author: PEATROSS, J.

text:
    STATE of Louisiana, Appellee v. Charles Wayne HENRY, Appellant.
    No. 42,416-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 19, 2007.

      Louisiana Appellate Project, by Edward K. Bauman, Lake Charles, for Appellant.
    Paul J. Carmouche, District Attorney, Jason Brown, Damon Kervin, John Ford McWilliams, Jr., Assistant District Attorneys, for Appellee.
    Before CARAWAY, PEATROSS & MOORE, JJ.
   PEATROSS, J.

I,The jury convicted Defendant, Charles Wayne Henry, for illegal possession of Schedule IV CDS. The trial court found Defendant to be a fourth-felony offender and sentenced him to 25 years at hard labor without benefit of parole, probation or suspension of sentence. Defendant now appeals. For the reasons set forth below, Defendant’s conviction is affirmed and his sentence is affirmed as amended.

FACTS

Sergeant Brian Winn of Shreveport Police Department (“SPD”) was conducting undercover surveillance on Benny Harris (“Harris”), the target of an ongoing narcotics investigation, in the Cedar Grove neighborhood of Shreveport on April 14, 2005. Sergeant Winn observed the grey Dodge pick-up truck driven by Harris stop three different times to make contact with three different people, even observing Harris take cash from a female. After seeing the exchange of cash, Sergeant Winn made radio contact with SPD Sergeant Michael Tong and the Caddo Parish K-9 unit and advised them of what he observed. The K-9 unit initiated the stop of Harris’s vehicle at the 7500 block of Thornhill, and Sergeant Winn advised Harris that the reason for the stop was suspicion of illegal distribution of narcotics, and obtained his consent to search the vehicle. During the search of the vehicle, Sergeant Winn found a paper bag between the passenger seat and the center console; the bag contained 10 pills of alprazolam, which is popularly known by the brand name “Xanax.” Defendant had been sitting in the passenger seat of Harris’s truck when they were stopped. After being advised of his Miranda rights, Defendant admitted that the pills were his. RHe insisted that the pills were pain medication that he had gotten from a friend for his mouth. Sergeant Winn testified that Defendant tried to show him what was wrong with his mouth, but that he could not remember what was the specific problem. When searched, Sergeant Winn found a crack pipe on Defendant.

Since Defendant had been honest in admitting the pills were his, Sergeant Winn offered Defendant the opportunity to purchase narcotics for SPD and assist in narcotics investigations in exchange for not being arrested. Sergeant Winn testified that Defendant initially indicated that he would cooperate and that he gave Defendant phone numbers so he could contact him later; however, when Defendant did not contact Sergeant Winn within two weeks, Sergeant Winn arrested Defendant for possession of Schedule IV CDS. When arresting Defendant on April 28, 2005, Sergeant Winn again advised Defendant of his Miranda rights, and Defendant told him that he traded a rock of crack cocaine in exchange for the pills from a white man and a white female. Defendant further reiterated that the pills were for his mouth pain, but he gave no indication that he had a prescription for the pills.

Defendant testified at trial that, when he was riding with Harris, the stops made were not drug-related; rather, Defendant testified that a lady paid Harris $5 she owed him for giving her a ride to work and that another man was selling Harris a piece of equipment for his cement work. Defendant testified that his mouth was injured in a fight, that the pills were for pain and that he got the pills from his friend, “Gangster Shorty.” ^Defendant admitted that he had a crack pipe, but denied trading crack cocaine for the pills. Defendant maintained that he refused to help police with narcotics investigations from the beginning. According to Defendant, he did not know what Xanax was, but that he thought the pills were for pain. Defendant also admitted some of his prior felony convictions during his testimony.

Based upon the evidence presented at trial, the jury convicted Defendant of illegal possession of Schedule IV CDS.

DISCUSSION

Assignment of Error Number One (verbatim): The evidence was insufficient to sustain a conviction.

Defendant argues on appeal that the State presented no evidence to prove that he intentionally possessed the Xanax. Although admitting that they were his pills, Defendant argues on appeal that he believed that he legally possessed the pills for his mouth pain. The State argues that Defendant’s intent to illegally possess the pills could be inferred from the circumstances and that this circumstantial evidence precludes any theory that he was unaware that the pills were a controlled dangerous substance. In support, the State highlights the following circumstances: (1) Defendant was in a high crime area known for drug traffic with someone who was under investigation for narcotics distribution at the time he was found in possession of the pills; (2) Defendant gave a statement to police indicating that- he obtained the pills by trading a rock of crack cocaine for them; (3) and Defendant did not obtain them from a licensed pharmacist with a valid ^prescription issued by a medical doctor, but, instead, got the pills from his friend, “Gangster Shorty.”

The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, reviewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d. 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333. The 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, supra. In the absence of internal contradictions or irreconcilable conflict with physical evidence, the testimony of one witness is sufficient support for a requisite factual conclusion if that witness is believed by the trier of fact. State v. Jones, 31,613 (La.App.2d Cir.4/1/99), 733 So.2d 127, writ denied, 99-1185 (La.10/1/99), 748 So.2d 434, citing State v. Ford, 28,724 (La.App.2d Cir.10/30/96), 682 So.2d 847.

This standard, now 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. 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.9/18/02), 828 So.2d 622, writs denied, 02-2595 (La.3/28/03), 840 So.2d 566, and 02-2997 (La.6/27/03), 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.8/30/02), 827 So.2d 508, writ denied, 02-3090 (La.11/14/03), 858 So.2d 422.

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.2/5/99), 737 So.2d 747. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that Defendant was guilty of every essential element of the crime. State v. Barakat, 38,419 (La. App.2d Cir.6/23/04), 877 So.2d 223, citing State v. Sutton, 436 So.2d 471 (La.1983), State v. Owens, supra. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred | (-according to reason and common experience. State v. Barakat, supra, citing State v. Anderson, 36,969 (La.App.2d Cir.4/9/03), 842 So.2d 1222. To convict a Defendant based upon circumstantial evidence, it must exclude every reasonable hypothesis of innocence. State v. Barakat, supra, citing La. R.S. 15:438.

In order for the jury to convict someone of illegal possession of Schedule IV CDS, the State must present reasonable evidence from which a rational fact finder could determine that the following elements had been proved beyond a reasonable doubt: (1) that Defendant intentionally or knowingly possessed a controlled dangerous substance classified in Schedule IV; and (2) that the substance was not obtained directly or through a valid prescription or order from a practitioner acting in the course of professional practice or except as otherwise provided by the Uniform Controlled Substances Law. La. R.S. dO^giC).

Xanax is a brand name for alprazolam, which is classified as a Schedule IV CDS. La. R.S. 40:964. In the present case, Defendant consistently admits that the pills were his and that it was pain medication, but that he did not know it was Xanax. Thus, the issue is whether there was sufficient evidence from which a rational fact finder could determine 17beyond a reasonable doubt that Defendant knowingly, possessed a controlled dangerous substance that was classified in Schedule IV.

Guilty knowledge is an essential element of crimes involving possession of contraband and it must be inferred from the known facts according to reason and common experience. State v. Hill, 38,400 (La.App.2d Cir.6/23/04), 877 So.2d 173, citing State v. Lilly, 468 So.2d 1154 (La.1985); State v. Manning, 38,083 (La.App.2d Cir.3/12/04), 868 So.2d 283; State v. Anderson, supra. Further, specific intent may be inferred from the circumstances surrounding the transactions and the actions of Defendant. State v. Allen, 41,548 (La.App.2d Cir.11/15/06), 942 So.2d 1244, citing State v. Graham, 420 So.2d 1126 (La.1982); State v. Taylor, 621 So.2d 141 (La.App. 2d Cir.1993), writ denied, 93-2054 (La.2/11/94), 634 So.2d 371.

The circumstances in this case indicate that Defendant was aware that he was in possession of a controlled dangerous substance. At the time the pills were found, Defendant had been riding in a vehicle with a person under investigation for narcotics distribution through a neighborhood known as a high-crime area with narcotics traffic. Both Sergeant Winn and Sergeant Tong testified that, when the pills were discovered, Defendant admitted the pills were his and stated that he got them from a friend for his mouth pain. They further testified that Defendant had a crack pipe on his person when he was searched and that he originally agreed to assist them in narcotics investigations to avoid arrest. Both Sergeant Winn and Sergeant Tong testified that, when Defendant was arrested two weeks later, | ^Defendant stated that he traded a rock of crack cocaine to a white man and a white female in exchange for the pills, which he believed to be pain medication for his mouth. Given Defendant’s statement that he traded a rock of crack cocaine for the pills that he believed were pain medication, the evidence is sufficient from which a rational fact finder could determine that Defendant knew the pills were a controlled dangerous substance. Further, given Defendant’s trial testimony that his friend, “Gangster Shorty,” gave him the pills to treat his mouth pain, it is clear that he did not obtain the medication from a licensed pharmacist following the prescription orders of a medical doctor. There was sufficient evidence from which a rational fact finder could determine that Defendant knew he was possessing a controlled dangerous substance and these circumstances exclude all reasonable theories of innocence. This assignment is, therefore, without merit.

