author: CALOGERO, Justice.

text:
    Ellis T. LABORDE v. EMPLOYERS LIFE INSURANCE COMPANY.
    No. 81-C-2183.
    Supreme Court of Louisiana.
    April 5, 1982.
    Rehearing Denied May 14, 1982.
    Michael R. Holmes, Gerald Thos. Laborde, New Orleans, for applicant.
    Robert E. Leake, Jr., Hammett, Leake & Hammett, New Orleans, for respondent.
   CALOGERO, Justice.

Under the provisions of a disability policy insuring against injury or sickness, plaintiff Ellis T. Laborde obtained a judgment in the Civil District Court for the Parish of Orleans requiring the defendant-insurer, Employer’s Life Insurance Company, to pay him $200 per month for life. The pertinent section of the policy was Coverage A, relative to total disability caused by injury. The Court of Appeal reversed upon finding that plaintiff had not become totally disabled because of injury during the ninety day period immediately following the accident as required by the policy. 400 So.2d 308 (La.App. 4th Cir. 1981).

We granted writs to review that judgment, prompted by the belief that the Court of Appeal perhaps had not properly considered the decisions of this Court in Johnson v. State Farm Mutual Automobile Insurance Company, 342 So.2d 664 (La.1977) and Crowe v. Equitable Life Assurance Society of the United States, 179 La. 444, 154 So. 52 (La.1934) in assessing plaintiff’s disability within the ninety day period after the accident.

Disability definitions like the one involved here (“complete inability of the insured due to sickness or injury to perform every duty pertaining to his occupation”) have been construed as requiring not a state of complete helplessness but only an “inability to do substantially all the material acts necessary to the prosecution of the insured’s business or occupation in substantially his customary and usual manner.” Crowe, supra at 54. Furthermore, in Johnson we held that the continuous nature of plaintiff’s disability was not negated or broken by his attempt to return to work under the circumstances therein, and that whether total disability is continuous depends upon the facts and circumstances of each case.

Nevertheless, upon review of the testimony, exhibits, policy provisions and jurisprudence, we find that the Court of Appeal’s disallowance under the policy of injury-induced total disability was correct. On the other hand, we find that the Court of Appeal was not correct insofar as it disallowed the unpaid portion of the twenty-four months of benefits for total disability under the sickness provision of the policy.

The insurance policy in question allows lifetime benefits for total disability caused by injury (Coverage A), six months of benefits for partial disability (Coverage B, not at issue here), and twenty-four months of benefits for total disability caused by sickness (Coverage C). The scheme of the policy is as follows:

If injury sustained by an insured results in total disability commencing within ninety days from an accident, it causes an injury disability and carries a $200 monthly disability benefit for each month the disability continues, for the life of the insured.

If an injury results in total disability commencing more than ninety days after an accident, or if total disability is caused by sickness rather than by injury, it is a sickness disability and the company, after deducting a seven day elimination period, will pay the monthly indemnity benefit for each month such total disability continues for a specified period, in this case twenty-four months.

The term “total disability” is defined alternately in the policy depending on the time frame involved. For the twenty-four month period of sickness disability and for the first sixty months of injury disability, total disability “means the complete inability of the insured due to sickness or injury to perform every duty pertaining to his occupation...” If the disability continues beyond these periods, the definition of total disability becomes “the complete inability of the insured to engage in any and every gainful occupation for which he is reasonably fitted by education, training or experience due to such sickness or injury. ..,” for the remainder of the time, if any, for which monthly indemnity benefits are payable.

Whether defendant is entitled to injury induced total disability benefits, for life, or sickness disability for a maximum of twenty-four months, depends upon whether plaintiff suffered an injury and whether the injury resulted in total disability commencing within ninety days from the accident.

Both courts below found that plaintiff’s total disability did not commence within the required ninety day period. To counter this, plaintiff suggests the trial judge’s statement that plaintiff became unable to perform his regular duties in May of 1970 (more than ninety days after the accident) is inconsistent with his awarding plaintiff total disability benefits. He contends this was an unintentional misstatement in the trial judge’s reasons for judgment.

Giving plaintiff the benefit of the doubt, we have weighed the evidence unaffected by the trial court’s finding in this regard. Even doing so we still find, as the Court of Appeal did, and as the trial judge apparently did, that indeed there was no proof of total disability commencing within ninety days of the accident.

Rather we find the facts to be the following. Plaintiff suffered an injury in an automobile accident on January 16,1970, for which he received medical treatment. From January 16 to June 11, 1970, plaintiff worked for Hugh O’Connor Construction Company an average of 40 hours per week. For the two week period beginning on May 20,1970, when Laborde was still working as a journeyman carpenter, his longtime trade, he was doing only light work, his partner handling all the heavy lifting and climbing. After this May 1970 employment, Laborde was listed with the union not as a journeyman carpenter but as a carpenter foreman or supervisor. Laborde saw Dr. Battalora, an orthopedic specialist, from July 8, 1970, through January 27, 1971. During the examinations on July 19 and August 26, 1970, Dr. Battalora encouraged Laborde to continue work and keep active as a “carpenter foreman” and as a “carpenter inspector” who does “lighter work than a carpenter foreman performs.” Laborde was hospitalized by a neurosurgeon, Dr. Kenneth Vogel, on March 29, 1971, had a double laminecto-my performed upon him on April 8, and remained hospitalized until April 22, 1971. Laborde continued working as a carpenter foreman or supervisor with a period of work loss disability for an ear infection in 1972 until he became totally unable to work following a heart attack in 1974, a bout with pneumonia and another heart attack in 1975.

In this case plaintiff did not prove that he became disabled within ninety days of the accident. There was no proof of limitation in his work activity from January 16, 1970 to May 20, 1970. Testimony and exhibits offered at trial support the findings of the Court of Appeal in this regard. Furthermore with regard to the required ninety day onset of disability, plaintiff does not get any help from Crowe and Johnson. Those cases are helpful as relates to La-borde’s claim only relative to his sickness disability, for he did not establish any disability within a ninety day period following the accident. Crowe and Johnson have to do with the character of established disability and the effect of the restrictive policy definitions.

Nevertheless plaintiff is not barred entirely from recovering additional benefits under the policy. Coverage C of the policy allows recovery for total disability for a period of twenty-four months not only for sickness but also for injury induced disability which manifests itself more than ninety days after an accident. As noted earlier, that total disability is defined as the “complete inability of the Insured ... to perform every duty pertaining to his occupation.” It is in the interpretation of this policy language that the Crowe tradition, and the Johnson case in particular, become pertinent.

While the definition might imply otherwise, it has been interpreted liberally to permit recovery for total disability without the need to prove that an insured is reduced to a state of abject helplessness. Crowe, supra; Madison v. Prudential Ins. Co. of America, 190 La. 103, 181 So. 871 (1938); Nomey v. Pacific Mut. Life Ins. Co., 212 La. 820, 33 So.2d 531 (La.1948); Pearson v. Prudential Ins. Co. of America, 214 La. 220, 36 So.2d 763 (La.1948). In Johnson, supra at 667, we interpreted language which defined total disability as the inability to engage in “every duty of his occupation” to mean the inability to “perform the substantial and material part of his occupation in the usual and customary way.” The standard by which we are to assess La-borde’s disability is therefore whether he could have performed the substantial and material part of his occupation in the usual and customary way.

As indicated earlier in this opinion, Laborde presented no proof that disability occurred within the requisite ninety day period. However, following May 1970, his situation was shown to be different. A co-worker testified that Laborde was not able to engage in the heavy physical labor, the lifting, or climbing that was required of journeymen carpenters. Union records show him classified as foreman or supervisor. His brother as a union officer helped him find supervisory work. Dr. Battalora’s deposition and letters stated that Laborde could continue working, but his job at the time was carpenter inspector/supervisor, not journeyman carpenter. Laborde underwent spinal fusion in 1971, after which Dr. Kenneth Vogel wrote to the insurer concerning the course of Laborde’s recovery and his ability to return to “light work” on May 29, 1971. We determine from that evidence that Laborde was disabled according to the Johnson definition, i.e. unable “to perform the substantial and material part of his occiipation [journeyman carpenter] in the usual and customary way” for a twenty-four month period commencing with his receiving medical treatment from Dr. Bat-talora in July of 1970.

The insurer has paid Laborde some benefits under the sickness provision of the policy, excluding the elimination period, the first seven days of disability. Defendant issued four checks to the plaintiff: on April 21, 1971, a check for $233.33 for 35 days of total disability from 7/15/70 to 7/22/70 and 9/20/70 to 10/18/70; on June 23, 1971, a check for $200.00 for 30 days total disability from 3/29/71 to 4/29/71; on July 9,1971, a check for $200.00 for 30 days total disability from 4/29/71 to 5/29/71; and on July 19, 1971, a check for $200.00 for “full and final settlement”. The latter check plaintiff did not cash. At most only 125 days were paid and the benefits were terminated upon the insurer’s receiving a letter from Dr. Vogel certifying that plaintiff was able to return to “light” work.

