text:
    STATE of Louisiana v. John W. MATHIEU.
    No. 2010-K-2421.
    Supreme Court of Louisiana.
    July 1, 2011.
    Rehearing Denied Sept. 2, 2011.
    James D. Caldwell, Attorney General, Paul D.- Connick, Jr., District Attorney, Thomas Joseph Butler, Assistant District Attorney, for Applicant.
    Bruce Gerard Whittaker, for Respondent.
   PER CURIAM.

_JjThe state charged defendant by bill of information with second degree kidnapping in violation of La.R.S. 14:44.1, after an incident in which defendant confronted his ex-wife in the parking lot of Walgreens drug store located on Terry Parkway in Gretna, Louisiana, where she worked, and forced her into her car while armed with a handgun, drove her into Mississippi and then returned her to Gretna, where she finally escaped. After a trial by jury, the Hon. Hans J. Liljeberg, Judge, presiding, defendant was found guilty as charged. Defendant conducted portions of the trial in his own right, including cross-examination of his ex-wife and other state witnesses, while his court-appointed counsel conducted jury selection and other portions of the trial. Following the jury’s verdict, the trial court sentenced defendant to 30 years’ imprisonment at hard labor, the first two years without benefit of suspension of sentence, probation, or parole. On appeal, the Fifth Circuit conditionally affirmed defendant’s conviction and sentence but remanded the case to |2the trial court to conduct an evidentiary hearing for purposes of determining whether defendant had made a clear and unequivocal request to represent himself and whether the trial judge made sufficient inquiries into defendant’s competency to waive counsel and to assert his right to self-representation. State v. Mathieu, 06-0946 (La.App. 5th Cir.5/29/07), 960 So.2d 296. The court of appeal took as its premise that, (“[w]hen an attorney partially represents a defendant who assumes functions that are at the core of an attorney’s traditional role, the defendant must still knowingly and intelligently waive his constitutional right to have his lawyer perform the core functions, in order to show that the defendant appreciates the possible consequences of mishandling the core functions that lawyers are more competent to perform.”) (citation omitted). Mathieu, 06-0946 at 11, 960 So.2d at 303-04.

After a total of three hearings, the first conducted by Judge Liljeberg and the last two by the Hon. Robert A. Pitre, after Judge Liljeberg recused himself on grounds that he was a potential witness in the cause, La.C.Cr.P. art. 671(A)(4), and following a second remand of the case, State v. Mathieu, 08-0747 (La.App. 5th Cir.1/27/09), 8 So.3d 631, the Fifth Circuit ultimately concluded that the record “still fails to contain any motion by defendant requesting to represent himself, with or without assistance of counsel, or a ruling granting such a request,” and that “[t]he failure by the trial court to secure a valid waiver of counsel constitutes reversible error.” State v. Mathieu, 09-0631, pp. 11-12 (La.App. 5th Cir.9/28/10), 49 So.3d 434, 441 (citation omitted). Given that determination, the court of appeal did not “even reach whether the trial judge made sufficient inquiries to assure that the waiver was knowingly and intelligently made,” but reversed defendant’s conviction and sentence and remanded the case for retrial. Id.

liiWe granted the state’s application for review and reverse the decision below because the record in its entirety supports Judge Pitre’s finding that defendant made a knowing and voluntary waiver of his right to counsel when he cross-examined the state’s witnesses and gave the defense closing argument and that he had the capacity to make that voluntary choice.

Despite the evidentiary proceedings below, the record remains insolubly ambiguous with respect to whether defendant clearly and unequivocally asserted his right to self-representation at any time before trial. No formal motion or court ruling to that effect appears in the record of pretrial proceedings, but defendant’s court-appointed attorney, William Doyle, addressed the court on the morning of trial, June 12, 2006, and stated flatly that defendant had filed a motion asserting his right of self-representation, that Judge Liljeberg had signed it, and that the attorney was therefore in court merely as stand-by counsel to assist defendant after informing him “about the concepts of evidence, courtroom procedure and things of that nature.” Doyle further elaborated that he had shared all of the state’s discovery responses with defendant and had on “numerous times,” gone over his case with him. Apparently agreeing that Doyle was correct and that, “I’ve granted that,” Judge Liljeberg nevertheless ^addressed defendant directly and gave him some “unsolicited advice” with respect to self-representation. He bluntly informed defendant that it was “a terrible idea” to represent himself “against two seasoned prosecutors,” who would “look[ ] for a way to turn it around and use it against you” every time he spoke. The court cautioned defendant that “[w]hen you take something personally, you don’t do a good job,” and admonished him that it expected him to act professionally in accord with the Code of Evidence and the Code of Criminal Procedure. Defendant replied that he did not have a “problem, really with Mr. Doyle representing me,” but voiced concern that the attorney might not ask every question he considered pertinent. The court informed defendant that he could not interject himself into a cross-examination conducted by Doyle but that he would have the opportunity to consult with his attorney before releasing the witness to make sure that counsel had covered everything defendant wanted addressed, if that were appropriate. Defendant replied, “Okay. Well, we could go along, you know, that way, Your [Hjonor.” Thereafter, counsel, who had represented defendant throughout discovery with the state and in all of the pretrial hearings, conducted jury selection, during which he consulted defendant with respect to making peremptory challenges, and gave the defense opening statement. Trial then recessed overnight.

The proceedings began on the following morning with a statement by Doyle that, “Mr. Mathieu has indicated to me, this morning, that he will conduct portions of this trial, more particularly, cross-examination of witnesses.” The attorney further stated for the record that he had advised defendant that “we both can’t do the same thing.” Judge Liljeberg then addressed defendant and informed him that, “You can’t, in the middle, throw your hands up and say, of Mr. Doyle, can you handle it for me. I’m not doing a good job. Once you start, you’re doing it.” Defendant replied, ‘Yes IfiSir,” and the evidentiary portion of trial began. Defendant conducted the entirety of defense cross-examination of his ex-wife, as well as that of a coworker at Walgreens who witnessed the confrontation in the parking lot, the manager of Walgreens who called 9-1-1 to report the incident, and two police officers. Doyle interjected himself at various points during this testimony, on one occasion suggesting to the court that “if co-counsel [ie. defendant] would want to call [the victim ex-wife] on his case, I’d ask that we keep the sequestration order in effect.” Doyle’s limited participation prompted the Court to reiterate to defendant that it was “not going to have Mr. Doyle stand up and explain every objection.... If you want to handle the witness then you’re going to handle the objections.”

Defendant conducted the cross-examination of the state’s witnesses until the prosecution summoned Sergeant Kelly Jones for purposes of introducing a taped statement defendant gave to the officer following his arrest. After the state played the tape for jurors, and the prosecutor continued to examine the officer, Doyle advised the court that “Mr. Mathieu has informed me that he wants me to take over for this witness.” He then objected to the state’s line of questioning, and cross-examined the witness. At the close of Sergeant Jones’s testimony, when it was clear that the state was resting, Doyle then asked for a brief recess to determine whether defendant “is going to take the stand.” Doyle further advised the court that defendant “may be doing clos[ing argument].” Following the recess, Doyle informed the court that defendant would not be taking the stand, a statement defendant readily confirmed, but would make the defense closing argument. The attorney then announced that the defense rested. Thus, the defense summation of the case was done by defendant and not by counsel. However, Doyle conducted the charge conference with the court and the prosecutor before the court’s general instructions to the jury.

|6In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the Supreme Court recognized a defendant’s Sixth Amendment right to conduct his own defense by making a knowing and voluntary waiver of his right to counsel and thereby asserting his right to represent himself. Assertion of that right “must also be clear and unequivocal.” State v. Bell, 09-0199, p.17 (La.11/30/10), 53 So.3d at 448 (citing State v. Hegwood, 345 So.2d 1179, 1181-82 (La.1977)). Faretta also explicitly sanctioned a procedure by which “a State may — even over objection by the accused — appoint a ‘stand-by counsel’ to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendant’s self-representation is necessary.” Id., 422 U.S. at 834, n. 46, 95 S.Ct. at 2541. However, while Faretta permits the appointment of standby counsel to help “ensure the defendant’s compliance with basic rules of courtroom protocol and procedure,” McKaslcle v. Wiggins, 465 U.S. 168, 183, 104 S.Ct. 944, 954, 79 L.Ed.2d 122 (1984), it does not require a trial judge to permit “hybrid” representation in which both counsel and a defendant participate actively as co-counsel in the conduct of trial. Wiggins, 465 U.S. at 183, 104 S.Ct. at 953 (“Faretta does not require a trial judge to permit ‘hybrid’ representation of the type Wiggins was actually allowed.... A defendant does not have a constitutional right to choreograph special appearances by counsel.”). As a general rule, one to which this Court has long subscribed, an indigent defendant “ ‘has a right to counsel as well as the opposite right to represent himself, [but] he has no constitutional right to be both represented and representative.’ ” State v. Brown, 03-0897, p. 29 (La.4/12/05), 907 So.2d 1, 22 (quoting State v. Bodley, 394 So.2d 584, 593 (La.1981)); see also Bell, 09-0199 at 17, n. 14, 53 So.3d at 448 (“A defendant who is represented by counsel has no Sixth Amendment right to participate as co-counsel. However, this principle has typically 17rested on Faretta’s silence on the issue rather than any positive statement from the United States Supreme Court.”) (citations omitted); 3 Warren R. Lafave, Criminal Procedure, § 11.5(g), p. 768 (3rd ed. 2008)(“[T]wo [ ] concerns [other than administrative difficulties] probably play a more significant role in reaching the initial conclusion that hybrid representation can constitutionally be left to judicial discretion. Those concerns relate to the impact of hybrid representation on the role of counsel and to the typical use of hybrid representation to permit the defendant, in effect, to make an unsworn statement to the jury.”).

