author: SEXTON, Judge Pro Tem.

text:
    STATE of Louisiana, Appellee v. Glenn Anthony FOSTER, Appellant.
    No. 46,992-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 29, 2012.

      Louisiana Appellate Project, by Carey J. Ellis, III, for Appellant.
    Charles Rex Scott, II, District Attorney, R. Bennett Langford, III, Kodie K. Smith, Catherine M. Estopinal, Assistant District Attorneys, for Appellee.
    Before BROWN, DREW & SEXTON (Pro Tempore), JJ.
   SEXTON, Judge Pro Tem.

| defendant, Glenn Anthony Foster, was convicted of vehicular homicide. La.R.S. 14:32.1. He was subsequently sentenced to 30 years’ imprisonment at hard labor and to a fíne of $15,000. Defendant now appeals. For the reasons stated herein, Defendant’s conviction and sentence are affirmed.

FACTS

On December 18, 2009, the state filed a bill of information charging Defendant, Glenn Anthony Foster, with vehicular homicide in violation of La. R.S. 14:32.1. Specifically, the bill, as amended on February 7, 2011, charged that, on November 3, 2009, Defendant did kill Carrie Lea Jones while engaged in the operation, or actual physical control, of a motor vehicle while under the influence of alcoholic beverages. Defendant’s trial before a jury commenced on February 8, 2011.

The state’s first witness was Joyce Terry, a 911 dispatcher who testified that, on November 3, 2009, a call came in from an individual identifying himself as Glenn Foster. Terry identified the tape recording of the call which was played for the jury. In the recording, the caller is heard asking the dispatcher if he could speak to Sergeant Stacy Cowgill, whom the caller identifies as a neighbor of his. The dispatcher is heard telling the caller that Cowgill is out on a call. When the dispatcher asks if there is anything she could assist him with, the caller states that his wife is dead out by the pond. The dispatcher is then heard contacting Sergeant Cowgill and patching the caller through to him.

| gSergeant Cowgill testified that, on the afternoon of November 3, 2009, he was contacted by dispatch and informed that a caller identifying himself as Defendant had asked to speak to him. Being familiar with Defendant and his penchant for drinking, Cowgill initially declined the call. The dispatcher then recontacted Cowgill and informed him that Defendant was claiming that his wife was dead. Cowgill decided to take the call, a recording of which was played for the jury. In the recording, Defendant says that his wife had woken up at around daybreak and said she was going over to “dad’s” house to drink a couple of beers. Defendant woke up about an “hour or two” before the call and found his wife’s van stuck “over there by the pond” and his wife “laying [sic] there by the front door.” Defendant states repeatedly that he is certain his wife is dead. After Defendant tells Cowgill that he is currently at “dad’s” house, the two agree to meet at Defendant’s residence before ending the call.

After the tape was played, Cowgill testified that he proceeded to Defendant’s home after ending the call. Having known Defendant as a chronic drinker with a penchant for fabrication, Cowgill advised the dispatcher to put the detective’s office and crime scene investigators on standby until he could determine whether their response to the scene was warranted. Cow-gill arrived at Defendant’s mobile home on Buffalo Road in Ida, Louisiana, which he described as being approximately 200 yards off the road. When he arrived, Cowgill observed Carrie Jones’ body lying in the front yard just in front of a wooden landing at the foot of the steps leading down from the front door of the mobile home. He checked for a pulse in Rboth a carotid and a radial artery and found none. He then checked for rigor mortis and found no signs of it. He observed that the victim was wearing a pair of sweatpants, which were pulled down to her pubic area, that she had a little bit of blood on her chin and that she had some scratches on one of her hips.

Cowgill testified that Defendant was sitting on the front steps and had a strong odor of alcohol. He was slurring fiis speech and was unsteady on his feet. Afterward Cowgill was joined on the scene by Corporal Anderson and Defendant was placed in the back of Anderson’s patrol unit. Cowgill and Anderson then walked to a van sitting next to a pond about 100 yards in front of the mobile home; Cowgill noted that the van appeared to be stuck in mud. Anderson also took the stand and testified that, upon his arrival, he was able to observe Defendant. He detected a strong odor of alcohol on Defendant and noticed his speech to be slurred.

A series of crime scene photographs was also shown to the jury. In addition to depicting the residence and its surroundings on November 3, 2009, photographs of the victim show the body of a white female lying on the grass just in front of a wooden landing. The victim is wearing a sleeveless blue shirt, which is pulled up to just under her breasts, and purple sweatpants pulled down below her waist. Her chin and left cheek appear to be stained with blood. Her feet are bare and a close-up of her right foot shows scratches on the top of her mid-and forefoot and one of the toes. There are also pictures of a blue Chrysler van, the front wheels of which are sitting in mud trenches which extend several feet in front of the van. ^Several of the crime scene investigators testified at trial that it appeared the vehicle had been driven to where the trenches end and then backed up to the location where it is depicted in the photographs. The photographs also depict a white Toyota pickup truck, which investigators testified was parked just a few feet away from the victim’s body. Pictures of the interior of the truck show a can of beer lying in the front seat and red staining on the passenger side headrest.

Dr. Long Jin, a forensic pathologist, testified that he performed the autopsy on Jones’ body and concluded that the cause of death was “traumatic asphyxia due to crush/squeeze injuries of the chest” with an “extreme high level of ethanol” being a contributory factor. Dr. Jin explained that his conclusion that the victim had suffered “crush/squeeze injuries” leading to asphyxia came from the injury pattern on Jones’ body. The pattern included a fractured right clavicle, 16 fractures to the ribs on her right side, 9 fractures to the ribs on her left side and blood in her chest cavity. Jones also had a small hemorrhage on the white of her right eye, which Dr. Jin explained can happen when the chest is compressed because it prevents blood flow, causing pressure to build and small blood vessels to possibly “bust.” Jones also had a fractured pubic symphy-sis and L-4 vertebrae, both bones which Dr. Jin testified would not likely have broken absent some outside force or pressure being applied. Dr. Jin also asserted that, because of the clinical history of a seizure disorder, he checked the victim and found no signs that she had suffered a seizure.

LAs to the “extreme high level of ethanol” in the victim’s blood, Dr. Jin testified that he listed it as a contributory factor in her death because alcohol inhibits brain function and, therefore, would have exacerbated the breathing difficulties that resulted from the chest compression. Dr. Jin also stated that, depending on the circumstances surrounding the injuries inflicted on Jones, the high level of alcohol in her system could have limited her ability to defend herself. Dr. Jin noted that the deceased had a fatty liver, which he testified was a sign of chronic alcoholism. In addition, Dr. Jin testified that, in his medical opinion, the .412 blood alcohol level found in the victim would not be fatal to a chronic alcoholic. To the contrary, Dr. Jin opined that chronic alcoholics, though impaired, can actually be functional despite such an elevated level.

Dr. Todd Thoma, the coroner for Caddo Parish, testified that his investigation into the cause of Jones’ death included examination of the body at the scene and a review of the autopsy report issued by Dr. Jin. Dr. Thoma recalled that the location and appearance of the body at the scene looked as though it had been placed there, perhaps after being dragged. After noting that Jones’ body was lying in an unnatural position, her top pulled up and her pants partially pulled down, with multiple bruises and contusions, Dr. Thoma concluded that an autopsy was warranted. He also indicated that, while liver temperature was taken to narrow the time of death, the lack of rigor mortis and fixed lividity indicated that the death had occurred within the previous 12 hours and was consistent with the time at which the death was first reported to authorities. After examining the l^autopsy results, Dr. Thoma concluded and noted on the death certificate that the cause of death was “traumatic asphyxia” and “crush/squeeze injuries to the chest.” As to the death certificate’s listing of “Ethanol Abuse” under the cause of death section, Dr. Thoma stressed that he had in-eluded it under the section entitled “other significant conditions contributing to the death, but not resulting in the underlying cause” because he did not believe alcohol to be the actual cause of death, but as a respiratory depressant could have aggravated Jones’ inability to breath resulting from the crush injuries. He also expressed his opinion that, because she was an alcoholic, the elevated level of ethanol in Jones’ system would not have been fatal to her.

