author: WELCH, J. CARTER, C.J., GUIDRY, J., GAIDRY, J.,

text:
    ST. TAMMANY PARISH HOSPITAL v. TRINITY MARINE PRODUCTS, INC. and Ace American Insurance Company.
    No. 2010 CA 1481.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 16, 2012.

      R. Bray Williams, Natchitoches, LA, for Plaintiff-Appellant St. Tammany Parish Hospital.
    Suzette M. Tagesen, Metairie, LA, for Defendants-Appellees, Trinity Marine Products, Inc. and Ace American Ins. Co.
    Before CARTER, C.J., WHIPPLE, PARRO, KUHN, GUIDRY, PETTIGREW, GAIDRY, McDONALD, McClendon, hughes, welch, and HIGGINBOTHAM, JJ.
   WELCH, J.

lain this workers’ compensation case, St. Tammany Parish Hospital (“the hospital”), a health care provider, appeals a judgment in favor of defendants Trinity Marine Products, Inc. (“Trinity”) and Ace American Insurance Company (“Ace”), Trinity’s workers’ compensation insurer (collectively referred to as “the employer”), sustaining a peremptory exception raising the objection of prescription as to the hospital’s claim for penalties and attorney fees. We reverse and remand for further proceedings.

FACTUAL AND PROCEDURAL HISTORY

The underlying facts of this case are undisputed. On July 18, 2008, the hospital provided medical treatment to Adam Bonin, an injured employee of Trinity. On September 24, 2008, the employer issued a check to the hospital for the payment of those services; however, the payment was less than the amount billed by the hospital. Therefore, on November 18, 2009, the hospital filed a disputed claim for compensation due to the “[ijmproper and/or late payment of medical bills” by the employer. Additionally, the hospital asserted a claim against the employer for penalties and attorney fees pursuant to La. R.S. 23:1201(F)(4).

The employer filed a peremptory exception raising the objection of prescription as to the claim for penalties and attorney fees. The employer claimed that under this court’s opinion in Craig v. Bantek West, Inc., 2003-2757 (La.App. 1st Cir.9/17/04), 885 So.2d 1234, writ denied. 2004-2995 (La.3/18/05), 896 |3So.2d 1004, the one-year liberative prescription period set forth in La. C.C. art. 3492 for delictual actions was applicable to all claims for penalties and attorney fees under La. R.S. 23:1201(F). Since the hospital’s disputed claim for compensation was filed on November 18, 2009 — more than one year after the underpayment was made on September 24, 2008 — the employer claimed that the hospital’s claim for penalties and attorney fees had prescribed. The workers’ compensation judge (“WCJ”) agreed with the employer, and, relying on Craig, sustained the objection of prescription as to the hospital’s claim for penalties and attorney fees, even though the hospital’s underlying claim for the payment of its fee (which was subject to a three-year libera-tive prescription period under La. R.S. 23:1209(0) had not prescribed. After the peremptory exception raising the objection of prescription was sustained, the employer tendered to the hospital the amount of the disputed underpayment ($28.54), plus interest thereon ($2.32). Thereafter, the WCJ dismissed the hospital’s claim, and the hospital appealed.

On appeal, the hospital contends that the WCJ erred in determining that its claim for penalties and attorney fees had prescribed. The hospital argues that this court’s decision in Craig is distinguishable from the present case because Craig did not involve a claim by a health care provider for the payment or underpayment of its fee and did not discuss or interpret La. R.S. 23:1201 (F)(4), which is the basis of the claim for penalties and attorney fees. Additionally, the hospital claims that regardless of whether the applicable liberative prescription period for claims for penalties and attorney fees is one year or three years, under the plain language of La. R.S. 23:1201(F)(4), a health care provider’s claim for penalties and attorney fees does not accrue until after the “health care provider prevails on a claim for payment of his fee.” The hospital further argues that since it had not yet prevailed on the claim for the payment of its fee, its claim for penalties and attorney fees had |4not accrued and could not be prescribed.

STANDARD OF REVIEW

Generally, the factual findings of a trial court (or of a WCJ) on a peremptory exception raising the objection of prescription, such as the date on which prescription begins to run, is reviewed on appeal under the manifest error/clearly wrong standard of review. See Gilmore v. Whited, 2008-1808 (La.App. 1st Cir.3/31/09), 9 So.3d 296, 299; Dean v. Southmark Const., 2003-1051 (La.7/6/04), 879 So.2d 112, 117. However, in this case, the issue of whether the hospital’s claim for penalties and attorney fees under La. R.S. 23:1201(F)(4) was prescribed involves the proper application and interpretation of statutes. The proper application and interpretation of a statute is a question of law. Gilmore, 9 So.3d at 299; Cleco Evangeline, L.L.C. v. Louisiana Tax Com’n, 2001-2162 (La.4/3/02), 813 So.2d 351, 353. Questions of law are reviewed de novo, with the judgment rendered on the record, without deference to the legal conclusions of the tribunal below. Holly & Smith Architects, Inc. v. St. Helena Congregate Facility, Inc., 2006-0582 (La.11/29/06), 943 So.2d 1037, 1045. Therefore, on review, the issue before this court is the legal correctness of the WCJ’s determination that the hospital’s claim for penalties and attorney fees pursuant to La. R.S. 23:1201(F)(4) had prescribed.

LAW AND DISCUSSION

Generally, the prescriptive period applicable to claims for workers’ compensation benefits is set forth in La. R.S. 23:1209. However, this statute |sdoes not reference the applicable prescriptive period with regard to claims for penalties and attorney fees arising out of the failure to pay workers’ compensation benefits pursuant to La. R.S. 23:1201(F).

Louisiana Revised Statutes 2S:1201(F) provides that the failure to pay compensation or medical benefits as required in La. R.S. 23:1201 shall result in the assessment of a penalty, together with reasonable attorney fees for each disputed claim. Under La. R.S. 23:1201(F)(1), “[s]uch penalty and attorney fees shall be assessed against either the employer or the insurer, depending upon fault.” The health care provider’s claim for penalties and attorney fees is set forth in La. R.S. |fi23:1201(F)(4), and provides:

In the event that the health care provider prevails on a claim for payment of his fee, penalties as provided in this Section and reasonable attorney fees based upon actual hours worked may be awarded and paid directly to the health care provider. This Subsection shall not be construed to provide for recovery of more than one penalty or attorney fee.

In Craig, a worker who was injured on December 14, 1999, filed a disputed claim for compensation on April 17, 2003, alleging that he was entitled to multiple penalties under La. R.S. 23:1201(F)(1) for his employer’s alleged misconduct or violations of workers’ compensation statutes that occurred on December 14, 1999, September 24, 2000, April 6, 2001, and February 6, 2003. Craig, 885 So.2d at 1235. However, the injured workers’ disputed claim for compensation did not make a claim for any underlying compensation benefits. The employer filed a peremptory exception raising the objection of prescription, claiming that its alleged conduct giving rise to the injured worker’s claims for penalties had occurred more than one year prior to the filing of the action. Craig, 885 So.2d at 1235. The WCJ sustained the objection as to the claims for penalties and attorney fees due to the alleged misconduct on December 14, 1999, September 24, 2000, and April 6, 2001, and the injured worker appealed. Craig, 885 So.2d at 1236.

On appeal, this court determined that neither La. R.S. 23:1209 nor La. R.S. 23:1201(F)(1) sets forth when a worker’s claim for attorney fees and penalties arises or accrues and does not reference a specific prescriptive period for such claims, and reasoned that the injured worker’s claim for penalties and attorney fees necessitated an inquiry into fault and a determination of whether the non-paying party’s actions negated good faith and just cause. Craig, 885 So.2d at 1237 and |71240-41. This court then determined that the injured worker’s fault-based claim for penalties and attorney fees was delic-tual in nature, and thus, the one-year li-berative prescription period for delictual actions set forth in La. C.C. art. 3492 was applicable. Craig, 885 So.2d at 1287. Since the injured worker’s disputed claim for compensation was filed on April 17, 2003, more than one year from the date that the employer’s alleged misconduct occurred (ie., December 14, 1999, September 24, 2000, and April 6, 2001), this court found no error in the WCJ’s determination that the injured worker’s claim for penalties and attorney fees had prescribed. Craig, 885 So.2d at 1241.

We find that Craig is distinguishable from the instant case. In Craig, this court was dealing with the issue of prescription on a worker’s (or employee’s) claim for penalties and attorney fees under La. R.S. 23:1201(F)(1), which did not accompany an original or underlying claim for benefits. In this case, the issue with which we are faced concerns a health care provider’s claim for penalties and attorney fees under La. R.S. 23:1201(F)(4), which was filed contemporaneously with an underlying claim for the underpayment of its fee.

