is not at issue in this case. Martin Marietta is not a claimant without a contractual relationship with the contractor, Neosho. Moreover, as noted by the McGaughey court, one of the purposes for the requirement of a certified mailing, as opposed to regular mail or hand delivery, is proof, and the certification itself does not provide any additional notice to the contractor.

In “K” Construction, Inc. v. Burko Construction, Inc., supra, the Fourth Circuit examined the provisions of a Public Works Act statute, La. |1(1R.S. 38:2242(B), which is similar to La. R.S. 48:256.5(B), with one significant difference being that La. R.S. 48:256.5(B) requires that the claimant “shall” file a sworn statement, whereas La. R.S. 38:2242(B) merely states the claimant “may” file a sworn statement. Before the public agency in Burko even placed the contractor in default and recorded a notice of default, several things occurred: the subcontractor filed a sworn affidavit of the balance due from the contractor in the mortgage records; the subcontractor filed suit against the contractor and sureties; and a surety bonded out the subcontractor’s claim. A sub-subcontractor intervened in the suit, and filed a notice of lien six days after the notice of default was recorded.

The sureties in Burko argued that La. R.S. 38:2247 made the provisions of La. R.S. 38:2242(B) mandatory. The Burko court disagreed, noting that La. R.S. 38:2242 gave no consequence for not filing or recording a sworn statement, and that statute was not explained or limited by La. R.S. 38:2247. The court also noted that the particular facts of the case, namely the filing of suit and the bonding of the subcontractor’s claim long before the recording of the notice of default, made the sureties’ arguments irrelevant. The court remarked that the Public Works Act did not appear to “envision a situation where suit is filed before the notice of default is recorded.” 629 So.2d at 1374. Besides dealing with a discretionary statute, Bur-ko can be distinguished from the matter at hand based upon its unique facts as recognized by that court, particularly the action taken by a surety to release the subcontractor’s claim and cancel it in the mortgage records before the recording of the notice of default.

Inin Cole’s Construction Co., Inc. v. Knotts, supra, the court rejected the contractor’s argument that a recorded statement of claim should be cancelled as not in compliance with La. R.S. 38:2242 because the claimant incorrectly listed his business as a corporation rather than as a sole proprietorship in the statement of claim filed in the mortgage records. The Knotts court regarded the nominal error as being inconsequential and insufficient to make the statement of claim invalid. In contrast, the naming error by Martin Marietta was much more damaging because it misnamed the party against whom the lien was made.

Martin Marietta additionally argues that even if its concursus claim fails, it still has a viable claim against USF & G pursuant to La. R.S. 48:256.12. Martin Marietta asserts that the notice requirements of La. R.S. 48:256.3(A)(3) are not applicable to claims against a surety under La. R.S. 48:256.12. We disagree.

Compliance with the notice and recordation requirements of La. R.S. 48:256.5(B) is clearly demanded by La. R.S. 48:256.12: “Nothing in this Part shall be construed to deprive any claimant, as defined in this Part and who has complied with the notice and recordation requirements of R.S. Jp8:256.5(B), of his right of action on the bond furnished pursuant to this Part[.]” Emphasis added. La. R.S. 48:256.5(B) cannot be read independently of La. R.S. 48:256.3(A)(3), which mandates that a contract between DOTD and the contractor states the address for delivery of claims to DOTD which have been brought pursuant to La. R.S. 48:256.5(B). The contract between Neosho and DOTD contained the notice provision required by La. R.S. 48:256.3(A)(3). Because Martin Marietta did not | ^comply with those requirements, it cannot maintain an action against USF & G under La. R.S. 48:256.12. We note that although Martin Marietta cites Burko, supra, in support of its argument, the Fourth Circuit stated in Burko that La. R.S. 38:2247 was “styled as a prescription article” and “does not actually create a cause of action on the bond.” 629 So.2d at 1372.

Based upon our de novo review of this record, we conclude that DOTD and USF & G are entitled to summary judgment as a matter of law.

Bankruptcy Stay

Martin Marietta next argues that the 45-day period was not actually triggered because the notice of default violated the automatic stay of proceedings in the bankruptcy matter, and that the violation of the stay was void ab initio. Martin Marietta cites 11 U.S.C. § 362, which states in relevant part:

(а) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title ... operates as a stay, applicable to all entities, of—
⅜ ‡ ‡ ‡ ‡
(3) any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate;
(4) any act to create, perfect, or enforce any lien against property of the estate[.]
* ⅜ * * *

|1sAn “entity” includes a “governmental unit.” 11 U.S.C. § 101(15).

The stay created by § 362 is automatic, and it becomes effective upon the date of the filing of the bankruptcy petition. Gulfco Finance of Farmerville, Inc. v. McCormick, 577 So.2d 778 (La.App. 2d Cir.1991).

Regarding what comprises the property of the estate, 11 U.S.C. § 541 provides, in part:

(a) The commencement of a case under section 301, 302, or 303 of this title creates an estate. Such estate is eom-prised of all the following property, wherever located and by whomever held:
(1) Except as provided in subsections (b) and (c)(2) of this section, all legal or equitable interests of the debtor in property as of the commencement of the ease.

Martin Marietta contends that the contract between Neosho and DOTD was property of the estate subject to the stay. However, Neosho motioned on November 9, 2001, to reject the executory contract with DOTD in its bankruptcy proceeding. The bankruptcy court granted this motion on December 6, 2001. Therefore, because the notice of default did not affect property of the estate, it was not in violation of the automatic bankruptcy stay.

DECREE

At appellant’s costs, the judgment is AFFIRMED.

      . La. R.S. 48:256.3 was enacted by Act 1112 of 1997.

      . The Annual Report and Corporate Statement for DOTD at the end of the 2001 fiscal year stated the Undersecretary shall direct and be responsible for the functions of the Office of Management and Finance.

      . "Actions taken in violation of the stay are void ab initio and are without effect, regardless of notice.” Gulfco Finance of Farmerville, Inc. v. McCormick, 577 So.2d 778, 780 (La.App. 2d Cir.1991). However, in Joshua Inv. Corp. v. Home Sales Counseling, Inc., 39,251 (La.App.2d Cir. 1/19/05), 892 So.2d 151, writs denied, 2005-0442 (La.4/29/05), 901 So.2d 1066, and 2005-0795 (La.5/20/05), 902 So.2d 1051, this court stated that tax sales conducted in violation of a bankruptcy stay were merely voidable, not void ab initio.

      . The minutes from the bankruptcy court list the party as being Railworks Corporation. The bankruptcy court had earlier ordered the joint administration of the Neosho Construction Company, Inc. and Railworks Corporation bankruptcies under the Railworks Corporation case number.