text:
    STATE of Louisiana in the Interest of K.J.
    No. 2011-CA-0266.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 17, 2011.

      Tenee Felix, Juvenile Regional Services, New Orleans, LA, for Appellant.
    Leon A. Cannizzaro, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for Appellee.
    (Court composed of Judge JAMES F. McKAY, III, Judge MAX N. TOBIAS, JR., Judge DANIEL L. DYSART).
   MAX N. TOBIAS, JR., Judge.

| ,The appellant, K.J., was adjudicated a delinquent child for violation of La. R.S. 14:34, relative to the aggravated battery of F.B. At the conclusion of the adjudication hearing held on 30 November 2010, K.J. was found to be delinquent for the crime of aggravated battery. That same day, the juvenile judge placed K.J. with the Office of Juvenile Justice (“OJJ”) for a period of time not to exceed one year. The execution of the sentence was suspended and K.J. was placed on active probation under the supervision of the OJJ for one year. The trial court also ordered K.J. to complete 100 hours of community service, to write a 500-word essay for the court, enroll in an anger management program, and to pay $600.00 in restitution to the victim. K.J. appeals his adjudication as a delinquent child on the grounds that the evidence is insufficient to support a finding beyond a reasonable doubt that he committed the delinquent act; he also appeals the disposition ordering him to pay $600 in restitution to the victim in the absence of evidence substantiating any pecuniary loss.

Because we conclude from a review of the facts and the law that the juvenile | ¡judge was not clearly wrong in finding beyond a reasonable doubt that K.J. committed the delinquent act, we determine that the evidence is sufficient for the adjudication. We also conclude that the juvenile court was within its authority to order K. J. to pay restitution to the victim for her non-pecuniary losses associated with the battery, but that the record in this case does not support an order of restitution for pecuniary losses she may have sustained. Accordingly, we affirm the adjudication of delinquency, conditionally affirm the order of restitution for non-pecuniary losses, and remand the matter to the trial court with instructions to clarify the restitution ordered.

SUFFICIENCY OF THE EVIDENCE

In order for the court to adjudicate a child delinquent, the state must prove beyond a reasonable doubt that the child committed the delinquent act alleged in the petition. La. Ch.C. art. 883. In a delinquency-adjudication proceeding, the state must prove all essential elements of the delinquent act beyond a reasonable doubt. La. Ch.C. art. 883; In re Winship, 397 U.S. 358, 363, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Also in a juvenile case, the reviewing court is constitutionally compelled to review both the facts and law. La. Const, art. V, § 10(A) and (B). However, the reviewing court must recognize the juvenile judge observed the conduct and demeanor of the witnesses and was in the best position to determine the credibility and weigh the evidence.

In Louisiana, the child is constitutionally entitled to appellate review of his adjudication under the manifestly erroneous-clearly wrong standard. See La. Const, art. V, §§ 5, 10, 18, and 19; see also State in the Interest of D.R., 10-0405, pp. 6-9 (La. App. 4 Cir. 10/13/10), 50 So.3d 927, 930-932. This is a broader standard than the minimum standard mandated by the federal constitution and memorialized in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also, State in the Interest of D.R., 10-0405, pp. 12-13, 50 So.3d at 934.

The manifest error-clearly wrong standard is well-known. Nolan v. Mabray, 10-373, pp. 9-10 (La.11/30/10), 51 So.3d 665, 672. A factfinder’s findings are not disturbed, if, after a review of the entire record, we conclude that the findings are reasonable and not clearly wrong. See Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Especially on matters of credibility, an appellate court affords great deference to a factfinder’s findings. Id. If, however, “documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face,” we might well find manifest error despite a purported credibility determination by the factfinder. Id. at 845.

In this case, we specifically note that the only objective evidence introduced at trial over the objection of defense counsel consisted of photographs of the victim taken by the crime lab in the emergency room following her injury. These photographs are not contained in the record on appeal. Additionally, the judge as trier of fact accepted as credible the testimony of the state’s witnesses: the victim, F.B.; her mother, B.B.; and the investigating officer, Detective Clinton Givens. J^Thus, our review is primarily directed to determining whether there is sufficient evidence as to each essential element of the delinquent act charged and to determine whether the testimony of the witnesses is internally inconsistent or implausible on its face.

K.J. was charged with and adjudicated delinquent for committing an aggravated battery, a violation of La. R.S. 14:34, which defines aggravated battery as “a battery committed with a dangerous weapon.” La. R.S. 14:33 defines battery, in part, as “the intentional use of force or violence upon the person of another[.]” Pursuant to La. R.S. 14:2(3), “[d]angerous weapon” includes any gas, liquid, or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm. The term “dangerous weapon” is not limited to those instrumentalities that are inherently dangerous, but also includes any instrumentality, which in the manner used, is calculated or likely to produce death or great bodily harm. See State v. Malhiot, 41,175, p. 4 (La.App. 3 Cir. 8/23/06), 938 So.2d 1158, 1161. In Louisiana, numerous everyday items have been held to constitute a dangerous weapon, in the manner used, including a stick. Id.

In the instant case, in order to convict K.J. of the crime charged, the juvenile court was required to find beyond a reasonable doubt that K.J.: (1) intentionally used force or violence upon F.B.’s person; (2) with a dangerous weapon; (3) which weapon, in the manner used, was calculated or likely to produce death or great | ¡/bodily harm. State v. Wix, 02-1493, p. 9 (La.App. 4 Cir. 1/15/03), 838 So.2d 41, 47.

Keeping these legal precepts in mind, we turn now to a review of the facts in this case, as well as the applicable law for the offense for which K.J. was adjudicated, and apply the proper standard of review.

On 28 August 2010, at approximately 9:30 p.m., Detective Clinton Givens received a dispatch call regarding a battery. Givens testified that, after receiving the call, he went to the victim’s home located on Hickerson Street in Orleans Parish to investigate the complaint. According to Givens, he spoke to the victim, F.B., and other adult members of her family. While there, Givens observed a laceration over F.B.’s eye. He called EMS for emergency assistance. Givens then went to question the defendant, K.J., at his home. Additionally, Givens canvassed the area in search of the alleged weapon, a metal pipe, to no avail. After meeting with K.J. and his mother, Givens arrested K.J. for battering F.B. with a pipe.

F.B. testified at the adjudication hearing that on the night in question, she walked out of her house on Hickerson Street and observed her brother and K.J. “fussing” in the street. She noticed K.J. backing up from her brother and then fleeing in the direction of his own home two blocks away. Thereafter, F.B., her brother, nephew, and two of their friends went searching for K.J. They found him around the corner standing inside of his own fenced yard. K.J. then began arguing with one of the boys, M. K.J.’s mother came out onto the porch, briefly spoke to K.J., and returned inside the house.

|f,One of F.B.’s companions, P., advised F.B. not to proceed any further to KJ.’s home. Heeding P.’s advice, F.B. and her seven-year-old nephew began walking back to her home in one direction down Marque Street, while her brother and the remainder of her friends walked away in the other direction down Grant Street. According to F.B., as she was walking away from KJ.’s residence and towards her own home, K.J. approached her from behind and struck her on the back with a metal pipe or stick. F.B. testified that she turned around, pushed K.J. and they struggled over the pipe. K.J. eventually gained control over the pipe and then he hit her on the head with it.

