text:
    STATE of Louisiana, Appellee v. Tina FREE, Appellant.
    No. 46,894-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 25, 2012.

      Louisiana Appellate Project, by Carey J. Ellis, III, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, John W. Montgomery, Marcus R. Patillo, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and SEXTON (Pro Tempore), JJ.
   STEWART, J.

|,As a result of a plea agreement, the defendant, Tina Free, pled guilty to forgery, a violation of La. R.S. 14:72. She was sentenced to seven years’ imprisonment at hard labor, consecutive to any other sentence. The defendant now appeals. For the reasons discussed below, we affirm the defendant’s conviction and sentence.

FACTS

Between February 2009 and June 2009, the defendant stole several of Harland Payne’s checks from his truck in Webster Parish, forged the checks, and either cashed them, or had someone else cash them. She received approximately $1,238.00 from the stolen checks.

The defendant was charged with monetary instrument abuse pursuant to La. R.S. 14:72.2. Pursuant to a plea agreement, she pled guilty to forgery, a violation of La. R.S. 14:72.

During the sentencing hearing, which took place on November 29, 2010, the trial judge noted the facts of the instant offense, as well as Payne’s son’s desire that a “stiff penalty” be imposed on someone who would prey on an elderly person. Payne was 75 years old at the time of the offense. The trial judge recognized the defendant’s lengthy criminal history, which included prior felony convictions for forgery, simple burglary, and simple burglary of an inhabited dwelling. The presentence investigation revealed that the defendant was classified as a third felony offender, although she actually had seven felony convictions. Moreover, the defendant was on Izprobation for a previous felony conviction of illegal possession of stolen things at the time that the current offense occurred.

Following the sentencing hearing, the defendant was sentenced to seven years’ imprisonment at hard labor, to be served consecutive to any other sentence. A timely motion to reconsider sentence was denied. The instant appeal ensued.

LAW AND DISCUSSION

In the defendant’s sole assignment of error, she asserts that the trial court erred by imposing an excessive sentence.

A trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of discretion, this court will not set aside a sentence as excessive. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7; State v. McCall, 37,442 (La.App.2d Cir.8/20/03), 852 So.2d 1162, writ denied, 04-0039 (La.12/17/04), 888 So.2d 858. On review, the appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. Id.

In reviewing claims of excessive sentence, an appellate court uses a two-step process. First, the record must show, as it does here, that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects that it adequately considered the guidelines of the article. State v. Smith, 483 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641.

IsThe 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. 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). 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. Haley, 38,258 (La.App.2d Cir.04/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.06/24/05), 904 So.2d 728. There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385.

Second, the determination of whether the sentence imposed is too severe is contingent upon the circumstances of the case and the background of the defendant. A sentence violates La. Const. Art. 1, § 20 when it imposes a punishment grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1. 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. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

I/Fhe record shows that the trial court considered the aggravating and mitigating circumstances, thereby complying with La. C.Cr. P. art. 894.1, and tailored the sentence to the instant offense and this offender. The presentence investigation report reviewed by the trial court indicates that the background of the defendant and the circumstances of the case support the seven-year sentence. As stated in the facts section above, the defendant was named a third felony offender in the pre-sentence investigation report, but she actually had seven felony convictions. The instant offense is not an isolated incident, but rather involves several incidents of the defendant cashing forged checks over the span of several months.

After reviewing the record, we find that the defendant’s sentence is not constitutionally excessive. The imposition of the seven-year consecutive sentence is not grossly disproportionate to the severity of the offense, nor is it shocking to the sense of justice. The assignment of error bears no merit.

CONCLUSION

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . Codefendants Carl Hood, Tiffany Hood, Sue Howard, Russel Neal, and Susan Trichel were also charged in connection with the instant offense.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    Vester JOHNSON, Plaintiff-Appellant v. CITY OF COUSHATTA and Coushatta City Police Dept., Defendant-Appellee.
    No. 46,914-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 25, 2012.

      Vester Johnson, In Proper Person.
    Bethard & Bethard, L.L.P., Coushatta, LA, by James G. Bethard, for Appellee.
    Before STEWART, DREW and LOLLEY, JJ.
   DREW, J.

hln 2008, Yester Johnson was convicted of the aggravated rape of his wife’s eight-year-old granddaughter. His conviction and mandatory life sentence were affirmed by this court. State v. Johnson, 43,843 (La.App.2d Cir.1/28/09), 2 So.3d 606, writ denied, 2009-0464 (La.11/6/09), 21 So.3d 300. Johnson is currently serving his sentence at Louisiana State Penitentiary in Angola, Louisiana.

On November 30, 2010, Johnson wrote to the Custodian of Records for the Cous-hatta Police Department asking for the cost of all reports concerning an incident that occurred at 1613 Brittan Street in Coushatta on or about January 3, 2006. The incident involved Officer Joey Miller responding to a call from “LT,” the victim’s father, asking for assistance in getting his car.

On February 7, 2011, Johnson filed a petition for writ of mandamus and civil penalties against the City of Coushatta and the Coushatta Police Department (together referred to as “Coushatta”). Johnson complained that he had not been provided with the cost of the report, or even told whether the report existed. He further complained that he needed the information for his supplemental application for post conviction relief and to use in his motion requesting a new trial.

On February 17, 2011, Coushatta’s attorney wrote to Johnson that the requested report did not exist. The letter suggested that Johnson may have been inquiring about a January 2, 2006, report for an incident that occurred at 1211 East Carroll Street. That report was enclosed with the letter, and apparently it was the report that was the subject of Johnson’s inquiry.

| PiCoushatta filed the exceptions of no cause of action and no right of action. The trial court granted the exception of no cause of action and dismissed Johnson’s claims against Coushatta. The court noted that because Johnson had exhausted his appellate remedies, he was not entitled to the rights provided by La. R.S. 44:1. The court recognized that Johnson’s rights were covered by La. R.S. 44:31.1, and his request was- limited to a ground upon which he could file for post conviction relief under La. C.Cr.P. art. 930.3. The trial court concluded that although La. R.S. 44:35 provides relief to a party denied the right to inspect or copy a record, Johnson was not denied this right. Finally, the trial court noted that Coushatta had used its best efforts to comply with Johnson’s request by furnishing him with a copy of the report that it possessed.

DISCUSSION

The peremptory exception of no cause of action tests the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the petition. Gipson v. Fortune, 45,021 (La.App.2d Cir.1/27/10), 30 So.3d 1076, writ denied, 10-0432 (La.4/30/10), 34 So.3d 298. The exception is triable on the face of the petition, and, for the purpose of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. Fink v. Bryant, 01-0987 (La.11/28/01), 801 So.2d 346.

Louisiana recognizes a right to receive copies of public documents and records. Article XII, Section 3 of the Louisiana Constitution provides, “No person shall be denied the right to ... examine public documents, |sexcept in cases established by law.” See also La. R.S. 44:31(B)(2), which states:

Except as otherwise provided in this Chapter or as otherwise specifically provided by law, and in accordance with the provisions of this Chapter, any person may obtain a copy or reproduction of any public record.

A remedy of enforcement is provided when the right to inspect or copy a record has been denied. See La. R.S. 44:35.

An exception to the right to inspect or copy public documents and records for certain prisoners is found in La. R.S. 44:31.1, which states, in part:

For the purposes of this Chapter, person does not include an individual in custody after sentence following a felony conviction who has exhausted his appellate remedies when the request for public records is not limited to grounds upon which the individual could file for post conviction relief under Code of Criminal Procedure Article 930.3.