Assignment of Error Number Two (verbatim): Defendant was not properly adjudicated a habitual offender.

Defendant argues that the trial court erred in adjudicating him as a habitual offender because the guilty pleas used to support the finding were inadequate. Specifically, in regard to his first predicate offense, Defendant argues that the State failed to present a Boykin transcript of the guilty plea and that this shifted the burden of proof to the State; Defendant also challenges the State’s proof of identity in regard to this predicate offense. In regard to the second predicate offense, his 1985 conviction for attempted simple burglary, Defendant argues that the'trial court incorrectly informed him of his- right to a trial when' it said that at least a majority of the jurors would have to vote to convict him.

|flThe State argues that this claim should not be considered on appeal pursuant to La. R.S. 15:529.1(D)(1)(b) because Defendant failed to file a written response to the habitual offender bill of information. The State argues that it met its burden of proving Defendant’s identity and that Defendant was represented by counsel at his guilty plea through the presentation of the bills of information and court minutes.. In regard to the 1985 conviction for attempted simple burglary in Docket No. 131,026, the State asserts that Defendant presented no evidence that he was improperly instructed on his right to a jury trial. The State asserts that, even if that predicate offense was insufficient, it still, presented sufficient proof of three other predicate offenses. The State also asserts that ten years had not elapsed since his release from supervision in his conviction for Docket No. 150,642 until the time of the present offense, which was committed on April 14, 2005; however, the State asks that the case be remanded so that it may present additional evidence if this court were to find that the State did not present sufficient evidence regarding the ten-year cleansing period.

In regard to the State’s argument that this issue is not properly before this court for appellate review due to Defendant’s failure to file a written response to the habitual offender bill of information, La. R.S. 15:529.1(D)(1)(b), in pertinent part, provides the following:

Except as otherwise provided in this Subsection, the district attorney shall have the burden of proof beyond a reasonable doubt on any issue of fact. The presumption of regularity of judgment shall be sufficient to meet the original burden or proof. If the person claims that any conviction or adjudication of delinquency alleged is invalid, he shall file a written response to the information. A copy of the response shall be served upon the prosecutor. A person claiming that a | fnconviction or adjudication of delinquency alleged in the information was obtained in violation of the Constitutions of Louisiana or of the United States shall set forth his claim, and the factual basis therefor, with particularity in his response to the information. ... Any challenge to a previous conviction or adjudication of delinquency which is not made before sentence is imposed may not thereafter be raised to attack the sentence.

While the statute clearly requires a defendant to file a written objection to a habitual bill of information when challenging the validity of a prior felony conviction, the plain language of the statute only precludes appellate review of such errors when no challenge is made prior to sentencing. Further, an oral objection at the habitual offender hearing can be sufficient to preserve the issue for appeal despite a failure to file a written objection to the habitual offender bill of information. State v. Kunzman, 31,976 (La.App.2d Cir.5/5/99), 741 So.2d 112; State v. Wuneburger, 03-490 (La.App. 5th Cir.10/15/03), 860 So.2d 78; writ denied, 03-3357 (La.1/7/05), 891 So.2d 673; State v. Santee, 02-0693 (La.App. 4th Cir.12/4/02), 834 So.2d 533.

The record in the present case indicates that Defendant did not receive discovery of the documentation of the prior felony convictions until the day of the habitual offender hearing, and the record indicates that Defendant made these objections at the hearing. Defendant’s oral objection at the habitual offender hearing, therefore, were sufficient to preserve the alleged errors for appellate review in spite of failure to file a written objection to the habitual offender bill of information.

In habitual offender proceedings where a defendant denies the prior convictions, the State bears the burden of proving the existence of the priorj^convictions and that the defendant was the same person who committed those prior offenses. State v. Gray, 41,732 (La.App.2d Cir.1/10/07), 948 So.2d 335. When proving that a defendant is the same person convicted in the earlier proffered predicate offenses, the State may accomplish this through different means, “including the testimony of witnesses, expert testimony as to the fingerprints of the accused when compared to those in the prison record introduced or by photographs contained in the duly authenticated record.” State v. Gray, supra.

In regard to proving the existence of prior guilty pleas for the purpose of habitual felony offender sentencing, the State bears the initial burden of proof:

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 the defendant’s prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boykin rights. (Footnotes omitted.)

State v. Zeigler, 41,617 (La.App.2d Cir.12/20/06), 945 So.2d 946, quoting State v. Shelton, 621 So.2d 769 (La.1993). Furthermore, “[w]here the record establishes that an accused was informed of and waived his rights to trial by jury, to confrontation, and against self-incrimination, the burden shifts to the accused to prove that despite this record, his guilty plea was involuntary.” State v. Scott, 34,949 (La.App.2d Cir.1/25/02), 823 So.2d 960, writ denied, 02-1622 (La.5/16/03), 843 So.2d 1122, citing State v. Youngblood, 32,003 (La.App.2d Cir.5/5/99), 740 So.2d 687.

At the habitual offender hearing and on appeal, Defendant challenges the use of two of the predicate offenses, the first predicate offense, docket no. 106,696, indecent behavior with a juvenile, and the second predicate offense, docket no. 131,026, attempted simple burglary. We review,' therefore, whether the trial court properly considered those predicate offenses.

Predicate Offense in Docket No. 106,696, Indecent Behavior With a Juvenile

Defendant challenges use of this predicate offense on the grounds that the State failed to properly prove identity for this offense and failed to produce a Boykin transcript of his guilty plea. As proof of this predicate offense, the State presented a bill of information charging Defendant with attempted aggravated rape, an amended bill of information charging Defendant with indecent behavior with a juvenile and court minutes showing that Defendant was represented by counsel when he pleaded guilty to the amended charge of indecent behavior with a juvenile on February 24, 1978. At the habitual offender hearing for the case sub judice, SPD | ^Corporal Tommy Rachal was qualified as an expert witness in fingerprint examination and analysis, and he took Defendant’s fingerprints in open court. The State presented a certified copy of the fingerprints taken when Defendant was booked on the original charge of attempted aggravated rape in Docket No. 106,696. Corporal Rachal examined the right thumb print from that booking sheet, compared it to the fingerprints taken of Defendant in open court and determined that Defendant was the same person who was convicted in Docket No. 106,696.

Defendant’s argument that the State failed to prove his identity in regard to this predicate offense is without merit. The Louisiana Supreme Court has repeatedly held that the Habitual Offender Act “does not require the State to use a specific type of evidence to carry its burden at an habitual offender hearing and that prior convictions may be proved by any competent evidence.” State v. Payton, 00-2899 (La.3/15/02), 810 So.2d 1127, quoting State v. Lindsey, 99-3202 (La.10/17/00), 770 So.2d 339. See also, State v. Davenport, 33,961 (La.App.2d Cir.11/1/00), 771 So.2d 837, writ denied, 00-3294 (La.10/26/01), 799 So.2d 1150. Concerning this predicate offense, Defendant also admitted that he had been convicted of indecent behavior with a juvenile during his trial testimony. Accordingly, the State presented sufficient evidence to prove that Defendant was the same person who was convicted of indecent behavior with a juvenile in Docket No. 106,696.

Defendant also argues on appeal that the State’s failure to present a Boykin transcript of this guilty plea shifted the burden of proof to the State |uto prove that Defendant had been properly informed of his Boykin rights when he pleaded guilty. This argument has been repeatedly rejected by this court, as evidenced by a recent holding in State v. Zeigler, supra, where Defendant argued that the State’s failure to present a Boykin transcript was evidence of an infringement or irregularity. This court found that presentation of the court minutes indicating that Defendant was represented by counsel at the time he pleaded guilty was sufficient to meet its burden of proof under State v. Shelton, supra, and that this shifted the burden of proof to Defendant to present affirmative evidence of an infringement of his rights or an irregularity in the proceedings. Zeigler, supra. This court further rejected the argument that the failure to present the Boykin transcript was evidence of an infringement or irregularity. Zeigler, supra.

Accordingly, the State met its burden of proof under State v. Shelton, supra, because the State presented a certified copy of the court minutes showing that Defendant was represented by counsel when he pleaded guilty to indecent behavior with a juvenile in Docket No. 106,696. Defendant presented no affirmative evidence of an infringement upon his rights or a procedural irregularity, and the absence of a Boykin transcript does not constitute evidence of such.

