author: KEATY, Judge.

text:
    Terry RIDEAUX v. KOHL’S DEPARTMENT STORES, INC.
    No. 11-914.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 7, 2011.

      Marcus Zimmerman, Attorney at Law, Lake Charles, LA, for Plaintiff/Appellee, Terry Rideaux.
    Antonio Le Mon, Attorney at Law, Cov-ington, LA, for Defendant/Appellant, Kohl’s Department Stores, Inc.
    Court composed of OSWALD A. DECUIR, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

11 Kohl’s Department Stores, Inc. (Kohl’s), appeals a judgment rendered by the workers’ compensation judge (WCJ) in favor of its former employee, Terry Ri-deaux (Rideaux). Rideaux answers the appeal. For the following reasons, we amend the judgment, affirm as amended, and award Rideaux $3,500.00 in attorney fees for work done on this appeal.

FACTS AND PROCEDURAL HISTORY

Rideaux filed a 1008 Disputed Claim for Compensation (1008) against Kohl’s on June 14, 2010, regarding an injury she suffered to her right arm on September 7, 2009. She alleged that she was working in the warehouse moving boxes and hanging clothes when her right arm “popped.” According to the 1008, Kohl’s denied her claim and had not paid her any wage benefits nor authorized any medical treatment for her injuries. Rideaux sought indemnity and medical benefits, treatment by her choice of physician, penalties, and attorney fees.

Kohl’s answered Rideaux’s claim, denying that she had suffered a compensable accident and claiming that she had misrepresented her prior medical history. It later filed a motion for summary judgment seeking to have Rideaux’s claim dismissed based on its contention that she did not suffer an “accident” at work, within the meaning of the La.R.S. 23:1021(1), and, thus, it owed her no workers’ compensation benefits. After a hearing, the WCJ denied the motion, finding that a genuine issue of material fact remained.

The matter was tried on February 23, 2011, and taken under advisement. Oral reasons for judgment were rendered on April 25, 2011. Written judgment was rendered in the substance of the oral reasons on May 3, 2011, as follows: 1) Ri-deaux suffered a compensable work accident on or about September 2, 2009; 2) Rideaux is entitled to and Kohl’s is responsible for paying temporary total |2disability (TTD) benefits from October 13, 2009; 3) Rideaux is entitled to and Kohl’s is responsible for all reasonable and necessary medical benefits, to include treatment by claimant’s choice of physician and payment of any outstanding medical expenses related to the work accident; 4) Kohl’s did not reasonably controvert Rideaux’s claims for benefits entitling her to an award of $4,000.00 in penalties as well as attorney fees in the amount of $14,500.00; and 5) Kohl’s is liable for all costs and for judicial interest on the awards made in Rideaux’s favor herein.

Kohl’s now appeals, asserting that the WCJ committed manifest error: 1) in finding that Rideaux met her burden of proving an “accident” as defined by the Louisiana Workers’ Compensation Act (LWCA); 2) in finding that Rideaux met her burden of proving by a preponderance of the evidence that she sustained an accident while in the course and scope of her employment with Kohl’s; 3) by awarding Rideaux disability benefits without any evidence to support any disability to justify such award; 4) by finding that Kohl’s failed to reasonably controvert the alleged work accident and awarding Rideaux attorney fees and penalties; and 5) in awarding Rideaux $14,500.00 in attorney fees without her having submitted any evidence to support such an award. Rideaux answers the appeal to request an award of additional attorney fees for the work done on this appeal.

DISCUSSION

We recently discussed the standard of review to be employed in workers’ compensation cases, noting:

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Smith v. Louisiana Dep’t of Corrections, 93-1305 (La.2/28/94); 633 So.2d 129. In applying the manifest error standard, the appellate court |smust determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Stobart v. State, 617 So.2d 880 (La.1993). Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Id. Thus, “if the [factfinder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).
“The determination of coverage is a subjective one in that each case must be decided from all of its particular facts.” Jackson v. Am. Ins. Co., 404 So.2d 218, 220 (La.1981). This court has held that, in light of that standard of review, “great deference is accorded to the [workers’ compensation judge’s] factual findings and reasonable evaluations of credibility.” Cent. Lumber Co. v. Duhon, 03-620, p. 3 (La.App. 3 Cir. 11/12/03), 860 So.2d 591, 593, writ denied, 04-315 (La.4/2/04), 869 So.2d 880 (quoting Garner v. Sheats & Frazier, 95-39, p. 7 (La.App. 3 Cir. 7/5/95), 663 So.2d 57, 61).

Green v. Nat’l Oilwell Varco, 10-1041, pp. 3-4 (La.App. 3 Cir. 4/27/11), 63 So.3d 354, 357-58 (quoting Foster v. Rabalais Masonry, Inc., 01-1394, pp. 2-3 (La.App. 3 Cir. 3/6/02), 811 So.2d 1160, 1162, writ denied, 02-1164 (La.6/14/02), 818 So.2d 784).

Rideaux testified that she was fifty-five years old at the time of trial. After recently relocating from Houston, Texas, to Louisiana to take care of her aging father, she was hired by Kohl’s in August of 2009 to work in a new store it was opening in Lake Charles. She worked part time, making $7.50 an hour, and was assigned to the jewelry department. She reported to work early on the morning of September 7, 2009, and was told that she needed to work in the warehouse. Her duties that day entailed removing boxes from a fast-moving conveyor belt, opening the boxes with a box cutter, removing garments from the boxes, and hanging the garments on six-foot tall rolling racks. Rideaux, who is five feet tall, had to stand on her tip toes in order to hang the clothes on the top rack.

14Rideaux testified that she worked nonstop in the warehouse for approximately five hours, during which time she continuously felt stress and tightening in her right shoulder but, nonetheless, continued working. After completing her work in the warehouse, she did not feel well, so she sat on the floor until she was told to relocate to the jewelry department. Upon returning home, she was attempting to lift her shirt off over her head to take a shower when her right shoulder “popped.” Rideaux had a previously scheduled appointment the next day with her gynecologist, Dr. Gisele McKinney of the Southwest Louisiana Center for Health Services (SWLA clinic), for an unrelated matter. During the visit, Rideaux complained to Dr. McKinney of her right shoulder pain and told her about having worked in the warehouse the day before. Dr. McKinney requested another physician with whom she worked, Dr. Lesly Varghese, a board certified family practitioner, to examine Rideaux. According to Rideaux, Dr. Varghese recommended that she undergo an MRI “due to the knot” on her right shoulder.

On September 25, 2009, Rideaux reported her injury to her supervisor, Betty Scott, who directed her to speak to Robert Davis, the store’s manager. She then spoke with Mr. Davis who gave her some workers’ compensation documents to complete. She completed the paperwork in Mr. Davis’ office and returned to work. Because the pain in her right shoulder continued to get worse with activity, she stopped working at Kohl’s on October 27, 2009, when she could no longer perform her job. She has not worked since that time.

Rideaux continued to seek treatment at the SWLA clinic. An MRI of her right shoulder performed on October 29, 2009, at LSU University Medical Center (UMC) in Lafayette, revealed that she had minimal tendonitis of the supraspinatus Umuscle tendon and degenerative changes in her acromioclavicular joint. There is a letter in Rideaux’s medical records from Dr. Hilma Green, an internist in the SWLA clinic, dated May 21, 2010, stating that Rideaux was temporarily disabled from working due to her September 2009 shoulder injury. She received a cortisone injection in March of 2010, from Dr. Mark Landry at UMC, which provided relief for approximately two months, but her pain worsened when the shot wore off.

Following a June 15, 2010 visit, Dr. McKinney charted that Rideaux’s right shoulder pain was increasing in severity and causing neck pain and weakness and paresthesia in her right forearm. According to Dr. McKinney’s notes, Rideaux was taking anti-inflammatory medication to treat chronic inflammation of her shoulder, and she was awaiting surgery to correct the defect. At a July 6, 2010 visit, Dr. McKinney noted that Rideaux’s right shoulder pain had increased in severity and that surgery had been discussed, but it could not be performed while the inflammation was still elevated. Rideaux then saw Dr. Anand Roy, an internist from Lake Charles, who referred her to Dr. Brett Cascio, a sports medicine physician. After examining Rideaux on November 11, 2010, Dr. Cascio noted Rideaux’s complaint of her right shoulder pain waking her up at night. He was of the impression that she suffered from tendonitis of her right rotator cuff and right bicep. He gave Rideaux a steroid injection which, according to Rideaux, provided her with “90% pain relief.”

