text:
    Wayne HOWARD v. HOUSING AUTHORITY OF NEW ORLEANS.
    No. 83 CA 1143.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.

      Joel P. Loeffelholz, Jacobs, Loeffelholz & Trestman, New Orleans, for appellant.
    Dennis Dannel, Gerdes & Yalteau, New Orleans, for appellee.
    Robert R. Boland, Jr., Civil Service Legal Counsel, Dept, of State Civil Service, Baton Rouge, for Herbert L. Sumrall.
    Before COLE, CARTER and LANIER, JJ.
   LANIER, Judge.

This is an appeal from a decision of the State Civil Service Commission (Commission) which affirmed the action of the Housing Authority of New Orleans (HANO) terminating a classified employee.

PROCEDURAL FACTS

By letter dated July 2, 1982, Wayne Howard was terminated effective that date as a carpenter for HANO for the following reasons:

1. — Unauthorized absence from your assigned work area.
On Wednesday, June 30, 1982, at about 8:00 a.m. you and Mr. Moll were assigned to work at 1412 Annunciation St. Apt. H. At approximately 2:00 p.m. Mr. Laurent Boutee, Executive Assistant, received a phone call stating that a HANO truck had been parked for some time at 2006 Selma St. Mr. Boutee notified Mr. L. Dupre H.A. Project Manager, Scattered Sites, of the telephone call. Mr. Dupre arrived at the Selma St. address at 2:48 p.m. He was joined by Mr. Louis Marshall, BMS III, and Mr. Anthony Legeaux, BMS I, at 2:52 p.m. Mr. Boutee arrived shortly thereafter.
At 4:20 p.m. you came out of the house at 2006 Selma St. and went to the truck. I asked you what you was [sic] doing and received an unintelligible reply. You returned to the house. Shortly thereafter ■ you and Mr. Moll left the house by the rear exit.
I again asked what they were doing. Mr. Moll replied that they had to get some papers.
When asked about how long they had been there, he replied, ‘About fifteen minutes.’ They then returned to the truck and drove off.
2. — Unauthorized used [sic] of a HANO vehicle.
Hano vehicles used by maintenance personnel are for transportation to and from the job site. On completion of a job the vehicle is to be returned to the office while the workers await a new assignment.
3. — Falsification of D-253 work reports On July 1, 1982, when Mr. Louis Marshall was checking work reports he found that you claimed that you worked 8 hours at 1412 Annunciation Street Apt. H.
Your personnel file shows that you were placed on suspension for two days (June 30 to July 1, 1981) ‘for unauthorized use of HANO’s vehicle.’ At that time you were warned by your supervisor, Mr. Louis Marshall, that ‘should this occur again, I shall recommend termination.’

Howard appealed this disciplinary action to the Commission. While the appeal was pending, Howard filed a motion for summary disposition in his favor contending the letter of termination did not set forth the charges with sufficient particularity and the prior disciplinary action could not “now be used as a basis for present disciplinary action.”

On November 17, 1982, the appeal was heard before a referee. On February 11, 1983, the referee dismissed the motion for summary disposition and affirmed the disciplinary action. Howard requested a review by the Commission of the referee’s decision. On July 22, 1983, the Commission denied the application, and the decision of the referee became the final decision of the Commission. La. Const, of 1974, art. X, § 12(A). This devolutive appeal followed.

FACTS

Laurent Boutee, the Executive Assistant for Office Services of HANO, testified that at 2:15 p.m. on June 30, 1982, he received a phone call through the HANO switchboard from a female person who would not identify herself. This individual told Boutee that a HANO vehicle was parked in front of a house located at 2006 Selma Street in New Orleans and that two HANO employees were in the house. When this communication terminated, Boutee called Lloyd Dupre, the Office Manager of Scattered Sites for HANO, and reported the incident to him. Dupre advised Boutee that the address was that of Wayne Howard. Bou-tee then reported the incident to a Mr. White, the Administration Director of HANO. White told Boutee to go to the site and find out why the truck was there. Boutee arrived in the 2000 block of Selma Street at approximately 3:00 p.m. Already present at the scene were Dupre, Louis Marshall and Anthony Legeaux. The four men remained together at the scene observing the HANO truck and the house in question until 4:20 p.m. when Johnny Moll and Wayne Howard came out of the house. Marshall then had a discussion with Howard and Moll about the incident.

Louis Marshall testified that he was a Superintendent III in maintenance for HANO and supervised Howard on June 30, 1982. Dupre was Marshall's immediate superior. Marshall got a call from Dupre, and after the call, he got Legeaux and went to 2006 Selma Street. Dupre was already present when Marshall arrived at 2:51 p.m. Boutee arrived shortly thereafter. Howard came out of the house at 4:20 p.m. and went to the HANO truck. Howard was alone at that time. Marshall approached Howard and asked him what was going on and what he was doing there. Howard walked back into the house and came back out three to five minutes later with Moll. On June 30, 1982, Howard was supposed to be working at 1417 Annunciation Street in Apartment H. Moll was the truck driver of the HANO truck on that date. Howard did not tell Marshall that he had asthma. Moll told Marshall that he and Howard came to Howard’s house to “get papers”. Howard did not work on June 30, 1982, from 2:51 p.m. to 5:00 p.m. A letter from Howard in his personnel file indicates that he tried to contact HANO and advise that he was ill. If an employee is sick on the job, he is to report it to his immediate supervisor. Medical aid is provided by HANO. Howard gave no such notice. Howard had to pass the immediate vicinity of the HANO office to get to his home. Howard submitted a D-253 form to HANO indicating that on June 30, 1982, he worked eight hours at 1417 Annunciation Street on Apartment H. HANO vehicles are to be used “only to travel from job to office and from there back.” There is no authority to allow a HANO employee to use a HANO vehicle for any other reason.

SUMMARY DISPOSITION

(Assignment of Error 1)

Howard contends that the referee committed error by not granting his motion for summary disposition. In particular, he contends that the letter of termination did not set forth with the required particularity the charges against him because it made reference to an anonymous phone call and did not name the person making the call. He asserts that the failure to provide this information precluded him from having the adequate means to prepare a defense and deprived him of the opportunity to find out and use in his defense the information surrounding the unknown phone caller.

Rule 13.14 of the Commission’s rules provides, in pertinent part, as follows:

13.14 Summary Disposition of Appeal,
(a) At any time after the docketing of an appeal a written request may be filed by any interested party for summary disposition thereof on any of the following grounds:
6. That the written notice expressing the cause for the action complained against is insufficient; or, that the cause as expressed does not constitute legal ground for the disciplinary action.

Rule 12.3 provides, in pertinent part, as follows:

12.3 Procedure in Removals ... of Permanent Employees.
(a) In every case of removal ... for cause of a permanent employee, the appointing authority or his authorized agent shall:
1. Furnish to the employee at the time such action is taken, or prior thereto, a statement in writing giving detailed reasons for such action.
(c) For purposes of this Rule, ‘detailed reasons’ shall include at least a description of the misconduct for which the disciplinary action is being levied, the date, time and place of such misconduct, the names of persons directly involved in or directly affected by the misconduct ... and such other information as will fully inform the employee of the charge against him and will enable him to prepare a defense.

The purpose of this rule is to apprise the employee in detail of the charges and to limit any subsequent proceedings to the stated reasons. Department of Public Safety, Office of State Police v. Rigby, 401 So.2d 1017 (La.App. 1st Cir.1981), writ denied, 406 So.2d 626 (La.1981).

The record reflects that the evidence of the anonymous phone call was not used to prove the charges against Howard but was offered to show what caused the HANO officials to commence the investigation. Counsel for HANO made the following observation when the evidence was offered:

MR. DANNEL: This is an exception to the hearsay rule — the conversation he had with — we are not trying to establish that it was a truthful conversation, we are trying to set the scene to show why he did what he did.

The fact of the phone call is admissible for the purpose stated. State v. Tucker, 405 So.2d 506 (La.1981); State v. Cody, 446 So.2d 1278 (La.App. 2nd Cir.1984). Because the phone call was anonymous, obviously HANO did not know the name of the caller. Even if HANO knew the name of the caller, since the fact of the call was not being used to prove the truthfulness of the charges against Howard, it was not necessary for the name of the caller to be placed in the letter of termination. Cf. Coulter v. Department of Health and Human Resources, 421 So.2d 305 (La.App. 1st Cir.1982).

The letter of termination properly gives descriptions of the alleged misconduct, the date, time and place of the misconduct and the names of the HANO officials who observed and/or discovered the misconduct. The letter of termination is sufficient to comply with the requirements of Rule 12.3.

This assignment of error is patently without merit.

FAILURE TO COMPLY WITH SUBPOENA DUCES TECUM

(Assignment of Error 3)

By letter dated October 7, 1982, counsel for Howard requested that a subpoena duc-es tecum issue to the maintenance department of HANO for copies of all service request sheets of HANO for June 28, 1982, through June 30, 1982, for copies of all time sheets for all employees of the maintenance department of HANO for June 28, 1982, through June 30, 1982, and for copies of all “breakdown” sheets (DD 253 forms) for the maintenance department of HANO for June 28, 1982, through June 30, 1982. By letter dated October 13, 1982, the referee denied this request because it did not contain a brief statement of what this evidence was intended to prove as required by Civil Service Rule 13.21(d). By letter dated October 15, 1982, counsel for Howard advised the referee that the records requested were needed to show what jobs Howard and other employees in his section were assigned to during that period of time and where in fact they were. By letter dated October 25, 1982, the referee directed HANO to produce the requested records at the appeal hearing to be held on November 17, 1982. At the appeal hearing, HANO failed to produce all of the records requested. Counsel for Howard made the following observations in the record:

MR. LOEFFELHOLTZ: In regard to the other items that were subpoenaed— as I understand it, the Housing Authority has failed to produce copies of all service requests sheets for June 28, 1982 through June 30, 1982, but have supplied one service request sheet, period, and that is it, and it’s entitled Housing Authority of New Orleans Service Request, Serial Number 590501. I am not satisfied with the return on this and additionally would point out for the record that this service request is a copy — I’m sorry, it says duplicate copy, see Number 590676, wherever that is — which has not been produced here and according to the way that this is done in the maintenance department of the Housing Authority, as I understand it, the service performed is written in and signed by the tenant— there is a place for it — and the worker who is assigned the task. I have not been furnished the completed service request form that I am really looking for, and also would again point out that this one that has been supplied, Number 590501, merely says duplicate copy, see Number 590676, which has not been produced, and it may be of some value but it certainly is not in response to the Subpoena Duces Tecum whatsoever. It makes it difficult to proceed in this light in terms of defense.