The applicable statute herein, La. R.S. 23:1201(F)(4), is substantially different from the statute at issue in Craig, La. R.S. 23:1201(F)(1), which provides that penalties and attorney fees shall be assessed if the employer or its insurer fails to provide a compensation payment or medical benefit to the employee or fails to consent to the employee’s request to select a treating physician, with the penalty assessed and attorney fee assessed “depending upon fault.” As such, in Craig, this court correctly reasoned that the injured worker’s claim for penalties and attorney fees was fault-based and necessitated an inquiry into fault and a determination of whether the non-paying party’s actions negated good faith and just cause. However, in this case, the statute at issue, La. R.S. 23:1201(F)(4), deals solely with 18claims for penalties and attorney fees by health care providers due to an employer’s (or insurer’s) failure to pay the health care provider’s fee, and provides that the health care provider may be awarded penalties and attorney fees “[i]n the event that [it] prevails on a claim for payment of [its] fee.” Thus, this court’s holding in Craig — that the one-year prescriptive period set forth in La. C.C. art. 3492 is applicable to an injured worker’s claim for penalties and attorney fees under La. R.S. 23:1201(F)(1) that does not accompany an original or underlying claim for benefits — is not applicable to the resolution of the issue before us this case.

Thus, we must first determine when the health care provider’s claim for penalties and attorney fees accrues and the applicable prescriptive period for such claims. It is well settled that prescription cannot run against a cause of action or claim until it has accrued. See Reggio v. E.T.I., 2007-1433 (La.12/12/08), 15 So.3d 951, 957. The hospital’s claim is based on La. R.S. 23:1201(F)(4), which provides for an award of penalties and attorney fees to a health care provider in the event that it prevails on a claim for the payment of its fee. But it is the employer’s (or the insurer’s) failure to provide the payment of the medical benefit within the time period required for the payment of that medical benefit under La. R.S. 23:1201 that triggers the health care provider’s entitlement to a penalty. See La. R.S. 23:1201(F). Accordingly, we must conclude this is when the health care provider’s claim for penalties and attorney fees arises or accrues.

With regard to the applicable prescriptive period, in a series of cases factually similar to the case before us, our brethren in the Fourth Circuit Court of Appeal have determined that when a health care provider makes a claim for penalties and attorney fees under La. R.S. 23:1201(F)(4), which accompanies a claim for the payment of his fee (medical benefits), if the underlying claim has not 19prescribed, then neither has the claim for penalties and attorney fees. See Touro Infirmary v. Fisk Corp., 2010-0105 (La.App. 4th Cir.7/28/10), 44 So.3d 874, 876; Touro Infirmary v. Wm. B. Reily & Co., Inc., 2010-0074 (La.App. 4th Cir.7/28/10), 44 So.3d 867, 869; Touro Infirmary v. Emeril’s Homebase, L.L.C., 2010-0104 (La.App. 4th Cir.7/28/10), 44 So.3d 871, 873; Touro Infirmary (Goodwin) v. Silocaf of New Orleans, 2010-0072 (La.App. 4th Cir.7/28/10), 44 So.3d 862, 864; Touro Infirmary v. Lowes New Orleans Hotel Corp., 2010-0103 (La.App. 4th Cir.7/28/10), 44 So.3d 869, 871; and Tulane University Hosp. & Clinic v. Lockheed Martin Corp., 2011-0179 (La.App. 4th Cir.6/29/11), 70 So.3d 988, 991. But cf. Central Louisiana Ambulatory Surgical Center, Inc. v. Payless Shoesource, Inc., 2010-0086 (La.App. 3rd Cir.7/28/10) 46 So.3d 689, 697, abrogated on other grounds by Agilus Health v. Ac-cor Lodging North America, 2010-0800 (La.l 1/30/10), 52 So.3d 68; Musculoskele-tal Institute of Louisiana, APMC v. McDonald’s Corp., 45,629 (La.App. 2nd Cir.9/22/10), 48 So.3d 359, 366, abrogated on other grounds by Agilus Health v. Accor Lodging North America, 52 So.3d 68 (both providing that when a health care provider’s claim for penalties and attorney fees accompanies an underlying claim for benefits, if the underlying claim for benefits has not prescribed, then neither has the claim for penalties and attorney fees, but concluding that the health care provider’s claim for penalties and attorney fees does not arise or accrue until the health care | inprovider’s underlying claim for payment is adjudicated in its favor).

We agree with the rationale of the Fourth Gircuit — if a health care provider makes a claim for penalties and attorney fees under La. R.S. 23:1201(F)(4), which accompanies a claim for the payment of his fee, if the underlying claim has not prescribed, then neither has the claim for penalties and attorney fees. Thus, the applicable prescriptive period for a health care provider’s claim for penalties and attorney fees is the same prescriptive period that is applicable to its underlying claim for medical benefits. In accord St. Tammany Parish Hosp. v. Ace American Ins. Co., 2010-1480 (La.App. 1st Cir.6/16/11), 81 So.3d 3.

As previously set forth, the applicable prescriptive period for claims for medical benefits is set forth in La. R.S. 23:1209(C), which provides:

All claims for medical benefits payable pursuant to R.S. 23:1203 shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed with the office as provided in this Chapter. Where such payments have been made in any case, this limitation shall not take effect until the expiration of three years from the time of making the last payment of medical benefits.

Herein, the employer had made a payment of medical benefits to the hospital; however, it was not the full amount billed by the hospital. Accordingly, under La. R.S. 23:1209(0, the hospital’s claim for the underpayment of medical benefits would not prescribe “until the expiration of three years from the time of making the last payment of medical benefits.” The uncon-tradicted evidence established that the employer’s “last payment” was made to the hospital on September 24, 2008. Thus, the three-year prescriptive period provided under La. R.S. 28:1209(0 for the underlying claim for medical payments and the claim for ^penalties and attorney fees under La. R.S. 23:1201(F)(4) began to accrue when the employer made the underpayment on September 24, 2008. The hospital filed its claim for the underpayment of its fee and for penalties and attorney fees on November 18, 2009, approximately one year and one month after the date of the last payment, and well within the three-year prescriptive period.

Since the hospital’s claim for penalties and attorney fees accompanied its underlying or original claim for the underpayment of its fee and since its underlying claim for the payment of its fee had not prescribed, the hospital’s claim for penalties and attorney fees also had not prescribed. Accordingly, the WCJ erred in sustaining the employer’s peremptory exception raising the objection of prescription as to the claim for penalties and attorney fees, and its judgment in this regard is reversed.

CONCLUSION

The judgment of the WCJ sustaining the peremptory exception raising the objection of prescription filed by Trinity Marine Products, Inc. and Ace American Insurance Company as to St. Tammany Parish Hospital’s claim for penalties and attorney fees and dismissing those claims is reversed. This matter is remanded to the Officer of Workers’ Compensation for further proceedings.

All costs of this appeal are assessed to Trinity Marine Products, Inc. and Ace American Insurance Company.

REVERSED AND REMANDED.

CARTER C.J., concurs in the results with reasons.

PARRO, J., concurs in the result for the reasons set forth in Judge CARTER’S concurring opinion.

KUHN, J., concurs for the reasons assigned by Chief Judge CARTER.

McCLENDON, J., concurs in the result for the reasons assigned by Judge CARTER in his concurrence.

HUGHES, J., concurs for the reasons assigned by CARTER, C.J.

GUIDRY, J., dissents and assigns reasons.

GAIDRY, J., dissents and assigns reasons.

CARTER, C.J.,

concurring in the result.

_jjl respectfully agree with the majority’s decision to reverse the trial court’s judgment, but disagree with the majority’s rationale for reaching that conclusion.

The claim for penalties and attorney fees is delictual in nature, and since Louisiana Revised Statutes section 23:1201 F does not reference a specific prescriptive period for claims for penalties and attorney fees, the one-year prescriptive period for delictual actions set forth in Louisiana Civil Code article 3492 should apply.

Louisiana Civil Code article 3492 provides that the prescriptive period commences the date the injury or damage is sustained. However, it is well settled that prescription cannot run against a cause of action that has not accrued, or while the cause of action cannot be exercised. See Reggio v. E.T.I., 07-1433 (La.12/12/08), 15 So.3d 951, 957; Bailey v. Khoury, 04-0620 (La.1/20/05), 891 So.2d 1268, 1275; Wilkinson v. Wilkinson, 323 So.2d 120, 125 (La. 1975). Louisiana Revised Statutes section 23:1201 F(4), which provides the health care provider with its cause of action, specifies that the health care provider may only be awarded penalties and attorney fees “/%]n the event that [it] prevails on a claim for payment of his fee.” (Emphasis added.) Under the plain language of Louisiana Revised Statutes section 23:1201 F(4), the health care provider’s claim for penalties and ^attorney fees does not accrue until the health care provider has prevailed on its claim for payment of its fee.

In this case, the hospital’s cause of action for penalties and attorney fees had not yet accrued when it filed suit, and the prescriptive period had not yet begun to run. For this reason, the WCJ erred in sustaining the peremptory exception raising the objection of prescription.

GUIDRY, J.,

dissenting.

hi respectfully disagree with the majority’s determination that the prescriptive period applicable to a health care provider’s claim for penalties and attorney’s fees under La. R.S. 23:1201(F)(4) is the same as the prescriptive period applicable to the provider’s underlying claim for medical benefits.