La.C.Cr.P. art. 930.3 sets forth the grounds for post conviction relief.

As noted by the trial court, the petition did not allege that the requested report which Johnson was seeking the cost of was pertinent to a ground upon which he could file a petition for post conviction relief. As alleged in Johnson’s petition, he was interested in the report because “LT” did not say anything about his daughter’s rape allegation to the police Lofficer helping him with his car, but he later told another officer at a truck stop about the allegations. Johnson also asserted in his petition that he needed the report to support his claim of innocence, to support his supplemental application for post conviction relief, and to use as an exhibit in his motion requesting a new trial based on newly discovered evidence and information. Johnson’s petition does not establish that his request for the cost of the report is limited to grounds upon which he could file a petition for post conviction relief.

Johnson sought damages for Cous-hatta’s failure to provide him with the cost of the report. La. R.S. 44:35(E)(1) allows an award of a civil penalty only when it is found that the custodian unreasonably or arbitrarily failed to respond to the request to inspect or receive a copy of a public record.

We note that Johnson did not actually request a copy of a report. He requested only the cost of a copy of a report — a document that did not exist. After he filed his petition, he was provided, free of charge, a copy of another report which Coushatta’s attorney thought might be what Johnson wanted. It was.

We agree with the trial court that Cous-hatta used its best efforts to comply with Johnson’s request. We find no error in the trial court. The granting of the exception of no cause of action and the dismissal of Johnson’s petition were entirely justified, appropriate, and lawful.

At Johnson’s cost, the judgment is AFFIRMED.

      . (1) The conviction was obtained in violation of the constitution of the United States or the state of Louisiana. (2) The court exceeded its jurisdiction. (3) The conviction or sentence subjected him to double jeopardy. (4) The limitations on the institution of prosecution had expired. (5) The statute creating the offense for which he was convicted and sentenced is unconstitutional. (6) The conviction or sentence constitute the ex post facto application of law in violation of the constitution of the United States or the state of Louisiana. (7) The results of DNA testing performed pursuant to an application granted under Article 926.1 proves by clear and convincing evidence that the petitioner is factually innocent of the crime for which he was convicted.


author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee v. Daniel MURRAY, Appellant.
    No. 46,895-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 25, 2012.
    Frank E. Brown, Jr., Shreveport, LA, Jacqueline Scott, Bossier City, LA, Walter W. Gerhardt, Shreveport, LA, for Appellant.
    J. Schuyler Marvin, District Attorney, John Michael Lawrence, John W. Montgomery, Assistant District Attorneys, for Appellee.
    Before BROWN, CARAWAY, and DREW, JJ.
   BROWN, Chief Judge.

| ^Defendant, Daniel Murray, was charged in a two-count Grand Jury indictment with forcible rape, a violation of La. R.S. 14:42.1, and molestation of a juvenile, a violation of La. R.S. 14:81.2. Defendant was 38 years old at the time, and the victim was the 16-year-old daughter of defendant’s girlfriend. The crime occurred on January 21, 2009, at defendant’s apartment in Minden, Louisiana. Defendant pled not guilty and pursued, through his retained attorneys, an aggressive pretrial strategy. On the trial date, defendant entered into a plea agreement. The first count of the indictment, forcible rape, was dismissed, and the second count, molestation of a juvenile, was amended to a lesser charge of cruelty to juveniles, a violation of La. R.S. 14:93. Defendant pled guilty to cruelty to juveniles. A pre-sentence investigation was ordered, and the court received information from both defendant and the victim’s family. After fully considering all of this information, the trial court sentenced defendant to the maximum jail term of ten years at hard labor. Defendant filed two motions to reconsider sentence. He argued that the sentence imposed, the maximum allowable, was excessive because of his lack of a prior criminal record, his eligibility for a probated sentence, and because as originally charged he was exposed to a significantly greater prison sentence. The trial court, without a hearing, denied the motions to reconsider the sentence. We affirm.

Facts

The factual basis stated at the guilty plea by the prosecutor was as follows:

[I]f this matter were to go to trial today, Your Honor, we would show that this defendant did intentionally or criminally mistreat in a ^negligent manner a person who is under the age of 17 and that he is over the age of 17, whereby unjustifiable suffering is caused to the said child. And that we would — we would call witnesses and offer testimony that would show that on or about January 21, 2009, a young girl who was at that time 16 years old had just, as a matter of fact, turned 16 by about two days. That she was in Minden, Webster Parish, Louisiana in the apartment of the defendant. That she was sleeping. That he came into the couch — into the room where she was and that she was masturbating or a conduct that is similar to masturbation. That he came over and sat down on the couch beside her and talked to her. He also — we would offer testimony to show that — that he had touched her in some fashion and that he had present with him a police dog, he being a canine officer, and that the child was afraid of the dog and that she did not resist any of his activity because of the fact that she was concerned and afraid of the dog, plus his size made her not resist any of the activity which he engaged in at that time.

When asked by the trial court if these facts were “substantially correct,” defendant responded, “[y]es, sir.”

Although defendant consistently denied having sexual intercourse with the victim, the victim’s statements are to the contrary. The victim had been entrusted to defendant’s care by her mother, who had a long personal relationship with defendant. The teenager was sleeping on a couch in defendant’s apartment while her mother took her younger sister to a medical appointment. After the victim’s mother left the apartment, defendant, then a Minden Police Officer, entered the room, sat down beside the victim and asked her if “she wanted to play.” He then removed her pants and underwear and had sexual intercourse with her. The victim stated that she told defendant “no,” but she did not fight or scream because she was afraid of defendant’s German Shepherd police dog. The dog was known to attack anyone that acted aggressively toward defendant.

|sThe impact on the victim and her family was detailed in a letter to the court from the victim’s grandmother. She wrote that the victim suffered from episodes of depression and is a changed person as a result of defendant’s actions. Additionally, the young victim continues to be deeply troubled by the incident and fears retribution from defendant. The record in this case reveals that the victim even attempted to harm herself due to the trauma she experienced.

The trial court noted its review of the contents of the PSI, as well as letters from defendant, defendant’s family and the victim’s grandmother. The trial court considered as mitigating factors that defendant was a veteran of the U.S. Marine Corps, had served formerly as an officer with the Bossier City Police Department and Min-den Police Department, and had no prior criminal record. The trial court also considered aggravating factors, namely the seriousness of defendant’s original charges and the negative impact of his actions upon the victim and her family. Further, the court noted that defendant “benefitted greatly from the plea agreement” which allowed him to plead guilty to a lesser offense.

Discussion

Excessive Sentence

Defendant argues that maximum sentences are generally appropriate in cases involving the most serious violation of the offense and the worst |4type of offender. State v. Russell, (La.App.2d Cir.09/26/07), 966 So.2d 154, writ denied, 07-2069 (La.03/07/08), 977 So.2d 897. However, where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in his 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. Black, 28,100 (La.App.2d Cir.02/28/96), 669 So.2d 667, writ denied, 96-0836 (La.09/20/96), 679 So.2d 430; State v. Richardson, 446 So.2d 820 (La.App. 2d Cir.1984).

Defendant points to a case from the Third Circuit Court of Appeal, wherein the court held that the defendant’s maximum sentence for cruelty to juveniles was excessive when compared to similarly situated offenders and the nature of the offense. State v. Strother, 09-110 (La.App. 3d Cir.10/07/09), 19 So.3d 598, decision aff'd in part, rev'd in part, 09-2357 (La.10/12/10), 49 So.3d 372. The Louisiana Supreme Court, however, overturned part of the Third Circuit’s ruling, reinstating the maximum sentence originally imposed by the trial court. The supreme court opined that:

[T]he goal of sentence review is not to fine tune the sentence imposed according to what an appellate court may conclude is the more appropriate punishment for the offense and for the particular offender, but to identify those sentences which fail to serve any recognized penological goals of sentencing and thus result in the needless infliction of pain and suffering.