Nevertheless, a trial court has the discretion to allow a defendant to act as his own co-counsel. United States v. Edwards, 101 F.3d 17, 19 (2nd Cir. 1996)(“ ‘The decision to grant or deny “hybrid representation” lies solely within the discretion of the trial court.’ ”) (quoting United States v. Tutino, 883 F.2d 1125, 1141 (2nd Cir.1989)). A trial court may require a defendant acting as co-counsel to conduct portions of the trial entirely in his own right, or may permit the defendant to act in tandem with counsel during cross-examination of witnesses and closing argument to the jury. See Brown, 03-0897 at 32, 907 So.2d at 24 (after asserting his right of self-representation because he was dissatisfied with his defense team in the capital case, defendant solely conducted the cross-examination of some witnesses, participated in the defense cross-examination of other witnesses, and gave his own closing argument in addition to counsel’s closing remarks at the guilt stage). Hybrid representation in which a defendant acts in tandem with counsel in questioning witnesses or in presenting closing argument does not implicate Faretta. United States v. Cromer, 389 F.3d 662, 683 (6th Cir.2004)(“Here, Cromer did not waive his right to counsel because he continued to receive substantial assistance from counsel, even while he was actually questioning the witness.”); United States v. Leggett, 81 F.3d 220, 222 (D.C.Cir.1996)(defendant “merely sought and received the court’s permission to supplement his counsel’s examination and argument.”). However, to the extent that hybrid representation in which defendant and counsel “act, in effect, as co-counsel, with each speaking for the defense during different phases of the trial,” results partially in pro se representation, “allowing it without a proper Faretta inquiry can create constitutional difficulties.” 3 LaFave, Criminal Procedure, § 11.5(g), pp. 765-67.

In the present case, it appears that defendant elected a form of hybrid representation in which his court-appointed attorney acted as more than stand-by counsel during trial “to ensure the defendant’s compliance with basic rules of courtroom protocol and procedure.” McKaskle, 465 U.S. at 183, 104 S.Ct. at 954. Doyle conducted the entire voir dire examination and selection of the jury and gave the defense opening statement, cross-examined one of the state’s police witnesses, made objections even when they violated Judge Liljeberg’s all-in-or-all-out procedure, referred to defendant as his co-counsel, announced that the defense rested and that defendant would not take the stand, and conducted the charge conference with the court. On the other hand, because the procedure imposed by Judge Liljeberg required defendant to act alone when he served as his own co-counsel, it demanded a partial waiver of his right to counsel in the areas that traditionally lie at the core of the defense trial function, i.e., cross-examination of adverse witnesses and closing argument. Cf. Watkins v. Sowders, 449 U.S. 341, 349-50, 101 S.Ct. 654, 658-59, 66 L.Ed.2d 549 (1981)(Due Process Clause does not absolutely require a judicial determination regarding the admissibility of identification testimony outside presence of the jury because “[cjounsel can both cross-examine the identification witnesses and |9argue in summation as to factors causing doubts as to the accuracy of the identification.”)(internal quotation marks and citation omitted).

Although no consensus has formed, substantial authority exists, to which the Fifth Circuit panel in the present case fully subscribed, that a trial court must conduct an adequate Faretta colloquy when a defendant elects hybrid representation in which, at various stages of the trial, as in the present case, he acts entirely on his own as co-counsel. See, e.g., United States v. Davis, 269 F.3d 514, 520 (5th Cir.2001) (to the extent that defendant questioned 14 of the 19 witnesses called at trial and gave his own closing argument, “ fhjybrid’ or no, the representation sought by Davis entailed a waiver of his Sixth Amendment right to counsel that required the safeguards specified in Faretta.”); United States v. Turnbull, 888 F.2d 636, 638 (9th Cir.1989) (“If the defendant assumes any of the ‘core functions’ of the lawyer ... the hybrid scheme is acceptable only if the defendant has voluntarily waived counsel.”); Hill v. Commonwealth, 125 S.W.3d 221, 228 (Ky.2004) (under an all-in-or-all-out procedure in which defendant cross-examined on his own four of five prosecution witnesses and conducted direct examination of two of five defense witnesses, during which counsel remained silent, “the trial court erred by not holding a Faretta hearing, issuing warnings, and making a finding as to whether Appellant’s waiver was knowing, intelligent, and voluntary.”) (citing Davis and distinguishing Leggett). However, contrary authority also exists. See Ex Parte Arthur, 711 So.2d 1097, 1099 (Ala.1997) (“Faretta, however, did not require a formal colloquy and an express waiver, as Arthur contends.... The ultimate test is not the trial court’s express advice, but rather the defendant’s understanding. ... [W]e conclude that Arthur knowingly and intelligently requested to act as his own co-counsel and that in doing so he implicitly waived full representation of counsel.”)(footnote, internal quotation marks, and 11ftcitations omitted); People v. Jones, 53 Cal.3d 1115, 282 Cal.Rptr. 465, 811 P.2d 757, 773 (1991) (“If ... a defendant chooses to be represented by counsel and the trial court allows the defendant a limited role as cocounsel, the defendant has not waived the right to counsel. The defense attorney retains control over the case and can prevent the defendant from taking actions that may seriously harm the defense. In that situation, the trial court may, but need not, warn the defendant of the problems of being cocounsel.”).

In the present case, the record plainly shows that the trial court did not engage in a formal colloquy with defendant on the second day of trial with regard to the dangers and disadvantages of hybrid representation and defendant did not personally and expressly waive his right to full representation. However, even taking the court of appeal’s decision at its premise, and that a partial waiver of counsel requires the same solicitude from a trial judge as a full waiver, Judge Liljeberg had admonished defendant on the first day of trial about the dangers and disadvantages of waiving counsel altogether. The judge had specifically informed defendant that he thought it was a mistake not to proceed ■with his appointed counsel, that he would be easy prey for the experienced prosecutors, and that defendant would be required to follow all of the rules in the Code of Evidence and the Code of Criminal Procedure. Counsel stated on the record that he had given much of the same advice to defendant. The advice discharged the court’s duty under Faretta that a defendant “should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open.” Faretta, 422 U.S. at 835, 95 S.Ct. at 2541 (internal quotation marks and citation omitted). More elaborate advice with respect to the maze of substantive and procedural rules governing the trial of criminal cases that a defendant representing | n himself would have to navigate may have been salutary, see, e.g., United States v. McDowell, 814 F.2d 245, 249-50 (6th Cir.1987)(adopting the lengthy colloquy set out in 1 Bench Book for United States District Judges 1.02-2 to-5 (3d ed.1986) for the district courts within the circuit as a matter of its supervisory authority), but it was not required. Faretta, 422 U.S. at 835-36, 95 S.Ct. at 2541 (“The trial judge had warned Faretta that he thought it was a mistake not to accept the assistance of counsel, and that Faretta would be required to follow all the ‘ground rules’ of trial procedure.... his technical legal knowledge, as such, was not relevant to an assessment of his knowing exercise of the right to defend himself.”); State v. Santos, 99-1897, p. 3 (La.9/15/00), 770 So.2d 319, 321 (“In this context, ‘the competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself.’”)(quoting Godinez v. Moran, 509 U.S. 389, 399, 113 S.Ct. 2680, 2687, 125 L.Ed.2d 321 (1993) (footnote omitted)); see also McDowell, 814 F.2d at 249. (“The majority of the other circuits that have addressed this problem have adopted a ... nonformalistic approach to determining sufficiency of the waiver from the record as a whole rather than requiring a deliberate and searching inquiry.”) (citations omitted).

The advice given by Judge Liljeberg prompted an assertion by defendant of his right to counsel, which he never subsequently withdrew, when he allowed Doyle to select a jury, thereby navigating the procedural and substantive rules regarding cause and peremptory challenges, and to make an opening statement. A personal colloquy between Judge Liljeberg and defendant, ie. a second Faretta dangers-and-disadvantages colloquy, a reminder of the advice given only the day before, arguably represented the preferred practice when Doyle announced at the beginning of the second day of trial that defendant would, in effect, make a partial waiver of his right | i2to counsel by conducting cross-examination of the state’s witnesses. Nevertheless, Doyle was still acting as defendant’s counsel and he made the statement in defendant’s presence and on his behalf. Cf. State v. Phillips, 365 So.2d 1304, 1309 (La.1978) (although a personal colloquy of the court with defendant is preferable, an attorney’s statement in open court that the defendant waives trial by jury may be sufficient by itself to constitute a valid waiver if the defendant is present at the time and acquiesces in that statement). Defendant immediately acknowledged its import when he assented to Judge Lilje-berg’s advice that if he began questioning a witness he would have to see his cross-examination through to the end. The dangers and disadvantages of foregoing counsel during cross-examination of the state’s witnesses were plain enough from Judge Liljeberg’s explanation that defendant would be on his own, but so, too, were the advantages. Defendant had thereby-gained the intangible and unquantifiable advantage of personally confronting and cross-examining his ex-wife in open court about the altercation in the Walgreens parking lot, and then personally addressing jurors at the close of the evidence as to what it all meant. Faretta, 422 U.S. at 834, 95 S.Ct. at 2540 (“[I]t is not inconceivable that in some rare instances, the defendant might in fact present his case more effectively by conducting his own defense.”). That defendant conducted the cross-examination of nearly all of the state’s witnesses, particularly his ex-wife, although he left jury selection and the charge conference to Doyle, appeared entirely consistent with the concerns he had voiced on the preceding day that his court-appointed counsel, for whatever reason, might not ask all of the questions he thought pertinent to his defense. Nothing in the defendant’s conduct of trial after Doyle informed the court of his partial waiver of counsel suggested in any way that he was not “voluntarily exercising his informed free will,” Faretta, 422 U.S. at 835, 95 S.Ct. at 2541, when he chose which witnesses Lsto cross-examine personally, and which witnesses he deferred to his court-appointed counsel, in marshaling his defense for closing argument to the jury. Cf. Bell, 09-0199 at 17, 53 So.3d at 448 (“ ‘The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’”) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)).

