text:
    W.T.A., Individually and as Co-Administrator of the Estate of the Minor Child, A.J.A v. M.Y., et al.
    No. 2011-C-0491.
    Supreme Court of Louisiana.
    May 6, 2011.
   In re Yeager, Marcie; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. B, No. 97-5810-B; to the Court of Appeal, Third Circuit, No. 10-434.

Denied.

KNOLL and CLARK, JJ., would grant.


source: Caselaw Access Project

license: Public Domain

text:
    Edward COX v. PORT AGGREGATES, INC.
    No. 2011-C-0462.
    Supreme Court of Louisiana.
    May 6, 2011.
   In re Bridgefield Casualty Insurance Company; Port Aggregates Inc.; —Defendants); Applying For Writ of Certiorari and/or Review Office of Workers’ Compensation District 03, No. 09-05011; to the Court of Appeal, Third Circuit, No. 10-707.

Denied.

VICTORY and CLARK, JJ., would grant.


text:
    STATE of Louisiana in the Interest of A.L.
    No. 2011-CJ-0730.
    Supreme Court of Louisiana.
    May 6, 2011.
   In re S.L., Mother; —Other; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. L, No. 7745JJ; to the Court of Appeal, First Circuit, No. 2010 CJ 2100.

Denied.


text:
    STATE of Louisiana v. Daniel B. PRINCE.
    No. 2011-KK-0737.
    Supreme Court of Louisiana.
    May 6, 2011.
   In re Prince, Daniel B.; —Defendant; Applying For Supervisory and/or Remedíal Writs, Parish of Acadia, 15th Judicial District Court Div. J, No. 72,189; to the Court of Appeal, Third Circuit, No. KW 11-00423.

Denied.


text:
    STATE of Louisiana v. Daniel B. PRINCE.
    No. 2011-KK-0704.
    Supreme Court of Louisiana.
    May 6, 2011.
   In re State of Louisiana; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Acadia, 15th Judicial District Court Div. J, No. 72,189; to the Court of Appeal, Third Circuit, No. KW 11-00423.

Denied.


text:
    Norma STONE and Huie Stone v. Mark DODSON, M.D.
    No. 2011-CC-0921.
    Supreme Court of Louisiana.
    May 6, 2011.
   In re Dodson M.D., Mark; —Defendant; Applying For Supervisory and/or Remedíal Writs, Parish of Rapides, 9th Judicial District Court Div. G, No. 239,387; to the Court of Appeal, Third Circuit, No. CW 11-00519.

Denied.


text:
    SHIH CHANG HU v. EVERGREEN OF THE SOUTH, d/b/a Taste of China Restaurant and Yi Hua and Fang Hua.
    No. 2011-CC-0929.
    Supreme Court of Louisiana.
    May 6, 2011.
   In re Hua, Fang; Hua, Yi; —Defendants); Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 562,149; to the Court of Appeal, First Circuit, No. 2011 CW 0806.

Stay Denied. Writ Denied.


text:
    STATE of Louisiana v. Christopher CALENDER.
    No. 2011-KP-0928.
    Supreme Court of Louisiana.
    May 6, 2011.
   In re State of Louisiana; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. K, No. 432-327; to the Court of Appeal, Fourth Circuit, No. 2011-K-0461.

Stay denied; writ denied.


text:
    GREEN TRAILS, LLC v. STEWART TITLE OF LOUISIANA, INC., Stewart Title Guaranty Company, and Baton Rouge Title Company, Inc.
    No. 2011-CC-0919.
    Supreme Court of Louisiana.
    May 11, 2011.
   In re Baton Rouge Title Company Inc.; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. O, No. 550461; to the Court of Appeal, First Circuit, No. 2011 CW 0473.

Denied.


author: MARC E. JOHNSON, Judge.

text:
    Karina SUAREZ v. Wagih MANDO, M.D.
    No. 10-CA-853.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 29, 2010.

      Ivan A. Orihuela, Attorney at Law, Ri-guer Silva, L.L.C., Kenner, LA, for Plaintiff/Appellant.
    Paul M. Batiza, Attorney at Law, Me-tairie, LA, for Defendant/Appellee.
    Panel composed of Judges WALTER J. ROTHSCHILD, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

[ 2This is a medical malpractice case in which plaintiff, Karina Suarez, appeals the trial court’s granting of summary judgment in favor of defendant, Dr. Wagih Mando. We affirm.

FACTS AND PROCEDURAL HISTORY

On March 13, 2001, appellant underwent a laparoscopic cholecystectomy, or removal of her gallbladder, by Dr. Mando at East Jefferson General Hospital. Due to complications during the surgery, the laparo-scopic procedure was ultimately converted to an open cholecystectomy. During the laparoscopic procedure, appellant suffered a common duct injury and ligation of her right hepatic artery which required corrective surgery.

Appellant filed a medical malpractice complaint with the Patient’s Compensation Fund, which rendered a unanimous opinion against appellant on February 19, 2004 opining that Dr. Mando’s treatment did not fall below the applicable standard of care. The medical review panel further opined that Dr. Mando adequately informed appellant of the risks of the procedure.

[3On May 19, 2004, appellant filed a Petition for Damages in the district court against Dr. Mando seeking damages for injuries she received as the result of the surgery. Appellant alleged Dr. Mando violated the standard of care in performing the laparoscopic cholecystectomy, which resulted in damage to her internal organs. She further alleged that Dr. Mando failed to adequately disclose the risks of a lapa-roscopic cholecystectomy, which resulted in lack of informed consent.

Dr. Mando subsequently filed a motion for summary judgment on the basis appellant did not have expert medical testimony to support her allegations of medical malpractice against him. Dr. Mando argued that the absence of expert medical testimony indicating he breached the required standard of care precluded imposition of liability against him. He attached a copy of the medical review panel’s opinion that he did not breach the applicable standard of care in treating appellant to his motion for summary judgment.

Appellant filed an opposition to the motion for summary judgment and attached two different informed consent forms, testimony from the medical review panel, and the deposition of Dr. Daniel Frey, who performed her corrective surgery. Appellant asserted expert testimony was not needed to establish liability for Dr. Man-do’s acts of negligence. Nonetheless, appellant argued that the testimony of Drs. Frey and Kelvin Contreary showed a genuine issue of fact existed as to whether Dr. Mando breached the applicable standard of care. Appellant later supplemented her opposition with the deposition of Dr. Man-do and two affidavits, her own and that of her mother. The two affidavits stated that when appellant signed the surgery consent form, there.was no handwritten language under the material risks section of the form.

At the hearing on the motion for summary judgment, appellant argued that she had two experts to support her case: Dr. Contreary, who was on the medical preview panel, and Dr. Frey, who performed the corrective surgery. She admitted she had not retained these experts, but stated she intended to call them at trial. Appellant argued Dr. Contreary’s testimony during the medical review panel proceeding and Dr. Frey’s deposition were favorable to her. She further maintained that expert testimony was not required in her case. After appellant was unable to point to specific testimony from either Dr. Contreary or Dr. Frey that stated Dr. Mando breached the applicable standard of care, the trial court granted defendant’s motion for summary judgment.

LAW AND ANALYSIS

A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). The initial burden of proof is with the mover to show that no genuine issue of material fact exists. If the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The non-moving party must then produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the non-moving party fails to do so, there is no genuine issue of material fact and summary judgment should be granted. La. C.C.P. art. 966(C)(2); Schultz v. Guoth, 10-348, *3-4 (La.1/19/11), 57 So.3d 1002.

A material fact is one that potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the lawsuit. Hines v. Garrett, 04-806, p. 1 (La.6/25/04), 876 So.2d 764, 765 (per curiam). A genuine issue is a “triable issue.” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 | s (La.7/5/94), 639 So.2d 730, 751. If reasonable persons could disagree after considering the evidence, a genuine issue exists. However, if reasonable persons could reach only one conclusion on the state of the evidence, there is no need for a trial on that issue and summary judgment is appropriate. Id.; Alwell v. Meadowcrest Hosp., Inc., 07-376, p. 4 (La.App. 5 Cir. 10/30/07), 971 So.2d 411, 414. “In determining whether an issue is ‘genuine,’ courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence.” Smith, 93-2512 at 27; 639 So.2d at 751.

Appellate courts review the granting or denial of a motion for summary judgment de novo under the same criteria governing the district court’s consideration of whether summary judgment is appropriate. Specifically, appellate courts must ask the same questions as the district court: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Matthews v. Banner, 08-339, p. 3 (La.App. 5 Cir. 10/28/08), 996 So.2d 1161, 1163.

After a de novo review, we find the motion for summary judgment was properly granted in favor of Dr. Mando. Pursuant to La. C.C.P. art. 966(C)(2), Dr. Mando needed only to show that there was an absence of factual support for one or more elements essential to appellant’s claim. Thereafter, it was incumbent on appellant to produce factual support sufficient to establish that she would be able to satisfy her evidentiary burden at trial. Appellant’s petition asserted a medical malpractice claim based on negligence, or breach of the standard of care, and a medical malpractice claim based on lack of informed consent.

Negligence

A plaintiff in a medical malpractice action is required to establish (1) the standard of care applicable to the doctor; (2) a violation by the doctor of that | ^standard of care; and (8) a causal connection between the doctor’s alleged negligence and the plaintiffs injuries. La. R.S. 9:2794(A); Pfiffner v. Correa, 94-0924 (La.10/17/94), 643 So.2d 1228, 1283. Expert testimony is generally required to establish the applicable standard of care and whether that standard was breached, except where the negligence is so obvious that a layperson can infer negligence without the guidance of expert testimony such as fracturing a leg during examination, amputating the wrong limb, dropping a knife or scalpel on a patient, or leaving a sponge in a patient’s body. Samaha v. Ran, 07-1726, pp. 5-6 (La.2/26/08), 977 So.2d 880, 884; Pfiffner, 94-0924 at 9, 643 So.2d at 1233.

