author: EZELL, Judge.

text:
    STATE of Louisiana v. Damien ORBRO.
    No. KA 10-1289.
    Court of Appeal of Louisiana, Third Circuit.
    May 4, 2011.

      Earl B. Taylor, Jennifer Ardoin, Twenty-Seventh Judicial District Attorney, Opelousas, LA, for Appellee, State of Louisiana.
    Annette Fuller Roach, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Damien Orbro.
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   EZELL, Judge.

hOn April 12, 2006, the St. Landry Parish District Attorney charged Defendant, Damien Orbro, with two counts of assault with a dangerous weapon and with one count of second degree kidnapping. On July 29, 2010, Defendant was convicted of second degree kidnapping, in violation of La.R.S. 14:44.1. Thereafter, the sentencing court ordered Defendant to serve five years at hard labor; designated that the first two years would be served without benefit of probation, parole, or suspension of sentence; and gave Defendant credit for time served.

STATEMENT OF FACTS

Dr. Mark Oliver, an emergency physician, was the first witness called by the State. The court accepted Dr. Oliver as an expert in emergency room medicine. On February 13, 2006, Dr. Oliver treated Myra Orbro at the Opelousas General emergency room. Mrs. Orbro complained primarily of an injury to her right back along with other injuries to her face, right chest, middle back, right knee, and left elbow. Mrs. Orbro reported that she had obtained the injuries when she was pushed, pulled, and threatened by her husband. Examination revealed that Mrs. Orbro was ambulatory; that she had an abrasion below her right eye; that she was anxious and upset; that, though there were no bruises in the area, she had mild tenderness below her left wingbone; that she had a minimal tenderness in the left trapezius area, and that she had a contusion on her right chest wall.

On cross-examination, Dr. Oliver stated that the abrasion did not require stitches. Dr. Oliver examined Mrs. Orbro’s knee and found that it was not swollen and that it had a full range of motion. Although there were objective signs of some of her injuries, there were no objective signs of other injuries reported by Mrs. Orbro.

|^Myra Orbro Broussard was the prosecution’s second witness. On February 13, 2006, Mrs. Broussard had been married to Defendant for twenty years, but she was in the process of separating from him; she has since remarried. At the time, Mrs. Broussard was living in the family home, and Defendant had been evicted therefrom. Mrs. Broussard worked at UPS; she usually went into work at 4:30 a.m. to load delivery trucks. She would also drive the trucks.

Mrs. Broussard reported that Defendant came into her place of business around 5:45 or 6:00 a.m. Although there are a lot of people around, they are usually in and out of their trucks because, when the conveyor belt was rolling, they were loading freight onto the delivery trucks. When Defendant walked in, he asked the young man across from Mrs. Broussard where she was, and the young man pointed her out. Mrs. Broussard saw Defendant when she walked out of her truck. He seemed really calm. Defendant asked her to speak with him, but Mrs. Broussard declined; she explained that she could not leave her truck when the conveyor belt was moving. She told him that they could probably get together if he called her later. Mrs. Broussard only took the time to speak to Defendant because he seemed calm and pleasant, and his eyes were clear. He was standing with his right hand behind his thigh.

Mrs. Broussard recalled that, before she finished speaking, Defendant grabbed her arm with his left hand and began to drag her out of the building. Though she pulled as hard away from him as she could and dragged her feet, he kept moving. While Defendant dragged her, Mrs. Broussard jerked her arm back as hard as she could. Mrs. Broussard’s actions caused Defendant to lose his balance, and “the gun flew up.” Defendant had the silver .32 caliber pearl-handled pistol he had inherited from his father. Defendant continued to hold the gun in his hand and pull Mrs. Brous-sard. At that point, Mrs. Broussard wrapped her arm and legs around a table | ¡¡holding the UPS punch-in clock, but Defendant pulled her away. Mrs. Broussard also grabbed at paperwork and anything else she could to stop Defendant from pulling her outside. Mrs. Broussard asserted that she steadily resisted by yelling at him, by beating on his arm in an effort to make him let go of her, and by grabbing at objects such as the door knob. Defendant calmly pulled on her until she let go of the door handle. Mrs. Broussard fell, and Defendant dragged her from the building and onto the ground outside.

Mrs. Broussard related that, once she was outside, she saw a 1997 Toyota Camry parked across the street. The vehicle was running, but Mrs. Broussard did not notice if any of the doors were open. Mrs. Broussard knew the car engine was running because she could feel the heat and see the smoke. Defendant pulled Mrs. Broussard all of the way through the parking lot. She yelled and screamed for him to let her go. Defendant kept dragging her and cursing her: “Shut up B_tch”; “Get your _ss in the car”; “Get your _ss up”; “Get up you know”; “Get up Mother F_cker”; “Get your Mother F_cking _ss up B_tch”; and “Get in the car.”

