author: FREDERICKA HOMBERG WICKER, Judge.

text:
    Abdul S. MUSA v. LITTON-AVONDALE INDUSTRIES, INC., Avondale Industries, Inc., Avondale Shipyards, Inc. Avondale Enterprises, Inc., ABC Corporation(s), and ABC Insurance Company(s).
    No. 10-CA-627.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 29, 2011.
    Rehearing Denied May 16, 2011.

      David A. Dalia, Attorney at Law, New Orleans, LA, for PlaintiffAppellant.

      Brian C. Bossier, Tara Nunez Smith, Erin H. Boyd, Attorneys at Law, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
   FREDERICKA HOMBERG WICKER, Judge.

12This civil suit raises the question of whether the appellant is the borrowed employee of another. Here, the appellant brought an action for damages pursuant to the Longshore and Harbor Worker’s Compensation Act (LHWCA) for injuries sustained while in the course and scope of his employment with International Marine. After that suit was settled, the appellant brought the present suit against Northrop Grumman — the employer at whose site he was assigned to work as a quality control inspector when the injury occurred. Northrop Grumman filed a motion for summary judgment, arguing that because the appellant was its borrowed employee, it was immune from tort liability. The trial court granted the motion for summary judgment and dismissed the suit. For the following reasons, we affirm.

Facts and Procedural History

Plaintiff/Appellant, Mr. Abdul Musa, answered an advertisement by International Marine, Inc., a subcontractor, who sought to fill various positions in |sthe Pawnville., Louisiana area. International Marine hired Mr. Musa to work as a quality control inspector at Northrop Grumman, Inc. f/k/a/ Avondale Industries, Inc. For seven months, Mr. Musa worked on the morning shift as a quality control inspector at Northrop Grumman’s shipyard onboard the vessel ARCO. His tools, other than a flashlight which he supplied himself, consisted of án ink pen, clipboard, and safety harness that were provided by Northrop Grumman. Once Mr. Musa completed his inspections, he produced a quality control form, in triplicate, and delivered it to the person responsible for correcting the violation, the ship supervisor, and his immediate supervisor, Mr. John Whittington— none of whom were International Marine employees.

In September of 1999, Mr. Musa sustained injuries to his left shoulder, middle back, left hip, and left leg while conducting inspections onboard the vessel ARCO when his foot slipped on a ladder while entering a tank. As a result, he brought a claim for damages pursuant to the LHWCA against International Marine which settled for $95,000. Mr. Musa then filed the present lawsuit against Northrop Grumman seeking to recover in tort, arguing that Northrop Grumman’s negligence was a proximate cause of his injuries.

Northrop Grumman filed a motion for summary judgment, arguing that Mr. Musa was its borrowed servant when the injury occurred, which legal theory, if proven, would limit its liability to the exclusivity provision under the LHWCA, which benefits had already been paid by International Marine. At the hearing on the motion, however, Mr. Musa argued that because discovery was incomplete, the trial court was precluded, pursuant to La. C.C.P. art. 966(C), from ruling on the motion. The court gave Mr. Musa three months to complete discovery and rescheduled the hearing accordingly.

| ¿The motion was heard in February of 2010 wherein Northrop Grumman reurged arguments made at the first hearing and informed the court that Mr. Musa had made no attempt to complete discovery until two weeks prior to the rescheduled hearing date. After arguments, the trial court granted the motion. Mr. Musa appeals and challenges the correctness of the summary judgment.

Assignments of Error

Mr. Musa argues that because genuine issues of material fact exist regarding his status as a borrowed employee, the trial court erred by denying the motion for summary judgment. He also argues that the trial court abused its discretion in granting the motion for summary judgment because discovery was incomplete.

Discussion

Appellate courts review summary judgments de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Moody v. United Nat. Ins. Co., 98-287 (La.App. 5 Cir. 9/29/98), 743 So.2d 680, 682. (citations omitted). However, “the issue of whether a relationship of borrowed servant exist[s] is a matter of law.” Gaudet v. Exxon Corp., 562 F.2d 351, 357 (5 Cir.1977). It concerns not only the facts themselves but the implications to be drawn therefrom. Id. at 358. If a plaintiff is found to be the borrowed employee of the defendant, he is covered by the Longshoreman and Harbor Workers’ Compensation Act, 33 U.S.C. Sec. 905 et. seq. and is limited to an exclusive remedy in workers’ compensation. Conner v. Am. Marine Corp., 96-2175 (La.App. 4 Cir. 11/27/96), 684 So.2d 550, 552.

First Assignment of Error — Borrowed Employee

In his first assignment of error, Mr. Musa argues that genuine issues of material fact exist regarding his status as a borrowed employee.

| ¡^Borrowed employee disputes arise when a defendant who is not a plaintiffs formal employer argues that the plaintiff is in fact acting as the defendant’s employee. West v. Kerr-McGee Corp., 765 F.2d 526, 529 (5 Cir.1985). To determine whether an employee is the borrowed employee of another, the court must “inquire whose is the work being performed, a question which is usually answered by ascertaining who has the power to control and direct the (servant) in the performance of (his) work.” Gaudet, supra at 355.

Various criteria have been considered in determining whether the borrowed servant doctrine is applicable. These criteria were set forth in Ruiz v. Shell Oil Co., 413 F.2d 310 (5 Cir.1969). While no one of these factors, standing alone, or any combination of them, is decisive, and no fixed test is used to determine the existence of a borrowed-servant relationship, the following tests have been given great weight: (1) Who has control over the employee and the work being performed? (2) Whose work is being performed? (3) Was there an agreement between the formal employer and the borrowing employer? (4) Did the employee acquiesce in the new work situation? (5) Did the original employer terminate his relationship with the employee? (6) Who furnished tools and place for employment? (7) Was the new employment over a considerable length of time? (8) Who has the right to discharge the employee? and (9) Who had the obligation to pay the employee? Id. at 312-13.

Who had control?

Control, the first Ruiz factor, is perhaps the most universally accepted standard for establishing an employer-employee relationship. Ruiz, supra at 312. To prove such a relationship existed, Northrop Grumman points to Mr. Musa’s deposition testimony wherein he stated that he was supervised only by Northrop Grumman’s employees. In fact, he received his daily assignments from his | ^immediate supervisor — a Northrop Grumman employee. He did not perform any work for International Marine; was never supervised by anyone from International Marine; and did not report his findings to International Marine.

Mr. Musa argues, however, that Northrop Grumman did not exercise complete control over him because they lacked the authority to alter his findings once his inspections were complete. Contrary to his own assertion, however, Mr. Musa further testified that if Mr. Whittington, his immediate supervisor, disagreed with his findings, he did, in fact, have the authority to evaluate his work to ensure that Mr. Musa had conducted inspections properly.

In Conner, supra, the court found that the borrowing employer exercised control over the plaintiff. There, American Marine, the borrowing employer, controlled the plaintiff’s work for the duration of his four-month employment with the company. Moreover, the plaintiff testified that he was only supervised by American Marine. Here, Northrop Grumman controlled Mr. Musa’s work during his seven-month tenure there; and he likewise, was only supervised by Northrop Grumman. Similarly, in Capps v. N.L. Baroid-NL Indus., 784 F.2d 615, 617 (5 Cir.1986), the court found that the original employer did not instruct Capps regarding the work to be performed at Baroid — the borrowing employer. Likewise, in this case, International Marine did not instruct Mr. Musa on the work he was to perform at Northrop Grumman.