Dr. Mando’s motion for summary judgment was predicated on his contention that appellant had no expert testimony to support her allegation that he breached the standard of care. Contrary to appellant’s claim that an expert was not required in this case because of Dr. Mando’s obvious negligence, we find an expert was required in this case. This case was not simple. Appellant asserted Dr. Mando fell below the required standard of care in performing the laparoscopic cholecystectomy because, among other things, he did not properly identify the anatomical structures involved before cutting, failed to perform a eholangiogram, and failed to timely convert to an open procedure. These are not issues from which a layperson can infer negligence without the assistance of expert testimony. See Schultz v. Guoth, supra at *6, 57 So.3d 1005.

Despite arguing an expert was not required, appellant identified Drs. Contreary and Frey as experts who created a genuine issue of fact of whether the standard of care was breached.

Dr. Contreary was one of three doctors who unanimously concluded that Dr. Man-do did not breach the required standard of care. During the medical review |7panel proceeding, Dr. Contreary stated that he did not see anything in the record to indicate that Dr. Mando’s conversion from a laparoscopic to an open procedure was not done at the appropriate time. He explained that every doctor has a different comfort zone of when they are uncertain of things and will convert to an open procedure. Dr. Contreary further stated that although Dr. Mando ultimately did not correctly identify and clip the right structures, Dr. Mando’s clinical judgment showed he attempted to identify the right structures and thought he was clipping the right structures. He explained that the amount of inflammation and scarring in appellant could have assisted in the mis-identification of the structures. Dr. Con-treary also stated he does not normally do cholangiograms on his gallbladder patients. He explained that his use of cho-langiograms is extremely rare because he is not a believer in the procedure. He further stated whether a eholangiogram would have made a difference in appellant’s case is impossible to answer. Nothing in Dr. Contreary’s testimony helps appellant meet her burden of proving that Dr. Mando breached the standard of care.

Dr. Frey’s deposition is no more beneficial to appellant. In Dr. Frey’s deposition, he explains that the use of a cholangio-gram when unclear anatomy is involved is controversial. Dr. Frey was further unable to testify regarding the standard of care involved in the timing of converting from a laparoscopic to an open procedure. He explained that a surgeon converts when he feels the anatomy is of such a degree that he cannot figure it out laparo-scopically or when he has operated for a significant period of time but is not making enough headway. He said the timing can range from surgeon to surgeon depending on the doctor’s skill as a laparoscopic surgeon. Dr. Frey further confirmed the presence of anatomic anomalies in appellant that he observed during the corrective surgery. At no point |Rduring his testimony did Dr. Frey indicate Dr. Mando breached the applicable standard of care in performing the laparoscopic cholecystecto-my.

It was incumbent upon appellant to present expert testimony showing Dr. Mando breached the standard of care to overcome a summary judgment. She failed to do so. Therefore, we find summary judgment in favor of Dr. Mando on the issue of medical malpractice based on negligence was proper.

Informed Consent

We next examine the propriety of summary judgment on appellant’s claim of medical malpractice based on informed consent.

Under the Louisiana informed consent law, La. R.S. 40:1299.40, a physician is required to provide his patent with sufficient information to allow the patient to make an informed and intelligent decision on whether to submit to the proposed course of treatment. This information should include, if possible, “the nature of the pertinent ailment or condition, the general nature of the proposed treatment or procedure, the risks involved in the proposed treatment or procedure, the prospects of success, the risks of failing to undergo any treatment or procedure at all, and the risks of any alternate methods of treatment.” Hondroulis v. Schuhmacher, 558 So.2d 398, 410 (La.1988) (on rehearing).

As in cases alleging breach of the standard of care, the plaintiff in an informed consent case bears the burden of proving: (1) the existence of a material risk which the physician must disclose; (2) the failure of the physician to inform the patient of a material risk; (3) the realization of the material risk; and (4) a causal connection between the failure to inform the patient of the risk and the realization of the risk. Labit v. Cobb, 10-463, p. 6 (La.App. 3 Cir. 11/3/10), 50 So.3d 267, 271.

|cA risk is material “when a reasonable person in what the doctor knows or should know to be the patient’s position, would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forego the proposed therapy.” Hondroulis, 553 So.2d at 412. Determining the materiality of a risk is a two-step process. First, the existence and nature of the risk and the likelihood of its occurrence must be defined. This requires some expert testimony because only a physician or other qualified expert is capable of judging what risk exists and the likelihood of occurrence. Second, the trier of fact must decide whether the probability of that type of harm is a risk which a reasonable patient would consider in deciding on treatment. This second step in determining materiality does not require expert testimony. Brandt v. Engle, 00-3416, p. 7 (La.6/29/01), 791 So.2d 614, 619.

Although appellant’s petition alleges she was not informed of material risks associated with the laparoscopic cholecystecto-my, she did not specifically identify the material risks of which she was not advised. Two informed consent forms were introduced into evidence. One of the forms states the material risks as follows:

Pancreatitis (inflammation of the gland that produces insulin); Injury to the tube (common bile duct) between the liver and the bowel; Retained stones in the tube (common bile duct) between the liver and the bowel; Narrowing or obstruction of the tube (common bile duct) between the liver and the bowel; Injury to the bowel and/or intestinal obstruction.

A second form contains handwritten notes under the material risks section. The copy in the record is somewhat illegible but we are able to discern some of the handwriting to state additional material risks included injury to the liver and spleen, bleeding, hematoma, abdominal injury, and the fact the surgery may not be 110done laparoscopically. Appellant submitted an affidavit from herself and her mother that the handwriting was not present when she signed the consent form.

We do not reach the issue of whether appellant was advised of the handwritten portion of the informed consent form because the record is completely devoid of any expert evidence regarding the risks and likelihood of their occurrence during this type of procedure. Without any expert testimony on this issue, appellant will not be able to satisfy her evidentiary burden at trial. Therefore, we find summary judgment in favor of Dr. Mando was appropriate on appellant’s claim of medical malpractice based on informed consent.

DECREE

For the reasons discussed above, the judgment of the trial court granting summary judgment in favor of Dr. Wagih Mando is affirmed.

AFFIRMED.

      . A eholangiogram is an intraoperative procedure that allows the surgeon to look at the anatomy of the patient.


author: CLARENCE E. McMANUS, Judge.

text:
    Elizabeth Martinsen ARREGUI v. RISK MANAGEMENT SERVICES, LLC.
    No. 10-CA-263.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 15, 2011.

      Caleb H. Didriksen, Diane R. Cosenza, Amanda K. Wingfield, Richard J. Garvey, Didriksen Law Firm, Attorneys at Law, New Orleans, LA, for Plaintiff/Appellee.
    John J. Rabalais, Janice B. Unland, Ra-balais, Unland & Lorio, Attorneys at Law, Covington, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   CLARENCE E. McMANUS, Judge.

IgThis is an appeal by Risk Management Services, LLC from the trial court’s granting of summary judgment awarding plaintiff unpaid wages, unused vacation time, attorneys’ fees and penalties. For the reasons which follow, we affirm.

STATEMENT OF THE CASE

Elizabeth Arregui was employed by Risk Management Services, LLC from July 30, 2003 until July 2008. On July 14, 2008, Arregui notified Risk Management that she would resign effective July 25, 2008. On July 24, 2008, Arregui called her supervisor, Nick Vacarro, to advise that she was sick and was going to use sick time for July 24, 2008 and July 25, 2008, and she had a doctor’s appointment on July 25, 2008. On July 26, 2008, Arregui sent correspondence via email to Vacarro requesting payment for the two days sick time she had used on July 24 and 25, 2008. Risk Management issued a check to Arre-gui on August 8, 2008, which represented payment for her last week of work with Risk Management, but only included payment for three days of work and did not include payment for July 24 and 25, 2008.

Counsel for Arregui sent a demand letter to Risk Management dated July 8, 2009 demanding payment of Arregui’s accrued vacation time and the sick time used prior to her resignation. Risk Management did not pay the requested amount, | ^therefore, on July 24, 2009, Arregui filed a petition for summary relief and an amended petition for summary relief against Risk Management seeking payment for her vested vacation and sick time, including the two sick days taken on July 24 and 25, 2008, penalties, interest, attorney’s fees, and costs. On October 1, 2009, both Arregui and Risk Management filed motions for summary judgment. The cross motions for summary judgment were heard on November 24, 2009. On December 2, 2009, the trial court issued an Order granting Arregui’s motion for summary judgment and denying Risk Management’s motion. The trial court awarded Arregui two day’s wages in the amount of $244.62, 10.743 hours of vacation time in the amount of $175.19, 90 days penalty wages in the amount of $11,077.90, attorney’s fees in the amount of $2,000.00, and costs of $544.36. Risk Management now appeals this judgment.

For the following reasons, we affirm the trial court’s judgment.

DISCUSSION

On appeal, Risk Management first argues that Arregui’s exhibits were attached to the memorandum in support of the motion for summary judgment and not to the actual motion, therefore, the exhibits were not introduced into the record at the hearing and should not be relied on. Next, Risk Management argues Arregui forfeited her accrued vacation pay and is not entitled to accrued sick pay because she failed to comply with the employment policy of Risk Management. Finally, Risk Management argues the trial court erred in awarding attorney’s fees and penalty wages because it acted in good faith.

This is an appeal from the granting of a summary judgment in favor of Arregui. It is well settled that appellate courts review summary judgments de novo. Phillpott v. Clarendon America Insurance Company, 09-144, (La.App. 5 Cir. 9/29/09), 22 So.3d 1102, citing State ex rel. Dept. of Transp. and Development v. Central Gulf Towing, L.L.C., 07-166, (La.App. 5 Cir. 10/30/07), 971 So.2d 1163, 1166, writ denied, 2007-2304, 973 So.2d 761 (La.1/25/08). Appellate courts ask the same questions the trial court does in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Phillpott, supra, citing, Hood v. Cotter, 2008-0215 (La.12/2/08), 5 So.3d 819, 824. Summary judgment is appropriate when it has been shown by the mover that “there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966.