Nor does anything in the record suggest that defendant was not capable of making that choice knowingly and voluntarily. Faretta, 422 U.S. at 835, 95 S.Ct. at 2541 (“The record affirmatively shows that Faretta was literate, competent, and understanding!)]”). The court of appeal pretermitted this question but the record in its entirety overwhelmingly supports Judge Liljeberg’s opinion, expressed at the evidentiary hearing conducted by Judge Pitre on second remand of the case by the Fifth Circuit, that “clearly Mr. Mathieu was capable of representing himself, he understood the nature of the charges against him, understood the range [of sentence] of the crime with which he was charged, and so on and so forth.” In fact, the numerous pro se motions filed in the record show that defendant understood he was charged with the second degree kidnapping of his ex-wife and that he was fully aware |14from the unsuccessful plea negotiations conducted by Doyle what he faced in terms of punishment. Defendant’s numerous motions were all articulate and coherent, as was his testimony at the suppression hearing on April 11, 2006. Nothing that transpired at trial gives rise' to any particularized concerns about defendant’s competency. He also clearly had more than a passing acquaintance with the criminal law, as made plain by his post-verdict testimony at the hearing conducted by Judge Liljeberg on first remand of the case from the court of appeal, when he used the term “hybrid defense” several times to describe what he wanted from his working relationship with Doyle. Legal knowledge or skill is not strictly relevant to the determination of whether a defendant is competent to waive counsel, Faretta, 422 U.S. at 836, 95 S.Ct. at 2541, but it underscored what the record otherwise overwhelmingly demonstrated about defendant’s capacity to make decisions with regard to his defense of the case.

The decision of the Fifth Circuit is therefore reversed, defendant’s conviction and sentence are reinstated and affirmed in light of the court of appeal’s rejection of his other assignments of error on original appeal, Mathieu, 06-0946 at 18-23, 960 So.2d at 308-10, and this case is remanded to the district court for purposes of execution of sentence.

J^COURT OF APPEAL DECISION REVERSED; CONVICTION AND SENTENCE REINSTATED; CASE REMANDED.

      . In fact, defendant had written a letter from the Jefferson Parish Correctional Facility to the criminal clerk for the 24th Judicial District Court shortly before trial asking that subpoenas issue for several witnesses. The letter clearly stated defendant's belief that, "I’m defending myself,” with the assistance of appointed counsel, and that he needed the witnesses subpoenaed,” "as Mr. Doyle has refused to do so.” Defendant testified at the hearing conducted by Judge Liljeberg on August 23, 2007, pursuant to the first remand of the case by the Fifth Circuit, that he had sent a motion to represent himself from the Winnfield Correctional Facility, where he was initially incarcerated as part of the post-Hurricane Katrina dislocations from the metropolitan New Orleans area. He had assumed, based on the assurances of inmate counsel, the motion had been signed.
      However, as the Fifth Circuit noted, the record does not contain the motion and the minutes fail to indicate that the court took any action with respect to sorting out defendant's representation by appointed counsel before the first day of trial. Neither defendant nor Judge Liljeberg, who testified at the third and last hearing conducted by Judge Pitre on May 11, 2009, could recall any formal proceeding conducted in court regarding self-representation before the first day of trial.

      . At the hearing conducted by Judge Liljeberg on remand of the case from the Fifth Circuit, defendant claimed that Doyle had essentially left him to fend for himself at trial in cross-examining the state’s witnesses and in forcing him to give the closing argument, after strong-arming his decision not to take the stand. Defendant claimed that he had intended merely to provide Doyle with some of the questions he wanted the attorney to ask but that he otherwise intended to allow the attorney to conduct trial in its entirety. However, defendant conceded that he went considerably beyond that basic procedure when he cross-examined his ex-wife and other state witnesses and he did not account for Doyle's cross-examination of Sergeant Jones and what that said about the collaborative defense effort.
      A transcript of the hearing before Judge Liljeberg was available to Judge Pitre when he made his second, and final, ruling on defendant’s waiver of counsel and that ruling implicitly rejected defendant's post-verdict claim that Doyle had overborne his will in making a partial waiver of his right to counsel. Given the contemporaneous record of trial, we find no abuse of discretion by the court in discounting defendant’s testimony.

      . The state called defendant's ex-wife as its first witness and he began cross-examination of her as follows:
      Q. Ms. Mathieu, you indicated in your statement to Detective Jones, that I came up behind you as you were getting into your car, and I began pushing you, is that correct?
      A. Yes.
      Q. And you also state — and here I'm reading from this because I'm reading a quote here, 'He told me that he — then you hesitated — he showed me a gun.’ Which was it, did I tell you I had a gun or I showed you I had a gun?
      This exchange alone shows clearly that defendant was literate and fully competent to make important decisions respecting defense of the case, particularly with regard to assuming the core function of cross-examining an adverse witness.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re Frank E. BROWN, Jr.
    No. 2011-B-0070.
    Supreme Court of Louisiana.
    July 1, 2011.
    Rehearing Denied Sept. 2, 2011.

      Charles Bennett Plattsmier, Baton Rouge, James William Standley, IV, for Applicant.
    Frank E. Brown, Jr., Shreveport, for Respondent.
   PER CURIAM.

| ¶ This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Frank E. Brown, Jr., an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

By way of background, on October 30, 1998, Wiley Williams, Sr. executed a will leaving all of his property to his three adult children (hereinafter referred to as the “1998 will”). Thereafter, Mr. Williams married Althrial Nelson Williams.

In June 2005, Mr. Williams, who suffered from a long-term illness, requested that respondent draft a will leaving most of his property to Althrial instead of his children. On June 7, 2005, Mr. Williams purportedly executed the new will (hereinafter referred to as the “2005 will”), and respondent notarized same. Mr. Williams died on June 14, 2005.

Following Mr. Williams’ death, attorney Wayne Webb, who represented Mr. Williams’ children, submitted the 1998 will for probate. On behalf of Althrial, respondent filed an opposition to the probate of the 1998 will and submitted the 2005 will for probate. Robert Foley, a handwriting expert, subsequently examined the 2005 will and determined Mr. Williams’ signature was a forgery. After Mr. ^Williams’ children and wife compromised on the division of the succession properties, respondent withdrew the 2005 will, and the 1998 will was probated.

In January 2006, Mr. Williams’ daughter filed a disciplinary complaint against respondent, alleging he knew the 2005 will was a forgery when he submitted it to the court in opposition to the 1998 will. During a June 23, 2006 sworn statement, respondent admitted to the ODC that he did not know if Mr. Williams had actually executed the 2005 will, despite the fact that he notarized Mr. Williams’ purported signature. According to respondent, Mr. Williams came into his office with two witnesses and appeared to sign the will in his presence, but he could not actually see Mr. Williams sign because cataracts in both eyes impaired his vision.

DISCIPLINARY PROCEEDINGS

In December 2009, the ODC filed formal charges against respondent, alleging he violated the following provisions of the Rules of Professional Conduct: Rules 3.3(a)(3) (a lawyer shall not knowingly offer evidence that the lawyer knows to be false) and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). Respondent answered the formal charges, denying any misconduct. This matter then proceeded to a formal hearing on the merits.

Hearing Committee Report

After considering the testimony and evidence presented at the hearing, the hearing committee made the following factual findings:

Mr. Foley, the handwriting expert, was very credible, and Mr. Williams’ signature on the 2005 will was a forgery. However, there was no evidence of a conspiracy between respondent and his client (Althrial) to present false evidence to | sthe court, as was asserted in the complaint filed against respondent by Mr. Williams’ daughter, nor did the ODC prove that respondent’s acts were intentional. Rather, in notarizing the will, respondent falsely attested that he had witnessed the signatures of Mr. Williams and the witnesses, and with that knowledge, he submitted the will for probate. This conduct by respondent was knowing.

Based on these facts, the committee determined respondent violated Rules 3.3 and 8.4 of the Rules of Professional Conduct. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined the baseline sanction is suspension.

Considering the circumstances, the committee recommended that respondent be suspended from the practice of law for one year, with all but three months deferred, followed by three years of probation. The committee further recommended respondent attend the Louisiana State Bar Association’s Ethics School prior to seeking reinstatement.