As to her current condition, Rideaux testified that her whole life has changed and that her right shoulder is “still not right.” She does not sleep well, and when she is able to sleep, she is awakened by pain. There is still a “knot” in her right 1 nshoulder, and she has diminished strength in her right hand. She can no longer raise her right hand over her head, and she must now take showers instead of baths.

According to Rideaux, Kohl’s never paid her any wage benefits, never authorized any medical treatment, never offered her a job with modified duties, and never offered her vocational rehabilitation since her 2009 work accident.

Betty Scott, an assistant store manager and Rideaux’s immediate supervisor when she worked for Kohl’s, confirmed that Ri-deaux reported the accident to her on September 25, 2009, telling her that she hurt her arm at home and heard her arm pop before taking a shower. She immediately sent Rideaux to speak with Mr. Davis to fill out an accident report. The accident report stated that Rideaux was cleaning shelves when she heard her right arm make a popping sound and that she had sought treatment at a local doctor’s office. After reading the accident report, Ms. Scott told Mr. Davis that Rideaux related a different version of the accident to her, instead telling Ms. Scott that she hurt her arm and heard her arm pop at home.

Ms. Scott testified that after Rideaux’s accident, Kohl’s offered her a position as a full-time jewelry supervisor. Rideaux accepted the position but resigned after a week. With regard to Rideaux returning to Kohl’s to work as a part-time sales associate, Ms. Scott acknowledged that Ri-deaux would have to repeatedly bend and stretch her arm to stock the jewelry cases but stated that Rideaux could have gotten another associate to help her if she was not capable of performing her duties because Kohl’s “whole structure is based on teamwork.”

| tPersonal Injury by Accident

A worker bringing a compensation action against his employer bears the burden of proving, as a threshold requirement, that he suffered “personal injury by accident arising out of and in the course of his employment.” La.R.S. 23:1031(A); Bruno v. Harbert Int'l Inc., 593 So.2d 357 (La.1992). The word “accident” as used in La.R.S. 23:1031 is defined as “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” La. R.S. 23:1021(1).

A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses or friends. Corroboration may also be provided by medical evidence.
In determining whether the worker has discharged his or her burden of proof, the trial court should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent “circumstances casting suspicion on the reliability of this testimony.” West [v. Bayou Vista Manor, Inc.], 371 So.2d [1146, 1147 (La.1979);] Holiday v. Borden Chemical, 508 So.2d 1381, 1383 (La.1987).

Bruno, 593 So.2d at 361 (citations omitted). The determination of whether an injury occurred in the course and scope of one’s employment “is a mixed question of law and fact.” Winkler v. Wadleigh Offshore, Inc., 01-1833, p. 3 (La.App. 4 Cir. 4/24/02), 817 So.2d 313, 316, writ denied, 02-1429 (La.9/13/02), 824 So.2d 1174.

In its first two assignments of error, Kohl’s insists that Rideaux did not meet her burden of proving that she sustained an accident at work. It claims that she failed to point to any specific event at work from which she experienced immediate and identifiable symptoms of injury. To the contrary, it points to Rideaux’s Istestimony that she first felt pain when taking off her shirt at home after returning home from work on September 7, 2009. In its brief to this court, Kohl’s asserts that Rideaux lacks credibility, claiming that she gave “at least three grossly different versions of the alleged accident and as to when her right shoulder popped.” (Emphasis added.) Kohl’s also attaches great significance to the fact that the accident report lists Rideaux’s date of injury as September 2, 2009, rather than September 7, 2009, as listed on her 1008.

Rideaux counters that she has consistently maintained that her right shoulder stiffened and felt strained while she worked hanging garments on a six-foot tall rack for five hours in the Kohl’s warehouse on September 7, 2009. She further maintains Dr. McKinney’s notes of September 8, 2009, corroborate her claim that she suffered an injury at work on the preceding day. Finally, Rideaux submits that any discrepancies between her testimony and the Kohl’s accident report form were noted at trial and found to be insignificant by the WC J.

In rejecting Kohl’s argument that Ri-deaux failed to prove that she suffered a compensable workplace accident, the WCJ stated:

Now, I will grant that Mrs. Rideaux perhaps could have been a little better historian and might, in retrospect, have done a little better job in doing all those things that a worker, in an ideal situation, ought to do in order to prevail at an eventual workers’ compensation trial; but the jurisprudence, not to mention common sense, takes into account the entirely feasible possibility that an injured worker may not have unerring recall of exactly what happened in all sorts of injury situations.
Mrs. Rideaux was working on a fast-moving, non-stop conveyer belt handing up many, dozens perhaps, maybe hundreds of clothes on a rack that was nearly a foot taller than she. Somehow, she says, this stretching caused a knot to develop in her shoulder, along with stiffness. She cannot identify the precise moment in time when the knot developed, nor can she recall the precise garment she was hanging up when the knot began to make its appearance. She didn’t know then, and doesn’t know now....
_k- • • •
I see nothing in the medical documents that in any fashion suggests that Mrs. Rideaux has ever told any medical provider anything substantially different than she said while testifying on the stand; and importantly, there’s nothing in these reports to indicate that the medical providers understood her to say anything, other than that she felt a knot on her shoulder, as she was unloading and hanging gai-ments.
Everybody seems to be clear on this point, except the employer who seems to be attached to the belief that a day after strenuous work, this woman severely injured — after a day of strenuous work, this woman severely injured herself by taking off her blouse before taking a shower.

Rideaux knew that she had injured her arm during the course of her shift on September 7, 2009, when she spent five hours unloading boxes and hanging clothes on an overhead rack in Kohl’s warehouse. She reported her injuries to her physician the following morning, and that physician noted objective signs of a right shoulder injury and directed her to seek further medical attention. Since that time, Ri-deaux has had increased pain in right shoulder, which has radiated to her neck and right forearm, and for which she has consistently sought treatment. We agree with the WCJ’s conclusion that the discrepancies noted in the accident report are minor given the big picture. After review of the entire record before us, we cannot say that the WCJ manifestly erred in finding that Rideaux sustained an injury-producing accident while working at Kohl’s. The WCJ obviously found Rideaux to be a credible witness, and we will not second guess that credibility determination. Kohl’s first and second assignments of error lack merit.

Indemnity Benefits

Louisiana Revised Statutes 23:1221(l)(c) provides that if an employee is not employed or self-employed, compensation for TTD benefits shall be awarded only if:

| in[T]he employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.

In Odom v. Kinder Nursing Home, 06-1442, p. 5 (La.App. 3 Cir. 4/25/07), 956 So.2d 128, 132, we directed that:

“The issue of disability within the framework of the workers’ compensation law is a legal rather than a purely medical determination. LeBlanc [v. Grand Isle Shipyard, Inc., 95-2452 (La.App. 1 Cir. 6/28/96)], 676 So.2d [1157,] 1161. The issue of disability is determined with reference to the totality of the evidence, including both lay and medical testimony. LeBlanc, 676 So.2d at 1161.” Walker v. High Tech Refractory Servs., Inc., 03-1621, p. 4 (La.App. 1 Cir. 6/25/04), 885 So.2d 1185, 1188.

Kohl’s submits that Rideaux failed to produce medical evidence that she suffered any past, present, or future disability so as to be entitled to indemnity benefits. It also claims that Rideaux could return to work as a jewelry associate and that other employees would be available to help with any duties that might affect her right shoulder.

Rideaux counters that she submitted into evidence a letter dated May 21, 2010, declaring her temporarily disabled from working due to her September 2009 shoulder injury. Since that time, she has consistently sought treatment for her injury, and her condition has not improved. Ri-deaux also points out that Kohl’s failed to produce any medical evidence to refute the opinions of her doctors. Finally, Rideaux argues that Kohl’s never offered her a modified position and that it should not be able to defeat her claim for indemnity benefits with its vague assertion that a coworker would always be available to assist her if she ever had a problem completing any of the duties required of her.

| nOn May 21, 2010, Dr. Green noted that Rideaux was temporarily disabled from working due to her September 2009 shoulder injury. As late as November 11, 2010, Dr. Cascio reported that Rideaux’s right shoulder pain had persisted since her injury and that it woke her up at night. Ri-deaux testified that her whole life has changed since her injury and that she is still plagued by pain in her right shoulder and weakness in her right hand. Kohl’s claims that it offered Rideaux a modified position but presented no evidence that her duties would have been altered in any way from how they were before her accident, instead contending that a coworker would be available to assist her whenever necessary. On the other hand, Kohl’s never paid for Rideaux to see a physician, never got a second medical opinion, never sent her to vocational rehabilitation, and never paid her any indemnity benefits. Given the totality of the evidence and testimony, we cannot say that the WCJ erred in making the legal determination that Ri-deaux proved her entitlement to TTD benefits.