In Craig v. Bantek West, Inc., 03-2757 (La.App. 1st Cir.9/17/04), 885 So.2d 1234, unit denied, 04-2995 (La.3/18/05), 896 So.2d 1004, this Court held that a claim for penalties and attorney’s fees under La. R.S. 23:1201(F) is delictual in nature and therefore, the one-year prescriptive period set forth in La. C.C. art. 3492 applies to such claim. From my review of the instant case, I do not find any basis to deviate from this court’s previous holding. Accordingly, I respectfully dissent from the majority’s opinion.

GAIDRY, J.,

dissents with reasons.

hi respectfully dissent with the opinion of this case in the following respects:

The sole contested issue on this appeal is whether the prescriptive period is one or three years on a Title 23 claim for penalties and attorney’s fees relating to a health care provider’s claim of nonpayment or underpayment for services rendered. While La.R.S. 23:1201(F)(1) allows penalties and attorney’s fees to be assessed against an employer or insurer, “depending on fault,” prescription relating to claims for nonpayment is found in La.R.S. 23:1209. This statute, however, does not consider penalties and attorney’s fees; it only considers the payment of the benefits themselves. For this reason we should apply the holding of Craig v. Bantek West, Inc., 2003-2757 (La.App. 1 Cir. 9/17/04), 885 So.2d 1234, writ denied, 2004-2995 (La.3/18/05), 896 So.2d 1004, to the facts of this case and require that a claim for penalties and attorney’s fees be filed within one year of the nonpayment.

|2The statutes providing for penalties and attorney fees are penal in nature and must be strictly construed. Penalties should be enforced only in those instances in which facts clearly negate good faith and just cause in connection with refusal of allowance of compensation. Id., at p. 5. While 23:1201(F)(1) states attorneys fees and penalties can be awarded “based on fault,” 23:1201(F)(2) goes on to say that penalties and attorney’s fees cannot be awarded “if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.” The reasoning of Craig goes hand in hand with the statute. Delictual fault is the intentional or negligent causing of damages. Touro Infirmary v. Sizeler Architects, 2004-0634, p. 7 (La.App. 4 Cir. 3/23/05), 900 So.2d 200, 204. A claim for penalties and attorney fees necessarily implies wrongful conduct for inaction and involves an inquiry into fault as provided in La. R.S. 23:1201(F)(1). Craig v. Bantek West, Inc., 2003-2757, p. 5 (La.App. 1 Cir. 9/17/04), 885 So.2d 1234, 1237. Therefore, when St. Tammany Parish Hospital (hereinafter “the Hospital”) filed its claim for penalties and attorney’s fees against the defendants, it had essentially made a claim that the defendants acted in bad faith by paying what the Hospital alleges is less than the true amount owed. The inquiry, then, is not simply about what is owed; rather, the claim raises the inquiry into whether the defendants’ actions constitute bad faith.

“Delictual actions are subject to a libera-tive prescription period of one year. This prescription commences to run from the day the injury or damage is sustained.” La.C.C. Article 3492. Footnote (b) of that Article states that the one year prescription applies to all delictual actions, and it further explains that “the notion of delictual liability includes: intentional misconduct, negligence, abuse of right, and liability without negligence.” |sGoing back to La.R.S. 23:1201(F), the actions which can trigger the claim for penalties and attorney’s fees are “[fjailure to provide payment ... or failure to consent to the employee’s request a treating physician ...” In this case, failure to provide payment is the more applicable of the two. Such a failure to pay, if done in bad faith, could indeed be cast as intentional misconduct or negligence.

The majority distinguishes Craig on the basis that the plaintiff was the employee, whereas the plaintiff in this case is the health care provider. That factual difference, however, has no bearing on the applicability of Art. 3492 to a delictual action. No matter the parties, no matter the factual circumstances, as long as a delictual claim is made, the prescriptive period of Art. 3492 will apply. The majority is essentially granting to a health care provider a right greater than that of the employee: a three year prescriptive period to file a claim for penalties and attorney’s fees. That result is neither logical nor equitable.

On the point of equity, when no rule for a particular situation can be derived from legislation, courts are bound to proceed according to the notion of equity, which means to decide on the side of justice and reason. La.C.C. Article 4. In this case, the defendants reached an agreement with the Hospital and tendered the amount of the payment in dispute. How is it equitable, then, that the Hospital can accept what it considered adequate compensation from the employer, but three years later be allowed to sue the employer for the unpaid benefits and the penalties and attorney’s fees? If the defendants did indeed underpay in bad faith, I believe that would have been readily apparent from the time the underpayment was first tendered and a one year prescriptive period would have been sufficient for the Hospital. A three year prescriptive period for penalties and attorney’s fees would not 14benefit the Hospital in any way, but it would definitely harm the defendants’ ability to defend against the claim, as it becomes more difficult to preserve evidence and witness testimony over such a period of time. One of the most fundamental purposes of a prescriptive period is to protect the defendant from stale claims and from the loss or non-preservation of relevant proof. Findley v. City of Baton Rouge, 570 So.2d 1168, 1170 CLa.1990).

La.R.S. 28:1209 does not spell out a prescriptive period for the filing of claims for penalties and attorney’s fees, but it is not necessary. La.C.C. Article 3492 answers the question at the center of this dispute. It is neither necessary for this court to “re-invent the wheel,” so to speak, when Craig has already addressed this issue. I believe the proper prescriptive period for filing claims for penalties and attorney’s fees under the provisions of Title 28 is one year, and I respectfully disagree with the majority opinion.

      . A health care provider's claim against the employer for underpayment of compensation benefits falls within the exclusive jurisdiction of the Office of Workers’ Compensation. See Baton Rouge General Medical Center v. Liberty Mut. Ins. Co., 2009-0316 (La.App. 1st Cir.9/11/09), 21 So.3d 990, 992, writ denied, 2009-2197 (La. 12/18/09), 23 So.3d 946; Millervillage Chiropractic Center v. East Baton Rouge Parish School Bd., 2008-1350 (La.App. 1st Cir. 12/23/08), 4 So.3d 846, 848. Moreover, the hospital specifically alleged that it was "not a PPO related claim.” See Broussard Physical Therapy v. Family Dollar Stores, Inc., 2008-1013 (La.12/2/08), 5 So.3d 812, 817.

      . The employer did not challenge the timeliness of the claim for the improper payment (or underpayment) of the medical bills.

      . Louisiana Revised Statutes 23:1209 provides:
      A.(1) In case of personal injury, including death resulting therefrom, all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed as provided in Subsection B of this Section and in this Chapter.
      (2) Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of benefits payable pursuant to R.S. 23:1221(3) this limitation shall not take effect until three years from the time of making the last payment of benefits pursuant to R.S. 23:1221(1), (2), (3), or (4).
      (3) When the injury does not result at the time of or develop immediately after the accident, the limitation shall not take effect until expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.
      B. Any claim may be filed with the director, office of workers’ compensation, by delivery or by mail addressed to the office of workers’ compensation. The filing of such claims shall be deemed timely when the claim is mailed on or before the prescription date of the claim. If the claim is received by mail on the first legal day following the expiration of the due date, there shall be a rebuttable presumption that the claim was timely filed. In all cases where the presumption does not apply, the timeliness of the mailing shall be shown only by an official United States postmark or by official receipt or certificate from the United States Postal Service made at the time of mailing which indicates the date thereof.
      C. All claims for medical benefits payable pursuant to R.S. 23:1203 shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed with the office as provided in this Chapter. Where such payments have been made in any case, this limitation shall not take effect until the expiration of three years from the time of making the last payment of medical benefits.
      D. When a petition for compensation has been initiated as provided in R.S. 23:1310.3, unless the claimant shall in good faith request a hearing and final determination thereon within five years from the date the petition is initiated, that claim shall be barred as the basis of any claim for compensation under the Worker’s Compensation Act and shall be dismissed by the office for want of prosecution, which action shall operate as a final adjudication of the right to claim compensation thereunder.

      . The WCJ overruled the objection of prescription as to the claim for penalties and attorney fees due to the employer’s alleged misconduct on February 6, 2003. However, this claim was subsequently dismissed on a motion for summary judgment, which was affirmed by this court in a separate appeal, Craig v. Bantek West, Inc., 2004-0229 (La. App. 1st Cir.9/17/04), 885 So.2d 1241.

