author: TERRI F. LOVE, Judge.

text:
    Kerry BECNEL v. CHET MORRISON, INC., ES & H, Inc., Coastal Catering, L.L.C., XYZ Insurance Company, CM-Bois D’Arc and/or M/V Butch.
    No. 2010-CA-1411.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 2011.

      Robert S. Reich, Michael T. Wawrzycki, Reich, Album & Plunkett, L.L.C., Metair-ie, LA, for Chet Morrison Contractors, Inc.
    S. Daniel Meeks, Joseph A. Devall, Jr., Wheat, Oppermann & Meeks, Metairie, LA, for State National Insurance Company and Coastal Catering, L.L.C.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR.).
   TERRI F. LOVE, Judge.

|, Plaintiff/Appellee filed suit against Defendants/Appellants, alleging that he was injured as a result of falling off a barge while performing his employment duties aboard a vessel. Appellants argue that the trial court erred in granting the motion for summary judgment and cross-motion for summary judgment filed by Chet Morrison Contractors, Inc. on the issues of Jones Act seaman status, indemnity, and defense against Coastal Catering, L.L.C.

We find that genuine issues of material fact exist as to Appellee’s Jones Act seaman status. We, therefore, reverse the trial court’s judgment and remand the matter for further proceedings. This finding precludes this Court from further addressing the Appellants arguments regarding insurance coverage and penalty assessment.

| .PROCEDURAL BACKGROUND AND FACTS

Plaintiff/Appellee, Mr. Kerry Becnel (“Mr. Becnel”), was employed by Coastal Catering, L.L.C. (“Coastal”) in 2005, and through a contract with Chet Morrison Contractors, Inc. (“CMC”) and/or ES & H, Inc. (“ES & H”), he was assigned to work as part of the cooking/galley staff. Mr. Becnel alleges that during his employment with Coastal, he was injured aboard a vessel while working on a project. Mr. Becnel filed suit against various parties, including Coastal, CMC, and their insurers.

Mr. Becnel alleges that as he was walking from one barge to another, he fell several feet into the water below and sustained injuries. Mr. Becnel brought suit against various parties regarding his injuries, alleging that there was no safety device, railing, chain, rope, or other safety feature to prevent falling from the side of the vessel. Mr. Becnel contends that this was well-known and within the privity of knowledge of the vessel owner. Mr. Bec-nel maintains that he was, yet, allowed to work aboard the unreasonably dangerous vessel without safety training or warnings notwithstanding knowledge of the owner, crew, and captain. Mr. Becnel further contends that vessel interests had knowledge that the only light in the vicinity of the accident was malfunctioning and there was no way for him to appreciate the danger posed by the vessel.

State National Insurance Company (“SNIC”) filed a motion for summary judgment against third-party plaintiff, CMC, arguing that CMC was not covered by |sthe maritime general liability policy issued by SNIC. CMC filed a cross-motion for summary judgment, and the trial court granted CMC’s cross-motion, finding coverage under the polity. CMC also filed a motion for partial summary judgment as to the seaman status of Mr. Becnel and indemnity and defense against Coastal. Coastal filed a cross-motion for summary judgment. The trial court found that Mr. Becnel was a Jones Act seaman and that Coastal is required to defend and indemnify CMC against Plaintiffs claim. Defendants, SNIC and Coastal, appeal.

CMC filed a motion for partial summary judgment on the issues of Jones Act seaman status, indemnity, and defense against Coastal. Coastal filed a cross-motion for partial summary judgment on the same issues, and both motions were heard before the trial court. SNIC filed a motion for summary judgment against CMC, and CMC filed a cross-motion for summary judgment against SNIC, which were also heard before the trial court.

The trial court determined that Mr. Bec-nel was a Jones Act seaman and granted CMC’s motion for partial summary judgment on seaman status. Further, the trial court concluded that the provisions of the Longshore and Harbor Workers Compensation Act (LHWCA) were inapplicable and denied Coastal’s crossmotion for partial summary judgment on seaman status, indemnity and defense.

The trial court found that CMC was as an additional insured on Coastal’s insurance policy with SNIC and granted CMC’s cross-motion for summary judgment. The trial court also found that Coastal was contractually bound to defend and indemnify CMC and SNIC’s denial of coverage was unreasonable, | ^arbitrary, and without probable cause. Given that finding, the trial court assessed attorney’s fees, other expenses, and penalties pursuant to La. Rev.Stat. 22:1892 against SNIC.

Thereafter, Coastal, SNIC, and Coastal’s second insurer, Seabright Insurance Company (“Seabright”), settled Mr. Bec-nel’s claims. The trial court then granted a Joint Motion and Order for Dismissal.

STANDARD OF REVIEW AND SUMMARY JUDGMENT

This Court reviews a court’s disposition of a motion for summary judgment de novo, applying the same standards as the trial court. Schroeder v. Board of Sup’rs of Louisiana State University, 591 So.2d 342, 345 (La.1991).

A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code. Civ. Proc. art. 966(B). Facts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute. Id.

Here, Appellants are not required to negate all essential elements of Mr. Bec-nel’s claim. However, Appellants must show an absence of factual support for one or more essential elements of Mr. Becnel’s claim. If Appellant makes such showing, the burden then shifts to Mr. Becnel to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. If Mr. |fiBecnel successfully produces such support, there is a genuine issue of material fact that precludes summary judgment.

JONES ACT SEAMAN STATUS

Appellants argue that the trial court incorrectly applied the test for determining Jones Act seaman status and, thus, erroneously granted CMC’s motion for partial summary judgment on seaman status.

The applicable theory of recovery before this court is provided in the Jones Act, 46 U.S.CApp. § 688(a), which provides:

“Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in ease of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.”

In Chandris, Inc., v. Latsis, the United States Supreme Court determined “what relationship a worker must have to the vessel, regardless of the specific tasks the worker undertakes, in order to obtain seaman status.” Chandris, Inc. v. Latsis, 515 U.S. 347, 350, 115 S.Ct. 2172, 2180, 132 L.Ed.2d 314 (1995). As articulated by the Chandris Court, the well-settled two-part test for determining seaman status is: 1) whether the employee’s duties contributed to the function of the vessel or accomplishment of its mission; and 2) whether that employee had a connection to a vessel in navigation which was substantial both in terms of duration and nature. Id., 515 U.S. at 368, 115 S.Ct. at 2190.

^CONTRIBUTION TO THE FUNCTION OF THE VESSEL OR ACCOMPLISHMENT OF ITS MISSION

The United States Supreme Court observed that the first prong of the test of seaman status is easily satisfied, and a maritime employee who does the ship’s work falls within the purview of the Jones Act. Chandris, 515 U.S. at 368, 115 S.Ct. at 2190. Indeed, “[a]ll who work at sea in the service of a ship” are potential seamen. Id. (quoting McDermott Int’l, Inc. v. Wilander, 498 U.S. 337, 354, 111 S.Ct. 807, 817, 112 L.Ed.2d 866 (1991)). In Becker v. Tidewater, Inc., 335 F.3d 376, 388 (5th Cir.2003), the court held that this factor was easily met because the plaintiff “filled one of the [vessel’s] crew positions and engaged in the vessel’s work while on board.”

The parties before us do not appear to dispute that Mr. Becnel meets the first prong of the Chandris test. This is evidenced by Appellants’ brief, which states, “[although the Plaintiff was working aboard a vessel, and contributing to the function of that vessel, at the time of the incident in suit, the Plaintiff failed to meet the final, and important, prong of the test for seaman status set forth in Chandns.” Additionally, in a sworn affidavit, Mr. John Deblieux, a Commercial Manager for CMC, attested that Mr. Becnel “was assigned to [a] vessel or identifiable fleet of vessels, and his work there helped accomplish the mission of said vessels.”

While no factual dispute exists as to whether Mr. Becnel’s duties contributed to the function of the vessel or accomplishment of its mission, the record reflects that at the time of the incident, Mr. Becnel was assigned to work as a cook on a quarters barge that housed workers, who took part in removing debris from water. Mr. Becnel’s deposition testimony reflects that he was told that he would work seventeen (17) seventeen hours daily and that he would be responsible for 17preparing three meals daily, cooking and cleaning. Mr. Becnel testified that during his work on the barge in question, when the floor remained wet in the galley . after being mopped, crew members would routinely close off the galley and walk around it rather than traverse the galley. He testified that crew members would use a water barge to get over to the living quarters. Mr. Becnel stated it was while using this alternate route that he fell from the side of the barge into the water below and injured himself.