Predicate Offense in Docket No. 181,026, Attempted Simple Burglary

Defendant argues that his conviction for attempted simple burglary in Docket No. 131,026 should not be used against him because the Boykin transcript showed that he had been improperly instructed on his right to a |1Rjury trial. We do not address this argument because, even without using the predicate offense of attempted simple burglary in Docket No. 131,026, the State presented three other valid predicate offenses. As noted above, the State met its burden in regard to Docket No. 106,696. Defendant does not challenge the State’s proof in regard to the remaining two predicate offenses, Docket No. 123, 679, for attempted simple burglary on January 4, 1984, and Docket No. 150,642, for attempted simple burglary on June 21, 1991. The record reflects that the State met its burden of proof for the remaining two predicate offenses and Defendant did not present any affirmative evidence to show that these prior felony convictions should not be used to enhance Defendant’s sentence for his current conviction. The trial court, therefore, properly adjudicated Defendant as a fourth-felony offender based upon these three prior convictions and his current conviction for possession of Schedule IV CDS.

This assignment is, therefore, without merit.

Assignment of Error Number Three (verbatim): The twenty-five year sentence imposed upon Defendant was unconstitutionally excessive and imposed without adequate compliance with La. C. Cr. P. Art. 894.1.

Defendant argues that his 25-year sentence without benefit of parole, probation or suspension of sentence is constitutionally excessive for his conviction of possession of Schedule IV CDS, in spite of it being in the lower sentencing range for a fourth-habitual offender. Defendant also argues that the trial court failed to articulate a justification for this sentence. Defendant argues that the trial court should deviate from the minimum sentence of 20 years for a fourth-habitual offender because the primary |inreason for his sentence, his criminal history, does not include crimes of violence or drug offenses and because there were no other aggravating circumstances to justify the sentence. Defendant argues that the record does not indicate that the trial court considered Defendant’s personal history, that it did not order a pre-sentence investigation and that it did not adequately comply with the requirements of La. C. Cr. P. art. 894.1. Defendant requests this court to vacate the current sentence and remand it to the trial court with instructions to articulate sufficient reasons for the sentence imposed.

The State argues that the trial court did not abuse its discretion in sentencing Defendant to 25 years because he was found to be a fourth-felony offender, which made him eligible for a sentence of 20 years to life. The State argues that the trial court adequately considered the sentencing factors of La. C. Cr. P. art. 894.1, which is evidenced by its finding that this Defendant was a fourth-habitual offender, that this was Defendant’s fifth-felony conviction, that he was a career criminal who lacked remorse for the present crime and that any lesser sentence under the circumstances would be inappropriate. The State further argued that compliance with La. C. Cr. P. art. 894.1 does not require the trial court to discuss every sentencing factor contained therein. We agree.

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. |17art. 894.1, not a rigid 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 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. 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 (La.1982). The important elements which should be considered are Defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.4/22/04), 873 So.2d 747, writ denied, 04-2606 (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 Defendant. A sentence violates La. Const. art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985).

There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385. The trial court shall exercise its sentencing discretion to impose sentences according to the individualized circumstances of the offense and the offender. State v. Rogers, 405 So.2d 829 (La.1981). A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case and, therefore, is given broad discretion in sentencing. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). While given wide discretion to impose a sentence within the statutory limits, the sentence imposed by the trial court should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7, citing State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330, State v. Washington, 414 So.2d 313 (La.1982); State v. Abercrumbia, 412 So.2d 1027 (La.1982); State v. Hardy, 39,233 (La.App.2d Cir.1/26/05), 892 So.2d 710. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Cook, supra.

As previously stated, the trial court found Defendant to be a fourth-felony offender and sentenced him to 25 years without benefit of parole, probation or suspension of sentence. The sentencing range for fourth-felony offenders is “for a term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his Innatural life.” La. R.S. 15:529.1(A)(1)(e)(i). Accordingly, the trial court imposed a sentence within the lower-range of the sentencing statute. Defendant was given the opportunity to avoid arrest by cooperating with law enforcement in other narcotics investigations and Defendant rejected the State’s plea offer of five years. Defendant was also given the opportunity for a pre-sentence investigation, but turned it down because his counsel believed that a reporting of Defendant’s past misdemeanor offenses could be harmful. The record indicates that the trial court heard the arguments of counsel and that Defendant personally addressed the trial court before sentencing. Prior to imposing sentence, the trial court inquired into Defendant’s age, which was 49 years old. The trial court noted the following reasons for the sentence it imposed:

It’s the sentence of the Court that you serve 25 years in prison [at] hard labor. This is actually your fifth felony offense. You’re adjudicated as a fourth felony offender. The evidence of your guilt was beyond any reasonable doubt. It appears to the Court that you’re incalei-trant about the offense. You’re still arguing when the guilt was overwhelming, shows to me no remorse for what you’ve done and you’re what in layman’s terms would be considered a career criminal. I think any lesser sentence is inappropriate.

Thus, a review of the record indicates that the trial court was cognizant of the sentencing considerations of La. C. Cr. P. art. 894.1.

Defendant argues that the trial court should have made a downward departure from the mandatory minimum sentence of 20 years required by La. R.S. 15:529.1(A)(1)(c)(i) because his prior offenses were for non-violent felonies and were not for other drug offenses. In State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, the Louisiana Supreme Court | gnexplained the circumstances in which a downward departure from the mandatory minimum habitual offender sentence is warranted, finding that it is rare and only warranted under exceptional circumstances. The court noted that, although the Louisiana Legislature has the authority to define criminal conduct and to provide penalties for that conduct, the judiciary retains the ability to find sentences excessive under Article I, Section 20, of the Louisiana Constitution. State v. Johnson, supra, citing State v. Sepulvado, 367 So.2d 762 (La.1979). While having found that the Habitual Offender Law in its entirety is constitutional and that minimum sentences imposed under this statute are also presumed to be constitutional, the court recognized that this power to exercise a downward departure from the mandatory minimum - sentence extends also to sentences for multiple offenders. State v. Johnson, supra. The sentencing judge must begin with the presumption that the mandatory minimum sentence is constitutional. Id., citing State v. Dorthey, supra; State v. Young, 94-1636 (La.App. 4th Cir.10/26/95), 663 So.2d 525, writ denied, 95-3010 (La.3/22/96), 669 So.2d 1223. The court may only depart from the minimum sentence if it finds that Defendant presented “clear and convincing evidence” to rebut that presumption of constitutionality, which requires a showing that “[he] is exceptional, which in this context means that because of unusual circumstances this Defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.” State v. Johnson, supra, quoting State v. Young, supra (Plotkin, J., concurring).

|^Further, the court noted that a trial court wishing to give a sentence lesser than the mandatory minimum under the Habitual Offender Law cannot solely rely upon the non-violent nature of the instant crime or of the past crimes as a justification for doing so:

While the classification of a Defendant’s instant or prior offenses as non-violent should not be discounted, this fact has already been taken into account under the Habitual Offender Law for third and fourth offenders. LSA-R.S. 15:529.1 provides that persons adjudicated as third or fourth offenders may receive a longer sentence if their instant or prior offense is defined as a “crime of violence” under LSA-R.S. 14:2(13). Thus the Legislature, with its power to define crimes and punishments, has already made a distinction in sentences between those who commit crimes of violence and those who do not. Under the Habitual Offender Law those third and fourth offenders who have a history of violent crime get longer sentences, while those who do not are allowed lesser sentences. So while a Defendant’s record of nonviolent offenses may play a role in a sentencing judge’s determination that a minimum sentence is too long, it cannot be the only reason, or even the major reason, for declaring such a sentence to be excessive.

State v. Johnson, supra.

The trial court must also keep in mind the goals of the Habitual Offender Law, which include the deterrence and punishment of recidivism. State v. Johnson, supra. Even when the trial court does view a downward departure from the mandatory minimum sentence as necessary to avoid imposition of an unconstitutionally excessive sentence, it must impose the longest sentence that is not constitutionally excessive and “articulate specific reasons why the sentence he imposes instead of the statutory mandatory minimum is the longest sentence which is not excessive under the Louisiana Constitution” in order to “give as much deference as constitutionally possible to the Legislature’s determination of the | ^appropriate minimum sentence for a habitual offender.” State v. Johnson, supra.

Applying the reasoning from State v. Johnson, supra, to the present case, we do not find that a sentence less than the mandatory minimum under the Habitual Offender Law is required. The trial court rejected that argument and imposed a sentence slightly higher than the mandatory minimum. Defendant did not present clear and convincing evidence that his circumstances were exceptional or that he was the victim of the legislature’s failure to assign sentences meaningfully tailored to his culpability, to the gravity of his offense or to the circumstances of his case.

This assignment is, therefore, without merit.

Errors Patent: (1) Trial court improperly imposed sentence without benefit of parole; and (2) Trial court failed to notify Defendant of time for filing post-conviction application as required by La. C. Cr. P. art. 930.8.

