author: MARC T. AMY, Judge. CHATELAIN, Judge,

text:
    Candace Rae MARSALIS v. James Frank MARSALIS.
    No. 10-592.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 2010.

      Richard D. Mere, Lafayette, LA, for Plaintiff/Appellee, Candace Rae Marsalis.
    Caleb K. Aguillard, Law Office of David L. Carrier, Opelousas, LA, for Defendant/Appellant, James Frank Marsalis.
    Court composed of MARC T. AMY, BILLY HOWARD EZELL, and DAVID E. CHATELAIN , Judges.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   MARC T. AMY, Judge.

| ,The trial court entered judgment, granting, among other things, the parties joint custody of their children. The defendant appeals and asserts that the trial court erred in rendering judgment under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), La.R.S. 13:1801, et seq., due to similar proceedings pending in Texas. For the following reasons, we affirm.

Factual and Procedural Background

Candace Marsalis instituted this matter in St. Landry Parish by filing a “Petition for 102 Divorce and Child Custody Pursuant to R.S. 13:1801 et seq. (U.C.C.J.E.A.)” on September 10, 2009. She alleged that she and her husband, James Frank Marsalis, were married in November 1992 in Ouachita Parish and had been living separate and apart since July 2009. The petition explained that the couple had six minor children who resided with Ms. Marsalis in Arnaudville, Louisiana.

The petition alleged that Mr. Marsalis was domiciled in Texas, although, earlier in the year, his domicile was in Louisiana, “where he owns a home.” Ms. Marsalis pointed out that Mr. Marsalis had filed for divorce and custody of the minor children in Texas. However, Ms. Marsalis alleged that the Texas court lacked jurisdiction under the UCCJEA and sought a determination that Louisiana is the home state of the children pursuant to La.R.S. 13:1813(A)(1) due to the children having been domiciled in Louisiana “for more than six months before the commencement of the State of Texas proceeding.” She asserted that she “and the minor children were temporarily in the State of Texas from late April of 2009 to August of 2009[.]” Ms. Marsalis further alleged that, pursuant to La.R.S. 13:1813, not only is Louisiana the children’s home state, but that the children have significant connections with Louisiana and that | ^substantial evidence regarding the past and future care, protections, training, and personal relationships exists in this state.

In addition to a custody determination, Ms. Marsalis sought child support, spousal support, and use and occupancy of the matrimonial domicile in Arnaudville pending partition of the community property.

As exhibits to the petition, Ms. Marsalis attached a copy of the petition in the Texas proceeding and letters regarding the children’s contacts in Louisiana from a health care provider and a minister.

On September 15, 2009, and on consideration of the “petition and annexed attachments,” the trial court signed an order recognizing Louisiana “as having proper jurisdiction of this proceeding as it is the ‘home state’ of the minor children.”

The record indicates that, subsequently, and upon Ms. Marsalis’s motion, a hearing officer conference scheduled for October 1, 2009 was rescheduled for November 10, 2009. However, Ms. Marsalis’s counsel later sought the appointment of a private process server due to an inability to serve the petition on Mr. Marsalis in Texas. She attached an “Affidavit of Service Attempts” from the Panola County, Texas Sheriffs Department, which listed four attempts with no contact. The trial court signed the order appointing a private process server on November 6, 2009.

The hearing on the merits of the underlying matter was held on December 7, 2009. The trial court explained that it had received correspondence from Mr. Marsal-is, who did not appear at the hearing, seeking a continuance of the hearing date. After addressing the contents of the letter on the record, the trial court entered the letter into evidence and proceeded with the hearing.

LMs. Marsalis testified regarding her marriage to Mr. Marsalis, their long-term residence in Louisiana, their decision to move to Texas in April 2009, and her return to Louisiana in August 2009 with the children. The trial court determined that Louisiana had jurisdiction to consider the custody question and that no other state had such jurisdiction. It also determined that it had jurisdiction to consider the divorce.

Ultimately, the trial court rendered judgment, awarding the parties joint custody of the minor children and designating Ms. Marsalis as the' domiciliary parent. The trial court ordered that Mr. Marsalis would have reasonable visitation as agreed upon by the parties. The trial court further ordered Mr. Marsalis to provide child support at a designated rate, and spousal support. It awarded Ms. Marsalis use and occupancy of the marital domicile. The trial court later denied Mr. Marsalis’s motion for new trial.

Mr. Marsalis appeals, assigning the following as error:

The trial court clearly erred in rendering judgment before staying its proceedings and communicating with the Texas court as required by La.R.S. 13:1801, et seq. (Uniform Child Custody Jurisdiction and Enforcement Act).

Discussion

Mr. Marsalis contends that the trial court’s judgment must be reversed as it failed to stay the custody proceeding and contact the court in Panola County, Texas in order to determine if it had jurisdiction to proceed. He contends that this procedure is required by La.R.S. 13:1818.

However, Mr. Marsalis’s argument assumes that the Texas court had jurisdiction. The record does not contain evidence supporting this contention. At the hearing, the trial court determined both that Louisiana had jurisdiction of the custody | ¿matter and that no other state had jurisdiction. In reaching this conclusion, the court stated:

The Court will find that, as to the children, that the Court has jurisdiction of these children, due to the fact that there is no other State Court that has jurisdiction, that the children have lived all of their lives in Louisiana, and the last six of which have been in St. Landry Parish, except for the months of April 12, 2009 through August 9, 2009, where they lived in Texas for a period of approximately four (4) months, during an attempted reconciliation between the parents.

(Emphasis added.) Thus, the Louisiana court made a finding of initial jurisdiction in keeping with La.R.S. 13:1813(A)(2), which states:

A. Except as otherwise provided in R.S. 13:181o, a court of this state has jurisdiction to make an initial child custody determination only if:
(2) A court of another state does not have jurisdiction or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under R.S. 13:1819 or 1820; and
(a) The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence.
(b) Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships.

The record supports a determination that Louisiana had jurisdiction pursuant to La. R.S. 13:1813(A)(2).

First, the evidence does not indicate that another state has jurisdiction. Recall that Mr. Marsalis, who seemingly asserts that the Texas court has jurisdiction over the custody matter, did not appear at trial to advance or support his position. Instead, Ms. Marsalis presented evidence regarding contacts in Louisiana. She explained that |sthe couple and them children had lived in Louisiana during them marriage, that each of the six children were born in Louisiana, and that the couple’s marital home was in Arnaudville. She testified that the children had been schooled in Louisiana and not in any other state. The parties and their children left Louisiana and moved to Texas in April 2009. However, Ms. Marsalis and the children returned to Louisiana four months later, in August 2009. Ms. Marsalis explained that she and the children intend to stay in Louisiana permanently, as this is their “home.”