Penalties and Attorney Fees

Louisiana Revised Statutes 23:1201 is the relevant statute in determining whether an employer should be assessed penalties and attorney fees for failure to timely pay indemnity or medical benefits. The statute provides that no penalties or attorney fees shall be assessed “if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer ... had no control.” La.R.S. 23:1201(F)(2).

An employer avoids the imposition of penalties and attorney’s fees by satisfying its continuing obligation to investigate, assemble, and assess factual information prior to it denying benefits. Furthermore, the decision to award penalties and attorney’s fees is factual in nature and will not be reversed on appeal absent manifest error.

Odom, 956 So.2d at 141-42 (citations omitted). “The purpose of imposition of penalties and attorney fees is to discourage indifference and undesirable conduct by employers and insurers.” Burns v. Interstate Brands Corp., 09-705, p. 7 (La.App. 3 Cir. 2/3/10), 30 So.3d 271, 277.

In seeking to have this court reverse the WCJ’s award of penalties and attorney fees, Kohl’s contends that it did reasonably controvert Rideaux’s claim. It argues that Rideaux did not suffer a com-pensable accident, that she presented grossly inconsistent accounts of the accident, and that she failed to present any medical evidence of a causal connection between a work accident and her right shoulder condition or of any past, present, or future disability. Finally, it claims that it had strong reason to question Rideaux’s credibility. Rideaux counters that the WCJ correctly determined that Kohl’s failed to conduct a meaningful investigation in her work accident and the injuries she suffered as a result of that accident.

In awarding Rideaux penalties and attorney fees, the WCJ commented:

[I]t is awfully hard to avoid the conclusion that Kohl’s made up its corporate mind that no workers’ compensation claim was warranted here and went about discovering bits and pieces of evidence to support its position. That’s not what the law, and common compassion requires. An employer, when notified of an injury, is required to investigate. This employer seems to skip right over that step and move light on to preparation for litigation.

All of the arguments that Kohl’s offers in support of its contention that it had reason to deny Rideaux’s claim of injury and disability have been rejected in our discussion of Kohl’s first three assignments of error. After reviewing the testimony and evidence in this matter, we find no manifest error in the WCJ’s finding that Kohl’s did not “reasonably controvert” Rideaux’s claim. Accordingly, the WCJ did not err in awarding penalties and attorney fees to Rideaux.

[ ¡^Amount of Attorney Fees

In Broussard v. Louisiana Radio Communications, 10-840, p. 13 (La.App. 3 Cir. 2/2/11), 54 So.3d 1274, 1283 (citation omitted), we stated:

In fixing an amount of attorney fees in a workers’ compensation case, the workers’ compensation judge may consider factors such as the degree of skill and ability exercised by the attorney, the amount of the claim, the amount recovered by the claimant, and the amount of time the attorney dedicated to the case. The amount of the attorney fee is subject to the discretion of the workers’ compensation judge, provided the record supports the amount awarded.

“[A] trial court need not hear evidence pertaining to the time spent by counsel on a matter in order to decide the amount of attorney’s fees to award, as the amount of work performed will be obvious from the record.” Capdeville v. Winn-Dixie Store No. 1473, 05-870, pp. 8-9 (La.App. 3 Cir. 3/1/06), 923 So.2d 900, 905.

Kohl’s contends that even if we affirm the WCJ’s award of attorney fees, there is no evidence in the record to support an award of $14,500.00, an amount in excess of the total award to Rideaux. It submits that in the absence of testimony or a written itemization from Rideaux’s attorney as to the time spent in this matter, the amount awarded is excessive and unreasonable. Rideaux contends that the record does support the amount of attorney fees awarded, given the amount of experience and skill necessary to combat the aggressive stance taken by Kohl’s. Ri-deaux also submits that because it took as much effort to bring her case to trial as it would have had she been a full-time Kohl’s employee, this court should not penalize her or her attorney for pursuing this case in spite of the fact that she was a part-time employee.

When the WCJ announced the $14,500.00 attorney fee award at its oral pronouncement of judgment, counsel for Kohl’s stated that he had not received a fee statement from Rideaux’s counsel. Although the WCJ did not have its file, it 114stated that it generally used a fee statement to arrive at the amount of attorney fees to be awarded.

The record on appeal does not contain a fee statement from Rideaux’s counsel or any other indication as to the amount of time that he spent on this matter. After considering the factors that we enunciated in Broussard, 54 So.3d 1274, we find that the WCJ abused its discretion in awarding Rideaux $14,500.00 in attorney fees, and we amend the award to $7,500.00, an amount that we find supported by the record.

Rideaux’s Answer to Appeal

In Nash v. Aecom Technology Corp., 07-990, p. 8 (La.App. 3 Cir. 2/6/08), 976 So.2d 263, 268, this court held that “[a] workers’ compensation claimant is entitled to an increase in attorney fees to reflect additional time incurred in defending an employer/insurer’s unsuccessful appeal.”

Rideaux answered Kohl’s appeal seeking additional attorney fees for the work incurred in handling this appeal. We award Rideaux an additional attorney fee of $3,500.00 for the work done on appeal.

DECREE

The judgment rendered by the workers’ compensation judge in favor of Terry Ri-deaux and against Kohl’s Department Stores, Inc. is amended to reflect an attorney fee award of $7,500.00 rather than $14,500.00. The judgment is affirmed in all other respects. Rideaux is awarded additional attorney fees of $3,500.00 for work performed on this appeal. All costs of this appeal are assessed against Kohl’s Department Stores, Inc.

AFFIRMED AS AMENDED.

      . The acromioclavicular joint, or AC joint, is located at the top of the shoulder. It allows die ability to raise the arm above the head.

      . The Employer Report of Injury form completed by Mr. Davis was offered and accepted into evidence as Plaintiff's Exhibit One.


source: Caselaw Access Project

author: BROWN, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Garrett John BARTON, Appellant.
    No. 46,792-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 14, 2011.

      James Edward Beal, Louisiana Appellate Project, Jonesboro, LA, for Appellant.
    Charles R. Scott, II, District Attorney, R. Bennett Langford, III, Catherine M. Estopinal, Kodie K. Smith, Assistant District Attorneys, for Appellee.
    Before BROWN, STEWART, and DREW, JJ.
   BROWN, Chief Judge.

bin a three-count bill of information, defendant, Garrett Barton, was charged with violating La. R.S. 14:112.1, false per-sonation of a peace officer; La. R.S. 14:110, simple escape; and, La. R.S. 14:62.3, unauthorized entry of an inhabited dwelling. A jury returned verdicts of guilty as charged on all counts. Thereafter, the court imposed hard labor sentences of two years for false personation; six years for unauthorized entry, concurrent with the first sentence; and five years for simple escape, consecutive with the other two sentences. Defendant was granted an out-of-time appeal.

On appeal, defendant claims that there was insufficient evidence to convict him on the false personation and unauthorized entering charges. He does not, however, challenge the sufficiency of the evidence on the simple escape conviction. Defendant also claims that his sentences are excessive. We AFFIRM.

Discussion

Sufficiency of Evidence

Defendant first argues that the evidence presented at trial was legally insufficient to support convictions of false personation of a peace officer and unauthorized entry of an inhabited dwelling.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not | ¡¡provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.02/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/04/96), 680 So.2d 1165. Appellate courts do not assess the credibility of witnesses or reweigh evidence, but accord great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442; State v. Hill, 42,025 (La.App.2d Cir.05/09/07), 956 So.2d 758, writ denied, 07-1209 (La.12/14/07), 970 So.2d 529.

False Personation of a Peace Officer

La. R.S. 14:112.1 provides, in pertinent part:

A. False personation of a peace officer is the performance of certain acts with the intent to injure or defraud or to obtain or secure any special privilege or advantage. The specified acts include:
(1) Impersonating any peace office or assuming, without authority, any uniform or badge by which a peace officer is lawfully distinguished.
(2) Performing any act purporting to be official in such assumed character.
(3) Equipping any motor vehicle with lights or sirens which simulate a law enforcement vehicle.

False personation of a peace officer is a specific intent crime. State v. Hayden, 97-1070 (La.App. 5th Cir.02/25/98), 707 So.2d 1360, writ denied, 98-0811 (La.09/04/98), 723 So.2d 960. Intent may be inferred from the | ^circumstances of the transaction. State v. Hayden, supra. In Hayden, we note that the defendant was a “fugitive recovery agent” who “asked for a wash for his police car (a white Ford Crown Victoria equipped with lights) and got a drink for which he did not pay ...”

