author: JAMES F. McKAY, III, Judge. TOBIAS, J., CANNIZZARO, J.,

text:
    The TROTH CORPORATION d/b/a Personnel Consulting Group v. DEUTSCH, KERRIGAN & STILES, L.L.P.
    No. 2006-CA-0457.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 24, 2007.

      David M. Prados, Lowe, Stein, Hoffman, Allweiss & Hauver, L.L.P., New Orleans, Louisiana, for Plaintiff/Appellee.

      Joseph L. McReynolds, Kerrie T. Bel-some, Deutsch, Kerrigan & Stiles, L.L.P., New Orleans, Louisiana, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY III, Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge LEON A. CANNIZZARO, Jr.).
   JAMES F. McKAY, III, Judge.

I,The defendant, Deutsch, Kerrigan & Stiles, L.L.P. (“DKS”), appeals the trial court’s award of attorney fees and costs to the plaintiff, the Troth Corporation d/b/a Personnel Consulting Group (“PCG”). For the reasons assigned, we affirm.

FACTS AND PROCEDURAL HISTORY

PCG, a professional personnel placement firm, filed suit against DKS, a New Orleans law firm, for a fee owed PCG for placement of the director of administration at DKS. On November 7, 2003, the trial court rendered judgment in favor of PCG. The judgment rendered was in the amount of PCG’s claimed damages of $33,000.00 plus costs and judicial interest, but did not include an award of attorney fees. PCG filed a motion for new trial, asking that the court reconsider its refusal to award attorney fees and that it also set the date from which interest was to run. The trial court declined to award attorney fees, but ruled that interest would run from the date suit was filed by PCG. DKS appealed the November 7, 2003 judgment.

In an unpublished opinion on January 26, 2005, this court affirmed the trial court’s award of $33,000.00 to PCG. We amended the judgment to order that judicial interest accrue from the date demand was first made on DKS. We reversed 12the trial court, however, with regard to the award of attorney fees, and remanded for a determination of reasonable attorney fees. DKS’s motion for rehearing was denied. The Troth Corporation d/b/a Personnel Consulting Group v. Deutsch, Kerrigan & Stiles, L.L.P., 2004-0605 (La.App. 4 Cir. 1/26/05, 893 So.2d 237), unpub.

After the matter was remanded, DKS paid the trial court’s award of $33,000.00 plus interest. Attorney fees were not paid. Pursuant to a motion to set fees and costs filed by PCG, the trial court rendered judgment on July 25, 2005, awarding PCG $31,595.90 in attorney fees and costs as follows: $22,654.65 in costs and fees up to the end of trial; $2,140.58 for the motion for new trial; $5,828.92 for the appeal; and $971.78 for the motion for rehearing filed by DKS. Additionally, PCG was awarded $500.00 in attorney fees for the motion to set fees and costs.

DKS’s suspensive appeal of the July 25, 2005, judgment followed. PCG filed an answer to the appeal seeking additional attorney fees and damages against DKS for the filing of what PCG alleges to be a delaying and meritless appeal. On appeal, DKS asserts two assignments of error. First, the trial court awarded unreasonable and excessive attorney fees and costs. Second, the trial court awarded attorney fees and costs not permitted under La. R.S. 9:2781, which limits fees to those incurred in the prosecution and collection of the plaintiffs claim.

DISCUSSION

This case is undisputedly a suit on open account. Pursuant to the open account statute, La. R.S. 9:2781(A), when any person fails to pay an open account within fifteen days after receipt of written demand therefore correctly setting forth the amount owed, that person shall be liable to the claimant for reasonable attorney 1 ¡¡fees for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant.

Because an award for attorney fees is exceptional and penal in nature, the statute must be strictly construed and its provisions fully complied with before an award of attorney fees may be made. Montgomery Stire & Partners, Inc. v. London Livery, Ltd., 99-3145, p. 6 (La.App. 4 Cir. 9/20/00), 769 So.2d 703, 706, citing Frank L. Beier Radio, Inc. v. Black Gold Marine, 449 So.2d 1014 (La.1984). In order to recover attorney fees in an action on open account, the party seeking the attorney fees is required to produce evidence to show that the amount owed was correctly set forth in a demand letter and was supported by invoice(s). Id.

The trial court is vested with great discretion in arriving at an award of attorney fees. The exercise of this discretion will not be reversed on appeal without a showing of clear abuse of discretion. Kem Search, Inc. v. Sheffield, 434 So.2d 1067, 1070 (La.1983); Walker, Tooke & Lyons, L.L.P., 37,966, p. 9 (La.

The factors to be considered by the trial court in making an award of attorney fees are: “ultimate result obtained; responsibility incurred; importance of the litigation; amount involved; extent and character of labor performed; legal knowledge; attainment and skill of the attorney; number of appearances made; intricacies of facts and law involved; diligence and skill of counsel; court’s own knowledge; and ability of party liable to pay.” S. Jackson & Son, Inc. v. Aljoma Lumber, Inc., 93-2531 (La.App. 4 Cir. 5/26/94), 637 So.2d 1311, 1313.

4In the present case, PCG presented the trial court with a Ledger History prepared by its attorneys, Lowe, Stein, Hoffman, Allweiss & Hauver, L.L.P., showing fees and costs incurred in connection with PCG’s action against DKS in the amount of $31,595.90. The trial court reviewed the evidence and awarded PCG the entire amount requested plus $500:00 attorney fees and costs in connection with the motion to set. The billing records of PCG’s attorneys reflect work performed from April 4, 2002 through March 7, 2005. PCG maintains that the award of attorney fees was not excessive considering the matter involved a two day trial, the taking of four depositions, at least two attempts at settlement meetings, and post-trial appearances on the motion for new trial and on DKS’s first appeal. We agree.

It is clear from the record that DKS has not questioned the billing records presented by the attorneys for PCG. In fact, in its opposition to PCG’s motion to set fees and costs, DKS specifically stated that it does’ not challenge the accuracy of the hours PCG’s attorneys may have spent on this case.

After our own review of the record, we find that the evidence supports the award of attorney fees. Considering the time and effort involved in litigating this matter, we conclude that the award is not excessive. Moreover, the trial judge was involved in this lawsuit from the beginning and had extensive knowledge of the facts and the amount and quality of work performed by counsel for PCG when it ruled. Accordingly, we find no abuse of discretion.

DKS submits that the attorney fees award is also unreasonable because it is not confined to attorney fees for the actual prosecution of PCG’s claim as provided |fiby La. R.S. 9:2781. More specifically, DKS asserts that the award should not have included attorney fees for PCG’s motion for new trial, PCG’s appeal of the trial court’s denial of motion for new trial, and PCG’s motion to set fees and costs. We note that DKS cites no authority in support of this argument.

La. R.S. 9:2781 provides that attorney fees are owed for the prosecution and collection of a claim due on open account. In the present case, the attorney fees awarded by the trial court were clearly rendered in connection of PCG’s prosecution and collection of its claim against DKS. Accordingly, we find no merit in DKS’s second assignment of error.

Finally, PCG filed an answer to this appeal, seeking additional attorney fees and costs in connection with this appeal. PCG asserts that it is also entitled to damages for having to defend a merit-less appeal pursuant to La. C.C.P. 2164.

La. C.C.P. art. 2164, which allows damages for a frivolous appeal, is penal in nature and must be strictly construed in favor of the appellant. Levy v. Levy, 2002-0279, pp. 17-18 (La.App. 4 Cir. 10/2/02), 829 So.2d 640, 650. Appeals are favored in the law and no penalties should be awarded for a frivolous appeal unless it is manifestly clear that the appeal was taken solely for delay or that the appealing counsel does not sincerely believe in the view of the law that he is advocating. Haney v. Davis, 2004-1716, p. 11, (La.App. 4 Cir. 1/19/06), 925 So.2d 591, 598. Any doubt regarding the frivolous nature of an appeal must be resolved in favor of the appellant. Id.

As stated in Tillmon v. Thrasher Waterproofing, 2000-0395, p. 8 (La.App. 4 Cir. 3/28/01), 786 So.2d 131, 137, this court is reluctant to grant frivolous appeal damages because of the chilling effect it may have on the appellate process. Applying the rule of strict construction against PCG, and considering the record in | fithe present case, we do not find that this appeal is unquestionably frivolous; and, under the circumstances, damages are not warranted.

CONCLUSION

The judgment of the trial court is affirmed.

AFFIRMED.

TOBIAS, J., concurs in part and dissents in part.

CANNIZZARO, J., dissents with reasons.

TOBIAS, J.,

concurring in part and dissenting in part.

hi respectfully concur in the majority’s decision almost in its entirety, but dissent in one small part. I find that we are required to award The Troth Corporation additional attorney’s fees for the defense of this appeal, and would have increased the attorney’s fees award to The Troth Corporation by $1,000.00. Accordingly, I would have amended the judgment and as amended affirmed the judgment.

CANNIZZARO, J.,

dissenting.

hi respectfully dissent from the majority opinion. I think that the full amount of the attorneys’ fees awarded in this case was not proven and was excessive.

In Kem Search, Inc. V. Sheffield, 434 So.2d 1067, 1070 (La.1983), the Louisiana Supreme Court stated in a suit involving La. R.S. 9:2781 that “[t]he trial court is given discretion in setting this award, but excessive attorney’s fees are prohibited by disciplinary rules of this court.” In Frank L. Beier Radio, Inc. v. Black Gold Marine, Inc., 449 So.2d 1014, 1015-16 (La.1984), the Supreme Court further stated that La. R.S. 9:2781 should be strictly construed, “because the award of attorney fees is exceptional and penal in nature.”