These facts, taken together, reveal that Northrop Grumman exercised control over Mr. Musa, thereby favoring borrowed-employee status.

| nWhose work was performed?

The second Ruiz factor warrants minimal consideration. Mr. Musa was hired to conduct quality inspections for Northrop Grumman onboard an ARCO vessel. This factor also weighs in favor of borrowed-employee status.

Was there an agreement?

The third Ruiz factor considers whether an agreement existed between the original and borrowing employer. “Although a formal agreement between the two employers is not considered indispensable to the borrowed-servant relationship, the very terms ‘borrowed’ and ‘loaned’ connote some type of agreement, understanding, or meeting of the minds between the borrower and lender.” Ruiz, supra, at 313. Here, an agreement did, in fact, exist between Northrop Grumman and International Marine which stated, in pertinent part:

Vendor [International Marine] is an independent Contractor, free of control and supervision by Buyer [Northrop Grumman] as to the means or manner of performing all work or services hereunder ... Neither Vendor, or person or firm used by Vendor, shall be deemed for any purpose to be the employer, ayent, servant, or representative of the Buyer in performance of any work or services under this Order, (emphasis added).

A similar contract provision between the original and borrowing employer was present in Brown v. Union Oil Co. of Cal., 984 F.2d 674 (5 Cir.1993). However, that court concluded that that type of provision did not automatically prevent borrowed-employee status from arising. Id. at 678. Instead, the parties’ actions in executing the contract could impliedly modify or waive the express provision. Id.

Here, we find that the parties’ actions did, indeed, modify the contract which purported to prohibit borrowed-employee status.

|RIn Brown, the court determined that a factual dispute existed regarding whether the contract provision was modified. Id. There, the court expressed concern regarding the discrepancy in the evidence and the contract provision which purported to prohibit borrowed-employee status. Brown presented evidence that he did not work alongside Union employees; that Union employed its own workers during the day and contract labor during the night; and that Union did not provide contract labor with Union’s handbooks and safety manuals. Brown offered that evidence to show consistency with the contract provision — namely, that he was not Union’s borrowed employee.

In this case, however, Mr. Musa did work alongside Northrop Grumman employees. In fact, on the day of his injury, he testified that at least one of Northrop Grumman’s employees was inside the tank in which he was injured. In addition, Mr. Musa received Northrop Grumman’s handbook and safety manual. In fact, he signed a form which stated:

I have received copies of Avondale Industries, Inc, Shipyards Division’s Safety Rules and Regulations Handbook, and The Avondale Employee Guidebook Excerpts Applicable to Subcontract Employees, it is now my responsibility to make myself aware of their contents.

Because Mr. Musa worked alongside Northrop Grumman’s employees, was able to use Northrop Grumman’s tools, infra, and was given a copy of Northrop Grumman’s handbook and safety manual, this Court finds that Northrop Grumman did not treat Mr. Musa any differently from its own employees. Consequently, their actions impliedly modified the contract which purported to prohibit borrowed-employee status.

Bid the employee acquiesce?

The fourth Ruiz factor considers whether the employee acquiesced in the new work situation. The focus of this factor is whether the employee was aware of |9his work conditions and chose to continue working in them. Brown, supra, at 678. Here, Mr. Musa worked exclusively at Northrop Grumman for seven months and was, in fact, aware of the precise danger that caused his injury.

Furthermore, he testified and stated in his brief, that he answered an advertisement in which International Marine sought to fill positions at locations other than Northrop Grumman. Therefore, he had prior knowledge that International Marine loaned employees to other companies.

We find this factor favors borrowed-employee status.

Was there severance with original employer?

Next, we consider whether International Marine severed its relationship with Mr. Musa while he was assigned to Northrop Grumman. This factor, however, does not require the lending employer to completely sever its relationship with the employee, because to do so would effectively eliminate the borrowed-servant doctrine. Capps, supra, at 618. Rather, the focus is on the lending employer’s relationship with the employee while the borrowing occurs. Id.

Although International Marine’s relationship with Mr. Musa was still intact, the ties were minimal — at best. Their involvement with Mr. Musa was purely administrative — issuing his weekly paychecks. Accordingly, we find this factor favors borrowed-employee status.

Who furnished tools ?

The sixth Ruiz factor considers who furnished the tools and place of employment. The nature of Mr. Musa’s work onboard the ARCO did not require the customary tools of the trade because he was employed as a quality control inspector. Nonetheless, he testified that his tools, other than a flashlight which he supplied himself, consisted of an ink pen and clipboard that were both provided by | ^Northrop Grumman. He further testified that if he needed a harness, he checked it out of Northrop Grumman’s tool room. This factor, likewise, weighs in favor of borrowed-employee status.

What was the duration of the employment?

The seventh Ruiz factor considers whether the employment was over a considerable length of time. Where the length of the employment is considerable, this factor supports a finding that the employee is a borrowed employee. Brown, supra, at 619. Here, Mr. Musa worked for Northrop Grumman for seven months pri- or to his injury. He worked at Northrop Grumman exclusively during this time. Therefore, we find this factor weighs in favor of borrowed-employee status. (See, Conner, supra, where court found that employee who worked at borrowing employer for four months was a borrowed employee).

Who had the right to discharge?

The proper inquiry under the eighth Ruiz factor is which employer has the right to terminate the employee’s services with the borrowing employer. Capps, supra, at 618. Here, Northrop Grumman clearly had the right to discharge Mr. Musa from its site. In fact, Mr. Musa testified that his immediate supervisor, Mr. Whittington, had the authority to fire him, thereby satisfying the eighth Ruiz factor.

Who had the obligation to pay?

The ninth, and last Ruiz factor, considers who bore the responsibility to pay Mr. Musa. Northrop Grumman maintained a log of the hours Mr. Musa worked; however, the record reflects that his checks were issued by International Marine. Identical procedures existed in Capps, Conner, and Brown, supra. And, on this factor, each of those courts found in favor of borrowed-employee status.

Mr. Musa argues, however, that even if he was Northrop Grumman’s borrowed employee, Northrop Grumman is not immune from tort liability because | nthey did not pay the LHWCA benefits. To support this position, Mr. Musa relies on West, supra, for the proposition that the only employer who is immune from tort liability is the employer who has actually paid the LHWCA benefits. We must point out, however, that the proposition on which Mr. Musa relies comes from Judge Tate’s concurring opinion which is not representative of the majority’s holding in that case.

In West, the plaintiff who was hired by Berry Brothers [the subcontractor], sustained injuries in a gas explosion during the course and scope of his employment at the Kerr-McGee facility [the contractor]. He subsequently filed suit against Kerr-McGee and others. The defendants filed motions for summary judgments which were all granted. The United States Fifth Circuit Court of Appeal reversed the summary judgments and determined that the 1984 amendment to the LHWCA did not eliminate the borrowed-employee doctrine.