With regard to the potential of the Texas court having jurisdiction, the only evidence arguably in support of this view is the petition instituting the Texas proceedings and a letter that the trial court indicated was faxed to it prior to the hearing. Although the trial court entered the letter into evidence, its contents, at most, indicate that a proceeding was pending in Texas and, although Mr. Marsalis was residing in Texas, he was working in North Dakota. The letter revealed nothing regarding the children’s presence or contacts in Texas. Instead, the letter addressed Mr. Marsalis’s request for a continuance.

| (iFor these reasons, the only evidence presented supports a determination that no other state, including Texas, had jurisdiction pursuant to La.R.S. 13:1813(A)(2). Also, the evidence indicates that the children and Ms. Marsalis had significant connections to this state other than mere physical presence. See La.R.S. 13:1813(A)(2)(a). Indeed, the children lived their entire lives, other than approximately four months, in Louisiana. Finally, and again due to the children’s long term presence and schooling in Louisiana, “[sjubstantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships.” La.R.S. 13:1813(A)(2)(b).

With this overlay as to the trial court’s determinations regarding jurisdiction, we turn to Mr. Marsalis’s precise argument that La.R.S. 13:1818 required the trial court to stay its proceedings and contact the Panola County court. Indeed, in light of the trial court’s awareness of the Texas proceedings, consideration of La. R.S. 13:1818 would be arguably appropriate, insofar as it relates to simultaneous proceedings and provides, in pertinent part, that:

A. Except as otherwise provided in R.S. 13:1816, a court of this state may not exercise its jurisdiction under this Subpart if, at the time of the commencement of the proceedings, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this Act, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum under R.S. 13:1819.
|7B. Except as otherwise provided in R.S. 13:1816, a court of this state, before hearing a child custody proceeding, shall examine the court documents and other information supplied by the parties pursuant to R.S. 13:1821. If the court determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with this Act, the court of this state shall stay its proceeding and communicate with the court of the other state. If the court of the state having jurisdiction substantially in accordance with this Act does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding.

However, Mr. Marsalis’s argument overlooks the fact that the trial court made a finding that no other state had jurisdiction. Paragraph A of La.R.S. 13:1818 provides that a Louisiana court may not exercise its jurisdiction if a custody matter is proceeding “in a court of another state having jurisdiction substantially in conformity” with the UCCJEA. Again, the trial court expressly stated that no other state had jurisdiction over the matter and, as explained above, Mr. Marsalis’s failure to appear at the hearing and produce his own evidence left little on which the trial court could have determined that Texas had jurisdiction.

Next, Mr. Marsalis contends that La. R.S. 13:1818(B) required the trial court to confer with the Texas court prior to proceeding with its own custody hearing. However, we find no indication in the record that the trial court violated the requirements of Paragraph B. Instead, Paragraph B provides that a Louisiana court shall stay its proceeding and communication with the court of another state, only “[i]f the court determines that a child custody proceeding has been commenced in a court in another state having jurisdiction ” substantially in accordance with the UCCJEA. (Emphasis added.) While Ms. Marsalis apprized the court of the Texas proceeding, Mr. Marsalis failed to submit evidence indicating that Texas was a forum “having jurisdiction” under the UCCJEA. See La.R.S. 13:1818(B).

|gWe recognize that Mr. Marsalis asserts that jurisprudence required the trial court to stay the custody hearing, pending its communication with the Texas court. However, the cases cited by Mr. Marsalis are distinguishable from the present matter insofar as they are cases in which another state has been found to have jurisdiction or the other state’s jurisdiction is presumed. See Layton v. Newell, 03-229 (La.4/4/03), 845 So.2d 1035; Ehsani v. Ehsani, 519 So.2d 288 (La.App. 5 Cir.), writ denied, 520 So.2d 754 (La.1988); Wachter v. Wachter, 439 So.2d 1260 (La.App. 5 Cir.1983); DeLee v. Koss, 430 So.2d 196 (La.App. 2 Cir.1983). See also Anton v. Anton, 97-792 (La.App. 4 Cir. 5/14/97), 694 So.2d 1217; Janik v. Janik, 542 So.2d 615 (La.App. 5 Cir.1989). In the present case, however, the trial court determined that no other state had jurisdiction over this matter. In fact, the party seemingly contesting Louisiana’s jurisdiction failed to produce evidence showing otherwise.

Finally, we note that Mr. Marsalis contends that Ms. Marsalis is essentially lodging a collateral attack on any rulings issued by the Texas court. This assertion lacks merit. In fact, and again, the record contains no evidence regarding the Texas proceedings other than Ms. Marsalis’s attachment of the Texas petition to the petition instituting this matter. Any products of the Texas proceeding were not before the trial court and are not properly before this court.

This assignment lacks merit.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this proceeding are assigned to the appellant, James Frank Marsalis.

AFFIRMED.

CHATELAIN, J., dissents in part and assigns written reasons.

CHATELAIN, Judge,

dissenting in part.

| ^though I agree with that portion of the majority opinion that finds the statutory requirements for initial Louisiana jurisdiction are met, for the reasons below, I respectfully dissent from that portion of the majority opinion which finds that the trial court was not required to determine whether Texas had jurisdiction substantially in accordance with the UCCJEA. I find the trial court erroneously concluded that Louisiana was the Marsalis children’s home state and, therefore, that its ruling that no other state had jurisdiction was also improper. I would reverse the portion of the judgment awarding child custody and child support and remand for the trial court to consider whether Texas would have “significant connection” jurisdiction substantially under La.R.S. 13:1813(A)(2).

Although the majority interprets the trial court’s oral reasons as finding that Louisiana had jurisdiction over this child custody proceeding under La.R.S. 13:1813(A)(2), I find that the only jurisdictional basis the trial court considered was home state jurisdiction under La.R.S. 13:1813(A)(1). In its initial September 15, 2009 order the trial court specifically found Louisiana was the Marsalis children’s home state. However, at the December 7, 2009 hearing, the trial court conducted most of 12the examination of the only witness, Candice Marsal-is (Candice), but at no point did it inquire about the significance of the children’s or their parents’ connections to Louisiana or the availability therein of evidence concerning the children’s care, protection, training, and personal relationships. The trial court did not reference these elements in either its oral reasons or its written judgment. Rather, it focused primarily on the amount of time that the children had resided in Louisiana.