Plaintiff’s evidence supports a finding that he was totally disabled because he was “unable to perform the substantial and material part of his occupation in the usual and customary way” (Johnson, supra at 667), not only for the time that he was off work, but continuously on and after July, 1970 when he sought medical help from Dr. Battalora, and following which he worked with the help of his brother and co-workers. He is therefore owed the balance of the twenty-four months of sickness disability benefits.

Plaintiff argues additionally that premium reimbursement is due him under a premium waiver provision of the policy. The provision on which he relies reads in pertinent part:

Waiver of Premium: If injury or sickness results in total disability covered by the policy and such disability continues for a period of at least ninety consecutive days, the policy will continue in force and the Company will waive all premium payments, the payment date for which falls during any further continuous period of total disability for which income is payable. The premium to be waived and the payment date thereof shall be that in effect when such continuous period of disability began.

Because we find that Ellis Laborde is owed monthly indemnity benefits because of sickness disability for a continuous twenty-four month period, plaintiff is owed reimbursement for the premiums he paid on the policy for that period of disability.

Finally plaintiff argues that attorney’s fees and penalties are due under La.R.S. 22:657 because of the defendant’s failure to pay timely the benefits owed him under the policy provisions. La.R.S. 22:657 states in pertinent part:

A. All claims arising under the terms of health and accident contracts issued in the state, .. . shall be paid not more than thirty days from the date upon which written notice and proof of claim, in the form required by the terms of the policy, are furnished to the insurer unless just and reasonable grounds, such as would put a reasonable and prudent business man on his guard, exist. (Emphasis provided.)

The defendant argues that it paid all benefits for which the insured submitted claim forms.

Upon examining the record and numerous documents submitted into evidence, we agree with the defendant. Plaintiff’s claim submissions were spotty at best. When the insurer was notified of the possibility of a claim on or about April 14, 1970, claim forms were mailed promptly to the plaintiff on May 4 and again on May 18, 1970. Plaintiff dallied in returning the claim forms and appropriate documentation. The claim forms and proofs of loss submitted were not for continuing total disability but for specific disability periods while under the care of Dr. Battalora and Dr. Vogel. Each claim submitted for out-of-work periods, the insurer paid. Under these facts it seems clear that the insurer did not violate La.R.S. 22:657 and plaintiff is therefore not entitled to penalties and attorney’s fees.

In summary, we find that the plaintiff Ellis Laborde is owed monthly indemnity benefits under his insurance policy Coverage C for sickness disability for the maximum of twenty-four months beginning with the documented proof of loss received by the defendant (7/15/70 because of the seven day elimination period) with credit for the benefits already paid by the insurer. Furthermore, he is entitled to reimbursement for the premiums that he paid from November 1970 (90 days after disability began in July 1970) through June 1972. However, his request for attorney’s fees and penalties under La.R.S. 22:657 is denied.

Decree

For these reasons, the judgment of the Court of Appeal is reversed and the judgment of the district court is reversed in part. There will be judgment in favor of the plaintiff and against the defendant in the sum of $387.60 premium reimbursement (four semi-annual premiums @ $96.90) and $4800 indemnity benefits, subject to a credit for the amount of benefits already received, with legal interest from the date of judicial demand and for all costs.

REVERSED AND RENDERED.

      . At trial plaintiff presented into evidence a letter and claim form dated 6/4/70, a form not received by the insurer until 8/3/70, which characterized the disability from the accident as partial and continuing. The defense offered into evidence a copy of this same claim form on which, when returned for specification of the dates and character of disability by Dr. Talbot the treating physician, the word “total” was added in regard to disability and the designation “house confinement” was checked along with an entry “from 1/24/70 through 2/14/70.” This supplementation was received by .the defendant insurer on March 12, 1971. However, plaintiffs work history in January and February 1970 does not support a finding of three weeks house confinement. Additionally, when a friend of the insured and employee of the defendant, Charles Levy, wrote in April 1971 to the home office to expedite the claim of the insured, the medical reports and claim forms attached thereto denoted total disability only for the periods 7/8/70 through 7/21/70 and 9/20/70 through 10/17/70.

      . Furthermore the conditions of plaintiffs Crowe and Johnson were considerably more severe than that of Laborde.
      In Crowe an illiterate fifty year old man who suffered pain from any physical exertion, while walking, while standing erect, and even while sitting down, and whose injury required him to refrain from “the exactions of any fixed employment” was found to be totally disabled despite defendant’s argument that he could still perform “light work.” 154 So. at 54. In Johnson, it was plain from the record that the injury from the automobile accident was totally disabling, that the plaintiff in his two separate attempts to return to work did so out of economic necessity, against the advice of his doctor and was forced to quit once after two days because of severe pain and once later after seventeen weeks because of blacking out on the job. Thereafter he was never able to return to work.
      In contrast, the Court of Appeal found that Laborde
      ... had an exemplary work record following the accident,...
      Plaintiff worked for Hugh O’Connor Construction Company from January 16 to June 11, 1970, for 843 hours, or an average of 40 hours per week.
      The work history furnished to defendant indicates from January, 1970 to January, 1971 plaintiff also worked at Fishman Construction Company for 304 hours, Fassulo Drugs 84'/2 hours and Benning’s Construction Company. 400 So.2d 310.
      Following his surgery in 1971, Laborde worked on construction at the Hilton Hptel, at the Dome garage, at Woolco Department Store, for American Seating at the Dome Stadium and elsewhere until, he suffered the heart attacks which eventually caused his retirement.

      . The Court of Appeal had found recovery barred by a provision in the definitions portion of the policy, that “ ‘total disability’ shall not exist for any purpose of this policy during any period in which the Insured is engaged in his or any other gainful occupation.” Under the same rationale as espoused in Crowe, i.e., that total disability does not require absolute helplessness, such language has not defeated an otherwise valid claim for total disability where the disabled insured was forced for economic reasons to work at some job. See Felker v. Aetna Life Insurance Company, 234 So.2d 758 (La.App. 1st Cir.) writ denied 256 La. 377, 236 So.2d 503 (La.1970) citing Ayres v. New York Life Ins. Co., 219 La. 945, 54 So.2d 409 (La.1951).


source: Caselaw Access Project

author: CALOGERO, Justice. BLANCHE, Justice MARCUS, Justice

license: Public Domain

text:
    Sara Renée Crifasi LOSAVIO v. Bobby Joseph GAUTHIER, et al.
    No. 81-C-2277.
    Supreme Court of Louisiana.
    April 5, 1982.
    Rehearing Denied May 14, 1982.

      Peter J. Losavio, Jr., of Losavio & Wein-stein, Baton Rouge, for defendant-applicant.
   CALOGERO, Justice.

Bobby Joseph Gauthier, a judgment debt- or who secured a discharge in bankruptcy over a year after rendition and recordation of a $6,671.59 judgment against him in favor of Sara Renée Crifasi Losavio, was successful in both lower courts in obtaining an order to have the inscription of that judicial mortgage cancelled from the mortgage records of the East Baton Rouge Parish Clerk of Court’s Office.

Gauthier, as a judgment debtor discharged in bankruptcy, is entitled under La.R.S. 9:5166 to have the inscription of any dischargeable judgment cancelled (if rendered twelve months previously) “unless the judgment creditor can prove that he continues to possess a secured interest in the property affected by such judgment.”

La.R.S. 9:5166 provides:

Upon rule to show cause by an interested party against the clerk of court and ex officio recorder of mortgages of the several parishes and the recorder of mortgages for the parish of Orleans, the judgment creditor and a judgment debtor discharged in bankruptcy, the court shall order the cancellation of the inscription of any dischargeable judgment rendered twelve months previously unless the judgment creditor can prove that he continues to possess a secured interest in the property affected by such judgment or any judgment rendered in a tort proceeding wherein the judgment debtor’s liability arose out of his wilful negligence, or any other judgment otherwise not discharged in bankruptcy. (Emphasis provided.)

At issue in this litigation is what constitutes a secured interest, and whether Losa-vio possessed a secured interest coincident with and/or after Gauthier’s adjudication in bankruptcy.

The trial court, granting judgment for Gauthier, was apparently of the view that for the creditor to have a “secured interest” the value of the property must have exceeded the priming obligations, at the time of adjudication in bankruptcy, for the eviden-tiary focus was on the value of the property at the time of the adjudication and the trial judge stated that the creditor failed to “show that there was a continuing equity interest in the property.”

The Court of Appeal, 400 So.2d 921, relying on Kayda v. Johnson, 252 So.2d 708 (La.App. 1st Cir. 1971), held that the judgment creditor proves he has a secured interest in the property “by showing that the debtor has an equity therein over and above all encumbrances bearing against it” on the date of the bankruptcy adjudication, and that Losavio had not proven that Gauthier’s Palisades Drive property was worth more, on that date, than $114,093.46, the amount of the accumulated priming recorded mortgages.

We granted writs to determine whether the lower courts were correct in ordering the cancellation of the inscription of Losa-vio’s judgment against Gauthier’s Palisades Drive property.

