author:
| .GUIDRY, J.
      11 KUHN, J.,

text:
    A. Ponder JONES, Assumption Parish School Board, Julie King Breaux, on Behalf of Her Minor Daughter, Jennifer Breaux, East Baton Rouge Parish School Board, East Feliciana Parish School Board, Lafayette Parish School Board, Livingston Parish School Board, St. Helena Parish School Board, Tensas Parish School Board, and Union Parish School Board v. STATE BOARD OF ELEMENTARY AND SECONDARY EDUCATION: Dale Bayard, Glenny Lee Buquet, Donna Contois, Gerald Dill, Leslie Jacobs, Keith Johnson, Linda Johnson, Walter Lee, Dr. Richard Musemeche, Paul Pastorek, and Dr. James Stafford.
    Nos. 2005 CA 0668, 2005 CA 0669.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 4, 2005.

      Carey T. Jones, Denham Springs, Counsel for Plaintiffs/Appellants A. Ponder Jones, et al.
    Charles C. Foti, Jr., Attorney General, Michael H. Rubin, M. Brent Hicks, Juston M. O’Brien, Baton Rouge, Counsel for Defendant/Appellee State Board of Elementary and Secondary Education.

      Before: KUHN, GUIDRY, and PETTIGREW, JJ.
   | .GUIDRY, J.

In these consolidated actions, plaintiffs appeal the trial court’s granting of defendants’ motion for summary judgment and dismissal of plaintiffs’ claims. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

The State Board of Elementary and Secondary Education (BESE), defendant in this matter, is required by Louisiana Constitution article VIII, § 13(B) to “annually develop and adopt a formula which shall be used to determine the cost of a minimum foundation program of education in all public elementary and secondary schools, as well as to equitably allocate the funds to city and parish school systems.” Plaintiffs, A. Ponder Jones, Julie King Breaux, on behalf of her minor daughter Jennifer Breaux, and seven local school boards, filed petitions for mandamus, declaratory judgment, and injunctive relief seeking the inclusion of the cost of capital outlay funding for school buildings and school related facilities for elementary and secondary education in the formula for determination and distribution of funding for a minimum foundation program (MFP) of education. The plaintiffs alleged that omission of capital outlay from the MFP formula violates Article VIII, § 13 of the Louisiana Constitution. Further, plaintiffs alleged that the omission of costs for capital outlay from the current MFP formula utilized by BESE denies equal protection guarantees of the Louisiana Constitution of 1974 and the United States Constitution by requiring property owners and taxpayers in one city or parish to pay substantially more than property owners and taxpayers in another city or parish in order to fund the cost of school facilities.

In response to these allegations, BESE filed a motion for summary judgment. Following a hearing, the trial court signed a judgment granting BESE’s motion for summary judgment and dismissing plaintiffs’ claims, relying on this court’s decision in Charlet v. Legislature of the State of Louisiana, 97-0212 (La.App. 1st Cir.6/29/98), 713 So.2d 1199, writ denied, 98-2023 (La.11/13/98), 730 So.2d 934 and the Louisiana Supreme Court’s decision in Hoag v. State, 04-0857 (La.12/1/04), 889 So.2d 1019. The plaintiffs now appeal from this judgment and assert the trial court erred in concluding that BESE is not required to take the cost of school buildings and capital improvements into account in developing a funding formula for public schools, in relying upon Charlet and Hoag, and in rejecting the equal protection claim for similarly situated taxpayers.

DISCUSSION

Motion for Summary Judgment

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions. The procedure is favored and shall be construed to accomplish those ends. La. C.C.P. art. 966(A)(2). In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Craig v. Bantek West, Inc., 04-0229, p. 6 (La.App. 1st Cir.9/17/04), 885 So.2d 1241, 1245. The initial burden of proof is on the mover to show that no genuine issue of material fact exists. La. C.C.P. art. 966(C)(2). However, once the mover has made a pri-ma facie showing that the motion should be granted, if the non-movant bears the burden of proof at trial on the issue before the court, the burden shifts to him to present evidence demonstrating that material factual issues remain. La. C.C.P. art. 966(C)(2); Hayes v. Autin, 96-287, p. 6 (La.App. 3rd Cir.12/26/96), 685 So.2d 691, 694, writ denied, 97-0281 (La.3/14/97), 690 So.2d 41.

A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). An |¡jssue is “genuine” if on the state of the evidence, reasonable persons could reach only one conclusion. In determining whether an issue is genuine, courts cannot consider the merits, make credibility determinations, evaluate testimony, or weigh evidence. A fact is “material” when its existence or nonexistence may be essential to the plaintiffs cause of action under the applicable substantive theory of recovery. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512, pp. 26-27 (La.7/5/94), 639 So.2d 730, 751.

Article VIII of the Louisiana Constitution

Plaintiffs contend that BESE has violated the direct provisions of Article VIII, § 13(B) by (1) failing to annually develop a formula to determine the cost of a MFP and (2) failing to include in the formula costs for capital outlay funding for school buildings and school related facilities. Article VIII, § 13(B) contains the substantive provisions regarding BESE’s responsibility for developing a formula to be used in determining the cost of a MFP and states:

The State Board of Elementary and Secondary Education, or its successor, shall annually develop and adopt a formula which shall be used to determine the cost of a minimum foundation program of education in all public elementary and secondary schools as well as to equitably allocate the funds to parish and city school systems. Such formula shall provide for a contribution by every city and parish school system. Prior to approval of the formula by the legislature, the legislature may return the formula for consideration by the board to the board and may recommend to the board an amended formula for consideration by the board and submission to the legislature for approval. The legislature shall annually appropriate funds sufficient to fully fund the current cost to the state of such a program as determined by applying the approved formula in order to insure a minimum foundation of education in all public elementary and secondary schools. Neither the governor nor the legislature may reduce such appropriation, except that the governor may reduce such appropriation using means provided in the act containing the appropriation provided that any such reduction is consented to in writing by two-thirds of the elected members of each house of the legislature. The funds appropriated shall be equitably allocated to the parish and city school systems according to the formula as adopted by | ¿the State Board of Elementary and Secondary Education, or its successor, and approved by the legislature prior to making the appropriation. Whenever the legislature fails to approve the formula most recently adopted by the board, or its successor, the last formula adopted by the board, or its successor, and approved by the legislature shall be used for the determination of the cost of the minimum foundation program and for the allocation of funds appropriated. [Emphasis added.]

In support of its motion for summary judgment, BESE presented the affidavit of Marlyn Langley, Deputy Superintendent for the Office of Management and Finance for the Department of Education. In her affidavit, Ms. Langley stated that the formula at issue is a continuation and improvement of the 1992 formula, which contains three levels. An attachment to the affidavit, entitled MFP Formula Calculation Description, contains a basic calculation of the MFP formula at each level. Additionally, another attachment to Ms. Langley’s affidavit, entitled Minimum Foundation Program Overview, provides a basic description of various components of the formula. Ms. Langley also stated that the formula at issue for the 2004-2005 year had been prepared, submitted, and approved.

Additionally, BESE presented a copy of Senate Concurrent Resolution No. 122, approving BESE’s educational funding formula for 2004-2005. The SCR 122 reiterates the constitutional mandate , of La. Const. Art. VIII, § 13(B) and states that BESE adopted a formula for determination of a MFP, which considers all statutory and board policy requirements necessary to achieve an appropriate cost determination for a minimum education program. A copy of BESE’s 2004-2005 funding formula is included in the SCR 122.

In opposition to BESE’s motion for summary judgment, plaintiffs submitted deposition testimony of Ms. Langley and numerous affidavits, as well as a SCR from 1996. Plaintiffs assert that Ms. Langley’s testimony establishes that BESE did not develop an annual formula. However, Ms. Langley’s testimony establishes that prior to 1996, the formula was determined based on actual costs. From 1996 17to 2000, the formula was frozen, with some annual adjustments, in order to get the MFP fully implemented. Once full implementation was reached in 2000, the formula was annually increased by 2.75 percent. None of Ms. Langley’s testimony, however, refutes her statement in her affidavit that the 2004-2005 formula has been prepared (developed), submitted, and approved. Rather, Ms. Langley’s testimony establishes that the formula annually developed by BESE no longer is based on actual costs, but is based on a per pupil amount agreed on between BESE and the legislature, which is annually increased by 2.75 percent. Notes attached to the 1996 SCR support that the formula is no longer a “cost plus” formula, and that after the program is fully funded, increases in funding will be tied to an inflation index. However, this evidence questions merely the method used in developing a funding formula and is not material to the issue of whether BESE in fact is developing an annual formula or whether the omission from that formula of funding for capital outlay for public school buildings and school related facilities violates the mandate of Article VIII, § 13(B).