Thereafter, the hearing proceeded to a conclusion.

Howard now contends that the failure of HANO to produce the subpoenaed records creates an inference against it and in favor of him. Howard also maintains that the requested evidence which was not produced would have shown that there was no service request for 1412 Annunciation Street, Apartment H, and that therefore he could not be guilty of falsification of records for work done at that address.

The record reflects that, although counsel for Howard was not satisfied with the return on the subpoena duces tecum and stated that it would be difficult to proceed in terms of the defense, he did not ask for sanctions against HANO, he did not ask for a continuance of the proceedings to secure the records nor did he ask for an instanter subpoena duces tecum. His failure to take any of these actions constituted a waiver of this objection. Cf. State v. Quimby, 419 So.2d 951 (La.1982); State v. Bellows, 442 So.2d 889 (La.App. 3rd Cir.1983), writ denied, 446 So.2d 1222 (La.1984); State v. Sanders, 431 So.2d 833 (La.App. 2nd Cir.1983), writ denied, 439 So.2d 1076 (La.1983). Further, the evidence presented clearly shows that 1417 Annunciation Street, Apartment H, is the correct address in question (rather than 1412 Annunciation Street, Apartment H). The failure of HANO to produce the requested records did not affect Howard’s ability to establish this fact. Thus, the failure to produce the records did not prejudice the defense.

This assignment of error is without merit.

FAILURE OF HOWARD TO TESTIFY

(Assignment of Error 5)

In his opinion, the referee made the following rulings:'

Throughout the hearing counsel for the appellant noted that the letter of termination mentioned a conversation between appellant and someone else at the Selma Street address at the time of the incident mentioned in the letter of termination. Counsel noted that the letter relating that conversation refers to appellant in the third person and the other party to that conversation in the first person. Counsel notes that Mr. Sidney H. Cates, III, Executive Director, signed the letter of termination but that the testimony of the witnesses at the hearing established that Mr. Cates was not present at the Selma Street address on the date and that the time of the alleged incident, and thus could not have been a party to that conversation. Counsel objected to Mr. Boutee and Mr. Marshall testifying as to communications they had with appellant at the Selma Street address on the date and at the time of the alleged incident as being outside of the scope of the letter of termination. Counsel argued that the letter speaks of a conversation between appellant and Mr. Cates. The Referee reserved ruling on the objections. The Referee wanted to hear if testimony of appellant and/or Mr. Cates would show that referring to one of the parties of the alleged conversation in the first person in the letter of termination was a typographical error. However, neither appellant nor Mr. Cates was called to testify at the hearing. The Referee finds the objection of counsel for appellant to be without merit. The letter mentions that both Mr. Marshall and Mr. Boutee were at the Selma Street address shortly before 3:00 p.m. on the date in question. The Referee finds that they may give testimony relative to conversations they had with appellant at that time.

Howard contends that by stressing the fact that he did not testify, the referee held it against him and ruled against him on the objections. Howard further contends that the burden of proof, by law, was on the appointing authority (HANO) and that any inference against him because he did not testify was improper.

Appeals to the Commission from disciplinary actions are regulated by rules established by the Commission. La. Const, of 1974, art. X, § 10(A); Chapter 13, Civil Service Rules. The rules of the Commission have the effect of law and even prevail over acts of the legislature which may be in conflict with them. La. Const, of 1974, art. X, § 10(A)(4); Smith v. Department of Health and Human Resources, 416 So.2d 94 (La.1982). Rule 13.19(d) provides as follows:

Where appropriate and not inconsistent with these Rules, the rules of evidence applicable to civil trials in the district courts of the State shall be observed in all hearings before a referee or the Commission.

It is a well-established rule of evidence that failure to call a witness who possesses knowledge of facts pertinent to the case and whose absence is not satisfactorily explained results in an inference that the witness’s testimony would be adverse. RTL Corporation v. Manufacturer’s Enterprises, Inc., 444 So.2d 144 (La.App. 1st Cir.1983); Pugh, Louisiana Evidence Law, pp 716-718 (1974). Pursuant to Rule 13.-19(e), an appellant-employee can be required to give his sworn testimony at an appeal hearing. A review of the record and Howard’s brief reflects that at no stage of the proceedings has Howard claimed his privilege against self-incrimination to preclude his appearance as a witness. Certainly, had Howard asserted this constitutional privilege, no adverse inference would result therefrom. In the absence of such a constitutional claim, it would appear that the adverse inference for failure to present an available witness may be applicable. However, we specifically decline to resolve this issue on that basis.

Our review of the referee’s ruling indicates that his reference to the fact that neither Howard (the appellant) nor Cates (for HANO) were called to testify was one of regret that available evidence to explain the language of the letter of termination was not presented by either side. It is obvious from the evidence presented at the hearing that Cates was not present at the Selma Street address on the date in question. The first person references in the letter of termination were clearly in error. Nevertheless, the letter of termination complies with Rule 12.3 because it specifically advises Howard of the nature of the disciplinary charges, the date, time and place of each misconduct and the persons who could be called to testify about the misconduct. It should be noted that it is not necessary to list witnesses in the letter of termination unless they are directly involved in or directly affected by the misconduct. Civil Service Rule 12.3; Coulter, 421 So.2d at 306. The referee’s rulings were based on his appreciation of the law and the facts and not upon the failure of Howard to testify in his own behalf.

This assignment of error is without merit.

TESTIMONY OF WITNESSES WHO DID NOT SIGN LETTER OF TERMINATION

(Assignment of Error 6)

Howard contends that the referee committed error by allowing the testimony of witnesses (Boutee and Marshall) who did not sign the letter of termination. Howard contends that allowing the testimony of witnesses who did not sign the letter of termination allows an expansion of the facts asserted in the letter of dismissal. He further contends that because the letter of termination indicates that Cates was present at the Selma Street address, when in fact he was not, there is a ground for reversal of the action of the Commission. Howard cites no authority either in the Civil Service Rules or the jurisprudence for these assertions.

As indicated in the previous assignment of error, Rule 12.3 only requires that the employee be advised of the nature of the alleged misconduct, the date, time and place of such misconduct, the names of persons directly involved in or directly affected by the misconduct and such other information as will fully inform the employee of the charge against him and will enable him to prepare a defense. The witnesses who appeared and testified against Howard concerning his misconduct (Boutee and Marshall) were listed in the letter of termination. The fact that they did not sign the letter of termination is irrelevant. Pursuant to Rule 12.3, the letter of termination must be sent by the appointing authority or his authorized agent. Howard does not contest that Cates was an authorized agent of HANO. Rule 12.3 does not require that the letter of termination be signed by witnesses.

The fact that Cates did not have personal knowledge of Howard’s misconduct is not pertinent. The fact that the letter of termination erroneously indicates that Cates was present at the Selma Street address is not prejudicial to Howard. The remaining portion of the alleged misconduct is properly stated in accordance with Rule 12.3.

This assignment of error is without merit.

SUFFICIENCY OF EVIDENCE

(Assignments of Error 4, 7 and 8)

In his opinion, the referee found the following facts:

1. On June 30, 1982, appellant and Johnny Moll were supposed to be working at 1417 Annunciation Street, Apt. H. They were assigned a Housing Authority of New Orleans vehicle. Mr. Moll was the driver of the vehicle. Appellant turned in a work sheet indicating that he had worked eight hours at that address.
2. Appellant’s letter of appeal states that Mr. Moll drove him home to get his medication. While appellant did not drive the vehicle, he participated in its use.
3. The Housing Authority of New Orleans vehicle was parked outside of appellant’s home on Selma Street from approximately 3:00 p.m. to 4:20 p.m. Appellant was supposed to be on the job at this time. Appellant came out of his house at approximately 4:20 p.m. He spoke with Mr. Louis Marshall at that time.
4. Appellant had not requested any leave time for any part.of the work day on June 30, 1982.
5. Appellant had been previously suspended for two days for unauthorized use of a Housing Authority of New Orleans vehicle. He was warned at the time of the suspension that reoccurrence of this activity would result in termination.

No person who has gained permanent status in the classified service shall be subjected to disciplinary action except for cause expressed in writing. La. Const, of 1974, art. X, § 8(A). Legal cause for disciplinary action exists when the conduct complained of impairs the efficiency of the public service and bears a real and substantial relation to the efficient and orderly operation of the public service in which the employee is engaged. In re Appeal of Kennedy, 442 So.2d 566 (La.App. 1st Cir.1983). The burden of proof on appeal in a disciplinary action, as to the facts, is on the appointing authority (HANO). The charges must be proven by a preponderance of the evidence, which means evidence of a greater weight or more convincing than that offered in opposition to it. Jones v. Dept. of Health & Human Resources, 430 So.2d 1203 (La.App. 1st Cir.1983). The final decision of the Commission is subject to review by this court on any question of law or fact. La. Const, of 1974, art. X, § 12(A). Where the referee (or the Commission) heard the testimony of the witnesses and observed their appearance and demeanor, the standard of appellate review of facts used by this court is the same standard used in reviewing decisions from the district courts; the factual determinations of the Commission will not be set aside unless they are shown to be manifestly erroneous (clearly wrong). Thomas v. Department of Corrections, Office of Probation and Parole, 442 So.2d 554 (La.App. 1st Cir.1983).

Howard contends that he got sick on the job on June 30,1982, and went to his home to get medicine for his asthma condition. The record contains a letter dated July 1, 1982, from Howard to M.D. Walsh of HANO stating such facts. However, at the appeal hearing no competent evidence was offered to establish these allegations. The only competent evidence of record is the testimony of Marshall, over objection by HANO, that he reviewed Howard’s personnel file and there was a letter in it showing that Howard tried to call the HANO office on June 30, 1982. Even if such evidence is admissible, it is only admissible to show the fact that such a letter was sent and cannot be used to prove the truth of the contents of the letter.

