author: ROLAND L. BELSOME, Judge.

text:
    STATE of Louisiana in the Interest of R.H.
    No. 2011-CA-1297.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 4, 2012.

      Tenee Felix, Juvenile Regional Services, New Orleans, LA, for Appellant.
    Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appellee.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET).
   ROLAND L. BELSOME, Judge.

|) This appeal challenges the judgment adjudicating R.H. delinquent of one count simple assault and one count simple battery. For the reasons that follow we vacate in part and affirm.

On the evening of February 9, 2011, the police were called to the home of Ms. Shantell Hampton. Ms. Hampton claimed that earlier her son, R.H. and daughter, Robertnique had gotten into an altercation. At that time, she summoned both children into her bedroom and reprimanded them for fighting. Then, R.H. began to talk back and argue with his mother, refuting his sister’s account of the incident. In an attempt to discipline R.H., Ms. Hampton followed R.H. out of her bedroom armed with an extension cord. As R.H. retreated to his bedroom, Ms. Hampton began hitting him with the extension cord. R.H. managed to take the extension cord away from his mother who then began hitting him with her fists. Next, R.H. grabbed his mother by the wrists and pushed her on the bed.

During the police officers’ investigation, R.H. explained that he and his sister had gotten into a fight. Robertnique claimed that R.H. was the aggressor and Rhe hit her without provocation. R.H. claimed that she hit him first and he retaliated. That was when she yelled to her mother and both children were called into the bedroom.

After hearing the testimony of the investigating officer, Ms. Hampton, R.H., and Robertnique, the judge found sufficient evidence to adjudicate R.H. delinquent on one count simple battery against his sister and one count simple assault against his mother. The judge entered a disposition of commitment to the Department of Public Safety for a period of ninety days for the simple battery and six months for the simple assault to run consecutively.

On appeal R.H. contends that the evidence was insufficient to adjudicate him of the charges and alternatively, that the sentences were excessive because they were to run consecutively.

R.H. was originally charged with two counts of domestic abuse battery, a violation of LSA-R.S. 14:35.3. After hearing the testimony of the witnesses, the judge determined that the evidence was sufficient to establish one count of simple battery and one count of simple assault.

|oOn appellate review, the evidence will be deemed sufficient if it establishes each and every element of the crime beyond a reasonable doubt. When the sufficiency of the evidence is challenged in a juvenile delinquency case, the scope of review extends to the law and the facts. State in the Interest of Batiste, 367 So.2d 784, 788 (La.1979); State in Interest of D.M., 11-0462 (La.App. 4 Cir. 11/2/11), 80 So.3d 18; State in the Interest of T.H., 2010-0962 (La.App. 4 Cir. 11/24/10), 52 So.3d 275; State in the Interest of D.R., 2010-0405 (La.App. 4 Cir. 10/13/10), 50 So.3d 927. Therefore, this Court applies the manifest error/clearly wrong standard of review to the juvenile court judge’s determinations. See Id.

On the first count, the judge found that the State made the requisite showing to prove that R.H. committed simple battery against his sister. Simple battery is the intentional use of force or violence committed without the consent of the victim. La. R.S. 14:35.

At trial, Robertnique testified that R.H. began harassing her and calling her names as soon as she got home from school. While she was in the kitchen on the phone she claimed that R.H. said, “I’ll punch you in your back.” She replied, “do it” and he did. Robertnique immediately went to her mother’s bedroom to inform her of what had happened.

When R.H. took the stand, he testified that he was on the computer when his sister arrived home from school. He claims that as soon as Robertnique walked in she said “I’m about to come up by the computer.” R.H. told her, “you better go ahead”, but she kept moving towards him. Robertnique tried to unplug the computer, but R.H. stopped her. According to R.H., Robertnique then unplugged a |4lamp and swung it at him. Then he hit her. He stated that Robertnique ran to their mother’s bedroom after he hit her.

Although the account of the events leading up to R.H. hitting his sister differs, it is undisputed that the hitting occurred. R.H. suggests that by his sister saying “do it” she was giving him consent and therefore the incident does not meet the definition of a simple battery. However, we do not find that Robertnique consented to the hitting. When, as here, there is conflicting testimony about factual matters, and the factfinder makes a credibility determination, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 94-1895 (La.App. 4 Cir. 9/15/95), 661 So.2d 1078. It is not the function of this Court to assess credibility or reweigh the evidence. State v. Rosiere, 488 So.2d 965 (La.1986). Thus, we find the record supports the juvenile court judge’s adjudication on the simple battery charge.

In order for the State to prove the charge of simple assault against Ms. Hampton, it must establish that R.H. attempted to commit a battery, or intentionally placed his mother in apprehension of receiving a battery. La. R.S. 14:36. Based on the testimony of both R.H. and Ms. Hampton, R.H. never attempted to strike Ms. Hampton. He grabbed her fists as she was punching him in the face and pushed her away from him and onto the bed. The testimony establishes that R.H. simply stopped his mother from beating him, first with an electrical cord and then with her fist. La. R.S. 14:19 allows for the use of force against a person when committed for the purpose of preventing a forcible offense, |fiso long as the force in reasonable and necessary. Under these circumstances we find that R.H. used a reasonable amount of force to protect himself.

A review of the law and the facts in this matter do not support the juvenile court judge’s adjudication of R.H. for simple assault. This Court therefore finds that the judge’s adjudication of R.H. for simple assault is manifestly erroneous. Accordingly, R.H.’s adjudication and sentence for the simple assault are hereby vacated.

In sum, R.H.’s adjudication and disposition for simple assault is vacated and his adjudication and disposition for simple battery is affirmed.

VACATED IN PART AND AFFIRMED

      . LSA-R.S. 14:35.3, Domestic abuse battery reads in pertinent part:
      A. Domestic abuse battery is the intentional use of force or violence committed by one household member upon the person of another household member.
      ⅜ ⅝ ⅝ 5⅜ ⅜ ⅜
      C. On a first conviction, notwithstanding any other provision of law to the contrary, die offender shall be fined not less than three hundred dollars nor more than one thousand dollars and shall be imprisoned for not less than thirty days nor more than six months. At least forty-eight hours of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence. Imposition or execution of the remainder of the sentence shall not be suspended unless either of the following occur:
      (1) The offender is placed on probation with a minimum condition that he serve four days in jail and participate in a court-approved domestic abuse prevention program, and the offender shall not own or possess a firearm throughout the entirety of the sentence.
      (2) The offender is placed on probation with a minimum condition that he perform eight, eight-hour days of court-approved community service activities and participate in a court-approved domestic abuse prevention program, and the offender shall not own or possess a firearm throughout the entirety of the sentence.

      . La. R.S. 14:36 provides a definition for assault, while La. R.S. 14:38 states that a simple assault is an assault committed without a weapon.

      . La. R.S. 14:19 — Use of force or violence in defense.


source: Caselaw Access Project

author: JAMES F. McKAY III, Judge.

license: Public Domain

text:
    John POULLARD v. Lester ST. AMANT and Louisiana State Board of Medical Examiners.
    No. 2011-CA-0958.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 4, 2012.

      John Poullard, Angola, LA, Appellant/In Proper Person.
    Ralph H. Wall, Adams & Reese, New Orleans, LA, for Defendants/Appellees.
    (Court composed of Judge JAMES F. McKAY III, Judge TERRI F. LOVE, Judge DANIEL L. DYSART).
   JAMES F. McKAY III, Judge.

hln this case, which stems from a medical malpractice action, the plaintiff, John Poullard, appeals the trial court’s maintaining of an exception of no cause of action in favor of the defendant, the Louisiana State Board of Medical Examiners. We affirm.

FACTS AND PROCEDURAL HISTORY

John Poullard is a prisoner at Angola State Penitentiary. While at Angola, Mr. Poullard was treated by Dr. M. Pittman for some type of stomach ailment. Mr. Poullard alleged that Dr. Pittman failed to follow up on his treatment and as a result certain complications developed. Therefore, he brought a medical malpractice action against Dr. Pittman. Dr. Pittman filed a motion for summary judgment. In support of the motion, Dr. Pittman supplied the affidavit of Dr. Jo Ann Alley to establish that he did not breach the standard of care. The trial court granted Dr. Pittman’s motion for summary judgment and Mr. Poullard’s action against him was dismissed.

| gDuring the pendency of his medical malpractice case, Mr. Poullard filed a complaint with the Louisiana State Board of Medical Examiners alleging that Dr. Alley violated the Louisiana Medical Practice Act, La. R.S. 37:1261 et seq., by filing an improper affidavit. The Board concluded there was no evidence of a violation of the Medical Practice Act.

On September 24, 2008, Mr. Poullard filed suit against the Board and Lester St. Amant, a Board employee. Mr. Poullard alleged that that he suffered damages because the Board did not intercede on his behalf and force Dr. Alley to change her affidavit to something favorable to his position. In response, Mr. St. Amant and the Board filed an exception of no cause of action. Thereafter, Mr. Poullard filed several amended and supplemental petitions. On April 12, 2010, the trial court overruled the exception as to the board. The Board then filed a motion for new trial on the overruling of the exception of no cause of action. All of the defendants filed additional exceptions to Mr. Poullard’s supplemental and amended petition. The motion and exceptions were heard on June 25, 2010. On August 30, 2010, the trial court sustained the exceptions of no cause of action as to all defendants. This judgment was not appealed.