Our error patent review reveals that the trial court improperly imposed sentence without the benefit of parole. The trial court found Defendant to be a fourth-felony offender and sentenced him to 25 years at hard labor without benefit of parole, probation or suspension of sentence. According to La. R.S. 15:529.1(G), all habitual offender sentences are to be imposed without benefit of probation or suspension of sentence. Although La. R.S. 15:574.4(A)(1) states that “[a] person convicted of a third or subsequent felony offense shall not be eligible for parole,” the Louisiana Supreme Court has consistently held that, when a Defendant is sentenced under a statute that contains no prohibition of parole, the district court must sentence Defendant to a term that does not include such a prohibition | ^because parole eligibility under La. R.S. 15:574.4 is to be determined by the Department of Corrections. State ex rel. Porter v. State, 04-2080 (La.11/28/05), 916 So.2d 123; St. Amant v. 19th Judicial District Court, 94-0567 (La.9/3/96), 678 So.2d 536. Although Defendant is a fourth-habitual offender, the trial court should not have imposed sentence without benefit of parole because the statute under which he was convicted contains no prohibition on parole. See La. R.S. 40:969(0(2). Defendant’s parole eligibility as a fourth-habitual offender under La. R.S. 15:574.4 is a determination for the Department of Corrections to make. Defendant’s sentence, therefore, is amended to 25 years at hard labor without benefit of probation or suspension of sentence.

Error patent review also reveals that the trial court failed to advise Defendant at sentencing that he has two years from the time of the finality of his conviction and sentence to seek post-conviction relief as required by La. C. Cr. P. 930.8. The statute contains supplicatory language which does not bestow an enforceable right on an individual Defendant. State v. Hunter, 36,692 (La.App.2d Cir.12/20/02), 834 So.2d 6. Furthermore, this defect has no bearing on whether the sentence is excessive and, thus, is not grounds to reverse the sentence or to remand the case for re-sentencing. State v. Ferrell, 26,649 (La.App.2d Cir.12/7/94), 647 So.2d 427. Defendant is advised by this opinion that no application for post-conviction 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 | ?4and sentence have become final under the provisions of La. C. Cr. P. arts. 914 and 922.

DECREE

For the foregoing reasons, the conviction of Defendant, Charles Wayne Henry, is affirmed. His sentence is amended and, as amended, is affirmed.

CONVICTION AFFIRMED. SENTENCE AMENDED, AND, AS AMENDED, AFFIRMED.

      . At the time the present offense was committed, the statute actually stated that it was also unlawful to "unknowingly” possess a Schedule IV CDS. In State v. Brown, 389 So.2d 48 (La.1980), quoting Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951), the Louisiana Supreme Court found, however, that it was unconstitutional to criminalize the Unknowing possession of Schedule IV CDS because “the existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American jurisprudence.” Even so, the Louisiana Supreme Court found that the remainder of the statute was constitutional and enforceable against those who knowingly possessed such substances. State v. Brown, supra. In 2005 Act of Louisiana 14, the Louisiana Legislature amended to statute to remove the language that criminalized the unknowing possession of Schedule IV CDS.


source: Caselaw Access Project

author: GASKINS, J.

license: Public Domain

text:
    GREENGROVE MISSIONARY BAPTIST CHURCH, Plaintiff-Appellee v. Lawrence W. COX and Sue Cox, Defendants-Appellants.
    No. 42,418-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 19, 2007.

      Kenneth L. Harper, for Appellants.
    Woodrow Wilson, Bastrop, for Appellee.
    Before STEWART, GASKINS and PEATROSS, JJ.
   GASKINS, J.

IjThe defendants, Lawrence W. Cox and Sue Cox, appeal from a trial court judgment holding that the plaintiff, Greengrove Missionary Baptist Church, owns a disputed piece of property by virtue of 30-year acquisitive prescription. For the following reasons, we affirm in part and reverse in part the trial court judgment.

FACTS

On December 14, 1929, Greengrove Missionary Baptist Church (Greengrove) acquired approximately two acres of property on the banks of Bayou Bartholomew in Morehouse Parish. On November 18, 1942, Greengrove acquired an additional 2.5 acres. Greengrove members believed that the eastern boundary of the church’s property extended to Clay Banks Road. The land at issue here is the tract lying west of Clay Banks Road.

Dr. A.B. Gregory and others acquired property to the east of the church property. In 1977, he and his co-owners sold the property to James and Irene West. The deed granted by Dr. Gregory includes this description concerning the boundary with the church’s property:

West line of the tract being 841.8 feet in length, being the common boundary line between the property owned by the widow and heirs of Arthur Britton Gregory and of the Green Grove Missionary Baptist Church.

|2In 1987, the Wests sold the property to the defendants, Lawrence and Sue Cox. Greengrove alleges that in 1993, the Coxes placed some horses on the disputed tract at the east end of the property the church claims to own. Greengrove alleges that it confronted the defendants and the horses were removed.

Then, in 2004, the Coxes placed a mobile home on the west side of Clay Banks Road. Greengrove claimed that it owned the property up to Clay Banks Road and that the road formed the property line between the church’s property and that of the Coxes. In April 2005, Greengrove filed a petition for recognition as owner of the immovable property. It cited the actions of the defendants in encroaching on its possession of the east end of its property. The church contended that it employed a surveyor who determined that the eastern line of the plaintiffs property was the center of Clay Banks Road. Green-grove claimed ownership of the disputed property by virtue of their deeds and sought a judgment from the court ordering that the defendants surrender possession of the disputed property to Greengrove and move the trailer.

Trial on Greengrove’s claim was held on January 24, 2006. Frank Messinger, III, an expert surveyor, testified on behalf of the church regarding a survey of the property he did in 1993 following the alleged horse incident. Evidence and testimony at trial showed that Greengrove only had title to four and one-half acres of property, but claimed ownership of approximately nine or more acres. Mr. Messinger also testified regarding several discrepancies in the property descriptions in the deeds.

|3Mr. Messinger determined in 1993 that a previous survey by A.C. Volk used an erroneous point as the southwest corner of one of the lots claimed by Greengrove. Mr. Messinger opined that the eastern line of the church property lies in the center of Clay Banks Road.

Greengrove also presented testimony to show that it used the disputed property over the years and had bushhogged it about once a year. James Canady stated that he had been a member of Greengrove for 40 years and had served as chairman of the deacons for 20 years. He stated that the church always considered the disputed property to belong to the church. Mr. Canady said that there had been an old “seed house” on the property and that there was a little strip of woods between the seed house and the disputed land that Mr. Cox is possessing.

Mr. Cox testified that there is a wooded area which covers about three-fourths of an acre which we surmise is located between the seed house and the old fence row. (The old fence row is to the west of where Mr. Cox has erected his fence.) He said that no one has maintained the wooded area since 1987. He testified that it is 190 feet from the center of Clay Banks Road to the corner that he is claiming.

In February 2006, the trial court rendered a judgment rejecting the plaintiffs claim, and found that the church did not prove that it had title to the disputed property up to Clay Banks Road. According to the court, while Greengrove sought to advance the “acquisitive prescription” component of La. C.C.P. art. 3653 at trial, nowhere in their petition or pretrial statement 14was this alleged. Therefore, the trial court refused to consider whether Greengrove had proved ownership of the property by acquisitive prescription. The court also found that the plaintiffs survey efforts and the testimony of Mr. Messinger were vague and ambiguous.. Accordingly, the trial court ruled in favor of the defendants. We agree that the church failed to carry its burden of proving that its two deeds conveyed ownership of the disputed property.

On March 10, 2006, Greengrove sought to file an amended petition claiming that it acquired ownership of the disputed property by virtue of deed and by acquisitive prescription of the disputed property up to Clay Banks Road. Greengrove also filed a motion for partial new trial, claiming that the trial court judgment was contrary to the law and the evidence with respect to the issue of acquisitive prescription. The trial court conducted a hearing on the motion in April 2006, and granted a partial new trial on that issue. The trial court denied permission to file the amended petition with a notation indicating that the filing was disallowed because the motion for partial new trial was granted.

IsThe trial court heard evidence on the partial new trial on August 10, 2006, concentrating on the issue of whether Green-grove could establish ownership of the disputed tract by acquisitive prescription. In September 2006, the trial court entered judgment in favor of Greengrove and against the defendants, recognizing the church as the legal owner of the property in dispute and finding that the dividing line between Greengrove and the defendants is Clay Banks Road. The defendants were ordered to surrender possession of the property west of Clay Banks Road to Greengrove and to move the trailer from the property within 60 days of the time the judgment becomes final.

In reasons for judgment, the trial court noted that it originally ruled against Greengrove, finding that they did not have title to the disputed property. The matter returned to the court on the limited issue of whether Greengrove obtained ownership of the property through acquisitive prescription by possessing for ten or 30 years. The trial court found that Greengrove had established ownership of the property by 30-year acquisitive prescription, from 1961 to 1991, in such a way as to give notice to the world that their possession was being exercised. The defendants appealed sus-pensively.

AMENDED PETITION AND MOTION FOR PARTIAL NEW TRIAL

The defendants urge that in granting a partial new trial to receive testimony on the issue of acquisitive prescription, the trial court erred in allowing an amendment to the plaintiffs pleadings. The defendants request |fithat the September 2006 judgment be vacated and the original judgment be reinstated. This argument is without merit.