We find that Mr. Becnel’s duties contributed to the function of the vessel or accomplishment of its mission in satisfaction of the first prong of the test for seaman status.

CONNECTION WITH A VESSEL SUBSTANTIAL IN DURATION AND NATURE

As to the second prong of the test for seaman status, in Chandris, the Supreme Court explained its significance and stated:

The fundamental purpose of this substantial connection requirement is to give full effect to the remedial scheme created by Congress and to separate the sea-based maritime employees who are entitled to Jones Act protection from those land-based workers who have only a transitory or sporadic connection to a vessel in navigation, and therefore whose employment does not regularly expose them to the perils of the sea. Chandris, 515 U.S. at 368, 115 S.Ct. at 2190.

In applying this substantial connection requirement, the duration of the worker’s connection to a vessel and the nature of the worker’s activities taken together determine whether a maritime employee is a seaman. Chandris, 515 U.S. at 370, 115 S.Ct. at 2172.

1 sGiven that, we now consider whether Mr. Becnel had a connection to a vessel in navigation. If so, we must then determine whether that connection was substantial in duration and nature.

VESSEL CONNECTION

The Supreme Court has articulated that the second prong constitutes a “status-based” standard — i.e., “it is not the employee’s particular job that is determinative [of seaman status], but the employee’s connection to a vessel.” Chandris, 515 U.S. at 364, 115 S.Ct. at 2188.

Appellants argue that Mr. Becnel is not a seaman entitled to damages under the Jones Act because he did not have an employment connection to a particular vessel and/or fleet of vessels under common ownership. In support of their argument, Appellants aver that employment records and an affidavit executed by the president of Coastal establish that Mr. Becnel was randomly assigned to work for various customers of Coastal. While Appellants concede that some of Mr. Becnel’s assignments were to vessels, they also maintain that most of Mr. Becnel’s assignments were to fixed platforms.

We first note that “merely being “subject to reassignment [to a non-seaman role or status] ... at some point later in time is of no moment” and does not in itself defeat a worker’s seaman status.” Parker v. Jackup Boat Service, LLC, 542 F.Supp.2d 481 (E.D.La.2008) (citing Becker v. Tidewater, Inc., 335 F.3d 376, 392 (5th Cir.2003)). “An employer’s claim that an employee ‘could have been assigned to other work locations’ does not preclude that employee’s seaman status.” Id.

In Bertrand v. International Mooring & Marine, Inc., 700 F.2d 240 (5th Cir.1983), cert. denied, 464 U.S. 1069, 104 S.Ct. 974, 79 L.Ed.2d 212 (1984), the Court reached the conclusion that Jones Act coverage should not be withheld because the vessels are not under the employer’s common ownership or control when claimants are continuously subjected to the perils of the sea and engaged in classical seaman’s work. The Court held that, in light of the purposes of the Jones Act, employers will not be allowed to deny Jones Act coverage to seamen by arrangements with third-parties regarding a vessel’s operation or by the manner in which work is assigned. Id.

Moreover, in Wisner v. Professional Divers of New Orleans, 98-1755 (La.3/2/99), 731 So.2d 200 (1999), the Louisiana Supreme Court found that a commercial diver whose employer did not own or control a vessel or fleet of vessels was still a seaman for the purpose of the Jones Act, provided that a substantial part of his duties were performed on vessels. Id. The Court found that the determination of seaman status should not be controlled by an employer’s chartering arrangement. Id. In light of the principle that determination of seaman status should not be controlled by an employer’s chartering arrangement, in Wallace v. Oceaneering Int’l, 727 F.2d 427 (5th Cir.1984), the Court concluded that a commercial diver was a seaman although he was injured during his employment with a diving service contractor after being aboard a vessel for only a few days.

| inMr. James Fister, II, the president of Coastal at the material time, attested that Mr. Becnel was employed as a day-cook/steward and a night cook with Coastal. Coastal provided personnel to a variety of customers on various types of installations and vessels, and Mr. Fister attested that Mr. Becnel maintained employment with Coastal for a total of one hundred fifty-three (153) days at seven (7) different job sites, and he worked with five (5) of Coastal’s customers.

During his deposition, Mr. Becnel could not recall whether all of the work he performed for Coastal took place on some type of vessel or barge. However, he testified that during his tenure with Coastal, most of the work that he performed was on dive boats, with his work assignments varying between dive boats, drilling ships, and platforms. Mr. Deblieux of CMC attested that Mr. Becnel “was assigned to [a] vessel or identifiable fleet of vessels.”

Further, while Mr. Becnel did not recall the owner or the name of the particular vessel to which he was assigned at the time of the incident, he testified that all of the vessels were used on a CMC project. Thus, Mr. Becnel alleged a connection to a fleet of vessels under common ownership or control.

The record reveals evidence from which reasonable persons might draw conflicting inferences as to whether Mr. Becnel had an employment connection to an identifiable fleet of vessels. Therefore, we find that a genuine issue of material fact exists as to this issue.

SUBSTANTIAL NATURE AND DURATION

In their brief, Appellants state that “Coastal did not assign [Mr. Becnel] to any particular customer and posit that the disqualifying factor for Mr. Becnel’s | n Jones Act claim was the temporary and transitory nature of his employment. Specifically, Appellants aver that Mr. Becnel failed to establish that when he was working on a vessel and/or fleet of vessels under common ownership, that his stay on that vessel and/or group of vessels under common ownership was not temporary and was substantial in terms of duration.

DURATION

As to the duration of Mr. Becnel’s connection with the vessel and/or group of vessels, “[generally, the Fifth Circuit seems to have identified an appropriate rule of thumb for the ordinary case: A worker who spends less than about 30 percent of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act.” Chandris, 515 U.S. at 364, 115 S.Ct. at 2188. However, the Court stated, “[t]his figure of course serves as no more than a guideline established by years of experience, and departure from it will certainly be justified in appropriate cases.” Id.

Appellants maintain that the issue of whether Mr. Becnel worked at least thirty percent (30%) of his employment with Coastal aboard vessels or identifiable fleet of vessels was not resolved by the trial court. Appellants suggest that because Mr. Becnel worked random assignments and was assigned to CMC vessels for less than 30% of his entire tenure with Coastal, he does not qualify for Jones Act seaman status.

In contrast, Appellee avers that Mr. Becnel meets the requisite test where his full employment with Coastal is taken into account. Appellees submit that the temporal element (duration) of the substantial connection test should be calculated | ^according to Mr. Becnel’s full employment history with Coastal rather than limiting that valuation to vessels owned and/or operated by one customer-CMC.

In support of their argument, Appellants cite Brown v. Trinity Catering, Inc. 06-5756, 2007 WL 4365384 (E.D.La. Dec. 11, 2007). In Brown, the plaintiff was employed by Trinity as a galley hand or cook, and was assigned to the M/V WOTAN, which was owned and operated by Manson Construction Co. (“Manson”). Id. In its analysis, the court went beyond the plaintiffs brief employment history with the defendant and examined the established employment patterns and practices of the plaintiffs employer. Id. Consequently, the court noted that, “given its documented practice of randomly assigning its employees to hundreds of vessels owned by more that [sic] two hundred different owners, it is highly unlikely that [the plaintiff] would have spent 30 percent of his time on a vessel or a group of vessels owned by Manson.” Id. The court thus found that the plaintiff was not a Jones Act seaman.

We find Brown distinguishable from the matter sub judice. Brown only worked two hitches aboard a particular vessel during brief employment with Trinity. Id. Brown was injured at the end of his second hitch, and although he was assigned to a different vessel, he did not return to work the next assignment. Id. The court examined Trinity’s practices in adherence with the Chandris instruction that inquiry into plaintiffs seaman status should not be confined to a “snapshot” of Brown’s employment, however, the court recognized that “[c]onsidering the brevity of Brown’s employment by Trinity, a ‘snapshot’ ” was all that Brown had provided the court.

|isln the matter before this Court, Mr. Fister attested to the following outline of Mr. Becnel’s employment history with Coastal:

Mr. Fister further attested to the following:

• Coastal hired Mr. Becnel on December 9, 2005.
• Mr. Becnel worked for Coastal from December 11, 2005, to August 20, 2006, when his employment with Coastal was terminated.
• Mr. Becnel was employed as a day-cook/steward and a night cook, and during his employment, Mr. Becnel worked a total of one hundred fifty-three (153) days at seven (7) different job sites for five (5) Coastal customers.