We find the trial court correctly granted summary judgment in favor of Arregui and correctly awarded her wages, unused vacation time, penalty wages, and attorney’s fees. First, we find no merit to Risk Management’s argument that the trial court incorrectly considered the exhibits attached to Arregui’s memorandum in support of her motion for summary judgment. At the hearing, the trial court noted the exhibits were already introduced into evidence.

In Aydell v. Sterns, 1998-3135 (La.2/26/99) 731 So.2d 189, the Louisiana Supreme Court granted writ in a matter finding that the Court of Appeal erroneously held that the trial court could not rely on the evidence submitted by the defendant in support of its motion simply because the evidence was attached to the memorandum in support of the motion and not the motion itself. The Supreme Court noted that such a requirement undermines the use of summary judgment procedures to “secure the just, speedy, and inexpensive determination of every action” as provided in La. C.C.P. art. 966(A)(2). Aydell, supra. Therefore, we find the trial court correctly considered the exhibits attached to Arregui’s memorandum in support of her motion for summary judgment which were made part of the record.

lfiNext, we agree with the trial court and find Arregui is entitled to 10.743 hours of vacation time in the amount of $175.19 and two day’s wages in the amount of $244.62. Risk Management contends Arregui is not entitled to this vacation pay because she failed to comply with the employment policy set forth in the employee manual given to Arregui when she began working for Risk Management. Risk Management refers to the section of the employee manual regarding voluntary resignation, which provides:

An employee who voluntarily terminates employment must submit the resignation in writing. For the employee to be eligible to receive unused earned vacation pay, he/she must complete the notice period in its entirety. All employees are asked to furnish at least two weeks worked notice (worked notice is exclusive of time off).

Risk Management contends Ar-regui did not complete the two week notice period because she did not work the last two days, July 24 and 25, 2008, therefore, her employment officially terminated July 23, 2008. Risk Management further argues Arregui is not entitled to wages for July 24 and 25, 2008 because they could not be used as sick days and Arregui was not really sick. We agree with the trial court and find that Arregui was entitled to use sick time for the last two days of her employment and she is, therefore, entitled to wages for those two days. Arregui called her supervisor, Vacarro, to advise him she was sick and had a doctor’s appointment on July 25, 2008. Thus, we agree with the trial court’s award of two days of sick time. We further find Arre-gui did complete her notice period set forth in the employee manual and is entitled to payment of unused vacation time in accordance with Arregui’s terms of employment.

La. R.S. 23:631 governs the payment of wages due to an employee upon resignation and provides, in part:

lfi(b) Upon the resignation of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, on or before the next regular payday for the pay cycle during which the employee was working at the time of separation or no later than fifteen days following the date of resignation, whichever occurs first.
(2) Payment shall be made at the place and in the manner which has been customary during the employment, except that payment may be made via United States mail to the laborer or other employee, provided postage has been prepaid and the envelope properly addressed with the employee’s or laborer’s current address as shown in the employer’s records. In the event payment is made by mail the employer shall be deemed to have made such payment when it is mailed. The timeliness of the mailing may be shown by an official United States postmark or other official documentation from the United States Postal Service.

According to La. R.S. 23:631, Risk Management was required to pay Arregui her earned wages, including wages for July 24 and 25, 2008 and her unused vacation time, upon her resignation. Risk Management did not pay the amounts due to Arregui, even after demand. Therefore, we agree with the trial court and find Arregui is also entitled to penalties pursuant to La. R.S. 23:632, which states:

Any employer who fails or refuses to comply with the provisions of R.S. 23:681 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.

Risk Management refused to pay Arre-gui the wages due to her for her last two days of work and her unused vacation time. Pursuant to La. R.S. 23:632, Arre-gui is entitled to ninety days of penalty wages at her daily rate of pay. At the time of her resignation, her hourly rate of pay was $16.3077, which would |7calculate to a daily rate of pay of $122.31, based on Risk Management’s 7.5 hour work day. Therefore, Arregui is entitled to ninety days of wages at $122.31 per day, for total penalty wages of $11,077.90, as correctly awarded by the trial court.

Thus, we find the trial court correctly granted summary judgment in favor of Arregui and correctly found she is entitled to 10.743 hours of unused vacation time worth $175.19 and wages for July 24 and 25, 2008 for sick time used. Additionally, we agree with the trial court and find Arregui is entitled to 90 days of penalty wages in the amount of $11,077.90, plus attorney’s fees of $2,000.00.

Accordingly, we affirm the judgment of the trial court granting summary judgment in favor of Arregui.

AFFIRMED


author: WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana v. Darnell JUNIOR.
    No. 10-KA-548.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 15, 2011.

      Paul D. Connick, Jr., District Attorney, 24th Judicial District, State of Louisiana, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appel-lee.
    Gwendolyn K. Brown, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Darnell Junior I.P.P., Cottonport, LA, Defendant/Appellant.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and MARC E. JOHNSON.
   WALTER J. ROTHSCHILD, Judge.

IsDefendant, Darnell Junior, was charged by bill of indictment with second degree murder in violation of LSA-R.S. 14:3o.!. Defendant pled not guilty at arraignment. Defendant’s motions to suppress identification, evidence, and statements, including a verbal statement, were denied by the trial court. The court granted defendant’s motion to sever.

Thereafter, pursuant to a reduction of the charge to manslaughter in violation of LSA-R.S. 14:31, defendant withdrew his not guilty plea, entered a plea of guilty as charged, and signed an Acknowledgement of Constitutional Rights and Waiver of Rights on Entry of a Plea of Guilty. Defendant waived all sentencing delays and, in accordance with his plea agreement, was sentenced to 20 years imprisonment at hard labor, with credit for time served.

This appeal followed.

\ .FACTS

Because defendant entered a guilty plea without proceeding to trial, the facts of this case are taken from the bill of information and the State’s recitation of the factual basis for defendant’s guilty plea at the Plea and Sentencing Hearing. On January 4, 2007, defendant, acting as a principal in the perpetration of an attempted armed robbery, killed Moneir Gindy.

ANDERS BRIEF

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La.App. 4 Cir.1990), appointed appellate counsel has filed an Anders brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669, p. 3 (La.12/12/97), 704 So.2d 241, 242 (per curiam), asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests to withdraw as counsel of record. The State concurs with appellate counsel’s assessment that there are no non-frivolous issues for appeal.

DISCUSSION

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds his case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by “a brief referring to anything in the record that might arguably support the appeal” so as to provide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support |stheir clients’ appeals to the best of their ability” and to assist the reviewing court “in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.” McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

In State v. Jyles, 96-2669 at 2, 704 So.2d at 241, the Louisiana Supreme Court stated "that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The supreme court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” State v. Jyles, supra.

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. State v. Bradford, 95-929, p. 4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellate counsel. Id.

Defendant’s appellate counsel asserts that after a detailed review of the record, she can find no non-frivolous issues to raise on appeal. Counsel first notes | fithat, with regard to the July 17, 2007 denial of defendant’s motions to suppress, defendant did not reserve his right to appeal the adverse rulings at the time he entered his guilty plea. Counsel further notes that defendant was informed of the legal consequences of entering a guilty plea, both by his trial attorney and by the district court, prior to making a decision to change his plea from not guilty to guilty. Specifically, counsel asserts that her examination of the plea colloquy reveals that the district court explained to defendant, and ascertained that he understood, the rights he would be waiving by pleading guilty. The district court explained to defendant that he had the constitutional right to a jury trial, the right against self-incrimination, and the right to confront witnesses. Counsel further notes that the record evidences that the trial court inquired regarding defendant’s age and level of education, and that the court advised defendant that he should ask questions if he had any. The trial court explained that the decision to plead guilty was defendant’s decision alone, and inquired whether he was entering the plea of his own volition. Finally, counsel notes that the State provided a factual basis for its charges against defendant.

With regard to defendant’s sentence, appellate counsel notes that the district court explained the penalty for manslaughter, and informed defendant that his plea exposed him to greater penalties as a habitual offender should he be convicted again in the future. Counsel further notes that the trial court carefully explained the specific sentence it would impose (i.e., twenty years at hard labor) if defendant entered a guilty plea. Appellate counsel further contends that the trial court subsequently imposed the sentence agreed upon, and that defendant did not object to the sentence or move for reconsideration. Finally, counsel asserts that defendant is restricted by law from seeking review of his sentence because LSA-C.Cr.P. art. 881.2 prohibits a defendant from appealing or seeking review of a sentence |7imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.

Appellate counsel has filed a motion to withdraw as attorney of record which states that she notified defendant of the filing of this motion and advised him of his right to file a pro se brief in this appeal. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until August 18, 2010 to file a pro se supplemental brief. On August 12, 2010, defendant was granted an extension until September 9, 2010, to file a pro se supplemental brief. Defendant filed a pro se supplemental brief in this matter on September 7, 2010. The State requested and was granted leave to file an opposition to defendant’s pro se brief. The State filed a brief on September 21, 2010.

In the response to appellate counsel’s brief, the State noted that the brief showed a conscientious and thorough review and recitation of the procedural history of the case. The State contends that counsel has “cast an advocate’s eye” over the record and determined that there were no significant non-frivolous issues upon which to base an appeal. The State reiterates that defendant did not preserve his right to appeal any adverse motion rulings at the time of his guilty plea, and that defendant initialed and signed an acknowl-edgement of constitutional rights and waived those rights, including the right to appeal. Finally, the State argues that defendant’s sentence was not constitutionally excessive. The State asserts that appellate counsel’s request to withdraw should be granted, and requests that this Court affirm defendant’s conviction and sentence.

