author: EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana v. Derrick MULDER.
    No. 2011-KA-0424.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 19, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Nisha Sandhu, Assistant District Attorney, New Orleans, LA, for the State of Louisiana.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).
   EDWIN A. LOMBARD, Judge.

liThe defendant/appellant Derrick Mulder pleaded guilty to possession of heroin, a violation of La.Rev.Stat. 40:966(A)(1), but reserved his right to appeal the denial of his motion to suppress the evidence pursuant to State v. Crosby, 338 So.2d 584 (La. 1976). After review of the record in light of the applicable law and arguments of the parties, we reverse the ruling of the trial court, vacate the defendant’s guilty plea and sentence, and remand the matter to the trial court for further proceedings.

Relevant Facts and Procedural History

On August 3, 2010, the defendant was observed walking in the Iberville Housing Development by two police officers. The police officers got out of their police vehicle, told him to step to the hood of the vehicle and put his hands on the vehicle, and patted him down. The defendant did so, keeping his left hand clenched as he placed it on the vehicle. Upon being ordered to open his hand, the defendant was found to be holding a packet of heroin.

On August 9, 2010, the defendant was charged by bill of information with possession of heroin. His motion to suppress the evidence was denied on August 1 ⅞26, 2010, and November 16, 2010, he pleaded guilty, reserving his right to appeal pursuant to State v. Crosby, 338 So.2d 584 (La.1976).

Applicable Law

In Louisiana, a police officer “may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.” La.Code Crim. Proc. art. 215.1(A). In determining whether the police possessed the requisite minimal level of objective justification for an investigatory stop based on reasonable suspicion of criminal activity, reviewing courts look at the totality of the circumstances, allowing officers to make inferences from and deductions about the cumulative information available to them based on their own experience and specialized training. U.S. v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002); State v. James, 2007-1104, p. 3 (La.App. 4 Cir. 3/5/2008), 980 So.2d 750, 752; see also State y. Williams, 421 So.2d 874, 875 (La.1982) (to determine whether a reasonable, articulable suspicion existed, the court must weigh all of the circumstances known to the police at the time the stop was made). An officer’s past experience, training and common sense may be considered in determining if the inferences drawn from the facts were reasonable.

Discussion

In his sole assignment of error, the defendant argues that the trial court erred in denying his motion to suppress the evidence because the arresting officers lacked reasonable suspicion and/or probable cause to stop the defendant and conduct a weapons frisk.

The burden is on the State to establish admissibility of evidence seized without a warrant, La.Code Crim. Proc. art. 703(D), and a trial court judgment 1..¡relative to the suppression of evidence is afforded great weight and only set aside for an abuse of discretion. State v. Hunt, 2009-1589, p. 7 (La.12/1/2009), 25 So.3d 746, 752. The State presented the testimony of Office Lejean Jackson at the August 26, 2010, motion hearing. Officer Jackson testified that she and her partner, Officer Jonathan Sam, were sitting in their marked police unit in the Iberville Housing Development on the evening of August 3, 2010, when they saw the defendant walking in and around the area. As neither officer recognized him as a resident of the development, they got out of their police vehicle, told him to step to the hood of the vehicle, and patted him down. The defendant complied, but kept his left hand clenched as he placed it on top the unit. Officer Jackson ordered him to open his left hand and saw him discard a small foil packet. After confiscating the packet and opening it to find a “tan powder substance,” Officer Jackson advised him of his Miranda rights.

On cross-examination, Officer Lejean stated that she had been a member of the New Orleans Police Department (NOPD) for approximately one year and assigned to the Iberville Housing Development for approximately two months at the time of the defendant’s arrest. She stated that because she did not recognize the defendant as a resident of the housing development when she saw him walking through it, she conducted the stop to determine if he was trespassing. She conceded that, upon being ordered to stop, the defendant immediately submitted to her authority. Accordingly, the police officer ordered the defendant to place his hands on the police car so that she could “pat him down to make sure he didn’t have any weapons on him.” When asked what independent facts and circumstances led her to suspect that the defendant was armed and dangerous, Officer Lejean replied: “It is by policy. I must — If I stop a person, I need to pat them down. I did |4not search him. I patted him down to make sure he didn’t have anything to harm me or my partner.” (emphasis added). When defense counsel sought to clarify whose policy required a police officer to pat a person down upon stopping them, the State objected. The trial court sustained the objection, stating “It is NOPD policy.” The defense counsel argued that such a policy is clearly contrary to jurisprudence but the trial court responded, “I’ll sustain the objection.”

The State now argues to this court that the officers had reasonable suspicion to detain the defendant because they did not recognize him as a resident of the housing project and “reasonably suspected that the defendant was trespassing, and instead of arresting him on that suspicion they were investigating whether he was a resident.”

In Louisiana, a police officer “may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.” La.Code Crim. Proc. art. 215.1(A); see also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)(the right to make such an investigatory stop must be based upon reasonable suspicion that the individual has committed, or is about to commit, an offense). Once a person is stopped pursuant to pursuant to Article 215.1, the officer may conduct a limited pat down frisk for weapons if he reasonably believes that he is in danger or that the suspect is armed. La. Code Crim. Proc. art. 215.1(B) (emphasis added); see also U.S. v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (although the level of suspicion need not rise to the probable cause required for a lawful arrest, the police must articulate something more than an inchoate and un-particularized suspicion or hunch); State v. Kalie, 96-2650, p. 3 (La.9/19/97), 699 So.2d 879, 881 (to make a brief investigatory stop on less than probable cause to arrest, the police must have a ^particularized and objective basis for suspecting the particular person stopped of criminal activity).

The mere fact that the defendant was walking through the housing development does not constitute trespassing. In State v. Parker, 97-1994, (La.App. 4 Cir. 12/9/98), 723 So.2d 1066, this court addressed an investigatory stop in a public housing project, similar to the one at bar. In that case, the arresting officers testified that they initially approached the defendant “pursuant to a ‘rule’ prohibiting persons from being in the Lafitte Housing Development without permission of a resident.” One of the arresting officers had recently arrested the defendant and knew that he was not a resident of the project. However, this court found that the arresting officers did not have sufficient reasonable suspicion to justify an investigatory stop, reasoning:

Because the exact provisions of the Lafitte Housing Development trespassing rule were never established in the record by way of testimony or otherwise, we cannot determine whether or not this rule was violated, or even that there is such a rule.

Parker, 97-1994 at p. 6, 723 So.2d at 1069. In addition, the court noted an inability to find any trespassing statute or ordinance that applied exclusively to public housing developments of the City of New Orleans that was more restrictive than the general trespassing laws and, as such, held “that the mere fact that the defendant was in a housing development did not give rise to the officers reasonable suspicion that he was committing or was about to commit a crime when the stop was initiated.” Id.

Similarly, in this case the State presented no evidence of any ordinance allowing only residents to enter a housing development, any evidence of specific signage prohibiting nonresidents from entering the housing development, or any | (¡criminal trespass statute or municipal ordinance pertaining to trespassing in a housing project. The State argues that the stop in this case was constitutional because the officers “reasonably suspected that the defendant was trespassing, and instead of arresting him on that suspicion, they were investigating whether he was a resident.” However, as indicated in Parker, determining whether a citizen is a resident does not constitute a reasonable suspicion pursuant to Article 215.1(A) that the person, ‘is committing, has committed, or is about to commit an offense.’

Moreover, even accepting arguendo that stopping a citizen to inquire as to his residency is acceptable pursuant to Article 215.1(A), a limited pat down frisk for weapons is permitted only when the officer reasonably believes that he is in danger or that the suspect is armed. La.Code Crim. Proc. art. 215.1(B); Sokolow, 490 U.S. at 7, 109 S.Ct. 1581. In this case, Officer Jackson’s testimony does not indicate that she or her partner felt any specific concern for their safety that would have justified even a frisk for weapons during an investigatory stop. See State v. Francis, 2010-1149 (La. App. 4 Cir. 2/16/11), 60 So.3d 703 (police officers lacked a sufficient basis to frisk the defendant subject to an investigatory stop when the sole apparent basis for the frisk was the officer’s stated practice of always frisking a subject under a certain set of circumstances). Rather, Officer Jackson candidly admitted that the decision to immediately order the defendant to put his hands on the hood of the police vehicle and pat him down was not based upon the specific circumstances with which she and her partner were confronted or that there was anything about this defendant or his actions which caused them to feel that it was necessary to do so at the outset of the investigatory stop, but rather that patting down a person upon stopping him “is by policy.”