Plaintiffs also introduced affidavits from several local school board officials, stating their school buildings and facilities are inadequate, deteriorating, and unsafe. Additionally, plaintiffs submitted the affidavit of an architect, James P. Labarre, III, which stated that in his opinion, school facilities affect student performance and student behavior. However, none of the statements contained in these affidavits are material to whether BESE has annually developed a formula. Additionally, while these statements assert that the formula does not include costs for capital outlay, they do not establish that the omission of funding for capital outlay for public school buildings and school related facilities from the formula violates the mandate of Article VIII, § 13(B).

| ^According to the plain language of Article VIII, § 13(B), BESE is only required to annually develop and adopt a formula. See Charlet, 97-0212 at p. 15, 713 So.2d at 1207. The Louisiana Constitution does not require that any particular items be included in the formula nor does it require that the formula be based on actual costs. Therefore, from our review of the record before us, and considering this court’s decision in Charlet, we find that there are no genuine issues of material fact as to BESE’s fulfillment of its constitutional mandate to annually develop a formula to determine the cost of a MFP and BESE is entitled to summary judgment on this issue.

Equal Protection Clauses of the Louisiana Constitution and United States Constitution

Plaintiffs additionally contend that BESE’s failure to include capital outlay funding for public school buildings and school related facilities in its current funding formula denies similarly situated taxpayers equal protection under the Louisiana Constitution and United States Constitution. The equal protection guarantee under the Louisiana Constitution is found in Article I, § 3, which provides:

No person shall be denied the equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations. Slavery and involuntary servitude are prohibited, except in the latter case as punishment for crime.

|sThe Fourteenth Amendment to the United States Constitution provides, in part, that “[n]o State shall make or enforce any law which shall ... deny to any person within its jurisdiction the equal protection of the laws.” To be entitled to summary judgment as a matter of law on both equal protection claims, BESE must demonstrate only that there is an appropriate/legitimate state interest for the MFP formula and that the funding formula suitably/rationally furthers that state interest. See Charlet, 97-0212 at p. 11, 713 So.2d at 1205; School Board of the Parish of Livingston, Louisiana v. Louisiana State Board of Elementary & Secondary Education, 830 F.2d 563, 568-569 (5th Cir.1987). The burden then shifts to the plaintiffs to show that there are genuine issues of material fact remaining, which would demonstrate that the challenged classification does not suitably/rationally further any appropriate/legitimate state interest. See Charlet, 97-0212 at p. 11, 713 So.2d at 1205; School Board of the Parish of Livingston, Louisiana, 830 F.2d at 569.

BESE established, through the affidavit of Ms. Langley, that the goals of the funding formula at issue are to provide equal treatment of pupils with similar needs, programs'and learning opportunities that are sufficient for providing a minimum educational program for every individual. Additionally the program provides for local choice with respect to the establishment of budgets and tax levels for the support of local schools above the minimum education program ensured by the formula. The formula takes into account expenses necessary for supplying a minimum foundation program of education while allowing for flexibility and discretion for local school boards in allocating resources.

BESE also presented the affidavit of Dr. James A. Richardson, Professor of Economics and Director of the Public Administration Institute at Louisiana State University. Dr. Richardson stated that the funding formula at issue takes into account: student enrollment; special categories of students, including at-risk, |inspecial education, and vocational education; economy of scale adjustment for school districts with less than 7,500 students; -local tax capacity to support public education; and local willingness to use the tax capacity to support public education or tax effort. Dr. Richardson -stated that educational funding has grown 31.9 percent over the past nine years.' Dr. Richardson stated that the per pupil funding is related to income per capita, tax capacity per parish, and. size of the local school system. According to Dr. Richardson, there is a positive relationship between these variables. Finally, Dr. Richardson states that the per pupil growth rate for the plaintiff parishes suggests that the formula has been putting even more emphasis on directing state resources to the less affluent school systems over the last nine years.

Plaintiffs have submitted -affidavits from several local school board officials attesting to the inadequacies of their school buildings and facilities and their inability to fund repairs and/or construction of school buildings and facilities. Additionally, A. Ponder Jones attested that the failure to include capital outlay in the funding formula forces local school systems to bear 100 percent of the capital costs from their widely disparate tax bases. However, none of this evidence sufficiently establishes that simply because the plaintiffs happen to fall within a class of persons living in school districts with fewer taxable resources, BESE’s funding formula is designed to discriminate against them. See Charlet, 97-0212 at p. 12, 713 So.2d at 1205-1206. Given the goals that the MFP formula is 'designed to meet and the steps being taken to effectuate those goals under the current MFP formula, we find that the plaintiffs have failed to present any evidence suggesting that BESE’s funding formula is not suitably/rationally related to a appropriate/legitimate state interest. As this court reiterated in Charlet, “the system cannot be condemned because it imperfectly and incompletely effectuates the |nstate’s goals.” Charlet, 97-0212 at p. 12, 713 So.2d at 1206. Accordingly, BESE is entitled to summary judgment as a matter of law.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court granting BESE’s motion for summary judgment and dismissing plaintiffs’ claims. All costs of this appeal are to be borne equally by the plaintiffs, A. Ponder Jones, et al.

AFFIRMED.

KUHN, J., concurs and assigns reasons.

11 KUHN, J.,

concurring.

Plaintiffs contend that the parish and municipal school boards of the parishes in which they reside need additional funds from the Legislature to address physical conditions of school buildings and to finance the construction of additional school buildings. They assert that BESE’s omission of capital outlay funds from the MFP formula violates the constitutional mandate of Article VIII, § 13(B).

Article VIII, Section 13(B) requires the annual appropriation of funds sufficient to fully fund the current cost to the state of a minimum foundation program, as determined by applying the formula adopted by BESE and approved by the legislature. Charlet v. Legislature of State of La., 97-0212, p. 15 (La.App. 1st Cir.6/29/98), 713 So.2d 1199, 1207, writ denied, 98-2023 (La.11/13/98), 730 So.2d 934. Regardless of which specific funds are to be included in this formula, plaintiffs, who will carry the burden of proof at trial, have failed to establish that the funds provided to their respective parishes under the current MFP formula are less than what is needed to actually fund a minimum foundation program. Defendants, on the other hand, have established the many factors upon which the MFP funding is based and that the MFP per-pupil funding to each of these parishes has | ^increased substantially in the last nine years. Plaintiffs have not established that they will be able to satisfy their evidentiary burden of proof at trial. The trial court properly granted the defendants’ motion for summary judgment.

      . We note that A. Ponder Jones did state in his affidavit that "[t]he State's failure to include the cost of facilities, an indispensable component of any program of education, in the MFP formula is ignoring our Constitution’s mandate that the formula be used to determine the cost of a minimum program of education....” However, his conclusory self-serving statement, without any articulated basis or support, is insufficient to overcome defendant’s prima facie showing on its motion for summary judgment. See Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181 (La.2/29/00), 755 So.2d 226.

      . Plaintiffs also contend that the trial court erred in relying on Charlet. Though not directly addressing the issue before us, we find that Charlet is instructive to the extent that the funding formula currently used by BESE, which is stated to be a continuation and improvement of the basic formula at issue in Charlet, was reviewed and found to be constitutional.


source: Caselaw Access Project

author: | .CARTER, C.J.

license: Public Domain

text:
    Jeffrey P. CEDOTAL v. Frances Walker CEDOTAL.
    No. 2005 CU 1524.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 4, 2005.

      Diana M. Sanders, Raceland, Counsel for DefendanVAppellant, Frances Walker Cedotal Robichaux.
    Jeffrey P. Cedotal, Houma, Plaintiff/Ap-pellee, In Proper Person.
    Before: CARTER, C.J., DOWNING and GAIDRY, JJ.
   | .CARTER, C.J.

A mother appeals the trial court judgment modifying the original consensual custody agreement to a fifty-fifty sharing of physical custody by the parents. Finding that the trial court committed legal error, we reverse the trial court’s judgment and remand the matter to district court for further proceedings.

