author: KUHN, J.

text:
    STATE of Louisiana v. Bobby Dewayne KIMBLE.
    No. 2010 KA 1559.
    Court of Appeal of Louisiana, First Circuit.
    March 25, 2011.
    Rehearing Denied April 20, 2011.

      Hillar C. Moore III, District Attorney, Dylan C. Alge, Baton Rouge, LA, for Plaintiff-Appellee State of Louisiana.
    Frank Sloan, Mandeville, LA, for Defendant-Appellant Bobby Dewayne Kimble.
    Before KUHN, PETTIGREW, and HIGGINBOTHAM, JJ.
   KUHN, J.

^Defendant, Bobby Dewayne Kimble, and codefendant, Richard Stewart, were charged by bill of information with second degree kidnapping, a violation of La. R.S. 14:44.1 (count one), aggravated burglary, a violation of La. R.S. 14:60 (count two), and armed robbery, a violation of La. R.S. 14:64 (count three). Defendant pled not guilty to all charges. Prior to trial, the State amended the bill of information to dismiss count one as to defendant only. On April 20, 2007, defendant filed a pro se motion to act as co-counsel. The trial court denied the motion without a hearing. Defendant was tried by a jury and convicted as charged on counts two and three. For his conviction of aggravated burglary, defendant was sentenced to thirty years at hard labor. For his conviction of armed robbery, defendant was sentenced to imprisonment at hard labor for fifty years without benefit of parole, probation, or suspension of sentence. The trial court ordered that the sentences run concurrently. Defendant now appeals urging the following assignments of error by counseled and pro se briefs:

Counseled Assignment of Error
1. The trial court erred in refusing to permit the defendant to represent himself at trial.
| ?Pro Se Assignments of Error
1. Whether the sentences imposed violate the state and federal constitutions, which prohibit the imposition of cruel and unusual punishment, due to their excessiveness.
2. Whether the out-of-court photographic identification procedure was suggestive and, thus, violated the defendant’s due process rights and tainted the in-court identification.

We affirm defendant’s convictions and sentences.

FACTS

On April 17, 2006, Kevin Manns was at his home in the Crillion Apartments in Baton Rouge preparing for his work day. At approximately 8:00 a.m., as Manns was entering the shower, he heard his doorbell ring. Since he believed that it was the water delivery man calling, Manns decided to proceed with his shower with the understanding that the delivery man would simply return later. Moments later, Manns heard a loud noise. He exited the shower, wrapped a towel around himself and went to investigate. Manns observed an unfamiliar black male inside his residence, rummaging through his mail. Manns confronted the individual, asked him what he was doing inside his home and demanded that he leave. The man raised a long screwdriver towards Manns in a threatening manner. A younger black male also approached Manns from behind and placed an object toward his back.

The perpetrators ordered Manns to the front of the apartment where the older perpetrator instructed Manns to lie face down. The older perpetrator stood over Manns, while the younger perpetrator went through the house gathering some of Manns’s personal belongings in a box. Later, when the older perpetrator suggested that they should leave the residence, the younger perpetrator indicated Rthat Manns was going with them. The younger perpetrator forced Manns to carry the box containing his personal belongings out of the residence. As the group walked towards Manns’s vehicle, the younger perpetrator, who was walking directly behind Manns, stated, “Don’t make me shoot you.” He then asked Manns how to unlock the vehicle. Manns told him he would need to go around to the driver’s side of the vehicle to manually unlock the vehicle. As the younger perpetrator went around the vehicle, Manns fled. He ran into the street and flagged down a passerby. Meanwhile, Manns observed the older perpetrator drive away in a silver sports utility vehicle and the younger one in Manns’s vehicle.

Shortly thereafter, Officer Laura Mays, of the Baton Rouge Police Department, arrived at the Crillion Apartments to investigate. After speaking with the victim and other witnesses, Officer Mays contacted dispatch with a description of the vehicles. Approximately thirty minutes later, a gray sports utility vehicle with the same license plate number as the one the perpetrator left Manns’s apartment in was observed on Florida Boulevard. A chase ensued, when the officers attempted to stop the vehicle. The vehicle was eventually stopped, and Stewart was determined to be the driver. Stewart was returned to the scene, where Manns identified him as the younger perpetrator who participated in the burglary and robbery. Manns also identified a gold chain that Stewart was wearing as his personal property. Stewart eventually named defendant as the older individual who accompanied him at Manns’s apartment.

COUNSELED ASSIGNMENT OF ERROR

In his sole counseled assignment of error, defendant contends the trial court erred in summarily denying his request to act as co-counsel without a hearing. He maintains that the trial court was required to conduct a hearing to determine whether he understood the risks associated with self-representation and whether he was competent to act as his own counsel.

A defendant’s right to the assistance of counsel is guaranteed by both our state and federal constitutions. See U.S. Const, amends. VI & XIV; La. Const, art. I, § 13; State v. Brooks, 452 So.2d 149, 155 (La.1984) (on rehearing) (citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)). Louisiana Code of Criminal Procedure article 511 also provides for a defendant’s right to counsel as follows, “The accused in every instance has the right to defend himself and to have the assistance of counsel. His counsel shall have free access to him, in private, at reasonable hours.” The federal constitution further grants an accused the right of self-representation. Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 2527, 45 L.Ed.2d 562 (1975); State v. Penson, 630 So.2d 274, 277 (La.App. 1st Cir.1993). An accused has the right to choose between the right to counsel and the right to self-representation. State v. Bridgewater, 2000-1529, p. 17 (La.1/15/02), 823 So.2d 877, 894, cert. denied, 537 U.S. 1227, 123 S.Ct. 1266, 154 L.Ed.2d 1089 (2003). A defendant who exercises the right of self-representation must knowingly and intelligently waive the right to counsel. State v. Penson, 630 So.2d at 277. When a defendant requests the right to represent himself, his technical legal knowledge is not relevant in determining if he is knowingly exercising the right to defend himself. A trial judge confronted with ah |fiaccused’s unequivocal request to represent himself need determine only if the accused is competent to waive counsel and is “voluntarily exercising his informed free will.” State v. Santos, 99-1897, pp. 2-3 (La.9/15/00), 770 So.2d 319, 321 (per curiam) (quoting Faretta, 422 U.S. at 835, 95 S.Ct. at 2541).

In the instant case, the record reflects that the trial court appointed the Office of the Public Defender to represent defendant at his June 14, 2006 arraignment. Defendant was represented by counsel from the Public Defender’s Office at every court appearance thereafter. On April 20, 2007, defendant filed a pro se motion requesting that he be allowed to act as co-counsel at his trial. In the motion, he asserted, “Under the provision of La. C.Cr.P. Article 511 he is entitled to defend himself and to have the assistance of counsel.” On April 24, 2007, the trial court denied the motion without a hearing. The court noted on the written motion that “[defendant] is represented by counsel.” Defendant did not re-urge the motion to act as co-counsel at any point during the trial.

While a defendant has the right to counsel as well as the right to self-representation, he has no constitutional right to be both represented and representative. State v. Bodley, 394 So.2d 584, 593 (La. 1981); see also McKaskle v. Wiggins, 465 U.S. 168, 183, 104 S.Ct. 944, 953, 79 L.Ed.2d 122 (1984) (“Faretta does not require a trial judge to permit ‘hybrid’ representation of the type [petitioner] was actually allowed”). Under a “hybrid” form of representation, the defendant and counsel act as co-counsel with each speaking for the defense during different phases of the trial. See Wayne R. LaFave, Criminal Procedure § 11.5(g), p. 765 (3d ed.2007).

17Although a trial court is not prohibited from using hybrid arrangements, such arrangements present inherent difficulties. If the defendant has not waived the right to counsel and the attorney provides only partial representation, the issue of whether the accused was afforded adequate legal representation might be raised. If the accused has adequately waived his right to counsel, but counsel actively participates in the defense, questions of violation of the accused’s right to self-representation might result. See State v. Dupre, 500 So.2d 873, 878 (La.App. 1st Cir.1986), wiit denied, 505 So.2d 55 (La.1987). These hybrid representation issues arise when the arrangement allowed by the trial court falls somewhere between counsel providing the entire legal defense and the defendant acting as his only legal representative.

After our review of the record in this case, we find no error in the trial court’s denial of defendant’s motion to act as co-counsel in this case. Defendant’s request to represent himself was not a clear and unequivocal assertion of the right to self-representation. Defendant did not unequivocally indicate to the trial court that he wanted to represent himself in this prosecution without the assistance of any counsel. Instead, he requested to be allowed to act as co-counsel, in conjunction ■with his court-appointed attorney. As previously noted, an accused has the right to choose between the right to counsel and the right to self-representation. Furthermore, defendant has not alleged, and we have not found, any way in which his defense was prejudiced because he did not participate as co-counsel. Therefore, the trial court did not err in denying defendant the right to act as co-counsel under the facts and circumstances of this case.

This assignment of error lacks merit.

IJPRO SE ASSIGNMENT OF ERROR 1

EXCESSIVE SENTENCES

In his first pro se assignment of error, defendant contends the trial court erred in imposing unconstitutionally excessive sentences. He asserts the maximum sentence for aggravated burglary and the fifty-year sentence for armed robbery constitute needless infliction of pain and suffering under the facts and circumstances of this case.

