author: PARRO, J.

text:
    Benny A. McDONALD v. AMERICAN FAMILY LIFE ASSURANCE COMPANY OF COLUMBUS, et al.
    Nos. 2010 CA 1873, 2010 CW 1287.
    Court of Appeal of Louisiana, First Circuit.
    July 27, 2011.

      Allen A. McElroy, Jr., Robert L. Duffy, McElroy & Duffy, Berwick, LA, for Plaintiff-Appellee Benny A. McDonald.
    Corinne A. Morrison, Douglas L. Grund-meyer, Gregory J. Walsh, Chaffe McCall, L.L.P., New Orleans, LA, for Defendant-Appellant American Family Life Assurance Company of Columbus.
    Before PARRO, GUIDRY, and HUGHES, JJ.
   PARRO, J.

|?Defendant, American Family Life Assurance Company of Columbus (Aflac), appeals a summary judgment in favor of the plaintiff, Benny A. McDonald, decreeing that Mr. McDonald was entitled to coverage for successive twelve-month periods of short-term disability benefits for the same continuing disability, after waiting a period of 180 days between claims. The judgment further denied Aflac’s cross-motion for summary judgment, to which Aflac has filed an application for a writ of supervisory review. For the following reasons, we reverse the judgment on appeal and grant the writ filed by Aflac.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Mr. McDonald was involved in an automobile accident on April 22, 2008. As a result of this accident, Mr. McDonald suffered injuries, which he alleges rendered him permanently disabled and unable to return to work. At the time of the accident, Mr. McDonald was insured under a short-term disability insurance policy provided by Aflac, with a maximum benefit period of twelve months. Mr. McDonald subsequently submitted a claim under this policy, alleging that he had been totally and permanently disabled and unable to work since the accident. In response to this claim, Aflac paid Mr. McDonald for 63 days of short-term disability. However, Aflac refused to pay additional benefits after learning of the possibility that Mr. McDonald’s accident had occurred while he was on the job.

On November 11, 2008, Mr. McDonald filed a petition in the trial court, contending that he was entitled to disability payments of $2200 per month, for a benefit period of twelve months, retroactive to the date of the accident, April 22, 2008. Mr. McDonald further claimed that Aflac had arbitrarily and capriciously failed to pay him the benefits due under the policy and that Aflac was, therefore, responsible for penalties and attorney fees.

|sThe issue of whether Mr. McDonald was on the job at the time of the accident was resolved by the trial court, when it granted a partial summary judgment in Mr. McDonald’s favor, concluding that Mr. McDonald had been off the job at the time of the accident. In response to that ruling, Aflac paid Mr. McDonald short-term disability benefits for the maximum twelve-month benefit period provided under the policy, less the value of the benefits paid for the 63 days he had already received.

Thereafter, Mr. McDonald filed a motion for leave to file an amended and supplemental petition asserting a claim for “successive periods of disability” under the Aflac policy, as well as for statutory penalties and attorney fees. Mr. McDonald then moved for a summary judgment on the issue of his entitlement to payment for successive periods of disability. Aflac opposed the motion and filed its own cross-motion for summary judgment, seeking a dismissal of Mr. McDonald’s petition, including both the claim for successive periods of disability and the claims for statutory penalties and attorney fees. After a hearing, the trial court took the matter under advisement and subsequently issued written reasons for judgment in which it determined that Mr. McDonald was entitled to successive twelve-month periods of short-term disability benefits, after waiting a period of 180 days from the termination of each benefit period before making a new claim. The trial court cited no authority for this ruling and gave no specific basis in support of this finding. However, in light of its written reasons, the trial court granted Mr. McDonald’s motion for summary judgment and denied Aflac’s cross-motion for summary judgment. A partial final judgment in accordance with these reasons was signed on June 2, 2010. The trial court designated this judgment as final and appealable in accordance with LSA-C.C.P. art. 1915(B).

Aflac has appealed that portion of the judgment granting Mr. McDonald’s motion for summary judgment. In addition, Aflac filed an application for a writ of supervisory review regarding that portion of the judgment that denied its motion for summary judgment. By order of a different panel of this court, Aflac’s writ application was preferred to this panel for consideration, along with the appeal.

APPLICABLE LAW

An appellate court reviews a trial court’s decision to grant a motion for summary judgment de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Smith v. Out Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact. West v. Clarendon Nat’l Ins. Co., 99-1687 (La.App. 1st Cir.7/31/00), 767 So.2d 877, 879. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. LSA-C.C.P. art. 966(A)(2); Lee v. Grimmer, 99-2196 (La.App. 1st Cir.12/22/00), 775 So.2d 1223, 1225. The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B); Perry v. City of Bogalusa, 00-2281 (La.App. 1st Cir.12/28/01), 804 So.2d 895, 899.

Whether an insurance policy, as a matter of law, provides or precludes coverage is a dispute that can be properly resolved within the framework of a motion for summary judgment. Doiron v. Louisiana Farm Bureau Mut. Ins. Co., 98-2818 (La.App. 1st Cir.2/18/00), 753 So.2d 357, 362 n. 2. In seeking a declaration of coverage under an insurance policy, Louisiana law places the burden on the plaintiff to establish every fact essential to recovery and to establish that the claim falls within the policy coverage. Ho v. State Farm Mut. Auto Ins. Co., 03-0480 (La.App. 3rd Cir.12/31/03), 862 So.2d 1278, 1281, citing Pierce v. Aetna Life and Cas. Ins. Co., 572 So.2d 221, 222 (La.App. 1st Cir.1990). Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Jones v. Estate of Santiago, 03-1424 |5La.4/14/04), 870 So.2d 1002, 1010.

DISCUSSION

Essentially, the issue before this court is whether Mr. McDonald’s total disability, which has continued unabated since his April 22, 2008 accident, can give rise to “separate periods of disability,” as that phrase is used in the definition of the term “successive periods of disability” provided in the policy. If not, Mr. McDonald has simply sustained a single, continuous period of disability for which he has already received the maximum payment of benefits allowed pursuant to the short-term disability policy at issue.

An insurance policy is an agreement between the parties and should be construed according to the general rules of interpretation of contracts as set forth in the Louisiana Civil Code. Cadwallader v. Allstate Ins. Co., 02-1637 (La.6/27/03), 848 So.2d 577, 580. When interpreting insurance contracts, the court’s responsibility is to determine the parties’ common intent. Louisiana Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 93-0911 (La.1/14/94), 630 So.2d 759, 763; LSA-C.C. art. 2045. The parties’ intent, as reflected by the words of the policy, determines the extent of coverage. Ledbetter v. Concord Gen. Corp., 95-0809 (La.1/6/96), 665 So.2d 1166, 1169, decree amended, 95-0809 (La.4/18/96), 671 So.2d 915.