F.B.’s mother, B.B., also testified at the adjudication hearing. Ms. B. stated that F.B. was transported to Tulane Medical Center where she received treatment for the injuries sustained during the altercation, including six stitches to mend the laceration to her head. Ms. B. identified several photographs of F.B.’s injuries taken by the crime lab while she was in the hospital, which were admitted into evidence over defense counsel’s objection. No documentation or paperwork from the hospital corroborating F.B.’s injuries or treatment was presented at trial.

K.J. was the sole witness for the defense. He stated that he was skateboarding in front of his house with a friend when F.B. and five others came down the street towards him. According to K.J., three of the boys from the group were holding two-by-fours and F.B. was carrying a wooden stick. K.J. testified that one of the boys named M. approached him, acting as if he was going to shake K.J.’s hand, but instead, hit K.J. with a piece of glass and then ran off.

17According to K.J., his mother came outside onto their porch with the intention of talking to M., but he had walked away. She instructed K.J. to go talk to the other kids. His mother then returned inside the house and proceeded to get into her car so that she could go tell the boys to leave. According to K.J., once his mother got into her car, M. and the three bigger boys ran away, but F.B. remained standing there with a little boy. K.J. claims that he then went towards F.B., who was approximately two blocks away, and attempted to take the stick she was holding away from her. A struggle ensued. K.J. testified that he was able to gain control of the stick, however, F.B. would not stop grabbing his shirt and hitting him. K.J. admitted to hitting F.B. on one occasion behind her head, but only because she continued to hit him in the face. K.J. believed that had he not taken the stick away from F.B., she would have struck him with it. K. J. denies ever having seen a metal pipe.

The record clearly reflects that sufficient evidence existed for the trial court to find that all of the required elements were presented to prove that a dangerous weapon had been used and an injury had occurred, considering that K.J. admitted to intentionally approaching F.B. and striking her behind her head with a stick or pipe with such force that she sustained a serious injury to her face. Because of the severity of the laceration, F.B. was forced to seek medical treatment and received six stitches to mend the cut. At the close of the evidence, the trial judge iterated her findings as follows:

After hearing the statements from the witnesses as well as Counsel for the State and Counsel for the Defense, the IsCourt finds that [K.J.] is guilty of aggravated battery against [F.B.]. The Court finds that [K.J.] did most certainly use, I’ll read the statute, force, intentional force, you went behind her, your [sic] hit her in the back. There were five boys. You testified that yourself. You went after one girl. So that’s pretty pathetic I must say, that’s number one. Number two, the young lady testified that she was standing at the corner, that you were behind your fence, and you also testified that they also had 2 by 4’s and you went after her to take a stick. So how ever a 2 by 4 became a stick, a pipe, or what ever [sic] you used an object that was dangerous and that could have caused her great bodily harm. You’re very fortunate that the only thing that happened was that she had a laceration to her forehead. You could have caused a concussion or anything else. So for that you should be punished.
In addition to that, she stated that she was standing on the corner, that you were behind the gate, your mother got into the car, you had the opportunity to stay in your house, you had the opportunity to get in the car with your mother. You testified that five boys went in another direction and that she was standing on the corner with a little boy and you attacked her. You attacked her from behind when she turned around you were not trying to get a stick from her [K.J.], I do not believe your testimony. When she turned around you struck her in the head and you intended to hurt her, okay. So we find you adjudicated delinquent of the charge of aggravated battery.

Applying the relevant standard of review to these facts and the reasonable inferences that may be made therefrom, and according great deference to the trial court’s credibility determinations and assessment of the witness’ testimony, we conclude that the juvenile judge was not clearly wrong in finding beyond a reasonable doubt that K.J. committed an aggravated battery upon F.B. and that K.J. is delinquent. We, therefore, conclude that there is sufficient evidence to affirm the finding of delinquency.

J^YICTIM RESTITUTION

In his next assignment of error, K.J. contends the juvenile court erred by ordering him to pay restitution in the amount of $600.00 to the victim in the absence of corroborating medical evidence. K.J. contends there is no statutory basis authorizing a juvenile court to order restitution for non-pecuniary damages.

La. Ch.C.art. 897 B(2)(c) provides, in pertinent part:

(2) The court may impose any other term and condition deemed in the best interests of the child and the public, including:
(c) A requirement that the child make reasonable restitution to any victim of any personal or property damage caused by the child in the commission of the delinquent act.

From the outset, we note that the Children’s Code does not provide definitions for the terms “reasonable restitution” or “any personal or property damage,” and our jurisprudence has not yet elaborated upon these terms in relation to juvenile matters. Accordingly, we look to the Code of Criminal Procedure for guidance. See La. Ch.C. art. 104(1).

Pursuant to La.C.Cr.P. art. 895 A, when a court suspends the imposition or execution of a sentence, as in the instant case, it may impose any specific condition reasonably related to the defendant’s rehabilitation. Additionally, the sentencing judge is expressly authorized to require the condition of “restitution to the aggrieved party for damage or loss caused by his offense in an amount to be | ^determined by the court.” La.C.Cr.P. art. 895 A(7). See State v. Alleman, 439 So.2d 418, 419 (La.1983).

In Alternan, the defendant, who was convicted of making three obscene phone calls and was ordered, as a condition of probation, to pay restitution to the victims in the amount of $500 each, argued that a sentencing judge may not impose the condition of restitution except for a tangible or actual physical loss, as opposed to the mental anguish, apprehension, and annoyance suffered by a defendant’s victims. In affirming the restitution ordered, the Supreme Court, relying on the express language of La.C.Cr.P. art. 895 A(7), stated:

But the sentencing judge is authorized unqualifiedly by statute to require “reparation or restitution to the aggrieved party for damage or loss caused by his offense,” and this is an explicit component of his general authority to impose any specific condition reasonably related the defendant’s rehabilitation. La. C.Cr.P. art. 895(A)(7). There is nothing in this language or in our law which would indicate a legislative intent to limit reparation or restitution to bodily injury or property damage. In the case of torts, for example, the jurisprudence has no difficulty in awarding a pecuniary indemnification for mental suffering, when it appears to be real and serious. Moreover, there is no reason to believe that restitution for such harms is any more reasonably related to rehabilitation than reparation for bodily injury or damage to property. (Case citations omitted).

While we recognize the potential danger of what arguably amounts to an award of civil damages in a criminal proceeding, we are constrained by the legislative provisions contained in La.C.Cr.P. art. 895 A(7) and the Supreme Court’s decision in Alleman, to find that in cases where evidence of bodily injury or property damage to the victim has not been quantifiably established, as long as Inthe amount of restitution ordered is reasonable and is reasonably related to the defendant’s rehabilitation, the sentencing judge in the judge’s discretion may properly order restitution for non-pecuniary damages to the victim.