In summation, Mr. Fister’s affidavit reflects that Mr. Becnel worked a total of 153 days on seven assignments. Two of those assignments were to CMC quarter barges-the affidavit lists one assignment to CMC for 28 days and a second assignment to CMC for seven days, totaling 35 days of Mr. Becnel’s 153 day employment tenure with Coastal.

114Under Appellants’ line of reasoning, Mr. Becnel fails to meet the temporal element of the substantial connection test as he was assigned to CMC vessels 35 days of his 153-day employment with Coastal— twenty-three percent (23%) of his employment time. Appellant submits that this calculation fails to satisfy the 30% threshold requirement for time spent in service of an identifiable group of vessels.

Mr. Becnel testified that he was injured aboard a CMC vessel. In contrast with Mr. Becnel’s testimony, Mr. Michael Portier testified that he was the supervisor in charge of the quarters barge and the quarters barge was not a CMC vessel.

Mr. Ronald Gautreaux, a Coastal safety manager, testified that prior to the incident, 100% of Mr. Becnel’s time was spent on quarters barges. Mr. Gautreaux’s testimony competes with the information set forth in the affidavit of Coastal’s president, which lists assignments to alternating facility types such that even if the incident occurred at any point listed in the affidavit, at no point was every prior assignment (100%) to a quarters barge.

The affidavit executed by Mr. Deblieux of CMC also disputes information set forth in Mr. Fister’s affidavit. Mr. Fister’s affidavit purports that Mr. Becnel was assigned to two (2) fixed platforms, while Mr. Deblieux’s affidavit states that, “[i]n his capacity as a steward/cook on CMC projects, Becnel was always assigned to some sort of vessel, rather than a platform, or land-based.”

Thus, we find that the record bears out factual issues. Decision of these issues is ultimately determinative of the seaman status inquiry, and such | ^determination requires the weighing of evidence and the credibility of witnesses, which are improper considerations on a motion for summary judgment.

We find that genuine issues of material fact exist as to the amount of time that Mr. Becnel spent in service of a vessel in navigation-less than 30% as SNIC and Coastal contend, or 30% as CMC contends. This precludes determination of whether Mr. Becnel’s connection to a vessel, or identifiable fleet of vessels, was substantial in terms of duration and nature sufficient to pass the second prong of the Chandris test.

We further find that this threshold issue pretermits consideration of Appellants’ other assignments of error as to the trial court’s judgment on insurance coverage and penalty assessment issues. We remand the matter to the trial court for further proceedings consistent with this opinion.

DECREE

We find that genuine issues of material fact exist as to Mr. Becnel’s Jones Act seaman status. We find that this conclusion precludes further consideration of Appellants’ additional assignments of error. We reverse the trial court’s judgment and remand the matter for further proceedings consistent with this opinion.

REVERSED AND REMANDED

      . Chet Morrison Contractors, Inc. was incorrectly named "Chet Morrison, Inc.” in the original petition.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    Linda Ann KINCHEN, Plaintiff-Appellant v. CITY OF SHREVEPORT, Defendant-Appellee.
    No. 46,490-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 21, 2011.

      Eskridge E, Smith, Jr., Bossier City, LA, for Appellant.
    Ronald F. Lattier, Curtis R. Joseph, Jr., Shreveport, LA, for Appellee.
    Before WILLIAMS, DREW and MOORE, JJ.
   WILLIAMS, J.

I,Claimant, Linda Ann Kinchen, appeals a judgment of the Office Of Workers’ Compensation (“OWC”), denying her workers’ compensation benefits due to her retirement from the Shreveport Police Department. For the following reasons, we reverse the portion of the judgment of the workers’ compensation judge (“WCJ”), finding that claimant was not entitled to supplemental earnings benefits (“SEB”) because of her retirement from the workforce. However, we affirm that portion of the judgment denying claimant’s request for an award of penalties and attorney’s fees.

FACTS

Claimant was employed as a Captain with the Shreveport Police Department (“the City”) with over 27 years of service. On October 25, 2006, claimant injured her left shoulder while participating in a mandatory recertification training activity. Claimant continued to work, performing administrative duties, until May 2, 2007, when she underwent a surgical repair of the rotator cuff of her left shoulder. Claimant received temporary total disability benefits, along with paid sick leave, from May 2, 2007, until she returned to work, with restrictions, on October 22, 2007.

On November 5, 2007, claimant was examined by her surgeon, Dr. Shane Barton, who noted that claimant was “improving,” but continued to have left shoulder pain in certain positions. Dr. Barton recommended that claimant receive additional physical therapy and referred her to a clinical social worker for symptoms of anxiety and depression. Dr. Barton allowed claimant to continue “modified” work duties, and restricted her lifting to 20 pounds at waist level and 5 pounds at overhead level.

12At the time of claimant’s injury and initial return to work, she was a captain in the police department’s Human Resources Division, where her job duties primarily consisted of overseeing police personnel and recruiting. On November 6, 2007, claimant received a “Personnel Action Notice” informing her that she was being transferred from the Human Resources Division to the Uniform Services Division, effective November 16, 2007. Claimant testified that she was able to perform the duties of a captain in the Human Resources Division because she had virtually no contact with the public and/or criminal suspects. However, she stated that after she was transferred to the Uniform Services Division, her duties included supervising patrol officers, who often brought arrestees to the department to complete paperwork; attending city council meetings, where she would possibly be required to restrain and/or arrest citizens; and being assigned to weekend “commander duty” which entailed responding to crime scenes. Claimant testified that she was able to perform all of her administrative duties required in the Uniform Services Division; however, she was fearful that she would not be able to do “regular police work.”

On December 17, 2007, claimant wrote a letter of retirement, stating:

I am writing this to advise you that, effective January 1, 2008, I will be retiring from the Shreveport Police Department.
I have enjoyed by 27 years working for the department but feel it is time for me to pursue my personal interest.

At the time of her retirement, claimant had not undergone testing to determine any disability rating. However, on May 19-20, 2008, claimant [ounderwent a functional capacity evaluation (“FCE”) and was assigned a 12% left upper extremity disability rating and a 7% total disability rating. Claimant was 56 years old when she retired, and had completed the Deferred Retirement Option Program (“DROP”).

On September 29, 2008, claimant filed a disputed claim for workers’ compensation benefits, seeking supplemental earnings benefits (“SEB”) from January 1, 2008, to date, attorney’s fees, penalties, and payment for counseling and psychiatric treatment. In response, the City filed an answer in which it generally denied all claims. Subsequently, the City filed an amended answer, asserting the following affirmative defenses: (1) claimant “voluntarily took a regular tenure retirement and, as such, claimant has voluntarily withdrawn from the workforce[;]” and (2) at the time of claimant’s voluntary retirement, there was available work for her “that satisfied any putative workplace re-strietions imposed by the claimant’s treating physicians.”

Thereafter, the City filed a motion for summary judgment, arguing that claimant had voluntarily retired; therefore, she was not entitled to SEB. The WCJ denied the City’s motion. Following a trial on the merits, the WCJ found that claimant had retired and denied her claim for SEB. In the reasons for judgment, the WCJ noted:

By early retirement, you short-circuited the system. I think the system could have worked in your favor; | ¿however, you made a subjective decision on your own that was not based on objective, someone else’s objective findings; okay. The doctor said that you should be on light duty for a year and at the end of that time have an FCE, a functional capacity assessment, and at that time you may be able to return to full duty without restrictions. We never got to that point so we don’t know what you can and cannot do today. We have your testimony but we don’t have a doctor saying this is what you can and cannot do. As far as shooting a weapon, I looked at Dr. Barton’s testimony very carefully. He said, you know, I never made a decision on that. So we don’t know where we would be had you stayed there.
* * *
[I]f you had filed this [workers’ compensation claim] instead of retiring, it may have changed the entire picture, but now I don’t know why you waited.
* * *
Claimant now appeals.

DISCUSSION

Claimant contends the WCJ erred in finding that she was not entitled to SEB benefits. She argues that the WCJ’s finding that she had retired, within the meaning of LSA-R.S. 23:1221(3)(d)(iii), was manifestly erroneous.