When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. LSA-C.C. art. 2046. Such intent is to be determined in accordance with the general, ordinary, plain, and popular meaning of the words used in the policy, unless the words have acquired a technical meaning. Ledbetter. 665 So.2d at 1169; see LSA-C.C. art. 2047. If the policy wording at issue is clear and expresses the intent of the parties, the agreement must be enforced as written. Ledbetter, 665 So.2d at 1169. An insurance policy should not be interpreted in an unreasonable or a strained manner so as to enlarge or restrict its provisions beyond what is reasonably contemplated by its terms or to achieve an absurd conclusion. Reynolds v. Select Properties, Ltd., 93-1480 (La. |4/11/94),6 634 So.2d 1180, 1183. Absent a conflict with statutory provisions or public policy, insurers are entitled to limit their liability and to impose and enforce reasonable conditions on the policy obligations they contractually assume. Campbell v. Markel American Ins. Co., 00-1448 (La.App. 1st Cir.9/21/01), 822 So.2d 617, 623, writ denied, 01-2813 (La.1/4/02), 805 So.2d 204.

By its express terms, the policy at issue paid benefits for short-term disability caused by sickness or off-the-job injury. Where a policy of insurance contains a definition of any word or phrase, that definition is controlling. Cangelosi v. Allstate Ins. Co., 96-0159 (La.App. 1st Cir.9/27/96), 680 So.2d 1358, 1362, writ denied, 96-2586 (La.12/13/96), 692 So.2d 375. In establishing the limits of its liability, the policy provides, in pertinent part, the following definitions:

C. BENEFIT PERIOD: the maximum number of days after the Elimination Period, if any, for which you can be paid benefits for any one or Successive Periods of Disability. Each new Benefit Period is subject to a new Elimination Period. See the Policy Schedule for the Benefit Period you selected. For the purposes of this calculation, a “month” is defined as 30 days for which benefits are paid. See definition of “Successive Periods of Disability.”
* * *
N. SUCCESSIVE PERIODS OF DISABILITY: separate periods of disability, if caused by the same or a related condition and not separated by 180 days or more, are considered a continuation of the prior disability. Separate periods of disability resulting from unrelated causes are considered a continuation of the prior disability unless they are separated by your returning to work at a Full-Time Job for 14 working days, during which you are performing the material and substantial duties of this job and are no longer qualified to receive disability benefits.
0. TOTALLY DISABLED: your continuing inability to perform the material and substantial duties of your Full-Time Job. You must also be under the care and attendance of a Physician for your condition. If you are unable to perform the material and substantial duties of your Full-Time Job but are able to work at any job, you will continue to be considered Totally Disabled as long as your earnings are less than 80% of your Base Pay Earnings at the time you became Totally Disabled. If you return to work at any job and are earning 80% or more of your predisability Base Pay Earnings, you will no longer be considered Totally Disabled.

According to the policy schedule, the benefit period selected by Mr. McDonald was twelve months. There is no dispute that Aflac paid Mr. McDonald for twelve months of disability; however, Mr. McDonald contends that he was further entitled to 17successive periods of disability, as defined in the policy, upon waiting 180 days between claims. On the other hand, Aflac asserts that Mr. McDonald has sustained only one, single, continuous period of disability.

The facts of this matter are not in dispute. Mr. McDonald was involved in a single accident, which by his own admission, has caused him to be totally disabled, without interruption, since the date of the accident. There is also no dispute that Mr. McDonald has never ceased being disabled as a result of this accident. He has never returned to work in any capacity, and he claims that he will never be able to work again as a result of the accident. Accordingly, it is clear that there has only been one, single, continuous period of disability that commenced with the accident and has continued to the present.

The policy authorizes payment during the “benefit period” for any “one or Successive Periods of Disability.” The policy defines “successive periods of disability” in terms of “separate periods of disability,” which requires that there be more than one period of disability. Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. LSA-C.C. art. 2050. By interpreting the policy according to the general rules of interpretation of contracts and giving the words their plain and ordinary meanings, it is clear that Mr. McDonald has not sustained any separate periods of disability, as he has, by his own admission, sustained only a single, continuous period of disability that has existed, without interruption, since the date of his accident. Because there has only been one period of disability in this matter, Mr. McDonald is not entitled to payment for successive periods of disability pursuant to the policy.

Nevertheless, Mr. McDonald contends that, in order to properly file a claim for successive periods of disability, the only requirement under the Aflac policy language is that he wait 180 days between claims. In support of this argument, Mr. McDonald relies on Etter v. Am. Family Life Ins. Co., No. E-08-051, 2009 WL 641342 (Ohio App. |86th Dist.3/13/09), appeal not allowed, 122 Ohio St.3d 1521, 913 N.E.2d 457 (2009), in which the court was required to apply the following language from an earlier Aflac short-term disability policy:

M. SUCCESSIVE PERIODS OF DISABILITY: separate periods of disability, if due to the same or related condition and not separated by 180 days or more will be considered a continuation of the prior disability. Separate periods of disability due to unrelated [causes] will be considered a continuation of the prior disability unless they are separated by your returning to work at a Full-Time Job for at least l(one) full day, during which you are performing the material and substantial duties of this job and are no longer qualified to receive disability benefits.

Id. at *2.

Ms. Etter filed suit against Aflac for breach of contract, contending that Aflac had wrongfully denied her claims under a short-term disability insurance policy. Specifically, Ms. Etter initially filed two claims under the policy for disability related to a chronic condition, Crohn’s disease. These claims were for two separate periods between June 3 and September 7, 2003. Aflac apparently considered those two periods to be successive periods of disability and fully paid them according to the policy limits. Etter at *3. Thereafter, Ms. Etter returned to work at her full-time job, sometimes using earned sick leave, comp time, and vacation days as part of her work week. With respect to her prior claims, the last day of her second paid claim was September 7, 2003, and Ms. Etter did not file another claim until March 11, 2004, which was 186 days after the end of her last previous claim. Id.

In discussing the policy language in light of the facts, the Etter court stated:

The language for successive periods of disability caused by the same condition, however, requires only that the claimed periods must be separated by 180 days in order for a claim to be filed.... Certainly chronic conditions would fall within the purview of claims caused by the same condition. The policy simply limits the insured’s ability to file a claim for such a condition to every 180 days, assuring that the policy covers only short-term periods for disability.
In addition, the policy language does not include any reference to returning to full-time work, i.e., 30 hours per week, during those 180 days. Clearly, the 180 days would not necessarily all be work days. Therefore, one reasonable interpretation of this part of the policy is that, as long as the person was still employed in the full-time position, the policy would cover successive claims for the same condition, limited only by the 180 day separation.
| ySince appellant continued to work at her full-time position and 180 days separated her claims, a reasonable interpretation of the policy language would be that she was entitled to coverage.

Id. (Emphasis added.)

Mr. McDonald has, of course, focused on the part of the above language that states that the policy allows successive claims for the same condition, limited only by the 180-day separation. However, his position would necessarily presuppose “separate periods of disability,” separated by 180 days or more, before a successive claim could be made for a new benefit period. Moreover, the facts of the Etter case also note that Ms. Etter returned to her full-time job in between her claim that ended September 7, 2003, and the claim that she filed 186 days later. Neither of these factual situations exist in our case. Accordingly, nothing in the court’s ruling supports Mr. McDonald’s position that he is entitled to coverage for more than one benefit period due to a single, uninterrupted period of disability for which he has remained totally disabled and unable to return to work since the date of the accident.