In the case sub judice, Garrett Barton lived with Sara Henry at the Towne Oaks South apartments (“Towne Oaks South”) in Shreveport, Louisiana, and was known by residents to dress and act as a police officer. Several months prior to his eventual arrest, Barton approached Nancy Jowers, property manager for Towne Oaks South, about his interest in becoming a courtesy officer for the complex. Jowers would later testify that courtesy officers received a reduction in rent for their service, but the position was reserved for licensed law enforcement officials. Barton told her that he worked for the FBI, and though Jowers could not remember his exact attire on this occasion, she testified that he was wearing a badge and driving a Ford Crown Victoria that had “police-looking” lights mounted on it.

Also, while living at Towne Oaks South, defendant came to socialize with another resident, Lindsey Vallot, as well as her boyfriend, Joseph Givens. On their first meeting, Barton approached the two with a flashlight as they were talking in the parking lot. Givens felt as though Barton was “taking control” of the situation as a police officer would. Vallot and Givens believed Barton was a police officer.

One morning Vallot was in her apartment alone, taking a shower, when she heard someone pounding on the door and a voice shouting, |/‘Police! Open up.” Val-lot emerged from the shower to find the front door open and Barton, dressed in police attire, with his head inside her apartment. After seeing and briefly speaking with Vallot, defendant stepped back and shut the door. Vallot and Givens both offered testimony that Barton did not have permission to enter the apartment. Later, Givens, through a text message, questioned Barton about the intrusion. Barton then appeared at the apartment, again dressed like a police officer, and ordered Givens outside. Barton demanded Givens’ driver’s license so that Barton could check it for outstanding warrants. Givens complied, and Barton returned the license without further issue.

On April 30, 2009, brothers Clint and Cody Hooker were sitting on a car and listening to music while in the Towne Oaks South parking lot. They observed Barton make a circuit of the complex, then briefly go into his apartment before emerging again. Barton, wearing a gun holster and a badge, approached the brothers and chastised them for playing music too loudly, asking, “Do we have a problem?”

Also, on April 30, 2009, Constable Eric Hatfield responded to a complaint about a man dressed as a police officer harassing people at Towne Oaks South. Upon arriving at the complex, Constable Hatfield observed defendant driving his Ford Crown Victoria, which was equipped with a police cage, a push bar on the front bumper, spotlights fixed on the side of the front doors, and a decal on the side with the seal of the United |aStates that read “Fugitive Recovery Agent.” Upon stopping Barton, Constable Hatfield noted that he was wearing a badge with the seal of the State of Louisiana. Constable Hatfield questioned defendant about his status as a police officer. Barton admitted that he was not a police officer, but he maintained that he was deputized as a fugitive recovery agent and could make civilian arrests.

Barton consented to a search of his vehicle. A nightstick, a one-way police scanner, various items from a coroner’s office, and handcuffs were discovered in defendant’s car. Officers also observed toggles and switches which are used to control a police light bar. Following the search, defendant told Constable Hatfield that he and his partner, Shane Lewis, would pose as police officers to make traffic stops, during which they would take drivers’ licenses and pretend to check for outstanding warrants. Barton also stated that he and his partner would take money and drugs from some of the motorists they stopped. Constable Hatfield Mirandized Barton, handcuffed him, and placed him in a police cruiser while police inventoried items in the vehicle.

While Barton was being questioned, Sara Henry, variously described as Barton’s wife or girlfriend, arrived and gave police several articles of Barton’s clothing which were either very similar or identical to Shreveport Police Department (“SPD”) uniform clothes. Henry also gave police consent to search her apartment where she and Barton resided. The officers discovered several photographs of Barton holding a gun and dressed as an SPD officer, appearing to make an entry into a home. Also recovered were 16a police “rig” belt, webbing, radio case, side arm holster, and two air guns which were very close replicas of police-issue firearms.

While officers were taking inventory of the evidence and filling out paperwork, Barton was able to move his hands from behind his back to the front of his body. He reached through the open window of the cruiser, opened the door, and escaped. He was apprehended approximately three hours after his escape.

Barton would dress in police clothing and carry accessories, such as handcuffs and weapons. He purposely led the complex manager and others to believe he was employed as a law enforcement officer. He drove a vehicle outfitted like a police cruiser. Specifically, when confronted by Givens about the entry into Vallot’s apartment, Barton, wearing police garb and a badge, ordered Givens to follow him and surrender his driver’s license so that defendant could “check for warrants.” Defendant also wore police clothing when he pounded on Vallot’s door demanding she “open up,” and then entered the apartment without consent. Cody and Clint Hooker testified about defendant’s intimidation when he confronted them about playing music in the parking lot. This testimony, along with a myriad of photographs and other physical evidence, is more than sufficient, viewed in the light most favorable to the prosecution, to support a conviction for false personation of a peace officer.

| -¡Unauthorized Entry of an Inhabited Dwelling

Under La. R.S. 14:62.3, unauthorized entry of an inhabited dwelling is “the intentional entry by a person without authorization into any inhabited dwelling or other structure belonging to another and used in whole or in part as a home or place of abode by a person.”

Defendant’s primary argument is that he was previously acquainted with Vallot when he made entry into her apartment. Barton also points to trial testimony from Vallot where she responded to a question about whether he had consent to enter the apartment by saying, “I guess technically not.” Barton also notes Vallot testified that the event was “kind of uncomfortable, but it wasn’t — I didn’t feel necessarily completely threatened.” However, the sum of Vallot’s testimony was that Barton did not have her consent when he opened the door and “stuck his head in” the apartment. That two people know one another socially does not grant either party the right to enter the dwelling of the other absent consent. Further, Vallot could not know even that it was Barton knocking, as the only identification he offered with his knock was, “Police, open up!”

Alternatively, defendant also argues that Vallot’s boyfriend, Joseph Givens, had asked Barton to “check on” his girlfriend because another resident at the apartment complex had been “giving her problems.” Givens testified, however, that he never gave Barton permission to enter the 18apartment, which belonged to Vallot. Givens was unsettled by the incident and contacted Barton, questioning him about the event. This led to the threatening behavior by Barton, which was when he required Givens to come outside and turn over his driver’s license for an outstanding warrant search.

Based on the foregoing, we hold that the evidence adduced at trial, viewed in the light most favorable to the state, was sufficient to support the jury’s finding of guilt for unauthorized entry of an inhabited dwelling.

Excessive Sentence

Defendant claims that the sentences imposed by the trial court are excessive, in violation of Article I, § 20 of the Louisiana Constitution of 1974, which provides, in pertinent part: “[n]o law shall subject any person to ... cruel, excessive, or unusual punishment.”

Appellate review of sentences for alleged excessiveness is a two-pronged inquiry. State v. Ashley, 45,563 (La.App.2d Cir.09/22/10), 48 So.3d 332. First, the record must show that the sentencing court complied with La. C. Cr. P. Art. 894.1 by establishing a factual basis for the sentence. Id. The second prong is constitutional excessiveness. A sentence violates La. Const. Art. l, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is deemed grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice or makes no | treasonable contribution to acceptable penal goals. State v. Guzman, 99-1528, 99-1753 (La.05/16/00), 769 So.2d 1158; State v. Ashley, supra.

A trial court has broad discretion in sentencing offenders. Absent a showing of manifest abuse of that discretion, an appellate court may not set aside a sentence as excessive. State v. Kidd, 45,638 (La.App.2d Cir.11/03/10), 55 So.3d 90.

Persons committing the crime of false personation of a police officer are subject to a maximum fine of $1,000, a maximum of two years’ imprisonment with or without hard labor, or both. La. R.S. 14:112.1(B). For the crime of unauthorized entry of an inhabited dwelling, a person is subject to a maximum fine of $1,000, or imprisonment with or without hard labor for a maximum of six years, or both. La. R.S. 14:62.3(B). A detained person who commits simple escape in violation of La. R.S. 14:110 shall be imprisoned for at least two years, but not more than five years, with or without hard labor, and such sentence may not run concurrent with any other sentence.

In this case, defendant was sentenced to two years at hard labor for false person-ation; six years at hard labor for unauthorized entry, concurrent with the first sentence; and five years at hard labor for simple escape, consecutive to the other sentences.

The trial court required sentencing briefs from the ADA and defense counsel. The trial court reviewed the factors listed in La. C. Cr. P. art. 894.1. The trial court emphasized the repetitive nature of defendant’s behavior in this community, as well as in other jurisdictions. Barton had a | inconviction in the state of Utah for burglary and a third degree felony conviction in Texas “for attempted restricted person in possession of a dangerous weapon” and for impersonation of an officer.

The trial court opined that the actions of defendant put both himself and the public in great danger. Defendant admitted to police that he and his partner would rob motorists of money and drugs. The trial court also noted that Barton’s entry into Vallot’s apartment was facilitated by his personation of a police officer.

