author: McClendon, j. McDONALD, J.

text:
    Francis RICHARD v. SUPREME SUGAR CO., INC. (Napoleonville Plant).
    No. 2010 CA 1835.
    Court of Appeal of Louisiana, First Circuit.
    June 2, 2011.

      John F. Dillon, Folsom, LA, for Plaintiff/Appellant Flavia Richard.
    Paul E. Harrison, C. deShea Richardson, Mandeville, LA, for Defendant/Appel-lee American Sugar Refining, Inc.
    Before WHIPPLE, GAIDRY, MCDONALD, McCLENDON, and HUGHES, JJ.
   McClendon, j.

12Flavia Richard, the widow of Francis Richard, appeals a judgment of the office of workers’ compensation (OWC), which granted an employer’s motion for summary judgment and dismissed Mrs. Richard’s workers’ compensation claims. Mrs. Richard also appeals a judgment denying her motion for partial summary judgment. For the following reasons, we reverse the OWC’s grant of the employer’s motion for summary judgment, and we dismiss the appeal to the extent it seeks review of the denial of Mrs. Richard’s motion for partial summary judgment.

FACTS AND PROCEDURAL HISTORY

Francis Richard was employed by Supreme Sugar Company, Inc. (Supreme Sugar) in Labadieville, Louisiana from 1946 until he retired in 1993. Mr. Richard died on December 12, 2008. On May 1, 2009, Flavia Richard, as the surviving spouse of Mr. Richard, filed the instant claim seeking workers’ compensation benefits against Supreme Sugar, alleging that Mr. Richard contracted an occupational disease, lung cancer, as a result of being exposed to asbestos while employed at Supreme Sugar.

On June 29, 2009, American Sugar Refining, Inc., formerly Tate & Lyle North American Sugars, Inc., formerly Supreme Sugar Company, Inc., (the Employer), filed an answer denying all claims asserted by Mrs. Richard (the Claimant). On January 29, 2010, the Employer filed a motion for summary judgment seeking to dismiss the Claimant’s workers’ compensation claims, alleging that Mr. Richard’s social security and retirement benefits did not constitute “earnings” such as to qualify his wife for death benefits as provided under LSA-R.S. 23:1021 and 23:1232. Following a hearing on March 19, 2010, the OWC took the Employer’s motion for summary judgment under advisement.

|sOn March 12, 2010, the Claimant filed her own motion for summary judgment, asserting that it was undisputed that Mr. Richard’s death resulted from an occupational disease. Following a hearing on June 1, 2010, the OWC took the matter under advisement.

On June 29, 2010, the OWC issued two judgments — one addressing the Claimant’s motion for summary judgment and the other addressing the Employer’s motion for summary judgment. The OWC denied the Claimant’s motion, finding that genuine issues of material fact remained concerning whether exposure to asbestos caused an occupational disease related to Mr. Richard’s death. However, the OWC granted the Employer’s motion and dismissed Claimant’s petition with prejudice, finding that the Claimant was not entitled or eligible to receive death benefits “because retirement benefits and social security benefits do not constitute wages or earnings under the Workers’ Compensation Act.” The Claimant has appealed, seeking review of both OWC judgments.

DISCUSSION

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Duncan v. U.S.A.A. Ins. Co., 06-363, p. 3 (La.11/29/06), 950 So.2d 544, 546; see LSA-C.C.P. art. 966. Summary judgments are reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Wright v. Louisiana Power & Light, 06-1181 (La.3/9/07), 951 So.2d 1058, 1070.

Employer’s Motion for Summary Judgment

Louisiana Revised Statutes 23:1231, entitled “Death of employee; payment to dependents; surviving parents,” provides:

|,,A. For injury causing death within two years after the last treatment resulting from the accident, there shall be paid to the legal dependent of the employee, actually and wholly dependent upon his earnings for support at the time of the accident and death, a weekly sum as provided in this Subpart.

Accordingly, it must first be determined whether Mrs. Richard was a legal dependent entitled to receive death benefits under LSA-R.S. 23:1231.

With regard to dependency, LSA-R.S. 23:1251 provides, in pertinent part:

The following persons shall be conclusively presumed to be wholly and actually dependent upon the deceased employee:
(1) A surviving spouse upon a deceased spouse with whom he or she is living at the time of the accident or death.

The record reflects that the address listed for Mr. Richard on his death certifícate matches the address listed by Mrs. Richard on her disputed claim for compensation with the office of workers’ compensation. Additionally, the death certificate lists Mrs. Richard as Mr. Richard’s surviving spouse. We note that the employer has not introduced any evidence to the contrary. Therefore, on the record before us, it appears that Mrs. Richard qualifies as a legal dependent under LSA-R.S. 23:1231 for purposes of death benefits.

Death benefits under LSA-R.S. 23:1232 are calculated based on the employee’s “wages.” Louisiana Revised Statutes 23:1021(10) defines “wages” as “average weekly wage at the time of the accident” and provides an enumeration of formulas to make this calculation. Regardless of dependency of Mrs. Richard, the Employer contends that since Mr. Richard had retired, he was no longer earning “wages” upon which death benefits could be calculated.

In support, the Employer cites Arledge v. Dolese Concrete Company, 00-0363 (La. App. 1 Cir. 6/6/01), 807 So.2d 876, writ denied, 01-2357 (La.11/16/01), 802 So.2d 617, wherein this court held that a retired employee’s social security benefits and union pension did not constitute “wages” within the | ^language of the statute so as to qualify an employee’s widow for worker’s compensation death benefits upon an employee’s death allegedly due to work-related silicosis, twelve (12) years after he retired. In so holding, this court reasoned:

Clearly, it does not appear that the Legislature intended to provide workers’ compensation death benefits to the survivors of retired employees based upon the retiree’s social security and pension benefits, which are passive income, but rather, intended to provide workers’ compensation death benefits to the survivors of those currently employed based upon the employee’s wages, which are active income.

Arledge, 00-0363 at p. 5, 807 So.2d at 879-80. Accordingly, this court reversed the OWC’s decision awarding death benefits to the employee’s widow. The Employer asserts that Arledge, which was apparently relied upon by the OWC, is dispositive.

On the other hand, the Claimant contends that the Arledge rationale is no longer germane because the legislature has clarified the definition of “wages” when dealing with occupational diseases. The Claimant notes that shortly after this court rendered its decision in Arledge, subpara-graph (g) was added to LSA-R.S. 23:1021(12). See 2001 La. Acts No. 1014, § 1, eff. June 27, 2001. Specifically, LSA-R.S. 23:1021 now provides, in pertinent part:

(12) “Wages” means average weekly wage at the time of the accident. The average weekly wage shall be determined as follows:
* * * * * *
(g) Date of accident. In occupational disease claims the date of the accident for purposes of determining the employee’s average weekly wage shall be the date of the employee’s last employment with the employer from whom benefits are claimed or the date of his last injurious exposure to conditions in his employment, whichever date occurs later.

|fiThe Claimant concludes that the unqualified inclusion of the method of calculation for average weekly wages as of the time of last exposure or last employment with the last exposing employer manifests the legislature’s intent to provide coverage for “long latency” occupational diseases that manifest themselves long after cessation of exposure to the injurious substance and, in many cases, after active employment.

The addition of subsection (g) to LSA-R.S. 23:1021(12) provides that in cases involving occupational diseases “wages” are calculated based upon “the date of the employee’s last employment ... or the date of his last injurious exposure.” The statute does not require that benefits arising from occupational diseases be based upon current employment or upon wages being earned at the time the condition manifests. The amendment also makes no distinction between active and passive income and the worker’s compensation act does not provide any exclusion in the event the employee is receiving only social security and/or retirement benefits. Nor does it provide any type of death benefit offset when pension and/or retirement benefits are available or being received. We also note that the Third Circuit has disagreed with Arledge, stating that “limit[ing] death benefit recovery to only those cases in which an employee is actually killed in a work-related accident would be to ignore the clear language of La.R.S. 23:1031.1(A), which grants a dependent of an employee who dies from an occupational disease the same recovery rights ‘as if [the] employee received personal injury by accident arising out of and in the course of his employ-' ment.’ ” Johnson v. City of Lake Charles, 04-0455, p. 5 (La.App. 3 Cir. 9/29/04), 883 So.2d 521, 525. Additionally, while the Fourth Circuit recognized the difficulties in the application of the positions put forth in both Arledge and Johnson, the court, relying heavily on the statutory scheme of the workers’ compensation act, ultimately followed the rationale of Johnson. See Richards v. St. Bernard Parish Govt., 09-1133 (La.App. 4 Cir. 10/21/09), 25 So.3d 867. Accordingly, in light of LSA-R.S. 23:1021(12)(g), we conclude that a retired employee’s receipt |7of social security or retirement benefits does not preclude receipt of workers’ compensation death benefits in cases involving occupational disease.