      . See also Rave v. Wampold Companies, 2006-0978 (La.App. 3rd Cir. 12/6/06), 944 So.2d 847, 855; Trahan v. City of Crowley, 2007-0266 (La.App. 3rd Cir. 10/3/07), 967 So.2d 557, 560, writs denied. 2007-2462, 2007-2741 (La.2/15/08), 976 So.2d 185 and 187; and Farley v. City of New Orleans, 2011-0301 (La. App. 4th Cir.5/20/11), 66 So.3d 1115, 1118, writ denied, 2011-1265 .^9/23/11), 69 So.3d 1163 (each providing that an employee’s claim for penalties and attorney fees is not prescribed, when such claims are accompanied by an underlying claim for benefits that has not prescribed). But cf. Seidl v. Zatarains, Inc., 2005-0780 (La.App. 5th Cir.3/28/06), 927 So.2d 557, 561 (concluding that an employee’s claim for penalties and attorney fees had prescribed based on this court’s holding in Craig, even though the claim for penalties and attorney fees accompanied an underlying claim for benefits that had not prescribed).

      . An application for rehearing in St. Tammany Parish Hosp. was denied en banc on this date. That application for rehearing was considered in conjunction with our decision herein, St. Tammany Parish Hosp. v. Trinity Marine Products, Inc., 2010-1481 (La.App. 1st Cir.2/16/12), 91 So.3d 985.

      . The employer has advanced the argument that this result allows the health care provider greater rights to penalties and attorney fees than are afforded to an injured worker. However, as set forth in the majority opinion, upon appropriate proof by the injured worker, penalties and attorney fees are mandatory, whereas the health care provider’s claim for penalties and attorney fees is discretionary. See La.Rev.Stat. Ann. §§ 23:1201 F(l) and 23:1201 F(4). Thus, I disagree that the health care provider is afforded greater rights than the injured worker.


source: Caselaw Access Project

author: BROWN, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. John G. CROSS, Appellant.
    No. 46,996-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 29, 2012.

      Carey J. Ellis, III, Louisiana Appellate Project, for Appellant.
    W. Mark McKee, District Attorney, Charles Leslie Cook, Assistant District Attorney, for Appellee.
    Before BROWN, DREW, and SEXTON (pro tempore), JJ.
   BROWN, Chief Judge.

11 Defendant, John G. Cross, was convicted by a unanimous six-person jury of arson with intent to defraud, a violation of La. R.S. 14:53. Defendant was adjudicated a second-felony habitual offender and sentenced to 10 years’ imprisonment at hard labor. He was also ordered to pay a $2,000 fine and make restitution to the victim in the amounts of $1,355 and $750. Defendant now appeals. As the $2,000 fine was not authorized under La. R.S. 15:529.1, defendant’s sentence is amended to delete the fine. Otherwise, defendant’s conviction and sentence, as amended, are affirmed.

Facts

Defendant was arrested and charged with simple arson which caused damage in excess of $500, a violation of La. R.S. 14:52, for his actions on or about September 10, 2008. The bill of information was amended just before trial to charge Cross with arson with intent to defraud, a violation of La. R.S. 14:53.

James Carroll testified that in September 2008, he and his wife lived at 1577 South Blankston Road in Caldwell Parish. The house and garage were protected by a security system that required either an entry code or a remote control for entry. The electrical panel for the home was in a closet located inside the garage.

Carroll had known defendant for over a year, beginning when defendant bought hay from Carroll, who owns a farm and sells hay to the public. Carroll talked with defendant and discovered that he was a carpenter by trade and also did handyman work. Defendant performed some work for Carroll.

| Jn September 2008, Carroll, who was an attorney, attended a seminar in Denver, Colorado. The seminar was from September 9 to 11. He arranged for his secretary to stay at his home at night to care for his dogs in the evenings and mornings. He asked defendant to resolve some plumbing problems at the home while he and his wife were in Colorado. Carroll said that there was a water leak between his tub and shower, and his tankless water heating system was not working efficiently.

After arriving in Denver, Carroll received a phone call from his secretary, Daidre Boulton, who related that Century-Tel had called to advise her that the Car-rolls’ home security system was not functioning. Ms. Boulton was told that the breaker needed to be flipped, ■ and she needed Carroll to tell her where the breaker box was located. Ms. Boulton called Carroll back to tell him that when she arrived at his home that evening, neither the security system nor the air conditioning was working. Carroll asked Ms. Boul-ton to have defendant look at both the air conditioning and the security system. They agreed that she would stay at her own house that night and return the next morning to tend to the dogs.

The next day defendant called Carroll to tell him that his house had been damaged by a power surge or struck by lightning. Defendant told Carroll that the electrical wires in the attic had gotten so hot that a fire had erupted. Carroll told defendant to do whatever was necessary to make the house safe. Defendant told him that the installed electrical panel was not of the grade and quality appropriate for the amount of electricity going into the house. Defendant said that he needed $750 to get started on replacing the |selectrical panel. Carroll had his brother get the money to defendant. Carroll’s dad spoke with defendant about the problems and then advised Carroll that he did not need to return early because the issues were being handled.

Upon Carroll’s return from Denver, defendant showed him the damage in the attic, where the electrical wires were split and charred. Defendant said this was where the fire occurred. Defendant also showed Carroll another spot in the attic where a stud had actually caught fire. The electrical panel that defendant had removed had also been burned and had been sprayed with some type of-silver paint. A new electrical box was already installed when Carroll returned, and defendant was in the process of hooking up the wires. Defendant said that the lightning must have hit the wires where they come into the house from the street.. Defendant said that the lightning degraded the electrical wires in the entire house, causing the air conditioning and security system to malfunction. Defendant advised that all the wires in the house should be replaced.

Carroll, had last observed the electrical box a few weeks before his trip when a hair dryer and curling iron had tripped the breaker. He did not see or smell anything that would indicate a problem with the electrical system. He last went into the attic in June or July of 2008, when Jeff Wyant, an electrician, had informed him that a bulb needed to be replaced.

Defendant also showed Carroll damage where the electricity comes out of the meter box and into the house. Defendant told him that the lightning probably hit his house and caused the damage because he did not [4have a lightning rod in place to ground the house. Defendant said that all the wiring in the house would have to be replaced at a cost of $20,000-$22,000.

Carroll shared the story of his house damage with his Sunday School class the next morning and David Wilson, a licensed contractor, approached Carroll after the class to say that the story did not sound right. Wilson brought his electrician, Jeff Wyant, to the house to view the damage. After viewing the damage, Wyant said that defendant’s opinion that lightning caused the damage made no sense. Wyant testified that he also examined the damaged breaker box and the damage to the outside of the house and suggested that Carroll call the state police and report defendant because the house had not been hit by lightning. Furthermore, Wilson and Wyant showed Carroll that he did have a lightning rod, and from its condition it had been there for a long time.

After Wilson and Wyant left, defendant returned to the Carroll home and again told Carroll that he did not have a lightning rod. When Carroll said that he was going to report the damage to the insurance company for payment, defendant told him not to because the insurance company would not be responsible for the damage if he did not have a lightning rod. When Carroll said that he still planned to report the damage to the insurance company, defendant said that he would install a new lightning rod before the insurance agent arrived for inspection. Carroll told defendant “no.”

At this point defendant told Carroll that he would rewire the house for whatever amount of money the insurance company paid him for the damage. Ijf the insurance company paid more than the $22,000 he said he would let Carroll keep it and if they paid less, that would be his charge.

Carroll confirmed that the only way to access the attic was by going through the secured garage. He also confirmed that the only people who could have had access to the house at that time were himself, his wife, his dad, his secretary and defendant.

Carroll paid $1,295 to David Wilson to have the electrical equipment repaired, $80 to CenturyTel to have the security connection re-established, and had to reimburse his brother for the $750 his brother had given to defendant.

Daidre Boulton, Carroll’s secretary, testified that she has been with his firm for six years. She sometimes house sits for the Carrolls when they are away and she cares for their animals. In September 2008, Carroll asked her to stay at his home while he and his wife were in Denver. He told her that defendant would be coming to the house for some work while they were out of town.

On the Tuesday that the Carrolls left, Ms. Boulton arrived at the Carrolls’ home early that evening after work. Defendant had already been there working. The air conditioning was not working and the house was hot. CenturyTel called to advise her that the house security system was not functioning properly and suggested that perhaps the breaker had flipped. Ms. Boulton called Carroll to find out where the breaker box was located and also to tell him that the air conditioning was out so she would not be |fiable to stay there. However, it turned out that no breakers were flipped and neither the air conditioning nor the security system could be restored.

On Wednesday, Ms. Boulton let defendant into the house before leaving for work. Later that day she delivered an envelope from John Carroll, her employer’s brother, to defendant. That evening, defendant showed her the burnt wiring and the meter downstairs, but she refused to go into the attic. Defendant told her that the meter was not grounded.

David Wilson, a general contractor with a commercial license, testified that in 2008 he had known Carroll about five years. Carroll had been told that his house had been struck by lightning, the house lacked a grounding rod, and the repairs would be costly. Wilson walked around the house and observed the attic and the electrical panel. He noticed that the damage to the electrical panel did not look the way it usually would if it had gotten hot from the inside. In the attic he saw that a roof brace was burned where many of the main electrical wires pass by it. The outsides of the wires were blackened, but upon further examination, Wilson noted that the wires were not damaged.