Prior to the August 30, 2010 judgment, Mr. Poullard filed several more supplemental and amending petitions to which the defendants filed additional exceptions. These exceptions were heard on October 20, 2010 and the trial court granted the exceptions as to all defendants on November 17, 2010. The trial court’s November 17, 2010 judgment stated that “all supplemental and amended |,^petitions filed by Plaintiff, John Poullard are DISMISSED with Prejudice.” Mr. Poullard did not file a motion for a new trial or appeal from this judgment.

On November 23, 2010, Mr. Poullard filed another supplemental and amended petition. In response, the defendants again filed an exception of no cause of action. A hearing on the exception was held on January 28, 2011 and the trial court sustained the exception on April 12, 2011. On May 5, 2011, Mr. Poullard filed a notice of appeal as to this judgment.

DISCUSSION

On appeal, Mr. Poullard complains about the trial court’s judgments of August 30, 2010; November 17, 2010; and April 12, 2010. Mr. Poullard did not file a motion for a new trial or a notice of appeal as to the judgments of August 30, 2010 or November 17, 2010. The dismissal of a case based upon a peremptory exception of no cause of action is a final judgment and failure to appeal creates a legal bar to any further action. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1239 (La.1993). Accordingly, the only judgment before this Court is the trial court’s April 12, 2010 judgment, which granted the defendants’ exceptions of no cause of action.

In review of a trial court’s sustaining of an exception of no cause of action, the appellate court should undertake a de novo review. City of New Orleans v. Board of Comm’rs, 93-0690 (La.7/5/94), 640 So.2d 237; Hoskin v. Plaquemines Parish Govt., 98-1825 (La. App. 4 Cir. 8/4/99), 743 So.2d 736. The function of the peremptory exception of no cause of action is to determine whether the petition sufficiently 14alleges grievances for which the law affords a remedy. Rutledge v. Hibernia Corp., 2000-0674, pp. 1-2 (La. App. 4 Cir. 1/16/02), 808 So.2d 765, 766. The mere conclusions of the pleader unsupported by facts does not set forth a cause of action. Milling, Benson, Woodward, Hillyer, Pierson and Miller L.L.P. v. American Marine Holding Co., 98-1462 (La.App. 4 Cir. 3/3/99), 729 So.2d 139.

In the instant case, Mr. Poullard fails to sufficiently allege grievances for which the law affords a remedy. His mere conclusions and opinions do not set forth any factual or legal basis for a cause of action against the Board or the other defendants.

The Board and its employees are immune from liability for its actions and the performance and exercise of their duties, powers and functions. La. R.S. 37:1287 A provides:

There shall be no liability on the part of and no action for damages against any member of the board, or its agents or employees, or any member of an examining committee of physicians appointed or designated by the board, for any action undertaken or performed by such person within the scope of the duties, powers, and functions of the board or such examining committee as provided for in this Part when such person is acting without malice and in the reasonable belief that the action taken by him is warranted.

La. R.S. 37:1287 A.

Statutory immunity from liability for damages provides a basis to dismiss a cause of action through an exception of no cause of action. See Freeman v. State, 2007-1555 (La.App. 4 Cir. 4/2/08), 982 So.2d 903. In that ease, this Court upheld a dismissal through an exception of no cause of action, utilizing the immunity provision of the Homeland Security and Emergency Assistance and Disaster Act. The immunity provision of the Medical Practice Act equally applies in this case. |BMr. Poullard did not plead any facts that demonstrate that the Board or its employees or agents acted with malice toward him or undertook some intentional act to harm him. Without factual allegations to establish malice or unreasonableness, Mr. Poullard cannot avoid the immunity provision of the Medical Malpractice Act for the Board and its employees. Accordingly, Mr. Poullard’s claims against the defendants were properly dismissed.

CONCLUSION

For the above and foregoing reason, we affirm the judgment of the court below.

AFFIRMED


author: MADELEINE M. LANDRIEU, Judge. BONIN, J.,

text:
    STATE of Louisiana v. Eric HILL.
    No. 2011-KA-0683.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 4, 2012.

      Leon A. Cannizzaro, Jr., District Attorney, Brad Scott, Assistant District Attorney, New Orleans, LA, for State Of Louisiana.
    Justin Caine Harrell, New Orleans, LA, for Eric Hill.
    (Court composed of Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN, Judge MADELEINE M. LANDRIEU).
   MADELEINE M. LANDRIEU, Judge.

hThe defendant, Eric Hill, pled guilty as charged in Criminal District Court to one count of Distribution of a Controlled Dangerous Substance in violation of La. R.S. 40:967 and to a Multiple Offender Bill of Information as a second felony offender. Mr. Hill filed the instant appeal from the trial court’s denial of his Motion to Correct Illegal Sentence. The State filed a Motion to Dismiss the appeal as untimely filed and as the improper vehicle to challenge the denial of this motion.

PROCEDURAL HISTORY

On August 3, 2000, Mr. Hill was charged with distribution of cocaine. He pled not guilty at arraignment on August 9, 2000. After receiving a copy of the police report, Mr. Hill withdrew all motions on September 6, 2000. On September 25, 2000, he appeared for trial and pled guilty as charged.

On that same day, the trial court sentenced Mr. Hill to fifteen years at hard labor while ordering that the first five years be served without benefit of probation, parole, or suspension of sentence. The State then filed a multiple offender bill of information alleging that Mr. Hill was a second felony offender. Mr. Hill admitted to being one and the same person previously convicted of a felony in case 370-073 |2“I.” The court then found him to be a second felony offender, vacated the previously imposed sentence, and sentenced the defendant under the provisions of La. R.S. 15:529.1.

There is a discrepancy between the Commitment Order and the minute entry of September 25, 2000. According to the Commitment Order, the defendant was sentenced to fifteen years at hard labor with the first five years being imposed without the benefit of probation, parole, or suspension of sentence. The September 25, 2000 minute entry states that the court sentenced the defendant under the provisions of La. R.S. 15:529.1 to ten years at hard labor with the first five years being imposed without benefit of probation, parole, or suspension of sentence. Despite this court’s attempt to procure a transcript of the sentencing hearing, none exists. The court reporter’s notes, audiotapes or transcriptions from the proceedings were lost as a result of Hurricane Katrina.

On March 8, 2002, the trial court issued a “corrected September 25, 2002 minute entry.” The corrected entry and the original entry are identical except that the corrected entry reflects that the trial court sentenced the defendant under the provisions of La. R.S. 15:529.1 to fifteen years at hard labor (instead of ten years), with the first five years being imposed without the benefit of probation, parole, or suspension of sentence.

On June 26, 2008, the defendant filed a pro se Motion to Correct Illegal Sentence. He alleged that on September 25, 2000, he was actually sentenced to ten years at hard labor and that the sentence was imposed in exchange for a |3bargained-for guilty plea. He argued that the corrected minute entry amounts to a surreptitious enhancement of his sentence.

No action was taken on this motion until counsel for the defendant made an appearance on May 10, 2010 and subsequently filed a supplemental memorandum of law. The trial court then took the matter under advisement. On August 31, 2010, the court denied the defendant’s motion and signed a judgment to that effect. The trial court found that the defendant had been originally sentenced to ten years at hard labor, but on March 8, 2002, the trial court had corrected the minute entry in order to “comply with a nondiscretionary sentencing requirement.” The court found that the defendant’s constitutional rights had not been violated. This judgment is now before us on appeal. Despite the absence of the transcript of September 25, 2000, for the reasons that follow, we find that the record is sufficiently complete and supports a finding that the trial court did not err in denying the defendant’s Motion to Correct Illegal Sentence.

MOTION TO DISMISS APPEAL

After the parties’ briefs were filed, the State filed a motion to dismiss the appeal arguing that no appeal lies from a motion to correct an illegal sentence. This argument has merit. The denial of a motion to correct an illegal sentence is not an appealable judgment. However, it is the custom of this Court to convert an | improperly filed appeal to a writ. State v. Hutchinson, 99-0084 (La.App. 4 Cir. 5/17/2000), 764 So.2d 1139; La.C.Cr.P. arts. 912, 930.6.

Accordingly, the State’s motion to dismiss is hereby denied and the defendant’s appeal is converted to a writ.

ASSIGNMENTS OF ERROR

The defendant alleges that the trial court erred in denying his Motion to Correct Illegal Sentence. He argues that to the extent his sentence was impermissibly low, it was in exchange for a bargained-for plea agreement. He further argues that the corrected minute entry failed to conform to the provisions of La. R.S. 15:301.1 because it occurred more than 180 days after the sentence was imposed.

The defendant’s arguments fail to acknowledge the existence of the Commitment Order, which was executed by the minute clerk and signed by the trial court on September 25, 2000, the day the defendant was sentenced. The Commitment Order sets forth the judgment of the trial court and clearly provides that the defendant was sentenced to fifteen, not ten, years of incarceration as a habitual offender. Moreover, the provisions of the multiple bill statute under which the defendant was sentenced show unequivocally that the September 25th minute entry contained an error. That statute,' La. R.S. 15:529.1(A)(1), provides | .d'or a minimum sentence of fifteen years under the circumstances presented in this case. The original minute entry did not accurately reflect the sentence actually imposed on September 25, 2000, and if it had remained unchanged, it would have been an illegally lenient sentence pursuant to R.S. 15:529.1. Therefore, the March 8, 2002 minute entry merely corrected the trial court’s previous mistake.

