author: WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana v. Richard J. HEATH.
    No. 10-KA-994.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 27, 2011.

      Paul D. Connick, District Attorney, Terry M. Boudreaux, Gail D. Schlosser, Michael D. Smith, Jr., Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and MARC E. JOHNSON.
   WALTER J. ROTHSCHILD, Judge.

|?On April 30, 2008, the Jefferson Parish District Attorney filed a bill of information charging defendant, Richard J. Heath, with two counts of simple burglary of an inhabited dwelling in violation of LSA-R.S. 14:62.2. He was arraigned on May 1, 2008, and pled not guilty. On June 6, 2008, defendant withdrew his not guilty pleas and pled guilty as charged. The trial judge sentenced defendant to imprisonment at hard labor for six years on both counts, to run concurrently, with the first year of the sentence to be served without benefit of parole, probation, or suspension of sentence.

Also on June 6, 2008, the State filed a multiple bill alleging defendant to be a second felony offender. Defendant stipulated to the allegations. The trial judge vacated the original sentence on Count 1 and resentenced defendant under the multiple bill statute to imprisonment at hard labor for six years, to run concurrently with the sentence on Count 2, the first year without benefit of parole, probation, or |asuspension of sentence, and the entire sentence without benefit of probation or suspension of sentence. The trial judge also recommended the Intensive Incarceration, or Impact, program and Blue Walters Drug Treatment.

■ On August 14, 2008, the Department of Corrections sent the trial judge a letter advising her that defendant was rejected for participation in the Intensive Incarceration Program because of his “disciplinary problems and an assaultive arrest history.” Defendant filed a Motion to Amend Sentence on December 12, 2008, which was denied.

On December 1, 2009, defendant filed an Application for Post-Conviction Relief (APCR) arguing that his guilty plea was not knowingly, intelligently, or voluntarily made because he believed that he would be allowed to participate in the Impact program in exchange for waiving his rights. On December 8, 2009, the trial judge denied the APCR, finding that defendant’s claim was procedurally defaulted under LSA-C.Cr.P. art. 930.4 C because it could have been, but was not, raised on appeal. The trial judge stated that if she were to reach the merits of the claim, she would find that defendant’s counseled plea of guilty was a voluntary act that passed constitutional muster. The trial judge noted that defendant did not present any evidence that the court promised admittance to the Impact program. Additionally, the trial judge found that defendant failed to carry his burden of proof that relief should be granted under LSA-C.Cr.P. art. 930.2.

On February 8, 2010, defendant filed a writ application with this Court, arguing that the trial court erred by denying his APCR. This Court granted the writ for the limited purpose of vacating and setting aside the denial of the APCR and remanding the matter to grant defendant the opportunity to reinstate his appeal rights. On April 12, 2010, defendant filed another APCR seeking an out-of-time appeal, which the trial judge granted.

J¿FACTS

Because defendant pled guilty, there are few facts contained in the record. However, the prosecutor gave a factual basis during the guilty plea colloquy. He said that if the State had gone to trial, it would have proven beyond a reasonable doubt that on March 30, 2008, in Jefferson Parish, defendant committed a burglary of an inhabited dwelling located at 4007 Catherine Avenue, which is a structure that was used as a place of abode for David Mendel-son. Additionally, the prosecutor said the State would have proven beyond a reasonable doubt that defendant violated LSA-R.S. 14:62.2 by committing a simple burglary of an inhabited dwelling located at 811 Dodge Avenue, the home of Deidra Dunbar, which was located in Jefferson Parish. The bill of information reflects that the crime involving Ms. Dunbar occurred on March 31, 2008. During the colloquy, defendant admitted that he committed those crimes.

LAW AND DISCUSSION

On appeal, in his first assignment of error, defendant claims that his guilty pleas are constitutionally infirm. Defendant argues that he should be permitted to withdraw his guilty pleas, because he was denied admission into the Impact and Blue Walters Programs, which he contends was a part of his plea agreement. He asserts that his guilty pleas were not made freely and knowingly because they were based on the belief that the terms of the plea bargain would be fulfilled.

The State responds that defendant’s guilty pleas were entered knowingly and voluntarily. The State notes that defendant was denied admission into the programs because of his own actions, namely, his disciplinary problems and assaultive arrest history. The State also notes that defendant was made aware prior to the guilty pleas that he might be ineligible for the programs.

Uf a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and precludes review of such defects either by appeal or post-conviction relief. State v. Wingerter, 05-697, p. 5 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 664. Additionally, once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. State v. McCoil, 05-658, p. 7 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boy-kin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. McCoil, 05-658 at 7, 924 So.2d at 1124. Although defendant did not file a motion to withdraw his guilty plea in the district court, he is not prohibited from challenging a constitutionally infirm guilty plea either by means of appeal or post-conviction relief. Id.

Impact is an intensive program of parole supervision established by LSA-R.S. 15:574.4. State v. Zeringue, 08-697, p. 9 (La.App. 5 Cir. 11/25/08), 862 So.2d 186, 193 n. 3, writ denied, 03-3523 (La.4/23/04), 870 So.2d 298. LSA-R.S. 15:574.4.4 was redesignated from LSA-R.S. 15:574.4.1 by Acts 2010, No. 241, § 2, which had been redesignated from LSA-R.S. 15:574.4 A(2) by Acts 2008, No. 266, § 2. The language of the statute was not amended in the changes, only its numerical designation. At the time defendant committed the crimes in March of 2008, LSA-R.S. 15:574.4 A(2)(a) provided in pertinent part:

Notwithstanding the provisions of Paragraph A(l) of this Section, a person, otherwise eligible for parole, convicted of a nonviolent first felony offense and committed to the Department of Public Safety and Corrections, or of a nonviolent second felony offense and committed to the Department of Public Safety and | ^Corrections, may be eligible for intensive parole supervision upon successful completion of intensive incarceration.

In State v. Walker, 94-340 (La.App. 5 Cir. 10/25/94), 645 So.2d 766, defendant pled guilty to possession of cocaine and nolo contendere to armed robbery. The trial court sentenced defendant and then verbally agreed to recommend him for the intensive incarceration and intensive parole supervision (Impact) program. Defendant claimed that when he entered his pleas, he did not understand that the armed robbery conviction made him ineligible by law for the Impact program. On appeal, defendant asserted that the trial court erred in denying his motion to withdraw his pleas, and that he should be allowed to withdraw them because they were based on an unfulfilled plea bargain. Id., 94-340 at 1-4, 645 So.2d at 767-68.

This Court found that the trial court was remiss in allowing a plea bargain whose terms were barred by law. It said that defendant had contended in his brief that it was the hope of admission to the Impact program that induced him to enter his pleas. This Court stated that there was nothing in the record to indicate that defendant was made aware prior to entering his pleas that he was legally ineligible for the program. It asserted that although the trial court may have been able to comply technically with the terms of the plea bargain by recommending defendant to the Impact program, defendant’s admission into the program was a legal impossibility. This Court concluded that the defendant’s pleas were constitutionally infirm and, therefore, must be vacated. State v. Walker, 94-340 at 6-8, 645 So.2d at 769-70.

In State ex rel. Lee v. State, 04-1376 (La.6/17/05), 904 So.2d 695, the Louisiana Supreme Court found that though the guilty plea form and Boykin transcript revealed that all parties believed that relator could participate in the |7Impact program, because relator had committed a crime of violence, he could not. Accordingly, because the prospect of participation in the Impact program with accelerated release on sentence was a material inducement for relator’s plea, the supreme court vacated the guilty plea and remanded the case to the district court for further proceedings.

In State v. Ridgley, 96-680 (La.App. 1 Cir. 2/20/98), 708 So.2d 793, writ denied, 98-759 (La.7/2/98), 724 So.2d 206, defendant contended that the trial court erred in failing to allow him to withdraw his guilty plea to possession with intent to distribute cocaine. He argued that he was induced to plead guilty based on the representation made to him by counsel that he would be sentenced to the Impact program. The appellate court found there was no legal basis for the withdrawal of the guilty plea, noting that the trial court conducted a thorough Boykin hearing wherein defendant was informed of his sentencing exposure and indicated that he understood the exposure; defendant indicated that his plea was not based on promises or inducements; the trial court told defendant he was looking at some jail time; and defendant benefitted from the plea agreement. Id., 96-680 at 2-6, 708 So.2d at 794-96.

In the instant case, the waiver of rights form and the Boykin colloquy show that defendant was informed of his rights and the consequences of his plea, and that the plea was entered into voluntarily. Additionally, defendant was sentenced in conformity with the plea agreements, including the trial judge’s recommendation of the Impact program and Blue Walters Drug Treatment.

Unlike the defendants in Lee and Walker, defendant in the instant case was not convicted of a crime of violence, nor was the predicate offense listed in the bill of information a crime of violence. The record reflects that defendant pled guilty to two counts of simple burglary of an inhabited dwelling, and that the predicate 1 soffense listed in the multiple bill was simple burglary. Those offenses are not considered crimes of violence under LSA-R.S. 14:2. Additionally, in Lee, all parties believed relator could participate in the Impact program; however, in the instant case, the trial judge specifically told defendant that she could only recommend the Impact program and that the Department of Corrections could reject him. Also, defense counsel said at the hearing that he had told defendant he might not be eligible for the Boot Camp program because of a “crime of violence” and “a multiple bill situation.”