Defendant gave four post-Miranda recorded statements to officers, the first of which was made on the evening of November 3, 2009, the day the victim died. During this initial statement, Defendant claimed, as he had to Cowgill earlier, that he had discovered Jones’ dead body just off the landing shortly after waking up that day. Specifically, Defendant asserted that Jones woke him up at around daybreak and told him she was going over to Defendant’s father’s home to drink. Defendant woke up at approximately 10:00 o’clock in the morning and, seeing that Jones had not returned, drank some coffee and smoked a cigarette. Defendant alleged that he then got up and walked out the door to let the dog relieve itself and discovered Jones’ body. He denied moving her body, knowing how long it had been there or knowing why the victim’s van was sitting alongside the pond. He stated that the path in which the van had been traveling did not lead anywhere. He 17said that he then drove to his father’s house to use the phone to call Stacy Cowgill. He could not explain why his call to Cowgill was not placed until approximately 2:30 p.m. An additional noteworthy event during the first interview came during a break when the interviewing officer brought Defendant some coffee and Defendant made a move for the officer’s sidearm.

In a subsequent interview the following morning, prior to which he was again advised of and waived his Miranda rights, Defendant began by insisting that he had discovered Jones’ body and briefly attempted CPR before going to his father’s home to call authorities. As officers revealed more information about the physical evidence, including the suspected blood in his truck and the injuries suffered by the victim, Defendant conceded that he had found Jones by the pond and may have run over her. Shortly thereafter, he admitted that, after he woke, he drank two “pretty good-sized bourbons and Cokes” and then, seeing Jones’ van by the pond, he got in his truck to go look for her. He stated that, in the process of doing so, he ran over Jones who was lying in the bushes. Defendant stated that he loaded her in his truck and brought her back to their home and laid her next to the porch. He said she was not dead when he loaded her in the truck; she was talking, although Defendant never stated what Jones allegedly said. During further questioning, Defendant denied being in an argument with Jones, chasing her down with his truck or even being able to see her before |she ran over her. Defendant admitted that he was “legally intoxicated,” “drunk,” “inebriated,” at the time he ran over Jones, yet he repeatedly denied that he did so intentionally. Toward the conclusion of the interview, Defendant agreed to go with detectives to his residence to walk them through the events of the previous day.

During the videotaped visit to Defendant’s home, Defendant is observed walking officers through his version of the events starting at the time he opened his front door and noticed the van sitting near the pond. Specifically, he claimed that he got in his truck and upon noticing that the keys were not in it, went back inside the house to look for them. He claimed he could locate only his spare key, which he used to start the truck. Defendant then walked officers the relatively short distance to where the van was located and showed them the area where he claimed Jones was lying when he ran over her. He claimed he heard Jones make a “groaning” or “grumbling” sound before he picked her up and loaded her in his truck. He admitted that, either before or after loading her in the truck, he went to the van to look for his keys, but only briefly, since he had more pressing concerns. He then drove Jones back to the house where he deposited her body on the spot where authorities found it. Defendant then claimed he went inside briefly to get a drink before returning and trying CPR on Jones. When he concluded she was dead, he drove to his father’s house to call Stacy Cowgill. He admitted during the interview that it was possible he had brought his vehicle to a stop on top of the victim, although he had no specific recollection of it due to the fact that he was “pretty snockered” at [9the time of the incident. While at his home, Defendant also showed officers a sizable mug from which he claimed he had been drinking and an empty half-gallon bottle of bourbon lying on the floor, which he identified as the one he had been using to make his drinks.

When they returned to the police station, ■ Defendant gave yet another statement during which he said that the more he thought about it, he remembered that he had gotten in the van with the intent of driving around his property and ran over Jones while driving next to the pond. He placed her body in the van with the intent of driving her back to the house, but the van got stuck. He then retrieved his truck and moved her into the truck. During the interview, he also admitted that, when he first woke up that morning, he had a drink before returning to bed and then another two large mugs of bourbon and Coke right before he got in the van to drive around the property. Defendant had no explanation for why the victim would have been lying down in the weeds by the pond.

The jury returned a verdict of guilty as charged and Defendant’s sentencing was scheduled for February 23, 2011. Prior to sentencing, the state presented a presen-tencing memorandum to which it attached various police reports regarding Defendant’s prior arrests, including three detailing violence against Jones. The worst incident took place in 2006 when it appears that Jones was trying to leave Defendant with their minor child. Defendant threatened to kill the victim and grabbed her by the throat and threw her on the bed. He then got on top of her and punched her in the face, as evidenced by two black eyes observed by the responding officer. | mDefendant, as with most other incidents involving his arrest, then proceeded to make threats to the arresting officer. Other conduct reflected in the reports supplied by the state include drug crimes, driving under the influence and numerous threats made to various people including Jones, her mother and her ex-husband.

At the sentencing hearing, the state presented the testimony of William Jones, the victim’s brother, Bryan Keir, her ex-husband, and Linda Haydel, a court-appointed special advocate assigned to monitor Defendant and the victim when their eldest daughter was removed from the home by social services. The victim’s brother testified that his sister’s relationship with Defendant was marred by physical abuse. He had been called on various occasions to come pick his sister up after incidents of abuse and had observed her with bruises and missing chunks of her hair. He also indicated that Defendant had threatened to kill him and his mother.

Keir testified that he and Jones divorced in 2005, but that he had tried to help her on several occasions after she started her abusive relationship with Defendant. One of the incidents he recalled also involved Defendant running over Jones with a vehicle. In that instance, her leg was broken and required surgery. At one time, Keir testified that he had helped seclude Jones for two weeks in a motel. During that time, Jones told him that Defendant had once tried to punch her while she was holding her daughter, but ended up punching the child in the face instead.

Haydel testified that she was the court-appointed special advocate who reported to the juvenile court on behalf of the minor children of ¡^Defendant and Jones. She testified that both Defendant and Jones had substance abuse issues. Defendant, however, had appeared intoxicated at one of the children’s Christmas parties organized by CASA and had to be ejected. Haydel also reported that once, when Defendant got upset with her, he called her on the phone and told her he was going to “cut [her] up in little pieces and throw [her] in the Red River.” Haydel had also witnessed the victim after she had received a beating from Defendant and witnessed a black eye, swollen face and red markings on her face and arms.

At the conclusion of the hearing, the court listed the various pertinent factors it considered in reaching a sentence, including that Defendant’s conduct manifested deliberate cruelty to Jones. While Defendant was tried on a vehicular homicide charge, the court indicated its belief that Defendant’s conduct was not accidental. The court also listed as aggravating factors the fact that Defendant took advantage of his victim’s vulnerability resulting from intoxication, his use of a deadly weapon and the fact that he had subjected Jones to severe domestic abuse over an extended period of time. The court noted the lack of regard for Jones exhibited by Defendant’s failure to notify authorities of her condition for several hours and his repeated attempts to escape culpability through his lack of candor and ever-changing versions of the events which led to Jones’ death.

The court found that no mitigating factors were evident and sentenced Defendant to the maximum term of 30 years’ imprisonment, without the benefit of probation, parole or suspension of sentence, and a $15,000 fine. A motion to reconsider sentence making a bare claim of excessiveness was 112filed on February 28, 2011, and was denied on March 3, 2011, without a hearing. This appeal ensued.

DISCUSSION

Assignment of Error Number One (verbatim.): The evidence was insufficient to support the verdict of vehicular homicide.