State v. Strother, 09-2357 (La.10/22/10), 49 So.3d 372, 382.

In the instant case, the victim had been entrusted to defendant’s care by her mother, who had a long personal relationship with defendant. She |5was threatened by defendant’s size, approximately 5'11" and 250 lbs., and a trained attack dog. There was a severe, lasting impact on this victim who looked up to defendant as a father figure.

Defendant also contends that the sentence is excessive because, although he benefitted from the plea agreement, so too did the state. This argument is without merit. Defendant agreed to plead guilty to the charge of cruelty to juveniles in exchange for the state not seeking to convict of him of the original charges, which carry far more severe penalties. The agreement did not provide for a recommendation of any particular sentence to the trial court. Defendant’s motivation for pleading guilty is only a fact for the trial court to consider.

When this offense and the ten-year hard labor sentence are viewed in light of the harm done to society and the young victim, our sense of justice is not shocked. While defendant was sentenced to the maximum prison term for the pled offense, he also received a significant benefit from his plea agreement, which decreased the maximum possible sentence from sixty to ten years. Forcible rape is punishable by imprisonment at hard labor for not less than five nor more than forty years. La. R.S. 14:42.1(B). Molestation of a juvenile is punishable by a term of imprisonment not less than five nor more than twenty years with or without hard labor and a fine not more than ten thousand dollars. La. R.S. 14:81.2(C). Therefore, the sentence imposed does not reflect a manifest abuse of the trial court’s discretion, nor is it constitutionally excessive.

| ⅛Denial of Motions to Reconsider Sentence

Defendant contends that the trial court erred in denying his two motions to reconsider sentence. We note that defendant provides virtually no support for this argument. Having determined that defendant’s sentence is not constitutionally excessive, we find no error in the trial court’s decision to deny the motions to reconsider sentence.

Conclusion

For the reasons set forth above, defendant’s sentence is AFFIRMED.

      . The victim reported the incident two days after it occurred to a counselor at a church camp she attended.

      . We note that the victim had suffered depression problems prior to this incident due to abuse from her former stepfather.

      .The court did note that Murray had a previous misdemeanor conviction as a teenager resulting from "some high school prank” but had no other criminal history.

      . 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. at 334. The trial court need not articulate every mitigating circumstance, but the record must reflect that the court adequately considered the sentencing guidelines in particularizing the sentence to the defendant. State v. Lathers, 414 So.2d 678 (La.1982); State v. Cass, 46,228 (La.App.2d Cir.04/13/11), 61 So.3d 840.
      The second prong is constitutional exces-siveness. 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. 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 reasonable contribution to acceptable penal goals. State v. Guzman, 99-1528 (La.05/16/00), 769 So.2d 1158; State v. Ashley, supra.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Sean Patrick MASTIN, Appellant.
    No. 46,958-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 25, 2012.
    Louisiana Appellate Project by James E. Beal, Jonesboro, LA, for Appellant.

      Charles R. Scott, District Attorney, Sarah Midboe, J. Aaron Crawford, Brian H. Barber, Assistant District Attorneys, for Appellee.
    Before DREW, MOORE and LOLLEY, JJ.
   MOORE, J.

|, Sean Patrick Mastín appeals as excessive his sentence of 2 ⅛ years at hard labor for his conviction of attempted simple kidnapping. We affirm.

The incident occurred late on October 5, 2009. According to Ashley Gordon, the ex-girlfriend who had just recently ended their relationship, Mastín was texting her steadily, wanting to know where she was, but she repeatedly told him to leave her alone. Late that evening, after she got home from a date with her new boyfriend (and eventual fiancé), Mastín drove to her trailer on West 70th Street in Shreveport, knocked on the door and entered uninvited. The two promptly got into an argument, ostensibly about a cell phone; Mas-tín grabbed the phone from her and ran out to his car as Ms. Gordon chased him. According to Ms. Gordon, Mastín grabbed her, shoved her in the driver’s door, then he himself got behind the wheel and drove off. Ms. Gordon was adamant that she did not want to go with him.

Mastín got on 1-20, drove east into Bossier City, turned around near Louisiana Downs, and took the 1-220 loop back across the river. At some point, he calmed down and returned the cell phone to Ms. Gordon, who called her mother, who placed a three-way call to police to report the incident. Corporal Michael Murphy, who fielded the call, testified that he could hear a man screaming, “Bitch, I’m not letting you out of the car!” A K-9 officer spotted the car going east on 1-20 near Linwood Avenue, got Mastín to pull off at the Common and Line Street exit, and stopped him in the Doctor’s Hospital parking lot. Ms. Gordon got out unharmed and was driven back to her trailer; Mastín was taken into custody and given his Miranda rights. Corporal Murphy testified that en route to the station, | ¡.Mastín admitted he should not have done this, and he should have let her out along the way.

The state charged Mastín by bill of information with simple kidnapping and aggravated burglary; however, it declined the latter charge. Mastín proceeded to a two-day jury trial in December 2010. The witnesses testified as outlined above. In his own defense, Mastín testified that Ms. Gordon was simply lying about the incident: he actually lived in the trailer, and at the time of the incident, they were still a couple; the cell phone he grabbed belonged to him; she followed him to the car, kissing him and begging him not to leave; she could have got out of the car anytime; he was still writing her love letters from jail; and it was all part of their volatile relationship. Defense counsel argued that the victim was a “drama queen.” The jury rendered the responsive verdict of attempted simple kidnapping.

At sentencing the district court noted that Mastín had continued writing to Ms. Gordon after trial, raising the risk that he would commit another crime if he received a suspended sentence or probation. The court imposed the statutory maximum of 2 ½ years at hard labor and ordered Mastín to have no further contact with Ms. Gordon or her family.

Mastín has appealed, urging only that the maximum sentence of 2 ½ years at hard labor is excessive for a 24-year-old offender with no prior felony record. The state responds that the sentence is appropriate, given the gravity of the offense, Mastin’s persistence in badgering this victim, and his tendency to blame the victim and her family instead of accepting responsibility for his own misconduct.

1 oOrdinarily, appellate review of sentences for excessiveness is a two-step process, the first being an analysis of the district court’s compliance with the sentencing guidelines of La. C. Cr. P. art. 894.1. However, when a defendant fails to file a motion to reconsider sentence in the lower court, appellate review is limited to the second step, an analysis of the sentence for constitutional excessiveness. State v. Mims, 619 So.2d 1059 (1993); State v. Williams, 45,755 (La.App. 2 Cir. 11/3/10), 54 So.3d 1129, writs denied, 2010-2682, -2706 (La.4/25/11), 62 So.3d 82, 89. The record does not show that Mastín filed a motion to reconsider; thus, our review is limited to the bare claim of constitutional excessiveness.

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. Dorthey, 623 So.2d 1276 (La.1993); State v. Lobato, 603 So.2d 739 (La.1992). 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 reasonable contribution to acceptable penal goals. State v. Guzman, 99-1753 (La.5/16/00), 769 So.2d 1158. Normally, sentences at or near the maximum are reserved for the worst offenders and the worst offenses. State v. Cozzetto, 2007-2031 (La.2/15/08), 974 So.2d 665. Nevertheless, the sentencing court has wide discretion in imposing a sentence within statutory limits, and such a sentence will not be set aside as excessive in the absence of manifest abuse of that discretion. State v. Williams, 2003-3514 (La.12/13/04), 893 So.2d 7.