La.C.Cr.P. art. 895.1 A mandates a court, when the victim has suffered any “monetary loss or medical expense,” to order payment of restitution, as a condition of probation, “in a reasonable sum not to exceed the actual pecuniary loss to the victim.” Further, La.C.Cr.P. art. 895.1 B(5) authorizes the court to order payment “to the victim to compensate him for his loss and inconvenience,” which amount may be in addition to the amounts ordered under Article 895.1 A. See State v. Diaz, 615 So.2d 1336, 1337 (La.1993).

In Diaz, the defendant was convicted of second degree battery. The sentencing judge ordered, as a condition of probation, “full and complete restitution ... for any loss, injury or damage sustained by the victim.... ” The judge further ordered that “restitution is to be made in the amount that he may be found civilly liable for in an amount sufficient to compensate the victim for the loss, injury or damage.” Diaz, 615 So.2d at 1337. The sentencing judge, apparently preferring to await the outcome of a companion pending civil suit, did not set an amount certain for restitution as required by La.C.Cr.P. art. 895 A(7), nor did the judge set forth a method of payment based upon the earning capacity and assets of the defendant as required by La.C.Cr.P. art. 895.1 A(l). Because the defendant failed to properly raise the sentencing defects on appeal, the court of appeal did not review the restitution aspect of the defendant’s sentence. State v. Diaz, 612 So.2d at 1024, n. 1. The Supreme Court, however, in a per curiam opinion, addressed the sentencing judge’s order of restitution and, specifically referring to La.C.Cr.P. arts. 895.1 A and B, stated that “[tjhese articles focus primarily on restitution for pecuniary losses caused by the criminal activity and not on providing criminal sanctions to enforce collection of civil damages (including non-pecuniary damages).” [Emphasis supplied.] While the Supreme Court did not specifically strike or otherwise vacate the sentencing judge’s restitution order, it did direct that on “resentencing the judge should determine a specific (or determinable) reasonable amount of restitution and should order payment ‘either in a lump sum or in monthly installments based on the earning capacity and assets of the defendant.’ ” Diaz, 615 So.2d at 1337.

Our reading of the Supreme Court’s decision in Diaz and its application of La.C.Cr.P. arts. 895.1 A(l) and B(5), leads us to the conclusion that in a criminal case where the evidence establishes the victim has suffered a direct loss of actual cash, monetary loss due to physical damage to or loss of property, and/or incurred medical expenses, the sentencing judge must order restitution in an amount not to exceed the actual loss sustained or medical expense incurred by the victim as established at trial. The court may further order payment of an additional amount to the victim for any quantifiable loss or inconvenience (ie. costs of rental car, cabs, medical equipment, etc.) suffered as a result of the criminal activity for which the defendant was convicted.

[isln the case at bar sub judice, when sentencing K.J., the juvenile judge ordered K.J. to pay, as a condition of probation, “$600.00 in restitution, $100.00 for each stitch that she had to get when she was put into the hospital.” In issuing this order, the judge stated that “[K.J.] needs to do some type of community service to pay restitution. So I don’t know how we’re going to do this but he’s going to pay $600.00 in restitution to this family, to this little girl in actuality. I don’t care if he has to pay $10.00 a week.” In the context of the record, the trial judge was arguably ordering K. J. to pay restitution for a pecuniary loss; however, the record contains no evidence, ie., medical invoices, substantiating that F.B. sustained any pecuniary loss.

Based upon our review of the record, it is unclear whether the juvenile judge intended to order K.J. to pay restitution to F.B. for any non-pecuniary losses she suffered as a result of being hit in the head with a pipe, or if the order for K.J. to pay restitution was for pecuniary losses relating to the actual cost of the stitches F.B. received when K.J. struck her in the head with the pipe. If the order for K.J. to pay restitution was intended for F.B.’s non-pecuniary losses, we find that La. Ch.C. art. 897 B(2)(c) and La.C.Cr.P. art 895 A(7), together with the Supreme Court’s decision in Alleman, provide the requisite authority for the juvenile judge to order restitution for these damages and we would affirm the sentence ordering restitution. The amount ordered is reasonable ($100 per stitch), and is reasonably related to K. J.’s rehabilitation.

114If, on the other hand, the judge’s order for K.J. to pay restitution was for the actual pecuniary losses suffered by F.B. as a result of the battery, we find the record does not support such an order, and it should, accordingly, be stricken. The record is devoid of evidence regarding any specific or quantifiable monetary losses or medical expenses incurred by F.B. relative to the medical treatment she received following the incident as is required by La. C.Cr.P. art. 895.1 A(l). Further, the record contains no proof of any additional pecuniary losses or inconvenience suffered by F.B. that would support an order of restitution under La.C.Cr.P. art. 895.1 B(5).

Accordingly, we remand this matter to the juvenile court seeking clarification regarding the nature of the restitution ordered. Assuming the trial judge ordered K.J. to pay $600.00 restitution to F.B. for any non-pecuniary losses she may have suffered as a result of the battery, we hereby conditionally affirm the order for the reasons previously stated. To the extent the trial judge ordered K.J. to pay restitution to F.B. in the amount of $600.00 for the pecuniary losses, i e. medical expenses, she incurred due to the battery, we vacate that portion of the sentence on the basis that it is not supported by the record on appeal.

Additionally, in the event the restitution ordered by the trial court was for F.B.’s non-pecuniary losses, we note the trial judge failed to set a specific payment schedule by which K.J. is to make restitution to F.B. The Children’s Code does not provide for a method of payment so, again, we look to the provisions of the Criminal Code. La. Ch.C. art. 104. According to La.C.Cr.P. art. 895.1 A, the restitution payment shall be made, within the discretion of the court, either in a | lfllump sum or in monthly installments based on the earning capacity and assets of the defendant. Here, the trial judge’s ruling on payment of restitution does not comply with this provision. This court has found a trial court’s failure to set a determinate payment schedule for restitution payments-is an error requiring the case to be remanded for purposes of specifying how the payments should be made. See State v. Stewart, 605 So.2d 648, 650 (La.App. 4th Cir. 1992). Therefore, we remand the matter to the trial court for purposes of determining the method of restitution. See State v. McGee, p. 7 (La.App. 5 Cir. 10/28/08), 996 So.2d 1191, 1195.

CONCLUSION

For the foregoing reasons, the disposition finding K.J. delinquent is affirmed. We conditionally affirm the order of restitution for K.J. to pay F.B. for her non-pecuniary losses associated with the battery and remand the matter to the juvenile court with instructions seeking clarification regarding the nature of the restitution ordered (ie., for non-pecuniary losses or pecuniary losses); if, on remand, it is determined restitution was ordered to pay for the victim’s pecuniary losses, the restitution order is vacated for the reasons previously stated. If, on remand, it is confirmed that restitution was ordered to compensate the victim for her non-pecuniary losses, the trial court is instructed to determine the method of restitution.