Article I, Section 20 of the Louisiana Constitution prohibits the imposition of excessive punishment. A sentence is unconstitutionally excessive if it is grossly disproportionate to the severity of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276, 1280 (La.1993). 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. Hogan, 480 So.2d 288, 291 (La.1985). Although a sentence may be within statutory limits, it may violate a defendant’s constitutional right against excessive punishment and is subject to appellate review. State v. Sepulvado, 367 So.2d 762, 767 (La.1979); State v. Lanieu, 98-1260, p. 12 (La.App. 1st Cir.4/1/99), 734 So.2d 89, 97, writ denied, 99-1259 (La.10/8/99), 750 So.2d 962. However, a trial court is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by it should not be set aside as excessive in the absence of manifest abuse of discretion. State v. Lobato, 603 So.2d 739, 751 (La. 1992). Maximum sentences are generally reserved for the most serious violations of the relevant statute and for the |9worst type of offenders. State v. Manee, 2000-1903, p. 4 (La.App. 1st Cir.5/11/01), 797 So.2d 718, 721.

A trial court’s reasons for imposing sentence, as required by La.C.Cr.P. art. 894.1, are an important aid to this court when reviewing a sentence alleged to be excessive. State v. McKnight, 98-1790, p. 25 (La.App. 1st Cir.6/25/99), 739 So.2d 343, 359, writ denied, 99-2226 (La.2/25/00), 755 So.2d 247. Remand for full compliance with Article 894.1 is unnecessary when a sufficient factual basis for the sentence is shown. State v. Landos, 419 So.2d 475, 478 (La.1982).

As previously noted, defendant was convicted of aggravated burglary and armed robbery. A conviction of aggravated burglary carries a potential penalty of imprisonment at hard labor for not less than one year nor more than thirty years. La. R.S. 14:60. Defendant received the maximum sentence for this offense. The penalty for armed robbery is imprisonment at hard labor, without benefit of probation, parole, or suspension of sentence, for not less than ten and not more than ninety-nine years. La. R.S. 14:64(B). Defendant was sentenced to imprisonment at hard labor for fifty years without benefit of probation, parole, or suspension of sentence.

Defendant asserts he should have received lesser sentences in this case. While he seems to concede that a term of imprisonment is warranted, defendant suggests that his age, his lack of any juvenile criminal history, and his “minor felony convictions” as an adult (which he claims do not include any crimes of violence) do not support the imposition of the lengthy sentences.

At the sentencing hearing, prior to imposing the sentence, the trial court indicated that it received and reviewed a presen-tence investigation report (PSI) 110containing information on defendant’s personal and criminal history. The trial court noted that defendant was fifty-one years old and classified as a fifth felony offender. The court then reviewed the details of defendant’s extensive criminal history, which included convictions dating back to 1980 and numerous unsatisfactory probation and/or parole periods. At the time of the commission of the instant offenses, defendant was on parole supervision. Defendant was arrested on January 23, 2003, on charges of simple burglary, battery of a police officer, and resisting an officer. On May 12, 2003, defendant was convicted of simple burglary and sentenced to imprisonment at hard labor for six years. Defendant was released on parole supervision on January 24, 2006. Less than three months after his release from prison, defendant was arrested for committing the instant offenses of aggravated burglary and armed robbery. Considering defendant’s lengthy criminal history and his unsatisfactory performance while on probation and/or parole, the PSI concluded defendant is a “career criminal” and recommended imposition of sentences of imprisonment at the upper end of the maximum penalty on each conviction. The PSI further recommended that the sentences be ordered to be served consecutively.

After reviewing defendant’s entire criminal history during the sentencing hearing, the trial court concluded defendant was in need of correctional treatment in a custodial environment. The court stated, “Prisons are made for people who can’t follow the law like this.” Despite the PSI’s recommendation of maximum or near-maximum, consecutive sentences, the court imposed a mid-range sentence on the armed robbery conviction and ordered that the sentences run concurrently.

|nWe have reviewed the sentences imposed by the trial court and do not find either sentence to be excessive under the facts and circumstances of this case. Considering the circumstances of the offenses and defendant’s extensive criminal record, we find no abuse of discretion by the trial court in imposing the sentences upon defendant. The thirty-year maximum sentence for aggravated burglary and the mid-range fifty-year sentence for armed robbery are clearly supported by the record. The sentences are neither grossly disproportionate to the severity of the offenses, nor so disproportionate as to shock our sense of justice. This defendant, who has repeatedly shown absolutely no regard for the law and has committed similar offenses, is the worst type of criminal offender and poses an unusual risk to public safety. Therefore, considering the violent nature of these offenses, coupled with defendant’s propensity to continue criminal activity and his failure to respond to past rehabilitation efforts, we conclude that the sentences imposed herein, including the maximum aggravated burglary sentence, are not unconstitutionally excessive. This assignment of error lacks merit.

PRO SE ASSIGNMENT OF ERROR 2

DENIAL OF MOTION TO SUPPRESS IDENTIFICATION

In this assignment of error, defendant contends the trial court erred in denying his motion to suppress the victim’s pretrial identification. Defendant asserts that because he was obviously older than the other individuals contained in the photographic array, the identification procedure was unduly suggestive and resulted in a substantial likelihood of irreparable misidentification.

When a trial court denies a motion to suppress, factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial 112court’s discretion, i.e., unless such ruling is not supported by the evidence. See State v. Green, 94-0887, p. 11 (La.5/22/95), 655 So.2d 272, 281. ■ However, a trial court’s legal findings are subject to a de novo standard of review. See State v. Hunt, 2009-1589, p. 6 (La.12/1/09), 25 So.3d 746, 751.

A defendant attempting to suppress an identification must prove both that the identification itself was suggestive and that there was a likelihood of misiden-tifieation as a result of the identification procedure. State v. Prudholm, 446 So.2d 729, 738 (La.1984). See La.C.Cr.P. art. 703(D). An identification procedure is unduly suggestive if, during the procedure, a witness’s attention is focused on the defendant. State v. Hawkins, 572 So.2d 108, 112 (La.App. 1st Cir.1990). For example, distinguishing marks on the photographs may single out defendant. State v. Guillot, 353 So.2d 1005, 1008 (La.1977), unit denied, 367 So.2d 864 (La.1979). However, even should the identification be considered suggestive, this alone does not indicate a violation of the defendant’s right to due process. It is the likelihood of misidentification that violates due process, not merely the suggestive identification procedure. See State v. Jones, 94-1098, p. 6 (La.App. 1st Cir.6/23/95), 658 So.2d 307, 311, writ denied, 95-2280 (La.1/12/96), 666 So.2d 320. A trial court’s determination of the admissibility of identification evidence is entitled to great weight and will not be disturbed on appeal in the absence of an abuse of discretion. State v. Reed, 97-0812, p. 5 (La.App. 1st Cir.4/8/98), 712 So.2d 572, 576, writ denied, 98-1266 (La.11/25/98), 729 So.2d 572.

In determining whether a photographic identification was reliable, the factors to be considered are: (1) the opportunity of the witness to view the criminal | isat the moment of the crime; (2) the degree of attention of the witness; (3) the accuracy of the prior description of the criminal; (4) the level of certainty of the identification; and (5) the elapsed time between the crime and the confrontation. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977).

In this case, we have thoroughly reviewed the record to evaluate the identification in dispute. The record evidence does not indicate that the photographic identification procedure was unduly suggestive. At the hearing on the motion to suppress, Detective Larry Walters, Jr. of the Baton Rouge Police Department testified that after Stewart was apprehended, he was returned to the scene where he was positively identified by the victim as a participant in the offenses. Stewart identified defendant, by name, as the older individual who assisted him in burglarizing Manns’s residence and robbing him. Upon receiving this information, Detective Walters was able to locate his previous booking photograph. Based upon the physical characteristics shown in defendant’s photograph, Detective Walters then requested, and the computer generated, a six-person photographic line-up of individuals with similar features. According to Detective Walters, the computer also arranged the photographs in random order. Once the line-up was prepared, it was shown to Stewart, who identified the defendant’s photograph as that of the individual he identified as his accomplice. A separate copy of the line-up was then presented to Manns. Manns quickly identified defendant as the older perpetrator.

We have reviewed the photographic lineup and find the photographs used depict individuals with sufficient resemblance of characteristics (e.g., hair length, |14facial hair, skin color and complexion, build and facial features such as chin, nose, etc.) to reasonably test identification. Thus, there does not appear to be any error in the trial court’s ruling and, therefore, we find no merit to this assignment of error.

Even assuming the photo line-up identification were suggestive, there was not a substantial likelihood of irreparable misidentification. At the trial, Manns testified that his identification of defendant was based upon his recollection of the events that transpired at his residence. Manns’s testimony confirms that during the commission of the offenses, the victim had ample opportunity to view the older perpetrator’s face. There was no indication that the older perpetrator wore a mask or otherwise attempted to conceal his identity. Manns indicated that the lighting inside the apartment was bright, and he intentionally paid close attention to the physical characteristic of the perpetrators. Most importantly, codefendant Stewart identified defendant by name as his accomplice. Therefore, a review of the overall circumstances indicates the identification in this case was reliable; therefore, the trial court correctly denied the motion to suppress.

DECREE

For these reasons, we affirm the convictions and sentences of defendant, Bobby Dewayne Kimble.

CONVICTIONS AND SENTENCES AFFIRMED.

      . Stewart was also charged with aggravated obstruction of a highway of commerce, a violation of La. R.S. 14:96 (count four).