My reading of the record shows that the trial court simply followed its initial jurisdictional ruling and relied on its finding that Louisiana was the children’s home state to determine that “there is no other State Court that has jurisdiction.” Because only one state can qualify as a child’s home state and the other jurisdictional bases cannot apply when a home state exists, its determination that Louisiana was the children’s home state allowed the trial court to infer its conclusion about jurisdiction of other states without further factual inquiry.

Unfortunately, the record clearly establishes that there is no home state for purposes of this child support proceeding. Louisiana Revised Statutes 13:1813(A)(1) describes two situations in which Louisiana obtains initial jurisdiction because it is or was the child’s home state. As applicable under the facts of this case, “home state”, is the state in which the child lived with a parent or person acting like a parent for six or more consecutive months immediately before the date in question, including temporary absences by the parent or the child. La.R.S. 13:1802(7)(a). Subsection (A)(1) of R.S. 13:1813 thus states that Louisiana has initial jurisdiction if it is the child’s “home state” at the time the proceeding commences; more specifically, “the six months preceding institution of the custody action is the relevant period used in a determination of the child’s ‘home state.’ ” Burr v. Burr, 97-884, pp. 7-8 (La.App. 3 Cir. 3/6/98), 711 So.2d 303, 307, writ denied, 98-1887 (La.10/30/98), 727 So.2d 1164. Louisiana also obtains initial jurisdiction if this state had been the child’s home state within six months prior to the commencement of the proceeding, the child then becomes absent, and the parent or person acting like a parent remains in the state. La.R.S. 13:1813(A)(1).

Because Candice filed the petition instituting this proceeding approximately one month after she and her children moved back to Louisiana, Louisiana does not have home state jurisdiction. Candice’s testimony clearly shows that the four months spent in Texas were not a temporary absence. Rather, the parties were attempting to make a “new start.” Even if the trial court’s statements about jurisdiction in oral reasons and the court judgment constitutes a factual finding that the four months in Texas were a temporary absence, I find such a finding would be clearly wrong. The only evidence presented on the issue established that the move was intended to be permanent. Candice remembered the April date the family left for Texas because that was when they signed with the realtor in their Louisiana home, and the trial court later characterized this action, without protestation from Candice, as testimony regarding the sale of their home in Louisiana. Candice also characterized her husband’s departure in April as one “to permanently reside in Texas”; it is undisputed that the entire family moved at that same time. Simply stated, my appreciation of the record and the “home state” definition delineated in La.R.S. 13:1802(7)(a) lead me to only one conclusion — Louisiana was not the home state.

The facts of this case also fail to meet the alternative home state criteria under La.R.S. 13:1813(A)(1). The Marsalis children were not absent at the time the proceeding was commenced, and neither parent remained in Louisiana while the Lchildren were absent. Finally, the children did not live in Texas for more than six months, so Texas never acquired status as their home state.

Even though I agree with the majority that there is sufficient evidence in the record to support a finding of significant connection jurisdiction under La.R.S. 13:1813(A)(2), I would find that Louisiana has initial child custody jurisdiction over this proceeding only if, on remand, the trial court concludes that Texas does not have jurisdiction substantially under the UCCJEA. Because the trial court never made any factual findings regarding significant connection jurisdiction in Texas and because the purposes of the UCCJEA weigh against this court conducting a de novo review of these factual questions, I find it proper to remand this case to the trial court for such a determination.

The trial court’s statement that no other state had jurisdiction over this child custody determination should not be read to implicitly include any factual findings regarding the elements in Subparts A and B of La.R.S. 13:1813(A)(2). Under the most reasonable interpretation of the trial court’s oral reasons, as previously discussed, it merely reasoned that no other state could have jurisdiction because Louisiana was the home state. Nothing in the record indicates the trial court even considered the possibility that Texas could have significant connection jurisdiction.

However, once it became clear during the December hearing that the Marsalis’ move to Texas was not a temporary absence and, therefore, that Louisiana could not be the children’s home state, the trial court should have proceeded directly to the question of whether Texas might have jurisdiction substantially under the UC-CJEA. The jurisdictional limitations imposed under the UCCJEA are equivalent to declarations of subject matter jurisdiction. Counts v. Bracken, 494 So.2d 1275 (La.App. 2 Cir.1986). Moreover, “[i]t is the duty of a court to examine subject matter jurisdiction sua sponte, even when the issue is not raised by the litigants.” Renno v. Evans, 580 So.2d 945, 947 (La.App. 2 Cir.1991). The language of La.R.S. 13:1818(B) reinforces the idea that the trial court has an affirmative obligation to consider whether it must defer to another state’s jurisdiction over a child custody proceeding by mandating that “a court of this state ... shall examine the court documents and other information supplied by the parties” for proceedings filed in other states that would trigger the substantive aspects of La.R.S. 13:1818. This affirmative obligation is further empowered by La.R.S. 13:1810, which allows the trial court to communicate with courts of other states and even obtain those courts’ records.

I dissent from the majority opinion primarily because I believe that, in this case, the absence of evidence regarding the children’s connections to Texas and the availability of evidence therein was insufficient to support a finding that Texas would not have jurisdiction substantially under La. R.S. 13:1813(A)(2). Here, the trial court utterly failed to fulfill its affirmative obligation to examine this issue. Not only could it have questioned Candice at the December rule hearing, but it should have voluntarily communicated with the Texas court where the other custody proceeding was ongoing to obtain any evidence that had been submitted in that proceeding. This second option seems particularly appropriate in light of the fact that the party who initiated the Texas proceeding and would therefore be most likely to advocate for Texas jurisdiction was unable to appear before the court or obtain representation until after the hearing.

LThe concept of a uniform child custody jurisdiction law “was proposed in an effort to have states impose uniform legislative rules on themselves regarding jurisdiction in child custody cases.” Revere v. Revere, 389 So.2d 1277, 1278 (La.1980). Touching upon the underlying basis for such a body of law, the court in Revere stated:

In an age of fluid population trends many cases are presented in which jurisdiction may be concurrent in several states. In order to provide some stability to reasoned custody decrees by discouraging relitigation, to deter custody determinations by physical abduction, to avoid jurisdictional competition and conflicting custody decrees in several states, and primarily to attain the security of home environment necessary for a child’s well being, the National Conference of Commissioners proposed the uniform law adopted in Louisiana.

Id. at 1279.

When La.R.S. 13:1818 is an issue in an initial custody proceeding and a parallel proceeding in another state has already commenced, the goal of avoiding jurisdictional competition and conflicting custody decrees should be a primary consideration. While I do not suggest that Louisiana courts should automatically defer to the jurisdiction of states with prior-commenced proceedings, a trial court should not be able to base its decision to retain jurisdiction on an absence of evidence |7regarding the other state’s jurisdiction when that court has not exercised all available means of obtaining such evidence.