The City contends it is immaterial whether or not claimant retired within the meaning of the statute. It argues that claimant has not met her burden of proving that she sustained a work-related injury that resulted in the inability to earn 90% or more of her pre-injury wages.

It is well settled that the factual findings of the WCJ are subject to manifest error review. Buxton v. Iowa Police Dept., 2009-0520 (La.10/20/09), 23 So.3d 275; Key v. Monroe City Sch. Bd., 45,096 (La.App.2d Cir.3/10/10), 32 So.3d 1144. Under this legal standard, the reviewing court 1 ¿does not decide whether the factfin-der was right or wrong, but only whether its findings are reasonable. Id.; Stobart v. State, 617 So.2d 880 (La.1993). Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart, supra; Johnson v. Bossier Parish Sch. Bd., 43,817 (La.App.2d Cir. 1/21/09), 3 So.3d 580, writ denied, 2009-0676 (La.5/15/09), 8 So.3d 586.

Supplemental Earnings Benefits

The purpose of SEB is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551; Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52 (La.1993). An employee is entitled to receive SEB if he or she sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his or her average pre-injury wage. LSA-R.S. 23:1221(3)(a). Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. Banks, supra; Freeman v. Poulan/Weed Eater, 93,1530 (La.1/14/94), 630 So.2d 733. This analysis is necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that workers’ compensation is to be liberally construed in favor of coverage. Banks, supra; Daigle v. Sherwin-Williams Co., 545 So.2d 1005 (La. 989).

Once the employee’s burden is met, the burden shifts to the employer who, in order to defeat the employee’s claim for SEB or establish the | ^employee’s earning capacity, must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee in his or the employer’s community or reasonable geographic region. LSA-R.S. 23:1221(3)(c)(i); Banks, supra; Daigle, supra. Actual job placement is not required. Banks, supra.

In the instant case, it is undisputed that claimant sustained a work-related injury and received temporary total disability (“TTD”) benefits from the date of her surgery until she returned to work on October 22, 2007. Subsequently, as a result of her injury, claimant was assigned a 12% left upper extremity disability rating and a 7% total body loss disability rating. Claimant testified that she retired because she was unable to perform the physical duties required of a police officer, such as completing mandatory physical police training, qualifying for and actually using her firearm and taking action if a crime took place in her presence or if a suspect became combative.

Dr. Barton’s deposition testimony was introduced into evidence at trial. Dr. Barton testified that he released claimant to return to work with restrictions because claimant felt that she was able to perform the administrative aspects of her job. However, Dr. Barton did not believe that claimant had the ability to perform the physical aspects of her job, stating that he did not believe that claimant “should be put into a position ... of chasing bad guys herself.” He explained:

[I]n doing administrative work, particularly that did not involve a lot of lifting, was more maybe filling out paperwork, working on the computer, answering the phone, going to meetings, I felt she should do quite well.
Ji* * *
I did not feel that she would be safe nor do I think other people would be safe— that she would feel comfortable putting other people’s safety at risk if she were the one that had to apprehend or fight or wrestle with a subject.
* * *

Dr. Barton stated that he was uncertain whether claimant would ever be able to return to “full duty” as a police officer.

The evidence showed that claimant’s duties as a police captain were primarily administrative in nature. However, claimant’s job description included physical requirements which mandated that she be able to perform her duties “unaided or with assistance of reasonable accommodations;” be “constantly physically fit to do the activities that the job requires;” and “respond to the citizens at all times.” Additionally, the General Order of the police department required all police officers, including captains, to “enforce all state, local, and federal laws” and “to take the appropriate enforcement action if advised of a crime or if a crime takes place in their presence.”

Captain William James Nelson of the Shreveport police department testified that the job of a police captain was a “true administrative job” and that there is “very little, if any interaction out on the street.” However, Captain Nelson admitted that there are certain situations in which a police captain could be required to respond to volatile situations in order to protect himself, herself and/or to protect the public. Captain Jacqueline Willis also testified that all police officers are required to respond if they witness a crime in progress.

The evidence established that claimant did not have any problems |sdoing.her job before she sustained her work-related injury. After her injury, she was unable to physically perform her job and her physician limited her to light-duty work. Rather than maintain her on light-duty status, former Police Chief Henry Whitehorn made the decision to transfer claimant to a department in which her contact with the public increased, which, in turn, increased the likelihood that she would have to respond physically to volatile situations and possibly be required to restrain combative criminal offenders. Captain Willis testified that ordinarily, police officers who return to work on light-duty status are given “desk[-]duty work,” and their police vehicle is not returned to them until they are back on full-duty status. However, when claimant returned to work she had a police vehicle, carried a department-issued firearm and was assigned “commander duty” which required her to attend city council meetings to provide police presence and respond to any disturbances that occurred and report to crime scenes. Captain Willis testified, “She was doing.the job of full duty but she was still light duty.”

The record reveals that at the time of claimant’s injury and subsequent retirement, she was a captain in the police department with over 27 years of experience. She testified that after her retirement, she had a job for approximately two months, but was unable to continue working because of her condition. She also testified that, at the time of trial, she was searching for a job. Based on this record, we find that claimant has met her burden of proving a prima facie case of entitlement to SEB.

Therefore, the burden has shifted to the City to establish that claimant 13was physically able to perform a certain job, and that the job was offered to claimant in her or the employer’s community or reasonable geographic region. We find that the City has failed to meet its burden. As stated above, claimant was released to return to work on light-duty status. She returned to work in her pre-injury position of captain in the Human Resources Division, where she was able to perform all of her administrative duties. Soon after her return to work, however, claimant was transferred to the Uniform Services Division, where, again, she was able to perform the administrative aspects of her job. However, it is clear from the testimony of both claimant and Dr. Barton that, after her return to work, claimant was never physically able to perform all of the aspects of her job as a police officer. The testimony of claimant, Captain Nelson and Captain Willis established that the job of a captain police was mostly administrative in nature. However, claimant was, above all, a police officer, and was required to meet the physical demands of her job. Additionally, Captain Willis admitted that by being assigned a police vehicle, having her service weapon returned to her and by her assignment to city council meetings and commander duty, claimant was fulfilling a full-duty assignment, rather than light-duty work as ordered by her physician. Captain Willis also testified that she expressed her concerns to former-Chief Whitehorn about claimant’s transfer from Human Resources to the Uniform Services Division, in light of claimant’s light-duty status. She testified that former-Chief Whitehorn stated, “[I]t may be the wrong thing, but I’m going to transfer her anyway.” This statement indicates that the City’s decision to transfer claimant was |inknowingly in violation of her physician’s return to work orders. Therefore, we find that the City failed to prove that the subsequent job assignment given to claimant after her return to work was within her physical capabilities.

Retirement

A claimant’s right to receive SEB is subject to a maximum of 520 weeks, but shall terminate “[w]hen the employee retires; however, the period during which supplemental earnings benefits may be payable shall not be less than 104 weeks.” LSA-R.S. 2S:1221(3)(d)(iii). The retirement period referred to in Section 1221(3) refers only to a worker who has no intention of returning to work regardless of a disability. Key, supra; Johnson, supra; Peters v. General Motors Corp., 39,-279 (La.App.2d Cir.1/26/05), 892 So.2d 717. When a worker has retired from a heavy work duty job, but is still willing to take on light duty employment within the scope of the limitations imposed by his or her disability, then that worker is not considered to have withdrawn from the workforce and is not considered retired under Section 1221(3). See, Key, supra; Peters, supra.

On the other hand, an employee who expresses his or her intention to both retire/stop working and not look for other employment, and who makes no effort to find another job, has retired within the meaning of Section 1221. Peters, supra, citing Randazzo v. Boh Brothers Constr. Co., 2001-1953 (La.App. 4th Cir.3/27/02), 814 So.2d 671, writ denied, 2002-1162 (La.6/14/02), 818 So.2d 783, and Lytle v. City of New Orleans Through New Orleans Fire Dept. 96-0039 (La.App. 4th Cir.9/11/96), 681 So.2d 12, writ denied, 96-2466 (La.12/13/96), 692 So.2d 372.