Although Judge Tate agreed that the summary judgment should have been reversed, he felt that the court should have done so on a broader statutory ground. In his mew, the borrowed-servant tort immunity which had been judicially granted to general contractors vanished "with the 1984 amendments, specifically with 38 U.S.C.A. § 905(a) which provides:

For purposes of this subsection, a contractor shall be deemed the employer of a subcontractor’s employees only if the subcontractor fails to secure the payment by section 904 of this title.

In Judge Tate’s view, the 1984 amendments were specifically intended to clarify that “a general contractor enjoyed no tort-immunity as to work-injuries sustained by a subcontractor’s employee, where that subcontractor had ... secured the payment to the injured employee of compensation benefits accorded him by the Act.” Id. at 534.

112The majority, on the other hand, held that the 1984 amendments did not eliminate the borrowed-servant doctrine. In the majority’s view, to interpret § 905(a) as foreclosing, “any designation of any contractor as the employer of its subcontractors’ employees-even if a borrowed-employee relationship existed-unless the subcontractor failed to secure compensation payments,” would render the cases explaining the borrowed-employee doctrine obsolete. Id. at 530-1. Rather, the majority interpreted the amendment to mean that the “shall be deemed” language of the § 905(a) amendment referred only to “ ‘deeming’ a contractor the employer of a subcontractor’s employee when the contractor is not the employee’s true employer as well.” Id. at 531. The majority, therefore, held that if the contractor was the employee’s employer under the borrowed-servant doctrine, the contractor was thus hable for § 904(a) compensation and had § 905(a) immunity. Id. After determining that the 1984 amendments did not abolish the borrowed-servant doctrine, the majority in West applied the Ruiz factors, as we have already done here, to determine whether the plaintiff was a borrowed employee.

Accordingly, we find that the Ruiz factors overwhelmingly show that Mr. Musa was Northrop Grumman’s borrowed employee. Mr. Musa worked exclusively at Northrop Grumman for seven months. Northrop Grumman exercised control over Mr. Musa in that they supervised him, provided him with his daily assignments, and had the authority to terminate his services. Northrop Grumman kept a log of Mr. Musa’s work hours and provided him Avith the tools necessary to perform his job. Accordingly, we find that no genuine issues of | ^material fact exist regarding his status as a borrowed employee and that the trial court did not err in granting the motion for summary judgment.

Second Assignment of Error — Incomplete Discovery

In his second assignment of error, Mr. Musa argues that the trial court abused its discretion when it ruled on the motion for summary judgment before discovery was completed. To support this argument, Mr. Musa cites La. C.C.P. art. 966(C) which provides, “after adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.” This Court has found, however, that La. C.C.P. art. 966 does not give parties an absolute right to delay a decision on a motion for summary judgment until all discovery is complete. Pittman v. State Farm Mut. Auto. Ins. Co., 06-920, p. 10 (La.App. 5 Cir. 4/24/07), 958 So.2d 689, 693. Yet, the law does require that parties be given a fair opportunity to present their claim. Id.

•At the first hearing on the motion in November of 2009, Mr. Musa argued that the trial court was precluded from ruling on the motion because discovery had not yet been completed. In response, the court deferred its ruling and gave Mr. Musa until February, 2010 to complete discovery. At the rehearing, however, Northrop Grumman argued that Mr. Musa had made no attempt to complete discovery until two weeks prior to the rescheduled hearing date.

It is within the trial court’s wide discretion to render a summary judgment, if appropriate, or to allow further discovery. Jeanmarie v. Peoples, 09-1059, p. 9 (La.App. 4 Cir. 3/16/10), 34 So.3d 945, 951. The trial court’s decision in this regard should only be reversed upon a showing of an abuse of that discretion. Id. (citations omitted).

1 uThe litigation, in this case, has been on-going for over a decade. Nevertheless, during the November 2009 hearing, the trial court exercised its wide discretion and gave Mr. Musa the three additional months that he requested to complete discovery. The fact that discovery was not completed is'not grounds to defer ruling on the motion. Pittman, supra. Because Mr. Musa had already been given an opportunity to conduct further discovery, we find that the trial court did not abuse its discretion in ruling on the motion for summary judgment before discovery was completed.

Conclusion

Based on the foregoing, this Court finds that no genuine issues of material fact exist regarding the Ruiz factors, and that, as a matter of law, the facts support a finding that Mr. Musa was Northrop Grumman’s borrowed employee. Accordingly, the trial court properly granted the motion for summary judgment.

AFFIRMED

      . Although Mr. Musa's deposition testimony states "Pawnville,” we note that no such city exists. It is likely Mr. Musa said “Hahnville,” which was transcribed as "Pawnville.”

      . Mr. Musa also argues that Northrop Grumman had no legal authority to control him because he was hired to conduct independent quality control inspections on them. However, the record doesn’t substantiate this claim. On the contrary, Mr. Musa testified that Northrop Grumman’s own employees also conducted quality inspections.

      . In his brief, Mr. Musa points to another contract which indicated that the subcontractor was to supply the tools and that Northrop Grumman’s rules and regulations would apply. It is his position that this creates a conflict with the contract mentioned in the body of the opinion; and therefore, creates a genuine issue of material fact. Because we find that the parties’ actions, in this case, modified any contract that existed between them, we disagree.

      . Mr. Musa testified in both of his depositions that he reported the dangerous condition which caused his injury approximately two weeks before the accident occurred.

      . 33 U.S.C.A. § 904(a) provides: In the case of an employer who is a subcontractor, only if such subcontractor fails to secure the payment of compensation shall the contractor be liable for and be required to secure the payment of compensation. A subcontractor shall not be deemed to have failed to secure the payment of compensation if the contractor has provided insurance for such compensation for the benefit of the subcontractor.


source: Caselaw Access Project

author: MARC E. JOHNSON, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Shedrick BENNETT.
    No. 10-KA-393.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 29, 2011.

      Paul D. Connick, District Attorney, Terry M. Boudreaux, Andrea F. Long, Assistant District Attorneys, Parish of Jefferson, Gretna, LA, for PlaintiffiAppellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

^Defendant, Shedriek Bennett, appeals his convictions and sentences for battery of a correctional officer. For the reasons that follow, we affirm defendant’s convictions, affirm defendant’s sentences' on counts two and three, and amend defendant’s sentence on count one.

PROCEDURAL HISTORY

On November 25, 2008, defendant was charged in a bill of information with three counts of battery of a correctional officer while incarcerated in a correctional facility in violation of La. R.S. 14:34.2. He proceeded to trial and, on September 15, 2009, a six-person jury found defendant guilty as charged on all three counts. The trial court sentenced defendant to one year imprisonment at hard labor without benefit of parole, probation, or suspension of sentence on each of the three counts, and ordered the sentences be served consecutively.

1 .^Thereafter, the State filed a multiple offender bill of information alleging defendant to be a fourth felony offender on the basis of four predicate felony convictions. After a hearing, the trial court found the State proved only two predicate felony convictions within the ten-year cleansing period of defendant’s underlying conviction on count one. The trial court vacated defendant’s sentence on count one and re-sentenced defendant as a third felony offender on count one to ten years imprisonment at hard labor without benefit of probation or suspension of sentence, to be served concurrently with the consecutive sentences ordered as to counts two and three.