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

| sWe find that the bill of information in this case properly charged defendant and presents no non-frivolous issues supporting an appeal. As required, it plainly, concisely, and definitely states the essential facts constituting the offense charged, and cites the statute defendant violated. It also sufficiently identifies defendant and the crime charged. See generally LSA-C.Cr.P. arts. 464-66.

As reflected by the minute entries and commitment, defendant appeared at each stage of the proceedings against him. He appeared at his arraignment, guilty plea and sentencing. As such, defendant’s presence does not present any issues which would support an appeal.

Further, defendant pled guilty as charged. If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and precludes review of such defects either by appeal or post-conviction relief. State v. Wingerter, 05-697, pp. 5-6 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 665.

Additionally, once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. State v. McCoil, 05-658, p. 7 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boy-kin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. Id. In such a case, the defendant has been denied due process of law in that the plea was not given freely and knowingly. State v. Dixon, 449 So.2d 463, 464 (La. 1984).

The record shows that defendant was aware he was pleading guilty to manslaughter. He was advised of his right to a jury trial, his right to confrontation, |9and his privilege against self-incrimination, as required by Boykin. Defendant was advised of these rights by means of the Acknowledgement of Constitutional Rights and Waiver of Rights on Entry of a Plea of Guilty form (waiver of rights form). In the waiver of rights form, Defendant initialed next to each of these rights and signed the form, indicating that he understood that he was waiving these rights by pleading guilty. Defendant was also advised of these rights during the colloquy with the trial court. Defendant indicated during the colloquy that he understood that he was waiving these rights.

Defendant further indicated that he had not been forced, coerced, or threatened to enter his guilty plea. He was also informed that his conviction could be used to enhance a penalty for any future conviction.

Defendant was advised that, if he pled guilty to manslaughter, he faced a possible sentencing range of zero to forty years at hard labor. Defendant was informed during the colloquy that he would be sentenced to twenty years at hard labor, with credit for time served. In the waiver of rights form, defendant also indicated that he understood he would be sentenced to 20 years at hard labor in the Department of Corrections and signed the form, indicating that he understood both the sentencing range and his specific sentence.

Finally, defendant’s sentence does not appear to present an issue for appeal. Defendant’s sentence falls within the sentencing range prescribed by statute. See LSA-R.S. 14:31(B). Further, LSA-C.Cr.P. art. 881.2 A(2) precludes a defendant 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. State v. Washington, 05-211, p. 5 (La.App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. As noted above, defendant was informed that he would receive a 20 year sentence prior to entering his guilty plea. He indicated his understanding of the sentence, both in court and |10on his waiver of rights form. Based on the foregoing, the proceedings surrounding defendant’s guilty plea and sentence do not present any non-frivolous issues which may be raised on appeal.

PRO SE ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN IMPOSING AN EXCESSIVE SENTENCE. DISCUSSION

Defendant asserts in his brief that the 20 year sentence imposed by the trial court is excessive. Defendant contends that the circumstances of the crime did not warrant the imposition of a stiff penalty. In support of his assertion, defendant contends that he was an accessory to the robbery and murder and that, after confronted by the police, he provided a statement to the police. Defendant asserts that he was 16-years-old at the time of the incident, with no prior arrests and a promising future ahead of him. Defendant contends that he led a productive life prior to his arrest and expresses great remorse for his actions. Defendant further asserts that the sentence imposed by the trial court has limited his ability to participate in rehabilitation programs during his incarceration. Finally, defendant contends that his incarceration will cause great hardship on his family.

The State responds that defendant’s claim should be procedurally barred by LSA-C.Cr.P. art. 881.2 because his sentence was imposed pursuant to a plea agreement. The State further asserts that a 20-year sentence for manslaughter in the instant case is not excessive because defendant was sentenced to half of the statutory maximum sentence and because similar sentences have been upheld in similar cases.

As noted above, defendant’s sentence falls within the sentencing range proscribed by statute. See LSA-R.S. 14:31(B). Moreover, defendant’s sentence | nwas imposed pursuant to a plea agreement, and defendant knew in advance what his sentence would be if he elected to plead guilty. As previously discussed, LSA-C.Cr.P. art. 881.2 A(2) precludes a defendant 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. Washington, 05-211 at 5, 916 So.2d at 1173. As such, we fail to find merit in this assignment of error.

ERROR PATENT DISCUSSION

The defendant requests an error patent review. However, this Court routinely reviews the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990) regardless of whether defendant makes such a request. The review reveals no errors patent in this case.

CONCLUSION

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

CONVICTION AND SENTENCE AFFIRMED; MOTION TO WITHDRAW GRANTED.

      . By the same bill of information, co-defendant, David Page, was charged with second degree murder in violation of LSA-R.S. 14:30.1.

      . Defendant was granted an out-of-time appeal on March 29, 2010.

      .The procedure set forth in Benjamin for compliance with Anders was sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981, pp. 1-2 (La.4/28/95), 653 So.2d 1176, 1177 (per curiam), and adopted by this Court in State v. Bradford, 95-929, pp. 3-4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110.

      . The United States Supreme Court most recently reaffirmed its position in Anders in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).


author: SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Alvin C. HYMAN.
    No. 10-KA-335.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 15, 2011.

      Paul D. Connick, Jr., District Attorney, Parish of Jefferson, State of Louisiana, Terry M. Boudreaux (Appellate Counsel), Anne Wallis (Appellate Counsel), Michael Morales (Trial Counsel), Churita Hansell (Trial Counsel), Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee, The State of Louisiana.
    Kerry P. Cuccia, Attorney at Law, New Orleans, LA, for Defendant/Appellant, Alvin C. Hyman.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and ROBERT L. LOB RANO, Pro Tempore.
   SUSAN M. CHEHARDY, Judge.

| ¾Alvin C. Hyman appeals his sentence of 80 years without probation or suspension of sentence, imposed upon him as a second-felony habitual offender. We affirm, but remand the case with an order to correct a patent error.

This is the defendant’s second appeal in this case. He was charged with violation of La. R.S. 14:30.1, second degree murder, but following his trial a jury found him guilty of the lesser offense of manslaughter, a violation of La. R.S. 14:30.1. The trial court sentenced him to 40 years at hard labor. On appeal this Court affirmed the conviction and sentence, and the state supreme court denied writs. State v. Hyman, 09-409 (La.App. 5 Cir. 2/9/10), 33 So.3d 271, writ denied, 2010-0548 (La.10/1/10), 45 So.3d 1094.

On June 12, 2009, the State filed a habitual offender bill of information alleging that the defendant was a second felony offender. The defendant filed written objections to the allegations in the habitual offender bill. On January 6, 2010, the trial court held a habitual offender hearing and denied the defendant’s objections. The court vacated the defendant’s original sentence and imposed a |shabitual offender sentence of 80 years at hard labor without benefit of probation or suspension of sentence.

The defendant made a timely oral motion for appeal with respect to the habitual offender adjudication and sentence. The defendant also filed a written motion for appeal and a motion to reconsider sentence. The trial court denied the motion to reconsider sentence and granted the appeal motion.

FACTS

The facts relating to the defendant’s manslaughter conviction are found in this Court’s previous opinion:

In the early morning hours of August 6, 2006, Leslie Daigrepont was at Alvin C. “Chris” Hyman’s apartment when Mr. Hyman accused her of stealing narcotics and money from him. According to Mrs. Daigrepont, Mr. Hyman grabbed her by the throat, threw her to the floor, and attempted to “strip search” her. Mrs. Daigrepont escaped the apartment when someone unexpectedly knocked at Mr. Hyman’s front door.
When she returned to her house, Mrs. Daigrepont described the confrontation to her husband, Joshua Daigrepont, and, her brother, Dirk Guidry. Although Mrs. Daigrepont denied Mr. Hyman’s accusations while he was questioning her, she admitted to her husband and brother that she had, in fact, stolen narcotics and money from Mr. Hyman earlier that morning.
Later that morning, Mrs. Daigrepont was speaking on the telephone with Leslie Boyer, Mr. Hyman’s girlfriend, when Mr. Hyman commandeered the telephone to tell Mrs. Daigrepont that she and her family were “dead.” Mrs. Daig-repont’s brother, Dirk Guidry, then informed Mr. Hyman that he was coming to Hyman’s apartment to “beat his ass.” Mr. Hyman accepted the challenge, agreeing to meet Mr. Guidry there. Mr. Guidry and Mr. Daigrepont then drove to Mr. Hyman’s residence.
Mr. Daigrepont then drove with Mr. Guidry to Hyman’s house at about 9:00 a.m. They knocked on the door of Mr. Hyman’s second floor apartment and shouted for him to open the door. When they received no |4response, Mr. Daigrepont and Mr. Guidry went downstairs to Sharamie Brewer’s apartment, where they waited for about 20 to 30 minutes. As they were leaving Ms. Brewer’s apartment, Hyman arrived at the apartment complex.
"When Mr. Hyman exited the passenger side of the car, he was holding a gun. Mr. Daigrepont saw the weapon and ducked between parked cars, but Mr. Guidry began yelling at Mr. Hyman.
Mr. Daigrepont testified that Mr. Hy-man then raised the gun and pulled the trigger twice, but the weapon failed to discharge. Next, Mr. Hyman turned toward the car and asked an occupant whether there were any bullets in the gun. Hyman then turned back toward Guidry and fired a shot. Immediately, Hyman got back into the car.
Mr. Daigrepont testified that, after Mr. Hyman was in the vehicle, he fired a shot through the car’s window at Mr. Daigrepont, who was crouched between parked cars. Mr. Daigrepont was unharmed.
Sharamie Brewer witnessed the shooting from the window of her apartment at 126 Athania Parkway. She heard Mr. Guidry and Mr. Hyman arguing in the parking lot of her apartment complex but she could not make out what they were saying. She saw Mr. Hyman get out of a car, point a gun, and shoot Mr. Guidry.