|7A police officer’s testimony that it is a matter of routine or policy to stop and frisk a person every time there is an investigatory stop (and the trial court’s apparent acquiescence with the policy) is a matter of concern beyond the narrow confines of this case. See United Stated Justice Department, Investigation of the New Orleans Police Department (3/16/2011), p. 28 (NOPD written policies effectively gloss over the requirements, particularly the necessity of articulable facts, under Terry and, as the consequences of these “lapses with respect to training were evident in our interviews with officers who displayed a profound lack of understanding of the limits of Terry ”). Officer Jackson did not articulate a single factor from which the trial court or this court can determine that she had any safety concerns in this case, much less that her safety concern was objectively reasonable. Thus, the decision to immediately order the defendant to put his hands on the police vehicle and pat him down was a de facto arrest without probable cause and, as such, an unreasonable seizure in violation of the Fourth Amendment. The State contention that “a reasonable officer could conclude that an unfamiliar person walking through the housing development at 10:30 at night may be armed ...” (emphasis added) suggests that it unnecessary for an officer to articulate reasons for a frisk during an investigatory detention. This, however, is contrary to both Louisiana jurisprudence and statutory authority which specifically holds that a lawful detention for questioning does not automatically give the officer authority to conduct a pat-down for weapons. See State v. Sims, 2002-2208 (La.6/27/2003), 851 So.2d 1039, 1043 (even after a lawful investigatory stop, a police officer may frisk the suspect only where a reasonably prudent person would be warranted in the belief that his safety or that of others is in danger); State v. Francis, supra; La.Code Crim. Proc. art. 215.1(B).

|sThe threshold established for a protective frisk is not unduly burdensome. The reasonableness of a frisk is governed by an objective standard, Sims, supra; State v. Dumas, 2000-0862, pp. 2-8 (La.5/4/2001), 786 So.2d 80, and requires only that an officer establish a “substantial possibility” of danger existed, not that it was more probable than not that the detained individual was armed and dangerous. Sims, supra; State v. Hunter, 875 So.2d 99, 102 (La.1979). Even under this lenient standard, however, an officer must articulate some facts that led him to believe that the individual was armed and dangerous to justify a frisk. Sims, supra; Hunter, 375 So.2d at 101.

Moreover, we are a court of record. Whereas the State suggests that an officer “could conclude that an unfamiliar person walking through the housing development ... may be armed ...,” this court cannot impute its own rationale into the record to supplement or override the clear statement of the testifying officer. See Investigation, supra, (Justice Department review of arrest reports to determine whether officers articulated sufficient facts to justify arrests, searches, or pat down, revealed serious gaps in police officers’ knowledge and ability to properly perceive and articulate reasonable suspicion and probable cause). Thus, if as Officer Lejean testified, the pat-down occurred while the defendant was merely being detained on an investigatory stop, the pat-down (without the articulation of some fact to justify the frisk) was clearly a transgression of constitutional and statutory boundaries.

If, of course, the officers had probable cause to arrest the defendant, the frisk was constitutional as a search incident to arrest. Again, the threshold established for a finding of probable cause is neither high nor novel. See Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964) (probable cause to arrest exists when the detaining office |flarticulable knowledge of particular facts sufficient to reasonably suspect that the detained person of criminal activity). The determination of whether probable cause for an arrest existed at the time of the pat-down is a “purely objective” determination that takes into account “all of the information known collectively to the law enforcement personnel involved in the investigation.” State v. Elliott, 2009-1727 (La.3/16/2010), 35 So.3d 247, 251 (citation and internal quotation marks omitted); see also State v. Finklea, 313 So.2d 224 (La.1975) (whether probable cause existed at the time of the arrest must be determined without regard to the result of the subsequent search). In this case, however, Officer Jackson insisted that the only reason for stopping the defendant was to check his residency and, in its appellate brief, the State specifically asserts that instead of arresting the defendant “on suspicion of trespassing, they were investigating whether he was a resident.” Accordingly, because there is no evidence that being a non-resident of a housing development is a criminal offense, there was no probable cause for an arrest and the search was unconstitutional.

Conclusion

The trial court abused its discretion in denying the defendant’s motion to suppress. Accordingly, we reverse the trial court judgment denying the defendant’s motion to suppress, vacate the defendant’s conviction and sentence, and remand the matter back to the district court for further proceedings.

JUDGMENT REVERSED; CONVICTION AND SENTENCE VACATED; REMANDED.


source: Caselaw Access Project

author:
SAUNDERS, Judge.
      GENOVESE, J.,

license: Public Domain

text:
    Joyce Marie DAVIS v. COUNTRY LIVING MOBILE HOMES, INC., et al.
    No. 11-471.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 19, 2011.
    Janice M. Reeves, Attorney at Law, Baton Rouge, LA, for Defendants/Appellees, Northfield Insurance Company, Country Living Mobile Homes, Inc.
    Elizabeth B. Carr, Attorney At Law, Leesville, LA, for Plaintiff/Appellant, Joyce Marie Davis.
    Court composed of JOHN D. SAUNDERS, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   SAUNDERS, Judge.

11 This is a slip and fall case where a patron of a mobile home vendor fell due to an allegedly muddy area on the mobile home vendor’s sales lot. The patron filed suit seeking to recover for injuries resulting from her fall. The trial court granted the defendant, the mobile home vendor, summary judgment. The plaintiff now appeals. We affirm.

FACTS AND PROCEDURAL HISTORY

The plaintiff, Joyce Marie Davis (hereinafter “Davis”), and her husband visited defendant’s mobile home sales lot in DeR-idder, Louisiana, on June 28, 2005, where she slipped and fell. Subsequently, Davis filed suit against defendant Country Living Mobile Homes, Inc. (hereinafter “Country Living”) alleging its negligence as the cause of her slip and fall. Country Living later filed a motion for summary judgment. The trial court granted the motion in favor of Country Living. Davis filed a motion for a new trial, which the trial court denied. Davis now appeals, asserting that summary judgment against her was not warranted and that Country Living did not meet its initial burden as mov-ant of the motion for summary judgment.

ASSIGNMENTS OF ERROR

1. Whether the trial court erred in granting summary judgment and ruling that there was no genuine issue of material fact and that defendant was entitled to judgment as a matter of law on the issue of whether the slippery patch of mud on which plaintiff fell constituted an unreasonable risk of harm.
2. Whether the trial court erred in granting summary judgment and ruling that defendant was entitled to judgment as a matter of law regarding whether there was actual or constructive notice of the defect by the 1 ^defendant, or alternatively whether the defendant’s agents created the defect.

ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO:

In her first assignment of error, Davis contends that the trial court erred as a matter of law in ruling that there was no genuine issue of material fact and that defendant was entitled to judgment as a matter of law on the issue of whether the slippery patch of mud on which plaintiff fell constituted an unreasonable risk of harm. In her second assignment of error, Davis contends that the trial court erred by granting summary judgment and ruling that defendant was entitled to judgment as a matter of law regarding whether there was actual or constructive notice of the defect by the defendant, or alternatively whether the defendant’s agents created the defect. Because both assignments of error are directed toward the trial court’s granting summary judgment as to two elements of the same claim, we will address whether the trial court properly granted Country Living’s motion for summary judgment under one heading.

Summary judgments are subject to a de novo review. Thibodeaux v. Lafayette Gen. Surgical Hosp., 09-1528 (La.App. 8 Cir. 5/5/10), 38 So.3d 544. “The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969. The procedure is favored and shall be construed to accomplish these ends.” La.Code Civ.P. art. 966(A)(2). A motion for summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B).

pit is also important to be aware of the movant’s and not-movant’s burdens of proof. Though the burden of proof on a motion for summary judgment remains on the movant, the movant’s burden changes contingent upon whether he or she will bear the burden of proof at trial on the matter that is the subject of the motion for summary judgment. Johnson v. State Farm Ins., 08-1250 (La.App. 3 Cir. 4/1/09), 8 So.3d 808.

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

La.Code Civ.P. art. 966(C)(2).

In this case, Davis filed suit against Country Living, alleging that the company was negligent in allowing a muddy spot to form and remain on its property, which Davis contends resulted in her fall. Davis has the burden to prove this at trial. Bias v. Scottsdale Ins. Co., 10-378 (La.App. 3 Cir. 11/10/10), 50 So.3d 964. Thus, Country Living, as movant of the motion for summary judgment, does not bear the burden of negating all essential elements of Davis’s claim. La.Code Civ.P. art. 966(C)(2). Rather, Country Living need only “point out a lack of support for an essential element” of Davis’s claim. Id. Thereafter, the burden shifts to Davis to show some support that she can meet her evidentiary burden on that element. Id. If she cannot meet the burden, there is no genuine issue of material fact, and the motion for summary judgment should be granted. Id.

[4The law providing the elements which Davis must prove at trial is as follows:

We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.

La.Civ.Code art. 2317.

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

La.Civ.Code art. 2317.1.

In summary, in order to recover for damages for premises liability, a plaintiff must prove: (1) the thing was in defendant’s custody and control; (2) the thing contained a defect which presented an unreasonable risk of harm to others; and (3) the defendant knew or should have known of the defect. Bias, 50 So.3d 964.