Therefore, I would reverse the trial court’s judgment in part and remand to the trial court with instructions to determine whether this case meets the requirements for Texas to have “significant connection jurisdiction” under La.R.S. 13:1813(A)(2). If the trial court finds that Texas would have such jurisdiction, then La.R.S. 13:1818 would require the court to stay the proceedings, confer with the Texas court, and ultimately dismiss this custody proceeding if the Texas court does not decline jurisdiction on the grounds that Louisiana is a more convenient forum. To rule otherwise makes the UCCJEA meaningless and thwarts the laudable purpose of such legislation.

      . Louisiana Revised Statutes 13:1816, which provides for temporary emergency jurisdiction, is not at issue in this case.

      . The handwritten letter provides:
      I respectfully request a continuance to tire hearing scheduled for December 7th 2009. The reason for this request is that I am out of the state of Texas working and will not return until shortly before Christmas. I have been trying to obtain counsel in Louisiana but these efforts have thus far proved unsuccessful. I have spoken with Candice Marsalis’ attorney, Candace M. Breaux, and asked her to please file for continuance but have not heard back from her. I spoke with Ms. Breaux on 12/2/09 & her secretary on 12/4/09.
      I filed for divorce in Panola County on 7/29/09 and Candice Marsalis and I have had 2 court dates thus far with more to come. I reside in Texas and am a Texas resident as well. I am working in North Dakota.
      I am writing you this letter per my conversation with your law secretary Jacqueline. Thank you for your time and attention to this matter.

      . At the hearing on Mr. Marsalis’s motion for new trial, the trial court explained that, although the faxed correspondence was entered into the record:
      [T]here is no return address, there’s no return fax phone number; in essence, there is absolutely no manner in which to contact Mr. Marsalis in connection with his request for a continuance in the matter.
      The record will reflect that the Court did not continue the matter, and the primary purpose that it was not continued is due to the fact that the Court had absolutely no method in which to contact Mr. Marsalis about any other hearing date, nor was there anybody else on that letter, as far as other counsel, to contact for purposes of setting the matter on a continuance.

      . Additionally, the National Conference of Commissioners has stated that it intends the Act to be applied according to its purposes, which include:
      (1) Avoidfing] jurisdictional competition and conflict with courts of other States in matters of child custody which have in the past resulted in the shifting of children from State to State with harmful effects on their well-being;
      (2) Promotfing] cooperation with the courts of other States to the end that a custody decree is rendered in that State which can best decide the case in the interest of the child;
      ls) Discouraging] the use of the interstate system for continuing controversies over child custody.
      Unif. Child Custody Jurisdiction & Enforcement Act § 101 cmt. (1999).


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana v. Kenneth Jay CLARK.
    No. 10-559.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 2010.

      Michael Harson, District Attorney, 15th Judicial District Court, Lafayette, LA, for Plaintiff/Appellee, State of Louisiana.
    Peggy J. Sullivan, Louisiana Appellate Project, Monroe, LA, for Defendant/Appellant, Kenneth Jay Clark.
    Bart J. Bellaire, Assistant District Attorney, 15th Judicial Court, Abbeville, LA, for PlaintiffiAppellee, State of Louisiana.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   THIBODEAUX, Chief Judge.

h Following a two-day jury trial, the defendant, Kenneth Jay Clark, was convicted of attempted first degree murder of a peace officer, pursuant to La.R.S. 14:27 and La.R.S. 14:30. The trial court sentenced Mr. Clark to the maximum sentence of fifty years at hard labor without benefit of parole, probation, or suspension of sentence. His motion to reconsider his sentence was denied.

Mr. Clark filed this appeal, asserting that the evidence was insufficient to support the conviction and that the fifty-year sentence was excessive. For the reasons that follow, we affirm the conviction and the sentence of the trial court.

I.

ISSUES

We shall consider whether the State’s evidence was sufficient to support the conviction of attempted first degree murder against Mr. Clark and whether the maximum sentence of fifty years was excessive under the circumstances.

II.

FACTS AND PROCEDURAL HISTORY

On March 31, 2007, Mitchell Schexnider, a field training officer with the Vermilion Parish Sheriffs Office, was on patrol with his trainee, Phillip Harris. At approximately 3:30 a.m., the officers responded to a dispatch regarding a vehicle crash on Prejean Road in Vermilion Parish. Their supervisor also responded, but quickly left the scene for another dispatch. When officers Schexnider and Harris arrived at the scene, they found a car straddling a large ditch, with the back tires hanging over the ditch, the mid-section bottomed out on the inner bank of the ditch, and the front tires in a large vacant cane field.

|2When the deputies got out of their vehicle, they saw the driver in the stranded car, rocking back and forth in the driver’s seat. They each instructed him to exit the vehicle, but he did not comply. Deputy Sehexnider repeated his instructions and approached the vehicle. Suddenly, the driver of the car emerged from the driver’s seat with a twelve-gauge shotgun and shot Officer Sehexnider in the chest from a distance of twelve to eighteen feet. Officer Harris returned fire, and both officers sought cover. The defendant ran into the field with the shotgun. Officer Sehexnider was wearing a protective vest, but his shirt and vest were riddled with small holes, a large portion of his chest was sprayed with stippling from the shot blast, and one of the shotgun pellets lodged in his body and was still there at the time of trial.

State troopers and other parish police arrived to investigate and secure the area around the vehicle broken down at the edge of the vacant field. It began to rain heavily. At approximately 2:00 p.m. on the afternoon of the earlier 3:30 a.m. shooting, Kenneth Clark walked through the field into the search area with his hands raised. He was covered with mud, soaking wet, and his body temperature was down. He was cuffed and Mirandized and transported to Abbeville General Hospital. During transport, he twice asked the transport officer, Lieutenant Dale Har-grave, “I killed him, didn’t I?” Subsequently, in the courthouse, just prior to his bond reduction hearing, Mr. Clark stated that he did not need a bond reduction hearing because he was guilty of shooting a police officer and he did not want to waste the taxpayers’ money. This statement was made in the presence of inmates being held in the jury deliberation room and in the presence of Sergeant Bryan Kibo-deaux, the relief officer responsible for the inmates.

On May 21, 2007, the State filed a bill of information charging the defendant, Kenneth Jay Clark, with attempted first degree murder, a violation of La.R.S. 14:27 and La.R.S. 14:30. It also charged him with possession of a firearm by Ra convicted felon, a violation of La.R.S. 14:95.1. On April 30, 2009, pursuant to a motion to quash based upon double jeopardy, the State dismissed the latter charge.