[/The maximum sentence for attempted simple kidnapping is 2 ½ years at hard labor. La. R.S. 14:45, 27; State v. Belcher, 34,616 (La.App. 2 Cir. 6/20/01), 793 So.2d 262.

Trial testimony showed that as a prelude to this offense, Mastín harassed Ms. Gordon with a barrage of calls and text messages. After his arrest, despite an order not to contact her, he continued to call and send her letters from jail. At sentencing, the court was unfavorably impressed by the fact that even after his conviction, Mastín still sent Ms. Gordon love letters. One of these declared, “I will not give up the fight for your heart because you are so very special to me.” Although he had no prior felony record, he admitted that two years earlier he had harassed another former girlfriend, and violated a protective order, by calling and texting her, even driving to her place of work in Destín, Florida, to confront her in person. This pattern of behavior only amplifies the district court’s concern that a suspended or probated sentence, or even a lesser sentence, would create a window of opportunity for further rash conduct that might escalate into actual bodily harm. Although the sentence is the maximum, it is not out of proportion to this offense and offender, and is no abuse of the court’s wide discretion. State v. Guzman, supra. The assignment of error lacks merit.

We have also reviewed the entire record and find nothing we consider to be error patent. La. C. Cr. P. art. 920(2). The conviction and sentence are therefore affirmed.

AFFIRMED.


author: GASKINS, J.

text:
    Derrick YOUNG, Sr. and LaWanda Young, Individually and on Behalf of their Minor Children, Demeante Young, Derrick Young, Jr., Dorian Young and Derrilon Young, Plaintiffs-Appellants v. Johnny MARSH, City of Tallulah Fire Department, the City of Tallulah and XYZ Insurance Company, Defendants-Appellees.
    No. 46,896-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 25, 2012.

      Law Offices of Mason L. Oswalt, Monroe, LA, by Mason L. Oswalt, Murphy, Rogers, Sloss & Gambel, New Orleans, LA, by Ronald Joseph White, for Plaintiffs-Appellants.
    Carol Powell Lexing, Monroe, LA, for Defendants-Appellees Johnny Marsh, City of Tallulah, and City of Tallulah Fire Dept.
    Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, by Brandon A. Sues, Sarah S. Couvillon, for Defendant-Appellee Madison Parish Police Jury.
    Before GASKINS, LOLLEY and SEXTON (Pro Tempore), JJ.
   GASKINS, J.

| derrick Young, Sr., is a deputy with the Madison Parish Sheriffs Department. He was injured while responding to a 911 call when his patrol car was struck by a fire truck driven by Johnny Marsh, a firefighter with the City of Tallulah and a volunteer firefighter with the Madison Parish Police Jury (“MPPJ”). Mr. Young and his wife, LaWanda Young, and their children, Demeante, Derrick, Jr., Dorian, and Derrilon, filed suit against Mr. Marsh, the City of Tallulah Fire Department, the City of Tallulah, the MPPJ, and St. Paul Fire & Marine Insurance Company. The MPPJ filed a motion for summary judgment which was granted by the trial court, dismissing the plaintiffs’ claims against that entity. The plaintiffs have appealed. For the following reasons, we affirm the trial court judgment.

FACTS

On June 17, 2007, at 6:54 a.m., Mr. Young was responding to an emergency call regarding a car overturned on Interstate 20. Mr. Marsh, driving a City of Tallulah fire truck, was also responding to the call. Mr. Marsh was employed by the City of Tallulah Fire Department, and also answered calls as a volunteer firefighter with the MPPJ.

As they approached an intersection, Mr. Young alleges that he had a green light and that Mr. Marsh ran a red light, struck his patrol vehicle, and the patrol car then hit a utility pole. Mr. Young claims that Mr. Marsh had a suspended driver’s license due to failure to maintain insurance. The accident occurred in Madison Parish, outside the Tallulah city limits.

Mr. Young suffered injuries to his head, neck, arms, back, and legs. He filed suit along with his wife and children against the defendants. He |2claims damages for past, present, and future pain and suffering; physical disability; loss of enjoyment of life; lost earnings; loss of earning capacity; loss of future earnings; past, present, and future medical expenses; emotional distress; attorney fees, interest, and costs; and expert witness fees. LaWanda claims damages for loss of consortium and the couple’s four children seek damages for mental anguish.

The plaintiffs allege that the MPPJ hired Mr. Marsh to act as a volunteer firefighter and that he was acting in the course and scope of his employment with the MPPJ at the time of the accident. The plaintiffs claim that Mr. Marsh was paid for every run, and that the MPPJ had the right to control his salary, rate of compensation, and the number of calls he received in Madison Parish. The plaintiffs maintain that the MPPJ had the right to discipline or terminate Mr. Marsh, and that the MPPJ negligently hired and contracted with the City of Tallulah and with Mr. Marsh. The plaintiffs urge that the MPPJ failed to exercise reasonable diligence in investigating to determine whether Mr. Marsh was a licensed driver and had liability insurance. The plaintiffs claim that the MPPJ should be held liable or vicariously liable for the actions of Mr. Marsh and/or the City of Tallulah and/or the City of Tallulah Fire Department.

On September 20, 2010, the MPPJ filed a motion for summary judgment claiming that under La. R.S. 42:1441.3, Mr. Marsh was not an employee of the MPPJ.

|4A hearing was held on April 13, 2011, on the plaintiffs’ motion to compel discovery and the MPPJ’s motion for summary judgment. Regarding the motion to compel, the plaintiffs claimed that the MPPJ was attempting to conceal payments to volunteer firefighters during the time when this accident occurred. The plaintiffs requested bank records to verify when volunteers were paid by the police jury. The police jury objected to producing records for anyone other than Mr. Marsh. The plaintiffs also claimed that some records regarding volunteer firefighter pay were in a different format from those previously produced. The trial court found that the additional discovery sought by the plaintiffs was not relevant or necessary in order for the court to rule on the motion for summary judgment. The motion to compel was denied.

Regarding the motion for summary judgment, the MPPJ argued that Mr. Marsh was not its employee under the factors listed in La. R.S. 42:1441.3(C). The MPPJ claimed that it did not have the power of selection or engagement over Mr. Marsh because he was employed by the City of Tallulah. The police jury argued that it did not supervise Mr. Marsh or have the right of control over him; it maintained that the police jury did not set Mr. Marsh’s work schedule. The MPPJ contended that it did not have the right to discipline or terminate Mr. Marsh and that he did not receive any compensation for this fire run.

The plaintiffs argued that the MPPJ paid $25,000 to $30,000 to the City of Tal-lulah for the use of the City’s fire equipment. The plaintiffs | fiurged that the MPPJ selected the number of volunteer firefighters and decided how much to pay them for each emergency run.

The trial court reasoned that the issue to be decided was whether the MPPJ or the City of Tallulah was to be considered the master of Mr. Marsh under La. R.S. 42:1441.3. The trial court determined that the MPPJ had no power of selection or engagement of Mr. Marsh and had no control of his daily time, physical activities, and no power of discipline. The trial court concluded that, under La. R.S. 42:1441.3(F), only one political subdivision can be vicariously liable for the torts of an employee. The trial court determined that the City of Tallulah was the master of Mr. Marsh, not the MPPJ. Therefore, the trial court granted summary judgment in favor of the MPPJ, dismissing the plaintiffs’ claims. A judgment to that effect was signed April 13, 2011. The plaintiffs appealed.