Defendant eventually picked Mrs. Broussard up by her neck and threw her against a small white building, which was located at the front of her workplace. Defendant again grabbed Mrs. Broussard by her neck; he then lifted her until her feet were off the ground. Defendant continued to curse Mrs. Broussard, instruct her to be quiet, and demand she get into the car. Mrs. Broussard could not breathe. Defendant pulled away from the wall and resumed dragging her.

Mrs. Broussard reported that, as Defendant resumed dragging her, her supervisor Mike Hebert walked outside. Mr. Hebert drew Defendant’s attention by shouting for Defendant to leave the parking lot and to leave Mrs. Broussard alone because she did not want to go with him. Defendant turned around and put the gun |4in Mr. Hebert’s face. This enabled Mrs. Brous-sard to pull away and run. Defendant chased after Mrs. Broussard, caught her, and threw her into a fence across the road. She landed in the roadside ditch. Defendant then accused her of infidelity and repeatedly asserted that she had been “messing with” a cop. Mrs. Broussard denied the allegations, knelt in the ditch, and covered her face. Defendant held his gun to her head, so Mrs. Broussard thought he was planning to shoot her in the face. Ultimately, Defendant was frightened away by a passing eighteen-wheeler, that hit a pothole, and made a loud noise. Defendant got back into his car and drove away.

Mrs. Broussard explained that she did not want to leave with Defendant. She was frightened for her life. Mrs. Brous-sard repeated that Defendant held a gun to her head; he put it in her face as she crawled out of the ditch. Mrs. Broussard went to the emergency room; she had bruises all over, including a bruise to her right cheek. The bruises came out later; places turned blue after she left the hospital. She complained about her knee while she was at the hospital; it, too, later turned blue. Because of the bruising, the pain, and her swollen knee, Mrs. Brous-sard took a week off of work.

The third witness for the State was Mr. Hebert. At the time of the offense, Mr. Hebert was working for UPS as a Pre-Load Supervisor. He was in charge of loading seventeen trucks, and he had nine people working for him. Both Mr. Hebert and Mrs. Broussard were working around 6:00 a.m. on February 13, 2006. On that morning, Mr. Hebert was doing paperwork when Stuart Bob entered his office and hollered that “he” had Mrs. Broussard and that they were outside. Mr. Hebert did not know what was going on, so he ran outside with Mr. Bob. Once Mr. Hebert was outside, he saw that “he” had Mrs. Broussard behind his car, which was half on the parking lot and half on the street. Mr. Hebert had never seen the man before, and because it was dark, he could not really identify the man at trial.

| sMr. Hebert said that, when he came outside, there was some shouting going on. Mrs. Broussard was actively resisting, and the man was physically forcing her to move.

Mr. Hebert testified that, as he approached the man from behind, the man had his hands on Mrs. Broussard by the car. Mr. Hebert told the man to let Mrs. Broussard go. The man and Mrs. Brous-sard struggled into the street before the man tackled Mrs. Broussard into the fence on the other side of the road. Mr. Hebert put his hands on the man, who turned around and pointed a gun at him. Mr. Hebert remembered Mrs. Broussard saying either to back off or that the man was going to shoot him. The man was between Mr. Hebert and Mrs. Broussard, so he was not in a position to see the man put the gun to her face.

On cross-examination, Mr. Hebert stated that he did not hear anything prior to Mr. Bob entering his office because it was pretty loud in the building. Mr. Bob told Mr. Hebert “that he had Myra[,] and he was dragging her outside.” The car was in plain view if one walked out of the building and around a second structure. Mr. Hebert was focused on helping Mrs. Broussard, so he did not pay attention to who else was outside with them. When the man pointed the gun at Mr. Hebert, the man said, “You don’t want none of this.” Mr. Hebert backed off and said he was going to call the police.

The prosecution’s fourth witness was Mr. Bob, who was working for UPS as a pre-loader on February 13, 2006. Around 6:00 a.m. that morning, he noticed a tall male non-employee enter the building. He had never seen the man before and could not recognize the person at the time of trial. Mr. Bob saw the man speak to Mrs. Broussard. At first, the conversation appeared to be calm. Then, as Mr. Bob walked out of his truck, he saw the man jerk Mrs. Broussard away from her area by the back |fiof her collar. The man took Mrs. Broussard outside the building’s door, so Mr. Bob followed. Outside, Mr. Bob saw the man place Mrs. Broussard against a fence. Mr. Bob saw something shiny in the man’s hand and heard him accuse Mrs. Broussard of cheating on him. He reported the matter to Mr. Hebert, who took charge of the situation. When Mr. Bob saw the shiny object in the man’s hand, Mr. Bob went back inside the building. Mr. Bob thought that the shiny object was either a gun or a knife. Mr. Bob did not notice a vehicle. Mr. Bob was already back inside the building when the man left.