When Gauthier was adjudicated a bankrupt in 1978, he was discharged from any personal liability he had in connection with Losavio’s judgment. However, under the Bankruptcy Act, a discharge in bankruptcy of the personal debt does not extinguish any lien that may have existed prior to the filing in bankruptcy. Lockwood v. Exchange Bank, 190 U.S. 294, 23 S.Ct. 751, 47 L.Ed. 1061 (1903). The enforceability of such liens against one who has been adjudicated a bankrupt, is a matter solely governed by state law, provided that such rules do not frustrate the purposes of the Bankruptcy Act. Local Loan Co. v. Hunt, 292 U.S. 234, 54 S.Ct. 695, 78 L.Ed. 1230 (1934); 93 A.L.R. 195. Therefore the interpretation of La.R.S. 9:5166, and whether Losavio’s lien may be cancelled by virtue of that statute, is a state matter.

It is contended that the term “secured interest” as used in La.R.S. 9:5166, is unrelated to property value; that a judgment creditor with a recorded judgment possesses a lien or secured interest from the time of recordation, irrespective of the value of the property at that time or at the time the judgment debtor filed his petition in bankruptcy. This contention is not supported by the jurisprudence. To the contrary, the cases support the proposition that the judgment creditor possesses a secured interest in the property on and/or after the date of the adjudication in bankruptcy (the date of filing of the petition) only if it can be shown that at the time of the adjudication there was an equity in the property over and above the outstanding priming liens. Braud v. Morgan, 372 So.2d 221 (La.App. 1st Cir. 1979); Kayda v. Johnson, 262 So.2d 171 (La.App. 3rd Cir. 1972), writs denied, 262 La. 469, 263 So.2d 728 (1972); Ferguson v. Citizens Bank and Trust Co., 265 So.2d 250 (La.App. 1st Cir. 1972); Jaubert v. Landry, 15 So.2d 158 (La.App. 1st Cir. 1943); 1A, Collier on Bankruptcy, § 17.29 at ftn. 5 (14th ed., rev. 1976).

In accordance with one of the well recognized purposes of the Bankruptcy Act, “to relieve the honest debtor from the weight of oppressive indebtedness and permit him to start afresh” (Local Loan Co. v. Hunt, supra) this Court in 1920 recognized that a judgment lien recorded more than four months prior to the bankrupt’s adjudication in bankruptcy, although not extinguished by the bankruptcy adjudication, could not be enforced against the property acquired by the debtor after that bankruptcy adjudication. Schexnailder v. Fontenot, 147 La. 467, 85 So. 207, 208 (1920).

Thereafter, the First Circuit, in Jaubert v. Landry, supra, addressed the question of whether the judgment creditor maintained the right to enforce his judgment lien after the debtor was adjudicated a bankrupt, against property that was disclaimed by the bankruptcy trustee. In Jaubert, decided in 1943, before the enactment of La.R.S. 9:5166 in 1970, the judgment creditor had brought suit to have his judgment revived. The debtor, whose personal liability had been extinguished by his discharge in bankruptcy, contested the revival action contending that he had had no equity in the property at the time of his bankruptcy adjudication over and above the secured balance on the purchase price and his homestead exemption. The court allowed the judgment to be revived, notwithstanding the existence of the homestead exemption, upon finding that there was equity in the property over and above simply the balance due on the priming mortgage.

The court reasoned:

If at the time of the adjudication in bankruptcy, this homestead was worth-considerably more than the balance of the purchase price, this excess would be property owned by the defendant at the time of the adjudication and subject to the mortgage resulting from the recordation of the judgment, and the property could be released from the judicial mortgage by the payment or tender of this excess in value. If, on the contrary, the defendant had shown in this proceeding, or can show in an appropriate proceeding taken against the judgment creditor, that at the time of the adjudication the property set apart to him as a homestead was worth no more than the balance due on the purchase price, he could have the homestead declared free from the judicial mortgage resulting from the recordation of the judgment.

The court in Jaubert concluded that the judgment creditor should not be barred from reviving his judgment where the debt- or had an equity in the property at the time of the bankruptcy adjudication above the balance due on the purchase price. That the creditor could not at that time enforce his lien because of the debtor’s homestead exemption was of no moment since the status of the debtor’s property as his homestead could change in the future, freeing up the equity that existed at the time of the bankruptcy adjudication to permit enforcement of the lien. A judgment inscribed prior to the debtor’s adjudication in bankruptcy is enforceable against property the debtor owned on that date, and is unenforceable only as to property acquired by the debtor after the bankruptcy adjudication. Local Loan Co. v. Hunt, supra; Schexnailder v. Fontenot, supra; 1A, Collier on Bankruptcy, § 17.30 (14th ed. rev. 1976)

Jaubert was concerned with equity (value in excess of mortgage lien) and the effect of the homestead exemption. As relates to the equity neither post adjudication mortgage reduction nor post adjudication increase in property value were involved under the facts of that case. The court held that where the debtor possessed some equity in the property at the time of the adjudication in bankruptcy the judicial mortgage remained effective against the property after the adjudication in bankruptcy.

Then, in 1970, La.R.S. 9:5166 was enacted by Act No. 588, § 1. The leading decision interpreting that statute is the First Circuit’s Kayda v. Johnson, supra. In that case the judgment debtor, who had received a discharge in bankruptcy after recordation of a judicial mortgage against him, filed a rule to have the inscription cancelled under La.R.S. 9:5166.

Originally the trial court held that the inscription could not be cancelled. On appeal, however, the court remanded the case for further proceedings upon finding that the trial court had erroneously placed the burden of proof on the debtor rather than upon the creditor as required by La.R.S. 9:5166. 252 So.2d 708 (La.App. 1st Cir. 1972). On remand the trial court ordered the inscription cancelled and the creditor appealed that judgment.

On appeal [262 So.2d 171 (La.App. 1st Cir. 1972), writs denied, 262 La. 469, 263 So.2d 728 (1972)] the Court of Appeal, stated:

The 1970 act [La.R.S. 9:5166] created a procedure for the cancellation of inscriptions by rule, provided for necessary parties, and established the burden of proof upon the judgment creditor. In enacting this statute, the legislature did not alter the prior existing substantive law relative to the effect of a judicial mortgage on property owned by the bankrupt at the time of the adjudication.

In recounting what the substantive law was prior to the enactment of La.R.S. 9:5166, the court concluded that “there was no way for the judgment to become effective against the property where the debtor had no equity at his adjudication in bankruptcy because of outstanding conventionally secured obligations,” but that “until La. R.S. 9:5166 the judgment debtor had no procedural vehicle for removing the judgment from such property.” Nonetheless the Court of Appeal reversed the trial court’s ordered cancellation for the reason that, as in Jaubert v. Landry, supra, there existed at the time of the bankruptcy adjudication equity (value above liens) for the continued attachment (and effect) of the judicial mortgage sought to be cancelled, notwithstanding that the then extant homestead exemption, temporarily at least, impeded enforcement of the judicial mortgage.

Therefore, the Courts of Appeal which have addressed the issue of the enforceability of pre-bankruptcy liens after the bankruptcy adjudication have held that those liens are not enforceable unless the disclaimed property is worth more, at the time of the bankruptcy adjudication, than the outstanding priming liens. Thus, the creditor could not enforce his judgment lien against equity the debtor acquires in the property post-bankruptcy. Jaubert v. Landry, supra. And, it was further held, after the enactment of La.R.S. 9:5166 in 1970, that the inscription of such unenforceable liens could be ordered cancelled. Braud v. Morgan, supra. The courts were careful to distinguish between equity arising after the adjudication, and equity the debtor possessed at the time of the bankruptcy adjudication although such was beyond the creditor’s reach because of the homestead exemption. In the latter case, where the debtor did have an equity in the property at the time of the bankruptcy adjudication, notwithstanding that the creditor could not enforce his lien against that equity because of the homestead exemption, the inscription of the judgment lien could not be ordered cancelled from the records. Kayda v. Johnson, supra.

The focus throughout the jurisprudence has consistently been upon the value of the property at the time of the bankruptcy adjudication, and necessarily so, in view of the bankruptcy act’s public policy expression that a pre-bankruptcy lien could not affect property acquired after the bankruptcy. Therefore, notwithstanding that the cases discussed above, excluding Schex-nailder, did not emanate from this Court, and that in some instances the pertinent language was dicta, we embrace the holdings in those cases.

Denying effect to the pre-bankruptcy lien upon equity arising only after the adjudication in bankruptcy is more in keeping with the public policy underlying the bankruptcy act to permit the bankrupt to “start afresh.” That result may not, however, be required by the federal law. Rather, what is determinative is our own state law, in particular, the interpretation reasonably to be given La.R.S. 9:5166.

Relator argues that the language “continues to possess a secured interest in the property” refers to possession of the secured interest at the time of the trial on the rule rather than at the time of the bankruptcy adjudication. We do not agree. The statute is concerned only with judgments that were recorded against the bankrupt prior to the bankruptcy adjudication and which are dischargeable in the bankruptcy proceedings. Thus the more reasonable reading of the statute indicates that “continues to possess”, as used therein, is referring to whether the judgment creditor, who had a secured interest in the property prior to the bankruptcy adjudication, “continues to possess” that secured interest at the time of the adjudication even though the debtor’s personal obligation on the judgment was discharged. This interpretation of the statute is fortified when we focus upon the apparent intention of the legislature in light of the state of the jurisprudence at the time the statute was enacted, as well as the nature and underlying policies of the bankruptcy law.