The harm to society presented by these crimes is not limited to the direct distress or injury caused by Barton personating an officer for his personal benefit. The harm also includes damaging the public’s trust in law enforcement, which is vital for those agencies to function efficiently and effectively in protecting the public.

Given the nature and extent of defendant’s actions and their harm to society, we cannot say the trial court manifestly abused its discretion in sentencing. Therefore, we hold that these sentences are not excessive by constitutional standards.

Conclusion

For the reasons set forth above, the defendant’s convictions and sentences are affirmed.

AFFIRMED.

      . La. R.S. 14:112.1 was amended by the Legislature in 2009 to “provide for definitions of ‘badge’ and ‘peace officer’; and to provide for related matters.” See La. Acts 2009, No. 157. The amendment is not applicable herein, as the offenses for which defendant was charged occurred before the statute was amended.

      . Hatfield was an elected constable for Ward 8 Caddo Parish and a commissioned law officer.

      . There was testimony at trial that a gun brandished by defendant in photographs was not a replica but an actual firearm. However, this weapon was not recovered in the investigation.

      . Vallot, along with her boyfriend, offered testimony that they had “hung out” with Barton at their apartment and even went out to dinner with him on one occasion.

      . It is unclear from the trial record when the request from Givens occurred relative to Barton's entry into the apartment.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Bruce GILL, Appellant.
    No. 46,784-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 14, 2011.

      Louisiana Appellate Project, by Carey J. Ellis, III, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Marcus Patillo, Assistant District Attorneys, for Appellee.
    Before BROWN, CARAWAY and MOORE, JJ.
   MOORE, J.

liThe defendant, Bruce Gill, pled guilty as charged to one count of distribution of a Schedule II controlled dangerous substance (cocaine). He was sentenced to 20 years’ imprisonment at hard labor, with the first two years to be served without the benefit of probation, parole or suspension of sentence, consecutive to any other sentence the defendant is obligated to serve. The defendant now appeals his sentence as excessive. For the following reasons, we affirm the conviction and sentence.

FACTS

On February 27, 2010, the defendant sold a confidential informant sent by the Webster Parish Sheriffs Department and Minden Police Department 3 rocks of cocaine for $50 in his apartment in Minden, Louisiana. Subsequently, Bruce Gill was charged by bill of information filed on July 21, 2010 with the crime of distribution of cocaine, contrary to La. R.S. 40:967(A). On November 8, 2010, Gill withdrew his initial plea of not guilty and pled guilty as charged pursuant to a plea bargain in which the state agreed not to pursue habitual offender proceedings and that he would be sentenced after a presentence investigation (“PSI”) report. After a guilty plea examination in which the defendant voluntarily waived his rights under Boykin v. Alabama, the court accepted the plea and agreement and ordered a PSI. On January 28, 2011, the court sentenced Gill to a term of imprisonment of 20 years at hard labor, the first two of which were imposed without benefit of parole, probation or suspension of sentence. The sentence was consecutive to any other sentence the defendant is serving or may have to serve.

| gGill’s trial defense counsel filed a timely motion to reconsider the sentence, which the trial court denied without a hearing. His appellate counsel has now filed the instant appeal, alleging that the sentence is unduly harsh and excessive.

DISCUSSION

The defendant alleges that the sentence is excessive for several reasons: he is 55 years old and has accepted responsibility for his crime by entering a guilty plea. Gill addressed the court and expressed remorse for the crime. He is attending school and enrolled in an anger management program. He attributes his criminal behavior to drug abuse, and he intends to seek substance abuse counseling. Additionally, he suffers from severe health problems, including hepatitis B and cirrhosis of the liver. This sentence will subject his family to undue hardship. Finally, although he has a criminal history, none of his prior convictions are for violent crimes. He is not the worst of criminal offenders.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 438 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App. 2 Cir. 2/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not |srigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App. 2 Cir. 8/13/08), 989 So.2d 267. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of the offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App. 2 Cir. 8/13/08), 989 So.2d 259, writ denied, 2008-2341 (La.5/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App. 2 Cir. 12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351.

Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App. 2 Cir. 1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App. 2 Cir. 4/2/97), 691 So.2d 864.

| A trial court has broad discretion to sentence within the statutory limits. Wfliere a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Germany, 43,239 (La.App. 2 Cir. 4/30/08), 981 So.2d 792, State v. Black, 28,100 (La.App. 2 Cir. 2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. Absent a showing of manifest abuse of that discretion we may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App. 2 Cir. 5/12/04), 873 So.2d 939; State v. Lingefelt, 38,038 (La.App. 2 Cir. 1/28/04), 865 So.2d 280, writ denied, 2004-0597 (La.9/24/04), 882 So.2d 1165.

The sentencing range for a conviction of distribution of cocaine is 2 to 30 years at hard labor, the first two years of any such sentence being without benefit of parole, probation or suspension of sentence, and an optional fine of not more than $50,000. La. R.S. 40:967(B)(4)(b).

On review, the record demonstrates that the district court considered the appropriate factors and articulated adequate reasons for the imposition of this 20-year sentence. The court specifically noted its consideration of the guidelines of Art. 894.1, even though it did not expressly discuss each factor. Regarding defendant’s social history, the defendant’s education, employment history and familial ties other than his marital status were not revealed in the PSI; however, the defendant discussed some of those factors | fin his statement to the court prior to sentencing. He stated that he was currently trying to get his GED and was on a waiting list to get into a substance abuse program. He stated that although he was definitely guilty of the crime, it was an offense in which no one was hurt. He attributed his illnesses to drug abuse, and stated that he has a wife and children and siblings who cared about him. He asked the court for leniency, and to give him another chance, and specifically asked to court to run his sentence concurrent “with [his] parole time,” presumably a reference to his serving a another sentence due to parole revocation. We also note that the PSI indicates that the defendant was “unavailable” to provide a statement and, though his wife was afforded an opportunity to do so, none was given on his behalf.

Nevertheless, as noted by the sentencing court, there are several aggravating factors, including defendant’s status as a third-felony offender, his lengthy criminal history and his poor performance during parole. The PSI indicates prior felony convictions, including one for forgery and simple burglary, and several misdemeanor convictions for criminal mischief, simple battery, possession of stolen goods, possession of marijuana, theft, misdemean- or theft, and other arrests either nol prossed or whose disposition is unknown. As noted by the court, defendant’s parole has been revoked at least three times. It is clear, therefore, that the defendant has been given several chances in the past to rehabilitate himself, but failed to avail himself of these opportunities. Under these circumstances, these factors combined with the fact that defendant received a substantial benefit through the plea | (¡agreement, which provided that the state would not file a multiple offender bill of information, makes the sentence imposed neither grossly disproportionate to the seriousness of the offense committed nor an abuse of the court’s discretion. The defendant’s sentence is not constitutionally excessive and his assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, we affirm the defendant’s conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED.


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Robert Dillard WHITTINGTON, III, Appellant.
    No. 46,795-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 14, 2011.
    Robert Dillard Whittington, III, Pro Se.
    J. Schuyler Marvin, District Attorney, John Michael Lawrence, Assistant District Attorney, for Appellee.
    Before GASKINS, DREW and LOLLEY, JJ.
   LOLLEY, J.

hThis criminal appeal arises from the Twenty-Sixth Judicial District Court, Parish of Bossier, State of Louisiana. The defendant, Robert Dillard Whittington, III, was initially charged with communication of false information of planned arson (a violation of La. R.S. 14:54.1) and terrorizing (a violation of La. R.S. 14:40.1). Whittington pled guilty to terrorizing with an agreed five-year sentence cap; in exchange, the prosecutor dismissed the arson charge as well as charges raised in a separate bill not included in the record. Whit-tington was sentenced to serve five years at hard labor. He now appeals. For the following reasons, we affirm Whittington’s conviction and sentence.

Facts

Because Whittington pled guilty, the record reveals little evidence of the offenses that led to his conviction. According to the factual basis for the plea recited by the district attorney, sometime between August 8, 2008, and October 29, 2009, Whittington posted a letter at a deer camp that led the camp’s owner to believe that a crime of violence was imminent or in progress or that circumstances dangerous to human life existed or were about to exist. Subsequently, Whittington sent a letter to the camp owner’s home that likewise met the criminal conduct element of the terrorizing statute; it said, in part: “We comin [sic] after yo ass during deer season— when we can drop you like a deer! Right out of your stand....! We know now where you sit!” The letters were admitted into evidence. Although Whittington claims to be a resident of Texas, the letter was undoubtedly mailed to a residence in Haughton, Louisiana, which is in | ^Bossier Parish, and the bill of information specified that the hunting camp was in Bossier Parish.