Legal Principles

La. C.C.P. art. 1971 provides:

A new trial may be granted, upon contradictory motion of any party or by the court on its own motion, to all or any of the parties and on all or part of the issues, or for reargument only. If a new trial is granted as to less than all parties or issues, the judgment may be held in abeyance as to all parties and issues.

La. C.C.P. art. 1972(1) sets forth that a new trial shall be granted, upon contradictory motion of any party, when the verdict or judgment appears clearly contrary to the law and the evidence.

In granting the motion for partial new trial, the trial court cited La. C.C.P. art. 1154, which provides:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleading. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to so amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be sub-served thereby, and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense on the merits. The court may grant a continuance to enable the objecting party to meet such evidence.

|7Piscussion

Although the trial court originally found that Greengrove did not prove title to the disputed property, it concluded that it erred in failing to consider whether the plaintiff had proven ownership by acquisitive prescription; therefore, its original decision was contrary to the law and evidence. The record in this matter shows that, although the plaintiff did not specifically plead ownership by acquisitive prescription in the original petition, when this matter was first heard in the trial court, extensive evidence was presented on that issue, without objection by the defendants. When evidence is introduced without objection on an issue not pleaded, the pleadings are deemed to have been enlarged or automatically amended by the implied consent of the parties. Brown v. Sambo’s of Louisiana, Inc., 403 So.2d 813 (La.App. 2d Cir.1981).

The issue of acquisitive prescription was raised without objection in the original hearing. Under these circumstances, the trial court recognized that it erred in failing to consider an issue before the court for decision. We find that the trial court was correct in its ruling on the motion for partial new trial.

ACQUISITIVE PRESCRIPTION

The defendants argue that the trial court erred in finding that Greengrove established ownership of the disputed property by virtue of 30-year acquisitive prescription. The defendants acknowledge that the evidence shows that Greengrove possessed the disputed property from 1961 until 1968 or 1969 when the last residents vacated the old seed house. | sThe defendants dispute the claim that the church bushhogged the entire property once a year. The defendants maintain that the disputed tract was not used again until 1977 when Mr. West, their ancestor-in-title, cleared the property west of Clay Banks Road, fenced it, kept horses on it, and stored used equipment on it. The defendants also point out that their ancestor-in-title gave Eugene Harper permission to put an irrigation pipe across the disputed property. The defendants claim that them testimony, asserting the church was not in possession of the disputed tract from at least the late 1970s, was corroborated by numerous other witnesses.

The defendants urge that the evidence adduced at trial establishes their possession of the disputed tract up to the fence line west of Clay Banks Road. The defendants contend that this court should establish the fence line that they erected as the boundary line between their property and that of Greengrove. This argument has merit.

Legal Principles

The plaintiff filed a petitory action in this matter. Such an action is one brought by a person who claims the ownership, but who is not in possession, of immovable property or of a real right therein, against another who is in possession or who claims the ownership thereof adversely, to obtain judgment recognizing the plaintiffs ownership. La. C.C.P. art. 3651. To obtain a judgment recognizing his ownership of immovable property or a real right therein, the plaintiff in a petitory action shall prove that he has acquired ownership from a previous owner or by acquisitive prescription, if | flthe court finds that the defendant is in possession thereof. La. C.C.P. art. 3653.

Corporeal possession is the exercise of physical acts of use, detention, or enjoyment over, a thing. La. C.C. art. 3425. The corporeal possession necessary to support the plea of prescription must include such external signs of possession as to indicate clearly that the possessor holds control and dominion over the property. City of Shreveport v. Noel Estate, Inc., 41,148 (La.App. 2d Cir.9/27/06), 941 So.2d 66, writ denied, 2006-2774 (La.1/26/07), 948 So.2d 171. The intent to possess as owner may be inferred from the surrounding facts and circumstances. Openly maintaining property to which one does not have record title by raising crops or using the property for pasturage is evidence of intent to possess as owner. Morris v. Adams, 39,513 (La.App. 2d Cir.5/25/05), 903 So.2d 638.

The trial judge found that Green-grove did not have just title to the property, a determination with which we agree. Consequently, the issue of ten-year acquisitive prescription, which requires good faith and just title, is not an issue in this matter. The trial court found that the plaintiff obtained ownership of the disputed tract by virtue of 30-year acquisitive prescription. Ownership and other real rights in immovables may be acquired by the prescription of 30 years without the need of just title or possession in good faith. La. C.C. art. 3486. For purposes of acquisitive prescription without title, possession extends only to that which has been actually possessed. La. C.C. art. 3487.

|inAt issue in this case is the boundary between the contiguous pieces of property claimed by the plaintiff and the defendants. In such matters, the court shall fix the boundary according to the ownership of the parties; if neither party proves ownership, the boundary shall be fixed according to limits established by possession. La. C.C. art. 792. When a party proves acquisitive prescription, the boundary shall be fixed according to limits established by prescription rather than by titles. If a-party and his ancestors in title possessed for 30 years without interruption, within visible bounds, more land than their title called for, the boundary shall be fixed along these bounds. La. C.C. art. 794. The party who seeks title to a tract of land through acquisitive prescription bears the burden of proof. McKoin v. Harper, 36,533 (La.App. 2d Cir.1/31/03), 836 So.2d 1260, writ denied, 2003-0622 (La.5/2/03), 842 So.2d 1104.

Whether or not disputed property has been possessed for 30 years without interruption is a factual issue and will not be disturbed on appeal absent a showing of abuse of discretion or manifest error. Bowman v. Blankenship, 34,558 (La.App. 2d Cir.4/4/01), 785 So.2d 134, writ denied, 2001-1354 (La.6/22/01), 794 So.2d 794.

An appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong, and where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Bright Morning Star Missionary Baptist Church v. Brown, 38,333 (La.App. 2d Cir.5/28/04), 877 So.2d 1003, writ not considered, 2004-2136 (La.11/15/04), 887 So.2d 466; Washington v. James, 42,345 (La.App. 2d Cir.8/15/07), 962 So.2d 1154.

Discussion

The plaintiffs presented evidence of acquisitive prescription - beginning in 1961. The court framed the issue as whether Greengrove possessed the property continuously and without interruption to visible boundaries for 30 years.

Mr. Canady testified that a former pastor moved into the seed house on the property in 1962 and gardened on the disputed tract up to Clay Banks Road. After the pastor moved, another family lived in the seed house and also planted on the tract. Mr. Canady said that Greengrove’s possession was disturbed in 1993 when the defendants moved horses onto the tract. The church commissioned a survey arid hired a lawyer who talked to the defendants and the horses were moved.

Mr. Canady testified that he bush-hogged the property about once a year until the defendants moved the mobile home onto the property. He was questioned about a row of steel fence posts that appeared on the survey done by Mr. Mes-singer, but denied ever seeing any fence posts on the property.

Daisy Davis testified that she had been a member of Greengrove for 43 years and that the church had previously used the property where the defendants’ trailer is now located. She stated that the church used the property for parking and that children played on the land. She said that those who lived on the church grounds farmed the disputed tract up to Clay Banks Road.

[ 12Numerous longtime members of Greengrove corroborated testimony that people lived on the church grounds and farmed up to Clay Banks Road. Several denied ever seeing any fences on the disputed tract.

Dora Alexander testified that her family moved into the seed house around 1965 and moved out in 1968 or 1969. She stated that she did not know of anyone living in the house after that. She said that she believed her family was the last to farm the disputed tract.

Ruthie Canady testified that she had been attending Greengrove for 60 years. She stated that her husband, James, bush-hogged the property through the years. According to Mrs. Canady, her husband bought a bushhog in 1984, but prior to that, he borrowed or rented equipment to maintain the property.

Donald Ray Bryan testified that he lived near Greengrove from 1940 to 1956 and that Clay Banks Road has not always been in the same place. He stated that, at one time, the road was closer to the bayou bank in front of the seed house. He identified a 1941 aerial photo which showed the road in a different position. Mr. Bryan stated that John Smith, who obtained the patent on the land from the United States, lived in the seed house in the 1960s.

Omer Bryan testified that he was 82 years old and that Donald Ray Bryan is his younger brother. He stated that he lived in the vicinity of Greengrove Church most of his life, and he corroborated his brother’s testimony that Clay Banks Road was previously in a different location. He stated that the church members did not bushhog the disputed tract.

ha James West testified that he purchased property to the east of the church in 1977 from Dr. A.B. Gregory. He stated that there was an old fence by the road and he was told his property line went to that fence. Mr. West claimed that he knocked down some trees and put another fence along the old fence line. He stated that he had horses on the land at one point.

In 1987, Mr. West sold the property to the defendants. He told Mr. Cox that the west boundary of the property went to the fence on the west side of Clay Banks Road. Mr. West claimed that he stored used equipment on the disputed tract. He also said that he gave Eugene Harper permission to put an irrigation pipe across the property. Mr. West denied ever seeing anyone from the church bushhog the property.