VICARIOUS LIABILITY

In their first three assignments of error, the plaintiffs essentially argue that the trial court erred in finding that the MPPJ was not vicariously liable for Mr. Marsh’s actions which resulted in injury to Mr. Young, when Mr. Marsh was responding to an emergency call outside the city limits of Tallulah and before his shift began for the City of Tallulah Fire Department. The plaintiffs contend that the trial court erred in finding that under La. R.S. 42:1441.3(F), the MPPJ is immune from vicarious liability when one of its volunteer firefighters negligently injures another when responding to a fire simply because that volunteer happens to be employed by another political subdivision.

lr,The plaintiffs contend that the trial court erred in finding that the MPPJ lacked the requisite control over Mr. Marsh to be held vicariously liable for his negligent acts when the police jury paid him for his services as a volunteer firefighter, the police jury designated the amount of compensation to pay the volunteer firefighters, the police jury designated the number of volunteer firefighters that can receive compensation for responding to emergency calls from Madison Parish, the police jury paid for equipment to be used by volunteers, the police jury wrote checks to the individual volunteers for their services each month, and Mr. Marsh was responding to an emergency call outside the city limits of Tallulah and before his shift began for the City of Tallulah Fire Department. The plaintiffs further urge that, at a minimum, genuine issues of material fact exist concerning the police jury’s control over Mr. Marsh such that the lower court should not have granted summary judgment. These arguments are without merit.

Legal Principles

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Palmer v. Martinez, 45,318 (La.App.2d Cir.7/21/10), 42 So.3d 1147, writs denied, 2010-1952, 2010-1953, 2010-1955 (La.11/5/10), 50 So.3d 804, 805. A motion for summary judgment is a procedural device used when there is no genuine issue of material fact. In re Clement, 45,454 (La.App.2d Cir.8/11/10), 46 So.3d 804. The summary judgment procedure is designed to secure the just, speedy and | ^expensive determination of every action allowed by law. La. C.C.P. art. 966(A)(2). A motion for summary judgment will 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 the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Palmer v. Martinez, supra.

The moving party bears the burden of proof. However, when he will not bear the burden of proof at trial on the matter before the court on summary judgment, the movant is not required to negate all essential elements of the adverse party’s claim; he need only point out an absence of factual support for one or more essential elements of the adverse party’s claim. If the adverse party then fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial, there is no genuine issue of material fact and summary judgment is appropriate. La. C.C.P. art. 966(C)(2); Russell v. Eye Associates of Northeast Louisiana, 46,525 (La.App. 2 Cir. 9/21/11), 74 So.3d 230.

Discussion

La. C.C. art. 2320 provides in pertinent part:

Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.
In the above cases, responsibility only attaches, when the masters or employers, ... might have prevented the act which caused the damage, and have not done it.
The master is answerable for the offenses and quasi-offenses committed by his servants, according to the rules which are ^explained under the title: Of quasi-contracts, and of offenses and quasi-offenses.

As set forth above, La. R.S. 42:1441.3(0 outlines the factors for determining which political subdivision may be made liable as master for the offenses and quasi offenses of a public employee of a political subdivision under Civil Code Article 2320 and other laws imposing such master-servant liability. These determinants for finding an employer-employee relationship include all of the following: (1) the public officer or governmental body politic that exercises the power of selection and engagement of the public employee; (2) the public officer or governmental body politic that supervises or has the right to control closely the daily time and physical activities of such public employee in carrying out his public duties; (3) the public officer or governmental body politic that exercises the power of disciplinary actions and dismissal of the public employee; and (4) the source of the funds used for the payment of salaries or wages of the public employee. In support of its motion for summary judgment, the MPPJ submitted the plaintiffs’ petition for damages, the affidavit of Margarett Dew, the secretary-treasurer of the MPPJ, and excerpts of the depositions of Mr. Marsh and of Eddie Beckwith, Jr., the mayor of the City of Tallulah.

In Ms. Dew’s affidavit, she stated that she is employed by the MPPJ and is responsible for all administrative and personnel activities and functions of the MPPJ. She explained that Mr. Marsh is not an employee of the MPPJ, but that he was an employee of the City of Tallulah. She said that the MPPJ had no control or right of control over Mr. Marsh; the MPPJ Ifldid not select Mr. Marsh from a pool of applicants or choose to engage his services; the MPPJ did not supervise the daily time and physical activities of Mr. Marsh; Mr. Marsh does not report to the MPPJ; the MPPJ does not provide any instruction to Mr. Marsh regarding when, where, or how to perform; and the MPPJ does not set hours for Mr. Marsh. She claimed that the MPPJ did not have the authority to dismiss, terminate, or issue disciplinary actions for Mr. Marsh or any of the employees of the City of Tallulah. According to Ms. Dew, the MPPJ did not train Mr. Marsh or provide him with any tools, materials, or equipment, and did not pay Mr. Marsh’s salary. She testified that Mr. Marsh received a $10 stipend for response to fires outside the Tallulah city limits. The MPPJ distributes money received from the state to the various fire districts in the parish. Ms. Dew said that the MPPJ did not report wages to the Internal Revenue Service for Mr. Marsh, did not withhold federal, state, or FICA tax for him, and did not issue a W-2 form for him. Ms. Dew asserted that the MPPJ did not own the fire engine involved in this accident. She claimed that the fire engine was owned by the City of Tallulah.

In the deposition given by Mr. Marsh on July 15, 2008, he testified that he is a salaried, full-time employee of the City of Tallulah Fire Department. He maintained that the MPPJ provides funding to the City of Tallulah Fire Department and that the MPPJ president would know whether the MPPJ supplied any funding to the City of Tallulah Fire Department.

Eddie Beckwith, Jr. stated that the City of Tallulah receives funds from the MPPJ for responding to fires in the entire parish. He said that |inMadison Parish furnishes $25,000 to $26,000 received from the State of Louisiana to compensate the City of Tallulah for the use of its equipment.

Based upon the affidavit and depositions, the MPPJ argued that it did not employ Mr. Marsh, had no right of control over him, and any funds paid by the MPPJ to the City of Tallulah Fire Department or the stipend of $10 per run paid to volunteer firefighters did not establish a relationship for imposing liability on the MPPJ.

In its opposition to the motion for summary judgment, the plaintiffs argued that under the factors of La. R.S. 42:1441.8, the MPPJ was the master of Mr. Marsh and was responsible for his actions at the time of this accident. In support of its position, the plaintiffs pointed to the excerpts from the depositions of Mr. Young, a plaintiff in this matter; Thomas J. Williams, the former president of the MPPJ; Mr. Beck-with; James Griffin, the president of the MPPJ; Mr. Marsh; and Raymond Doyle, who is employed as a firefighter with the City of Tallulah and is also a volunteer firefighter for the MPPJ. Mr. Young stated that he got the call to respond to the emergency on Interstate 20 at 6:40 a.m. Mr. Marsh, whose work shift with the City of Tallulah was from 7:00 a.m. to 7:00 p.m., said in his deposition that, on the morning of the accident, he had already arrived at work when he received the call.

In his deposition, Mr. Williams said that the City of Tallulah provided firefighting services for Madison Parish. The MPPJ gave state money received for providing for fire protection to the City of Tallulah. Regarding payment to volunteer firefighters, Mr. Williams stated that each month the Inpolice jury reviewed invoices and voted to approve payments. He testified that money to pay volunteer fire fighters came from the MPPJ general fund. The money was paid after a volunteer firefighter went to a fire. The police jury wrote a check directly to each volunteer firefighter.

