author: EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana v. Vorris A. WHITE Jr.
    No. 2011-KA-0208.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 28, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Donna Andrieu, Chief of Appeals/Supervising Attorney, Samantha Guard, Rule XX, Student Practitioner, New Orleans, LA, for the State of Louisiana.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

|,The defendant, Vorris A. White, Jr., appealing his conviction for unauthorized use of a motor vehicle, a violation of La. Rev.Stat. 14:68.4, argues that there is insufficient evidence to support his conviction and that it was error for the trial judge to deny his motion to suppress his statements. After review of the record in light of the arguments of the parties and applicable law, we affirm the defendant’s conviction and sentence.

Relevant Facts and Procedural History

The defendant lived with Mia Anderson in her home for approximately seven years. Ms. Anderson owned two vehicles, a 2009 Armada and a 2003 Explorer. The defendant had no ownership interest in Ms. Anderson’s vehicles or home. On December 30, 2009, the relationship abruptly ended after Ms. Anderson’s 2009 Armada was found severely damaged near her home and the defendant admitted to a police officer that he had driven the vehicle and been involved in a hit and run accident.

On February 24, 2010, the defendant was charged by bill of information with unauthorized use of Ms. Anderson’s vehicle. He pleaded not guilty at his arraignment on March 3, 2010. After a hearing on April 15, 2010, the trial judge denied the defendant’s motion to suppress his in-culpatory statement. A six-person Rjury found the defendant guilty as charged on July 6, 2010. On July 30, 2010, he was sentenced to serve one year at hard labor.

On August 26, 2011, the defendant was granted an out-of-time appeal.

Assignment of Error: Sufficiency of the Evidence

The standard of review for the sufficiency of the evidence is whether, viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have found that the state proved the essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). On appeal, this court may impinge on the fact finder’s discretion and its role in determining the credibility of the witnesses “only to the extent necessary to guarantee the fundamental due process of law.” State v. Mussall, 523 So.2d 1305, 1310 (La.1988). Accordingly, the relevant question before us is whether, on the evidence presented at trial, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” State v. Strother, 2009-2357, p. 10 (La.10/22/10), 49 So.3d 372, 378 (quoting Jackson, 443 U.S. at 319, 99 S.Ct. 2781). Absent internal contradiction or irreconcilable conflict with the physical evidence, a single witness’s testimony, if believed by the fact finder, is sufficient to support a factual conclusion. State v. Marshall, 2004-3139, p. 9 (La.11/29/06), 943 So.2d 362, 369 (citation omitted).

La.Rev.Stat. 14:68.4 provides as follows:

|SA. Unauthorized use of a motor vehicle is the intentional taking or use of a motor vehicle which belongs to another, either without the other’s consent, or by means of fraudulent conduct, practices, or representations, but without any intention to deprive the other of the motor vehicle permanently.
B. Whoever commits the crime of unauthorized use of a motor vehicle shall be fined not more than five thousand dollars or imprisoned with or without hard labor for not more than ten years or both.

Consent or permission to use a vehicle can be limited or revoked even after having been granted. See State v. Colbert, 04-538 (La.App. 5 Cir. 11/30/04), 889 So.2d 1128 (rational fact finder could find unauthorized use where defendant took girlfriend’s vehicle with her permission but kept it for extended period of time without her permission).

Thus, to sustain this conviction, the evidence must show that the defendant intentionally took or used the vehicle belonging to Ms. Anderson without her consent but without any intention to deprive her of the vehicle permanently. The defendant argues that there is no evidence that he did not have implied consent to use the vehicle because Ms. Anderson never specifically denied him permission to use her either of her vehicles and there is no evidence he had to ask for specific permission each time he used the older vehicle. Accordingly, he asserts he had the implied authority to use the newer vehicle or would have obtained express permission to do so if Ms. Anderson had not been sleeping and, thus, unable “to specifically give permission on this particular occasion.”

The following evidence was adduced at trial. Ms. Anderson and the defendant went out on the evening of December 29, 2009, returning home at approximately 10:30 p.m. Ms. Anderson went to bed and the defendant watched television. At some point in the night, Ms. Anderson’s sister attempted to wake her to tell her the vehicle was missing. When Ms. Anderson woke up in the early ^morning hours of December 30, 2009, she recalled what her sister had said and looked outside to find that the Armada was no longer parked in the driveway. She asked the defendant, who was watching television in their bedroom, if he had moved it and he denied having done so. Believing her car had been stolen, she called 911.

Officer Evan Walvoord of the New Orleans Police Department (NOPD) responded to the call. The defendant told Officer Walvoord that he had taken the keys to Ms. Anderson’s vehicle, driven the vehicle, been involved in a hit and run accident, and ultimately left the car parked at the corner of Monroe and Olive Streets, near Ms. Anderson’s home. Riding in the back of the police car, the defendant showed Officer Walvoord where the vehicle was parked. Ms. Anderson followed in another police car. The car was badly damaged on the passenger side and, subsequently, Ms. Anderson recovered the value of the vehicle from her insurance company.

The defendant’s reliance on State v. Cojoe, 2000-1856 (La.App. 4 Cir. 3/21/01), 785 So.2d 898, to support his argument that he had permission to use one of Ms. Anderson’s vehicles and, accordingly, because of their close personal relationship had the implied authority to use the other vehicle owned by her, is misplaced. In Cojoe, this court reversed a conviction for unauthorized use of the defendant’s father’s vehicle where the evidence showed that the defendant had keys to all his father’s vehicles and used them on occasion with or without his father’s permission and there was no evidence to show that the father had revoked the permission he had previously given his son. In this case, Ms. Anderson unequivocally testified that the defendant did not have her permission to use the vehicle at issue, conceding that the defendant was allowed use of her older |svehicle but “not the one that’s in question.” Moreover, Ms. Anderson testified that the defendant never told her that he had been driving her vehicle and had, in fact, specifically denied doing so when she asked. She admitted the defendant was not listed on her insurance policies but denied that, in order to receive compensation for the damaged vehicle, it was necessary to tell the insurance company that the defendant was driving without her permission. Finally, Ms. Anderson testified that she did not give the defendant the keys to the vehicle, testimony corroborated by Officer Walvoord who stated that the defendant told him that he had taken the keys to the vehicle, not that he had a set for his own use.

Despite extensive cross-examination about the insurance proceeds, the jury apparently found Ms. Anderson’s testimony credible. We do not find that the jury’s credibility determination is clearly contrary to the evidence and, accordingly, viewed in the light most favorable to the prosecution, a rational trier of fact could have found that the state proved the essential elements beyond a reasonable doubt. This assignment of error is without merit.

Assignment of Error: Suppression of Statements

The defendant argues that the trial judge erred in denying his motion to suppress the statements he made to Officer Walvoord because he made the statements after he became a suspect in the investigation but prior to being advised of his constitutional rights. In addition, he argues that the officer knew he had been drinking when he made the statements.

Before a confession can be introduced into evidence, the State must affirmatively show that the statement was free and voluntary and “not made under | fithe influence of fear, duress, intimidation, menaces, threats, inducements or promises.” La.Rev.Stat. 15:451. The protections of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) are only applicable when a person is the subject of a custodial interrogation and, thus, an officer need not formally advise a person not in custody of his rights prior to taking the statement in order for his statement to be admissible at trial. State v. Watson, 99-1448, pp. 18-19 (La.App. 4 Cir. 8/23/00), 774 So.2d 232, 242. Intoxication will render a statement inadmissible only when of such degree as to negate the defendant’s comprehension and render him unconscious of the consequences of his statement. See State v. Simmons, 443 So.2d 512, 515-516 (La.1983). A trial judge’s ruling on whether or not a statement is voluntary is given great weight and will not be disturbed on appeal unless clearly unsupported by the evidence. State v. Vigne, 2001-2940, p. 6 (La.6/21/02), 820 So.2d 533, 536.

In this case, the trial judge found that the defendant’s statements were voluntary and not the result of a custodial interrogation. Given the officer’s testimony that the defendant was free to leave and not in custody, this determination is clearly not manifestly erroneous. Moreover, there is nothing in Officer Walvoord’s testimony at the motion hearing to suggest that the defendant was intoxicated to the point that it was noticeable or would have affected his ability to voluntarily speak with the officer; Officer Walvoord conceded that he could smell alcohol on the defendant’s breath but specifically stated that he did not know if the defendant was intoxicated or not and, thus, there is no evidence that the defendant was unable to comprehend the consequences of his voluntary statement. Ms. Anderson was not asked at trial if the defendant had been drinking or if he was intoxicated. She stated that they had gone out, that she had a couple of drinks, and 17that they returned home before 10:30 p.m. According to Ms. Anderson, while she went to bed, the defendant stayed up watching television and when she woke up he was there watching television. Thus, on the record before this Court, there is nothing to indicate that the defendant was too intoxicated to answer the officer’s questions voluntarily.

This assignment of error lacks merit.

Errors Patent

A review of the record for errors patent reveals that there are none.

Conclusion

The defendant s conviction and sentence are affirmed.

AFFIRMED.

      . That same day, the State filed a multiple bill of information charging the defendant as a fourth offender. Pursuant to a motion to quash filed by the defendant, the State was ordered to provide discovery to the defense in conjunction with the habitual offender proceedings. On December 13, 2010, the State filed a writ application seeking reversal of that order and this court granted the writ and reversed the trial court’s ruling. State v. White, 2010-1735 (La.App. 4 Cir. 3/1/11), writ denied, 2011-780 (La.5/27/11), 63 So.3d 997. The docket master of the Criminal District Court indicates that as of August 24, 2011, the multiple bill hearing was still pending, having been continued without date.

      . Notably, although this would appear to be an issue of fact, the defense presented no evidence to impeach Ms. Anderson’s testimony that she received compensation for the vehicle based on her representation of unauthorized use of the vehicle.


source: Caselaw Access Project

license: Public Domain

text:
    John D. SILEO, Jr. v. Allan BERGER and the Law Offices of Allan Berger & Associates, a Professional Law Corporation.
    No. 2011-CA-0295.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 28, 2011.