In this case, Country Living based its motion for summary judgment on two assertions: that Davis is unable to bear the burden of proof to show the required notice, or Country Living’s awareness of the purported defect, and that Davis is unable to show that the mud on the grassy land is a defect that constitutes an unreasonable risk of harm under Louisiana law. If Country Living is able to show that either of these assertions is true, and if Davis fails to present sufficient evidence to satisfy her evidentiary burden, then summary judgment is appropriate.

In her first assignment of error, Davis argues that the trial court erred in its ruling that she did not show the existence of an unreasonably dangerous condition. She points out that she was walking in ankle deep grass which hid a pool of water and mud and created a trap for the unwary. Clearly, she argues, the trier of fact IfiCOuld conclude that such a trap is unreasonable. This is a strong argument which finds some favor with this court. Ultimately, however, we choose to preter-mit this issue as it is not necessary to our decision. This is so, because a reading of the record suggests that there is a total absence of evidence to suggest that Country Living had notice of the water or mud hiding in wait for Davis.

In her second assignment of error, Davis argues that the trial court erred by finding that Country Living lacked notice of the allegedly dangerous condition. Country Living submitted the affidavit of manager Rita Luneau (hereinafter “Lu-neau”) to support its contention that it did not, in fact, have actual or constructive' knowledge. In the affidavit, Luneau states that:

[she] was not aware of the faucet in the area Ms. Davis claimed she fell as being on any time earlier that day of June 28 before Ms. Davis came to the office. [Luneau] is not aware of any defect or leaking in the faucet near where Ms. Davis claims she fell that day, and she is not aware of any other employee who was aware of any problem.
Davis controverted the affidavit in her deposition.

She describes what she observed on the lot before the accident:

Q: Okay. Before the accident, did you notice anybody cleaning a mobile home?
A: Yes, sir, there was a kid cleaning, but he wasn’t cleaning a mobile home per se. He was just cleaning some objects there, and I didn’t pay attention to what he was cleaning.
Q: How was he cleaning it? With water or—
A: Yes, sir, he did have water.
Q: With a hose or some other—
A: I saw the water. I didn’t pay any more attention.
Q: Okay. But it was some object on the ground he was cleaning?
A: Yes, sir.
Q: You did see water on the ground in the area where he was cleaning, though? A: No, sir, I didn’t see the water on the ground.
Q: But—
A: He had like a sponge-like thing.

After Davis recounts her fall and her and her husband’s subsequent entry into the lot’s office, she states as follows:

|fiQ: Did [Luneau, who was in the office at this time,] say anything to you?
A: Yes, sir. When we said what had happened, she came out and said that those kids — they’re constantly telling the kids to turn that water off and they don’t do it.
Q: These are kids that work for them? A: Yes, sir, and she referred to them as kids.
Q: Did you notice when you were out there whether the hose — whether the faucet was on or off?
A: It was off.
Q: Did she say why — what they used the water for?
A: No, sir. She didn’t.

As movant of the motion for summary judgment, Country Living has the initial burden to “point out a lack of support for an essential element” of Davis’s claim. La.Code Civ.P. art. 966(C)(2). Here, Country Living puts forth the assertion that Davis is unable to satisfy her burden of proof on Country Living’s actual or constructive knowledge of the purported defect, an essential element of Davis’s claim.

Next, Davis has the burden of showing some factual support for her allegations. Here, her deposition testimony recounts a conversation she had with Luneau the day of the accident. Davis argues that Luneau admitted that, in the past, the faucet had sometimes been allowed to run unchecked. Nothing in the record suggests, however, that we are dealing with a pool of water remaining from these past lapses. Rather, the record and arguments all suggest that the water was deposited by either the morning’s rain or, somehow, came from the nearby faucet. The record suggests, without contradiction, that it rained earlier that day. Also, Davis testified that she saw an employee with a sponge who was cleaning an object in an area located at a slight incline above the area where she fell. We will consider separately these two possible sources of water.

The record suggests that it rained earlier in the day on the date of the accident. The land, however, was generally dry. Davis testified that, except in the |7area where she fell, the grass was dry. If the pool of water was caused by rain, and if Country Living had knowledge of this event, Country Living could be held liable for failure to warn. The record, however, is void of any suggestion that Country Living had any notice of the water pooling in this area. In the absence of notice, the fact that there was rain, standing alone, would not allow Davis to carry her burden at trial.

Country Living could also be held liable if Davis could establish that Country Living caused the pool of water by use of the faucet. Davis attempts to suggest this in her deposition, where she states that she saw an employee holding a sponge-like thing cleaning something on the ground. Her testimony on this point is minimal and vague. Davis invites this Court to conclude from the' fact that the employee had a wet sponge that the employee used the faucet in order to gather cleaning water, and that the employee allowed the water to run long enough to create the hazard. We are unable to accept this invitation.

The burden, at this point, is on Davis to present evidence that shows, more likely than not, that Country Living knew of the defect or that Country Living caused the defect. The fact that Country Living’s employee had a wet sponge, while suggestive of some possibility, is not direct evidence of use of the faucet. The use of a wet sponge, standing alone, fails to establish that Davis would be able to carry her burden at trial.

CONCLUSION

Davis raised two assignments of error. Both assignments allege that the trial court erred in granting Country Living’s motion for summary judgment. Considering that the standard of review for a motion for summary judgment is a de novo review of the record, we limit our discussion to whether the trial court properly granted Country Living’s motion.

|8We find the evidence indicates that Country Living had no notice of the allegedly dangerous condition. As such, Davis would be unable to carry her evidentiary burden at trial. Therefore, Davis has failed to raise a genuine issue of material fact vis á vis the issue of notice. We affirm the trial court’s ruling granting summary judgment. All costs of this appeal are assessed to Davis.

AFFIRMED.

GENOVESE, J., concurs in the result and assigns written reasons.

GENOVESE, J.,

concurs and assigns the following written reasons.

|,1 agree with the result of the majority opinion; however, in my view, the facts of the case trigger the merchant liability statute, La.R.S. 9:2800.6.


author: KEATY, Judge.

text:
    Christopher ATHERTON v. Anthony J. PALERMO, Sr., et al.
    No. 11-256.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 26, 2011.
    Dennis R. Sumpter, Sumpter Law Offices, APLC, Sulphur, LA, for Defendants/Appellees, Anthony J. Palermo, Sr., Palvest, Inc.
    Christopher Atherton, In Proper Person, Sulphur, LA, PlaintiffiAppellant.
   KEATY, Judge.

_JjThe plaintiff, Christopher Atherton (Atherton), appeals the trial court’s grant of summary judgment in favor of the defendant, Anthony J. Palermo, Sr. (Palermo), and the resulting dismissal of his suit. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Atherton, in proper person, filed suit against Palermo and Palvest, Inc. (Palvest) on January 11, 2010, alleging breach of a contract that had allegedly been entered into between them in early January 2000. According to the petition, Atherton and the defendants reached an oral agreement to form a production company to provide sound and lighting equipment for concerts and other events. The defendants’ attorney then prepared a written contract which required the defendants to pay Ath-erton $75,000 upon signing. Atherton was to keep all profits earned until he received $500,000, after which he and the defendants would share profits equally. The petition alleged that on or about January 7, 2000, the parties met at defense counsel’s office and signed the written contract. Atherton claimed that he was given a $75,000 check by defense counsel at that time, which he deposited into his bank account. About one week later, Atherton discovered that the defendants had stopped payment on the check. Atherton did not attach a copy of the referenced contract to his petition.

Palermo sought and was granted a thirty-day extension to file an answer. He later sought a second extension of time on the basis that he had propounded a request for production of documents on Ath-erton but had not received any answers [ ^thereto, thus preventing him from having the information necessary to answer the petition.

Palermo and Palvest filed a motion for summary judgment on July 21, 2010. Attached thereto was an affidavit signed by Palermo attesting that he was unaware of the existence of any contract between him and Atherton and that Atherton had failed to respond to Palermo’s requests for discovery seeking proof of Atherton’s allegations. A second affidavit signed by Joseph Palermo (Joseph), as president of Palvest, Inc., was also attached to the motion. Therein, Joseph stated that Palvest had not entered into any agreement or contract with Atherton other than a commercial property lease. According to Joseph, he did not have a contract with Atherton in January 2000, and he never met at a law office with Atherton. Finally, Joseph stated that Atherton had failed to answer discovery propounded to him regarding the existence of the contract referenced in this lawsuit.