Mr. Beckwith stated that the MPPJ provides funds to the City of Tallulah for providing fire trucks and equipment to fight fires in the parish.

Mr. Griffin said that there was no requirement for training volunteer firefighters who are paid from the Madison Parish general fund.

According to Mr. Doyle, on August 27, 2007, the MPPJ voted to raise the compensation of volunteers to $16.50 per run. He filed a W-9 to receive funds from the MPPJ.

The MPPJ filed a reply memo and attached additional exhibits in support of its argument that the MPPJ was not vicariously liable for the actions of Mr. Marsh. These documents included MPPJ minutes and excerpts from the depositions of Mr. Williams, Ms. Dew, Mr. Doyle, and Mr. Griffin. The MPPJ minutes of November 28, 2005, reflect that volunteer firefighters are not paid employees, but receive a $10 stipend toward their fuel costs for each run. The MPPJ minutes of August 27, 2007, state that the number of volunteer firefighters eligible to receive the stipend was increased from six to eight and the amount of the stipend was raised from $10 to $16.50 per run.

Mr. Williams stated that, as president of the MPPJ, he had no responsibility to govern or regulate emergency personnel in firefighting in Madison Parish. He discussed various fire districts in the parish which have 112their own boards and administration. The parish receives block grant funds from the state and then transfers the money to the fire districts. He said that the Tallulah Fire District responds to calls throughout the parish. The City of Tallulah fire chief submitted a list each month of individuals who attended fires in Madison Parish and the parish would vote to reimburse them for gasoline or travel. These were not payroll checks. The police jury did not select any of the volunteers. The fire districts did not report to the police jury. Madison Parish did not have its own fire district as some other parishes do. The City of Tallulah is responsible for hiring its employees for the fire department. The City of Tallulah fire chief had control over Mr. Marsh. The MPPJ had no authority to select or engage, supervise, instruct, set hours for, terminate, dismiss, or discipline Mr. Marsh who is an employee of the City of Tallulah.

According to Mr. Williams, Mr. Marsh was not a paid employee of the MPPJ. He stated that the MPPJ does not provide any supervision for any volunteer firefighters. The activities at the scene of a fire are controlled by the highest ranking Tallulah Fire Department firefighter at the scene.

In her deposition, Ms. Dew said that the determination of who serves as a volunteer firefighter is not made by the MPPJ. She also claimed that the MPPJ does not train any volunteer firefighters or provide funds for their training. She asserted that Mr. Marsh is not an employee of the MPPJ. When employees of the City of Tallulah make fire runs, they are supervised by the city fire chief. The MPPJ has no control over what occurs at fires and has no control over which individuals respond to fires. The City of 113TalluIah controls the daily time and physical activities of the employees of the City of Tallulah Fire Department and the City of Tallulah was responsible for any necessary disciplinary proceedings. Ms. Dew maintained that the MPPJ could not terminate or dismiss Mr. Marsh. Mr. Marsh received a 1099 tax form from the MPPJ and not a W-2, which is given to employees, and no state or federal taxes were withheld from what was paid to Mr. Marsh.

Mr. Doyle stated in his deposition that he reported money received from MPPJ as income and not as mileage. He testified that he did not receive any training from the MPPJ, did not sign a contract to become an employee of the MPPJ, and did not fill out a job application to become an employee of the MPPJ. When he responds to fires in the parish, the work is supervised by either the fire chief or the assistant fire chief for the City of Tallulah Fire Department. No one from the MPPJ instructed him .how to perform his duties as a firefighter. His work schedule is set by the fire chief for the City of Tallulah Fire Department and not by the MPPJ. He never clocked in or out with the MPPJ and incident reports were made to the fire chief for the City of Tallulah. The MPPJ does not notify him about fire calls and has no power to discipline or terminate him. Mr. Doyle said that he generally receives about $400 to $600 per month from the MPPJ. Mr. Doyle asserted that the City of Tallulah fire chief decides which volunteers are submitted to the MPPJ for payment for work at fires. Mr. Doyle claimed that when he drove the Tallulah fire truck to respond to fires outside the city 114limits, he was paid by the City of Tallulah and also received payment from the MPPJ.

Mr. Griffin said that the MPPJ does not own any emergency or firefighting equipment. He asserted that payments made each month to volunteer firefighters were a stipend for gas. The MPPJ does not have any firefighting employees. The list of those qualified to receive stipends is determined by the City of Tallulah Fire Department.

Mr. Marsh said in his deposition that he is a full-time salaried employee of the City of Tallulah Fire Department. His normal shift was from 7:00 a.m. to 7:00 p.m. When he received the call on the day of this incident, he was already at work. He got into the city fire truck and responded to the call. Mr. Marsh’s 1099 form from the MPPJ for 2007 shows that he received nonemployee compensation in the amount of $868.

In reviewing all petitions, depositions, affidavits, and other materials submitted by the parties in support of and in opposition to the motion for summary judgment, the MPPJ carried its burden of proving that under the factors enumerated in La. R.S. 42:1441.3(0, it was not the master or employer of Mr. Marsh when this accident occurred. The first factor under La. R.S. 42:1441.3(C) in determining which political subdivision may be liable for the offenses and quasi offenses of a public employee of a political subdivision under La. C.C. art. 2320 is the public officer or governmental body politic that exercises the power of selection and engagement of the public employee. In this case, the record shows that the MPPJ set the number of volunteer firefighters, but did not have any input in who was factually chosen to be a volunteer firefighter. The fire chief of the City of Tallulah determined which individuals were qualified to be volunteers and were allowed to answer calls as volunteer firefighters. Some of these individuals, like Mr. Marsh, were full-time employees of the City of Tallulah Fire Department.

The second factor to examine in determining vicarious liability is which public officer or governmental body politic supervises or has the right to control closely the daily time and physical activities of the public employee in carrying out his public duties. In this case, the MPPJ showed that Mr. Marsh’s schedule was set by the City of Tallulah fire chief and the highest ranking person with the City of Tallulah fire department present at a fire supervised the activities of the volunteer firefighters in responding to calls in the parish. The MPPJ showed that it has no right of control or supervision over what transpired during the course of responding to fire or emergency calls by volunteer firefighters.

The third factor to examine in determining which political subdivision is vicariously liable in this matter is the public officer or governmental body politic that exercises the power of disciplinary actions and dismissal of the public employee. The affidavit and depositions in this matter show that the MPPJ did not have any authority to discipline or terminate Mr. Marsh.

The fourth factor in determining which political subdivision is vicariously liable for the actions of Mr. Marsh is the source of funds used for the payment of salaries or wages of the public employee. In this case, |ifithe MPPJ paid volunteer firefighters a $10 stipend for each run. This amount was later raised to $16.50 per run. No state or federal taxes were withheld from these payments, no W-2 form was issued to volunteer firefighters, and the 1099 form issued to Mr. Marsh for 2007 listed the amount paid to him as nonem-ployee compensation. Under the facts of this case, this payment did not create any liability on the part of the MPPJ.