      John D. Sileo, Charles F. Wartelle, New Orleans, LA, for Plaintiff/Appellant.
    Fred L. Herman, Law Offices of Fred L. Herman, New Orleans, LA, for Defendant/Appellee.
    Paul Rumage, Law Office of Paul Ru-mage, Baton Rouge, LA, Amicus Curiae.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

h Plaintiff, John D. Sileo, Jr., appeals a judgment of the district court granting a Motion to Enforce Settlement in favor of defendant, Allan Berger & Associates, ordering plaintiff to release a full sum payment of $81,777.69 to attorney Susan Earnest as part of a settlement agreement recited in court related to payment of attorney’s fees owed to Ms. Earnest for a previously-settled civil case. For the reasons provided below, we affirm.

Factual and Procedural History

This is an appeal from a lawsuit concerning claims for attorney’s fees between a law firm and a former attorney employed by the law firm. John D. Sileo, Jr., an attorney licensed to practice law in Louisiana, was hired by Allan Berger & Associates, a professional law corporation, in January 1996. Allan Berger & Associates (AB & A) is owned by Allan Berger, also an attorney licensed in Louisiana. Mr. Sileo worked at AB & A for eleven years until his resignation on January 26, 2007. On March 22, 2007, Mr. Sileo filed a “Petition for Unpaid Wages, Penalties and Attorney’s Fees” against AB & A, alleging that he was owed over $200,000 in unpaid attorney’s fees from cases he had tried or settled while employed by the firm. For the next two years, arduous litigation occurred between 12the parties, including re-conventional claims, separate lawsuits, and allegations of defamation.

On May 26, 2009, the parties’ counsel, as well as Mr. Sileo and Mr. Berger personal ly, appeared before the district court to announce that they had “reached a settlement and compromise” as to all claims between the parties, which included any claims and reconventional demands for wages, reimbursements of fees and costs, damages, and breach of contract. The parties informed the Court of a percentage-based division of fees depending on certain time periods of when a particular case was settled or tried.

The parties further informed the Court that they “have agreed to enter into cross indemnity agreements to protect one another from claims by third-party attorneys who may be entitled to a referral fee ... to our knowledge there are but two of those cases.” Mr. Berger and Mr. Sileo personally informed the Court of the two known cases, which were: 1) a matter called Ryan Babineaux; and 2) Brenda L. Argiz-Pipkin, et al v. Auto Auction of New Orleans, L.L.C., filed in Division “F” of the Civil District Court for the Parish of Orleans under Docket No. 01-02557 (the “Pipkin case”).

The parties’ counsel then began discussing the indemnity agreements on possible unknown third-party attorney fees or referral fees owed. Mr. Herman, counsel for Allan Berger & Associates, stated to the Court:

MR. HERMAN: What I would ask, Your Honor, with respect to the indemnities, that Mr. Sileo and Mr. Berger exchange a list as part of their settlement with respect to all referral fees that may be due so that they can understand what, if any, indemnities they may be assuming. Particularly with respect to the Babineaux matter and the Pipkin matter, I would suggest to Your Honor that if those are the only two that are known, that they be excluded and that the referral fee be carved out and paid if in fact it’s due.

|sMr. Schonekas, counsel for Mr. Sileo, agreed with that sentiment, and the Court acknowledged it as well:

MR. SCHONEKAS: That’s what I was going to suggest, Judge, is if there isn’t a disagreement about the payment referral fee, it’s not going to affect the net anyway. It would simply come off the top.
MR. HERMAN: Right. So that indemnity, Your Honor, would only apply to—
MR. SCHONEKAS: — the non-disclosed claims of third parties.
MR. HERMAN: In non-dispute.
THE COURT: So there is no suggestion, the agreement is that on the two that are known, they will just be paid as due and on the ones that are unknown, they’ve both mutually agreed to indemnify each other.
MR. SCHONEKAS: Correct.
THE COURT: That’s the agreement. It’s not a suggestion.
MR. HERMAN: That is correct.

Mr. Sileo then stated that he did not know what Mr. Berger’s fee agreement with Ms. Earnest was on the Pipkin case, and sought further clarification, to which Mr. Berger and the Court replied:

MR. BERGER: That fee has got to come out of, I mean, it’s like anything. It has to come off the top and what is the balance would be the percentages that—
THE COURT: It would only affect what sum you would be receiving as it would affect any other case. That is to say, whatever the agreement is, that agreement is honored and that fee is paid, and then your division is what your division is.

Mr. Berger admitted that, at that moment, he did not know what percentage arrangement he had with Ms. Earnest for the Pipkin case. He then suggested that the parties look at their books and get together again to discuss cases in which fees are potentially due to third-party attorneys. Mr. Sileo then stated:

|4MR. SILEO: There’s only two, Judge, that they’ve mentioned, and the only two—
MR. HERMAN: That is correct.
MR. SILEO: Let me just make sure I am correct on this. If they come up with fifteen cases that they have agreements on that we have no idea about, I’m saying I have no idea, and Mr. Berger is reporting that that’s going to cut the money that I received, the 45% that I received on these cases, which was given in consideration for a lot of things here, Judge, I can’t enter that agreement. Because I have no idea what he’s done. And I’m not going to enter something based upon something that doesn’t exist ...
... So that we’re clear, if it’s just these two cases, if it’s those two cases and that’s all this is about, then that’s fine. Then the rest exactly goes back to the indemnification defense. I don’t, again, want something — This is way too vague because I don’t want to hear there’s fifteen million agreements he has with Mr. Herman or somebody else that exists. That wouldn’t be fair and I can’t agree to that.

The parties’ counsel then reiterated that they would meet later in the week to discuss the indemnification arguments further, but that as to the two known matters, Babineaux and Pipkin, there is no confusion. Mr. Sileo then said:

MR. SILEO: Judge, as long as it’s only these two.
THE COURT: I understand.

The district court understood that the by the end of the week, “you all will talk and have an agreement reached as it relates to this indemnity provision by Friday, and then I expect counsel to come and let me know what the agreement is.”

The parties did not return to the district court, however, as they instead reached a written settlement agreement resolving all other claims and issues between the parties. The written and signed agreement of August 28, 2009 acknowledged that the parties reached a full and complete compromise resolving all claims against each other, and that the terms of the compromise were placed on | r,record in the May 26, 2009 hearing. It was discovered that AB & A had an agreement with Susan Earnest in which she would receive 33.33% of all total fees earned in the Pipkin case.

Paragraph 5 of the August 28, 2009 written agreement states that “[t]he parties further agree that fees due other attorneys in the cases identified on Exhibit B will be paid prior to the division of the fees due to Berger and Sileo.” One of the listed cases in Exhibit B to the written agreement is the Pipkin case, with a case note stating that “Susan Earnest is owed 33.33% of the fee recovered by Allan Berger & Associates.”

On March 15, 2010, AB & A filed a Motion to Enforce Settlement “compelling John D. Sileo, Jr. to comply with the oral and written agreements Sileo made before this Honorable Court.” Specifically, AB & A alleged that Mr. Sileo had refused to release funds onto Susan Earnest for fees earned in the Pipkin matter. AB & A claimed that the case settled for $754,000.00, and that as a result of the contingency arrangement the total attorney’s fees were $251,308.20. AB & A argued that a 33.33% fee or $83,761.02 was owed to Susan Earnest, and that Mr. Sileo must release this amount directly onto Ms. Earnest before the division of fees between himself and AB & A. AB & A attached the August 28, 2009 written agreement to their Motion to Enforce Settlement.

In response to AB & A’s Motion to Enforce Settlement, Mr. Sileo filed Exceptions of Prematurity, No Right of Action, No Cause of Action, and filed a cross Motion to Enforce Settlement Agreement. Mr. Sileo argued that under the 16settlement agreement of August 28, 2009, the Pipkin settlement is part of a percentage fee division in which he receives 45% of the entire fee, and that Ms. Earnest is only entitled to one-third of the remaining 55% awarded to AB & A. Mr. Sileo also sought to enforce an arbitration provision of the August 28, 2009 agreement.

The matter came for hearing before the district court on October 19, 2010. The trial court denied Mr. Sileo’s exceptions for being “no more, no less than a delay tactic,” and granted AB & A’s Motion to Enforce Settlement. The Court expressed a strong recollection of the May 26, 2009 hearing:

THE COURT: ... I understand your client’s argument as to what he contends was a vague situation but I tell you on that day if there was any vagueness at all, it was manufactured after the fact, after the transcript had already been transcribed. Because everyone who was present that day understood that as it related to two cases, the Babineaux case and the Pipkin case, that the third party referral person was going to receive a third of the attorney’s fees and then whatever amount was remaining after the third was — and I quote — taken off the top was going to be divided as they had agreed.
Now, the only reason why there’s even a basis to argue vagueness is because there was some uncertainty as to whether there were other cases that had to be dealt with. In fact, that was the term that was used where in the section of the transcript where your client talks about other cases and to deal with those other cases, the written agreement developed a procedure to deal with the other cases.
But as it relates to Pipkin and Babi-neaux, there was no confusion. There was no confusion by the parties and there was no confusion by this Court that it was absolute — Let me back that up again ...
So, there’s no doubt whatsoever in this Court’s mind that the agreement was in those two cases, the Babineaux case and the Pipkin case, that the referral party would get from the attorney’s fees their percentage off the top and that the balance would be divided as was agreed.