AFFIRMED IN PART, CONDITIONALLY AFFIRMED IN PART, AND REMANDED WITH INSTRUCTIONS.

      . See La. Ch.C. art. 804(1) and (3).

      . To protect the identities of the juveniles and their families involved in this case, we refer to the defendant, the victim, and others by their initials throughout this opinion.

      . The Jackson sufficiency-of-evidence standard is "whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.” Jackson, 443 U.S. at 310, 99 S.Ct. 2781. This standard tests the evidence against a hypothetical rational trier of fact; all evidence, whether admissible or not, is considered. See State v. Jackson, 09-2406, p. 3 (La. 1/19/11), 55 So.3d 767, 771-72 ("To the extent that Jackson announced an objective standard for reviewing the sufficiency of the evidence from the perspective of a hypothetical rational, pro-prosecution trier of fact, the decision ‘does not require scrutiny of the reasoning process actually used by the factfin-der — if known.’ ”) (quoting Jackson, 443 U.S. at 319, n. 13, 99 S.Ct. 2781).

      . "Non-pecuniary” damages are defined as "[d]amages that cannot be measured in money.” Black’s Law Dictionary 418 (8th ed.2004). In contrast, "pecuniary” damages are generally defined as those "that can be estimated and monetarily compensated.” Id.

      . La. Ch.C. art. 104(1) provides that "[w]here procedures are not provided in this Code, or otherwise by law, die court shall proceed in accordance with: (1) The Code of Criminal Procedure in a delinquency proceeding....”

      . We note that the dissenting judges in Alle-man were also concerned with "the concept of awarding civil damages in a criminal proceeding.” Alleman, 439 So.2d at 420.

      . According to the court of appeal opinion in State v. Diaz, 612 So.2d 1019 (La.App. 2 Cir. 1993), the victim suffered a double fracture of his jaw requiring a five-hour reparative surgery to wire the fractured bone together and immobilization for seven weeks. At the time of the criminal trial and sentencing, a companion civil suit for monetary damages was pending.

      .We specifically note the Supreme Court’s choice of the word "primarily” rather than stating that these articles focus "solely” or "only” on pecuniary damages.

      . We note that in the Diaz case, the Supreme Court did not mention its prior decision of Alleman or discuss La.C.Cr.P. art. 895 A(7).

      . Given the current costs of medical care, the medical expense incurred as a result of the emergency medical treatment and six stitches to the forehead F.B. received likely exceeded $600.00.

      . See State v. J.B., 94-213 (La.App. 3 Cir. 10/5/94), 643 So.2d 402, wherein a juvenile adjudicated delinquent for committing sexual battery on two victims was ordered to pay restitution of $10,000.00 to each victim and their counseling costs for two years. In response to the defendant’s argument on appeal that there was no statutory basis authorizing the juvenile court to order restitution for non-pecuniary damages, our brethren on the Third Circuit disagreed and affirmed the award, finding authority in La. Ch.C. art. 897 B(2)(c), La.C.Cr.P. art. 895 A(7), and, the Supreme Court’s decision in State v. Alleman, 439 So.2d 418 (La.1983).


source: Caselaw Access Project

author: ROLAND L. BELSOME, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Avery YOUNG.
    No. 2011-KA-0046.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 17, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Arthur A. Lemann III, Arthur A. Lem-ann III & Associates, Inc., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

1 Defendant-Appellant, Avery Young, appeals the trial court’s denial of his motion to withdraw his guilty plea. For the reasons that follow, we affirm the conviction, vacate the sentence, and remand to the trial court for the purpose of conducting an evidentiary hearing.

STATEMENT OF THE CASE

On August 25, 2009, Defendant was charged with second-degree kidnapping (count one). On September 1, 2009, he entered a plea of not guilty. On October 28, 2009, following a Prieur hearing, the trial court granted the motion in part and denied the motion in part. The trial court clarified with the state and the defense what testimony could be introduced at trial. On July 12, 2010, the state filed a motion to use evidence of similar crimes; the motion was denied. The state filed a motion of intent to use an expert witness; the motion was granted. Both the state and the defense filed motions in limine agreeing to allow testimony about the victim’s past relationship with defendant, but not other relationships. The state filed a motion to use a first reporter witness; the motion was granted.

|2The state amended the bill of information to add forcible rape (count two) and amended the wording and date of the offense. Defendant pleaded not guilty to the amended bill of information. Trial began on July 13, 2010 and was continued to July 14, 2010. On July 14, 2010, the state dismissed the forcible rape charge. Defendant pleaded guilty to second-degree kidnapping. On August 20, 2010, the defense filed a motion to appoint a sanity commission; the motion was granted. On August 26, 2010, following a sanity hearing, the trial court found Defendant competent to proceed. The defense filed a motion to withdraw the plea of guilty; the motion was denied. The defense filed a motion to stay the sentencing; the motion was denied. The defense noted its objection.

Defendant was sentenced to serve fifteen years at hard labor with credit for time served and concurrent with his parole revocation sentence in Section “C” but without benefit of parole, probation, or suspension of sentence for the first two years. On August 30, 2010, the trial court denied the motion to reconsider the sentence. This appeal followed.

FACTS

R.C., the victim, testified at length during Defendant’s trial. R.C. testified that she met Defendant while she and her sister were apartment hunting in the Mid-City area of New Orleans. When R.C. and her sister stopped to inquire about a rental, Defendant approached them, and a conversation ensued. Defendant telephoned his mother about the rental. During the conversation, R.C.’s sister and Defendant learned that they had mutual interests in photography and gardening, and exchanged phone numbers. Approximately one month later, the two women leased the apartment. In April of 2009, R.C. and Defendant began a romantic relationship.

| sIn July 2009, Defendant underwent eye surgery. R.C. went to Defendant’s house to visit with him after his surgery, and stayed from approximately 7:00 p.m. to 10:30 p.m. During that time, Defendant and R.C. engaged in consensual sexual intercourse. R.C. left Defendant’s house to meet with some out-of-town friends. R.C. returned to Defendant’s house at approximately 2:50 a.m., two hours later than she had advised Defendant that she would return. Defendant began to berate her for being late, and a verbal altercation ensued.

R.C. advised defendant that she was leaving the house. Defendant slammed R.C. against the bedroom door and locked the deadbolt, blocking her exit. Defendant threw R.C. to the floor and placed his knee on her ribcage, as well as a chokehold on R.C.’s neck. As she began to lose consciousness, Defendant told R.C. that she would now know how it would to feel to die. Maintaining the chokehold, Defendant picked up R.C. and placed her on the bed. Defendant repeatedly choked and slapped R.C. across the face until she lost consciousness.