III.

LAW AND DISCUSSION

Standard of Review

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court 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, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino v. King, 436 So.2d 559 (1983) (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the recoi-d must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

Sufficiency of the Evidence

Attempted first degree murder includes “a specific intent to kill or to inflict great bodily harm upon a ... peace officer ... engaged in the performance of his lawful duties....” La.R.S. 14:30(A)(2). In his first assignment of error, Mr. Clark argues that the State’s evidence at trial did not support the verdict. Specifically, Mr. Clark ai’gues that the State failed to prove his identity as the shooter. This is the same argument that Mr. Clark made at trial. The linchpin of this assignment is the officer’s admission that he had not been able to identify the defendant from computer | ¿photographs, even though he identified Mr. Clark as the shooter in court. When identity is at issue, the State must negate any reasonable probability of misidentification. State v. Hughes, 05-992 (La.11/29/06), 943 So.2d 1047.

We observe that the State’s case did not rely solely upon the police officer’s in-court identification of Mr. Clark, as other facts indicated that Mr. Clark was the man who shot Deputy Schexnider. First, Mr. Clark, covered in mud, emerged from the field near the crime scene at about 2:00 p.m., approximately ten hours after the shooting. Second, Mr. Clark twice asked the transport officer who drove him to the hospital, “I killed him, didn’t I?” Third, Mr. Clark, voluntarily and without provocation, stated in the presence of a security officer at the court house that he did not need a bond reduction hearing because he was guilty of shooting a police officer, and they needed to just put him away and not waste the taxpayers’ money on a hearing.

Mr. Clark now suggests that the true offender was Jeffrey Alfred, who owned the shotgun, and whose girlfriend, Treniss-hia Washington, claimed ownership of the car found at the crime scene. By the time of the trial, Ms. Washington had married Mr. Alfred. She testified that on the morning of March 30, 2009, Alfred drove her to work in the car, then drove away in it. Alfred testified that he picked up Mr. Clark, and they drove to a house in Abbe-ville to meet some female friends that Alfred met at work. Both men admitted to using cocaine and other narcotics during the evening. Alfred further testified that when they arrived at the house in Abbe-ville at about 11:00 or 12:00 that night, only one woman was present. Mr. Clark then borrowed the car to go to the store, and never returned. Alfred testified that the shotgun was his and that he kept it and the shotgun shells in the trunk of Trenisshia’s car. This was confirmed by Trenisshia.

| sEIonda Levine testified that Mr. Clark and Alfred came to her residence in Abbe-ville on a night in March of 2007. She stated that Mr. Clark asked to use the car that Alfred had driven there, and Mr. Clark never returned. Alfred remained at the residence, sitting on the porch, waiting for Mr. Clark to return. Levine testified that she went to bed at approximately 12:30, but she went back to check the porch once or twice in the early morning hours between 1:00 and 4:00 a.m., and Alfred was still sitting on the porch, and, he was still there when she got up later in the morning. Elonda testified that she had been in a relationship with Alfred, but never saw him after that morning. Elon-da’s mother, Barbara Levine, testified that, one morning in March of 2007, she saw Alfred sitting on her daughter’s porch, and she gave him a ride to Lafayette General Hospital. Hence, the State’s evidence negated any reasonable possibility that Alfred was the shooter.

Further, the State established the chain of custody of the evidence from the crime scene through testimony at trial. Likewise, the State established through trial testimony the facts regarding Mr. Clark’s surrender to police in the cane field approximately ten hours after the shooting. Mr. Clark was soaked and covered in mud due to the pouring rain that had set in during the search for him. Finally, the State established through testimony the unsolicited, voluntary and exculpatory comments made by Mr. Clark himself, admitting to the shooting of the police officer and asking whether he had killed him. Accordingly, in light of the sufficient evidence, the conviction is affirmed.

| fJExcessiveness of the Sentence

In his second assignment of error, Mr. Clark argues that the maximum sentence of fifty years was excessive. This court has explained the analysis for excessive sentence claims:

In State v. Semien, 06-841, pp. 11-12 (La.App. 3 Cir. 1/31/07), 948 So.2d 1189, 1197, writ denied, 07-448 (La.10/12/07), 965 So.2d 397, this court stated:
The Eighth Amendment to the United States Constitution and La. Const, art. I, § 20 prohibit the imposition of cruel or excessive punishment. “ ‘[T]he exces-siveness of a sentence becomes a question of law reviewable under the appellate jurisdiction of this court.’ ” State v. Dorthey, 623 So.2d 1276, 1280 (La.1993) (quoting State v. Sepulvado, 367 So.2d 762, 764 (La.1979)). Still, the trial court is given wide discretion in imposing a sentence, and, absent a manifest abuse of that discretion, we will not deem as excessive a sentence imposed within statutory limits. State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96), 670 So.2d 713. However, “[mjaximum sentences are reserved for the most serious violations and the worst offenders.” State v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225. The only relevant question for us to consider on review is not whether another sentence would be more appropriate, but whether the trial court abused its broad discretion in sentencing a defendant. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
To decide whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, this court has held:
[An] appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00), 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, |7it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, 958 [, cert. denied, 519 U.S. 1043, 117 S.Ct. 615].
State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061.

State v. Plauche, 09-400, pp. 38-39 (La.App. 3 Cir. 1/6/10), 32 So.3d 852, 875-76, writ denied, 10-302 (La.9/24/10), 45 So.3d 1070.

Louisiana Revised Statutes 14:27 provides in pertinent part:

§ 27. Attempt; penalties; attempt on peace officer; enhanced penalties
A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
C. An attempt is a separate but lesser grade of the intended crime; and any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt.
D. Whoever attempts to commit any crime shall be punished as follows:
(l)(a) If the offense so attempted is punishable by death or life imprisonment, he shall be imprisoned at hard labor for not less than ten nor more than fifty years without benefit of parole, probation, or suspension of sentence.
(b) If the offense so attempted is punishable by death or life imprisonment and is attempted against an individual who is a peace officer engaged in the performance of his lawful duty, he shall be imprisoned at hard labor for not less than twenty nor more than fifty years without benefit of parole, probation, or suspension of sentence.

IsLa.R.S. 14:27 (emphasis added).