FACTS

On September 6, 2008, defendant was an inmate in the custody of the Jefferson Parish Correctional Center (JPCC). At approximately 2:40 p.m., Deputy Justin Remes, who was assigned to the JPCC, responded to a call involving an altercation between defendant and another inmate in Pod-3B. When he arrived, the inmates had already separated. Deputy Remes noted defendant was “heated” and agitated. He escorted defendant out of the pod and placed him against a wall in the hallway to handcuff him. Defendant resisted efforts to be handcuffed by moving his hands and head wildly and erratically. Deputy Maya Seymour saw Deputy Remes struggling to handcuff defendant and she assisted. A third deputy, Deputy Sean Williams, also assisted in gaining control of defendant and handcuffing him.

After defendant was handcuffed, Deputies Remes, Seymour, and Williams, escorted him to the elevator to take him to the medical area for treatment. While waiting for the elevator, defendant continued to be physically combative. He struck Deputy Seymour in her upper chest and shoulder with his elbow several times. He was also verbally abusive and spit blood, which came from a small cut Ron the inside of his lip, all over the three deputies’ faces and bodies while yelling he would kill them. According to the deputies, defendant said he had used drugs when he was on the streets, he hoped he had AIDS, and he hoped the deputies died. The deputies managed to get defendant to the nurse but he was too combative to immediately be seen.

LAW AND ANALYSIS

Shackling of Defendant

In defendant’s first assignment of error, he argues the trial court erred in ordering him to be shackled during trial. He contends the trial court abused its discretion in shackling him because there was no specific justification for restraining him. He maintains he was prejudiced by being shackled because he was unable to take notes during the trial and could not stand when the jury entered or exited the courtroom. Defendant contends the restraints served no purpose but to influence the jury to think he was so dangerous he must have committed the charged crimes.

Prior to the commencement of trial, the trial judge ordered that defendant be shackled. He specifically noted that he was doing so because he was concerned with the health of defendant’s appointed counsel. Defense counsel objected, and the trial judge responded:

Mr. Bennett has a history in this courtroom of having had a confrontation with officers in the past. He created a question in my Bailiffs mind yesterday when he wasn’t shackled as to the safety of the courtroom. As such, the Court has made a decision based upon his alleged prior bad acts, that is a manslaughter charge, and the activity in this case and both as to the charges, and to his acting out in this courtroom before, and is going to overrule the objection. Order that he be shackled, but it’s my understanding the shackles do not create any noise because they are a synthetic material, and it’s my understanding if he keeps his hands down no one will know that he is handcuffed.

| ¿“Ordinarily, a defendant before the court should not be shackled or handcuffed or garbed in any manner destructive of the presumption of his innocence and of the dignity and impartiality of judicial proceedings.” State v. Wilkerson, 403 So.2d 652, 659 (La.1981). However, exceptional circumstances may require the trial court, within its discretion, to restrain a defendant for reasons of courtroom security or order or where the defendant’s past conduct reasonably justifies apprehension that he may attempt to escape. For a finding of reversible error, the record must show an abuse of the trial court’s discretion resulting in clear prejudice to the accused. Id.

The record shows defendant had a history of violent and threatening conduct in the courtroom. At the preliminary hearing five months before trial, defendant lost control in court during the testimony of a State’s witness and had an expletive-laden outburst requiring the trial judge to repeatedly warn defendant to calm down. Based on defendant’s past conduct, the trial court’s bailiff expressed concern for the security of the courtroom. We find no abuse of the trial court’s discretion in ordering defendant shackled during trial under these circumstances.

Additionally, we find defendant has failed to show he was prejudiced by being shackled. Defendant does not allege and the record does not show that the jury actually observed or was able to observe that defendant was shackled. The trial judge explained that the shackles would not be visible to the jury if defendant kept his hands down. There is no indication defendant did not keep his hands down. Although defendant alleges he was prejudiced by his inability to stand when the jury entered and exited the courtroom, we note that defendant was not alone in remaining seated as the record shows defense counsel also remained seated. Further, we find defendant was not prejudiced by his inability to take notes during trial due to the shackles. This case was uncomplicated, involved only four |fiState witnesses, and took only one day to present. Accordingly, this assignment of error lacks merit.

Other Crimes Evidence

In defendant’s second assignment of error, he contends the trial court erred in admitting other crimes evidence without notice and a hearing. He further argues the prejudice of the other crimes evidence outweighed its probative value. The State responds that the evidence at issue constituted res gestae or an integral part of the crime and, therefore, the evidence was admissible without notice or a hearing.

Prior to trial, defense counsel raised the issue of the admissibility of a statement allegedly made by defendant regarding other crimes evidence. The statement at issue was that defendant had been a drug user on the streets and that he hoped he had AIDS so the deputies would all die. Defense counsel argued that any reference to defendant’s prior drug use was inadmissible other crimes evidence. She further asserted that she had not received notice of the State’s intent to use other crimes evidence. The trial court found the statement demonstrated intent and ruled the evidence admissible.

Generally, evidence of other crimes or bad acts committed by a criminal defendant is not admissible at trial. La. C.E. art. 404 B(1); State v. Prieur, 277 So.2d 126, 128 (La.1973). However, when evidence of other crimes tends to prove a material issue and has independent relevance other than to show that the defendant is of bad character, it may be admitted by certain statutory and jurisprudential exceptions to this rule. State v. Dauzart, 02-1187 (La.App. 5 Cir. 3/25/03), 844 So.2d 159, 165. Evidence of other crimes is allowed to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of 17mistake or accident, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding to such an extent that the State could not accurately present its case without reference to the prior bad act. La. C.E. art. 404(B)(1); Dauzart, supra.

In order for other crimes evidence to be admitted under La. C.E. art. 404(B)(1), one of the factors enumerated in the article must be at issue, have some independent relevance, or be an element of the crime charged. State v. Jackson, 93-0424 (La.10/18/93), 625 So.2d 146, 149. Further, the probative value of the extraneous evidence must outweigh its prejudicial effect. La. C.E. art. 403.

Evidence that constitutes an integral part of the crime, formerly known as “res gestae,” is admissible without any prior notice to the defense. State v. Charles, 00-1586 (La.App. 5 Cir. 6/27/01), 790 So.2d 705, 708. A close connexity is required between the charged and uncharged conduct to assure that the purpose served by admission of the other crimes evidence is to complete the story of the crime on trial by proving its immediate context of happenings near in time and place, rather than to depict the defendant as a bad man. Id. Evidence constituting an integral part of the crime includes not only spontaneous utterances and declarations made before or after the commission of the crime, but also testimony of witnesses and police officers pertaining to what they heard or observed before, during, or after the commission of the crime, provided a continuous chain of events is evident under the circumstances. State v. Parker, 536 So.2d 459, 461-62 (La.App. 1 Cir.1988), writ denied, 584 So.2d 670 (La.1991). As recognized by this Court,

[t]he test for integral act (res gestae) evidence is, therefore, not simply whether the State might somehow structure its case to avoid any mention of the uncharged act or conduct, but whether doing so would deprive the State’s case of narrative momentum and cohesiveness, ‘with power not only to support conclusions |sbut to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict.’