FACTS AND PROCEDURAL HISTORY

Jeffrey P. Cedotal (Mr. Cedotal) and Frances Walker Cedotal Robichaux (Mrs. Robichaux) married on April 21, 1998, in Terrebonne Parish, Louisiana, where they established a matrimonial domicile. One child was born of this union on October 17, 1998.

On March 8, 2001, Mr. Cedotal instituted an action for divorce and determination of incidental matters. Mrs. Robichaux thereafter filed a rule for child support and joint custody of the minor child. On July 18, 2001, the parties entered into an interim consent judgment with respect to various issues relating to child support and custody. Mr. Cedotal was allocated physical custody of the child every other weekend and one overnight visitation on Tuesdays. A judgment to this effect was signed on August 22, 2001. The parties were divorced pursuant to a November 16, 2001, judgment.

On February 27, 2002, the parties entered a second consent judgment. Under the pertinent terms of this judgment, the parties were to share joint custody of the child, with Mrs. Robichaux being designated as the primary domiciliary parent. Mr. Cedotal was allocated physical custody of the child, referred to in the Joint Custody Implementation Plan as “visitation,” every | sother weekend, with the exception of the second weekend of each month. Preceding the second weekend of each month, Mr. Cedotal was allocated physical custody from Wednesday evening until Saturday morning. The parties were not able to agree to a physical custody schedule for holidays.

On June 26, 2002, Mr. Cedotal filed a rule seeking in pertinent part the establishment of a holiday schedule. Mr. Cedo-tal then filed a supplemental rule to show cause requesting that the court modify the existing custody plan to provide for specific telephone communication times and to permit him to have the child every weekend and every Wednesday. The rules were heard on November 8, 2002.

After taking the matter under advisement, the trial court signed a judgment on December 20, 2002, establishing a holiday schedule. Mr. Cedotal devolutively appealed the December judgment. Cedotal v. Cedotal, 03-1180 (La.App. 1 Cir. 12/12/03), 861 So.2d 947 (unpublished). One of the issues presented for review was whether the trial court failed to apply the law in not ordering an equal sharing of the physical custody of the child, a seven-seven schedule. Following a review of the record, this court declined to “say that the trial court erred in failing to modify the present Joint Custody Implementation Plan.”

On June 3, 2004, Mr. Cedotal filed a new rule to show cause, seeking among other matters a reduction in child support. On July 22, 2004, Mrs. Robichaux filed her own rule to show cause, therein requesting a modification of the February 27, 2002, consent judgment.

The outstanding matters were taken up on August 27, 2004. The matter recessed, and on October 12, 2004, the trial court signed an interim |4custody plan. Under the interim plan, joint custody was maintained. Mr. Cedotal’s physical custody of the child during the school year was changed to every other weekend. During the summer months, physical custody would be exercised in alternating weeks— a seven-seven schedule, with Mr. Cedotal receiving an additional five days with the child. The court also ordered a reduction in Mr. Cedotal’s child support obligation, to be handled through an existing income assignment order.

The matter was set for a status hearing, ultimately held on January 10, 2005, and the court allowed the parties two weeks to agree to a schedule allocating physical custody, said schedule to provide Mr. Cedotal additional physical custody of the child. Unable to amicably settle the matter, a hearing was held March 10, 2005, pursuant to Mr. Cedotal’s filing of a “Motion and Order to Set for Hearing.”

On March 21, 2005, the trial court signed a judgment maintaining the award of joint custody of the minor child. Physical custody was modified, with the parties to share “physical custody” of the child on a seven-seven basis. The existing holiday schedule was to remain in effect, and in the future, the holiday schedule would preempt the seven-seven schedule. The judgment was silent as to the domiciliary parent.

Mrs. Robichaux devolutively appeals the March 21, 2005, judgment, assigning three issues for this court’s consideration:

1. Is an alternating week custody plan in the best interest of this child?
2. Was sufficient evidence presented to justify a modification of custody?
3. Did the trial court err in ordering a review hearing on a consent agreement?

^Finding the trial court erred in applying an incorrect- legal standard to a request for modification of an existing consensual custody decree, we reverse.

DISCUSSION

Burden of Proof

. This matter was taken up pursuant to Mr. Cedotal’s February 14, 2005, motion seeking additional “visitation privileges,” wherein he sought to obtain equal physical custody of the child by way of alternating weeks. Mr. Cedotal’s use of the term “visitation” was misleading. Because Mr. Cedotal shares joint custody with Mrs. Robichaux, LSA-C.C. art. 136—regarding visitation rights of parents who are not granted custody or joint custody—is inapplicable. DeSoto v. DeSoto, 04-1248 (La.App. 3 Cir. 2/2/05), 893 So.2d 175, 177.

The time that parents with joint legal custody share with their child is more properly described as a physical custody allocation of a joint custody plan, rather than as visitation. LSA-R.S. 9:335; Francois v. Leon, 02-0460 (La.App. 3 Cir. 11/27/02), 834 So.2d 1109, 1112. Physical custody is actual custody. As the Louisiana Supreme Court has explained:

The term “custody” is usually broken down into two components: physical or “actual” custody and legal custody. The typical joint custody plan will allocate time periods for physical custody between parents so as to promote a sharing of the care and custody of the child in such a way as to ensure the child of frequent and continuing contact with both parents.

Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731, 737.

When a custody decree is, as herein, a stipulated or consensual judgment, a party seeking modification of custody must prove that there has been a material change in circumstances (also referred to as a change in ^circumstances materially affecting the welfare of the child) since the original decree, as well as prove that the proposed modification is in the best interest of the child. Shaffer v. Shaffer, 00-1251 (La.App. 1 Cir. 9/13/00), 808 So.2d 354, 356-357 n. 2, writ denied, 00-2838 (La.11/13/00), 774 So.2d 151.

The Louisiana Supreme Court has rightly recognized that unjustified litigation, the threat of litigation, or continued parental conflict can bring about unfavorable emotional consequences for a child., See Bergeron v. Bergeron, 492 So.2d 1193, 1200 (La.1986). This policy is as applicable to attempts to change physical custody as it is to attempts to change legal custody. Davenport v. Manning, 95-2349 (La.App. 4 Cir. 6/5/96), 675 So.2d 1230, 1232. Therefore, a parent seeking modification of a “physical” custody decree must meet the two-prong test. See Lee v. Lee, 34,025 (La.App. 2 Cir. 8/25/00), 766 So.2d 723, 726, writ denied, 00-2680 (La.11/13/00), 774 So.2d 150.

Mr. Cedotal, as the parent seeking modification of a consensual custody decree, bore the burden of establishing the occurrence of a change in circumstances materially affecting the welfare of his child and that his proposed modification of the existing custody arrangement would be in the best interest of his child.

Legal Error

The record in this case reflects that the trial court failed to apply the appropriate burden of proof prior to modifying the existing custody decree. In effect, Mr. Cedotal obtained a modification of physical custody strictly on a showing that his proposed modification would be in the best interest of the child. During the hearing, the trial court stated:

[7The Court is taking up this matter as a rule to show cause why visitation should not be extended in favor of the father Jeffrey Cedotal.
* * *
[Mr. Cedotal] You, obviously have to prove to the Court, it’s your burden to prove to me that it is in the best interest of your daughter to have the visitation as you want it to be, all right. That it’s good for her, and that’s your burden.

It is true that the paramount consideration in any determination of child custody is the best interest of the child. LSA-C.C. art. 131; Shaffer, 808 So.2d at 357. However, the best interest of the child is not the sole, nor the first, consideration when one seeks a modification of custody. A trial court should first ascertain whether a change in circumstances materially affecting the welfare of the child has occurred. In Bergeron, 492 So.2d at 1195, the Louisiana Supreme Court explained the important reasons for the “changed circumstances” rule:

[I]t is desirable that there be an end of litigation and undesirable to change the child’s established mode of living except for imperative reasons. Moreover, to require a party to show a change in circumstances materially affecting the child’s welfare before contesting an award of custody, that he previously has had a full and fair opportunity to litigate, protects his adversary and the child from the vexation and expense attending multiple unjustified lawsuits, conserves judicial resources, and fosters reliance on judicial actions by minimizing the possibility of inconsistent decisions.

(Citations omitted.)