Moreover, in the instant case, as in Ridgley, defendant benefitted from the plea agreement. Defendant in the instant case received two concurrent six-year sentences on the underlying convictions; however, he could have been sentenced to the maximum twelve years on each count to run consecutively for a total of twenty-four years, since each offense occurred on a different date and involved a different victim. LSA-R.S. 14:62.2; LSA-C.Cr.P. art. 883. Additionally, as a second felony offender, defendant received the minimum six-year sentence; however, he could have been sentenced to the maximum twenty-four years imprisonment to run consecutively to the six-year sentence on Count 2 for a total of thirty years. LSA-R.S. 15:529.1.

Based on the record before us, we find that defendant’s guilty pleas are not constitutionally infirm and, therefore, he is not entitled to withdraw them. Accordingly, this assignment of error is without merit.

In his second assignment of error, defendant argues that in the event this Court decides that he may not withdraw his guilty pleas, the matter should be remanded for the purpose of having the trial judge formally order the Department of Corrections to return him to court for resentencing in accordance with LSA-[C.Cr.P.9 art. 881.1, or return him to prison to serve the remainder of his sentence. The State agrees.

In March of 2008, when the defendant committed the crimes in the instant case, LSA-R.S. 15:574.4 A(2)(g)(i) provided as follows:

If an offender is denied entry into the intensive incarceration program for physical or mental health reasons or for failure to meet the department’s suitability criteria, the department shall notify the sentencing court, and based upon the court’s order, shall either return the offender to court for resentencing in accordance with the provisions of the Code of Criminal Procedure Article 881.1 or return the offender to a prison to serve the remainder of his sentence as provided by law.

In State v. Jones, 09-894 (La.App. 5 Cir. 3/23/10), 39 So.3d 648, this Court stated that under LSA-R.S. 15:574.4.1 G(l), the Department of Corrections was required to notify the sentencing judge of defendant’s ineligibility for the intensive incarceration programs. Because its review of the record did not reflect that the Department of Corrections notified the trial judge of defendant’s ineligibility for intensive incarceration, this Court, by way of its opinion, notified the Department of Corrections of their obligation under the statute, and the trial judge of defendant’s ineligibility under the statute. This Court also remanded the case for a ruling as required by law under LSA-R.S. 15:574.4.1 G(l). Id., 09-894 at 4-5, 39 So.3d at 651.

In the instant case, as stated previously, the record reflects that on August 14, 2008, the Department of Corrections sent the trial judge a letter advising her that defendant was rejected for participation in the Intensive Incarceration Program because of his “disciplinary problems and assaultive arrest history.” However, the record does not reflect that the trial court has taken any action in response to that notification. Therefore, we remand the case with instructions for the trial court to | inorder the Department of Corrections to either return defendant to court for resen-tencing in accordance with LSA-C.Cr.P. art. 881.1, or return defendant to prison to serve the remainder of his sentence as provided by law.

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir.1990). Our review did not reveal any errors requiring corrective action.

DECREE

For the foregoing reasons, we affirm. However, we remand the case with instructions for the trial court to order the Department of Corrections to either return defendant to court for resentencing in accordance with LSA-C.Cr.P. art. 881.1, or return defendant to prison to serve the remainder of his sentence as provided by law.

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      . LSA-R.S. 15:574.4 A(2)(g)(i) is presently codified in LSA-R.S. 15:574.4.4 G(1).

      . At the pertinent times in Jones, LSA-R.S. 15:574.4 A(2)(g)(i) was designated as LSA-R.S. 15:574.4.1 G(l).


source: Caselaw Access Project

author: SUSAN M. CHEHARDY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Eric WILLIAMS, Sr.
    No. 10-KA-1010.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 27, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis-Appellate Counsel, Churita Hansell-Trial Counsel, Tonia K. Williams-Trial Counsel, E. Clifton Milner-Trial Counsel, Assistant District Attorneys, Gretna, LA, for Appel-lee, State of Louisiana.
    Margaret S. Sollars, Attorney at Law, Thibodaux, LA, for Appellant, Eric Williams, Sr.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and FREDERICKA H. WICKER.
   SUSAN M. CHEHARDY, Judge.

2On appeal, defendant seeks review of his convictions and sentences for aggravated battery and false imprisonment with a deadly weapon. For the following reasons, we affirm his convictions and sentences.

On December 7, 2007, the Jefferson Parish District Attorney’s Office charged the defendant, Eric Williams, Sr., with one count of forcible rape, in violation of La. R.S. 14:42; one count of aggravated battery, in violation of La. R.S. 14:34; and one count of false imprisonment while armed with a dangerous weapon, in violation of La. R.S. 14:46.1.

The matter proceeded to trial before a twelve-person jury. On April 28, 2010, the jury found defendant guilty as charged for aggravated battery and false imprisonment while armed with a dangerous weapon. However, the jury deadlocked on the forcible rape charge. The State subsequently opted not to retry the defendant for forcible rape.

On May 10, 2010, the trial court sentenced defendant to eight years at hard labor for aggravated battery and eight years at hard labor for false imprisonment while armed with a dangerous weapon, to be served consecutively. The defendant filed a motion to reconsider sentence, which was denied. This appeal follows.

3Facts

M.W., the victim and the wife of the defendant, testified that, in 2010, she had been married to the defendant approximately 25 years. According to the victim, the defendant knew that she had plans to divorce him.

The victim testified that, in the early morning hours of September 9, 2007, she and the defendant, who were at their home in Harvey, got into an argument after she refused to have sex with the defendant. The defendant cursed her and placed a “knife at [her] throat.” The victim indicated that the defendant told her that if she screamed, he would cut her throat. The victim testified that the defendant held her at knifepoint in their bedroom from approximately 1 a.m. to 9 a.m. During that time, defendant forced her to perform oral sex and raped her vaginally and anally.

Eventually, the victim attempted to disarm the defendant and screamed for her daughter to call the police. During the struggle, the defendant bit the victim on the hand. With her daughter’s help, the victim escaped to their daughter’s bedroom.

The defendant then armed himself with a large barbeque knife from the patio downstairs, returned upstairs, and broke down their daughter’s bedroom door by punching and kicking the door. The victim testified that the defendant stabbed her “through the door ... because I was holding the door.”

At trial, the victim’s and defendant’s 22-year-old daughter testified that, in the early morning hours of September 9, 2007, she heard the defendant start an argument with the victim, which was not unusual. Later, she was awakened by the victim screaming her name. When she went into the hallway that separated her bedroom from her parents’ bedroom, she heard the victim say, “Don’t, don’t, |4please stop, I’ll have sex with you if you don’t.” At that point, she went back into her bedroom. Around dawn, she was awakened a second time by the victim screaming her name and “call 911, call 911.” Their daughter also heard the victim scream that the defendant had “her by knife point.”

Their daughter immediately called 911, retrieved a “knife I had underneath my mattress ... for protection,” ran into the hallway, and attempted to open her parents’ bedroom door. She was only able to partially open the bedroom door because the defendant was blocking the door. Their daughter saw the victim holding a folding knife and the defendant holding something “like a broom handle.”

According to their daughter, the defendant stated that the victim had held him hostage all night. The victim, however, declared that the defendant had held her hostage. At that point, the victim escaped her bedroom, took their daughter into the daughter’s bedroom, and locked and barricaded the door.

As the victim spoke to the 911 operator, the defendant “started punching a hole through the door” with his fists and feet. Their daughter testified that the defendant lacerated his forearm when he was punching through the door. Their daughter stated that, when the defendant was eventually able to “put his hand through the hole and started making stabbing motions to my mom’s chest, ... he cut her on her chest.” The defendant was then able to kick in the door and enter her bedroom armed with a 20-inch long, silver barbeque knife.

Deputy Marcus Lopez of the Jefferson Parish Sheriffs Office testified that, on September 9, 2007, he was dispatched to investigate a domestic disturbance in response to a 911 call from 2548 Catawba Drive in Harvey. Deputy Lopez knocked on the front door and first floor windows of the residence but received no answer. As Deputy Lopez was making his last pass around the house, a woman ^opened an upstairs window and yelled, “Help me, Help me, he’s trying to kill me. Kick in my door.” Deputy Lopez drew his weapon, kicked in the front door, and entered the residence.

Deputy Lopez testified that after entering the Catawba Drive residence, he and Deputy Jason Picou checked the first floor for victims then proceeded upstairs. In a second-floor hallway, Deputy Lopez noticed a blood splatter and a door that was “completely disseminated, it was in pieces.”

When Deputy Lopez entered the room with the damaged door, he noticed “out of the corner of [his] eye” a man, whom he identified in court as the defendant, standing in a corner of the room with a knife directly in front of a woman wearing a “blood soaked shirt.” Deputy Lopez ordered the defendant to drop the knife and to place his hands on the wall. The defendant complied. Deputy Lopez testified that the defendant then said, “it’s not me, it was her.”

When he interviewed the victim, Deputy Lopez learned that she was the defendant’s wife who told him that she was “held in her house all night by knife point and was raped several times over the course of the night.” Deputy Lopez described the victim as being “very afraid.”