The plaintiffs contend that the most important factor is whether a political subdivision has the right of control over the employee. The plaintiffs cite Matlock v. Hankel, 96-1838 (La.App. 4th Cir.2/11/98), 707 So.2d 1016, writ denied, 98-0594 (La.4/24/98), 717 So.2d 1172, for the proposition that more than one political subdivision can be vicariously liable for the offenses or quasi-offenses of a servant. However, Matlock is factually distinguishable from the present case. In Matlock, an employee of the City of New Orleans Fire Department, who was also a volunteer firefighter for the Fort Pike Volunteer Fire Department, struck a pedestrian while responding to the scene of a fire in his personal vehicle. The fourth circuit determined that both the City of New Orleans and the Fort Pike Fire Department were liable. The volunteer fire department had a fire chief and trained its volunteers. It had a close relationship with the New Orleans Fire Department which supplied fuel and fire engines. The court found that the New Orleans Fire Department dispatcher probably sent the volunteer fire department to this fire. The most important issue in determining that both entities were vicariously liable was the control exercised over the volunteer firefighter. In Matlock v. Hankel, supra, both the volunteer fire department 117and the New Orleans Fire Department had control over volunteers at fires. In the present case, the MPPJ did not exercise any control over volunteer firefighters at fires or other emergencies. See also Wolverton v. City of Kenner, 225 So.2d 662 (La.App. 4th Cir.1969).

The plaintiffs failed to produce factual support to defeat the matters shown by the MPPJ. The MPPJ established that, under the factors listed in La. R.S. 42:1441.3(C), it was not the master or employer of Mr. Marsh when this accident occurred and is not vicariously liable for his actions. The trial court correctly granted summary judgment in favor of the MPPJ.

NEGLIGENT HIRING

The plaintiffs urge that the trial court erred in failing to consider whether the plaintiffs’ claim for negligent hiring, supervising, or training of Mr. Marsh served as an independent basis to defeat the MPPJ’s motion for summary judgment. The plaintiffs contend that there was not only the issue of whether a master/servant relationship existed between the MPPJ and Mr. Marsh, but also whether he was an independent contractor. The plaintiffs maintain that this issue raises questions under the duty/risk analysis which are factual determinations and are not appropriate on a motion for summary judgment. This argument is without merit.

Discussion

As set forth above, the MPPJ established that Mr. Marsh was not its employee and that the MPPJ did not hire, supervise, or train him in any way. The determination of whether a political subdivision is the master of a public employee is a question of law to be determined by the factors | isenunciated by the legislature. Johnson v. City of Pineville, 2005-1054 (La.App. 3d Cir.3/1/06), 924 So.2d 443. Therefore, there was no issue of negligent hiring before the court. The plaintiffs’ argument to the contrary is without merit.

CONCLUSION

For the reasons stated above, we affirm the decision of the trial court granting summary judgment in favor of the Madison Parish Police Jury and dismissing the plaintiffs’ claims against it. All costs in this court are assessed against the plaintiffs.

AFFIRMED.

      . La. R.S. 42:1441.3 provides in pertinent part:
      A. The master of an individual who is an ... employee of a political subdivision, under the meaning and purpose of Civil Code Article 2320 and other laws imposing liability on a master for the offenses and quasi offenses of his servant, is the particular political subdivision of which such individual is a[n] ... employee.

      C. Determinants of which political subdivision may be made liable as master for the offenses and quasi offenses of a public employee of a political subdivision under Civil Code Article 2320 and other laws imposing such master-servant liability and for finding an employer-employee relationship, shall include all of the following:
      (1) The public officer or governmental body politic that exercises the power of selection and engagement of the public employee.
      (2) The public officer or governmental body politic that supervises or has the right to control closely the daily time and physical activities of such public employee in carrying out his public duties.
      (3) The public officer or governmental body politic that exercises the power of disciplinary actions and dismissal of the public employee.
      (4) The source of the funds used for the payment of salaries or wages of the public employee.

      E.As provided in R.S. 42:62, the term "political subdivision” means a parish, municipality, and any other unit of local government, including a school board and a special district, authorized by law to perform governmental functions;....
      F. Civil Code Article 2320 and other laws imposing liability on a master for the offenses and quasi offenses of his servant shall not extend or apply to and shall not impose liability upon any political subdivision for the offenses and quasi offenses of another political subdivision, the state, or any other governmental body politic, or of the officers, deputies, assistants, employees, appointees, designees, or representatives of such other political subdivision, the state, or any other governmental body politic.
      G. Notwithstanding ... Paragraph (4) of Subsection C of this Section, when a political subdivision serves as an independent third-party paymaster for another political subdivision, the state, any state agency, or any other governmental body politic or for any public officer, official, or employee thereof or is otherwise mandated to pay any salaries, stipends, wages, fees, or expenses of any public officer, official, or employee of another political subdivision, the state, any state agency, or any other governmental body politic, neither an employer-employee relationship shall be established nor a master-servant relationship created for the purpose of imposing liability upon the paying political subdivision for the offenses or quasi offenses of a public officer, official, or employee of the other political subdivision, the state, the state agency, or any other governmental body politic.

      . The plaintiffs claim that the trial court erred in denying their motion to compel production of evidence dealing with payment to volunteer firefighters. Because we find that the payments did not establish liability on the part of the MPPJ, and because the plaintiffs did not seek supervisory review of the denial of their motion to compel discovery, this issue will not be considered on appeal.


text:
    STATE of Louisiana in the Interest of K.R.M.
    No. 47,018-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 25, 2012.

      W. Allen Haynes, for Defendant-Appellant J.L.M.
    Webster Parish Public Defender’s Office, by Bobby L. Stromile, Benton, LA, Grayden Kitchens, Dept, of Children & Family Svcs., by Pamela Harper-Jacob, for the minor child K.R.M.
    Mark D. Frederick, Shreveport, LA, for Defendants Appellees.
    Before STEWART, CARAWAY and MOORE, JJ.
   MOORE, J.

1 TThis appeal results from a judgment terminating the parental rights of the mother, JLM, concerning her infant child, KRM. The judgment also terminated the parental rights of seven possible fathers named by JLM and any additional unnamed biological fathers. Five of the seven named men were excluded by DNA testing. Another man who claimed he was the father was also excluded by DNA testing. The remaining two untested men did not appear after receiving notices of the proceedings. The mother alone appeals the judgment terminating her parental rights. For the reasons stated below, we affirm.

Facts

The Department of Children and Family Services (“Department”) received a report at the time of KRM’s birth on June 6, 2009, that she and her mother, JLM, tested positive for cocaine. The child was born premature at 34 weeks, weighing 4 pounds, 13 ounces. The report was immediately investigated by a child protection worker. JLM admitted to using cocaine and marijuana throughout her pregnancy, even 48 hours before she gave birth.

JLM informed the child protection investigator that she had been using marijuana since age 13 and had progressed to other drugs. She said that she was addicted to cocaine. JLM has prior arrests for possession of crack cocaine with intent to distribute, possession of drug paraphernalia, and violation of probation and parole. She is currently incarcerated, serving a two-year sentence at hard labor for second degree battery. Her anticipated 12release is in the spring of 2012.

Believing that KRM was at substantial risk of harm, on June 11, 2009, the Department requested and obtained an oral Instanter Order to remove KRM from the custody of the mother and place her in the custody of the Department.

On August 17, 2009, KRM was adjudicated a child in need of care and continued in the custody of the Department. The original goal was to reunite KRM with her mother pursuant to several case plans formulated by the Department. The last plan implemented on July 6, 2010, required JLM to:

1. Maintain a home meeting minimum safety and sanitary conditions;
2. cooperate in mental health evaluations and follow recommendations;
3. participate in drug screens;
4. participate in substance abuse assessments and follow recommendations;
5. attend two AA or NA meetings per week;
6. attend parenting classes;
7. visit the child; and
8. keep the case manager informed of her whereabouts.