Chad Ray testified as the State’s last witness in its case-in-chief. In February 2006, Mr. Ray worked part-time as a loader for UPS. Mr. Ray said that non-employees were not allowed on the UPS premises. Both he and Mrs. Broussard were working there at around 6:00 a.m. on February 13, 2006. Mr. Ray, who worked in the back of the building, heard doors slamming and someone screaming over the noise created by the fans. The fans in the building were very loud. Mr. Ray could not see Mrs. Broussard when she was screaming. Mr. Ray then followed everyone out of the building. Mr. Ray had never seen the man before, and he was unable to identify the man at trial.

Mr. Ray reported that, once outside, he observed Mrs. Broussard and a large man screaming, pushing, and shoving. Mr. Ray heard Mrs. Broussard say, “Go home,” “I’m not cheating,” “There’s nothing going on,” “I work all the time,” “I take care of the house,” “Go home,” “You can’t be here,” “You’ll get me in trouble,” ‘You’ll get me fired,” and “Go home.” Mr. Ray also heard the man speaking, ‘You’re cheating,” ‘You’re making me look like a fool,” “Why are you doing this to me,” “Come ho[m]e with me now,” “We’re going to talk,” and possibly, “If I can’t have you, no one else can have you.” Mostly, Mr. Ray remembered the man beating [7Mrs. Broussard and pushing her down a hill into a gully where she hit her head on a pipe.

Mr. Ray explained that, because it was dark, he could not clearly see what the man had in his hand. Mr. Ray assumed it was a gun because everyone was running toward him, and they all said, “Gun.” Mr. Ray approached the man and Mrs. Brous-sard in an effort to settle the matter. Though Mrs. Broussard told him to get away, Mr. Ray continued to say that it was okay and ask what was happening. The man made a gesture with the object he was holding, put it in his pocket, and left. The man had become nervous when Mr. Hebert announced that he was calling the police. Mrs. Broussard rolled into the ditch, and the man drove away in his car.

Defendant then testified in his own defense. Defendant explained that he had no contact with Mrs. Broussard since the incident. He was married to Mrs. Brous-sard over twenty years. His marriage had been in turmoil prior to the episode. Defendant went to UPS that morning because he was concerned about his son. Defendant parked his automobile on the side of the road near a fence because he did not want to block the delivery trucks when they were ready to leave. Defendant walked by Mrs. Broussard’s car on the way inside the building and saw a negligee in the seat.

Defendant related that, when he entered a building, he asked a man standing nearby if he could speak to Mrs. Broussard. The man pointed out where Mrs. Brous-sard was working, so Defendant called Mrs. Broussard over to him. Defendant did not remember his response, but he recalled telling Mrs. Broussard that he could talk to her either inside or outside. Defendant then walked outside holding Mrs. Broussard’s arm. She did not grab papers on the way out, and neither of them assaulted the other while in the building. Defendant claimed that Mrs. Broussard did not scream, but he related that they raised their voices during the argument. Mrs. | sBroussard started fussing when Defendant told her what he “had to tell her.” Defendant accused Mrs. Broussard of having an affair with a police officer, and Mrs. Broussard repeatedly denied the allegation. Defendant then pushed Mrs. Brous-sard into a fence. The men came after Mrs. Broussard called out, “Mike, Mike.”

Defendant said he took out his gun after he pushed Mrs. Broussard and after she called out for Mr. Hebert. Defendant denied pointing it at them and explained that he “just had it” and told everyone to “[g]et back.” Defendant did not remember anyone saying they were calling the police; he recalled the men telling him they were going to rush him. Defendant admitted that he had a shiny gun in his hand when the men approached him.

Defendant said he put the gun to his own head because he could not “see” what Mrs. Broussard was telling him: that she was not having an affair and that she loved him. Defendant believed Mrs. Broussard was lying and felt that there was no point in continuing the conversation. Defendant left when Mrs. Broussard told him that she loved him. He did not return to UPS that day because he had to go to the emergency room. Mrs. Broussard had already obtained a restraining order against him before the incident.

On cross-examination, Defendant said he did not enter UPS with his gun; instead, he retrieved it from his car when Mrs. Broussard yelled for Mr. Hebert. He saw the men coming toward him, and he grabbed the firearm from his floorboard. Defendant then said he pulled out the gun when Mr. Hebert said, “Let’s rush him.” Defendant did not recall whether this happened before or after he pushed Mrs. Broussard into the fence. Defendant maintained that he had not heard any screaming.