The motion for summary judgment came for hearing on October 13, 2010; the defendants were represented by counsel, and Atherton appeared in proper person. At the hearing, defense counsel explained that after being granted a second extension of time within which to answer Atherton’s petition, he received a notice from the clerk of court indicating that Atherton had moved. Thereafter, he was unable to serve Atherton with any additional motions, including a motion to compel discovery that he had intended to file. Defense counsel offered four exhibits at the hearing: Joseph’s affidavit on behalf of Pal-vest; Palermo’s request for production of documents; a letter he wrote to Atherton enclosing the request for production and green certified mail card showing Atherton received same on February 18, 2010; and a notice of unserved papers regarding Ath-erton from the | sDeputy Clerk of the Fourteenth Judicial District Court, dated April 6, 2010. After pointing out that Atherton had failed to file any opposition memorandum or opposing affidavits, the defendants requested that summary judgment be granted in their favor.

Atherton explained to the trial court that he had filed “Exhibits for Summary Judgement Hearing” into the record on October 5, 2010, opposing the defendants’ motion for summary judgment. Although, as the trial court noted, Atherton included instructions that defense counsel be served with a copy of the filing, defense counsel stated that he had never been served with the documents.

The trial court informed the parties that it could not render summary judgment in the matter because the issue had not been joined due to the defendants’ failure to answer the allegations in Atherton’s petition. Thereafter, defense counsel filed a handwritten answer, in the form of general denial, into the record. Atherton then agreed in open court to waive all applicable delays, and he consented to the trial court proceeding with the motion for summary judgment on that date. In addition, after reviewing the documents previously filed by Atherton in opposition to their motion, the defendants agreed that the trial court could consider the documents in ruling upon their motion for summary judgment. Those documents included: a bank statement showing that $74,000 was deposited in Atherton’s account on January 7, 2000 and that $74,000 was withdrawn from the account on January 14, 2000 pursuant to a stop payment order; a copy of the front and back of a deposit slip showing that $74,000 was deposited to Ath-erton’s checking account of January 7, 2000; a check stub from Sumpter Law Offices, defense counsel’s law firm, indicating that a $74,000 check was written to Atherton on January 7, 2000 with notations that the check was a loan and referencing the client as International Concerts, L.L.C.

14After hearing arguments, the trial court granted summary judgment in favor of the defendants on the basis that Ather-ton “failed to provide the Court with any genuine issue of material fact to oppose the facts established by the defendants in their affidavits.” In doing so, the trial court acknowledged that while the documents submitted by Atherton showed that some money had been deposited into his bank account and that a stop payment order had later been issued regarding that deposit, Atherton had not produced a contract to contradict the affidavits submitted by the defendants denying that any such contract existed between them. A written judgment was signed on November 8, 2010, granting summary judgment in favor of Palermo and dismissing Atherton’s suit against him -with prejudice at Atherton’s cost.

Atherton timely filed a motion for devol-utive appeal. Although he failed to assert any formal assignments of error, the bases of Atherton’s appellant brief are: the trial court failed to consider his petition for damages in ruling upon the defendants’ motion for summary judgment; the trial court erred in basing its ruling “50% on the issue of prescription,” even though that issue had not been raised by the defendants; and that the defendants refused to participate in discovery resulting in “plaintiff having no discovery at all.” No jurisprudence is offered in support of any of Atherton’s allegations on appeal.

DISCUSSION

Summary judgment is a procedural tool “designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969. The procedure is favored and shall be construed to accomplish these ends.” La. Code Civ.P. art. 966(A)(2). If the motion for summary judgment and | ¡¡supporting affidavits show that there is no genuine issue of material fact, the mover is entitled to a judgment as a matter of law. La. Code Civ.P. art. 966(B).

“When a motion for summary judgment is made and supported [by affidavits made on personal knowledge], an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or otherwise ..., must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.”

La.Code Civ.P. art. 967(B). See also Johnson v. Littleton, 45,323 (La.App. 2 Cir. 5/19/10), 37 So.3d 542.

In Schultz v. Guoth, 10-343, pp. 6-7 (La.1/19/11), 57 So.3d 1002, 1006, the supreme court explained:

[Louisiana Code of Civil Procedure Article 966(C)(2) ] initially places the burden of producing evidence at the hearing on the motion for summary judgment on the mover, who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent’s case. Samaha v. Rau, 07-1726, p. 4 [ (La.2/26/08) ], 977 So.2d [880] at 883. “At that point, the party who bears the burden of persuasion at trial (usually the plaintiff) must come forth with evidence (affidavits or discovery responses) which demonstrates he or she will be able to meet the burden at trial.... Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion.” Id. (quoting Wright v. Louisiana Power & Light, 06-1181, p. 16 (La.3/9/07), 951 So.2d 1058, 1069-70).

Summary judgment was properly granted in this matter. Once the defendants supplied the trial court with affidavits supporting their claim that no contract existed between them and Atherton, they had met their burden of proof on summary judgment, and it was incumbent upon Ath-erton to produce evidence to show that such a contract did exist. Although he did produce evidence that a check had been issued to him from an account associated with defense counsel’s law firm, Atherton failed to offer any evidence to prove the existence of a contract between him and the defendants, Palermo and Palvest, as alleged in his petition.

1 (¡While the transcript from the summary judgment hearing indicates that the clerk’s office was unable to locate the record at the time of the hearing, there is no evidence to indicate that the trial court did not have access to the record before signing the judgment in this matter, which occurred twenty-two days after the hearing. The judgment stated that the trial court had reviewed the submitted affidavits and Atherton’s petition in ruling on the motion for summary judgment. In addition, it is clear from the transcript that the trial court was well aware of the allegations made in Atherton’s petition. More importantly, as mentioned previously, the law required that Atherton do more than rest upon the allegations of his pleadings in opposing the defendants’ properly supported motion for summary judgment. His insistence that a contract existed, without evidence to substantiate that assertion, was not enough to prevent the grant of summary judgment against him.

Atherton claims that the trial court erred in basing its ruling “50% on the issue of prescription.” The trial court did mention the issue of prescription at the hearing and the fact that Atherton’s nine-year-plus delay in filing this lawsuit had “compromised the ability of the other side to defend the claim that it should be dismissed for that reason.” Despite considering the foregoing, the trial court reiterated that it was also granting summary judgment due to Atherton’s failure to show that there was a “genuine issue of material fact to oppose the facts established by the defendants in their affidavits.” Summary judgment was properly granted on that latter basis, and that the notion of prescription was discussed at the hearing in no way changes the fact that defendants proved their entitlement under the law to the grant of summary judgment in their favor.

Finally, Atherton’s claim that the defendants refused to participate in discovery is totally devoid of merit. To the contrary, the evidence shows that the |7defendants answered all discovery propounded on them. Furthermore, we agree with the trial court’s statement that, because the motion before it was one for summary judgment, the information relevant to the inquiry before it was the evidence submitted in support of or in opposition to that motion, rather than with any extraneous discovery issues. The defendants filed their motion for summary judgment in July 2010, and the hearing on the motion was set for October 13, 2010. Thus, Ath-erton had ample time to file any discovery motions if he wanted to do so.

DECREE

For the foregoing reasons, we affirm the trial court’s grant of summary judgment in favor of Anthony J. Palermo, Sr. All costs of this appeal are assessed against Christopher Atherton.

AFFIRMED.

      . The attorney referred to by Atherton is the same attorney who represents the defendants in this action.

      . At the hearing on the defendants' motion for summary judgment, Atherton stated that the check given to him that date was actually written for $74,000 due to a typographical error, but that he agreed to accept that amount rather than request that the check be reissued for $75.000.

      . We are unable to determine from the record the relationship, if any, between Anthony Palermo, Jr. and Joseph Palermo.

      . Although the trial court indicated at the hearing that it would sign a summary judgment in favor of both Palermo and Palvest, the judgment presented to the trial court, which was prepared by defense counsel, only mentioned Palermo as a defendant.


author: TERRI F. LOVE, Judge.

text:
    Mary Elizabeth Embry McINTYRE v. Diane Dickhaus SUSSMAN, Wife of and David C. Sussman, Home Spec, Inc., George V. Swain, Wilkinson & Jeansonne, LLC d/b/a French Quarter Realty, and Brett Massony.
    No. 2010-CA-1281.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 26, 2011.
    Rehearing Denied Nov. 16, 2011.

      Robert E. Couhig, III, Robert E. Couh-ig, Jr., Couhig Partners, LLC, New Orleans, LA, for Defendant/Appellee.
    Peter S. Koeppel, W. Scarth Clark, Jonathan H. Adams, Chet D. Traylor, Best Koeppel & Traylor, New Orleans, LA, for Appellant, Lexington Insurance Company.
    Lloyd N. Frischhertz, Jr., Frischhertz and Associates, L.L.C., New Orleans, LA, for Defendants/Appellees, George Swain and Home Spec., Inc.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE).
   TERRI F. LOVE, Judge.

12This appeal arises from the confirmation of a default judgment against a home inspector, home inspection company, and their insurer based on the alleged negligence regarding the inspection of the plaintiffs property. We find that the plaintiff failed to sustain her burden of proof to confirm a default judgment. Therefore, we reverse the default judgment as to the alleged insurer, vacate, and remand for further proceedings consistent with this opinion. However, the answer filed by the home inspector and home inspection company was untimely and cannot be considered by this Court. Therefore, that portion of the judgment is affirmed.