Defendant argues that the evidence of his intoxication at the time the victim was killed was “conflicting” given the absence of any blood alcohol tests and the uncertainty as to the Jones’ time of death. He further argues that Jones’ intoxication and history of seizures could not be ruled out as causes of death.

The state argues that Defendant’s repeated admissions to being intoxicated when he ran over Jones and corroborating witness testimony were sufficient to prove that he was under the influence of alcoholic beverages when he killed Jones while operating a motor vehicle. The state also argues that, despite Defendant’s assertions to the contrary, the testimony of Dr. Jin and Dr. Thoma did rule out alcohol poisoning or seizures as causes of Jones’ death.

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); State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir.1/9/08), 974 So.2d 181, writ denied, 08-0499 (La.11/14/08), 13996 So.2d 1086. 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. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833, writ denied, 09-0310 (11/6/09), 21 So.3d 297. 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. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 09-0725 (La.12/11/09), 23 So.3d 913; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 07-1209 (La.12/14/07), 970 So.2d 529.

La. R.S. 14:32.1 provides in pertinent part:

A. Vehicular homicide is the killing of a human being caused proximately or caused directly by an offender engaged in the operation of, or in actual physical control of, any motor vehicle, aircraft, watercraft, or other means of conveyance, whether or not the offender had the intent to cause death or great bodily harm, whenever any of the following conditions exists and such condition was a contributing factor to the killing:
(4) The operator is under the influence of alcoholic beverages.

A conviction for vehicular homicide requires proof that an offender caused the death of another human being while engaged in the operation of a motor vehicle and a contributing factor to the killing was the offender’s being under the influence of alcoholic beverages. In the case sub judi-ce, the evidence is overwhelmingly sufficient to establish Defendant’s guilt. Over | uthe course of several hours of interviews admitted into evidence, Defendant made many inconsistent statements regarding his actions on the day of Jones’ death. One fact about which he was remarkably consistent, however, was that he was “legally intoxicated,” “drunk,” “inebriated” and “pretty snockered” at the time that he ran over Jones with either his truck or his van. He also elaborated as to how he got that way by telling officers that he drank two mugs filled with bourbon and Coke just before getting into the van. Once at his house, Defendant showed the officers the sizable mug he had been referring to and the empty half-gallon jug of Kentucky Deluxe Bourbon. Defendant’s incriminating statements were corroborated by the observations of officers who first arrived on the scene and found Defendant reeking of alcohol and slurring his speech.

As to whether Jones’ death could have been caused by seizures or alcohol poisoning, there was no evidence that the victim suffered a seizure immediately preceding her demise. Dr. Jin testified that her body bore none of the signs which could indicate that the victim had died as a result of a seizure. He and Dr. Thomas both testified that it was unlikely that even the extremely elevated level of ethanol in her system would have caused her death, because she was a chronic alcoholic. In short, both Dr. Jin and Dr. Thoma stated conclusively that, in their expert opinion, the cause of death was asphyxia as a result of Jones’ chest being crushed.

Despite Defendant’s assertions to the contrary, there was no conflicting testimony regarding his intoxication; and, while there is plenty of evidence that Jones died as a result of being crushed by a heavy object, 1 ¶ a there is no affirmative evidence that she died from a seizure or as a result of her elevated blood alcohol level. This assignment is without merit.

Assignment of Error Number Two (verbatim): The court erred by imposing an excessive sentence.

Defendant states conclusively, with no elaboration, that the trial court erred by imposing the maximum sentence allowable under law. We disagree.

Since Defendant’s motion for reconsideration merely alleged that the sentence is excessive, under State v. Mims, 619 So.2d 1059 (La.1993), he is “simply relegated to having the appellate court consider the bare claim of excessiveness.” This bare claim preserves only a claim of constitutional excessiveness, Mims, supra; State v. Lofton, 41,423 (La.App.2d Cir.9/27/06), 940 So.2d 702, writ denied, 06-2952 (La.9/28/07), 964 So.2d 359. Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense or shocking to the sense of justice. State v. Livingston, 39,390 (La.App.2d Cir.4/6/05), 899 So.2d 733; State v. White, 37,815 (La.App.2d Cir.12/17/03), 862 So.2d 1123.

In selecting a proper sentence, a trial judge is not limited to considering only a defendant’s prior convictions, but may properly review all prior criminal activity. State v. Pamilton, 43,112 (La. App.2d Cir.3/19/08), 979 So.2d 648, writ denied, 08-1381 (La.2/13/09), 999 So.2d 1145; State v. Boyte, 42,763 (La.App.2d Cir.12/19/07), 973 So.2d 900, writ denied, 08-0175 (La.6/20/08), 983 So.2d 1272. The sources of information relied upon by the sentencing court may include evidence | ^usually excluded from the courtroom at the trial of guilt or innocence, e.g. hearsay and arrests, as well as conviction records. State v. Myles, 94-0217 (La.6/3/94), 638 So.2d 218. These matters may be considered even in the absence of proof the defendant committed the other offenses. State v. Doyle, 43,438 (La.App.2d Cir.8/13/08), 989 So.2d 864.

As a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. Cozzetto, 07-2031 (La.2/15/08), 974 So.2d 665; State v. McKinney, 43,061 (La.App.2d Cir.2/13/08), 976 So.2d 802; State v. Woods, 41,420 (La.App.2d Cir.11/1/06), 942 So.2d 658, writ denied 06-2768 (La.6/22/07), 959 So.2d 494, and writ denied, 06-2781 (La.6/22/07), 959 So.2d 494; State v. Grissom, 29,718 (La.App.2d Cir.8/20/97), 700 So.2d 541.

Vehicular homicide is punishable by imprisonment “with or without hard labor for not less than five years nor more than thirty years” and mandatory statutory restrictions of “[a]t least three years of the sentence of imprisonment ... imposed without benefit of probation, parole, or suspension of sentence.” The statute also mandates a fine of “not less than two thousand dollars nor more than fifteen thousand dollars.” Additionally, the sentencing provision requires the court to order participation in a court-approved substance abuse program. La. R.S. 14:32.1(B).

Here, Defendant received the maximum sentence allowed under the law and we find no manifest abuse of discretion in this sentence. The crime of conviction clearly reflects only that conduct to which Defendant was willing to admit. The physical evidence combined with Defendant’s history 117with Jones strongly suggests that his conduct was not only more serious, but cruel. Moreover, Defendant’s conduct in the wake of Jones’ death was callous and nonsensical in his version of events and, aside from the suspicions it raises about what actually happened to Jones, at the very least it renders Defendant one of the worst offenders.

After claiming to have accidentally run over his live-in girlfriend, Defendant claimed that she was still alive. Yet instead of seeking help, he loaded her into his vehicle and drove her to the house where he dumped her body at the front stoop and went inside to have a drink. He then briefly tried CPR on her and then waited an extended period of time before driving to his father’s home to call the authorities.

When considering this conduct combined with Defendant’s repeated and severe physical abuse of Jones, we find that Defendant’s sentence is not so grossly disproportionate to the severity of his crime as to shock the sense of justice. The sentence is not a needless imposition of pain and suffering.

For the foregoing reasons, we find that Defendant’s sentence is not excessive; and, therefore, this assignment of error is without merit.

ERROR PATENT

The sentencing provisions require the court to order participation in a court-approved substance abuse program, which was not imposed in this case. This Court may recognize an illegally lenient sentence on its own. La. C. Cr. P. art. 882. Although the omission of the imposition of participation in a court-approved substance abuse program was error, we [18refrain from amending Defendant’s sentence or remanding for resentencing because the state did not object at sentencing nor on this appeal.

CONCLUSION

For the foregoing reasons, the conviction and sentence of Defendant, Glenn Anthony Foster, are affirmed.

AFFIRMED.