We acknowledge that this result allows additional recovery to those widows and widowers whose spouses retired and were receiving pension benefits at the time of death, in contrast to those widows or widowers whose spouses were not receiving such benefits and were dependent upon wages only. Further, we recognize the argument that death benefits may have been intended to replace lost earnings rather than supplement retirement benefits and that the presumption of dependency may be moot where there are no wages being earned at the time of death. However, these policy issues are best addressed by the legislature.

The Employer also urges that Mr. Richard was never an “employee” of either American Sugar or Tate & Lyle and that any claim against these companies was properly dismissed by the OWC. We note that the Employer did not raise this issue in its motion for summary judgment. See LSA-C.C.P. art. 966(E) (“[A] summary judgment shall be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time.”) Accordingly, we cannot consider this issue on appeal at this time.

Claimant’s Motion for Partial Summary Judgment

The Claimant also contends that the OWC erred in failing to grant her motion for partial summary judgment because no genuine issue of material fact remains with regard to causation. She asserts that the only medical evidence produced reflects that Mr. Richard suffered from an occupationally-related lung cancer and that the occupational disease caused his death. She avers that no evidence to the contrary was produced by the Employer.

We note that an appeal does not lie from the court’s refusal to render any judgment on the pleading or summary judgment. LSA-C.C.P. art. 968. Since a 1 «trial court’s action in overruling a motion for summary judgment is merely an interlocutory judgment, it cannot be appealed, except under the appeal from the final judgment rendered in the case. See LSA-C.C.P. art. 968, comment (d); see also Ascension School Employees Credit Union v. Provost Salter Harper & Alford, L.L.C., 06-0992, p. 2 (La.App. 1 Cir. 3/23/07), 960 So.2d 939, 940. Having reversed the grant of the Employer’s motion for summary judgment, we dismiss the appeal to the extent it seeks review of the denial of the Claimant’s motion for partial summary judgment prior to the conclusion of the case.

CONCLUSION

For the foregoing reasons, we reverse the OWC’s judgment granting the Employer’s motion for summary judgment, and we dismiss the appeal to the extent it seek review of the OWC’s judgment denying the Claimant’s motion for partial summary judgment. This matter is remanded to the OWC for further proceedings consistent herewith. Costs of this appeal are assessed to American Sugar Refining, Inc.

JUDGMENT GRANTING EMPLOYER’S MOTION FOR SUMMARY JUDGMENT REVERSED; APPEAL SEEKING REVIEW OF DENIAL OF CLAIMANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT DISMISSED; MATTER REMANDED.

McDONALD, J. dissents and assigns reasons.

HUGHES, J. concurs.

McDONALD, J.

dissenting.

| ¶ With all due respect to my colleagues, I respectfully dissent. I believe this result creates strange consequences and I do not believe this was either contemplated or intended by the legislature. I do not believe “wages” or earnings includes retirement or social security benefits and I believe it was intended to be based on current employment. To hold otherwise creates a strange anomaly as noted by the majority. It “allows additional recovery to those widows and widowers whose spouses retired and were receiving pension benefits at the time of death, in contrast to those widows or widowers whose spouses were not receiving such benefits and were dependent upon wages only.” In such a situation, the widow or widower is collecting twice. The employee did not lose any day’s wages because of the disability. I also believe the majority is correct that a very strong argument can be made “that death benefits may have been intended to replace lost earnings rather than supplement retirement benefits and that the presumption of dependency may be moot where there are no wages being earned at the time of death.” Not only do I believe this argument may be made, I believe this is the crux of the issue before us. For these reasons, I believe the decision of the WCJ should be affirmed.

      . Mrs. Richard subsequently amended her claim to name American Sugar and Refining Company, Inc. and Tate and Lyle North American Sugar, Inc. as defendants. In response, the referenced defendants filed an answer denying all claims asserted therein.

      . On March 19, 2010, the Claimant filed a First and Second Supplement to her Motion for Summary Judgment to attach excerpts from her deposition, Melvin Richard’s deposition, and Dr. Glenn Gomes’s deposition.

      . There does not appear to be any issue as to the timeliness of the action nor has this been raised by the Employer.

      . This issue appears to be uncontested.

        .See McClure v. City of Pineville, 2006-279 (La.App. 3 Cir. 12/6/06), 944 So.2d 795, where the Third Circuit made a finding of dependency based on documentary evidence that the widow had the same address as the deceased employee.

      .In Arledge, one of the three judges concurred and one dissented. The dissent points out that nothing in LSA-R.S. 23:1231 requires that the employee be gainfully employed until the moment of death for the benefit to be due. "Rather, the statute establishes entitlement and references the calculation of the death benefit payment, which is based on the injured employee's wages at the time of the accident.” Arledge, 00-0363 at p. 1 (dissent), 807 So.2d at 880.

      . The Employer points out that this court denied rehearing and the Louisiana Supreme Court denied writs in Arledge after LSA-R.S. 23:102l(12)(g) became effective. However, it is not clear whether the effect of the amendment was raised by the parties and neither court formally addressed this issue in their respective denials.

      . Cf. LSA-R.S. 23:1225, which provides for various reductions when other benefits are payable.

      . We further note that Arledge did not address whether reasonable related medical services necessary to diagnose and treat the claimant’s injury and burial expenses were recoverable. See LSA-R.S. 23:1203 and 23:1210.


source: Caselaw Access Project

author: EZELL, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Preston KINCHEN aka Steven Hall aka Steven Webb.
    No. KA 11-9.
    Court of Appeal of Louisiana, Third Circuit.
    June 8, 2011.

      Michael Harson, District Attorney, Fifteenth Judicial District Court, James Nathan Prather, Jr., Lafayette, LA, for Plaintiff/Appellee, State of Louisiana.
    Mark Owen Foster, Louisiana Appellate Project, Natchitoches, LA, for Defendant/Appellant, Preston Kinchen.
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and PHYLLIS M. KEATY, Judges.
   EZELL, Judge.

liOn October 1, 2009, Defendant, Preston Kinchen, AKA Steven Hall, AKA- Steven Webb, was charged by bill of information with one count of armed robbery, a violation of La.R.S. 14:64, and one count of possession of a firearm by a convicted felon, a violation of La.R.S. 14:95.1. On August 16, 2010, Defendant pled guilty to possession of a firearm by a convicted felon.

According to the plea form executed by Defendant and referred to by the trial court, the State dismissed count one. Defendant reserved his right to appeal the denial of his motion to suppress, and the State reserved its right to pursue count one if the appeal was granted. He was sentenced to serve ten years at hard labor with credit for time served, and the sentence was to be served concurrently with any other sentence. The sentence was to be served without benefit of parole, probation, or suspension of sentence.

On August 23, 2010, Defendant filed a motion for appeal and designation of the record, which was granted on August 24, 2010. For the following reasons, Defendant’s conviction and sentence are affirmed.

FACTS

A hearing was conducted on July 22, 2010, on the motion to suppress filed by Defendant. The only witness called to testify was Trooper Leon Defelice of the Louisiana State Police.

Trooper Defelice testified that on July 16, 2009, he was working criminal patrol at mile post 108, on Interstate 10 (I — 10) in St. Martin Parish. He was observing eastbound traffic when he noticed a vehicle traveling unusually slow, which caused other traffic to move from the left lane to the right lane in order to pass, creating a hazardous situation.

| {¡The trooper performed a stop and made contact with a driver licensed as Preston Kinchen. He advised the driver, identified as the Defendant, he was being stopped for going too slow in the left-hand lane. The posted speed was seventy miles per hour, and he confirmed that the Defendant was traveling at fifty-seven miles per hour. The Defendant advised him that he and the passenger, Charles Smith, were coming back from looking for a job west of their location.