Defendant continued to interrogate R.C., acting as though he was going to punch her in the face, then repeatedly slapping her with an open hand to prevent bruising. She sustained numerous cuts to the inside of her mouth which bled onto her sweatshirt. When R.C. tried to scream to get the attention of the downstairs tenant, Defendant obstructed R.C.’s breathing and told her that he would throw her out of the window if she tried to scream again. Defendant then produced hand restraints that he had used for sex play, restrained R.C.’s hands behind her back, and placed her onto the bed, advising her that this was her last day on earth and that he was going to kill both of them.

R.C. suggested to Defendant that he consider the consequences of his actions, to which he responded that there would be no consequences because they |4both were going to die. At one point, R.C. expressed to Defendant that she needed to use the toilet, which he allowed, but did not permit her to clean herself. Defendant then retrieved a set of shackles, removed R.C.’s clothing and shackled her to the bed.

R.C. asked Defendant for a blanket and some water, as her mouth was bleeding. Defendant denied her requests, punching R.C. several times in her solar plexus area, causing her to lose her breath, advising her that it was her last day on earth. After R.C. apologized to Defendant and expressing that she had wronged him, Defendant played R.C.’s favorite movie soundtrack. Upon hearing the music, R.C. began to cry and told Defendant she deserved to be punished; only then did Defendant give R.C. the blanket and water that she requested. He also gave her an over-the-counter painkiller when she complained of pain in her ribs and difficulty breathing. Defendant then placed a Klo-nopin pill in R.C.’s mouth, which she spit out. Defendant forced the pill into her mouth until it dissolved, and R.C. lost consciousness.

When R.C. awoke at approximately 6:00 a.m., she was still restrained. Despite R.C.’s adamant protests, Defendant raped R.C., and she lost consciousness again. When R.C. subsequently awoke some time later, Defendant was holding her, and she was no longer restrained. R.C. confronted Defendant about the rape, at which time Defendant began to cry and apologized for his actions. Defendant refused to allow her to leave the apartment until R.C. explained that people were expecting her and that if she did not arrive, they would become alarmed. Defendant handed R.C. her cell phone, which he had placed out of her reach, and 15watched as she sent a text message to her sister explaining that their appointment to see an apartment would have to be rescheduled. R.C. then contacted the apartment manager to reschedule the appointment. Defendant retrieved the cell phone and again placed it out of R.C.’s reach.

R.C. told Defendant that because he raped her, their relationship was over, and Defendant began to cry, explaining that he was abused as a child, and that because he did not have a childhood, all he wanted was a baby. Defendant then told R.C. that he would allow her to leave on the condition that she would bear his child. Desperate to escape, R.C. agreed. After they engaged in sexual intercourse, R.C. and Defendant left the apartment together. Defendant insisted that he drive R.C. home so that he could then bring her back to his apartment; he also refused to return her cell phone. Defendant drove to a restaurant in the French Quarter.

Under the pretext of calling the apartment manager, R.C. retrieved her cell phone from Defendant. She entered the restaurant and sent a text message to her sister informing her that Defendant had raped her and to contact Defendant’s mother, Veronica Young. R.C. erased the message and warned her sister not to respond because Defendant was reading her text messages. Defendant entered the restaurant and asked R.C. if she had contacted his mother; she answered in the affirmative. After R.C. advised Defendant that their relationship was over, he left the restaurant.

Shortly thereafter, R.C.’s sister arrived at the restaurant, at which time R.C. related what had occurred. That evening, R.C.’s sister and her friends convinced R.C. to report the rape to the police and to also go to the hospital. At the hospital, [fiR.C.’s injuries were treated, and a sexual assault examination was performed. R.C. also spoke at length with a sexual assault nurse examiner (“SANE”).

ERRORS PATENT

A review of the record reveals no errors patent.

DISCUSSION

Defendant asserts two assignments of error for review. First, Defendant submits that the trial court abused its discretion in denying his motion to withdraw his plea of guilty; second, Defendant argues that the trial court erred denying his motion to withdraw without conducting an evidentiary hearing.

In support of his argument, Defendant contends that his guilty plea was not knowingly and voluntarily entered. Specifically, as stated in his affidavit accompanying the motion to withdraw, Defendant argues that his plea was a product of coercive influences which overwhelmed the will of a psychologically weak and emotionally distraught person. Defendant further contends that the report of the forensic psychologist, Marc L. Zimmerman, Ph.D., M.P., supports a finding that his plea agreement was not a rational choice and was not made in a knowing and voluntary manner, but was instead entered out of panic consistent with Defendant’s medical history of making confused and irrational decisions. This state of panic, he argues, resulted from his inability to adequately confer with his parents regarding the terms of the plea agreement and Defendant’s perception that |7his attorney had become medically incapacitated during the trial. Additionally, Defendant submits that he perceived his counsel’s cross-examination of R.C. as ineffective and that such ineffective cross-examination would lead to Defendant’s conviction on both charges.

Defendant also submits that his counsel neither explained the possible option of a plea pursuant to Crosby, nor the elements of second-degree kidnapping. Defendant also argues that his counsel was unable to locate a critical witness, and insists that the facts do not support the charge of second-degree kidnapping. Accordingly, Defendant asserts that pursuant to the totality of the circumstances test, the trial court should have conducted an evidentia-ry hearing before denying his motion to withdraw his guilty plea.

Article 559 provides that a court “may permit a plea of guilty to be withdrawn at any time before sentence.” La. C.Cr.P. art. 559(A). Likewise, the Louisiana Supreme Court in State v. Lewis, 421 So.2d 224 (La.1982), held that a trial court may permit the withdrawal of a guilty plea after sentencing if the court finds that the guilty plea was not entered freely and voluntarily, or if there was an inadequate colloquy advising the defendant of the rights he was waiving by pleading guilty and therefore was constitutionally infirm. There is “no absolute right to withdraw a previously entered plea of guilty.” State v. Pichon, 96-0886, p. 2 (La.App. 4 Cir. 11/20/96), 684 So.2d 501, 502. The withdrawal of a guilty plea is within the discretion of the trial court and is subject to reversal only if that discretion is abused or arbitrarily exercised. State v. Johnson, 406 So.2d 569 (La.1981);s State v. Rhea, 2004-0091 (La.App. 4 Cir. 5/19/04), 876 So.2d 181, writ denied, 2004-0901 (La.10/1/04), 888 So.2d 1005.

For a guilty plea to be found valid, there must be a showing that the defendant was informed of and waived his constitutionally guaranteed right to trial by jury, right of confrontation and right against compulsory self-incrimination. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State ex rel Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971). In determining whether the defendant’s plea is knowing and voluntary, the court must not only look to the colloquy concerning the waiver of rights, but also other factors which may have a bearing on the decision. State ex rel La-Fleur v. Donnelly, 416 So.2d 82 (La.1982); State v. Galliano, 396 So.2d 1288 (La. 1981); see also State v. Calhoun, 96-0786 (La.5/20/97), 694 So.2d 909. Similarly, in reviewing whether the trial court abused its discretion, courts have looked to the guilty plea colloquy to determine whether the defendant was advised of the consequences of his plea and whether he voluntarily qnd intelligently waived his rights. Id.