      . Defendant stated during the interview that he did not have a cell phone or a land line. When a distinct cell phone alert is heard in the interview room and the interviewing officer asks if it is the defendant's phone, defendant continues to deny having a cell phone.


source: Caselaw Access Project

author: BROWN, Chief Judge.

license: Public Domain

text:
    Succession of Willie JENKINS, Plaintiff-Appellant v. Marietta W. LEONARD and James Richard Wilson, III, Defendants-Appellees.
    No. 47,001-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 29, 2012.
    Rehearing Denied April 5, 2012.

      Douglas Leon Stokes, Jr., Jonesboro, LA, for Appellant.
    Culpepper & Carroll, PLLC, Jonesboro, LA, by Bobby L. Culpepper, for Appellee.
    Before BROWN, GASKINS, and LOLLEY, JJ.
   BROWN, Chief Judge.

11 This appeal is from the trial court’s judgment rendered in an action for declaratory judgment filed by the Succession of Willie Jenkins to have six properties located in Jackson Parish removed from the judgment of possession rendered in the Succession of Thelma Atkins Jenkins.

On January 10, 1975, Willie Jenkins and Thelma Atkins Wilson Jenkins were married. Each spouse had been married previously, and each had children from his/her prior union. Three days before their marriage, on January 7, 1975, Willie and Thelma entered into a Marriage Contract wherein they renounced the community property regime in favor of a separate property regime. This premarital agreement was signed, witnessed and notarized, then filed for registry in the conveyance records of Jackson Parish, Louisiana.

During the marriage, ten properties were acquired. Four of these (tracts described in deeds introduced into evidence as Exhibits # 2, 4, 5 and 11) are co-owned property; they are not at issue in the instant appeal. Two other properties (described in deeds introduced into evidence as Exhibits # 9 and 10) were determined by the trial court to be the separate property of Willie Jenkins; these properties are also not at issue in this appeal. What is at issue in this appeal are the remaining four properties: three were held to be co-owned and thus one-half of each was found to be duly included in the Succession of Thelma Jenkins (properties described in deeds introduced 12into evidence as Exhibits # 1, 3 and 8); and one which the trial court failed to address in its judgment (property described in deed introduced into evidence as Exhibit # 7).

Willie predeceased his wife Thelma. His succession was opened, and an executrix was appointed. Thereafter, Thelma died. Her succession was opened, and a judgment of possession was rendered, placing defendants, Marietta W. Leonard and James Richard Wilson, III, into possession of certain described properties, which included full ownership of the ten tracts referred to above.

The executrix of the Succession of Willie Jenkins asked the heirs of Thelma Jenkins to amend the judgment of possession to reflect the “true ownership” of the ten tracts. The heirs refused, and the instant action for declaratory judgment was instituted by plaintiff. On behalf of the Succession of Willie Jenkins, the executrix sought judgment declaring that at the time of her death, Thelma Jenkins owned an undivided one-half interest in four tracts (those described in Exhibits # 2, 4, 5 and 11) and had no interest in the other six tracts.

The matter was tried solely on the basis of documentary exhibits submitted by plaintiff, which included the marriage license and marriage contract of Willie and Thelma Jenkins; the judgment of possession in Thelma Jenkins’ succession; and ten deeds numbered # 1-5, 7-11. The trial court found two of the tracts to be the separate property of Willie Jenkins |3(# 9 and 10) and therefore improperly included in the judgment of possession of the Succession of Thelma Jenkins. The court then found seven of the tracts to be co-owned property, and declared that only one-half of each was to be included in the judgment of possession in the Succession of Thelma Jenkins. As noted above, one tract (# 7) was omitted from the judgment.

Plaintiff, the Succession of Willie Jenkins, has appealed from the trial court’s judgment, urging error in the court’s determination of the ownership of the properties described in Exhibits # 1, 3 and 8, and in its failure to determine the ownership of the property described in Exhibit # 7. For the reasons set forth below, we reverse in part and render judgment in accordance with reasons set forth herein.

Discussion

The law in effect when Willie and Thelma Jenkins were married (prior to 1980) provided that the regime for married persons was the community of acquets and gains, which exists by operation of law in all cases where there is no stipulation to the contrary. As provided by the legislature in the matrimonial regimes revision, Acts 1979, No. 709, § 1, effective January 1, 1980, spouses living under a separate property regime prior to the Act would continue to do so subject to its provisions. The parties could modify or limit the legal regime and could agree that it would not even exist between them. La. C.C. art. 2332 (1870); McAlpine v. McAlpine, 94-1594 (La.09/05/96), 679 So.2d 85. A matrimonial agreement had to be made by an act before a notary and two witnesses and |4had to be entered into prior to the marriage. La. C.C. arts. 2328, 2329 (1870); Succession of Ventre, 96-559 (La.App. 3d Cir.11/06/96), 682 So.2d 988. The authentic act constituted full proof of the agreement it contained, and was valid as to third persons from the date of its recordation. La. C.C. art. 2332.

Any provision in a marriage contract that is not violative of law or public policy is binding on the contracting parties as long as the contract lasts. Desobry v. Schlater, 25 La.Ann. 425 (1873). There is no public policy against a marriage contract abrogating the existence of a community of acquets and gains. Sarpy v. Sarpy, 323 So.2d 851 (La.App. 4th Cir.1975). The court in Clay v. United States, 161 F.2d 607 (5th Cir.1947), pointed out that the terms in a duly executed prenuptial agreement override any tacit understanding or conduct of the parties during the existence of the marriage.

The trial court’s findings regarding the nature of the property as community or separate are factual determinations. Bhati v. Bhati, 09-1030 (La.App. 3d Cir.03/10/10), 32 So.3d 1107; Biondo v. Biondo, 99-0890 (La.App. 1st Cir.07/31/00), 769 So.2d 94; Harvey v. Amoco Production Company, 96-1714 (La.App. 1st Cir.06/20/97), 696 So.2d 672. In order to reverse a trial court’s determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Bonin v. Ferrellgas, Inc., 03-3024 (La.07/02/04), 877 So.2d 89; Stobart v. State, 5through Dept. of Transportation and Development, 617 So.2d 880 (La.1993).

In a marriage contract duly executed by authentic act and recorded three days before their wedding, Willie and Thelma Jenkins established a separate property regime. In this agreement, the soon-to-be spouses provided that:

[5]aid intended husband and wife each shall be separate in property. Accordingly, they and each of them does hereby formally renounce those provisions of the Revised Civil Code which establish a community of acquets and gains between husband and wife.
All property and effects of the said husband and wife, whether owned by him or by her at the time of the celebration of said intended marriage, or acquired by him or by her during said marriage, are hereby declared to be separate property, and that of the wife, separate and para-phernal property, and they and each of them does hereby expressly reserve to themselves individually the entire administration of their respective particular movable and immovable property, and the respective free enjoyment of each of the fruits and revenues of each. Each of them did further declare that each individually shall, after the marriage, be responsible for the individual obligations which each has before the marriage, and which each incurs individually after the marriage.

The heirs of Thelma Jenkins, defendants-appellees, argue that one phrase in one sentence in the marriage contract makes “very little sense.” The one-sentence paragraph must be read as a whole. The sentence clearly states that “each of them does hereby expressly reserve to themselves individually the entire administration of their respective particular movable and immovable property, and the respective free enjoyment of each of the fruits and revenues of each.”

| f;There is no evidence that the Jenkinses executed or recorded anything thereafter or otherwise indicated an intent to formally terminate their separate property regime and/or to establish a community property regime. Furthermore, in addition to the contractual regime they established in their marriage agreement, in which they clearly renounced the legal regime of a community of acquets and gains and chose instead a separate property regime for their marriage, the couple renounced the provisions in the Louisiana Civil Code which establish a community property regime between a husband and a wife.