At trial, Detective Lopez identified crime scene photographs of the victim on September 9, 2007. He identified photographs of a puncture wound to the victim’s breast and a bite by the defendant on her hand she sustained when she was trying to defend herself. Deputy Lopez also identified a photograph of the 20-inch long, chrome barbeque knife that the defendant was pointing at the victim when the deputies found the defendant.

Deputy Jason Aaron Picou of the Jefferson Parish Sheriffs Office testified that he was dispatched to the Catawba Drive residence to assist Deputy Lopez. When Deputy Picou arrived at the Catawba Drive residence, Deputy Lopez was | (¡standing at the front door. Deputy Picou subsequently heard “someone scream down from the top floor that they needed help and for us to get up there and to kick in the door.”

After entering the second floor bedroom, Deputy Picou observed the defendant and the victim standing on opposite sides of the room. The defendant, who had a knife in his hand, told Deputy Picou that he and his wife had an argument “over her having an affair with his eighteen-year old son’s friend,” and that his wife had stabbed him. Deputy Picou testified that the victim had a stab wound to her chest and that the defendant had a stab wound to his arm.

Sergeant Kevin Decker of the Jefferson Parish Sheriffs Office, upon his arrival at the crime scene, notified the victim that she was going to be escorted to Lakeside Hospital for medical care, including a sexual assault examination by a physician. Dr. Rachel Reitan, an expert in obstetrics and gynecology, examined the victim at Lakeside Hospital on September 9, 2007. Dr. Reitan determined that the victim had a “large stab wound [to] her left breast” and a “bite mark on her hand.”

Dr. Reitan further determined that, although the injuries were not life-threatening, the victim had “a lot of bruising up by her neck, like somebody was trying to kill her, strangle her.” According to Dr. Rei-tan, the victim’s injuries indicated “the patient had been forcefully sexually assaulted and emotionally abused with her life being threatened over and over.” Dr. Reitan indicated that prior to September 9, 2007, she had not treated the victim.

At trial, the defendant testified on his own behalf. He testified that, on the date of the attack, the victim began arguing with him after they had consensual sex. The defendant indicated that he did not want to argue with his wife in the home because his family counselor had advised against it. However, the victim kept 17arguing with the defendant. According to the defendant, the victim kept on telling him “I didn’t cheat on you” while he was trying to sleep. She then told the defendant that she was going to leave him and “take” the cash he had saved to pay the insurance deductible to get her vehicle fixed.

The defendant testified that the victim then begged him to have sex with her. After the defendant acquiesced, the defendant told the victim that he wanted to go to bed. The defendant testified that the victim asked him about the deductible money, to which he responded “it don’t make sense for me to give you the money.” The defendant then went to sleep. The defendant testified he awoke to the victim “with a knife on me” telling him “come on, you going to give me my money.” The defendant indicated that he bit the victim’s hand in an effort to dislodge the knife.

According to the defendant, the commotion awoke their daughter. The defendant told their daughter that the victim was “acting like she was crazy.” He also denied that he had held his wife at knife-point. The defendant admitted breaking down their daughter’s bedroom door; he testified that he broke down the door in order to tell the 911 dispatcher that his wife was lying.

The defendant also admitted stabbing the victim in the breast. He explained that his intention was to “cut [the victim] back like [she cut him].”

On cross-examination, the defendant admitted that, on September 9, 2007, he knew right from wrong. The defendant also admitted that, during the course of his marriage, he had extramarital affairs. The defendant testified that both his wife and daughter were lying about the events of September 9, 2007. The defendant additionally admitted that he told his family counselor and a psychiatrist that he was not “crazy.”

[sThe defendant also presented testimony from Dr. Daphney Glenmeyer, who was qualified as an expert in psychiatry. Dr. Glenmeyer examined the defendant and the defendant’s mother. Dr. Glenmeyer testified that, in her medical opinion, the defendant suffered from a “delusional disorder” or a pathological jealousy, wherein the defendant believed that his wife was having an affair. According to Dr. Glen-meyer, the defendant was suffering from a “delusional disorder and that, as a result of the delusions, was unable to exercise the appropriate impulse control, had poor judgment, therefore leading toward what happened.”

On cross-examination, Dr. Glenmeyer admitted that it was possible that an individual suffering from a delusional disorder could appreciate the consequences of his actions and know right from wrong. Dr. Glenmeyer admitted that brain scans conducted on the defendant while the defendant was housed at East Jefferson Hospital were negative for any brain abnormalities.

On rebuttal by the State, Dr. Harminder Mallik was certified as an expert in the field of psychiatry and forensic psychiatry. Dr. Mallik examined the defendant on August 13, 2009, because the defendant had submitted a plea of not guilty by reason of insanity. The purpose of the examination was for Dr. Mallik to determine whether or not the defendant could distinguish between right and wrong at the time of the alleged offenses.

Dr. Mallik stated that the defendant told him he knew that rape was wrong and attempted to portray himself as the victim in this matter. After reviewing the report, Dr. Mallik described the defendant’s motive for the attack as a “sex deal gone sour.” After reviewing all relevant evidence, including his interview of the defendant, defendant’s children, the victim, and defendant’s statements to Dr. Glenmeyer and Ms. Gundy, Dr. Mallik testified that, in his medical opinion, the defendant was able to distinguish right from wrong at the time of the offenses.

IflAfter hearing all the testimony and reviewing the evidence, the twelve-person jury found defendant guilty as charged of aggravated battery and false imprisonment with a deadly weapon but could not reach a verdict on forcible rape. On appeal, defendant raises two assignments of error: first, the evidence was insufficient to convict him of aggravated battery and false imprisonment and, second, his sentences are excessive.

In his first assignment of error, defendant contends that the evidence used to convict him at trial was legally insufficient because he “met his burden of proving by a preponderance of the evidence that he was insane at the time of this crime.” Specifically, defendant does not challenge the sufficiency of evidence used to convict him of aggravated battery or false imprisonment but rather contends that he proved, by a preponderance of evidence, that he did not have to ability to distinguish right from wrong at the time of the offenses.

In Louisiana, a defendant is presumed to be sane. La. R.S. 15:432; State v. Silman, 95-0154 (La.11/27/95), 663 So.2d 27, 32; State v. Washington, 00-301 (La.App. 5 Cir. 9/26/00), 769 So.2d 1235, 1238, writs denied, 00-2971 (La.9/28/01), 798 So.2d 106, 00-3041 (La.9/28/01), 798 So.2d 108. To rebut the presumption of sanity and avoid criminal responsibility, the defendant has the burden under La.C.Cr.P. art. 652 of proving the affirmative defense of insanity by a preponderance of the evidence.

Criminal responsibility is not negated by the mere existence of a mental disease or defect. To be exempted from criminal responsibility, the defendant must show he suffered a mental disease or defect which prevented him from distinguishing between right and wrong at the time he

committed the conduct in question. La. R.S. 14:14; Silman, 663 So.2d at 32.

[ lflThe determination of sanity is a factual matter. Silman, 663 So.2d at 32. A Louisiana jury considering an accused’s plea of not guilty and not guilty by reason of insanity must first determine whether the State has proven the essential elements of the charged offense beyond a reasonable doubt. It may then proceed to the determination of whether the defendant was incapable of distinguishing between right and wrong at the time of the offense, and is thus exempt from criminal responsibility for his actions. State v. Branch, 99-1484 (La.3/17/00), 759 So.2d 31, 32 (per curiam).

All evidence, including both expert and lay testimony, along with defendant’s conduct and actions before and after the crime, may be considered in determining whether the defendant has met his burden of proof. On review of a claim for sufficiency of evidence in an action where an insanity defense has been raised, the appellate court, applying the standard outlined in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), must determine whether under the facts and circumstances of the case, any rational fact finder, viewing the evidence in a light most favorable to the prosecution, could conclude, beyond a reasonable doubt, that the defendant failed to prove by a preponderance of the evidence that he was insane at the time of the offense. Silman, 663 So.2d at 32.

If there is conflicting evidence on the issue of insanity, the reviewing court should accord great weight to the jury’s resolution of the conflicting evidence provided the jury was properly instructed and no evidence was prejudicially admitted or excluded. State v. Pettaway, 450 So.2d 1345 (La.App. 2d Cir.1984), writ denied 456 So.2d 171 (La.1984). The jury’s decision should not be overturned unless no rational juror could have found the defendant failed to prove his insanity at the time of the offense. State v. Sharp, 418 So.2d 1344 (La.1982); State v. Moore, 568 So.2d 612, 618 (La.App. 4 Cir.1990)

|nIn this case, both the prosecution and the defendant presented testimony from witnesses, including expert psychiatrists, Dr. Glenmeyer and Dr. Mallik, regarding defendant’s ability to distinguish right from wrong at the time of the incidents in question. Dr. Glenmeyer based her opinion that the defendant was insane at the time of the offenses largely upon notes made by the admitting physician at East Jefferson Hospital’s behavioral psychiatric ward. According to Dr. Glenmeyer, the admitting psychiatrist diagnosed defendant as “psychotic” and “delusional” upon his admission in July 2007.