Wilson was uncomfortable with his findings, so he brought in his electrical subcontractor, Jeff Wyant, to review the damage. Wyant came to the same conclusion that Wilson did, that the damage did not reflect that the house had been hit by lightning.

Wilson said that electric companies will not hook up electricity to a new home or for a remodel if there is no grounding rod in place for 17protection. Carroll’s house had a grounding rod, properly installed and hooked up to the electrical system.

Wilson subcontracted the electrical repairs for Carroll’s house to Wyant. The cost to restore electricity to Carroll’s house was $1,295.

Jeff Wyant, a licensed electrician, testified that Wilson asked him to address an electrical problem at Carroll’s house. He saw that the prior electrical breaker box had been removed and sprayed with paint. Another electrical breaker box had been installed in its place, but was not yet hooked up.

Wyant’s examination of the previous breaker box revealed that the wires were cut and had burn marks on the outside of the plastic covering. Wyant said that the burns on the outside of the wire ruled out lightning or an electrical problem as the cause, because the damage was not consistent with those as sources. Lightning or an electrical surge would have left burns on the busbar, where the head load is located, heated the copper or aluminum electrical wires as it passed through, causing the outer plastic coating to melt from the inside and stick to the wires, and heated the grounding wire to the point of discoloration. No such damage had occurred there. Wyant believed that the damage was caused by a flame.

The damage to the meter also ruled out lightning or an electrical problem, as the damage there was also inconsistent with those causes. Wyant stated that the meter lugs would have shown damage from heating and the coating on the electrical wires would have melted off, exposing the interior wire. No such damage was seen there; instead, there was only |scharring on the outside of the plastic coating the wires, which Wyant said indicated that the damage was caused by an external flame or torch.

Wyant found the same damage to the electrical wires in the attic. There was evidence that heat had been applied to the surrounding insulation. The only smell he detected was that of melting plastic. Wyant said that he had seen Carroll’s electrical system about a year before this electrical problem, and he did not see any of the current burning and scorching. Wyant said that the damage he observed was staged and not caused by lightning. Also, he said that Carroll did in fact have a grounding rod that was hooked up.

Lt. Rick Abbott, a Fire Marshall with the Louisiana State Police, was accepted by the trial court as an expert in arson investigation. His investigation revealed fire damage to the outside electrical meter base, the inside of the breaker box, the wiring in the attic and an attic support brace.

Abbott also found the evidence to be inconsistent with having been caused by lightning or an electrical surge. The meter showed no signs of charring or melting and instead was discolored in a way that Abbott said was caused by an open flame. The breaker box door was not damaged. He stated that the damage to the breaker wires and fuses was caused by an exterior flame being held up to those objects.

The pattern of an external heat source continued in the attic, where Abbott found sooty burns on a support stud. Abbott said that one could obtain similar results by holding a cigarette lighter to a piece of wood. Again, the damage was inconsistent with being caused by an interior heat | cisource, such as overheated copper wires, as this would have caused the outer plastic covering to melt from the inside. Instead, the evidence indicated that only exterior heat had been applied to the outside of the wires. Abbott said that the evidence indicated that the fire damage to Carroll’s electrical system was not caused by lightning or any other natural cause, and was not precipitated by an electrical fire. Abbott said that he found the grounding rod had been properly installed. He was unable to determine how long the damage had been there.

Abbott said that someone used an external flame source to actually set fire to these objects to the extent that they burned. He opined that this person intended to simulate an electrical malfunction which would cause the homeowner to think that the wiring malfunctioned. Abbott felt that defendant caused the damage with the intent to defraud Carroll because of defendant’s physical access to the damaged items and his claims that the damage was caused by lightning, when the evidence indicated otherwise.

The prosecution rested. Defendant did not testify and the only witness called by the defense was Dr. Eldredge Carroll, Jr., James Carroll’s father. Dr. Carroll testified that his son called and asked him to check on an electrical problem at his house. Defendant showed Dr. Carroll the electrical breaker box and the outside meter box. Dr. Carroll did not go into the attic, and said he did not remember defendant telling him that there was damage in the attic. Defendant told him that the breaker box had been hooked up incorrectly and a short occurred, which resulted in a fire in the breaker box. | inDefendant told him that had the problem not been caught, the house would have burned down within 24 hours.

Dr. Carroll said he was not surprised that there could be an electrical problem, because of prior problems discovered with the carpentry and roof. He felt that the subcontractors had been sloppy.

The six-person jury returned a unanimous verdict of guilty as charged of arson with intent to defraud. Defendant was adjudicated a second-felony habitual offender and sentenced to 10 years’ imprisonment at hard labor. The court also ordered defendant to pay a $2,000 fine plus costs, and restitution to Carroll in the amounts of $1,355 and $750. Defendant’s motion to reconsider sentence was heard and denied.

Discussion

Defendant was convicted of arson with the intent to defraud, which is the setting of fire to, or damaging by any explosive substance, any property, with intent to defraud. La. R.S. 14:53. Even slight damage to property, such as scorching, is sufficient to support a conviction for arson. State v. Smith, 43,291 (La.App.2d Cir.08/13/08), 988 So.2d 861. Therefore, the state had the burden to prove beyond a reasonable doubt two facts: (1) that defendant committed the act of arson on Carroll’s electrical system; and (2) that defendant committed such arson with the intent to defraud.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.02/22/06), 922 So.2d 517.

The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 99-0023 (La.01/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La. App.2d Cir.01/14/09), 2 So.3d 582, writ denied, 09-0372 (La.11/06/09), 21 So.3d 299.

Specific intent is that state of mind that exists when the circumstances indicate the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1). Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. La. R.S. 14:10(1); State v. Lindsey, 543 So.2d 886 (La.1989), cert. denied, 494 U.S. 1074, 110 S.Ct. 1796, 108 L.Ed.2d 798 (1990); State v. Davies, 35,783 (La.App.2d Cir.04/05/02), 813 So.2d 1262, writ denied, 02-1564 (La.05/09/03), 843 So.2d 389.

^Testimony revealed that defendant had developed a friendly business relationship with Carroll. Defendant had established himself with Carroll as a handyman, capable of dealing with complicated problems. When Carroll sought to have work done in his home while he was away, defendant relied on this, confidence to create the illusion of an electrical malfunction.

The' evidence shows that when Carroll left for Colorado there was no problem with the electrical, air' conditioning, or security systems. The problems with the air conditioning and security systems did not occur until after Carroll and his wife left the state and before Ms. Boulton arrived after work the first- day of her employer’s trip. Access to the garage, where both the electrical breaker box and the access to the attic were located, was protected by the arming of the security system prior to the Carrolls’ departure. Between that time and Ms. Boulton’s arrival on Tuesday, the only person known to be at the Carroll residence was defendant, who was supposed to be working on the tub leak and the water heating system. Ms. Boulton arrived to find that neither the air conditioning nor the security system worked.

Defendant told Carroll and Boulton that the electrical breaker box was insufficient to bear the house’s electrical load and because there was no grounding rod in place, an electrical surge or lightning had degraded all the electrical wires in the house. Defendant emphasized that the situation was very dangerous, that the house could have burned down, and that the breaker box and all the electrical wires in the house had to be replaced. He 113told Carroll that he needed $750 up front to replace the breaker box and the cost to repair the electrical wires would run $20,-000-$22,000.

The testimony of the general contractor, the electrician, and the arson investigator contradicted defendant’s story. They found no evidence at the Carroll home to support defendant’s story that the damage was caused by either lightning or an electrical surge. Instead, they concluded that someone intentionally applied a flame or torch to the outside of the electrical wires in the meter, in the breaker box, and in the attic. Abbott, an arson investigator, testified that someone intentionally set fire to those objects in a manner intended to make the homeowner believe that the electrical system had malfunctioned. The testimony indicated that defendant had the access and opportunity to cause the damage, and that only defendant stood to benefit from it. Furthermore, he lied about there being no grounding rod at the Carroll home.

Defendant’s actions in attempting to lead Carroll to believe that he had no grounding rod, that the home had been damaged by lightning or an electrical surge, and that he needed to spend over $20,000 to restore his electricity and prevent his home from burning was nothing more than a confidence game meant to defraud Carroll and if necessary, Carroll’s insurance carrier. The evidence was sufficient for the jury to rationally conclude that defendant committed arson with the specific intent of defrauding Carroll.

Excessive sentence

As noted above, the trial court found that defendant was a second-felony habitual offender and sentenced him to 10 years’ imprisonment at |uhard labor, plus ordered him to pay a $2,000 fine and make restitution to the victim. The trial court noted that the pre-sentence report showed that defendant had four prior felonies and over 20 arrests in six different states, including 14 for burglary. The court also observed that defendant was presently charged in Ouachita Parish with felony theft in a remodeling scheme. At the time of the present crime, defendant was on probation for a possession of cocaine conviction. The trial court found and the record supports that defendant was persistently involved in defrauding others. Defendant’s sentence is not excessive.