State v. Hyman, 09-409 at pp. 2-4, 33 So.3d at 274-275.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, the defendant asserts the trial judge erred in vacating the original sentence and imposing a sentence of 80 years because the judge did not explicitly adjudicate the defendant to be a multiple felony offender.

The defendant contends his habitual offender sentence is invalid because the trial court failed to explicitly hold that he was a habitual offender. The State responds that the defendant failed to preserve this issue for appellate review because he did not make a timely objection below. The State nevertheless ^addresses the merits of the claim, arguing it can be inferred from the record that the trial court intended to find the defendant to be a habitual offender.

As the defendant argues, the record does not show that the trial court explicitly held him to be a habitual offender. At the habitual offender hearing, Joel O’Lear, whom the court recognized as an expert in the analysis and comparison of fingerprints, testified that fingerprints he took from the defendant in court matched those on the documents pertaining to the defendant’s predicate conviction. At the conclusion of the habitual offender hearing, the trial judge addressed defense counsel’s challenges to the predicate felony alleged in the habitual offender bill. The judge plainly and unequivocally rejected counsel’s arguments. The judge then vacated the defendant’s original sentence and imposed an 80-year habitual offender sentence.

Contrary to the State’s assertion, the defendant is entitled to appellate review of this issue. The defendant’s argument is in the nature of an illegal sentence claim. Under La.C.Cr.P. art. 882, “[a]n illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review.”

When examined on the merits, the defendant’s argument does not prevail. Although the trial court did not explicitly hold that the defendant was a habitual offender, we can infer from the record that the court intended to adjudicate and to sentence him as a habitual offender.

The facts in this case are comparable to those in State v. Melancon, 01-1656 (La. App. 4 Cir. 8/21/02), 826 So.2d 633, writ denied, 02-2407 (La.3/21/03), 840 So.2d 547. The defendant in Melancon complained that the trial court had failed to adjudicate him a habitual offender because the judge had not spoken the words “the defendant is adjudicated a habitual offender.” In Melancon, as in the instant case, the State produced proof of the predicate felony convictions and evidence of | (identity at a habitual offender hearing. At a subsequent sentencing hearing, Me-lancon’s defense counsel acknowledged that the trial court had adjudicated the defendant a third felony offender. The Fourth Circuit rejected the defendant’s argument, holding as follows:

While the trial court did not state the words well known for adjudicating a defendant to be a multiple offender, it is obvious from a reading of both transcripts that the trial court found the State’s evidence sufficient to prove the defendant was a third felony offender and that the trial court intended to sentence the defendant as such.

Melancon, 01-1656 at p. 8, 826 So.2d at 639.

Accordingly, we find no merit to this assignment of error.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment the defendant asserts the trial judge lacked authority to accept a guilty plea from the defendant because that judge’s pro tem-pore appointment to the district court violated the separation of powers required by Article II, Section 2 of the Louisiana Constitution. Hence, the defendant asserts, the plea cannot be used against him in a multiple offender proceeding.

The defendant complains that the 1996 guilty plea the State used to enhance his sentence was invalid because it was accepted by a judge sitting pro tempore in the Twenty-fourth Judicial District Court’s drug court. The defendant argues that Judge Joseph Grefer’s pro tempore appointment violated the constitutional doctrine of separation of powers, since the state’s judges are required to be elected. The State responds that the guilty plea was valid, since Judge Grefer was properly appointed as a judge pro tempore by the Louisiana Supreme Court.

The defendant’s argument here is a restatement of the argument he made below in his written objections to the habitual offender bill. At the habitual |7offender hearing, defense counsel argued that the 1996 guilty plea alleged in the habitual offender bill was not constitutionally taken by Judge Grefer, since he was not a duly elected judge. The trial judge ruled, “I am going to deny your motion as to that, because that has been already taken up on numerous occasions, and has been found that they could take guilty pleas down in Drug Court.” Defense counsel objected to the judge’s ruling.

We find no error in the trial court’s overruling of the defendant’s objection to the predicate conviction. Under Article V, § 5(A) of the Louisiana Constitution of 1974, the Louisiana Supreme Court has the authority to assign a sitting or retired judge to any court. The supreme court’s power to assign judges to assist courts within the judicial branch in furtherance of the administration of justice is explicit and unfettered. State v. Bell, 392 So.2d 442, 442 (La.1981). Moreover, the supreme court’s power of appointment is not limited to cases in which a vacancy exists. Bell, 392 So.2d at 443 n. 1; State v. Strahan, 04-1971, p. 4 (La.App. 1 Cir. 5/6/05), 916 So.2d 209, 211. See also, State v. Chestnut, 05-220, pp. 4-5 (La.App. 5 Cir. 11/29/05), 917 So.2d 573, 575.

The defendant provided no authority to support his argument that denies the authority of a duly appointed ad hoc or pro tempore judge to accept a guilty plea. Accordingly, we find no merit to this assignment of error.

ASSIGNMENT OF ERROR NUMBER THREE

In his third assignment of error, the defendant contends the State failed to carry its burden of proof because it relied on a Boykin form that does not name the crime, without a transcript of the colloquy. The defendant asserts that in order for the State to use a prior guilty plea in a habitual offender proceeding, the State must prove the defendant knowingly and voluntarily entered the guilty plea, but the | sState cannot do so with a Boykin form that does not name the crime to which the defendant is pleading guilty.

The defendant argues the evidence at the habitual offender hearing was insufficient to prove his habitual offender status, because the guilty plea form pertaining to the predicate conviction did not include the name of the offense to which he pleaded guilty. The State responds that the evidence at the habitual offender hearing was sufficient to prove the existence of the predicate felony conviction, and that the defendant was the same person who committed the predicate offense.

To prove a defendant is a habitual offender, the State must initially prove the prior felony convictions and prove the defendant is the same person who was convicted of the prior felonies. State v. Mims, 00-1507, p. 8 (La.App. 5 Cir. 12/26/01), 806 So.2d 760, 766, writ denied, 02-0466 (La.2/7/03), 886 So.2d 88. The latter can be established by expert testimony matching the accused’s fingerprints with those in the record from the prior proceedings. State v. Kelly, 01-321, p. 7 (La.App. 5 Cir. 10/17/01), 800 So.2d 978, 984, writ denied, 01-3266 (La.11/1/02), 828 So.2d 565.

When the State relies on a prior conviction based on a guilty plea to prove a defendant’s habitual offender status and the defendant denies the allegations in the habitual offender bill, the State bears the burden of proving the existence of the prior guilty plea and that the defendant was represented by counsel when it was taken. State v. Shelton, 621 So.2d 769, 779-780 (La.1993). After the State meets this burden, the defendant must produce affirmative evidence of an infringement of his rights or of a procedural irregularity. If the defendant meets this burden, the burden shifts back to the State to prove the constitutionality of the plea, that is, that the plea was knowing and voluntary. Shelton, 621 So.2d at 780 This final burden l3can be met if the State produces a “perfect transcript” articulating the Boykin colloquy between the defendant and the trial judge or any combination of a guilty plea form, a minute entry, or an “imperfect” transcript. Id. If anything less than a “perfect” transcript is presented, the trial court must weigh the evidence submitted by the defendant and the State to determine whether the State met its burden of proof that defendant’s prior guilty plea was informed and voluntary and made with an articulated waiver of the three Boykin rights. Id.

The defendant does not dispute that the State sufficiently established identity at the habitual offender hearing. As discussed under Assignment of Error Number One, supra, fingerprint expert Joel O’Lear testified that fingerprints he took from defendant in court matched those on the documents pertaining to defendant’s predicate conviction.

Since the predicate conviction alleged in the habitual offender bill resulted from a guilty plea, the State was required to prove the existence of the conviction, and that the defendant was represented by counsel at the time he entered his guilty plea. State v. Shelton, supra. In order to meet that burden, the State introduced a certified copy of the bill of information in 24th Judicial District Court case number 96-5623, along with a completed guilty plea form and commitment pertaining to that case.

The defendant argued that the guilty plea form was insufficient to show the plea was knowing and voluntary, since it did not include the name of the offense-attempt to possess marijuana with intent to distribute-with which the defendant was charged. The form included only the statutory citation of the offense, La. R.S. 40:979:966(A). The trial judge rejected the defendant’s argument and found that the predicate guilty plea was sound. The judge reasoned that the bill of information in case number 96-5623, which was included in the State’s habitual |inoffender evidence, provided that the defendant was charged with possession with intent to distribute marijuana. Thus, the defendant had adequate notice of the offense to which he was pleading guilty.

We find no error in the trial court’s ruling that the State proved the constitutionality of the defendant’s predicate guilty plea. The trial judge properly weighed the entirety of the evidence submitted and found that the State met its burden of proving that the defendant’s 1996 guilty plea was informed and voluntary. The bill of information, the guilty plea form, and the minute entry admitted as State’s Exhibit 2, in globo, were sufficient to show the defendant’s prior guilty plea was constitutionally made.

Accordingly, we find no merit to this assignment of error.

ASSIGNMENT OF ERROR NUMBER FOUR

In his fourth and final assignment of error, the defendant asserts the maximum 80-year sentence imposed in this case is excessive and should be reduced because maximum sentences are reserved for the most egregious and blameworthy offenders, but the defendant argues he does not fall into that category.

The defendant contends his 80-year habitual offender sentence, the statutory maximum, is constitutionally excessive, arguing that he is not the most violent type of offender for whom maximum sentences are reserved. The State responds that the sentence, while severe, is supported by the record.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A |n sentence is unconstitutionally excessive when it imposes punishment grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering. State v. Smith, 01-2574, p. 6 (La.1/14/03), 839 So.2d 1, 4. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Lobato, 603 So.2d 739, 751 (La. 1992). Even though a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. Smith, 01-2574 at p. 6, 839 So.2d at 4. In general, maximum sentences are reserved for cases involving the most serious violations of an offense charged and the worst type of offender. State v. Stacker, 02-768, p. 8 (La.App. 5 Cir. 12/30/02), 836 So.2d 601, 607, writ denied, 03-0411 (La.10/10/03), 855 So.2d 327.