In S. Jackson & Son, Inc. v. Aljoma Lumber, Inc., 93-2531 (La.App. 4 Cir. 5/26/94), 637 So.2d 1811, 1313, this Court discussed the factors to be considered by the trial court in making an award of attorney’s fees. The factors included the following: (1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) the amount involved; (5) the extent and character of the labor performed; (6) the legal knowledge required; (7) the attainment and skill of the attorney; (8) the number of appearances made; (9) the intricacies of the facts and law involved; (10) the diligence and skill of the attorney; (11) the court’s own knowledge; and (12) the ability to pay of the party who is liable for the ^attorney’s fees. See also Hoskins v. Ziegler, 506 So.2d 146, 148 (La.App. 4th Cir.1987).

In Dutel v. Touzet, 94-0978 (La.App. 4 Cir. 1/19/95), 649 So.2d 1084, this Court considered the evidence required for a claimant to carry his burden of proof for purposes of an award of attorneys’ fees under La. R.S. 9:2789. This Court held that an attorney, who was the claimant on a suit on an open account, proved his entitlement to his fees in collecting on the account. This Court found that the hourly rate, to which the parties agreed, was not excessive. Additionally, there was “substantial testimony in the record ... regarding the nature and extent of the work done in the matter which warrants the fee charged.” 649 So.2d at 1087.

In the instant case, however, there was no testimony from the Personnel Consulting Group regarding the factors that courts are to consider in determining the reasonableness of attorneys’ fees. The only evidence of the attorneys’ fees in the record before us consists of (1) a ledger listing the attorneys’ fees and costs that were charged to the Personnel Consulting Group for the time period from April 4, 2002, until May 9, 2005, (2) copies of invoices for four depositions, and (3) itemized statements of Lowe, Stein, Hoffman, Allwiess & Hauver, L.L.P. dated September 8, 2004, October 12, 2004, November 8, 2004, December 6, 2004, January 12, 2005, and February 10, 2005. Although this documentary evidence established the amount of the fees billed to the Personnel Consulting Group, there is no evidence in the record before us upon which a determination regarding several of the factors set forth in the S. Jackson & Sons case can be made. The list of the statement amounts contains no information regarding these factors, and the itemized statements, which together total only about $6,000 of the $31,595.90 | ¡¡award made by the trial court, contain minimal information from which a determination regarding these factors can be made.

With respect to the amounts explained on the itemized statements, I cannot say that the trial court judge abused her discretion in including those amounts in the award she made. With respect to the majority of the award, however, I think that the trial court judge abused her discretion in making an award based on the amounts listed in the ledger that were not even supported by a minimally sufficient itemized statement. There was nothing in the ledger to explain what services were rendered or the amount of time it took to render those services, and these were the services that were rendered prior to and during the trial, when the bulk of the legal work was done. Certainly, there was nothing to indicate whether the fees and charges listed on the ledger were reasonable.

Nevertheless, I think that the Personnel Consulting Group is entitled to reasonable attorneys’ fees under La. R.S. 9:2781. In its brief, Deutsch Kerrigan suggested that $15,825.00 in attorneys’ fees and costs is “more than reasonable” under the circumstances. Deutsch Kerrigan also stated in its brief that it had no way to challenge the accuracy of the attorneys’ calculation of the number of hours of professional services that were rendered. Deutsch Kerri-gan contends, however, that the attorneys’ fees in this case were excessive considering the factors set forth in the Hoskins case, which were reiterated in the S. Jackson & Sons case.

I agree. Because I think that the trial court judge abused her discretion in awarding part of the attorneys’ fees, I think that a review of the record should have been conducted to determine what would constitute reasonable attorneys’ fees in this case.

      . It was undisputed that the amount of the fee, $33,000.00, represented 30% of the employee’s first year salary.

      . Although not an issue on this appeal, the trial court denied PCG's request for costs associated with the taking of four depositions.

        . For example, entries on the itemized statements include such things as "legal research,” "prepare brief,” and “review record” and do not give the details of what this work involved.


source: Caselaw Access Project

author: MAX N. TOBIAS, Jr., Judge.

license: Public Domain

text:
    Jerry BEARD v. SEACOAST ELECTRONICS, INC.
    No. 2006-CA-1244.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 24, 2007.

      Alexandra E. Mora, Law Office of Alexandra Mora, New Orleans, LA, for Jerry Beard.
    S. Mark Klyza, Rachel E. Linzy, The Kullman Firm, A.P.L.C., New Orleans, LA, for Seacoast Electronics, Inc.
    (Court Composed of Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, and Judge MAX N. TOBIAS Jr.).
   MAX N. TOBIAS, Jr., Judge.

kThe plaintiff/appellant, Jerry Beard (“Beard”), appeals from the summary judgment entered in favor of the defendant/appellee, Seacoast Electronics, Inc. (“Seacoast”), partially dismissing Beard’s suit. After reviewing the record and applicable law, we affirm the judgment.

Seacoast services and inspects marine electronic equipment. Beard was hired by Seacoast in December 2004 as a field engineer/technician. One of Beard’s duties was to inspect marine electronic equipment on ocean-going vessels. Beard was originally stationed at Seacoast’s Jacksonville, Florida office, but was transferred to the New Orleans office on 7 March 2005.

On or about 22 March 2005, Beard drafted a letter to Seacoast’s president, Art Thomas (“Thomas”), expressing his dissatisfaction and frustration with his co-workers and the New Orleans office. Beard did not send the letter at that time.

On 28 March 2005, Beard was assigned to inspect a vessel. During the inspection, he concluded that a piece of the ship’s equipment, an EPIRB (one of the vessel’s ways to emit a distress signal) was broken, and that he could not issue 12a valid certification based on his understanding of the Federal Communications Commission (“FCC”) rules. Seacoast representatives disagreed with Beard and issued the certificate to the vessel.

On 30 March 2005, Beard drafted a second letter to Thomas expressing his concern that the issuance of the certification did not comply with FCC rules. Beard emailed his 22 March and 30 March 2005 letters to Thomas on 30 March.

By e-mail communication dated 31 March 2005, Thomas informed Beard that he viewed the 22 March letter as a resignation, which Thomas accepted. Beard contends that he was terminated because he complained about Seacoast’s issuance of the above-referenced certification which he contends violated FCC rules.

On 12 May 2005, May Beard filed suit, alleging, inter alia, that his termination violated the Louisiana Whistleblower Statute, La. R.S. 23:967. It is uncontested that Beard relies only on federal law as the only legal authority allegedly violated by Seacoast.

Seacoast filed a motion for summary judgment on the basis that the Louisiana Whistleblower Statute, La. R.S. 23:967, does not protect private persons unless they allege a violation of state law. The trial court granted summary judgment in Seacoast’s favor on 14 July 2006, and designated the ruling as a final judgment after an express determination that no just reason for delay existed. This devolutive appeal followed.

13As an appellate court, we are bound to review the trial court’s summary judgment de novo. Guillory v. Interstate Gas Station, 94-1767, p. 5 (La.3/30/95), 653 So.2d 1152, 1155. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, admissions on file, and/or affidavits show that no genuine issue of material fact exists. La. C.C.P. art. 966 B. Summary judgment is favored and is designed to secure “the just, speedy, and inexpensive determination” of litigation. La. C.C.P. art. 966 A(2). If a plaintiff fails to put forth evidence that he can carry his burden at trial on any crucial element of the cause of action asserted, summary judgment is appropriate. La. C.C.P. art. 966 C(2).

The Louisiana Whistleblower Statute provides protection to an employee against reprisal from the employer for reporting or refusing to participate in illegal work practices. Seacoast argues that it is clear from the wording of the statute and prior jurisprudence that Beard must allege a violation of state law in order to prevail on the merits of the case. Beard contends, however, that because La. R.S. 23:967(A)(3), reads “violation of law,” his cause of action is not limited to state law violations, but encompasses violations of federal law as well.

4In Hale v. Touro Infirmary, 04-0003 (La.App. 4 Cir. 11/3/04), 886 So.2d 1210, writ denied, 05-0103 (La.3/24/05), 896 So.2d 1036, the same issue was presented to the court as a matter of first impression. In that case, we stated:

We further agree that the violation of law in question must be that of a state statute. The first subsection detailing under what circumstances an employer may not take “reprisals” clearly states that the employee must be aware of a violation of state law. The two subsequent subsections prohibit reprisals against employees who not only know of the violation and report it to their employers, but who also testify before public bodies or simply refuse to participate in the illegal activity. Although the language of the statute is inconsistent, the interpretation that is supported by the structure and that fits best into the framework of the statute is one that holds the statute to its most specific terms, ie., violations of state law only.

Id. at pp. 9-10, 886 So.2d at 1216. (Footnotes omitted.)

Beard relies on federal law rendered before Hale to support his position that La. R.S. 23:967(A)(3) permits him to sue for violations of federal law. However, while decisions of federal appellate courts are considered persuasive, they are not binding on the courts of this state. State v. White, 321 So.2d 491, 494 (La.1975). In addition, Beard argues that we need not follow any precedent as a civilian court. We, however, find that our decision in Hale is directly on point and, therefore, is binding precedent on this court.

Based on the foregoing, we affirm the judgment of the trial court.

AFFIRMED.

      . Beard also asserted a claim for defamation that is not before this court; that part of his suit remains unresolved.

      . La. R.S. 23:967 reads as follows:
      A. An employer shall not take reprisal against an employee who in good faith, and after advising the employer of the violation of law:
      (1) Discloses or threatens to disclose a workplace act or practice that is in violation of state law.
      (2) Provides information to or testifies before any public body conducting an investigation, hearing, or inquiry into any violation of law.
      (3) Objects to or refuses to participate in an employment act or practice that is in violation of law.


author: WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana v. Leonard BOZEMAN.
    No. 06-KA-679.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 30, 2007.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Andrea F. Long, Donald A. Rowan, Jr., Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   WALTER J. ROTHSCHILD, Judge.

|2This is defendant’s second appeal. As a result of his first appeal, this Court vacated defendant’s conviction and sentence for armed robbery, finding that the trial court erred in denying defendant’s challenge for cause during jury selection, and this Court remanded the matter for a new trial. State v. Bozeman, 03-897 (La.App. 5 Cir. 1/27/04), 866 So.2d 1029, writ denied, 04-0497 (La.7/2/04), 877 So.2d 141. On remand, the trial court conducted a hearing to determine whether or not defendant would be permitted to call an expert in eyewitness identification at trial. At the conclusion of the hearing, the trial court ruled that testimony from defendant’s expert would not be admitted at trial. Defendant sought review of this ruling, but writs were denied by this Court on November 30, 2004 and by the 3Louisiana Supreme Court on April 1, 2005. State v. Bozeman, 04-3194 (La.4/1/05), 897 So.2d 601.