Charges were filed against Whittington in March 2010, and he retained an attorney. The trial court appointed a sanity commission to examine Whittington. Based upon the commission’s report, on June 15, 2010, the trial court found Whit-tington competent to stand trial and to assist in his defense. After another hearing on November 15, 2010, the trial court allowed Whittington to represent himself, but appointed the public defender’s office as standby counsel. Whittington filed a pleading complaining that venue was improper in Bossier Parish.

On January 3, 2011, the matter was called for trial. The record reflects that the trial court ensured that an attorney from the public defender’s office was seated behind Whittington in the event he needed to consult with an attorney during the trial. The trial court addressed Wfiiit-tingtoris motion challenging venue and denied the motion, along with his earlier motion to quash, on the grounds that the victim(s) of these offenses were in Bossier Parish when the threats were made. Whittington said that he wanted to appeal the trial court’s ruling, and the trial court informed him that he could appeal the ruling along with his conviction if he were convicted.

After the trial judge explained trial procedure to Whittington in some detail, Whittington decided to enter into a plea agreement. The district attorney recited that, under the agreement, Whittington would plead guilty to terrorizing in exchange for a five-year cap on his sentence and the |adismissal of the other pending charges. Whittington agreed that he understood the agreement. The trial court conducted a thorough Boykin examination of Whittington, and Whittington agreed that he understood and waived his right to a jury trial, his right to confront the witnesses against him, and his right not to incriminate himself. In addition, the trial court told Whittington that if he were convicted after a trial, he would have the right to an appeal. After the district attorney read into the record a factual basis for the plea, the defendant agreed that the recitation was correct. The terms of the plea agreement did not include any reference to an appeal by Whittington of any element, nor did the trial court note or imply that Whittington would have the right to appeal his conviction or sentence. Finally, Whit-tington himself did not attempt to condition his plea on the right to appeal any pretrial rulings.

The matter came for sentencing on March 9, 2011. The trial court reviewed Whittington’s presentence investigation and several letters sent to the court on the record. The trial court noted that Whit-tington was 70 years old, had retired from the United States Army as a lieutenant colonel and had a long-term third marriage. However, also noted was that Whit-tington and the recipient(s) of his communications had previously had run-ins that led to misdemeanor convictions for Whit-tington, and that during the investigation into the instant crimes, Whittington had made threats to “open fire on” sheriffs deputies. Accordingly, Whittington was sentenced to serve five years’ imprisonment at hard labor, the maximum under the cap to which RWhittington agreed. After imposing the sentence, the trial court informed Whittington, that he had “thirty days to appeal this sentence.... ”

Whittington filed a timely motion for appeal which the trial court granted. He also filed a “motion for post-conviction hearing” seeking a “reduction of cruel and unusual punishment,” which the trial court denied. Whittington now appeals.

Discussion

Whittington’s pro se brief on appeal, per his instructions to this Court, consists of a filing initially lodged in this appeal as a criminal writ application in July 2011. In it, he argues the merits of various pretrial filings and further argues that the evidence is insufficient to support his conviction. Specifically, Whittington raises three assignments of error on appeal, submitting whether: (1) the evidence as relied upon is sufficient to support the finding of guilt; (2) venue was proper; and (8) the search and seizure of his home and seizure of items from it was valid with respect to the charge of terrorizing.

Notably, Whittington did not reserve his right to appeal any pretrial rulings when he unconditionally pled guilty to terrorizing. A criminal defendant may, with the consent of the prosecutor, enter into a plea agreement that includes the defendant’s right to seek review of specific pre-plea rulings. State v. Crosby, 338 So.2d 584 (La.1976). In the absence of such an agreement, a defendant waives his right to appellate review of fynon-jurisdic-tional issues — including the sufficiency of the evidence — by entering an unconditional plea of guilty. State v. Mack, 45,552 (La.App.2d Cir.08/11/10), 46 So.3d 801.

In the instant case, the state recited a significant factual basis for the offense. The record contains evidence of actual guilt as to the offense charged, thereby providing a means by which the trial court could test whether or not Whit-tington’s plea was intelligently entered. Furthermore, we have considered Whit-tington’s guilty plea in light of the fact that he was appearing pro se during proceedings; however, at some point during his prosecution, he had been represented by counsel and he was adamant that he wished to represent himself. According to Whittington’s own repeated assertions in the record, it appears that he certainly had the means to afford defense counsel and chose not to be represented. An attorney from the public defender’s office was available to Whittington in the event he needed assistance during the proceedings. So considering, the record evinces that Whit-tington’s guilty plea was validly entered. Therefore, he is precluded from raising on appeal any issue regarding (1) sufficiency of the evidence for his convictions or (2) the search and seizure during the investigation of the charged crime, and we will not consider the assignments of error relating to those issues.

Moreover, because the prosecution of a defendant who is incompetent to stand trial will lead to a reversal of his conviction and sentence, issues concerning the competence of a defendant to stand trial are jurisdictional errors that may be reviewed on appeal notwithstanding a defendant’s guilty ^plea or his failure to specifically allege the issue as an assignment of error at the time he enters a Crosby plea. State v. Nomey, 613 So.2d 157 (La.1993). In the instant case, the trial court made a specific finding that Whittington was competent to stand trial prior to accepting the plea, so there is no jurisdictional error apparent from the record as to the issue of Whit-tington’s competency.

As to Whittington’s assignment of error regarding improper venue, although venue in a criminal case can present a jurisdictional defect under some circumstances, the law continues to require that a defendant properly preserve the issue for review. La.C.Cr.P. art. 615; State v. Burnett, 33,739 (La.App.2d Cir.10/04/00), 768 So.2d 783, writ denied, 2000-3079 (La.11/02/01), 800 So.2d 864. Assuming here that Whittington did preserve this issue for review on appeal (by challenging venue prior to pleading guilty and because of the trial court’s assurance that he could appeal the venue determination), we find no error in the trial court’s determination that venue was proper in Bossier Parish.

Whittington argues that he could not be prosecuted in Louisiana for these offenses; instead, he argues that venue was only proper in his home state of Texas. Louisiana C.Cr.P. art. 611 provides, in part:

All trials shall take place in the parish where the offense has been committed, unless the venue is changed. If acts constituting an offense or if the elements of an offense occurred in more than one place, in or out of the parish or state, l7the offense is deemed to have been committed in any parish in this state in which any such act or element occurred.

The locus delicti of a crime “must be determined from the nature of the crime alleged and the location of the act or acts constituting it.” State v. Hayes, 2001-3193 (La.01/28/03), 837 So.2d 1195, citing U.S. v. Cabrales, 524 U.S. 1, 118 S.Ct. 1772, 141 L.Ed.2d 1 (1998); see also State v. Joshlin, 1999-1004 (La.01/19/00), 752 So.2d 834.

Louisiana R.S. 14:40.1 provides, in part:

A. Terrorizing is the intentional communication of information that the commission of a crime of violence is imminent or in progress or that a circumstance dangerous to human life exists or is about to exist, with the intent of causing members of the general public to be in sustained fear for their safety; or causing evacuation of a building, a public structure, or a facility of transportation; or causing other serious disruption to the general public.

According to the factual basis presented in conjunction with the guilty plea, one of the threats by Whittington was posted at a deer camp, the location of which was specified as Bossier Parish in the bill of information. That act was performed in Bossier Parish, thus unquestionably making venue proper there. Second, the letter containing the other threat was mailed to Bossier Parish. The act of communication traditionally involves the sending of information by one party and the receiving of information by a different party. If Whit-tington mailed his communication from Texas, his intended (and actual) recipients were residents of Bossier Parish. The act of communication was completed, in this case, by the receipt by the addressee of the letter in Bossier Parish. Further, even if Whittington was in Texas when he formed the intent to cause fear, that intent was directed toward [ 8causing fear to residents of Bossier Parish, and the nature of the crime of terrorizing is causing others to fear harm. So considering, we conclude that venue was proper in Bossier Parish, and this assignment of error has no merit.

Conclusion

For the foregoing reasons, the conviction and sentence of Robert Dillard Whit-tington, III are affirmed.

AFFIRMED.

      . Upon lodging of this appeal, we noted that Whittington was appearing pro se. To clarify the record, we directed the trial court to conduct a hearing to determine if Whittington had validly waived his right to counsel on appeal. A hearing was held at the trial court and it was confirmed that Whittington, although entitled to appointed appellate counsel, was competent to waive counsel and did validly waive his right to an attorney to represent him on appeal.