Dr. Glenmeyer further opined that the defendant suffered from a “serious mental illness” and “would be unable to moderate his impulses, to appreciate the consequences of his actions, period.” However, on cross-examination, Dr. Glenmeyer admitted that some individuals with delusional disorders could possibly appreciate the consequences of their actions and know right from wrong.

Conversely, Dr. Mallik testified that after reviewing all relevant evidence, it was his medical opinion that the defendant was able to distinguish right from wrong at the time of the offenses. Dr. Mallik also pointed out several discrepancies in Dr. Glenmeyer’s testimony. He characterized Dr. Glenmeyer’s testimony regarding defendant’s psychiatric hospitalization, that the defendant “came in and he was psychotic and was treated with medications and got better,” as “not the case.”

Dr. Mallik pointed out that terms “psychotic” and “delusional” as found in the records from East Jefferson were used by defendant’s family to describe defendant, not listed as a diagnosis. Further, the defendant was treated with one dose of anti-depressant medication for sleeplessness during his inpatient treatment. He did not receive anti-psychotic medications at any time during his hospitalization at East Jefferson. Defendant was released with a diagnosis of major 112depressive disorder with therapeutic follow-up with a social worker not a physician, which suggests that defendant did not need medication to treat his disorder.

The defendant’s testimony and actions also lend credence to the jury’s determination that he was not insane at the time of the offenses. Most importantly, the defendant testified at trial that he knew right from wrong at the time of the offenses. The defendant stated to Dr. Mallik that he knew right from wrong at the time of the offenses and that he knew that committing rape was wrong. The defendant clearly attempted to portray himself as a victim of his wife’s actions at trial.

Considering the totality of the evidence, and viewing the evidence as most favorable to the prosecution, we find that a rational jury could easily have concluded the defendant failed to prove, by a preponderance of the evidence, his insanity at the time of the offense. We find that this argument lacks merit.

In his second assignment of error, the defendant argues that his sentences were excessive. Specifically, the defendant contends that the acts that lead to his convictions were all part of one incident so the trial judge erred in imposing consecutive sentences for his crimes.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1, 4. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. Id. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the 113harm done to society, it shocks the sense of justice. State v. Lawson, 04-334 (La.App. 5 Cir. 9/28/04), 885 So.2d 618, 622.

When an appellate court reviews a sentence for excessiveness, the issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. Dorsey, 07-67 (La.App. 5 Cir. 5/29/07), 960 So.2d 1127, 1130. In reviewing a trial court’s sentencing discretion, three factors are considered: 1) the nature of the crime; 2) the nature and background of the offender; and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Pearson, 07-332 (La.App. 5 Cir. 12/27/07), 975 So.2d 646, 656. The appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. Id.

Consecutive and concurrent sentences are governed by La.C.Cr.P. art. 883, which states:

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment are to be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently. In the case of the concurrent sentence, the judge shall specify, and the court minutes shall reflect, the date from which the sentences are to run concurrently.

Here, the defendant was convicted of aggravated battery and false imprisonment while armed with a dangerous weapon. La. R.S. 14:34 provides that “[w]hoever commits an aggravated battery shall be fined not more than five thousand dollars, imprisoned with or without hard labor for not more than ten years, or both.” La. R.S. 14:46.1(B) provides that “[w]hoever commits the crime of false imprisonment while armed with a dangerous weapon shall be imprisoned, with or without hard labor, for not more than ten years.” The defendant was sentenced to eight years at hard labor on the aggravated battery conviction and | Height years at hard labor on the false imprisonment while armed with a dangerous weapon conviction, to run consecutively.

In sentencing the defendant, the trial court stated, in pertinent part:

I’ve considered the guidelines of 894.1 of the Code of Criminal Procedure when deciding your sentence ... what I find very compelling is the fact that you accept no responsibility for your actions, that this was all a charade, an act put on by your wife ... the facts of this case are particularly horrendous ... you kept your wife imprisoned while armed with a knife for seven hours, for seven hours ... you wanted to show her what it was like to be cut ... Anyone that may review my sentence, I strongly suggest that they listen to the 911 tape. The 911 tape in and of itself, was chilling ... the terror in her voice as you were cutting through the door is something I’ve never heard of in all the years that I’ve been doing this type of work ... I will reemphasize the fact that the stabbing occurred to her chest with a weapon that was significant in size ... I do want the record to reflect that with the aggravated battery after she broke free from you and attempted to barricade herself into her daughter’s room, you went downstairs and retrieved a barbeque knife for which she was stabbed ... because the two crimes are separate and distinct, they are to run consecutive to one another.

In State v. Walker, 00-3200 (La.10/12/01), 799 So.2d 461, 462 (per curiam), the Louisiana Supreme Court stated, however, that:

Although La.C.Cr.P. art. 883 favors imposition of concurrent sentences for crimes committed as part of the same transaction or series of transactions, a trial court retains the discretion to impose consecutive penalties in cases in which the ... circumstances in his background or in the commission of the crimes justify treating him as a grave risk to the safety of the community.

See also, State v. Scott, 06-1103 (La.App. 1 Cir. 12/28/06), 952 So.2d 60, 68-70 (consecutive sentences were warranted where the recidivist defendant’s unprovoked, brutal attack manifested deliberate cruelty, caused significant injury to the victim’s face, and created a risk of bodily harm to more than one person); State v. Jones, 04-1524, p. 5 (La.App. 1 Cir. 3/24/05), 907 So.2d 139, 143 (“Additionally, given the obvious danger Imposed to the public by the defendant’s repeated drunken driving, consecutive sentences were justified in this case.”)

In the instant case, the trial judge found that the criminal acts were separate incidents and .imposed consecutive sentences. We find no error in that decision. Further, even if the defendant’s acts were part of the same transaction or series of transactions, a trial court retains discretion to impose consecutive penalties in cases, such as this, in which the defendant’s background or his actions during the crimes justify treating him as a grave risk to the safety of the community. Here, defendant imprisoned his wife for many hours at knifepoint while their daughter slept across the hall, threatened her life and their children’s lives, coerced sexual intercourse, then upon her escape, re-armed himself with a larger knife from an outdoor area, broke down a door with his bare hands, stabbed his wife in the chest in front of his daughter, and threatened his daughter with the same knife.

As the sentencing court correctly concluded, the defendant presents a grave risk to his family and the safety of the community. Further, the trial court exceeded in his compliance with La.C.Cr.P. art. 894.1(C). Upon thorough review, we find no abuse of discretion in the trial judge’s imposition of consecutive sentences. This assignment of error lacks merit.

Finally, as is our customary practice, we have reviewed the record for errors patent, pursuant to La.C.Cr.P. art. 920. We note that neither the transcript nor the commitmenVminute entry indicates that the jury was sworn as required by La.C.Cr.P. arts. 788 and 790. Jury irregularities were not, however, raised in the trial court or on appeal. Consideration of that issue is, therefore, waived. More importantly, we find no prejudicial error. See, State v. Bauman, 08-1169 (La.App. 5 Cir. 5/12/09), 15 So.3d 177, 187; State v. Wilkinson, 00-339 (La.App. 5 Cir. 10/18/00), 772 So.2d 758, 771. No corrective action is required.

11fiIn conclusion, we find no merit in defendant’s arguments on appeal. Defendant’s convictions and sentences are hereby affirmed.

AFFIRMED

      . In an attempt to protect the victim’s privacy, we will refer to the victim using her initials. See, La. R.S. 46:1844(w).


text:
    Rachel BABIN, Wife of, and Royal Babin v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Matthew N. DeSalvo.
    No. 11-CA-192.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 27, 2011.
    Thomas A. Gennusa, Joseph S. Piaeun, Reid S. Uzee, Leonard J. Cline, Attorneys at Law, Metairie, LA, for Plaintiff/Appel-lee/3rd Appellant Royal Babin.
    Joseph M. Messina, Charles R. Rum-bley, Attorneys at Law, New Orleans, LA, for Defendant/Appellant Matthew N. DeS-alvo and State Farm Mutual Automobile Insurance Company.
    James R. Carter, Attorney at Law, New Orleans, LA, for Defendant/Appellee/2nd Appellant State Farm Mutual Automobile Insurance Company, in its U/M Capacity.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and FREDERICKS HOMBERG WICKER.
   SUSAN M. CHEHARDY, Judge.

UOn appeal, Matthew DeSalvo and his liability insurer are appealing two separate judgments: first, the trial court’s grant of a new trial in favor of plaintiff, Royal Babin, and, second, the judgment in favor of plaintiff, Rachel Babin. Additionally, second appellant, Royal Babin, appeals the original judgment in favor of DeSalvo and his insurer. Moreover, Mrs. Rachel Babin moves for dismissal of DeSalvo’s appeal of judgment in her favor as untimely. Based on the following, we dismiss this appeal and remand for further proceedings.

On January 7, 2006, Royal and Rachel Babin’s vehicle was rear-ended by a vehicle driven by Matthew DeSalvo. As a result of this accident, the Babins filed a personal injury lawsuit against DeSalvo, his automobile liability insurer, and their uninsured motorist coverage carrier. In this particular situation, State Farm Mutual Automobile Insurance Company(“State Farm”) represented DeSalvo as his liability insurer and the Babins as their UM carrier.