FACTS AND PROCEDURAL BACKGROUND

Mary Elizabeth Embry McIntyre purchased the home of David and Dianne Sussman (“the Sussmans”), at 7608 Sycamore Street, (“the home”) for $339,000.00. Ms. McIntyre contacted a realtor, Brett Massony of Wilkinson & Jeansonne, L.L.C. d/b/a French Quarter Realty, to assist with the purchase of the home. Ms. McIntyre instructed Mr. Massony to hire an inspector to inspect the property, complete a video inspection of the sewer, inspect for termites, and secure a home warranty. Mr. Massony hired Home Spec, Inc. (“HS”) to complete the inspections.

IsGeorge Swain of HS conducted an inspection of the home. However, Mr. Mas-sony failed to obtain the requested video inspection report of the sewer. Ms. McIntyre purchased the home without the video. After purchase, Mr. Massony informed Ms. McIntyre that he failed to secure the home warranty. After moving into the property, Ms. McIntyre allegedly experienced several problems with the plumbing, air and heating, electrical wiring, and structure of the home.

Ms. McIntyre filed a verified petition for declaratory relief. Citation and petition were issued to George Swain of HS. George Swain and HS allege that when HS was served with the complaint, it was the first time either party learned that George Swain’s inspection report was allegedly deficient. George Swain and HS made a limited appearance and filed a motion for an extension, which was granted through November 5, 2007. Ms. McIntyre filed a motion for default judgment against George Swain and HS on November 14, 2007. The trial court granted a preliminary default judgment against George Swain and HS.

Subsequently, Ms. McIntyre filed a supplemental and amending petition, naming Lexington Insurance Company (“Lexington”) as the insurer of HS and alleged that Lexington provided an insurance policy “to provide a defense and indemnity pertaining to allegations against” HS. Lexington was served through the Louisiana Secretary of State a citation and copy of the supplemental petition. A preliminary default judgment was entered against Lexington stating that Lexington failed to timely filed an answer or any other responsive pleading.

During the hearing to confirm the preliminary default judgments, Ms. McIntyre testified that she hired a different inspection company, who noted discrepancies between George Swain’s inspection and the actual condition of the |4home. The only discrepancy specifically mentioned was a difference in square footage. Ms. McIntyre testified that the cost to repair the home exceeded $40,000. Ms. McIntyre estimated that she incurred $9,000 in health expenses due to the poor condition of the home. Ms. McIntyre alleged that she suffered a loss of wages as a result of not being able to work from home, as she had done for eight years prior to Hurricane Katrina. Ms. McIntyre also stated that she gave George Swain written notice of the problems she encountered with the home. The transcript of the testimony reveals that Ms. McIntyre’s attorney stated that he wanted to introduce the Lexington policy for the period from 06/25/2005 to 06/25/2006 and a Gertler Brothers Report that was done roughly a year after the purchase of the home. However, neither the Lexington policy nor the Gertler Brothers report was entered into the record or listed on the exhibit list within the transcript. The record does not contain any medical bills, nor was any testimony given, aside from that of Ms. McIntyre. Additionally, the record lacks copies of the estimates, invoices, or cancelled checks to corroborate Ms. McIntyre’s testimony.

The trial court confirmed a default judgment against George Swain and HS in the amount of $245,496.62. The trial court held that George Swain and HS were negligent in their inspection of the home, that written notice was provided to HS and George Swain during the effective term of the liability insurance provided by Lexington, and that neither George Swain nor Lexington filed a responsive pleading. Further, the trial court determined that HS, George Swain, and Lexington were aware of the lawsuit and that the actions of HS, George Swain, and Lexington caused emotional and economic damages to Ms. McIntyre. Ms. McIntyre requested service of the default judgment against Lexington, which was perfected. Lexington timely filed a motion for suspensive appeal of the final | ¡judgment, which was granted. The security deposit was set on June 28, 2010. On July 1, 2010, Lexington filed a suspensive appeal bond in the amount of $250,000. However, this Court converted Lexington’s appeal from suspensive to de-volutive.

On October IB, 2010, George Swain, a principal of HS died. His sole heir and now independent administrator and successor in interest, Dillon Swain, retained counsel to represent the interest of HS and George Swain.

MOTION TO STRIKE

HS and the estate of George Swain filed a motion to strike the reply brief of Ms. McIntyre and mistakenly alleged that she did not seek leave of this Court to file same. However, this Court granted Ms. McIntyre’s motion for leave to file a reply brief on June 1, 2011. Therefore, the motion is denied.

STANDARD OF REVIEW

In reviewing the confirmation of a default judgment, “an appellate court is restricted solely to determining whether the record contains sufficient evidence to support a prima facie cáse.” Gresham v. Prod. Mgmt, Inc., 02-1228, p. 3 (La.App. 4 Cir. 2/11/04), 868 So.2d 171, 175. “This determination is a factual one governed by the manifest error standard of review.” Arias v. Stolthaven New Orleans, LLC, 08-1111, p. 5 (La.5/5/09), 9 So.3d 815, 818. “When the court of appeal finds that a reversible legal error or manifest error of material fact was made in the trial court, the court of appeal is required to determine the facts de novo from the entire record and render a judgment on the merits.” Id.

| DEFAULT JUDGMENT AGAINST LEXINGTON

Lexington asserts that the trial court erred by confirming a default judgment against it in favor of Ms. McIntyre. Specifically, Lexington maintains that Ms. McIntyre failed to introduce proof that Lexington was the insurer of George Swain and HS. Ms. McIntyre argues that the record demonstrates that she introduced the policy. She avers that Lexington is not disputing the policy, just the introduction of the policy into the record. Ms. McIntyre asserts that Lexington is trying to circumvent the issues by utilizing a procedural technicality.

According to La. C.C.P. art. 1702(A), “[a] judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case.” Further, La. C.C.P. art. 1702(B)(2) provides that:

[w]hen a demand is based upon a delic-tual obligation, testimony of the plaintiff with corroborating evidence, which may be by affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case shall be admissible, self-authenticating, and sufficient proof of such demand. (Emphasis added.)

When a “demand is based upon a claim for personal injury, a sworn narrative report of the treating physician may be offered in lieu of his testimony.” La. C.C.P. art. 1702(D).

At a default confirmation hearing, “the rules of evidence generally apply” and “[t]he plaintiff must follow the rules of evidence even though there is no opponent.” Arias, 08-1111, pp. 7-8, 9 So.3d at 820. “ ‘[T]o prevent reversal on appeal, both the plaintiff and the trial judge should be vigilant to assure that the judgment rests on admissible evidence’ that establishes a prima facie case.” Id,., quoting George W. Pugh, Robert Force, Gerald A. Rault, Jr., & Kerry Triche, Handbook on Louisiana Evidence Law 677 (2007). “[W]hen an obligation is |7based on a writing, prima facie proof of the obligation requires introduction of the writing into evidence.” Arias, 08-1111, p. 10, 9 So.3d at 822. “‘[A] plaintiff who knows of a writing which is the principal basis for his claims must produce it when it is the best evidence of the facts at issue.’ ” Id., quoting Ascension Builders, Inc. v. Jumonville, 262 La. 519, 263 So.2d 875, 878 (1972). “There is a presumption that a default judgment is supported by sufficient evidence, but this presumption may be rebutted by the record upon which the judgment is rendered.” Arias, 08-1111, p. 8, 9 So.3d at 820.

A contract of insurance is an essential element of a plaintiffs prima fa-cie case to confirm a default judgment against an insurance company. See Arias, 08-1111, p. 10, 9 So.3d at 822; Brown v. Trinity Ins. Co., 480 So.2d 919, 920 (La. App. 2nd Cir.1985). Louisiana R.S. 22:1269 permits an injured party to pursue a direct action against the insurer within the terms and limits of the policy. The terms and conditions of the insurance policy are part of the principal basis for the claims and critical to establishing a prima facie case of the insurer’s liability. Arias, 08-1111, pp. 10-11, 9 So.3d at 822. The elements of a prima facie case are established with competent evidence that convinces the court it is probable that the plaintiff would prevail at trial on the merits. Id. at 823.

The Lexington insurance policy is the principal basis for Ms. McIntyre’s claim against the insurance carrier in securing a default judgment because Lexington’s obligation to Ms. McIntyre is based on the contract of insurance. Therefore, it is an essential element of Ms. McIntyre’s prima facie case against Lexington. Proof of insurance must be introduced into evidence. Stating that a document will be introduced does not constitute adequate proof of coverage, under La. C.C.P. art. 1702, of Lexington’s liability.