The defendant argues that the ten-year sentence was imposed pursuant to a bargained-for plea agreement. On this issue, the burden of proof rests with the defendant. State v. Davis, 41,430 (La.App. 2 Cir. 11/1/06), 942 So.2d 652. There is simply no evidence in the record to support this allegation.

The “waiver of constitutional rights plea of guilty” form signed by the defendant, his attorney, and the trial judge, reflects that the defendant acknowledged that he could receive a sentence of five to thirty years. The executed waiver also contains the notation “No more than a double bill,” which is initialed by the defendant’s attorney. Accordingly, as per the common parlance of the notation, the only terms of the defendant’s plea agreement, if one existed, were that the multiple offender bill of information not allege anything more than that the defendant was a second felony offender. The defendant does not present any evidence to suggest the existence of a plea bargain with any different terms.

This court takes note that the pertinent language of La. R.S. 15:529.1(A)(1) is quite clear.

A. Any person who, after having been convicted within this state of a felony ... thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:
Ifil. If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction.

Therefore, because La. R.S. 15:529.1(A)(1) mandates a sentence of no less than fifteen years and no more than sixty years for this particular defendant, who is a second felony offender, a sentence of ten years would be an illegal sentence.

Finally, the defendant argues that his sentence contravenes La. R.S. 15:301.1, which provides as follows:

A. When a criminal statute requires that all or a portion of a sentence imposed for a violation of that statute be served without benefit of probation, parole, or suspension of sentence, each sentence which is imposed under the provisions of that statute shall be deemed to contain the provisions relating to the service of that sentence without benefit of probation, parole, or suspension of sentence. The failure of a sentencing court to specifically state that all or a portion of the sentence is to be served without benefit of probation, parole, or suspension of sentence shall not in any way affect the statutory requirement that all or a portion of the sentence be served without benefit of probation, parole, or suspension of sentence.
B. If a sentence is inconsistent with statutory provisions, upon the court’s own motion or motion of the district attorney, the sentencing court shall amend the sentence to conform to the applicable statutory provisions. The district attorney shall have standing to seek appellate' or supervisory relief for the purpose of amending the sentence as provided in this Section.
C. The provisions of this Section shall apply to each provision of law which requires all or a portion of a criminal sentence to be served without benefit of probation, parole, or suspension of sentence, or of any one of them, any combination thereof, or any substantially similar provision or combination of substantially similar provisions.
D.Any amendment to any criminal sentence as authorized by the provisions of this Section shall be completed within one hundred eighty days of the initial sentencing.

The defendant contends that the corrected minute entry violated this statute by amending his sentence more than 180 days after it was entered. This argument 17misapplies the law. By its own terms, the provisions of La. R.S. 15:301.1 apply only to sentencing provisions that affect the manner in which the sentence is to be served. Moreover, the defendant’s argument relies on the perception that the corrected minute entry amended his sentence. As we have noted, this perception is wrong because the corrected minute entry did not amend the defendant’s sentence; it accurately reflected the defendant’s sentence of fifteen years at hard labor, with the first five years to be served without benefit probation, parole, or suspension of sentence.

CONCLUSION

For the foregoing reasons, the State’s motion to dismiss the defendant’s appeal is denied. The appeal is converted to a writ. The writ application is denied.

AFFIRMED

BONIN, J.,

dissents with reasons.

|J respectfully dissent.

On August 31, 2010, in connection with the district judge’s oral ruling denying Mr. Hill’s motion to correct illegal sentence, the district judge also filed into the record his written reasons (which are undated). The district judge state that Mr. Hill “was originally sentenced to serve ten years in the Department of Corrections.” He also found that “[o]n March 8, 2002, the minute entry reflects that the trial court amended defendant’s sentence to impose an additional five years.” The district judge correctly concluded that the original sentence of ten years imposed by his predecessor judge was “illegally lenient.”

The issue, then, is whether the predecessor judge could correct an illegal sentence by merely amending the minute entries to show that the mandatory minimum sentence of fifteen years (with five years to be served without benefit of parole, probation or suspension of sentence) has been imposed. Because the ten-year sentence in this case is illegal, it may be corrected at any time. See La. C.Cr.P. art. 882. The presence of the defendant, however, is required at the rejsentencing.2 “In felony cases the defendant shall always be present when sentence is pronounced.” La. C.Cr.P. art. 835(emphasis added).

Here, the predecessor district judge attempted to correct the illegal sentence in the absence of the defendant, Mr. Hill. The remedy is to pronounce the legal sentence in Mr. Hill’s presence. “If a sentence is improperly pronounced in the defendant’s absence, he shall be resentenced when his presence is secured.” La. C.Cr.P. art. 835. Because a legal sentence has never been pronounced in Mr. Hill’s presence, I would grant Mr. Hill’s converted writ application and remand for resen-tencing to a legal sentence in his presence.

      . The defendant waived all legal delays.

      . The minute entry issued on March 8, 2002 is clearly a correction of the September 25, 2000 minute entry even though it is styled "September 25, 2002.”

      .A copy of the motion is not included in the record. As per defendant's appeal counsel, the location of the motion is the subject of an on-going search by the Clerk of Court. By order, defendant's appeal counsel was granted leave to file a certified copy of defendant's original motion without further order of the Court. Although defendant’s appeal counsel admits possessing a Xerox copy of defendant’s original motion, counsel did not move to supplement the appeal record with this copy.

      . It should be noted that the current judge was not the presiding judge of Section "J” either at the time the plea was entered or when the corrected minute entry was executed.

      . Under the Habitual Offender Statute, a conviction as a second felony offender shall carry a sentence of imprisonment "for a determinate term not less than one-half the longest term and not more than twice the longest prescribed for a first conviction.” La. R.S. 15:529.1 A(2)(a). Distribution of cocaine is punishable by imprisonment at hard labor for not less than two years nor more than 30 years, with the first two years being without benefit of parole, probation, or suspension of sentence. La. R.S. 40:967 B(4)(b). As such, the defendant, having been found to be a second-felony offender, was subject to imprisonment for no less than 15 years at hard labor.

      .La.C.Cr.P. art. 912 provides in pertinent part:
      A. Only a final judgment or ruling is appealable.
      C. The judgments or rulings from which the defendant may appeal include, but are not limited to:
      (1) A judgment which imposes sentence;
      (2) A ruling upon a motion by the state declaring the present insanity of the defendant;
      La.C.Cr.P. art. 930.6 provides:
      The petitioner may invoke the supervisory jurisdiction of the court of appeal if the trial court dismisses the application or otherwise denies relief on an application for post conviction relief. No appeal lies from a judgment dismissing an application or otherwise denying relief.

      . A commitment order acts as the warrant and authority for the execution of a defendant’s sentence.

      . See La. R.S. 15:529.1(A)(1), quoted infra. and accompanying discussion.

      . The record is silent as to defendant’s previous convictions, if any, other than the one conviction noted in the multiple bill.

      . Notably, the district judge did not find that the original minute entry was merely a clerical error. Mr. Hill had identified the discrepancy in the minute entry almost ten years ago and has been thwarted in his efforts to obtain a transcript of his guilty plea and sentencing (Long before the court-reporter’s notes were lost in Katrina) despite his claims that there existed an agreement for a sentence not to exceed ten years.

      . The issue of whether the legal sentence of fifteen years exceeds the plea agreement such that Mr. Hill would be entitled to the setting aside of his guilty plea is not properly before us at this time.


author: EZELL, Judge.

text:
    OUPAC, INC. d/b/a Oupac Financial Services v. India Renee SAM, et ux.
    No. CA 11-1495.
    Court of Appeal of Louisiana, Third Circuit.
    April 4, 2012.

      Michael D. Bass, Guglielmo, Lopez, Tuttle, Hunter & Jarrel, LLP, Opelousas, LA, for Plaintiff/Appellee, Oupac, Inc., d/b/a Oupac Financial Services.
    Ladonte A. Murphy Opelousas, LA, for Defendants/Appellants, India Renee Sam, Elton Sam, Jr.
    Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

_JjIn this matter, India and Elton Sam appeal the decision of the trial court finding them liable to Oupac Financial Services in the amount of $8,208.29 plus interest. For the following reasons, we hereby affirm the decision of the trial court.

On August 21, 2006, the Sams purchased a vehicle from Creswell Automotive, executing a purchase agreement for the car. The purchase was financed by Oupac and secured by a promissory note on the vehicle. Oupac paid Creswell $14,309.54, and the Sams received their vehicle. Oupac was not affiliated, owned by, or even at the same location as Creswell. In fact, the Sams left the Creswell lot to go to Oupac to secure financing. Sometime after 2006, the Sams’ vehicle began to have mechanical problems. After several attempts to repair the vehicle, the Sams decided it was not worth the expense and surrendered the vehicle to Oupac after failing to make payments for multiple months. Oupac sold the vehicle and instigated the current litigation to recover the remaining amount owed on the vehicle. After trial on the merits, the trial court ruled that, despite the obvious flaws with the vehicle, the Sams could not introduce parol evidence as to the consideration for the promissory note and found that they owed Oupac $8,208.29 plus interest for the debt remaining on the vehicle. From this decision, the Sams appeal.