[7Mr. Boudreaux, Mr. Sileo’s new counsel, argued that because Mr. Berger was unaware of the exact agreement he had with Ms. Earnest regarding her payment on the Pipkin case, there was uncertainty regarding the division fees at the May 26, 2009 hearing. The district court responded:

THE COURT: ... When it was a question from your client with regard to the indemnity when he asked Mr. Berger what was the percentage — In other words, he didn’t have any problems with taking the attorney’s fees off the top for Babineaux and Pipkin, but he didn’t know what the percentage was that was going to be taken off the top on that date. And Mr. Berger indicated, well, I don’t know either or I’m not sure. He didn’t want to make a comment on the record and then get back to his office and find out, oops, I made a mistake. So, he just simply indicated we were going to wait until — I think it was Friday — where information was going to be tendered to your client as it relates to what the percentage was and what, if any, other disputes existed with other cases.
You had to be part of the environment, if you will, to appreciate what people understood at that time as opposed to looking at a cold transcript and trying to — not you — but trying to superimpose a different interpretation ...
... There was no Allan Berger fee or Sileo fee. It was just a fee that we were talking about here. That’s what was coming off the top. And then what was remaining, after coming off the top, was an Allan Berger fee and a John Sileo fee

The trial court granted AB & A’s Motion to Enforce Settlement, and ordered Mr. Sileo to release onto Susan Earnest $81,777.69, representing 32.5375% of the total fee earned in the Pipkin matter. Mr. Sileo appeals this judgment.

Assignments of Error

Mr. Sileo, appellant, first argues that the trial court wrongly substituted its own interpretation for that of the August 28, 2009 written agreement regarding the fee owed to attorney Susan Earnest for the Pipkin case. Mr. Sileo further argues that the disagreement should be handled in arbitration according to the August 28, 2009 written agreement.

| sAppellate Standard of Review

This Court’s recent jurisprudence reveals that we apply the manifest error appellate standard of review to a judgment granting a motion to enforce settlement. Howard v. Louisiana Citizens Property Ins. Corp., 2010-1302, pp. 2-3 (La.App. 4 Cir. 4/27/11), 65 So.3d 697. “The district court made a factual determination that a contract existed between the parties when the court ruled on the motion to enforce settlement agreement. Thus, we apply the manifest error or clearly wrong standard.” Id., p. 3, 65 So.3d 697, quoting Rogers v. Mumford, 2008-1144, p. 5 (La.App. 3 Cir. 2/4/09), 6 So.3d 848, 851.

Appellate courts review findings of fact by the trial court judge using the manifestly erroneous or clearly wrong standard of review. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). “Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.” Id.

Law and Analysis

A compromise is valid if there is a meeting of the minds of the parties as to exactly what they intended when the compromise was reached. Elder v. Elder & Elder Enterprises, Ltd., 2006-0703, p. 3 (La.App. 4 Cir. 1/11/07), 948 So.2d 348, 350. Compromises are favored in the law and the burden of proving the invalidity of such an agreement is on the party attacking it. Id.

In 2007, the Legislature amended and reenacted the Louisiana Civil Code articles relative to compromise to be comprised of La. Civ.Code arts. 3071-3078. See Acts 2007, No. 138, § 1. Although the articles are new, they were not intended to change the law, but to merely reproduce the substance of the former articles and 19to clarify and reflect principles contained in the former articles and jurisprudence. See 2007 Official Revision Comments, arts. 3071-3078; City of Baton Rouge v. Douglas, 2007-1153, pp. 4-5 (La.App. 1 Cir. 2/8/08), 984 So.2d 746, 748-49. The Civil Code articles pertinent to the present matter are provided as follows:

Art. 3071. Compromise; definition
A compromise is a contract whereby the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship.
Art. 3072. Formal requirements; effects
A compromise shall be made in writing or recited in open court, in which case the recitation shall be susceptible of being transcribed from the record of the proceedings.
Art. 3076. Scope of the act
A compromise settles only those differences that the parties clearly intended to settle, including the necessary consequences of what they express.

Not only does the party seeking to nullify a settlement agreement bear the burden of proof but the law strongly favors compromise agreements between parties. Courts will not invalidate such settlements absent a strong showing that they violate good morals or the public interest because of error, bad faith, or fraud. City of Baton Rouge v. Douglas, p. 5, 984 So.2d at 749. A compromise agreement recited in open court and capable of transcription from the record will be treated as though it were a written contract, and each party acquires the right of judicially enforcing the performance of the agreement even though its substance may later be written in a more convenient form. Trahan v. Coca-Cola Bottling Company United, Inc., 2004-0100, p. 10 (La.3/2/05), 894 So.2d 1096, 1104.

In the matter sub judice, we find that the district court did not commit manifest error in finding that the parties reached a compromise settlement l10agreement in open court as pertains to the payment of fees to Susan Earnest in the Pipkin matter. Therefore, we affirm the judgment of the district court granting the Motion to Enforce Settlement.

Contracts are formed by the consent of the parties established through offer and acceptance. La. Civ.Code art. 1927. Thus, “before a district court can find the existence of a valid written compromise agreement, it must find an offer and acceptance.” Howard v. Louisiana Citizens Property Ins. Corp., p. 9, 65 So.3d 697.

A reading of the transcript of the hearing of May 26, 2009 reveals that the parties had clearly reached an agreement that as to the Pipkin and Babineaux cases, the amount owed to third party-attorneys would be taken “off the top,” and that the remaining legal fees would be divided into a percentage arrangement between Mr. Sileo and Allan Berger & Associates. The only uncertainty that was expressed at during the May 26, 2009 hearing pertained to possible cross-indemnity agreements between the parties in the event that other unknown cases arose in which a fee was owed to a third-party attorney.

As for the Pipkin fee, Mr. Berger did not know the precise percentage arrangement owed to Ms. Earnest on that day standing in court, but it was clear that all persons involved, including the district court, were in agreement that her fee would “come off the top” before the remaining funds would be divided between Mr. Sileo and the Berger firm. This was, as the district court stated, “an agreement, not a suggestion.” When seeking clarification, the district court assured appellant numerous times that the “off the top” agreement applied solely and specifically to the Babineaux and Pipkin cases.

|nAt the October 19, 2010 hearing, the district court asked the parties how the fee in the Babineaux matter was dispersed, and the Court was told that the fee owed to the third-party attorney in Babineaux was taken “off the top,” and then the remaining percentage was divided between the parties, i.e., “[t]he same way it was articulated in the transcript.”

Appellant argues on appeal that the language of the written agreement of August 28, 2009, particularly Exhibit B, shows that the parties agreed that Ms. Earnest would receive one-third of the percentage fee to the Berger firm after the division between himself and AB & A. We disagree. We see no contradiction between the written agreement and the May 26, 2009 agreement. But the evidence on record fully supports an “off the top” agreement as it pertains to the Pipkin matter solely by reviewing the transcript of May 26, 2009. La. Civ.Code art. 3072; Menard v. Sagrera, 2002-0924, p. 4 (La.App. 3 Cir. 2/5/03), 838 So.2d 934, 936.

In support of his exceptions filed in response to the Motion to Enforce Settlement, Mr. Sileo attached a letter dated September 6, 2000 in which Susan Earnest wrote to the Berger firm that “Pursuant to my conversation with Allan, it is my understanding that I will receive a referral fee of 33 and 1/3% ... on the above case. That is 33 and 1/3% Allan Berger and Associates total legal fee.” At the time of this letter, Ms. Earnest and Mr. Sileo were both employed by AB & A. When Ms. Earnest and Mr. Berger made this agreement, they clearly did not anticipate that ten years later, Mr. Sileo and the firm would become involved in a contentious dispute for legal fees that would reduce the one-third arrangement owed to Ms. Earnest through no fault of her own. The only fair and reasonable course of action, and to meet the true intent of the fee arrangement made between Ms. Earnest and Mr. Berger, is to provide Ms. Earnest her just due legal fee “off the top” exactly in |12the way the parties agreed to in the hearing of May 26, 2009. The Berger firm and Mr. Sileo, who both also performed legal work on the Pipkin matter, will split the remainder of the fee in accordance with their compromise settlement.

Conclusion

This Court finds that the agreement recited in court on May 26, 2009 constitutes a complete compromise settlement as to the distribution of legal fees owed to Susan Earnest in the Brenda L. Argiz-Pipkin matter. La. Civ.Code 3072. The parties, who were also present at the hearing and attorneys themselves, are considered by this Court to be sophisticated negotiators who clearly and amicably approved the “off the top” fee arrangement. Reynolds v. Paulson, 2003-1884, p. 8 (La.App. 4 Cir. 3/31/04), 871 So.2d 1215, 1220.

The record fully supports the compromise made between the parties, and the compromise does not frustrate the fee arrangement made between Ms. Earnest and the Berger firm on this case. The agreement was recorded in the court transcript, and we find no manifest error in the district court’s factual finding that a compromise agreement was reached as to the Pipkin fee at hearing of May 26, 2009. Because the arbitration provisions do not apply to the undisputed fees listed in Exhibit “B” of the parties written agreement, we find no merit in appellant’s remaining assignment of error. We find no error in the denial of Mr. Sileo’s exceptions. The judgment granting Allan Berger & Associate’s Motion to Enforce Settlement is affirmed.

11SDecree

The district court judgment granting the Motion to Enforce Settlement, thus requiring plaintiff, John D. Sileo, Jr., to release unto Susan Earnest the full sum of $81,777.69, plus legal interest, is affirmed.

AFFIRMED

      . When Ms. Pipkin retained AB & A to represent her, both Mr. Sileo and Ms. Earnest were members of the firm. According to the record, AB & A agreed to pay Susan Earnest one-third of all fees earned in the case. Towards a latter point in the case, Mr. Sileo left the Berger firm, and Ms. Pipkin signed a retainer contract with him. Though the settlement agreement allegedly states that all three principals, Mr. Sileo, Ms. Earnest, and AB & A, are entitled to a fee, Mr. Sileo placed the funds in an IOLTA trust account.


author: JAMES F. McKAY III, Judge.

text:
    STATE of Louisiana v. Gerard TILLMAN.
    No. 2010-KA-1717.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 28, 2011.

      Leon A. Cannizzaro, Jr., District Attorney of Orleans Parish, Matthew Caplan, Assistant District Attorney of Orleans Parish, New Orleans, LA, for State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for De-fendanVAppellant.
    (Court composed of Judge JAMES F. McKAY III, Judge MAX N. TOBIAS, JR., Judge DANIEL L. DYSART).
   JAMES F. McKAY III, Judge.

h STATEMENT OF CASE

On February 20, 2009, the State of Louisiana charged Gerard J. Tillman with one count of attempted second degree murder. At his March 10, 2009 arraignment, Mr. Tillman pled not guilty to the charge. On October 23, 2009, the court heard Mr. Tillman’s preliminary hearing and motions to suppress evidence and identification. At the conclusion of the hearing, the court found that sufficient probable cause existed to hold Mr. Tillman for the charge of attempted second degree murder. The court also denied the motion to suppress evidence because it did not find that any constitutional rights were violated and denied the motion to suppress identification because it did not find that the lineups were suggestive.