The matter came for trial on March 14, 2010. Before trial commenced, Rachel Ba-bin stipulated that her damages were under $50,000.00 so her claims |4were tried by the trial judge. At the conclusion of the trial, the district court entered a Judgment in favor of Mrs. Rachel Babin and against Mr. DeSalvo and his liability insurer. The Judgment, with respect to Mrs. Babin’s claims was signed on April 6, 2010. Notice was mailed by the clerk on April 7, 2010. Neither Mrs. Babin nor DeSalvo and his liability insurer filed a Motion for Judgment Notwithstanding the Verdict or Motion for New Trial regarding the Judgment as to her claims.

Mr. Royal Babin’s claims, however, were tried by the jury, which returned a verdict in favor of Mr. DeSalvo and against Mr. Babin. On April 6, 2010, the district court adopted the jury’s verdict and signed a Judgment to that effect.

On April 14, 2010, Mr. Royal Babin filed a Motion for Judgment Notwithstanding the Verdict (“JNOV”) and/or Motion for New Trial. After a hearing, the trial court granted both Mr. Babin’s Motion for JNOV and Motion for New Trial on August 17, 2010.

On August 31, 2010, Mr. DeSalvo and his liability insurer filed a Motion and Order for Appeal seeking review of the April 6, 2010 Judgment in favor of Mrs. Babin and the August 17, 2010 grant of Mr. Babin’s Motions for JNOV and New Trial. On September 2, 2010, the trial judge granted Mr. DeSalvo’s suspensive appeal of both judgments.

On October 4, 2010, State Farm in its capacity as UM carrier for the Babins, moved to appeal the trial judge’s grant of the JNOV and new trial in favor of Mr. Royal Babin. The motion to appeal was granted on October 7, 2010.

Just to complete the confusion, Mr. Royal Babin subsequently moved to appeal the April 6, 2010 judgment dismissing his claims. In his Motion for | ¡Appeal, Mr. Babin also requested, with respect to the JNOV and Motion for New Trial, that the matter be remanded “for further proceedings to determine the Court’s intent.”

On October 14, 2010, the trial judge granted Mr. Babin’s motion to appeal and also ordered that the matter be remanded “to the District Court for further proceedings to determine the Court’s intent when it granted the plaintiff Royal Babin’s post trial motion.” This appeal was lodged with this Court on February 23, 2011.

On March 4, 2011, the Babins moved to dismiss DeSalvo’s appeal of Mrs. Rachel Babin’s claims because DeSalvo’s appeal of the April 6, 2010 judgment was untimely. DeSalvo contends that his appeal of both judgments was timely because, under La. C.C.P. art. 2123, the time delay for filing a motion for appeal did not begin to run for either Mr. Royal Babin or Mrs. Rachel Babin’s claims until after the trial judge ruled on Mr. Royal Babin’s Motion for JNOV and/or New Trial.

Based on the following reasons, we find that all appeals in the above-entitled matter are dismissed as premature. Here, the trial judge granted Mr. Royal Babin’s judgment notwithstanding the judgment and/or new trial. We find that this judgment, which granted either the motion for judgment notwithstanding the judgment or new trial or both motions, does not contain language specific enough to determine the relief that the trial court granted. In the similar case of Input/Output Marine Systems, Inc. v. Wilson Greatbatch, Technologies, Inc., 10-477 (La.App. 5 Cir. 10/29/10), 52 So.3d 909, this Court dismissed the appeal without prejudice. The Court held:

‘A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled.’ La. C.C.P. art. 1841. This court cannot determine the merits of an | (¡appeal unless our jurisdiction is properly invoked by a valid final judgment. A final judgment shall be identified as such by appropriate language.’ La. C.C.P. art. 1918.
A valid judgment must be precise, definite and certain. The decree alone indicates the decision. The result decreed must be spelled out in lucid, unmistakable language. The quality of definiteness is essential to a proper judgment.
A final appealable judgment must contain decretal language, and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied. The specific relief granted should be determinable from the judgment without reference to an extrinsic source such as pleadings or reasons for judgment.

10A77 at 12-13, 52 So.3d at 915-916 (citations partially omitted; footnote omitted; quotations in original).

Here, we cannot determine whether the trial judge was granting a new trial or whether he was granting a judgment notwithstanding the judgment. And, if he meant to grant a judgment notwithstanding the verdict, the award was not specified. Thus, the “judgment” is fatally defective so there is no judgment. Since this court lacks jurisdiction in the absence of a final appealable judgment, all appeals and answers to appeals from the August 17, 2010 judgment are dismissed without prejudice.

Furthermore, we are remanding the motion for new trial and/or judgment notwithstanding the verdict to the trial court for a ruling. In light of the outstanding motions, Mr. Babin’s appeal from the prior jury verdict as well as his answers to appeals from that judgment are dismissed as premature because his post-trial motions have not been ruled upon by the trial judge.

With respect to the judgment in favor of Mrs. Babin, we note that appeal delays commence for all parties at the time they commence for the party whose [post-trial] motion is last to be acted upon by the trial court. La. C.C.P. art. 2123(B). Here, because we find that the ruling granting both post-trial motions |7does not constitute a valid judgment, we find that the motions have not been acted upon by the trial court. Consequently, the appeal delays from the April 6, 2010 judgment have not commenced for any party. Thus, we dismiss DeSalvo and State Farm’s appeal of Mrs. Babin’s claims as premature.

For these reasons, this appeal is dismissed in its entirety without prejudice. Costs are assessed against Mr. DeSalvo and State Farm. Finally, this matter is remanded to the trial court for further proceedings consistent with this ruling.

APPEALS DISMISSED; MATTER REMANDED.

      . Further, once Mrs. Babin stipulated to damages less than $50,000.00, counsel for State Farm, in it capacity as UM carrier for Mrs. Babin, moved for and was granted dismissal with respect to her claims since Mr. DeSalvo carried liability coverage for damages up to $100,000.


author: WILLIAMS, J.

text:
    STATE of Louisiana, DEPARTMENT OF SOCIAL SERVICES OFFICE OF FAMILY SUPPORT in the Interest of Demarcus D. DOUGLAS minor child(ren) of Tracy Douglas, Plaintiff v. Alphonso B. WILLIAMS, Defendant-Appellant. Alphonso Williams, Plaintiff-Appellant v. Tracy Douglas, Defendant.
    Nos. 46,520-CA, 46,521-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 5, 2011.

      Angela M. Smith, for Appellant.
    Alphonso B. Williams, Appellant-Pro Se.
    Before WILLIAMS, STEWART and GASKINS, JJ.
   WILLIAMS, J.

| , Appellant, Alphonso B. Williams, appeals a trial court judgment denying his motion to reduce child support and ordering him to pay child support in the amount of $1,000 per month, retroactive to May 13, 2008. For the following reasons, we affirm.

FACTS

Alphonso B. Williams and Tracy Douglas are the biological parents of Demarcus D. Douglas, who was born February 15, 1993. Williams and Douglas have never been married to each other. Williams testified that he did not learn that he was Demarcus’ father until the child was eight years old. Williams stated that he became active in the child’s life: he attended his school events, purchased his clothing and school supplies, and offered to pay for his private school tuition. However, Williams did not pay child support to Douglas.

On May 21, 2007, the State of Louisiana, Department of Social Services, Office of Family Support (“the state”) filed a petition to establish paternity and fix child support on behalf of Demarcus. The hearing officer ordered the parties to submit to paternity testing, which subsequently proved that Williams was the child’s biological father.

On April 22, 2008, Williams filed an ex parte petition for shared custody, alleging that Douglas had “severely restricted” his visitation with Demarcus. Williams also alleged that Douglas’ act of living with her boyfriend out of wedlock was “causing emotional confusion and harm to the child[,]” and that her live-in boyfriend was “interfering [with] and hindering 12[Williams’] relationship with his son[.]” Williams requested: (1) shared custody of the child and reasonable visitation; (2) a mental health evaluation “of all parties;” (8) child support to be calculated “in accordance with the guidelines;” and (4) an order for Douglas to have “no overnight visitation [with] the opposite sex while the minor child is in the home[.]”

On June 24, 2008, the trial court entered a judgment in which: (1) Williams was declared to be the biological and legal father of Demarcus; (2) a mental health evaluator was ordered to be appointed to examine Demarcus “and other parties deemed necessary;” (3) the parties were ordered to “immediately schedule and attend” mediation; (4) Douglas’ live-in boyfriend was ordered to “refrain from harassing and confronting” Williams; and (5) visitation with Williams and Demarcus was ordered for every other weekend. The court did not rule on the issue of child support at that time, but decided to give the parties an opportunity to reach an agreement through mediation.

Mediation was unsuccessful. Thereafter, multiple hearings were held on the issue of child support, during which the court repeatedly ordered Williams to produce information regarding his personal income for the purpose of calculating the child support due. At a hearing held on August 25, 2008, Williams also was ordered to produce financial documents of his company, Williams Enterprises, LLC. After repeated requests from the state, counsel for Douglas, and finally, the trial court, Williams sporadically produced, over a six-month period, some of the requested financial documents.

|sOn June 30, 2009, Williams and Douglas entered into an agreement, whereby Williams would pay child support in the amount of $1,000 per month. The trial court entered an interim judgment which reflected the parties’ agreement. The court noted that Williams had not produced many of the financial documents which were necessary to calculate his true income; therefore, the court ordered him to produce “his 2008 tax return and year-to-date information on individual accounts and all LLC’s [of which] he is a member by July 31, 2009[.]”