In Key, supra, the claimant, a custodial worker, suffered an on-the-job injury to her knee and underwent surgery. A FCE limited the claimant to sedentary work, noting that she would “have difficulty returning to work in the custodial department.” The claimant retired due to continued pain and limited mobility. The employer later terminated the claimant’s benefits, stating that she had retired and she had already received the 104-week statutory maximum of SEB. The claimant filed a disputed claim for benefits. During the hearing, the claimant testified that she retired “because of [my] knees” and “when I get well, I will, you know, return ... because I liked working for [the employer].” The employer did not introduce any evidence to contradict the claimant’s testimony. The WCJ found that the claimant was not retired under Section 1221. The WCJ reasoned that the claimant had no intention of retiring but for her work-related injury. This court affirmed.

In Johnson, supra, the claimant was employed as a custodial worker. After suffering an on-the-job abdominal injury, the claimant underwent multiple surgeries. He returned to work and was able to complete his job duties, but only with the assistance of other employees. The claimant retired when he became totally unable to do his job duties. The employer initially paid SEB, but terminated benefits after 104 weeks of payment. During the trial, the claimant testified that he did not want to retire, but did so on the advice of his physician. The claimant’s physician testified that the claimant left the work force because he was medically unable to perform his hajob. The WCJ found that the claimant was entitled to continue to receive SEB, reasoning that the claimant’s decision to retire was entirely based on medical reasons. This court affirmed the WCJ’s decision.

In Peters, supra, the claimant, an assembly line employee for General Motors, developed carpal tunnel syndrome in both hands due to his job. Despite surgical intervention, the claimant became disabled from work. After initially paying workers’ compensation benefits, the employer terminated the benefits; the WCJ reinstated them. Thereafter, the employer identified a job which purportedly accommodated the claimant’s medical restrictions. . The claimant began working in the position, but was unable to do the job. Subsequently, the claimant retired. At the trial, the claimant testified that “the only reason why I retired is to get some relief until I can get my hands together to where I can go and do a job.” He also testified that he did not intend to permanently withdraw from the work force, and he intended to return to work “as soon as I’m able medically to go to work.” The claimant admitted that he had not applied for work anywhere since he retired. The WCJ ruled that the claimant had not withdrawn from the workforce and was entitled to continued SEB. This court affirmed the WCJ’s ruling.

In the instant case, claimant submitted her letter of retirement within weeks of her return to work. In the letter, she stated that she was retiring “to pursue [her] personal interest.” However, at the hearing, claimant testified that she retired because “I did not feel that I could perform the duties as a police officer.” She stated, “I knew that the basic requirements for the job 11 iacould not physically do and as a result this was taxing on me emotionally.” She further stated that she was unable to perform all of the “physical requirements” of her position, and that she unable to “handle a situation if a volatile situation occurred.” Furthermore, she testified that she was restricted from lifting beyond a certain weight and that she “was always in fear of just if I got into a confrontation.” Claimant testified unequivocally that it was not her intention to withdraw from the workforce. She stated that since her retirement, she worked for a telemarketing company for approximately two months, and she was looking for a job at the time of the trial.

On cross-examination, claimant testified that she opted to retire, rather than to request another position, because no other positions were offered to her. She stated:

I retired as a police officer from the Police Department because there’s nothing as a, police officerf,] that’s from chief all the way down[,] that would not subject you to possibly becoming physically involved with the situation. That’s what I retired from. , I did not retire from working.

In response to claimant’s testimony with regard to her reasons for retiring, the city introduced her medical records, which included notations from claimant’s counseling sessions with Terri Harrington, a licensed clinical social worker. The notes revealed that weeks before claimant’s return to work, she mentioned retiring and moving to Texas to be closer to her family.

Based on the record, we find that the WCJ’s conclusion that claimant intended to permanently withdraw from the workforce is clearly wrong. |uClaimant testified that although she was able to perform the administrative aspects of her job, she retired from the police force because she did not feel that she could perform all of the physical requirements of being a police officer. She clearly stated that she retired from the police force, but she “did not retire from working.” Dr. Barton testified that he did not believe that claimant would ever return to “full duty” as a police officer. Additionally, claimant provided unrefuted testimony that since her retirement from the police department, she has sought other employment and, in fact, had a job for approximately two months. Therefore, we find that the record does not contain a reasonable factual basis for the WCJ’s conclusion that claimant intended to both retire/stop working and not seek other employment. Accordingly, the WCJ was manifestly erroneous in finding that claimant was not entitled to SEB.

Penalties and Attorney’s Fees

Claimant further contends the WCJ erred in failing to award penalties and attorney’s fees due to the City’s late approval and payment of certain medical expenses. Claimant’s physician recommended counseling. The City failed to timely approve and pay for the counseling.

LSA-R.S. 23:1201(1) provides:

Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims.

In Brown v. Texas-LA Cartage, Inc., 98-1063 (La.12/01/98), 721 So.2d 885, 890, our Supreme Court defined the phrase “arbitrary and capricious,” as used in this context, as follows:

Arbitrary and capricious behavior consists of willful and unreasonable action, without consideration and regard for facts and circumstances presented, or of seemingly unfounded motivation. Stated another way, such behavior arises from unrestrained exercise of the will or personal preference or lacks a predictable pattern.

Penalties are stricti juris and should be imposed only when the facts clearly negate good faith and just cause in connection with the refusal to pay. Johnson, supra, citing Young v. Christus Schumpert Medical Center, 39,593 (La.App.2d Cir.5/11/05), 902 So.2d 1180; Lee v. Schumpert, 36,733 (La.App.2d Cir.1/29/03), 836 So.2d 1214.

In the present case, since claimant filed her claim for SEB, the City has vehemently controverted the claim for benefits based on claimant’s retirement. Based on the wording of claimant’s letter of retirement, we cannot say that the City’s refusal to pay SEB was willful or unreasonable. Thus, we find that the refusal was not arbitrary, capricious or without probable cause. We agree with the WCJ’s conclusion that claimant was not entitled to recover penalties and attorney’s fees.

CONCLUSION

For the reasons set forth herein, the judgment of the WCJ finding that claimant was not entitled to supplemental earnings benefits is hereby reversed. We affirm the WCJ’s refusal to award penalties and attorney’s fees. Defendant, the City of Shreveport, is to bear the costs of this appeal in the amount of $146.50.

REVERSED IN PART; AFFIRMED IN PART.

      . "The purpose of entering DROP [is] not to retire, but to divert retirement income into a special DROP account and not to the retirement system for a period of three years. Actual retirement is not required at the end of the three-year period, and continued employment is not uncommon[.]” See, Johnson v. Bossier Parish Sch. Bd., 43,817 (La.App.2d Cir. 1/21/09), 3 So.3d 580, 585, writ denied, 2009-0676 (La.5/15/09), 8 So.3d 586.


author: STEWART, J.

text:
    STATE of Louisiana, Appellee v. Larry ESQUE, Appellant.
    No. 46,515-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 21, 2011.

      Louisiana Appellate Project, Jonesboro, LA, by James E. Beal, for Appellant.
    Charles R. Scott, II, District Attorney, Brian H. Barber, R. Bennett Langford, III, Kodie K. Smith, Assistant District Attorneys, for Appellee.
    Before STEWART, CARAWAY and DREW, JJ.
   STEWART, J.

hThe defendant, Larry Esque, was convicted of three counts of molestation of a juvenile, pursuant to La. R.S. 14:81.2. He was sentenced to 20 years on the first count, 15 years on the second count, and 15 years on the third count. The defendant was ordered to serve these sentences consecutively. For the reasons discussed below, we affirm the defendant’s convictions and sentences.

FACTS

In April or May of 2008, B.T., who was born on October 4, 1999, was left in the care of the defendant, whom she calls “Uncle Larry.” The defendant is not B.T.’s uncle. B.T. had a poison ivy rash on her stomach, and the defendant applied ointment to the rash. He then proceeded to pull her shorts and underwear to the side and touch her genitals, and he raised her shirt to touch her chest inappropriately. B.T. was born on October 4,1999.

After B.T. informed her mother that the defendant had touched her inappropriately, her mother reported the incident to the Bossier City Police Department. The case was assigned to Sergeant Michael T. Beam, who was working in the juvenile division at that time. Sergeant Beam contacted B.T. and scheduled an interview at the Gingerbread House. When B.T. was interviewed at the Gingerbread House, it was discovered that the incident had occurred in Shreveport. The case was then transferred to Caddo Parish.