Both respondent and the ODC objected to the hearing committee’s report and recommendation.

Disciplinary Board Recommendation

After review, the disciplinary board accepted the hearing committee’s credibility determination regarding Mr. Foley and adopted the committee’s factual finding that Mr. Williams’ purported signature on the 2005 will was a forgery. The board also agreed there was no evidence of a conspiracy between respondent and his client. The board concluded that the only proven misconduct was respondent’s |4failure to follow appropriate protocols when notarizing the 2005 will and his subsequent submission of the will to a court.

Based on these facts, the board concurred in the committee’s determination of rule violations. Specifically, the board agreed with the committee that respondent violated Rules 3.3(a)(1) and 8.4(c) of the Rules of Professional Conduct by submitting the 2005 will to the court despite knowing it contained the false attestation that he witnessed the signatures of Mr. Williams and the witnesses.

The board further determined respondent knowingly violated duties owed to the legal system and the legal profession. He caused actual harm to Mr. Williams’ children by improperly clouding the validity of the 1998 will, an issue that required additional time to resolve. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the board determined the baseline sanction is suspension.

In aggravation, the board found prior disciplinary offenses (a private reprimand in 1989 and in 1990) and substantial experience in the practice of law (admitted 1974). In mitigation, the board found respondent’s prior discipline was remote in time.

Considering the prior cases involving misconduct similar to respondent’s, the board recommended respondent be suspended from the practice of law for six months, fully deferred, subject to two years of probation with the condition that he successfully complete the Louisiana State Bar Association’s Ethics School.

The ODC filed an objection to the sanction recommended by the disciplinary board. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).

J^DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.10/2/09), 18 So.3d 57. While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

The record of this matter supports the hearing committee’s factual findings. Essentially, the record indicates respondent notarized the signatures of Mr. Williams and two witnesses on Mr. Williams’ 2005 will. However, at the time the will was confected, respondent’s vision was impaired due to cataracts, and he admitted that he could not actually see Mr. Williams and the witnesses sign their names. Therefore, he improperly notarized the will. After Mr. Williams passed away, respondent submitted the 2005 will to the court for probate, knowing he improperly notarized same. Based on these facts, respondent violated Rules 3.3(a)(3) and 8.4(c) of the Rules of Professional Conduct.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and | ^mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

By knowingly submitting an improperly notarized will for probate, respondent violated duties owed to the legal system and the legal profession. His conduct caused harm by unnecessarily delaying the resolution of Mr. Williams’ succession. Mr. Williams’ children were required to obtain the services of a handwriting expert to challenge the 2005 will, which was determined to be a forgery. Suspension is the baseline sanction for this type of knowing misconduct.

Considering the totality of the circumstances, including the actual harm caused by respondent’s conduct, we conclude the appropriate sanction in this case is a one-year suspension, with all but three months deferred. Upon completion of the active portion of his suspension, respondent shall be placed on unsupervised probation for a period of two years subject to the condition that he successfully complete the Louisiana State Bar Association’s Ethics School program.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Frank E. Brown, Jr., Louisiana Bar Roll number 3555, be and he hereby is suspended from the practice of law for one year. It is further ordered that all but three months of this suspension shall be deferred. Upon completion of the active portion of his suspension, respondent shall be placed on unsupervised probation for a period of two years subject to the condition that he successfully complete the Louisiana State Bar Association’s Ethics School program. The probationary period shall commence from the date respondent and the ODC execute a formal probation |7plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . Supreme Court Rule XIX, § 10(A)(3) provides that the court may not impose probation in excess of two years.

      . Although respondent did not file an objection to the disciplinary board’s recommendation, in his brief to this court, he requested that the costs be waived or equally shared between the parties because he is unable to financially bear the entire costs of these proceedings. In this regard, respondent should follow the procedures for objecting to costs as set forth in Supreme Court Rule XIX, Appendix A, Rule 7(i), once this court’s order imposing discipline is final.


text:
    In re Appeal of the Decisions of the DISCIPLINARY BOARD NOS. 09-PDB-099 AND 09-PDB-100.
    No. 2011-OB-0981.
    Supreme Court of Louisiana.
    Aug. 5, 2011.
   ORDER

Upon review of the record of this matter, we have determined the hearing committee was not provided with a complete record in support of the July 22, 2010 supplemental closure memorandum prepared by the Office of Disciplinary Counsel. Accordingly,

IT IS ORDERED that this matter be remanded to the disciplinary board for the compilation of a complete record. Thereafter, complainant’s request for review of the dismissal of her complaints shall be reconsidered by the hearing committee and the disciplinary board. If complainant is not satisfied with the disposition of the matter following review by the board, she may refile in this court a petition for leave to appeal pursuant to Supreme Court Rule XIX, § 30(C).

FOR THE COURT:

/s/ John L. Weimer

/s/ Justice, Supreme Court of Louisiana


text:
    In re Chadwick Alan TOBLER.
    No. 2011-OB-1518.
    Supreme Court of Louisiana.
    July 13, 2011.
   In re Tobler, Chadwick Alan;—Plaintiff; Applying For Admission.

Denied. Considering our order this date in In re: Tobler, ll-OB-1517, the application for admission in this matter is premature.


text:
    John LALLA v. Reneé Yemelos LALLA.
    No. 2011-CC-1709.
    Supreme Court of Louisiana.
    Aug. 2, 2011.
   In re Lalla, Reneé Yemelos;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. P, No. 637-595; to the Court of Appeal, Fifth Circuit, No. 11-C-558.

Denied.


text:
    Deborah Hillebrandt WRAY v. Russel Warren WRAY.
    No. 2011-CC-1093.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Wray, Russel Warren;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, Family Court, No. 173,898; to the Court of Appeal, First Circuit, No. 2011 CW 535.

Denied.

VICTORY, J., would grant.


text:
    TI PNEUMOTIVE, INC., a/k/a Thomas Industries v. ECOLOGICAL TANKS, INC.
    No. 2011-CC-1159.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Gardner Denver Thomas, Inc.; TI Pneumotive d/b/a Thomas Industries, Inc.;—Plaintiff(s); Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. B, No. 04-1128; to the Court of Appeal, Second Circuit, Nos. 46,502-CW, 46,507-CW.

Denied.

CLARK, J., recused.


author: EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana v. Tyrone A. WILSON.
    No. 2009-KA-0304.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 17, 2010.
    Writ Denied Oct. 15, 2010.

      James D. “Buddy” Caldwell, Attorney General, Terri R. Lacy, Assistant Attorney General, James David Caldwell, Jr., Assistant Attorney General, Louisiana Department of Justice, Baton Rouge, LA, for State of Louisiana.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Tyrone A. Wilson.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

| ,011 appeal the defendant, Tyrone A. Wilson, challenges the sufficiency of the evidence supporting his conviction for armed robbery in violation of La. Rev.Stat. 14:64 and aggravated rape in violation of La. Rev.Stat. 14:42. After review of the record in light of the applicable law and arguments of the party, we affirm the defendant’s convictions and sentence.

Relevant Facts and Procedural History

On August 11, 2005, the defendant and his co-defendant, Hampton Franklin, were indicted for armed robbery (count one) and aggravated rape (count two). The defendant pleaded not guilty to both charges but, on December 7, 2007, following a five day trial, the defendant was found guilty as charged on both counts. His motions for a new trial and post-verdict judgment of acquittal were |2denied and on November 3, 2008, he was sentenced on count one (armed robbery) to serve twenty-five years at hard labor with credit for time served and on count two (aggravated rape) to serve life imprisonment at hard labor without benefit of parole, probation or suspension of sentence, and concurrent with his sentence in count one and with any other sentence.

Discussion

The defendant’s sole assignment of error, in briefs filed pro se and by counsel, is that the evidence is insufficient to support his conviction for armed robbery and aggravated rape. Accordingly, under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and La.Code Crim. Proc. art., we “must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Neal, 00-0674, (La.6/29/01) 796 So.2d 649, 657 (citing State v. Captville, 448 So.2d 676, 678 (La.1984)). When circumstantial evidence is used to prove the commission of the offense, La. Rev.Stat. 15:438 requires that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” Neal, 796 So.2d at 657. Ultimately, all evidence, both direct and circumstantial must be sufficient under Jackson to prove guilt beyond a reasonable doubt to a rational jury. Id. (citing State v. Rosiere, 488 So.2d 965, 968 (La.1986)). When a key issue at trial is whether the defendant was the perpetrator of the crime, the State is required to negate any reasonable probability of misidentification in order to carry its burden of proof beyond a reasonable doubt. State v. Bright, 1998-0398 (La.4/11/00), 776 So.2d 1134, 1147. The fact-finder weighs the respective credibilities of the witnesses, and a reviewing court will generally not second-guess those | ¡jdeterminations. State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983). However, the touchstone of Jackson v. Virginia is rationality and that “irrational decisions to convict will be overturned, rational decisions to convict will be upheld, and the actual fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law.” State v. Mussall, 523 So.2d 1305, 1310 (La.1988). The trier of fact makes credibility determinations, and may, within the bounds of rationality, accept or reject the testimony of any witnesses, State v. Hampton, 98-0331 (La.4/23/99), 750 So.2d 867, 880, and we have repeatedly held that a factfinder’s credibility decision should not be disturbed unless it is clearly contrary to the evidence. State v. Huckabay, 2000-1082 (La. App. 4 Cir. 2/6/02), 809 So.2d 1093; State v. Harris, 99-3147 (La.App. 4 Cir. 5/31/00), 765 So.2d 432. The testimony of the victim alone is sufficient to establish the elements of the offense of aggravated rape, even where the state does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant. State v. Lewis, 97-2854 (La. App. 4 Cir. 5/19/99), 736 So.2d 1004, 1023; State v. Carter, 97-1096 (La.App. 4 Cir. 5/20/98), 713 So.2d 796.