On July 26, 2006, defendant entered a plea of guilty pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) and, pursuant to State v. Crosby, 338 So.2d 584 (La.1976), he reserved his right to appeal the trial court’s pre-trial ruling. Defendant was sentenced to twenty-five years at hard labor without the benefit of parole, probation, or suspension of sentence. He now comes before this Court on his second appeal.

FACTS

The facts of this case were previously set forth in State v. Bozeman, supra at 1031, as follows:

At approximately 11:00 p.m. on August 10, 2002, Samantha Lore was working at an E-Z Serve on Metairie Road when a man, later identified as defendant, Leonard Bozeman, came to the counter with two small bottles of Gatorade. After Ms. Lore rang up the drinks, Leonard Bozeman pointed a gun at her and said, “put the money in the bag, b* * * *.” Ms. Lore testified that Leonard Boze-man specifically demanded twenty-dollar bills, but Ms. Lore stated that she did not have any so she proceeded to give him five-dollar bills. She explained that he made her lift the cash register drawer to make sure there were no twenty-dollar bills under it. He then took all the loose change from the drawer, counting it as he took it.
Leonard Bozeman started to move toward the door, but turned back and demanded Kool cigarette cartons. Ms. Lore testified that there were no cartons so she gave him all the loose packs she could find. Leonard Bozeman left the store taking the money, cigarettes, and several pairs of sunglasses.
Ms. Lore testified that she immediately called the police and her manager. She explained that when the police arrived, she gave the officer a description of the perpetrator. About a week later, the police came to her home and showed her a photographic lineup. She testified that she identified Leonard Bozeman out of the photographic lineup as the person who robbed her ^because “it was definitely him.” Ms. Lore again positively identified Leonard Bozeman in court as the perpetrator three separate times during her testimony.

DISCUSSION

On appeal, defendant argues that the trial court erred in excluding the testimony of his expert pertaining to eyewitness identification, which effectively hampered his right to present a defense. He argues that expert testimony was needed to assist the jury in judging the evidence; namely, the reliability of the victim’s identification which was the only issue in dispute. Defendant acknowledges that the Louisiana Supreme Court ruled against the admission of expert testimony on eyewitness identification in State v. Stucke, 419 So.2d 939 (La.1982), but he contends that it is time to revisit the rationale of the old jurisprudence.

The State asserts that this Court already ruled on this issue when it denied defendant’s writ application on November 30, 2004. It contends there have been no new factual developments in the case or new jurisprudence that would require reconsideration of the prior ruling. Alternatively, the State argues that the Louisiana Supreme Court recently reaffirmed its position against the admissibility of expert eyewitness identification testimony in State v. Higgins, 03-1980 (La.4/1/05), 898 So.2d 1219, cert. denied, — U.S. -, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005). It also maintains the trial court did not abuse its wide discretion in excluding the expert testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

The record shows that a Daubert hearing was conducted on September 24, 2004 to determine the admissibility of the testimony of defense expert, Dr. John Brigham, pertaining to eyewitness identification. Dr. Brigham testified he was a professor of psychology at Florida State University and that he had spent the last |B25 years focusing his research on the factors that affect the accuracy of eyewitness memory. He stated that he has published several articles on the subject and has received several research grants, including one from the National Institute of Justice to study eyewitness memory.

Dr. Brigham explained that research on eyewitness identification started in the 1970’s. He testified about the various studies conducted and the statistical information gathered. He stated that from these studies he has learned that eyewitness memory is different from ordinary memory. Dr. Brigham then discussed factors that affect the reliability of eyewitness memory.

On cross-examination, Dr. Brigham admitted he has not always been allowed to testify about his studies. He stated he has been accepted as an expert 23 times in various courts across the country and denied expert status 30 to 40 times. He testified that studies on eyewitness memory and identification are widely accepted within the scientific community but acceptance varies from state to state in the legal realm.

At the conclusion of the hearing, the trial judge ruled that Dr. Brigham’s testimony was inadmissible. The trial judge explained that the testimony would confuse the jury more than it would assist them. He further stated the Code of Evidence prevents the admission of this type of testimony.

Thereafter, defendant filed an application for supervisory writs with this Court. This Court denied the writ stating, “On the showing made, we find no reason to exercise our supervisory jurisdiction.” Defendant then filed a writ application with the Louisiana Supreme Court, which was denied by a vote of four to three. On July 26, 2006, defendant pled guilty under North Carolina v. Alford, supra, and State v. Crosby, supra, reserving his right to appeal the trial court’s pre-trial ruling.

| blinder the doctrine of “law of the case,” an appellate court will generally refuse to reconsider its own rulings of law on a subsequent appeal in the same case. State v. Doussan, 05-586 (La.App. 5 Cir. 2/14/06), 924 So.2d 333, 339, writ denied, 06-608 (La.10/13/06), 939 So.2d 372. However, the appellate court’s denial of supervisory writs does not bar reconsideration of an issue on appeal, nor does it prevent the appellate panel from reaching a different conclusion on the issue. State v. Williams, 05-318 (La.App. 5 Cir. 1/17/06), 921 So.2d 1033, 1035, writ denied, 06-973 (La.11/3/06), 940 So.2d 654. Because this Court declined to exercise its supervisory jurisdiction and did not rule on the merits of defendant’s writ application, we find that the law of the case doctrine is inapplicable and we address the merits of defendant’s claim that the testimony of his expert should not have been excluded.

The admissibility of expert testimony is governed by LSA-C.E. art. 702 which states, “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determíne a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” The Louisiana Supreme Court has explained that “[generally, expert testimony, while not limited to matters of science, art or skill, cannot invade the field of common knowledge, experience and education of men.” State v. Stucke, supra at 945. The purpose of an expert witness, particularly in criminal cases, is to provide jurors with a basic knowledge and background on a subject, while the jury retains its ultimate role as fact finder. State v. Tran, 97-640 (La.App. 5 Cir. 3/11/98), 709 So.2d 311, 314.

In Daubert v. Merrell Dow Pharmaceuticals, Inc., supra, the United States Supreme Court set forth the following factors to be considered in determining the reliability of expert testimony: 1) whether the theory or technique has been 17subjected to peer review and/or publication, 2) the known or potential rate of error, 3) the testability of the theory or technique, and 4) whether the methodology is generally accepted in the scientific community. In State v. Foret, 628 So.2d 1116 (La.1993), the Louisiana Supreme Court adopted the test for reliability of expert scientific testimony set forth by the United States Supreme Court in Daubert, as a guide to determining the admissibility of expert testimony under LSA-C.E. art. 702.

In Foret, the Louisiana Supreme Court stated that the trial court was “to act in a ‘gatekeeping’ function to ‘ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” State v. Foret, supra at 1122, quoting Daubert. The court explained that “[t]he reliability of expert testimony is to be ensured by a requirement that there be a ‘valid scientific connection to the pertinent inquiry as a precondition to admissibility.’ ” It further stated “[t]his connection is to be examined in light of a ‘preliminary assessment’ by the trial court of ‘whether the reasoning or methodology properly can be applied to the facts in issue.” Id.

Prior to Daubert and Foret, the Louisiana Supreme Court decided State v. Stucke, supra. In Stucke, the defendant argued the trial court erred in excluding the testimony of an expert concerning the quality of an identification. The defendant asserted the testimony was necessary so the jury would have a standard against which they could evaluate the victim’s identification. The Louisiana Supreme Court held the trial court did not abuse its discretion in failing to allow the expert witness to testify and stated:

... the prejudicial effect of such testimony outweighs its probative value because of the substantial risk that the potential persuasive appearance of the expert witness will have a greater influence on the jury than the other | evidence presented during the trial. Such testimony invades the province of the jury and usurps its function.

State v. Stucke, supra at 945.

In State v. Higgins, 03-1980 (La.4/1/05), 898 So.2d 1219, 1239-1340, cert. denied, — U.S. -, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005), the Louisiana Supreme Court again ruled on the issue of the admissibility of expert testimony concerning the reliability of eyewitness testimony. The supreme court did not discuss or mention Daubert or Foret, but relied on its earlier decision in Stucke and concluded the expert testimony was properly excluded. Relying on Stucke, the court stated:

Because of the risk that expert testimony on eyewitness identification “will have a greater influence on the jury than other evidence presented at trial,” and because such evidence presents the danger of “ ‘invad[ing] the field of common knowledge, experience, and education of men [ ]’ ” this Court has held that the prejudicial impact of such evidence would substantially outweigh its probative value.

State v. Higgins, supra at 1240.

In Higgins, the supreme court found the testimony of Dr. John Brigham, the same expert in the present case, inadmissible. The supreme court noted Dr. Brigham would have testified regarding his findings after years of studying the reliability of eyewitness testimony. The court concluded the proposed expert testimony was being offered to diminish the credibility of an eyewitness and “likely presented an invasion into a reasonable juror’s common knowledge.” Id.