On April 22, 2010, a twelve-person jury found Mr. Tillman guilty of aggravated battery. Thereafter, on April 26, 2010, Mr. Tillman filed a post verdict judgment of acquittal, which the court denied. On that same date, the court sentenced Mr. Tillman to serve ten years at hard labor with credit for time served. However, a multiple offender bill was filed by the State, and Mr. Tillman pled | gguilty to the bill. The trial court vacated the ten-year sentence and resentenced Mr. Tillman to twelve years at hard labor with credit for time served as a second felony offender. It is from this ruling that Mr. Tillman appeals.

Mr. Louis Cook, the victim, testified that on October 7, 2008, the night of the shooting, he was walking down Annunciation Street with some friends when three individuals came from the side of a home, pulled guns on them, and began shooting. Mr. Cook testified that he ran but was eventually shot in the back and as a result was hospitalized. While still hospitalized, Mr. Cook was interviewed by Detective Armondo Asaro (Detective Asaro). Detective Asaro testified that Mr. Cook provided him the names of the suspects which were used to compose the photographic line-ups.

At the trial, detective Asaro testified that Mr. Cook provided him with the names of the perpetrators, “Javier Dam-peer and he gave me also Greedy (spelled phonetically), which was another subject. I knew Greedy to be in the area, to be Gerard Tillman.” Detective Asaro further stated: “You know with the nickname Greedy, that helped, I know Central City people that have been arrested before.” After this statement, Mr. Tillman’s counsel moved for a mistrial. The trial court subsequently offered to admonish the jury to disregard the comments; however, Mr. Tillman’s counsel stated: “[j]ust leave it alone, Judge, and then just please note my objection for the record.” Thereafter, the trial court denied the motion for a mistrial.

ERRORS PATENT

A review of the record reveals one patent error with respect to the appellant’s sentence.

IsThis patent error is that the sentence imposed by the trial court is illegally lenient. The defendant was initially sentenced to ten years at hard labor. After being adjudicated a second offender, the trial court vacated the original sentence and resentenced the defendant under the multiple offender statute to twelve years at hard labor. However, La. R.S. 15:529.1(G) provides that all sentences imposed under the statute are to be served without benefit of probation or suspension of sentence. However, Paragraph A of La. R.S. 15:301.1 provides that in instances where the statutory restrictions are not recited at sentencing, they are included in the sentence given, regardless of whether or not they are imposed by the sentencing court.

Furthermore, in State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, the Louisiana Supreme Court ruled that paragraph A of the statute self-activates the correction and eliminates the need to remand for a ministerial correction of an illegally lenient sentence, which may result from the failure of the sentencing court to impose punishment in conformity with that provided in the statute. Hence, this Court need take no action to correct the district court’s failure to specify that the defendant’s sentence be served without benefit of parole, probation, or suspension of sentence. The correction is statutorily effectuated. State v. Phillips, 2003-0304 (La.App. 4 Cir. 7/23/03), 853 So.2d 675.

DISCUSSION

ASSIGNMENT OF ERROR

Mr. Tillman argues that the trial court committed reversible error in denying the defendant’s motion for mistrial pursuant to La.C.Cr.P. art. 770. He asserts that based upon a statement made by Detective Asaro during testimony, “I know Central City people that have been arrested before,” that his motion for mistrial 14should have been granted. Mr. Tillman asserts that the reference was improper and argues that admonishment was not sufficient in this circumstance.

At the trial of this matter, the prosecutor questioned Detective Asaro regarding how he assembled the lineup. The relevant portion of the trial transcript provides:

Q. So Louis Cook gave you those names?
A. Yes. Yes.
Q. Before you showed him the lineup, he gave you—
A. Without his help I couldn’t have gotten these lineups.
Q. And so it must have been sometime before October the 10th that he gave you those names.
A. Yes.
Q. And when did he give you the names, over the phone?
A. I interviewed him at the hospital.
Q. The shooting took place on October 8th.
A. Right. But I did interview him at the hospital.
Q. That night?
A. Yes, later on that night, I believe so.
Q. Okay. So, and that’s how you were able to put together that lineup.
A. Correct. You know, with the nickname Greedy, that helped. I know Central City people that have been arrested before—

Prior to Detective Asaro completing his statement, Mr. Tillman’s counsel moved for a mistrial. The trial judge offered to admonish the jury pursuant to La.C.Cr.P. art. 771; however, Mr. Tillman’s counsel responded: “Just leave it 1 r,alone, Judge, and then just please note my objection for the record.” The trial court, outside of the presence of the jury, denied the motion for mistrial. At the close of trial, the trial court instructed the jury, prior to deliberations, that “[y]ou may not consider evidence which you were instructed to disregard or to which an objection was sustained.”

When a witness refers directly or indirectly to another crime committed or alleged to have been committed by the defendant, as to which evidence is not admissible, the defendant’s remedy is a request for an admonition or a mistrial pursuant to La.C.Cr.P. art. 771. The remark or comment must constitute an unambiguous reference to other crimes. State v. Lewis, 95-0769, p. 7 (La.App. 4 Cir. 1/10/97), 687 So.2d 1056, 1060. On request, the trial court shall admonish the jury to disregard such remark or comment. La.C.Cr.P. art. 771. Upon motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant of a fair trial. Id. The granting of a mistrial under La.C.Cr.P. art. 771 is at the discretion of the trial court and should be granted only where the prejudicial remarks of the witness make it impossible for the defendant to obtain a fair trial. State v. Smith, 418 So.2d 515, 522 (La.1982); State v. Allen, 94-1895, p. 9 (La.App. 4 Cir. 9/15/95), 661 So.2d 1078, 1085. Mistrial is a drastic remedy that is only authorized where substantial prejudice will otherwise result to the defendant. Id. The determination of whether prejudice has resulted lies within the sound discretion of the trial court. State v. Banks, 96-2227, p. 2 (La.4/18/97), 692 So.2d 1051, 1053. A trial court’s ruling on whether or not to grant a mistrial because of comments by a police officer referring to other crimes evidence should not be disturbed absent a clear abuse of discretion. State v. Nicholson, 96-2110, p. 13 (La.App. 4 Cir. 11/26/97), 703 So.2d 173, 180; State v. Manuel, 94-0087, 94-0088, p. 4 (La.App. 4 Cir. 11/30/94), 646 So.2d 489, 491. “Errors are harmless unless the reviewing court is thoroughly convinced that the remarks inflamed the jury and contributed to the verdict.” State v. Nicholson, supra, citing State v. Byrne, 483 So.2d 564 (La.1986).

Contrary to Mr. Tillman’s assertion, Detective Asaro’s statement “I know Central City people that have been arrested before” is not a reference to another crime committed or alleged to have been committed by Mr. Tillman. The court reasoned that the reference was not clearly a reference to the defendant. In State v. Adams, 07-0977 (La.App. 4 Cir. 1/23/08), 976 So.2d 757, 759, the officer mentioned that the defendant had a history of arrest warrants. In State v. Harris, 97-2903 (La.App. 4 Cir. 9/01/99), 742 So.2d 997, 1002, the detective made a reference to the defendant’s “Bureau of Identification number, which is assigned each time a person is arrested.” In neither of these cases was a mistrial granted. Therefore, it stands to reason that a mistrial is only warranted if the reference to another crime is unambiguous. See also, e.g., State v. Holmes, 02-2263 (La.App. 4 Cir. 2/26/03), 841 So.2d 80, 84. “Although Holmes contends that the identification of the rap sheet was a reference to other crimes, this Court has held that a generalized reference to criminal history file is not an ambiguous reference to other crimes.”; State v. Brown, 95-0755 (La.App. 1 Cir. 6/28/96), 677 So.2d 1057, 1067-1068 (Officer’s statement that “I use to work in the jail, and I knew Ricky [the defendant] from the jail” was not an unambiguous reference to another crime).

Based on the above jurisprudence the trial court did not abuse its discretion in denying the defendant’s motion for mistrial.

|7We must also note that the relevant statement ostensibly does not fall in line with the mandatory provisions for mistrial under La.C.Cr.P. art. 770, which provides in pertinent part:

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;

A police officer is not considered a court official within the meaning of La.C.Cr.P. art. 770. Thus, Detective Asaro cannot be considered a court official per the above noted article. Moreover, absent a showing of unresponsive answers of improper intent by the prosecutor, a mistrial is not warranted. Importantly, nothing in the transcript indicates that Detective Asaro was unresponsive or that the prosecutor solicited the remark made by Detective Asaro. See State v. Anderson, 02-273 (La.App. 5 Cir. 7/30/02), 824 So.2d 517 and State v. Thomas, 08-390 (La.App. 5 Cir. 1/27/09), 8 So.3d 80.

Detective Asaro’s remark was outside of the parameters of La.C.Cr.P. art. 770. The trial court offered to admonish the jury to disregard the comment pursuant to La.C.Cr.P. art. 771. However, counsel for Mr. Tillman declined to have the trial court admonish. Contrary to Mr. Tillman’s argument, the trial court did not abuse its discretion when it denied his motion for mistrial. Detective Asaro’s remarks were vague and did not vitiate the defendant’s constitutional right to obtain a fair trial. Therefore, this assignment of error is without merit.

CONCLUSION

^Accordingly, based upon the above and foregoing we affirm the defendant’s conviction.

AFFIRMED

      . In the same bill, the State charged two other defendants with attempted second degree murder. One of those defendants was also charged with aggravated battery. They are not parties to this appeal.


author: GREMILLION, Judge.

text:
    David O. BORDELON, et al. v. GRAVITY DRAINAGE DISTRICT NO. 4 OF WARD 3 OF CALCASIEU PARISH, et al.
    No. 10-1318.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.