Mitch West, the son of James West, testified that he fenced part of the property while living there with his father and that they corralled horses and had a hog pen on the land. He corroborated that Mr.' Harper put an irrigation line across the property and that the West family stored used equipment on the land.

Eugene Harper testified that in 1979, he obtained permission from James West to put an irrigation pipe across the disputed tract, thinking that Mr. West owned the property. He said that the pipe ran from the bayou under Clay Banks Road and surfaced on the disputed tract. He stated that he used the pipe for two years and no one from the church ever complained about it.

One of the defendants, Lawrence Cox, testified that he had lived on his property adjacent to the church for approximately 20 years. When he 114bought his land from Mr. West, he buried some old equipment and put up a new fence where an old fence had been on the disputed tract. He claimed that he bushhogged and disked the tract now claimed by Greengrove and that his daughter used it for barrel racing. Mr. Cox said that he never saw Mr. Cana-dy do any bushhogging on the tract. Mr. Cox denied ever having a discussion with Greengrove’s attorney in 1993 about horses on the tract. He denied keeping horses on the property, but said that he and family members rode horses on the land.

Dr. Gregory’s deed to Mr. West, who then sold the property to the defendants, describes the west boundary between the defendants and the church as 341.8 feet. Mr. Cox testified that Mr. Messinger showed a line from the north edge of the Old Bonita Highway to the bayou as measuring 341 feet. Mr. Cox said that this was the approximate location of his fence.

Pursuant to questioning by the court, Mr. Cox stated that when he purchased the property from Mr. West in 1987, he understood that the property line went right up to the seed house. He stated that there was no fence on the property until he put one up when they moved in the trailer in 2004.

Mr. Canady testified again, saying that he never saw any used equipment on the land or an irrigation pipe. He denied seeing a row of steel fence posts which appeared on Mr. Messinger’s survey. He also said that he never saw any barrels on the land which would have been used for barrel racing. He insisted that he bush-hogged the tract. He said that he saw livestock on the land, but was not clear what kind of animals he observed. | lsHe stated that he did not bushhog a corner of the property where there was a ravine.

Cleveland Holmes, the current pastor of Greengrove, testified that there was never a fence on the disputed tract and there was no fence present in 1995 when the seed house was torn down.

The witnesses on behalf of Greengrove testified that the church possessed the disputed property from 1961 until 2004 by virtue of residents living in the seed house who farmed the property up to Clay Banks Road, as well as use of the land for parking and a place for children to play. Church members also testified that after people ceased living in the seed house, the property was bushhogged once a year and maintained by the church. Therefore, from 1961 to 1991, the church claims that it had possession of the property and acquired ownership through 30-year acquisitive prescription. The church’s witnesses testified that their possession was disturbed in 1993 when the defendants put horses on the property. The church claimed that through an attorney, they demanded that the defendants remove the horses and restore the church’s possession of the property. The church’s witnesses testified that the defendants removed the horses and the church remained in possession of the property until 2004 when the defendants placed a mobile home on the land.

In stark contrast, the defendants and their ancestor-in-title testified that they understood that their property line was west of Clay Banks Road. At various times from 1977 to 2004, they had a fence on the property, grazed horses on it, had a hog pen, stored used equipment there, and h (¡allowed an irrigation line to be laid across the disputed tract. The testimony also shows that the location of Clay Banks Road has changed over the years. Previously, it was located closer to the seed house. The defendants also sought to show that there was a ravine on the disputed tract which would have prevented the church members from parking on the tract, as they claimed. The defendants asserted that there was a small wooded area between the church property and the defendants’ fence which had not been maintained by anyone since 1987.

The plaintiff and the defendants in this matter proceeded amicably and honorably in advancing their claims in this matter. However, the evidence shows that the defendants and their ancestors-in-title interrupted the church’s possession of the property in 1977 and continued that interruption until 2004. When Mr. West acquired his land in 1977, he cleared the disputed property which obviously had not been used for several years. Mr. West fenced the property, placed livestock on it, allowed a neighbor to run an irrigation line over it and stored used equipment on it. The defendants submitted pictures of the irrigation line and the used equipment situated on the property.

In addition to the 4.5 acres set forth in its deeds, the church was able to show that it possessed and maintained additional property lying to the east of the church. However, Greengrove did not carry its burden of proving continuous, uninterrupted, peaceable, public, and unequivocal possession of the disputed tract of land lying just west of Clay Banks Road |17and possessed by the defendants. The trial court was manifestly erroneous and clearly wrong in deciding otherwise.

CONCLUSION

For the reasons stated above, we affirm that portion of the trial court judgment granting a partial new trial in this matter on the issue of acquisitive prescription. We reverse that portion of the judgment finding that the plaintiff, Greengrove Missionary Baptist Church, proved ownership of the disputed property through 30-year acquisitive prescription. Costs in this court are assessed one-half to the plaintiff, Greengrove Missionary Baptist Church, and one-half to the defendants, Lawrence W. Cox and Sue Cox.

AFFIRMED IN PART; REVERSED IN PART; RENDERED.

      . In 1961, the United States issued a- land patent on the property that is now owned by the plaintiff and the defendants. This patent was issued to a previous owner, John Smith. Smith deeded to Greengrove and to the defendants' ancestor-in-title his interest in the disputed property.

      . See the diagram attached to this opinion.

      . La. C.C.P. art. 3653 provides:
      To obtain a judgment recognizing his ownership of immovable property or real right therein, the plaintiff in a petitory action shall:
      (1) Prove that he has acquired ownership from a previous owner or by acquisitive prescription, if the court finds that the defendant is in possession thereof; or
      (2) Prove a better title thereto than the defendant, if the court finds that the latter is not in possession thereof.
      When the titles of the parties are traced to a common author, he is presumed to be the previous owner. [Emphasis supplied.]


author: CARAWAY, J. STEWART, J.,

text:
    Don BURKETT, District Attorney, Plaintiff-Appellee v. Deabraid A. LEWIS, Defendant-Appellant.
    No. 42,985-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 21, 2007.

      Seabaugh, Benson, Keene, Denny & Gerhardt, by Bryce J. Denny, Shreveport, for Appellant.
    Richard Z. Johnson, Jr., Baton Rouge, for Appellee.
    Before WILLIAMS, STEWART, CARAWAY, PEATROSS and DREW, JJ.
   CARAWAY, J.

| ¶ This appeal is taken from a judgment disqualifying defendant, Deabraid A. Lewis, as a candidate for the DeSoto Parish Police Jury. For the following reasons, we reverse.

Facts

On September 13, 2007, DeSoto District Attorney Don Burkett (the “District Attorney”) filed a petition to disqualify Lewis as a candidate for the DeSoto Parish Police Jury representing District 4C. The petition alleged that Lewis was disqualified to run for this office because he had not been domiciled in Police Jury Election District 4C for the preceding year as required by law. See La. R.S. 33:1225 and La. Const. art. 3, § 4(A). The petition further alleged that two persons, Shekina Brown and Martin Zebbs, had reported Lewis’s disqualification to the District Attorney, and their notarized letters to that effect were attached to the petition.

On September 17, 2007, the matter came on for hearing. Lewis, who had no attorney, identified two residences in Mansfield which he owned, one in each ward. After considering the evidence adduced, the court announced that Lewis was disqualified because he did not meet the domicile requirement. The judgment of disqualification was signed later that day. The judgment was filed at 11:29 a.m. A handwritten notation later added by the judge to the judgment stated, “Signed in Many, Louisiana at 10:00 A.M.”

On September 18, 2007, at 11:07 a.m., Lewis filed his motion for appeal. The motion stated that the time of the judgment was not indicated Lon the judgment, but that the judgment was received and filed by the clerk of court at 11:29 a.m. An order granting the appeal was then signed and filed at 11:45 a.m., requiring a bond in the amount of $1,500. The record indicates that the bond was filed at 1:22 p.m. the next day, September 19, 2007.

I.

Untimeliness of the Appeal

The first challenge to the appeal concerns its timeliness. Lewis filed the appeal within 24 hours of the filing of the court’s judgment, but after 24 hours from its actual rendition. Lewis asserts and the record reflects that the judgment filed at 11:29 a.m., September 18, 2007, did not have the trial judge’s notation of his actual signing of the judgment which occurred at 10:00 a.m. in another parish. Notice of that judgment, without the trial court’s notation of its rendition, was given by the clerk of court to Lewis.

Concerning the motion for appeal, La. R.S. 18:1409(D) provides as follows:

Within twenty-four hours after rendition of judgment, a party aggrieved by the judgment may appeal by obtaining an order of appeal and giving bond for a sum fixed by the court to secure the payment of costs. The clerk of the trial court shall give notice of the order of appeal to the clerk of the court of appeal and to all the parties or their counsel of record. The trial judge shall fix the return day at a time not to exceed three days after rendition of judgment.