Therefore, the presumption of community afforded by La. C.C. art. 2340, which provides that things in the possession of a spouse during the existence of a regime of community of acquets and gains are presumed to be community, is inapplicable. See K. Spaht & L. Hargrave, Matrimonial Regimes § 8.2, in 16 Louisiana Civil Law Treatise (West, 2d ed.1997). See Lee v. Lee, 03-1483 (La.App. 3d Cir.03/17/04), 868 So.2d 316; Toups v. Toups, 97-393 (La.App. 3d Cir.10/08/97), 702 So.2d 822.

Although living under a contractual regime of separate property, Willie and Thelma Jenkins apparently occasionally opted to acquire and treat certain assets as co-owned property, such as the four tracts that are not at issue in this case. We note that in these four deeds, the vendee or purchaser is clearly and specifically described as “Willie Jenkins and Thelma A. Jenkins, married to and living with each other....”

There was no evidence whatsoever that Willie and Thelma Jenkins altered the separate property regime they established in their marriage |7contract. The couple’s purchase of several assets together did not manifest an intent to abolish the marital regime they established by contract nor did it somehow convert them marital regime from separate to one of acquets and gains. The trial court erred in concluding otherwise and in applying La. C.C. art. 2340’s presumption of community to the assets at issue in this case.

As noted infra, there was no testimony whatsoever in this case and the only documentary evidence considered by the trial court on classification of the properties at issue was the marriage license and marriage contract of Willie and Thelma Jenkins; the Judgment of Possession in Thelma Jenkins’ succession; and the ten property deeds, seven of which were not signed by Willie Jenkins. We note that he did sign the other three deeds; however, Thelma’s signature appears on none of the deeds. In two of the deeds the purchaser is described as Willie Jenkins. In four of the deeds, the purchaser is listed as Willie Jenkins, and there is varying descriptive language indicating his marriage to Thelma. The only four deeds which describe the vendees/purchasers in the plural and not the singular sense are those which the parties have agreed are co-owned property.

One deed describes the purchaser as “Willie Jenkins, husband of Thelma Jenkins, with who he is living and residing in community.” Another deed describes the purchaser as “Willie Jenkins, married twice, first to Celestine Jenkins (nee Bradford) from whom he is legally divorced and then to Thelma Wilson Jenkins (nee Atkins) with who [sic] he is now living in full community ...”

|sWhen a couple has clearly chosen to be separate in property and has followed the legal prerequisites to accomplish their intent, the mere inclusion of the name of a spouse and one’s marital status in a deed does not, standing alone, constitute evidence of an intent to make an asset community rather than separate. A commonsense reading of the vendee/purchaser language in the deeds in Exhibits 1, 3, 7 and 8 leads to the inescapable conclusion that Willie Jenkins was the purchaser and therefore, without any other evidence to the contrary, these tracts are his separate property and were therefore improperly included in the Succession of Thelma Jenkins.

Having found no reasonable basis for the trial court’s factual findings in this case, and further that the court was clearly wrong in classifying the properties described in Exhibits # 1, 3, and 8 as community rather than separate, we reverse that portion of the trial court’s judgment related to these three tracts. We also find that the property described in Exhibit # 7 is the separate property of Willie Jenkins and therefore improperly included in the Succession of Thelma Jenkins.

Conclusion

For the reasons set forth above, we reverse that portion of the trial court’s judgment recognizing the following described properties (numbered in accordance with the Exhibits and Judgment of Possession in the Succession of Thelma Atkins Jenkins dated July 31, 2008, in Probate Docket No. 5993, Second Judicial District Court, Parish of Jackson, State of Louisiana) as community property or co-owned property belonging to |9Marietta W. Leonard and James Richard Wilson, III, and the Succession of Willie Jenkins:

(1) Lots 33 and 34 of Block 21 of the Village and/or Town of Hodge, Jackson Parish, Louisiana, including all improvements and appurtenances thereunto belonging.
(3) Lot 1 of Block 23 of the Village and/or Town of Hodge, Jackson Parish, Louisiana.
(8) Lot 12 of Block 25 of the Village and/or Town of Hodge, Jackson Parish, Louisiana, together with all improvements and appurtenances thereunto belonging.

We hereby render the following judgment.

It is ORDERED, ADJUDGED and DECREED that the Succession of Willie Jenkins is hereby recognized as the owner of the following property (numbered in accordance with the Exhibits and the Judgment of Possession in the Succession of Thelma Atkins Jenkins dated July 31, 2008, in Probate Docket No. 5993, Second Judicial District Court, Parish of Jackson, State of Louisiana), which is declared to be the separate property of Willie Jenkins:

(1) Lots 33 and 34 of Block 21 of the Village and/or Town of Hodge, Jackson Parish, Louisiana, including all improvements and appurtenances thereunto belonging.
(3) Lot 1 of Block 23 of the Village and/or Town of Hodge, Jackson Parish, Louisiana.
(7) Lot 19 of Block 24 of the Village and/or Town of Hodge, Jackson Parish, Louisiana, together with all improvements and appurtenances thereunto belonging.
(8) Lot 12 of Block 25 of the Village and/or Town of Hodge, Jackson Parish, Louisiana, together with all improvements and appurtenances thereunto belonging.

It is further ORDERED, ADJUDGED, and DECREED that the Judgment of Possession in the Succession of Thelma Atkins Jenkins |, preferred to herein be amended to delete the above four tracts (described in said Judgment of Possession as # 1, 3, 7 and 8). In all other respects the judgment of the trial court is affirmed.

AFFIRMED IN PART, REVERSED IN PART, and RENDERED.

APPLICATION FOR REHEARING

Before BROWN, GASKINS, CARAWAY, MOORE, and LOLLEY, JJ.

Rehearing denied.

      . The property in Exhibit # 11 is referred to in the trial court's judgment as No. 7. For purposes of clarity and simplicity, however, throughout this opinion, all properties will be referred to in accordance with their Exhibit numbers.

      . The property in Exhibit # 8 is referred to in the trial court's judgment as No. 6.

      . For whatever reason, there is no Exhibit #6.


text:
    Pattie Gilbert SHAW, Plaintiff-Appellee v. Gregory Stephen SHAW, Defendant-Appellant.
    No. 46,993-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 29, 2012.
    Rehearing Denied April 5, 2012.

      Donald A. Weathersby, II, for Appellant.
    The Malone Law Firm, LLC, Shreveport, LA, by Mary E. Winchell, for Appel-lee.
    Before BROWN, DREW, and SEXTON (pro tempore), JJ.
   BROWN, Chief Judge.

' | ] Questions concerning community or co-owned property and the retroactive application of a final child support judgment are at issue in this appeal. We affirm in part and reverse in part.

Facts and Procedural Background

After three years of living together, appellant, Gregory Stephen Shaw, and appel-lee, Pattie Gilbert Shaw, married on February 2, 2001. One child was born during this marriage. On February 19, 2009, Ms. Shaw filed a petition for divorce, custody, and permanent child support.

The Shaws executed a post-nuptial agreement on July 11, 2001, whereby they acknowledged a partition of their community property and established a separate property regime. A judgment approving the Shaws’ petition was signed on July 13, 2001. Prior thereto, on May 31, 2001, Pattie Shaw formed Lancer Link Express, Inc. At the time of the post-nuptial execution, Lancer Link Express had not begun business operations or acquired any assets.

The Shaws worked together out of their home as freight brokers for Lancer Link Express. Upon the breakdown of them marriage, Mr. Shaw left the employ of the business. While the record is light on specifics, it is known that Mr. Shaw was unemployed for an extended period, during which he allegedly survived monetarily on unemployment benefits, raiding his retirement accounts, selling his baseball cards and gambling (the child support worksheet filed in the record shows that he earned $1,300 monthly | ^shooting pool at Fast Eddies). Mr. Shaw attempted to start a competing freight brokerage firm until Ms. Shaw enjoined him from contacting Lancer Link Express clients. Ultimately, Mr. Shaw obtained full-time employment with Ashley Ann Energy. We also note that, on the date of judicial demand, February 19, 2009, the petition filed by Ms. Shaw sets forth her belief that Mr. Shaw was “living from his vehicle and/or residing at American Best Value Inn, Bossier City, Louisiana.”