For example, in State v. Blanchard, 2000-1147 (La.4/20/01), 786 So.2d 701, the defendant alleged that his guilty pleas to sex offenses were not intelligently made because: (1) he mistakenly believed that he could avoid the sex offender registration requirements; (2) the State’s late production of other crimes evidence rendered his subsequent plea involuntary; and (3) he pled guilty at counsel’s urging because counsel was hesitant to cross-examine a victim because counsel knew members of the victim’s family. The trial court denied the motion to withdraw his pleas, but the appellate court reversed. The Louisiana Supreme Court reversed after determining that the transcripts of the colloquy revealed that the pleas were given in exchange for the State’s agreement to reduce the charges. The |9Court found that the colloquy also reflected that the trial court conducted a thorough plea colloquy with the defendant, fully advised him of the trial rights he was waiving, and obtained defendant’s assurances that he understood his trial rights, that he was waiving them voluntarily, and that he was satisfied with the representation he had received from defense counsel.

In State v. Johnson, 406 So.2d 569 (La.1981), the trial court denied the defendant’s motion to withdraw his guilty plea, which he filed prior to sentencing. The defendant based his motion on his claim that he was intimidated into pleading guilty. The Louisiana Supreme Court reviewed the plea colloquy and noted that the trial court had meticulously explained the defendant’s rights, which he waived, and the possible consequences of the plea. The Court found that colloquy thus established that the defendant’s plea was voluntarily given. The Court also noted that during an evidentiary hearing on the motion to withdraw the plea, the defendant failed to show that his plea was the product of intimidation.

In State v. Rhea, supra, the defendant pro se moved to withdraw his guilty plea because he contended that his counsel intimidated him into pleading guilty because she “feared” going to trial and told him that it was in his best interest to take the plea and then file for post-conviction relief, during which time she would represent him. The defendant also alleged in his motion that counsel was ineffective for her fear of going to trial and that there was no factual basis for his plea. This court found that the plea bargain offered by the State, to reduce several counts for which he originally was subject to mandatory life sentences and to dismiss other counts, was indeed in the defendant’s best interest. Additionally, this court rejected the defendant’s allegation that it was his attorney’s fear of trial that coerced him into pleading guilty.

Jjnln this case, in the middle of trial, defense counsel and the State announced to the trial court that a plea had been reached. Prior to taking the plea, the trial court noted that the State agreed to dismiss the forcible rape charge and promised not to file a multiple bill of information against defendant in exchange for Defendant pleading guilty to second-degree kidnapping with a sentence of fifteen years at hard labor. The court conducted a lengthy colloquy during which it fully complied with the requirements of Boykin v. Alabama, supra, and with the statutory requirements of La.C.Cr.P. art. 556.1. The court fully advised Defendant of his riShts and established that Defendant had knowingly waived them. The court further confirmed that Defendant understood that only the promises made to him in connection with the plea bargain were enforceable. The court stated that it intended to sentence Defendant to serve fifteen years at hard labor with the first two years to be served without benefit of parole, probation or suspension of sentence. The trial court also established that the plea was not the product of any force, threats, or coercion.

Furthermore, when the court asked Defendant if he was satisfied with his attorney and his representation, he answered in the affirmative. The court found that there was a basis in law and fact for the plea, and it accepted the plea. The transcript also reflects that Defendant clearly responded to all questions posed by the trial court, and does not indicate that Defendant engaged in behavior that would indicate to the trial court that he was distraught, panicked or dissatisfied during the plea colloquy. In denying the request for an evidentiary hearing, the trial court stated:

I don’t believe an evidentiary hearing is necessary. I was the presiding Judge over the original trial. I was he[re] for all the circumstances under which this plea of guilty was taken. It is, in fact, a plea bargain agreement that was discussed extensively between the State and the Defense. I’ll deny your stay.

Notably, Defendant was found to be competent at the time he entered his plea of guilty. On August 26, 2010, Dr. Rafael Salcedo, a forensic psychologist, met with Defendant and Dr. Richoux, the other member of the court-appointed Insanity commission. At the competency hearing, Dr. Salcedo testified that while he agreed that Defendant exhibited symptoms of post-traumatic stress disorder from a history of sexual trauma, the disorder was not the type that would so gravely impair an individual such that it would render a person incapable of understanding that he was entering a guilty plea. Additionally, Dr. Salcedo testified that there was no evidence that Defendant suffered from a psychiatric disorder at the time he entered his guilty plea on July 16, 2010 that would have impaired his ability to freely and voluntarily enter his plea. Specifically, he testified that “an individual’s ability to understand the difference between entering a guilty plea and a not guilty plea is such a basic simple fundamental one that it would require either severe mental retardation or severe psychosis to override that.... Mr. Young did not report psychotic symptoms.” Dr. Salcedo characterized post-traumatic stress disorder as only one of the State v. Bennett criteria employed to determine whether a defendant is competent to proceed.

11sHowever, Dr. Zimmerman, a forensic psychologist who also examined Defendant, reached differing conclusions with respect to Defendant’s mental state. Specifically, Dr. Zimmerman submitted a written report in which he concluded that Defendant’s decision to enter a guilty plea was not made in a knowing and voluntary manner, and that Defendant may have been suffering from difficulties which rendered him unable to fully grasp the court proceedings and unable to assist his attorneys. Dr. Zimmerman also found that Defendant’s plea was not a rational choice, but was rather a decision made out of panic and consistent with his history of making confused and irrational decisions. Defense counsel asserts that in addition to Dr. Zimmerman, counsel intended to call Defendant’s parents, attorneys Robert Glass and Jeffrey Smith (Defendant’s trial counsel), as well as Defendant to testify at the evidentiary hearing.

| ^Although the trial court conducted a thorough and detailed colloquy with Defendant regarding his guilty plea, the trial court was obligated to conduct an eviden-tiary hearing with regard to Defendant’s assertion that the plea was made involuntarily. Accordingly, we find that the trial court abused its discretion in denying the request for an evidentiary hearing under these facts and circumstances. See State v. Green, 94-617, p. 3 (La.App. 3 Cir. 12/7/94), 647 So.2d 536, 538, (noting that “[i]f a motion for withdrawal of a guilty plea contains specific allegations that the guilty plea was involuntary, the Boykin colloquy was defective, there was a breach of the plea bargain agreement, or some other specific allegation that the plea is constitutionally infirm, the trial court should vacate the plea or conduct a hearing on the matter”)(emphasis added). The matter is thus remanded to the trial court to conduct an evidentiary hearing in connection with Defendant’s motion to withdraw his guilty plea.

Additionally, Defendant argues that the motion to withdraw his guilty plea should have been granted because the bill of information fails to state a crime committed under a valid statute. Specifically, Defendant argues that reading the individual subparts of La. R.S. 14:44.1 with the statute as a whole, a fair interpretation is that where the prosecution is based on subpart A(3), where the victim is physically injured, the statute is violated when the victim was imprisoned without a weapon for more than seventy-two hours, or when the physically injured victim was imprisoned for any length of time with the use or perceived use of a weapon. Here, Defendant asserts that the imprisonment was for less than seventy-two hours, and that no weapon or perceived weapon was used. Accordingly, he argues that given these facts, he cannot be convicted of second-degree kidnapping.