Thus, as we interpret La.R.S. 9:5166 the secured interest in the property which the creditor does or does not continue to possess is determined at the time of the bankruptcy adjudication. If the value exceeds the balance due on all outstanding priming encumbrances at that time, there is a secured interest in the property which the creditor continues to possess. To the extent that the creditor does prove that the value of the property is greater than the amount of the priming liens the creditor proves “that he continues to possess a secured interest” in the property on and after the date of the bankruptcy adjudication. Furthermore, given the interpretation which we place upon La.R.S. 9:5166, with the focus upon property value at the time of the bankruptcy adjudication, it becomes irrelevant whether there is a post adjudication equity buildup, and/or whether that buildup is the result of mortgage reduction or simply enhancement in property value.

Therefore, we must determine whether defendant Gauthier possessed any equity in the Palisades Drive property at the time of his adjudication in bankruptcy over and above the priming secured obligations. To the extent that Gauthier did possess such an equity in the property, Losavio would have continued to possess a “secured interest” in the property. Under La.R.S. 9:5166 the burden of proof is on Losavio, the creditor, to establish that secured interest.

In a case that seemed fairly close on the issue of whether the value of the property exceeded the mortgages which primed Lo-savio’s recorded judgment, we were prompted to grant the writ because of the contention that Gauthier had himself, in an admission against interest, valued the property in his bankruptcy petition at $120,-000.00, an amount which would have afforded approximately $6,000.00 of unaffected equity as security for Losavio’s $6,671.59 judgment.

This contention concerning the valuation admission appears both in relator’s writ application and brief to this Court, and in the Court of Appeal opinion. It is not, however, borne out by the record. Instead the property was valued on Gauthier’s bankruptcy petition at $100,000.00, and the priming mortgages stated to be $114,093.46. Consequently, Losavio’s position in this litigation, that the property’s value exceeded the mortgages which primed respondent’s judgment, is not supported by any admission of Gauthier’s. Relator’s assertion and the Court of Appeal’s finding or statement to that effect were simply incorrect.

The other facts and testimony concerning the value of the Palisades Drive property are clearly set forth in the Court of Appeal opinion and will not be fully repeated here. Suffice if to say that Losavio’s expert valued the property at $127,000.00 as of August, 1977 when the bankruptcy petition was filed, while the countervailing evidence rested principally on the fact that the property was put on the market in 1976 for eight months with an asking price of $125,-000.00, later reduced to $110,000.00, with only a single offer for $95,000.00 having been received. And, as stated above, the property was valued in Gauthier’s bankruptcy petition at $100,000.00.

The trial court held that Losavio “did not show that there was a continuing equity interest in the property” and ordered that the inscription of Losavio’s judgment be cancelled. The Court of Appeal affirmed that ruling. Because the factual findings of the lower courts are not clearly wrong and because the lower courts’ assessment of the law is also correct, we determine that relator is not entitled to relief.

Relator Losavio did not meet her burden of proof in establishing that she “continues to possess a secured interest” in Gauthier’s Palisades Drive property. La.R.S. 9:5166 therefore authorizes cancellation of the inscription of Losavio’s judgment.

Decree

We therefore affirm the judgments of the district court and Court of Appeal which ordered cancelled the inscription of relator’s $6,771.59 judgment.

AFFIRMED.

LEMMON, J., concurs.

BLANCHE and MARCUS, JJ., dissent and assign reasons.

BLANCHE, Justice

(dissenting).

I respectfully dissent. The majority opinion is in error because it equates a “secured interest” with equity. If, at the time of the bankruptcy, the bankrupt had sufficient equity in the property above the secured interest, it would not have been disclaimed. This writer believes that a “secured interest” in the property, whether by contract or operation of law, remains against the property until such interest is either satisfied or cancelled.

There may be instances where a lender will advance sums far in excess of the security at the time they were advanced and secured by a conventional mortgage. In such case, it would seem inequitable to discharge the conventional secured interest in the property because of a lack of equity at the time of the bankruptcy, especially when there was no equity when the secured interest was obtained.

The court of appeal opinions relied upon by the majority are wrong in discharging an in rem lien against property when the lienholder’s secured interest has not been satisfied or cancelled.

MARCUS, Justice

(dissenting).

I consider that the judgment creditor obtained a “secured interest” in the disclaimed property by recordation of his judgment more than four months before the judgment debtor’s adjudication in bankruptcy. 11 U.S.C. § 107(a)(1). His claim was in rem against the property. La.R.S. 9:5166 is a procedural vehicle that permits the cancellation of inscription of any dis-chargeable judgment rendered twelve months previously “unless the judgment creditor can prove that he continues to possess a secured interest in the property affected by such judgment.” Here, the judgment creditor met this burden by proving that his lien (judicial mortgage) against the property was not obtained within four months of the judgment debtor’s adjudication in bankruptcy and that he “continues” to possess that “secured interest” in the property. In other words, I consider that the words “secured interest” in the statute refer to the in rem right of the creditor in the property and is no way affected by the debtor’s equity or lack thereof in the property.

Moreover, the judgment creditor’s lien created vested rights in the debtor’s property. This lien was not affected by the debt- or’s discharge in bankruptcy but attached to property remaining in the hands of the bankrupt as exempt from the bankruptcy act. La.R.S. 9:5166 merely provides a method by which to erase dischargeable judgments which can no longer attach as liens to after-acquired property. To interpret the statute to allow a judgment which is a lien on the debtor’s property to be erased is to destroy vested rights in the property without providing for compensation. I consider that the majority opinion deprives the judgment creditor of a vested right in violation of his constitutional rights.

Accordingly, I respectfully dissent.

      . The property’s value was $1,500.00. There was a mortgage balance of $1,300.00. And the homestead exemption at that time was $4,000.00. La.Const., 1921, Art. XI, § 1, as amended by Act No. 42 of 1938.

      . As in Jaubert, the Court of Appeal in Kayda v. Johnson did not have need to consider equity buildup post adjudication nor any difference between mortgage reduction and value increase as affecting post adjudication equity buildup.

      . Jaubert v. Landry, 15 So.2d 158 (La.App. 1st Cir. 1972) and Kayda v. Johnson, 252 So.2d 708 (La.App. 1st Cir. 1972), after remand, 262 So.2d 171 (La.App. 1st Cir. 1972), writs denied 262 La. 469, 263 So.2d 728 (1972).

      .At the time La.R.S. 9:5166 was enacted in 1970, the leading case in this area of the law was Jaubert v. Landry, supra, in which it was expressly stated (note the quotation earlier in this opinion) that the existence of equity in the property at the time of the bankruptcy adjudication was determinative of whether a pre-bankruptcy lien was enforceable against the debtor’s property post bankruptcy. Although this was a Court of Appeal decision and not dispositive of the issue before us, consideration of the case is helpful in ascertaining the Legislature’s intent in enacting La.R.S. 9:5166.

      . Relator also makes the argument that, in determining whether the judgment creditor possesses a secured interest in the property, a determination of fair market value should be controlling. He suggests the trial judge was applying some standard other than fair market value, such as liquidity. We agree with the relator that fair market value is the test. We determine from the record, however, that essentially the trial judge applied the proper test, and in any event, that the record supports the fact that the fair market value of the property was something less than $114,000.00 at the time the petition in bankruptcy was filed.

      . This section was amended and redesignated as 11 U.S.C. 547(b) as part of the Congressional revision of the bankruptcy law. See Pub.L. 95-598, November 6, 1978, 92 Stat. 2549, U.S. Code Cong. & Admin.News 1978, p. 5787. The change only affects cases filed after October 1, 1979. Accordingly, those changes are not relevant to the instant case.


author: DENNIS, Justice. WATSON, Justice, MARCUS, Justice LEMMON, Justice,

text:
    STATE of Louisiana v. Reginald ROBICHEAUX and Jerome Powell, Jr.
    No. 81-KA-0192.
    Supreme Court of Louisiana.
    April 5, 1982.
    Dissenting Opinion of Lemmon, J., April 16, 1982.
    Rehearing Denied May 14, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Richard Pe-tre, Jr., and William R. Campbell, Jr., Asst. Dist. Attys., for plaintiff-appellee.
    Charles L. Elloie, New Orleans, for Reginald Robicheaux.
    John J. Dolan, New Orleans, for Jerome Powell, Jr.
   DENNIS, Justice.

On October 30, 1979, defendants Jerome Powell and Reginald Robicheaux, were jointly charged by bill of information with armed robbery. La.R.S. 14:64. Defendants’ initial trial on December 18, 1979, resulted in a mistrial because of prosecuto-rial error during closing argument. A second jury trial was conducted on January 24, 1980, resulting in a verdict of guilty as charged against both defendants. The state filed a subsequent bill of information alleging that Powell had been convicted of two previous felonies. After a hearing on the multiple bill on February 7, 1980, Powell was sentenced to 49V2 years at hard labor without benefit of probation, parole or suspension of sentence. Robicheaux filed a motion for a new trial, which was denied after several hearings on October 20, 1980. Robicheaux was sentenced to serve 25 years at hard labor without benefit of probation, parole or suspension of sentence. From these convictions, both defendants appealed.