Although there was some sporadic compliance with the case plan, JLM essentially failed to comply with the case plan, largely caused by her continued drug addiction problems. On November 3, 2010, the Department filed a petition to involuntarily terminate her parental rights.

laTrial commenced on February 14, 2011. At trial, only JLM and Cynthia Wood, KRM’s case manager, testified. No members of JLM’s family appeared at the trial.

At trial, JLM expressed her desire for another chance to comply with a case plan after she is released from jail with the goal of staying sober and providing a stable home environment for KRM. She testified that she completed one in-patient substance abuse program at the Pines, but relapsed after two weeks. She subsequently signed in a program known as “Steps”, where she could stay until a bed became available at the Pines; however, she signed out of that program and never returned to the Pines. She attended parenting classes for a few weeks, but when she missed a class, she was told she must start over and she refused to do so. She said she is now attending parenting class while she is incarcerated.

Regarding visitation with KRM, JLM testified that she did not miss a visitation the whole first year; then she became depressed and visited KRM only two or three times thereafter. She insisted that she apprised Cynthia Wood of her whereabouts at all times.

JLM testified that she has been incarcerated for two months. Since then, she has been attending parenting and anger management classes and is nearing the completion of her GED. She hopes to maintain her sobriety, and wants another chance to be a mother. She promised to cooperate with’ Cynthia Wood and comply with drug test requirements. Once she is released, she plans to live at 114 Moore Cemetery Road in 14Minden, Louisiana.

Cynthia Wood testified that she is a foster care case manager for the Webster Parish Department of Children and Family Services, and she handled the case in connection with KRM. Ms. Wood testified regarding her unsuccessful attempts to locate and identify KRM’s biological father as well as JLM’s compliance, or lack thereof, with the case plan to reunite KRM with her mother, JLM. Although she corroborated much of JLM’s testimony regarding compliance, she testified that JLM did not comply with the case plan by relapsing back into drug use, failing to complete the parenting class, and not apprising her of her whereabouts after the July 6, 2010, visit with KRM until October of 2010. She recommended that the court terminate JLM’s parental rights in the best interest of KRM.

Ms. Wood testified that KRM has resided with Larry and Katie Barrett since June 11, 2009, when she was 5 days old and discharged from the hospital. She said that KRM is doing “excellently,” and the Barretts wish to adopt KRM if she is freed for adoption.

At the conclusion of trial, the case was deemed submitted with respect to JLM’s parental rights, but the matter was continued to hear evidence regarding disposition of the parental rights of the two untested named fathers. After a hearing on March 28, 2011 in which evidence was adduced and arguments made regarding the fathers’ parental rights, the court rendered judgment.

The court found that JLM did not comply with the case plan, particularly finding that there was little or no compliance with the substance | Sabuse portions of the plan, visitation, anger management and parenting as it relates to the plan. It concluded that the physical, mental and emotional well-being of KRM required that JLM’s parental rights be terminated.

JLM perfected a timely appeal.

Discussion

In parental termination proceedings, courts must balance the two private interests of the child and the parents. A parent has a constitutionally protected liberty interest in establishing and maintaining a meaningful relationship with his or her children. The child has a profound interest, often at odds with those of his parents, in terminating parental rights that prevent adoption and inhibit establishing stable, long-term relationships found in a home with proper parental care. La. Ch. C. art. 1001; State ex rel. J.T., 46,174 (La.App. 2 Cir. 3/02/11), 58 So.3d 1015.

In balancing these interests, the courts of this state have consistently found the interest of the child to be paramount over that of the parent. State ex rel. G.J.L., 00-3278 (La.6/29/01), 791 So.2d 80; State ex rel. A.R.H. v. Hines, 35,800 (La.App. 2 Cir. 2/27/02), 810 So.2d 1166. In all proceedings, when a ground justifying termination of parental rights is proven, the primary concern is to secure the best interest of the child. Id. The focus of an involuntary termination proceeding is not whether the parent should be deprived of custody, but whether it would be in the best interest of the child for all legal relations with the parents to be terminated. Id.

[ (¡Termination of parental rights is a severe and final action, so the state must satisfy an onerous burden of proof, establishing each element of a ground for termination by clear and convincing evidence. La. Ch. C. art. 1035(A); Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); State ex rel. C.M.M. v. T.P.M., 42,238 (La.App. 2 Cir. 5/9/07), 957 So.2d 330. Although La. Ch. C. art. 1015 provides several grounds for involuntary termination of parental rights, only one ground must be established. State ex rel. S.N.W. v. Mitchell, 01-2128 (La.11/28/01), 800 So.2d 809; State ex rel. J.T., supra.

The trial court’s factual findings in termination of parental rights cases are subject to the manifest error standard of review. State ex rel. B.H. v. A.H., 42,864 (La.App. 2 Cir. 10/24/07), 968 So.2d 881; State in the Interest of K.L.B. v. Biggs, 29,512 (La.App. 2 Cir. 2/28/97), 690 So.2d 965.

By her appeal, JLM asserts that the trial court’s decision was erroneous and not supported by the evidence, and the judgment terminating her parental rights should be reversed and the case remanded for further proceedings. She contends that she has substantially complied with the case plan while incarcerated, and the best interest dictates that she should be given a chance to comply with a case plan upon her impending release from jail.

Louisiana Children’s Code Article 1015 provides, in pertinent part:

The grounds for termination of parental rights are:
17(5) Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child’s age and his need for a safe, stable, and permanent home.

Our review of this record indicates that JLM did not comply with the case plans implemented during the 18-month period after KRM’s birth in which the state had custody of KRM. Had JLM complied with the requirements of the case plan, she would have been eligible to regain custody of KRM. This failure led the state to initiate involuntary termination of parental rights proceedings. Although the record establishes that JLM did complete an in-patient substance abuse program at the Pines, once she left that facility she very quickly returned to drug usage. Her history of heavy drug usage extends back over 10 years, even during pregnancy.

JLM attended parenting classes for a few weeks, but she admitted that she refused to restart the parenting course as required after she missed a session. She complied with the visitation schedule for approximately one year, then abruptly quit visiting KRM for several months and failed to maintain contact with Ms. Wood during that time. Except for the short period she was at the Pines, she apparently continued to use cocaine and other drugs, as evidenced by her emergency room visit to the Minden hospital after apparently overdosing on cocaine, drug screens, and her own testimony regarding re-entry into a substance abuse program.

| sJLM’s argument that she should be given an opportunity to comply with a case plan after her release from jail is thus based on her alleged substantial compliance with the case plan during her incarceration which began one month after termination proceedings had commenced, and her promise to comply after her release. Although we commend these efforts by JLM, we cannot escape the conclusion that her success in maintaining sobriety during incarceration and while she was a patient at the Pines, is likely due, to some degree, to the lack of availability of these drugs during confinement. Hopefully, for her sake, she will be able to maintain her sobriety after her release from jail. Ultimately, however, we cannot make a best interest determination based solely upon JLM’s compliance during incarceration which occurred after termination proceedings had already begun.

The conclusion of the trial court that the best interest of KRM requires that JLM’s parental rights be terminated is substantially supported by the evidence in the record and the findings of the trial court. We therefore conclude that the trial court was not manifestly wrong when it terminated JLM’s parental rights.

Accordingly, we affirm the judgment of the trial court.

AFFIRMED.

      . JLM testified that she was told that her due date was July 26, 2009, but she believed that this was incorrect, and the child was only a week premature.

      . According to JLM, the program at the Pines is a 28-30 days in-patient program.