The following facts were adduced at trial.

Detective Michael McCleary of the New Orleans Police Department (NOPD) Sex Crime Unit testified that on June 19, 2005, he was notified that a sexual assault had occurred on the Newcomb College Campus of Tulane University. Upon arriving at the university he was informed that there were two crime scenes. The primary crime scene where the assault occurred was an office inside the Woldenberg Art Center. The secondary crime scene was the corner of LBroadway and Plum Streets where the suspects, who were chased off the campus, dropped a bag of items.

Detective McCleary observed that the office was in disarray. The desk telephone was smudged with bloody fingerprints and had been ripped from the wall. A trash can was searched for condoms; none was found. A jacket was lying on the floor, and a bicycle was leaning against the wall. On a shelf were several liquor bottles. Blood was observed on the floor. Detective McCleary secured the scene with crime tape and notified the crime lab. The crime lab processed the area for blood, semen, fingerprints and other body fluids. Blood and body fluid samples were taken. Several blood smudged fingerprints were lifted from the inside office doors and the desk telephone. In the hallway, Detective McCleary observed a green cloth bag and a plastic toy gun which was retrieved from the corner of Broadway and Plum Streets by Steven Durow, who chased the two suspects from the Woldenberg Center. Durow turned the toy gun over to the Tulane police, who placed it and the bag inside the hallway for processing.

The corner of Broadway and Plum Streets was also secured with crime tape. At the scene a paper bag was observed containing a broken bottle of Courvoisier Liquor and some loose change. The scene was processed by the crime lab.

Detective McCleary drove to the hospital where he retrieved the victim’s clothes and sent out bulletins with the descriptions of the two suspects. He interviewed the victim. She was shaken and had a large laceration to the bridge of her nose. Her eyes were bloodshot, and she seemed confused and dazed. She gave a description of both attackers. Detective McCleary solicited help from the public through Crime Stoppers which resulted in the defendant and Franklin being developed as suspects. Photographic line-ups of the defendant and Franklin were ^prepared and placed in a folder. The victim was contacted, and an appointment was set for her to view the photographs. She was given the folder and told to open it and view the photographs to see if she recognized anyone. Upon viewing the first set of photographs the victim started shaking as she positively identified the photograph of Hampton Franklin. She signed, dated and noted the time on the back of Franklin’s photograph. She initialed the other photographs indicating that she had viewed them. Upon viewing the second line up the victim started shaking as she positively identified the photograph of the defendant. She signed, dated and noted the time on the back of defendant’s photograph. She initialed the other photographs indicating that she had viewed them. Arrest and search warrants were obtained for both suspects. Two white t-shirts and a pair of jeans were seized from the defendant’s home. One t-shirt appeared to have red stains on it. No weapons or other evidence was found. The defendant was not home at the time of the search but later that evening he turned himself into the police. Franklin was arrested at his home; nothing was seized from his residence.

On cross-examination, Detective McCleary stated that the crime lab collected all evidence at both crime scenes, all blood samples tested positive for the victim’s blood, and no seminal fluid was found. He conceded that although several fingerprint samples were examined, they did not match the defendant and one blood smudged fingerprint revealed male DNA, but excluded the defendant. Detective McCleary also stated that in his communications with the victim, she did not give a description of defendant’s hair or his hair style but that the individuals in the photographic line-up were wearing short twists in their hair because the most recent photo of defendant showed him wearing short twists. In addition, Detective RMcCleary testified that the victim mentioned that Franklin asked the defendant for a condom but did not know if either man wore a condom during the assault.

On re-direct examination, Detective McCleary stated that he was not surprised that the fingerprints did not reveal a match to defendant or Franklin because the crime scene was a public place visited by many people. On re-cross examination, he conceded that thirty latent fingerprints were recovered from the outside door to the art center and that none was a match to defendant.

Alyson Saadi, a DNA analyst with the State Police Crime Lab, testified that he tested the victim’s shirt, underwear, jeans and tennis shoes, as well as the defendant’s jeans and t-shirt, several cuttings from an office chair, various swabs of blood, suspected body fluids taken from the floor of the office, and a latent fingerprint on an exterior door. All the blood samples tested positive for the victim. The latent fingerprint tested positive for the victim’s DNA profile and that of an unknown male. The male DNA was compared to that of defendant and Franklin; both were excluded. The blood swab from the bottom of the right tennis shoe also showed an unknown male profile which was not suitable for comparison. A hair was recovered from the zipper of the defendant’s jeans but it was not a match to the victim.

On cross-examination, Ms. Saadi confirmed that the male DNA sample on the bottom of the victim’s shoe excluded the defendant and the hair taken from defendant’s jeans also excluded the victim. On re-cross examination by the state she stated that the hair found on defendant’s jeans was a long brownish colored hair and on re-recross examination by the defense she stated that mitochondrial tests showed that the hair was not a match to the victim or any of her relatives.

17Tanesha Santemore, a criminalist with the New Orleans Police Department, testified that she tested a black cotton sports bra, a pair of white cotton underwear, a cotton t-shirt and a pair of orange and yellow tennis shoes taken from the victim. Blood was found on the tops and bottoms of both of the tennis shoes, the underwear, the jeans, and the t-shirt. No blood was found on the bra. Hairs were also found on several items but were not tested. Cuttings of reddish stains were taken from the defendant’s t-shirt and locked in the lab for further testing. However, because of the destruction to the lab which occurred in the aftermath of Hurricane Katrina, no testing was possible.

On cross-examination by the defense, Ms. Santemore testified that the reddish stains could have come from sources other than blood.

Sergeant Robert Blanchard, day watch supervisor of the New Orleans Police Department Evidence and Property Division, testified that following the aftermath of Hurricane Katrina most of the evidence stored in the evidence and property room was destroyed, floated away, or was unable to be identified.

Anna Duggar, director of the New Orleans Police Department Crime Lab, testified that in June 2005 she was a criminalist assigned to the forensic light unit and that her specialization was blood spatter pattern analysis, latent fingerprint analysis and comparison, serology, DNA preparation and analysis of hair and fiber evidence. She stated that she examined the crime scene in this case for body fluids and that fluorescence tests indicated possible evidence of saliva, seminal fluid or urine. In addition, two latent fingerprints were recovered from the outside office door where the rapes occurred.

On cross-examination, she stated that the latent fingerprints were subsequently found not suitable for comparison, thirty additional latent fingerprints |slifted from the crime scene were compared to defendant but none matched, and seven suspected semen stains were recovered but none was positive for semen.

Betty Jo Mitchell, a forensic sexual assault nurse examiner, testified that on June 19, 2005, she examined the victim at Charity Hospital’s emergency accident room. The victim had a severe laceration to the face and was hysterical. She told Nurse Mitchell that she had been penetrated orally, vaginally and anally, and that the attackers used a condom during the vaginal and anal assaults. Nurse Mitchell collected trace evidence samples and swabs from the victim’s hair, mouth, fingernails, vagina and rectum. The victim’s body was examined with a strobe light for the presence of semen and other body fluids. No tears were found in the vagina. A polyp was observed inside the vaginal vault which was broken and bleeding. The victim’s cervix was red which indicated trauma. The anal exam did not reveal any tears, abrasions, redness or swelling.

On cross-examination by the defense, Nurse Mitchell stated that no forensic evidence was found in the victim’s hair and none of the swabs tested positive for semen. No body fluids were found on the victim’s body.

The victim testified that on June 19, 2005, at approximately 1:00 p.m., she was a senior curator for the Newcomb College Art Gallery at Tulane University, working in her office in the Woldenberg Art Center. She heard a knock on the door, and a voice asked, “Can you tell me where room 215 is?” She answered through the door, “It’s upstairs on the second floor.” Within seconds, she heard a second knock at the door. A voice said, “We can’t find 215.” She opened the door and saw Hampton Franklin standing in the doorway, wearing a white t-shirt and white jeans. Franklin said, “I’m looking for 215.” She answered, “You have to go upstairs.” Franklin replied, “Well, in that case, give me all your money, bitch. 19Give me all your money, bitch.” Franklin lifted up his shirt and showed her a semi-automatic pistol. Dumbfounded, she stood in the doorway trying to understand what was happening. At that point she saw the defendant standing at the end of the hallway wearing a white t-shirt and dark blue jeans. Franklin moved toward her and ran into the office, then the defendant followed and slammed and locked the door.