The testimony of the victim of the armed robbery, an eyewitness, and the arresting officer revealed the following facts. At approximately 1:00 a. m. on October 20, 1980, Royal Jenkins had car trouble near the intersection of Basin and Dumaine Streets in New Orleans. Jenkins then walked to the corner of Basin Street and Claiborne Avenue to use a public telephone and attempted to call AAA for road service. This particular intersection is well traveled, well lighted, and near several popular late night lounges. As yet unsuccessful, Jenkins was making a final attempt to contact AAA at approximately 3:00 a. m. when he was accosted by two black men. One of the men pointed a gun in Jenkins’ face, said “Give it here,” and then snatched a gold chain and medallion from around Jenkins’ neck. After the robbers fled down Basin Street, Jenkins called the police, who arrived on the scene several minutes later. The officers instructed Jenkins to get in the back seat of the patrol car as they rode around the neighborhood in search of the robbers.

During the robbery, Gregory Clark, an off-duty security guard, had come from inside a nearby lounge and witnessed the crime from a distance of approximately fifteen feet away. After the robbers fled, Clark recognized another security officer, Alvin Brooks, approaching the scene down Basin Street. Clark informed Brooks that a robbery had just taken place and both men pursued the robbers. Approximately fifteen minutes later Clark and Brooks approached two men walking down North Robertson Street and Clark identified them as the robbers. Clark and Brooks apprehended the two men and returned with them to the scene of the crime. When they arrived, Jenkins immediately identified Powell and Robicheaux as the men who had robbed him some twenty minutes earlier. A search of the two revealed neither the medallion nor the weapon. Both Jenkins and Clark positively identified Powell and Robicheaux at trial as the robbers.

POWELL’S ASSIGNMENT OF ERROR NO. 1

On February 16,1978 Powell was convicted of simple burglary after a jury trial. On May 9, 1978, Powell pleaded guilty to another charge of simple burglary. Both of these previous convictions were used by the state to enhance Powell’s sentence pursuant to La.R.S. 15:529.1. In Powell’s first assignment of error he contends that the February 16, 1978 simple burglary conviction cannot be used against him because the record does not reflect that he was informed of his right to appeal. Art. I, § 19, Louisiana Constitution of 1974.

This assignment is without merit. The record clearly indicates that the trial judge advised Powell that he had a right to appeal his conviction. The minute entry from the date of sentencing states, “[t]he court informed the defendant that he had a right to take a suspensive appeal to the Supreme Court. The Court further explained to the defendant in the event he could not afford an attorney that an attorney would be furnished by the court to represent the defendant on appeal without cost to him.”

POWELL’S ASSIGNMENT OF ERROR NO. 2

In his second assignment of error Powell contends that the May 9,1978 guilty plea to simple burglary cannot be used against him because the transcript from the guilty plea fails to show that he was adequately informed of his rights before pleading guilty.

A review of the transcript of Powell’s guilty plea reveals that Powell was informed by the trial court that by pleading guilty, “You also give up the right to remain silent because by pleading guilty you’re not remaining silent.” The transcript does not reflect that Powell was informed that he had a right to remain silent at trial. The record is devoid of evidence indicating that Powell received advice concerning his privilege against self-incrimination from any other source. Powell did sign a guilty plea form, but the form does not mention the right against self-incrimination.

The United States Supreme Court in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), noted that several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial, viz., the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the states by reason of the Fourteenth, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), the right to trial by jury, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), and the right to confront one’s accusers, Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), and held that it “cannot presume a waiver of these three important federal rights from a silent record.” 395 U.S. at 243, 89 S.Ct. at 1712.

This court in State ex rel Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971), expounding Boykin, held that “in taking a plea of guilty, an express and knowing waiver of at least these three federal constitutional rights must be made which waiver cannot be presumed.” 260 La. at 103, 255 So.2d 85.

In State v. Martin, 382 So.2d 933 (La.1980), this court held that a plea based on a colloquy similar to that in question was not shown to have been intelligent and voluntary, and could not be used as a predicate for a subsequent charge. In that case the transcript of the predicate plea of guilty showed that the trial judge’s sole reference to defendant’s right against self-incrimination was as follows: “By pleading guilty, you’re also waiving your right to remain silent because you’re not remaining silent when you plead guilty.”

In Martin, applying the principles of Boykin and State ex rel Jackson v. Henderson, this court held that the information conveyed by this presentation of an accused’s right against self-incrimination was insufficient because it failed to inform the defendant of his right to stand trial without being forced to testify against himself; because the choice to stand trial is the crux of the decision to plead guilty; because an accused cannot make this choice intelligently if he is unaware of the rights he may exercise at trial; and because the record did not show in any way that the defendant intended to waive his right not to testify against himself at trial. State v. Martin, supra.

The colloquy in the present case shows that the information conveyed to Powell about his right against self-incrimination was equally deficient. Insofar as the record discloses, the defendant was not informed of his right to stand trial without being forced to testify against himself. For this reason, his guilty plea should not have been used as a basis for the multiple offender charge against him.

The case of State v. Bowick, 403 So.2d 673 (La.1981), is inapposite to the present case. Unlike the present case, the record of the predicate plea in Bowick was not completely silent as to the defendant’s knowledge and voluntary waiver of his right to stand trial without being forced to testify against himself. In a written waiver form signed at the entry of the guilty plea defendant acknowledged that his attorney had previously advised him of his privilege against self-incrimination. He also acknowledged that his lawyer had explained he was giving up that right by pleading guilty and was admitting his crime. Further, the trial court carefully reviewed those matters with defendant in a colloquy on the record. The judge made sure that defendant understood that by pleading guilty he was giving up his right to have a jury decide his guilt, his right to confront his accusers, his privilege against self-incrimination, and his right to present evidence on his own behalf. Defendant unreservedly responded in an affirmative manner, clearly revealing an awareness of the rights being relinquished by his plea. The trial court also made sure defendant understood that by pleading without reservation he was giving up his right to contest such matters as the seizure of evidence by the police. The judge also carefully explained the possible sentence to which defendant was exposed and carefully determined that no promises had been made regarding the sentence to be imposed. 403 So.2d at 674.

Thus, the Bowick case is distinguishable from Boykin, Martin and the present case because there was enough evidence of defendant’s knowledge of his privilege against self-incrimination for a majority of this court to infer reasonably that he was aware that he had a right to stand trial without being forced to testify against himself. In the present case, as in Boykin and Martin, there is no evidence of record to support such a rational inference.

Accordingly, the trial court erred in its failure to quash Powell’s May 9,1978 guilty plea and exclude it as a predicate for the multiple offender adjudication.

ROBICHEAUX’S ASSIGNMENT OF ERROR NO. 1

By this assignment of error, Robicheaux argues that the trial court committed reversible error in denying his new counsel’s motion for a continuance. After the initial trial of both defendants ended in a mistrial on December 18,1979, a minute entry dated December 21, 1979, shows that Robicheaux retained new counsel on that date. The second trial of both defendants was set for January 24, 1980. Robicheaux claims that the denial of the motion for continuance precluded his new counsel from interviewing witnesses whose testimony was relevant to his defense. ( (Both of these witnesses testified at a hearing on Robicheaux’s motion for a new trial.)

The record does not reflect that either an oral or written motion for a continuance was made by Robicheaux’s newly retained counsel. In any case, a motion for a continuance must be in writing and allege specifically the grounds upon which it is based. La.C.Cr.P. art. 707. When no written motion for continuance appears of record, the denial thereof will not be considered. State v. Jones, 340 So.2d 563 (La.1976); State v. Bullock, 329 So.2d 733 (La.1976). Moreover, new counsel became attorney of record more than one month prior to the trial date and was presumably aware that Robicheaux’s initial trial had just ended in a mistrial. On the facts of this case it does not appear that one month would be insufficient time for new counsel to prepare his case. This assignment is without merit.

ROBICHEAUX’S ASSIGNMENT OF ERROR NO. 2

By this assignment of error Robicheaux argues that the trial court erred in denying his motion for a new trial based on newly discovered evidence. At two hearings on the motion for a new trial Robicheaux presented testimony of Peter C. Bonura and Melvin Matthews. In an effort to discredit the victim’s testimony that he had attempted to call AAA, Bonura, an employee of AAA, was called to testify that there was no record of a Mr. Royal Jenkins reporting to AAA that he had car trouble on the date of the crime. In an effort to discredit the identification of Robicheaux by the victim and eyewitness, Matthews, a hot dog vendor operating in the vicinity of the robbery on the night of the offense, testified that there “were quite a few people on the street” on the night of the offense and that he did not witness the robbery.