      . Defendant filed a motion to sever his case from that of codefendant Stewart. On January 13, 2009, the trial court granted the motion. Defendant was tried separately. Information contained in defendant’s PSI report reflects that Stewart pled guilty to aggravated obstruction of a highway, second degree kidnapping, aggravated burglary, and armed robbery. He was sentenced to fifteen years for aggravated obstruction of a highway, seventeen years (two years without benefit of parole, probation, or suspension of sentence) for second degree kidnapping, seventeen years for aggravated burglary, and seventeen years, without benefit of probation, parole or suspension of sentence, for armed robbery.


source: Caselaw Access Project

author: McClendon, j.

license: Public Domain

text:
    STATE of Louisiana v. Douglas K. CRADDOCK.
    No. 2010 KA 1473.
    Court of Appeal of Louisiana, First Circuit.
    March 25, 2011.

      Ricky L. Babin, District Attorney, Don-aldsonville, LA, Donald D. Candell, Assistant District Attorney, Gonzales, LA, for Appellee State of Louisiana.
    Mary E. Roper, Baton Rouge, LA, for Defendant/Appellant Douglas K. Crad-dock.
    Before WHIPPLE, McDONALD, and McClendon, jj.
   McClendon, j.

| defendant, Douglas K. Craddock, was charged by bill of information with one count of armed robbery, a violation of LSA-R.S. 14:64 A, and pled not guilty. Following a jury trial, he was found guilty as charged. Defendant was sentenced to twenty-five years at hard labor without benefit of probation, parole, or suspension of sentence. He moved for reconsideration of sentence, but the motion was denied. Defendant now appeals, contending in counseled and pro se assignments that the evidence was insufficient, the sentence was excessive, and trial defense counsel had a conflict of interest. For the following reasons, we affirm the conviction and sentence.

FACTS

On April 29, 2008, David Martinez was employed as a pharmacist by Galvez Pharmacy in Prairieville, Louisiana. At approximately 5:30 p.m., defendant entered the business and asked to speak to Martinez. When Martinez approached defendant, defendant pointed a gun close to Martinez’s head and told him he was going to “blow [Martinez’s] f-.head off and he was going to kill somebody” if Martinez did not do exactly what defendant told him to do. Martinez believed the gun was real.

Defendant told the other workers in the store, all of whom were female, to lie down on the floor and be quiet, and he would not hurt anyone. Defendant threatened to hurt someone unless he got some Adderall, and Martinez filled a grocery bag with all of the Adderall in the store. Defendant then ordered Martinez to get another bag and fill it with all of the Oxycontin and Oxycodone in the store. One of the female workers got up off the floor to get a bag and defendant “freaked out.” Defendant put his gun to the worker’s head, called her a b-, and told her she better do “damn well what he said or she was dead.” Martinez became concerned that defendant would hurt the worker, and told everyone to remain calm and do what defendant told them to do. After Martinez was unable to find a larger grocery bag, defendant grabbed a bag from the garbage can and emptied the full bag of drugs into it and ordered Martinez to |sput the Oxycontin into the bag. Defendant also took the cash from the cash register. Defendant then told Martinez to give him the videotape and disconnect the phones. Martinez told defendant that the videotape was in the back of the store, and defendant marched Martinez to the back of the store, holding the gun to his back.

However, before defendant and Martinez reached the back of the store, a customer entered the store with a prescription to be filled. Martinez turned to help the customer, and defendant concealed his gun under his shirt. When another customer entered the store, defendant fled with the bag. Martinez testified he was scared for his own safety and the safety of the other workers during the robbery and feared that defendant was making everyone get on the floor so that he could execute them by shooting them in the back of the head.

Defendant was apprehended following a car chase in which he drove in excess of seventy miles-per-hour on Louisiana Highway 44 and ran at least one stop sign. His vehicle contained sixty-four pill bottles from Galvez Pharmacy containing pills with a value of $15,982.85, $815.00 in cash, a white garbage bag containing three other bags, a Wal-Mart bag with a receipt dated April 29, 2008, for the purchase of a BB pistol, and a container for the pistol, with a pack of BBs still in it. After being advised of his Miranda rights, defendant stated that he was a junkie, that he was not trying to hurt anyone, and that he purchased the BB gun from Wal-Mart prior to the robbery.

At trial, the defense conceded that on April 29, 2008, defendant used a toy gun to intimidate the workers in Galvez Pharmacy to give him drugs and money. Defendant claimed he never intended to harm anyone. He claimed he came from a good family, joined the United States Navy at the age of seventeen, and served in Desert Storm. He testified that he worked offshore for two years and then obtained an engineer’s license to work on a seagoing tug and an anchor-handling boat. He claimed that in 1998, he was the victim of an armed Lrobbery, was shot during the robbery and, thereafter, became addicted to painkillers.

SUFFICIENCY OF THE EVIDENCE

In pro se assignment of error number 2, defendant argues that the state failed to establish that he used a dangerous weapon during the robbery.

The standard of review for sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the state proved the essential elements of the crime and defendant’s identity as the perpetrator of that crime beyond a reasonable doubt. In conducting this review, we also must be expressly mindful of Louisiana’s circumstantial evidence test, which states in part, “assuming every fact to be proved that the evidence tends to prove, in order to convict,” every reasonable hypothesis of innocence is excluded. LSA-R.S. 15:438; State v. Wright, 98-0601, p. 2 (La.App. 1 Cir. 2/19/99), 730 So.2d 485, 486, writs denied, 99-0802 (La.10/29/99), 748 So.2d 1157, and 00-0895 (La.11/17/00), 773 So.2d 732.

When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. Wright, 98-0601 at p. 3, 730 So.2d at 487.

Armed robbery is the taking of anything of value belonging to another 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. LSA-R.S. 14:64 A. “Dangerous weapon” includes “any ... substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm.” LSA-R.S. 14:2 A(3). A person who commits a robbery by pointing an unloaded Rand unworkable pistol at the victim can be adjudged guilty of armed robbery. State v. Levi 259 La. 591, 598-99, 250 So.2d 751, 754 (1971). Additionally, a toy gun can be considered a dangerous weapon if the jury determines the interaction between the offender and the victim created a highly charged atmosphere whereby there was danger of serious bodily harm resulting from the victim’s fear for his life. State v. Woods, 97-0800, p. 11 (La.App. 1 Cir. 6/29/98), 713 So.2d 1231, 1239, writ denied. 98-3041 (La.4/1/99), 741 So.2d 1281.

After a thorough review of the record, we are convinced that any rational trier of fact, viewing the evidence presented in this case in the light most favorable to the state, could find that the evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of armed robbery and defendant’s identity as a perpetrator of that offense against the victim. The testimony of Martinez established that defendant’s interaction with him created a highly charged atmosphere whereby there was danger of serious bodily harm resulting from Martinez’s fear for his life. The verdict rendered against defendant indicates that the jury accepted this testimony. This court will not assess the credibility of witnesses or reweigh the evidence to overturn a fact finder’s determination of guilt. The testimony of the victim alone is sufficient to prove the elements of the offense. The trier of fact may accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Lofton, 96-1429, p. 5 (La. App. 1 Cir. 3/27/97), 691 So.2d 1365, 1368, writ denied, 97-1124 (La.10/17/97), 701 So.2d 1331. Further, in reviewing the evidence, we cannot say that the jury’s determination was irrational under the facts and circumstances presented to them. See State v. Ordodi, 06-0207, p. 14 (La.11/29/06), 946 So.2d 654, 662. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby | ^overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. State v. Calloway, 07-2306, pp. 1-2 (La.1/21/09), 1 So.3d 417, 418 (per curiam).

This assignment of error is without merit.

EXCESSIVE SENTENCE

In counseled assignment of error number 1, defendant argues that the sentence imposed was excessive because he was a first-felony offender, had a severe addiction to prescription drugs, and robbed a pharmacy with an unloaded BB gun in order to obtain painkillers. In pro se assignment of error number 1, defendant argues that the trial court neither gave reasons to justify the “excessive sentence” imposed, nor considered mitigating factors, including defendant’s employment history and family ties. In counseled assignment of error number 2, defendant argues that the trial court abused its discretion in denying the motion to reconsider sentence because the sentence was excessive.

The Louisiana Code of Criminal Procedure sets forth items which must be considered by the trial court before imposing sentence. LSA-C.Cr.P. art. 894.1. The trial court need not recite the entire checklist of Article 894.1, but the record must reflect that it adequately considered the criteria. In light of the criteria expressed by Article 894.1, a review for individual excessiveness should consider the circumstances of the crime and the trial court’s stated reasons and factual basis for its sentencing decision. State v. Hurst, 99-2868, p. 10 (La.App. 1 Cir. 10/3/00), 797 So.2d 75, 83, writ denied. 00-3053 (La.10/5/01), 798 So.2d 962. Remand for full compliance with Article 894.1 is unnecessary when a sufficient factual basis for the sentence is shown. State v. Harper, 07-0299, p. 15 (La.App. 1 Cir. 9/5/07), 970 So.2d 592, 602, writ denied, 07-1921 (La.2/15/08), 976 So.2d 173.

Louisiana Constitution Article I, Section 20 prohibits the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant’s constitutional right against excessive punishment and is subject to appellate review. Generally, a sentence is considered excessive if it |7is grossly disproportionate to the severity of the crime or is nothing more than the needless imposition of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm to society, it is so disproportionate as to shock one’s sense of justice. A trial judge is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed should not be set aside as excessive in the absence of manifest abuse of discretion. Hurst, 99-2868 at pp. 10-11, 797 So.2d at 83.

Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than ten years and for not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence. LSA-R.S. 14:64 B. In this matter, defendant was sentenced to twenty-five years at hard labor without benefit of probation, parole, or suspension of sentence.