The Defendant was not specific about where they had been, stating only “around the Lake Charles area.” When the trooper pursued questioning, the Defendant advised that they were looking for oilfield work but never stopped and just rode down 1-10, turning around in Lake Charles and coming back eastbound. The trooper testified that the location of the stop was approximately forty-five minutes to an hour from Lake Charles, depending on speed.

The vehicle driven by Defendant was determined to be a rental vehicle. When Trooper Defelice questioned Defendant further, asking if they had stopped anywhere, he was told “no” and that they were just riding down the interstate looking for oilfield jobs. The Trooper stated that these answers aroused his suspicion.

Trooper Defelice testified that he next spoke with the passenger, Charlie Smith, who was still seated in the vehicle. When Trooper Defelice asked Smith where they were coming from, he stated, “wherever he said we’re coming from.” It appeared that he did not want to commit to an answer. Trooper Defelice said this was not a normal response. He said that Smith did not want to engage in any conversation.

Trooper Defelice testified that he was suspicious that something criminal might be going on, and he ran both the Defendant’s and passenger’s criminal histories, finding out both had histories of armed robberies. He prepared a consent for search form and called for backup. He told the Defendant that he was requesting permission |3to search the vehicle. The Defendant said that he did not know why the Trooper wanted to search the vehicle and then exercised his right to refuse to sign the consent form. Trooper Defelice then called for the K-9 unit which was only minutes away.

When the K-9 unit arrived, the dog sniffed the vehicle and the dog handler advised that the dog had alerted. As a result of the alert, Trooper Defelice searched the vehicle, first finding a female wig, which he found strange as no woman was in the vehicle. However, there was a woman named on the rental agreement. When he opened the center console, he found a Beretta 40 caliber gun sitting on top of two latex gloves with two rolls of change.

At this time he became concerned that, given their criminal histories, there might have been some type of armed robbery somewhere near their location. He radioed the troop and requested them to check on any reports of armed robberies in the area. He also had the gun run to determine if it was stolen. Since both occupants of the vehicle had felony convictions, both were arrested for possession of a firearm by a convicted felon. He also determined that the gun had been reported stolen from William Burch of Baton Rouge.

As they were transporting the Defendant and passenger, while only a mile down the highway, the troop advised him that there had been an armed robbery in Lafayette, only twenty minutes prior to his stop. He was given a description of the suspects that was similar to the two men in custody. The investigation was turned over to the Lafayette Police Department.

On cross-examination, Trooper Defelice was asked about the stop and said the vehicle he observed was “obstructing traffic basically.” He testified that it was within his discretion to issue a warning or a ticket and at the time of the stop, he intended to issue a warning. He stated that the non-specific answers by the Defendant, the nonjcooperation4 of the passenger, their criminal histories, and their presence in a vehicle rented by someone else and being driven from Baton Rouge to Lake Charles to look for a job, raised a red flag and made him suspicious.

Trooper Defelice testified that it was probably within five minutes of calling for the drug dog that it arrived at his location. During those five minutes, he had the Defendant stand in front of his unit. He was not free to go at that point, due to the Trooper Defelice’s suspicions.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find there are two errors.

The trial court failed to impose a mandatory fine for the Defendant’s conviction of possession of a firearm by a convicted felon. In addition to imprisonment, La.R.S. 14:95.1 requires the imposition of a fine of not less than one thousand dollars nor more than five thousand dollars. The trial court’s failure to impose a mandatory fine renders the Defendant’s sentence illegally lenient. We will not recognize an illegally lenient sentence claim unless it is raised as error. State v. Jacobs, 08-1068 (La.App. 3 Cir. 3/4/09), 6 So.3d 315, writ denied, 09-755 (La.12/18/09), 23 So.3d 931.

Next, the trial court failed to orally pronounce sentence. Louisiana Code of Criminal Procedure Article 871(A) provides: “A sentence is the penalty imposed by the court on a defendant upon a plea of guilty, upon a verdict of guilty, or upon a judgment of guilt. Sentence shall be pronounced orally in open court and recorded in the minutes of the court.”

| ^Louisiana Code of Criminal Procedure Article 879 provides: “If a defendant who has been convicted of an offense is sentenced to imprisonment, the court shall impose a determinate sentence.”

The minutes of sentencing reflect, in pertinent part:

THE COURT SENTENCED THE DEFENDANT IN ACCORDANCE WITH THE PLEA AGREEMENT CONTAINED ON THE PLEA FORM, WHICH WAS SIGNED BY THE DEFENDANT, A COPY OF THE SAME WAS RECEIVED BY THE DEFENDANT AND THE ORIGINAL WAS FILED INTO THE RECORD, THAT BEING: 10 YEAR HARD LABOR, CREDIT FOR TIME SERVED, CONCURRENT WITH ANY OTHER SENTENCE SERVING, WITHOUT THE BENEFIT OF PAROLE, PROBATION OR SUSPENSION [SIC] OF SENTENCE.

The trial judge, while speaking to several defendants at once, including Mr. Hin-chen, had the following pertinent exchange:

THE COURT:
Do each of you wish to receive your sentence today and waive whatever delays you might be entitled to?
MR. KIN CHEN:
Yes, sir.
THE COURT:
.... [H]aving said that your attorney negotiated for you and on your behalf a sentence you expect to received. That sentence is pronounced at the bottom of the plea form. Each of you have a copy of the plea form. Is that right?
MR. KIN CHEN:
Yes, sir.
Q. [THE COURT]:
| fiEach of you are well acquainted with the sentence you expect to receive because it’s at the bottom of your plea form.

On the guilty plea form, under the section of “PLEA RECOMMENDATION (Marked),” was set forth ten years hard labor, concurrent, without benefit of parole, probation, or suspension of sentence.

In State v. Jones, 517 So.2d 402, 406 (La.App. 5 Cir.1987), writ denied, 522 So.2d 560 (La.1988), the court explained: “The purpose of requiring the defendant’s presence at sentencing and of pronouncing the sentence in open court is to insure the defendant is apprised of the punishment imposed, See C.Cr.P. arts. 835, 871 and comments thereunder.”

In State v. Portalis, an unpublished appeal bearing docket 99-1807 (La.App. 3 Cir. 5/3/00), 775 So.2d 710, on errors patent review, this court recognized two errors, one of which was the trial court’s failure to orally pronounce sentence in accordance with La.Code Crim.P. art. 871. In open court, the trial court stated the defendant was sentenced “in accordance with the plea agreement.” This court held, in pertinent part:

Initially, we observe that the requirements of Article 871 and 556.1 are statutory requirements rather than constitutional requirements. There is no indication in the Boykin analysis to indicate that Defendant’s plea was not voluntary or that he was unaware of the terms of the plea agreement or the nature of the charges against him. Defendant acknowledged that he signed the plea agreement and that he understood that by pleading guilty he could not appeal his sentence. We find the trial court’s failure to pronounce Defendant’s sentence orally in open court and to inform him that this sentence could be with or without hard labor to be harmless error.

Id. at 2.

In this case, the guilty plea form set forth the sentence imposed. This guilty plea form was signed by the Defendant, the Defendant’s attorney, and the trial court judge. Additionally, at the guilty plea proceeding, the trial court advised the Defendant of the possible penalty and asked the Defendant if he understood. The |7Pefendant responded affirmatively. Furthermore, the Defendant acknowledged he had a copy of the plea form. Moreover, on appeal, the Defendant does not complain he was not appraised of the sentence that was imposed. Therefore, in this particular case, we find the error is harmless.

ASSIGNMENT OF ERROR

Defendant argues that the trial court erred in failing to find that the investigatory stop was an unlawful detention and the trial court erred in denying his motion to suppress. This court discussed the standard applicable for reviewing motions to suppress as follows:

The appellate court looks at the totality of the evidence presented at the hearing for the motion to suppress when reviewing a trial court’s denial of the motion. State v. Sherman, 03-1198 (La.App. 3 Cir. 3/2/05), 896 So.2d 1194. The appellate court should overturn the trial court’s conclusions only if they are not supported by the evidence or there is a clear abuse of discretion. State v. Purvis, 96-787 (La.App. 3 Cir. 12/11/96), 684 So.2d 567. “In other words, the appellate court will give the trial court’s determination great weight and will not set aside the trial court’s ruling unless clearly mandated by a preponderance of the evidence.” Sherman, 896 So.2d at 1202.