The defendant ordered the victim to sit on the floor. He placed the muzzle of a gun on the top of her head. Franklin screamed, “Where is your money, bitch? I know you got money in here. Where is your money?” She responded that she only had thirteen dollars in her pocket; he demanded it, and she gave it to him. Franklin ransacked the office looking for valuables. Defendant told the victim, “I know you must think that you are having a crappy Father’s Day, but we ain’t got no fathers.” They asked the victim for her purse and she responded that she carried a knapsack, not a purse, and that the knapsack was inside her car. The defendant demanded her car keys and a description of her car. When she replied with the information, he accused her of lying and struck her across the face with the barrel of the gun. She told him that she was not lying. He grabbed the car keys from her desk. He ordered the victim not to look at him and placed the gun to her temple. Franklin screamed that the victim was going to call the police. She assured them that she would not. Franklin continued screaming that she was going to call the police; he picked up her desk phone and ripped it out of the wall. The defendant kept the gun to her head. Franklin then went inside ■ the annex where office and reception equipment and supplies were stored. The defendant said, “Well, now you can suck my dick.” He then forced the victim to perform oral sex on him while holding the gun to her temple. After a short while, defendant moved to one [inof the office chairs. Because he was not circumcised he gave the victim instructions about how to pull the skin back from his penis, to use her hands and to watch her teeth. Franklin returned to the office carrying a bottle of Courvoisier liquor and a digital camera. He asked the defendant if he had a condom; the defendant took one out of his pocket and handed it to Franklin. Franklin ordered the victim to stand up and remove her pants. When she did not pull them down far enough, he grabbed them and pulled them down to her knees. He pushed her back down onto defendant’s lap, put on the condom and raped her anally. The defendant and Franklin then changed positions with Franklin sitting in the chair. Franklin grabbed the victim’s head and pushed it into his lap. At this point, she lost her balance and brushed against the gun; Franklin threatened her about reaching for the gun. The defendant put on a condom and raped the victim vaginally and anally.

The victim described the rapes as becoming more violent and vicious. She felt that she was going to die. Something inside of her snapped and she decided that if she was going to die she was not going down as a lamb. She put her hands underneath the chair and with all of her strength she threw the chair over knocking Franklin onto his back. She grabbed her pants, turned around, and looked at the defendant. She described defendant as looking dumbfounded and kind of confused, like this was not part of the plan. Observing that the gun was now lying on the arm of the chair, the victim ran towards the door. In an attempt to flee, the defendant ran past her and knocked her back into the door and wall. Franklin ran past her knocking her back into the office. Before he fled, Franklin picked up the gun and smashed her face, breaking her nose. She slammed the door and locked it.

| nThe victim stated that she was able to clearly see both men. She described the lighting conditions as good with both natural light from a window and light from two lamps.

She was bleeding profusely and, realizing that she could not use the phone, she walked around the office fearing that her attackers were outside in the hallway. When she did not hear any sounds from the hallway, she opened the door and ran out of the building. Using an emergency telephone she called the Tulane University Police and reported that she had been robbed. A Tulane police officer transported her to Baptist Hospital where she told the officer that she had been raped. At the hospital, three police officers interviewed her and took her statement. She described her attackers as two black teenagers between the ages of seventeen and nineteen and approximately five foot seven and five foot eight inches in height. She described Franklin as having a darker complexion than the defendant. Subsequently, she was transported to Charity Hospital for a rape examination. Detective McCleary interviewed her at Charity Hospital.

On the Thursday following the rapes, Detective McCleary contacted the victim, informing her that he had some photographs he wanted her to view. He came to her home with another detective. He gave her a manila folder, and said, “Could you please open it and look at it and see if you see anyone familiar?” Upon viewing the first photographic line-up, the victim immediately and positively identified Franklin as the attacker who wore the white t-shirt and white pants. Upon viewing the second photographic line-up, she immediately and positively identified the defendant as the attacker who wore the white t-shirt and dark jeans. She signed and dated the backs of both photos.

[iaOn cross-examination, the victim positively identified the photographic line-ups shown to her by Detective McCleary and also positively identified the defendant’s photograph. She admitted identifying the defendant as wearing his hair in twists when he raped her. She stated that Franklin was wearing short cropped hair and when the defendant ran into her office she observed that he was holding a gun. The victim testified that the defendant was not wearing a condom during fellatio but was wearing a condom when he sodomized her. Finally, she agreed that she lacked knowledge as to the growth rate of African-American hair.

On re-direct examination, the victim stated that when she testified at the November 2, 2006, motion hearing she described the defendant’s hair as Chee Weez, twists, twigs or short-twisted braids. She described the defendant’s hair in the photographic line-up as twisted braids.

On re-cross examination, the victim described Franklin’s hair as close-cropped and defendant’s as twigs. She did not observe either man as having tattoos, facial hair, scars or other distinguishing marks.

Samuel Gore, medical examiner at Orleans Parish Prison, testified that he examined the defendant and Franklin and determined that neither were circumcised.

Professor Stephen Durow testified that he was a graduate student in fine arts at Tulane University and at work in his studio in the Woldenberg Art Center on the day the victim was robbed and raped. While walking down the hallway towards the restroom, he observed two men exiting from the area of the victim’s office carrying bags. Both men were looking around to see if anyone was in the hallway and, because of their demeanor, Durow suspected that they had burglarized the office. Upon seeing Durow, the men ran out of the building; Durow ran after | isthem. He described the men as thin, one slightly taller than the other with short hair. He chased them for about two and one-half blocks down Plum Street towards Broadway. During the chase one of the men turned and pointed what appeared to be a toy gun at Durow. At the corner of Plum and Broadway Streets, the men dropped the items they were carrying. When Du-row realized that he was not going to catch them, he discontinued the chase. Durow observed a plastic toy gun wrapped in electrical tape and several bottles of wine lying on the ground. Fearing the plastic gun would become contaminated, Durow used his pen to pick it up. He carried it back to the campus and turned it over to the Tulane Police. The following morning, news of the rape was televised and a Tulane Police officer contacted Durow to ask if he had seen the news footage of the two arrested suspects. He informed the officer that he only saw the end of the news, but that one of the men looked familiar. He was not sure of the other man. Subsequently, Detective McCleary showed him the news footage again. Durow confirmed that both suspects looked like the two men that he chased from the art center. Detective McCleary did not suggest in any way who the two men were or what he should say. In court, Durow positively identified the defendant as one of the two men he chased from the art center.

On cross-examination, Durow stated that he remembered that one of the men wore a black t-shirt, that both wore jeans, and that both had short cropped hair. One had light facial hair which looked like a goatee. He testified that he did not know if the gun was a toy but that “something didn’t look right about it ... It just didn’t look like a real gun.” That night he was interviewed by Detective McCleary and gave him a statement. He was never shown either a live or a photographic 114line-up. Durow testified that he got more than a fleeting look at defendant because the defendant kept turning around to see if he was still chasing him.

On re-direct examination, Durow stated that the first night he viewed the televised news coverage he recognized that one of the suspects arrested for the rape was one of the men he chased from the art center.

Detective Kristi Bagneris of the NOPD testified that on June 23, 2005, she received a call from the second district station that an individual, later identified as the defendant, wanted to turn himself in. A check of the defendant’s name revealed that there was an outstanding warrant for his arrest. He was relocated to the sex crimes division at police headquarters. On the face sheet, Detective Bagneris did not note that she observed any obvious tattoos or facial hair on defendant.

On cross-examination, Detective Bagner-is conceded that on the face sheet she noted that the defendant was an African-American male with a medium build, brown eyes with a short hairstyle. She did not note any tattoos, facial hair or braided hair.

Counsel for the defendant argues that this evidence is insufficient because the defendant is the victim of misidentification; specifically, counsel argues that the eyewitness testimony of the victim and Du-row, without corroborating forensic evidence, does not prove that the defendant was the person who robbed and raped the victim. He suggests that the evidence is exculpatory because it does not negate the possibility that two different men committed the crimes, and that, if Durow saw the defendant leaving the art center with stolen items, the defendant is a thief but not a rapist. In support, counsel points to discrepancies in the victim’s and Durow’s description of the him. The victim described the defendant as clean |1fishaven, without tattoos, wearing twisted braids in his hair and dressed in a white t-shirt and blue jeans. Durow described the defendant as having a goatee, close cropped hair and wearing a dark t-shirt and blue jeans. Furthermore, counsel maintains that Durow’s testimony fails to establish a temporal proximity between the defendant and the area of the rapes. He also asserts that the defendant had tattoos on both of his forearms at the time of his trial, and refers to the campus surveillance video of the defendant showing that three days prior to the crimes defendant had a beard and close cropped hair which would have been too short to wear in twisted braids. Counsel argues that these obvious inconsistencies render the eye-witness testimony suspect, and that the jury could not rationally have concluded that defendant robbed and raped the victim.

The defendant argues pro se that at the motion to suppress hearing, the victim identified suspect number 360020500266 in photograph number 6 in the photographic line-up as her attacker instead of the defendant whose suspect number was 360020412717 in photograph number 5 in the line-up. This is reflected in the victim’s testimony at the motion hearing. However, Detective McCleary’s report clearly shows that “Main opened the folder and, again, slightly gasped, and began to shake. She immediately pointed at picture number five, Wilson’s picture, and identified him as the other person who had attacked her.” At trial, the victim was shown defendant’s photograph from the line-up and asked:

Q. Okay. And what is this?
A. That is the second folder that I opened.
Q. Okay. And did you identify anybody on this lineup?
I iqA. I did.
Q. And who is it that you identified?
A. The person on the bottom row in the middle.
Q. Who is that person?
A. The defendant.
Q. Okay. And did Detective MeCleary ask you to do anything after you identified him?
A. He asked me to turn it over and sign my name and date on the back of the picture that I identified.
Q. Okay. When I turn this over, do you see anything?
A. I see my name printed, my signature, the date and the time that I identified him.
Q. And is that on the back of the picture of the defendant?
A. Yes, it is.