Three months later, on September 30, 2009, Williams filed a “Motion to Decrease Interim Child Support,” alleging that he had experienced a significant loss of income and change in circumstances; therefore, he could no longer pay the amount of child support ordered. At the time of his filing, Williams had not made any of the child support payments that had been ordered by the court.

On December 30, 2009, Douglas filed a “Rule to Accrue Past Due Child Support, For Contempt of Court and For Order of Wage Assignment,” alleging that Williams had failed to pay child support as ordered and that he was in arrears in the amount of $6,000. At a hearing held on January 12, 2010, the parties agreed on the record “to accrue the support of [$1,000] per month for the months of July, August, and September [2009]; which is $3,000.” Prior to entering the judgment, the trial court stated:

Mr. Williams, you still owe support for October, November, December, and January. Just because there is a Judgment accruing ‘X’ number of monthsf,] that does not mean that you do not owe for these other months.
[H]owever, your Lawyer filed a Motion to reduce, and it |4may be that the support amount would be reduced. We do not know yet. So that is the reason why we are only having the Judgment accruing July, August, and September. [H]owever, you understand you still owe child support.
Based on what is before the Court, it does not appear that anything has been paid to Ms. Douglas, and that is outrageous.
So there is going to be a Judgment ■ rendered today that you are in arrears $3,000.00 for July, August, and September; and we are allowing you 60 days to get that arrearage paid off in full.
If it is not, then I have contempt of court Statutes available to me; which include fining, incarcerating, and other forms of relief. So it is in your best interest to get the $3,000 paid off.

Nevertheless, Williams did not pay the $3,000 (or any other amount) within the time period ordered by the court. On April 16, 2010, mere days prior to the hearing on his motion to reduce child support, Williams paid the $3,000. No other payments were made to Douglas, despite the court’s remarks.

The hearing on the motion to reduce child support was held on April 22, 2010. At the conclusion of the hearing, the trial court denied Williams’ motion to reduce child support. After reviewing his financial documents, the trial judge stated that she was unable to determine Williams’ actual income. The court disregarded the tax returns submitted by Williams, finding that the returns were “fraudulent.” The court entered a final award, ordering Williams to pay child support in the amount of $1,000 per month, | ¡¡retroactive to May 13, 2008.

Williams filed a pro se appeal. Neither the state nor Douglas filed briefs in this Court.

DISCUSSION

Williams contends the trial court abused its discretion in entering a judgment with a final child support award of $1,000 per month. He argues that the court failed to calculate the child support payments in accordance with the statutory guidelines, failed to consider Douglas’ income when making the child support award, failed to utilize “a worksheet” to determine the amount of child support owed, and failed to provide specific reasons for deviating from the child support guidelines.

The law regarding the payment of child support is well established: the obligation to support their children is a conjoint obligation upon the parents, and each must contribute in proportion to his or her resources. Durfee v. Durfee, 45,752 (La.App.2d Cir.12/15/10), 56 So.3d 294; Cory v. Cory, 43,447 (La.App.2d Cir.8/13/08), 989 So.2d 855; Kirkpatrick v. Kirkpatrick, 41,851 (La.App.2d Cir.1/24/07), 948 So.2d 390. The overriding factor in determining the amount of support is the best interest of the child. Id. The party without legal custody, or nondomiciliary party, shall owe his or her total child support obligation as a money judgment of child support to the custodial or domiciliary party. LSA-R.S. 9:315.8(D); 6Earle v. Earle, 43,925 (La.App.2d Cir.12/3/08), 998 So.2d 828, writ denied, 2009-0117 (La.2/13/09), 999 So.2d 1151.

The Louisiana Child Support Guidelines set forth the method for implementation of the parental obligation to pay child support. LSA-R.S. 9:315, et seq.; Jones v. Jones, 44,201 (La.App.2d Cir.4/8/09), 6 So.3d 1275; Strange v. Strange, 42,318 (La.App.2d Cir.6/20/07), 960 So.2d 1223. The child support guidelines are intended to fairly apportion between the parties the mutual financial obligation they owe to their children in an efficient, consistent and adequate manner. Child support is to be granted in proportion to the needs of the children and the ability of the parents to provide support. Jones, supra; Strange, supra. The guidelines are mandatory and provide limits and structure to the trial court’s discretion in setting the amount of support. The trial court’s child support judgment will not be disturbed absent a clear abuse of discretion. Id. There is a rebuttable presumption that the percentage of child support obtained by the use of the guidelines is proper and in the child’s best interest. See, LSA-R.S. 9:315.1(A); Jones, supra; Strange, supra.

In the instant case, Douglas testified that she was employed as a casino “slot floor person” and earned a salary of $10.80 per hour, plus tips. Douglas’ tax returns and W-2 forms were introduced into evidence, and she was questioned and cross-examined with regard to her income and household expenses.

Williams testified that he was the CEO of Williams Enterprises and that he “paid himself’ a salary of $582.50 per week. Personal income tax |7returns introduced into evidence reflect that Williams reported an income of $34,250 in 2008 and $25,500 in 2009. However, when questioned about his current income, Williams responded, “I don’t know.” Williams testified that he could not recall whether he paid any of his personal expenses from his Williams Enterprises, LLC account. However, Williams’ financial documents revealed that he had written checks for his mortgage payment, as well as the payments on his Jaguar and Cadillac vehicles. The records also revealed that Williams had used the business accounts to pay for his haircuts, gym-membership fees and a male enhancement product. Williams admitted that he owned a home valued at “approximately $200,000-230,000” and that the mortgage payment was “about $1,800” per month. Williams also admitted that he drove a convertible Jaguar vehicle, for which he was paying “about $800” per month, and a Cadillac Escalade Sports Utility Vehicle, with a monthly payment of more than $900.

After reviewing the entire record, including the transcript of Williams’ testimony, and all of the financial documents he has submitted, we agree with the trial court that Williams’ personal expenses belie his stated salary of $582.50 per week. When questioned about the amount of his current income at the time of the trial, Williams responded, “I don’t know.” Despite his lavish lifestyle and extraordinary personal expenditures, Williams has not made any attempt to financially support his son, even after entering into a legal agreement with Douglas to do so. Williams was uncooperative with all attempts to obtain a true picture of his actual personal income, and he misrepresented his income to the court. ^Consequently, the trial court based the award of child support on a salary of $55,000 per year, i.e., the amount Williams earned before he was awarded lucrative contracts with the city of Shreveport.

Williams has expended considerable time and money in his attempt to use the court as a vehicle to circumvent his legal obligation to pay child support in proportion to his resources. Even before the decline in his business, Williams did not pay the court-ordered monthly child support payments and, in fact, he used every avenue available to avoid financially supporting his child, including petitioning the court for shared custody. After the DNA testing proved that Williams was the child’s biological father and he was ordered by the court to pay child support, Williams refused to make any payments until he was faced with threats by the judge of being held in contempt of court. Based on this record, we find that the trial court did not abuse its discretion in ordering Williams to pay child support in the amount $1,000 per month. This assignment lacks merit.

Williams also contends the trial court erred in denying his motion to reduce child support. He argues that he met his burden of proving that he had incurred a material, involuntary change in circumstances which warranted a reduction in the amount of child support payments that he owed.

An award of child support may be modified if the circumstances of the child or of either parent materially change and shall be terminated upon proof that it has become unnecessary. LSA-C.C. art. 142. A party seeking a reduction in child support must show a material change in circumstances of 19one of the parties between the time of the previous award and the time of the motion for modification of the award. See LSA-R.S. 9:311(A); Jones, supra; Strange, supra.

Louisiana jurisprudence distinguishes between voluntary and involuntary changes in circumstances. An involuntary change in circumstance results from fortuitous events or other circumstances beyond a person’s control, such as the loss of one’s employment position or illness. A voluntary change in circumstance generally does not justify a reduction in the support obligation. Jones, supra; Strange, supra.

If a parent is voluntarily unemployed or underemployed, the child support obligation must be calculated on the basis of his or her income earning potential, unless the party is physically or mentally incapacitated or is caring for a child of the parties under the age of five years old. LSA-R.S. 9:315.11(A). Voluntary underemployment is a question of good faith of the obligor parent. James v. Davis, 45,955 (La.App.2d Cir.1/26/11), 57 So.3d 447, unit not considered, 2011-0425 (La.4/8/11), 61 So.3d 674; Jones, supra. Whether the obligor is in good faith in reducing his or her income is a factual determination which will not be disturbed on appeal absent an abuse of the trial court’s wide discretion. James, supra; Fuqua v. Fuqua, 45,555 (La.App.2d Cir.9/22/10), 47 So.3d 1121.