      Steven Broussard, Randall E. Hart, Attorneys at Law, Lake Charles, LA, for Plaintiffs/Appellees, David 0. Bordelon, et al.
    Timothy George Schafer, Rachel S. Kellogg, Schafer & Schafer, New Orleans, LA, for Defendant/Appellant, American Alternative Insurance Corp.
    Robert E. Landry, Scofield, Gerard, Sin-gletary & Pohorelsky, Lake Charles, LA, Edwin Henry Byrd III, Pettiette, Armand, Dunkelman, Woodley, Byrd & Cromwell, Shreveport, LA, for Defendant/Appellant, Gravity Drainage District No. 4 of Ward 3 of Calcasieu Parish.
    Todd A. Townsley, Townsley Law Firm, Lake Charles, LA, for Plaintiffs/Appellees, Carl Thibodeaux, Janet Postell, J.B. Posted, Douglas Shearman, Claire Shearman, Karen Thibodeaux.
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

| ,The defendants, Gravity Drainage District No. 4 of Ward 3 of Calcasieu Parish (the district) and American Alternative Insurance Corporation, appeal the jury verdict in favor of the plaintiffs, 24 homeowners whose properties are located within the drainage district. These homes experienced flooding in the wake of Hurricane Rita in September 2005, and plaintiffs claimed that the planning and delayed implementation of measures intended to cope with the hurricane resulted in the flooding. A jury decided in favor of plaintiffs and awarded them $1,570,219.60. The judgment recognized that American Alternative’s liability was limited to its policy limits of $1 million. Plaintiffs have answered the appeal and asserted a number of errors. For the reasons that follow, we affirm.

FACTS

Hurricane Rita made landfall on Friday, September 24, 2005. It had been projected as either a category 4 or 5 hurricane. On September 20, 2005, Governor Kathleen Blanco declared a state of emergency in an area that included Calcasieu Parish. The employees of the district were allowed to evacuate on Thursday, September 23, in anticipation of the hurricane’s arrival. Among the district’s drainage works are a large-diameter pipe connecting Pithon Coulee to Griffith Coulee in Lake Charles. This pipe can be closed by a pipe gate. At Pithon Coulee, the district maintains a high-capacity pumping station that can be used to drain both Griffith and Pithon Coulees (when the gate to Griffith is open). That pumping station has both electric- and diesel-powered pumps. The diesel-powered pumps must be turned on manually.

In July 2005, officials from the district met with members of the Governor’s Office of Homeland Security and Emergency Preparedness (hereafter OEP) to discuss possible hurricane scenarios including evacuation points. The OEP did not 12deem any Calcasieu Parish evacuation sites sufficient to withstand the forces of a category 4 or 5 hurricane. In the past, personnel had weathered storms in one of the pump houses, which were stocked with food, water, and cots; however, these were deemed insufficient to withstand the force of even a category 3 storm.

The district board met on Thursday, September 23, and decided to allow the employees to evacuate with their families that afternoon. They instructed the employees to return after sustained winds dropped to 35 to 40 miles per hour, in accordance with OEP recommendations. Before they evacuated, the employees left the Pithon-Griffith gate open and placed the electric pumps in automatic mode. Most of the employees then evacuated to Opelousas, Ville Platte, and Lafayette, Louisiana. The emergency contingencies the district implemented were made after consultation with OEP officials but were never formulated into a written plan.

A mandatory evacuation was ordered for all points south of Interstate 10 in Lake Charles on Thursday. The area at issue was within that mandatory evacuation zone.

By the time Rita made landfall, it had weakened to a category 3 storm. However, it did cause wide-spread electrical service outages, including the Pithon Coulee pumping station, which the evidence indicates lost power at approximately 9:00 p.m. Friday. Accordingly, the electric pumps could no longer operate, and no one was manning the diesel pumps to turn them on.

Mr. Mike Whittier, the district’s supervisor since 1987, monitored television coverage of the storm from his evacuation site. Whittier determined from the live television feeds that conditions had not quieted to warrant placing district employees at risk by 11:00 a.m. Saturday.

On Saturday, many of the residents in the Pithon-Griffith area returned to their homes to find them above flood waters. However, many noticed that the hcoulee waters were rising. There was disagreement among the experts as to when the flooding of the plaintiffs’ homes occurred, but several of the homeowners, including those not party to this litigation, testified that their homes were not endangered by rising waters until as late as 3:00 p.m.

The district’s personnel returned to Lake Charles in the early hours of Sunday, September 26. They activated the pumps at 8:30 a.m. and the water had lowered to below flood stage by noon.

Plaintiffs filed their petition for damages against the district in September 2006 and alleged the district was negligent in failing to foresee the need to activate the pumps, in failing to evacuate personnel to a location “some minimum distance from Lake Charles,” failing to instruct employees to return immediately after conditions allowed, failing to provide key personnel with safe local shelter, failing to automate the diesel pumps, failing to keep the coulees properly dredged, and failing to train key personnel in other agencies in the operation of the systems in the event district employees were absent. The district answered and denied negligence. Additionally, the district pled the affirmative defenses of discretionary governmental immunity under La.R.S. 9:2798.1 and the specific immunity for emergency preparedness activities under the Louisiana Homeland Security and Emergency Assistance and Disaster Act, La.R.S. 29:721 et seq (the Act). The petition was later amended to add American Alternative as a defendant. Subsequent amendments added additional theories of liability on the district’s part.

American Alternative filed a motion for summary judgment in which it asserted that the district was immune under the immunity statutes mentioned previously. The district joined American Alternative’s motion. The trial court granted the motion as to the district’s response in terms of implementing its plan, including evacuating the personnel from Lake Charles, but denied judgment on 14whether the district should have automated its diesel pumps and whether it should have planned to evacuate personnel to a more immediate area and to return them to Lake Charles immediately after the storm had subsided.

The case proceeded to a jury trial. Following the conclusion of evidence and argument, the jury retired and returned with a verdict finding the district negligent in failing to have a plan in place prior to the storm in failing to automate its pumps. Both breaches were deemed by the jury to be causes in fact of the plaintiffs’ damages. This appeal ensued.

ASSIGNMENTS OF ERROR

The district assigns the following errors:

(1) It was error for the trial court to conclude that La. R.S. 29:735 immunity applied to claims regarding whether to evacuate, where to evacuate, when to return, and whether to obtain safe local shelter, but at the same time to conclude that such immunity was not applicable to a claim that defendant should have had a different plan not to evacuate, to return sooner, and to utilize local shelter. The court erred in denying defendant’s motion for directed verdict on these claims, as there is immunity for planning decisions, and if not, no evidence that another plan would have prevented the flooding of plaintiffs’ homes.
(2) The trial court erred in denying defendant’s motion for directed verdict on discretionary immunity regarding evacuation and return decisions as well as claims that defendant should have constructed an unmanned or automated pumping station.
(3) Even if immunity were not required as a matter of law at the close of the evidence and there was a factual issue regarding same, it was error for the trial court to fail to submit to the jury whether evacuation and return decisions, as well as claims that defendant should have constructed an unmanned or automated pumping station, were rooted in social or economic policy such that discretionary function immunity was applicable.
(4) The jury charge regarding negligence failed to provide a duty risk analysis or that fault had to be a “substantial” factor in causing the harm alleged.
(5) The trial court erred in allowing the plaintiffs’ expert, Dr. Philip Bedient, to express opinions concerning the abilities of the District’s pumps, after Dr. Be-dient admitted that he was not an expert in the field of pumping.
| fj(6) To the extent necessary, defendant also adopts the issues presented and assignments of error of the defendant American Alternative Insurance Company.

American Alternative specified the following errors:

1. The Trial Court erred in allowing the plaintiff to maintain a negligence claim directed toward the District’s evacuation planning, when it is clear that any claim regarding the decision to evacuate and/or the manner in which the evacuation was actually conducted are barred by La. R.S. 29:735.
2. The Jury’s finding that the District was negligent with respect to its evacuation plan is unsupported by the evidence and should be reversed.
3. The Trial Court erred in failing to apply discretionary function immunity to bar negligence claims directed toward asset allocation issues such as pump automation and/or the procurement of a dredging barge and evacuation planning
4. The trial court erred in allowing the plaintiffs’ expert, Dr. Philip Bedient to express opinions concerning the abilities of the District’s pumps, after Dr. Bedient admitted that he was not an expert in the field of pumping.

The plaintiffs answered the appeal and asserted that the trial court erred:

1. In granting the defendants’ motion for summary judgment because the district’s conduct did not take place while it was attempting to comply with the Act, and in precluding evidence that the district’s actions were willful, flagrant, outrageous, reckless, or otherwise excepted from immunity under the discretionary immunity statute.
2. In improperly refusing to allow evidence that the district has since automated its pumps after the district opened the door to allow such evidence during trial.
3. In refusing to allow them to “proffer into evidence” certain photographs necessary to impeach the testimony of a defense witness on the issue of the district’s failure to dredge the coulees.
4. In not finding the failure to dredge the coulees to be a breach of duty nor a cause in fact of plaintiffs’ damages.
5. In not allowing “the proffered examination of Mike Whittier into evidence.”
6. By allowing defendants to proffer the deposition transcript of Ivor van Heerden because defendants failed to follow proper procedure.
[ f;7. By allowing the district’s engineer, Walt Jessen, to testify after violating the rule of sequestration and violating an order entered pursuant to a motion in limine regarding events surrounding Hurricane Ike.

ANALYSIS

The Act immunizes from liability the State and its political subdivisions “engaged in any homeland security and emergency preparedness activities while complying with or attempting to comply with” the Act or with rules and regulations promulgated pursuant to the Act. La.R.S. 29:735(A)(1). “Emergency preparedness” is defined as “the mitigation of, preparation for, response to, and the recovery from emergencies or disasters.” La.R.S. 29:723(4). An “emergency” is an “actual or threatened condition which has been or may be created by a disaster,” or “[a]ny natural or man-made event which results in an interruption in the delivery of utility services ... and which affects the safety, health, or welfare of a Louisiana resident,” or “[a]ny instance in which a utility’s property is damaged and such damage creates a dangerous condition to the public,” or “[a]ny national or state emergency, including acts of terrorism or a congressional authorization or presidential declaration pursuant to the War Powers Resolution.” La.R.S. 29:723(3). Lastly,

“Disaster” means the result of a natural or man-made event which causes loss of life, injury, and property damage, including but not limited to natural disasters such as hurricane, tornado, storm, flood, high winds ... forest and marsh fires ... nuclear power plant incidents, hazardous materials incidents, oil spills, explosion, civil disturbances, public calamity, acts of terrorism, hostile military action, and other events related thereto.