In Lewis’s motion for appeal, he stated that “the time of the judgment was not indicated on the judgment.” The District Attorney does not dispute that the judgment as originally signed and filed did not reflect the time of its rendition. Lewis received notice of that judgment and acted accordingly. | sUnder these circumstances, the filing of the motion for appeal within twenty-four hours of the judgment’s filing with the clerk of court shall be considered timely.

II.

Timeliness of Appeal Bond

Though the motion for appeal was filed at 11:01 a.m., 28 minutes before the running of the initial 24-hour period following judgment, the trial court did not sign the order for appeal and fix the appeal bond until 11:45 a.m. The appeal bond, therefore, was not filed within the twenty-four hours contemplated by Section 1409(D) of the Election Code. The District Attorney claims that this is fatal to the appeal and further notes that the $1,500 bond was not posted until 1:22 p.m. on September 19, 2007, almost 26 hours after the trial court fixed the bond. Lewis asserts that he did not know of the amount of the appeal bond within the 24-hour period and could not therefore post the bond.

Unlike the bond for a suspensive appeal to secure enforcement of a civil judgment, the appeal bond required under Section 1409(D) is to protect the clerk of court, which, through an expedited process, must prepare the record for immediate lodging at the court of appeal. The protection for the clerk’s costs in a civil appeal is generally provided for by La. C.C.P. art. 2126 and, ordinarily, untimeliness concerning payment of those costs does not automatically result in the loss of the right of appeal. The right to suspen-sive appeal is lost by untimeliness in the filing of the bond.

|4In this case, the record was ordered to be lodged no later than September 20, but, in fact, the clerk lodged the record at 2:19 p.m. on September 19, only 57 minutes after the posting of the appeal bond by Lewis. The risk of payment of the clerk’s costs and the delay in the filing of bond to insure against that risk obviously did not prevent the clerk of court from its diligent work for the lodging of the record in this case. If the record had been delayed and the expedited process of this election case appeal affected, the appeal would be subject to dismissal. Nevertheless, with the timely motion for appeal and the law’s favoring of appeals, we do not find the appellant’s timing of its filing of the bond for costs crucial in this case.

III.

No Cause or No Right of Action

Lewis asserts that the District Attorney’s petition and his proof at trial were insufficient in that it failed to show the standing of the District Attorney to act in this election dispute. He cites Booth v. Jefferson, 34,446 (La.App. 2d Cir.9/6/00), 765 So.2d 1249 for authority for the peremptory exception of lack of standing of the plaintiff for this action.

La. C.C.P. art. 927(B) provides for the peremptory exceptions and the court of appeal’s right to consider a peremptory challenge, as follows:

B. The court cannot supply the objections of prescription and res judicata, which must be specially pleaded. The nonjoinder of a party, or the failure to disclose a cause of action or a right or interest in the plaintiff to institute the suit, may be noticed by either the trial or appellate court of its own motion.

|sThe standing to bring election challenges against a candidate is addressed in La. R.S. 18:491, as follows:

A. A registered voter may bring an action objecting to the candidacy of a person who qualified as a candidate in a primary or first party primary election for an office for which the plaintiff is qualified to vote.
B. A registered voter may present evidence that a candidate has illegally qualified for elective office. The evidence may be presented to the respective parish district attorney, who shall determine whether or not the evidence presented establishes grounds for objecting to such candidacy and if the district attorney makes such a determination he shall file an action objecting to candidacy within the time limitation provided in R.S. 18:493.

Citing this provision, Lewis further contends that the importance of a registered voter’s participation in an election challenge is still an essential element of the District Attorney’s standing so that his office is not entirely free to become involved in a political dispute.

In this case, the petition made the following allegation:

2.

This office has been presented with two (2) affidavits dated September 13, 20097, and signed by Shekina Brown and Marti Zebbs, respectively both alleging the aforesaid candidate is not domiciled within the district in which he has qualified. Said affidavits are attached as Exhibits A and B.

There is no other allegation in the petition stating that Shekina Brown and Marti Zebbs were registered voters. Ms. Brown testified at trial but did not identify herself as a registered voter. The “affidavits” (notarized “to whom it may concern” statements) attached to the petition did not identify the two parties as registered voters.

Section B of La. R.S. 18:491 was added in 2003. The entire provision is labeled “Standing to object to candidacy.” The importance of a | firegistered voter as the party to challenge a candidate is still a part of the newly allowed action by the District Attorney. The petition and evidence presented at trial do not evidence that registered voters of DeSoto Parish have objected to Lewis’s candidacy. Accordingly, as in Booth, supra, we find that the District Attorney’s action is subject to a peremptory challenge, which we hereby sustain.

Conclusion

The judgment of the district court denying the candidacy of Deabraid A. Lewis is hereby reversed. Costs of appeal are assessed to plaintiff.

REVERSED.

WILLIAMS, J., concurs for the reasons assigned by STEWART, J.

STEWART, J., concurs with written reasons.

STEWART, J.,

concurring.

hWe concur in order to address the issue of standing and in order to express our concern about the degree of involvement by the trial court in aiding the district attorney’s presentation of the case and about the trial court’s abridged procedure with respect to the pro se defendant’s presentation of his case.

STANDING

Citing Booth v. Jefferson, 34,446 (La.App. 2d Cir.9/6/00), 765 So.2d 1249, Lewis argues that the district attorney lacked standing to bring the objection to candidacy. We find this argument has merit. The provisions of La. R.S. 18:491 state in pertinent part:

A. A registered voter may bring an action objecting to the candidacy of a person who qualified as a candidate in a primary or first party primary election for an office for which the plaintiff is qualified to vote.
B. A registered voter may present evidence that a candidate has illegally qualified for elective office. The evidence may be presented to the respective parish district attorney, who shall determine whether or not the evidence presented establishes grounds for objecting to such candidacy and if the district attorney makes such a determination he shall file an action objecting to candidacy within the time limitation provided in R.S. 18:493.

Similarly, the provisions of La. R.S. 18:1401(A) state:

A. A qualified elector may bring an action objecting to the candidacy of a person who qualified as a candidate in a primary election for an office in which the plaintiff is qualified to vote.

In Booth, the threshold issue raised by the defendant was whether the plaintiff had standing to challenge the defendant’s qualifications as a candidate; the plaintiff had neither asserted in his petition, nor proved at trial, that he was a “qualified elector” or a “registered voter” in the election. | ⅞After reviewing the record and finding it totally devoid of evidence to show the plaintiff was a qualified elector or registered voter, we rejected the plaintiffs challenge for failure to disclose a right or interest in the plaintiff to institute suit.

The only significant difference between the instant case and Booth, supra, is that this objection to candidacy was brought by the district attorney, rather than by a registered voter. However, the above-quoted language of the statute shows that regardless of whether the action is brought by a registered voter directly, or is brought by the district attorney based on evidence presented by a registered voter, standing to object to candidacy must rest ultimately with a registered voter; a district attorney acting solely on his own has no standing to object to candidacy. Thus, when the record is devoid of any evidence of standing, as was true in Booth and is true in this case, the objection to candidacy must be rejected.

IMPARTIALITY

A judge must perform the duties of his office impartially and diligently, and while a judge understandably' will occasionally ask questions during trial, there is an importance between asking questions that help clarify, and asking questions that effectively favor one side by revealing a flaw in that side’s case that then can be remedied; such help can affect the outcome of the case and has no place in our adversarial system.

In this case, we particularly note the trial court’s pointing out the need for evidence concerning the location of the district lines, and after receiving evidence on that subject, without any explanation of procedure to Lewis, |ssimply asking if there was any more evidence, declining to wait on the one piece of evidence mentioned by Lewis, and proceeding to announce the disqualification judgment.


author: COOKS, Judge. GENOVESE, J.,

text:
    Joseph AGUILLARD, et al. v. CITY OF LAKE CHARLES.
    No. 07-189.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 26, 2007.

      Michael K. Cox, Cox, Cox, Filo, Camel & Wilson, Lake Charles, LA, Lawrence C. Billeaud, Lafayette, LA, for Plaintiffs/Ap-pellees, Joseph Aguillard, et al.
    H. Alston Johnson III, Baton Rouge, LA, Gregory W. Belfour, Lake Charles, LA, for Defendanf/Appellant, City of Lake Charles.
    Court composed of SYLVIA R. COOKS, GLENN B. GREMILLION, and JAMES T. GENOVESE, Judges.
   COOKS, Judge.

| T STATEMENT OF THE CASE

The City of Lake Charles (City) appeals the judgment of the trial court granting the firefighters’ motion for partial summary judgment on the issue of liability, finding the City violated La.R.S. 33:2005 by reducing their compensation once they began receiving state supplemental pay. For the reasons assigned below, we affirm the decision of the trial court.