In the instant case, Williams testified that his income declined “dramatically” in 2009, when he began to experience negative media attention after he was arrested. He stated that prior to his arrest, he had |inseveral lucrative business contracts, including one with the city of Shreveport. However, according to Williams, after his arrest, “no one” would do business with him because “of all the media attention that I’ve attracted.” On cross-examination, Williams indicated that “little” about his personal lifestyle had changed since his business declined. He admitted that he continued to live in his home and he still drove both the Jaguar and Cadillac vehicles. However, he stated that he was in arrears on his mortgage payments and the monthly payments on both of the vehicles. When asked how he was able to maintain his lifestyle, Williams testified that some friends helped him by giving or loaning him money.

Prior to making its ruling on the motion to reduce child support, the trial court stated the following:

[Y]our personal income tax returns I give no credence to them whatsoever. These are not[,] by any stretch of the imagination, an accurate depiction of what your income is.
I have no idea what your income is. I do not think anybody in this room knows what your income is. However, when I ran some numbers earlier to get to the [$1,000] that we did as an interim Order ... that would have had you making around $55,000 a year.
[I] do not have any idea what your income is; but you are clearly able to afford the [$1,000] a month.
That is borne out by the fact that, before you got all this City business, you were making at least that, if not more. So you ought to be able to do that with trucking. You are able-bodied. You could get other jobs.

We agree. Williams testified that he did not know his income at the Intime of the trial. As stated above, Williams testified that his income was only $582.50 per week, even before the decline in his business. However, he did not include the additional “income” he derived from paying his personal expenses from his business account.

The record reveals that, notwithstanding his more recent misfortunes, Williams has owned a lucrative trucking business for several years. He also has vast experience as a dump truck operator and can continue to maintain his commercial driver’s license; thus his earning potential is sufficient to support his child. Even if Williams is currently unable to derive sufficient income to support his minor child by working solely as CEO of his business enterprises, he can supplement his income by working as a driver. Accordingly, we find that the trial court was not manifestly erroneous, or clearly wrong, in denying Williams’ motion to reduce the child support payments. This assignment lacks merit.

Finally, Williams contends the trial court erred in making the child support award retroactive to May 13, 2008. Williams concedes that he included a demand to establish child support in his petition for shared custody filed in April 2008. However, he argues that the judgment should not have been made retroactive to the date Douglas filed her answer to his petition because the answer did not include a judicial demand for a final award of child support. He asserts that Douglas did not make her judicial demand for final support until her attorney did so orally, in open court, on April 21, 2010; therefore, the judgment should have been made effective on that date.

|l2An award of child support shall be retroactive to the date of judicial demand, except for good cause shown. LSA-R.S. 9:315.21. “[RJetroactivity is intrinsic to the concept of child support under Louisiana’s civilian tradition[.] Louisiana law ‘abhors a gap in the support of one in need.’ ” Fink v. Bryant, 2001-0987 (La.11/28/01), 801 So.2d 346, 350, quoting Hogan v. Hogan, 549 So.2d 267, 271 (La. 1989). Retroactivity in this context “is not in the nature of a penalty, but merely a judicial recognition of a pre-existing entitlement. Only practicality postpones the effective date of the obligation to pay child support to the date a court orders that payment.” Vaccari v. Vaccari, 2010-2016 (La.12/10/10), 50 So.3d 139, 142, quoting Fink, supra, at 350.

Upon a showing of good cause, a trial court may order a final child support award retroactive to the date of judicial demand, even though there has been an interim award in effect. Vaccari, supra. The burden is on the obligor parent to prove that good cause exists for not making the award retroactive to the date of judicial demand. Rutledge v. Rutledge, 41,792 (La.App.2d Cir.12/13/06), 945 So.2d 307; Welborne v. Welborne, 29,479 (La.App.2d Cir.5/7/97), 694 So.2d 578, writs denied, 97-1800 (La.10/13/97), 703 So.2d 621 and 97-1850 (La.10/13/97), 703 So.2d 623.

Here, the state filed a petition to establish paternity and child support on behalf of the minor child, Demarcus, in May, 2007; an interim award was entered on June 30, 2009. Meanwhile, on April 22, 2008, Williams filed a petition for shared custody, in which he requested that child support be calculated “in accordance with the guidelines[.]” In ordering the child 113 support award to be retroactive to May 13, 2008, the trial court stated:

[Williams] put the child support at issue in April of 2008. I could make it effective that date; but, out of an abundance of caution, there is an answer filed on May 13, 2008.

We find that Williams failed to carry his burden of proving that good cause exists for not making the award retroactive to May 13, 2008. As stated above, a judicial demand for final child support was made, albeit by Williams, on April 22, 2008. We find that the trial court did not err in making the award for child support retroactive to May 13, 2008, the date Douglas filed her answer to Williams’ judicial demand to establish child support. This argument lacks merit.

CONCLUSION

For the reasons set forth herein, the judgment of the trial court, ordering appellant, Alphonso B. Williams, to pay child support to Tracy Douglas in the amount of $1,000 per month, retroactive to May 13, 2008, is hereby affirmed. Costs of this appeal are assessed to appellant, Alphonso B. Williams.

AFFIRMED.

      . The shared custody matter was subsequently consolidated with the child support proceedings.

      . The trial court noted that in 2008, Williams reported $34,250 in annual personal income. However, a credit application signed by Williams around that time indicated an income of $20,000 per month. The court also noted that assets owned by Williams belied an annual income of $34,250.

      . The trial court also found that Williams was in arrears in the amount of $7,000 and ordered him to pay attorney’s fees in the amount of $1,000, plus court costs. Additionally, the court found that Williams had abandoned his claim for shared custody, and the court dismissed that claim. Williams did not appeal these portions of the judgment.

      . At the time of the hearing, Williams testified that criminal charges were pending against him for "home improvement fraud, filing false public documents, illegal possession of stolen things [and] simple criminal damage to property.”


author: PICKETT, Judge.

text:
    Kirk WELDON v. HOLIDAY INN-JENNINGS.
    No. 11-203.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.

      H. Douglas Hunter, Guglielmo, Lopez, Tuttle, Hunter, & Jarrell, LLP, Opelousas, LA, for Defendant-Appellant, Holiday Inn-Jennings.
    Michael Benny Miller, Miller & Miller, Crowley, LA, for Plaintiff-Appellant, Kirk Weldon.
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   PICKETT, Judge.

hBoth the claimant, Kirk Weldon, and the employer, Holiday Inn-Jennings appeal a judgment of the Office of Workers’ Compensation awarding Weldon penalties and attorneys’ fees.

STATEMENT OF THE CASE

Kirk Weldon was injured while lifting a hot water heater in the course and scope of his employment with Holiday Inn on February 6, 2004. On May 10, 2005, the parties entered a consent judgment into the record, which stated:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that defendants pay weekly compensation benefits beginning February 7, 2004 in the amount of $266.55 per week, based upon an average weekly wage of $399.82 ($384.62 plus $15.20 in fringe benefits). IT IS FURTHER ORDERED, ADJUDGED AND DECREED that defendants will pay for the medication, Aci-phex, and reasonable and necessary medical treatment related to the injury of KIRK WELDON. Defendants reserve the right to contest the connection of the hernia with the accident.

On January 20, 2010, Weldon filed a Motion and Order for Penalties and Attorneys’ Fees. Weldon asserted that Holiday Inn violated the consent judgment by terminating weekly benefits, failing to approve and pay for a prescription for Aci-phex, and failing to reimburse Weldon properly for mileage to receive medical treatment. A hearing on the motion was held on June 3, 2010. At the hearing, Weldon, in addition to the issues raised in the motion, alleged that Holiday Inn failed to pay medical bills from March 26, 2008, and he sought additional penalties and attorneys’ fees.

Holiday Inn claimed it had the right to decrease Weldon’s compensation because he earned over $27,000.00 from the sale of his stock in a barbecue sauce company. It claimed they never terminated Weldon’s benefits, but it did admit to decreasing the benefits to $400.00 per month. Holiday Inn argued that Weldon |acould not produce the prescription for Aciphex that was not filled, so its failure to pay had not been proven. On the issue of mileage reimbursement, it was clear that Holiday Inn miscalculated the mileage reimbursement on one occasion and paid the reimbursement four months after it was submitted on another occasion. Finally, Holiday Inn argued that it did not pay the medical bills from March 2008 because they related to Weldon’s treatment for a hiatal hernia, which was specifically not covered by the May 2005 judgment. Further, they argued that those bills were incurred prior to a previous judgment awarding penalties and attorneys’ fees, so res judicata barred those claims now.

The Workers’ Compensation Judge (WCJ) entered oral reasons into the record on October 4, 2010. The trial court found that Holiday Inn terminated benefits in May 2010 and awarded $8,000.00 in penalties pursuant to La.R.S. 23:1201(1). The WCJ also found that Holiday Inn failed to pay for Aciphex and “improperly or tardily paid for the medical mileage and medical bills.” Finding that the $8,000.00 penalty was the maximum that he could award, though, he did not award additional penalties. The WCJ also awarded attorneys’ fees of $12,937.50 (fifty-seven and a half hours at $225 per hour).

Both parties now appeal the judgment of the WCJ.

ASSIGNMENTS OF ERROR

In its appeal, Holiday Inn assigns two errors:

1. The trial court committed manifest error in awarding penalties in the amount of $8,000.00 for termination of benefits.
2. The trial court committed manifest error in awarding an attorney fee in the amount of $12,937.50.