The court is required to grant a new trial whenever new and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was riot discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict of guilty. La.C.Cr.P. art. 851(3). Neither the appellate nor supervisory jurisdiction of the Supreme Court may be invoked to review the refusal to grant a new trial, except for error of law. Great weight must be attached to the exercise of the trial judge’s discretion, which should not be disturbed on review if reasonable men could differ as to the propriety of the trial judge’s action. State v. Talbot, 408 So.2d 861 (La.1981); State v. Jackson, 253 La. 205, 217 So.2d 372 (1968). This court should defer to the trial court’s reasonable decision in a situation calling for discretion when resolving a new trial motion. State v. Talbot, supra.

The trial court correctly denied the motion for a new trial. The testimony of Bonura and Matthews was rebuttal and impeachment evidence that could have been discovered with reasonable diligence before this second trial, especially since defendant had the benefit of a preview of the state’s case upon the first trial which ended in a mistrial. Furthermore, even if this evidence had been newly and diligently discovered, it probably would not have changed the verdict of guilty because neither it nor any of the evidence introduced at trial, directly or indirectly, seriously disputed the identification testimony of the security guard and the victim.

This assignment is without merit.

ROBICHEAUX’S ASSIGNMENT OF ERROR NO. 3

By this assignment Robicheaux contends that his twenty-five year sentence, without benefit of probation, parole or suspension of sentence, is excessive. A sentence for armed robbery must be served at hard labor without benefit of parole, probation or suspension and may range from a minimum of five years to a maximum of ninety-nine years.

Robicheaux argues that the trial court failed to follow the requirements of La.C. Cr.P. art. 894.1 in that the trial court did not consider any mitigating circumstances, nor did the court state for the record the considerations taken' into account and the factual basis therefor in imposing sentence. Robicheaux claims that he is an honorably discharged veteran, with two years of college and no prior record of felony convictions.

The transcript of the sentencing hearing conducted on October 22, 1980 reveals that the trial court asked Robicheaux his age and place of birth. After Robicheaux responded that he was twenty-four years old and from New Orleans, the trial court sentenced him to twenty-five years at hard labor. Upon request by defense counsel to state the reasons for the sentence, the court responded, “The factual basis and this is Armed Robbery.” The trial court ordered that a pre-sentence investigation be conducted. The report of the investigation reveals that Robicheaux is twenty-five years old and a full time student at Southern University in New Orleans. The report confirms Robicheaux’s assertion that he has no previous felony convictions; his only previous conviction being for “Municipal Theft” for which he was fined $10.00 in March of 1975.

Trial judges are granted great discretion in imposing sentences, but even sentences within statutory limits may be excessive under certain circumstances. State v. Jones, 398 So.2d 1049 (La.1981); State v. Spencer, 374 So.2d 1195 (La.1979). Sentences must be individualized to be compatible with the offenders as well as the offenses. In deciding whether to confine a defendant or grant probation, the judge must consider certain factors enumerated in La.C.Cr.P. art. 894.1(A)(B). State v. Jones, supra. This article entitles the defendant to such an articulation and represents a legislative attempt to guide the trial judge in thoughtfully imposing an appropriate sentence under the facts and circumstances of the particular case. Also this serves as an important aid to this court when called upon to exercise its constitutional function to review a sentence complained of as excessive. State v. Ramos, 390 So.2d 1262 (La.1980). When the trial judge fails to state any reasons for the sentence a remand may be necessary. State v. Ortego, 382 So.2d 921 (La.1980).

This court has indicated, however, that a remand for more complete compliance with Article 894.1 is not necessary when the sentence imposed is not apparently severe, State v. Russel, 397 So.2d 1319 (La.1981), or where the record otherwise clearly illumines the sentencing choice, State v. Martin, 400 So.2d 1063 (La.1981) (On Rehearing). However, when the trial court does not articulate the reasons for imposing a particular sentence and there is no other evidence of record to illumine the sentencing choice, a sentence even within the lower range of sentences available to the trial court may appear to be arbitrary or excessive. State v. Williams, 397 So.2d 1287 (La.1981); State v. Ortego, supra.

The American Bar Association Standards for Criminal Justice Relating to Sentencing Alternatives and Procedures, Standard 2.1(d) (1968 Supplement), provides:

“It should be recognized that in many instances in this country the prison sentences which are now authorized, and sometime required, are significantly higher than are needed in the vast majority of cases in order adequately to protect the interests of the public. Sentences of twenty-five years or longer should be reserved for particularly serious offenses or, under the circumstances set forth in sections 2.5(b) and 3.1(c) (special term), for certain particularly dangerous offenders. For most offenses, on the other hand, the maximum authorized prison term ought not to exceed ten years except in unusual cases and normally should not exceed five years.”

On the record before us, the sentence of twenty-five years at hard labor without the possibility of parole appears to be arbitrary and excessive. There is no evidence in the record indicating that Robi-cheaux is an extremely dangerous offender. According to the record, he has no previous felony convictions, and although Robicheaux has other misdemeanor arrests prior to the present offense, his only prior conviction was for a non-violent misdemeanor over five years ago. The defendant is twenty-five years old and a full-time student at Southern University in New Orleans. Although the crime of armed robbery is one which tends to invoke a single image in the minds of many, and one which is typically, and often justifiably, thought to demand a harsh sentence, there are many different kinds of robberies and many kinds of offenders who commit them. See ABA Standards § 2.1(d), supra. In comparison, this court has approved a sentence of fifteen years at hard labor without parole as being not apparently severe in the case of a defendant convicted of armed robbery of a 7-11 Food Store in New Orleans whose age, education, criminal record and other characteristics were not stated in the record. State v. Jones, 381 So.2d 416 (La.1980). By contrast, the defendant in this case received a substantially more severe sentence, although on the record his case appears to be much more sympathetic. In addition to the positive points stated earlier, his crime consisted of the armed robbery of a medallion on the street, rather than the robbery of a convenience store’s cash register, which has more earmarks of habitual criminal activity.

Because of all these factors, we are unable to infer from the record in this case a reasonable basis for the sentence of twenty-five years at hard labor without parole. Accordingly, the sentence will be vacated and the case remanded for a sentencing. In imposing the new sentence, the trial judge is directed to comply with the mandatory requirements of La.C.Cr.P. art. 894.1, individualizing the sentence by stating for the record the considerations taken into account and the factual bases therefor. State v. Cox, 369 So.2d 118 (La.1979); State v. Sepulvado, 367 So.2d 762 (La.1979).

ROBICHEAUX’S ASSIGNMENT OF ERROR NO. 4

By this assignment Robicheaux argues that the trial court erred in denying his motion for severance. He claims to have been prejudiced by being tried jointly with Powell, a previously convicted felon.

There is no indication in the record, transcripts or minute entries that Robi-cheaux made an oral or written motion for severance. It appears that this argument is being advanced for the first time on appeal. An irregularity or error cannot be availed of after verdict unless it was objected to at the time of trial. La.C.Cr.P. art. 841. Moreover, since neither defendant testified at trial, Powell’s previous felony convictions were not revealed to the jury.

This assignment is without merit.

ROBICHEAUX’S ASSIGNMENT OF ERROR NO. 5

By this assignment Robicheaux argues for the first time on appeal that it was reversible error to convict him of armed robbery of a gold chain when the bill of information charged robbery of $185.00 in United States currency. This assignment is without merit. The bill of information alleged that Powell and Robicheaux “robbed one Royal Jenkins of property of the value of One Hundred and Seventy-Five ($175.00) Dollars in the lawful money of the United States of America.” [emphasis added] Moreover, a defendant cannot complain of the insufficiency of an indictment after verdict unless it is so defective that it does not set forth an identifiable offense against the laws of this state, and inform the defendant of the statutory basis of the offense. State v. Storms, 406 So.2d 135 (La.1981); State v. James, 305 So.2d 514 (La.1974). Clearly, the present indictment informed the defendant of the offense with which he was charged and the statutory basis thereof.

This assignment is without merit.

Decree

For the reasons assigned, defendant Powell’s adjudication and sentence as a third felony offender within the meaning of La. R.S. 15:529.1 are set aside. Defendant Ro-bicheaux’s conviction is affirmed but the sentence imposed is vacated and set aside. The cases are remanded for proceedings not inconsistent with the views expressed herein.

WATSON, J., concurs and assigns reasons.

MARCUS and LEMMON, JJ., dissent and assign reasons.

BLANCHE, J., dissents for reasons assigned by MARCUS, J.

WATSON, Justice,

concurring.

As to the issue presented by Powell’s assignment of error number two, I reluctantly concur in the finding that the advice given as to the right against self-incrimination was insufficient. The rule in State v. Martin, 382 So.2d 933 (La., 1980) is a borderline situation when compared to the Boykin advice in State v. Hayes.

Likewise, the conclusion that twenty-five years is an excessive sentence on its face for the armed robbery in this case is a close call, although there is certainly no harm in remanding for further articulation.

Therefore, I respectfully concur.

MARCUS, Justice

(dissenting).