State v. Moreau, 05-544, pp. 3-4 (La.App. 3 Cir. 12/30/05), 918 So.2d 598, 601.

Louisiana Code of Criminal Procedure Article 215.1(A) allows an officer to “stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense.” Whether an officer has sufficient facts within his knowledge to justify an investigatory stop determines whether reasonable suspicion exists. State v. Palmer, 08-621 (La.App. 3 Cir. 12/10/08), 1 So.3d 689, reversed on other grounds, 09-44 (La.7/1/09), 14 So.3d 304.

Here, the officer reasonably and correctly suspected an offense had occurred when he observed Defendant’s vehicle driving in such a manner as to impede traffic, traveling in the inside lane of the highway. Louisiana Revised Statutes 32:73.1 states:

laA. For purposes of this Section, the term “multiple-lane highway” shall have the meaning provided in R.S. 32:1(42), but shall only include a multiple-lane highway outside the city limits with a posted speed limit of fifty-five miles per hour or more.
B. A vehicle which remains in the passing lane of a multiple-lane highway as defined in Subsection A of this Section traveling at the same speed as the vehicle in the right lane and impedes the flow of traffic shall be deemed a “rolling roadblock” which shall be prohibited. The provisions of this Subsection shall not apply to vehicles stopped at a traffic signal or traveling at a slower rate due to traffic congestion as long as the vehicle is not causing traffic congestion.
C. Violations of this Section shall be punishable as provided in R.S. 32:57.

Defendant states that the Trooper’s initial stated intention was to only issue a warning to him and that this should have only taken “a few minutes at most.” He argues that detention was not necessary for such a warning, and “he must have an objectively reasonable suspicion that some sort of illegal activity occurred or was about to occur” for the stop to be justified. He further argues that the Trooper only had a subjective belief to support a reasonable suspicion.

Trooper Defelice stated that his suspicion was based on the facts that:

1. the Defendant would not be specific about where they had been, stating only “around the Lake Charles area;”
2. the Defendant advised that they were looking for oilfield work, but never stopped, and just rode down I — 10, turning around in Lake Charles and coming back eastbound;
3. the vehicle driven by Defendant was determined to be a rental vehicle;
4. the passenger would not commit to stating where they had been, stating only, referring to Defendant, “wherever he said we were coming from;
5. the passenger refused to engage in conversation, which was highly unusual;
6. both the Defendant and passenger had a criminal history of armed robberies; and
|fl7. the drug dog, which arrived within minutes of being called for, alerted on the vehicle.

The Fourth Amendment to the U.S. Constitution guarantees Defendant’s right to be secure in his person and property against unreasonable searches. However, “an individual’s expectation of privacy in a vehicle and its contents may not survive if probable cause is given to believe that the vehicle is transporting contraband.” United States v. Ross, 456 U.S. 798, 823, 102 S.Ct. 2157, 2172, 72 L.Ed.2d 572 (1982). “The totality of the circumstances, ‘the whole picture,’ must be considered in determining whether reasonable cause exists.” State v. Belton, 441 So.2d 1195, 1198 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984) (citing United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)).

A form of seizure which does not require a warrant or probable cause is an investigatory stop made pursuant to La. Code of Crim.P. art. 215.1(A). Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The right to make an investigatory stop and question the individual detained must be based upon reasonable cause or reasonable suspicion to believe that the person has been, is, or is about to be engaged in criminal conduct. La.Code Crim.P. art. 215.1(A) and State v. Belton, 441 So.2d 1195 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). In determining whether or not reasonable cause exists to temporarily detain a person, the totality of the circumstances, “the whole picture,” must be considered. Belton, 441 So.2d 1195, and State v. Hall, 581 So.2d 337 (La.App. 3 Cir.1991).
A generalized suspicion or “hunch” that an individual is involved in criminal conduct is not sufficient to detain the individual or his automobile. A police officer must have a particularized suspicion based upon articulable facts. See State v. Thibodeaux, 531 So.2d 284 (La. App. 3 Cir.1987); State v. Thompson, 543 So.2d 1077 (La.App. 2 Cir.), writ denied, 551 So.2d 1335 (La.1989); and State v. Bunnell, 517 So.2d 439 (La.App. 1 Cir.1987). If the police officer has a specific suspicion of criminal activity, he may further detain the individual while he diligently pursues a means of investigation likely to quickly confirm or dispel the particular suspicion. U.S. v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985).

State v. Livings, 95-251, p. 4 (La.App. 3 Cir. 11/15/95), 664 So.2d 729, 732-33, writ denied, 95-2906 (La.2/28/96), 668 So.2d 367.

| inDefendant states in brief, citing supporting jurisprudence, that: “Extreme nervousness or agitation, coupled with conflicting stories at [sic] to travel destinations, are very common factors giving rise to reasonable suspicion to support an officer’s decision to pursue further investigation.” He does not point to any case saying that all of these factors are mandated.

We find that the story given by Defendant that he and Smith were looking for work in the oilfield, but they simply rode down the interstate without stopping anywhere, turning around in Lake Charles to return, is by itself suspicious. This, coupled with his passenger’s refusal to commit to where they had been, while basically saying, wherever the Defendant said we have been, compounded that suspicious behavior.

Defendant concedes that the actions of the drug dog do not constitute a search, but argues that the State failed to show that the Trooper had probable cause to go into the car. The Louisiana Supreme Court stated in State v. Lopez, 00-562, p. 4 (La.10/30/00), 772 So.2d 90, 93:

The arrival of a drug-detection dog on the scene within minutes of the stop afforded the officer the opportunity to “pursue[ ] a means of investigation that was likely to confirm or dispel [his] suspicions quickly, during which time it was necessary to detain the defendant.” United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605 (1985). The dog’s sniffing around the exterior of the vehicle did not itself constitute a search, United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 2644-45, 77 L.Ed.2d 110 (1983), and its subsequent alert, consistent with respondent’s extreme nervousness, gave the officers probable cause to search for contraband. United States v. Seals, 987 F.2d 1102, 1106-07 (5th Cir.1993).

Defendant argues that the testimony of Trooper Defelice was only that the canine officer told him that the dog alerted, but the State did not produce that officer to testify as to the specifics of the alert. While he cites to cases giving examples of more detailed testimony as to the specifics of how a dog alerts, he cites no | n.jurisprudence requiring more than the testimony as to the alert. This argument begs one to ignore that the Defendant, if he thought this proof was less than accurate, had the right to subpoena and examine the canine officer to refute the prior testimony.

Giving the trial court’s ruling “great weight,” a reversal is not mandated by a preponderance of the evidence. See Sherman, 896 So.2d at 1202.

CONCLUSION

Defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: BROWN, Chief Judge.

text:
    Rogers COLEMAN, et al., Plaintiffs-Appellants v. BURGUNDY OAKS, L.L.C., et al., Defendants-Appellees.
    No. 46,314-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 8, 2011.

      Pettiette, Armand, Dunkleman, Wood-ley, Byrd & Cromwell, Shreveport, LA, by Joseph Samuel Woodley, for Appellants.
    Charles Gordon Tutt, Shreveport, LA, for Appellees, Burgundy Oaks, Randy Jordan Construction Co., & Longleaf Investments.
    Richard Luna Lopez, Jr., In Proper Person.
    Stephanie Leigh Brown Lopez, In Proper Person.
    Before BROWN, WILLIAMS, and DREW, JJ.
   BROWN, Chief Judge.

| plaintiffs, hereinafter referred to as “the Coleman Group,” are purchasers of lots in the Burgundy Oaks subdivision in Shreveport, Louisiana. Defendants are Longleaf Investments L.L.C. (“Longleaf’), Burgundy Oaks, L.L.C. (“Burgundy Oaks”), and Randy Jordan Construction Co., L.L.C. The property was initially owned by Longleaf, whose stockholders and officers were James A. Young, his wife, and one other person. James Young and his wife were also members and managers of Burgundy Oaks. In three transactions, in 2001, 2002, and 2005, Longleaf transferred the property at issue to Burgundy Oaks. James Young executed the deeds on behalf of both entities. In the deeds “(Longleaf) does hereby reserve unto itself all rights, title and interest in and to any oil, gas and/or other minerals located over or under the (property).” Significantly, the person who drafted and notarized all three deeds was Carter Rogers.