Defendant testified at the sentencing hearing. He apologized to all of the victims and was aware that he had scared a lot of people. He claimed the robbery had been committed by a person with a very serious and severe addiction to drugs. He reminded the court he had been the victim of an armed robbery in 1998, had been shot during the robbery, and had become addicted to prescription pain medication. He testified that in the time he had been incarcerated, he had not been written up, he had attended church, he had signed up with alcoholics anonymous and narcotics anonymous, and he had continuously worked toward self-improvement. He stated he was not a bad person, but a good person who had made a terrible mistake.

The trial court noted that defendant was a thirty-eight year old male, officially classified as a first-felony offender, who had been convicted of armed robbery. The court stated a pre-sentence investigation report (PSI) had been ordered and made the report a part of the proceedings by reference. The court noted the arrest report of Detective Teddy Gonzales that indicated that following a report of a robbery at gunpoint at Galvez Pharmacy, defendant fled from the police at a high rate of speed. Defendant was eventually apprehended, but | «refused to move his hands from under his body and a Tazer had to be used on him. The pills and cash taken from Galvez Pharmacy were recovered from defendant’s vehicle, along with a BB gun.

The court noted that Ascension Parish Sheriffs Office Chief Bacala opined that defendant should receive the maximum sentence, and Assistant District Attorney Larry Buquoi recommended that defendant should receive the maximum sentence. The PSI recommended a sentence of 15 to 25 years at hard labor for defendant. The court stated, after consideration of the sentencing guidelines of LSA-C.Cr.P. art. 894.1, that it found the case to be a typical case, and that it would sentence defendant accordingly.

A thorough review of the record reveals that the trial court adequately considered the criteria of Article 894.1 and did not manifestly abuse its discretion in imposing sentence. See LSA-C.Cr.P. art. 894.1 A(3), B(5), B(10), B(ll), B(14), B(19), B(21). Additionally, the sentence imposed was not grossly disproportionate to the severity of the offense and thus, was not unconstitutionally excessive. See State v. Sterling, 453 So.2d 625, 630-31 (LaApp. 1 Cir.1984).

These assignments of error are without merit.

CONFLICT OF INTEREST

In pro se assignment of error number 3, defendant contends that his trial counsel’s prior service as an assistant district attorney at the time the charge against him was filed created a conflict of interest that adversely affected counsel’s performance and the trial court failed to sufficiently inquire into the conflict.

The customary remedy for an alleged conflict of interest is disqualification of the attorney or firm with the conflict. In determining whether or not a conflict exists, courts often look to the Rules of Professional Conduct. Furthermore, the Louisiana Supreme Court has determined that the ethical rules which regulate attorneys’ law practices have been recognized as having the force and effect of substantive law. The burden of proving disqualification of an attorney or other officer of the court rests on the party making the challenge. Walker v. State, |3Dept. of Tramp. and Dev., 01-2078, 01-2079, p. 8 (La.5/14/02), 817 So.2d 57, 59-60.

Louisiana State Bar Articles of Incorporation, Art. XVI, Rules of Professional Conduct, Rule 1.9, provides:

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client
(1) whose interests are materially adverse to that person; and
(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing.
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

Additionally, State Bar Articles of Incorporation, Art. XVI, Rules of Professional Conduct, Rule 1.11 provides, in pertinent part:

(a) Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or employee of the government:
(1) is subject to Rule 1.9(c); and
(2) shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation.
(e) As used in this Rule, the term “matter” includes:
lm(l) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties; and
(2) any other matter covered by the conflict of interest rules of the appropriate government agency.

In the instant case, during voir dire, defense counsel Crawford advised the court that defendant had been given legal advice by “Mr. Francis” that it was improper for Crawford to defend him because at the time of defendant’s arrest, Crawford was a member of the district attorney’s staff. Crawford stated that he worked as an assistant district attorney in St. James Parish in April of 2008. The state indicated it had asked Crawford if he “knew” the instant case prior to being appointed to the case, and Crawford had stated he “never heard the case, never knew anything about the case.” Crawford also informed the court that he had met with defendant in regard to the case the previous night until after 11:00 p.m. and had seen him many times over the previous several weeks in preparation for trial. Crawford indicated that defendant’s father had rejected a plea offer from the state. Crawford also stated that he had spoken to defendant’s grandmother and a Baton Rouge attorney concerning the plea offer in the case, but they had advised him that defendant rejected the offer. Crawford advised the court he had sleepless nights preparing for the case and had given defendant his full attention. He indicated he took his professional responsibility very seriously and there was no ineffective assistance of counsel in the case. The court questioned how defendant could be prejudiced if Crawford had nothing to do with the case from the time of the arrest, and noted, if anything, Crawford’s prior service as an assistant district attorney would appear to be advantageous to defendant.

A thorough review of the record shows that defendant failed to carry his burden of proving Crawford violated either Rule 1.9 or Rule 1.11 of the Rules of Professional Conduct. Defendant presented no evidence to counter Crawford’s assertion that during his employment as an assistant district attorney, he had no ^knowledge of the case against defendant. There is no proof in the record to the contrary. Thus, there is no evidence to support a conclusion that Crawford should be disqualified. See Walker, 01-2078, 01-2079 at p. 5, 817 So.2d at 61.

This assignment of error is without merit.

CONVICTION AND SENTENCE AFFIRMED.

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

      . The Twenty-third Judicial District consists of the parishes of Ascension, Assumption, and St. James.


author: PARRO, J.

text:
    Gayle Rinaldi SPICER v. Charles Edward SPICER.
    No. 2010 CA 1577.
    Court of Appeal of Louisiana, First Circuit.
    March 25, 2011.

      Donna Wright Lee, Lee & Walsh, Baton Rouge, LA, for Appellant Gayle Rinaldi Spicer.
    Christopher T. Cascio, Baton Rouge, LA, for Appellee Charles Edward Spicer.
    Before PARRO, GUIDRY, and HUGHES, JJ.
   PARRO, J.

12Gayle Rinaldi Spicer appeals a judgment in favor of her former husband, Charles Edward Spicer, which vacated, and decreed unenforceable, the registration of an order rendered by the Circuit Court of Cook County, Illinois, which order had modified the child support provisions of a previous judgment of a Louisiana court. For the following reasons, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Gayle Rinaldi Spicer (hereinafter referred to by her current surname, Frey) and Charles Edward Spicer were divorced in Louisiana in June 2000. The couple had three children, and a 1998 judgment of custody and child support was rendered by the district court in the divorce proceedings in Ascension Parish, the parties’ matrimonial domicile. In 2008, a modified child support order was rendered in Ascension Parish to account for two of the children having attained the age of majority, among other issues. Frey, having moved to Chicago, Illinois, with the couple’s children in 2005, filed a “Petition to Enroll Foreign Judgment” with the Circuit Court of Cook County, Illinois, on May 27, 2009, requesting that the judgment of divorce and the 2008 modified child support order be made judgments of the Illinois court. Subsequently, in July 2009, Frey filed a number of pleadings in the Illinois court seeking an increase in child support, non-minor child support, and contributions to college expenses for the children. Spi-cer, who maintained his domicile in Ascension Parish at all times since the couple’s divorce, filed responses to the pleadings and also filed into the Illinois record the community property agreement executed by the couple prior to their divorce. A hearing was held in the Circuit Court of Cook County, Illinois, on November 30, 2009, and an order was entered on January 14, 2010, granting an increase in child support, non-minor support, and contributions to college expenses. Spicer filed a petition with the Illinois Appellate Court for leave to appeal the Circuit Court of Cook County decision, which was denied on March 18, 2010. Spicer’s subsequent motion for reconsideration was also denied on May 5, 2010.

IsFrey filed a certified copy of the Circuit Court of Cook County order into the Ascension Parish divorce suit record. Thereafter, while the petition for appeal was pending in Illinois, Spicer filed a “Petition for Declaratory Judgment” in the divorce suit record in Ascension Parish, seeking to have the Illinois judgment declared an absolute nullity and without force and effect due to lack of personal and subject matter jurisdiction. An ex parte judgment in favor of Spicer was signed on February 25, 2010. However, Frey was not served with the petition until March 25, 2010. Thereafter, Frey filed a motion to vacate the judgment, which was granted on May 18, 2010, after oral argument. A hearing was held on the “Petition for Declaratory Judgment” on May 28, 2010, and a judgment in favor of Spicer was signed on June 4, 2010.

In its reasons for judgment, the trial court explained that the parties had not met the requirements to divest the Louisiana court from continuing, exclusive jurisdiction over the matter. Additionally, the court found that the Illinois court lacked personal jurisdiction over Spicer and, as such, vacated, and decreed unenforceable, the registration of the Illinois support order in Louisiana.

Frey timely appealed the judgment. The issue on appeal is whether the district court erred in granting Spicer’s petition for declaratory judgment and vacating the registration of the Illinois support order, which modified a support order originally issued in Louisiana.

DECLARATORY JUDGMENT

The declaratory judgment articles of the Louisiana Code of Civil Procedure grant courts the authority to declare rights, status, and other legal relations, whether or not further relief is or could be claimed. LSA-C.C.P. art. 1871. The purpose of these articles is to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations, and they are to be liberally construed and administered. LSA-C.C.P. art. 1881. A person is entitled to relief by declaratory judgment when his rights are uncertain or disputed in an immediate and genuine situation, and the declaratory judgment will remove the uncertainty or terminate the hdispute. Williams v. City of Baton Rouge, 02-0339 (La.App. 1st Cir.2/14/03), 848 So.2d 9,13.