IsThe plaintiff contends that the policy was introduced into the record, yet the policy is neither included in the list of exhibits contained in the transcript, nor the record. There is also no testimony concerning the contents of the insurance policy. Thus, we cannot determine the terms of the policy or Lexington’s liability. Therefore, it is impossible to determine what, if any, direct action could have been pursued against the insurer.

We conclude Ms. McIntyre failed to sustain her burden of proof under La. C.C.P. art. 1702 for the purpose of confirming the default judgment against Lexington. Without the admission of the insurance policy into evidence at the hearing to confirm the default judgment, Ms. McIntyre did not establish a prima facie case. Finding that Ms. McIntyre did not produce proof of the insurance policy and failed to sustain her burden, discussions of causation and damages are pretermitted. Accordingly, we reverse the default judgment against Lexington and remand to the trial court for further proceedings.

DEFAULT JUDGMENT AGAINST GEORGE SWAIN AND HS

Lexington filed the appeal on its own behalf, but did not include its alleged insureds, George Swain and HS. George Swain and HS did not appeal, but filed a brief as appellees on November 17, 2010, which sought to include an answer to Lexington’s appeal and alleged that the trial court erred by confirming the preliminary default judgment against them.

Regarding an answer to an appeal, La. C.C.P. art. 2133(A) provides:

An appellee shall not be obliged to answer the appeal. unless he desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant. In such cases, he must file an answer to the appeal, stating the relief demanded, not later than fifteen days after the return day or the lodging of the record whichever is later. The answer filed by the appellee shall |3be equivalent to an appeal on his part from any portion of the judgment rendered against him in favor of the appellant and of which he complains in his answer. Additionally, however, an appellee may by answer to the appeal, demand modification, revision, or reversal of the judgment insofar as it did not allow or consider relief prayed for by an incidental action filed in the trial court. If an appellee files such an answer, all other parties to the incidental demand may file similar answers within fifteen days of the appellee’s action.

Therefore, an answer must be filed within fifteen days after the lodging of the record or return date. The present appeal was lodged with this Court on September 13, 2010. La. C.C.P. art. 2125 provides that the return day

shall be thirty days from the date estimated costs are paid if there is no testimony to be transcribed and lodged with the record and forty-five days from the date such costs are paid if there is testimony to be transcribed, unless the trial judge fixes a lesser period. The trial court may grant only one extension of the return day and such extension shall not be more than thirty days. A copy of
the extension shall be filed with the appellate court. Subsequent extensions of the return day may be granted by the appellate court for sufficient cause or at the request of the court reporter as provided in Article 2127.2.

The order granting the appeal fixed the return date “as provided by law.” Our records indicate that the original return date was September 13, 2010, and the record does not indicate that the trial court granted an extension of the return date. Therefore, an answer seeking to reverse the trial court was due no later than fifteen days after September 13, 2010. The answer of George Swain of HS was filed on November 17, 2010, after the time delay provided by law. Therefore, their answer was untimely and the assertions cannot be considered by this Court. Cottingim v. Vliet, 08-1263, p. 4 (La.App. 4 Cir. 8/12/09), 19 So.3d 26, 28; Hand v. City of New Orleans, 04-0845, p. 5 (La.App. 4 Cir. 12/22/04), 892 So.2d 609, 612.

DECREE

For the forgoing reasons, we reverse the trial court’s confirmation of a default judgment against Lexington. However, George Swain and HS’s answer was untimely and cannot be considered. Therefore, the default judgment against George Swain and HS remains confirmed. The matter is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED IN PART; AFFIRMED IN PART; MOTION DENIED

      . As previously noted, the record indicates that George Swain and HS filed for an extension of time.

      . Ms. McIntyre filed a motion to dismiss Lexington’s suspensive appeal, which this Court granted in part by converting Lexington's sus-pensive appeal to a devolutive appeal. This Court denied Lexington's application for rehearing and the Louisiana Supreme Court denied Lexington’s writ on the matter. Lexington then filed a motion to convert the devolutive appeal to an application for supervisory review, which this Court denied.

      . Dillon Swain and HS’s brief indicates that a motion for new trial was filed in the trial court on November 4, 2010, and a petition to annul the judgment was filed on November 17, 2010. Neither proceeding regarding the confirmation of the default judgment is before this Court on appeal.


author: AMY, Judge.

text:
    STATE of Louisiana v. Tony E. WASHINGTON.
    No. 11-490.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2011.

      John F. DeRosier, District Attorney, Lake Charles, LA, for Appellee, State of Louisiana.
    Karen C. McLellan, Assistant District Attorney, Lake Charles, LA, for Plaintiff Appellee, State of Louisiana.
    Edward K. Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Tony E. Washington.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS and MARC T. AMY, Judges.
   AMY, Judge.

|,The defendant was charged with simple burglary of an inhabited dwelling and obstruction of justice. After several of his pre-trial motions were denied, he entered an Alford plea to those charges. The trial court subsequently sentenced the defendant to ten years at hard labor, without the benefit of probation, parole, or suspension of sentence, for the simple burglary of an inhabited dwelling charge and two years at hard labor on the obstruction of justice charge, to run concurrently. The defendant appeals. For the following reasons, we amend his sentence for simple burglary of an inhabited dwelling. In all other respects, his convictions and sentences are affirmed.

Factual and Procedural Background

The defendant, Tony E. Washington, was arrested in connection with the burglary of a home in Sulphur, Louisiana. According to the factual recitation made by the State at the defendant’s guilty plea hearing, the defendant and two accomplices, Ronald Lazaro and Zachary England, were involved in burglarizing the home of Marcus Wade. The defendant acted as the “getaway driver,” while his two accomplices “actually went inside and did the burglary of the house and removed numerous items[J” Unbeknownst to the burglars, Mr. Wade had taken the day off work in order to prepare for his son’s birthday. He testified at the sentencing hearing that he arrived home to find two men in his home and that his house was “torn from one end to the other.” When Mr. Wade went outside to call 9-1-1, the two accomplices exited the house and one of them shot at Mr. Wade several times. Mr. Wade testified that he started running, but he fell and hurt his ankle. According to |2Mr. Wade, before he interrupted the burglary, he had seen the defendant’s car on the side of the road with the hood up, as if the defendant had car trouble.

According to the factual recitation, the defendant picked up his two accomplices and started to flee. The defendant testified at the sentencing hearing that, while they were slowed down by construction, a police car passed him, put on his lights and turned around. The State alleged that, once the police car “[got] behind them, [the defendant started] to speed up to evade the unit and objects [were] being thrown out of the vehicle as they are being chased.”

After the defendant’s arrest, he was charged with one count of simple burglary of an inhabited dwelling, a violation of La.R.S. 14:62.2, and one count of obstruction of justice, a violation of La.R.S. 14:130.1(A)(1). Among other motions, the defendant’s attorney filed a motion to sever and a motion for production of documents. Additionally, the defendant filed several pro se motions, including a motion for speedy trial and a motion to suppress. At a hearing on these motions, the trial court denied the motion to suppress and heard arguments on the motion to suppress and the motion for discovery. After a recess, the defendant informed the trial court that he wished to enter an Alford plea.

The trial court noted that, if the defendant had not decided to enter an Alford plea, he would have conducted a hearing on the motion to sever and would have required the State to disclose any evidence within fifteen days of trial. The defendant then entered a plea of guilty, pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162. Several witnesses, including the victim and the defendant, testified at the subsequent sentencing hearing. After receiving all of the evidence and the arguments of the parties, the trial court sentenced the defendant to ten years at hard labor, without the benefit of parole, probation, or suspension of sentence for the simple burglary of an Isinhabited dwelling count and two years at hard labor, to run concurrently, on the obstruction of justice count.

The defendant, through counsel, filed a motion for reconsideration, contending that the defendant’s sentence was excessive. Pro se, he also filed a “Supplemental Amendment for Additional Grounds to Motion to Reconsider Sentence.” Although a hearing date was set, no hearing was held.

The defendant appealed, and this court remanded the case for disposition of the pending motion to reconsider sentence. At a hearing, the motion was denied without reasons. The defendant then re-lodged his appeal, asserting that:

(1) The Trial Court erred in imposing an illegal sentence.
(2) The Trial Court erred in that the sentence imposed upon Tony Washington is constitutionally excessive and imposed without sufficient consideration of Art. 894.1.

Discussion

Errors Patent

In accordance with La.Code Crim.P. art. 920, this court reviews all criminal appeals for errors patent on the face of the record. Our review of the record reveals one error patent, which is also the defendant’s first assignment of error and will be discussed more fully therein.

Illegal Sentence

The defendant contends that the sentence imposed for the charge of simple burglary of an inhabited dwelling is illegal. For the charge of simple burglary of an inhabited dwelling, the trial court sentenced the defendant to ten years at hard labor, without benefit of parole, probation, or suspension of sentence. The defendant contends that only the first year of a term of imprisonment for simple burglary of an | inhabited dwelling may be imposed without benefit of parole, probation, or suspension of sentence. The State concedes that this was error.