The Sams assert three assignments of error on appeal. They claim that the trial court erred in finding that there was no failure of consideration as to the promissory note; that the trial court erred in failing to consider parol evidence as to what the Sams believed was the consideration or cause as to the promissory note; and that the trial court erred in failing to order the promissory note unenforceable. Because the first and third are so similar and related, we will address them together.

The Sams first claim that the trial court erred in failing to declare the promissory note was unenforceable for a lack of consideration. For this |2proposition, they cite Courtesy Financial Services, Inc. v. Hughes, 424 So.2d 1172 (La.App. 1 Cir.1982), for the proposition that failure of consideration is a defense to Oupac’s action as they claim Oupac does not have the rights of a holder in due course. We disagree.

Courtesy is clearly distinguishable from the case in hand in that the seller of the vehicle and the loan officer writing the promissory note were the same person, meaning that there was no way for the promissory note holder to not know of any defects in the vehicle. Here, the vehicle seller, Creswell, and the financer, Oupac, were completely separate entities with no ties at all. Oupac in no way was connected to the purchase agreement signed between the Sams and Creswell and in no way guaranteed or warranted the vehicle the Sams purchased. Simply put, the Sams entered into two separate and distinct bilateral contracts, each with independent obligations, causes, and considerations, only one of which is contested here.

In a suit on a promissory note by a payee against the maker, the plaintiff will be given the presumption that the instrument was given for value received unless the maker casts doubt upon the consideration. Brashears v. Williams, 294 So.2d 246 (La.App. 1 Cir.1974). In this matter, consideration was given the Sams in the form of $14,309.54 paid to Creswell. The working vehicle the Sams sought was the consideration for the purchase agreement signed with Creswell, and any action they have would be against them, and would not serve as a defense against Oupac’s claims, who neither knew nor could have known of any defenses the Sams may have had to the note at the time of the making of the instrument. Thus, as holder in due course of the promissory note, Oupac took the note free from any defenses against any party with whom it had not dealt. See La.R.S. 10:3-305. There is no error to the trial court’s rulings that the promissory note was issued for consideration and that it was enforceable.

13As their next assignment of error, the Sams assert that the trial court erred in failing to consider parol evidence as to the consideration behind the promissory note. Louisiana Civil Code Article 1848 does not allow testimonial or other evidence not admitted to disprove the contents of an authentic act. That article states:

Testimonial or other evidence may not be admitted to negate or vary the contents of an authentic act or an act under private signature. Nevertheless, in the interest of justice, that evidence may be admitted to prove such circumstances as a vice of consent, or a simulation, or to prove that the written act was modified by a subsequent and valid oral agreement.

Further, “[wjhere the words of a contract are clear, explicit, and lead to no absurd consequences, the meaning and intent of the parties must be sought within the four corners of the document and cannot be explained or contradicted by parol evidence.” Sandbom v. BASF Wyandotte Corp., 618 So.2d 1019, 1021-22 (La.App. 1 Cir.), writ denied, 625 So.2d 1042 (La.1993).

Based on the facts of this case as noted above, we find that the trial court did not err in disregarding the Sams’ parol evidence, as none of the exceptions listed in Article 1848 apply. There was no vice of consent, simulation, or a subsequent valid oral modification of the agreement. Again, the consideration given for the promissory note was the cash paid to Cres-well, not the vehicle itself. The trial court made no error in restricting the promissory note to its four corners, as the terms of the document are clear.

For the above reasons, the decision of the trial court is hereby affirmed. Costs of this appeal are assessed against the Sams.

AFFIRMED.


author: PAUL A. BONIN, Judge. LOMBARD, J.,

text:
    STATE of Louisiana v. Melvin C. MASON. State of Louisiana v. Melvin C. Mason.
    Nos. 2011-KA-1190, 2011-KA-1191.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 2012.

      John F. Rowley, District Attorney, Walker H. Drake, Jr., Assistant District Attorney, Chalmette, LA, for State/Appel-lee.
    Carol A. Kolinchak, Juvenile Justice Project of Louisiana, New Orleans, LA, Benjamin W. Maxymuk, Pro Hac Vice, Equal Justice Initiative, Montgomery, AL, for Defendant/Appellant.
    (Court composed of Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN, Judge ROSEMARY LEDET).
   PAUL A. BONIN, Judge.

hln 1974, Melvin Masón was convicted of two counts of aggravated rape committed when he was under the age of 18 years old. He was sentenced to life imprisonment on each count, which life sentences were to run concurrently with each other. Following the United States Supreme Court decision in Graham v. Florida, 560 U.S. -, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), Mr. Mason petitioned the district court to correct his unconstitutional life sentences by re-sentencing him to a term of twenty years on each count in accord with Louisiana Supreme Court precedent. See State v. Craig, 340 So.2d 191, 194 (La.1976) (remanded for re-sentencing for aggravated rape to the most serious penalty for the next lesser-included offense which is attempted aggravated rape and a sentence of twenty years at hard labor).

The district judge did not grant the relief Mr. Mason sought; the judge did amend the life sentences but only to make explicit that the sentences imposed by the court did not restrict parole eligibility. Mr. Mason filed a motion to reconsider the sentence as modified under La.C.Cr.P. art. 881.1 A(l), which the district court denied, and properly preserved the issue for appellate review under La.C.Cr.P. art. | ¡>881.2 A(l). He argued that the remedy selected by the district court was itself an illegal sentence — one not authorized by the Legislature — and again argued that the district court should re-sentence Mr. Mason to a definite term of twenty years at hard labor on each count, which was the legislatively provided maximum sentence for the next lesser-included offense of attempted aggravated rape. The district court denied the motion to reconsider.

After the hearings in the district court and the lodging of the record in this court as well the submission of briefs by Mr. Mason and the district attorney, the Louisiana Supreme Court in State v. Shaffer, 11-1756 (La.11/23/11), 77 So.3d 939 (per curiam), directed how Louisiana courts would comply with the Graham decision. We have had occasion already to follow Shaffer in our decision in State v. Richards, 2011-0349 (La.App. 4 Cir. 12/1/11), 78 So.3d 864. We thus directed the parties to the appeal to file supplemental briefs to address these recent developments.

While we apply the rationale of Shaffer and Richards, we note that it is not necessary to direct the Department of Corrections to calculate a date for Mr. Mason’s eligibility for parole consideration because he is eligible for parole consideration immediately. We thus amend the sentences imposed to sentences of natural life, and direct the Department of Corrections to revise Mr. Mason’s prison master according to the criteria in La. R.S. 15:574.4 A(2) to reflect an immediate eligibility date for consideration by the Board of Parole.

We explain our holding in greater detail in the following Parts.

-k

The essential holding of Graham is that “[t]he Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.” 560 U.S. at -, 130 S.Ct. at 2034. “A State need not guarantee the offender eventual release, but if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term.” Id. (emphasis added). When the offense is committed before the offender’s 18th birthday, the offender must be given “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” 560 U.S. at -, 130 S.Ct. at 2057. He must be afforded the opportunity “to demonstrate that the bad acts he committed as a teenager are not representative of his true character.” 560 U.S. at -, 130 S.Ct. at 2033. He may well spend his imprisonment “attempting to atone for his crimes and learn from his mistakes.” Id.

And, importantly, a possibility of release dependent upon the remote possibility of executive clemency does not constitute such a “meaningful opportunity.” 560 U.S. at -, 130 S.Ct. at 2030; see also Solem, 463 U.S. at 303, 103 S.Ct. 3001 (“The possibility of executive clemency is nothing more than a hope for an ad hoc exercise of clemency.’ It is little different from the possibility of executive clemency that exists in every case ... ”)

By adopting a categorical rule, Graham “gives all juvenile nonhomicide offenders a chance to demonstrate maturity and reform.” 560 U.S. at -, 130 S.Ct. at 2032 (emphasis added). “The juvenile should not be deprived of the opportunity to achieve maturity of judgment and self-recognition of human worth and potential.” Id. “Life in prison without the possibility of parole gives no chance |4for fulfillment outside prison walls, no chance for reconciliation with society, no hope.” Id. (emphasis added).

The meaningful opportunity for parole consideration required by the Eighth Amendment does not foreclose the possibility that such an offender will spend his natural life “behind bars.” 560 U.S. at -, 130 S.Ct. at 2030. The Eighth Amendment, however, “does forbid States from making the judgment at the outset that those offenders never will be fit to reenter society.” Id. (emphasis added).

The Eighth Amendment does not permit a sentence that guarantees that a juvenile nonhomicide offender “will die in prison without any meaningful opportunity to obtain release.” 560 U.S. at -, 130 S.Ct. at 2033.