State v. Rhea, 03-1273 (La.App. 5 Cir. 2/23/04), 868 So.2d 863, 867 (citing State v. Colomb, 98-2813 (La.10/1/99), 747 So.2d 1074, 1076, quoting Old Chief v. United States, 519 U.S. 172, 187, 117 S.Ct. 644, 653, 136 L.Ed.2d 574 (1997)).

The defendant bears the burden to show that he was prejudiced by the admission of the other crimes evidence. State v. Dauzart, 844 So.2d at 165-166. Clearly, evidence of other crimes or bad acts is prejudicial since all evidence which tends to make it more probable than not that an individual committed a criminal offense is necessarily prejudicial. The underlying policy is not to prevent prejudice, since evidence of other crimes is always prejudicial, but to protect against unfair prejudice when the evidence is only marginally relevant to the determination of guilt of the charged crime. State v. Williams, 02-645, p. 16 (La.App. 5 Cir. 11/26/02), 833 So.2d 497, 507, writ denied, 02-3182 (La.4/25/03), 842 So.2d 398. Absent an abuse of discretion, a trial court’s ruling on the admissibility of evidence pursuant to La. C.E. art. 404(B)(1) will not be disturbed. State v. Merritt, 04-204, p. 11 (La.App. 5 Cir. 6/29/04), 877 So.2d 1079, 1085, writ denied, 04-1849 (La.11/24/04), 888 So.2d 228.

The record shows three sheriffs deputies testified that defendant spontaneously blurted out that he had been a drug user and that he hoped he had AIDS so that the deputies would die. The deputies stated defendant made the statement while spitting blood at them. We find the contested statement was admissible as an integral part of the crime. See State v. Harris, 28,517, pp. 8-9 (La.App. 2 Cir. 8/21/96), 679 So.2d 549, 556, unit denied, 96-2954 (La.9/26/97), 701 So.2d 975 (statement made by the defendant during a drug transaction that he |9hoped undercover officer to whom he was selling drugs was not the police because he had been in trouble before, constituted an integral part of transaction and came within ambit of res gestae); and State v. Mickel, 581 So.2d 404, 405 (La.App. 5 Cir.1991) (testimony in prosecution for illegal use of weapon that the defendant stated “I’ll shoot you, too,” was admissible as an integral part of weapons charge). Accordingly, we find no merit to this assignment of error.

Excessive Sentence

In his last assignment of error, defendant argues his maximum ten-year enhanced sentence is excessive. Although defendant contends on appeal that the trial court failed to comply with La.C.Cr.P. art. 894.1, the motion to reconsider sentence he filed with the district court did not argue that the trial judge failed to follow the sentencing guidelines of Article 894.1. The failure to state the specific grounds on which a motion to reconsider sentence is based limits a defendant to a review of the sentence for constitutional excessiveness. State v. White, 09-1122, p. 5 (La.App. 5 Cir. 6/29/10), 44 So.3d 309, 311.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Smith, 01-2574, p. 6 (La.1/14/03), 839 So.2d 1, 4. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. Id. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Lawson, 04-334, p. 6 (La.App. 5 Cir. 9/28/04), 885 So.2d 618, 622.

A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. The issue [ inon appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. Dorsey, 07-67, p. 5 (La.App. 5 Cir. 5/29/07), 960 So.2d 1127, 1130. The appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Pearson, 07-332, p. 15 (La.App. 5 Cir. 12/27/07), 975 So.2d 646, 656. In reviewing a trial court’s sentencing discretion, three factors are considered: 1) the nature of the crime; 2) the nature and background of the offender; and 3) the sentence imposed for similar crimes by the same court and other courts. Id., 07-332 at 15-16, 975 So.2d at 656.

Defendant was convicted of battery of a correctional officer while in a correctional facility, which provides a sentencing range of one to five years imprisonment with or without hard labor. La. R.S. 14:34.2(B)(2). Defendant was later adjudicated a third felony offender and faced sentencing under La. R.S. 15:529.1(A)(b)(i), which at the time of his sentencing provided for an enhanced sentence of “not less than two-thirds of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction,” or between forty months and ten years. Defendant received the maximum ten-year sentence.

Ten-year or harsher sentences are not unheard of for multiple felony offenders convicted of battery of a correctional officer. In State v. Harrison, 06-897 (La.App. 5 Cir. 3/27/07), 957 So.2d 199, the defendant was convicted of two counts of battery of a correctional officer while incarcerated in a correctional facility and one count of simple battery. He was later found to be a second felony offender and was sentenced to ten years as a multiple offender. Additionally, in State v. Negron, 09-1204 (La.App. 1 Cir. 12/23/09), 2009 WL |T15647228 (unpublished opinion), writ denied, 10-266 (La.9/17/10), 45 So.3d 1040, the defendant was convicted of one count of battery of a correctional facility employee. He was adjudicated a third felony offender and was initially sentenced to life imprisonment. On a motion to reconsider sentence, the trial court reduced defendant’s enhanced life sentence to forty years. The First Circuit affirmed the enhanced sentence after concluding it was not constitutionally excessive.

In the instant case, defendant acted in a violent manner towards another inmate, who had to be hospitalized, and three correctional officers. He has an extensive criminal history and has a pending charge for manslaughter. Based on these circumstances, we cannot say the trial court abused its discretion in imposing a maximum ten-year enhanced sentence based on defendant’s status as a third felony offender.

ERRORS PATENT

We reviewed the record for errors patent in accordance with La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). We note defendant received illegally lenient sentences because he did not receive a mandatory fine on counts two and three, and the enhanced sentence on count one was imposed without the restriction of parole and was ordered to run concurrently with counts two and three as opposed to consecutively as required by the underlying statute. La. R.S. 14:34.2(B)(2) provides that an offender convicted of battery of a correctional officer while incarcerated in a correctional facility “shall be fined not more than one thousand [^dollars and imprisoned with or without hard labor without benefit of parole, probation, or suspension of sentence for not less than one year nor more than five years.” Additionally, the statute states, “[s]uch sentence shall be consecutive to any other sentence imposed for violation of the provisions of any state criminal law.” The State did not object to the illegally lenient sentences at the time of sentencing but noted the errors in its brief on appeal.

The appellate court may correct an illegal sentence at any time regardless of whether either party raises the issue. This authority is permissive rather than mandatory. See La.C.Cr.P. art. 882; State v. Campbell, 08-1226, p. 8 (La.App. 5 Cir. 5/26/09), 15 So.3d 1076, 1081, writ denied, 09-1385 (La.2/12/10), 27 So.3d 842, citing State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790. While this Court has held that a statute providing for a fine of “not more than” a specified amount requires a mandatory fine, the matter is not free from doubt. See State v. Kerlec, 06-838, p. 8 (La.App. 5 Cir. 4/11/07), 957 So.2d 810, 814, writ denied, 07-1119 (La.12/7/07), 969 So.2d 626; State v. Jackson, 04-728, p. 10 (La.App. 5 Cir. 12/14/04), 892 So.2d 71, 78, writ denied, 05-548 (La.1/9/06), 918 So.2d 1033. Because the matter is not free from doubt and because defendant is indigent, we decline to exercise our discretion to correct defendant’s illegally lenient sentences, to the extent defendant did not receive a fine, on counts two and three.