11fiLa. R.S. 14:44.1, in pertinent part, provides:

A. Second degree kidnapping is the doing of any of the acts listed in Subsection B wherein the victim is:
(1) Used as a shield or hostage;
(2) Used to facilitate the commission of a felony or the flight after an attempt to commit or the commission of a felony;
(3) Physically injured or sexually abused;
(4) Imprisoned or kidnapped for seventy-two or more hours, except as provided in R.S. 14:45(A)(4) or (5); or
(5) Imprisoned or kidnapped when the offender is armed with a dangerous weapon or leads the victim to reasonably believe he is armed with a dangerous weapon.
B. For purposes of this Section, kidnapping is:
(1)The forcible seizing and carrying of any person from one place to another; or
(2) The enticing or persuading of any person to go from one place to another; or
(3) The imprisoning or forcible secreting of any person.

A simple reading of La. R.S. 14:44.1 reflects that any one of the elements enumerated in Subpart B combined with any of the elements enumerated in Subpart A completes the crime of second-degree kidnaping. The bill of information as amended prior to trial charges defendant with “committing second-degree kidnapping of R.C., wherein R.C. was physically injured while imprisoned.” Thus, the bill of information charged defendant with a crime under a valid statute. Furthermore, Defendant’s claim that the facts do not support the charge is a claim of sufficiency of the evidence. Because Defendant failed to file a motion to quash the bill of information, prior to trial, any claim of sufficiency is hnthus waived on appeal. See La.C.Cr. P. arts. 531, 532, and 535; see also State v. Johnson, 2007-1397 (La.App. 4 Cir. 6/4/08), 985 So.2d 1259.

CONCLUSION

For the foregoing reasons, Defendant’s conviction is affirmed. Defendant’s sentence is hereby vacated and the matter remanded for the purpose of conducting an evidentiary hearing in connection with Defendant’s motion to withdraw his guilty plea.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED

      . State v. Prieur, 277 So.2d 126 (La.1973).

      . Both the State and the defense objected and noticed intent to file writs; however, on December 4, 2009, both the State and the defense informed the trial court that they would not file writs.

      .The State objected and gave its notice to file writs; however, no writs were filed.

      . R.C. testified that this set of shackles restrained both her arms and her legs so that she was in an "X” shape.

      . Corey Lymous, a detective with the NOPD sex crimes unit, also testified regarding the rape investigation, which was initiated after the sexual assault nurse contacted the police department as R.C. was being discharged from the hospital. Detective Lymous testified that Defendant was initially arrested for domestic violence and false imprisonment based upon R.C.'s initial report to the police; Defendant was thus already incarcerated at the time that he was subsequently charged with forcible rape.
      Jeanne Dumestre, the SANE nurse who examined R.C., also testified as an expert in the field of sexual assault examination.

      . Defendant contends that Robert Glass' diagnosis of Parkinson’s disease was not disclosed to him until the day before the plea agreement proceedings.

      . State v. Crosby, 338 So.2d 584 (La.1976).

      . The trial court confirmed that Defendant understood and knowingly waived his rights in connection with his guilty plea:
      THE COURT: Do you understand you have a right to a trial by Judge or Jury and, if convicted, a right to appeal and by entering a plea of guilty in this case you are waiving your rights to trial and appeal?
      MR. YOUNG: Yes, ma’am.

      THE COURT: You understand that by pleading guilty you waive your right to confront and cross examine the witnesses who accuse you of this crime and the compulsory process of the Court to require witnesses to appear and testify for you?
      MR. YOUNG: Yes, ma'am.
      ⅝ ⅛ * ⅝
      THE COURT: Do you further understand that by pleading guilty you waive your rights against self-incrimination, that at your trial you would not have to testify and if you had not testified myself or the Jury would not have held your silence against you, and you also give up the right not to say anything against your interests such as you do by pleading guilty?
      MR. YOUNG: Ido.
      THE COURT: Do you understand that if you elected to have a trial, you would have had the right to have competent counsel represent you at trial and if you had been unable to pay for counsel, I would have appointed competent counsel to represent you, but by entering a plea of guilty, you waive those rights?
      MR. YOUNG: Yes, ma'am.
      THE COURT: Do you understand that you are entitled to a free transcript of this Boy-kin proceeding and you are hereby waiving your right to the free transcript?
      MR. YOUNG: Yes, ma'am.
      THE COURT: Do you understand there is a 30-day limit to appeal this conviction and a two-year time period during which to seek post-conviction relief?
      MR. YOUNG: Yes, ma’am.

      THE COURT: Finally, do you understand that this plea of guilty may be used in a present or future prosecution and may subject you to prosecution as a multiple offender and/or subject you to an enhanced sentence?
      MR. YOUNG: Yes, ma’am.
      THE COURT: Now, when you went over this form with your attorneys, they asked you to put your initials on the left side of the document to indicate — excuse me — to indicate that you understood what it was you were pleading guilty to, what your sentence was going to be and the rights you were giving up as a result of entering your plea of guilty.
      Now, I ask you on the record: Are these your initials here (indicating)?
      MR. YOUNG: Yes, they are.
      THE COURT: And is this your signature here?
      MR. YOUNG. It is. •

      . Defendant testified as follows:
      THE COURT: Are you entering a plea of guilty to this crime because you are, in fact, guilty?
      MR. YOUNG: lam.
      THE COURT: Have you been forced, threatened or intimidated into making this plea?
      MR. YOUNG: I have not.

      . The colloquy with regard to Defendant's satisfaction with his representation is as follows:
      THE COURT: Are you fully satisfied with the handling of your case by your attorneys and the way in which they have represented you?
      MR. YOUNG: Quite, yes.

      . In State v. Bennett, the Louisiana Supreme Court specified the applicable criteria in a competency determination:
      Appropriate considerations in determining whether the accused is fully aware of the nature of the proceedings include: whether he understands the nature of the charge and can appreciate its seriousness; whether he understands what defenses are available; whether he can distinguish a guilty plea from a not guilty plea and understand the consequences of each; whether he has an awareness of his legal rights; and whether he understands the range of possible verdicts and the consequences of conviction. Facts to consider in determining an accused’s ability to assist in his defense include: whether he is able to recall and relate facts pertaining to his actions and whereabouts at certain times; whether he is able to assist counsel in locating and examining relevant witnesses; whether he is able to maintain a consistent defense; whether he is able to listen to the testimony of witnesses and inform his lawyer of any distortions or misstatements; whether he has the ability to make simple decisions in response to well-explained alternatives; whether, if necessary to defense strategy, he is capable of testifying in his own defense; and to what extent, if any, his mental condition is apt to deteriorate under the stress of trial.