Howard contends that since he was paid for his eight hours work on June 30, 1982, on approval of HANO (through Marshall), he cannot now be held responsible for falsification of the D-253 work report showing such work. Marshall specifically testified that he only authorized payment of this claim because at that point in time no decision had been made on the charges against Howard. Under these circumstances, the payment of the claim did not constitute a waiver by HANO of its right to assert the falsification of the record upon which the claim was made.

Howard contends that, since he was not the driver of the HANO vehicle on June 30, 1982, he cannot be responsible for its unauthorized use. The evidence adduced shows that the vehicle was assigned to Moll and that Howard and Moll were assigned with the vehicle to do work for HANO. The evidence shows that Moll and Howard were not at their designated place of work but were found together with the vehicle at Howard’s home. From these facts, it can be reasonably inferred that Howard aided and abetted Moll in the unauthorized use of the HANO vehicle to go to Howard’s home.

Howard contends that, since he was charged in the letter of termination with being absent from his designated place of work at 1412 Annunciation, Apartment H, and for falsification of a work report showing that he worked eight hours at 1412 Annunciation, Apartment H, on June 30, 1982, HANO was bound by the allegations of the letter and could not properly introduce evidence to show that the correct address of his designated place of work was 1417 Annunciation, Apartment H. Howard further argues that since it was only proven that he was at 1417 Annunciation and that the.work report was for that same address he cannot be found responsible for not being at 1412 Annunciation or for submitting a false report for 1412 Annunciation. The essence of the charge of unauthorized absence from the assigned work area is that Howard was at his home at 2006 Selma Street when he should have been at a designated work place. Once it was established by HANO that Howard was found at home during working hours and was not doing work for HANO, proof of the charge was established. The fact that HANO made a minor error in designating the assigned work area is not prejudicial to Howard. Whether he was supposed to work at 1412 or 1417 Annunciation is not determinative because he obviously was not at either. This same reasoning applies to the falsification of records charge. The essence of the charge is that Howard claimed that he did eight hours of work on June 30, 1982, when he did not. Because he was observed at his home from 2:51 p.m. until almost 5:00 p.m. on June 30, 1982, it is obvious that he was not working at either 1412 or 1417 Annunciation. Again, this minor error in designating the work place was not prejudicial to Howard.

The factual findings of the referee are supported by the evidence of record. Howard absented himself from his assigned place of work, participated in the unauthorized use of a HANO vehicle (after having been disciplined for the same thing) and falsified his work record to secure payment for work not performed. These factual findings establish legal cause for disciplinary action. Cf. Venezia v. Department of Inspections and Code Enforcement, 433 So.2d 788 (La.App. 5th Cir.1983), writ denied, 441 So.2d 213 (La.1983).

For the foregoing reasons, these assignments of error are without merit.

EXCESSIVENESS OP PUNISHMENT

(Assignments of Error 2 and 8)

Howard contends that the use of his prior suspension in 1981 was improper because the letter of suspension does not reflect that he was advised of his right to appeal as required by Civil Service Rules, that he was entitled to a summary disposition because the prior suspension was improperly put in the letter of termination, that because the prior suspension was illegal it should not have been used in determining his punishment and that the punishment imposed upon him was' too severe.

Evidence of prior infractions coupled with the instant offense may evidence either an employee’s unreliability or his indifference to the requirements of his job. Repeated infractions by an employee may justify dismissal. McGee v. Sewerage and Water Board of New Orleans, 396 So.2d 430 (La.App. 4th Cir.1981); Albert v. Louisiana State Penitentiary, 396 So.2d 340 (La.App. 1st Cir.1981). Evidence of prior suspensions, reprimands or poor service ratings may be included in a letter of dismissal because they are relevant to the ultimate question of whether or not the employee was dismissed for cause, or they may be considered in determining an appropriate punishment. Stiles v. Department of Public Safety, Drivers’ License Division, 361 So.2d 267 (La.App. 1st Cir.1978). The prior suspension in the instant case was relevant on the merits to show that Howard had direct personal knowledge of what constituted unauthorized use of a HANO vehicle and was relevant to the issue of the appropriate punishment.

Rule 12.2(a) provides, in pertinent part, as follows:

For each permanent employee so suspended, the notice containing the detailed reasons for the suspension shall contain the notification of the right to appeal required by Rule 12.3(a)2 below.

Rule 12.3(a)(2) provides as follows:

In such cases, the appointing authority or his duly authorized agent shall, commencing January 1, 1978, include in the written notice the following provision: ‘You may appeal this action to the Civil Service Commission within 30 days. The appeal must conform to the provisions of Chapter 13 of the Civil Service Rules.’

The suspension letter of June 25, 1981, does not contain the notice of right to appeal required by the above rules. Howard cites no authority to us, and we are aware of none, which authorizes him to collaterally attack this prior disciplinary action in these proceedings. In the absence of such authority, we hold that he may not do so. The prior suspension was properly listed in the letter of termination, could have been properly considered on the charge of unauthorized use of a HANO vehicle and was properly considered in assessing an appropriate penalty.

The Commission has much discretion in determining the appropriate disciplinary action when legal cause for such has been established. The decision of the Commission assessing a disciplinary penalty is a question of law and fact and is subject to review by this court. La. Const, of 1974, art. X, § 12(A). Except where it is in conflict with the Constitution or Civil Service Rules, the Louisiana Administrative Procedure Act is applicable to proceedings of the Commission. La.R.S. 49:967; Smith v. Department of Health and Human Resources, 416 So.2d at 96. In most administrative proceedings, there is a right to appellate review from the appointing authority to the district court. La.R.S. 49:964. However, appeals from the Commission bypass the district court and come directly to this court. La. Const, of 1974, art. X, § 12(A). La.R.S. 49:964(G) defines the standards for appellate review by the district court when an appeal comes from an agency to it. Similar provisions have not been made in the Administrative Procedure Act for appeals to a court of appeal. La.R.S. 49:965. By analogy, the same standard of appellate review should be applicable. Accordingly, we hold that in judging the Commission’s exercise of its discretion in determining an appropriate punishment, this court shall not modify or reverse the Commission’s judgment unless it is arbitrary, capricious or characterized by abuse of discretion. Cf. La.R.S. 49:964(G)(5); Walters v. Department of Police of the City of New Orleans, 454 So.2d 106 (La.1984); Newman v. Department of Fire, 425 So.2d 758 (La.1983); R. Force and L. Griffith, The Louisiana Administrative Procedure Act, 42 La.L.Rev. 1227, 1284-5 (1982). After reviewing the record, pursuant to this standard, we find that the Commission’s assessment of punishment was not arbitrary, capricious or an abuse of discretion.

These assignments of error are without merit.

DECREE

For the foregoing reasons, the rulings of the Commission are affirmed at the appellant’s costs.

AFFIRMED.

      . When the Commission (or the referee) only reviews transcripts or listens to taped testimony, its ability to assess the weight of the evidence is no different from that of an appellate court. In such a situation, a less restrictive standard of appellate review of facts is applicable, and we must determine only the sufficiency and the preponderance of the evidence. Carbonell v. Department of Health and Human Resources, 444 So.2d 151 (La.App. 1st Cir.1983), writ denied, 447 So.2d 1063 (La.1984); cf. La.R.S. 44:964(G)(6); R. Force and L. Griffith, The Louisiana Administrative Procedure Act, 42 La.L. Rev. 1227, 1287 (1982).


source: Caselaw Access Project

author: SAVOIE, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Marshall SMITH.
    No. 84 KA 0042.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.

      Ossie Brown, Dist. Atty. by Joseph Lot-wick, Luke Lavergne, Asst. Dist. Attys., Baton Rouge, for plaintiff-appellee.
    Ann L. Jordan, Appellate Counsel, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   SAVOIE, Judge.

Marshall Smith, defendant, appeals his four-year sentence for possession of a controlled dangerous substance. Given the wide discretion allowed the trial court, we find no manifest abuse of discretion by the imposition of this sentence nor is it a purposeless imposition of pain and suffering. Accordingly, we affirm.

Defendant was arrested for aggravated assault. As a result thereof, the arresting officer searched defendant and found two orange capsules on defendant’s person. The capsules contained dextropropoxy-phene, a controlled dangerous substance listed in La.R.S. 40:964, Schedule IV.

By bill of information, defendant was charged with possession of detropropoxy-phene in violation of La.R.S. 40:969(C). He pled guilty and was sentenced to four years in the custody of the Department of Corrections and ordered to pay court costs in the amount of $129.30.

Defendant poses two Assignments of Error as his bases for appeal from the lower court. However, Assignment of Error No. 1 was not briefed on appeal and, therefore, is considered abandoned. Uniform Rules — Courts of Appeal, Rule 2-12.-4. In Assignment of Error No. 2, defendant asserts that the trial court erred in imposing an excessive sentence.

ASSIGNMENT OF ERROR NO. 2

Defendant’s assignment of excessive sentence as error is founded on three contentions.

First, he contends that the trial court erred when it considered defendant’s entire criminal record for sentencing purposes. Defendant argues that charges pending against him or which have been dropped at the time of sentencing should not be considered.

This argument is not supported by La.C.Cr.P. art. 894.1(B)(7), which provides that one mitigating factor arises when “[t]he defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime.” It is apparent therefrom that the trial court’s consideration of criminal activity is not limited to convictions. State v. Brown, 410 So.2d 1043 (La.1982).

Secondly, defendant contends that the trial court failed to follow the sentencing procedure of La.C.Cr.P. art. 894.1.

La.C.Cr.P. art. 894.1 requires the trial court to state for the record the considerations and factual basis for imposing the given sentence. However, it need not articulate every aggravating and mitigating circumstance. The record need only reflect that the trial judge adequately contemplated the guidelines given in the article. State v. Parish, 429 So.2d 442 (La.1983).

In pronouncing sentence, the trial court noted confinement was appropriate because there existed an undue risk that defendant would commit another crime during a period of suspended sentence or probation. In support of this determination, the trial judge cited defendant’s past criminal activity which included three arrests for crimes against the person. The judge opined that defendant is in need of correctional treatment which could be provided most effectively by his commitment to an institution. Further, he commented upon the defendant’s admitted extensive use of controlled dangerous substances and alcohol. The court stated that it would recommend that, along with defendant’s sentence, defendant receive the benefit of the available treatment for those substances.