The trial court’s failure to determine whether a change in circumstances materially affecting this child had occurred constitutes legal error. A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. When a prejudicial error of law skews the trial court’s finding of a material issue of fact and causes it to pretermit other issues, the appellate court is |srequired, if it can — if the record is otherwise complete — to render judgment on the record by applying the correct law and determining the essential material facts de novo. Evans, 708 So.2d at 735; see Polezcek v. Polezcek, 99-2076 (La.App. 1 Cir. 2/18/00), 752 So.2d 402, 404.

In this case, however, the trial court’s legal error effectively precluded both parents the opportunity for a complete presentation of evidence, preventing this court from making a determination regarding whether a change in circumstances materially affecting the welfare of this child has occurred. A complete record is essential in that each child custody case must be viewed within its own peculiar set of facts. R.J. v. M.J., 03-2676 (La.App. 1 Cir. 5/14/04), 880 So.2d 20, 23.

CONCLUSION

For the foregoing reasons, we reverse the March 21, 2005, custody judgment and remand this matter to the trial court for further proceedings consistent with this opinion. All costs of this appeal are assessed to the plaintiff-appellee, Jeffrey P. Cedotal.

JUDGMENT REVERSED AND REMANDED.


author: J^McCLENDON, J.

text:
    STATE of Louisiana v. Audra TURNER.
    No. 2005 KA 0078.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 4, 2005.

      Doug Moreau, District Attorney, Office of the District Attorney, Baton Rouge, By Lori Nunn, Assistant District Attorney, Counsel for Appellee State of Louisiana.
    Bertha M. Hillman, Thibodaux, Counsel for Defendant/Appellant Audra Turner.
    Before: WHIPPLE, McCLENDON, and WELCH, JJ.
   J^McCLENDON, J.

The defendant, Audra Turner, was charged by bill of information with two counts of intentional exposure to AIDS virus in violation of LSA-R.S. 14:43.5. She initially pled not guilty. Subsequently, she withdrew her plea of not guilty and pled guilty as charged on both counts. Following a Boykin examination, the district court accepted the defendant’s guilty plea and sentenced her to imprisonment at hard labor for five years on each count. The court ordered that the sentences be served concurrently and further ordered that the defendant register as a sex offender upon her release. The defendant moved for reconsideration of the sentences. The district court denied the motion.

On appeal, in a single assignment of error, the defendant contends that the district court erred in imposing unconstitutionally excessive sentences. For the following reasons, we affirm the defendant’s convictions and sentences.

FACTS

Because the defendant pled guilty, the facts of the offenses were never fully developed in the record. At the Boykin hearing, the state indicated that if the matter were to proceed to trial, the state was prepared to prove:

[T]hat [the defendant] had some sort of sexual contact with two separate victims. One of whom actually found out after having sex with [the defendant] he had contracted syphilis. [The defendant] was confronted and admitted that she had syphilis, hepatitis B and C and was diagnosed with the A.I.D.S. virus ten to fifteen years ago. [She][a]dmitted that she told neither one of these people whom she’d had sexual contact with that she had the A.I.D.S. virus, because she didn’t want other people in the apartment complex to know about it.

The defendant did not fully accept the facts set forth by the state. She stated:

Well, like he said, with one of them, I was kind of close to him, with the one that they’re saying about syphilis and all that, I have never had any contact with him period. We had got into a little dispute once before and he had said that he was, he was determined that he was going to get me throwed (sic) out, I didn’t know he was going to go through the process of doing all that, to get me.

Having previously explained the nature of the charges, the possible penalties, and the constitutional trial rights, the court asked if the defendant was | ¡¡still willing to waive her constitutional rights by pleading guilty to the offenses charged. The defendant responded affirmatively.

EXCESSIVE SENTENCES

In her sole assignment of error, the defendant contends that the district court erred in denying her motion to reconsider the sentences. Specifically, she argues that the court failed to give adequate consideration to the factors enumerated in LSA-C.Cr.P. art. 894.1. She avers that the district court failed to consider, as a mitigating factor, her status as a first felony offender. The defendant further asserts the five-year sentences are excessive because she is not the worst offender and the instant offenses were not the worst offenses.

Under LSA-R.S. 14:43.5(E)(1), the defendant was exposed to a potential penalty of a fine of not more than five thousand dollars, imprisonment with or without hard labor for not more than ten years, or both. Thus, the sentences of imprisonment at hard labor for five years are clearly within the statutory limits.

A trial court is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by it should not be set aside as excessive in the absence of manifest abuse of discretion. State v. Lobato, 603 So.2d 739, 751 (La.1992). However, even a sentence within statutory limits may nonetheless violate a defendant’s constitutional right against excessive punishment and is subject to appellate review. State v. Sepulvado, 367 So.2d 762, 767 (La.1979).

Article I, Section 20 of the Louisiana Constitution prohibits the imposition of excessive punishment. A sentence is constitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless infliction of .pain and suffering. State v. Dorthey, 623 So.2d 1276, 1280 (La.1993). A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm to society, it |4shocks the sense of justice. State v. Reed, 409 So.2d 266 (La.1982); State v. Lanieu, 98-1260, p. 12 (La.App. 1st Cir.4/1/99), 734 So.2d 89, 97, writ denied, 99-1259 (La.10/8/99), 750 So.2d 962.

The Louisiana Code of Criminal Procedure sets forth items that must be considered by the trial court before imposing sentence. LSA-C.Cr.P. art. 894.1. The trial court need not cite the entire checklist of article 894.1, but the record must reflect that it adequately considered the criteria. State v. Herrin, 562 So.2d 1, 11 (La.App. 1st Cir.), writ denied, 565 So.2d 942 (La.1990). In light of the criteria expressed by article 894.1, a review for individual excessiveness should consider the circumstances of the crime and the trial court’s stated reasons and factual basis for its sentencing decision. Remand is unnecessary when the record shows a sufficient factual basis for the sentence. State v. Landos, 419 So.2d 475, 478 (La.1982).

In this case, although the district court judge did not list every aggravating or mitigating circumstance, we find that the record supports the sentences imposed. The record reflects that after accepting the defendant’s guilty plea, the district court deferred sentencing for ninety days and ordered a presentence investigation report (PSI). The court specifically informed the defendant, among other things, that if she failed to report to the probation office to be interviewed in connection with the completion of the PSI, she would not receive a sentence of probation. The court further instructed the defendant, who admitted she was infected with the AIDS virus, to refrain from engaging in sexual contact with anyone. The court stated that the defendant would receive the maximum sentence of imprisonment of ten years if she failed to comply with these instructions.

At the sentencing hearing, prior to imposing sentence, the judge noted that the PSI revealed that despite the court’s warnings, the defendant did not report to the Division of Probation and Parole as instructed. The PSI reflects that the defendant failed to appear for a scheduled appointment and all subsequent efforts to contact her were unsuccessful. Therefore, the probation officer was [¡¡unable to obtain information regarding the defendant’s sot cial history, her statement, or financial resource information. Based upon the defendant’s failure to abide by the court’s instructions, the PSI concluded that the defendant would not be a good candidate for probation supervision despite her status as a first offender. The PSI recommended incarceration for “an appropriate amount of time.”

In support of the sentences imposed, the court noted that the defendant’s actions of having unprotected sex with fhe victims without revealing that she was infected with the AIDS virus, a fact, of which she was clearly aware, “probably sentenced two other people to the .death sentence.” The court concluded that the defendant’s actions were “unconscionable” and were equivalent to “pointing a gun to [the victims’] head[s] and pulling the trigger.” The court again noted that the defendant did not report to the probation office despite specifically having been ordered to do so. The court then concluded that the defendant was in need of confinement in a custodial environment.

Considering the circumstances of the instant offenses and the district court’s reasons for sentence, we find no error or abuse of discretion by the district court in sentencing the defendant to five years at hard labor on these offenses. In light of the harm to society and to the victims involved, the sentences imposed were neither grossly disproportionate to the severity of the crimes, nor so disproportionate as to shock our sense of justice. See State v. Lanieu, 98-1260 at p. 12, 734 So.2d at 97. The district court did not err in denying the defendant’s motion to reconsider the sentences. This assignment of error lacks merit.