We note that such an interpretation would be unreasonable or strained, so as to either enlarge the provisions beyond what was reasonably contemplated by the terms of the policy or to achieve an absurd conclusion. See Reynolds v. Select Properties, Ltd., 634 So.2d at 1183. Mr. McDonald purchased a short-term disability insurance policy. By reading the policy as Mr. McDonald would prefer, the policy would be transformed into a long-term disability policy, as it would continue to provide benefits for Mr. McDonald in twelve-month increments with no time limitation, as long as he waited 180 days between filing claims. Clearly, that was not the intention of the parties; therefore, we find that the trial court erred in granting summary judgment in favor of Mr. McDonald.

Furthermore, based on the above analysis, there is no reasonable interpretation under the facts of this matter under which coverage may be afforded to Mr. McDonald for successive periods of disability under the terms of the policy. Therefore, we grant Aflac’s writ to the extent that it seeks to dismiss Mr. McDonald’s claim for successive | inperiods of disability.

In addition, Mr. McDonald claimed that he was entitled to statutory penalties and attorney fees pursuant to LSA-R.S. 22:1821(A), because Aflac had allegedly acted arbitrarily and capriciously in refusing to pay his benefits. An award of penalties and attorney fees is punitive in nature, and the statutory authority for such an award is strictly construed. The burden is on the claimant to prove arbitrariness and capriciousness or lack of probable cause. See Stewart v. Calcasieu Parish School Bd., 05-1339 (La.App. 3rd Cir.5/3/06), 933 So.2d 797, 801, writ denied, 06-1910 (La.11/3/06), 940 So.2d 666. The party claiming entitlement to penalties and attorney fees bears the burden of proving that the insurer had sufficient proof that payment on a claim was due as a basis for establishing that the insurer was arbitrary and capricious in denying the claim. Id. The determination of whether the insurer acted arbitrarily or capriciously must be based, at least in part, on the information known to the insurer at the time the claim was made. If the insurer has a good faith, reasonable explanation for its failure to timely pay on a claim, then the penalty provisions should not apply. Also, when a reasonable disagreement exists between an insurer and an insured, the insurer is not arbitrary and capricious or without probable cause to deny payment on the claim that is in dispute. Id.

In his petitions, Mr. McDonald has not alleged any facts supporting his claim that Aflac was arbitrary or capricious in not immediately paying his claims for disability benefits under the policy. It is undisputed that Aflac paid Mr. McDonald for 63 days of disability when the claim was first filed. It is also undisputed that Aflac failed to pay future benefits after there was a dispute about whether Mr. McDonald had been injured while on the job. This concern by Aflac appears reasonable, since Mr. McDonald filed a claim for workers’ compensation benefits with his employer for the same accident that was the subject of his short-term disability claim with Aflac, which only applied to offjthe-jobu injuries. In addition, there is no evidence that, with regard to the claim for successive periods of disability, Mr. McDonald ever filed any claim with Aflac prior to filing his amending and supplemental petition with the court.

Mr. McDonald does not contest either of these statements. Instead, Mr. McDonald argues in his appellate brief that the issue is not properly before this court, because the trial court has not yet ruled on the issue. However, in his memorandum submitted in opposition to the writ application, which has been referred to this panel for consideration along with the appeal, Mr. McDonald contends that the writ application is not properly before the court because it raises issues that are already before the court on appeal. The trial court has ruled on the issue in denying Aflac’s motion for summary judgment, and the issue is properly before this court, as the writ application was referred to this panel for consideration. As Mr. McDonald has not provided any evidence that Aflac acted arbitrarily or capriciously in its failure to pay short-term disability benefits, and the evidence actually appears to demonstrate just the opposite, we additionally grant Aflac’s writ to the extent that it dismisses Mr. McDonald’s claims for statutory penalties and attorney fees.

CONCLUSION

For the above and foregoing reasons, we reverse the judgment of the trial court, which had granted a summary judgment in favor of Benny A. McDonald. We further grant the writ filed by American Family Life Assurance Company of Columbus and dismiss the claims by Mr. McDonald. All costs of this appeal and the writ application are assessed to Benny A. McDonald.

JUDGMENT REVERSED; WRIT GRANTED.

      . Aflac sent Mr. McDonald a check for $850 for 15 days of short-term disability benefits on July 23, 2008, and another check for $2,270 for 48 more days of short-term disability benefits on September 2, 2008. Mr. McDonald accepted these benefit payments and deposited the checks.

      . Mr. McDonald filed a claim for workers’ compensation benefits for the injuries caused by the accident, and he was paid those benefits. In contrast to workers' compensation benefits, which are paid for injuries occurring while the individual is in the course and scope of his employment, the Aflac policy at issue only pays for short-term disability caused by sickness or off-the-job injury.

      . Aflac also filed a request for a stay order, which was granted by the trial court, thus staying all proceedings in the trial court.

      . McDonald v. American Family Life Assurance Company of Columbus, 10-1287 (La.App.1st Cir.9/27/10) (unpublished writ action).

      .Mr. McDonald has asserted in his petitions, as well as in his affidavit attached to the motion for summary judgment, that he has been totally disabled, without interruption, since the date of the accident. Aflac does not dispute these assertions for purposes of the motions for summary judgment.

      . The phrase "separate periods of disability” is not defined in the policy herein. However, The American Heritage Dictionary of the English Language (4th ed., 2001), defines "separate” as "existing as an independent entity; distinct; not shared; individual.”

      . Both Mr. McDonald and Aflac rely on this case as support for their respective positions before this court.

      . Mr. McDonald has already received payment for the twelve-month disability period he sued for in his original petition.

      . Prior to 2008 La. Acts, No. 415, § 1, effective January 1, 2009, this statute was numbered LSA-R.S. 22:657.

      . Moreover, as we have determined that Af-lac is not liable to Mr. McDonald for coverage for successive periods of disability, Aflac could not have been arbitrary or capricious in its denial of coverage.


source: Caselaw Access Project

author: GREMILLION, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Harrison THIBEAUX.
    No. 11-40.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 3, 2011.

      J. Phillip Haney, District Attorney, New Iberia, LA, for Appellee, State of Louisiana.
    Edward K. Bauman, Attorney at Law, Lake Charles, LA, for Appellant, Harrison Thibeaux.
    Court composed of OSWALD A. DECUIR, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   ON REHEARING

GREMILLION, Judge.

|1In State v. Thibeaux, 11-40 (La.App. 3 Cir. 5/11/11), 63 So.3d 1193, this court found the Defendant waived the right to appeal his five-year sentence by entering into a plea agreement with a sentencing cap. Rehearing is granted for the purpose of considering the correctness of this court’s finding.

The Defendant appealed his sentence, alleging the sentence was constitutionally excessive and imposed without sufficient consideration of La.Code Crim.P. art. 894.1. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Defendant entered a plea of guilty to domestic abuse battery, third offense, on July 13, 2010. At the time the Defendant entered his plea, the State informed the trial court that the Defendant struck his wife during an argument occurring on or about December 23, 2009. As a result, she suffered a bloody lip and had red marks on the face. On September 8, 2010, the Defendant was sentenced to serve five years at hard labor, with the first year to be served without benefit of probation, parole, or suspension of sentence.