Likewise, in the present case, Dr. Brigham’s testimony was being offered to challenge the credibility of the victim’s identification. Thus, considering the applicable law and jurisprudence, especially State v. Higgins, supra, we find that the trial court did not err in excluding Dr. Brigham’s expert testimony. Accordingly, this assignment of error is without merit.

| aIn his second assignment of error, defendant requests an error patent review. This Court routinely reviews the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990) regardless of whether defendant makes such a request. This Court performed an error patent review of the original record in this case at the time of defendant’s first appeal. Thus, this error patent review was limited to the new proceedings conducted on remand. The following errors were noted.

The trial court failed to completely advise defendant of the prescriptive period for filing an application for post-conviction relief. According to the transcript, the trial judge advised defendant that he had “two years from the date the sentence becomes final to file post conviction relief applications.” This Court has held that the failure to advise a defendant that the prescriptive period runs from the time his conviction and sentence become final is incomplete. State v. Grant, 04-341 (La.App. 5 Cir. 10/26/04), 887 So.2d 596, 598. Although the commitment reflects that the notice stated that the prescriptive period runs from after judgment of conviction and sentence are final, when there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732 (La.1983). Thus, we remand the case and order the trial court to advise defendant by written notice within 10 days of the rendition of the opinion that he has two years from the date his conviction and sentence become final to file an application for post-conviction relief, and then to file written proof in the record that defendant received the notice. See State v. Williams, 05-59 (La.App. 5 Cir. 5/31/05), 904 So.2d 830, 835.

Also, although the commitment reflects defendant entered his guilty plea under North Carolina v. Alford, supra, it does not reflect defendant also entered his Lnplea under State v. Crosby, supra. Accordingly, in order to ensure an accurate record, we remand and order the trial court to correct the commitment to reflect that defendant entered his guilty plea under State v. Crosby, as well as North Carolina v. Alford.

DECREE

For the reasons set forth above, we affirm defendant’s conviction and sentence. We remand the matter and order the trial court to advise defendant of the proper prescriptive period for filing for post-conviction relief by sending him written notice within 10 days of the rendition of the opinion, and then filing written proof in the record that defendant received the notice. We further order the trial court to correct the commitment to reflect that defendant entered his guilty plea under State v. Crosby.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . Defendant was charged with two counts of armed robbery. He pled guilty to count one and was convicted by a jury on count two. He only appealed his conviction and sentence on count two.


author: SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Glenn H. LEMON.
    No. 06-KA-721.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 30, 2007.

      Paul D. Connick, Jr., District Attorney, 24th Judicial District, Parish of Jefferson, State of Louisiana, Terry M. Boudreaux, Thomas J. Butler, Frank A. Brindisi, Kia M. Habisreitinger, Assistant District Attorneys, Parish of Jefferson, State of Louisiana, Gretna, LA, for Plaintiff/Appellee, The State of Louisiana.
    Edward G. Partin, II, Attorney at Law, Pride, LA, for Defendant/Appellant, Glenn H. Lemon.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY, and SUSAN M. CHEHARDY.
   SUSAN M. CHEHARDY, Judge.

|2On his third appeal to this Court, Glenn H. Lemon seeks review of the ten-year sentence imposed for his conviction of aggravated battery. We affirm, but remand the matter for correction of patent errors.

On May 31, 2002, in Case Number 01-4099, 24th Judicial District Court, Parish of Jefferson, Glenn H. Lemon was convicted of aggravated battery, a violation of La.R.S. 14:34. He was sentenced to imprisonment at hard labor for ten years. After the defendant stipulated he was a second felony offender, the trial court vacated the sentence and imposed a habitual offender sentence of ten years’ imprisonment at hard labor.

On the same day, in Case Number 02-3218, 24th Judicial District Court, Parish of Jefferson, the defendant also pleaded guilty to battery on a police officer requiring medical attention, a violation of La.R.S. 14:34.2. He received a sentence of five years at hard labor without benefit of parole, probation or suspension of sentence, to be served consecutively to the habitual offender sentence in Case Number 01-4099.

On original appeal the defendant challenged only his aggravated battery conviction in Case Number 01^1099, which this Court affirmed on November 25, |32003. State v. Lemon, 03-828 (La.App. 5 Cir. 11/25/03), 860 So.2d 1181 (unpublished opinion), writ denied, 03-3519 (La.4/8/04), 870 So.2d 270.

Thereafter, the defendant challenged his sentences through post-conviction motions. The defendant’s appeal rights ultimately were reinstated through post-conviction relief, and the appeals for both cases were consolidated in this Court as State v. Lemon, under Case Number 05-KA-567 (24th J.D.C. Number 02-3218) c/w Case Number 05-KA-568 (24th J.D.C. Number 01-4099).

On February 14, 2006, this Court vacated the habitual offender determination and sentence in Case Number 01-4099 because the State had relied on a juvenile adjudication to enhance the defendant’s sentence. We reinstated the original sentence. State v. Lemon, 05-567, p. 7 (La.App. 5 Cir. 2/14/06), 923 So.2d 794, 798.

With respect to Case Number 02-3218, because the section of the statute to which the defendant had pleaded guilty did not prohibit parole, probation or suspension of sentence, we amended the defendant’s sentence on the conviction of battery of a police officer to impose a sentence of five years with the Department of Corrections, to be served consecutively with all previous sentences, and we remanded the case. Lemon, 05-567 at p. 14, 923 So.2d at 802.

On May 31, 2006, following remand, the trial court vacated both sentences and re-sentenced the defendant. For the conviction of battery on a police officer (Case Number 02-3218), the court sentenced the defendant to serve five years at hard labor “with benefit of parole, probation or suspension of sentence.” For the conviction of aggravated battery, (Case Number 01-4099), the court sentenced the defendant to ten years at hard labor, also “with benefit of probation, parole or suspension of sentence,” to be served consecutively with the sentence for battery on a police officer.

|4After the trial court denied his oral motion to reconsider the sentence, the defendant filed a timely motion for appeal as to the aggravated battery sentence only (Case Number 01-4099), which the trial court granted.

FACTS

Our unpublished opinion in State v. Lemon, 03-828 (La.App. 5 Cir. 11/25/03), 860 So.2d 1181, writ denied, 03-3519 (La.4/8/04), 870 So.2d 270, reflects that the defendant was convicted of aggravated battery after he shot the victim, Elbert Jordan, in the groin.

ASSIGNMENT OF ERROR NUMBER ONE

The defendant contends that his maximum ten-year sentence at hard labor is constitutionally excessive because he is a first felony offender. The defendant also contends the trial judge failed to state a factual basis for the sentence in compliance with La.C.Cr.P. art. 894.1. The State responds that the defendant is precluded from raising the 894.1 claim on appeal because he failed to raise that claim in a motion for reconsideration. The State further contends that the trial judge did not abuse his discretion in sentencing the defendant.

Prior to sentencing on May 31, 2006, the defendant’s attorney acknowledged that the defendant had a prior juvenile adjudication, but contended that imposing a ten-year sentence would be excessive because it was the maximum sentence for a first offender. After stating that he had refreshed his memory with the facts of the case, the trial judge sentenced the defendant to serve ten years at hard labor with benefit of probation, parole, or suspension of sentence. The defendant made an oral motion to reconsider the sentence, without stating any grounds, which the trial court denied.

5La.C.Cr.P. article 881.1(E) provides that the “[fjailure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.” Further, “[t]he failure to file a motion to reconsider sentence, or to state specific grounds upon which the motion is based, merely limits a defendant to a bare review of the sentence for constitutional excessiveness.” State v. Adair, 04-120, p. 3 (La.App. 5 Cir. 5/26/04), 875 So.2d 972, 974.

In his reply brief, the defendant points out that he stated specific grounds that are addressed by Article 894.1. He asserts, in particular, that the sentence was excessive because the defendant was a first felony offender. The defendant cites State v. Schieffler, 02-1047 (La.App. 5 Cir. 2/25/03), 841 So.2d 1000, writ denied, 2003-0741 (La.9/19/03), 853 So.2d 636, in which this Court held that the defendant failed to preserve for appellate review the issue of the trial court’s failure to consider statutory factors, where the defendant did not raise the issue in either his oral objection, his written motion for reconsideration of sentence, or his argument on the motion for reconsideration of sentence. Schieffler, 02-1047 at p. 4, 841 So.2d at 1003.

The defendant attempts to distinguish Schieffler on the basis that Schieffler raised constitutional concerns with the statute involved, whereas the defendant herein raised concerns specifically addressed by Article 894.1. However, Schieffler is indistinguishable because Schieffler, like the defendant in this case, did not raise the trial judge’s failure to comply with Article 894.1 in a motion to reconsider sentence in accordance with La. C.Cr.P. art. 881.1. Therefore, the 1 ^defendant in this case has not preserved the issue of the trial judge’s failure to comply with Article 894.1 for appeal.

Because the defendant did not preserve that ground for review, we are limited to reviewing for constitutional exces-siveness. The Eighth Amendment to the United States Constitution and Article I, Section 20 of the Louisiana Constitution prohibit the imposition of excessive or cruel punishment.

“A sentence is constitutionally excessive if it is grossly out of proportion to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering.” State v. Lobato, 603 So.2d 739, 751 (La.1992).

The three factors considered in reviewing a trial court’s sentencing discretion are the nature of the crime, the nature and background of the offender, and the sentences imposed for similar crimes by the same court and other courts. State v. Richmond, 97-1225, p. 6 (La.App. 5 Cir. 3/25/98), 708 So.2d 1272, 1275, citing State v. Telsee, 425 So.2d 1251 (La.1983). “The trial judge has wide discretion in the imposition of sentences within statutory limits, and the sentence imposed should not be set aside as excessive in the absence of a manifest abuse of discretion.” State v. Thompson, 02-333 (La.4/9/03), 842 So.2d 330, 338.

According toes La.C.Cr.P. 881.4(D), the appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. A conviction of aggravated battery carries a maximum sentence of ten years, with or without hard labor, and the possibility of a $5,000.00 fine. La.R.S. 14:34.