The case was assigned to Detective Jeff Allday, who works in the sex crimes division of the Shreveport Police Department. Allday contacted C.H., who is the defendant’s daughter, as well as the girlfriend of B.T.’s ^brother. C.H. informed Allday that she believed that the defendant had molested B.T. because he had molested her almost every day at their home in Shreveport, from the age of six to the age of ten, between the years of 1986 and 1990. C.H. was born on June 12,1980.

C.H. also informed Allday that she had a friend named D.H., who spent the night with her when they were in the fifth grade. That night, C.H. and D.H. slept in the bed with the defendant. C.H. testified that D.H. asked C.H.’s mother to take her home in the middle of the night because she was sick. Shortly thereafter, D.H. wrote about sleeping at C.H.’s house and why she left in the middle of the night in a journal at school. D.H. explained in the journal entry that the defendant had been “rubbing” his body against both girls that night. D.H.’s teacher read the journal entry and reported it to the authorities. D.H. was born on May 6, 1980. This incident occurred in 1989.

Allday contacted D.H., who recalled the same incident from 1989. D.H. informed Allday that she and G.H. were sleeping in the same bed with the defendant. She recalled that the defendant took turns “dry humping” the girls, by rubbing his crotch back and forth on them. D.H. stated that she asked C.H.’s mom to take her home, and that she never returned to the Esque’s home again.

An investigation was initiated after this incident occurred in 1989, but neither D.H. nor C.H. remembers anything resulting from the investigation. It appears as if the investigation was dropped.

| oThe defendant, who was born on December 10, 1950, was charged by bill of information with three counts of molestation of a juvenile. Count one charged that in April or May of 2008, he, being over the age of 17, committed lewd and lascivious acts upon B.T., born October 4,1999, there being more than two years age difference between them, with the intent to gratify his sexual desires and those of B.T., by use of influence by virtue of a position of supervision and control over her in violation of La. R.S. 14:81.2(A), (C), and (E)(1). The bill was later amended to delete the reference to (E)(1) because that section of the law had not been enacted at the time of the incident in April or May of 2008.

Count two charged that from 1986 to 1990, the defendant, being over the age of 17, committed lewd and lascivious acts upon the person and in the presence of C.H., born June 12,1980, there being more than two years age difference between them, with the intent to arouse and gratify his sexual desires by use of influence by virtue of a position of supervision and control over her in violation of La. R.S. 14:81.2(A), (C), and (D).

Count three charged that in 1989, the defendant being over the age of 17, committed lewd and lascivious acts upon the person and in the presence of D.H., born May 6, 1980, there being more than two years age difference between them, with the intent to arouse and gratify sexual desires and those of the juvenile by use of influence by virtue of a position of supervision and control over her in violation of La. R.S. 14:81.2(A) and (C).

After the bill of information had been amended several times prior to the commencement of trial, the defendant was informed by the court that the Lsentencing range for the first count of molestation of a juvenile was up to 20 years, and the sentencing range for the second and third count was up to 15 years. The sentencing limits for each count differ based on the dates of the alleged commission of the crimes. The defendant did not accept the plea bargain agreement offered to him.

The jury trial commenced on October 11, 2010. The testimonies of B.T., C.H., and D.H. corroborated the facts discovered through the police investigation. On October 13, 2010, the jury found the defendant guilty on all three counts of molestation of a juvenile.

The defendant filed a motion for post judgment verdict of acquittal, which was subsequently denied at the sentencing hearing on October 27, 2010. At the sentencing hearing, the trial judge reviewed the sentencing factors and guidelines pertinent to this case. He also considered the facts presented at trial that supported the contention that the defendant had a history of childhood molestation spanning 22 years. The defendant was sentenced to 20 years’ imprisonment at hard labor for the first count of molestation of a juvenile, 15 years’ imprisonment at hard labor for the second count, and 15 years’ imprisonment at hard labor for the third count. The trial judge ordered that these sentences run consecutively.

Counsel for the defendant objected to the sentences imposed, and filed a motion to reconsider the sentences on November 18, 2010. Defendant’s counsel argued that the sentences were excessive and unconstitutional because they were too severe under the circumstances of 1 sthe case. The motion was denied on November 22, 2010. This appeal ensued.

LAW AND DISCUSSION

In the defendant’s sole assignment of error, he argues that a 20-year sentence at hard labor, together with the two 15-year sentences at hard labor, all to run consecutively, are excessive. The defendant contends that the total 50-year sentence, which consists of the maximum sentence for each count, is grossly disproportionate to the severity of the crime, and serves no useful purpose. The defendant, who was 59 years old at the time of trial, argues that due to his age, the 50-year sentence will force him to spend the rest of his life in jail.

The trial judge is afforded wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of manifest abuse of his discretion. On review, the appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating factor so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App. 2 Cir. 2/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297.

The goal of La. C. Cr. P. art. 894.1 is the articulation of the factual basis for a sentence, not the rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been a full compliance with La. C. Cr. P. art. 894.1. The important elements which should be considered are the defendant’s prior criminal record, the seriousness of the offense, the likelihood of rehabilitation and his personal history, including his age, family ties, marital status, health and employment record. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App. 2 Cir. 12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351.

The second prong is constitutional excessiveness. A sentence violates La. Const. Art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1. A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Bradford, 29,519 (La.App. 2 Cir. 4/2/97), 691 So.2d 864.

| 7As a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. McKinney, 43,061 (La.App. 2 Cir. 2/13/08), 976 So.2d 802.

At the time of the first act of molestation of C.H. in 1986, and continuing through 1990 when the last act of abuse of C.H. occurred, the penalty portion of La. R.S. 14:81.2 stated:

C. Whoever commits the crime of molestation of a juvenile when the offender has control or supervision over the juvenile shall be fined not more than ten thousand dollars, or imprisoned, with or without hard labor, for not less than one nor more than fifteen years, or both.

This is also the way La. R.S. 14:81.2 read in 1989 during the commission of the offense against D.H.

In 2008, when the act of abuse of B.T. occurred, the penalty subsection of the statute stated:

C. Whoever commits the crime of molestation of a juvenile, when the victim is thirteen years of age or older but has not yet attained the age of seventeen, and when the offender has control or supervision over the juvenile, shall be fined not more than ten thousand dollars, or imprisoned, with or without hard labor, for not less than five, nor more than twenty years, or both[.] [T]he defendant shall not be eligible to have his conviction set aside or his prosecution dismissed in accordance with Code of Criminal Procedure Article 893. (Punctuation added.)

It is within the trial court’s dis- ■ cretion to order sentences to run consecutively rather than concurrently. La. C. Cr. P. art. 883. When consecutive sentences are imposed, the trial court shall state the factors considered and its reasons for the consecutive terms. Among the factors to be considered when consecutive sentences are imposed are the defendant’s criminal history; the gravity or dangerousness of the offense; the |sviciousness of the crimes; the harm done to the victims; whether the defendant constitutes an unusual risk of danger to the public; the potential for the defendant’s rehabilitation; and whether the defendant received a benefit from the plea agreement. State v. Smith, 44,998 (La.App. 2 Cir. 3/31/10), 34 So.3d 386, writ denied, 10-0980 (La.12/10/10), 51 So.3d 722.

The record shows that the trial judge adequately considered the aggravating and mitigating circumstances applicable to the defendant, thereby complying with La. C. Cr. P. Art. 894.1. The trial judge noted many aggravating circumstances, including those regarding the fact that the victims were tormented through the years due to molestation by the defendant, and that the defendant knew or should have known of the vulnerability of the victims and the incapability of resistance given their young age. The trial judge found that the defendant was in a position of control and supervision over all three victims at the time of their molestation, and that in regard to the defendant’s daughter, the abuse took place over a span of many years. He found that the victims will carry the scars of what the defendant did to them throughout their lives.

The trial judge also noted that the defendant was a “scourge on society,” that he had been committing atrocious crimes against children for at least 22 years, and that he would commit molestation if he were not incarcerated. The 22 years of abuse that the trial judge is referring to is not exactly accurate, since the proven acts of molestation occurred from 1986 through 1990, and then again in 2008. However, this evidence shows that the defendant did not reform himself during the time period when he was |3not accused of molesting children. The trial judge noted that child molesters “fit into a certain category, and that they just seem to repeat their crimes if given the opportunity.”