At the sentencing hearing, the trial court observed that the pre-sentence investigation report on the defendant listed approximately two and one-half pages of prior offenses. The trial court stated:

Mr. Clark, what concerns me about this whole situation is it seems as if, in a very short period of time, because you’re only twenty-five years old, that you’ve committed a bunch of violent crimes. And that concerns me a great deal, because, at trial, you know, I may have gotten the impression that you were under the influence of drugs and maybe have done something just out of character with your particular character. But it looks like what you did was exactly what kind of behavior you had been acting, doing. And quite honestly, for someone twenty-five years old, I don’t think I’ve seen a more serious rap sheet with the type of crimes you’ve been charged with and convicted of in the past. There’s a lot of violence, and that concerns me a lot. Also, in this particular case, of course, the victim, here, had you not shot perfectly straight, I’m quite certain that he would have been seriously injured or killed. And under LA. R.S. 14:27[sic], attempted murder carries a maximum of fifty (50) years hard labor, and I am going to sentence you to fifty (50) years hard labor without benefit of parole, probation and suspension of sentence.

Thus, the court’s reasoning for the maximum sentence is the seriousness of the offense and the lengthy rap sheet showing violence and prior convictions for violent crimes, including second degree battery. At the hearing on the motion to reconsider the sentence, the court further emphasized:

Okay. Well, I stated the reasons I believe at the time of sentencing for me giving him the maximum sentence, and those are the same reasons that I’m going to deny this motion of reconsidered sentence. First of all, I think it’s a very serious offense, and a man’s life was, by just luck, saved because of a bulletproof vest. It seems as if Mr. Clark waited in the car in ambush for the police officer and shot the police officer, not to mention that Mr. Clark has some violence in his past. I see quite a serious record of violent offenses as well as some burglaries and so forth. So, because of that, I’m going to deny the motion to reconsider sentence.

1 ciWhile the record does not include the pre-sentence investigation (PSI) report, the matters referred to above show that Mr. Clark has a significant criminal record, including prior acts of violence.

In State v. Thompson, 39,454 (La.App. 2 Cir. 3/2/05), 894 So.2d 1268, the court upheld a maximum sentence for the defendant, who was involved in a shootout with a police officer. The man was a fourth felony offender, and the second circuit determined that, “given his lengthy criminal past,” the defendant “was the worst type of offender.” Id. at 1285.

In view of the facts discussed at the two relevant hearings, we find that the trial court did not abuse its discretion in imposing the maximum sentence upon the defendant, Kenneth Jay Clark.

IV.

CONCLUSION

Based upon the foregoing, the conviction for attempted first degree murder and the maximum sentence of fifty years at hard labor are hereby affirmed.

CONVICTION AND SENTENCE AFFIRMED.


author: GREMILLION, Judge.

text:
    STATE of Louisiana v. Bryan GUILBEAU.
    No. 10-511.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 2010.
    John Foster DeRosier, District Attorney, Lake Charles, LA, for Appellee, State of Louisiana.
    Carla Sue Sigler, Assistant District Attorney, Lake Charles, LA, for Appellee, State of Louisiana.
    Pride Justin Doran, Doran Law Firm, Opelousas, LA, for Defendant/Appellant, Bryan Guilbeau.

      Court composed of JOHN D. SAUNDERS, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

| defendant, Bryan Guilbeau, pled guilty to possession of more than twenty-eight, but less than two hundred grams of cocaine, a violation of La.R.S. 40:967(F)(1)(a). He now complains that he was not asked if he wanted to withdraw his guilty plea when the trial court did not accept the sentencing recommendation to which the State and defense counsel agreed. Defendant seeks to have his sentence vacated so that he may withdraw his plea or confect a new sentencing agreement. Defendant’s conviction and sentence are affirmed.

FACTS

As part of Defendant’s plea agreement, the charge of possession of hydrocodone with the intent to distribute was dismissed. Defendant’s counsel and the State agreed to recommend the minimum sentence of five years at hard labor, to run concurrently with a sentence Defendant was serving as the result of a conviction in St. Landry Parish.

After this offense occurred, but before his guilty plea and sentencing, Defendant was convicted of possession of cocaine in St. Landry Parish and received a five-year probated sentence. His probation was revoked when he was charged with aggravated battery; a plea which resulted in him serving four years at hard labor.

Based on these additional convictions, the trial court rejected the recommendation of a concurrent five-year sentence. He sentenced Defendant, after considering the factors of La.Code Crim.P. art. 894.1, to ten years at hard labor, to run consecutively to the sentence Defendant was already serving. Prior to the trial court’s pronouncement of the sentence, Defendant indicated that he had reviewed his waiver of constitutional rights and guilty plea form with his attorney, and that he had no [2questions about it. He told the trial court that he understood the sentencing range for the pled offense was five to thirty years at hard labor. When the trial court asked if he had any questions, Defendant responded, “[t]he only question is I just wanted to know, if that charge carries 85%, how much time would I have to serve?,” and then stated, “[tjhat was my only question.” Defendant also indicated his understanding that the trial court was not bound by the recommendation of a five-year sentence, and that he knew the difference between concurrent and consecutive.

Defendant now complains that he was not asked whether he wanted to withdraw his guilty plea after he learned that the trial court would not follow the recommended sentence.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends that the trial court erred in accepting his plea as knowing and voluntary because Defendant believed he would receive a pre-determined sentence of five years at hard labor that would run concurrently to the sentence he was serving at the time. He argues that the trial court’s failure to honor the recommended sentence rendered his plea constitutionally infirm.

The recommended five-year sentence was, however, not “a pre-determined sentence.” It was a sentence the State and defense counsel agreed to recommend to the trial court. This court has recognized “that the sentencing discretion of the trial judge cannot be limited by a sentence recommended by both the State and the defendant. The trial judge may accept or reject a joint sentence recommendation.” State v. Higginbotham, 03-49, pp. (La.App. 3 Cir. 4/30/03), 843 So.2d 1230, 1232 (citations omitted), citing State v. Robinson, 33,921, p. 2 (La.App. 2 Cir. 11/1/00), 770 So.2d 868, 870.

|aIn Robinson, the second circuit discussed the distinction between an “agreed upon plea” and an “agreed upon sentence.” The defendant agreed to plead guilty to two counts of simple burglary, a lesser crime than the original charge. The State recommended the sentences be served concurrently, but that was not noted in the written plea agreement. When the defendant complained that he did not receive the agreed upon sentence, the court noted that there was only an agreement for the State to make a particular recommendation, not an agreement to a particular sentence, and it affirmed the sentence.

Likewise, in Higginbotham, the State recommended the defendant’s sentences run concurrently. Because the plea agreement contained an “agreed upon plea” and not an “agreed upon sentence,” the plea agreement was not breached when the court did not follow the sentencing recommendation.