EXCESSIVE SENTENCE

The Defendant appealed his sentence alleging it was constitutionally excessive, and the trial court failed to consider several mitigating factors, including his age; marital status; dependents; family stability; employment; and mental, emotional, and physical health.

The Defendant pled guilty to domestic abuse battery, third offense. The penalty for said offense is imprisonment with or without hard labor for not less than one year nor more than five years. The first year of the sentence is to be imposed without benefit of probation, parole, or suspension of sentence. La.R.S. 14:35.3(E). The Defendant was sentenced to serve five years at hard labor, with the first year to be served without benefit of probation, parole, or suspension of | ^sentence. The sentence was ordered to run consecutively to a ten year sentence imposed for theft over $500.

This court discussed the standard of review applicable to claims of excessiveness in State v. Bailey, 07-130, p. 3 (La.App. 3 Cir. 10/3/07), 968 So.2d 247, 250, as follows:

A sentence which falls within the statutory limits may be excessive under certain circumstances. To constitute an excessive sentence, this Court must find that the penalty is so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no reasonable contribution to acceptable penal goals and[,j therefore, is nothing more than the needless imposition of pain and suffering. The trial judge has broad discretion, and a reviewing court may not set sentences aside absent a manifest abuse of discretion.
State v. Guzman, 99-1753, 99-1528, p. 15 (La.5/16/00), 769 So.2d 1158, 1167 (citations omitted).
In State v. Smith, 02-719, p. 4 (La. App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061 (citations omitted), this court discussed the factors it would consider in order to determine whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals:
In deciding whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals, an appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.”

At the sentencing hearing, the trial court reviewed a certified criminal history. The trial court indicated the Defendant was forty years old, a mature adult, and responsible and knowledgeable “for what he does.” The trial court further Instated the Defendant had fourteen convictions from 1988 to 2009, and discussed the prior convictions as follows:

His first conviction is in 1993, aggravated assault, a crime of violence. He was sentenced to some time in jail and suspended sentence.
1996, aggravated assault with a knife, crime of violence. He was sentenced to five months in jail and probation.
Number 3, misrepresentation during booking and disturbing the peace by intoxication. Number 4.
Number 5, theft over $500 in Lafayette. He was sentenced to five years hard labor, suspended, three years probation. He was revoked on that probation in 1999.
Number 6, aggravated battery, domestic. He pled guilty to second degree battery. He was sentenced to four years at hard labor. He served that sentence.
Number 7, simple burglary, 1998. He was convicted-sentenced in 2000, convicted [sic] to serve eight years at hard labor.... He was paroled, and his parole ended in 2008. So he completed that matter successfully.
Number 8, aggravated assault, another crime of violence. He served three months.
Number 9, theft of an automobile. He served three months.
Number 10, theft, one year.
Number 11, domestic abuse battery, 90 days, suspended, one year probation.
Number 12, issuing worthless checks, 30 days in jail.
Number 13 is domestic abuse battery. He pled guilty. He served 45 days in jail and one year probation. That was in 2009.
Number 14, issuing worthless checks, 2009, sentenced to six months in jail, suspended, two years probation.
... Number 15 is the current matter.
The trial court further stated:
So he has 14 priors, and I’ve given the 14 priors and I said what they are. And I’ve considered those in his sentence.
|4He’s already had many opportunities to correct his behavior since he has 14 prior convictions. He served time three times already, and obviously serving time does not discourage him from future criminal activity. He doesn’t seem to learn from being incarcerated.
He has crimes of violence. He has four in his prior history, four crimes of violence. So he’s a danger to society, and I consider him a danger to society.
I find he’s in need of correctional treatment best provided by incarceration.
A lesser sentence would deprecate the seriousness of his offenses and prior offenses.

The trial court considered the Defendant’s age at the time of sentencing. However, the Defendant did not ask the trial court to consider his marital status; dependents; family stability; employment; mental, emotional, and physical health; or any other mitigating factors. Thus, the trial court did not err in failing to consider those factors.

After reviewing the sentencing transcript, it is apparent the trial court considered the factors set forth in La.Code Crim.P. art. 894.1 at the time the Defendant was sentenced. Additionally, the record, which includes the Defendant’s extensive criminal history, clearly supports the sentence imposed. Furthermore, as part of the Defendant’s guilty plea, the State agreed not to charge the Defendant as a habitual offender. Accordingly, there is no merit to the Defendant’s assertion that his five-year sentence is excessive.

DECREE

Application for rehearing is granted. After a thorough review of the record, we find Defendant’s sentence is not excessive. Therefore, Defendant’s sentence is affirmed in all respects.


author: STEWART, J.

text:
    STATE of Louisiana, Appellee v. Anthony Derrick JOHNSON, Appellant.
    No. 46,405-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 10, 2011.

      Louisiana Appellate Project, by Carey J. Ellis, III, for Appellant.

      J. Schuyler Marvin, District Attorney, John M. Lawrence, Robert R. Smith, Assistant District Attorneys, for Appellee.
    Before STEWART, MOORE and LOLLEY, JJ. STEWART, J.
   STEWART, J.

11The defendant, Anthony D. Johnson, pled guilty to one count of driving while intoxicated, fourth offense, and was sentenced to 25 years at hard labor. The defendant now appeals, raising one excessive sentence claim. We affirm.

FACTS

Early in the chilly, morning hours of December 12, 2009, the defendant operated his motor vehicle on Highway 3 at 65 miles per hour in a 45 mile per hour zone, passed a tractor-trailer rig in a no-passing zone, and was pulled over by a Plain Dealing police office. Upon contact with the defendant, the officer detected an odor of alcohol and slurred speech. He then asked the defendant to exit his truck.

Johnson could not walk without holding himself onto the side of his truck. The officer noted his extremely impaired state and asked him whether he had consumed alcoholic beverages prior to driving, upon which the defendant readily admitted, “You got me. I’m drunk.”

The defendant failed the following field sobriety tests: the horizontal gaze nystag-mus test, the walk and turn test, and the one-legged stand test. He was Miran-dized, arrested, and transported to the Bossier Parish Jail where he refused the Intoxilyzer 5000 breath test. An empty container of suspected beer was seized and sent to the North Louisiana Criminalistics Laboratory for testing; it tested to have contained “3.8 percent by volume percentage ethyl alcohol.”

On February 3, 2010, the defendant was charged by a bill of information with the crime of driving while intoxicated fourth offense, a ^violation of La. R.S. 14:98(E), passing in a no-passing zone, speeding, and driving under suspension. On February 9, 2010, he waived formal arraignment and pled not guilty. The bill of information was amended on March 26, 2010, and he again waived formal arraignment and pled not guilty.