The trial judge stated that he had considered any mitigating circumstances and examined them pursuant to La. C. Cr. P. art. 894.1. He recognized the defendant’s arguments that he was 59 years old, that the sentences would amount to a life sentence, and that the defendant had not been convicted before. However, the trial judge did not consider these as mitigating factors, since the defendant was not living a “law abiding life.”

The trial judge found that all three of the factors found in La. C. Cr. P. art. 894.1(A) applied, and that there was an undue risk that the defendant would commit another crime during the period of suspended sentence or probation. Also, the defendant was in need of correctional treatment or a custodial environment that can be provided most effectively by commitment to an institution. Lastly, a lesser sentence would deprecate the seriousness of the defendant’s crimes.

After considering the La. C. Cr. P. art. 894.1 factors, and the arguments presented by the defendant’s attorney, the trial judge imposed the maximum sentence for each charge.

After a careful review of the record, we find that the sentences imposed were within the statutory guidelines, and the trial judge articulated with great particularity why he imposed those sentences. We cannot say that the imposition of the maximum sentences for this defendant are nothing more than a purposeless and needless infliction of pain and suffering, nor a | inshock to our sense of justice. The defendant’s sentences, totaling 50 years, are not grossly out of proportion to the seriousness of the offenses when considering the fact that the defendant sexually violated three young girls. Accordingly, we find that the trial court did not err in the imposition of the maximum sentences to be served consecutively in this case. The defendant’s argument regarding the exces-siveness of his sentences is without merit.

CONCLUSION

For the foregoing reasons, the convictions and sentences of the defendant, Larry Esque, are affirmed.

AFFIRMED.


author: GASKINS, J.

text:
    STATE of Louisiana, Appellee v. Jose M. DELVALLE, Jr. a/k/a DEVALLE, Appellant.
    No. 46,563-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 21, 2011.

      Douglas Lee Harville, Louisiana Appellate Project, for Appellant.
    Charles Rex Scott, District Attorney, Jason T. Brown, Brian H. Barber, Assistant District Attorneys, for Appellee.
    Before GASKINS, MOORE and LOLLEY, JJ.
   GASKINS, J.

hThe defendant, Jose M. Delvalle, Jr., pled guilty pursuant to State v. Crosby, 338 So.2d 584 (La.1976), to the charge of attempted possession of a firearm by a convicted felon. The trial court sentenced him to serve seven years at hard labor and to pay a fine of $1,000. The defendant has appealed, arguing that the trial court erred in failing to grant motions to suppress the evidence against him. For the following reasons, we affirm the defendant’s conviction and sentence.

FACTS

At 2:20 a.m. on January 28, 2010, Shreveport police officers Mike Jones and Ryan Owen observed the defendant driving in his vehicle on Shreveport Barksdale Highway. The defendant made a turn onto a side road and then onto a service road. On one of the turns, the officers observed that the defendant did not use his turn signal. Given the early hour and the fact that driving while intoxicated offenses frequently occurred in the area, the officers stopped the defendant for the traffic violation.

Officer Owen, who was in training, exited the police car and approached the defendant’s vehicle. Corporal Jones remained in the patrol car to observe. The defendant got out of his car without being requested to do so, and walked toward Officer Owen. As the defendant approached, Officer Owen noticed the smell of marijuana coming from the defendant. | ^Because the defendant was wearing baggy clothing in which a weapon might be hidden, Officer Owen patted down the defendant and placed him in the back of the patrol car. Officer Owen asked for permission to enter the defendant’s vehicle to retrieve his insurance and registration, but the defendant refused. Corporal Jones advised the defendant of his Miranda rights and encouraged him to be honest with the police. He also told the defendant that a K-9 drug dog would be called to sniff the car. The defendant admitted that there was a small amount of marijuana in the ashtray of the car. The defendant was told that if all the officers found was the residue of used marijuana, they were “not worried about that.” The defendant gave his consent to search the car.

The search yielded approximately six grams of marijuana and a .25 caliber firearm which were found in the middle console of the vehicle, between the seats. The defendant told the officers that he had a prior arrest for possession of Schedule II drugs. The officers ran a check and determined that the defendant had a conviction for that felony offense. The defendant stated that the gun belonged to his landlord. The defendant was arrested for possession of a firearm by a convicted felon.

On April 19, 2010, the defendant was charged by bill of information with possession of a firearm or carrying a concealed weapon by a convicted felon, a violation of La. R.S. 14:95.1. The defendant filed a pro se “motion in limine,” which the trial court viewed as a motion to suppress. The defendant also filed a pro se motion to suppress. In these motions, the 1 ¡¡defendant essentially argued that he was illegally detained for an extended period of time and that no exceptions to the warrant requirement operated to validate the search of his vehicle, which resulted in the discovery of the gun. Therefore, he claimed that the gun was obtained pursuant to an illegal search and could not be used against him.

The defendant’s attorney also filed a motion to suppress, arguing that there was no reason to search the defendant’s car when he was stopped for a traffic violation, that the defendant did not give valid consent to search the vehicle, and that no exigent circumstances justified the search. Therefore, the defendant’s attorney argued that the evidence obtained pursuant to the search should be suppressed.

A hearing on the motions was conducted on November 18, 2010. The trial court denied the motions to suppress. On December 8, 2010, the defendant entered a Crosby plea of guilty to the charge of attempted possession of a firearm by a convicted felon, reserving his right to appeal the adverse rulings on the motions to suppress. The defendant was ordered to serve seven years at hard labor, with credit for time served, to ran concurrent with a probation or parole violation. The defendant was also ordered to pay a fine of $1,000 plus court costs to be paid through the inmate banking system, or to serve 60 days in lieu of payment of the fine. The defendant now appeals, arguing that the trial court erred in denying the motions to suppress. He claims that the initial stop was improper and that there were no reasonable, articulable grounds for arresting the defendant when he was locked in the patrol ear without probable cause.

| .¡INITIAL STOP

The defendant argues that the officers had no valid basis for the initial stop. He cites the seemingly contradictory testimony from the officers as to when he failed to use a turn signal. According to the defendant, the officers were making a stop for the offense of driving while intoxicated without any particularized reasons to suspect that the defendant had committed that offense. The defendant maintains that the officers made a pretextual investí-gatory stop, not a legitímate traffic stop. This argument is without merit.

Legal Principles

This court reviews the district court’s ruling on a motion to suppress under the manifest error standard in regard to factual determinations, as well as credibility and weight determinations, while applying a de novo review to findings of law. State v. Collins, 44,248 (La.App.2d Cir.5/27/09), 12 So.3d 1069; State v. Freeman, 44,980 (La.App.2d Cir.1/27/10), 38 So.3d 222, writ denied, 2010-0535 (La.10/1/10), 45 So.3d 1094.

La. C. Cr. P. art. 215.1 summarizes the requirements for a valid stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). That statute provides in pertinent part that a law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense. If a police officer observes a traffic infraction, the subsequent stop for that offense is clearly | aIegal. See Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); State v. Freeman, supra; State v. Paggett, 28,843 (La.App.2d Cir.12/11/96), 684 So.2d 1072.

The standard is purely an objective one that does not take into account the subjective beliefs or expectations of the detaining officer. This objective standard is indifferent to the relatively minor nature of a traffic violation. State v. Stoutes, 43,181 (La.App.2d Cir.4/2/08), 980 So.2d 230.

If the police officer has a specific suspicion of criminal activity, he may further detain the individual or the property while he diligently pursues a means of investigation likely to quickly confirm or dispel the particular suspicion. United States v. Shaipe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985); State v. Stowe, 44,815 (La.App.2d Cir.10/28/09), 25 So.3d 945; State v. Freeman, supra.

There is no bright line rule for when a detention lasts too long. Each instance must be assessed in view of the surrounding circumstances. See State v. Arrington, 556 So.2d 263 (La.App. 2d Cir.1990); State v. Stowe, supra; State v. Freeman, supra.

La. R.S. 32:104(B) provides in pertinent part:

Whenever a person intends to make a right or left turn which will take his vehicle from the highway it is then traveling, he shall give a signal of such intention in the manner described hereafter and such signal shall be given continuously during not less than the last one hundred (100) feet traveled by the vehicle before turning.

|fiDiscussion

The defendant argues that the officers’ testimony differed as to when the defendant failed to use his turn signal. According to the defendant, this was merely a pretextual stop to investigate the possibility that the defendant was driving while intoxicated. The record shows that the officers observed the defendant make two turns in rapid succession and the officers agree that the defendant failed to use his turn signal on at least one of the turns. Based on the observation of a traffic infraction, this traffic stop was legal. The officers both observed a violation of the law and acted properly in stopping the defendant for that violation. The stop was not merely pretextual, but was a legitimate traffic stop. The defendant’s argument to the contrary is without merit.