Defendant initially refused to answer yes or no when asked whether Mrs. Brous-sard voluntarily left the building with him before stating that he did not force | nMrs. Broussard: “No. I wasn’t forcing her.” When asked whether Mrs. Broussard left the building on her own, Defendant said, “We both walked out.” Defendant then reported that they had “no actions” near the small structure once outside the larger building. Defendant denied ever pointing the gun at Mrs. Broussard or brandishing it at the other people. Defendant also denied Mrs. Broussard telling him that she could not speak at that time but would call him later.

The State then recalled Mrs. Broussard to rebut Defendant’s testimony. Mrs. Broussard denied having a negligee in her car; she had her daughter’s formal black dress on the backseat. She had been planning to take it to the cleaners because it was dry clean only, and there were white deodorant stains on the garment.

On cross-examination, the defense inquired whether Mrs. Broussard had photographed the dress or her injuries, and Mrs. Broussard responded that she had not. On redirect examination, Mrs. Brous-sard affirmed that she had bruises on her arms, her face, her knee, and her back. Mrs. Broussard also stated that she had scratches on her face. Moreover, Defendant put the gun to her head; he waved the gun at the other people present; he had the firearm inside the UPS building; he dragged and forcibly removed Mrs. Broussard from the UPS building; he put her up against the smaller building, and he then lifted her until her feet left the ground. Mrs. Broussard maintained that she had not gone outside willingly and that Defendant used force and violence to make her leave the UPS building to go to his car.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find that there is one error patent.

|,nWe note that there is no disposition for the offenses contained in Counts 1 and 2 of the bill of information; two counts of aggravated assault with a firearm. Louisiana Code of Criminal Procedure Article 819 provides: “If there is more than one count in an indictment, the jury must find a verdict as to each count, unless it cannot agree on a verdict as to a count.” The Defendant was charged by bill of information with two counts of aggravated assault with a firearm and one count of second degree kidnapping. However, the Defendant proceeded to trial and was convicted on the second degree kidnapping charge only.

In response to an inquiry, the St. Landry Parish Clerk of Court’s Office submitted an affidavit stating that no disposition of the remaining charges was found. Thus, the case is remanded for a disposition of the charges of aggravated assault with a firearm. State v. Hypolite, 04-1658 (La.App. 3 Cir. 6/1/05), 90S So.2d 1275, writ denied, 06-618 (La.9/22/06), 937 So.2d 381.

DISCUSSION

Defendant argues; “The evidence introduced at the trial of this case was insufficient to support the jury’s verdict of guilty of second degree kidnapping beyond a reasonable doubt.” Defendant points to discrepancies between the witness accounts and contests whether Mrs. Broussard was forced to accompany him, whether he was armed with a dangerous weapon or led Mrs. Broussard to reasonably believe that he was in possession of a such a weapon, whether Mrs. Broussard was harmed during the incident, and whether he had the requisite intent to kidnap Mrs. Broussard.

The State responds that Defendant’s assignment of error is without merit. The prosecution points out that there is no set distance required to be traveled during a forcible seizure in order to prove kidnapping and asserts that the facts of the case show that Defendant forcibly moved Mrs. Broussard from one environment, inside |nthe UPS building, to another, a fence across both the parking lot and the street from the UPS building. The State adds that the evidence presented at trial showed that the victim was injured during the altercation; she suffered pain caused by numerous bruises, contusions, and swelling. Also, the prosecution points out that Defendant’s gun became visible while Mrs. Broussard was resisting inside the building, and other witnesses saw the firearm in Defendant’s possession once they were outside of the building. The State continues that many of the inconsistencies in the witnesses’ testimonies pointed out by the defense are not actually inconsistencies.

It is not the function of the appellate court to reassess credibility of witnesses or reweigh evidence:

[The] due process, rational fact finder test of Jackson v. Virginia, 448 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), does not permit a reviewing court to substitute its own appreciation of the evidence for that of the fact finder or to second guess the credibility determinations of the fact finder necessary to render an honest verdict. A reviewing court may intrude on the plenary discretion of the fact finder “only to the extent necessary to guarantee the fundamental protection of due process of law.”

State v. Calloway, 07-2806, p. 10 (La.1/21/09), 1 So.3d 417, 422 (citations omitted). “The trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness[.]” State v. Higgins, 03-1980, p. 17 (La.4/1/05), 898 So.2d 1219, 1232, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005). “Credibility determinations are within the sound discretion of the trier of fact and will not be disturbed unless clearly contrary to the evidence.” State v. Marshall, 04-3139, p. 9 (La.11/29/06), 943 So.2d 362, 369, cert. denied, 552 U.S. 905, 128 S.Ct. 239, 169 L.Ed.2d 179 (2007).