Plaintiffs are homeowners who purchased their lots in the subdivision from Burgundy Oaks and builders who had acquired the lots from Burgundy Oaks; Randy Jordan Construction is one such builder. These sales occurred at various times from 2002 to 2007. The habendum et ten-endum clause in their deeds declares that the vendor does “GRANT, BARGAIN, SELL, CONVEY AND DELIVER, with full guarantee of title, and with complete transfer and subrogation of all rights and actions of warranty against all former proprietors of the property herein conveyed ...” According to ^plaintiffs, at no time did the sellers, the closing agents or attorney disclose to the purchasers that they were getting less than full title to the property, i.e., that the mineral rights were not being transferred.

The Coleman Group filed suit against defendants, asserting that Longleafs alleged reservation of minerals in its deeds to Burgundy Oaks was not disclosed to any of plaintiffs prior to their purchases, and that the failure of the defendants to disclose this mineral reservation and to advise plaintiffs that the sale of the lots was without mineral rights constituted fraud, a violation of the Louisiana Unfair Trade Practices Act, breach of warranty, negligent misrepresentation, and a breach of duty owed to plaintiffs by defendants. In the alternative, plaintiffs sought recovery under the theory of unjust enrichment.

On April 28, 2008, Camterra Resources Partners, Ltd. secured an oil, gas and mineral lease from Longleaf covering the property at issue for $100 and other valuable considerations and a one-fourth royalty. Plaintiffs also sued Camterra Resources Partners, Ltd. to rescind its lease and for royalties and other payments made to Longleaf. Camterra’s motion for summary judgment, based on their reliance of the public record, was granted and all claims against it were dismissed without prejudice. They are not a part of this appeal.

Defendants, Longleaf, Burgundy Oaks, and Randy Jordan Construction, filed an answer and, following discovery, a motion for summary judgment urging their entitlement to judgment as a matter of law in that there was no rule or principle of law which supported plaintiffs’ ¡¡¡claims, and there were no issues of genuine fact. A hearing was held on June 14, 2010, and the trial court granted defendants’ motion for summary judgment and dismissed plaintiffs’ claims with prejudice. It is from this judgment that plaintiffs have appealed. We reverse and remand.

Discussion

Louisiana Code of Civil Procedure Article 966 provides that plaintiff or defendant in the principal or any incidental action may move for summary judgment for all or part of the relief sought and that summary judgment shall be rendered forthwith “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 mover is entitled to judgment as a matter of law.” Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.02/29/00), 755 So.2d 226. Our review of a grant or denial of summary judgment is de novo. Id.; Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La.1991).

Filed in support of and in opposition to defendants’ motion for summary judgment are affidavits, answers to interrogatories and relevant documents. In their affidavits, plaintiffs state that the closing agent and attorney were retained by the seller. The three transfers of the property from Longleaf to Burgundy Oaks contained mineral reservations and all were drafted and notarized by Carter Rogers. The Articles of Organization of Burgundy Oaks L.L.C. was notarized by Carter Rogers. Defendants’ answers to interrogatories identify Rogers as a witness and title examiner. | .¡Rogers acted as the closing attorney who examined title in most of the deeds to plaintiffs. We note, however, that Rogers is not an attorney.

Carter Rogers filed an affidavit in support of defendants’ motion for summary judgment in which he states that he is “co-owner/manager (of) Mosely-Rogers Title Co.” and that he has 30 years’ experience in checking residential titles and expertise in title documents relating to residential properties. In his affidavit, Rogers states, “Prior to 2008 and the publicity surrounding the Haynesville Shale, mineral rights were not typically mentioned in residential deeds in Caddo Parish and purchasers of homes seldom inquired about mineral rights in connection with or at the time of closing; ... It is not customary for residential deeds to include a reference to minerals or prior mineral reservations.”

A similar affidavit was filed by an attorney, C. Gary Mitchell, who had 86 years’ experience in checking residential titles.

The deed from Burgundy Oaks to plaintiff Roger Colemen states that “(The sale is) SUBJECT To the easements, set back requirements and other real rights running with the land as shown on the above referenced plat of survey; and FURTHER SUBJECT TO the Declaration of Covenants, Conditions and Restrictions, as amended, filed in the record of Caddo Parish, Louisiana.” (Emphasis added).

The deed to plaintiff Eddie Wilson has no “subject to” language at all. The remaining deeds, which are primarily notarized by Carter Rogers, |fistate that “[T]he property described herein is conveyed subject to all recorded servitudes, restrictions, rights-of-way and easements.”

Applicability of Sinyle Business Enterprise Doctrine

According to plaintiffs, the trial court erred in failing to find that there was a genuine issue of material fact as to whether Longleaf and Burgundy Oaks should be considered a single business enterprise such that the conveyances from Burgundy Oaks to the individual plaintiffs transferred all of the property rights held by both Longleaf and Burgundy Oaks, which would include the mineral rights purportedly reserved by Longleaf in its transfers to Burgundy Oaks.

The single business enterprise doctrine is a theory for imposing liability where two or more business entities act as one. Brown v. ANA Insurance Group, 07-2116 (La.10/14/08), 994 So.2d 1265. Generally, under this doctrine, when corporations integrate their resources in operations to achieve a common business purpose, each business may be held liable for wrongful acts done in pursuit of that purpose. Brown, supra; Brown v. Automotive Casualty Insurance Co., 98-2169 (La. App. 1st Cir.10/07/94), 644 So.2d 723, writ denied, 94-2748 (La.01/06/95), 648 So.2d 932.

Whether or not two or more entities comprise a single business enterprise is a factual determination to be decided by the trier of fact which is subject to the manifest error standard of review. Town of Haynesville, Inc. v. Entergy Corp., 42,019 (La.App.2d Cir.05/02/07), 956 So.2d 192, writ denied, 07-1172 (La.09/21/07), 964 So.2d 334. However, the court | ^cannot make credibility determinations on a motion for summary judgment and must assume that all the affiants are credible. Independent Fire Ins. Co., supra. The court must draw those inferences from the undisputed facts which are most favorable to the party opposing the motion. Id.

In Tealwood Properties, L.L.C. v. Succession of Graves, 45,975 (La.App.2d Cir.04/27/11), 64 So.3d 397, a case involving a mineral reservation in a corporation owned by a seller of the land, this court spoke about veil-piercing as follows:

The veil-piercing jurisprudence in large part concerns attempts by creditors of the corporations to defeat the limited liability protection afforded the shareholders. This is not the present situation. Nevertheless, as observed by Professor Morris in the Louisiana Law Review, veil-piercing “is a flexible doctrine that can be used in any situation in which the separate personality of the corporation appears to be blocking a just result.” Glenn G. Morris, Piercing the Corporate Veil in Louisiana, 52 La. L.Rev. 271 (1991).

In that law review article, Professor Morris categorized a unique group of cases as “circumvention cases,” and wrote:

Cases in the “circumvention” category of veil-piercing jurisprudence are strikingly different from any of the cases discussed so far; they have nothing whatever to do with the collection of a debt owed by the corporation. Rather, in the circumvention type of case the court is being asked to disregard the separate existence of a corporation in order to prevent the shareholder of the corporation from getting around some restriction on his own freedom of action. The veil is pierced in these cases to stop the shareholder from doing indirectly through a corporation what he could not do directly as an individual, or viewed in a slightly different way, to impute to a corporation some legal disability or characteristic that, as a formal matter, is actually held by the shareholder rather than by the corporation itself. Thus, the circumvention cases do not involve issues of corporation law, as such. Rather, they raise questions about the proper interpretation of a particular statute or contract, i.e., whether the particular statute or contract in question ought to be ^interpreted to reach only those actions taken by the parties directly, or instead ought to be seen as reaching indirect actions as well.
Id. at 310-311.
In Tealwood, this court concluded that: On the face of the Deed, the Graves, in their personal capacities, warranted a sale of the Tract unencumbered by any existing mineral servitude. Yet, they now assert that they simultaneously retained full ownership of the right to explore for minerals by virtue of their corporation’s (Dale Oil Corporation) mineral servitude and that this allows circumvention of the obligations of the Deed. If the written Deed is determined after trial to accurately reflect the parties’ mutual intent for the sale, the Graves’ intent may be imputed to them corporation, and Dale may be treated as a party to the transaction. This is a cause of action recognized in our jurisprudence, which prevents the shareholders to cloak themselves behind the corporate entity to shield themselves from the responsibility of the obligations of their sale.