Furthermore, the victim, without hesitation, positively identified defendant at trial as her attacker. Accordingly, the defendant’s contention that the victim identified someone else as her attacker is not supported by the record.

The victim in this case was raped by the defendant and Franklin for over twenty minutes in her office, which was illuminated by both natural and artificial light. The defendant spoke to the victim several times and made no attempt to disguise his identity. The victim’s description of defendant’s age, weight and height were accurate. She described the attackers as ransacking the office and taking bottles of Courvoisier from the annex. Courvoisier liquor was the same brand dropped by the men chased off the campus. Durow testified that he saw the defendant and Franklin coming from the area of the victim’s office, thereby establishing proximity to the crimes. In the hallway he got a full frontal view of 117both men and made eye contact with them before they fled. He testified that he got another look at defendant’s face during the chase when the defendant turned around and pointed a gun at him. He was certain that he could identify the two men if he saw them again. Within days of the crime, Durow positively identified the defendant and Franklin from the television news footage. A tip from crime stoppers provided independent information as to the identity of the perpetrators which led to the photographic lineups shown to the victim by Detective MeCleary. Upon viewing the photographic line-up and without any prompting, the victim immediately and positively identified the defendant as one of the men who robbed and raped her. She steadfastly maintained her identification of defendant and positively identified him at trial. Upon his arrest and booking, Detective Bagneris did not observe any tattoos on defendant. Interestingly, the defendant does not argue that the campus surveillance video shows him as having tattoos on his forearms.

The victim testified that defendant was armed with a gun. The defendant and Franklin demanded money from the victim and took thirteen dollars and some change from her pocket, a camera and bottles of Courvoisier liquor from the victim’s office area and adjoining annex.

The victim testified that the defendant and Franklin entered her office brandishing guns and that each threatened her and forced her to engage in oral, anal and vaginal sexual intercourse. Betty Jo Mitchell, the sexual assault nurse, testified that the results of rape examination were consistent with the victim’s account of the rapes. Furthermore, the medical report of the victim’s broken and lacerated nose was consistent with the victim’s testimony that the defendant struck her with a gun. The victim had the opportunity to view the defendant for more | isthan twenty minutes in a well lit office during daylight hours. The victim immediately and positively identified defendant in a photographic lineup (photograph number 5) four days after the rapes. The defendant has not alleged that the photographic line-up was suggestive or unconstitutional. Both the victim and Durow positively identified the defendant at trial. The jury was well aware of the discrepancies in the physical descriptions of the defendant by the victim and Durow, but weighed their testimony and found them to be credible. Given the facts of this case, we do not find that the jury abused its discretion by finding the identifications of the victim and Durow credible. Thus, there was sufficient evidence to negate any possibility of misidentification, and the evidence presented at trial supports the jury’s finding that defendant was the person who robbed and raped the victim. The jury’s credibility finding was clearly not contrary to the evidence presented at trial. The State presented sufficient evidence to support the defendant’s convictions for aggravated rape and armed robbery and, accordingly, there is no merit to this assignment of error.

Errors Patent

A review for errors patent reveals an error in the defendant’s sentence for armed robbery. A person convicted of armed robbery shall be imprisoned at hard labor for not less than ten years and not more than ninety-nine years, without benefit of parole, probation or suspension of sentence. La. Rev.Stat. 14:64(B) (emphasis added).

In the instant case, the district court failed to deny the defendant benefits on his armed robbery conviction and, accordingly, the defendant’s sentence is illegally lenient. However, in instances where the statutory restrictions were not recited at sentencing, they are contained in the sentence, whether or not imposed |10by the sentencing court. La. Rev.Stat. 15:801.1(A); State v. Hall, 2002-1098 (La. App. 4 Cir. 3/19/08), 843 So.2d 488.

Conclusion

The defendant’s convictions and sentences are affirmed.

AFFIRMED.

      . La. Rev.Stat. 14:64 defines armed robbery as the taking of anything of value belonging to another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.

      . La. R.S. 14:42 defines aggravated rape, in pertinent part, as the anal, oral or vaginal sexual intercourse deemed to be without lawful consent of the victim because it was committed when the victim is prevented from resisting the act by threats of great and immediate bodily harm, when the victim is prevented from resisting the act because the offender is armed with a dangerous weapon, or when two or more offenders participated in the act.

      .On July 20, 2009, the state amended the aggravated rape charge (count two) to forcible rape (La. Rev.Stat. 14:42.1) as to Franklin. Franklin pleaded guilty as charged to armed robbery (count one) and guilty to the amended charge of forcible rape. On July 22, 2009, he was sentenced on count one to serve fifty years at hard labor with credit for time served but without benefit of parole, probation or suspension of sentence. The sentence was ordered to be served concurrent with his sentence in count two and with any other sentence. On count two he was sentenced to serve forty years at hard labor with credit for time served but without benefit of parole, probation or suspension of sentence.

      . The video was shown to the jury at trial.

      . State’s exhibit, S-4, the photographic lineup, was requested by counsel in July 2009 and again by this court on November 18, 2009, but the exhibit was not found.


author: PETERS, J.

text:
    CENTRAL LOUISIANA AMBULATORY SURGICAL CENTER, INC. (Shedrick CARR) v. RAPIDES PARISH SCHOOL BOARD.
    No. 10-0447.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 3, 2010.

      R. Bray Williams, Joseph Payne Williams, Sr., Williams Family Law Firm, LLC, Natchitoches, LA, for Plaintiff/Ap-pellee Central Louisiana Ambulatory Surgical Center, Inc.
    Roger A. Javier, Amanda H. Baxter, The Javier Law Firm, New Orleans, LA, for Defendant/Appellant Rapides Parish School Board.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and JAMES T. GENOVESE, Judges.
   PETERS, J.

IjThe Rapides Parish School Board (School Board) appeals a judgment rendered by the workers’ compensation judge (WCJ) in favor of the Central Louisiana Ambulatory Surgical Center, Inc. (CLASC), awarding CLASC recovery of $201.60 for medical services rendered to one of the School Board’s injured employees, $2,000.00 in statutory penalties, and $4,500.00 in attorney fees. We reverse the WCJ award of statutory penalties, but affirm the judgment in all other respects.

DISCUSSION OF THE RECORD

This appeal is one of eleven cases now before this panel involving the same litigants and raising the same legal issue. In each case, an employee of the School Board sustained a injury compensable under the Louisiana Workers’ Compensation Act and received medical treatment through CLASC. In each case, the School Board, through its workers’ compensation administrator, Gallagher Bassett Services, Inc. (Gallagher Bassett), initially applied La.R.S. 23:1034.2 and La.Admin.Code tit. 40, part I, § 2507 to reduce CLASC’s medical charges by ten percent. However, the School Board further reduced the charges by an additional twenty percent before tendering payment to CLASC. The correctness of the twenty percent reduction is the single issue in all eleven cases.

All of the disputes now before us have the same undisputed factual background and arise from a series of contracts involving a preferred provider organization (PPO) which discounts its payments to CLASC by twenty percent. They begin with a 1996 contract between CLASC and Affordable Health Care Concepts (Affordable) which had as its purpose CLASC’s participation in a Preferred Provider Panel by which Affordable would offer discounted medical services to those insured under the Civilian Health and Medical Program of the Uniformed Services (CHAMPUS).

^Section 1 of Article 4 of the CHAM-PUS contract addressed provider billing and payment and provided, in pertinent part, that “[f]or claims covered under Workers’ Compensation, contract rate shall not exceed the amount otherwise allowed for a workers [sic] compensation claim.” Section D of Appendix A, entitled “AFFORDABLE OUTPATIENT CARE NETWORK REIMBURSEMENT,” and attached to the contract, provided:

Reimbursement from Workers’ Compensation Payors for services rendered to occupationally ill/injured employees shall be as follows:
(1) If any state law or regulation establishes rules or guidelines for the payment of health care services, reimbursement shall not exceed 80 % of the maximum amount payable under such rules or guidelines. Any procedure code which is unvalued shall be reimbursed pursuant to Section A, Paragraph (3), of this Appendix. This rate of reimbursement shall apply whether such rules or guidelines are in existence at the time of execution of this agreement or established at a later time.
(2) In the absence of any state law or regulation set forth in Section D, Paragraph (1), reimbursement shall be the method set forth in Section A, Paragraph (1), (2) and (3) of this Appendix, but in no event shall reimbursement exceed the usual and customary charge for the services, as determined by AFFORDABLE or Payor.

Sometime after CLASC entered into the contract, Affordable evolved into what is now the defendant in this case, First Health.

In 2001, the School Board contracted with Gallagher Bassett to provide it with, among other things, services relating to the administration of its workers’ compensation claims. At the time, Gallagher Bas-sett had contracts with various other entities, including First Health. Gallagher Bassett’s relationship with First Health gave it access to First Health’s network and the advantages of First Health’s bill review and front-end processing services. In other words, there was no direct contract between CLASC and the School Board. Rather, the basis of this suit and the [ (¡remaining ten suits is the School Board’s underpayment of medical services that CLASC provided to its employees based on contracts emanating from First Health.