La.R.S. 29:723(2).

The ordinary rules of statutory construction are altered in any discussion of statutes conferring civil immunity. Monteville v. Terrebonne Parish Consol. Gov't, 567 So.2d 1097 (La.1990). The statutes are strictly interpreted, and where there is |7any doubt about the meaning, courts adopt that interpretation which changes the law the least. Id. See also Rodriguez v. Louisiana Medical Mut. Ins. Co., 618 So.2d 390 (La.1993).

The Act was passed in 1993. Since Hurricanes Katrina and Rita struck Louisiana, it has seen much development in terms of construction and application as suits involving the damage those storms wrought have winded their way through the courts. These cases have all interpreted the Act in accordance with the principles set forth in Monteville, 567 So.2d 1097. Among the cases that have interpreted the Act’s grant of immunity is the unpublished decision of the Fifth Circuit Court of Appeal in Chicago Property Interests, L.L.C. v. Broussard, 08-1210 (La.App. 5 Cir. 3/6/09) (unpublished grant of writ), writ denied, 09-758 (La.5/22/09), 9 So.3d 150.

Anticipating the landfall of Hurricane Katrina, Jefferson Parish President Aaron Broussard ordered the evacuation of 226 pump operators. Those pump operators evacuated -with their pumps turned off. The following day, Katrina made landfall and widespread flooding engulfed large portions of Jefferson Parish. Chicago Property Interests, LLC and Zoé Aldigé filed a class action against Broussard, Jefferson Parish, and other defendants on behalf of all persons or entities residing in or owning property in Jefferson Parish who were damaged by flooding from Katrina.

The parish and co-defendant, Consolidated Drainage District No. 2, filed a motion for partial summary judgment asserting that they were immune from any liability for evacuating the pump operators and leaving the pumps off while the operators were evacuated. The plaintiffs then amended their petition to add claims based upon the negligent adoption in 1998 of a “doomsday policy” regarding | ^disaster response and for failing to properly educate key parish personnel on the provisions of the policy.

The motion was denied. The trial court reasoned that the grant of immunity was not “devoid of any temporal element.” Id. at p. 4. Defendants sought writs from this denial, and the fifth circuit reversed the trial court in part.

The fifth circuit held that the defendants were immune from liability arising from actions taken during the emergency, including evacuating the pump operators and leaving the pumps turned off. However, the court held that they were not immune for claims based upon their alleged failure “to properly draft, implement, distribute, and/or review the ‘doomsday policy,’ ” which had been adopted many years prior to the hurricane. Id at p. 7.

The trial court in the present case found this reasoning persuasive in reaching its decision on the motion for summary judgment filed by the district, and so do we.

The jury in the present matter found that the district breached its duty to the plaintiffs “in failing to have a plan in place prior to September 20, 2005” and “in failing to provide for the automatic operation of the Pithon Coulee pumps.” These acts predated Hurricane Rita; accordingly, the district is not immune under the Act.

However, this does not end the analysis, because, in addition to the Act, the district can claim immunity under La. R.S. 9:2798.1, which reads, in pertinent part:

B. Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and scope of their lawful powers and duties.
C. The provisions of Subsection B of this Section are not applicable:
(1) To acts or omissions which are not reasonably related to the legitimate governmental objective for which the policymaking or discretionary power exists; or
|9(2) To acts or omissions which constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.

Whether discretionary immunity would attach to the failure to plan for contingencies that arose during Hurricane Katrina was not addressed by the court in Chicago Property Interests. Perhaps the seminal pronouncement on discretionary immunity was issued by the Louisiana Supreme Court in Fowler v. Roberts, 556 So.2d 1 (La.1989) (on rehearing). In Fowler, the supreme court held that discretionary immunity did not shield the Department of Public Safety’s Office of Motor Vehicles for issuing a driver’s license to an epileptic whose condition was not controlled by medication and who subsequently suffered a seizure while operating a motor vehicle and caused a crash.

The court’s analysis noted that § 2798.1 was patterned after a similar exception from governmental liability contained in the Federal Tort Claims Act. See 28 U.S.C. § 2680(a). Under federal jurisprudence, a two-step inquiry is employed in determining whether the discretionary function exception applied: If a government employee had no choice but to adhere to a given course of conduct, he had no discretion, and the exception did not apply. Even if the employee had discretion, the court must then determine whether that discretion “is grounded in social, economic or political policy. If the action is not based on public policy, the government is liable for any negligence, because the exception insulates the government from liability only if the challenged action involves the permissible exercise of a policy judgment.” Fowler, 556 So.2d at 15.

We find that the very nature of the complaint regarding planning involves discretion on the district’s commissioners’ part. They were accused of negligence in failing to plan for the evacuation of employees to locations less remote than 1 inLafayette, Opelousas, and Ville Platte. Where employees are to evacuate is a function of the nature of the emergency. As previously noted, Rita was projected to make landfall as a category 4 or 5 storm. There is no question that these strengths exceeded the rating of any of the public building in Calcasieu Parish. The decision to place the lives of the district’s employees above concerns about the property in the district is clearly within the discretion of the district.

However, the jury also found the district negligent in failing to automate the diesel pumps. The parties stipulated that the cost of automating the pumps was approximately $40,000.00, that automating the pumps was technically feasible, and that the money was available to automate them. Automating the pumps was simply something the district had never considered.

Drainage districts are authorized by statute in Title 38 of the Louisiana Revised Statutes, Chapter 6. They are created by parish governing authorities or by petition of property owners. La.R.S. 38:1602, 1604. The purpose of a drainage district is to facilitate the drainage, protection, and reclamation of land within the district. La.R.S. 38:1638. The boards of commissioners of drainage districts are given broad powers to effect the drainage, protection, and reclamation. Id. In effecting the drainage, protection, and reclamation of the land in its district, “the drainage district shall make adequate provision for the drainage of all lands and property affected thereby.” Id.

In other words, the primary function of the drainage district is to provide for drainage. They are mandated to make adequate provision for drainage. In Fowler, the issue was whether it was discretionary for employees of the Department of Motor Vehicles to request a certificate from Roberts’ doctor indicating that he was capable of driving. The statute governing limitations on the licensure of disabled drivers, La.R.S. 32:403.2, provides that the department may waive the requirement |nin the case of a person applying for a renewal of his license. This, the department argued, made the furnishing of the certificate discretionary. However, the department routinely waived the certificate. There was no discretion on the employees’ part. Further, the department could not demonstrate that its failure to adopt a policy was grounded in economic, social, or political considerations.

In the present matter, the district can articulate no such considerations, either. Automating the pumps was a step the district had never considered. Despite the mandate that the district provide for adequate drainage, it failed to anticipate the contingency that when no one was available to turn on the pumps, flooding would ensue. Immunity does not attach.

Lastly, appellants argue that the plaintiffs’ hydrology expert, Dr. Phillip Be-dient, should not have been allowed to testify about the pumping capacity of the district’s pumps. Dr. Bedient made it clear that his testimony was based on the pumps’ manufacturer’s specifications about their capacity. Experts are allowed to testify based upon information even if that information is not admissible. La.Code Evid. art. 703. Whether an expert’s testimony may reveal such facts is determined by reference to Code of Evidence articles 403 and 705. Id. at comment (f). Under article 403, relevant “evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.” We find none of these considerations present. Dr. Bedient’s testimony about the pumping capacity was highly probative, and we find nothing unfairly prejudicial, confusing, or misleading in his testimony about that capacity.

Under La.Evid.Code art. 705, an expert in a civil case may testify in terms of opinion or inference and give his reasons without disclosing the facts or data upon which he bases it, unless he is required to by the court. If the expert fails to | ^disclose the factual underpinnings of his opinion on direct examination, he may still be compelled to on cross examination. Id. In the present case, Dr. Bedient did testify about the underpinnings of his opinions. The fact that he is not an expert in pumps does not disqualify him from testifying about pump capacity and the dynamics of fluids, a field in which Dr. Bedient has taught courses at the university level. This assignment of error is without merit.

Because we affirm the verdict in favor of plaintiffs/appellants, their assignments of error are rendered moot.

CONCLUSION

A failure to plan for an emergency is not an emergency preparedness activity under the statutes conferring immunity for such activities. However, the decision of where to evacuate personnel is a discretionary act that does consider economic, political, and social factors and is subject to discretionary immunity under Louisiana Revised Statute 9:2798.1. The failure of the district to plan for contingencies should there be no one available to turn on the backup diesel pumps is neither an emergency preparedness activity nor a discretionary function, as there were no economic, political, or social factors even considered.

The verdict of the jury and judgment of the trial court are affirmed. All costs of this appeal in the amount of $8,577.00 are taxed to Appellants, Gravity Drainage District No. 4 of Ward 3 of Calcasieu Parish and American Alternative Insurance Company.

AFFIRMED.


author: EZELL, Judge.

text:
    STATE of Louisiana v. Jeffery Neal DEVILLE.
    No. KA 11-88.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.

      Willard Trichel Armitage, Jr., James C. Downs, District Attorney, Ninth Judicial District Court, Alexandria, LA, for Plaintiff/Appellee, State of Louisiana.
    Michael Anderson, Alexandria, LA, for Defendant/Appellant, Jeffery Neal Deville.
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   EZELL, Judge.

| )On January 28, 2010, the Defendant, Jeffery Neal DeVille, was charged by bill of information with two counts of vehicular homicide, violations of La.R.S. 14:32.1. The Defendant entered a plea of guilty to the charges on July 20, 2010, and was sentenced to thirty years at hard labor on each count, the sentences to run concurrently to each other and consecutively to the sentence he was already serving. The first five years of the sentences were ordered to be served without benefit of probation, parole, or suspension of sentence. The Defendant’s motion to reconsider sentence was denied after a hearing on October 25, 2010.