We find that the trial judge’s articulation of his reasons for the sentence imposed meets the statutory criteria.

Lastly, defendant contends that the trial court imposed an excessive sentence.

The trial court has wide discretion in the imposition of sentences within statutory limits. These sentences will not be set aside absent manifest abuse of discretion. However, even sentences within statutory limitations may be considered excessive. Those sentences grossly out of proportion to the severity of the crime or which are nothing more than purposeless and needless imposition of pain and suffering are prohibited by the Louisiana Constitution of 1974, Article I, Section 20. See State v. Willis, 420 So.2d 962 (La.1982).

The maximum sentence for the violation of La.R.S. 40:969(C) is imprisonment with or without hard labor for not more than five years. In addition, a fine of not more than five thousand dollars may be imposed. In the instant case, defendant pled guilty to possession of dextropropoxy-phene in violation of La.R.S. 40:969(C). He received a sentence of four years at hard labor and no monetary fine other than court costs. We find that this sentence is neither grossly disproportionate to the severity of the crime nor a needless imposition of pain and suffering in light of the views enunciated by the trial court.

Accordingly, defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . We note that while defendant was initially arrested for the crime of aggravated assault, he was not charged with this crime.

      . The trial judge accepted the guilty plea after determining that it was made voluntarily and with an understanding of the nature of the charge.


author: CRAIN, Judge.

text:
    STATE of Louisiana v. Earnest DAVIS.
    No. 84 KA 0169.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.

      Ossie Brown, Dist. Atty. by Ralph Roy, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Anne L. Jordan, Appellate Counsel, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before WATKINS, CRAIN and ALFORD, JJ.
   CRAIN, Judge.

Defendant, Earnest Davis, was charged with three counts of armed robbery in violation of La.R.S. 14:64. Defendant originally pled not guilty. On the first day of trial, the jury was selected and sworn. The next day, defendant, represented by retained counsel, informed the court he wished to plead guilty. After a Boylcin examination, the trial court allowed defendant to withdraw his not guilty plea and accepted his guilty plea. On June 15, 1983, defendant appeared for sentencing and was represented by counsel from the public defender’s office. Defendant’s attorney informed the court that it was defendant’s understanding at the time he pled guilty that the maximum sentence he would receive was fifteen years. The trial court noted that it did not recall' any such agreement. The sentencing was postponed, and the court held a status conference with the prosecutor and defendant’s retained counsel. On June 27, 1983, defendant reappeared with retained counsel for sentencing. The court stated that it had reviewed the matter and did not make any promises on the sentence. Defendant was sentenced on each count to eighteen years at hard labor, without benefit of probation, parole or suspension of sentence, but with credit for time served. Each sentence was to run concurrently. Defendant filed and was granted an “out-of-time” appeal by the trial court which raised two assignments of error:

1. The trial court erred in imposing an excessive sentence.

2. The trial court erred when it accepted an involuntary guilty plea.

OUT-OF-TIME APPEAL

Defendant filed the motion for an out-of-time appeal on December 5, 1983, when the time for taking an appeal from his conviction had expired. La.C.Cr.P. art. 914. At the outset we note that a trial court is without authority to grant an out-of-time appeal ex parte due to lack of jurisdiction. State v. Braxton, 428 So.2d 1153 (La.App. 3rd Cir.1983). In Braxton, the Third Circuit held that when the record does not reflect the reason for the untimely appeal the proper course of action is for the defendant to apply to the Court of Appeal for an out-of-time appeal, citing Uniform Rule 3-2.1 of the Courts of Appeal, which provides:

In a criminal action, a defendant who, without fault, has failed to timely take an appeal may, by written motion supported by affidavit, apply to the court for an order permitting the taking of a delayed or out-of-time appeal.

The Second Circuit, however, specifically declined to follow Braxton, holding that an application for out-of-time appeal must always be presented to the trial court for a determination of its propriety. State v. Holmes, 440 So.2d 1384 (La.App. 2d Cir.1983).

We note the stated conflict. However, it is our view that the proper handling of an out-of-time appeal depends on the circumstances of the application and there is no reason for a conflict between the circuits. The lapse of time for taking an appeal is jurisdictional. State v. Dartez, 222 La. 9, 62 So.2d 83 (La.1953); State v. Metoyer, 427 So.2d 93 (La.App. 3rd Cir.1983). The trial court having lost jurisdiction by the lapse of time to take an appeal cannot grant one out-of-time simply on ex parte motion. However, the appellate courts can do so, not under their appellate but under their supervisory jurisdiction. This is the reason for Uniform Rule 3-2.1.

The Louisiana Supreme Court recognized the “out-of-time appeal in State v. Simmons, 390 So.2d 504 (La.1980). However, the Simmons ’ situation is one where the claim is made that the defendant was unconstitutionally deprived of the right of appeal. As such, it is presented as an application for post conviction relief and must be handled by the trial court according to La.C.Cr.P. art. 924, et seq. The propriety of granting or denying the requested relief is then reviewable on appeal. Consequently, the distinction between Braxton and Holmes is whether the out-of-time appeal is applied for as post conviction relief or simply on ex parte motion. The former should be handled by the trial court. The latter can only be handled by the appellate court.

However, we do not find it necessary at this time to dismiss this appeal as improperly granted, but prefer to treat this motion as an application for post conviction relief. La.C.Cr.P. arts. 924, 924.1; State v. Dorsey, 447 So.2d 636 (La.App. 1st Cir.1984). Defendant contends that his guilty plea was involuntary due to deprivation of anti-seizure medicine and therefore constitutionally infirm. He also contends that he received an unconstitutionally excessive sentence and is entitled to relief. We find both claims may be considered in an application for post conviction relief. La.C. Cr.P. art. 930.3(1).

ASSIGNMENT OF ERROR NUMBER 1

Defendant argues that the trial court’s sentencing reasons reflect only the aggravating circumstances, and thus do not provide an adequate basis for the sentence.

The structure of La.C.Cr.P. art. 894.1 requires that the trial court weigh both aggravating and mitigating circumstances to determine whether or not to impose incarceration. The trial court is not required to articulate every such circumstance in imposing sentence, but the record must reveal the court adequately considered the guidelines enumerated in La.C.Cr.P. art. 894.1. State v. Collins, 448 So.2d 260 (La.App. 1st Cir.1984).

Wide discretion is given the trial judge in the imposition of a sentence within the applicable statutory limits; in the absence of manifest abuse, his sentence will not be set aside as excessive. State v. Wroten, 433 So.2d 249 (La.App. 1st Cir. 1983), writ denied, 440 So.2d 731 (La.1983).

Defendant received a sentence of eighteen years which is far less than the maximum sentence of ninety-nine years on each count. La.R.S. 14:64. In light of the trial court’s reasons, particularly defendant’s juvenile and adult criminal record, we find no abuse of the trial court’s discretion.

ASSIGNMENT OF ERROR NUMBER 2

Defendant contends that he was using anti-seizure medication two to three times daily prior to his trial. At the Boykin examination, when asked if he was on medication, defendant informed the trial court that his medicine had not been administered by authorities that day. During the colloquy defendant stated that the medicine did not affect his mind, and that his mind was clear. Defendant now argues in his brief that, although he “stated the medication did not affect his mind the anxiety over the deprivation of his anti-seizure medication for the duration of the jury trial was sufficient to render the guilty plea involuntary.” Specifically, he contends that the trial judge could not know of the coercive effect of his fear of having a seizure in the presence of the jury during the trial.

In determining whether guilty pleas are knowing and voluntary, the court need not only look to the colloquy concerning the waiver of the rights but may. also look at other factors which may have a bearing on its decision. State v. Bucken burger, 428 So.2d 966 (La.App. 1st Cir. 1983).

A review of the record in the instant case reveals that the trial court gave defendant an opportunity to state if his plea was coerced. The colloquy between the court and defendant also indicates defendant informed the court that he was not administered his anti-seizure medicine. At no time did defendant indicate his subjective fear of having a seizure, nor did he indicate his plea was involuntary.

The record does not support defendant’s allegation. Rather, the transcript shows that the trial judge was correct in accepting a guilty plea that was voluntary.

Therefore, this assignment of error lacks merit.

DECREE

For the foregoing reasons, we dismiss defendant’s application for post conviction relief.

APPLICATION DISMISSED.

      . Originally, defendant filed only one assignment of error. Defendant was allowed to amend his assignments of error and added the assignment regarding the voluntariness of his guilty plea.

      . Defendant states that there are continued references in the record to a plea agreement. These references, he argues, should prompt the court to look beyond the colloquy of the waiver of rights. He does not, however, contend that his plea was the result of an agreement that has been breached.


author: COLE, Judge. LANIER, Judge,

text:
    STATE of Louisiana v. Melvin WASHINGTON.
    No. KA 84 0201.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.
    Margaret A. Coon, Covington, for appel-lee.

      Oliver F. Johnson and S. Austin McElroy, Covington, for appellant.
    Before COLE, CARTER and LANIER, JJ.
   COLE, Judge.

Defendant, Melvin Washington, was convicted on October 14, 1971 of murder in violation of La.R.S. 14:30 and sentenced to death. In State v. Washington, 278 So.2d 484 (La.1973), the Louisiana Supreme Court held defendant’s death sentence illegal and remanded his case to the trial court where he was resentenced to life imprisonment. Defendant has now perfected an out-of-time appeal of his conviction and sentence requesting only that this court review the record for patent error. We affirm.

The only patent error revealed by our review of the record is the omission from the grand jury indictment of the statute number under which defendant was charged. However, such an omission is reversible error only if it misleads a defendant to his prejudice. See La.Code of Crim.P. art. 464; State v. Ellis, 447 So.2d 44 (La.App. 1st Cir.1984); State v. Albert, 430 So.2d 1279 (La.App. 1st Cir.), writ denied, 433 So.2d 711 (La.1983). At the time of defendant’s indictment, R.S. 14:30 was the only statute dealing with the crime of murder. Furthermore, it is clear from references at trial defendant was aware of the substance of the charge against him and the relevant statute. The omission of the statute number, having caused no prejudice to defendant, is not reversible error. We, therefore affirm defendant’s conviction and sentence.

AFFIRMED.