When a defendant is sentenced as a habitual offender, the penalty increase is computed by reference to the sentencing provisions of the underlying offense. Similarly, the conditions imposed on the sentence are those called for in the referenced statute. State v. Bruins, 407 So.2d 685, 687 (La.1981). The conditions of La. R.S. 14:34.2(B)(2) require the sentence be imposed without benefit of parole 11sand that it run consecutively, to any other sentence imposed for a violation of any state criminal law. Thus, defendant’s enhanced sentence should have been imposed without benefit of parole and ordered to run consecutively to his other sentences.

Under La. R.S. 15:301.1 and State v. Williams, supra, a statute’s requirement that a defendant be sentenced without benefit of parole, probation or suspension of sentence is self-activating. Therefore, the fact the trial court failed to impose defendant’s enhanced sentence without benefit of parole requires no corrective action by this Court. However, the trial court’s failure to order the enhanced sentence to run consecutively to any sentence imposed for the violation of any state criminal law requires corrective action. Accordingly, defendant’s sentence on count one is amended to provide that the 10-year sentence is to run consecutively to any sentence imposed for the violation of any state criminal law.

DECREE

Defendant’s convictions for battery of a correctional officer while in a correctional facility are affirmed. His ten-year enhanced sentence on count one is amended to provide that it run consecutively to any sentence imposed for the violation of any state criminal law. His sentences on counts two and three are affirmed.

In accordance with our amendment of the sentence on count one, we remand the matter to the district court with an instruction to amend the minute entry to reflect that defendant’s sentence on count one is to run consecutively to any sentence imposed for the violation of any state criminal law and to transmit the amended minute entry to the officer in charge of the institution to which the defendant has been sentenced. See State v. Johnson, 09-454, p. 12 (La.App. 5 Cir. 11/24/09), 28 So.3d 1125, 1132, writ denied, 10-0001 (La.6/25/10), 38 So.3d 355, citing State ex rel. Roland v. State, 06-244 (La.9/15/06), 937 So.2d 846 (per curiam).

CONVICTIONS AFFIRMED; SENTENCE ON COUNT ONE AMENDED AND AFFIRMED AS AMENDED; SENTENCES ON COUNTS TWO AND THREE AFFIRMED; REMANDED WITH INSTRUCTIONS

      . LSA-C.C.P. art. 2168, which was added by Acts 2006, No. 644, § 1, provides that unpublished opinions of the supreme court and the courts of appeal shall be posted by such courts on the courts' Internet websites and that those posted opinions may be cited as authority. It is noted that the Negron opinion is posted on the Louisiana First Circuit Court of Appeal's website. Further, Uniform Rules, Courts of Appeal, Rule 2-16.3 addresses citation and publication of cases. Before the uniform rule was amended in 2007, the rule had provided that opinions and dispositions marked "Not Designated for Publication" could not be cited, quoted, or referred to by any counsel, or in any argument, brief, or other materials presented to any court, except in continuing or related litigation. However, Rule 2-16.3 no longer contains a limitation on citing to unpublished cases.

      . Defendant is represented on appeal by the Louisiana Appellate Project. See State v. McGee, 09-102, p. 12 (La.App. 5 Cir. 9/29/09), 24 So.3d 235, 242, in which this Court refrained from exercising its authority to correct an illegally lenient sentence imposed without a mandatory fine, reasoning that the defendant appeared indigent because he was represented by the Louisiana Appellate Project.


author: MARION F. EDWARDS, Chief Judge.

text:
    STATE of Louisiana v. Ronald J. MORGAN.
    No. 10-KA-416.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 29, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appel-lee.
    Gwendolyn K. Brown, Attorney at Law, Baton Rouge, LA, for Defendant/Appellant.
    Ronald Morgan, Angie, LA, Defendant/Appellant in proper person.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and JUDE G. GRAVOIS.
   MARION F. EDWARDS, Chief Judge.

| gThis is Ronald J. Morgan’s (“Morgan”), defendant/appellant, fifth appeal. The procedural history of this case is taken from this Court’s most recent opinion as follows:

In defendant’s first appeal, this Court affirmed defendant’s convictions for forcible rape and aggravated incest and the finding that defendant was a third felony offender. State v. Morgan, 06-529 (La.App. 5 Cir. 12/12/06), 948 So.2d 199. This Court vacated defendant’s sentences and remanded the case to the trial court for a ruling on defendant’s outstanding counseled motion for new trial....
On remand, the trial judge resen-tenced defendant on Count 1, forcible rape, to imprisonment at hard labor for 20 years, and on Count 2, aggravated incest, to imprisonment at hard labor for 10 years, with both sentences to run concurrently. State v. Morgan, 07-943, p. 2 (La.App. 5 Cir. 3/11/08), 982 So.2d 172, 173. Three months later, the trial judge, Judge Robert Burns, denied defendant’s pro se motion for new trial after a hearing. One week later, Judge Burns vacated the original sentences and resentenced defendant as a third felony offender to a term of 40 years to be served without benefit of parole, probation, or suspension of sentence on both counts to run concurrently. State v. Morgan, 07-943 at 2-3, 982 So.2d at 173.
|3In the second appeal, this Court again vacated defendant’s sentences and remanded for a ruling on the outstanding counseled motion for new trial, since the trial court erroneously ruled on defendant’s pro se motion for new trial, which had already been denied, instead of his outstanding counseled motion for new trial three months after sentencing. State v. Morgan, 07-943 at 3, 982 So.2d at 173. This Court stated that, if the trial judge denied the motion and subsequently resentenced defendant, it reserved defendant’s right to appeal an adverse judgment with respect to his sentencing. Id.
On remand, the trial judge, Judge Donald Rowan, denied defendant’s motion for new trial after a hearing on October 3, 2008. Afterwards, the trial judge resentenced defendant on Count 1, forcible rape, to imprisonment at hard labor for 20 years, with “at least two” years to be served without benefit of parole, probation, or suspension of sentence, and on Count 2, aggravated incest, to imprisonment at hard labor for ten years, with Count 1 to run consecutively with Count 2. The trial judge then vacated the original sentence and resen-tenced defendant as a third felony offender on Count 1 to imprisonment at hard labor for 40 years without benefit of parole or suspension of sentence and on Count 2 to imprisonment at hard labor for 10 years “without benefits,” with the sentences on both counts to run consecutively. Defendant filed a motion to reconsider sentence that was denied. State v. Morgan, 08-1299 at 2-4, 15 So.3d at 1027-28.
In his third appeal, defendant appealed his sentence and the trial court’s ruling on his motion to reconsider sentence. He argued that the trial court erred by increasing his sentence without justification following his successful appeal. He contended that vindictiveness must reasonably be inferred from the record. This Court stated that it was possible, based on the record that the trial judge may not have had a personal animus against defendant, but rather he may have thought concurrent sentences were too lenient considering the disturbing facts of this case, that defendant raped his own biological daughter numerous times over a period of years. Since the trial court did not provide reasons for the increased sentence on remand after appeal, this Court vacated defendant’s enhanced sentence and remanded the matter to the trial court for resentencing with orders that the trial court provide reasons for the sentence imposed. State v. Morgan, 08-1299 at 10, 15 So.3d at 1031-32.
Additionally, this Court vacated the trial court’s order denying defendant’s motion to reconsider sentence and remanded this matter to the trial court. State v. Morgan, 08-1299 at 13, 15 So.3d at 1033. This Court also found that the ten-year enhanced sentence on Count 2 was illegally lenient because it was below the mandatory minimum of 13.3 years. As such, this Court instructed the trial court to take note of this error when resentencing on remand. Id., 08-1299 at 14, 15 So.3d at 1034.
On July 10, 2009, on remand, the trial judge resentenced defendant on Count 1, forcible rape, to imprisonment at hard labor for 20 years, with the first two years to be served without benefit of probation, parole, or suspension of sentence, and on Count 2, aggravated incest, to imprisonment at hard labor for ten years, with the sentences to run consecutively to each other. The trial judge then vacated the original sentence on Count 1, forcible rape, and resen-tenced defendant as a third felony offender to imprisonment at hard labor for 40 years without benefit of probation or suspension of sentence. He also resen-tenced defendant as a third felony offender on Count |42, aggravated incest, to imprisonment at hard labor for 15 years without benefit of probation or suspension of sentence, with the sentences on Counts 1 and 2 to run consecutively with each other. Defendant filed a timely motion for appeal that was granted.