The Defendant is now before this court on appeal, asserting that his sentences are excessive. For the following reasons, we remand this matter back to the trial court for resentencing of Defendant on each conviction of vehicular homicide due to the illegally lenient sentences given on those convictions.

FACTS

The facts as established in a written stipulation between the parties reflect that on September 30, 2009, the Defendant was driving his vehicle southbound on U.S. 167 when he hit the guardrail and then crossed the median and struck a vehicle head on, killing the driver, a sixty-year-old woman, and her passenger, a sixty-four-year-old man. Toxicology reports indicate that at the time of the accident, the Defendant was driving under the influence of cariso-prodol, meprobamate, alprazolam, clona-zepam, and cocaine benzoylecgonine.

EXCESSIVE SENTENCE

In his sole assignment of error, the Defendant argues that his thirty-year concurrent sentences, ordered to run consecutively to any other sentences, are excessive.

In State v. Brandenburg, 06-1158, p. 28 (La.App. 3 Cir. 2/7/07), 949 So.2d 625, 644, writ denied, 07-538, 07-614 (La.10/26/07), 966 So.2d 571, 573, this court stated:

The trial court has wide discretion in imposing a sentence, and a sentence imposed within the statutory limits will not be deemed constitutionally excessive absent a |2manifest abuse of discretion. State v. Evans, 97-504 (La.App. 3 Cir. 10/29/97); 702 So.2d 1148, writ denied, 97-2979 (La.4/3/98); 717 So.2d 231. This court, in State v. Dubroc, 99-730, p. 22 (La.App. 3 Cir. 12/15/99); 755 So.2d 297, 311, noted:
The relevant question on review of a sentence is whether the trial court abused its broad sentencing discretion and not whether the sentence imposed may appear harsh or whether another sentence might be more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). To constitute an excessive sentence, this court must find the penalty imposed is 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, therefore, it is nothing more than needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court is given wide discretion in imposing a sentence, and a sentence imposed within statutory limits will not be deemed excessive in the absence of manifest abuse of discretion. State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96); 670 So.2d 713.
State v. Boudreaux, 00-1467, p. 12 (La.App. 3 Cir. 4/4/01), 782 So.2d 1194, 1201, writ denied, 01-1369 (La.3/28/02), 812 So.2d 645 (quoting State v. Dubroc, 99-730, p. 22 (La.App. 3 Cir. 12/15/99), 755 So.2d 297, 311). “As a general rule, maximum sentences are appropriate in cases involving the most serious violation of the offense and the worst type of offender.” State v. Hall, 35,151, p. 4 (La.App. 2 Cir. 9/26/01), 796 So.2d 164, 169.

Pursuant to La.R.S. 14:32.1(B), the sentencing range for vehicular homicide is five to thirty years, with or without hard labor, and with at least five years to be served without benefit of probation, parole, or suspension of sentence if previously convicted of driving while intoxicated. As such, the Defendant received the maximum possible prison term on each count, but the minimum number of years without benefit of probation, parole, or suspension of sentence. The trial court, however, did not impose the mandated fine of $2,000.00 to $15,000.00. Additionally, the Defendant received concurrent sentences, significantly reducing his total sentence.

At sentencing, the Defendant stated that he was forty-nine years old, divorced with two girls, ages eighteen and twenty-one, and completed twelfth grade. His mother lived 13next door to him. The Defendant, a contract welder, was between jobs at the time of his arrest.

Next, the trial court confirmed that the Defendant was previously convicted of driving while intoxicated in 1988. The Defendant also had prior convictions for possession of controlled dangerous substances, schedules II, III, and IV, on June 22, 2007, and he was on probation at the time of the instant offense. The trial court also considered the stipulation between the parties regarding the facts of the case, specifically the pharmacology report of Dr. William J. George. In mitigation, the Defendant stressed he did not contemplate that his criminal conduct would cause or threaten serious harm and his criminal conduct was the result of circumstances unlikely to reoccur. The Defendant also asserted that he was likely to respond affirmatively to probationary treatment and imprisonment would entail excessive hardship to himself or his dependents.

The Defendant’s brother, Jerry Deville, testified that they helped out their eighty-one-year-old mother who depends on them for physical assistance and some financial assistance. Jerry added that from the time the Defendant was eighteen years old, he had broken a number of bones, including a leg, both arms, and he sustained a crushed pelvis. According to Jerry, the Defendant had been on pain medication all of his life. Lastly, Jerry stated that the Defendant was not on disability, however, and worked to support himself.

The trial court found that there were no aggravating or mitigating circumstances. In its reasons for ruling, the trial court stated:

Mr. Deville, when this incident happened, this was not an accident, you were under the influence when this incident occurred of four different drugs. One of them, you were twice the therapeutic dose of Carisoprodol C-a-r-I-s-op-r-o-d-o-1. You were twice the therapeutic dose. You weren’t under the in-fluenee of four, you were under the influence of five at the time this occurred. That’s not an accident, sir. When people do that, things happen. We know when people are drunk and driving down the road and they run into someone, that’s not an accident, we know that that’s going to happen, sir. So, your — I hope that you’ve learned something about what you’ve caused — you caused the death of Ms. Fry, Mr. Tyner, you’ve heard from Trevor Fry about his mother, raising him and those three children, so that they could be better people, and you have taken from her, the joy of what we would call her golden years. She worked hard to get to where she 14was at sixty, to be able to enjoy the rest of her life. You’ve taken that from her because of operating while under the influence of a controlled dangerous substance, five of them, while you were impaired.
So, based upon the statements — well, the information that we’ve received about your, your biographical information, the factual basis, the sentencing guidelines, that we’ve gone over, the fact that you were on probation for Possession of CDS II, III and IV, and that you have a previous conviction in 1988 from the Ninth JDC for DWI, and the fact that you were under the influence of those five drugs at the time of the incident, the sentence of the Court on each of these counts is that you’re to serve 30 years at hard labor, with the Louisiana Department of Corrections.

In his motion to reconsider sentence, the Defendant stressed that he voluntarily entered guilty pleas to the charges, fully accepting responsibility for his conduct. Considering the facts, circumstances, and mitigating factors, as well as the nature of the crime, his nature and background, and sentences imposed for similar crimes by the same court and other courts, the Defendant maintained that his sentences were excessive. The Defendant then provided a list of seven cases since 1999 involving vehicular homicide in the Ninth Judicial District Court which he believed demonstrated that his sentences were more than twice the highest sentence previously imposed during the last ten years.

At the hearing on the Defendant’s motion to reconsider sentence, the Defendant introduced certified copies of the minutes from the cases cited in his motion. In response, the trial court declared that the Defendant’s list of cases was not exclusive and that there had been twenty-five cases since 2000. Also, with regard to the cases cited by the Defendant, the trial court stated that it had no knowledge of the specific facts of the cases upon which it could refer and compare the instant case. The trial court opined, however, that the facts in State v. LeBlanc, 09-1355 (La.7/6/10), 41 So.3d 1168, were similar to those in the instant case and supported the sentences imposed in the instant case. In LeBlanc, the supreme court reinstated the defendant’s thirty-year sentence for vehicular homicide which was found to be excessive and vacated by this court on appeal in State v. LeBlanc, 08-1533 (La.App. 3 Cir. 6/10/09), 12 So.3d 1125.

In its reasons for sentencing in LeBlanc, the trial court acknowledged that the defendant was a first-time offender without any prior record, and she was the mother of |fitwo adolescent boys who depended upon her for guidance and support. The trial court also found, however, that because of her addiction to drugs, the defendant posed an undue risk of committing other crimes if given a suspended sentence and placed on probation. Additionally, the defendant knowingly created a risk of death or great bodily harm to more than one person; killing one person and injuring three other members of the deceased victim’s family when she got in a car with a cocktail of drugs in her system, including, but not limited to, methadone, Xanax, Lor-tab and was ultimately chased down by the police. She had also been using cocaine heavily for a few days prior to the accident, and cocaine and marijuana were found in her car. As such, the trial court concluded that the defendant’s actions showed a reckless disregard for her own life and of the lives of others. The trial court limited the defendant’s parole eligibility for three years, the mandatory minimum term.

In vacating the defendant’s penalty, this court opined that the defendant was not one of the worst offenders because her involvement in drugs had begun only in the early 2000s after she suffered her own injuries in either a fall from steps or in a car accident. This court also found that “the trial court did not appear to consider Defendant’s health problems and continuing substance abuse as mitigating factors but rather ignored the cause of her substance abuse and her attempts to get help for the problem.” LeBlanc, 12 So.3d at 1134. This court then concluded that “[i]n cases where the offenders were guilty of driving intoxicated and causing accidents in which deaths resulted, and who were either first-time felony offenders or whose criminal history was minor, the sentences tended to be only one-half to three-quarters of the maximum sentences.” Id.

On writs, the supreme court referred to Judge Amy’s dissenting opinion on appeal wherein he noted that the defendant was under the influence of illegal controlled substances as well as prescription drugs at the time of the offense, leading him to “ ‘differentiate the criminal aspect of the defendant’s behavior from cases wherein the maximum sentence was found inappropriate for vehicular homicide defendants with elevated blood alcohol levels.’ ” LeBlanc, 41 So.3d at 1172 (quoting LeBlanc, 12 So.3d at 1135). In light of the trial court’s consideration of the defendant’s flight from the scene and subsequent police pursuit, demonstrating a reckless disregard for life, Judge Amy found no abuse of discretion in the trial court’s imposition of the maximum, hard labor sentence.