By agreement, an interim child support order was issued on October 28, 2009, requiring Mr. Shaw to pay monthly child support in the amount of $80 effective November 1, 2009. On April 19, 2010, a judgment of divorce was rendered granting joint custody to the parties and designating Ms. Shaw as the domiciliary parent. At that time, the parties reached another agreement as to child support and, on April 29, 2010, a second interim child support order was signed wherein Mr. Shaw was ordered to pay $500 per month retroactive to March 2, 2010, plus six monthly installments of an additional $130 to cover his arrears of $840. On April 21, 2010, Mr. Shaw filed a petition for judicial partition of community and/or co-owned property. On July 22, 2010, Ms. Shaw filed a rule to set permanent child support. Both the partition and permanent child support issues were heard on November 29, 2010. The parties agreed, and it was so ordered on December 17, 2010, that Mr. Shaw would pay monthly child support in the amount of $1,328 “at least retroactive back to July (22, 2010),” plus six monthly installments of an additional $482 to cover his arrears of $2,892. The trial court ordered the parties each to submit a memorandum of law ^regarding whether the permanent child support order should be made retroactive to the date of the initial judicial demand, February 19, 2009. Additionally, in response to the petition for judicial partition of community and/or co-owned property filed by Mr. Shaw, the trial court ordered each party to submit a memorandum of law regarding the legal effect of the post-nuptial agreement on the classification of property acquired prior to the execution of that agreement. Of particular import was the freight brokerage business, Lancer Link Express. Mr. Shaw also sought reimbursement of $15,000 he claims to have given to Ms. Shaw as a down payment for the home she purchased during their marriage.

On March 24, 2011, after hearing further arguments, the trial court, relying on the recent supreme court case of Vaccari v. Vaccari, 10-2016 (La.12/10/10), 50 So.3d 139, held that the final child support judgment was retroactive to the date of the judicial demand, February 19, 2009. The court also determined that all shares of stock issued by Lancer Link Express to Ms. Shaw were her separate property. The court did not address the issue concerning Mr. Shaw’s claim for reimbursement of $15,000.

Discussion

Community property

Mr. Shaw contends that the trial court erred in ruling that the parties’ post-nuptial agreement terminated the existence of the community property regime as to property acquired before its execution. Specifically, Mr. Shaw contends that the trial court erred in ruling that all outstanding stock in Lancer Link Express was the separate property of Ms. Shaw.

|4The legal regime of married persons is the community of acquets and gains. La. C.C. art. 2327. Spouses may enter into a matrimonial agreement during marriage to modify or terminate the matrimonial regime only upon a joint petition and a finding by the court that it serves the parties’ best interests. La. C.C. art. 2329. A matrimonial agreement is a contract establishing a regime of separation of property or modifying or terminating the legal regime. Spouses are free to establish by matrimonial agreement a regime of separation of property or modify the legal regime as provided by law. The provisions of the legal regime that have not been excluded or modified by agreement retain their force and effect. La. C.C. art. 2328.

As noted infra, the Shaws executed a post-nuptial agreement on July 11, 2001, whereby they acknowledged a partition of their community property and established a separate property regime. This agreement was approved by a judgment signed on July 13, 2001. Lancer Link Express was formed by Ms. Shaw on May 31, 2001. At the time of the parties’ post-nuptial agreement, Lancer Link Express had not begun business operations or acquired any assets.

Mr. Shaw contends that since the company was formed prior to the establishment of the parties’ separate party regime, it remains community property held in indivisión by the parties since no partition of the property of their “community” has ever been effected. The trial court found, however, that the post-nuptial agreement clearly terminated the community of acquets and gains relating to all property acquired during the parties’ marriage, including ownership of Lancer Link Express. We agree.

|sRelevant portions of the Shaws’ post-nuptial agreement state:

Paragraph II: During the marriage the parties have not acquired property, which was classified as community property under them previous regime. The parties hereby settle all claims, rights, and obligations resulting from their community property regime and enter into a separation of property regime. Paragraph VI: IN CONNECTION BOTH PARTIES DO ASSERT AND AFFIRM THAT THEY HAVE READ THIS AGREEMENT AND FULLY UNDERSTAND IT AND THAT THEY HAVE RECEIVED SUBSTANTIALLY EQUAL PROPERTY IN THIS PARTITION AGREEMENT ...
Paragraph VIII: Each party agrees and stipulates that this agreement is a compromise of the disputes existing between them and has entered into for the purpose of partitioning the community of gains previously existing between them ... (Emphasis added).

It is clear that the parties intended to terminate the community property regime, and that they did in fact partition all existing community property prior to the establishment of their separate property regime. Mr. Shaw’s claim to the contrary is not supported by the executed agreement.

Child Suppoti Retroactive to Date of Judicial Demand

La. R.S. 9:315.21 sets forth the circumstances in which a court may make a child support judgment retroactive:

A. Except for good cause shown, a judgment awarding, modifying, or revoking an interim child support allowance shall be retroactive to the date of judicial demand, but in no case prior to the date of judicial demand.
B. (1) A judgment that initially awards or denies final child support is effective as of the date the judgment is signed and terminates an interim child support allowance as of that date.
(2) If an interim child support allowance award is not in effect on the date of the judgment awarding final child support, the judgment shall be retroactive to the date of judicial demand, except for good cause shown, but in no case prior to the date of judicial demand.

IfiUntil Vaccari, supra, the consensus among the appellate circuits was that, based upon La. R.S. 9:315.21(B)(1), a final child support judgment was not retroactive to the date of judicial demand when an interim child support award had been in effect. In Vaccari the supreme court found, however, that the statute did not expressly forbid a court from making a final child support award retroactive, and that the absolute denial of retroactivity in 9:315.21(B)(1) situations had the possibility of leading to absurd and unjust outcomes.

In Vaccari, supra, Mr. Vaccari submitted an affidavit at the hearing on his ex-wife’s demand for interim child support stating that his 2004 income was approximately $262,000. Based upon this representation, the court ordered Mr. Vaccari to pay $7,000 per month in interim child support. In the following years, a particularly contentious discovery process played out wherein both parties were accused of withholding financial information, including tax returns and corporate records. Eventually, the trial court appointed a forensic accountant to examine the parties’ finances. The court-appointed accountant determined that Mr. Vaccari’s 2004 income was substantially higher than originally claimed. Rather than the reported $262,000, his income was more than $3.5 million for the year in question. As a result, the trial court found that Ms. Vac-cari was entitled to a final monthly child support award of $16,546 retroactive to the date of judicial demand. On appeal, the court of appeal reversed, finding that the trial court did not have the statutory authority to make the award retroactive, The Louisiana Supreme Court granted Ms. Vaccari’s writ “to clarify under what ^circumstances an award of final child support may be made retroactive to the date of judicial demand.” The supreme court, 50 So.3d at 140-41, stated:

We reverse and reinstate the judgment of the trial court, finding the relevant statute does not forbid a court from rendering a final child support award retroactive, and good cause exists for the trial court to do so here. This is not to say a final child support award must be retroactive, or even that it should be made retroactive in every proceeding. But in cases such as this one, where a party files a false affidavit in an effort to avoid the full extent of his child support obligation, it is only proper to make the award retroactive so he will not benefit from his own misdeeds. (Emphasis added).

The supreme court’s determination that the final support judgment should be made retroactive was directly related to Mr. Vaccari’s “obfuscatory tactics” and his “misrepresenting material facts.” The court deduced that, had Mr. Vaccari been open and truthful from the outset, the original interim support award would have been significantly higher. Thus, the retro-activity of the judgment “treat[ed] him the same as if he had been truthful all along.”