In brief, defendants argue this court in Haynesville stated that the court is required to look at the substance of the corporations rather than the form. They claim that plaintiffs offered no proof about the substance of Longleaf or Burgundy Oaks other than common ownership. A similar argument was made in Tealwood. They claimed that Tealwood must prove commingling of corporate and shareholder funds, failure to follow statutory formalities, undercapitalization, etc. We found that such requirements represented veil-piercing efforts to eliminate the limited liability of shareholders in a setting altogether different from the present dispute. The same is true in our case.

This is a summary judgment motion, not a trial. The trial court did not address this veil-piercing issue in its oral reasons for granting summary judgment. Plaintiffs alleged that Longleaf and Burgundy Oaks were controlled by the same person, operated out of the same office, shared ^common managers and directors, shared a common administration and had a centralized accounting system. Inferences most favorable to plaintiff drawn from the undisputed facts suggest that the conveyances between the two entities were made to disguise the withholding of the mineral rights from potential purchasers such as plaintiffs. Exhibits attached to defendants’ Answers to Interrogatories included Articles of Organization listing the ownership and management. The three transfers between Longleaf and Burgundy Oaks were drafted by Mosely-Rogers Title Co. who thereafter drafted the deeds from Burgundy Oaks to plaintiffs. The affidavits filed with the summary judgment motion from the two experts show that these types of transfers between these commonly owned entities with the mineral reservation was a common practice in subdivision development. The affidavits specifically stated that the mineral reservation would not be disclosed in the later transfers nor would the buyers be informed of the mineral reservation. It is also clear that the sellers furnished the agent/attorney for the buyers. The closing attorney, Mosely-Rogers Title Co., who was the attorney for the seller, did the title examination for the buyers but according to Carter Rogers’ affidavit he believed he had no obligation to disclose to the buyers the existence of a mineral reservation. Clearly a question of material fact exists as to applicability of the single business enterprise doctrine.

\^Plaintiffs’ Fraud, Unfair Trade Practices and Warranty Claims

Plaintiffs assert that defendants committed fraud/violated Louisiana’s unfair trade practices law/breached a warranty when they entered into negotiations with plaintiffs and failed to mention that the mineral rights to the lots purchased by plaintiffs were reserved by Longleaf in previous transactions between Longleaf and Burgundy Oaks involving the subject properties.

Defendants contend that, pursuant to the public records doctrine, plaintiffs are charged with knowledge of everything the public records show pertaining to the lots they purchased and because the deeds of transfer between Longleaf and Burgundy Oaks, which contain the mineral rights reservations, were duly and properly recorded prior to any purchases by plaintiffs, them claims have no merit. Plaintiffs had an agent/attorney who represented to them that he had checked the public records and found the title to be good. This agent/attorney knew of the mineral reservations, particularly because he drafted the deeds including the reservations, but did not disclose this to plaintiffs.

The seller warrants, inter alia, the buyer against encumbrances on the things which were not declared at the time of the sale. La. C.C. art. 2500. The jurisprudence is that a seller should not be allowed to obligate himself to deliver and to warrant title and peaceable possession to a buyer of a thing and then by his own act or claim to derogate from, or to assert rights to the hnthing contrary to, his obligations. Tealwood, supra; Dillon v. Morgan, 362 So.2d 1130 (La.App. 2d Cir.1978).

Conclusion

The trial court’s grant of summary judgment is reversed, and this case is remanded for further proceedings consistent with this opinion. All costs are assessed against defendants.

      . Plaintiffs are Rogers Coleman, Tiwana Coleman, Edward E. Williams, Daniel E. Perkins, Georgina J. Perkins, Willie L. George, August L. George, Craig J. Ferrier, Kayla Mclnnis Ferrier, Salilda Taylor, Morris R. Mclnnis, Larla Mclnnis, Donald B. Howard, Linda Howard, James Gibson, Tracey Gibson, Eddie B. Wilson, Clara H. Wilson, David F. Feudale and Michele L. Feudale.

      . See McGuire v. Mosley Rogers Title Company, L.L.C., 43,554 (La.App.2d Cir.09/17/08), 997 So.2d 23.

      . In his affidavit, Carter Rogers appeared to be an attorney.

      . Defendants in a brief paragraph argued prescription as to the Louisiana Unfair Trade Practices Act (La. 51:1401, et seq.). The trial court did not address this question, and the record is not sufficient for this court to address it.


author: MARION F. EDWARDS, Chief Judge.

text:
    STATE of Louisiana v. Sean SMITH.
    No. 10-KA-814.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 14, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appel-lee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Sean Smith, Cottonport, LA, In Proper Person/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   MARION F. EDWARDS, Chief Judge.

l?This is defendant/appellant Sean Smith’s (“Smith”), second appeal. In June 2008, he was found guilty of possession with the intent to distribute MDMA, a violation of La. R.S. 40:966(A), to which Smith pled not guilty at arraignment. He received a sentence of fifteen years in the Department of Corrections, with the first two years to be served “without benefits.”

On that same date, the State filed a multiple offender bill alleging Smith to be a second felony offender, and Smith denied the allegations therein. Following a multiple offender hearing, the trial court found Smith to be a second felony offender, vacated the original sentence, and imposed a sentence of thirty years in the Department of Corrections without benefit of probation or suspension of sentence. Smith filed a pro se motion for reconsideration of sentence, which the trial court denied.

Smith appealed, arguing: (1) the trial court erred by imposing an excessive sentence; (2) the trial court erred by failing to comply with La.C.Cr.P. art. 894.1; Rand (3) the trial court erred by denying the motion to reconsider sentence, or alternatively, if the motion to reconsider was deemed untimely, his counsel was ineffective for failing to preserve his right to object to the sentence. He also argued that the non-unanimous jury verdict was unconstitutional. Finding no merit to the assigned non-unanimous jury verdict error, this Court affirmed the conviction, but it pretermitted discussion of the remaining assigned sentencing errors after finding sentencing error patent.

In the error patent review, this Court found that Smith received an illegally lenient sentence because the trial judge failed to restrict at least five years of his sentence from benefit of parole, as required by the underlying offense. Because the statute required an exercise of the trial court’s sentencing discretion in limiting parole eligibility, this Court vacated the sentence and remanded for resen-fencing in accordance with the underlying statute.

This Court also stated, “Since this matter is being remanded for resentencing, we feel it prudent to instruct the trial judge in two respects; namely, advice regarding the prescriptive period for filing post-conviction relief and compliance with La. C.Cr.P. art. 894.1.” We commented that La.C.Cr.P. art. 894.1 set forth factors that the trial judge should consider in imposing a sentence of imprisonment, noting that the trial judge did not need to recite the entire checklist, but that the record must reflect that the trial judge adequately considered the criteria. As such, this Court instructed the trial judge to impose sentence in compliance with La.C.Cr.P. 894.1.

This Court also found that the trial judge gave Smith confusing advice regarding the commencement of the prescriptive period for filing post-conviction Rrelief and instructed the trial judge to provide a clear and unambiguous advisal regarding the commencement of the prescriptive period in compliance with La.C.Cr.P. art. 930.8(A).

The commitment indicates that, on September 21, 2009, on remand, the trial judge resentenced Smith as a second felony offender to imprisonment at hard labor for thirty years without benefit of parole, probation, or suspension of sentence. However, the transcript shows that the trial judge sentenced him to imprisonment at hard labor for thirty years without benefit of probation or suspension of sentence, with the first five years to be served without benefit of parole, probation, or suspension of sentence.

On February 9, 2010, Smith filed a “Motion for Decretal Language,” asking the trial judge to state for the record that he was to receive parole after serving five years of his sentence. The trial judge denied the motion, indicating that the commitment of September 21, 2009 reflected that his entire sentence was to be served without the benefit of parole, probation, or suspension of sentence.

On May 25, 2010, Smith filed an Application for Post-Conviction Relief contending that his counsel was ineffective for failing to: (1) object to the predicate offense used to find him to be a multiple offender; (2) brief the error of the denial of his motion to suppress the evidence, which was preserved for appellate review; and (3) file for an appeal of his resentencing hearing, noting that the appellate court never considered the merits of his sentencing claims. The trial judge denied claims one and two but granted Smith’s motion for appeal of the resentencing held on September 21, 2009.