In reviewing a sentence for ex-cessiveness, the reviewing court must consider the crime and the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice, recognizing at the same time the wide discretion afforded the trial judge in determining and imposing the sentence. State v. Polizzi, 05-478, p. 16 (La.App. 5 Cir. 2/14/06), 924 So.2d 303, 313, writs denied, 06-1052 (La.11/3/06), 940 So.2d 660, and 08-2006 (La.1/30/99), 999 So.2d 751. In reviewing a trial court’s sentencing discretion, three factors are considered: (1) the nature of the crime, (2) the nature and background of the offender, and (3) the sentence imposed for similar crimes by the same court and other courts. Id.

The trial judge is afforded wide discretion in determining a sentence and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed, even when the trial judge does not provide reasons for the sentence. Polizzi, 05-478 at p. 16, 924 So.2d at 313. The issue on appeal is | ^whether the trial court abused its broad discretion, not whether another sentence might have been more appropriate. Polizzi, 05-478 at p. 17, 924 So.2d at 314.

The trial judge gave extensive reasons for the sentence imposed. He said he was struck by the defendant’s deliberate cruelty in committing the offense. He pointed out that the defendant aimed his gun at the victim and attempted to fire at him. When the gun misfired, the defendant had the opportunity to withdraw from the confrontation, but he did not. The judge also noted that the defendant fired his weapon in a residential neighborhood where others could have been injured.

We find the trial court did not abuse its broad discretion in imposing the maximum habitual offender sentence. First, the evidence at trial could have supported a conviction for the charged offense, second degree murder, an offense that carries a mandatory life sentence. Louisiana courts have found that the fact that the evidence might have supported a verdict of second degree murder is an appropriate sentencing consideration where the defendant has been convicted of the lesser offense of manslaughter. See State v. Roussel, 424 So.2d 226, 231-232 (La.1982), overruled on other grounds by State v. Jackson, 480 So.2d 263, 268; State v. Wooden, 572 So.2d 1156, 1161 (La.App. 1 Cir.1990).

In addition, the fourth circuit has recently affirmed an 80-year sentence for manslaughter as to two co-defendants who were found to be second-felony offenders. In State v. Johnson, 09-0706, pp. 30-36 (La.App. 4 Cir. 5/26/10), 41 So.3d 1188, 1207-1210, the court found the maximum second-offender sentence was not constitutionally excessive where the defendant was one of two men who viciously beat the victim, fatally wounding him and discarding him in a dumpster, although the defendant did not have a lengthy prior record or a record of violent offenses. The court of appeal also upheld the 80-year second-offender sentence of 11sJohnson’s co-defendant in State v. Kelson, 09-0204, pp. 14-15 (La.App. 4 Cir. 6/9/10), 40 So.3d 1194, 1203.

Accordingly, we find no merit to this assignment.

ERROR PATENT DISCUSSION

This Court performed an patent error review of the original record in this case at the time of the defendant’s first appeal. He now is entitled to error-patent review of only the habitual offender proceedings. See State v. Gassenberger, 02-658, p. 5 (La.App. 5 Cir. 12/11/02), 836 So.2d 271, 274.

We have found a patent error that does not affect the sentence, but requires remand for correction. While the habitual offender transcript shows the trial court sentenced the defendant to a prison term of 80 years, the commitment shows the sentence imposed was 40 years. When the transcript conflicts with a minute entry, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983).

Accordingly, we shall direct the trial court to amend the commitment to conform to the transcript. See State v. Major, 09-370, p. 12 (La.App. 5 Cir. 11/24/09), 26 So.3d 289, 296, writ denied, 09-2802 (La.6/18/10), 38 So.3d 320.

DECREE

For the foregoing reasons, the habitual offender sentence imposed by the district court is affirmed. The case is remanded and the district court is ordered to correct the commitment to conform to the transcript, showing the sentence imposed as 80 years.

AFFIRMED; REMANDED WITH ORDER

      . The trial judge did not explicitly state that he found defendant to be a second felony offender. That issue is discussed under Assignment of Error Number One, infra.

      . The defendant filed a timely motion to reconsider sentence in the trial court, arguing the sentence was harsh in nature and was not supported by the facts adduced at trial. He did not allege grounds for his motion with specificity, as required by La.C.Cr.P. art. 881.1. He is entitled, nevertheless, to a review of the sentence only for constitutional excessiveness. See State v. Dupre, 03-256, p. 7 (La.App. 5 Cir. 5/28/03), 848 So.2d 149, 153, writ denied, 03-1978 (La.5/14/04), 872 So.2d 509.


author: MARION F. EDWARDS, Chief Judge.

text:
    STATE of Louisiana v. Devon ALLEN.
    No. 10-KA-430.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 15, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Charles Carr, III, George C. Wallace, Jr., Assistant District Attorneys, Twenty-Fourth Judicial District, Parish of Jefferson, State of Louisiana, Gretna, Louisiana, for Plaintiff/Appellee.
    Holli A. Herrle-Castillo, Attorney at Law, Louisiana Appellate Project, Marre-ro, Louisiana, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and ROBERT L. LOBRANO, Pro Tempore.
   MARION F. EDWARDS, Chief Judge.

12Pefendant/appellant, Devon Allen (Allen), appeals his conviction and sentence on a charge of armed robbery with a firearm in violation of La. R.S. 14:64 and La. R.S. 14:64.3. For reasons that follow, we affirm.

Allen entered a plea of not guilty to the charge and, after initial defense motions to suppress were denied, the matter went to trial before a twelve-person jury. On April 9, 2009, the jury found Allen guilty as charged. On May 8, 2009, Allen was sentenced to ten years of imprisonment at hard labor without benefit of parole, probation, or suspension of sentence pursuant to La. R.S. 14:64. Allen was also sentenced to an additional five years of imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, to be served consecutively, for the use of a firearm pursuant to La. R.S. 14:64.3. After sentencing, Allen made an oral motion for appeal, which was subsequently followed up by the filing of a written motion for appeal. The appeal motion was granted on June 25, 2009.

J¿FACTS

On the evening of September 23, 2007, Rose Madison (Ms. Madison) was making a pizza delivery for Domino’s Pizza in the Bannerwood Drive area of Gretna, Louisiana. When Ms. Madison observed three males standing near the delivery location on Grovewood Drive, she stopped the vehicle and opened the window to ask if they had ordered a pizza. When they responded affirmatively, Ms. Madison pulled over and parked the car. She walked around to the passenger side of the vehicle and opened the door. One of the men started digging in his pockets, as if he were retrieving money or a wallet. Ms. Madison reached into the vehicle to get the pizza. She turned around to find that one of the men was holding a gun to her face. The man demanded the money and the pizza.

Ms. Madison recognized the man with the gun, later identified as Edwardo Flores (Flores), as a classmate from Helen Cox School. She said to Flores, “Bra, why you robbing me? We went to school together. I know you.” While Flores held the gun to her face, Allen searched her car and the third man, who was holding a baseball bat, stood off to the side. That man was later identified as Troy Dent (Dent).

Allen took Ms. Madison’s cigarettes and wallet, including her driver’s license and $400 cash, from the vehicle. Flores told Ms. Madison to empty the pizza bag on the ground, so she opened the bag and poured the contents on the ground. The perpetrators picked up the items from the bag, told Ms. Madison to “get the f&*%,” and ran away. After the perpetrators fled, Ms. Madison locked herself in her vehicle and called the police.

Deputy Johnnie Petit, Jr. of the Jefferson Parish Sheriffs Office arrived at the scene of the crime and took a report. Deputy Petit asked Ms. Madison to provide a description of the perpetrators, which she did at the scene, then requested 14that she follow him to the Domino’s Pizza on Lapalco to complete the report and obtain the contact number of the individual who had ordered the pizza. As Ms. Madison followed Deputy Petit down Banner-wood, she observed a group of men playing basketball in the street and recognized two members of the group as perpetrators of the robbery. Ms. Madison flashed her lights, and Deputy Petit pulled over. Ms. Madison described the men to Deputy Pet-it, and identified Flores as the perpetrator with the gun and Dent as the one with bat. Deputy Petit told Ms. Madison to park around the corner, and he returned to Bannerwood to investigate.

Deputy Petit detained Flores and Dent, who matched the descriptions provided by Ms. Madison. Another officer escorted Ms. Madison in his police vehicle to the location where Flores and Dent had been detained, and she was given an opportunity to confirm her prior identification of the suspects. The officers used a vehicle spotlight to illuminate Flores and Dent, who were standing next to Deputy Petit’s vehicle, and Ms. Madison positively identified the two as perpetrators of the robbery. Flores and Dent were subsequently arrested and transported to the Rivarde Juvenile Detention Center.

Approximately two and a half weeks later, on October 10, 2007, Ms. Madison was driving in Gretna when she observed Allen walking down Wall Boulevard. She pulled over into a parking lot near Oakdale Playground, called 911, and advised the police that she had just seen one of the perpetrators who had robbed her a couple of weeks earlier. When Allen neared her vehicle, Ms. Madison rolled down the car window and said, “You that bastard that robbed me.” According to Ms. Madison’s testimony, Allen looked shocked and “was going underneath his shirt” when the police approached. Allen said, ‘We should have shot you when we robbed you,” then ran.

UAs Sergeant Matthew Bonura of the Jefferson Parish Sheriffs Office, Second District Patrol, drove into the playground parking lot, he observed Allen running away. Ms. Madison said, “That’s him, that’s the person who robbed me,” and Sergeant Bonura gave chase on foot across the baseball field of the playground. Sergeant Bonura notified other units in the area that he was on foot pursuit of a suspect, and several units responded via radio. Allen jumped over a high fence, and Sergeant Bonura lost sight of him. Sergeant Bonura described the houses in relation to his location in the playground and directed responding officers via radio to the estimated location of Allen.