Frey contends that the procedure initiated by Spicer for a declaratory judgment was premature, because the mere filing of a foreign judgment in the suit record, without any attendant or subsequent petition by her for relief, does not produce an “uncertainty” between the parties. We disagree. Obviously, the recor-dation in Ascension Parish of the Illinois judgment, which ordered Spicer to pay increased child support, non-minor support, and contributions to college expenses, was sufficient to create “uncertainty” about Spicer’s obligations to his children in an immediate and genuine situation. See Williams, 848 So.2d at 13. Certainly, a declaratory judgment as to the validity of the Illinois judgment would remove that uncertainty, either favorably or unfavorably. Moreover, the determination of whether the Illinois judgment could be enforced in Louisiana against a person domiciled in Louisiana was a question of law, and any objection to the alleged improper use of summary proceeding was waived by Frey when she failed to timely file a dilatory exception urging the objection. See LSA-C.C.P. art. 926(B). Thus, we find no merit in Frey’s challenge to the procedure followed in this case.

UNIFORM INTERSTATE FAMILY SUPPORT ACT

The general purpose of the Uniform Interstate Family Support Act (UIF-SA), embodied in the Louisiana Children’s Code articles 1301.1, et seq., was to make uniform the law with respect to support orders and related matters among states enacting it. The UIFSA was adopted by the Louisiana Legislature under a Congressional mandate that required its adoption in all states in order to remain eligible for federal funding of child support enforcement. See Jurado v. Brashear, 00-1306 (La.3/19/01), 782 So.2d 575, 578 n. 4. The primary purpose of the UIFSA is to eliminate multiple and inconsistent support orders by establishing the principle of having only one support order in effect at a time. Jurado, 782 So.2d at 578. This purpose is accomplished |fithrough the concept of “continuing, exclusive jurisdiction,” under which the state that issues a support order retains exclusive jurisdiction over the order, unless certain conditions are met to provide a basis for jurisdiction in another state. Id. Illinois has likewise adopted the UIFSA in Chapter 750, Act 22 of the Illinois Compiled Statutes and, therefore, Illinois recognizes the concept of continuing, exclusive jurisdiction.

Subject matter jurisdiction with regard to the issue of child support is governed by the UIFSA. See LSA-Ch.C. arts. 1301.1, et seq. See also Bordelon v. Dehnert, 99-2625 (La.App. 1st Cir.9/22/00), 770 So.2d 433, 436. Under the general purpose of the UIFSA, only one state may have continuing, exclusive jurisdiction over a particular support order. Jurado, 799 So.2d at 782-83. Children’s Code article 1302.5, the Louisiana rule on continuing, exclusive jurisdiction over support orders, provides, in pertinent part:

A. A tribunal of this state issuing a support order consistent with the laws of this state has continuing, exclusive jurisdiction over a child support order as follows:
(1) As long as this state remains the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued.
(2) Until all of the parties who are individuals have filed written consent with the tribunal of this state for a tribunal of another state to modify the order and assume continuing, exclusive jurisdiction.
B. A tribunal of this state issuing a child support order consistent with the law of this state may not exercise its continuing jurisdiction to modify the order if the order has been modified by a tribunal of another state pursuant to this Chapter or a law substantially similar to this Chapter.

Children’s Code article 1306.11, which governs the modification of child support orders of other states, contains similar requirements that must be met in order to divest the issuing state of continuing, exclusive jurisdiction, particularly the requirement that no involved party may be a resident of the issuing state or that written consent of all the parties must have been filed in the issuing tribunal. Illinois has enacted a similar version of this modification provision. See 750 ILCS 22/611.

IfiThe resolution of the issues presented in this case centers on the concept of continuing, exclusive jurisdiction under the UIFSA. Subject matter jurisdiction over this child support order was established in Louisiana in 1998 when the trial court in Ascension Parish adjudicated the support order. The subsequent modification of the support order in the same court in 2008 reaffirmed Louisiana’s continuing, exclusive jurisdiction under the UIFSA.

In order for Frey to obtain a valid modification in Illinois of a child support order over which Louisiana has continuing, exclusive jurisdiction, she would have to comply with the UIFSA provisions governing modification of support orders of other states. See LSA-Ch.C. art. 1306.11 and 750 ILCS 22/611. Under the facts of this case, all of the parties who are individuals must have filed a written consent in the issuing tribunal in Louisiana in order for an Illinois court to divest a tribunal of this state of continuing, exclusive jurisdiction, to assume continuing, exclusive jurisdiction over the child support order, and to modify the Louisiana support order. See LSA-Ch.C. art. 1306.11(A)(2); 750 ILCS 22/611(a)(2). Thus, to divest the Louisiana tribunal of continuing, exclusive jurisdiction, both Spicer and Frey would have had to have file a written consent with the issuing court in Ascension Parish. Neither party filed the required written consent. Accordingly, the issuing court in Ascension Parish maintained the continuing, exclusive jurisdiction over this child support order, and there was no basis for subject matter jurisdiction in Illinois.

Frey contends that Spicer submitted himself to the personal jurisdiction of the Illinois tribunal in Cook County, Illinois by making a personal appearance before the court and failing to object to its jurisdiction. We agree that Spicer’s general appearance established personal jurisdiction of the Illinois court over him. However, the jurisdiction over the subject matter of a proceeding cannot be conferred by the appearance of the parties alone, and a judgment rendered by a court which has no jurisdiction over the subject matter of the action or proceeding is void. LSA-C.C.P. art. 3. The Illinois court did not have subject matter jurisdiction over the support order, because Louisiana 17retained continuing, exclusive jurisdiction over the child support order.

For these reasons, we conclude that the Illinois court lacked subject matter jurisdiction to modify the child support order, because Louisiana retained the continuing, exclusive jurisdiction over the child support order under the UIFSA. As such, the order rendered by the Illinois court modifying the Louisiana child support order is unenforceable in this state.

CONCLUSION

The judgment of the district court, granting Spicer’s petition for declaratory judgment, decreeing that the registration of the Illinois order is vacated and unenforceable in this state, and decreeing that Spicer’s child support obligation is terminated because all of his children have attained the age of majority, is affirmed. All costs of this appeal are assessed against Gayle Frey.

AFFIRMED.

GUIDRY, J., concurs.

      . We note also that whether the original hearing resulting in the ex parte judgment was appropriate is moot, because the ex parte judgment was vacated and could not have "poisoned” the proceedings as Frey contends.

      . The sub-paragraphs of paragraph A should be read disjunctively, as though an "or” were placed between the two. Jurado v. Brashear, 98-2729 (La.App. 1st Cir.4/17/00), 764 So.2d 1066, 1071, affirmed in part, reversed in part, 00-1306 (La.3/19/01), 782 So.2d 575.


author: CLARENCE E. McMANUS, Judge.

text:
    Scott JACKSON, d/b/a Jackson Industries, Inc. v. Anthony CULOTTA.
    No. 10-CA-879.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 29, 2011.
    Barry J. Landry, Attorney at Law, Reserve, LA, for Plaintiff/Appellee.
    Steven F. Griffith, Sr., Attorney at Law, Destrehan, LA, for Defendant/Appellant.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   CLARENCE E. McMANUS, Judge.

| ^Defendant appeals from the confirmation of a default judgment against him. For the reasons that follow, we reverse the judgment confirming the default and remand for further proceedings.

In addition, the parties submitted a “Joint Motion for Consent Judgment” requesting that the trial court’s decision be reversed and this matter remanded, which we referred to the merits of this appeal. Because of our opinion issued in this case, this motion is rendered moot.

On January 16, 2008, plaintiff, Scott Jackson, d/b/a Jackson Industries, Inc., filed a Petition to Enforce Materialman’s Privilege & Suit on Open Account alleging that defendant Anthony Culotta was indebted to plaintiff in the amount of $88,540.00 plus reasonable attorney fees, costs and interests. On January 31, 2008, defendant filed for extensions of time to plead and was given an additional 30 days. On June 18, 2008, defendant filed a second motion for extension of time |3to answer. This motion was not signed by the trial court. No answer was filed in the record. Both parties appeared in proper person in this district court.

On February 2, 2010, plaintiff obtained a preliminary default. The preliminary default was confirmed by judgment rendered on March 22, 2010. Defendant’s appeal from the confirmation of the default was granted on April 16, 2010.

In this appeal, defendant alleges that he did not receive proper notice of the preliminary default as required by LSA-C.C.P. art. 1702(A).

LSA-C.C.P. art. 1702(A) provides that: A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. If no answer is filed timely, this confirmation may be made after two days, exclusive of holidays, from the entry of the judgment of default. When a judgment of default has been entered against a party that is in default after having made an appearance of record in the case, notice of the date of the entry of the judgment of default must be sent by certified mail by the party obtaining the judgment of default to counsel of record for the party in default, or if there is no counsel of record, to the party in default, at least seven days, exclusive of holidays, before confirmation of the judgment of default.

An appearance of record includes filing a pleading, appearing at a hearing, or formally enrolling as counsel of record. Perkins v. Carter, 09-673 (La.App. 5 Cir. 12/29/09), 30 So.3d 862. If a judgment of default is confirmed before the expiration of the delay prescribed by statute, i.e., two legal days after entry of the preliminary default if no answer is timely filed or seven legal days after notice is sent if the defaulting party has made an appearance of record, the confirmation of the judgment of default is premature, and the judgment is null and invalid. Power Marketing Direct, Inc. v. Foster, 05-2023 (La.9/6/06), 938 So.2d 662.

In this appeal, defendant contends that he made an appearance in the record by the filing of his motion for extension of time. He further contends that he did |4not receive the seven day notice required by Art. 1702(A). In addition, the record does not contain any evidence showing that notice was sent.