LANIER, J., concurs and assigns reasons.

CARTER, J., concurs for reasons assigned by LANIER, J.

LANIER, Judge,

concurring.

On July 22, 1971, Melvin Washington was indicted by the St. Tammany Parish Grand Jury for the murder of Paul Cousin, Jr. on July 3, 1971. On August 19, 1971, he was arraigned in the presence of his court-appointed counsel and pled not guilty. The trial of this case was held on October 13-14, 1971, and the jury returned a verdict of guilty as charged.

On January 18, 1972, Washington was sentenced to death. The court minutes of January 18, 1972, indicate that after the sentence was imposed Robert Green made oral motions that he and Servando Garcia be recognized as counsel for Washington, Washington receive a transcript without charge and an appeal be taken in forma pauperis. The district court judge granted the motions provided they were filed in the record in written form in 24 hours. The record contains the following documents filed on January 18, 1972: (1) motion to be recognized as attorneys of record by Ser-vando Garcia and Robert Green (as employed counsel); (2) affidavit of indigency and court order directing the Police Jury of St. Tammany Parish to pay the expense for the record; and (3) motion to file appeal in forma pauperis. The order attached to the last motion provides that Washington “is hereby allowed to proceed with his appeal to the Supreme Court of the State of Louisiana in forma pauperis”.

On May 24, 1973, in a per curiam opinion, the Louisiana Supreme Court noted that counsel for Washington (Garcia and Green) conceded in brief that no formal appeal had been timely perfected and ordered the case stricken from its docket. It also noted (apparently as patent error) that the death penalty had been unlawfully imposed and remanded the case to the district court to resentence Washington to life imprisonment. State v. Washington, 278 So.2d 484 (La.1973). On July 17, 1973, the district court complied with the Louisiana Supreme Court’s order. Robert M. Green represented the defendant at this proceeding.

On August 16, 1973, Washington filed an application for a writ of habeas corpus alleging he was denied his rights on arrest, the jury verdict was unconstitutional, the trial was not fair and an essential witness was sent beyond the jurisdiction of the court. This application was denied without a hearing on September 4, 1973.

On November 12, 1975, Washington filed a second application for a writ of habeas corpus alleging he was denied equal protection of the law because blacks were excluded from his jury, he was denied effective assistance of counsel because his trial counsel did not properly prepare for trial and he was denied the privilege against self-incrimination when advised by his counsel to take the stand. This application was denied without a hearing on November 18, 1975.

On September 7, 1983, Washington filed an application for post conviction relief alleging he was denied effective assistance of counsel because his attorney did not take a timely appeal, there was insufficient evidence to support a verdict of guilty because a specific intent was not proven beyond a reasonable doubt, he was denied due process by an unconstitutional charge to the jury on intent and he was improperly denied his right to appeal. An evidentiary hearing was held on this application on November 4, 1983. Washington testified he told his trial counsel (Gordon Goodbee) he wanted to appeal, he assumed an appeal had been taken, Goodbee was court-appointed counsel and Goodbee told him he would file an appeal and “would take it all the way to the Supreme Court if he had to.” No other witness was called to testify. The district court judge gave the following ruling:

Well, I think he prayed for more relief than that, however, this Court finds that due to the failure to take an appeal, timely take an appeal, and the defendant having not waived his rights to an appeal that some relief is in order, and the Court at this time grants relief of out of time appeal returnable to the appropriate Court, that would be the First Circuit Court of Appeal.

We concur in the result reached in the lead opinion because there was an eviden-tiary hearing held in the district court, the defendant’s right to appeal is controlled by the law as it existed prior to the Louisiana Constitution of 1974, the State does not contest the district court’s ruling granting an “out-of-time” appeal, and the result is correct under the particular facts and circumstances of this case.

1. State v. Davis, 457 So.2d 848 (La.App. 1st Cir.1984).

CARTER, J., concurs.

      . Defendant was indicted on July 22, 1971. Pri- or to 1973 the Louisiana Criminal Code provided only one grade of murder. The crime of second degree murder was added by Acts 110 and 111 of 1973.


author: LANIER, Judge.

text:
    STATE of Louisiana v. Daniel Ray DIXON.
    No. KA 84 0299.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.
    Writ Denied Dec. 14, 1984.

      Ossie Brown, Dist. Atty. by Joseph Lot-wick, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Kenneth L. Riche, Baton Rouge, for defendant-appellant.
    Before COLE, CARTER and LANIER, JJ.
   LANIER, Judge.

The defendant, Daniel Ray Dixon, was charged by grand jury indictment with aggravated rape in violation of La.R.S. 14:42 and attempted second degree murder in violation of La.R.S. 14:27 and 30.1. He pled not guilty to both charges and, after a trial by jury, was found guilty of attempted aggravated rape and attempted second degree murder. He was sentenced to serve fifty years at hard labor in the custody of the Louisiana Department of Corrections on each charge. The district court judge ordered that these sentences run concurrently with each other and concurrently with any other sentence that Dixon was then serving. He was also ordered to pay $1,088.75 in costs. This appeal followed.

FACTS

The victim, a sixty year old woman, received a phone call at her home at approximately 12:30 a.m. on August 30,1982. The caller identified himself as Ray and said that he had some shrimp he wanted to bring to her. The victim had talked with Ray on three previous occasions, and he had promised to get her some shrimp. A short time later, the victim heard a knock at her door. She went to the door and asked, “Who is it?” The person outside answered “Ray”. She unlocked the door, opened it and looked out through the screen door. She then unhooked the screen door and let the man inside. She asked him, “Where are the shrimp?” He replied that he had left them in the car. She told him to go and get the shrimp and she would get some money to pay him. As she turned, he leaped across the room and placed a knife at her throat. He forced her into the bedroom where he undressed himself and the victim. According to the victim, she was then raped. The assailant next forced her into the bathroom where he attempted to drown her. He then took her back into the bedroom where he slashed her breasts and stabbed her numerous times. The stab wounds required surgical repair of her left lung and liver and the removal of her gallbladder. The assailant then disconnected the phone, washed his hands, dressed and left. After the assailant left, the victim reconnected the phone and called an operator for assistance. The police arrived shortly thereafter, and the victim was transported to Earl K. Long Hospital for medical treatment. At 5:00 a.m. on August 30, the victim gave the police a taped statement. She identified her assailant as a man named Ray whom she had seen on three previous occasions. In addition, she told the police that he lived on Cedar Street (one block over where she lived) with his mother and that he worked for Georgia-Pacific.

Prior to 1:00 p.m. on August 30, 1982, Officer Robert N. Howie of the Major Crime Investigation Division of the Baton Rouge Police Department prepared a “working” lineup of 25 or 30 “mug shot” photographs and a photograph of Dixon secured from the State Driver’s License Office. This “working” lineup was to be used to see if the victim could identify her attacker. The “mug shot” photographs showed the height of the individual in the background and had Baton P.D. and a number under the picture. These photographs measured two and one-half inches wide and three and one-half inches high. The photo of Dixon’s driver’s license measured three and one-half inches high and five inches wide. The individual’s picture on the photograph of the driver’s license measures one and one-half inches wide and two inches high. (Apparently only the picture portion of the photograph of Dixon’s driver’s license was shown to the victim.) After Officer Howie prepared the “working” lineup, he gave it to Detective Charles Mon-drick of the Sex Crimes Unit of the Baton Rouge Police Department.

At approximately 1:00 p.m. on August 30, 1982, Mondrick went to the Earl K. Long Hospital to see the victim. Mondrick learned from the medical staff that the victim had gone through surgery but was capable of seeing him. Mondrick went to the victim’s hospital room and asked her if she knew who had attacked her. The victim responded that the attacker’s name was Ray and he lived on Cedar Street with his mother. Mondrick left the room and returned shortly thereafter with the “working” lineup. Dixon’s picture was placed third in the group. The victim started going through the photographs, and when she reached the photograph of Dixon, she identified him as the person who had attacked her.

Prior to 5:30 p.m. on August 31, 1982, Mondrick prepared a “regular” photographic lineup. This lineup was comprised of six head-and-shoulder, cut out photographs which were pasted to the inside of a manila file folder. The photographs were numbered one through six and number five was assigned to Dixon. At approximately 5:30 p.m. on August 31, 1982, Mondrick returned to Earl K. Long Hospital and showed the “regular” photographic lineup to the victim. The victim identified photograph number 5 (Dixon’s) as that of her attacker and signed her name under the photograph. Thereafter, Mondrick secured an arrest warrant for Dixon. The “regular” photographic lineup was introduced in evidence as Exhibit S-13 at the trial.

Prior to trial, Dixon filed a discovery motion which contained the following two interrogatories:

7.
Please list any papers, documents, photographs or any other tangible objects the State intends to use upon trial of this matter, either belonging to the defendant or any other witness.
12.
Please provide for inspection the photographs used in the alleged identification of defendant and the manner in which the photograph was presented to the victim whether individually or in a photographic line up.

In response to these interrogatories, the State filed the following answers:

7.
Photographs of the crime scene, photo lineup, photographs of defendant’s vehicle, clothing and bedding belonging to the victim.
12.
Photo lineup will be made available for inspection by the defendant at a time convenient to counsel for both the State and the defendant.

The State’s replies to the pertinent discovery interrogatories do not mention the “working” lineup. In his testimony at the trial, Detective Mondrick explained what happened to the “working” lineup as follows:

Q. Okay, and does the actual working lineup that you used on August 30, 1982, exist today?
A. I have no knowledge of that. I— when I got through with it, I returned it to Detective Howie’s desk in the manner that he gave it to me, and apparently he’s used it since then or someone else has. I don’t know.
Q. It would be fair to say that that actual working — the exact working lineup that was used on August 30th does not exist today.
A. Yes, Sir.