        State v. Bennett, 345 So.2d 1129, 1138 (La.1977).
      In State v. Silva, this court recognized the Bennett criteria for determining competency to proceed:
      Mental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense. LSA-C.Cr.P. art. 641. The two-fold test of capacity to stand trial under this article is whether the accused 1) understands the consequences of the proceedings, and 2) has the ability to assist in his defense by consultation with counsel. Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); State v. Bennett, 345 So.2d 1129 (La.1977). Mental retardation or sub-normal intelligence is not in itself proof of incapacity. State v. Lawrence, 368 So.2d 699 (La.1979). The decision as to a defendant’s capacity to proceed should not turn solely on whether he suffers from mental disease or defect, but must be grounded in the nature of the charge, the complexity of the case and the seriousness of the decisions he faces. State v. Narcisse, 426 So.2d 118 (La.1983), cert.denied, 464 U.S. 865, 104 S.Ct. 202, 78 L.Ed.2d 176 (1983).
      Because Louisiana law presumes a person sane and responsible for his actions, the defendant bears the burden of proving he is incapable of standing trial because of mental disease or defect. State v. Bennett, supra.

        State v. Silva, 96-0407 (La.App. 4th Cir. 9/3/97), 699 So.2d 487, 490-491.


author: AMY, Judge.

text:
    Terry W. JONES v. William “Bill” BELT.
    No. 11-945.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 31, 2011.
    Rehearing Denied Oct. 19, 2011.
    Terry Jones, Lake Providence, LA, for Plaintiff/Appellant, in Proper Person.
    Rodney M. Rabalais, Attorney at Law, Marksville, LA for Defendants/Appellees, William O. “Bill” Belt, Sheriff of Avoyelles Parish, Brad Ducote, Timothy Ducote, Ronnie Hegger, Susie Fontenot.
    Randall B. Reiser, D. Heath Trahan, Reiser Law Firm, P.L.C., Alexandria, LA, for Defendants/Appellees, Leon Johnson, Jimmy Sampson.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and BILLY H. EZELL, Judges.
   AMY, Judge.

11 This court issued, sua sponte, a rule ordering the pro se Plaintiff-Appellant, Terry W. Jones, to show cause, by brief only, why the appeal in this case should not be dismissed as untimely with regard to judgments rendered by the trial court on December 14, 2010, and why the appeal should not be dismissed as premature with regard to a ruling purportedly made by the trial court on March 18, 2011. On August 15, 2011, this court received Plaintiffs response to the rule. For the reasons assigned, we hereby dismiss the appeal.

On March 21, 2007, pro se Plaintiff, who is currently incarcerated in Riverbend Detention Center, filed a tort action alleging that, while he was participating in an inmate work program run by the Avoyelles Parish Sheriffs Department, a fellow inmate stabbed him in the hand with a screw driver. Plaintiff named the sheriff of Avo-yelles Parish and several prison officials as defendants.

In December, 2010, Defendants, Leon Johnson and Jimmy Sampson, who had never been served with Plaintiffs lawsuit, filed a motion seeking to have Plaintiffs claims against them dismissed on the ground of abandonment pursuant to La. Code Civ.P. art. 561. On December 14, 2010, the trial court signed a judgment dismissing Plaintiffs claims against Leon Johnson and Jimmy Sampson. On that same day, the trial court also signed a judgment wherein it ordered that Plaintiffs claims against Defendants Susan (unknown last name) and Jimmie (unknown last name), be dismissed. The notice of judgment for both of those judgments was mailed on December 14, 2010. On March 24, 2011, Plaintiff filed a motion for appeal wherein he indicated that he wanted to appeal the two judgments rendered on December 14, 2010, as well as the ruling allegedly ^rendered by the trial court on March 18, 2011. The order of appeal was signed on June 3, 2011, and the appeal record was lodged in this court on August 1, 2011. As stated above, upon the lodging of the record in this appeal, this court issued a rule for Plaintiff to show cause why the appeal should not be dismissed for having been taken prematurely from the purported judgment of March 18, 2011, and for having been untimely taken from the two judgments of December 14, 2010.

With regard to the timeliness issue, we note that La.Code Civ.P. art. 1974 provides that “[t]he delay for applying for a new trial shall be seven days, exclusive of legal holidays. The delay for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by Article 1918.” In situations wherein no application for new trial is filed, La.Code Civ.P. art. 2087(A)(1) provides that a devolutive appeal may be taken within sixty days after the expiration of the delay for applying for a new trial, and La.Code Civ.P. art. 2123(A)(1) provides that a suspensive appeal may be taken within thirty days of the expiration of the delay for applying for a new trial.

In the case at bar, the judgments at issue were signed and the notice of judgment was mailed on December 14, 2010. Although Plaintiff had until December 23, 2010, to apply for a new trial, no application for new trial was filed. As such, the delay for filing a motion and order for a devolutive appeal expired on February 21, 2011. However, the record reflects that the motion and order for appeal were not filed into the trial court’s record until March 24, 2011. As such, we find that Plaintiffs appeal of the two judgments rendered by the trial court on December 14, 2010 is untimely.

lain his response to this court’s rule to show cause order, Plaintiff appears to argue that the appeal should not be dismissed as untimely because on December 18, 2010, four days after the notice of judgment was mailed, Plaintiff filed a notice of intent to seek writs from the judgments at issue. To the extent that Plaintiff seeks to argue that the filing of the notice of intent to seek writs served to interrupt the appeal delays, we find that Plaintiffs argument lacks merit. In that regard, we note that this court has stated that “[t]he filing of a writ application does not interrupt the time delays pursuant to La.Code Civ.P. art. 2087. A notice of intention to apply to a court of appeal for a writ of review is not the equivalent or a substitute for a motion and order for appeal.” Chevis v. Acadiana Legal Serv., Corp., 95-1247, p. 2 (La.App. 3 Cir. 1/10/96), 670 So.2d 231, 232. In the instant case, since the notice of intent filed by Plaintiff did not interrupt the delays for seeking an appeal and because Plaintiff did not file an appeal of the two judgments of December 14, 2010, within the appeal delay set forth in La.Code Civ.P. art. 2087, we find that Plaintiffs appeal from those two judgments should be dismissed as untimely.

With regard to Plaintiffs attempt to seek an appeal from a judgment purportedly rendered by the trial court on March 18, 2011, we note that the appeal record does not contain a judgment rendered by the trial court on March 18, 2011. In his response to this court’s rule to show cause order, Plaintiff appears to acknowledge that there was no actual judgment rendered on March 18, 2011, since he states that all judgments at issue in the appeal were rendered by the trial court on December 14, 2010. As such, we find that there is no March 18, 2011 judgment at issue in this appeal.

14Since we find that the only judgments at issue in this appeal are the two judgments which the trial court rendered on December 14, 2010, and since Plaintiffs appeal of these judgments was filed untimely, we hereby dismiss the appeal at Plaintiffs cost.

APPEAL DISMISSED.