The Louisiana Supreme Court has discussed the standard of review for evaluating the sufficiency of the evidence on appeal:

112The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). A determination of the weight of evidence is a question of fact, resting solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witnesses. A reviewing court may impinge on the fact-finding function of the jury only to the extent necessary to assure the Jackson standard of review. It is not the function of an appellate court to assess credibility or re-weigh the evidence.

State v. Macon, 06-481, pp. 7-8 (La.6/1/07), 957 So.2d 1280, 1285-86 (citations omitted).

“Second degree kidnapping is the [forcible seizing and carrying of any person from one place to another] wherein the victim is: (3) Physically injured or sexually abused; ... (5) Imprisoned or kidnapped when the offender is armed with a dangerous weapon-” La.R.S. 14:44.1. When the record is viewed in the light most favorable to the prosecution, it shows that Defendant, armed with a pistol, forced his estranged wife from her place of business, through the parking lot, and across the street. Defendant then pointed the gun at Mrs. Broussard when she continued her efforts to escape. During the struggle, Mrs. Broussard received bruises and at least one abrasion. Mrs. Broussard reported that her injuries became more noticeable after her visit to the emergency room and caused her to miss a week’s worth of work.

In State v. Coleman, 04-758 (La.App. 1 Cir. 3/24/05), 918 So.2d 23, the first circuit found sufficient evidence to support the defendant’s conviction for second degree kidnapping where the victim was forced out of a building, into a parking lot, and, thereafter, struck by the defendant. The defendant, who was in the process of moving, returned to her old residence to find that it had been burglarized while she was away. The defendant’s neighbor told her that the victim had been seen exiting 3the apartment. In response, the defendant grabbed a baseball bat and went looking for the victim. She confronted him, struck him in the leg with the bat, and demanded that he return her belongings. The victim agreed to return the defendant’s possessions; he fled into a convenience store when the defendant again moved to strike him with the bat. At that time, the defendant and others followed the victim to the store. Coleman, 918 So.2d at 26. In accordance with the defendant’s request, two of the others went inside the store and forcefully removed the victim. Id. Once the victim was outside, several people in the crowd attacked the victim. Id. The victim fell to the ground, and the defendant again hit him with the baseball bat. Id. Though the victim initially showed no signs of injury, he developed a large blood clot on the surface of his brain. The resulting brain damage caused permanent physical impairment. After concluding that there was sufficient evidence to support the defendant’s second degree kidnapping conviction, the first circuit reversed the conviction and sentence upon finding that the trial court erred in denying the defendant’s motion for new trial. Thereafter, in State v. Coleman, 05-1617 (La.6/29/07), 959 So.2d 465, 473-74, the supreme court reversed the appellate court’s ruling and reinstated Defendant’s conviction and sentence for second degree kidnapping.

In State v. Gauthier, 04-1608 (La.App. 3 Cir. 11/2/05), 916 So.2d 314, writ denied, 06-465 (La.9/22/06), 937 So.2d 378, this court found sufficient evidence to support the defendant’s second degree kidnapping conviction. The evidence at trial showed that the defendant, while armed with a gun, persuaded his wife to leave their residence and go to another location. On the way to the second location, the defendant drove with the gun in his lap. Once at that location, he aimed the gun at her and told her that he would shoot her if she ran.

| uThus, under the Coleman decision, the facts of the instant case are sufficient to prove that Defendant forcibly seized and carried Mrs. Broussard from one place to another. Also, under the Gauthier decision, the facts are sufficient to show that Defendant was armed with a dangerous weapon when he forcibly seized and carried Mrs. Broussard from one place to another. Therefore, the State introduced sufficient evidence to support Defendant’s second degree kidnapping conviction.

Accordingly, Defendant’s assignment of error is without merit.

CONCLUSION

Defendant’s conviction and sentence for second degree kidnapping are affirmed. This case is remanded for disposition of the charges of aggravated assault with a firearm.

AFFIRMED; REMANDED.


source: Caselaw Access Project

author: PICKETT, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Jason D. CLAYTON.
    No. KA 10-1303.
    Court of Appeal of Louisiana, Third Circuit.
    May 4, 2011.

      Charles A. Riddle III, District Attorney, Twelfth Judicial District Court, David La-fargue, Assistant District Attorney, Marksville, LA, for PlaintifflAppellee, State of Louisiana.
    Carey J. Ellis III, Louisiana Appellate Project, Rayville, LA, for Defendant/Appellant, Jason D. Clayton.
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   PICKETT, Judge.

I,The defendant appeals his sentence for armed robbery, asserting that it is excessive. For the following reasons, we affirm the sentence.