II

Shaffer considered the claims of three prisoners who qualified for relief under Graham because all three had life sentences for commission of aggravated rape before the age of 18 years old. State v. Shaffer, 11-1756, p. 1, 77 So.3d at 940, n. 2. In its per curiam decision, the Court ruled that Graham did not require it “to order the immediate release of relators from state supervision or to adopt a remedy that would guarantee immediate release by virtue of credit for time served.” State v. Shaffer, 11-1756, p. 3, 77 So.3d at 942.

The Court thus upheld the life sentences, but also held “that the Eighth Amendment precludes the state from interposing the Governor’s ad hoc exercise of executive clemency as a gateway” to parole eligibility or eligibility for parole consideration, or — as described by the court — “to accessing procedures the state |fihas established for ameliorating long terms of imprisonment as part of the rehabilitative process.” State v. Shaffer, 11-1756, p. 3, 77 So.3d at 942.

Then the Shaffer court ruled that “[t]he state thus may not enforce the commutation provisos in La. R.S. 15:574.4(A)(2) and 15:574.4(B) against relators and all other similarly situated persons.” State v. Shaffer, 11-1756, pp. 3-4, 77 So.3d at 942 (emphasis added). Instead, the high court decided that for inmates serving life terms for nonhomicide offenses committed before their 18th birthday, they would be parole eligible and have eligibility for parole consideration “once they reach the age of 45 years and have served 20 years of their sentences in actual custody.” State v. Shaffer, 11-1756, p. 3, 77 So.3d at 942.

The Court directed the Department of Corrections “to revise relators’ prison masters according to the criteria in La. R.S. 15:574.4(A)(2) to reflect an eligibility date for consideration by the Board of Parole.” State v. Shaffer, 2011-1756, p. 4, 77 So.3d at 943. The Court concluded that “[a]c-cess to the Board’s consideration will satisfy the mandate of Graham.” Id.

In our case with respect to Mr. Mason’s concurrent life sentences, he is under Shaffer now eligible for parole consideration.

_k.ni

Mr. Mason urges us to substitute for his life sentences the same sentence which was imposed for aggravated rape in Craig, which was twenty years at hard labor. 340 So.2d at 194. Mr. Mason correctly argues that nowhere did the Shaffer court expressly overrule Craig. But it is clear to us that the Shaffer court considered and rejected the Craig remedy albeit without explanation. Shaffer, 11-1756, p. 2, 77 So.3d at 943, n. 3. And even though it is true that applying the Craig remedy to Mr. Mason’s life sentences would result in his immediate release from confinement on his concurrent sentences, a court of appeal is bound to follow the latest expression of law of the Supreme Court. See Pelican State Associates, Inc. v. Winder, 253 La. 697, 706, 219 So.2d 500, 503 (1969), and Oliver v. Magnolia Clinic, Inc., 11-2132, p. 3 (La.3/13/12), 85 So.3d 39, 44. See also Shaffer, 11-1756, p. 4, 77 So.3d at 943 (“We reiterate that this Court is not ordering relators released on parole.”). Thus, we conclude that we are foreclosed from applying the Craig remedy as a substitute for Mr. Mason’s life sentences.

IV

Because the Louisiana Supreme Court has ruled that the state may not enforce the commutation provisos in La. R.S. 15:574.4 A(2) and 15:574.4 B against “all other similarly situated persons,” State v. Shaffer, 11-1756, pp. 3-4, 77 So.3d at 942, and because Mr. Mason is one such similarly situated person, we direct that the Department of Corrections revise Melvin Mason’s prison master to [7reflect his immediate eligibility for consideration of release on parole by the Board of Parole.

DECREE

We amend the concurrent life sentences imposed upon Melvin Mason to direct the Department of Corrections to revise Melvin Mason’s prison master to reflect his immediate eligibility for consideration of release on parole by the Board of Parole and, as amended, affirm the concurrent life sentences.

SENTENCE AMENDED AND AFFIRMED AS AMENDED.

LOMBARD, J., concurs with additional reasons.

LOMBARD, J.,

concurs with additional reasons.

| iln 1974, the defendant pleaded guilty to two counts of aggravated rape and one count of armed robbery and was sentenced to serve 10 years at hard labor for armed robbery and, to be served consecutively, concurrent life terms on each count of aggravated rape. Although without hope ever leaving prison, the defendant reportedly rehabilitated and became a model prisoner.

In February 2011, pursuant to Graham v. Florida, 560 U.S. -, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), the trial court granted the defendant’s motion to correct an illegal sentence, finding that the clear import of the trial court’s original sentence was to insure that the defendant, a juvenile at the time of the offenses, never had a possibility of leaving prison, a clear violation of the Eighth Amendment. Graham, 130 S.Ct. at 2030 (Eighth Amendment “forbid[s] States from making the judgment at the outset that those offenders never will be fit to reenter society.”). Based on | gthis finding, the focus of the sentencing hearing was to craft a sentence for the defendant that complied with Graham. Although defense counsel argued that his client should be resentenced to a specific term (thereby making him eligible for immediate release), the trial judge made clear that such a determination was in the purview of the Board of Parole:

Again, I want Mr. Mason to be eligible to go before the parole board right now; immediately. Because I think this is a function of what they’re doing and what remedy that the Supreme Court wants. For parole boards, who are designed, not sentencing judges, parole boards who are designed to see all the things that you have originally raised; how Mr. Mason has changed his life, the things he has done to better his lot upon life, and his determination of whether or not he will be a productive citizen and can conform to the requirements of society if released on parole. They have the ability to do that. That’s what they’re designed to do. That’s not what I’m designed to do. So I want to put Mr. Mason immediately before them for them to make that determination, and I want to do a sentence that does that.
I’m going to sentence him so that I’m ordering the Parole Board to have a hearing immediately because that’s what I think the Supreme Court says, and if they deny him the right then, I think you have an immediate application to the Supreme Court of Louisiana of that denial, because I think that is implicitly, anything that prevents him from having the ability to have a parole hearing immediately, I think is in violation of the Supreme Court....
[District Attorney agrees with trial court’s assessment]
Again, I firmly do not believe that I should be an activist Judge. We shouldn’t do those things. I should follow the law that is out there in front. The law as I see it says that I should sentence Mr. Mason to two concurrent life sentence with benefit of parole, as the status of the law at the time, and that he should be eligible for a parole hearing immediately, and that’s the sentence I would impose.
* ⅜ ⅝
I think, implicitly, to the extent that the Parole Board does not grant or cannot grant a hearing to [ ] life — they can make a determination of what percentage of life, what that determination is, and I would say the direct to that is that at the time parole was considered under a twenty year life sentence or as the only other sentence available other than this would be a maximum of 20 years, that I would direct that that 20 year term, serving the appropriate portion of that 20 year term would be the term of years which they could apply for.
* *
... For the record, I would sentence Mr. Mason. I believe that I am required by the holding of the Supreme court to sentence you to two concurrent terms of life, but that life is specifically with the benefit of parole, which is the only portion of the statute that was de-dared to be unconstitutional as applied to juveniles at the time of commission of the offense, I sentence you to life with the Department of Corrections, with the ability to seek parole as required by the Supreme Court.
Mr. Mason, good luck [to] you. I think you should be in front of the parole board and I think the parole board should take into account all the things you have done to better your life and that’s their kind of determination....

In light of State v. Shaffer, 2011-1756 (La.11/23/2011), 77 So.2d 939, handed down after the resentencing hearing, the trial court’s focus on the defendant’s parole eligibility appears prescient.

As a pragmatic matter, the defendant’s motion to correct an illegal sentence was granted in February 2011, more than a year ago, and he has already served more than thirty-eight years in prison. According to Shaffer, inmates serving life terms for non-homicide offenses committed before their 18th birthday are parole eligible and have eligibility for parole consideration “once they reach the age of 45 years and have served 20 years of their sentences in actual custody.” Shaffer, 77 So.3d at 942. The defendant in this case completed his ten 10 year sentence in 1984, an additional 20 years in 2004, and is over 45 years old. Clearly, as both this court and the trial court find, he is immediately eligible to go before the Parole Board. The determination of whether the defendant has achieved the “maturity of judgment and self-recognition of human worth and potential” Graham, 130 S.Ct. at 2032, such that his release is in “the best interest of society,” La.Rev.Stat. 15:574.4.1(B) is firmly within the purview of the Board of Parole, but this court |4and the district court are in firm agreement that he should be afforded the opportunity “to demonstrate that the bad acts he committed as a teenager are not representative of his true character,” Graham, 130 S.Ct. at 2033, without further delay.

      . Mr. Mason’s plea was “guilty without capital punishment.” At the same time and apparently arising out of the same act, he was convicted of armed robbery and sentenced to imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence for a term of ten years; the sentencing court ordered that the two concurrent life sentences be served consecutively to the armed robbery sentence. The 10-year armed robbery sentence was completed in 1983.

      . Mr. Mason did not insist at SQntencing that the proposed twenty-year sentences necessarily be served concurrently.

      . The sentence of only one of the three prisoners was imposed without benefit of parole, making him ineligible for parole.

      . The Shaffer court did not explicitly find the two provisions unconstitutional as applied to relators or other similarly situated persons, such as Mr. Mason.