Deputy Eric Blanford, who was assigned to the Jefferson Parish Street Crimes Unit at the time of the incident, responded to Sergeant Bonura’s call, which advised that Sergeant Bonura was “in pursuit of a black male wearing a black shirt and black jeans with braids in his hair” and that they were coming across the baseball field. Deputy Blanford entered the neighborhood off of Mount Laurel Drive. He observed a suspect matching Sergeant Bonu-ra’s description (later identified as Allen) in the backyard of a residence located at 668 Taylorbrook Drive and parked his vehicle. Allen, who had a firearm in his hand, was removing his shirt. Deputy Blanford identified himself and apprehended Allen. Allen attempted to flee, and a violent struggle ensued as Deputy Blanford tried to handcuff Allen. Once Allen was apprehended, Sergeant Bonura escorted Ms. Madison to the scene of the apprehension, where she positively identified Allen as the person who had robbed her. Allen was arrested, and Deputy Blanford called the Crime Scene Division to take photographs and process the evidence.

| fiSergeant Rodney Naumann of the Jefferson Parish Sheriffs Office, Crime Scene Division, arrived at the residence located at 668 Taylorbrook Drive, where officers had recovered a gun and some T-shirts in the backyard. Sergeant Naumann testified that the weapon offered by the State as evidence was the weapon recovered at the scene of Allen’s apprehension.

Dent, one of the perpetrators identified by Ms. Madison, testified at trial as a witness for the State. Dent testified that, on the evening of September 23, 2007, he, Allen, Flores, Joe Flores (Edwardo Flores’ brother), and a guy named “Slim” were sitting outside in front of Flores’ home when one of the guys suggested that they order a pizza. When Joe Flores said, “I don’t have no money, or nobody don’t have no money out here,” Allen asked Flores, “Do you still have the gun?” Flores responded affirmatively, and pulled a small, black gun out of his pocket. Allen said, “That’s how we’re going to get it,” and Joe used Slim’s phone to call and order the pizza.

Shortly thereafter, the group cut through a fence in Flores and Joe Flores’ backyard to the street behind their house that ran parallel to Bannerwood. Dent stated that he did not want to go along with the group, but was forced to because Allen threatened to kill his mother or his sister. The men were standing on the corner when a woman in a truck pulled up. The woman stopped and asked the group if they had ordered a pizza. Allen responded affirmatively, reached into his pocket, and pulled out his wallet. The woman opened the back door of her vehicle and leaned down to get the pizza. When the woman turned around, Flores put the |7gun in her face and told her to empty her pockets. The woman said, ‘What are you doing? I went to school with you, Bra.” While Dent stood in back with a baseball bat, Allen searched the woman’s vehicle and took her cigarettes. Dent testified that they did not take anything else from the vehicle.

The group left the scene and cut back through the fence to the front of Flores and Joe Flores’ house. When Dent tried to return to his house, they told him “[n]o, you’re not going inside.” Dent’s mother drove up and asked Dent to help her carry the groceries inside, but they told Dent, “Don’t move.” Dent suspected that they did not want him to go inside because they thought he “might call the police or rat, or go tell [his] mom or something,” so Dent did not help his mother with the groceries. The group was playing basketball when the police arrived. Flores and Dent were identified by Ms. Madison and arrested shortly thereafter.

In direct contradiction to the testimony offered by Dent, Eric Cado (Cado), a friend of Flores and Joe Flores, testified that he was playing basketball with Flores, Dent, and Joe Flores on the evening of September 23, 2007, when the police arrived and arrested Flores and Dent. Cado testified that he did not see Allen at all that day, did not see Flores with a gun, and did not see Dent with a baseball bat. He did not observe Flores or Joe Flores using a cell phone or ordering a pizza, and he did not see a pizza delivery person deliver a pizza. Finally, Cado testified that he had no knowledge of an armed robbery that occurred that night.

Similarly, Joe Flores testified that, on the night of September 23, 2007, he, Flores, Dent and Cado (also known as “Slim”) were hanging out on the porch and playing basketball. While they were playing basketball, the police arrived, searched them, and handcuffed Flores and Dent. The officer said that Flores and Dent matched the description of two suspects that had just committed an armed robbery. Joe Flores testified that he did not see anyone order a pizza or make a | sphone call, did not see a pizza delivery person, did not see anyone with a gun or a baseball bat, and did not see anyone with cigarettes. Joe Flores further testified that he did not see Allen that day. Finally, Joe Flores stated that the four of them were searched, but the officer did not find a gun, a bat, a wallet, a pizza, or cigarettes on any of them. Both Cado and Joe Flores testified that Flores is not a violent person.

LAW AND ANALYSIS

Allen assigns one error for our review in this appeal. Allen argues that the State failed to present sufficient evidence to uphold the conviction. Allen notes that two witnesses testified that he was not present in the area when Ms. Madison was robbed. Allen further contends that the testimony offered by Dent is unreliable because “he received a sweetheart deal for making the State’s case, provided two different versions of the events to the police and yet a third story at trial during his testimony, and his testimony was in opposition to the State’s only other fact witness, Rose Madison.” Finally, Allen asserts that there is a reasonable probability that Ms. Madison misidentified him as the perpetrator. In conclusion, Allen argues that the conviction should be set aside.

The State responds that the jury obviously gave credence to the testimony offered by Ms. Madison and Dent regarding Allen’s involvement in the robbery and, as permitted, disregarded the testimony offered by Cado and Joe Flores. The State further asserts that Dent’s testimony and second statement were consistent with Ms. Madison’s testimony. Moreover, the State asserts that Ms. Madison positively identified Allen as the person who robbed her.

The constitutional standard for testing the sufficiency of the evidence 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 |flbeyond a reasonable doubt. Under the Jackson standard, a review of a criminal conviction record for sufficiency of evidence does not require the court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Rather, the reviewing court is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt.

When the trier of fact is confronted by conflicting testimony, the determination of that fact rests solely with that judge or jury, who may accept or reject, in whole or in part, the testimony of any witness. It is not the function of the appellate court to assess the credibility of witnesses or to re-weigh the evidence absent impingement on the fundamental due process of law. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion.

In the present case, Allen was charged with armed robbery in violation of La. R.S. 14:64 and La. R.S. 14:64.3. To support a conviction for armed robbery, the State must prove beyond a reasonable doubt that there was a taking of anything of value from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon. A gun used in connection with and at the scene of a robbery is as a matter of law a | mdangerous weapon. Additionally, in an armed robbery prosecution, the act of pointing a gun at a victim constitutes a use of force or intimidation.

Encompassed in proving the elements of an offense is the necessity of proving the identity of the defendant as the perpetrator. All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid or abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals. A person who aids and abets another in a crime is liable just as the person who directly commits it, although he may be convicted of a higher or lower degree of the crime, depending on the mental element proved at trial. Only those persons who knowingly participate in the planning or execution of a crime are principals.

In the instant case, the jury was presented with the victim’s testimony, the testimony of Dent (one of the perpetrators of the robbery), the testimony of Deputy Petit (the responding police officer), and the testimony of the three officers who were involved in the apprehension of Allen on October 10, 2007. The jury also heard testimony from two defense witnesses. Additionally, Ms. Madison positively and emphatically identified Allen as one of the perpetrators.

Though the testimony offered by Cado and Joe Flores is contradictory to that of the State’s witnesses, the jurors clearly found the testimony of the victim and Dent regarding the incident to be more credible. It is not the function of the appellate court to second-guess the credibility of witnesses as determined by the trier of fact or to reweigh the evidence absent impingement on the fundamental due | n process of law. The jury was presented with, and clearly accepted Ms. Madison’s testimony, as well as Dent’s corroborating testimony and that of the responding officers, that Allen and Flores, while armed with a gun, robbed her by use of force or intimidation.

Based on the foregoing, we find the evidence, viewed in a light most favorable to the State, was sufficient to establish that defendant was guilty of the charged offense beyond a reasonable doubt.

ERROR PATENT DISCUSSION

Allen requests an error patent review. However, this Court routinely reviews the record for errors patent in accordance with La.C.Cr.P. art. 920 regardless of whether defendant makes such a request. The review reveals no errors patent in this case.

Accordingly, Allen’s conviction and sentence are affirmed.

AFFIRMED

      . By the same bill of information, Troy Dent, a juvenile, and Edwardo Flores, a juvenile, were charged as co-defendants. Flores was tried with Devon Allen. Troy Dent testified against Allen and Flores. At the time of trial, Dent had entered into a plea agreement with the State, pursuant to which he pled guilty to the lesser charge of Conspiracy to Commit Armed Robbery and for which he expected to receive a sentence of probation for a term of five years.

      . Deputy Blanford testified that the firearm recovered from Allen was a black revolver with a wooden handle and identified the weapon offered by the State as evidence as the weapon defendant was holding when he was apprehended.

      . Dent gave a statement on September 28, 2007, that was inconsistent with his trial testimony. In his September 28, 2007 statement, Dent stated that he had no knowledge of or involvement in the September 23, 2007 robbery of Ms. Madison. Dent gave another statement on January 29, 2009, in which he admitted his involvement in the robbery. The January 29, 2009 statement implicated defendant and Flores in the robbery and was consistent with Dent’s trial testimony.

      . Flores and Joe Flores live next door to Dent.

      . Dent identified the weapon offered by the State as evidence as the weapon that Flores pulled out of his pocket during the robbery.

      . Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

      . State v. Jones, 08-20 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240 (citing State v. Cho, 02-274 (La.App. 5 Cir. 10/29/02), 831 So.2d 433, 442, writ denied, 02-2874 (La.4/4/03), 840 So.2d 1213).

      . Id. at 240.