Error patent

The habitual offender statute does not provide for imposition of a fine. State v. Dickerson, 584 So.2d 1140 (La.1991). Even though the underlying statute providing the basis for defendant’s conviction may authorize the imposition of a fine, the enhancing statute does not. State v. Ealy, 44,252 (La.App.2d Cir.05/13/09), 12 So.Sd 1052, unit denied, 09-1393 (La.02/05/10), 27 So.3d 298. Because the trial court was without authority to impose such a fine, a fine imposed in sentencing a habitual offender is illegal and should be deleted. State v. Cass, 46,228 (La.App.2d Cir.04/13/11), 61 So.3d 840, writ denied, 11-1006 (La.11/04/11), 75 So.3d 922.

Conclusion

For the foregoing reasons, defendant’s sentence is amended to delete the $2,000 fíne. As amended, the conviction and sentence are affirmed.


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. Damione BROCK, Appellant.
    No. 47,005-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 7, 2012.
    Joseph R. Keene, for Appellant.
    Charles R. Scott, II, District Attorney, Brian H. Barber, Jason T. Brown, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, DREW and MOORE, JJ.
   WILLIAMS, J.

hThe defendant, Damione Brock, was charged by bill of information with the following: one count of possession of cocaine, in an amount greater than 28 grams but less than 200 grams (LSA-R.S. 40:967(F)(l)(a)); three counts of resisting a police officer with force or violence (LSA-R.S. 14:108.2); one count of attempted disarming of a police officer (LSA-R.S. 14:34.6 and 14:27); and two counts of battery of a police officer (LSA-R.S. 14:34.2). Following the denial of his motion to suppress, the defendant pled guilty as charged under State v. Crosby, 338 So.2d 584 (La.1976). He was adjudicated a second-felony offender and sentenced to 60 years at hard labor without the benefit of probation or suspension of sentence for the possession of cocaine conviction. For the three convictions for resisting a police officer with force, defendant was sentenced to three years for each count, with the sentences to run consecutively to each other and to his 60-year sentence. He was also fined $2,000 for each count. With respect to his conviction for attempting to disarm a police officer, the defendant was sentenced to two and one-half years at hard labor, to run consecutively to his other sentences. For the two convictions of battery of a police officer, the defendant was sentenced to five years and fined $500 for each count, to run consecutively with every other sentence imposed. The defendant appeals, alleging that the district court erred in denying his motion to suppress. For the following reasons, we affirm the denial of the motion.

FACTS

On July 18, 2009, at approximately 10:23 p.m., Caddo Parish Sheriffs Deputies Matt Purgerson and Earlton Parker were on patrol in north Caddo Parish when they stopped defendant for speeding and failure to|2dim his headlights for oncoming traffic. While the deputies were checking defendant’s license and registration, the dispatcher advised them of an active warrant for defendant from Shreveport City Court for driving under suspension and no liability insurance. After being informed that he was being arrested based on the warrant, defendant attempted to flee from the officers, who wrestled him to the ground. After a struggle, defendant was subdued and placed under arrest. During a search, cocaine was found on defendant’s person. Defendant was charged with the following: one count of possession of cocaine in an amount greater than 28 grams, but less than 200 grams; three counts of resisting a police officer with force or violence; one count of attempted disarming of a police officer; and two counts of battery of a police officer. In August 2010, defendant filed a motion to suppress alleging that the seized evidence should be excluded on the grounds that his arrest was unlawful.

At the hearing on the motion to suppress, the state presented the testimony of Corporal Matt Purgerson of the Caddo Parish Sheriffs Office. Corporal Purger-son testified that on July 18, 2009, he and Deputy Parker conducted the traffic stop of defendant’s vehicle. Cpl. Purgerson stated that while they were checking defendant’s driver’s license and registration, the dispatcher informed the deputies over the radio that the license was valid, but there was an active warrant for defendant through the Shreveport Police Department for driving under a suspended license and lack of insurance. After receiving the information, Corporal Purgerson informed the defendant that he was being arrested on the outstanding warrant in Shreveport and defendant denied that he had an active warrant. Cpl. Purgerson testified that |sas defendant was being handcuffed, he tried to run and the deputies grabbed him and all three men fell into a ditch along the road. After a struggle, the deputies subdued defendant and placed him under arrest. During a search incident to the arrest, cocaine was found in defendant’s possession.

On cross-examination, Corporal Purger-son testified that defendant’s possession of a valid license did not necessarily mean that the warrant was not active. He explained that it is not uncommon for a person to have a suspended license reinstated, but fail to pay fines or DMV costs, thereby causing a warrant to issue. Corporal Purgerson testified that no further inquiry is conducted when a dispatcher tells an officer that a person has an outstanding warrant; the officer arrests the person. Upon viewing the document presented by the state as the warrant used for defendant’s arrest, Cpl. Purgerson acknowledged that the warrant was 10 years old, was not signed by a judge or magistrate and included a notation instructing the arresting agency to validate the warrant with the Shreveport City Court computer warrant file. Cpl. Purgerson stated that it was the policy of the sheriffs department that when someone had an outstanding arrest warrant, he is required to arrest the person.

The state also called Deputy Earlton John Parker as a witness. Deputy Parker corroborated Cpl. Purgerson’s testimony that they were informed by radio dispatch that there was an active warrant for defendant’s arrest from Shreveport. Deputy Parker explained that after he and Corporal Purgerson learned of the active warrant, they told defendant that he was under arrest due to the arrest warrant and he then tried to escape. Deputy Parker testified that in the struggle that followed, the defendant tried to grab |4his gun from the holster. Deputy Parker testified, like Corporal Purgerson, that when an officer is told that an outstanding warrant exists, no other inquiry is necessary and the person is arrested.

After hearing the evidence, the district court issued oral reasons for judgment. The court noted that there was no evidence presented that the warrant used as the basis of defendant’s arrest was not valid and that both deputies had testified that it was standard procedure to arrest a person if they were informed by dispatch that there was a warrant for the person’s arrest. The court found that there was no deliberate recklessness or disregard for the truth on the part of the officers. Concluding that the exclusionary rule did not apply because the officers had acted reasonably, the district court denied the motion to suppress.

Subsequently, the defendant pled guilty as charged under Crosby, reserving his right to appeal the denial of his motion to suppress. After an habitual offender hearing, the trial court adjudicated defendant as a second-felony offender based upon a prior conviction for illegal discharge of a firearm. Prior to imposing sentence, the district court reviewed a presentence investigation report and noted defendant’s substantial criminal history. For the conviction of possession of cocaine in an amount greater than 28 grams, but less than 200 grams, which was subject to enhancement under LSA-R.S. 15:529.1(A)(l)(a), the court sentenced defendant to serve 60 years at hard labor without the benefit of probation or suspension of sentence. For the three convictions for resisting a police officer with force, defendant was sentenced to three years and fined $2,000 for each count. For his conviction of attempting to disarm a police officer, the defendant |5was sentenced to two and one-half years at hard labor. For the two convictions of battery of a police officer, the defendant was sentenced to five years and fined $500 for each count. The sentences were ordered to run consecutively to each other and to his 60-year sentence. The defendant appeals the denial of his motion to suppress.

DISCUSSION

The defendant contends the district court erred in denying his motion to suppress the seized evidence. Defendant argues that his arrest was unlawful because there were no reasonable grounds for the deputies to believe that an active warrant actually existed given their knowledge that defendant possessed a valid driver’s license.

The Fourth Amendment to the United States Constitution and Article I, § 5 of the 1974 Louisiana Constitution protect individuals against unreasonable searches and seizures. A search and seizure conducted without a warrant issued on probable cause is per se unreasonable unless the warrantless search and seizure can be justified by one of the narrowly drawn exceptions to the warrant requirement. State v. Thompson, 02-0338 (La.4/9/03), 842 So.2d 330. When the constitutionality of a warrantless search or seizure is placed at issue by a motion to suppress the evidence, the state bears the burden of proving the admissibility of any evidence seized without a warrant. LSA-C.Cr.P. art. 703(D); State v. Stephens, 40,-343 (La,App.2d Cir.12/14/05), 917 So.2d 667.

If evidence was derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from trial. State v. Benjamin, 97-3065 (La.12/1/98), 722 So.2d 988, citing Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). This exclusionary rule is designed to safeguard Fourth Amendment rights generally through its deterrent effect. Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009). However, the fact that a search or arrest was unreasonable does not necessarily mean that the exclusionary rule applies. The exclusionary rule is not an individual right and applies only where it results in appreciable deterrence. In addition, the benefits of deterrence must outweigh the substantial social cost of letting guilty and possibly dangerous defendants go free. Herring, supra.

The United States Supreme Court has created a good faith exception to the exclusionary rule. In United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the court held that evidence seized in a search pursuant to a warrant, which was invalid for lack of probable cause, need not be excluded at trial if the officers who conducted the search reasonably believed that the warrant was valid. United States v. Leon, supra; State v. Long, 2003-2592 (La.9/9/04), 884 So.2d 1176. The court explained that the exclusionary rule “is designed to deter police misconduct rather than to punish the errors of judges and magistrates.” Leon, 468 U.S. at 916, 104 S.Ct. at 3417.