On May 18, 2010, while represented by counsel, the defendant withdrew his not guilty plea and entered a plea of guilty as charged to driving while intoxicated fourth offense. In exchange, the state agreed not to file a habitual offender bill. The trial court advised the defendant of his constitutional rights and determined that he knowingly and intelligently waived those rights.

During the recitation of the factual basis for the guilty plea, the state related that the defendant had previously been convicted of DWI on three separate occasions within the 10 years preceding the instant offense. After the defendant indicated that the facts recited by the state were correct, the trial court accepted Johnson’s guilty plea, and the state indicated that other pending charges would be nolle prossed. The trial court ordered a presen-tence investigation (“PSI”) report.

The defendant appeared on September 21, 2010, for sentencing. In imposing the sentence, the trial court reviewed the PSI along with the facts of the crime as well as the defendant’s personal history, age (51), and physical illnesses (esophagus and liver damage, high blood pressure).

|sThe PSI revealed the defendant’s extensive criminal history which, in addition to the three DWI convictions that served as predicates to the instant conviction, included another conviction for DWI, fourth offense in 1999. Starting in 1976, he had also been convicted in various jurisdictions around the country of the following: second degree larceny; attempt to commit assault on a police officer; larceny of a motor vehicle; auto theft; possession of a firearm by a convicted felon; burglary and felony property damage.

Emphasizing the danger the defendant posed to society as evidenced by his recidivist DWI history and opining that any lesser sentence would deprecate the seriousness of the offense, the court sentenced the defendant to 25 years at hard labor to run consecutive with any other sentence. The trial court concluded his admonishment by stating, “The problem for you Mr. Johnson, is that you chose the wrong parish to get number eight in.”

On November 12, 2010, the defendant filed a pro se “Motion for Order For Substance Abuse Rehabilitation Program.” The trial court denied the pro se motion as well as a motion for reconsideration filed by counsel. The defendant now appeals his sentence as excessive.

DISCUSSION

The defendant contends that the 25-year sentence at hard labor is constitutionally excessive. He notes that he complied with field sobriety tests and admitted being drunk. He argues that considering his age (51) and poor health, the 25-year sentence is essentially a life sentence.

The state counters that the trial court took notice of the statutory criteria set forth in La. C. Cr. P. art. 894.1 and articulated a factual basis for |4the sentence. Specifically, they assert that the sentence was based on the circumstances of the offense.

In 2009, the year of the offense, La. R.S. 14:98(E)(l)(a) provided in pertinent part:

Except as otherwise provided in Sub-paragraph (4)(b) of this Subsection, on a conviction of a fourth or subsequent offense, notwithstanding any other provision of law to the contrary and regardless of whether the fourth offense occurred before or after an earlier conviction, the offender shall be imprisoned with or without hard labor for not less than ten years nor more than thirty years and shall be fined five thousand dollars. Seventy-five days of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence. The court, in its discretion, may suspend all or any part of the remainder of the sentence of imprisonment. If any portion of the sentence is suspended, the offender shall be placed on supervised probation with the Department of Public Safety and Corrections, division of probation and parole, for a period of time not to exceed five years, which probation shall commence on the day after the offender’s release from custody.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged: first, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259, writ denied, 2008-2341 (La.5/15/09), 8 So.3d 581.

The trial court judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La|1983);5 State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/18/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351.

The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La. App.2d Cir.8/13/08), 989 So.2d 267.

Second, a sentence violates La. Const. Art. 1 § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La. 1992); State v. Robinson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

|6A trial court has broad discretion to sentence within the statutory limits. Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Germany, 43,239 (La.App.2d Cir.4/30/08), 981 So.2d 792; State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. Absent a showing of manifest abuse of that discretion, an appellate court may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App.2d Cir.5/12/04), 873 So.2d 939; State v. Lingefelt, 38,038 (La.App.2d Cir.1/28/04), 865 So.2d 280, writ denied, 2004-0597 (La.9/24/04), 882 So.2d 1165.

In considering the facts of the case and the recidivism of the defendant, the 25-year sentence is not unconstitutionally excessive. Although there is no requirement that specific matters be given any particular weight at sentencing, the trial court did consider the mitigating and aggravating circumstances of Art. 894.1. The trial court fully explained its reasons for the sentence, in particular the potential danger to society posed by a lesser sentence for this defendant with a proven record of recidivism. It is notable that the defendant was on parole from a prior DWI conviction when he was arrested for the present offense. The additional charges he incurred, including driving under a suspended license, speeding, and improper passing, were nolle grossed as part of the plea agreement. |7The state also agreed not to seek a habitual offender adjudication. Accordingly, the defendant received a significant benefit for his guilty plea. Moreover, as pointed out by the state, there is no indication that the defendant has ever sought out a treatment program despite considerable substance abuse-related troubles over the years.

In 2009, the maximum sentence pursuant to La. R.S. 14:98(E)(1) was 30 years’ imprisonment. Here, the defendant is a sixth felony offender with a criminal history beginning in 1976, and this is his 5th DWI conviction. Based on the number and severity of the crimes committed, the sentence imposed does not shock the sense of justice, is not grossly out of proportion to the seriousness of the offense, and does not needlessly inflict pain and suffering. We find that the trial court did not abuse its considerable discretion in sentencing the defendant to 25 years’ imprisonment, rather than imposing a lesser or suspended sentence.

Our error patent review indicates that at sentencing, the trial court failed to specify that 75 days of the sentence of imprisonment shall be imposed without benefit of parole, probation or suspension of sentence pursuant to La. R.S. 14:98(E)(1)(a). When the district court fails to order service of sentence without benefits but a determinate time period to be so served is statutorily mandated, the sentence is to automatically be served without benefits for the required time period. La. R.S. 15:301.1(A); State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790; State v. Coleman, 42,128 (La.App.2d Cir.6/20/07), 961 So.2d 579. Accordingly, by operation of | slaw, the defendant’s sentence under La. R.S. 14:98(E)(l)(a) is to be served without benefits for 75 days.

CONCLUSION

For the reasons stated, we affirm the defendant’s conviction and sentence.

AFFIRMED.


author: PEATROSS, J.

text:
    STATE of Louisiana, Appellee v. Ronreeco HALLEY, Appellant.
    Nos. 46,296-KA, 46,297-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 10, 2011.

      Louisiana Appellate Project by Douglas Lee Harville, Paula Corley Marx, for Appellant.
    James D. “Buddy” Caldwell, Attorney General, Clifford R. Strider, III, Assistant Attorney General, for Appellee.
    Before CARAWAY, PEATROSS & LOLLEY, JJ.
   PEATROSS, J.

|1Defendant, Ronreeco Halley, was charged by grand jury indictment with first degree murder in violation of La. R.S. 14:30. He was subsequently charged, by bill of information, with armed robbery in violation of La. R.S. 14:64. Both charges were related to an incident that occurred in East Carroll Parish on November 26, 2007. The charge of first degree murder was later amended to second degree murder, a violation of La. R.S. 14:30.1.