FACTS

Jason D. Clayton, the defendant, pled guilty to having committed armed robbery of the Five Star Foods in Bunkie on June 27, 2009. When pleading guilty, the defendant admitted that he and his co-defendant took $11,000 from a cash register in the immediate control of a Five Star Foods cashier and that he had possession of a .380 gun during the robbery. He stated that he understood the plea agreement required him to testify against his co-defendant and to be sentenced to twenty-seven years, without benefit of probation, parole, or suspension of sentence. He further acknowledged that pursuant to the plea agreement, “no multi-bill” would be filed against him. The trial court accepted the defendant’s guilty plea, then sentenced him to twenty-seven years without benefit of probation, parole, or suspension of sentence.

The defendant filed two pro se Motions for Reconsideration of Sentence, which were denied by the trial court without hearings. He then filed a pro se Motion to Amend or Modify Sentence, which the trial court also denied without a hearing. The defendant next filed a Motion to Appeal with the trial court. Thereafter, he filed a Writ for Review with this court which was not considered because he had not challenged his guilty plea by first seeking review with the trial court as required by Uniform Rules — Court of Appeal, Rule 1-3.

The trial court held an evidentiary hearing with regard to the defendant’s Motion to Appeal to determine whether he would represent himself on appeal or whether he was entitled to court-appointed counsel. At the conclusion of the hearing, the trial court ordered that counsel be appointed to represent the defendant on appeal. | ¡/Through counsel, the defendant urges one assignment of error: his sentence is excessive and should be reduced.

DISCUSSION

Pursuant to La. Const. art. 1, § 19, everyone sentenced to imprisonment is entitled to judicial review of his sentence; the right to judicial review can be waived however. Louisiana Code of Criminal Procedure Article 881.2(A)(2) contains a waiver of the right to judicial review; it states: “The defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.” This provision applies to sentences, sentence ceilings, sentence ranges, and sentence caps agreed to by defendants in plea agreements. State v. Percy, 09-1319 (La.App. 3 Cir. 5/5/10), 36 So.3d 1115, writ denied, 10-1253 (La.12/17/10), 51 So.3d 17; State v. Roberts, 08-1026 (La.App. 3 Cir. 3/4/09), 4 So.3d 1011.

The defendant urges, however, that he is entitled to have his sentence reviewed under the holding in State v. Foster, 42,212 (La.App. 2 Cir. 8/15/07), 962 So.2d 1214. In Foster, after questioning the defendant concerning his guilty plea and his agreement to a sentencing cap of thirty years, the trial court asked the defendant if he understood that by pleading guilty he was waiving his right to appeal “except as to the amount of the sentence.” Id. at 1218. The second circuit determined the defendant had not waived his right to appeal his sentence for excessiveness because he “did not contemplate that by pleading guilty he waived his right to appeal his sentence for excessiveness.” Id. The court then reviewed the defendant’s sentence for exces-siveness. See also State v. Planco, 96-812 (La.App. 3 Cir. 3/26/97), 692 So.2d 666, where this court held that the defendant’s reservation of the right to appeal |shis sentence as a term of a plea agreement did not violate La.Code Crim.P. art. 881.2(A)(2)’s prohibition against appellate review of a sentence imposed pursuant to a plea agreement.

In this matter, when the trial court questioned the defendant regarding his understanding of the terms of his plea agreement and the voluntariness of his guilty plea, it asked: “Do you understand that you have a right to apply to a higher court to review your case by appeal or by writ of review?” The defendant answered: “Yes, sir.” The trial court did not thereafter inform the defendant that by pleading guilty he waived his right to have his plea and/or sentence reviewed by a higher court. Considering the trial court’s explicit exception of the waiver of the right to appeal during the defendant’s plea agreement, we find, as the court did in Foster, that the defendant could not have contemplated that he waived his right to appeal his sentence when he pleaded guilty, and we will review his assignment of error that his sentence is excessive.

This court has set forth the following standard to be used when reviewing excessive sentence claims:

La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042, writ denied, 01-838 (La.2/1/02), 808 So.2d 331 (alteration in original) (citations omitted).

In order to decide whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals:

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

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061.