In addition, the defendant here could have received a sentence pursuant to the firearm enhancement provisions of La. C.Cr.P. art. 893.1, et seq. On May 1, 2002, the State filed a notice of intent to invoke the firearm enhancement provisions of La. C.Cr.P. art. 893.3(D). That article provides in pertinent part:

|7P. If the court finds by clear and convincing evidence that a firearm was actually used or discharged by the defendant during the commission of the felony for which he was convicted, and thereby caused bodily injury, the court shall impose a term of imprisonment of fifteen years; however, if the maximum sentence for the underlying felony is less than fifteen years, the court shall impose the maximum sentence.
F. A sentence imposed under the provisions of this Article shall not be suspended and shall be imposed in the same manner as provided in the felony for which the defendant was convicted.
G. A defendant sentenced under the provisions of this Article shall not be eligible for parole during the period of the mandatory minimum sentence.

In State v. Brown, 03-732, p. 6 (La.App. 4 Cir. 7/23/03), 853 So.2d 665, 669, the court recognized that the mandatory sentence for aggravated battery when the defendant is sentenced under La.C.Cr.P. art. 893.3(D) is ten years, and that parole is prohibited for the entire sentence. See also, State v. West, 01-969 (La.App. 3 Cir. 12/12/01), 801 So.2d 619.

In the present case, however, there was no mention of the firearm enhancement at either the original sentencing or the most recent sentencing on May 31, 2006. Further, the trial judge did not provide specific reasons for the sentence imposed. However, the trial judge is afforded wide discretion in determining a sentence, and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Uloho, 04-55, p. 23 (La.App. 5 Cir. 5/26/04), 875 So.2d 918, 933, writ denied, 2004-1640 (La.11/19/04), 888 So.2d 192.

Prior criminal activity is one of the factors to be considered by the trial judge in sentencing a defendant. State v. Washington, 414 So.2d 313, 315 (La.1982). The record reflects that the defendant was 17 years old at the time he shot the victim in the groin. He was 22 at sentencing on May 31, 2006. Although the |Rinstant conviction was the defendant’s first adult felony conviction, the defendant admitted at trial that he had prior juvenile adjudications for possession and distribution of cocaine when he was age fifteen. In addition, the defendant testified he began selling drugs when he was twelve.

In his brief, the defendant cites State v. Soraparu, 93-1636 (La.App. 4 Cir. 1/19/95), 649 So.2d 1100, 1105, in which the fourth circuit held that the maximum sentence of 40 years at hard labor for a 21-year-old first offender convicted of manslaughter was an abuse of discretion. However, the supreme court granted writs in part, reversed the court of appeal’s ruling, and reinstated the sentence imposed by the trial judge, stating as follows:

For legal sentences imposed within the range provided by the legislature, a trial court abuses its discretion only when it contravenes the prohibition of excessive punishment in La. Const, art. I, § 20, i.e., when it imposes “punishment disproportionate to the offense.” In cases in which the trial court has left a less than fully articulated record indicating that it has considered not only aggravating circumstances but also factors militating for a less severe sentence, ... a remand for resentencing is appropriate only when “there appear[s] to be a substantial possibility that the defendant’s complaints of an excessive sentence ha[ve] merit.” [Citations omitted.]

State v. Soraparu, 97-1027 (La.10/13/97), 703 So.2d 608.

In the present case, the trial judge familiarized himself with the record before imposing sentence. The record contains numerous certificates of the defendant’s accomplishments before he was sentenced on May 31, 2006. However, the record also reflects that the defendant had a history of selling drugs and that he had been adjudicated a delinquent for doing so. Moreover, the record reveals the victim suffered a permanent injury, since one of his testicles had to be removed as a result of being shot.

| ¡/The question presented when reviewing a defendant’s sentence is not “whether another sentence would have been more appropriate but whether the trial court abused its broad sentencing discretion.” State v. Jones, 99-2207 (La.1/29/01), 778 So.2d 1131, 1133.

We do not find the trial court abused its broad sentencing discretion and, hence, we cannot set aside the sentence.

ERROR PATENT DISCUSSION

We have found several patent errors that require remand for correction by the trial court.

First, the commitment in Case Number 01-4099 indicates that on May 31, 2006 the defendant stipulated he was a multiple offender, but the transcript does not reflect such a stipulation. The commitment provides in pertinent part:

The Defendant pleaded GUILTY under RS 15:621.1 on count 1) 14:34 F III BATTERY/AGGRAVATED
Plea was acceptable to the State.
Note of evidence taken.

In addition, the transcript reflects that the sentence was to be served concurrently with the sentence in case number 02-3218 (the conviction of battery on a police officer), whereas the transcript reflects that the trial judge ordered the sentence to be served consecutively.

Finally, the commitment does not reflect that the defendant was properly advised of the period for filing post-conviction relief, while the transcript reflects the trial judge so advised the defendant.

Generally, when there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983).

|inFor the foregoing reasons, the sentence appealed is affirmed. We remand the matter and instruct the district court to correct the commitment to conform with the transcript. We order the clerk of the district court to transmit the original of the corrected commitment to the officer in charge of the institution to which the defendant has been sentenced.

AFFIRMED; REMANDED FOR CORRECTION OF PATENT ERRORS.

      . See La.C.Cr.P.art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990).

      . See, State ex rel. Roland v. State, 06-244 (La.9/15/06), 937 So.2d 846.


author: MARION F. EDWARDS, Judge.

text:
    STATE of Louisiana v. Derrick MAZIQUE.
    No. 06-KA-708.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 30, 2007.

      Prentice L. White, Attorney at Law, Louisiana Appellate Project, Baton Rouge, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, Jr., MARION F. EDWARDS, and FREDERICKA HOMBERG WICKER.
   MARION F. EDWARDS, Judge.

| ¡¡.The defendant/appellant, Derrick Ma-zique (“Mazique”), appeals his adjudication as a third felony multiple offender. He was convicted of being a principal to distribution of cocaine, a violation of LSA-R.S. 14:24 and LSA-R.S. 40:967, on August 24, 2004 and sentenced to eight years at hard labor, two years without benefit of parole, probation, or suspension of sentence. This Court affirmed Mazique’s conviction and sentence.

Subsequently, the State of Louisiana (“the State”) filed a multiple bill of information alleging that Mazique was a third felony offender. Mazique denied the allegations and filed a Motion to Quash Multiple Bill of Information. The trial court denied both the written Motion to Quash as well as an oral motion to quash made during the hearing. After taking the matter under advisement following the hearing, the trial judge found Mazique to be a third felony offender and sentenced lshim to thirty years at hard labor, with two years of the sentence to be served without benefits.

The facts of Mazique’s present underlying conviction are contained in the original opinion. On appeal, Mazique argues that the district court committed reversible error when it used a prior misdemeanor conviction to enhance his sentence. Mazique contends that his conviction for attempted obscenity is not a felony for purposes of enhancement pursuant to the Habitual Offender Statute, because the trial court did not impose a death sentence or sentence him to hard labor. According to Mazique, this is not an “automatic” felony but, rather, his six-month sentence indicates that it was a misdemeanor conviction, since the trial court could have, but did not, order the sentence to be served at hard labor.

A felony is an offense that may be punished by death or by imprisonment at hard labor. LSA-C.Cr.P. art. 933; LSA-R.S. 14:2. A misdemeanor is any offense other than a felony. Although we do not have the benefit of any previous trial material, it is alleged that Mazique was previously convicted of attempted obscenity, a violation of LSA-R.S. 14:106 and LSA-R.S. 14:27, and sentenced to six months in prison with no indication that the sentence was to be served at hard labor. On a first conviction under LSA-R.S. 14:106, the sentencing exposure is a fine and/or imprisonment, with or without hard labor, for not less than six months or more than three years. Conviction of an attempt will result in a fine and/or imprisonment not to exceed one-half of the longest term of imprisonment prescribed for the offense so attempted. LSA-R.S. 14:27(D)(3). Because Mazique’s sentencing exposure for attempted obscenity was imprisonment for one and one-half years with or without hard labor, he was convicted of a felony which could be used to enhance his sentence. An offense that is potentially punishable by | imprisonment at hard labor is a felony and not a misdemeanor. This assignment of error is without merit.

Mazique also urges that the court erred when it took judicial notice of transcripts and other documents that the State failed to introduce into evidence, allowing the State to circumvent its burden of proof by using its own employees to establish Mazique’s identity for the habitual offender hearing. At that hearing, the State claimed that Mazique had two prior convictions: on December 5, 2001, he pled guilty to possession of cocaine, a violation of LSA-R.S. 40:967(C), and, on May 20, 2003, he was convicted of attempted obscenity, a violation of LSA-R.S. 14:106.

The State presented the testimony of Officers Steve Cupit and Allen Weber, Jr. to establish Mazique’s identity as the person who was convicted of the prior felonies. Both officers were employed by the St. John the Baptist Sheriffs Office and assigned to the District Attorney’s Office as investigators. At the hearing, the defense objected to the officers testifying to Mazique’s identity as the person who was convicted of the prior felonies because of an alleged conflict of interest based on their assignments with the District Attorney’s Office. The trial court ruled that the officers could testify even though there could be “more neutral” witnesses. Officer Cupit testified that he knew Mazique and had dealt with him on three occasions through his work at the District Attorney’s Office. Officer Cupit was present when Mazique entered a guilty plea on the drug charge. Officer Weber knew Mazique because he assisted the State during the attempted obscenity trial and was present during the plea negotiations between the State and the defense on the possession of cocaine charge. Both Officers Cupit and Weber testified that they were present throughout the entire trial on Mazique’s attempted obscenity |ficharge and identified him in court as the person found guilty of attempted obscenity. The trial court accepted the officers’ testimony and further stated that it would take into consideration the previous trial records, intending to review them before making an adjudication. Ultimately, the trial court found that the evidence was sufficient to establish Mazique’s two prior felony convictions and that he was the same person who was convicted of the prior felonies.