In his fourth appeal, Morgan argued that the sentencing judge erred by increasing his sentence following his successful appeal without justification, and the increase in harshness was motivated by vindictiveness. Morgan challenged not only the consecutive nature of the sentences but also the increased enhanced sentence on Count 2, which he also claimed was based on the judge’s vindictiveness. In that appeal, we found that the increased sentence was based on the sentencing judge’s strong view of Morgan’s actions and the judge’s concern for the child victim, and not on Morgan’s successful appeals. Additionally, we stated that the sentencing judge increased the sentence on Count 2 from 10 to 15 years because this Court had found that the mandatory minimum sentence was 13.3 years and that the 10-year sentence was illegally lenient. We determined that the sentencing judge did not err by imposing consecutive sentences (which increased the total number of years) or by increasing the enhanced sentence on Count 2.

In that appeal, Morgan also argued that the trial court should not have enhanced both of his convictions because they were obtained on the same date. We held that the trial court did not err by enhancing both of Morgan’s convictions that were obtained on the same date, even though they appeared to have arisen out of a single criminal episode. We affirmed the sentence on Count 2, but we found that the enhanced sentence on Count 1, forcible rape, had to be vacated and the case remanded for resentencing on that count only because the judge did not order that at least two years of the sentence be served without benefit of parole.

lüOn March 19, 2010, on remand, Judge Donald Rowan resentenced Morgan on Count 1 to imprisonment at hard labor for 40 years, with the first two years to be served without benefit of parole, probation, or suspension of sentence, and with the remainder of the sentence to be served without benefit of probation or suspension of sentence. The judge vacated the original sentence on Count 2 and resentenced Morgan under the multiple offender statute to imprisonment at hard labor for 15 years without benefit of probation or suspension of sentence, ordering the sentences to run consecutively with each other.

Morgan has timely- appealed. He argues in his pro se brief that the trial court erred by increasing his sentence without justification following his successful appeal. He also argues that vindictiveness must be reasonably inferred from the record and, therefore, the case should be remanded for resentencing. This is the same argument he made in his third and fourth appeals.

In the sentencing presently before us, the trial judge complied with this Court’s order to resentence Morgan on Count 1 and restrict his parole eligibility for at least two years in accordance with the appropriate statutes. That being the only increase, it cannot be found to be vindictiveness. Further, to the extent that Morgan is rearguing his resentencing on October 3, 2008, we have addressed and answered these arguments in the prior appeals, finding them to be without merit. Reconsideration of a prior ruling is warranted when, in light of a subsequent trial record, it is apparent that the determination was patently erroneous and produced unjust results. In the present case, there is no new evidence to show that this Court’s prior disposition was patently erroneous or produced unjust results. Accordingly, we decline to reconsider our prior ruling on the same issue in this case.

16Morgan contends that the sentence imposed on October 3, 2008 is “void” because the trial court failed to wait the requisite three-day period between conviction and sentence without obtaining an express waiver. The sentences imposed on October 3, 2008 have since been vacated. His arguments relative to those sentences are, thus, moot.

Morgan also argues that the trial judge erred by imposing an enhanced sentence on both counts because the convictions arose out of separate criminal offenses committed at separated times. In the fourth appeal, this Court cited State v. Shaw, 06-2467 (La.11/27/07), 969 So.2d 1233, wherein the Louisiana Supreme Court stated that there is no statutory bar to applying the habitual offender law in sentencing for more than one conviction obtained on the same date, whether the convictions result from separate felonies committed at separate times or arise out of a single criminal act or episode. The trial court did not err by enhancing both of Morgan’s convictions that were obtained on the same date, whether or not they arose out of a single criminal episode.

Morgan seems to argue that the trial court did not advise him of his right to remain silent and, thus, his multiple offender adjudication was invalid. In a prior appeal, this issue has previously been found to be harmless error, and we are given no reason to revisit it.

Next, Morgan asserts that his enhanced sentence is excessive and, therefore, it should be vacated and the case remanded for resentencing to a far lesser term.

Morgan did not file a motion to reconsider sentence as required by La.C.Cr.P. art. 881.1. He made a general objection after sentencing and noticed his intent to appeal, but he did not provide specific grounds for his objection. The failure to file a motion to reconsider sentence, or to state specific grounds upon |7which the motion is based, limits a defendant to a review of his sentence for constitutional excessiveness only.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice.

A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. The appellate court shall not set aside a sentence for exeessiveness if the record supports the sentence imposed. In reviewing a trial court’s sentencing discretion, three factors are considered: 1) the nature of the crime; 2) the nature and background of the offender; and 3) the sentence imposed for similar crimes by the same court and other courts.

Morgan was found to be a third felony offender with an underlying conviction for forcible rape. His prior convictions were for distribution of cocaine and unauthorized use of an access card. As such, he was subject to a sentencing range of 26.6 years to 80 years. La. R.S. 15:529.1 A(l)(b)(i); R.S. 14:42.1. Morgan was sentenced under the multiple bill statute to imprisonment at hard labor for 40 years, with the first two years to be served without benefit of parole, [¿probation, or suspension of sentence, and with the remainder of the sentence to be served without benefit of probation or suspension of sentence.