STATEMENT OF THE FACTS

The Plaintiffs are firefighters currently and formerly employed by the City of Lake Charles and are members of the Lake Charles Firefighters Association Local 561, AFL-CIO (Union). The City entered into a collective bargaining agreement with the firefighters’ Union, the relevant portion of which is contained in Section E of Article XVI, Wages, and provides as follows:

In addition to the minimum monthly salary now paid by the City of Lake Charles to Firemen of the Lake Charles Fire Department, covered by this contract, the City of Lake Charles agrees to pay a Fireman, after the first full month of employment, a separate monthly payment of ONE HUNDRED SIXTY FIVE AND NO/100 (165.00) DOLLARS per month (or whatever the beginning level of State Supplemental pay shall be) for the period of time the employee receives State Supplemental salary under the provisions of LSA-RS 33:2002, at which time this payment shall be terminated. The City of Lake Charles will pay ONE HUNDRED SIXTY FIVE AND NO/100 $165.00 DOLLARS per month (or whatever the beginning level of State Supplemental pay shall be) for any month after the first full month of employment for which the employee does not receive State Supplemental pay. The parties hereto agree that the purpose of this section is to encourage employees to seek employment with the Lake Charles Fire Department and to remain with the Lake Charles Fire Department. The parties agree that the Union and all employees which it represents, are estopped from claiming additional compensation under the provisions of LSA-RS 33:1992, because of the payment by the City under this section. The parties to this agreement understand and agree that the Union shall join with the City in resisting any action filed by any employee or former employee of the Lake Charles Fire Department claiming additional compensation under the provisions of LSA-RS 33:1992 because of payment by the City under this section, and that the Union shall bear its own share of attorney fees Land expenses incurred in defending any such suit, and shall take all legal and reasonable steps to discourage action and defeat any such suit, and knows of no threatened or contemplated action against the City or the Union in that regard. The parties to this agreement understand if any action is filed by an employee, or former employee, of the Lake Charles Fire Department, payments by the City of Lake Charles hereunder shall terminate immediately, but shall be reinstated if the suit is dismissed, or if the courts rule in favor of the City of Lake Charles.

Article XXI, Severance Provisions provide, in relevant part:

Should any provisions of this agreement be found to be in violation of any Statutory or Constitutional provision, State or Federal or City Charter, by a court of competent jurisdiction, all other provisions of this agreement shall remain in full force and effect for the duration of this agreement.

The Plaintiffs’ petition contends “[e]ach and every time a fire fighter receives and/or received an increase in state supplemental pay, defendant decreased and continues to decrease that fire fighter’s base pay by a corresponding amount.” The firefighters assert this decrease in salary and benefits by the City violates La.R.S. 33:2005, which provides in relevant part:

Any reduction of the salary of any employee covered by this Subpart, which is in effect on July 1, 1979, whether by the governing authority or by any pay plan under the provisions of any civil service law, or otherwise, shall be void where it is made solely by reason of the additional compensation by the state, provided for in this Subpart. Any appropriation made by the legislature which results in a salary adjustment to the state supplemental pay program under this Subpart shall not have the effect of reducing or replacing any base salary or benefits paid by the local governing authority from other revenue sources.

A similar issue was recently addressed by this court in Bailey v. City of Lafayette, 05-29 (La.App. 3 Cir. 6/1/05), 904 So.2d 922, 924, writs denied, 05-1054, 1690, 1691, 1692 (La.1/9/06), 918 So.2d 1054, 1055. In Bailey, police officers and firefighters asserted the City of Lafayette violated La. R.S. 33:2005 “relative to the pay of its police officers and firefighters by reducing the portion the City contributes to each police officer/firefighter by the amount each received in state supplemental |3pay.” Id. at 923. The trial court granted summary judgment in favor of the firefighters and this court affirmed finding the advance pay given to firefighters was part of a benefit package and any reduction by the City solely because of state supplemental pay was clearly prohibited. This court held La.R.S. 33:2005 “is intended to be a direct benefit to the public servants themselves, rather than a means of fiscal relief for the municipality.” Id. at 924, quoting Atty. Gen. Opin. No. 90-574.

In the present case, the City of Lake Charles paid its firefighters a minimum monthly salary. After the first full month of employment, the City paid to each firefighter an additional sum equal to the extra compensation required to be paid by the State under La.R.S. 38:2002. .The purpose of this payment, as stated in the collective bargaining agreement, is “to encourage employees to seek employment with the Lake Charles Fire Department and to remain with the Lake Charles Fire Department.” The contract further provided once the firefighter began receiving state supplemental pay, the separate monthly payment by the City was terminated. We find this extra compensation is clearly a benefit to -the firefighter within the. contemplation of the statute and discontinuing this benefit upon receipt of state supplemental pay “where it is made solely by reason of the additional compensation by the state” is clearly a violation of the statute and is in direct conflict with our ruling in Bailey. La.R.S. 33:2005; See also Hayes v. City of Alexandria, 629 So.2d 435 (La.App. 3 Cir.1993).

However, unlike Bailey, in the present case, the Union signed-a collective bargaining agreement with the City on behalf of the firefighters. In the agreement the City enticed individuals into employment by offering an additional amount above their base pay, something other municipalities with more limited funds may not be able to do. The City then withdrew the benefit once the state supplemental pay 1¿began. Although this actions was in direct violation of the statute, the City relies on the collective bargaining agreement with the Union and asserts the contract prevents the firefighters from claiming a violation under the statute and from seeking relief. The issue presented for our review is whether the City and the Union can agree to a reduction in benefits in direct conflict with a state statute. We find they cannot.

Louisiana Revised Statutes 33:2002, which provides state supplemental pay for fireman, and La.R.S. 33:2005, which prohibits the municipality from reducing its financial obligation to firefighters based on the State supplemental pay, were enacted as public policy statutes. The establishment of minimum wage standards, working conditions, and benefits for firefighters is not left to the discretion of each individual municipality, but is within the “plenary power of the legislature” under the State constitution. New Orleans Firefighters Association v. Civil Service Commission, 422 So.2d 402, 409 (La.1982). The State has a “compelling state interest” in establishing a minimum standards for firefighters and police officers and ensuring that those standards are met by municipalities. Id. Legislative oversight is necessary to guarantee that all Louisiana citizens, regardless of their geographic location, will be provided with effective police and fire protection. “If the lawmaking branch were restricted either by geographical limitation or the policy of other agencies in considering socioeconomic data and formulating fair labor standards, it would be impossible for it to establish a minimum wage or a standard working condition pursuant to its own conception of state policy.” Id. at 407. The public purpose behind the enactment of these provisions would be defeated if municipalities were allowed to contractually avoid their responsibility under statutes. La.Civ. Code art. 7; Becht v. Morgan Buildings & Spas, Inc., 01-1091 (La.App. 1 Cir. 6/2/02), 822 So.2d 56, affirmed, 02-2047 (La.4/23/03), 843 So.2d 1109, cert. denied, 540 U.S. 878, 124 S.Ct. 289, 157 L.Ed.2d 142 (2003). We find, at the time the collective bargaining agreement between the City and the Union was entered, La.R.S. 33:2005 prohibited the parties from contractually agreeing to reduce a firefighters’ monthly payment by the amount advanced by the City in anticipation of the State supplemental pay. We note the legislature recently amended La.R.S. 33:2002 to allow municipalities to reduce the wages of firefighters after the first year, provided this reduction is disclosed in writing at the time the employee is hired. However, this provision provides a substantive change in the law and cannot be applied retroactively.

The City contends if it is determined that a portion of the agreement is in contravention of the statute, the entire agreement should be voided. If we were to nullify the wage agreement and return the parties to the status quo, the City will accomplish indirectly what the law prohibits it from doing directly, that is, negotiating a salary with benefits at a stated amount and then eventually nullifying it to claim an offset. Moreover, the collective bargaining agreement signed by the City also contains a Severance clause which provides in the event any provisions of the agreement are found to be in violation of a statute “all other provisions of this agreement shall remain in full force and effect for the duration of this agreement.”

DECREE

Based on the foregoing review of the record, we affirm the decision of the trial court granting the partial summary judgment. All costs of this appeal are assessed to the City of Lake Charles.

AFFIRMED.

GENOVESE, J., dissents and assigns written reasons.

GENOVESE, J.,

dissenting.

hln order for this court to render an opinion relative to a violation, vel non, of La.R.S. 33:2005, there must be evidence in the record as to “base salary or benefits” of the firefighters. There is none. This case is not ripe for summary judgment. My dissent is based solely on the eviden-tiary posture of this case. We cannot address the key issue of whether the City of Lake Charles’s reduction of firefighter pay proportionate to its receipt of state supplemental pay violated La.R.S. 33:2005 without evidence in the record of the base pay and benefits afforded Plaintiffs. This case differs from Bailey v. City of Lafayette, 05-29 (La.App. 3 Cir. 6/1/05), 904 So.2d 922, writ denied, 05-1690 (La.1/9/09), 918 So.2d 1054, in that regard and in other aspects. Therefore, genuine issues of material fact remain, and this court cannot rule, as a matter of law, that Plaintiffs are entitled to summary judgment. Therefore, I dissent on evidentiary grounds and would reverse the trial court’s grant of summary judgment in favor of the Plaintiffs.