      . A thorough reading of Whittington's motion to change venue suggests some question whether Louisiana even had jurisdiction over him. However, for the same reason venue is proper in Bossier Parish district court (i.e., the crimes against his victims occurred in Bossier Parish), a Louisiana state court has jurisdiction over him (i.e., the crime occurred in Louisiana).


author: PEATROSS, J.

text:
    Phillip Lynn HALL, Plaintiff-Appellant v. FEDERATED MUTUAL INSURANCE COMPANY, et al., Defendants-Appellees.
    No. 46,806-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 14, 2011.

      The Downs Law Firm, A.P.C., by E. Ross Downs, Jr., Ramsey L. Ogg, for Appellant.
    Cotton, Bolton, Hoychick & Doughty, L.L.P., Rayville, LA, by John Hoychick, Jr., Ashley A. Morris, for Appellee, Federated Mutual Ins. Co.
    Breithaupt, Dunn, Dubos, Shafto & Wolleson, Monroe, LA, by Michael Lee Dubos, Lamar Walters, III, for Appellee, State of LA, DOTD.
    Nelson, Zentner, Sartor, et al., Monroe, LA, by George M. Snellings, IV, for Appel-lees, Stonetrust Commercial Ins. Co. and Spillers Oil Co.
    Holley & Associates, by Travis M. Holley, Bastrop, LA, for Appellee, Travis M. Holley.
    Before BROWN, GASKINS & PEATROSS, JJ.
   PEATROSS, J.

|2Plaintiff Phillip Hall appeals a summary judgment rendered in favor of Defendant insurer Federated Mutual Insurance Company, Inc. (“Federated Mutual”). For the reasons set forth herein, we affirm.

FACTS

On April 2, 2009, Mr. Hall was involved in an automobile accident while in the course of his employment with Spillers Oil Company (“Spillers Oil”). Mr. Hall was a truck driver for Spillers Oil and worked out of the company’s Bonita, Louisiana, office, along with one other employee, a receptionist/clerk. Mr. Hall was not at fault in the accident — his truck was struck head-on by another vehicle and Mr. Hall sustained serious injuries. At the time of the accident, Federated Mutual had in effect an insurance policy for Spillers Oil. The policy limit for bodily injury was $1,000,000 and the reduced selected UM coverage for officers of the company was $100,000. The question on summary judgment was whether there was UM coverage under this policy for Mr. Hall. The specific issue was whether Spillers Oil, through David Ouellette, an owner and officer of Spillers Oil, had validly rejected UM coverage for its non-officer employees and whether Mr. Hall was an “officer” of Spil-lers Oil. It is undisputed that Mr. Ouel-lette’s intent was to reject UM coverage for all non-officer employees of Spillers Oil, but there was one box left unchecked on the UM rejection form. The trial judge found that the failure to check the box was an oversight and further found that, as a matter of law, Mr. Ouellette had validly rejected UM coverage for employees who were not officers and that |sMr. Hall was not an officer of the company. Summary judgment was, therefore, rendered in favor of Federated Mutual; and, in a subsequent judgment, Federated Mutual was dismissed from the suit. This appeal by Mr. Hall ensued.

DISCUSSION

A motion for summary judgment shall be granted if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. NAB Natural Resources, L.L.C. v. Willamette Industries, Inc., 28,555 (La.App.2d Cir.8/21/96), 679 So.2d 477.

Under Louisiana law, UM coverage is automatic. La. R.S. 22:1406(D)(l)(a). UM coverage is strongly favored under the law. A rejection of UM coverage must be unambiguous and in proper form. The burden of proving a valid UM rejection rests on the party seeking to enforce the rejection and escape UM liability. Henson v. Safeco Ins. Cos., 585 So.2d 534 (La.1991). In the case sub judice, it is undisputed that the rejection forms used are in compliance with the Commissioner of Insurance requirements pursuant to La. R.S. 22:1295 and that Mr. Ouellette had authority to reject the UM coverage. The only issues, therefore, are whether |4the rejection was valid as a matter of law and, if not, whether Mr. Hall was an officer of the company.

There are two UM forms at issue in this case. The first form is entitled “UNINSURED/UNDERINSURED MOTORIST BODILY INJURY COVERAGE FORM” and is the standard rejection form for UMBI coverage. On this form, Mr. Ouel-lette initialed on the line by option number 5, which states “I do not want UMBI coverage. I understand that I will not be compensated through UMBI coverage for losses arising from an accident caused by an uninsured/underinsured motorist.” Mr. Ouellette signed and dated the bottom of the form.

The second form is entitled “LOUISIANA COMMERCIAL AUTO OPTIONAL COVERAGE FORM” and is used in addition to the standard UMBI rejection form and offers the insured the options of selecting economic loss-only coverage, UM coverage at lower limits than the bodily injury limits provided in the liability portion of the policy or lower limits for directors, officers, partners or owners of the insured. On this form, there are four possible options. The second option reads, “I hereby SELECT economic-only UMBI coverage which will compensate me only for my economic losses at the limit selected below.” The box next to this option is unchecked. Directly below this option is listed the specific choices of limitation of coverage available to the insured. Mr. Ouellette checked the box next to $100,000 under the heading “Limit for directors, officers, partners or owners of the named insured[-].” In addition, under the adjacent heading, “Limit for any other person who qualifies as an insured,” |fiMr. Ouel-lette checked the box next to the option that reads, “I hereby REJECT Uninsured Motorist Insurance including Underin-sured Motorist Insurance for this group of persons only.” Mr. Ouellette then signed and dated the bottom of the form. It was the failure of Mr. Ouellette to place a check mark in the box next to the second option, above the specific limits he selected, which forms the basis of Mr. Hall’s challenge to the validity of the rejection as a whole.

The following six factors must be met in order to satisfy the requirement of a valid UM rejection:

(1) initialing the selection or rejection of coverage chosen; (2) if limits lower than the policy limits are chosen, then filling in the amount of coverage selected for each person and accident; (3) printing the name of the named insured or legal representative; (4) signing the name of the named insured or legal representative; (5) filling in the policy number; and (6) filling in the date. Duncan v. U.S.A.A. Insurance Co., 06-363 (La.11/29/06), 950 So.2d 544.

In Duncan, the supreme court explained:

The commissioner of insurance, in drafting the form, requires six tasks, all of which we find to be pertinent in rejecting UM coverage. The insured initials the selection or rejection chosen to indicate that the decision was made by the insured. If lower limits are selected, then the lower limits are entered on the form to denote the exact limits. The insured or the legal representative signs the form evidencing the intent to waive UM coverage and includes his or her printed name to identify the signature. Moreover, the insured dates the form to determine the effective date of the UM waiver. Likewise, the form includes the policy number to demonstrate which policy it refers to.

| (¡Subsequently, in Gray v. American Nat. Property & Cas. Co., 07-1670 (La.2/26/08), 977 So.2d 839, the supreme court further defined its earlier ruling in Duncan to hold that the form must be completed prior to signing by the insured in order to constitute a valid rejection:

We now hold that compliance with the form prescribed by the Insurance Commissioner involves more than the rote completion of the “six tasks” identified in Duncan by someone at sometime. Instead, we find that, in order for the form to be valid, the six tasks must be completed before the UM selection form is signed by the insured, such that the signature of the insured or the insured’s representative signifies an acceptance of and agreement with all of the information contained on the form.

Again, Mr. Hall asserts that the fatal deficiency in the rejection of UM coverage is that the box on the second form which indicates a selection of economic-only UMBI coverage is unchecked. Mr. Hall argues that Gray, supra, dictates that the form must be completed prior to signing by the insured in order to be a valid rejection and that failure to comply with the proper confection of a UM rejection is not subject to reformation. Mr. Hall asserts that the insurer is responsible for making sure the form is completely filled out, Gray, supra, and that the Federated Mutual insurance agent admitted that it was his oversight that the box was not checked on the UM rejection form at issue. He claims that this makes the form incomplete and, therefore, invalid. We disagree.

We concur with Federated Mutual that all six of the Duncan requirements for a valid UM rejection form were met when these two forms are considered. The forms clearly indicate that Mr. Ouellette was opting to reject all UM coverage except for officers, directors, partners, owners or family members for whom he selected a reduced UM coverage limit of $100,000. We conclude that the trial court correctly held that a “mere |7oversight” should not be allowed to invalidate the rejection. We further agree that Gray, supra, is factually distinguishable and, thus, not controlling, since Mr. Ouellette completed the forms prior to signing them.

We note that Mr. Hall argues that the Federated Mutual insurance agent conceded in his testimony that he was responsible for the oversight. The agent’s acceptance of responsibility, however, does not affect the legal validity of Mr. Ouellette’s UM coverage rejection or the legal efficacy of the rejection forms at issue. In summary, we find that the trial court properly concluded that the UM rejection forms at issue are valid as a matter of law.