In State v. Rasberry, 564 So.2d 740 (La.App. 2 Cir.1990), the court upheld a 40-year sentence, with only the first two years imposed without benefit of probation, parole, or suspension of sentence, where a father was convicted of the forcible rape of his eleven-year-old daughter. The father had allegedly begun molesting his daughter when she was nine, and it continued at the rate of two or three times per week until he was arrested. He had no prior criminal history. In State v. Charles, 626 So.2d 404 (La.App. 4 Cir.1993), the Court upheld two 40-year sentences for forcible rape (one as second-felony habitual offender), with the first two years of each to be served without benefit of probation, parole, or suspension of sentence, along with a maximum 20-year sentence for attempted forcible rape, with all three sentences to be served consecutively, where the victim was the thirteen-year-old daughter of the defendant’s girlfriend. In State v. Jackson, 597 So.2d 1188 (La.App. 5 Cir.1992), this Court upheld a 40-year sentence for forcible rape, 20 years of which was to be served without benefit of probation, parole, or suspension of sentence, where the victim was a fourteen-year-old female and the defendant, a first time offender, was an adult. In State v. Carter, 04-482 (La.App. 5 Cir. 10/26/04), 888 So.2d 928, 939, this Court found that the enhanced habitual offender sentence of 37 years for forcible rape (as a second felony offender) was not constitutionally excessive, noting that the sentence was mid-range, defendant was exposed to a sentencing range of 20 to 80 years for the offense, and the sentence was supported by the record and defendant’s criminal history.

In the instant case, we find that the judge did not abuse his discretion by imposing the 40-year enhanced sentence in connection with Morgan’s forcible rape Iflconviction. The sentence was at the low end of the sentencing range, and he could have been sentenced to a maximum term of imprisonment of 80 years under the multiple bill statute. We note that the rape of one’s underage daughter is among the most serious violations of the crime of forcible rape and, based solely on the nature of that offense, a maximum sentence could have been appropriately imposed.

In an abundance of caution, we review the sentence on Count 2, aggravated incest.

Morgan was also found to be a third felony offender with an underlying conviction for aggravated incest. As was stated previously, his prior convictions were for distribution of cocaine and unauthorized use of an access card. Therefore, at the time he committed the offense, he was subject to a sentencing range of 13.3 years to 40 years. La. R.S. 15:529.1 A(l)(b)(i); R.S. 14:78.1. The judge sentenced defendant to imprisonment at hard labor for 15 years without benefit of probation or suspension of sentence.

In State v. Guidroz, 98-377 (La.App. 5 Cir.10/14/98), 721 So.2d 480, the defendant was convicted of aggravated incest for sexually abusing his young biological daughter over a two to three-year period. That defendant was also a first-time offender. We held that the maximum 20-year sentence was not excessive, referring to other similar cases in which 15 to 20-year sentences were imposed.

In the instant case, the jurisprudence supports the sentence imposed. The judge did not abuse his discretion by imposing the 15-year enhanced sentence in 1 ^connection with Morgan’s aggravated incest conviction. The sentence was at the very low end of the sentencing range, and the offense against his own biological daughter over a period of years is particularly offensive and disturbing.

This assignment of error is without merit.

ANDERS BRIEF

Under the procedure set forth in State v. Benjamin, appointed appellate 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, counsel requests to withdraw as counsel of record. The State concurs with appellate counsel’s assessment that there are no non-frivolous issues for appeal.

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds his case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by ‘“a brief referring to anything in the record that might arguably support the appeal’ ” so as to provide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability” and to assist the reviewing court “in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.”

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 Supreme Court explained that an Anders brief must | n 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 Anders, 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 and 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 appellate counsel.

Morgan’s appellate counsel asserts that, after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Appellate counsel contends that there are no pre-trial rulings or trial issues presented by this present appeal, noting that this is Morgan’s fifth appeal following a remand for resentencing by this Court. Appellate counsel correctly asserts that the conviction and sentence on Count 2 has been affirmed and, therefore, the trial court’s actions with respect to the remand for resentencing on Count 1 is the only ruling at issue. She states that this Court has considered and rejected Morgan’s argument that the trial court erred by imposing consecutive sentences and has rejected his argument that the sentence is excessive. Appellate counsel maintains that because the 112resentencing was done in conformity with law, there are no non-frivolous issues left to argue, and she is compelled to move to withdraw.

With respect to the sentence on Count 1, appellate counsel states that the trial court sentenced defendant to the same 40-year term which it had previously imposed. She argues that, because the sentence was imposed under the multiple bill statute, the trial court correctly ordered that it be served without benefit of probation or suspension of sentence. Appellate counsel contended that, because the penalty for the underlying charge required that at least the first two years of the sentence be imposed without the benefit of probation, parole, or suspension of sentence, the trial court correctly directed that the first two years of the sentence be served with those restrictions. Lastly, she stated that the trial court informed defendant of the time delays for filing post-conviction relief and for taking an appeal. As such, appellate counsel contends that there do not appear to be any non-frivolous issues available for appeal. Nonetheless, she requested an error patent review.

Appellate counsel has filed a motion to withdraw as attorney of record which states that she notified appellant of the filing of this motion and that she has advised Morgan of his right to file a pro se brief in this appeal. Additionally, this Court sent Morgan a letter by certified mail informing him that an Anders brief had been filed and that he had until July 16, 2010 to file a pro se supplemental brief. Morgan filed a pro se supplemental brief on July 26, 2010.

An independent review of the appellate record supports counsel’s assertion that there are no non-frivolous issues to be raised on appeal. The trial court | isresentenced Morgan in accordance with the remand previously issued. As demonstrated above, the sentences present no appealable issues.

Having found that appellate counsel’s brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal and our independent review of the record supports counsel’s assertion, Morgan’s conviction and sentence are hereby affirmed and appellate counsel’s motion to withdraw as attorney of record is hereby granted.

Our error patent review reveals no errors patent that require correction.

For the foregoing reasons, the sentences are affirmed.

AFFIRMED

      . State v. Morgan, 09-694 (La.App. 5 Cir. 2/23/10), 34 So.3d 909, 910-12 (footnote and citation omitted).

      . State v. Morgan, 09-694 (La.App. 5 Cir. 2/23/10), 34 So.3d 909.

      . Id.

      . State v. Louis, 05-141 (La.App. 5 Cir. 7/26/05), 910 So.2d 464.

      . State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1.

      . State v. Lawson, 04-334 (La.App. 5 Cir. 9/28/04), 885 So.2d 618.

      . State v. Dorsey, 07-67 (La.App. 5 Cir. 5/29/07), 960 So.2d 1127.

      . State v. Pearson, 07-332 (La.App. 5 Cir. 12/27/07), 975 So.2d 646.

      . Id.

      . See, State v. Childs, 466 So.2d 1363 (La.App. 3d Cir.1985); State v. Rasberry, 564 So.2d 740 (La.App. 2 Cir.1990).

      . In Guidroz, we referenced State v. Anderson, 95-1688 (La.App. 3d Cir.5/8/96), 677 So.2d 480; State v. Rubalcava, 28,325 (La.App.2d Cir.5/8/96), 674 So.2d 1035; State v. Orgeron, 620 So.2d 312 (La.App. 5 Cir.1993); State v. Downs, 30,348 (La.App.2d Cir.1/21/98), 705 So.2d 1277, 1279.

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

      . McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

      . State v. Jyles, supra.

      . State v. Jyles, supra.

      . State v. Bradford, 95-929 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108.

      . Id.

      . See, e.g., State v. Yanes, 09-929 (La.App. 5 Cir. 4/27/10), 40 So.3d 245.