Defendant pled guilty to armed robbery and manslaughter in exchange for two undetermined sentences, each capped at 27 years, to be served concurrently. Defendant was sentenced to serve two concurrent 27-year sentences, without the benefit of parole, probation or suspension of sentence. A timely motion to reconsider sentence was denied and Defendant now appeals, challenging the trial judge’s refusal to allow him to present witnesses at the sentencing hearing and further arguing that his sentence is unconstitutionally excessive. For the reasons stated herein, the sentences of Defendant are affirmed.

FACTS

On November 29, 2007, Lake Providence police officers found 83-year-old Leon Newman dead in his apartment. Mr. Newman had been shot five times and was found sitting in a chair in his living room. Police investigators observed a trail of blood leading from the bedroom to the living room. The house was ransacked and the outside phone line was disconnected. After examining the blood trail, investigators concluded that Mr. Newman walked to the living room after being shot in his bed. The Rblood on the phone receiver suggested that he attempted to place a call before he died. The last number recorded on his caller ID was received at 8:24 p.m., indicating that the murder occurred sometime thereafter.

The investigation revealed that Mr. Newman, aka “Uncle Tom,” sold small quantities of crack cocaine. Mr. Newman was known to keep “large amounts of money on his person” and to carry a handgun. Interviews by police investigators further revealed that a local gang was known for committing robberies in the Lake Providence area and that Defendant was a member of this gang. Police questioned several alleged members of the gang and discovered that Defendant, who was 16 years old at the time of the murder, had been involved in the robbery and murder of Mr. Newman. On February 7, 2008, Defendant turned himself in to the police, but declined to make a statement. As previously stated, Defendant was initially charged with first degree murder, which was ultimately reduced to second degree murder, and armed robbery.

Defendant initially pled not guilty by reason of insanity. Defendant claimed that he had suffered an episode of amnesia and did not recall the events of the night Mr. Newman was killed. Doctors Richard Williams and George Seiden discredited Defendant’s argument and found Defendant competent to stand trial and aware of the difference between right and wrong. Defendant also failed his drug screen and his bond was revoked.

Defendant ultimately pled guilty to armed robbery and an amended charge of manslaughter and the parties agreed to a cap on Defendant’s sentencing exposure of two concurrent 27-year terms. The trial judge ^informed Defendant that the term for armed robbery would be served without the benefit of probation, parole or suspension of sentence. The trial judge ordered a presentence investigation (“PSI”).

Defendant filed a “Motion for a Sentencing Hearing” and subpoenaed three witnesses to testify on his behalf. In consideration of the motion, the trial judge asked Defendant’s counsel to summarize the witnesses’ testimony. The judge indicated a preference to limit the proceedings to the PSI report and asked whether the witnesses were prepared to refute information contained therein.

Defense counsel indicated that the witnesses were not interviewed during the PSI and they were likely to testify that Defendant was “a good student, an athlete, a promising young person,” and exhibited a “quiet, unassuming behavior.”

The State stipulated to the witnesses’ testimony and the judge agreed to consider the alleged facts. Consequently, the judge declined Defendant’s request to have a separate sentencing hearing and the witnesses did not testify.

Following the sentencing hearing, the trial judge stated that he reviewed the PSI report and weighed the aggravating factors against the mitigating circumstances. The judge found that the crime “manifested deliberate cruelty to the victim,” and involved multiple dangerous weapons. The victim was shot multiple times, and Defendant had shown “no remorse” for his participation in this heinous crime. In addition, the judge concluded that Defendant’s claim of amnesia was not supported by the evidence.

|4The judge further noted that Defendant was 16 years old when the crime occurred and he was a “good student.” Nevertheless, because “an elderly man in his sleep was awakened by three young men” who shot him with “at least two guns,” the judge imposed the maximum sentence under the agreed-upon cap of two concurrent 27-year sentences. The sentence for armed robbery was ordered to be served without the benefit of probation, parole or suspension of sentence. This appeal ensued.

DISCUSSION

Assignment of Error No. One (verbatim): The Trial Court erred in refusing to allow Ronreeco Halley to present evidence at the sentencing hearing.

Defendant argues that the trial judge erred when he refused to allow Defendant to present witnesses at the sentencing hearing. He asserts that the witnesses’ collective testimony was not covered by the PSI and they could have testified “as to mitigating circumstances which the Trial Court had to consider pursuant to La. C. Cr. Pr. Art. 894.1 [sic ].”

In opposition, the State notes that “there is no allegation [... ] the information contained in the pre-sentence report [was] false or invalid.” Furthermore, although the judge did not permit Defendant’s witnesses to testify, the State stipulated to the substance of their testimony. The State submits that the hearing satisfied due process. We agree.

When a sentence is based on a PSI, a defendant has a right to rebut any erroneous or inconsistent information provided therein, but “due process does not require a full-scale evidentiary hearing.” State v. Armstrong, 557 So.2d 1160 (La.App. 2d Cir.1990), writ denied, |5564 So.2d 320 (La. 1990); State v. Parish, 429 So.2d 442 (La. 1983); State v. Bosworth, 360 So.2d 173 (La.1978).

In the case sub judice, Defendant requested a sentencing hearing and moved to present character evidence through witnesses who were not interviewed by the author of the PSI report. The witnesses, therefore, were not prepared to rebut the report, but were character witnesses who would testify that Defendant was “a good student, an athlete, a promising young person,” and exhibited a “quiet, unassuming behavior.” The judge was not required to hear their testimony since it did not rebut the substance of the PSI investigation; however, the State stipulated to its substance and the trial judge agreed to consider the testimony.

In light of the stipulation of the State and the trial judge’s consideration of the evidence, we conclude that due process was satisfied. Moreover, Defendant’s sentences were within the agreed-upon cap. La. C. Cr. P. art. 881.2(A)(2) prohibits a defendant from “seek[ing] review of a sentence imposed in conformity with a plea agreement.” There was no need for the trial judge to give reasons for the sentence as normally required by La. C. Cr. P. art. 894.1. State v. Scott, 44,509 (La.App.2d Cir.8/19/09), 17 So.3d 1058; State v. Fizer, 43,271 (La.App.2d Cir.6/4/08), 986 So.2d 243. This assignment is without merit.

Assignment of Error No. Two (verbatim): The Trial Court erred in imposing a sentence herein that is unconstitutionally excessive.

Defendant next argues that the 27-year sentences are unnecessarily harsh and that the trial judge should have used his discretion to impose a less severe sentence. We disagree.

|fiLa. C. Cr. P. art. 881.2(A)(2) provides: The defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.

As previously mentioned, where a specific sentence or a sentencing cap has been agreed upon as a consequence of a plea bargain, a sentence imposed within the agreed range cannot be appealed as excessive, and there is no need for the trial judge to give reasons for the sentence as normally required by La. C. Cr. P. art. 894.1. State v. Young, 96-0195 (La.10/15/96), 680 So.2d 1171; State v. Foster, 42,212 (La.App.2d Cir.8/15/07), 962 So.2d 1214.

Since Defendant’s 27-year concurrent sentences are within the agreed-upon cap, we find this assignment of error to be without merit.

CONCLUSION

For the foregoing reasons, the sentences of Defendant, Ronreeeo Halley, are affirmed.