      . The Court referred to its selection of the criteria for parole consideration as an "interim measure,” while awaiting recommendation of the Louisiana State Law Institute and legislative action. See State v. Shaffer, 11-1756, p. 4 n. 6, 77 So.3d at 943 n. 6. We have reviewed the Law Institute's report in response to 2011 Senate Concurrent Resolution No. 37 (dated December 22, 2011). The Legislature has closely regulated both "parole eligibility (which is determined by the sentence) and eligibility for parole consideration (which is dependent on meeting certain criteria and conditions specified by statute).” Bosworth v. Whitley, 627 So.2d 629, 631 (La.1994). "Parole eligibility” is determined by the sentence imposed. Id. A life sentence such as those imposed upon Mr. Mason had "no directive with regard to parole eligibility.” Id. at 634. Thus, under the statutory scheme, Mr. Mason’s life sentences themselves did not preclude "parole eligibility.” But because "eligibility for parole consideration” is distinguished from "parole eligibility,” Mr. Mason, having been sentenced to concurrent life sentences, was still not eligible for parole consideration. "No prisoner serving a life sentence shall be eligible for parole consideration until his life sentence has been commuted to a fixed term of years.” La. R.S. 15:574.4 B;5 see also La. R.S. 15:572 A ("governor ... may commute sentences”).

      . "No prisoner serving a life sentence shall be eligible for parole consideration until his life sentence has been commuted to a fixed term of years.” La. R.S. 15:574.4 B;6 see also La. R.S. 15:572 A ("governor ... may commute sentences”), and Solem v. Helm, 463 U.S. 277, 301, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) ("Commutation ... is an ad hoc exercise of executive clemency. A Governor may commute a sentence at any time for any reason without reference to any standards.”)

      . Because the defendant was sentenced first on the armed robbery to a fixed term and then to the life sentences before it was announced that these sentences would run consecutively, we find (as did the trial court implicitly) that the life sentences were to be served consecutively to the fixed term sentence. Clearly, the reverse order (a 10 year sentence imposed consecutive to a life sentence without possibility of parole)- would be, in effect, a sentence to be served by a corpse — an absurdly excessive (and unconstitutionally excessive) sentence even in 1974.


author: MAX N. TOBIAS, JR., Judge.

text:
    STATE of Louisiana v. David NYE.
    No. 2011-KA-0944.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 2012.

      Leon A. Cannizzaro, Jr., District Attorney, Felicity Strachan, Assistant District Attorney, New Orleans, LA, for Appellee.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for the Defendant/Appellant.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge DANIEL L. DYSART).
   MAX N. TOBIAS, JR., Judge.

_JjThe defendant, David C. Nye, previously convicted of indecent behavior with a juvenile, was charged by bill of information on 4 January 2011, with failing to register as a sex offender, a violation of La. R.S. 15:542. On 11 April 2011, the defendant filed a motion to quash, arguing that the sex offender registration statute was unconstitutional as applied to him, a homeless person. The trial court denied the motion to quash on 13 April 2011, on which date the defendant pleaded guilty as charged under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) and State v. Crosby, 338 So.2d 584 (La.1976), and, after waiving all delays, was sentenced to serve two years at hard labor. This timely appeal followed.

Louisiana State Police Trooper Andrew Pratt, assigned as a detective to the department’s New Orleans field office, testified at the defendant’s preliminary hearing, that the defendant had previously been convicted of indecent behavior with juveniles. Trooper Pratt testified that, upon the defendant’s release from prison, he “complied with the New Orleans Police Department by confirming that he was a sex offender, and gave the address of 1130 Oretha Castle Haley |2[B oulevard], which is the New Orleans Mission.” Trooper Pratt went to the New Orleans Mission on 20 July 2010, to perform a compliance check on Mr. Nye and learned he had not resided there since 31 May 2010. The detective subsequently prepared an arrest warrant for Mr. Nye, for failing to notify law enforcement of a change in address.

Trooper Pratt confirmed on cross examination that Mr. Nye, after his release from prison on 29 April 2010, completed his initial registration on 6 May 2010, giving an address of 843 Camp Street, a homeless shelter. Trooper Pratt confirmed that Mr. Nye re-registered with the New Orleans Police Department on 26 May 2010, giving the 1130 Oretha Castle Haley Boulevard address, the New Orleans Mission. The detective confirmed that Mr. Nye was arrested on 5 November 2010 on Toulouse Street; Mr. Nye stated that this was his residence. Trooper Pratt denied ever seeing Mr. Nye’s name on a lease for a Toulouse Street residence.

A review of the record reveals one error patent. Neither the sentencing transcript, the minute entry from the date of sentencing, nor the docket master entry from the date of sentencing, reflects that the trial court imposed the restriction that Mr. Nye’s two-year sentence be served without the benefit of parole, probation, or suspension of sentence, as required by La. R.S. 15:542.1.4 A(l). Thus, the sentence is illegally lenient. State v. Fortune, 10-0599, p. 12 (La.App. 4 Cir. 12/22/10), 54 So.3d 761, 768. However, pursuant to La. R.S. 15:801.1 A, and State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, the lssentence is deemed to have been imposed with the restriction of benefits, even in the absence of the trial court minute entry showing the restrictions. State v. Decloues, 10-1247, p. 9 (La.App. 4 Cir. 3/23/11), 62 So.3d 778, 782, writ denied, 11-0867 (La.2/3/12), 79 So.3d 1022. Thus, this court need not correct the sentence or remand it to be corrected.

In his sole assignment of error Mr. Nye argues that the trial court erred in denying his motion to quash because: (1) his conduct was not criminal because the sex offender registration statute did not contemplate a scenario in which a homeless individual has no physical address to report; and (2) alternatively, even assuming his actions were contemplated by the statute, the language of the statute is vague and thus violates the Due Process clauses of the United States and Louisiana Constitutions because the statute does not put people in the defendant’s position on sufficient notice to understand what conduct is required of them.

Mr. Nye’s motion to quash the indictment was directed to La. R.S. 15:542.1.4, which is the penal provision for the sex offender registry scheme, La. R.S. 15:540, et seq. However, Mr. Nye was actually charged under La. R.S. 15:542 and pleaded guilty to that violation. Nevertheless, his arguments in his |4motion to quash were directed to La. R.S. 15:542 and/or La. R.S. 15:542.1.2, as are his arguments in this appeal.

Generally, a trial court’s ruling on a motion to quash should not be disturbed on review absent an abuse of discretion. State v. Sorden, 09-1416, p. 3 (La.App. 4 Cir. 8/4/10), 45 So.3d 181, 183; State v. Love, 00-3347, p. 12 (La.5/23/03), 847 So.2d 1198, 1208.

The defendant was charged under the statutory scheme, La. R.S. 15:540, et seq., requiring, inter alia, sex offenders, sexually violent predators, and child sexual predators to register with state and local law enforcement agencies. Mr. Nye was charged with, and pleaded guilty to, failing to register as a sex offender as required by La. R.S. 15:542, having been previously convicted of indecent behavior with a juvenile, a violation of La. R.S. 14:81, a “sex offense as defined in R.S. 15:541[ (24) ].” La. R.S. 15:542 A(l)(a). Pursuant to La. R.S. 15:542 B(l) and (2), respectively, he was required to register in person “with the police department of his municipality of residence,” and, if employed, also “with the police department of the municipality where he is employed.”

“Residence” is defined by La. R.S. 15:541(22) as:

[A] dwelling where an offender regularly resides, regardless of the number of days or nights spent there. For those offenders who lack a fixed abode or dwelling, “residence” shall include the area or place where the offender habitually lives, including but not limited to a rural area with no address or a shelter.

La. R.S. 15:542.1.2 imposes a duty on sex offenders required to register under the statutory scheme to appear in person at the police department in the 1 ^municipality of “residence” — “where the offender is currently registered to update information within three business days of establishing a new or additional residence address or of changes in information previously provided” when, inter alia, the offender changes his place of residence or establishes a new or additional residence; has vacated his current address of registration with the intent not to return; or has been absent from his current address for more than thirty consecutive days or an aggregate of thirty days or more per calendar year and is physically present at another address during that same time period.

In the instant case, Mr. Nye complied with his initial registration requirements under La. R.S. 15:542, and he once apparently complied with the update requirements of La. R.S. 15:542.1.2, when his place of “residence” changed from the place of “residence” he had reported when initially registering. He was charged in the bill of information with failing to register as a sex offender as required by La. R.S. 15:542, the initial registration statute, rather than with failing to update the information as to his “residence” as required by La. R.S. 15:542.1.2. He pleaded guilty to violating La. R.S. 15:542.

Mr. Nye first argues that his conduct was not criminal because the statute did not contemplate a scenario in which a homeless individual had no physical address to report. In his motion to quash, the defendant did not directly argue that the indictment should be quashed because it did not contemplate a scenario in which a homeless individual had no physical address to report, independent from the claim that it was unconstitutional. Nevertheless, this argument is made on appeal and we address it.