The elements of, and punishment for, simple burglary of an inhabited dwelling are delineated in La.R.S. 14:62.2, which states:

Simple burglary of an inhabited home is the unauthorized entry of any inhabited dwelling, house, apartment or other structure used in whole or in part as a home or place of abode by a person or persons with the intent to commit a felony or any theft therein, other than as set forth in Article 60.
Whoever commits the crime of simple burglary of an inhabited dwelling shall be imprisoned at hard labor for not less than one year, without benefit of parole, probation or suspension of sentence, nor more than twelve years.

In State v. Boowell, 406 So.2d 213 (La. 1981), the supreme court held that only the first year of a sentence imposed for simple burglary of an inhabited dwelling may be without the benefit of parole, probation, or suspension of sentence.

Thus, we amend the defendant’s sentence to reflect that only the first year of his term of incarceration is without benefit of parole, probation, or suspension of sentence. See State v. Jacobs, 10-292 (La. App. 8 Cir. 10/6/10), 48 So.3d 1218. Excessiveness of Sentence

In his second assignment of error, the defendant contends that his sentence is unconstitutionally excessive and that the trial court failed to adequately rely on the sentencing factors delineated in La.Code Crim.P. art. 894.1.

Louisiana Code of Criminal Procedure Article 894.1(C) requires that the trial court state for the record the considerations taken into account and the factual basis for the sentence imposed. There is no requirement that the trial court refer to every aggravating and mitigating factor listed in Article 894.1, as long as the record indicates that the trial court adequately considered those guidelines in particularizing the defendant’s sentence. State v. Maze, 09-1298 (La.App. 3 Cir. 5/5/10), 36 So.3d 1072. If the trial court fails to adequately address the factors listed in La.Code Crim.P. art. 894.1, there is no need for re-sentencing as long as an adequate factual basis for the sentence is found in the record. State v. Williams, 02-707 (La.App. 3 Cir. 3/5/03), 839 So.2d 1095. We further note that the trial court may consider factors not listed in Article 894.1, including whether a plea bargain results in a significant reduction in the defendant’s potential sentencing exposure and criminal conduct that did not result in a conviction. Id.

In this case, Mr. Wade, the victim, testified that this crime made him feel that his safety was violated. He indicated that, when one of the defendant’s accomplices started shooting at him, he fell and hurt his ankle. According to Mr. Wade, although the ankle still hurt sometimes, he was more concerned about the resulting “emotional scars.” He testified that his two children were in counseling as a result of the burglary. Further, Mr. Wade testified that his family lost things in the burglary that could not be replaced, including his wife’s engagement ring, her class ring and his class ring.

The defendant testified at the sentencing hearing, stating that he was very sorry about the situation and Mr. Wade’s pain. However, he denied involvement in the burglary and stated that the accusations against him were “all lies.” The defendant asserted that he did not deserve the maximum because he was a good person and his family has also suffered. Two witnesses, including the defendant’s mother, testified on his behalf. Additionally, several letters of support for the defendant were filed into evidence, and the record indicates that the trial court read and considered those letters.

We note that the defendant’s prior criminal history was available to the trial court. The trial court stated that it would not count any offenses that occurred before 1993, when the defendant was a juvenile. The defendant testified that, since his conviction for distribution of cocaine in 1994, he had been “straight.” However, the | ¿record indicates that, after that conviction, the defendant pled guilty to DWI and criminal mischief. The trial court acknowledged that those convictions were misdemeanors, but expressed concern that the defendant acted like he had “never done anything.” The trial court was also concerned that, although the charges were rejected, the defendant had been charged with second-degree murder. Further, the record indicates that the trial court took into consideration that the defendant substantially reduced his sentencing exposure in exchange for his Alford plea, as the State agreed not to charge the defendant as a habitual offender.

Thus, based on our review of the record, we find that the trial court adequately considered the sentencing factors listed in La.Code Crim.P. art. 894.1.

A panel of this court, in Jacobs, 48 So.3d at 1225 (citations omitted), recently reiterated the jurisprudence concerning excessive sentence claims, stating:

An excessive sentence is a penalty that is so grossly disproportionate to the severity of the crime that it shocks our sense of justice or it makes no measurable contribution to acceptable penal goals and, therefore, is nothing more than a needless imposition of pain and suffering. The trial court is given wide discretion in imposing a sentence, and, absent a manifest abuse of that discretion, the reviewing court should not deem as excessive a sentence imposed within statutory limits. Still, a sentence that falls within the statutory limits may be excessive under the particular circumstances of a given case.... The only relevant question for the reviewing court to consider is not whether another sentence would be more appropriate, but rather whether the trial court abused its broad discretion in sentencing a defendant.

Further, “maximum sentences are reserved only for the most serious violations and the worst offenders.” Id. (quoting State v. Farhood, 02-490 (La.App. 5 Cir. 3/25/03), 844 So.2d 217). In determining whether the trial court abused its discretion in imposing a sentence, the reviewing court should also consider “the nature of the crime,” “the nature and background of the offender,” and “the sentence imposed for similar crimes by the same court and other courts.” State v. Lisotta, 98-648, p. 4 |7(La.App. 5 Cir. 12/16/98), 726 So.2d 57, 58 (citing State v. Telsee, 425 So.2d 1251 (La.1983)), writ denied, 99-433 (La.6/25/99), 745 So.2d 1183.

The sentencing range for simple burglary of an inhabited dwelling, a violation of La.R.S. 14:62.2, is one to twelve years. The sentencing range for obstruction of justice, in this case, is delineated in La. R.S. 14:130.1(B)(2) as a fine of not more than fifty thousand dollars, not more than twenty years at hard labor, or both.

As previously discussed, the record reveals that that trial court adequately considered aggravating and mitigating circumstances in fashioning the defendant’s sentence. We note that the defendant’s sentence of ten years for the crime of simple burglary of an inhabited dwelling is in the upper range. We further note that the defendant’s sentence for obstruction of justice is on the low end of permissible sentences.

With regard to the nature of the crime, the record indicates that one of the defendant’s accomplices fired multiple shots at the victim, Mr. Wade. Mr. Wade was more concerned with the resulting “emotional scars” from the incident than the injuries he sustained to his ankle while fleeing from the defendant’s accomplices. Mr. Wade also testified that both he and his children were still in counseling as a result of the burglary.

With regard to the nature and background of the offender, we note that, although the defendant testified that he had been “straight” since his conviction for distribution of cocaine in 1994, the defendant had incurred further misdemeanor convictions. Additionally, our review of similar cases indicates that reviewing courts have upheld upper-range sentences for simple burglary of an inhabited dwelling for offenders in similar circumstances to those of the defendant. See Jacobs, 48 So.3d 1218; State v. Baker, 08-898 (La.App. 3 Cir. 2/4/09), 3 So.3d 666; State v. Alsup, 42,6368 (La.App. 2 Cir. 10/24/07), 968 So.2d 1152, writ denied, 07-2252 (La.4/25/08), 978 So.2d 363, and State v. Johnson, 03-150 (La.App. 1 Cir. 9/26/03), 857 So.2d 586.

Therefore, we find that the defendant’s sentences are not unconstitutionally excessive and that the trial court did not abuse its discretion in fashioning the defendant’s sentences for simple burglary of an inhabited dwelling and obstruction of justice.

This assignment of error is without merit.

DECREE

The defendant’s sentence for simple burglary of an inhabited dwelling is amended to reflect that only the first year of his term of imprisonment is without benefit of parole, probation, or suspension of sentence. In all other respects, the defendant’s convictions and sentences are affirmed.

CONVICTIONS AFFIRMED. SENTENCE FOR OBSTRUCTION OF JUSTICE AFFIRMED. SENTENCE FOR SIMPLE BURGLARY OF AN INHABITED DWELLING AMENDED AND AFFIRMED, AS AMENDED.

      . An Alford, or "best interest,” plea derives from the United States Supreme Court case of North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970), wherein the Supreme Court held that a defendant may plead guilty while maintaining his innocence if "the plea represents a voluntary and intelligent choice among the alternative courses of action open to defendant[,] ... especially where the defendant was represented by competent counsel whose advice was that the plea would be to the defendant’s advantage."


author: GREMILLION, Judge.

text:
    STATE of Louisiana v. Bernie Gene YOUNG.
    No. 11-498.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2011.

      Paula C. Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Bernie Gene Young.
    Michael C. Cassidy, District Attorney, 31st Judicial District Court, Stacey C. Na-quin, Assistant District Attorney, 31st Judicial District Court, Jennings, LA, for Appellee, State of Louisiana.
    Court composed of OSWALD A. DECUIR, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

I,Bernie Gene Young was convicted by a jury of operating a vehicle while intoxicated, fourth offense, a violation of La.R.S. 14:98. He was sentenced to fifteen years imprisonment, with seventy-five days without the benefit of parole, probation, and suspension of sentence, and was ordered to pay a fine of five thousand dollars. His motion to reconsider the sentence was denied.