During the testimony of the victim at the trial, the State attempted to question her about the “working” lineup. Counsel for Dixon objected asserting that the testimony was inadmissible because it was “part of the investigation of a crime”, “not part of the elements of the crime” and “what happens to this lady later on that has nothing to do with the defendant in this case”. The State responded that the identity of the defendant was an issue in every criminal case, and the court overruled the objection. The victim then proceeded to describe the procedure used for the “working” lineup. Subsequently, the victim was shown State Exhibit 13 (the “regular” lineup). Counsel for Dixon objected to this testimony contending it was inadmissible because “it will unduly prejudice the jury against my client”, “it’s not necessary in proving the elements of this crime” and “unless an explanation is given as to how the police have in their possession a photograph of this defendant, he’s going to have to get on the witness stand and testify and explain that.” Dixon’s counsel also contended that the “regular” lineup was not necessary to prove the elements of the crime because the victim had already made an in-court identification of Dixon. The district court judge overruled the objection. Counsel for Dixon then made a motion for a mistrial based on the arguments previously made, and this motion was also denied. The victim then proceeded to describe the procedure followed in her identification of Dixon in the “regular” lineup.

During his testimony at the trial, Detective Mondrick was allowed to describe the procedure used in the “working” lineup without objection. However, when Mon-drick was testifying about the procedure used in the “regular” lineup, counsel for Dixon had the jury retired and made a motion for a mistrial. In addition to the arguments previously advanced, Dixon asserted that he had filed a motion for discovery and that at no time was he advised of the “working” lineup. Counsel further contended that the evidence of the “working” lineup came as a surprise and left him in a position where he could not “evaluate, rebut or in any way cross-examine concerning that particular photograph.” The State responded that, as far as the discovery motion was concerned, it gave the defendant everything it had. The court denied the motion for mistrial. Counsel for Dixon then requested an instanter subpoena for the “working” lineup. This request was granted and Officer Howie was ordered to produce that evidence in court. Apparently, Howie produced a group of photographs in court, but they were not introduced in evidence. Detective Mondrick was recalled and gave the explanation about the existence of the “working” lineup quoted here-inabove.

VALIDITY OF IN-COURT IDENTIFICATION

(Assignment of Error 2)

Dixon contends that the “working” lineup was impermissibly suggestive because of the difference in size of his photograph as compared to the other photographs shown to the victim, citing State v. Wil-lialns, 341 So.2d 370 (La.1976). From this basic premise, Dixon argues that the in-court identification made by the victim was prejudicially tainted by 'the initial “working” lineup and therefore was inadmissible.

Even if we assume that the “working” lineup was a tainted pretrial identification, this does not render the in-court identification inadmissible if the in-court identification is reliable and has an independent basis. It is the likelihood of misidentification which violates due process, not merely a suggestive identification procedure. The following five factors are used to determine when an identification is . reliable and independent of a primary taint: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the witness’s prior description of the criminal; (4) the level of certainty demonstrated by the witness; and (5) the length of time between the crime and the confrontation. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); State v. Davis, 385 So.2d 193 (La.1980); State v. Lucky, 453 So.2d 1234 (La.App. 1st Cir.1984); State v. Marx, 446 So.2d 1313 (La.App. 2nd Cir.1984).

The opportunity to view. The offenses occurred after midnight in the victim’s apartment. The lights were on in the apartment, and the victim was in direct confrontation with the offender during the entire course of the offenses. The victim met the offender at the door, recognized him and allowed him into the apartment. The victim had an excellent opportunity to observe the offender.

The degree of attention. The victim’s attention was obviously rivetted to the offender. He promised to bring her some shrimp, she recognized him before she allowed him into her apartment and she was closely and directly confronted by him during the course of the attack.

The accuracy of the description. The victim described the offender as a black male, dark complected, approximately five feet ten inches to six feet in height, with a medium Afro and a muscular build. She also told the officers he was wearing a red T-shirt with writing on the front. She further identified her attacker as a person named Ray who lived with his mother on Cedar Street which was one street over from the victim’s apartment. She further advised that Ray worked for Georgia-Pacific.

The level of certainty. The victim positively identified Ray Dixon as the person who attacked her.

The time between the crime and the confrontation. The offense occurred shortly after midnight on August 30, 1982. The victim identified Dixon in the “working” lineup shortly after 1:00 p.m. on August 30, 1982. The victim also identified Dixon in the “regular” lineup shortly after 5:00 p.m. on August 31, 1982. The trial of this matter was held on June 20-21, 1983.

The certainty of the victim’s identification of Dixon is bolstered by the fact that she had met him on three occasions prior to the offense. She met him for the first time during June of 1982 when he gave her a ride to the Southern University campus. On that occasion, Dixon told the victim that his name was Ray, that he worked at Georgia-Pacific and he lived with his mother on Cedar Street. Dixon told the victim he had some friends who shrimped, and the victim said she liked shrimp. Dixon told her he would get her some shrimp. The victim saw Dixon again on July 19, 1982, when she was waiting for a bus at the corner of Scenic Drive and Choctaw. Dixon drove up and gave her a ride to the Food Stamp office. She then went with him to two auto repair places and thereafter got a sandwich and a cold drink at a restaurant. Dixon then took her to the Unemployment Compensation office. The victim gave Dixon her phone number to call her if he got some shrimp. Dixon called her at home later that afternoon to make sure that the phone number was correct. Two or three weeks later, Dixon called the victim to tell her a woman had been hired at the Georgia-Pacific plant. The victim was interested in possibly applying for a job there. Dixon asked the victim if he could come to her home and tell her about the work. She gave him directions to her home and he came over and they discussed the work at Georgia-Pacific.

Weighing the above factors, we find that the victim’s in-court identification was reliable and independent from the “working” lineup identification. There is no substantial likelihood that the victim misidentified Dixon.

This claim of error is without merit.

FAILURE TO COMPLY WITH DISCOVERY

(Assignment of Error 2)

Dixon contends that the failure of the State to advise him of the “working” lineup identification by the victim in its answers to the discovery interrogatories was a discovery failure entitling him to the sanction of mistrial as authorized by La.C.Cr.P. art. 729.5. In particular, Dixon contends that the discovery failure affected his right to cross-examine in that “he was in no position to evaluate, rebut, or in any way cross-examine that evidence.” Dixon also contends that “... the nondisclosed evidence would have created a reasonable doubt which did not otherwise exist if he would have had access to that evidence prior to the trial.”

Pursuant to La.C.Cr.P. art. 718, a defendant in a criminal case is entitled to discovery of books, papers, documents, photographs, tangible objects, buildings, places, or copies or portions thereof, which are within the possession, custody, or control of the state, and which are favorable to the defendant and are material and relevant to the issue of guilt or which are intended for use by the state as evidence at the trial. The State has a continuing duty to make discovery disclosures if it discovers additional evidence or decides to use additional evidence. La.C.Cr.P. art. 729.3. If the State fails to comply with a discovery order or motion, the court as a sanction may permit the discovery, grant a continuance, order a mistrial on motion of the defendant, prohibit the party from introducing the evidence not disclosed, or enter such other order (other than dismissal) as may be appropriate. La.C.Cr.P. art. 729.5.

At the trial, the State advised the court that it did not advise the defendant of the “working” lineup because it was not aware of its existence. The defendant did not challenge this statement at the trial or in brief before this court. Detective Mon-drick testified that it was impossible to reproduce the exact “working” lineup because the photographs of persons other than the defendant apparently had been changed between August 30, 1982, and the date of trial. The State did produce photographs which were similar to those used in the “working” lineup, and these were filed into evidence by the defendant. If it is the defendant’s contention that this evidence is favorable to his case, he was given an opportunity to present, and did present, this evidence to the jury. Defendant was given an opportunity to cross-examine the witnesses in front of the jury concerning this evidence and did so. The defendant did not request a recess to prepare this cross-examination.

A discovery failure will not automatically require reversal. It is the duty of a court to review the record for a determination of whether any prejudice may have resulted from the noncompliance which caused the trier of fact to reach the wrong conclusion. State v. Ray, 423 So.2d 1116 (La.1982); State v. Marquer, 446 So.2d 1258 (La.App. 4th Cir.1984), writs denied, 450 So.2d 359 (La.1984) and 452 So.2d 168 (La.1984).

We cannot say that the district court judge abused the much discretion accorded him by law in failing to grant a mistrial under the particular facts and circumstances of the instant case. The defendant was given an opportunity to discover the undisclosed evidence at the trial and was permitted to cross-examine concerning same. No recess was requested to prepare the cross-examination. The defendant presented to the jury by way of his cross-examination all of the available facts concerning the “working” lineup identification. The jury, after considering this evidence, apparently reached the conclusion that the victim’s identification of the defendant was accurate and valid. The failure of the State to disclose the fact of the “working” lineup, although possibly improper, constituted harmless error. Cf. State v. Washington, 407 So.2d 1138 (La.1982); State v. Anderson, 440 So.2d 205 (La.App. 3rd Cir.1983), writ denied, 444 So. 2d 1241 (La.1984).

This assignment of error is without merit.

ADMISSIBILITY OF “REGULAR” LINEUP

(Assignment of Error 1)

Defendant assigns as error the ruling of the trial court allowing the introduction of the “regular” photographic lineup. Defendant argues that because the victim had already made an in-court identification, any probative value of the “regular” lineup display was outweighed by its prejudicial effect, citing Rule 403 of the Federal Rules of Evidence and State v. Bray, 292 So.2d 697 (La.1974). Defendant also contends that the “regular” lineup identification created a question in the minds of the jurors of how the police were able to obtain a photograph of defendant so quickly.

Detective Charles Mondrick testified that, based on the information supplied by the victim, he obtained a copy of a driver’s license photograph of defendant from the Motor Vehicle Division of the state police. It is therefore impossible for the jury to have reached an erroneous conclusion regarding the origin of defendant’s photograph.

The defendant has cited no authority to us which makes Rule 403 of the Federal Rules of Evidence controlling on evidentiary rulings in a Louisiana district court. Bray is distinguishable because it deals with gruesome photographs of a victim. Evidence of prior identifications by a victim is relevant and admissible. State v. Williams, 402 So.2d 678 (La.1981); State v. Morgan, 444 So.2d 325 (La.App. 1st Cir.1983); McCormick’s Handbook of the Law of Evidence, § 251 at 603 (E. Cleary 2nd ed. 1972).

This assignment of error, is without merit.

DECREE

For the foregoing reasons, the conviction and sentence are affirmed.

AFFIRMED.


author: DOUCET, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Steven WILLIS, Defendant-Appellant.
    No. CR83-471.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    Scotty G. Rozas, Lake Charles, for defendant-appellant.
    Leonard Knapp, Jr., Dist. Atty., F. Wayne Frey, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before DOMENGEAUX, CUTRER and DOUCET, JJ.
   DOUCET, Judge.