“Louisiana’s statutory scheme for registration of sex offenders is merely a civil regulatory framework.” State v. Golston, 10-2804, p. 16 (La.7/1/11), 67 6So.3d 452, 463, citing State ex rel. Olivieri v. State, 00-0172 (La.2/21/01), 779 So.2d 735. The rules for statutory construction of Louisiana’s sex offender registration statutes were set forth in Smith v. State, 10-1140, pp. 6-7 (La.1/24/12), 84 So.3d 487, 492, as follows:

The starting point in the interpretation of any statute is the language of the statute itself. Cats’ Meow, Inc. v. City of New Orleans, 98-0601, p. 15 (La.10/20/98), 720 So.2d 1186, 1198; Touchard v. Williams, 617 So.2d 885 (La.1993). Legislation is the solemn expression of legislative will, and therefore, the interpretation of a law involves primarily the search for the legislature’s intent. La. Civ.Code art. 2; Barbara Landry v. Louisiana Citizens Property Ins. Co., 07-1907, p. 20 (La.05/21/08), 983 So.2d 66, 79; Detillier v. Kenner Regional Med. Ctr., 03-3259, p. 3 (La.7/6/04), 877 So.2d 100, 103. La. Civ. Code art. 9 provides that, when a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. When the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole, and laws on the same subject matter must be interpreted in reference to each other. La. Rev.Stat. 1:3; La. Civ.Code arts. 12 and 13; Conerly v. State, 97-0871, p. 4 (La.7/8/98), 714 So.2d 709, 711. Where two statutes deal with the same subject matter, they should be harmonized if possible. La. Civ.Code art. 13; Kennedy v. Kennedy, 96-0741, p. 2 (La.11/25/96), 699 So.2d 351, 358 (on rehearing).

La. R.S. 15:542 C(l) requires a sex offender provide upon initial registration, inter alia, “(b) Physical address or addresses of residence.” Similarly, La. R.S. 15:542.1.2 requires that a registered sex offender update his information if he establishes a new or additional physical residential address.

While La. R.S. 15:542 and La. R.S. 15:542.1.2 both require the reporting of the “address” of the offender’s “residence,” the statutory sex offender registry |7scheme also contemplates a homeless person in its registration requirements. More precisely, the statute contemplates that a sex offender will not have a physical address, the narrow issue raised by Mr. Nye in this first argument in his sole assignment of error. La. R.S. 15:541(22), defining the term “residence” for purposes of the statutory scheme, expressly states:

For those offenders who lack a fixed abode or dwelling, “residence” shall include the area or place where the offender habitually lives, including but not limited to a rural area with no address or a shelter. [Emphasis added.]

Thus, reading La. R.S. 15:542’s requirement that a sex offender furnish the physical address of a residence together with the statutory definition of “residence” provided in the statutory sex offender registry scheme, the legislature clearly contemplated that it apply to a homeless person who lacks a fixed abode or dwelling and who habitually lives in an “area or place” “with no address.” By including those provisions in the statutory sex offender registry scheme, the legislature obviously contemplated requiring homeless sex offenders with no physical address to register, at least a homeless sex offender who had an “area or place” where he “habitually” lived, to comply with the registration and notification provisions. Mr. Nye does not argue that he had no “area or place’ where he “habitually” lived at the time of his arrest.

We note that Mr. Nye had twice complied with the provisions of the statutory sex offender registry scheme. Accepting his argument that he was homeless, it is undisputed that he had complied with the sex offender registration | ¿requirements and that he was in compliance with such requirements until he left the New Orleans Mission after 31 May 2010, and failed to update his sex offender registration records or re-register.

Mr. Nye was arrested on 5 November 2010 at an address on Toulouse Street, an address that Trooper Pratt had been told was the defendant’s residence. The preliminary hearing testimony of Trooper Pratt suggests that Mr. Nye likewise had a physical address on Toulouse Street that he could have reported as his physical address at some point between leaving the New Orleans Mission after 31 May 2010 and his November 2010 arrest.

Considering all of the facts and circumstances, we find that the trial court would not have abused its discretion in denying the defendant’s motion to quash insofar it might have been based on the ground that La. R.S. 15:542 did not cover him as written. Mr. Nye’s first argument is without merit.

The defendant’s second argument is that, even if his actions were contemplated by La. R.S. 15:542, the language of the statute was vague at best. He argues that it thus violated the due process clauses of the United States and Louisiana Constitutions because it did not put people in the defendant’s position on sufficient notice to understand what conduct was required of them.

No merit exists to this “void-for-vagueness” claim, given that the statute with which Mr. Nye was charged with violating, La. R.S. 15:542, “is technically insusceptible to a void for vagueness analysis.” See Golston, 10-2804, p. 15, 67 So.3d at 468. In Golston, the trial court declared La. R.S. 15:560, et seq., ^unconstitutionally vague. La. R.S. 15:560, et seq., enacted in 2006, provides for a sex offender assessment and registration scheme whereby Sex Offender Assessment Panels are set up to evaluate all sex offenders prior to their release from incarceration. This “SOAP” statutory scheme also provides for lifetime registration in accordance with the provisions of La. R.S. 15:542, et seq., for a sex offender found to be a sexually violent predator or a child sexual predator.

In reversing the Golston trial court’s declaration that the SOAP statutory scheme was unconstitutionally vague, and thus “void for vagueness,” the Louisiana Supreme Court stated:

We agree with the State that the SOAP statutes are technically insusceptible to a void for vagueness analysis. The “void-for-vagueness” doctrine provides that a criminal statute must meet two requirements to satisfy due process: (1) adequate notice to individuals that certain contemplated conduct is proscribed; and (2) adequate standards for those charged with determining the guilt or innocence of an accused. State v. Turner, 2005-2425 (La.7/10/06), 936 So.2d 89, 99. The purpose of the doctrine is to ensure that “a criminal statute does not contain a standard so vague that the public is uncertain as to the proscribed conduct and the factfinder is unfettered by any legally fixed standards as to what is prohibited by the statute.” Id. at 99-100. In State ex rel. Olivieri v. State, 00-0172 (La.2/21/01), 779 So.2d 735, 745-50, this Court held that retroactive application of “Megan’s Law” (La. R.S. 15:542-542.1.4), requiring registration of sex offenders and public notification, did not impose punishment and therefore did not violate state and federal Ex Post Facto Clauses, even though the failure to comply with the registration and notification requirements is a crime and the offenders must pay the cost of notification. Implicit in our holding was the finding that Louisiana’s statutory scheme for registration of sex offenders is merely a civil regulatory framework. Id. at 747. Similarly, the SOAP statutory scheme contains no prohibition of conduct. The stated purpose of the SOAP statutory scheme is nearly | inidentical to that stated in Louisiana’s sex offense registration scheme analyzed in Olivieri. Thus, the stated purpose of the SOAP scheme, like that found in Olivieri, is non-punitive. We hold the SOAP statutory scheme is not a criminal provision, but rather a regulatory scheme, and thus cannot be unconstitutionally vague. [Emphasis supplied.]

Golston, 10-2804, pp. 15-16, 67 So.3d at 463.

The Golston analysis is applicable in the case at bar. The stated purpose of the entire sex offender registration scheme applicable in the instant case, La. R.S. 15:540, et seq., is non-punitive, even though the failure to comply with the registration and notification requirements is a crime. It is not a criminal provision, but rather a regulatory scheme, and thus it cannot be unconstitutionally vague.

Thus, Mr. Nye’s alternative argument is also without merit.

For the foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED.

      . La. R.S. 15:301.1 A states:
      When a criminal statute requires that all or a portion of a sentence imposed for a violation of that statute be served without benefit of probation, parole, or suspension of sentence, each sentence which is imposed under the provisions of that statute shall be deemed to contain the provisions relating to the service of that sentence without benefit of probation, parole, or suspension of sentence. The failure of a sentencing court to specifically state that all or a portion of the sentence is to be served without benefit of probation, parole, or suspension of sentence shall not in any way affect the statutory requirement that all or a portion of the sentence be served without benefit of probation, parole, or suspension of sentence.


author: JOY COSSICH LOBRANO, Judge.

text:
    Jerome HENDERSON v. SNL DISTRIBUTION SERVICES, INC.
    No. 2011-CA-1638.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 2012.

      Pius A. Obioha, Alistair A. Adkinson, Michal J. Harris, Pius A. Obioha & Associates, LLC, New Orleans, LA, for Plaintiff/Appellant.
    Neil J. Kohlman, Anderson, Stephens & Grace, Metairie, LA, for Defendant/Appel-lee.
    (Court composed of Judge TERRI F. LOVE, Judge JOY COSSICH LOBRANO, Judge ROSEMARY LEDET).
   JOY COSSICH LOBRANO, Judge.

| plaintiff, Jerome Henderson, appeals a judgment of the Office of Workers’ Compensation (“OWC”), maintaining an exception of prescription in favor of defendant, SNL Distribution Services/SNL Trucking (“SNL Distribution/Trucking”), his former employer. For the following reasons, we affirm.

On January 13, 2009, Mr. Henderson filed a disputed claim for compensation with the OWC, naming his employer as “SNL, Inc.” He alleged that on March 3, 2003, while in the course and scope of his employment driving an eighteen-wheeler truck from New Orleans, Louisiana, to Mobile, Alabama, the police stopped him and accused him of smoking marijuana and falsifying a driving log. Mr. Henderson further alleged that he was terminated as a result of the charges and suffered severe emotional distress due to the incident. Attached to the OWC claim form is a copy of a petition for damages Mr. Henderson had filed in the Orleans Parish Civil District Court on March 17, 2004 , that named “SNL, Inc.” as his employer and alleged the incident occurred on March 17, 2003.

|2In response to Mr. Henderson’s claim, SNL, Inc. filed an answer with the OWC, alleging that it never employed Mr. Henderson, owned any vehicles, and was incorporated for the sole purpose of building a house.