In brief to this Court, plaintiff admits that he did not send the proper notice, but contends that since defendant had notice of the suit, the purpose and intent of Art. 1702 was fulfilled.

We agree that defendant made an appearance in the record by the filing of his motion for extension of time. After defendant failed to file his answer, plaintiff obtained the default judgment. Plaintiff admits that he failed to provide the seven day notice after obtaining the default judgment before appearing in court to confirm the default. Thus, the judgment confirming the default is therefore null. See Hicks v. Steve R. Reich, Inc., 38,424 (La. App. 2 Cir. 5/12/04), 873 So.2d 849.

Accordingly, we vacate the judgment of March 22, 2010 confirming plaintiffs default and we remand this matter for further proceedings. The parties’ “Joint Motion for Consent Judgment” is rendered moot. Costs are assessed against appel-lee.

REVERSED AND REMANDED; MOTION FOR CONSENT JUDGMENT RENDERED MOOT


author: EZELL, Judge. COOKS, J.

text:
    Robert J. NOLAN, II v. FIFTEENTH JUDICIAL DISTRICT ATTORNEY’S OFFICE.
    No. CA 10-1093.
    Court of Appeal of Louisiana, Third Circuit.
    April 6, 2011.
    Rehearing Denied May 25, 2011.
    Charles Eugene Griffin, II, St. Franeis-ville, LA, for Plaintiff/Appellant, Robert J. Nolan, II.
    Michael Harson, District Attorney, Fifteenth Judicial District Court, Lafayette, LA, for Defendant/Appellee, Fifteenth Judicial District Attorney’s Office.
    Court composed of SYLVIA R. COOKS, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   EZELL, Judge.

h Robert Nolan appeals the decision of the trial court denying his motion to terminate his duty to register as a sex offender. For the following reasons, we affirm.

In July 2001, Mr. Nolan pled guilty to five counts of “Illegal Use of a Minor in Nudity-Oriented Material or Performance” under 2907.323 of the Ohio Criminal Code. His sentence included a fine and the requirement that he register as a sexual offender for a period of ten years. In 2009, Mr. Nolan filed a motion in Ohio to terminate his duty to register as a sexual offender, following a case ruling that people convicted of his offense prior to January 1, 2008, were not subject to registration and notification requirements.

While seeking the Ohio motion to terminate his duty to register as a sex offender, Mr. Nolan moved to Louisiana, where he registered as required by law. His Ohio motion was granted in July 2009. Mr. Nolan then filed the current motion to terminate his duty to register as a sex offender in Louisiana. After a hearing on the matter, the trial court denied his motion. From that decision, Mr. Nolan appeals.

On appeal, Mr. Nolan asserts two assignments of error, that the trial court erred in failing to grant full faith and credit to the Ohio judgment terminating his duty to register as a sex offender in that state; and that the trial court erred in requiring him to register as a lifetime sex offender in Louisiana.

Mr. Nolan asserts as his first assignment of error that the trial court erred in not recognizing, or failing to give full faith and credit to, the Ohio judgment stating that he was not required to register as a sex offender under Ohio law. We disagree.

Louisiana Revised Statutes 15:542.1.3(A) states:

Any person who is convicted or adjudicated of an offense under the laws of another state, or military, territorial, foreign, tribal, or federal law for which R.S. 15:542 requires registration shall be subject to and shall comply with all of the registration requirements of this Chapter [ ¡.within three business days of establishing a residence in Louisiana and shall comply with all notification requirements required in R.S. 15:542.1 within twenty-one days of establishing a residence in Louisiana. Such person shall also notify the bureau within three business days of establishing residence in Louisiana.

Louisiana Revised Statutes 15:542(A)(l)(a) requires registration for “[a] sex offense as defined in R.S. 15:541.” Included in the definition of a sex offense in La.R.S. 15:541(24)(a) is pornography involving juveniles under La.R.S. 14:81.1. That statute includes in the definition of child pornography thé intentional possession of photographs involving a child under the age of seventeen which involves “lewd exhibition of the genitals.” La.R.S. 14:81.1(B)(7). Thus, if Mr. Nolan was convicted in Ohio of possession of pictures containing lewd exhibitions of a minor’s genitals, he would be forced to register in Louisiana as a sexual offender.

Mr. Nolan was convicted in Ohio of “Illegal Use of a Minor in Nudity-Oriented Material or Performance” under 2907.323(A)(3) of the Ohio Criminal Code. That statute states, in pertinent part, that no person shall:

(3) Possess or view any material or performance that shows a minor who is not the person’s child or ward in a state of nudity, unless one of the following applies:
(a) The material or performance is sold, disseminated, displayed, possessed, controlled, brought or caused to be brought into this state, or presented for a bona fide artistic, medical, scientific, educational, religious, governmental, judicial, or other proper purpose, by or to a physician, psychologist, sociologist, scientist, teacher, person pursuing bona fide studies or research, librarian, member of the clergy, prosecutor, judge, or other person having a proper interest in the material or performance.
(b) The person knows that the parents, guardian, or custodian has consented in writing to the photographing or use of the minor in a state of nudity and to the manner in which the material or performance is used or transferred.

| oMr. Nolan was thus convicted of five counts of possessing pictures containing images of nude minors that were devoid of any “bona fide artistic, medical, scientific, educational, religious, governmental, judicial, or other proper purpose.” The Louisiana Bureau of Criminal Identification and Information felt that the conviction equated to possession of pictures containing lewd exhibitions of a minor’s genitals. As the plaintiff in this matter, Mr. Nolan had the burden of proving this determination was incorrect. The trial court felt he did not, and that Mr. Nolan would be required to register as a sexual offender in Louisiana under La.R.S. 15:542.1.3(A), regardless of his status in Ohio’s sex offender registration system. Mr. Nolan does not truly challenge this finding, nor is there is anything in the scant record before this court that indicates that determination is erroneous. Rather, he claims that the trial court failed to give full faith and credit to the Ohio judgment stating he was not required to register as a sex offender under Ohio law.

Louisiana courts are required to give full faith and credit to judgments of courts of other states. U.S. Const, art. 4, § 1.

The constitutional command of full faith and credit, as implemented by Congress, requires that “judicial proceedings * ⅜ * shall have the same full faith and credit in every court within the United States * * * as they have by law or usage in the courts of such State * * * from which they are taken.” Full faith and credit thus generally requires every State to give to a judgment at least the res judicata effect which the judgment would be accorded in the State which rendered it. “By the Constitutional provision for full faith and credit, the local doctrines of res judica-ta, speaking generally, become a part of national jurisprudence, and therefore federal questions cognizable here.”

Durfee v. Duke, 375 U.S. 106, 109, 84 S.Ct. 242, 244, 11 L.Ed.2d 186(1963)(quoting Riley v. New York Trust Co., 315 U.S. 343, 349, 62 S.Ct. 608, 612, 86 L.Ed. 885 (1942))(footnote omitted). However, the Ohio judgment does render the sexual offender registration laws of this state inapplicable to Mr. Nolan. The Ohio judgment simply states that he is not required to register as a sexual offender under the administrative framework of Ohio’s 14sexual offender registration requirements. The State is not seeking to force him to register as a sex offender in Ohio. The judgment Mr. Nolan seeks to have enforced in Louisiana in no way changes or diminishes Louisiana state law as it applies to him, or anyone else convicted of a crime requiring registration under La. R.S. 15:542, et al. The State in this matter is simply enforcing the laws of Louisiana as they apply to Mr. Nolan’s original conviction and in no way fails to give full faith and credit to the judgment that he does not have to register as a sex offender in Ohio. Rather, the State is giving full faith and credit to his conviction in enforcing La.R.S. 15:542.1.3. This assignment of error is without merit.

Next, Mr. Nolan claims that the trial court erred in requiring him to register as a lifetime sex offender. However, the judgment appealed does not order that in any way. Nor does the record before this court indicate the length of his required registration at all. To the contrary, the transcript of the hearing indicates that the trial court still felt that there were questions as to this matter and that the administrative process set forth in La.R.S. 15:542.1.3(B)(4) had not yet been completed. Therefore, this matter is, at best, premature, and we will not address this assignment of error.

For the above reasons, we hereby affirm the decision of the trial court. Costs of this appeal are assessed against Mr. Nolan.

AFFIRMED.

COOKS, J., dissents and assigns written reasons.

COOKS, J.

Dissents.

|,The procedural requirements for requiring lifetime registration of sex offenders is apparently causing confusion throughout the land. Neither this court nor the Fifteenth Judicial District Court has jurisdiction to hear or rule on the issues raised in this Plaintiffs petition. This case should be dismissed for lack of jurisdiction. This is an out-of-state registry case controlled by La.R.S. 15:542.1.3(B) which refers to La.R.S. 49:950 et seq., the relevant statute being La. R.S. 49:964(B). This provision grants jurisdiction to hear the matter attacking the Bureau’s decision regarding registration of this out-of-state registrant solely to the parish in which the agency is located here being East Baton Rouge Parish. This includes the Plaintiff’s claim that our courts must give full faith and credit to Ohio’s decision affecting Plaintiff. The trial court cannot “sustain” anything in this matter and this court cannot “surmise” on any issue in this case. Additionally, until the District Attorney in the parish in which the Plaintiff resides files a motion in district court, and a contradictory hearing is had, pursuant to the provisions of La.R.S. 15:544(E), (Louisiana’s child predator laws) this Plaintiff is not required to register for life unless his conduct in Ohio constitutes an offense for which Louisiana requires |2Iifetime registration under the provisions of La.R.S. 15:544(B). But, we cannot, as the majority attempts to do, “equate” his Ohio offense to any Louisiana offense because we have no record before us and we have no jurisdiction to rule.


author: EZELL, Judge.

text:
    Ann NEWMAN v. STATE FARM MUTUAL AUTO INSURANCE COMPANY, et al.
    No. CA 10-1389.
    Court of Appeal of Louisiana, Third Circuit.
    April 6, 2011.