The defendant, Steven Willis, was charged by bill of information with six counts of forgery, in violation of La.R.S. 14:72. On December 13, 1982, defendant changed his plea of not guilty to guilty. Defendant’s appointed counsel, Joy Clemons, was not present. Jack Rogers stood in as defense attorney. The trial judge Boyk-enized (See: Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the defendant and sentenced him to serve five years at hard labor on each of the six counts with the sentences to run concurrently.

On March 14, 1983, a hearing was held on defendant’s “Motion for Arrest of Sentence and/or New Trial”. Defendant attempted to withdraw his guilty plea. He alleged that he only intended to plead to two counts of forgery, rather than six counts of forgery, and that the waiver of rights form had been altered to read six counts. Therefore, he argued that his plea of guilty was not knowing and voluntary. The trial judge denied defendant’s motion. Defendant now appeals the trial judge’s ruling.

Defendant urges that Judge Bond erred in accepting and entering a plea of guilty by defendant on six counts of forgery.

La.C.Cr.P. art. 559 permits a plea of guilty to be withdrawn at any time before sentence is imposed. Defendant made no attempt to do this. However, the Louisiana Supreme Court has stated that the trial court can vacate a plea of guilty even after sentencing when it is determined that the facts surrounding the plea rendered it “constitutionally deficient”. State v. Lewis, 421 So.2d 224 (La.1982); State ex rel. Clark v. Marullo, 352 So.2d 223 (La.1977).

Defendant contends that he was led to believe that he was to enter a plea of guilty to two counts of forgery and that the other four counts would be dismissed by the State. As a result of this, defendant argues, his plea of guilty to six counts of forgery was not free and voluntary and is, consequently, constitutionally infirm. Therefore he argues that he should be allowed to withdraw his plea.

It is not clear from the transcript of the hearing on the “Motion for New Trial” from whom Mr. Willis drew the impression that he was to plead only to two counts of forgery, or if he was, in reality, told this at all. On direct examination Mr. Willis testified as follows:

“Q. Prior to that time, how did you get the information as to the plea bargain— if we can call it that — on the 2 counts? Who gave you that information; the District Attorney’s Office or Ms. Clemons or Mr. Rogers?
A. Ms. Clemons, from the very start, and then she ... like I say, when Mr. Rogers turned it over, she told him and then I was going to go ahead and go to trial with it and then the day of trial, he told me that, you know ... I told him that if the deal is still on, I would take it.”

However, on cross-examination, his testimony was to the contrary:

“Q. The deal that you indicated that Ms. Clemons spoke to you about was what, sir?
A. To ... Ms. Clemons had never said nothing about this dismissing any charges. Mr. Rogers came to me with that, that morning when I talked to him. All along she told me 2 years ... to plead guilty and 2 years in the parish jail.”

It should be noted that the defendant claims that the Waiver of Constitutional Rights form he initially signed stated two counts of forgery and that his attorney wrote six over the two after he had pled guilty. Examination of the form indicates that this may be true. Nevertheless, it appears from the plea colloquoy that the defendant was informed that he was pleading to six counts of forgery and that he understood the guilty plea was to six counts.

Defendant further contends that he was led to believe that he would receive a sentence of two years for this plea. He argues that the trial judge erred in sentencing him to five years, contrary to the recommendation of the State and defense attorneys. However, it is clear that the defendant was fully informed by the trial judge during the sentencing that he could impose any sentence he desired.

“THE COURT: Do you understand that the Court has made no promise to anyone concerning the sentence to be imposed in this case. I know nothing of it. I have not discussed it with either the prosecutor or your attorney. I will listen to any recommendation made by the two attorneys, the State and your attorney, if it’s agreed to by you; but, then I will impose the sentence that seems to me appropriate. You understand that?
MR. WILLIS: Yes, sir.”

Where a promise or plea-bargain is made then broken, the defendant has the right to withdraw the plea. State v. Lock wood, 399 So.2d 190 (La.1981). However, the testimony of the defendant himself shows that this is not the case.

“THE COURT: Has anyone persuaded you to plead guilty by the use of any threats, pressure, force, promise, coercion, of any kind?
MR. WILLIS: No sir.
THE COURT: You wish to plead guilty?
MR. WILLIS: Yes, Your Honor.
THE COURT: Very well. Let a plea of guilty be entered.”

It appears that defendant is simply unhappy with the sentence he has received. The dissatisfaction of the defendant with the sentence received is not grounds for the withdrawal of a guilty plea. “A defendant in a criminal prosecution cannot test the sentence and then, if dissatisfied with it, elect to go to trial.” State v. Robinson, 311 So.2d 893 (La.1975); State v. Johnson, 257 So.2d 654 (La.1972). See also. State v. Deakle, 372 So.2d 1221 (La.1979) and State v. Boatright, 406 So.2d 163 (La.1981). Withdrawal of a plea of guilty rests within the sound discretion of the trial judge. La.C.Cr.P. art. 559, State v. Deakle, supra; State v. Robinson, supra. Defendant was fully informed of the consequences of his plea. We find that the trial judge did not abuse his discretion in refusing to allow defendant to withdraw his plea or in sentencing the defendant. We affirm the conviction and the sentence imposed upon the defendant by the District Court.

AFFIRMED.


author: CUTRER, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Darren AARON, Defendant-Appellant.
    No. CR83-767.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    James S. Gravel, Gravel & Van Dyke, Alexandria, for defendant-appellant.
    Edward E. Roberts, Jr., Asst. Dist. Atty., Alexandria, for plaintiff-appellee.
    Before DOMENGEAUX, CUTRER and DOUCET, JJ.
   CUTRER, Judge.

The defendant, Darren Aaron, was initially charged by bill of information with the crime of armed robbery, a violation of LSA-R.S. 14:64. The State subsequently amended the bill, charging the defendant with attempted first degree murder. LSA-R.S. 14:27, 14:30. The defendant pleaded guilty to that crime and was sentenced to imprisonment for thirty-five years at hard labor. This sentence was appealed, but neither briefs nor argument have been submitted to this court.

Unbriefed assignments of error are deemed abandoned upon appeal. State v. Washington, 430 So.2d 641 (La.1983); State v. Thibodeaux, 448 So.2d 879 (La.App. 3rd Cir.1984). Our review, therefore, is limited to an inspection of the record for errors patent. LSA-C.Cr.P. art. 920. Having conducted this review, we find no error.

Accordingly, defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    STATE of Louisiana v. Allen R. DEVILLE.
    No. CR83-806.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    Terrell D. Fowler, Cox, Cox, Townsley & Fowler, Lake Charles, for defendant-appellant.
    Jerry G. Jones, Dist. Atty., Cameron, for plaintiff-appellee.
    Before DOMENGEAUX, CUTRER, and DOUCET, JJ.
   DOMENGEAUX, Judge.

The defendant, Allen R. Deville, was charged by Bill of Information with the crime of distribution of marijuana, a violation of La.R.S. 40:967. Pursuant to a plea bargain agreement, he pled guilty on March 29, 1983. On June 15, 1983, he was sentenced to serve a term of three and one-half years in the custody of the Department of Corrections.

Because we find merit in defendant’s third assignment of error we find it unnecessary to pass on his first and second assignments dealing with the sentencing procedure and the excessiveness of the sentence imposed.

By defendant’s third assignment of error he contends that the trial court erred in denying his motion to set aside the sentence. He claims that the plea bargain agreement was breached in that the State made a recommendation as to sentencing in violation of the agreement.

The defendant contends in support of his motion that he agreed to plead guilty, in return for which the State would remain silent and make no recommendation as to the sentence. However, it appears that the State did recommend a sentence of three and one-half to five years in the custody of the Department of Corrections. Therefore, it is the defendant’s contention that, since the plea bargain agreement was violated, the trial court erred in not granting his motion to set aside the sentence and in the alternative in failing to allow withdrawal of his plea of guilty.

A plea of guilty cannot be withdrawn after a sentence has been imposed, unless it is shown that the plea and/or sentence are constitutionally infirm. State v. Banks, 383 So.2d 1009 (La.1980). A guilty plea has been held to be constitutionally infirm when the State does not fulfill an express or implied part of the plea bargaining agreement which precipitated the defendant’s decision to so plead. State v. Hayes, 423 So.2d 1111 (La.1982).

In this case, it appears that neither side had a total understanding as to the terms of the plea bargain agreement. According to the District Attorney, the plea agreement was that neither side would make a recommendation as to the sentence and the defendant would be sentenced solely on the basis of the presentence investigation. The defense counsel stated that his understanding of the agreement was that the State would not file a second Bill against the defendant, that neither side would make a recommendation at the time of the sentencing, and that the defendant would submit a pre-sentence memorandum. However, it should be noted that both sides did understand that the State would not submit a sentencing recommendation.

The trial judge, in denying the motion to set aside the sentence, stated that, in his opinion, both the State and the defense violated the plea bargain agreement. He concluded that, in any event, the defendant had suffered no prejudice since evidence was presented showing the good character of the defendant as well as his alleged drug dealing activities. The trial judge stated that the defendant and his lawyer remained silent until after sentencing. He felt that by that inaction they had waived their objection to the breach of the plea bargain. He thus denied their motion to set aside the sentence. However, a guilty plea can be attacked by means of appeal or by post conviction relief on the ground that the plea is constitutionally infirm; State v. Hayes, supra, therefore, the defendant is not precluded from raising this issue on appeal.

The trial judge stated that since he had been presented with both favorable and unfavorable evidence at the sentencing hearing, the defendant had not been prejudiced. Our Supreme Court has stated in State v. Bosworth, 415 So.2d 912, 927 (La.1982) (on rehearing), that: “When a plea rests in any significant degree on the promise of the prosecutor, so that the promise partially induced the plea, the promise must be fulfilled. The necessity of performance is unaffected by the trial judge’s statement that the prosecutor’s recommendation would not have influenced him. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).” The trial judge’s finding that both parties had violated the agreement, but that the defendant had not suffered any prejudice does not negate the fact that the defendant’s plea .was most probably significantly induced by the agreement that neither side was to make a recommendation at the sentencing hearing. To that extent the plea bargain has been breached. We therefore feel that in the interest of justice we are compelled to remand this case to the trial court.