To prove that a defendant is an habitual offender, the State must establish by competent evidence the prior felony convictions and that defendant is the same person who was convicted of the prior felonies. The State may establish this by various means, such as the testimony of witnesses to prior crimes, expert testimony matching fingerprints of the accused with those in the record of prior proceedings, or photographs contained in a duly authenticated record. The Habitual Offender Act does not require the State to use a specific type of evidence in order to carry its burden at the hearing, and the prior convictions may be proved by any competent evidence.

At the hearing, Mazique’s attorney urged the court to consider that both Officers Cupit and Weber testified that attorney Ms. Anne Turissini dealt with the plea deal on behalf of Mazique, while the record, according to Mazique, reflected that Mr. Richard Stricks was the attorney of record who took the plea. Further, during the habitual offender hearing, Mazique alleged that he waived his Boykin rights in the drug case before he knew what they were. The trial judge reviewed the plea agreement and waiver of rights in the record before it and found that, while he may have pled guilty before the colloquy, Mazique’s plea was not | ^accepted by the court until it was ascertained that he made a knowing, intelligent, and voluntary waiver of his rights.

The court took judicial notice of the records in the prior offenses. However, the State did not introduce those records into evidence at the hearing. While the trial court had the benefit of reviewing the plea agreement with its accompanying waiver of rights, as well as the record of Mazique’s conviction, this Court does not have any such advantage. We are, thus, precluded from reviewing all of the evidence upon which the trial court based its determination that Mazique was a third felony offender. In the present case, Ma-zique contests not only his identification, but also alleges a violation of his constitutional rights in the prior plea agreement. The failure of the State to introduce those records, under the present circumstances, was error. We are, therefore, obliged to vacate Mazique’s adjudication as an habitual offender as well as his enhanced sentence and remand the matter to the trial court. In so doing, we note that Mazique’s original sentence has never been vacated and is still valid. In addition, in such cases a defendant can be retried on a multiple offender bill since double jeopardy does not attach to multiple offender hearings.

MULTIPLE OFFENDER STATUS AND SENTENCE VACATED; MATTER REMANDED.

      . State v. Mazique, 05-278 (La.App. 5 Cir. 12/13/05), 919 So.2d 750, writ not considered,
        06-0783 (La. 10/13/06), 939 So.2d 353.

      . See, State ex rel. D.C., 00-1396 (La.App. 4 Cir. 2/28/01), 781 So.2d 1267, 1268.

      . State v. Lyles, 03-141 (La.App. 5 Cir. 9/16/03), 858 So.2d 35.

      . State v. Payton, 00-2899 (La.3/15/02), 810 So.2d 1127.

      . See, State v. Schnyder, 06-29 (La.App. 5 Cir. 6/28/06), 937 So.2d 396.


author: GREG G. GUIDRY, Judge.

text:
    STATE of Louisiana v. Anthony GRAFFIA.
    No. 06-KA-756.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 30, 2007.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Juliet Clark, Assistant District Attorneys, Gret-na, Louisiana, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges THOMAS F. DALEY, CLARENCE E. McMANUS, and GREG G. GUIDRY.
   GREG G. GUIDRY, Judge.

| ?,The Defendant, Anthony Graffia, appeals his convictions for: 1) aggravated robbery, a violation of La.R.S. 14:64.4; 2) attempted aggravated rape, violations of La.R.S. 14:27 and 14:42; and 3) second degree battery, a violation of La.R.S. 14:34.1. He also appeals his sentence on the attempted aggravated rape conviction. We affirm the convictions and sentences, and remand for instructions relative to sex offender registration notice.

The Defendant was charged with the above offenses on May 12, 2004. Following his pleas of not guilty, he filed an omnibus motion, including a Motion to Suppress Confession, Identification, and Physical Evidence. On November 4, 2004, the trial judge denied the motions to suppress identification and statements. On May 16, 2006, a twelve-person jury found the Defendant guilty as charged. On |sMay 25, 2006, the trial judge sentenced the Defendant to 40 years for the aggravated robbery conviction; to 50 years without benefit of probation, parole, or suspension of sentence for the attempted aggravated rape conviction; and three to five years for the conviction of second degree battery. All the sentences were ordered to be served at hard labor, and to run concurrent with one another.

According to the victim, J.H., on March 2, 2004, J.H. was working the night shift at the Captain’s Den, a bar in Jefferson Parish. Before closing, a man identifying himself as Tony came into the establishment. There were two regular customers in the bar, Marc Cantrelle and L.J. Tony, later identified by the victim in a lineup and in court as the Defendant, told J.H. and the other customers that he had gotten out of prison six months ago. Subsequently, both Cantrelle and L.J left the bar, but Cantrelle returned. J.H. offered Cantrelle a ride home, because the Defendant’s presence had begun to alarm her and she did not want to be alone with him in the bar. The Defendant asked J.H. for a ride, but she refused, telling him she did not know him. When J.H. prepared to close the bar, she told everyone to leave. As soon as the Defendant left, she locked the door after him. She and Cantrelle remained inside while she completed her duties.

The Defendant returned ten minutes later, and asked to use the bathroom, but J.H. refused to let him in the bar. Later, J.H checked outside to see if he was still there, but did not see the Defendant. However, when she and Cantrelle went outside after locking up, the Defendant was standing by her van. When she unlocked her van doors, the Defendant got inside and sat in the back seat without her permission. Nervous about the situation, J.H. asked Cantrelle to sit in the front passenger seat. J.H. testified that she felt threatened enough to place a knife she |4kept in the pocket of her car door under her leg. Following the Defendant’s directions, she drove until he told her to stop. When Cantrelle got out and opened the van door to let the Defendant exit, the Defendant began hitting him and punching J.H. in the face. The Defendant pushed Cantrelle out of the van, grabbed J.H. and dragged her between the seats. While J.H. was flat on her back on the floorboard, he punched her in the face. He then got into the driver’s seat and drove away with J.H, telling her to get into the front seat. J.H. got into the front seat as instructed.

J.H. testified she first thought the Defendant wanted to rob her of money from the bar, but the Defendant then told her to take off her clothes. At that point, she believed he was going to rape her, so she began kicking him in the face. The Defendant responded by beating her and screaming, “I’m going to fucking kill you, bitch.” (R., p. 359). J.H. was convinced the Defendant was going to kill her as he continued to beat her, saturating her clothes in blood. She had so much blood in her face and her eyes that she could not see. He also bit her. When he stopped biting her little finger, J.H. was able to reach the keys and turn off the van engine. As the Defendant tried to re-start the van, she escaped. The Defendant drove off. The van contained her purse, credit card, cell phone, all her college course books, and supplies and equipment for her cleaning business.

J.H. was subsequently taken to Ochsner Hospital where she received treatment for her injuries. She suffered fractures to her nose, cheekbones, and eye socket, a torn rotator cuff, a dislocated rib from the breastbone, three bulging discs in her neck and two bulging discs in her mid-back. J.H. required five stitches on her face and five across her eye. J.H.’s teeth were loose, and she suffered nerve damage that caused her to have no feeling in her upper lip and her front teeth.

| RJ.H. checked her bankcard on-line and found that the Defendant used it to buy gas in Picayune, Mississippi. Her van was later recovered with everything inside missing, including a secondary radio. The van was covered in blood from her injuries. J.H. identified the Defendant in a physical lineup. She was unable to make identification in an initial photographic lineup.

Cantrelle’s testimony was similar. He testified that prior to closing the bar, only he, J.H., and another man were there. When J.H. locked the bar, Cantrelle was the only person inside with her. When they left to go to J.H.’s vehicle, the man who had been in the bar came to the van. All three of them left in J.H.’s van, with Cantrelle riding in the front passenger seat. He stated that the other man attacked him after Cantrelle opened the door of the van to let him out. He was beaten until he fell or was shoved out of the van.

Detective Carroll searched J.H.’s van after it was recovered, and found bloodstains on the steering wheel, console, seats and carpet. DNA testing revealed that all of the blood samples taken from the van belonged to J.H.

The Defendant testified that he had pri- or convictions in 1984 for accessory after the fact to first degree murder, and in 2000 or 2001 for simple criminal damage and attempted possession of heroin. According to him, after arriving at the Captain’s Den on the night in question, he purchased a beer and engaged in a conversation with J.H. and Cantrelle. Later, Cantrelle went to his car and “fumbled” in it for a few minutes, before he returned to the bar. When J.H. offered Cantrelle a ride home, the Defendant asked J.H. for a ride, because he had just gotten out of jail and was on parole. According to the Defendant, J.H. agreed to give him a ride home, but told him that he would have to leave the bar and wait outside. After the Defendant saw several police cars outside, he asked to re-enter the bar to get out of the view of the officers. J.H. refused to let the Defendant back [fiin, because she did not know him and was counting money. The Defendant asked her to hurry, and smoked some marijuana while waiting. When J.H. and Cantrelle came out, they all got into the van. J.H. was in the driver’s seat, Cantrelle in the passenger seat, and the Defendant in the back seat. The Defendant claimed that when he knelt between the two seats, Cantrelle hit him on the back of his head. He thought that Cantrelle was trying to rob him, because J.H. knew he had money. He also thought that Cantrelle might have gotten a gun earlier from his car. The Defendant claimed he and Cantrelle started to fight, and then J.H. tried to grab the Defendant and started kicking him. During the melee, the van struck a parked vehicle or something, and came to a stop. According to the Defendant, both Cantrelle and J.H. continued to fight him. As he fought with J.H., Cantrelle opened the door of the van and jumped out. J.H. also exited the van in the same place as Cantrelle. The Defendant admitted that some of J.H.’s inju-ríes could have been caused by the altercation.