DELAYS FOR FILING POST-CONVICTION RELIÉF

In her brief, the defendant avers that at the time of sentencing, the district court failed to advise her of the two-year time limitation contained in LSA-C.Cr.P. art. 930.8(C) for the filing of post-conviction relief applications. Contrary to the defendant’s assertions, our review of the minutes and the transcript of the | (¡sentencing reveals that the defendant was, in fact, provided this information. Thus, we find no error.

CONVICTIONS AND' SENTENCES AFFIRMED.

      . It is well settled that, ''[a]n individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.” North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 167, 27 L.Ed.2d 162 (1970).


author: McCLENDON, J.

text:
    STATE of Louisiana v. Edward SCOTT.
    No. 2005 KA 0325.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 4, 2005.

      Doug Moreau, District Attorney, Office of the District Attorney, Baton Rouge, By Charles Gray, Assistant District Attorney, Counsel for Appellee State of Louisiana.
    Frederick Kroenke, Baton Rouge, Counsel for Defendant/Appellant Edward Scott.
    Before: WHIPPLE, McCLENDON, and WELCH, JJ.
   McCLENDON, J.

LThe defendant, Edward Scott, was charged by bill of information on April 24, 1997, with possession of cocaine, a violation of LSA-R.S. 40:967(C). The defendant pled not guilty and obtained court appointed counsel. Following a jury trial on October 15 through 17, 1997, he was found guilty of the charged offense. The state instituted habitual offender proceedings against the defendant, wherein he was classified as a third felony offender. The defendant pled not guilty to this charge and on February 2, 1998, he was adjudicated a third felony habitual offender under LSA-R.S. 15:529.1. The defendant waived his right to the sentencing delay and was sentenced to the mandatory term of life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence.

The defendant filed a motion to reconsider sentence which was denied by the trial court on March 30, 1998. Defense counsel filed an appellate brief asserting that the statutorily mandated life sentence was unconstitutionally excessive. The defendant also filed a pro se brief alleging eight additional assignments of error. On November 3, 2000, this court affirmed the defendant’s conviction and habitual offender adjudication, but vacated his sentence and remanded to the trial court for resen-tencing. The trial court conducted a re-sentencing hearing on May 2, 2001 and June 27, 2001. After receiving evidence and hearing argument, the trial court again sentenced the defendant to the mandatory term of life imprisonment. On March 22, 2004, this court entered an order of appeal limiting the matter to issues concerning the sentencing proceedings following this court’s November 3, 2000 remand. State ex rel. Scott v. State, 03-1796 (La.App. 1 Cir. 3/22/04) (unpublished). The defendant now appeals, reurging that his sentence is unconstitutionally excessive. We affirm the sentence.

\ .FACTS

On March 4, 1997, Baton Rouge Police Officers Doug Atkins and Duren Boyce were patrolling Winnebago Street in North Baton Rouge in their marked police unit. Shortly before midnight, the officers observed three men, including the defendant, standing on the side of Winnebago Street in front of an abandoned house. When the officers used their high-beam headlights and a spotlight to illuminate the area in which the men were standing, the defendant walked to an abandoned vehicle behind the house and entered the vehicle on the passenger side. Approximately fifteen to twenty seconds later, the defendant opened the door and a plastic bag fell from the vehicle. Defendant exited the vehicle and approached the officers.

Officer Atkins retrieved the plastic bag and found a rock of crack cocaine in it. Officer Atkins also saw another person hiding in the vehicle, and ordered him to come out. A subsequent search of the vehicle by Officer Atkins produced two plastic bags containing marijuana, one on the driver’s side floorboard and the other between the passenger seat and center console. After Officer Atkins conducted a pat-down search of the defendant, a bag of marijuana was found in defendant’s left front pants pocket. The defendant was arrested and taken to the First Police District on Plank Road. The defendant was Mirandized and searched again more thoroughly by Officer Boyce. Officer Boyce found a large rock of crack cocaine in the pocket of the defendant’s pullover sweatshirt. The drugs found on the scene and on the defendant tested positive for marijuana and cocaine.

ASSIGNMENTS OF ERROR NUMBERS 1 AND 2

The defendant contends in his first assignment of error that the sentence imposed was unconstitutionally excessive. He contends in his second assignment of error that defense counsel’s failure to file a motion to reconsider sentence constituted ineffective assistance of counsel.

|4A review of the record indicates that defense counsel did not make a motion to reconsider sentence nor did he object to the sentence. Under LSA-C.Cr.P. arts. 881.1(E) and 881.2(A)(1), the failure to make or file a motion to reconsider sentence shall preclude the defendant from raising an objection to the sentence on appeal, including a claim of excessiveness. The defendant, therefore, is procedurally barred from having this assignment of error reviewed. State v. Duncan, 94-1563, p. 2 (La.App. 1 Cir. 12/15/95), 667 So.2d 1141, 1143 (en banc per curiam). See also State v. Felder, 00-2887, p. 10 (La.App. 1 Cir. 9/28/01), 809 So.2d 360, 369, writ denied, 01-3027 (La.10/25/02), 827 So.2d 1173. However, we will examine the sentence for exces-siveness because it is necessary to do so as part of the analysis of the ineffective counsel issue in the defendant’s second assignment of error. See State v. Bickham, 98-1839, p. 7 (La.App. 1 Cir. 6/25/99), 739 So.2d 887, 891-892.

Although a claim of ineffective assistance of counsel is normally raised in an application for post-conviction relief, this Court may address the merits of the claim when the record on appeal is sufficient. State v. Seiss, 428 So.2d 444, 448-449 (La.1983). In this instance, the record is sufficient, and we will therefore address the defendant’s claim.

In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), the United States Supreme Court enunciated the test for evaluating the competence of trial counsel:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

| RIn evaluating the performance of counsel, the inquiry is whether counsel’s assistance was reasonable under the circumstances. State v. Morgan, 472 So.2d 934, 937 (La.App. 1 Cir.1985). In making the determination of whether the specific error resulted in an improper sentence, the inquiry must be directed to whether there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. See State v. Morgan, 472 So.2d at 937. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. State v. Robinson, 471 So.2d 1035, 1038-1039 (La.App. 1 Cir.), writ denied, 476 So.2d 350 (La.1985).

Article I, section 20, of the Louisiana Constitution prohibits the imposition of excessive punishment. Louisiana C.Cr.P. art. 894.1 sets forth the factors for the trial court to consider when imposing a sentence. While the entire checklist of Article 894.1 need not be recited, the record must reflect the trial court adequately considered the criteria. Although a sentence falls within statutory limits, it may be excessive. State v. Sepulvado, 367 So.2d 762, 767 (La.1979). A sentence is considered constitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks one’s sense of justice. State v. Andrews, 94-0842, pp. 8-9 (La.App. 1 Cir. 5/5/95), 655 So.2d 448, 454. The trial court has great discretion in imposing a sentence within the statutory limits, and such a sentence will not be set aside as excessive in the absence of a manifest abuse of discretion. See State v. Holts, 525 So.2d 1241, 1245 (La.App. 1 Cir.1988).

The goal of LSA-C.Cr.P. art. 894.1 is the articulation of the factual basis for a sentence, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with LSA-jC.Cr.P.fi art. 894.1. State v. Lanclos, 419 So.2d 475, 478 (La.1982). The trial judge should review the defendant’s personal history, his prior criminal record, the seriousness of the offense, the likelihood that he will commit another crime, and his potential for rehabilitation through correctional services other than confinement. State v. Jones, 398 So.2d 1049, 1051-1052 (La.1981). On appellate review of a sentence, the relevant question is “ ‘whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.” ’ State v. Thomas, 98-1144, pp. 1-2 (La.10/9/98), 719 So.2d 49, 50 (per curiam), quoting State v. Humphrey, 445 So.2d 1155, 1165 (La.1984).

The defendant in the instant matter was adjudicated a third felony habitual offender under La. R.S. 15:529.1(A)(l)(b)(ii), which stated at the time the offense was committed:

If the third felony or either of the two prior felonies is a felony defined as a crime of violence under R.S. 14:2(13) or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for more than five years or any other crime punishable by imprisonment for more than twelve years, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

Pursuant to the relevant version of LSA-R.S. 15:529.1(A)(l)(b)(ii), the trial court imposed the statutorily mandated sentence of life imprisonment.