In the matter now before us, the School Board’s injured worker is Shedrick Carr, and it is not disputed that Mr. Carr sustained an injury compensable under the Louisiana Workers’ Compensation Act, that CLASC provided medical care to Mr. Carr totaling $1,120.00, and that medical care was for the treatment of his compen-sable injuries. In handling CLASC’s claim for payment, Gallagher Bassett first deducted $112.00 (the statutory ten percent) from the total submitted. It then reduced that sum by an additional twenty percent, or $201.60. The additional twenty percent was based on the provisions of First Health’s contract with CLASC. After making both reductions, the School Board then tendered $806.40 to CLASC as payment in full for the services rendered to Mr. Carr.

CLASC brought this claim to recover the twenty-percent underpayment from the School Board, and the litigants submitted the issue to the WCJ based on stipulations and briefs. The WCJ ultimately rendered judgment in this case as well as the other ten now before us, awarding CLASC judgment for the twenty percent at issue, penalties, and attorney fees. In doing so, the WCJ concluded that the School Board could not rely on contracts with a PPO to reduce the amounts paid for medical services provided by CLASC to its injured employee. This appeal followed.

In their appeal of this and the other ten cases now before us, the School Board raised four assignments of error:

1. The trial court erred in ruling that, although parties may contract for discounts from the maximum amount payable under the Louisiana Workers’ Compensation Reimbursement Schedule, the contracts utilized by the medical provider and Rapides Parish School Board. [sic] |4(“RPSB”) for discounts are not authorized by the Louisiana Workers’ Compensation Act.
2. The trial judge erred in ruling that the contract utilized by the medical provider and RPSB for discounts from the maximum amount payable under the Louisiana Workers’ Compensation Reimbursement Schedule must be specifically and affirmatively authorized by the Louisiana Workers’ Compensation Act.
3. The trial court erred in ruling that RPSB was arbitrary and capricious in relying upon contracts voluntarily entered into by the parties providing for discounts from the maximum amount allowed under the Louisiana Workers’ Compensation Reimbursement Schedule and awarding penalties and attorney fees against RPSB.
4. The trial court erred in assessing penalties and attorney’s fees against RPSB under La.Rev.Stat. 28:1201.

CLASC did not appeal or answer the appeal.

OPINION

The School Board’s first two assignments of error can be reduced to one question: Can an employer reimburse a health care provider at an amount below that provided by the Louisiana Workers’ Compensation Act’s reimbursement schedule? In a concurring opinion rendered in Beutler England Chiropractic Clinic v. Mermentau Rice, Inc., 05-942, p. 4 (La. App. 3 Cir. 5/31/06), 931 So.2d 553, 561 (first alteration ours), the writer of this opinion, joined by five of the twelve judges on this court, recognized that the answer to this question is “no.”

As they did in Beutler England Clinic [v. Market Basket No. 27, 05-952 (La. App. 3 Cir. 12/30/05) ], 919 So.2d 816, the defendants have attempted to interpose the preferred provider organization (PPO) contract as a defense to full payment, asserting that the attendant issues remove the dispute from the jurisdiction of the OWCA. In doing so, the employer and its insurer ignore the clear language of La.R.S. 23:1033, which provides that “[n]o contract, rule, regulation or device whatsoever shall operate to relieve the employer, in whole or in part, from any liability created by this Chapter except as herein provided.” (Emphasis |fiadded.) As stated in my dissent in Beutler England Clinic, 919 So.2d at 821,
[T]o the extent that the PPO contract purports to further limit the employer’s liability for medical care, it runs afoul of La.R.S. 23:1033 and may not serve as a basis to reduce the amount owed to Beutler England for the treatment of [the injured employee]. Because the PPO contract may not serve as a basis to reduce the amount owed for the treatment of [the injured employee], Beutler England’s claim is properly before the OWC pursuant to La.R.S. 23:1034.2(F)(1) as a garden-variety medical expense claim. Whatever remaining rights the defendants have vis-á-vis the PPO, in light of the Workers’ Compensation Act’s express disallowal of contracts in contravention of its provisions, is another issue for another forum.

This same issue has recently been addressed in Central Louisiana Ambulatory Surgical Center, Inc. v. Payless Shoesource, Inc., 10-86, 10-91, 10-92, 10-96, 10-97, 10-99, 10-100, 10-115, 10-117, 10-118 (La.App. 3 Cir. 7/28/10), 46 So.3d 689, rehearing granted, (La.App. 3 Cir. 10/20/10), and Agilus Health v. Accor Lodging North America, 09-1049 (La.App. 3 Cir. 3/10/10), 32 So.3d 1120, writ granted, 10-800 (La.6/18/10), 38 So.3d 312. We agree with the holdings in those opinions and incorporate the analysis in both as though set out herein in full. That being the case, we find no merit in the School Board’s first assignment of error.

With regard to the penalty and attorney fee issues, the panel in Central Louisiana Ambulatory Surgical Center, Inc. reversed the WCJ awards while the panel in Agilus Health affirmed the WCJ awards and awarded additional attorney fees for the work performed on appeal. The panel in Central Louisiana Ambulatory Surgical Center, Inc. initially concluded that the defendant School Board had reasonably controverted the claim. However, on rehearing, the panel reversed its position on the penalty and attorney fee award based on the failure of the defendants to comply with the notice requirements of La.R.S. 40:2203.1. With regard to the penalty issue, the ^plaintiff in the matter before us did not raise the notice issue and, therefore, we agree with and choose to follow the holding in the original opinion of Central Louisiana Ambulatory Surgical Center, Inc. However, with regard to the attorney fee issue, we agree that the attorney fee award should be affirmed, but for different reasons from those expressed in either Central Louisiana Ambulatory Surgical Center, Inc. or Agilus Health. We conclude that the WCJ may impose an award of attorney fees as an item of recovery separate from the penalty issue.

In reaching the conclusion that the attorney fee award should be upheld, we first note that the time and place of payment of workers’ compensation benefits, as well as medical expenses, is governed by La.R.S. 23:1201(A) through (E). The penalties for failure to make timely payments of compensation and/or medical expenses are set forth in La.R.S. 28:1201(F). That statute provides:

Failure to provide payment in accordance with this Section or failure to consent to the employee’s request to select a treating physician or change physicians when such consent is required by R.S. 23:1121 shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. The maximum amount of penalties which may be imposed at a hearing on the merits regardless of the number of penalties which might be imposed under this Section is eight thousand dollars. An award of penalties and attorney fees at any hearing on the merits shall be res judicata as to any and all claims for which penalties may be imposed under this Section which precedes the date of the hearing. Penalties shall be assessed in the following manner:
(1) Such penalty and attorney fees shall be assessed against either the employer or the insurer, depending upon fault. No workers’ compensation insurance policy shall provide that these sums shall be paid by the insurer if the workers’ compensation judge determines that the penalty and attorney fees are to be paid by the employer rather than the insurer.
|7(2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.
(3) Except as provided in Paragraph (4)of this Subsection, any additional compensation paid by the employer or insurer pursuant to this Section shall be paid directly to the employee.
(4) In the event that the health care provider prevails on a claim for payment of his fee, penalties as provided in this Section and reasonable attorney fees based upon actual hours worked may be awarded and paid directly to the health care provider. This Subsection shall not be construed to provide for recovery of more than one penalty or attorney fee.
(5) No amount paid as a penalty or attorney fee under this Subsection shall be included in any formula utilized to establish premium rates for workers’ compensation insurance.

(Emphasis added.)

The initial paragraph of La.R.S. 23:1201(F) provides that the mandatory penalty available to a claimant is comprised of two parts: (1) a percentage of the unpaid compensation subject to a maximum amount, and (2) a reasonable attorney fee. With regard to a health care provider’s claim, an award of anything but the amount owed is subject to the WCJ’s discretion, although that discretion is limited to some extent by the “reasonably controverted” requirement of La.R.S. 2S:1201(F)(2). Additionally, while La.R.S. 23:1201(F)(4) refers to the award of “penalties,” we interpret that to mean only the statutory penalty provided for in La.R.S. 23:1201(F). That is to say, the WCJ is vested with discretion to impose the twelve percent penalty as provided for by the statute and/or a separate “reasonable attorney fee based upon actual hours worked.” La.R.S. 23:1201(F)(4). Thus, while the WCJ’s discretion to award the twelve percent penalty is still subject to the | ^‘reasonably controverted” requirement of La.R.S. 23:1201(F)(2), the attorney fee award is not as the obvious intent of the statutory scheme is to award an attorney fee similar to that awarded in an open account collection action. Given the small nature of the amount normally at issue, any other interpretation would make the attempted collection by the health care provider a financially infeasible proposition. Thus, we find no error in the WCJ’s award of attorney fees to CLASC.

DISPOSITION

For the foregoing reasons, we reverse the WCJ’s $2,000.00 statutory penalty award to Central Louisiana Ambulatory Surgical Center, Inc. We affirm the judgment in all other respects. We assess all costs of this appeal equally between Central Louisiana Ambulatory Surgical Center, Inc. and the Rapides Parish School Board.

AFFIRMED IN PART AND REVERSED IN PART.

      . To conclude otherwise would be to give the WCJ authority to award two attorney fees for the same collection efforts.

      . Our holding affirming the WCJ’s award of attorney fees does not address the amount of attorney fees awarded as this issue was not raised by the School Board on appeal.