In 2009, the United States Supreme Court applied Leon’s good faith exception to allow admission of evidence obtained after an arrest made pursuant to a previously recalled warrant. In the Herring case, officers in Coffee County arrested Herring based on an outstanding warrant listed in a neighboring county’s database. A search incident to that arrest yielded methamphetamine and a pistol. It was then determined that the arrest 17warrant had been recalled five months earlier, but that information had not been entered into the database. Herring sought exclusion of the evidence. The court stated that the exclusionary rule serves to deter deliberate, reckless or grossly negligent conduct and found that the conduct of the officers was not so objectively culpable as to require exclusion. The court found that any marginal benefit resulting from the suppression of evidence obtained by officers acting in objectively reasonable reliance on a subsequently recalled warrant did not justify the substantial cost of exclusion. Herring, supra.

In the present case, the trial court noted that the evidence presented did not establish that the warrant was not valid. Assuming that the warrant involved in this matter was invalid, the situation in this case is analogous to that of the Herring case. Here, the arresting officers relied on information provided by the sheriffs office dispatcher that there was an outstanding warrant for defendant’s arrest from Shreveport. Contrary to defendant’s contention that his possession of a license in good standing meant that the warrant could not be valid, Deputy Pur-gerson testified that the warrant could have been issued for various reasons, such as the failure to pay fines or other costs. In addition, under LSA-C.Cr.P. art. 211.5, the decision to issue a summons rather than make an arrest based on an active warrant for a traffic offense is within the officer’s discretion.

Based on the evidence presented, there was no showing that the arresting officers acted with reckless disregard of the constitutional requirements or were grossly negligent. Thus, the record supports the district court’s finding that even if the warrant was not valid at the time, the [ 8deputies acted in an objectively reasonable manner in relying on the information of an active warrant to arrest the defendant. Consequently, as held in Herring, supra, the exclusionary rule is not applicable under such circumstances. Therefore, we cannot say the district court erred in denying the motion to suppress the evidence seized in the search incident to that arrest. The assignment of error lacks merit.

We have examined the record for error patent and found none.

CONCLUSION

For the foregoing reasons, the district court’s denial of the motion to suppress is affirmed. The defendant’s convictions and sentences are affirmed.

DENIAL OF MOTION TO SUPPRESS AFFIRMED; CONVICTIONS AND SENTENCES AFFIRMED.

MOORE, J., concurs on the sole assignment of error raised in this court.


author: CARAWAY, J.

text:
    STATE of Louisiana, Appellee v. Lorenzo JEFFERSON, Appellant.
    No. 47,009-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 7, 2012.

      Peggy Sullivan, Monroe, LA, Louisiana Appellate Project, for Appellant.
    Lorenzo Jefferson, Pro se.
    Charles R. Scott, District Attorney, Bill Edwards, Brian H. Barber, Assistant District Attorneys, for Appellee.
    Before CARAWAY, LOLLEY and SEXTON (Pro Tempore), JJ.
   CARAWAY, J.

h Following a bench trial, Lorenzo Jefferson was convicted of second degree murder and attempted second degree murder (La. R.S. 14:30.1, 14:27). At the sentencing hearing, Jefferson was given the mandatory life sentence at hard labor without benefit of parole, probation, or suspension of sentence for his second degree murder conviction. In addition, the defendant was sentenced to 46 years at hard labor without benefit of probation, parole, or suspension of sentence for the his attempted second degree murder conviction. These sentences were ordered to be served concurrently. He appeals his conviction and sentences.

Facts

Lorenzo Jefferson was arrested for the shooting of Noel Steele (“Steele”) and Gary Maxie, Jr. (“Maxie”). The crime occurred as the result of a shooting in the defendant’s backyard, 3120 Lakeshore Drive, around three in the morning on July 13, 2009. While the house was his residence, Jefferson also rented rooms in the house for commercial purposes. Steele, the defendant’s friend and one of the victims, maintained a barber shop and lived there on a part-time basis. This residence also contained a music studio and tattoo shop. As a result of all this activity, the backyard was used as a parking lot.

Around two in the morning on July 13, 2009, Steele needed to drop off some supplies at his other residence, but he did not own a car. Since Steele and his fíanceé, Patsy Davis (“Davis”), had just had a very heated disagreement, Davis refused to let him borrow her car. Thereafter, Jefferson 12gave him permission to borrow his Jeep Cherokee. Sometime after Steele left, Jefferson called him and angrily demanded that he immediately bring his car back.

On his way home, Steele had to stop at a gas station, where he saw his friend, Max-ie. After Steele explained that he had to return Jefferson’s car, Maxie and his passenger, Demondrick Jackson (“Jackson”), followed Steele to the house on Lakeshore Drive because Maxie wanted to further talk to Steele about something. While Steele went to return the keys, Maxie and Jackson stayed in the car in the backyard.

While washing dishes in the kitchen, Davis noticed that Maxie’s car had arrived in the parking lot in the backyard. As she turned to inform Jefferson of the visitor, he was already moving toward the backyard and Davis noticed that Jefferson had a gun sticking out of his pants.

When Steele approached the back door, the defendant stood in the doorway, blocking his entrance. At this time, Jackson testified he saw a gun sticking out of Jefferson’s pants; yet, Steele testified that he did not see the gun. While the two were talking, Steele testified that Jefferson just suddenly turned around and shot him. After the first shot, Steele immediately jumped from the elevated porch area and crawled under the house to hide. After clearly seeing Jefferson shoot Steele, Jackson testified that he climbed out of Maxie’s car through the rear door on the driver’s side, the farthest side away from the defendant’s location, and ran. As he was running, Jackson stated that he heard Maxie say, “hold up,” and then Jackson heard several more shots being fired.

| sAll of the witnesses testified that they heard at least two or three more shots, but none of them saw Jefferson shoot Maxie, who was killed. Davis, who was in the kitchen, heard the first shot and froze. After all shots had been fired, Jefferson came back inside and Davis asked him what happened. According to her, the defendant went to a locked closet and soon returned with an AK-47. Davis then saw Jefferson drive away in Maxie’s white Toyota Corolla. After the defendant left and Davis realized that Maxie had been shot, she called the police and reported the incident.

After fleeing the scene of the shooting, Jefferson ran a red light and hit another vehicle. Jefferson attempted to flee the scene of that accident in the vehicle, but the car died a few blocks away forcing the defendant to flee on foot. Ultimately, Jefferson was arrested at Willis Knighton Hospital on Greenwood Road after police received a call regarding a suspicious person. Upon locating the defendant and giving him his Miranda rights, police searched his person and found car keys. Officers soon discovered that these keys started the white Toyota Corolla that had been involved in the hit and run. The car had blood on the door and was owned by the victim, Maxie.

Jefferson was taken to police headquarters, and before he gave his statement, he was again advised of his rights. According to the defendant, Davis opened the back door and then “all hell broke loose.” The defendant stated that he saw a black man with braids fleeing the scene and assumed this man or Davis was the shooter. After the shooting started, the defendant 14stated that he got in Maxie’s vehicle in order to escape. At all times, the defendant has denied his involvement in the shooting.

On September 25, 2009, the grand jury charged Jefferson by bill of indictment for the second degree murder of Maxie, in violation of La. R.S. 14:30.1. This indictment was amended on April 1, 2011, and at this time, the defendant was additionally charged with the attempted second degree murder of Steele.

After a two-day bench trial, the defendant was convicted as charged. On June 9, 2011, Jefferson was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence for his second degree murder conviction to run concurrent with his 46-year sentence for the attempted second degree murder conviction. After the denial of a post-verdict judgment of acquittal motion, where the defendant argued that the state did not prove beyond a reasonable doubt all the elements of the convictions, this appeal ensued.

Discussion

Jefferson argues that the evidence produced at trial was insufficient to support his convictions because the state failed to negate the reasonable probability of mis-identification. Secondly, the defendant argues that the state’s case was based entirely on circumstantial evidence that did not exclude every reasonable hypothesis of innocence, including the fact that someone else was the shooter. Finally, the defendant argues that the state’s evidence, at best, supported a conviction for manslaughter.

IsThe critical inquiry in reviewing sufficiency of the evidence arguments is “whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of the fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 448 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Rhodes, 29,-207 (La.App.2d Cir.1/22/97), 688 So.2d 628, writ denied, 97-0753 (La.9/26/97), 701 So.2d 980. When the direct evidence is viewed in the light most favorable to the prosecution, “the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime.” State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La.App.2d Cir. 1/14/09), 2 So.3d 582, writ denied, 09-0372 (La.11/6/09), 21 So.3d 299. This standard, now legislatively embodied in La.C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.