In State v. Dorthey, 623 So.2d 1276, 1280-1281 (La.1993), the Louisiana Supreme Court opined that if a trial judge were to find that the punishment mandated by LSA-R.S. 15:529.1 made no “ ‘measurable contribution to acceptable goals of punishment’” or find that the sentence was nothing more than “‘the purposeful imposition of pain and suffering” ’ and was “ ‘grossly out of proportion to the severity of the crime,” ’ the trial judge has a duty “to reduce such sentence to one that would not be constitutionally excessive.” State v. Dorthey, 623 So.2d at 1280, quoting State v. Scott, 593 So.2d 704, 711 (La.App. 4 Cir.1991).

In State v. Johnson, 97-1906, pp. 7-9 (La.3/4/98), 709 So.2d 672, 676-677, the Louisiana Supreme Court reexamined the issue of when Dorthey |7permits a downward departure from the mandatory minimum sentences in the Habitual Offender Law. The Johnson court stated that a sentencing judge must always start with the presumption that a mandatory minimum sentence under the Habitual Offender Law is constitutional. A court may only depart from the minimum sentence if it finds that there is clear and convincing evidence in the particular case before it which would rebut this presumption of constitutionality. A trial judge may not rely solely upon the non-violent nature of the instant crime or of past crimes as evidence that justifies rebutting the presumption of constitutionality. While the classification of a defendant’s instant or prior offenses as non-violent should not be discounted, this factor has already been taken into account under the Habitual Offender Law for third and fourth offenders. State v. Johnson, 97-1906 at p. 7, 709 So.2d at 676.

To rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must clearly and convincingly show that he is exceptional, which means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. Given the legislature’s constitutional authority to enact statutes such as the Habitual Offender Law, it is not the role of the sentencing court to question the wisdom ,of the legislature in requiring enhanced punishments for multiple offenders. Instead, the sentencing court is only allowed to determine whether the particular defendant before it has proven that the mandatory minimum sentence is so excessive in his case that it violates the constitution. Departures downward from the minimum sentence under the Habitual Offender Law should occur only in rare situations. State v. Johnson, 97-1906 at pp. 8-9, 709 So.2d at 676-677.

In the instant matter, on remand to the trial court for resentencing following the defendant’s first appeal, this court listed the following five factors it considered significant and important enough to justify remanding for the purpose of allowing the district court to receive evidence and determine whether | Ssufficient grounds existed to depart from the mandatory life sentence as prescribed in LSA-R.S. 15:529.1:

1. Because this sentencing occurred prior to Johnson and Hayes, the defendant waived his three-day delay prior to sentencing and put on no evidence regarding reasons to downwardly depart from the mandatory sentence;
2. The instan[t] offense is a non-violent crime not involving a person;
3. The defendant’s prior convictions consist of possession of cocaine, middle-grade felony theft, and aggravated battery. Only one of these is a crime of violence and the record does not give any indication of the seriousness of the actual incident leading to that particular conviction;
4. The defendant was twenty-three years of age on the date the offense occurred and at the time he was convicted;
5. It is alleged that the defendant is mentally disabled. This is particularly important in this case because the record also indicates that the defendant had been offered a plea arrangement whereby he would plead guilty to an offense less serious than simple possession of cocaine, and upon acceptance of that plea no habitual offender bill would have been filed. The defendant rejected this offer and ultimately received the life without benefit of parole sentence.

State v. Scott, 00-0337 at pp. 5-6, 769 So.2d at 1290.

The defendant contends that the first and fifth factors are related in that his waiver of the three-day sentencing delay and his refusal of an offered plea arrangement indicate that he is mentally disabled. Specifically, the defendant points out that he was in special education classes in school as a result of being “slow.” The defendant further alleges that what is “most telling” is the fact that he was unable to participate in his own defense, including the sentencing hearing.

It is likely the defendant waived the sentencing delay because the only possible sentence was a mandatory life sentence. In State v. Scott, 00-0337 at p. 5, 769 So.2d at 1289-1290, we quoted the trial court at sentencing when it addressed the defendant:

For some reason the legislature in its infinite wisdom decided that this is going to be a mandatory sentence; and, in doing so, they put the word “shall” as opposed to be (sic) “may” which takes away the discretion the court has in whether or not I’m going to circumvent these provisions or not....

|9We then concluded:

It is important to note that the Johnson and Hayes cases were not yet decided at the time Mr. Scott was sentenced. Therefore, the defense counsel, the defendant and the trial court were all unaware that the defendant could have offered evidence prior to being sentenced as a habitual offender that would somehow distinguish him as being “exceptional”, which would have allowed a downward departure from the mandatory life sentence.

Thus, as we explained in the earlier Scott decision, it appears that the defendant waived his sentencing delay because he was not aware that not waiving the delay could have produced a different result. In other words, given what the defendant was told, as well as what’ defense counsel and the trial court understood the law to be, any sentencing delay would have been devoid of any practical effect in light of the imposition of a mandatory life sentence. In this particular record, there is nothing to suggest that the defendant waived his delay because of any mental disability.

When the defendant rejected the plea arrangement offered him and chose instead to go to trial, it is clear in retrospect that he made the wrong choice. However, a poor choice does not indicate mental instability. The defendant could very well have chosen to go to trial because he thought he would not be found guilty. While the defendant introduced some evidence regarding special education classes, he introduced no evidence to indicate a mental impairment that would have vitiated his ability to distinguish between the consequences of accepting a guilty plea and proceeding to trial. As the trial court at sentencing, on remand found:

The evidence presented regarding the mental capacity, although Margaret Dumas indicated they had no records, we did have some records from school and we had the testimony of Mr. Scott’s Aunt, Mrs. Janice Wallace, who, in essence, indicated that Mr. Scott was not retarded, but he was slow and that he’s never been diagnosed with any mental illness, although he did participate in some special education classes in school and some regular classes through the ninth grade up until the time that he quit school. Based on what has been submitted to the court both at today’s proceeding and at the prior hearing when Mrs. Wallace testified, I don’t find that there has been a showing of any reason or basis to justify a departure from the mandatory sentence set forth in 15:529.1.

ImWe also do not agree with the defendant’s allegation that, because of a mental disability, he was unable to participate in his own defense, including the remanded sentencing hearing. At the May 2, 2001 sentencing hearing, the defendant left the witness stand after stating his name and address. Defense counsel explained that the defendant appeared to be overcome with emotion. After the court recessed the matter, the defendant took the stand again. The following exchange between defense counsel and the defendant took place:

Q. Edward, you’re out at Angola Penitentiary right now; correct?
A. Yes, sir.
Q. You’re serving a life sentence?
A. Yes, sir.
Q. You were convicted of three different felonies; correct?
A. Yes, sir.
Q. And the last one was a possession of cocaine charge which you had a trial on right here in this courtroom; right?
A. Yes, sir.
Q. All right. Edward, what’s your date of birth?
A. 12/24/73.
Q. And are your — either one of your parents living? Are either of your parents — okay. Let’s back away from that. That’s a sensitive subject. All right? How far did you go in school, Edward?
A. Ninth grade.
Q. Did you quit or were you thrown out?
A. Quit.
Q. Were you in regular education classes or were you in special ed. classes? Edward?
A. It was special ed. class.
Mr. Russell [defense counsel]: Judge, I’m going to ask for a recess. The things that I’ve got to get out of this witness are very, very delicate and I just can’t proceed.

l^The defendant never retook the stand. After the defendant’s aunt, Janice Wallace, testified, the matter was continued. This exchange suggests that the defendant could not continue on the stand, not because of a mental disability, but because he was overcome with emotion, as pointed out by defense counsel. Moreover, when the defendant took the stand the second time, it was defense counsel who disrupted the examination and stated, “I just can’t proceed.”

Finally, a review of the entire record reveals that the defendant has more than adequately participated in his own defense. The defendant filed a pro se motion for leave to act as co-counsel and has filed over twenty pro se motions, briefs, and writs with the trial and appellate courts, including a pro se appeal containing nine assignments of error.

In the case of In the Matter of Hipp, Inc., 5 F.3d 109, 116 n. 21 (5th Cir.1993), the defendant raised the issue of mental competency. However, the district court found the defendant’s competence amply demonstrated by the numerous pro se. motions he filed. Similarly, the defendant here, in demonstrating his competence through numerous pro se motions, has failed to prove that his defense, counseled or otherwise, was adversely affected by any alleged mental disability.