PROBABLE CAUSE TO ARREST AND VALIDITY OF SEARCH

The defendant argues that there were no reasonable, articulable grounds for arresting him when he was locked in the patrol car without probable cause. He claims that his conduct in getting out of his car when he was stopped was not suspicious. The defendant maintains that just because he smelled of marijuana, the officers had no basis to believe that the defendant had used or that he had marijuana in his car. These arguments are without merit.

Legal Principles

The right of every person to be secure in his person, house, papers, and effects against unreasonable searches and seizures is guaranteed by the [7Fourth Amendment to the United States Constitution and Article I, § 5 of the 1974 Louisiana Constitution. It is well settled that a search and seizure conducted without a warrant issued on probable cause is per se unreasonable unless the warrantless search and seizure can be justified by one of the narrowly drawn exceptions to the warrant requirement. State v. O’Neal, 44,067 (La.App.2d Cir.4/8/09), 7 So.3d 182, writ denied, 2009-1243 (La.2/12/10), 27 So.3d 841, cert. denied, — U.S. -, 131 S.Ct. 99, 178 L.Ed.2d 62 (2010); State v. Freeman, supra; State v. Heard, 46,230 (La.App.2d Cir.5/18/11), 70 So.3d 811.

The purpose of limiting warrantless searches to certain recognized exceptions is to preserve the constitutional safeguards provided by the warrant while accommodating the necessity of warrantless searches under special circumstances. State v. Heard, supra. When the constitutionality of a warrantless search or seizure is placed at issue by a motion to suppress the evidence, the state bears the burden of proving that the search and seizure were justified pursuant to one of the exceptions to the warrant requirement. La. C. Cr. P. art. 703(D); State v. O’Neal, supra; State v. Freeman, supra; State v. Heard, supra.

One exception to the warrant requirement is when there is probable cause to search an automobile. The warrantless search of an automobile is not unreasonable if there is probable cause to justify the search, without proving additional exigency, when the automobile is readily mobile |sbecause there is an inherent risk of losing evidence. Maryland v. Dyson, 527 U.S. 465, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999); State v. Freeman, supra.

An officer’s detection of the odor of burnt marijuana emanating from the defendant’s vehicle may provide probable cause for the search of his vehicle. See State v. Johnlouis, 2009-235 (La.App.3d Cir.11/4/09), 22 So.3d 1150, writ denied, 2010-0097 (La.6/25/10), 38 So.3d 336, cert. denied, — U.S. -, 131 S.Ct. 932, 178 L.Ed.2d 775 (2011); State v. Freeman, supra,.

A valid consent search is a well-recognized exception to the warrant requirement, but the burden is upon the state to prove that the consent was given freely and voluntarily. State v. Crews, 28,153 (La.App.2d Cir.5/8/96), 674 So.2d 1082. An oral consent to a search is valid. State v. McGill, 31,202 (La.App.2d Cir.9/23/98), 720 So.2d 720, writ denied, 98-2721 (La.2/5/99), 737 So.2d. 746.

Voluntariness is a question of fact to be determined by the trial judge under the facts and circumstances of each case. These factual determinations are to be given great weight on appellate review. State v. Edwards, 434 So.2d 395 (La.1983); State v. Ossey, 446 So.2d 280 (La.1984), cert. denied 469 U.S. 916, 105 S.Ct. 293, 83 L.Ed.2d 228 (1984); State v. Durr, 28,197 (La.App.2d Cir.6/26/96), 677 So.2d 596.

In the present case, as soon as the defendant got out of his car, of his own accord, Officer Owen noticed the smell of marijuana coming from the ^person of the defendant. This gave Officer Owen probable cause to believe that the defendant had been in recent possession of marijuana and had smoked it, most probably in his car. Officer Owen had probable cause to arrest the defendant for possession of marijuana, to detain him in the police car, and to search the automobile for drugs. However, in addition to these factors, the defendant gave valid consent to search his vehicle. The defendant claims that he was harassed into giving consent to search. However, the record shows that after being told that a K-9 unit would be summoned to sniff the car, the defendant consented to a search. The record shows that the consent was given freely and voluntarily. The search resulted in the discovery of six grams of marijuana and the firearm at issue here.

We find that the gun was obtained pursuant to both a valid search incident to arrest and a valid consensual search. The gun was properly discovered and was properly used as evidence of the defendant’s commission of attempted possession of a firearm by a convicted felon. The trial court correctly denied the motions to suppress filed by the defendant’s attorney and by the defendant pro se.

ERROR PATENT

We note that the trial court sentenced the defendant to serve seven years at hard labor, but did not specify that the sentence be served without benefit of probation, parole, or suspension of sentence. The defendant committed the present offense on January 28, 2010, and pled guilty on | mDecember 8, 2010. At the time of the commission of the offense, La. R.S. 14:95.1 provided that the penalty for possession of a firearm or carrying a concealed weapon by a person convicted of certain felonies was imprisonment at hard labor for not less than 10 nor more than 15 years at hard labor without benefit of probation, parole, or suspension of sentence. Regarding the sentence for attempted offenses, La. R.S. 14:27 provides in pertinent part:

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

Therefore, at the time of the commission of the present offense, the maximum sentence for attempted possession of a firearm or carrying a concealed weapon by a person convicted of certain felonies was seven and one-half years, and any sentence imposed was required to be served without benefit of probation, parole, or suspension of sentence.

La. R.S. 15:301.1 states in pertinent part:

A. When a criminal statute requires that all or a portion of a sentence imposed for a violation of that statute be served without benefit of probation, parole, or suspension of sentence, each sentence which is imposed under the provisions of that statute shall be deemed to contain the provisions relating to the service of that sentence without benefit of probation, parole, or suspension of sentence. The failure of a sentencing court to specifically state that all or a portion of the sentence is to be served without benefit of probation, parole, or suspension of sentence shall not in any way affect the statutory requirement that all or a portion of the sentence be served without benefit of probation, parole, or suspension of sentence.

This statute is self-activating and therefore the defendant’s sentence, which was, in fact, imposed without probation or suspension of sentence is also to be served without parole.

CONCLUSION

For the reasons stated above, we affirm the conviction and sentence of the defendant, Jose M. Delvalle, Jr.

AFFIRMED.

      . The bill of information charging the defendant with the current offense lists his surname as "Devalle.” However, on the prior conviction for possession of cocaine, forming the basis of the present charge, the defendant's surname is spelled "Delvalle.” See State v. Delvalle, 41,144 (La.App.2d Cir.6/28/06), 933 So.2d 258. On pro se filings by the defendant in this matter, he spells his surname "Delvalle.” Therefore, in this case we will use the spelling "Delvalle.”

      . We note that La. R.S. 14:95.1(B) was amended by Acts 2010, No. 815, which became effective on August 15, 2010. The statute now reads as follows, in pertinent part:
      B. Whoever is found guilty of violating the provisions of this Section shall be imprisoned at hard labor for not less than ten nor more than twenty years without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars. Notwithstanding the provisions of R.S. 14:27, whoever is found guilty of attempting to violate the provisions of this Section shall be imprisoned at hard labor for not more than seven and one-half years and fined not less than five hundred dollars nor more than two thousand five hundred dollars. [Emphasis supplied.]
      This amendment increased the maximum penalty for the completed offense of possession of a firearm or carrying a concealed weapon by a person convicted of certain felonies and set a specific maximum penalty for the attempted offense, deleting the requirement that the sentence by served without benefit of parole, probation, or suspension of sentence. However, the general rule in Louisiana is that the law in effect at the time of the commission of the offense determines the penalty which the convicted accused must suffer. See State v. Sugasti, 2001-3407 (La.6/21/02), 820 So.2d 518. The amendment to La. R.S. 14:95.1 does not contain any language indicating a legislative intent.to make it retroactive. See and compare State v. Mayeux, 2001-3195 (La.6/21/02), 820 So.2d 526. Therefore, we find that the amendment does not apply in this case.