The underlying facts of this case are found in the earlier opinion. In the instant appeal involving his resentencing, Smith contends that the record does not reflect that, on remand, the trial judge adequately considered any of the | .^criteria of La.C.Cr.P. art. 894.1 as ordered by this Court. He also contends that his thirty-year sentence is constitutionally excessive.

At the resentencing hearing on September 21, 2009, defense counsel stated that his understanding after reading this Court’s opinion was that the sentence had been vacated but that the multiple offender adjudication had not been vacated. He informed the trial judge that Smith was ready to be sentenced as a second felony offender after having been convicted by a jury of possession with intent to distribute ecstasy. Defense counsel stated that the sentencing range was from fifteen to sixty years, and he asked the trial judge to consider sentencing defendant to the minimum fifteen-year sentence.

The trial judge stated:

Alright, Mr. Smith; it is going to be the sentence of this Court — do this...— The Court has considered 894.1, the sentencing guidelines. I am not going to read them all over again.
The Courts [sic] said that I don’t need to do that this time, because I did that the last time, so. I considered all of those factors in this; and it is the Court’s sentence that I am going to sentence you to thirty (30) years in the Department of Correction; the first five (5) years of such are going to be without benefit of probation, parole, or suspension of sentence.

Smith asked if he would be eligible for parole after five years. After much discussion, the trial judge indicated that the thirty years were to be served without benefit of probation or suspension of sentence, and the first five years were to be served without benefit of parole, probation, or suspension of sentence. The court assured Smith that he would be eligible for parole after five years.

In the present sentencing, although the trial judge said that he had considered the factors in La.C.Cr.P. art. 894.1, he did not provide any Reasons for the sentence imposed. Additionally, the trial judge erroneously stated that this Court | ¡¡said he did not have to read the sentencing guidelines again because he had done so the last time.

As we cited in our previous opinion, the Louisiana Supreme Court has found that while the trial judge need not articulate every aggravating and mitigating circumstance outlined in La.C.Cr.P. art. 894.1, the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant. Here, the record reflects that the trial judge adequately considered the criteria of La. C.Cr.P. art. 894.1, even though he did not formally state for the record the considerations he took into account. The trial judge said that he considered the criteria of that article, but he did not believe it was necessary to read all of the factors listed in that article into the record. Further, this Court has held that 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.

The record supports the sentence imposed. Smith was twenty-two years old when he committed the underlying offense of possession with intent to distribute MDMA. The evidence introduced at the habitual offender hearing reflects that he was eighteen years old when he pled guilty to possession of cocaine on September 18, 2003, in Orleans Parish. He received a two-year suspended sentence along with fines and fees of $2000. However, his probation was terminated unsatisfactorily on August 24, 2006. It was only a year and a few months later when he committed the instant offense in November of 2007. Thus, despite receiving the benefit of a suspended sentence in the past for a drug offense, Smith |7still committed another drug offense. Further, his most recent offense is more serious, since it involved possession with intent to distribute, rather than the prior offense that involved only possession. This assignment of error is without merit.

Smith also argues that a thirty-year enhanced sentence is excessive for a twenty-three-year-old man who was convicted of the victimless, non-violent crime of possessing poor quality ecstasy tablets. He contends that, prior to his arrest, he was gainfully employed, his girlfriend was pregnant with his child, and he contributed to his mother’s and teenage brother’s support. Smith asserts that his prior criminal history consisted of a minor drug offense and a probated two-year successfully completed sentence. He also argues that the trial judge failed to consider the Legislature’s more lenient penalty provisions for violations of La. R.S. 40:966.

After the resentencing, Smith did not orally object to the sentence, nor did he file a written motion to reconsider the sentence imposed on September 21, 2009. Failure to file a motion to reconsider sentence, or to state specific grounds upon which the motion is based, limits a defendant to a bare review of the sentence for constitutional excessiveness.

Both the Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is constitutionally excessive if it is grossly out of proportion to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the | sharm done to society, it shocks the sense of justice. In reviewing a sentence for excessiveness, the appellate court must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock the court’s sense of justice. The trial judge is afforded wide discretion in determining sentences, and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed.

The penalty for possession of MDMA with the intent to distribute is imprisonment at hard labor for not less than five years nor more than thirty years, at least five of which shall be served without benefit of parole, probation, or suspension of sentence, and a fine of not more than $50,000. La. R.S. 40:966(B)(2). La. R.S. 15:529.1 provides that a second felony offender is to be punished by imprisonment for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction, if the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life. Therefore, Smith was exposed to a term of imprisonment for not less than fifteen and not more than sixty years.

The trial court is afforded wide discretion in determining sentences and a court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed. As we have found previously, the record supports the sentence imposed. The review of sentences under La. Const, art. I, § 20 does not provide an appellate court with a vehicle for substituting its judgment for that of a trial judge as to what punishment is most appropriate in a given case. Further, when an appellate court is reviewing a sentence, the relevant question is not 1¡¿whether another sentence might have been more appropriate, but whether the trial court abused its broad sentencing discretion. In the present case, we find no such abuse of discretion. This assignment of error is without merit.

Under the procedure set forth in State v. Benjamin, appointed appellant counsel has filed an Anders brief, asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests to withdraw as counsel of record.

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if she finds her case to be wholly frivolous after a conscientious examination of it. The Louisiana Supreme Court has stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The Jyles Court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” When conducting a review for compliance with An-ders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion |inand order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellant counsel.

Smith’s appellate counsel asserts that, after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. She contends that there is no ruling of the trial court to be challenged, noting that this is a second appeal on the resentencing. Appellate counsel states that this Court ordered the trial court to make note of its review of the factors in La.C.Cr.P. art. 894.1 and to advise Smith of the prescriptive period to file for post-conviction relief under La.C.Cr.P. art. 980.8. She did not discuss whether the trial court complied with this Court’s instructions. Counsel said that she considered whether to raise the issue of exces-siveness of the thirty-year sentence, but she was compelled to conclude that such a claim would be frivolous in light of the sentencing range of fifteen to sixty years.

In her motion to withdraw as attorney of record, counsel indicates that she notified Smith that she filed this motion and that he had the right to file a pro se brief in this appeal. Additionally, this Court sent Smith a letter by certified mail informing him that an Anders brief had been filed and that he had until December 8, 2010 to file a pro se supplemental brief. Smith filed a pro se brief on November 30, 2010.

Our independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal.

This Court previously conducted an errors patent review in the first appeal. Therefore, Smith is now only entitled to an errors patent review of his resentencing. The review reveals errors patent.

InThe habitual offender commitment reflects Smith’s entire thirty-year sentence was to be served without benefit of parole, probation, or suspension of sentence, whereas the transcript reflects that the thirty-year sentence was imposed without benefit of probation or suspension of sentence, and the first five years were to be served without benefit of parole, probation, or suspension of sentence. The transcript prevails when there is a discrepancy between the commitment and the transcript.

Therefore, we order the trial court to amend and correct the commitment to conform to the transcript, to reflect that the thirty-year sentence was imposed without benefit of probation or suspension of sentence, with the first five years to be served without benefit of parole, probation, or suspension of sentence. We further instruct the trial judge to direct the Clerk of Court to transmit the revised commitment to the Secretary of the Department of Corrections in the same manner as the original commitment was transmitted and instruct the Department of Corrections to provide Smith with a copy of the revised commitment.

Accordingly, Smith’s sentence is affirmed, and appellate counsel’s motion to withdraw as attorney of record is granted. The case is remanded to the trial court for further proceedings consistent with this opinion.

AFFIRMED; REMANDED WITH INSTRUCTIONS

      . State v. Smith, 09-100 (La.App. 5 Cir. 8/25/09), 20 So.3d 501, 502, writ denied, 09-2102 (La.4/5/10), 31 So.3d 357.

      . State v. Smith, 20 So.3d at 509.

      . State v. Smith, supra (citing State v. Smith, 433 So.2d 688, 698 (La.1983)).

      . State v. Declouet, 09-1046 (La.App. 5 Cir. 10/12/10), 52 So.3d 89; State v. Sanders, 98-609 (La.App. 5 Cir. 12/16/98), 728 So.2d 470, 472 (citing State v. Landos, 419 So.2d 475 (La.1982)).