In considering the second and third factors outlined by this court on remand, the trial court found that while the instant offense was non-violent, one of the defendant’s prior convictions, for which he was adjudicated a habitual offender, was a serious crime of violénee:

On January 13th of 1994, under bill 3-94-270, Mr. Scott was charged with armed robbery and attempted second degree murder....
The facts of that particular case, according to the information contained in the record, is that on or about January 13th of 1994 a cab driver was shot and robbed which resulted in Mr. Scott’s arrest and his being charged with the armed robbery and attempted second degree murder. As both the defense and state indicated, subsequent to being billed with those offenses, on August 22nd of 1995 he entered into a best interest plea: Count I, felony theft, as opposed to armed robbery; Count II, aggravated battery, as opposed to second degree murder....
112Based on the evidence and testimony presented ... some of the cases that I reviewed, particularly, the Hayes case wherein a review of the underlying facts enured to the benefit of the defendant, that was a robbery case which I think alluded to the facts that an individual pushed a juvenile off a bike and took the bike. The crime would be a crime of violence. The underlying facts would, in that court’s opinion, justify departure from a mandatory minimum sentence. In this particular case a review of the underlying facts determine the seriousness of the actual incident leading to his conviction works against the defense,
* * ⅜
In those convictions is at least one crime of violence, as set forth under R.S. 14, section 2, subsection 13, and the facts of that case show that they were very serious facts which ultimately led to his conviction, albeit a best interest plea to responsive charges.

State v. Hayes, 97-1526 (La.App. 1 Cir. 5/15/98), 712 So.2d 1019, writ granted and case remanded, 98-1603 (La.12/11/98), 729 So.2d 584, and Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), two decisions relied on by the defendant, are distinguishable from the instant matter. In Hayes, the crime of violence involved a simple robbery wherein the defendant pushed the victim and stole his bicycle. None of the defendant’s crimes involved a dangerous weapon. State v. Hayes, 97-1526 at pp. 5-6, 712 So.2d at 1022. Similarly, in Solem, none of the offenses for which the defendant was adjudicated a habitual offender were crimes of violence. See Solem v. Helm, 463 U.S. at 279-280, 103 S.Ct. at 3004-3005. In the instant matter, the act of shooting at a cab driver while trying to take his money was a very serious, if not potentially deadly, crime of violence.

In considering the fourth factor, the trial court found that while the defendant was only twenty-three years old at the time of the present offense, he had committed a multitude of offenses:

|1sRather, reviewing his record and, again, addressing the fourth factor, he is 23 years of age, hut his record indicates that since 1991 he has had some 21 arrests and seven convictions, three of which are felony grade offenses. So he is not an individual who is first being introduced to the criminal justice system. He has been through it at some time. I did not nor will I look at and consider any juvenile record. For the purposes of today’s proceedings, my review is limited solely to what Mr. Scott has done since reaching adulthood under criminal court purposes. (Emphasis added.)

The defendant also contends that the ameliorative change in the Habitual Offender Law, since the time of his adjudication as a habitual offender, indicates the legislature’s clear intent was to substantially reduce the amount of his sentence. The defendant asserts that under the new law, his sentence would be a maximum of ten years imprisonment..

In State v. Jones, 99-2207, p. 6 (La.1/29/01), 778 So.2d 1131, 1134 (per curiam), the Louisiana Supreme Court stated that “the legislature’s subsequent changes in pertinent law remain a relevant sentencing consideration within the limits fixed by law at the time of the commission of the crime.” (Emphasis added.) Thus, without proof that the defendant’s history is an exceptional one, the prospective change in the law is not enough to justify any downward departure in sentencing. See State v. Surry, 37,448 (La.App. 2 Cir. 9/24/03), 855 So.2d 893, writ denied, 03-3118 (La.5/21/04), 874 So.2d 171.

Based on our review of this particular record, we cannot say that the trial court abused its discretion in finding that the defendant did not meet his burden to justify a downward departure from the mandatory life sentence imposed under LSA-R.S. 15:529.1. When resentencing the defendant to life imprisonment, the trial court noted that there had been changes in the relevant law. However, the defendant did not prove by clear and convincing evidence that he was exceptional to the extent that a mandatory life sentence would not be meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. See State v. Johnson, 97-1906 at p. 8, 709 So.2d at 676. Therefore, on the claim of ineffective counsel, we find that the defendant has not met his burden of showing that he suffered prejudice or that the sentence would have reasonably been different absent defense |14counsel’s failure to file a motion to reconsider sentence. See State v. Hilton, 99-1239, p. 15 (La.App. 1 Cir. 3/31/00), 764 So.2d 1027, 1037, writ denied, 00-0958 (La.3/9/01), 786 So.2d 113.

These assignments of error are without merit.

SENTENCE AFFIRMED.

WHIPPLE, J., concurs.

      . The defendant's habitual offender adjudication was assigned a separate docket number. As a result, there are two docket numbers relating to this appeal: 2000 KA 0336, which contains the record for the defendant’s instant conviction, and 2000 KA 0337, which contains the record for the defendant’s habitual offender adjudication and sentence.

      . State v. Scott, 00-0337 (La.App. 1 Cir. 11/3/00), 769 So.2d 1286.

      . Defense counsel did make an oral motion to reconsider sentence, but after conferring with a colleague, withdrew his oral motion to reconsider sentence, and informed the trial court that he would file a written motion to reconsider sentence. However, defense counsel did not file a written motion to reconsider sentence.

      . At the June 27, 2001, sentencing hearing, which was a continuation of the May 2, 2001 sentencing hearing, the defendant, after speaking with defense counsel, elected not to testify.

      . The Supreme Court has called Solem into question, rendering its validity as persuasive authority doubtful. See Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991).

      . See State v. Randall, 99-2476, pp. 1-2 (La.12/15/00), 776 So.2d 424, 425 (per curiam), where the defendant, a third felony offender, argued he was an exceptional case for relief from the mandatory sentence of life imprisonment. The third circuit vacated the sentence and remanded for resentencing. The supreme court reinstated the life sentence and found that the district court properly declined to substitute its judgment as to the appropriate punishment for that of the legislature. The district court had found that even though the defendant was only 29 years old, his present conviction was his second for a crime of violence. During the present offense, the defendant grabbed the handlebars of the victim’s bicycle, and repeatedly struck the victim, while an accomplice struck the victim with a beer bottle. The district court found the victim was seriously injured and actually could have been killed under the circumstances of that robbery.


author: ROLAND L. BELSOME, Judge.

text:
    Patrick D. BREEDEN v. Ronald N. LYBRAND and/or Eloyease W. Lybrand and/or TCB, Inc.
    No. 2004-CA-1340.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 22, 2006.

      Patrick D. Breeden, New Orleans, LA, for Plaintiff/Appellant.
    Michael H. Rasch, Preston L. Hayes, Chehardy, Sherman, Ellis, Breshn, Murray, Recile & Griffith, LLP., Metairie, LA, for DefendanVAppellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge DENNIS R. BAGNERIS, SR., Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

| Appellants, Ronald and Eloyease Lyb-rand (“the Lybrands”), appeal the trial court’s award of attorney’s fees to Appel-lee, Patrick Breeden (“Mr.Breeden”), for work he performed in defending the Lyb-rands’ property from foreclosure. Mr. Breeden cross-appeals the trial court’s failure to award attorney’s fees on his open account litigation.

STATEMENT OF THE CASE

Mr. Breeden filed suit to recover attorney’s fees that he claimed the Lybrands owed him for legal work done in defending the Lybrands’ property from foreclosure. The Lybrands claimed that they never hired Mr. Breeden to work for them, either directly or through a mandatary.

This dispute centers on a piece of property located at 4700 Transcontinental Boulevard in Metairie, Louisiana. The Lyb-rands owned the property until July 22, 1986, when they sold it to TCB, Inc. (“TCB”), a Louisiana Corporation formed earlier that year. TCB’s president was Rhonda Lybrand-Bressler, the Lybrand’s daughter, who co-owned all of TCB’s stock with her sister.

|aIn 1993, a Petition for Executory Process was initiated by Mortgage Properties Corporation against TCB, Inc. At that time, Steve Bressler (“Mr. Bressler”) was the husband of Rhonda Lybrand Bressler. He was also an attorney who performed legal work for TCB. Mr. Bressler contacted and hired Mr. Breeden to assist TCB in defending Mortgage Properties Corporation v. TCB, Inc., a matter pending before the 24th Judicial District Court in Jefferson Parish. Shortly after Mr. Breeden undertook the case, TCB sold the property in question back to the Lybrands.