Weldon asserts five assignments of error:

1. The Workers’ Compensation Judge erred in failing to allow the payment ledger showing indemnity payments made into evidence.
|s2. The Workers’ Compensation Judge erred in failing to award penalties due to the failure of defendants to properly pay weekly benefits.
3. The Workers’ Compensation Judge erred in failing to award penalties for failure to guarantee and/or pay for medical benefits.
4. It was error for the Workers’ Compensation to fail to include expenses in the judgment.
5. It was error for the Workers’ Compensation Judge to fail to include legal interest on all amounts due in the judgment.

In addition, Weldon seeks attorneys’ fees for work done on this appeal.

DISCUSSION

Payment Ledger

We will begin by discussing the evidentiary issue raised by Weldon. Wei-don sought to introduce a ledger of payments from Holiday Inn received by his attorney on his behalf. Holiday Inn objected to the introduction of the ledger, prepared by Weldon’s attorney’s secretary, on the grounds that Weldon failed to lay a proper foundation for the document. Weldon proffered the document and now argues that the ledger should have been admitted. He claims that since the check stubs are available and could have been admitted, the ledger is clearly admissible. We disagree. A WCJ has the discretion to admit evidence that would be inadmissible according to the Code of Evidence. La. R.S. 23:1317. We find here that the WCJ did not abuse his discretion in denying the admission of the ledger and in not considering the ledger in making his ruling. This assignment of error lacks merit.

Penalty for Termination of Benefits

Holiday Inn argues that the WCJ erred in awarding an $8,000.00 penalty for the termination of benefits pursuant to La.R.S. 23:1201(1). The record is clear that Holiday Inn never terminated benefits to Weldon, though it did stipulate that it ^reduced the benefits from $266.55 per week to $400.00 per month. Weldon, in brief to this court, agrees that benefits were never terminated. The WCJ’s determination was clearly erroneous. We reverse the judgment of the WCJ awarding an $8,000.00 penalty to Weldon. As we find the penalty award inappropriate, we also reverse the award of attorneys fees. As we have found that the trial court committed manifest error and applied the incorrect law, we will review the remainder of the issues de novo.

Failure to Pay Weekly Benefits

While Weldon does not seriously dispute that the award of an $8,000.00 penalty for discontinuance of benefits is improper, he does argue that the WCJ erred in failing assess penalties against Holiday Inn for (1) paying benefits monthly rather than weekly beginning in September 2009 and (2) reducing benefits to $400.00 per month beginning in November 2009. Weldon argues that each of these violations should result in a $3,000.00 penalty pursuant to La.R.S. 23:1201(G).

Holiday Inn argues that filing a Motion for Penalties and Attorney Fees is the improper procedure to recover the fees. The claim they are authorized to modify the payments agreed to under the consent judgment because the payments were not for temporary total disability, citing La.R.S. 23:1310.8(F). We disagree. It is clear from the record that Holiday Inn violated the May 10, 2005, judgment when they stopped paying benefits weekly and began paying benefits monthly. Louisiana Revised Statutes 23:1201(G) states:

If any award payable under the terms of a final, nonappealable judgment is not paid within thirty days after it becomes due, there shall be added to such award an amount equal to twenty-four percent thereof or one hundred dollars per day together with reasonable attorney fees, for each calendar day after thirty days it remains unpaid, whichever is greater, which shall be paid at the same time as, and in ^addition to, such award, unless such nonpayment results from conditions over which the employer had no control. No amount paid as a penalty under this Subsection shall be included in any formula utilized to establish premium rates for workers’ compensation insurance. The total one hundred dollar per calendar day penalty provided for in this Subsection shall not exceed three thousand dollars in the aggregate.

Because the payment ledger was properly excluded, there is no evidence in the record to support Weldon’s first assertion that benefits were converted from weekly payments to monthly payments other than the arguments of Weldon’s attorney at the hearing. We find that Weldon failed to prove a violation of the judgment, and we will not award any penalties for this claim.

Holiday Inn stipulated, however, that they unilaterally decreased benefits to $400.00 per month upon learning that Weldon sold his stock in a closely-held corporation for $40,000.00. Holiday Inn became aware of this payment because Weldon reported income on his 2007 tax return of $27,456.00. Holiday Inn claimed this payment was the equivalent of wages and decided to offset his benefits. At the hearing, Weldon testified that prior to 2001 he stopped doing work for the barbecue sauce business. At that time, another person operated the business and collected the profits. The payment in 2007 was for the sale of the business and was the sale of an asset, not wages. We find that in this case, Holiday Inn was not entitled to offset the amount it was ordered to pay Weldon by the May 10, 2005, judgment. Therefore, Weldon is entitled to a $3,000.00 penalty pursuant to La.R.S. 23:1201(G). Weldon is also entitled to attorneys’ fees.

Mileage Reimbursement

The judgment of May 10, 2005, required that Holiday Inn pay for reasonable and necessary medical treatment, which includes reimbursement for mileage traveled for medical treatment. The record is clear that Holiday Inn underpaid the 16mileage reimbursement submitted by Weldon on August 6, 2008. We find that an award of penalties of $3,000.00 and attorneys’ fees is appropriate for this violation of the judgment. We are not persuaded by Holiday Inn’s arguments that in order to award a penalty for failing to pay pursuant to a judgment, the award must be for a specific sum. Louisiana Revised Statutes 23:1201(G) has no such requirement, and Holiday Inn has not cited any jurisprudence, nor can we find any, that reads this requirement into the statute. Furthermore, we find that Holiday Inn had an ample opportunity and notice and that Weldon was not required to file a disputed claim for compensation to recover this penalty.

Likewise, we find that Holiday’s failure to pay a mileage reimbursement submitted by Weldon on September 2, 2009, for four months without any explanation entitles Weldon to another $3,000.00 penalty and attorneys’ fees.

Denial of Aciphex Prescription

The May 10, 2005, judgment clearly required Holiday Inn to pay for Weldon’s prescription of Aciphex. Weldon testified that he went to a pharmacy and the insurance provided by Holiday Inn refused to pay for the prescription to Aci-phex. When he called the number provided on the insurance card provided to him, they explained that the prescription was not covered. Given the very specific nature of the judgment, we find that Holiday Inn’s failure to pay for the prescription entitles Weldon to penalties in the amount of $3,000.00 and attorneys’ fees. Hobday Inn’s argument that Weldon has to introduce the rejected prescription in order to recover is not persuasive.

Denial of Payment for Hernia Procedure

Finally, Weldon asks for penalties and attorneys’ fees for Holiday Inn’s failure to pay for a hernia procedure in 2008. Here, we agree with Holiday Inn that 17this issue is not properly raised by a Motion for Penalties and Attorneys’ Fees. In the May 10, 2005, judgment, Holiday Inn reserved the right to contest the issue of whether the hernia was caused by the work-related accident. Thus, the appropriate way for Weldon to seek payment for these bills is through a disputed claim for compensation. Furthermore, the issue of the medical payments for the hernia procedure was only discussed tangentially in the hearing below, and the WCJ failed to rule on the issue. Thus, it is not ripe for review.

Attorneys’ Fees

We have found that Weldon is entitled to $12,000.00 in penalties for Holiday Inn’s failure to pay benefits pursuant to the May 10, 2005, judgment. Weldon’s attorney, Michael Miller, submitted an affidavit showing that he worked fifty-seven and a half hours on the case and had $216.20 cents in expenses. The affidavit also stated that his hourly rate is $225.00. The trial court awarded attorneys’ fees of $12,937.50 (fifty-seven and a half hours at $225.00 per hour). While we find Miller’s rate reasonable, we find it necessary to decrease the award by some amount on account of the fact that the issue of payment for the hernia procedure is included in his affidavit. Mr. Miller also included time spent in the prosecution of a Motion to Quash unrelated to this hearing. We find that it is reasonable that thirty-five hours were spent by Mr. Miller on the issues for which we have awarded penalties and attorneys’ fees, plus four hours for the hearing below. We also find that the trial court erred in not including the expenses in the calculation of attorneys’ fees. Thus, we award $8,991.20 for attorneys’ fees to Weldon. We also award $2,250.00 in attorneys’ fees for work done on appeal.

| interest

In Smith v. Quarles Drilling Co., 04-179 (La.10/29/04), 885 So.2d 562, the supreme court held that while La.R.S. 23:1201.3 does not require that interest be included for an award of penalties and attorneys’ fees, it should be awarded where the claimant prayed for interest in his pleadings. Here, Weldon did pray for interest on penalties and attorneys’ fees. Thus, it was error for the WCJ to fail to include interest.

CONCLUSION

The judgment of the WCJ awarding $8,000.00 in penalties and $12,937.50 in penalties is reversed. Holiday Inn is ordered to pay $12,000.00 in penalties for failure to pay benefits pursuant to a final, nonappealable judgment and $8,991.20 in attorneys’ fees, plus legal interest. We also award $2,250.00 in attorneys’ fees for work done on appeal. Costs of this appeal are cast in equal portions to Weldon and Holiday Inn.

REVERSED AND RENDERED.