Defendant appeals his sentence. He asserts that the trial court failed to fashion a sentence particular to his admitted alcoholism and that the sentence of fifteen years was constitutionally excessive considering the offenses were caused by the disease of alcoholism.

In State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331, this court discussed the following standard to be used in reviewing excessive sentence claims:

La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

Furthermore, in State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, unit denied, 03-562 (La.5/30/03), 845 So.2d 1061, this court held that to decide whether a sentence shocks the sense of justice or makes no |2meaningful contribution to acceptable penal goals the following may be considered:

[A]n appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00), 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, 958.

Defendant was sentenced pursuant to La.R.S. 14:98(E)(l)(a), which, at the time of the commission of the offense, provided in pertinent part:

Except as otherwise provided in Sub-paragraph (4)(b) of this Subsection, on a conviction of a fourth or subsequent offense, notwithstanding any other provision of law to the contrary and regardless of whether the fourth offense occurred before or after an earlier conviction, the offender shall be imprisoned with or without hard labor for not less than ten years nor more than thirty years and shall be fined five thousand dollars. Seventy-five days of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence.

At the sentencing hearing, the trial court noted for the record, as follows:

THE COURT: All right. Mr. Young, you stand before the Court today for sentencing after having been previously found guilty by a Jefferson Davis Parish jury of the crime of driving while intoxicated, fourth offense. The Court ordered a Pre-Sentence Investigation, which has now been received and carefully studied. The Court has considered the following factors, as well as the nature of the present offense, in determining an appropriate sentence. The Court makes the following findings concerning sentencing.
The Pre-Sentence indicates that you are fifty-one (51) years of age, born on February the 20th, 1959. You are currently single, having — having never been married. You have no children. You graduated from Hathaway High School in 1978. After graduation, you worked primarily as a truck driver and laborer. Your most recent employment was with SR — SAR Protectors and Supply, an oil field supply firm in — in the area of Scott, Louisiana.
[¡¡The Pre-Sentence Investigation states that you do not have a juvenile criminal history, although you do have an adult criminal history. On July 27th, 1998, you were found guilty of driving while intoxicated, first offense, and given one (1) year of probation in Jefferson Davis Parish. On March 12, 2001, you were found guilty of driving while intoxicated, a second offense, and received a sentence of six (6) months in the parish jail in Jefferson Davis Parish. On January the 20th of 2004, you were found guilty of driving while intoxicated, third offense, and received a sentence of one (1) year with the Department of Corrections with all but thirty (80) days suspended in Cameron Parish. On May 23rd, 2006, you were found guilty of driving while intoxicated, fourth offense, and received a sentence of ten (10) years with the Department of Corrections -with all but four (4) years suspended. You were then placed on supervised probation for a period of three (3) years after your release. Your most current conviction occurred while you were still on probation.
In reviewing the Pre-Sentencing Investigation, the Court takes note of the fact that you are fifty-one (51) years of age. This has been taken into consideration in mitigating against imposition of a maximum sentence in this matter. However, the Court can find no other mitigating factors.
Your involvement in criminal activity demonstrates to the Court that you cannot live in society and that this community must be protected from you. You are certainly in need of correctional treatment in a custodial environment for a sign — for a significant period of time. Anything less would deprecate from the seriousness of your offense, would not promote respect of the law, and would not provide a just punishment for the crime of which you stand convicted. This Court has an obligation to protect the public from you and will do so by removing you from society.

Defendant points to other cases wherein the defendants had more DWI offenses than he and received lesser sentences. In State v. Presson, 43,215 (La.App. 2 Cir. 6/4/08), 986 So.2d 843, the defendant had ten prior arrests or convictions for DWI. The current conviction was his second fourth conviction. He was originally sentenced to fifteen years imprisonment pursuant to La.R.S. 14:98(E)(4)(b), which provides, in pertinent part:

If the offender has previously received the benefit of suspension of sentence, probation, or parole as a fourth offender, no part of the sentence may be imposed with benefit of suspension of sentence, probation, or parole, and no portion of the sentence shall be imposed Uconcurrently with the remaining balance of any sentence to be served for a prior conviction for any offense.

The defendant in Presson argued the fifteen-year sentence was excessive considering that his emotional state resulted in his alcoholism. The second circuit noted:

Prior to imposing sentence, the trial court reviewed the facts of the instant offense and defendant’s extensive criminal history, including more than ten pri- or arrests and/or convictions for DWI. See also, State v. Presson, 39,688 (La. App. 2d Cir. 4/6/05), 900 So.2d 240 (in affirming this defendant’s prior DWI fourth offense conviction, this court noted that “defendant had a predisposition to commit the offense of driving while intoxicated” based on his prior criminal record). Indeed, he was on probation for DWI, fourth offense, when the instant offense was committed. The record shows that defendant previously underwent evaluation and treatment for substance abuse in Suit No. 225,931 (see, State v. Presson, supra), contrary to his contention here, but that did nothing to preclude his commission of this offense. The trial judge noted that defendant had received a “series of breaks” over the past twenty years, but he has continued to drink and drive. Considering these factors, and notwithstanding defendant’s request to consider his emotional state as a mitigating factor, the trial court concluded he was in need of incarceration, that a lesser sentence would deprecate the seriousness of the offense, and that these circumstances were likely to recur based upon his habitual intemperate conduct.
The trial court originally sentenced defendant to fifteen years at hard labor concurrent with any other sentence he was then serving. After reconsideration at the behest of both parties, defendant’s sentence was reduced to twelve years at hard labor but made to run consecutively to any other sentence he was serving, as required by La.R.S. 14:98(E)(4)(b) (the record confirms that defendant previously received the benefits of suspension of sentence and probation as a DWI fourth offender.)
Considering this defendant’s prior DWI fourth offense conviction (to say nothing of his other DWI multiple offense convictions) and the fact that the defendant was on probation when he committed this offense, the sentence imposed in this case is not constitutionally excessive. See, State v. Masters, 37,967 (La.App. 2 Cir. 12/17/03), 862 So.2d 1121. In terms of prison time, the defendant’s sentence barely exceeds the statutory minimum mandated in this case. On this record, nothing about this sentence shocks the sense of justice. This assignment is therefore without merit.

Id. at 851.

|fiDefendant also offered State v. McDonald, 33,013 (La.App. 2 Cir. 3/1/00), 754 So.2d 382, to support his position. The defendant received ten years imprisonment for his second fourth DWI, had been arrested thirteen times for DWI, and had a felony drug offense involving Quaaludes. The second circuit also noted that he had “a conviction for unauthorized entry of an inhabited dwelling and issuance of worthless cheeks in a middle grade felony amount, possession of mari[ju]ana, and while on probation for two separate DWI fourth convictions, there were additional allegations of misuse of the telephone and making harassing phone calls, as well as simple battery.”

However, a further review of the cases of similarly situated offenders shows that fifteen years or more for a fourth DWI offense is common in Louisiana. In State v. Minnifield, 31,527 (La.App. 2 Cir. 1/20/99), 727 So.2d 1207, writ denied, 99-516 (La.6/18/99), 745 So.2d 19, the second circuit did not find a fifteen-year sentence excessive. The defendant had five previous DWI convictions from two states. The trial court noted that the defendant did not show any remorse and had driven drunk while under suspended license, indicating that he was likely to repeat this course of conduct.

In State v. Holloway, 10-74 (La.App. 3 Cir. 10/6/10), 47 So.3d 56, this court affirmed a twenty-two-year sentence for a fourth-offense conviction. The defendant had seven prior DWI convictions and was on probation from the previous conviction when he was arrested for the current offense. In another case, the first circuit affirmed a fifteen-year sentence for the fourth conviction for DWI, noting that the young offender had four prior convictions over a six-year period. State v. Turner, 00-630 (La.App. 1 Cir. 12/22/00), 779 So.2d 906.

Finally, in State v. Swayzer, 43,350 (La. App. 2 Cir. 8/13/08), 989 So.2d 267, unit denied, 08-2697 (La.9/18/09), 17 So.3d 388, the second circuit affirmed a | ^twenty-year sentence. The defendant had a lengthy history of DWI arrests and convictions. The trial court noted his lack of recognition that he had a problem and the danger he posed to other drivers.

Clearly, the trial court adequately considered the mitigating and aggravating factors in this case as required by La.Code Crim.P. art. 894.1. Defendant was on probation for his first fourth offense when the current offense occurred and had been given several chances to address and treat his alcoholism. The sentence is not grossly disproportionate to the crime. It does not equate to needless imposition of pain and suffering. There is no indication the trial court abused its vast discretion when it sentenced Defendant to fifteen years at hard labor for the offense of operating a vehicle while intoxicated, fourth offense.

SENTENCE AFFIRMED.