      . La.C.Cr.P. art. 881.1(E); State v. Zaldivas, 02-690 (La.App. 5 Cir. 12/30/02), 836 So.2d 577; State v. Pitt, 09-1054 (La.App. 5 Cir. 4/27/10), 40 So.3d 219, writ denied, 10-1141 (La.12/10/10) 51 So.3d 725.

      . State v. Warmack, 07-311 (La.App. 5 Cir. 11/27/07), 973 So.2d 104.

      . State v. Warmack, supra.

      . Id.

      . State v. Williams, 07-1111 (La.12/7/07), 969 So.2d 1251.

      . State v. Walker, 00-3200 (La.10/12/01), 799 So.2d 461; State v. Lewis, 09-783 (La.App. 5 Cir. 5/28/10), 43 So.3d 973.

      . 573 So.2d 528, 530 (La.App. 4 Cir.1990).

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241, 242 (per curiam).

      . State v. Fowler, 10-45 (La.App. 5 Cir. 5/25/10), 40 So.3d 1136.

      . State v. Sampognaro, 09-671 (La.App. 5 Cir. 3/23/10), 39 So.3d 632, 636, writs denied, 10-0905 (La. 11/12/10), 51 So.3d 2.

      . State v. Lynch, 441 So.2d 732, 734 (La.1983); State v. Declouet, supra.

      . State v. Fowler, supra.


author: JUDE G. GRAVOIS, Judge.

text:
    STATE of Louisiana v. Vincent Patrick BALL.
    No. 10-KA-847.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 14, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desirée M. Valenti, Assistant District Attorneys, Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.
    Karla M. Baker, Attorney at Law, Me-tairie, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and JUDE G. GRAVOIS.
   JUDE G. GRAVOIS, Judge.

| ¡¡Defendant, Vincent Patrick Ball, appeals his conviction for operating a vehicle while intoxicated, fourth or subsequent offense, in violation of LSA-R.S. 14:98(A), (E). On appeal, defendant argues that there was no probable cause to arrest him and force him to submit to a urine test without his consent; that the trial court erred by refusing to allow him the opportunity to have a full and complete motion to suppress hearing and in denying his motion to suppress; and finally that he received an excessive sentence. For the following reasons, we affirm defendant’s conviction and sentence.

FACTS AND PROCEDURAL HISTORY

On May 19, 2009, defendant, Vincent Patrick Ball, was charged in a bill of information filed by the Jefferson Parish District Attorney with one count of operating a vehicle while intoxicated, sixth offense, in violation of LSA-R.S. 14:98(A), (E). This charge stemmed from a motor vehicle accident involving |adefendant in Metairie, Louisiana, on April 23, 2009. Defendant pled not guilty to this charge at his arraignment on June 8, 2009. On November 12, 2009, defendant filed a motion to appoint a sanity commission. A sanity hearing was held on January 27, 2010 and the trial court found defendant competent to stand trial.

On the morning of April 12, 2010, the day defendant’s case was set for trial, defendant filed a motion to suppress evidence. After a hearing held on April 12, 2010, the trial court denied defendant’s motion to suppress. On April 13, 2010, defendant withdrew his not guilty plea and pled guilty to operating a vehicle while intoxicated, fourth or subsequent offense, in violation of LSA-R.S. 14:98(A), (E), reserving his right to seek review of the denial of his suppression motion under State v. Crosby, 338 So.2d 584 (La.1976). Defendant’s guilty plea was accepted by the trial court and he was sentenced to thirteen years imprisonment at hard labor with the Department of Corrections. This timely appeal followed.

FIRST ASSIGNMENT OF ERROR

Defendant argues that the trial court erred in denying his motion to suppress. He contends that the police officer did not have probable cause to arrest him. However, in his written motion, filed untimely on the morning of the trial, defendant did not argue lack of probable cause as grounds for suppression of the evidence. He only argued that the urine sample was taken without his consent.

The defense has the burden of asserting the basis for its motion to suppress in order to provide the State with adequate notice so that it may prepare evidence addressing the defendant’s claims. Therefore, the defendant is limited on appeal 14to the grounds articulated in his motion to suppress or at the hearing on that motion. A new basis, even a meritorious one, cannot be raised for the first time on appeal.

In the instant case, when defense counsel asked the trial court to hear his untimely motion to suppress, he specifically limited himself to the question of whether defendant was “forced to submit a urine sample” in jail. The State objected to the timeliness of the motion. Defense counsel stated that he only wanted to present defendant’s testimony in support of his motion. The trial court agreed to hear defendant’s testimony. When defendant tried to expand his motion mid-hearing to include his lack of probable cause assertions, the trial court refused to allow him to address the issue, finding that it was untimely and also waived. Defendant did not object. Accordingly, we will not consider defendant’s argument on appeal regarding lack of probable cause assertions. We further find that defendant failed to assign as error or brief the issue of his consent to the urine test in the jail as argued in the trial court. Accordingly, we find no error in the trial court’s ruling denying defendant’s motion to suppress.

SECOND ASSIGNMENT OF ERROR

Defendant next argues that the trial court erred by refusing to allow him the opportunity to have a full and complete hearing on his motion to suppress. Defendant argues that he was denied the right to confront and cross-examine his accusers in violation of his Fifth Amendment rights.

|BThis Court has held that the right to confrontation contained in the United States and Louisiana Constitutions is not implicated in a pre-trial matter. Moreover, the issue was not preserved for appellate review because defendant did not proffer the testimony of his accusers. Also, as noted above, defendant never asked for a full and complete hearing. Conversely, defendant declared to the trial court that he only wanted to offer the testimony of his client in support of his motion. Accordingly, we find that this assignment of error is without merit.

THIRD ASSIGNMENT OF ERROR

Defendant lastly contends that the trial court failed to adequately comply with the sentencing guidelines established in LSA-C.Cr.P. art. 894.1, and further that he received an excessive sentence. This assignment of error also has no merit.

As provided by LSA-C.Cr.P. art. 881.2 A(2), “[a] 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.” This Court has consistently recognized that a defendant is precluded from raising a claim of excessiveness on appeal when the imposed sentence is the product of a plea agreement. In this case, defendant agreed to the sentence as part of a plea bargain. Moreover, defendant neither objected to nor requested reconsideration of the sentence after it was imposed. Accordingly, we affirm defendant’s sentence.

\rJERRORS PATENT REVIEW

The record was reviewed for errors patent. Our review indicated no errors patent requiring corrective action.

CONCLUSION

For the reasons stated above, defendant’s conviction and sentence are affirmed.

AFFIRMED

      . On that date, defendant also pled guilty to a misdemeanor charge for failure to maintain control of his vehicle, in district court case number 09-2805, in which he was sentenced to 30 days in the Jefferson Parish Correctional Facility plus costs, to run concurrently with the sentence he received in the instant case.

      . LSA-C.Cr.P. art. 703(E); State v. Jackson, 04-1388, p. 5 (La.App. 5 Cir. 5/31/05), 904 So.2d 907, 911, writ denied, 05-1740 (La.2/10/06), 924 So.2d 162.

      . State v. Jackson, supra; State v. Smith, 94—120, p. 6 (La.App. 5 Cir. 5/31/94), 638 So.2d 452, 455.

      . In refusing to allow defendant to argue lack of probable cause assertions at his motion to suppress hearing, the trial court ruled: "We’re way past probable cause. You chose not to file on that. We’re way past that, that’s waived.”

      . State v. Ayo, 08-468, p. 17 (La.App. 5 Cir. 3/24/09), 7 So.3d 85, 97, writ denied, 09-1026 (La.3/5/10), 28 So.3d 1006, (citing State v. Harris, 08-2117, p. 1 (La.12/19/08), 998 So.2d 55, 56).

        . State v. Jones, 05-840, p. 14 (La.App. 5 Cir. 3/28/06), 927 So.2d 514, 528; State v. Washington, 05-211, p. 5 (La.App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173; State v. Guerra, 03-1071, p. 5 (La.App. 5 Cir. 12/30/03), 865 So.2d 154, 157; State v. Miller, 02-729, p. 7 (La.App. 5 Cir. 12/30/02), 836 So.2d 614, 618, writ denied, 03-0200 (La.10/10/03), 855 So.2d 326 and 03-0503 (La.10/10/03), 855 So.2d 329.

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