      . State v. Bailey, 04-85 (La.App. 5 Cir. 5/26/04), 875 So.2d 949, 954-55, writ denied, 04-1605 (La. 11/15/04), 887 So.2d 476, cert. denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005).

      . Id.

      . State v. Caffrey, 08-717 (La.App. 5 Cir. 5/12/09), 15 So.3d 198, writ denied, 09-1305 (La.2/5/10), 27 So.3d 297.

      . La. R.S. 14:64(A).

      . State v. Ragas, 07-3 (La.App. 5 Cir. 5/15/07), 960 So.2d 266, 271, writ denied, 07-1440 (La. 1/7/08), 973 So.2d 732, cert. denied, -U.S.-, 129 S.Ct. 55, 172 L.Ed.2d 56.

      . State v. Wickem, 99-1261 (La.App. 5 Cir. 4/12/00), 759 So.2d 961, 966, writ denied, 00-1371 (La.2/16/01), 785 So.2d 839.

      . State v. Ingram, 04-551 (La.App. 5 Cir. 10/26/04), 888 So.2d 923, 926.

      . La. R.S. 14:24.

      . State v. Falkins, 04-250 (La.App. 5 Cir. 7/27/04), 880 So.2d 903, 913, writs denied, 04-2220 (La. 1/14/05), 889 So.2d 266 and 04-2171 (La.5/20/05), 902 So.2d 1045.

      . State v. Bailey, 875 So.2d at 955.


text:
    Karen PLEASURE v. LOUISIANA ORGAN PROCUREMENT AGENCY (LOPA) Karen Pleasure. v. Jefferson Parish Hospital District No. 1 d/b/a West Jefferson Medical Center (WJMC).
    Nos. 10-CA-294, 10-CA-295.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 15, 2011.
    Writ Denied April 25, 2011.
    Richard T. Gallagher, Jr., Gallagher Law Firm, LLC, Metairie, LA, for Plaintiff/Appellant.
    Peter J. Butler, Jr., Richard G. Passler, Michael C. Luquet, Lydia Habliston Toso, Breazeale, Sachse & Wilson, L.L.P., New Orleans, LA, for Defendants/Appellees.
    Panel composed of Judges MARION F. EDWARDS, JUDE G. GRAVOIS, and ROBERT L. LOBRANO, Pro Tempore.
   MARION F. EDWARDS, Chief Judge.

| ;>Plaintiff/appellant, Karen Pleasure (Mrs. Pleasure), appeals a judgment of the Twenty-Fourth Judicial District Court granting an Exception of Prematurity filed by defendant/appellee, Jefferson Parish Hospital District No. 1 d/b/a West Jefferson Medical Center (West Jefferson).

The lawsuit in question arises from the death of Mrs. Pleasure’s spouse, Keith Pleasure. On February 8, 2008, Mrs. Pleasure discovered her husband unconscious on the floor. She called emergency service workers, who worked unsuccessfully on her husband before transporting him to West Jefferson. Medical staff there resuscitated him and obtained a pulse, and he was placed on a ventilator. According to hospital records, at 10:50 a.m., Mrs. Pleasure signed a directive requesting that her husband be allowed to die naturally with only the administration of medication, or performance of any medical procedure necessary to provide comfort care. Dr. Walter Truax determined at 12:40 p.m. that it was his impression that Mr. Pleasure had suffered brain death.

|sMr. Pleasure was pronounced dead that afternoon at 1:30 p.m..

In her petition, Mrs. Pleasure alleges that she requested all life support be removed, but West Jefferson did not do so until the hospital conducted tests for organ viability. She contends that she suffered unnecessary mental and emotional pain and suffering and unnecessary medical treatment, tests, and expenses “just to keep the Plaintiffs spouse’s organs viable for organ donation.”

Mrs. Pleasure filed a separate action against the Louisiana Organ Procurement Agency (LOPA). This suit was eventually consolidated with the suit against West Jefferson.

West Jefferson filed an Exception of Prematurity, averring that it is a qualified healthcare provider under La. R.S. 40:1299.47, that the claim before the court concerned a “medical service” that is covered under the act, and that Mrs. Pleasure failed to request a Medical Review Panel in accordance with the statute.

The trial court heard argument on the matter on December 14, 2009. Mrs. Pleasure, who had filed the initial lawsuits in proper person, was represented by counsel. Mrs. Pleasure’s attorney stated that he had attempted to amend the petition and state a cause of action for improper harvesting of organs, but the court stated that no amended petitions had been filed. The court granted the Exception on December 15, 2009, without prejudice. Also on that date, Mrs. Pleasure filed for and was granted leave of court to file an amending petition, which urged that West Jefferson was negligent in failing to obtain proper consent to release Mr. Pleasure’s body for organ removal and in failing to timely remove him from life support.

The present appeal concerns only the lawsuit against West Jefferson. Initially, we note that only the first page of the petition filed against West Jefferson appears in that appellate record. However, the record of the consolidated suit 14against LOPA contains what appears, considering the grammatical sequence, the facts alleged, and paragraph numbering, to be the intended second page of the West Jefferson suit. On appeal, appellate counsel acknowledges that Mrs. Pleasure’s intent in filing both suits was a complaint that LOPA obtained Mr. Pleasure’s corneas without her written or verbal consent.

Mrs. Pleasure avers that Mr. Pleasure was brain dead and, thus, with regard to West Jefferson, could not be considered a patient under the malpractice statutes. According to Mrs. Pleasure, there was no health care involved because Mr. Pleasure was dead.

West Jefferson argues, as it did before the trial court, that the claim was indeed a “medical service” covered under La. R.S. 40:1299.41 as interpreted and defined by other statutes that address organ donation.

La. C.C. art. 2322.1, in relevant part, states:

A. The screening, procurement, processing, distribution, transfusion, or medical use of human blood and blood components of any kind and the transplantation or medical use of any human organ, human tissue, or approved animal tissue by physicians, dentists, hospitals, hospital blood banks, and nonprofit community blood banks is declared to be, for all purposes whatsoever, the rendition of a medical service by each and every physician, dentist, hospital, hospital blood bank, and nonprofit community blood bank participating therein, and shall not be construed to be and is declared not to be a sale. Strict liability and warranties of any kind without negligence shall not be applicable to the aforementioned who provide these medical services.
D. As used in this Article:
(1) “Healthcare provider” includes all individuals and entities listed in R.S. 9:2797, this Article, R.S. 40:1299.39 and R.S. 40:1299.41 whether or not enrolled with the Patient’s Compensation Fund.
(2) “The use of blood or tissue” means the screening, procurement, processing, distribution, transfusion, or any medical use of human blood, blood products, and blood components of any kind, and the transplantation or medical use of any human organ, human or |,^approved animal tissue, and tissue products or tissue components by any healthcare provider.

(Emphasis supplied.) See also, La. R.S. 9:2797.

Under La. R.S. 40:1299.41(A)(15), a “patient” is a natural person who receives or should have received health care from a licensed health care provider, under contract, expressed or implied. “Health care” is any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement, or during or relating to or in connection with the procurement of human blood or blood components. La. R.S. 40:1299.41(A)(9). “ ‘Malpractice’ means any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient_” La. R.S. 40:1299.41(A)(13). According to that section, malpractice includes legal responsibility arising from acts or omissions during the procurement of blood or blood components, in the training or supervision of health care providers, or from defects in blood, tissue, transplants, drugs, and medicines. Tissue banks, which are defined as any independent nonprofit facility procuring and processing human organs or tissues for transplantation, medical education, research, or therapy, are included as health care providers under the statute.

La. R.S. 9:111(A) gives the legal definition of death as follows:

A person will be considered dead if in the announced opinion of a physician, duly licensed in the state of Louisiana based on ordinary standards of approved medical practice, the person has experienced an irreversible cessation of spontaneous respiratory and circulatory functions. In the event that artificial means of support preclude a determination that these functions have ceased, a person will be considered dead if in the announced opinion of a physician, duly licensed in the state of Louisiana based upon ordinary standards of approved medical practice, the person has experienced an irreversible total cessation of brain function. Death will have occurred at the time |fiwhen the relevant functions ceased. In any case when organs are to be used in a transplant, then an additional physician, duly licensed in the state of Louisiana, not a member of the transplant team, must make the pronouncement of death.

In the present case, Mr. Pleasure was clearly a patient at West Jefferson. He was treated in the emergency room, revived, intubated, and diagnosed as being in a coma. Mrs. Pleasure argues that when Dr. Truax opined that Mr. Pleasure had no pulse and was brain dead, and although his heart was still beating, he was no longer a “patient,” according to La. R.S. 9:111, to be covered under the Malpractice Act. However, whether or not Dr. Truax’s medical notes at 12:40 p.m. meet the legal definition of death as defined in the statute prior to his being pronounced dead by another physician at 1:30 p.m. does not determine the nature of the action before us. (We note that La. R.S. 9:111 qualifies the legal definition of death for purposes of transplant as requiring a “pronouncement of death” by a physician who is not a member of the transplant team.)

Considering the above-cited statutes in connection with the facts at hand, we find that the legislature clearly intended to include the present situation actions as medical or professional services to be covered by the Medical Malpractice Act. La. C.C. art. 2322.1 and La. R.S. 9:2797 unambiguously state that the process of transplantation of human organs, including screening and procurement by physicians, hospitals, etc. are, for all purposes whatsoever, considered medical service. In these statutes, the legislature has twice defined the processes of blood transfusion and human organ transplant squarely as “medical services.” Under La. 40:1299.1, tissue banks are included as qualified health care providers. “Malpractice” includes any unintentional tort or any breach of contract based on professional services rendered by a health care provider, including acts, omissions, and/or defects involving transplants.

17Under the facts of this case, the trial court correctly granted the Exception of Prematurity relative to West Jefferson, without prejudice. The judgment is affirmed.

AFFIRMED.