Accordingly, Vaccari carved out an exception to the absolutism in which appellate courts were denying retroactivity in La. R.S. 9:315.21(B)(1) situations. “Upon a showing of good cause, a trial court may order a final child support award retroactive to the date of judicial demand even though there has been an interim award in effect.” Vaccari, supra at 143. Many divorce, custody, and/or support cases involve a heightened level of contention and gamesmanship, but in egregious instances, such as the gross misrepresentation of a material fact in Vaccari, the supreme court clarified that retroactivity was just and proper so that a party could not benefit from |Rhis own misdeeds. While this clearly opens the door for trial courts to make final child support judgments retroactive to the date of judicial demand when an interim support award had been in effect, retroactivity is the exception, not the rule.

The supreme court’s decision in Vaccari, supra, also shifted the burden of proof. Unlike all other subsections of La. R.S. 9:315.21 that required retroactivity, “except for good cause shown,” final judgments issued in accordance with La. R.S. 9:315.21(B)(1) are only to be retroactive “upon a showing of good cause.” Thus, the burden of proof would be on the obli-gee.

In the case sub judice, Mr. Shaw and Ms. Shaw worked together out of their home as freight brokers. With them separation, Mr. Shaw had to leave his employment with the family business. Mr. Shaw was unemployed for an extended period, during which he allegedly survived monetarily on unemployment benefits, raiding his retirement accounts, shooting pool, and selling his baseball cards. Mr. Shaw attempted to start a competing freight brokerage firm but was enjoined from contacting Lancer Link Express clients. We again note that, on the date of judicial demand, February 19, 2009, the petition filed by Ms. Shaw sets forth her belief that Mr. Shaw was “living from his vehicle and/or residing at American Best Value Inn, Bossier City, Louisiana.”

Mr. Shaw eventually found employment with Ashley Ann Energy. At the time when final child support was agreed to, the Louisiana Child Support Worksheet showed that he earned monthly $5,375 from Ashley 19Ann Energy and $1,300 “on gambling earnings from shooting pool at Fast Eddies.”

At the hearing to set permanent child support on March 24, 2011, the trial court, in holding that the final child support judgment was retroactive to the date of judicial demand, stated:

Well, good cause is a lot of things. One thing good cause is, is that this child, [ ] needs support, and, you know, our law recognizes that both parents support their child.
I think there is good cause to make it retroactive and I believe that according to Vaccari it could be retroactive and should be retroactive to the February 19, 2009, was the date of judicial demand. I don’t believe that I have any discretion in that, other than, whether or not I think there is good cause. I think that it says that I — let’s see — shall be retroactive to the date of judicial demand except for good cause shown.

We find the trial court’s reasoning to be flawed for two reasons. First, the good cause upon which the trial court relied is all encompassing and universal-all children need the support of their parents. If we allowed that reasoning to stand, there would be no limitation on the ability of a court to make final support judgments retroactive when an interim support award has been in effect. Second, the trial court misapplied or misread the statutory provision. The trial court appears to be erroneously guided by one of the other subsections of La. R.S. 9:315.21 which requires retroactivity except for good cause shown by the obligor, Mr. Shaw. Under Vaccan, this is a misstatement of the applicable law. As to the pertinent section of the law, La. R.S. 9:315.21(B)(1), the burden of proving good cause is on the obligee, Ms. Shaw.

ImWe find that, based upon the record before us, there was no showing of good cause to make the final child support judgment retroactive. There are no allegations or findings of misrepresentations of material facts or other misdeeds on the part of Mr. Shaw. There was a period during which Mr. Shaw made no child support payments. This period, it appears, is partly the basis upon which the trial court found good cause. We note, however, that this period also preceded the awarding of interim child support. In accordance with La. R.S. 9:315.21 (A), interim child support could have been awarded retroactively; however, the parties reached an agreement on the amount of the interim support and the date of its effectiveness. Prior to the initial interim support award, Mr. Shaw had been unemployed so the parties agreed to a low support amount and not to make the interim award retroactive.

In summation, the Shaws agreed to the terms of the interim support award. They agreed to the amount, the effective date, and the retroactivity (or lack thereof) of the support award. Now, Ms. Shaw is arguing that good cause exists to make the final support judgment retroactively apply to the period for which the agreement covered. There are no allegations that Ms. Shaw was induced into the agreements by trickery or deception, or that Mr. Shaw misrepresented his finances. Clearly, the underlying facts in this proceeding do not rise to the level of egregiousness that led to the supreme court’s holding in Vaccari, supra. As such, the trial court erred in making the final child support award retroactive to the date of judicial demand.

\ ^Conclusion

For the reasons stated above, that portion of the judgment of the trial court finding Lancer Link Express, Inc., to be the separate property of appellee, Pattie Gilbert Shaw, is affirmed. That portion of the judgment making the final child support award retroactive to the date of judicial demand, however, is reversed. Judgment is thus entered affirming the trial court’s judgment, except that final child support shall be retroactive from the date the parties agreed to, July 22, 2010. Nothing has been presented concerning the alleged reimbursement of $15,000 due to Mr. Shaw and, like the trial court, we have no evidential basis on which to award such a reimbursement. Costs of this appeal are assessed to the parties equally.

APPLICATION FOR REHEARING

Before BROWN, CARAWAY, DREW, LOLLEY, and SEXTON, JJ.

Rehearing denied.

      . The Shaws had executed a prenuptial separate property agreement but later learned that it did not comport with the requirements of law. On advice of counsel the post-nuptial agreement was executed and approved by the court.

      . Paul Newman played a pool hustler called Fast Eddie in the movie "The Hustler.”

      . The date the judgment was signed terminating interim support and awarding final support was December 17, 2010; however, the parties agreed that it would be retroactive at least from July 22, 2010, the date the rule was filed.


author: DREW, J.

text:
    STATE of Louisiana, Appellee v. Rebecca HOLDER, Appellant.
    No. 47,002-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 29, 2012.

      Louisiana Appellate Project, by Peggy J. Sullivan, Monroe, LA, for Appellant.
    John Schuyler Marvin, District Attorney, John Michael Lawrence, John W. Montgomery, Marcus Ray Patillo, Assistant District Attorneys, for Appellee.
    Before STEWART, GASKINS and DREW, JJ.
   DREW, J.

11 Rebecca Holder entered a plea of guilty to one count of attempted possession of a firearm by a convicted felon. La. R.S. 14:95.1. She was sentenced to two years at hard labor without benefits. She now appeals the excessiveness of her sentence. We affirm the conviction and sentence.

FACTS

On March 16, 2010, defendant’s ex-husband complained that she stole his guns. A neighbor reported seeing defendant remove a gun case from the trunk of his car and wrap it in a blue towel.

Defendant was initially charged with two counts of possession of a firearm by a convicted felon. Her previous conviction was for possession of methamphetamine. Upon her plea to the reduced charge, the second charge was dismissed. The trial court ordered a presentence investigation (“PSI”).

At the sentencing hearing, the trial court:

• reviewed the PSI, noting defendant’s educational and social history;

• considered the sentencing guidelines (La. C. Cr. P. art. 894.1);

• noted that the defendant was categorized by the Louisiana Department of Corrections as a second-felony offender;

• commented upon her pending felony drug charge in Bossier Parish;

• considered as mitigating factors that defendant’s mother passed away when defendant was young;

• noted defendant’s good work record; and

• noted that defendant suffered mental issues.

The trial court sentenced defendant to serve two years at hard labor without benefit of probation, parole or suspension of sentence, and | ¡.recommended that she be allowed to participate in the most rigorous substance abuse program available.

Defendant’s motion to reconsider sentence was denied. The trial court recommended that she undertake in-house substance abuse treatment.