In my view, when the trial judge informed Powell that, “[y]ou also give up the right to remain silent because by pleading guilty you’re not remaining silent, he substantially complied with the Boykin requirement that defendant be informed that by pleading guilty he would be waiving his “privilege against compulsory self-incrimination.” Hence, I consider that the trial judge properly denied defendant’s motion to quash the May 9, 1978 guilty plea. Accordingly, I dissent from the setting aside of Powell’s adjudication and sentence as a third felony offender. Moreover, I do not consider that Robicheaux’s sentence of twenty-five years for being convicted of robbing a person at gunpoint is unconstitutionally excessive. Accordingly, I dissent from his sentence being vacated and set aside.

LEMMON, Justice,

dissenting in part.

This court’s decision in State v. Martin, 382 So.2d 933 (La.1980), is wrong and should be repudiated as an unreasonably formalistic approach.

The decision in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), did not establish a sort of “Miranda” warning for guilty pleas. The Court did not require that the defendant, prior to his plea of guilty, be informed in literal terms of his right to remain silent at trial. Boy-kin simply required, as a matter of constitutional due process, that the record (either on direct appeal or as developed in a postconviction hearing) establish that the defendant entered the plea of guilty voluntarily and knowingly. Although the decision pointedly noted that a silent record does not show that the defendant was aware of the important constitutional rights relinquished by a guilty plea (such as the right to trial by jury, the right to confront his accusers and the right against self-incrimination), the Court did not attempt to establish any fixed procedure for determining whether the record shows defendant made a knowing and voluntary waiver. McChesney v. Henderson, 482 F.2d 1101 (5th Cir. 1973), cert. denied, 414 U.S. 1146, 94 S.Ct. 901, 39 L.Ed.2d 102 (1974).

This court’s decision in State ex rel Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971), laid down, as a jurisprudentially established supervisory rule (similar to the legislatively established F.R.Cr.P. 11), the requirement that trial courts, prior to accepting a guilty plea, at least inform the defendant of the three constitutional rights mentioned in the Boykin decision. This was a good supervisory rule (though not as thorough as F.R.Cr.P. 11), and it was one which was simple and easy for trial courts' to follow. Since the Boykin and Jackson decisions, Louisiana trial judges have generally engaged in an on-the-record colloquy with the defendant at the time of the guilty plea in order to insure that the defendant is entering the plea voluntarily and with full knowledge of the consequences. This is all that was constitutionally required by Boy-kin — that the record establish that the defendant entered his plea voluntarily an& with knowledge of its consequences.

When an appellate court reviews a guilty plea for constitutional validity, the determination depends on the totality of circumstances in each individual case and not on any three-right articulation or other magic word formula. In the present case there was no constitutional violation, and we are not required by the Boykin decision or by any other constitutional principle to deny the state the use of the prior conviction to enhance defendant’s sentence for his subsequently committed offense. The supervisory rule announced in the Jackson case arguably might justify setting aside a guilty plea in a direct appeal from that conviction, but it is not necessary to enforce the Jackson rule by preventing the state from seeking legislatively sanctioned enhanced penalties for repeat offenders who pleaded guilty in a constitutionally satisfactory proceeding. This reasoning is particularly applicable when (as here) defendant was represented at the plea by counsel (whose competency is unquestioned) and when (as here) the record not only reflects complete compliance with Boykin’s constitutional requirement, but also reflects substantial compliance with Jackson’s supervisory rule.

      . State v. Martin was overruled in part by State v. Williams, 392 So.2d 448, to the extent that the Martin decision allowed an attack on a conviction used as a predicate for a felon with a firearm charge. While the Williams decision disallowed collateral constitutional attacks of predicate felonies in such cases, it did not invalidate the views expressed in Martin regarding the need for proper “boykinization.” State v. Halsell, 403 So.2d 688 (La.1980).

      . This is not a case where the occurrences which allegedly made the continuance necessary arose unexpectedly or where the record reflects that the trial judge was fully aware of the grounds upon which defendant’s motion was based and ruled thereon. See State v. Parsley, 369 So.2d 1292 (La.1979).

      . Such a procedure was eventually established by F.R.Cr.P. 11(c) and (d), which provide:
      “(c) Advice to Defendant. Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform him of, and determine that he understands, the following: ■
      “(1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law; and
      “(2) if the defendant is not represented by an attorney, that he has the right to be represented by an attorney at every stage of the proceeding against him and, if necessary, one will be appointed to represent him; and
      “(3) that he has the right to plead not guilty or to persist in that plea if it has already been made, and he has the right to be tried by a jury and at that trial has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself; and
      “(4) that if he pleads guilty or nolo conten-dere there will not be a further trial of any kind, so that by pleading guilty or nolo con-tendere he waives the right to a trial; and
      “(5) that if he pleads guilty or nolo conten-dere, the court may ask him questions about the offense to which he had pleaded, and if he answers these questions under oath, on the record, and in the presence of counsel, his answers may later be used against him in a prosecution for perjury or false statement. “(d) Insuring That the Plea is Voluntary. The court shall not accept a plea of guilty or nolo contendere without first, by addressing the defendant personally in open court, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement. The court shall also inquire as to whether the defendant’s willingness to plead guilty or nolo contendere results from prior discussions between the attorney for the government and the defendant or his attorney.”

      . Although the “three-right articulation” rule of Jackson was intended as a minimum procedure for compliance with the constitutional due process concepts outlined in Boykin, it is arguably much more important to explain to an accused tfye elements of the offense and the maximum penalty exposure, rather than to parrot some wording advising him of his right to trial by jury.


author:
WATSON, Justice.
     DENNIS, Justice, CALOGERO, Justice,

text:
    STATE of Louisiana v. Joseph HAYES, Jr.
    No. 81-KA-0825.
    Supreme Court of Louisiana.
    April 5, 1982.
    Rehearing Denied May 14, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Harold J. Gilbert, John H. Craft, Asst. Dist. Attys., for plaintiff-appellee.
    Clyde Merritt, New Orleans, for defendant-appellant.
   WATSON, Justice.

Defendant, Joseph Hayes, Jr., was charged in separate bills of information with possession of heroin, LSA-R.S. 40:966, and possession of a firearm following a previous felony conviction, LSA-R.S. 14:95.-1. He pleaded guilty to both charges and received concurrent hard labor sentences of four years for heroin possession and three years for the firearm offense. Subsequently, he was declared a fourth felony multiple offender. The trial court imposed the minimum sentence, twenty years at hard labor without benefit of probation, parole or suspension of sentence. LSA-R.S. 15:529.1. Defendant has appealed from his adjudication and sentencing as a fourth offender, filing four assignments of error.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant alleges the trial courts in Orleans Parish failed to comply with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) in accepting his 1961 plea of guilty to theft and his 1964 plea of guilty to armed robbery. Thus, it is argued that those pleas were not proven to have been knowing and voluntary.

State v. Bolton, 379 So.2d 722 (La.1979) stated that counseled pleas before the decision in Boykin v. Alabama, supra, are presumed valid without the express waiver of constitutional rights subsequently required by Boykin. Although he had counsel, defendant argues that the state must affirmatively establish the voluntariness of the plea with additional evidence. Bolton allowed the state to rely solely upon an uncontroverted minute entry showing a counseled pre-Boykin plea of guilty to a felony in a Louisiana state court as proof of a valid prior conviction. 379 So.2d at 724. Since uncontroverted minute entries show that this defendant was represented by counsel when he entered the 1961 and 1964 guilty pleas, the state satisfied the burden imposed on the prosecution by State v. Bolton, supra, and presented prima facie proof of the two pre-Boykin convictions.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant contends that the 1972 aggravated battery conviction is invalid because he was not adequately informed of his right against self-incrimination.

The transcript of the 1972 proceeding in which Hayes entered a plea of guilty to aggravated battery shows that the trial judge referred to defendant’s right against self-incrimination in the following terms:

“Q. You have the right to remain silent, if you choose; do you understand that right?”

Immediately preceding this question, defendant had been informed of his right to a jury trial and his right to confront the witnesses against him. The bill had been amended from first degree murder to aggravated battery. Accompanied by counsel, defendant pleaded guilty to the latter, apparently as a result of a plea bargain. There was meager but adequate compliance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

There is no merit to this assignment.

ASSIGNMENT OF ERROR NUMBER THREE

Defendant pleads double jeopardy due to the prosecution’s use of his 1972 aggravated battery conviction as both an element of his felon-firearm conviction and as a predicate for his multiple offender adjudication.

The Double Jeopardy Clause of the Fifth Amendment, applicable to the states through the Fourteenth, provides that no person shall “be subject for the same offenses to be twice put in jeopardy of life or limb.” Art. 1, § 15 of 1974 Louisiana Constitution contains a similar guarantee. Separate statutory crimes need not be identical—either in constituent elements or in actual proof—in order to be the same within the constitutional prohibition. Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); 1 J. Bishop, New Criminal Law, § 1051 (8th Ed. 1892); Comment, Twice in Jeopardy, 75 Yale L.J. 262, 268-269 (1965).

Designed to embody the protection afforded by the common-law, the double jeopardy guarantee serves principally as a restraint on courts and prosecutors. The legislature remains free to define crimes and fix punishments. Once the legislature has acted, a coúrt may not impose more than one punishment for the same offense and the prosecution ordinarily may not attempt to secure that punishment in more than one trial. Brown v. Ohio, 432 U.S. at 165, 97 S.Ct. at 2225, 53 L.Ed.2d at 193-194. State v. Doughty, 379 So.2d 1088, 1090 (La., 1980).