In cases involving a defendant’s claim that he was not the person who committed the crime, the Jackson rationale requires the state to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Hughes, 05-0992 (La.11/29/06), 943 So.2d 1047; State v. Powell, 27,959 (La. App.2d Cir.4/12/96), 677 So.2d 1008, writ denied, 96-1807 (La.2/21/97), 688 So.2d 520. Positive identification by only one witness may be sufficient to support a defendant’s conviction. State v. Weary, 03-3067 (La.4/24/06), 931 So.2d 297, cert. denied, 549 U.S. 1062, 127 S.Ct. 682, 166 L.Ed.2d 531 (2006); State v. Youngblood, 41,976 (La.App.2d Cir.5/9/07), 957 So.2d 305, writ denied, 07-1226 (La.12/14/07), 970 So.2d 530.

In all cases where an essential element of the crime is not proven by direct evidence, La. R.S. 15:438 applies. As an evidentiary rule, it restrains the fact finder in the first instance, as well as the reviewer on appeal, to accept as proven all that the evidence tends to prove and then to convict only if every reasonable hypothesis of innocence is excluded. Whether circumstantial evidence excludes every reasonable hypothesis of innocence presents a question of law. State v. Shapiro, 431 So.2d 372 (La.1982); State v. Hammontree, 363 So.2d 1364 (La.1978); State v. Van Sales, 38,138 (La.App.2d Cir.3/3/04), 867 So.2d 849, writ denied, 04-1305 (La.4/22/05), 899 So.2d 569.

La. R.S. 14:30.1 provides:

A. Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm; ...
B. Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence.
La. R.S. 14:27 provides:
A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to|7commit the offense included; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
C. An attempt is a separate but lesser grade of the intended crime; and any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt.
D. Whoever attempts to commit any crime shall be punished as follows: (l)(a) If the offense so attempted is punishable by death or life imprisonment, he shall be imprisoned at hard labor for not less than ten nor more than fifty years without benefit of parole, probation, or suspension of sentence.

Regarding the attempted second degree murder of Steele, Jackson testified that he saw Jefferson shoot Steele. Steele testified he was shot when the defendant “walked away from me, he turned around and immediately just bam, you know, like a draw or something.” Steele was thus certain that the defendant, his friend for over 15 years, was responsible for shooting and almost killing him. In addition, Davis testified that the defendant went outside with a gun immediately prior to her hearing the gun shots. Thus, the state offered sufficient evidence that the defendant shot Steele at close range, indicating an intent to inflict great bodily harm.

With respect to the victim, Maxie, the state presented sufficient evidence for the trier of fact to conclude that Jefferson fired several shots at the victim and ultimately killed him. Jackson positively identified the defendant in a photo lineup and at trial as the person who shot Steele. In addition, Jackson testified that he heard Maxie talking to the defendant after the initial shooting of Steele and prior to several more gunshots. While he did not see Jefferson shoot Maxie, Jackson testified that the defendant was the only person with a gun and the only voice that he heard when Maxie |8was shot. Furthermore, Jackson testified that prior to that night he had never met Davis, Steele, or the defendant.

At trial, Steele also testified about the events surrounding Maxie’s death. After he was shot, he testified that he hid under the house when he realized his injuries prevented him from running. While he was hiding, Steele heard Maxie ask the defendant why he had shot Steele. At the time, Steele heard at least two more shots being fired.

While no gun was ever discovered in this case, the state did produce evidence linking the defendant to the shooting of Maxie. First of all, Jefferson was the only individual identified with a weapon which was seen by Davis and Jackson. In addition, the state provided expert testimony that all of the bullets were fired from the same gun.

In addition to the eyewitness testimony, the state produced forensic evidence revealing a close range shooting of Maxie while he was seated in the ear and the DNA results of the blood on the car matching Maxie’s blood. Additionally, a phone found in the car was determined to belong to the defendant.

All of the evidence presented showed that Maxie was shot in close range, indicating a specific intent to kill the victim. Since the defendant was the only person identified with a gun during the shooting and identified driving away with the victim’s car, it was reasonable for the trial court to find that the state met its burden of proving that Jefferson was guilty of second degree murder. There was nothing in the record to support a ^manslaughter charge nor was there evidence in the record that the defendant acted in self-defense. Accordingly, the convictions are affirmed.

Jefferson also argues that his sentences are excessive. The trial court sentenced the defendant to the mandatory life, sentence at hard labor without the benefit of probation, parole, or suspension of sentence for the second degree murder conviction. In addition, the trial court sentenced the defendant to 46 years for attempted second degree murder and held that the sentences were to run concurrently; Jefferson failed to file a motion to reconsider sentence nor did he formally request a downward departure from the mandatory life sentence.

When a defendant fails to timely file a motion to reconsider sentence under La.C.Cr.P. art. 881.1, the appellate court’s review is limited to the bare claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Jones, 41,449 (La.App.2d Cir.9/20/06), 940 So.2d 61. A’ sentence is constitutionally excessive in violation of La. Const. art. I, § 20, if it is grossly out of proportion to the severity of the offense or nothing more than a needless and purposeless imposition of pain and suffering. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1; State v. Bonanno, 384 So.2d 355 (La.1980); State v. Cunningham, 431 So.2d 854 (La.App. 2d Cir.1983), writ denied, 438 So.2d 1112 (La. 1983). A sentence is deemed grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it - shocks the sense of justice or makes no reasonable contribution to acceptable penal goals. State v. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Guzman, 99-1528, 99-1753 (Lag/16/00),10 769 So.2d 1158; State v. Robinson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379.

Although the Louisiana Supreme Court has held that courts have the power to declare a mandatory minimum sentence excessive under Art. I § 20 of the Louisiana Constitution, this power should be exercised only in rare eases and only when the court is firmly convinced that the minimum sentence is excessive. State v. Wallace, 46,422 (La.App.2d Cir.8/10/11), 71 So.3d 1142; State v. Ponsell, 33,543 (La. App.2d Cir.8/23/00), 766 So.2d 678, writ denied, 00-2726 (La.10/12/01), 799 So.2d 490.

While Wallace dealt with mandatory sentences under the habitual offender law, it implied that all mandatory sentences are presumptively constitutional and should be accorded great deference by the judiciary. Wallace, supra; State v. Wade, 36,295 (La. App.2d Cir.10/23/02), 832 So.2d 977, rnit denied, 02-2875 (La.4/4/03), 840 So.2d 1213. The assertion that the mandatory life sentence for second degree murder is a violation of the prohibition against excessive punishment in the Louisiana Constitution has been repeatedly rejected. State v. Bryant, 29,344 (La.App.2d Cir.5/7/97), 694 So.2d 556; State v. Parker, 416 So.2d 545 (La.1982); State v. Brooks, 350 So.2d 1174 (La.1977).

At the sentencing hearing, the trial court noted that the sentence for second degree murder was mandatory. In addition, the trial court gave some review of the sentencing guidelines of La.C.Cr.P. art. 894.1 for the attempted second degree murder conviction. In particular, the trial court noted several considerations for the defendant’s sentence including: the | n defendant’s two prior offenses involving firearms, including a felony conviction; the violent nature in which the shootings were conducted and the lethal effects of his actions; and the fact that the shootings involved a risk of death or great bodily harm to more than one person.

The record shows that Jefferson is a repeat offender and convicted felon. All of his convictions illustrate his propensity for committing violent crimes with firearms, and illustrate an escalation in criminal behavior. Jefferson’s first conviction was a misdemeanor offense and his latest conviction was a felony drug offense.

Aside from prior criminal history, Jefferson’s actions and demeanor illustrate that neither sentence is constitutionally excessive. The defendant shot Steele, his friend of 15 years, at close range for no apparent reason, save potentially a disagreement about the use of the defendant’s car. Steele was forced to undergo surgery and spent several weeks in the hospital as a result of his gunshot wound.

Although his motive is unknown, it is clear that the defendant shot at Maxie several times before moving close enough in order to fatally wound him. After killing Maxie, the defendant then took the victim’s car and fled the scene of the crime.

The trial court properly applied the mandatory life sentence in regards to the second degree murder of Maxie. Furthermore, Jefferson’s criminal history, demeanor, actions, and the nature of the crime itself support the trial court’s 46-year sentence for the attempted second degree murder of Steele. While the defendant’s sentence is only four years below the statutory 1 ^maximum for this offense, this sentence is not grossly disproportionate nor does it shock one’s sense of justice, especially considering that this sentence will run concurrently with his mandatory life sentence.

Lastly, the defendant submitted a pro se brief and requested an error patent review of the entire record with particular review of his original indictment and amended indictment. This request is unnecessary since such a review is made automatically in all criminal cases. State v. Bryant, supra; State v. Stamper, 615 So.2d 1359 (La.App. 2d Cir.1993), modified on other grounds, 624 So.2d 1208 (La. 1993). Accordingly, the record was reviewed and no errors patent were found.

Conclusion

Based on the foregoing, we affirm the trial court’s rulings. The state’s evidence was sufficient to support a finding that Jefferson committed the acts of second degree murder and attempted second degree murder. Furthermore, we do not find that the trial court’s sentences were constitutionally excessive. As a result, we affirm the defendant’s convictions and sentences.

AFFIRMED.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).