Here, Defendant alleges that he entered into the plea agreement solely because he believed he would receive a concurrent five-year sentence. However, that was not a part of the plea agreement. The trial court told Defendant that the sentence the State and his counsel agreed to was only a recommendation, one he was not required to follow. Defendant said he understood, and proceeded with his guilty plea. Defendant may not withdraw that plea simply because the sentence he received turned out to be more than the sentence he expected. “It is not unreasonable for a trial court to deny a defendant the luxury of gambling on his sentence, then withdrawing his plea if and when he discovers, before imposition, the sentence is not to his liking.” State v. Stewart, 03-976, p. 5 (La.App. 5 Cir. 12/30/03), 862 So.2d 1271, 1275 (citations omitted).

14Pefendant was advised of the rights he waived by a guilty plea, of the maximum sentence he could receive by pleading guilty to his offense, and of the trial court’s discretion to disregard the sentencing recommendation. The trial court found his guilty plea to be knowing and voluntary based on Defendant’s indication that he understood.

Defendant’s plea was knowingly and voluntarily made under these facts. His plea bargain was never based on an agreement that he would receive a five-year sentence; rather, it was based on the agreement that the State and defense counsel would jointly make that recommendation to the trial court. They fulfilled their promise to Defendant. The trial court acted within his discretion in opting not to follow the sentencing recommendation.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant contends the trial court erred by not advising him of his right to withdraw his guilty plea after he became aware that the trial court “would not honor the joint plea promise/bargain.” As discussed above, there was no “plea promise/bargain.” Rather, there was only a recommendation, and the trial court was not bound to accept it. This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

In his last assignment of error, Defendant contends that the trial court erred in denying his Motion to Withdraw Guilty Plea and/or Reconsider Sentence. “The withdrawal of a guilty plea is within the broad discretion of the trial court, and is subject to reversal only if that discretion is abused or arbitrarily exercised.” State v. Roe, 05-116, p. 8 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, 1271, writ denied, 05-1762 (La.2/10/06), 924 So.2d 163 (citation omitted). For the reasons we have [.^already stated, we find the trial court neither abused its discretion nor acted arbitrarily.

CONCLUSION

Defendant’s conviction and sentence is affirmed.

AFFIRMED.


author: PAINTER, Judge.

text:
    INNOVATIVE HOSPITALITY SYSTEMS, L.L.C. v. ABE’S INC. and/or Abe’s and/or Abe’s Grocer, and/or Johnny Abraham, Personally, and/or Gus Abraham, Personally, and/or Suzanne A. Reeves, Personally, and/or Jeff Davis Bancshares, Inc. d/b/a Jeff Davis Bank & Trust Co., and/or Ace Cash Express, Inc. d/b/a America’s Cash Express, and/or Wachovia Bank, N.A., and/or ABC Check Cashing, and/or Capital One, N.A., and/or JPMorgan Chase Bank, N.A.
    No. 10-509.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 2010.

      Robert B. Evans, III, Cesar R. Burgos, Gabriel O. Mondino, New Orleans, LA, for PlaintiffiAppellant, Innovative Hospitality Services, L.L.C.
    Stephen C. Polito, H. Alan McCall, Stephen D. Polito, Lake Charles, LA, for Defendant/Appellee, Jeff Davis Bancshares, Inc. d/b/a Jeff Davis Bank & Trust Co.
    Court composed of JOHN D. SAUNDERS, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   PAINTER, Judge.

| j Plaintiff, Innovative Hospitality Systems, L.L.C. (IHS), appeals the judgment of the trial court granting Defendant, Jeff Davis Bancshares, Inc. d/b/a Jeff Davis Bank & Trust Company’s (Jeff Davis Bank) exception of no cause of action. For the following reasons, we affirm.

FACTS

The facts significant to this appeal, as alleged in Plaintiffs petition, are as follows: On March 23, 2007, approximately one-hundred-eight replicated and/or fraudulent checks written on Plaintiffs account at JPMorgan Chase Bank, N.A. (Chase) were cashed at Abe’s, Inc. a/k/a Abe’s Grocery. The next day those checks were deposited in Abe’s account at Jeff Davis Bank. The checks were ultimately paid from Plaintiffs Chase account.

IHS filed suit against Jeff Davis Bank, among others. Jeff Davis Bank filed an exception of no cause of action asserting that Louisiana law affords no remedy to the maker of a check against a depositary or collecting bank. Jeff Davis Bank argued that IHS’s only remedy is against its own bank for the amount of the checks charged against its account. The trial court granted the exception and dismissed IHS’s claims against Jeff Davis Bank. IHS appeals.

DISCUSSION

The function of the peremptory exception of no cause of action is to question whether the law extends a remedy to anyone under the factual allegations of the petition. Louisiana Paddlewheels v. Louisiana Riverboat Gaming Com’n, 94-2015 (La.11/30/94), 646 So.2d 885. The exception is tried on the face of the pleadings and the court accepts the facts alleged in the petition as true, determining whether the law affords relief to the plaintiff if those facts are proved at trial. Barrie v. V.P. Exterminators, Inc., 93-0679 (La.10/18/93), 625 So.2d 1007. We subject a trial court’s ruling sustaining an exception of no cause of action to de novo review because the exception raises a question of law [2and the lower court’s decision is based only on the sufficiency of the petition. Kelly v. CNA Ins. Co., 98-0454 (La.3/12/99), 729 So.2d 1033.

Finova Capital Corp. v. IT Corp., 33,994, pp. 2-3 (La.App. 2 Cir. 12/15/00), 774 So.2d 1129, 1131.

Plaintiffs petition contains the following allegations with regard to Jeff Davis Bank:

II.
On or about March 24, 2007, ABE’S endorsed said checks and deposited them to its account with the JEFF DAVIS BANK & TRUST CO. in Jennings, Louisiana for collection against the account of Plaintiff, INNOVATIVE HOSPITALITY SYSTEMS, L.L.C., with JPMORGAN CHASE BANK, N.A.
III.
JEFF DAVIS BANK & TRUST CO. in Jennings, Louisiana negligently and without exercising ordinary care negotiated for collection against the account of Plaintiff, INNOVATIVE HOSPITALITY SYSTEMS, L.L.C. with JPMOR-GAN CHASE BANK, N.A. said one hundred and eight or more fraudulent checks. The fraudulent checks were negotiated by JEFF DAVIS BANK & TRUST CO. under circumstances including, but not limited to: on the same day, in groups of as many as six checks to the same payee, with the same check numbers, for the same amounts, lacking sufficiently identifiable endorsements by the payees, and with fraudulent drawer signatures.
XIV.
Plaintiff, INNOVATIVE HOSPITALITY SYSTEMS, L.L.C. avers that Defendants acted negligently and without exercising ordinary care in the cashing and negotiating said fraudulent checks, in the following non-exclusive manners.
a. Failure to see what they should have seen;
b. Failure to implement adequate check cashing protocols;
c. Failure to establish and/or maintain adequate check endorsement procedures.
[sd. Failure to establish and/or maintain adequate payee identification procedures.
e. Failure to train its employees in adequate check cashing control techniques;
f. Failure to implement adequate software and/or other systems to detect fraudulent checks;
g. Failure to issue and/or provide fraud protected checks; and
h. Other acts of negligence to be proven at trial.