Under these precepts, defendant has not been twice put in jeopardy of life or limb for the same offense. He has been punished once for aggravated battery, once as a felon with a firearm, and once for heroin possession. The habitual offender statute does not create new or separate offense based on the commission of more than one felony but merely provides for imposition of an increased sentence for persons convicted of second and subsequent felonies. State v. Sanders, 337 So.2d 1131 (La., 1976). Although the aggravated battery conviction was used in the multiple offender adjudication to decide the defendant’s status, the punishment he received was for heroin possession only. Similarly, the legislature has imposed an increased penalty on the possessor of a weapon who has the status of a convicted felon. Although the aggravated battery was used to determine the defendant’s status as a felon, he was not punished again for aggravated battery but for possession of a firearm after being convicted of a felony.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER FOUR

Defendant contends the trial judge erred in adjudicating him as a fourth felony offender without a hearing or guilty plea. A defendant is entitled to a hearing in a multiple offender proceeding. LSA-R.S. 15:529.1(D). State v. McCallister, 366 So.2d 1340 (La., 1978). In the present case, the three predicate guilty pleas were challenged by counsel through motions to quash. At the hearings on these motions, counsel was permitted to present testimony and argument, and had the opportunity to offer other evidence. Further hearing or opportunity to present evidence was not requested. Counsel submitted the case, reserving the right to appellate contest of the judge’s rulings on the motions to quash. Defendant was afforded his “right to be tried as to the truth” of the allegations of the information accusing him of previous convictions. See LSA-R.S. 15:529.1(D).

This assignment lacks merit.

DECREE

For the foregoing reasons, the conviction and sentence of defendant, Joseph Hayes, Jr., are affirmed.

AFFIRMED.

KLIEBERT, J. ad hoc, concurs in the result.

CALOGERO, J., dissents and assigns reasons.

DENNIS, J., dissents with reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent.

I agree that the effort to comply with Boykin v. Alabama was meager. It was, in fact, deficient.

In State v. Martin, 382 So.2d 933 (La.1980), this court held that a plea based on a colloquy similar to that in question was not shown to have been intelligent and voluntary and could not be used as a predicate for a subsequent charge. The information conveyed by such a presentation of an accused’s right against self-incrimination is insufficient because it fails to inform the defendant of his right to stand trial without being forced to testify against himself; because the choice to stand trial is the crux of the decision to plead guilty; because an accused cannot make this choice intelligently if he is unaware of the rights he may exercise at trial; and because the record does not show in any way that defendant intends to waive his right not to testify against himself at trial. Id. 936. The cases of State v. Bowick, 403 So.2d 673, (La.1981); State v. Cusher, 400 So.2d 601 (La.1981), and State v. Warren, 402 So.2d 662 (La.1981) are all distinguishable from the present case for similar reasons.

Unlike the present case, the record of the predicate pleas in those cases was not completely silent as to the defendant’s knowledge and voluntary waiver of his right to stand trial without being forced to testify against himself and his right to confront the witnesses against him. In those cases there was a written waiver form, previous court appearances, and attorneys’ written certification of advisement of rights, and other matters of record from which a majority of this court could reasonably infer that the accused had made a knowing and intelligent waiver of his constitutional rights in pleading guilty. In the present ease there is no evidence of record whatsoever to support an inference that the defendant knowingly and intelligently waived his right not to testify against himself.

CALOGERO, Justice,

dissenting.

I dissent from the majority opinion being of the view that this case is indistinguishable from State v. Martin, 382 So.2d 933 (La.1980) in which this Court held that a guilty plea based on a colloquy similar to the one in this case was not shown to have been intelligently and voluntarily entered.

Therefore, for this reason, as well as the reasons assigned in dissent by Justice Dennis, I dissent from the majority opinion.

       Judge Ned E. Doucet, Jr., of the Court of Appeal, Third Circuit, and Thomas J. Kliebert and Robert J. Klees of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon and Associate Justices Caiogero, Dennis, and Watson.

      . The four predicate felonies charged by the state are:
      (1) June 12,1961, guilty plea to theft in violation of LSA-R.S. 14:67;
      (2) January 14, 1964, guilty plea to armed robbery in violation of LSA-R.S. 14:64;
      (3) September 21, 1972, guilty plea to aggravated battery in violation of LSA-R.S. 14:34;
      (4) May 7, 1980, guilty plea to possession of heroin in violation of LSA-R.S. 40:966.

      . Following denial of the motions to quash on June 24, 1980, defendant’s application for writs was denied by this court on grounds that alleged defects in the multiple bill proceedings are prematurely raised prior to sentencing on the multiple bill. After denial of his writ application, the trial court sentenced defendant.

      . Defendant has the burden of proving that the plea was involuntary and may do so in the enhancement proceedings only by the colloquy at the time of the plea of guilty, which must affirmatively show a substantial defect in this regard. Bolton, supra, at 723.

      . United States v. Wilson, 420 U.S. 332, 339-340, 95 S.Ct. 1013, 1020-1021, 43 L.Ed.2d 232, 239-241 (1975).


author: LEMMON, Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. Ronald WILLIAMS.
    No. 81-KA-2622.
    Supreme Court of Louisiana.
    April 5, 1982.
    Rehearing Denied May 14, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., Glynn F. Voisin, William G. Yates, Asst. Dist. Attys., for plaintiff-appellee.
    Prentiss Cox, Houma, for defendant-appellant.
   LEMMON, Justice.

The only issue in this appeal is whether the sentence was excessive.

Defendant was convicted of forgery and sentenced to five years imprisonment. On appeal this court affirmed the conviction, but set aside the sentence and remanded for compliance with the sentencing guidelines of C.Cr.P. Art. 894.1. State v. Williams, 396 So.2d 296 (La.1981). The trial judge allowed defendant to make a statement concerning mitigating circumstances and then again imposed a five-year sentence, stating his reasons therefor. Defendant then filed the present appeal.

Defendant had cashed a $374 check, knowing the check was forged, at a liquor store and obtained cash and merchandise. The check was drawn on the account of Blue Triangle, a non-profit organization formed to fund social functions and disaster relief for certain corporate employees. This check was one of several blank checks which had been removed from Blue Triangle’s office.

At the hearing on remand in May, 1981, defendant took the stand and stated only that he had a wife and two children and that since August, 1980 (when he was released on bail during appeal in the present case) he had been working and had remained out of trouble since he was released in August, 1980. The trial judge then reviewed defendant’s record and noted that his only prior conviction was in 1967 for the crime of illegal carrying of weapons, a misdemeanor. However, the trial judge further reviewed defendant’s record of numerous arrests, including simple battery, aggravated battery (on two occasions), simple burglary (one in 1968 and one in 1970), obtaining barbiturates with a forged prescription, and forgery of a narcotics prescription. Because of this conviction and arrest record, and because the judge found most of the statutory mitigating circumstances inapplicable, the judge reimposed the original sentence.

On appeal defendant points out that he is a first felony offender, that his only misdemeanor conviction occurred 13 years before this incident, that none of the charges on which he was arrested were ever prosecuted, and that the only arrest less than ten years old involved a 1979 fistfight. He therefore contends that since he had led a law-abiding life for a substantial period of time before this incident, he was an excellent prospect for rehabilitation through probation.

The maximum sentence for forgery is ten years and a $5,000 fine. The penalty imposed lies at the midpoint of the sentencing range. While defendant’s family and job status, his record of being substantially free of criminal activity for a long period, and the non-violent nature of this crime arguably weigh in favor of probation or a lesser sentence, the choice of sentences within the statutory range lies within the sound discretion of the trial judge, subject only to the constitutional prohibition against excessive sentences. Here, the trial judge carefully articulated the basis for the sentence after considering appropriate factors, including defendant’s history of criminal activity.

After considering the entire record, we decline to substitute our judgment as to the length of the sentence for the considered judgment of the trial judge.

The sentence is affirmed.

DENNIS, J., dissents with reasons.

MARCUS, J., dissents for reasons assigned by DENNIS, J.

DENNIS, Justice,

dissenting.

I respectfully dissent.

This is defendant’s first felony conviction, the amount of the forged instrument was relative small ($374), and defendant has been arrested only once between 1972 and the present arrest and conviction. The sentence of five years at hard labor for forgery is grossly out of proportion to the severity of the crime, State v. Bonanno, 384 So.2d 355 (La.1980), and makes no measurable contribution to acceptable goals of punishment. State v. Williams, 397 So.2d 1287 (La.1981).

      . Both arrests and convictions may be considered in imposing sentence, as long as defendant, as here, is given notice of the derogatory information and is afforded a chance to speak in mitigation. In some cases it may be preferable to ascertain the factual basis for an arrest from such sources as police reports or presentence investigation reports. The sources of information upon which trial judges may draw in determining an appropriate sentence must be wide and varied, and not subject to the normal restrictions imposed in the guilt determination phase of the proceedings. See Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949).