      Douglas Kent Williams Breazeale, Sachse & Wilson, L.L.P., Baton Rouge, LA, for Defendant/Appellee Clarendon America Insurance- Company.
    Joseph Payne Williams, Sr., Williams Family Law Firm, LLC, Natchitoches, LA, for Plaintiff/Appellant Ann Newman.
    Robert Stuart Wright, Natchitoches, LA, for PlaintiffyAppellant Ann Newman.
    Thomas Patrick LeBlanc, Loftin, Cain, & LeBlanc, Lake Charles, LA, for Defendant/Appellee Clarendon America Insurance Company.
    Michael J. Williamson, Plauche, Smith & Nieset, Lake Charles, LA, for Defendant/Appellee State Farm Mutual Auto Insurance Company.
    Court composed of JOHN D. SAUNDERS, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   EZELL, Judge.

_JjAnn Newman appeals the decision of the trial court granting Clarendon American Insurance Company’s (Claredon) motion for summary judgment and dismissing her claims against it. For the following reasons, we affirm the decision of the trial court.

Leslie Roshong owns Arrow Mobile Home Movers (Arrow). On June 30, 2007, Arrow was moving a double-wide mobile home from DeRidder, Louisiana to Vinton, Louisiana. Mr. Roshong’s son was driving the truck actually moving the home, while Mr. Roshong drove his personal 2006 Dodge Ram truck to Lowe’s Hardware in Leesville, Louisiana, to purchase materials to set up the mobile home. While driving from Leesville to Vinton with the supplies, Mr. Roshong rear-ended Ms. Newman, injuring her. At no time during the trip did Mr. Roshong ever leave the state of Louisiana.

Ms. Newman filed suit against Mr. Roshong and State Farm Mutual Auto Insurance Company, the insurer of Mr. Roshong’s personal vehicle. She then amended her claim to add Clarendon, who provided automotive liability insurance for Arrow. Clarendon filed a motion for summary judgment, claiming that it did not provide coverage for Mr. Roshong’s personal vehicle or for the accident in question. The trial court below agreed, granting Clarendon’s motion for summary judgment and dismissing Ms. Newman’s claims against them. From that decision, Ms. Newman appeals.

On appeal, Ms. Newman asserts three assignments of error: that the trial court erred in finding the relevant Clarendon policy did not provide coverage for this accident; in ruling that coverage was not provided because Mr. Roshong did not travel across state lines; and in ruling that the Roshongs’ business was not a 12partnership. Because the first and second assignments of error are so directly related, we will address them together as one.

Louisiana Code of Civil Procedure Article 966(B) provides that summary judgment shall be granted where the pleadings, depositions, answers to interrogatories, admissions on file and affidavits show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. The Louisiana Supreme Court discussed the standard applicable to appellate review of summary judgments involving insurance contracts in Robinson v. Heard, 01-1697, pp. 3-4 (La.2/26/02), 809 So.2d 943, 945:

A reviewing court examines summary judgments de novo under the. same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. A reviewing court thus asks the same questions as does the trial court 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. Smith, 639 So.2d at 750.
Interpretation of an insurance contract is usually a legal question that can be properly resolved in the framework of a motion for summary judgment. Sanchez v. Callegan, 99-0137 (La.App. 1 Cir. 2/18/00), 753 So.2d 403, 405. When the language of an insurance policy is clear and unambiguous, a reasonable interpretation consistent with the obvious meaning and intent of the policy must be given. Sanchez, 753 So.2d at 405.

Ms. Newman first claims that the trial court incorrectly interpreted the policy at issue as requiring Mr. Roshong to cross state lines, ie., to be in interstate commerce, for the policy to provide coverage for the vehicle he was driving at the time of the accident in question. Ms. Newman claims two endorsements attached to the policy provided coverage for Mr. Rosh-ong’s personal vehicle, the federally required policy endorsements B.M.C. 90 and MCS-90. We disagree.

Ms. Newman primarily claims that the trial court erred in its interpretation of the B.M.C. 90 endorsement, arguing that the endorsement allows coverage for | ...vehicles not specifically described in the policy and that it allows coverage for vehicles in intrastate commerce as well as in interstate commerce. The provision provides (emphasis ours):

In consideration of the premium stated in the policy to which this endorsement is attached, the company agrees to pay, within the limits of liability prescribed herein, any final judgment recovered against the insured for bodily injury to or death of any person, or loss of or damage to property of others (excluding injury to or death of the insured’s employees while engaged in the course of their employment, and property transported by the insured, designated as cargo), resulting from negligence in the operation, maintenance, or use of motor vehicles under certificate or permit issued to the insured by the Interstate Commerce Commission, or otherwise in interstate or foreign commerce subject to Subchapter II, Chapter 105, Subtitle IV of Title 49 of the United States Code, regardless of whether or not such motor vehicles are specifically described in the policy and whether or not such negligence occurs on any route or in any territory authorized by the Interstate Commerce Commission to be served by the insured or elsewhere.

The clear and unambiguous language of the endorsement requires that for a vehicle to be covered, it must have a certificate or permit issued by the ICC or the vehicle must be used in interstate commerce. Mrs. Roshong testified in deposition that, while there were ICC permits for the vehicles owned by the business (the trucks actually used to move the mobile home), there was no permit obtained for Mr. Roshong’s personal vehicle. Moreover, the moving job, as well as Mr. Roshong’s related actions the day of the accident, were based entirely in the state of Louisiana. Because Mr. Roshong’s personal vehicle was neither certified under the ICC nor in interstate or foreign commerce, it is obvious that coverage is not extended to that vehicle under the plain terms of the B.M.C. 90 endorsement.

Ms. Newman also makes a blanket assertion that the trial court erred in finding that the MCS-90 endorsement also required Mr. Roshong to be operating in interstate commerce in order for coverage to be provided, but she makes no real legal argument to support that claim. However, out of an abundance of caution, we will address that |4claim as well. As recently noted in Pace v. Travelers Indemnity Co. of America, 2010 WL 5141252 (E.D.La.2010)(emphasis added):

The MCS-90 is a federally mandated policy endorsement, the purpose of which is to assure motor carriers’ compliance with federal minimum levels of financial responsibility. Canal Ins. Co. v. Coleman, 2010 WL 4276074, at *2 [625 F.3d 244], 246 (5th Cir. Nov. 1, 2010) (citing 49 C.F.R. § 387.15 illus. 1). The endorsement is required to be attached to any liability policy issued to for-hire motor carriers operating motor vehicles transporting property in interstate commerce. Id. (citing 49 C.F.R. §§ 387.3, 387.7). The endorsement operates to create a suretyship, obligating the insurer to pay certain judgments against the insured arising from interstate commerce activities, even though the insurance contract would have otherwise excluded coverage. Id. (citing Minter v. Great Am. Ins. Co. of N.Y., 423 F.3d 460, 470 (5th Cir.2005)). Whether the endorsement covers an accident is a question of federal law. Id. at *3 [625 F.3d at 247] (citing Lincoln Gen. Ins. Co. v. Garcia, 501 F.3d 436, 439 (5th Cir.2007)).
... [In Coleman, supra, the] Court began its opinion by analyzing the plain text of the MCS-90 and the statute it effectuates, § 30 of the Motor Carrier Act of 1980. Id. at *3-*4 [625 F.3d at 247-48] (see 49 C.F.R. § 387.15 illus. 1; 49 U.S.C. § 31139(b)). In so doing, the Court concluded that “the endorsement covers vehicles only when they are presently engaged in the transportation of property in interstate commerce.” Id. at *4 [625 F.3d at 249] (emphasis added). The Court additionally noted that the majority of courts have agreed with its “trip-specific” approach to determining the applicability of the MCS-90 endorsement, by finding the relevant question in these cases to be whether the accident occurred while the insured vehicle was transporting property in interstate commerce. Id. at *5, *8 [625 F.3d at 249, 253] [citations omitted].
It is undisputed that at the time of the accident in question, Schnyder was driving the Southern vehicle from Southern’s facility in Metairie to his place of business in Chalmette to perform decal work and other repairs on the vehicle.... Plaintiffs do not contend that the vehicle was operating in interstate commerce, but instead argue that there is no interstate requirement to the applicability of the MCS-90 endorsement, as the endorsement applies even in accidents that occur during a wholly intrastate trip.... In light of the Fifth Circuit’s decision and reasoning in Coleman, this argument must be rejected. As the vehicle in question was not engaged in interstate commerce at the time of the accident, the MCS-90 endorsement does not apply ...

Here, Mr. Roshong was not using his personal vehicle in a for-hire capacity, as he was hauling materials he had personally purchased to set up the mobile home 15his company’s truck was moving. Moreover, the entire trip engaged by Mr. Roshong was within the state of Louisiana, with no reason for or intention of leaving the state. Accordingly, Mr. Roshong was not transporting property in interstate commerce, and, therefore, Ms. Newman’s assertion that the MCS-90 endorsement applies to this accident must be rejected under Pace.

In light of our above findings, there is no genuine issue of material fact as to coverage under the Clarendon policy, as under the clear language of the policy, neither the B.M.C. 90 nor the MCS-90 provision provides coverage for the accident at issue. These assignments of error are devoid of merit, and the trial court committed no error in its interpretation of the Clarendon policy.