AFFIRMED.


author: GASKINS, J.

text:
    STATE of Louisiana, Appellee v. Joe Ellis MARSHALL, Appellant.
    No. 46,457-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 10, 2011.

      Carey J. Ellis, III, Louisiana Appellate Project, for Appellant.
    Charles R. Scott, District Attorney, Jason Brown, J. Dhu Thompson, Brian H. Barber, Assistant District Attorneys, for Appellee.
    Before STEWART, GASKINS and DREW, JJ.
   GASKINS, J.

hThe defendant, Joe Ellis Marshall, entered a Crosby plea of guilty to possession of crack cocaine with intent to distribute, in violation of La. R.S. 40:967(A)(1), reserving his right to appeal the denial of his motion to suppress. He was sentenced to the maximum term of imprisonment, 30 years at hard labor, with the first two years to be served without benefit of parole, probation or suspension of sentence. The trial court also imposed a fine of $50,000, plus court costs, or, in default of payment thereof, 60 days in jail. We affirm the defendant’s conviction and sentence.

FACTS

On June 4, 2009, the Shreveport Police Department was conducting a city-wide “trooping operation.” The purpose of this operation was to check high-crime areas where open-air narcotics sales were prevalent. Police officers encountered a group of men including the defendant near an apartment complex in the Cedar Grove area where multiple shootings, stabbings and drug arrests had occurred. Upon seeing Agent Keith Knox and another officer approach, the men began to move away from them in a suspicious manner. After the defendant made a furtive gesture toward his waistband, Agent Knox handcuffed him. While searching the defendant for weapons, the officer felt a pill bottle in the defendant’s pants pocket. Agent Knox removed the transparent bottle, which contained baggies of crack cocaine.

The defendant was arrested and charged with one count of possession of crack cocaine with intent to distribute, a violation of La. R.S. |240:967(A)(1). He filed a motion to suppress, in which he alleged that the search of his person conducted by the police was unconstitutional.

The hearing on the motion to suppress was set immediately before trial. Following a hearing at which Officer Knox testified, the trial judge denied the motion to suppress. Instead of proceeding to trial, the defendant then chose to enter a Crosby plea which reserved his right to appeal the denial of his motion to suppress. No agreement was reached as to sentence but the trial court ordered a presentence investigative (PSI) report. The state declined to agree that it would not file a habitual offender bill against the defendant.

On September 27, 2010, the defendant was sentenced to the maximum sentence of 30 years at hard labor, the first two years of which were to be served without benefit of parole, probation or suspension of sentence. A fine of $50,000, plus court costs, was also imposed; in lieu of payment, the defendant was ordered to serve 60 days. The court directed that this sentence be served concurrently with any other sentence he might be ordered to serve. The defendant’s motion to reconsider sentence was denied.

The defendant appealed, raising two assignments of error.

MOTION TO SUPPRESS

In his first assignment of error, the defendant argues that the trial court erred in denying his motion to suppress. He contends that the search of his person was unjustified as the officer did not have a reasonable belief |sthat the defendant was armed and dangerous. The defendant also argues that the item recovered was merely “a common, everyday prescription bottle” which was not immediately recognizable as contraband or a weapon.

In response, the state asserts that the search was properly conducted as part of a protective search for officer safety. The state further contends that'the bottle containing the cocaine was located when the officer felt the bottle (plain feel doctrine) and recognized that it could contain a weapon or contraband. Once he removed the bottle, he was able to see that it contained contraband without opening it (plain view doctrine). The state argues that it proved the officer had a reasonable suspicion based on the totality of the circumstances to justify the search.

Law

The right of every person to be secure in his person, houses, papers, and effects against unreasonable searches and seizures is guaranteed by the Fourth Amendment to the United States Constitution and Article I, § 5 of the 1974 Louisiana Constitution. A warrantless search is unreasonable unless the search can be justified by one of the narrowly drawn exceptions to the warrant requirement. State v. Thompson, 2002-0333 (La.4/9/03), 842 So.2d 330.

Under the Fourth Amendment, a police officer may briefly detain an individual for investigative purposes if the officer has a reasonable and articulable suspicion that the individual has committed or is about to commit a crime. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Boyer, 2007-0476 (La.10/16/07), 967 So.2d 458. In | 4determining whether the police possessed the requisite minimal level of objective justification for an investigatory stop based on reasonable suspicion of criminal activity, reviewing courts must look at the totality of the circumstances of each case, a process which allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person. In reviewing the totality of circumstances, the reputation of an area is an articulable fact upon which a police officer may legitimately rely and is therefore relevant in the determination of reasonable suspicion. State v. Temple, 2002-1895 (La.9/9/03), 854 So.2d 856. Presence in a high crime area, coupled with nervousness or flight or other suspicious actions upon approach of officers, is sufficient to justify an investigatory stop. State v. Willis, 31,561 (La.App.2d Cir.1/20/99), 728 So.2d 493.

The Louisiana legislature codified the standard for investigatory stops and pat-downs for officer safety as set forth in the Terry case in La. C. Cr. P. art. 215.1. In pertinent part, La. C. Cr. P. art. 215.1 provides:

A. A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.
B. When a law enforcement officer has stopped a person for questioning pursuant to this Article and reasonably suspects that he is in danger, he may frisk the outer clothing of such person for a dangerous weapon. If the law enforcement officer reasonably suspects the person possesses a dangerous weapon, he may search the person.

Several recent Louisiana Supreme Court cases have allowed cuffing (without probable cause to make an arrest) during a frisk situation, for |5officer safety. See State v. Adams, 2001-3231 (La.1/14/03), 836 So.2d 9; State v. Porche, 2006-0312 (La.11/29/06), 943 So.2d 335; and State v. Palmer, 2009-0044 (La.7/1/09), 14 So.3d 304.

Evidence discovered during a lawful investigatory frisk may be seized under the “plain feel” exception to the warrant requirement, as explained in Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993); State v. Johnson, 32,384 (La.App.2d Cir.9/22/99), 748 So.2d 31. According to Minnesota v. Dickerson, supra, the “plain view” doctrine — which permits police to seize an object without a warrant if they are lawfully in a position to view it, if its incriminating character is immediately apparent, and if they have a lawful right of access to it — has an obvious application by analogy to cases in which an officer discovers contraband through the sense of touch during an otherwise lawful search. Thus, if an officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons. Just as the “plain view” doctrine requires that an object’s incriminating character be immediately obvious when seen, the “plain feel” doctrine requires the tactile discovery of an object whose contour or mass makes its identity immediately apparent. State v. Johnson, supra.

La. C. Cr. P. art. 703(D) governs the burden of proof when a defendant files a motion to suppress evidence obtained without a warrant:

D. On the trial of a motion to suppress filed under the provisions of this Article, the burden of proof is on the 1 defendant to prove the ground of his motion, except that the state shall have the burden of proving the admissibility of a purported confession or statement by the defendant or of any evidence seized without a warrant.