The Defendant said that he drove off in J.H.’s van without her permission, because he was nervous and he did not want to get out to fight them. The Defendant was also scared that he could go to jail for three years, because he had violated his probation by being in a barroom, and there was an outstanding warrant for his arrest. The Defendant testified that he had not reported to his parole officer, and that she was looking for him. The Defendant admitted that he drove to Picayune, Mississippi that morning, and used J.H.’s credit card to get gas. He later returned to the New Orleans area, leaving J.H.’s van in New Orleans East.

On appeal, the Defendant asserts that the trial judge erred in denying his Motion to Suppress the Identification in view of the explicit denial of appellant’s right to counsel. He also asserts that his sentence of fifty years is excessive. The Defendant further requests an error patent review.

17In his first assignment of error, the Defendant argues that he was denied his right to counsel at the physical lineup after he made a specific request to have counsel present, which was a fundamental denial of due process. He claims that his request was timely and unequivocal, and at a critical stage in the prosecution, i.e. following his arrest after a tentative identification. He also claims that the physical identification was crucial to the State’s case, because there was a lack of forensic evidence linking him to the crime.

At the hearing on the motions to suppress, Detective John Carroll testified that J.H. was only able to make a tentative identification from the photographic lineup. After obtaining an order for a physical lineup, Detective Carroll contacted the Defendant to participate. The Defendant asked Detective Carroll to prepare a document regarding his attendance at the lineup. On March 25, 2004, Detective Carroll wrote a note, stating, “... [the Defendant] has requested the presence of an attorney. I have been informed by him that he has not acquired an attorney nor has he been assigned an attorney by IDB.” (State’s exhibit, S-7). Detective Carroll informed the Defendant that if he could not acquire an attorney, he would try to find one for him from the Indigent Defender Board (IDB). On the same day, Detective Carroll personally went to IDB to inform them of the Defendant’s request. When he asked if anyone was available, he was informed by the clerk or receptionist that no one was available, and that “they wouldn’t go anyway.” (R., p. 125). Detective Carroll left the court order with IDB, pursuant to procedure. The physical lineup was then conducted the same day. At the lineup, as part of standard procedure, the Defendant was allowed to pick the participants for the lineup and select their placement. The Defendant chose to place himself in the fourth position. J.H. positively identified the Defendant at that time. Subsequently, the Defendant voluntarily agreed to talk to Detective Carroll. | ^Detective Carroll questioned the Defendant after he was reminded that he was advised of his rights, and the Defendant indicated that he understood them.

At the motion hearing, J.H testified that she identified either number two or number four in the photographic lineup, as the man who attacked her. However, she positively identified the Defendant in the physical lineup, even though one of the other participants in the lineup drew attention to himself by stomping his feet. She was not forced, coerced, intimidated, or promised anything to make the identification.

After the presentation of the evidence and the testimony of the witness, the trial judge denied the motion to suppress the identification finding no constitutional violations. The trial judge noted that Detective Carroll personally went to IDB and showed them the court order in order to obtain counsel for the Defendant. Detective Carroll was informed that no attorney would be provided to the Defendant. The court found that “the Sheriffs Office did everything it could to make sure that [the defendant] had counsel.” (R., p. 150).

In State v. Carter, 98-24, p. 4 (La.App. 5th Cir.5/27/98), 712 So.2d 701, 704, writ denied, 98-1767 (La.11/6/98), 727 So.2d 444, this Court analyzed the jurisprudence in regard to the right to counsel at a physical lineup. There we found that the defendant’s Sixth Amendment right to counsel was not violated when the physical lineup was conducted without counsel present. At the time of the lineup, the adversary judicial criminal proceedings had not commenced such that the right to an attorney embodied by the U.S. Const. Amend. 6 and La. Const. Art. 1, § 13 attached, i.e. there had been no formal charge, preliminary hearing, indictment, information, or arraignment. In reaching our conclusion, we considered the evidence showing that the defendant did not ask for counsel to be present at the lineup, a police officer personally delivered a copy of the motion to compel lineup |9to the IDB, although no one from IDB attended, the police did not engage in a bad faith effort to circumvent the defendant’s right to counsel, and there was no evidence that counsel’s presence would have changed the outcome of the lineup. In addition, we found that the lineup procedures were not suggestive or tainted in any way. Rather, the testimony and evidence established that the lineup was conducted according to fair and standard police procedure. We reached a similar result in State v. Duplessis, 00-971, p. 3 (La.App. 5th Cir.12/13/00), 777 So.2d 529, 531.

In the present case, the Defendant was under arrest when the lineup was conducted, but no formal charge, preliminary hearing, indictment, bill of information, or arraignment had been held, filed, and/or returned. Thus, the adversary judicial criminal proceedings against the Defendant that would have secured his right to an attorney under the Sixth Amendment had not commenced when the lineup was conducted. Nevertheless, the State accommodated the societal interest in fair and accurate fact-finding, and the Defendant’s statutory right to counsel following his arrest, by trying to comply with the Defendant’s request for counsel prior to the physical lineup. Furthermore, the Defendant was allowed to pick the participants for the lineup and select their placement. Thus, the State did not engage in a bad faith effort to circumvent Defendant’s right to counsel, nor is there any evidence that counsel’s presence would have changed the outcome of the lineup. Rather, the testimony and evidence established that the lineup was conducted according to fair and standard police procedure, and was not tainted or suggestive in any way. Under these facts, we find no constitutional violations by the State in conducting the lineup without the presence of counsel. |1f)Thus, the trial judge did not err in denying the motion to suppress the identification.

The Defendant next asserts that his sentence of fifty years without parole is excessive. The Defendant contends that the sentence amounts to a life sentence, because he is only forty years old. In addition, the Defendant suggests that the trial court failed to consider the sentencing criteria set forth in La.C.Cr.P. art 894.1.

The Defendant did not make or file a motion to reconsider the sentences or object to the sentences. This Court has recognized that the failure to file a motion to reconsider sentence, or to state specific grounds upon which the motion is based, limits a defendant to a review of his sentence for constitutional excessiveness only. State v. Polizzi 05-478, p. 15(La.App. 5th Cir.2/14/06), 924 So.2d 303, 313, writ den. 06-1052 (La.11/3/06), 940 So.2d 660. Accordingly, the sentence will be reviewed for constitutional excessiveness.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is unconstitutionally excessive when it imposes punishment grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering. State v. Smith, 01-2574, p. 6 (La.1/14/03), 839 So.2d 1, 4. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Lobato, 603 So.2d 739, 751 (La.1992). Even though a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Smith, 01-2574, p. 6 (La.1/14/03), 839 So.2d 1, 4.

The trial judge is afforded wide discretion in determining a sentence, and the court of appeal will not set aside a sentence for excessiveness if the record supports Inthe sentence imposed, even when the trial judge does not provide reasons for the sentence. Polizzi, 05-478 at 16, 924 So.2d at 313.

The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. Polizzi 05-478 at 17, 924 So.2d 314.

The Defendant challenges only his 50 year sentence for the attempted aggravated rape conviction. Pursuant to La. R.S. 14:42 and R.S. 14:27 D(1)(a), the sentencing range for this crime is imprisonment at hard labor for not less than ten, nor more than fifty years, without benefit of parole, probation, or suspension of sentence. Id.; State v. McLelland, 03-498, p. 10 (La.App. 5th Cir.10/15/03), 860 So.2d 31, 37, writ den., 03-3372 (La.3/26/04), 871 So.2d 347.

The victim in this case was brutally beaten. She sustained extremely severe injuries before and during the life threatening fight with the Defendant. She believed that he intended to both rape and kill her. The Defendant, who was 37 years old at the time, had been released from prison shortly before this incident. He was wanted on an outstanding warrant, and was violating his probation at the time by being in the bar, and by avoiding contact with his parole officer. He had a serious criminal history. Although the trial judge did not fist his reasons for the sentence, before sentencing the Defendant, the trial judge stated he listened to the testimony, viewed the evidence and photographs and concluded that “this was pretty heinous.... ” The judge further stated that he believed that the Defendant lied during his testimony. The judge was aware of the Defendant’s criminal history. The judge’s comments indicate he considered those factors in sentencing the Defendant. Furthermore, he could have concluded from the facts that the Defendant was not rehabilitated by his prior imprisonment, and is an egregious offender deserving of the maximum sentence. After our review, we find the trial l1Pjudge did not abuse his discretion in sentencing the Defendant to 50 years imprisonment without benefit of parole, probation, or suspension of sentence, and further find that the sentence is not excessive.

ERROR PATENT

The record was reviewed for patent errors in accordance with La.C.Cr.P. art. 920, State v. Oliveaux, 312 So.2d 337, 338 (La.1975), and State v. Polizzi 05-478 (La.App. 5th Cir.2/14/06), 924 So.2d 303, 313, writ den. 06-1052 (La.11/3/06), 940 So.2d 660. We find one patent error.

La.R.S. 15:542(E). La.R.S. 15:540, et seq., requires registration of sex offenders and La.R.S. 15:543(A) requires the trial judge to provide written notification of the registration requirement of La.R.S. 15:542. The trial judge here failed to provide Defendant with the required written notice. Consequently, we will instruct the trial judge to send written notice to Defendant of the registration requirement within 10 days of this opinion, and to file a copy of same in the record, in accordance with State v. Stevenson, 00-1296 (La.App. 5th Cir.1/30/01), 778 So.2d 1165, State v. Berniard, 03-484 (La.App. 5th Cir.10/15/03) 860 So.2d 66, and State v. Patterson, 05-560 (La.App. 5th Cir.1/31/06) 922 So.2d 1195.

Accordingly, the Defendant’s convictions and sentences are hereby affirmed. Further, the trial judge is ordered to provide written notice to the Defendant of the registration requirements of La. R.S. 15:542.1 and R.S. 15:543 A within ten days after rendition of this opinion, and to file written proof in the record that the Defendant received such notice.

AFFIRMED AND REMANDED.