Alternatively, Mr. Hall argues that he is an officer of Spillers Oil and, thus, is entitled to UM coverage up to $100,000. At the hearing on the motion for summary judgment, Mr. Hall presented testimony that he “managed” or “ran” the Bonita office and that he made purchases from various vendors for the business. We are not persuaded by Mr. Hall’s argument. Mr. Hall was employed as a truck driver in the Bonita office of Spillers Oil and had no authority to transact business for the company. The trial judge correctly opined that it would be “absurd” to consider Mr. Hall an officer of Spillers Oil. Accordingly, Mr. Hall is not a covered insured under the limited coverage afforded to officers, directors, partners or owners of Spillers Oil.

CONCLUSION

For the foregoing reasons, the summary judgment in favor of Federated Mutual Insurance Company and dismissing it from the suit is affirmed at the cost of Phillip Hall.

AFFIRMED.


author: GASKINS, J.

text:
    STATE of Louisiana, Appellee v. Darry Ray ELMORE, Appellant.
    No. 46,833-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 14, 2011.

      James E. Beal, Louisiana Appellate Project, Jonesboro, LA, for Appellate.
    Jerry L. Jones, District Attorney, Fred R. MeGaha, Assistant District Attorney, for Appellee.
    Before BROWN, GASKINS and PEATROSS, JJ.
   GASKINS, J.

|, The defendant, Darry Ray Elmore, appeals as excessive his sentence to 32 years at hard labor following his plea of guilty to manslaughter. For the following reasons, we affirm the defendant’s conviction and sentence.

FACTS

On March 17, 2010, the defendant went to a skating rink with a group of people including the victim, Emanuel Neal. The defendant became involved in an argument concerning a female and a fight broke out. The defendant and several others left the skating rink and went to a parking lot located at a housing unit. Another argument erupted between the defendant and the victim. The defendant had a knife and threatened to stab Mr. Neal if he got close. The victim approached and then backed away. The confrontation continued and Mr. Neal again approached the defendant, was threatened by the defendant, and again backed away. The defendant told Mr. Neal that if he stepped up on the sidewalk where the defendant was standing, he was going to stab him. Mr. Neal stepped up onto the sidewalk; the defendant stabbed the victim numerous times and then ran away. The victim ran away as well, but collapsed on the patio of one of the housing units. He was taken to a hospital where he died the next day.

The autopsy report showed that the 33-year-old victim was stabbed seven times. The most severe injury was a stab wound to the neck that damaged multiple veins and the left carotid artery. This wound was 4.5 inches in length. According to the autopsy report, the depth of the wound was difficult to assess, but tool marks were noted on the cervical vertebral bodies in the bed of the wound.

| ¡(Witnesses told police that the defendant stabbed Mr. Neal. The police eventually located the defendant at an apartment in the area of the offense. The defendant attempted to flee, but was apprehended and arrested. The defendant admitted stabbing Mr. Neal.

The defendant was indicted for the second degree murder of Mr. Neal. In February 2011, the defendant entered into a plea agreement whereby he was allowed to enter a plea of guilty to the reduced charge of manslaughter. There was no agreement as to the sentence the defendant would receive. The trial court determined that the defendant was competent to enter a plea of guilty and informed him of the rights waived by a plea of guilty under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The defendant was advised that the maximum sentence for manslaughter was 40 years at hard labor. The trial court accepted the defendant’s plea of guilty to manslaughter and ordered a presentence investigation (PSI) report prior to sentencing.

The defendant appeared before the court in April 2011, and was sentenced to serve 32 years at hard labor. The defendant filed a motion to reconsider the sentence, arguing that the sentence was excessive because he was provoked by the victim. The trial court denied the motion to reconsider the sentence. The defendant appealed.

EXCESSIVE SENTENCE

The defendant argues on appeal that the sentence imposed is excessive. This argument is without merit.

|oLegal Principles

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Key, 46,119 (La.App.2d Cir.3/2/11), 58 So.3d 578, writ denied, 2011-0594 (La.10/7/11), 71 So.3d 310. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. State v. Landos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App.2d Cir.8/13/08), 989 So.2d 267, writ denied, 2008-2697 (La.9/18/09), 17 So.3d 388. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Key, supra. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351.

On the second prong of the excessiveness test, the court must determine whether a sentence violates La. Const. Art. I, § 20. A sentence violates La. Const. Art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless |4infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379.

A trial court has broad discretion to sentence within the statutory limits. Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Germany, 43,239 (La.App.2d Cir.4/30/08), 981 So.2d 792, State v. Key, supra. This is particularly true in cases where a significant reduction in potential exposure to confinement has been obtained through a plea bargain and the offense involves violence upon a victim. State v. Key, supra.

Absent a showing of manifest abuse of the trial court’s sentencing discretion, this court may not set aside a sentence as excessive. State v. Guzman, 1999-1528, 1999-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App.2d Cir.5/12/04), 873 So.2d 939; State v. Lingefelt, 38,038 (La.App.2d Cir.1/28/04), 865 So.2d 280, writ denied, 2004-0597 (La.9/24/04), 882 So.2d 1165.

| ¿The offense of manslaughter is defined in La. R.S. 14:31, which provides in pertinent part:

A. Manslaughter is:

1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed....

The statute also provides that, under the facts present in this case, whoever commits manslaughter shall be imprisoned at hard labor for not more than forty years.

Discussion

At the sentencing hearing, the trial court stated that it reviewed the defendant’s PSI report as well as a detailed filing made on behalf of the defendant. The sentencing court considered the defendant’s summary of facts as well as the defendant’s criminal history. The court stated that it charged itself with the relevant provisions of La. C. Cr. P. art. 894.1. The court outlined the facts of the offense.

According to the PSI report, the present offense was the defendant’s second felony conviction. In March 1998, he pled guilty to possession of cocaine and received a three-year hard labor sentence which was suspended. The defendant was placed on probation for three years and successfully completed his probation.

IfiThe sentencing court noted that the defendant had six misdemeanor convictions. In 1996, he was convicted of disturbing the peace by intoxication. In 1997, he was charged with simple battery and aggravated assault with a firearm and pled guilty to the reduced charge of disturbing the peace. Also in 1997, the defendant pled guilty to resisting an officer by flight. In 2001, the defendant was charged with domestic abuse battery and pled guilty to the reduced charge of disturbing the peace by fighting. In 2005, the defendant pled guilty to aggravated assault. The defendant pled guilty again in 2005 to disturbing the peace.

The sentencing court considered the defendant’s social history, including the fact that he was raised primarily by his mother and an aunt, that he dropped out of school in the ninth grade, and that he had a limited history of employment. The court noted that the defendant has six children ranging in ages from 12 to three years old. He does not pay child support.

The sentencing court considered correspondence submitted on behalf of the defendant as well as the defendant’s request for forgiveness from the family and friends of the victim. The court reviewed information in the PSI report concerning interviews with the victim’s parents stating that the victim had been trying to help the defendant find employment, but that the defendant’s criminal history was making that task difficult. The victim’s parents asked that the defendant receive the maximum sentence possible.

The sentencing court found that there was an undue risk that the defendant would commit another crime if given a suspended sentence or probation, that the defendant is in need of correctional treatment or ^custodial environment that can most effectively be provided by his commitment to an institution, and that a lesser sentence would deprecate the seriousness of the defendant’s crime. The sentencing court stated that it found that no aggravating or mitigating circumstances applied in this case. In light of all the factors considered, the defendant was sentenced to serve 32 years at hard labor.

The defendant argues that the sentencing court failed to consider that he acted out of fear. Nothing in the record indicates that the victim was armed or threatened the defendant in any way. The defendant was the armed aggressor who brutally attacked and killed the victim. The record shows that the sentencing court adequately considered the criteria set forth in La. C. Cr. P. art. 894.1 in imposing sentence.

The sentence is not constitutionally excessive. It is not grossly out of proportion to the seriousness of the offense and does not shock the sense of justice. The defendant, originally charged with second degree murder, received a significant reduction in potential exposure to incarceration by being allowed to plead guilty to manslaughter. The present offense involved violence which resulted in the death of the victim and the defendant had a criminal history involving violence. The sentence imposed was significantly less than the maximum which could have been imposed for this offense. After reviewing all the factors in this case, the trial court acted within its discretion in sentencing the defendant to serve 32 years at hard labor.

^CONCLUSION

For the reasons stated above, we affirm the conviction and sentence of the defendant, Darry Ray Elmore, for manslaughter.

AFFIRMED.