A trial court’s decision to deny a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. When reviewing a motion to suppress, it is important to determine who has the burden of proof and the proper standard of review. State v. Whitehead, 42,677 (La.App.2d Cir.4/2/08), 980 So.2d 248, writ denied, 2008-1096 (La.1/9/09), 998 So.2d 713. When the constitutionality of a warrantless search or seizure is placed at issue by a motion to suppress the evidence, the state bears the burden of proving that the search and seizure were justified pursuant to one of the exceptions to the warrant requirement. State v. Johnson, supra.

Great weight is placed upon the trial court’s ruling on a motion to suppress in regard to the finding of facts because it had the opportunity to observe the witnesses and weigh the credibility of their testimony. State v. Crews, 28,153 (La.App.2d Cir.5/8/96), 674 So.2d 1082. This court reviews a district court’s ruling on a motion to suppress under the manifest error standard for factual determinations as well as credibility and weight determinations while applying a de novo review to findings of law. State v. Hemphill, 41,526 (La.App.2d Cir.11/17/06), 942 So.2d 1263, writ denied, 2006-2976 (La.3/9/07), 949 So.2d 441.

Testimony

At the suppression hearing, Agent Knox was the only witness to testify. He informed the court that he had been a police officer for 13 years; |7six of those years had been in the narcotics division of the Office of Special Investigations (OSI). He had attended many classes and training schools pertaining to narcotics investigations. The OSI department in which he worked was responsible for hundreds of arrests each year. Personally, he had been involved in hundreds of investigations and had made hundreds of arrests.

Agent Knox testified that he and another officer drove up to the entrance of an apartment complex in Cedar Grove in a police vehicle which, while unmarked, had a spotlight and push bumper. According to Agent Knox, this type of vehicle was recognizable to persons in the narcotics trade as a police vehicle. When the two officers exited their vehicle, they were dressed in the police department’s tactical uniforms, i.e., black BDUs with black t-shirts that said “Shreveport Police” and load-bearing vests with “Police” on the front and back.

Upon seeing the officers, several men seated outside the apartment building immediately rose and began to walk away in a hurried manner while looking over their shoulders. They went into an entryway and gathered in the hallway of the common area of the apartment complex. According to Agent Knox, there were six or seven men.

One of these men was the defendant, who immediately reached to his waistband and pocket area. Agent Knox testified that the defendant looked like he was trying to conceal something. Under the circumstances, the defendant’s movement caused Agent Knox to fear that the defendant had a Rweapon and that he and the other officer were in danger. The other officer was still outside with other individuals. As the only officer in the immediate area, Agent Knox went directly to the defendant and secured his hands, then handcuffed him. He patted down the defendant to determine if he was, in fact, armed. While he did not find any weapon, Agent Knox felt a prescription pill bottle in the defendant’s left pants pocket. Agent Knox testified that, as an experienced narcotics officer, he knew that drug dealers commonly use pill bottles to conceal not just narcotics, but also potential weapons like razor blades. After retrieving the transparent bottle from the defendant’s pocket, Agent Knox observed that it held multiple baggies containing what appeared to be crack cocaine.

Agent Knox testified that he advised the defendant of his Miranda rights. After the officers escorted the defendant through the crowd and to their vehicle, the defendant stated that one of the men in the hallway handed the bottle to him and that he stuffed it in his pocket. Subsequent examination by the crime lab determined that the 44 baggies in the bottle contained cocaine.

Discussion

The testimony at the suppression hearing established that the defendant acted suspiciously immediately upon seeing the uniformed officers. He and his companions got up and began to scurry away from the officers while looking back at them. The officers were outnumbered in an area noted for violence and crime. After Agent Knox became separated from his partner, he observed the defendant making a hand gesture near his 19waistband or pocket. Concerned that the defendant might be armed and that his own safety was compromised, the officer handcuffed the defendant and patted him down. These actions were permissible. See Terry, supra, and its progeny, as well as La. C. Cr. P. art. 215.1. See also Adams, supra; Porche, supra; and Palmer, supra.

Agent Knox felt what he recognized as a pill bottle in the defendant’s pocket. Wary because his years of experience as a police officer had taught him that such bottles often contained razor blades which could be used as weapons, as well as illegal contraband, he removed the bottle from the defendant’s pocket. This action was also permissible pursuant to the “plain feel” doctrine. See Minnesota v. Dickerson, supra. Agent Knox testified that the bottle was transparent and that he could see in it. Thus, he did not have to open it or otherwise manipulate it to ascertain that it contained contraband, i.e., crack cocaine. Pursuant to the “plain view” doctrine, this was likewise proper.

Finding that the police officer’s actions were within the permissible bounds of the law, we hold that the trial court acted correctly in concluding that the state carried its burden of proof and denying the defendant’s motion to suppress.

This assignment of error is meritless.

EXCESSIVE SENTENCE

In his second assignment of error, the defendant argues that the trial court imposed an excessive sentence.

|10The test imposed by the reviewing court in determining the exces-siveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. McDaniel, 42,926 (La.App.2d Cir.1/9/08), 974 So.2d 146. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728. There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 2000-1467 (La.2/2/01), 783 So.2d 385; State v. McDaniel, supra. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Robinson, 45,372 (La.App.2d Cir.6/23/10) 42 So.3d 1036.

Second, a sentence violates La. Const, art. I, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a ^purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. McDaniel, supra. A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. McDaniel, supra.

As a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. McKinney, 43,061 (La.App.2d Cir.2/13/08) 976 So.2d 802. The trial court has wide discretion in the imposition of sentences within the statutory limits and such sentences should not be set aside as excessive in the absence of a manifest abuse of that discretion. State v. Williams, 2003-3514 (La.12/13/04), 893 So.2d 7.

According to La. R.S. 40:967(B)(4)(b), the sentencing exposure for possession of cocaine with intent to distribute is a term of imprisonment at hard labor for not less than two years nor more than 30 years, with the first two years being without benefit of parole, probation, or suspension of sentence. Additionally, a fine of not more than $50,000 may be imposed.

Prior to imposing sentence, the trial court stated that it had considered the sentencing factors, including the defendant’s extensive criminal record. The trial court had the benefit of a PSI report which detailed not only the defendant’s criminal history, but also his social and work history. Review of the record and the PSI report reveals that between 1971 and 2009, the defendant had numerous misdemeanor convictions and 10 felony | i2convictions. As a result, the defendant was eligible for a habitual offender bill of information and prior to sentencing, the state announced that it was prepared to file one. However, fortunately for the defendant, the state elected to not file the bill after the trial court imposed the instant sentence.

Given the defendant’s phenomenally extensive criminal record and his complete failure at any sort of rehabilitation during his lengthy criminal career, we do not find the imposition of the maximum sentence for the instant offense to be excessive for this defendant. Clearly the defendant— who was 57 years old when he pled guilty in July 2010 — is a career criminal who refuses to pursue a livelihood that does not involve breaking the law on a regular basis. The imposition of the maximum sentence upon this offender was fully supported by the record.

This assignment of error lacks merit.

CONCLUSION

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . State v. Crosby, 338 So.2d 584 (La.1976).

      . Prior' to sentence, the defendant tried unsuccessfully to withdraw his guilty plea.

      . Battle dress uniforms.