In a recent and similar case the Louisiana Supreme Court outlined a procedure to be followed when a plea bargain agreement has been breached. See State v. Charles Ray Smith, 452 So.2d 160 (La.1984). Every “plea bargain breach” case may not require a remand to a different trial judge as was done in Smith. However, we feel that the similarity between the facts here and the facts of the Smith case requires us to follow its directive.

Accordingly, the defendant’s sentence is vacated and the case is remanded to the district court for a hearing before a different trial judge to determine whether there was a meeting of the minds between the defendant, the defense counsel, the prosecutor and the trial judge as to the plea bargain. The judge shall then decide whether due process requires (a) that there be specific performance of the plea bargain and the implementation of a new sentence under those guidelines, or (b) that defendant be given the option to withdraw his plea and proceed to trial on the original charges. In the event the circumstances require that the defendant be allowed to withdraw his plea, he should be tried with a different judge presiding.

The plea bargaining phase of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due him under the circumstances. Those circumstances will vary, “but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Santobello v. New York, 404 U.S. at 264, 92 S.Ct. at 499.

DECREE

For the above and foregoing reasons the defendant’s sentence is vacated and the case is hereby remanded to the district court with instructions to the trial court to conduct further proceedings consistent with the views expressed herein.

SENTENCE VACATED AND CASE REMANDED.

      . The defendant was erroneously charged under La.R.S. 40:967; he should have been charged under La.R.S. 40:966(A). However defendant was not misled by the erroneous citation and the fact that he was charged under the wrong statute is not grounds for reversal of his conviction. State v. Johnson, 404 So.2d 239, 242 (La.1981).

      . Neither the record nor the supplemental record reflect the State actually making the sentence recommendation. However, it is referred to by the prosecutor, the defense attorney, and the trial judge.


author: LABORDE, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Charles Wayne DEVILLE, Defendant-Appellant.
    No. CR83-825.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.

      Sherman Stanford, Opelousas, for defendant-appellant.
    Morgan Goudeau, III, Dist. Atty., David Miller, Asst. Dist. Atty., Opelousas, for plaintiff-appellee.
    Before GUIDRY, LABORDE and YEL-VERTON, JJ.
   LABORDE, Judge.

Defendant, Charles Wayne Deville, was indicted by a grand jury for one count of second degree battery in violation of LSA-R.S. 14:34.1, and one count of contributing to the delinquency of a minor, in violation of LSA-R.S. 14:92.1. On May 13, 1983, he pleaded guilty to contributing to the delinquency of a minor; the battery charge was dismissed. On June 24, 1983, defendant was sentenced to serve two (2) years in the custody of the Department of Corrections. On appeal, defendant relies on one assignment of error for reversal of his sentence. We affirm.

In this instance, neither the appellant nor the appellee have filed briefs. For this reason, the assignment of error designated by defendant in the record is considered as abandoned. State v. Dewey, 408 So.2d 1255 (La.1982); State v. Lemoine, 403 So.2d 1230 (La.1981).

Under these circumstances, our review is limited to a “mere inspection of the pleadings and proceedings” to determine if any patent errors are present. LSA-C. Cr.P. article 920(2).

After conducting a thorough and extensive review of the record, we find no patent errors.

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

AFFIRMED.

      . "Art. 920. Scope of appellate review
      The following matters and no others shall be considered on appeal:
      (1) An error designated in the assignment of errors; and
      (2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.”


author: YELVERTON, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Harry Lee ALEXANDER, Defendant-Appellant.
    No. CR82-845.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    Writ Denied Dec. 14, 1984.
    Hank Hannah, Hannah, Cook & Kaufman, Lafayette, for defendant-appellant.
    Michelle Jackson, Carrol Spell, Jr., Asst. Dist. Attys., Lafayette, for plaintiff-appel-lee.
    Before GUIDRY, LABORDE and YEL-VERTON, JJ.
   YELVERTON, Judge.

Defendant, Harry Lee Alexander, was convicted of aggravated rape (LSA-R.S. 14:42), attempted second degree murder (LSA-R.S. 14:27), and aggravated burglary (LSA-R.S. 14:60).

On appeal, 437 So.2d 991 (La.App. 3rd Cir.1983), we set aside the conviction of aggravated rape and substituted a conviction of attempted aggravated rape, a violation of La.R.S. 14:27 and 14:42. We remanded to the trial court with instructions to enter a judgment of conviction of attempted aggravated rape and to impose a sentence for that crime. The trial court did as instructed. The defendant is now appealing the conviction for attempted aggravated rape.

As in the defendant’s first appeal, there are four assignments of error. These are the exact same four assignments alleged in the first instance. Also, as in the first appeal, three of the assignments, Numbers 2, 3 and 4, were not briefed. Assignments of error neither briefed nor argued are considered abandoned. State v. Lewis, 416 So.2d 921 (La.1982); Rule 2, Section 12.4, Uniform Rules of the Courts of Appeal. As in the first appeal, we will not consider the abandoned assignments.

The one assignment briefed alleges that the State failed to carry its burden of proof in that it did not prove each and every element of attempted aggravated rape. As indicated, this Court has already looked at this appeal and evaluated the evidence as to the rape charge. This Court evaluated the defendant’s allegations and found that the State did not carry its burden of proof in that it did not prove each and every element of the crime and could not sustain a conviction of aggravated rape. We went further to find that the State did, however, carry its burden of proof sufficiently for a conviction of attempted aggravated rape. Based on that analysis as reported in State v. Alexander, 437 So.2d 991 (La.App. 3rd Cir.1983), this assignment has no merit.

CONVICTIONS AND SENTENCES AFFIRMED.


text:
    David John SMITH, Plaintiff-Appellant, v. A.I.U. INSURANCE COMPANY, et al., Defendants-Appellees.
    No. 83-862.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.

      Ford and Nugent, William M. Ford, Alexandria, for plaintiff-appellant.
    Gold, Little, Simon, Weems & Bruser, John F. Simon, Alexandria, for defendants-appellees.
    Before DOMENGEAUX, CUTRER and DOUCET, JJ.
   DOUCET, Judge.

This is a suit for workmen’s compensation benefits which involves a determination of whether the plaintiff-appellant, David Allen Smith, was within the course and scope of his employment when he sustained his disabling injuries. The plaintiff-appellant perfected this appeal of the trial court’s judgment which denied recovery from the defendant-appellee, Wendy’s of Louisiana, Inc. and its compensation insurer, A.I.U. Insurance Co.

The facts of the case are not in dispute. The plaintiff is a kitchen helper at a Wendy’s restaurant in Alexandria, La. On the night of January 18, 1982, the plaintiff volunteered to drive his manager home after they closed the restaurant for the evening. Before driving directly to the manager’s home a slight detour was necessary in order to make the nightly deposit of the cash receipts of the day. The plaintiff then brought his manager home and on the return trip to his own home the plaintiff was involved in a vehicular collision that caused his disabling injuries. Mr. Smith was totally disabled from January 18, 1982 through April 15, 1982. No weekly compensation benefits nor any medical expenses have been paid to the plaintiff by his employer. The plaintiff filed this suit seeking to recover total disability benefits and the medical expenses incurred for the treatment of the disabling injuries.

After a trial, a judgment was rendered in the defendant’s favor on the ground that the plaintiff’s drive home was not within the course and scope of his employment by the defendant thereby making the plaintiff’s disabling injuries non-compensable. The plaintiff appeals this determination and it constitutes the sole issue of this appeal.

LSA-R.S. 23:1031 provides that workmen’s compensation shall be allowed for an accidental injury “arising out of and in the course of” the plaintiff’s employment. Laughlin v. City of Crowley, 411 So.2d 708 (La.App. 3rd Cir.1982). Mr. Smith’s car accident must arise out of and be in the course of his employment in order for him to be entitled to recovery in this suit. The general rule is that injuries sustained while in transit to or from the work place do not arise out of the claimant’s employment nor are they in the course thereof. Castille v. Sibille, 342 So.2d 279 (La.App. 3rd Cir.1977); Johnson v. Aetna Casualty & Surety Co., et al, 387 So.2d 1340 (La.App. 1st Cir.1980). Therefore, the plaintiff’s recovery is precluded unless his car accident falls within one of the exceptions to this rule.

Castille outlines three exceptions to the general rule that injuries sustained in transit to or from the jobsite are non-compensable. First, if the employer provides transportation then an injury sustained in an automobile going to or coming from work is compensable. Second, benefits are due if an employee is injured in a vehicular accident if the employer provides expenses or wages for the time spent traveling in the vehicle. Third, benefits are due in those cases where the operation of the motor vehicle is incidental to or is actually the performance of some employment responsibility.

The first exception does not apply to this case because the plaintiff was using his own vehicle when he sustained the disabling injuries. The second exception does not merit recovery because Wendy’s did not furnish wages or expenses to the claimant for time spent in transit to or from the jobsite. Finally, the third exception does not apply because the plaintiff was not discharging any employment responsibility after he assisted in delivering the nightly cash deposit. When this task was completed he was off duty and any injuries sustained after the deposit did not arise from or occur in the course of his employment.

The plaintiff-appellant contends that the necessities of his employer’s business reasonably required that he be at the place of the accident at the time that the accident occurred thereby entitling him to disability benefits. Dominick v. Dept. of Health and Human Resources, 406 So.2d 273 (La.App. 3rd Cir.1981). The contention is that Mr. Smith would not have been on the particular road of the accident when it occurred had he not assisted in delivering the nightly deposit and then brought his manager home. Appellant points out that his manager lives in the outskirts of Alexandria where there was only one available route back into the city, thereby forcing Mr. Smith to be on the particular road where he was injured. This contention is without merit. The fact that the plaintiff had a very limited choice in his route home is irrelevant. The fact remains that the plaintiff was under no duty to go in any particular direction or to discharge any duty but was in fact free to pursue his pleasure when he was involved in the accident. Dominick, supra. Therefore his injuries were not sustained in an accident that arose out of and in the course of his employment by the defendant. Compensation benefits were properly denied.

For the above and foregoing reasons, the judgment of the trial court is affirmed at David Allen Smith’s (plaintiff-appellant) cost.

AFFIRMED.