The supreme court then addressed the legislature’s continuing reassessment of vehicular homicide and its reasons for upholding the maximum sentence:

When the legislature first enacted the crime of vehicular homicide, 1983 La. Acts 635, the penalty it provided, a maximum of five years imprisonment, with or without hard labor, made the offense the equivalent of negligent homicide, a crime long punished by the same maximum sentence. La. R.S. 14:32. Within that range, maximum sentences of five years imprisonment were not uncommon for vehicular homicide, whether charged under La. R.S. 14:32 or La. R.S. 14:32.1. See, e.g., State v. Pelt, 448 So.2d 1294 (La.1984); State v. Daranda, 398 So.2d 1053 (La.1981); State v. Wilcoxon, 26,126 (La.App. 2nd Cir. 6/22/94), 639 So.2d 385, writ denied, 94-1961 (La.12/16/94), 648 So.2d 386; State v. Wry, 591 So.2d 774 (La.App. 2nd Cir.1991); State v. Yates, 574 So.2d 566 (La.App. 3rd Cir.1991), writ denied, 578 So.2d 131 (La.1991); State v. Rock, 571 So.2d 908 (La.App. 5th Cir.1990), writ denied, 577 So.2d 49 (La.1991); State v. Williams, 546 So.2d 494 (La.App. 4th Cir.1989), writ denied, 553 So.2d 470 (La.1989).
Over the years, the legislature has steadily increased punishment for the crime, raising the maximum sentence to 15 years imprisonment in 1989 La. Acts 584, then to 20 years imprisonment, with or without hard labor, in 1999 La. Acts 1103, and thereafter, to its present maximum of 30 years imprisonment with or without hard labor. 2004 La. Acts 750. The legislature has since increased the mandatory minimum term of imprisonment from two to five years and increased the minimum term of parole disability from one to three years. 2006 La. Acts 294. The changes reflect the growing awareness in this state and elsewhere of the carnage caused by intoxicated drivers on the open road. Cf. Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 451, 110 S.Ct. 2481, 2485, 110 L.Ed.2d 412 (1990)(“No one can seriously dispute the magnitude of the drunken driving problem or the States’ interest in eradicating it. Media reports of alcohol-related death and mutilation on the Nation’s roads are legion.”).
The broader sentencing ranges provided for the offense over the years have provided trial courts with increased opportunities to exercise their discretion in individualizing punishment to the particular defendant and the particular circumstances of the case, within the general parameter, as recognized in the present case by both the trial court and court of appeal, that sentences at or near the maximum should ordinarily apply only to the most blameworthy offenders committing the most serious violations of the described offense. While comparisons with other similar cases “is useful in itself and sets the stage,” [State v.] Telsee, 425 So.2d [1251 (La.1983) ] at 1254, the focus of sentence review remains on the character and propensities of the offender and the circumstances of the offense. Id.
|7We agree with Judge Amy that because the circumstances of the present case so clearly demonstrate why the legislature has steadily increased punishment for the crime of vehicular homicide, the decision of where to place defendant’s conduct on that broad sentencing continuum fell within the discretion of the trial court. It clearly appears from the record of sentencing that in determining the length of sentence, the trial court took into account the possibilities for early release on parole. The court specifically noted that because La. R.S. 14:32.1 requires that the offender serve at least three years imprisonment without benefit of parole, probation, or suspension of sentence, defendant would not be eligible for intensive incarceration and intensive parole supervision as a matter of R.S. 15:574.4.1. However, by imposing only the mandatory minimum three-year term of parole disability, although La. R.S. 14:32.1 permits a court to deny parole eligibility altogether, the court made possible for defendant to secure release on parole after serving one-third of her term, or 10 years at hard labor. R.S. 15:574.4(A). She also remains eligible to earn early release (as if on parole) on good time credits after serving 15 years of her sentence. La. R.S. 15:571.3(B)(1). The presentence report underscored these opportunities when, after recommending a maximum sentence, it reminded the court that “with the possibility of parole release, and guaranteed Good Time Release, the maximum thirty (30) year sentence is actually a fifteen (15) year sentence at best.”
The availability of early release options is generally a relevant consideration in review of sentences for exces-siveness. State v. Green, 418 So.2d 609, 616 (La.1982); cf. Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978) (“A variety of flexible techniques-probation, parole, work furloughs, to name a few-and various postconviction remedies may be available to modify an initial sentence of confinement in noncapital eases.”). In the present case the availability of early release appears central to a determination that defendant’s sentence appropriately serves the sentencing goals of deterrence, retribution and rehabilitation. Cf. Ewing v. California, 538 U.S. 11, 25, 123 S.Ct. 1179, 1187, 155 L.Ed.2d 108 (2003) (“A sentence can have a variety of justifications, such as incapacitation, deterrence, retribution, or rehabilitation.”) (citation omitted). Defendant’s sentence will require her to serve a substantial term of imprisonment at hard labor commensurate with the seriousness of her crime which resulted in the death of another human being. In this respect, the trial court did not err in declining to consider defendant’s drug addiction as a circumstance militating for a lesser term of imprisonment because it encompassed not only the legal drugs prescribed to her by Dr. Khorsandi, which she clearly abused, but also the illegal controlled substances she had acquired from other sources and also abused during her self-confessed days-long cocaine binge before she plowed into the Hardy family vehicle. By defendant’s own admission during the presentence investigation, her longstanding abuse of legal and illegal drugs had been punctuated by only a few, half-hearted attempts to receive treatment. Nor did defendant’s guilty pleas to vehicular homicide and negligent vehicular injuring necessarily reflect an acknowledgment of the direct correlation between her drug abuse and the death of Mrs. Hardy or recognition of her own moral culpability. Defendant reaped considerable benefit from her plea bargain with the state, which reduced her sentencing exposure by nearly 20 years, and it was scarcely a reassuring sign of her potential for rehabilitation that in speaking to the probation officer after she entered her guilty pleas defendant attributed the fatal accident not to the | ¿‘cocktail” of drugs in her system but to a fight with her cocaine dealer who believed defendant had stolen some of her possessions.
At the same time, defendant’s sentence also affords her incentives for rehabilitation within the prison system to take advantage of early release on parole. Even then, she will remain subject to continuing state supervision for the unexpired term of her sentence, La. R.S. 15:574.6, as a means of minimizing the risk that she may resume her abuse of legal and illegal drugs and once more pose a serious threat to social order. Given the existence of ameliorative alternatives and the extreme circumstances surrounding commission of the crime, we cannot agree with the court of appeal majority that the sentence imposed by the trial court, although the maximum penalty for the offense, “makes no measurable contribution to acceptable goals of punishment and is nothing more than the purposeless imposition of pain and suffering and is grossly out of proportion to the severity of the crime.” State v. Dorthey, 623 So.2d 1276, 1280 (La.1993) (internal quotation marks and citation omitted).

Id. at 1173-75.

In the instant case, the Defendant correctly asserts that he will be required to serve at least half of his thirty-year sentence due to his prior felony conviction, five more years than the defendant in LeBlanc. La.R.S. 15:574.4(A)(1). However, as in LeBlanc, the trial court imposed only the mandatory minimum five-year term of parole disability, allowing for the possibility of release on parole after serving one-half of his term or fifteen years. La.R.S. 15:574.4(A). As such, in light of LeBlanc, we find that the trial court did not err in refusing to consider in mitigation the Defendant’s substance abuse. The Defendant will be required to serve a substantial prison term commensurate with the seriousness of the offense, which resulted in the death of two people. Also considering the reduction in total sentencing exposure as the result of concurrent sentences and the Defendant’s prior criminal history of illegal drug possession, we find that the Defendant’s sentences are not excessive.

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 there is an error patent concerning the Defendant’s sentences.

The Defendant’s sentences for vehicular homicide are illegally lenient. This court may recognize an illegally lenient sentence on its own. La.Code Crim.P. Art. 882

1¡¡First, the trial court failed to impose a mandatory fine. The sentencing provision for vehicular homicide, La.R.S. 14:32.1(B), that was in effect when the offense was committed requires the imposition of a fine of not less than $2,000.00 nor more than $15,000.00, which was not imposed in this case. This court has recognized the trial court’s failure to impose a mandatory fine as an error patent and has remanded the cases for rehearing. State v. Major, 03-249 (La.App. 3 Cir. 3/2/05), 898 So.2d 548, writ denied, 05-1716 (La.2/10/06), 924 So.2d 161; State v. Davis, 05-1629 (La.App. 3 Cir. 5/3/06), 929 So.2d 841.

Additionally, the sentencing provision also requires the court to order participation in a court-approved substance abuse program, which was not imposed in this case. This court has also recognized that the trial court’s failure to order a defendant to participate in a court-approved substance abuse program rendered the sentence illegally lenient. State v. Kotrla, 08-364 (LaApp. 3 Cir. 11/5/08), 996 So.2d 1224.

Since the trial court is given discretion in assessing the amount of the fine imposed under La.R.S. 14:32.1, we remand this case for resentencing and the ordering of the Defendant to participate in a court-approved substance abuse program as outlined in this opinion. See State v. Norris, 36,614 (La.App. 2 Cir. 1/29/03), 837 So.2d 723, writ denied, 03-982 (La.11/7/03), 857 So.2d 518.

Next, the minutes of sentencing are in need of correction. The sentencing transcript indicates the court imposed a sentence of thirty years at hard labor with the first five years to be served without benefit of probation, parole, or suspension of sentence on each count to run concurrently with each other and consecutive to any other sentence the Defendant is presently serving. The sentencing minutes do not accurately reflect the sentence imposed by the trial court:

Court sentenced accused for HOMICIDE, VEHICULAR. HOMICIDE, VEHICULAR. Court sentenced accused to be committed to the Louisiana Department of Corrections. Accused to serve 030 Year(s). Sentence is to be served at Hard Labor. Sentence is to run concurrent.... The first five years are to be without benefit of probation, parole or suspension of sentence.... Sentence is to run consecutively with any other sentence presently serving.

I m“[I]t is well settled that when the minutes and the transcript conflict, the transcript prevails.” State v. Wommack, 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied, 00-2051 (La.9/21/01), 797 So.2d 62. Thus, the trial court is instructed to amend the minutes of sentencing to correctly reflect the sentences imposed by the trial court.

SENTENCE AFFIRMED IN PART; REMANDED FOR PARTIAL RESEN-TENCING AND AMENDMENT TO CORRECT MINUTES.