In his Motions for Reconsideration of Sentence, the defendant asserted, “there are several mitigating factors ... that were never really presented to the court. The truth is at the time of the offense(s) the petitioner was suffering under extreme stress and mental anxiety.” He argues the facts in evidence do not establish that his sentence was particularized to him or that the sentencing guidelines provided in La.Code Crim.P. art. 894.1 were considered. Article 894.1 itemizes numerous aggravating and mitigating circumstances a court should consider when imposing sentence on a defendant. Therefore, the defendant seeks to have his sentence vacated, and this matter remanded to the trial court for him to be resentenced in accordance with Article 894.1.

| ^Louisiana Code Criminal Procedure Article 881.4(D) provides that an “appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed.” In conformity with this provision, the fifth circuit has held that because a trial court has much discretion in determining an appropriate sentence, an appellate court should not set aside a sentence as excessive if the record supports the sentence, even when the trial judge did not provide reasons for the sentence. State v. Armstead, 07-741 (La.App. 5 Cir. 2/6/08), 980 So.2d 20, writ denied, 08-601 (La.10/3/08), 992 So.2d 1010. The relevant question on appeal is whether the trial court abused its discretion in imposing sentence. Id. Similarly, the fourth circuit has held that where the trial court made no mention of La.Code Crim. P. art. 894.1 or its provisions and, therefore, did not comply with the article, the sentence would not be vacated if it was supported by the record. State v. McGee, 98-2116 (La.App. 4 Cir. 2/23/00), 757 So.2d 50, writ denied, 00-877 (La.10/27/00), 772 So.2d 121.

The transcript of the Boykin and Sentencing Hearing during which the defendant pled guilty and was sentenced shows that he was thirty years old and had completed the ninth grade when he committed the armed robbery of the Five Star Foods and when he was sentenced, that he can read and write English, and that he did roofing work before his incarceration. The transcript further shows that the defendant wielded a gun when he and his co-defendant robbed the Five Star Foods by taking approximately $11,000 in cash and checks from a cash register in the immediate control of the cashier. Additionally, the record shows the defendant was a second felony offender.

The sentence for armed robbery is imprisonment at hard labor for not less than ten years and for not more than ninety-nine years, without benefit of parole, | ^probation, or suspension of sentence. La.R.S. 14:64(B). Accordingly, if the defendant was a first-time felony offender, his twenty-seven-year sentence would have been near the lower end of the sentencing range. He was a second felony offender, however, who faced a habitual offender proceeding if he did not plead guilty. At the time he committed the offense, the defendant, as a multiple offender, was subject to a minimum sentence of forty-nine and one-half years and a maximum sentence of 198 years. La.R.S. 15:529.1(A)(1).

In State v. Mason, 39,936, pp. 3-4 (La.App. 2 Cir. 8/17/05), 908 So.2d 1250, 1253, the second circuit made the following observations regarding armed robbery which we find pertinent to our review: '

Armed robbery is, by definition, a dangerous crime, which often leads to death or serious injury. The victims of armed robbery are often physically harmed or otherwise traumatized for life. On this record, we can find no error in the imposition of this sentence, which most assuredly does not shock the sense of justice, and is not a needless infliction of pain. The penalty is admittedly harsh, though not unduly so. The legislatively-mandated sentence is severe, precisely because the crime of armed robbery is so reprehensible, even more so when committed by one who is already a felon.

The defendant in Mason, also a second felony offender, was sentenced to the mandatory forty-nine and one-half years. La.R.S. 14:64(B); La.R.S. 15:529.1(A)(1)(a).

For these reasons, we find that the defendant benefitted greatly by his plea agreement and that for a second-felony offender who wielded a gun during the commission of an armed robbery, his twenty-seven-year sentence was not excessive. Accordingly, we find no merit in the defendant’s assignment of error and affirm his sentence.

ERRORS PATENT

Our review of the record for errors patent on the face of the record as provided in La.Code Crim.P. art. 920 shows a discrepancy between the transcript of the defendant’s guilty plea and sentencing proceeding and the sentencing minutes and the Commitment. The transcript reflects that the defendant’s sentence was imposed without the benefit of parole, probation, or suspension of sentence; however, that restriction is not reflected in the sentencing minutes or the Commitment. Accordingly, the trial court is instructed to correct the sentencing minutes and the Commitment to reflect that the defendant’s sentence is to be served without benefit of parole, probation, or suspension of sentence.

DISPOSITION

The defendant’s sentence is affirmed. Furthermore, the trial court is instructed to correct the sentencing minutes and the Commitment to reflect the defendant’s sentence is to be served without benefit of parole, probation, or suspension of sentence.