      . The Defendant was also charged with aggravated rape, a violation of La.R.S. 14:27 and 14:42, and sexual battery, a violation of La.R.S. 14:43.1. Those charges were nolle prossed by the State following the trial on the first three charges.

      . In accordance with La.R.S. 46:1844(W)(3), we refer to the victim of this sex offense by her initials to protect her identity. State v. Berniard, 03-484, p. 11 (La.App. 5th Cir.10/15/03), 860 So.2d 66, 78, writ denied, 03-3210 (La. 3/26/04), 871 So.2d 345.

      . Detective John Carroll of the Jefferson Parish Sheriff’s office testified that he did not remember J.H. mentioning a knife in her statement.

      . The Defendant was arrested on March 16, 2004. The lineup was on March 25, 2004.


text:
    Kathy Mitchell, Wife of/and Lawrence MITCHELL v. KENNER REGIONAL MEDICAL CENTER, Dr. Michael Brothers, Dr. David Kastl and Dr. Bahram Zamanian.
    No. 06-CA-620.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 30, 2007.

      Lawrence D. Wiedemann, Wiedemann & Wiedemann, Attorney at Law, New Orleans, LA, for Plaintiffs/Appellants.
    Kirk P. Groh, Hemelt & Foshee, LLC, Attorney at Law, Covington, LA, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, Jr., MARION F. EDWARDS, and SUSAN M. CHEHARDY.
   MARION F. EDWARDS, Judge.

| pPlaintiffs/appellees, Kathy Mitchell, wife of/and Lawrence Mitchell, appeal a summary judgment granted by the trial court in favor of defendant/appellee, Life-mark Hospitals of Louisiana, Inc. d/b/a Kenner Regional Medical Center (“Life-mark”). We affirm.

The Mitchells filed suit against Lifemark as well as against Dr. Michael Brothers, Dr. David Kastl, and Dr. Bahram Zamani-an, alleging that Mr. Lawrence Mitchell suffered damages following cardiovascular surgery performed by the defendant medical doctors at Kenner Regional Medical Center (“Kenner Regional”). Mr. Mitchell was admitted to Kenner Regional on October 29, 1998 by Dr. Zamanian who treated him for symptoms indicating a heart attack. On the following day, Mr. Mitchell was scheduled to undergo an angiogram and coronary catheterization. He averred that the catheterization was “inexplicably delayed” for |3about three and one-half hours, or until 4:45 p.m. Then, a coronary artery splintered during the surgery, necessitating an emergency bypass. The bypass surgery was performed at about 7:25 p.m. by Dr. Brothers. According to Mr. Mitchell, as a direct consequence of the delay in the performance of both the cath-eterization and the bypass surgery, his heart was permanently and irreparably damaged. It was urged that Kenner Regional was negligent under the doctrine of respondeat superior as well as in failing to have a cardiologist available and in failing to inform Mr. Mitchell of such.

A Medical Review Panel examined the complaint and, in September 2000, issued its opinion that, as to Dr. Zamanian, Mr. Mitchell was brought to the operating room for surgery in a reasonable amount of time that is consistent with the community standard of care. With regard to Drs. Kastl and Brothers, the panel concluded that Dr. Kastl was present in the hospital at the time emergency surgery was deemed necessary and the time from when the emergency was declared and the surgery begun was appropriate with an excellent result. Finally, the panel stated that there was nothing in the record to indicate that the hospital and/or its employees deviated from the standard of care.

In March 2002, Kenner Regional filed a Motion for Summary Judgment, alleging there was no conflicting expert medical testimony offered and that, as a matter of law, Mr. Mitchell could not carry his burden of proof. At that time, summary judgment was denied. The trial court found that a narrative summary by Dr. Kastl indicated that it was Kenner Regional’s policy to have a surgical team available during a catheterization, and that a “trier of fact could infer negligence ... based on the statement without further expert testimony if it concluded that the policy was not followed.” (Emphasis as found in the original.) The narrative Rreport by Dr. Kastl, which was attached to the submission of evidence to the Medical Review Panel, contained the following statement:

It should be stated that Kenner Regional Medical Center has had a Cardiac Cath Lab policy stating that no PTCA’s procedures are to be performed without notification of a surgical crew, who has agreed to be on standby for a PTCA attempt. The policy also states that the Operating Room will also be notified to prepare availability of an Operating Room suite with a surgical crew. There was no notification to myself or to Dr. Brothers by Dr. Zamanian that he was performing a PTCA procedure. In addition, to my understanding, there was also no notification to the Operating Room for standby clearance for his PTCA attempt on Mr. Lawrence Mitchell.

After new trial was denied, writs taken to this Court were denied because Kenner Regional failed to attach its supporting documents to the application. Mitchell v. Lifemark, et al., Writ No. 02-C-819 (La.App. 5 Cir. 10/18/06). In July 2005, following discovery, Kenner Regional filed another Motion for Summary Judgment again alleging that Mr. Mitchell had failed to produce any expert testimony to substantiate his claim. The hearing on the motion was originally set for August 2005 but continued on motion of Mr. Mitchell’s attorney until October 14, 2005. Then, Hurricane Katrina disrupted all legal proceedings. On October 18, 2005, Kenner Regional filed another motion to continue, and the hearing was reset for December 16, 2005. Service of the motion was made by certified mail, proof of which service was presented to the court. On the date scheduled for hearing, counsel for Mr. Mitchell did not appear. The court questioned Kenner Regional’s attorney, who stated to the court that he had had telephone contact with counsel since the hurricane, had successfully faxed a copy of the order resetting the hearing, and had received no opposition to it. Because service of the hearing was proven, and Mr. Mitchell had filed no opposition, summary judgment was granted.

| ¡/Three days later, Mr. Mitchell filed a motion to continue the hearing, which was denied by the trial court as moot. On appeal, he does not contest the judgment on any procedural grounds but, rather, urges that a question of material fact exists regarding the commencement of the catheterization without the presence of a surgical team or the availability of a surgical suite. Mr. Mitchell contends that the opinion of the Medical Review Panel is not the type of personal knowledge contemplated under LSA-C.C.P. art. 967 to support summary judgment.

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. This standard of review requires the appellate court to look at “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits,” in making an independent determination that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. Both the evidence and all inferences drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in his favor.

Under LSA-C.C.P. art. 967, when a motion for summary judgment is made and properly supported, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in the statute, must set forth specific facts showing that there is a genuine issue for trial. The burden does not shift to the party opposing the summary judgment until the moving party first presents a prima facie case that no genuine issues of material fact exist. At that point, if the party opposing the motion fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden | fiof proof at trial, there is no genuine issue of material fact. LSA-C.C.P. art. 966(C)(2).

Here, Kenner Regional supported its motion with a copy of the opinion of the Medical Review Panel, and the affidavit of Dr. Nick Moustoukas, a member of the panel who reiterated his opinion as stated in the findings of the review panel. In a medical malpractice case, the medical review panel’s opinion is admissible as expert evidence on a motion for summary judgment. Kenner Regional also submitted an Answer to Interrogatories filed by Mr. Mitchell in which Mr. Mitchell listed seven physicians he believed would find that Kenner Regional violated hospital policy and that this resulted in permanent damage to his vascular system. One of those named was Dr. Kastl. To counter that, Kenner Regional produced Answers to Interrogatories propounded to Dr. Kastl wherein the physician stated it was not his opinion that any acts or omissions of Ken-ner Regional, or of any other defendant, caused Mr. Mitchell to suffer an injury that would not have otherwise occurred. The opinion of the Medical Review Panel has been found to constitute a prima facie case that no issues of material fact exist, thus shifting the burden to the plaintiff.

Our de novo review discloses that there is no competent evidence in the record in opposition to the Motion for Summary Judgment.

In the record are affidavits filed by the Mitchells, which cite a statement made by Dr. Brothers, that the delay in performance of the surgery caused irreparable damage to Mr. Mitchell’s heart and necessitated emergency surgery. With regard to Kenner Regional, these affidavits contain inadmissible hearsay not made on personal knowledge and, thus, are not competent evidence in a motion for ^summary judgment. Similarly, the narrative by Dr. Kastl is unsigned, undated, and unsworn. In meeting the burden of proof, unverified documents, such as letters or reports annexed to motions for summary judgment are not self-proving and, therefore, will not be considered as competent summary judgment evidence. The attestation by Mr. Mitchell’s counsel that this narrative was attached to the submission of evidence to the Medical Review Panel does not cure the problem. Finally, merely referring to an expert, as Mr. Mitchell did in his Answers to Interrogatories, will not defeat a properly supported motion for summary judgment.

Under these circumstances, we find the court properly granted summary judgment in favor of Kenner Regional. The judgment is affirmed, and all costs are taxed to the Mitchells.

AFFIRMED.

      . Citing Robertson v. Northshore Reg’l Med. Center, 1997-2068 (La.App. 1 Cir. 9/25/98), 723 So.2d 460.

      . Duncan v. U.S.A.A. Ins. Co., 2006-363 (La.11/29/06), 950 So.2d 544.

      . Hebert v. St. Paul Fire and Marine Ins. Co., 1999-0333 (La.App. 4 Cir. 2/23/00), 757 So.2d 814.

      . Id.

      . Garrison v. Tanenbaum 02-1181 (La.App. 5 Cir. 4/8/03), 846 So.2d 40; Blankenship v. Ochsner Clinic Found., 2006-0242 (La.App. 4 Cir. 8/16/06), 940 So.2d 12; Williams v. Mem’l Med. Center, 2003-1806 (La.App. 4 Cir. 3/17/04), 870 So.2d 1044, writ denied, 2004-0963 (La.6/4/04) 876 So.2d 93.

        .Garrison v. Tanenbaum, supra.

      . Williams v. Mem’l Med. Center, supra.

      . Edwards v. Raines, 35,284 (La.App. 2 Cir. 10/31/01), 799 So.2d 1184.