The district court had a trial on the merits and after hearing evidence and considering the law, ruled in favor of Mr. Breeden, agreeing that the Lybrands owed Mr. Breeden his fee for work done on their behalf.

Both Mr. Breeden and the Lybrands appeal the trial court’s judgment. The Lybrands submit that the trial court erred in finding that the Lybrands are liable for any of the attorney’s fees due to Mr. Bree-den for his representation and defense of the lawsuit entitled Mortgage Properties Corporation v. TCB, Inc., in the 24th Judicial District Court. Mr. Breeden argues that the trial court erred in failing to address whether the Lybrands owe an additional fee under the open account law.

It is well settled that a Court of Appeal may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989); Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880, 883 (La.1993). When there is a conflict in the testimony, reasonable inferences of facts should not be disturbed upon review even though the Appellate Court may feel that its own evaluation and inferences are as reasonable. When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands hgreat deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell, supra; Becker v. Tampira, 2004-0200 (La.App. 4 Cir. 4/13/05); 901 So.2d 1157, 1166.

LAW AND ANALYSIS

The trial court found that the Lybrands employed Mr. Breeden as an attorney to help defend a foreclosure action against the Lybrands’ property. Courts have recognized the long-standing principle that a lawyer cannot recover a fee from one who neither employed him nor authorized another to do so. Kirkpatrick v. Young, 456 So.2d 622, 625 (La. 1984); McGraw v. Andrus, 13 So. 630 (La.1893). Therefore, in order for a defendant to be liable for attorney’s fees, he must have either hired the attorney personally, or authorized someone to hire the attorney on his behalf.

The First Circuit wrote an excellent summary of agency law in Barrilleaux v. Franklin Foundation Hospital, 96-0343, pp. 6-7 (La.App. 1 Cir. 11/8/96); 683 So.2d 348, 353-54. This analysis was also adopted by the Third Circuit in Cartinez v. Reliable Amusement Co., 99-0333 (La.App. 3 Cir. 11/3/99); 746 So.2d 246.

An agent is one who acts for or in the place of another by authority from the latter. An agency relationship may be created by express appointment of a mandatary under LSA-C.C. art. 2985 or by implied appointment arising from apparent authority. Therefore, an agent’s authority is composed of his actual authority, express or implied, together with the apparent authority which the principal has vested in him by his conduct. As between principal and agent, the limit of an agent’s authority to bind the principal is governed by the agent’s actual authority. However, as between principals and third parties, the limit of an agent’s authority to bind the principal is governed by the agent’s apparent authority. Barrilleaux, pp. 6-7; at 353-54 (internal citations and quotations omitted; emphasis added).

|4Mr. Breeden admitted that there was no written contract between him and the Lybrands, although he maintained that there was an oral agreement. The evidence presented at trial showed that Mr. Breeden and the Lybrands frequently discussed the litigation, before and after the Lybrands had been joined as defendants and had re-acquired the property.

The following timeline helps to clarify how the events unfolded in this case.

• January, 1994: Mr. Bressler contacted Mr. Breeden for the purpose of assisting him in saving TCB’s property that was being seized by Executory Process.
• February, 1994: the property was sold back to the Lybrands after Mr. Lyb-rand took bankruptcy to wipe out all other debts.
• August, 1994: the Lybrands field a motion to be added as defendants in the TCB case on which Mr. Breeden was working.
• From January 10, 1994, until July 28, 1996, the Lybrands paid Mr. Breeden in excess of $8,000.00 in sixteen separate checks from their joint checking account.
• February, 1997: In a motion to dismiss an appeal filed by the 5th Circuit Clerk’s office, Mr. Breeden is listed as the counsel of record for appellants “TCB, Inc., Ronald Lybrand and Eloy-ease Lybrand.”
• Mr. Breeden continued to represent the Lybrands through appellate matters all the way through 1997, and on February 20, 1998, the Louisiana Supreme Court dismissed the writ of cer-tiorari of Ronald Lybrand and Eloy-ease Lybrand.

| ^Apparent agency also exists if the principal has the right to control the conduct of the agent and the agent has the authority to bind the principal. Barrilleaux, 96-0343 at p. 7; 683 So.2d at 354. Apparent agency arises when the principal has acted so as to give an innocent third party a reasonable belief that the agent had authority to act for the principal, and the third party reasonably relies on the manifested authority of the agent. Id.

In the case at hand, Mr. Bressler contacted, Mr. Breeden to assist him in defending the property that belonged to Rhonda Lybrand Bressler’s corporation. Mr. Bressler is an attorney, and at that time was the son-in-law of the Lybrands. We find that the Lybrands had the right to control the conduct of Mr. Bressler, because they soon became the owners of the property that he was charged with defending from foreclosure.

“Apparent agency is established by the words and conduct of the parties and the circumstances of the case. An agency relationship may be created even though there is no intent to do so.” Cartinez, 99-0333, at p. 7; 746 So.2d at 251. The Lybrands were named defendants in the action. They also benefited from Mr. Breeden’s resolution of the matter. Further, the Lybrands paid Mr. Breeden from their joint cheeking account. These three factors indicate that the Lyb-rands created a reasonable belief in Mr. Breeden that he was representing them, which in conjunction with Mr. Bressler’s solicitation of his employment on behalf of the Lybrands created a binding and enforceable contract based on the principles of apparent agency.

lfiIn his cross-appeal, Mr. Bree-den claims that the trial court failed to address the issue of whether he was owed attorney’s fees for bringing this action. This lawsuit was brought under the open account law, La. R.S. 9:2781. Under the open account law a plaintiff is due an additional legal fee when he has to file a lawsuit to be paid what a debtor owes. That statute provides:

When any person fails to pay an open account within thirty days after the claimant sends written demand therefore correctly setting forth the amount owed, that person shall be liable to the claimant for reasonable attorney fees for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant ... La. R.S. 9:2781(A).

The open account law requires that the defendant pay the balance of an open account within thirty days of demand, or the defendant will be forced to pay attorney’s fees if the claimant is ultimately successful. La. R.S. 9:2781. In the record of the trial there is a January 20, 1999, letter in which Mr. Breeden demands from Mr. Lybrand the outstanding fee of $11,406.41. The letter includes the following sentence: “Please let this letter serve as notice required under LSA-R.S. 9:2781.” Mr. Breeden also waited over thirty days to institute suit.

La. R.S. 9:2781(D) also states that an open account includes any account for which a part or all of the balance is past due. In the present case, $8,000.00 of the $19,406.41 due' was paid. An “open account” shall include,

any account for which a part or all of the balance is past due, whether or not the account reflects one or more transactions and whether or not at the time of contracting the parties expected future transactions. “Open account” shall include debts incurred for professional services, including but not limited to legal and medical services ... LSA-R.S. 9:2781(D) (emphasis added).

In the case at hand, the Lybrands received legal services.

In the case of Keaty v. Raspanti, 2003-1080 (La.App. 4 Cir. 2/4/04); 866 So.2d 1045, the court held that an attorney representing himself as plaintiff for |7collection of an open account for his attorney’s fees was entitled to recover reasonable attorney’s fees pursuant to La. R.S. 9:2781.

Here, Mr. Breeden is an attorney who has not been paid his legal fees by the Lybrands and therefore he is due additional fees for the prosecution of the case in proper person together with the fee and cost for this appeal. We find that he has satisfied the requirements of Louisiana’s Open Account Law and is entitled to reasonable attorney’s fees for prosecuting this action. Accordingly, we remand the issue of attorney’s fees under Louisiana’s open account law to the trial court.

CONCLUSION

For the reasons stated above, we affirm the trial court’s finding that an agency relationship existed between the Lybrands and Mr. Breeden, and that the Lybrands owe Mr. Breeden the outstanding balance for attorney’s fees rendered for his representation of the Lybrands. Further, we remand the case for a determination of the appropriate amount of attorney’s fees due Mr. Breeden under the open account law.

AFFIRMED IN PART; REMANDED IN PART.

      . There was additional evidence presented at trial that the Lybrands had been making mortgage payments on the property even while it was owned by TCB, Inc., thus the Lybrands may have been the de facto owners of the property even before they formally reacquired the property.