AFFIRMED WITH INSTRUCTIONS.


author: KUHN, J.

text:
    CITY OF BATON ROUGE, Parish of East Baton Rouge and the Department of Public Works v. Daryl W. TURNER and the Personnel Board of the City of Baton Rouge, Parish of East Baton Rouge.
    No. 2010 CA 1192.
    Court of Appeal of Louisiana, First Circuit.
    May 6, 2011.
    Deidre D. Robert Baton Rouge, LA, for Plaintiff-Appellee City of Baton Rouge, Parish of East Baton Rouge, the Department of Public Works.
    Jonathan C. Augustine, Baton Rouge, LA, for Defendant-Appellant Personnel Board for the City of Baton Rouge, Parish of East Baton Rouge.
    Before KUHN, PETTIGREW, and HIGGINBOTHAM, JJ.
   KUHN, J.

|2After his termination as a classified civil service employee for the City of Baton Rouge, Parish of East Baton Rouge working for the Department of Public Works (DPW) as a Maintenance Worker I at the Street-Maintenanee-South division, Daryl Turner appealed to the Personnel Board for the City of Baton Rouge, Parish of East Baton Rouge (the Board). The Board voted to reinstate Mr. Turner with a 30-day suspension without pay. DPW filed a petition for judicial review with the Nineteenth Judicial District Court. After a hearing, the district court reversed the Board and upheld DPW’s termination of Mr. Turner. The Board appealed. Finding that the Board has no right to appeal the district court’s decision, we dismiss the appeal.

BACKGROUND

Mr. Turner was terminated after DPW determined that he was involved in a non-work related activity during work hours. On July 10, 2009, Mr. Turner was detailed to weed-eating and litter-pickup jobs around Main Street and North 22nd Street. After his supervisor departed, Mr. Turner left with his two crewmembers in a City-Parish vehicle and proceeded to a vacant lot at North 47th Street and Gus Young Avenue. Mr. Turner, having made a verbal agreement with a citizen to cut the lot the previous day, utilized City-Parish equipment to cut the lot while his crewmembers waited on the road in the City-Parish vehicle. After DPW Superintendent, Keith Roberson received a call reporting Mr. Turner’s non-work activity, Mr. Turner was terminated.

DISCUSSION

A number of recent eases have focused this court’s attention on the issue of subject matter jurisdiction over appeals from decisions of administrative bodies. This court has a duty to examine subject matter jurisdiction on its own motion, even when the issue is not raised by the litigants. City of Baton Rouge v. Bethley, 2009-1840, p. 5 (La.App. 1st Cir.10/29/10) — So.3d-, 2010 WL 4263710.

The Board is a quasi-judicial body. See Plan of Government, City of Baton Rouge, Parish of East Baton Rouge, § 9.04; see also Hood Motor Co. v. Lawrence, 320 So.2d 111, 115 n. 4 (La.1975) (explaining quasi-judicial function as one which involves the use of some discretion, but of a type different from a judicial decision, defining it as a duty lying in the judgment or discretion of an officer other than a judicial officer, and articulating its differences with ministerial function). As such, the Board cannot appeal the judgment of the district court of a petition to review its own determination. See Matter of St. Tammany Parish Bd. of Adjustments, 95-2005, p. 2 (La.App. 1st Cir.5/14/96), 676 So.2d 119, 120 (and cases cited therein). The Louisiana Supreme Court observed:

Obviously, the [Board] has no more right to appeal from the decision of the Civil District Court reversing its own decision than one of the judges of the Civil District Court would have to appeal to this Court from a judgment of the Court of Appeal reversing one of his decisions.

See Matter of St. Tammany Bd. of Adjustments, 95-2005 at pp. 2-3, 676 So.2d at 120 (quoting State ex rel. Bringhurst v. Zoning Bd. of Appeal and Adjustment, 198 La. 758, 4 So.2d 820, 822 (1941)).

As a general rule, a board exercising quasi-judicial functions, not being a party to its proceedings, and not having any legal interest in maintaining its | ¿determination, can neither appeal from a judgment or order of a court reversing the proceedings nor be heard on the appeal. State ex rel. Bringhurst, 4 So.2d at 822.

The record shows that the suspensive appeal of the district court’s judgment was taken by the Board. Since the Board is not a party and has no legal interest in the district court proceeding, it has no right to appeal the judgment reversing the Board and reinstating DPW’s termination of Mr. Turner. See Matter of St. Tammany Bd. of Adjustments, 95-2005 at p. 3, 676 So.2d at 120. Mindful that Mr. Turner did not appeal the district court’s judgment reinstating DPW’s termination of his employment, we dismiss the appeal. See La. C.C.P. art. 2162.

DECREE

For these reasons, on our own motion, the suspensive appeal taken by the Board is dismissed. Appeal costs in the amount of $2,121.73 are assessed against the Personnel Board for the City of Baton Rouge, Parish of East Baton Rouge.

APPEAL DISMISSED.

      . We note that DPW's petition for judicial review was filed by a special assistant parish attorney and not by the head of DPW as specified in Plan of Government for the City of Baton Rouge, Parish of East Baton Rouge § 9.05 (As amended October 20, 2007). See Bethley, 2009-1840 at pp. 6-7, nn. 2 & 4,-So.3d at-, nn. 2 & 4.