DISCUSSION

Defendant argues that a sentence of two years at hard labor, without benefits, is harsh and excessive for an educated person with a good employment history, who suffers from an addiction. The state responds that defendant benefited considerably by the reduction and dismissal of charges, and that this sentence is well within the sentencing range.

La. R.S. 14:95.1(B), as it read at the time of the crime, provided the penalty for possession of a firearm by a convicted felon, containing no specific requirements as to the appropriate sentencing range for an attempt:

Whoever is found guilty of violating the provisions of this Section shall be imprisoned at hard labor for not less than ten nor more than fifteen years without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars.

Accordingly, the sentencing parameters before us bear no minimum fine and no minimum period of imprisonment, as this case is controlled by | sthe general attempt provisions found in LA. R.S. 14:27(D)(2), as it read at the time of this offense.

Our law pertaining to the review of ex-cessiveness is well settled.

Pursuant to La. R.S. 14:95.1(B) as well as La. R.S. 14:27(D)(3), defendant’s possible sentencing exposure for her conviction of attempted possession of a firearm by a convicted felon was zero to 7 ½ years at hard Llabor, without benefits. She was sentenced to two years at hard labor, without benefits.

This low-range sentence is appropriate. It is neither grossly disproportionate to the severity of the offense, abusively punitive, nor shocking to the sense of justice.

DECREE

The defendant’s conviction and sentence are AFFIRMED.

      . Police officers recovered two firearms in defendant's backyard. The weapons were wrapped in blue jeans.

      . La. R.S. 14:95.1(B) was later amended by Act 815 of 2010, effective August 15, 2010, which made two changes to this felon-in-possession statute:
      • Increased the maximum sentence from 15 years to 20 years, without benefits; and
      • Added a specific provision relative to the penalty for an attempt of this crime.
      The 2010 amendment is irrelevant here, as this crime occurred in March of 2010.

      . "La. R.S. 14:27 Whoever attempts to commit any crime shall be punished as follows:

      D. (3) In all other cases, he shall be fined or imprisoned or both, in the same manner as for the offense attempted; such fine or imprisonment shall not exceed one-half of the largest fine, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both.

      . An appellate court utilizes a two-pronged test in reviewing a sentence for excessiveness. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App.2d Cir.8/13/08), 989 So.2d 267, writ denied, 2008-2697 (La.9/18/09), 17 So.3d 388. The important elements which should be considered are the defendant's personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259, writ denied, 2008-2341 (La.5/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir. 12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351.
      Second, the court must examine whether the sentence is too severe considering the circumstances of the case and the background of the defendant. A sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La. 1/15/02), 805 So.2d 166; State v. Robinson, 40,983 (La.App.2d Cir. 1/24/07), 948 So.2d 379.
      A trial court has broad discretion to sentence within the statutory limits. State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641; State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158. Absent a showing of manifest abuse of that discretion, the appellate court may not set aside a sentence as excessive. State v. Guzman, supra.


author: STEWART, J.

text:
    STATE of Louisiana, Appellee v. Bobby Ray JONES, Jr., Appellant.
    No. 46,994-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 29, 2012.
    Douglas L. Harville, for Appellant.

      Bobby Ray Jones, Jr., Pro se.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, William M. Altimus, Assistant District Attorneys, for Appellee.
    Before STEWART, GASKINS and DREW, JJ.
   STEWART, J.

LThe defendant, Bobby Ray Jones, Jr., pled guilty to one count of attempted armed robbery and was sentenced to 15 years at hard labor without benefit of probation, parole, or suspension of sentence. For the reasons set forth in this opinion, we affirm his conviction and sentence and grant appellant counsel’s motion to withdraw.

FACTS

By bill of information filed on February 11, 2009, the defendant was charged with one count of sexual battery, a violation of La. R.S. 14:43.1, and one count of armed robbery, a violation of La. R.S. 14:64. By amendment to the bill of information on February 10, 2010, the defendant was charged with two additional counts of armed robbery. The armed robbery charges also included violations of La. R.S. 14:64.3 for use of firearm in the commission of the crimes.

On December 28, 2010, the defendant accepted a plea agreement and pled guilty to one count of attempted armed robbery with a sentencing cap of 15 years at hard labor. The sexual battery charge was nol prossed. During the plea colloquy, the trial court apprised the defendant of his rights under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The trial court also explained to the defendant that he could be sentenced up to 15 years at hard labor without the benefit of probation, parole, or suspension of the sentence and that his conviction could be used to enhance subsequent charges and penalties. The defendant, who was 21, a high school graduate, and represented by counsel, indicated that he understood the proceedings, the plea agreement, and the rights he was Rgiving up by pleading guilty. He indicated that he was pleading guilty because he was in fact guilty and not because of any inducements, promises, or threats. He admitted the facts as set forth by the state, namely, that on or about December 20, 2008, he attempted, while armed with a handgun, to rob the victim. Upon finding the plea to be free and voluntary, the trial court accepted the defendant’s guilty plea and ordered a pre-sentence investigation (“PSI”) report.

On March 12, 2011, the defendant appeared for sentencing. The trial court explained that he had reviewed the PSI report, the sentencing guidelines of La. C. Cr. P. art. 894.1, and a letter from the defendant. The trial court noted both aggravating and mitigating factors including, respectively, the seriousness of the incident from which the charges arose and the defendant’s status as a true first offender. The trial court also gave some weight to a letter in which the defendant took responsibility for his actions. Finally, the trial court noted the benefit of the 15-year cap to the defendant, who would have faced a much greater sentencing exposure if he had gone to trial and been found guilty of the charged offenses. In concluding its review, the trial court found the maximum sentence to be appropriate and sentenced the defendant to 15 years at hard labor without benefit of parole, probation, or suspension of the sentence. Lastly, the trial court had the minutes reflect that the remaining counts of armed robbery were nol prossed along with the sexual battery charge.

On April 28, 2011, the defendant filed a pro se motion to reconsider his sentence on the basis that he had taken responsibility for his actions, was |sremorseful, had no prior criminal record, and was not equipped “for the harsh reality of prison life.” The trial court denied the motion.

The trial court granted the defendant’s pro se appeal motion and appointed appellate counsel, who fíled a brief asserting that there are no non-frivolous issues and a motion to withdraw. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241; State v. Moutan, 95-0981 (La.4/28/95), 653 So.2d 1176; and State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990).

On November 10, 2011, this court ordered the motion to withdraw held in abeyance and notified the defendant that he could file a brief within 30 days of the date of the order. The order also informed the defendant that his failure to file a timely brief would mean that the appeal record would be reviewed only for error patent. The record shows that the defendant has not filed a pro se brief in this matter.

DISCUSSION

Appellate counsel’s brief outlines the procedural history of the defendant’s case and provides “a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place.” Jyles, supra. The brief reviews the plea colloquy, which shows a factual basis for the plea, that the defendant was properly Boykinized, and that his plea was free and voluntary. The brief notes that the sentence was in accord with a plea agreement that provided the defendant a substantial benefit by reducing his sentencing exposure |4from up to 99 years for armed robbery under La. R.S. 14:64 to a maximum of 15 years under the sentencing cap. Moreover, the brief notes that the defendant is procedurally barred from seeking review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. La. C. Cr. P. art. 881.2(A)(2); State v. Young, 96-0195 (La.10/15/96), 680 So.2d 1171.

Appellate counsel verifies that he has mailed copies of the brief and his motion to withdraw to the defendant in accordance with Anders, Jyles, Mouton, and Benjamin, supra. Moreover, the record shows that the defendant was given an opportunity to file a brief and has not done so.

We have reviewed this record for error patent and found none.

CONCLUSION

For the foregoing reasons, the motion to withdraw is granted, and the defendant’s conviction and sentence are affirmed.

AFFIRMED.