On April 20, 2009, Mr. Henderson filed both a first amended disputed claim for compensation, naming “SNL Distribution Services Corporation” as his employer, and a motion to dismiss SNL, Inc. from the claim. The OWC judge granted the motion, dismissing SNL, Inc. from the claim on May 1, 2009. Thereafter, on February 2, 2011, Mr. Henderson filed a second amended disputed claim for compensation, naming SNL Distribution/Trucking as his employer.

In response, SNL Distribution/Trucking filed a peremptory exception of prescription. Following a hearing, the OWC judge sustained the exception and dismissed Mr. Henderson’s claim. Mr. Henderson appealed.

“In reviewing a peremptory exception of prescription, the standard of review requires an appellate court to determine whether the trial court’s finding of fact was manifestly erroneous.” Taranto v. Louisiana Citizens Property Ins. Corp., 10-0105, p. 5 (La.3/15/11), 62 So.3d 721, 726 (citation omitted). Generally, the burden of proof on the prescription issue lies with the party asserting it. Id. However, if the claim is prescribed on its face, the burden then shifts to the plaintiff to negate the presumption by establishing a suspension or interruption. Id.

The prescriptive periods governing workers’ compensation claims are set forth in La. R.S. 23:1209(A). Pursuant to the statute, claims for disability benefits Rare barred unless filed (1) within one year from the date of the accident; (2) one or three years from the date of the last payment of compensation benefits, depending on the type of benefits paid; and (3) one year from the time the injury develops if not immediately manifest, but, in any event, no more than two years after the accident. See Muhammad v. New Orleans Police Department, 02-0306, p. 5 (La.App. 4 Cir. 6/26/02), 822 So.2d 183, 186 (citation omitted).

“[T]he jurisprudence has liberally construed the time limits for institution of a claim for benefits.” Scott v. Walmart Stores, Inc., 03-0104, p. 6 (La.App. 4 Cir. 7/2/03), 851 So.2d 1210, 1213-14 (citations omitted). Prescription statutes, including La. R.S. 23:1209(A), are construed in favor of maintaining rather than barring actions. See, e.g., Taylor v. Liberty Mut. Ins. Co., 579 So.2d 443, 446 (La.1991).

Mr. Henderson argues the OWC judge erred in sustaining the exception of prescription where the allegations in his second amended claim for compensation relate back to the filing of his petition for damages in Civil District Court. In support of his argument, he cites La. C.C.P. art. 1153 and Miller v. New Orleans Home & Rehabilitation Center, 449 So.2d 133 (La.App. 4th Cir.1984).

La.C.C.P. art. 1153 provides:

When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.

|4In Miller, supra, the plaintiff was injured on December 11, 1981, while riding in an elevator at the New Orleans Home & Rehabilitation Center (“Center”). Plaintiff filed a petition for damages on February 8, 1982, naming the Center, the State of Louisiana, and the City of New Orleans as defendants. On February 28, 1983, plaintiff filed a supplemental and amended petition to assert a claim for workmen’s compensation benefits against her employer, the Center. The Center filed an exception of prescription. The trial court sustained the exception, dismissing the supplemental and amended petition. Id., 449 So.2d at 134. This Court, relying upon La. C.C.P. art. 1153, reversed, stating:

We hold that the factual allegations contained in the plaintiffs original tort petition were sufficient to interrupt the prescriptive period for bringing a workmen’s compensation claim arising out of the same accident. Because the defendants received notice of the necessary factual allegations in the original petition, Code of Civil Procedure Article 1153 allows the amended petition to relate back to the date of the filing of the original petition.

Miller, 449 So.2d at 135-136.

In this case, Mr. Henderson named SNL, Inc. as a defendant in the action filed in Civil District Court and in the original workers’ compensation claim. However, SNL, Inc. was never Mr. Henderson’s employer and, therefore, not the proper party defendant in the action filed in Civil District Court. Furthermore, the record contains no proof that Mr. Henderson’s employer, SNL Distribution/Trucking, ever received notice of the action filed in Civil District Court. Mr. Henderson’s reliance upon the Miller case is misplaced.

Mr. Henderson named SNL Distribution/Trucking as a new defendant in his second amended disputed claim for compensation. In Ray v. Alexandria Mall, 434 So.2d 1083 (La.1983), the Louisiana Supreme Court discussed whether a 1 ^subsequent pleading would relate back to the original pleading when the subsequent pleading adds or changes a defendant. Specifically, the Court stated:

We establish the following criteria for determining whether art. 1153 allows an amendment which changes the identity of the party or parties sued to relate back to the date of filing of the original petition:
(1) The amended claim must arise out of the same transaction or occurrence set forth in the original pleading;
(2) The purported substitute defendant must have received notice of the institution of the action such that he will not be prejudiced in maintaining a defense on the merits;
(3) The purported substitute defendant must know or should have known that but for a mistake concerning the identity of the proper party defendant, the action would have been brought against him;
(4) The purported substitute defendant must not be a wholly new or unrelated defendant, since this would be tantamount to assertion of a new cause of action which would have otherwise prescribed.

Ray, 434 So.2d at 1086-1087.

Applying Ray to this case, the first criteria is met as the original petition for damages and the second amended disputed claim for compensation arise out of the same transaction or occurrence. However, the record reveals that the second, third, and fourth criteria have not been met. Nothing in the record indicates that SNL Distribution/Trucking received notice of the institution of the action prior to February 14, 2011. There is no evidence that SNL Distribution/Trucking knew or should have known that, but for a mistake concerning the identity of the proper party defendant, the action would have been brought against it. The record ^demonstrates that SNL Distribution/Trucking was a new and unrelated defendant. Thus, we find Mr. Henderson’s second amended disputed claim for compensation did not relate back to the filing of his original petition in Civil District Court, and was prescribed.

Next, Mr. Henderson argues that the doctrine of contra non valentem operated to suspend prescription. He contends that he timely provided notice to SNL, Inc. and when notified of the proper party defendant, he promptly amended his claim and served SNL Distribution/Trucking. Mr.. Henderson alleged that the names of the companies were so closely related that their employment number was the only way to discern one from the other. Finally, Mr. Henderson asserted that he made all reasonable efforts, but due to confusion, error, or mistake, was unable to serve SNL Distribution/Trucking until he received information distinguishing the new defendant from the previous, similarly named defendants.

Contra non valentem is a Louisiana jurisprudential doctrine under which prescription may be suspended. Carter v. Haygood, 04-0646, p. 11, 892 So.2d 1261, 1268 (citations omitted). The Louisiana Supreme Court has recognized four instances where contra non valentem applies to prevent the running of prescription: (1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action; (2) where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting; (3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of this cause of action; and (4) where the cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant. Jenkins v. 7Starns, 11-1170, p. 19 (La.1/24/12), 85 So.3d 612 (citing Carter, 04-0646, pp. 11-12, 892 So.2d at 1268).

Our review of the record indicates Mr. Henderson presented no evidence that (1) some legal cause prevented the court from taking action on his claim; (2) that there was some condition coupled with a contract or connected with the proceedings which prevented him from suing; (3) that SNL Distribution/Trucking acted in a way which prevented him from availing himself of the cause of action; and (4) that the cause of action was not known or reasonably knowable by him. Thus, we find the doctrine of contra non valentem inapplicable in this case.

In summary, we find no manifest error in the trial court’s conclusion that Mr. Henderson’s claim against SNL Distribution/Trucking was prescribed.

Accordingly, we affirm the judgment of the trial court sustaining SNL Distribution/Trucking’s exception of prescription.

AFFIRMED

      . Although the Civil District Court clerk's office stamped the filing date on the petition, the date on the copy that is attached to Mr. Henderson's OWC claim form and included in the appeal record is illegible. Nonetheless, Mr. Henderson alleged in his opposition to the exceptions filed in the workers' compensation proceeding that the petition was filed on March 17, 2004.

      . La. R.S. 23:1209(A), provides:
      (1) In case of personal injury, including death resulting therefrom, all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed as provided in Subsection B of this Section and in this Chapter.
      (2) Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of benefits payable pursuant to R.S. 23:1221(3) this limitation shall not take effect until three years from the time of making the last payment of benefits pursuant to R.S. 23:1221(1), (2), (3), or (4).
      (3)When the injury does not result at the time of or develop immediately after the accident, the limitation shall not take effect until expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.

      . The record indicates that SNL Distribution/Trucking was served with a copy of the second amended disputed claim on February 14, 2011. The record contains no proof that SNL Distribution/Trucking was served with a copy of the first amended disputed claim filed on April 20, 2009, or the Petition for Damages filed in the Orleans Parish Civil District Court on or about March 17, 2004.

      . The record contains no proof that "SNL Distribution Services Corporation,” the entity named as the defendant in the first amended disputed claim, was served with a copy of the claim or is related to SNL Distribution/Trucking, the proper defendant.