Ms. Newman next claims that the trial court erred in ruling that the Rosh-ong’s community-owned business could not be a partnership. Ms. Newman claims that the accident vehicle was owned by a partner in the business, allowing coverage under the non-owned vehicles provision of the Clarendon policy. There is no evidence whatsoever in the record before this court to indicate that the business was in any way, shape, or form a partnership. Rather, every bit of evidence indicates to the contrary. Both Mr. and Mrs. Roshong testified that Arrow Mobile Home Movers was a sole proprietorship and was not a partnership or incorporated in any way. This is uncontradicted. Moreover, the Clarendon insurance policy disputed in this suit explicitly shows that the policy was written for “Arrow Mobile Home Movers Leslie Roshong DBA.” The form of business described in the policy is “individual,” rather than a partnership. Essentially, Ms. Newman wants this court to find that a vehicle owned by Leslie Roshong is a non-owned vehicle under a policy written to and for the individual Leslie Roshong d/b/a Arrow Mobile Home Movers. We refuse to do Rso. The trial court committed no error in granting Clarendon’s motion for summary judgment.

For the above reasons, the ruling of the trial court is hereby affirmed. Costs of this appeal are assessed against Ms. Newman.

AFFIRMED.


author: PAINTER, Judge.

text:
    In the Interest of A.A.M.B.
    No. 10-1498.
    Court of Appeal of Louisiana, Third Circuit.
    April 6, 2011.
    Rehearing Denied May 25, 2011.

      Nicole Guidry, Attorney at Law, Abbe-ville, LA, for S.E.B.
    Jo Ann Nixon, Attorney at Law, New Iberia, LA, for Appellant, H.L.T.
    Julie Rosenzweig, Attorney at Law, New Iberia, LA, for A.A.M.B.
    Tamara D. Rahim, Attorney at Law, Lafayette, LA, for State of Louisiana, Department of Children and Family Services.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, J. DAVID PAINTER, and PHYLLIS M. KEATY, Judges.
   PAINTER, Judge.

bH.L.T., the biological father of A.A.M.B., appeals the judgment of the trial court terminating his parental rights and certifying the minor child to be eligible for adoption. We affirm the trial court’s judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The child, A.A.M.B., was born on September 13, 2008. When the child was three weeks of age, the Department of Children and Family Services (DCFS) received a report stating that the child’s mother, S.E.B., was in a treatment facility, that the child’s father, H.L.T., was incarcerated, and that the child was not being fed properly and was starving. A.A.M.B. was adjudicated a child in need of care and was taken into state custody on October 9, 2008. The child was placed in the custody of her paternal aunt and uncle. DNA testing confirmed that H.L.T. is the biological father of A.A.M.B. Reunification efforts were made, but S.E.B. ultimately voluntarily executed an act of surrender on August 13, 2010. H.L.T. filed a written notice of opposition; however, following a hearing on October 21, 2010, the trial court approved the surrender of S.E.B.’s parental rights and terminated H.L.T.’s parental rights.

H.L.T. now appeals the termination of his parental rights. He argues that the trial court erred in terminating his parental rights where he was a non-offending parent and had completed several requirements outlined in the case plan. He further argues that the voluntary surrender by S.E.B. is an absolute nullity. Finally, H.L.T. argues that the termination of his parental rights while he was incarcerated and unable to make bail is tantamount to a termination based on his poverty. Finding all of these assignments of error to be without merit, we affirm the termination of H.L.T.’s parental rights.

DISCUSSION

In his first assignment of error, H.L.T. argues that the State has not made reasonable efforts to reunite the family. He asserts that he was without fault in causing the situation that led to the placement of A.A.M.B. in State custody.

12H.L.T. was incarcerated at the time A.A.M.B. was taken into State custody. He was released from jail on March 20, 2008, but re-arrested on July 24, 2009. He remained in jail from July 24, 2009, to January 29, 2010. He was again arrested on May 25, 2010, and was incarcerated from that time through the time that his parental rights were terminated. The State contends that during the time when H.L.T. was not incarcerated, it made reasonable efforts at reunification. It offered parenting classes, anger management classes, and individual counseling. The State contends that H.L.T. failed to substantially comply with the requirements of the case plan in that he failed to obtain and maintain suitable housing, failed to provide verification of employment, failed to demonstrate adequate parenting skills, failed to attend anger management and individual counseling, failed to proved parental contribution for the child, and failed to bond with A.A.M.B. during visitation and attendance at parenting class.

Louisiana Children’s Code Article 1138 provides:

A. At the hearing of the opposition, the alleged or adjudicated father must establish his parental rights by acknowledging that he is the father of the child and by proving that he has manifested a substantial commitment to his parental responsibilities and that he is a fit parent of his child.
B. Proof of the father’s substantial commitment to his parental responsibilities requires a showing, in accordance with his means and knowledge of the mother’s pregnancy or the child’s birth, that he either:
(1) Provided financial support, including but not limited to the payment of consistent support to the mother during her pregnancy, contributions to the payment of the medical expenses of pregnancy and birth, or contributions of consistent support of the child after birth; that he frequently and consistently visited the child after birth; and that he is now willing and able to assume legal and physical care of the child.
(2) Was willing to provide such support and to visit the child and that he made reasonable attempts to manifest such a parental commitment, but was thwarted in his efforts by the mother or her agents, and that he is now willing and able to assume legal and physical care of the child.
C.The child, the mother of the child, and the legal custodian may offer rebuttal evidence limited to the issues enumerated in Paragraphs A and B of this Article. However, the primary consideration shall be, and the court shall accept evidence concerning, the best interests of the child.
|SD. If the court finds that the alleged or adjudicated father has failed to establish his parental rights, it shall decree that his rights are terminated.
E. If the court finds that the alleged or adjudicated father has established his parental rights, the court shall declare that no adoption may be granted without his consent. The court may also order the alleged or adjudicated father to reimburse the department, or the licensed private adoption agency, or other agency, or whoever has assumed liability for such costs, all or part of the medical expenses incurred for the mother and the child in connection with the birth of the child.

The trial court found that H.L.T. had not frequently and consistently visited with the child after birth and that he was not able to assume legal and physical care of the child as required by La.Ch.Code art. 1138(B)(1).

H.L.T. has the burden of proof in this case, and the required elements must be shown by a preponderance of the evidence. In re R.E., 94-2657 (La.11/9/94), 645 So.2d 205. We review the trial court’s finding in this regard under the manifest error standard of review. In re 33,766 (La.App. 2 Cir. 3/7/00), 754 So.2d 425, writ denied, 00-797 (La.5/12/00), 762 So.2d 14. “Substantial commitment and parental fitness are factual findings that are entitled to deference unless the trial court is clearly wrong.” In re Adoption of J.L.G., 01-269, p. 10 (La.App. 1 Cir. 2/21/01), 808 So.2d 491, 498. Our review of the record reveals no manifest error in the trial court’s findings.

H.L.T. next argues that the surrender of parental rights by S.E.B. was an absolute nullity because it was confected contrary to the statutory provisions of La. Ch.Code art. 1112, specifically in that no contradictory hearing was held.

Louisiana Children’s Code Article 1112 provides that:

A. Except as provided herein, a parent may not execute a private surrender once custody of that child has been removed from the parent by order of a juvenile court and the child has been placed in the legal custody of any person or agency or if the child is the subject of a pending termination of parental rights proceeding.
B. Upon notice to the department and after a contradictory hearing, if requested by the department, a parent may, with approval of the court, execute a private surrender of a child in the legal custody of the department to the foster parent with whom the child was placed by the department.

[4The State contends that it did not have to request a contradictory hearing because S.E.B.’s act of surrender was in favor of the DCFS, not a private party, and because the State had not commenced a termination hearing prior to the execution of the act of surrender. The State further contends that no action to annul the surrender was properly brought by H.L.T. within ninety days of the act of surrender as required by La.Ch.Code art. 1148.

We agree with the State and find that no action to annul the act of surrender was filed by H.L.T. Therefore, the act of surrender cannot now be nullified by this court.

In his final assignment of error, H.L.T. argues that the termination of his parental rights amounted to a termination based on his poverty because he remained incarcerated while awaiting trial because he was unable to make bail. The State argues that the basis for the termination of H.L.T.’s parental rights was not the periods of time that he was incarcerated but because he failed to show that he manifested a substantial commitment to his parental responsibility and that he was a fit parent for the child as required by La.Ch. Code arts. 1137 and 1138. We agree with the State’s assertion.

The record shows that H.L.T. failed to make consistent contributions to the care and support of A.A.M.B. The case plan required a $10.00 per month parental contribution. Even though H.L.T. testified that he brought diapers when he visited A.A.M.B., H.L.T. failed to make the required $10.00 per month parental contributions. The record is also clear that even though H.L.T. visited with A.A.M.B. during the periods when he was not incarcerated, case workers observed that H.L.T. failed to establish a bond with A.A.M.B. H.L.T. could not show that he could obtain and maintain adequate housing for A.A.M.B. H.L.T. failed to provide verification of employment. H.L.T. did not follow the recommendations from his psychological evaluation by attending anger management classes and individual counseling.

As we discussed above, the standard of review is manifest error. Although we may be sympathetic with H.L.T.’s plight and in no way condone a termination of | r,parental rights based on a parent’s poverty alone, we find no manifest error in the trial court’s judgment terminating H.L.T.’s parental rights under the facts of this case.

DECREE

For all of the foregoing reasons, we affirm the judgment of the trial court which terminated H.L.T.’s parental rights and certified A.A.M.B. to be eligible for adoption.

AFFIRMED.