Louisiana Revised Statutes 10:1— 103 sets out the purpose for which the Uniform Commercial Code (UCC) was adopted in Louisiana as simplification, clarification, and modernization of the law governing commercial transactions and to promote uniformity with other jurisdictions. The UCC displaces the Louisiana law applicable to negligent acceptance, payment, or presentment of a forged check by a depositary bank prior to its enactment. La.R.S. 10:1-103, ASP Enter., Inc. v. Guillory, 08-2235 (La.App. 1 Cir. 9/11/09), 22 So.3d 964, writ denied, 09-2464 (La.1/29/10), 25 So.3d 834. Therefore, any negligence-based action asserted by Plaintiff in its petition has been displaced by the UCC and therefore, does not support a cause of action against Jeff Davis Bank.

Plaintiff, however, asserts that the trial court erred in failing to find that Jeff Davis Bank owes a duty to it as a drawer in the form of a presentment warranty under La.R.S. 10:3-417, and in failing to find that its petition states a cause of action for breach of that warranty.

Louisiana Revised Statutes 10:3-417 states that:

(a)If an unaccepted draft is presented to the drawee for payment or acceptance and the drawee pays or accepts the draft, (i) the person obtaining payment or acceptance, at the time of presentment, and (ii) a |4previous transferor of the draft, at the time of transfer, warrant to the drawee making payment or accepting the draft in good faith that:
(1)the warrantor is, or was, at the time the warrantor transferred the draft, a person entitled to enforce the draft or authorized to obtain payment or acceptance of the draft on behalf of a person entitled to enforce the draft;
(2) the draft has not been altered; and
(3) the warrantor has no knowledge that the signature of the drawer of the draft is unauthorized.
(b) A drawee making payment may recover from any warrantor damages for breach of warranty equal to the amount paid by the drawee less the amount the drawee received or is entitled to receive from the drawer because of the payment. In addition, the drawee is entitled to compensation for expenses and loss of interest resulting from the breach. The right of the drawee to recover damages under this Subsection is not affected by any failure of the drawee to exercise ordinary care in making payment. If the drawee accepts the draft, breach of warranty is a defense to the obligation of the acceptor. If the acceptor makes payment with respect to the draft, the acceptor is entitled to recover from any warrantor for breach of warranty the amounts stated in this Subsection.
(c) If a drawee asserts a claim for breach of warranty under Subsection (a) based on an unauthorized indorsement of the draft or an alteration of the draft, the warrantor may defend by proving that the indorsement is effective under R.S. 10:3-404 or 10:3-405 or the drawer is precluded under R.S. 10:3-406 or 10:4-406 from asserting against the drawee the unauthorized indorsement or alteration.
(d) If (i) a dishonored draft is presented for payment to the drawer or an indorser or (ii) any other instrument is presented for payment to a party obliged to pay the instrument, and (iii) payment is received, the following rules apply:
(1) The person obtaining payment and a prior transferor of the instrument warrant to the person making payment in good faith that the warrantor is, or was, at the time the warrantor transferred the instrument, a person entitled to enforce the instrument or authorized to obtain payment on behalf of a person entitled to enforce the instrument.
(2) The person making payment may recover from any warrantor for breach of warranty an amount equal to the amount paid plus expenses and loss of interest resulting from the breach.
|s(e) The warranties stated in Subsections (a) and (d) cannot be disclaimed with respect to checks. Unless notice of a claim for breach of warranty is given to the warrantor within 30 days after the claimant has reason to know of the breach and the identity of the warrantor, the liability of the warrantor under Subsection (b) or (d) is discharged to the extent of any loss caused by the delay in giving notice of the claim.
(f) A cause of action for breach of warranty under this Section accrues when the claimant has reason to know of the breach.

Under La. R.S. 10:S-417(a), a warranty of presentment is available only to a draw-ee against a depositary bank. UCC § 3-417 Official Comment 2. While a warranty of presentment is available to a drawer as set out in La.R.S. 10:3-417(d), the petition herein contains no allegations that the drawee bank (Chase) dishonored the checks or that the checks were presented to the drawer (IHS) for payment. The petition alleges that Chase paid the checks.

Plaintiff further asserts that Jeff Davis owes it an obligation under La.R.S. 10:3-407(b) and 10:3 — 403. However, neither statute provides a remedy to a drawer against a depositary bank. Louisiana Revised Statutes 10:3-403 states that an unauthorized signature is ineffective. The remedy for the drawer where payment is made pursuant to a forged or unauthorized signature is against the drawee bank.

[T]he general rule is that a bank is liable when it pays based upon a forged signature. Colonial Bank v. Marina Seafood Market, Inc., 425 So.2d 722 (La.1983); Columbia Finance Corp. v. Robitcheck, 243 La. 1084, 150 So.2d 23 (La.1963); Couvillon v. Whitney Nat’l. Bank of New Orleans, 218 La. 1096, 51 So.2d 798 (1951). A charge against a customer’s account based on a forged instrument is not an authorized charge under the contract between the parties because the order to pay was not given by the customer. 6 Hawkland, Leary & Alderman UCC Series § 4-401:03 (Rev.ed.1996). For that reason, a banking customer can insist that the drawee bank recredit to his account any funds paid out on a forged instrument. James V. Vergai & Virginia V. Shue, Checks, Payments, and Electronic Banking 458 (Practicing Law Institute 1986); Fidelity Nat’l. Bank of Baton Rouge v. Vuci, 224 La. 124, 68 So.2d 781 (1953).

Marx v. Whitney Nat. Bank, 97-3213, p. 3 (La.7/8/98), 713 So.2d 1142, 1145. Louisiana Revised Statutes 10:3-407(b) does state, as alleged by Plaintiff, that fraudulent alteration of an instrument discharges a party whose obligation is affected by the alteration. However, Section (c) of La.R.S. 10:3-407 states that:

A payor bank or drawee paying a fraudulently altered instrument or a person taking it for value, in good faith and without notice of the alteration, may enforce rights with respect to the instrument (i) according to its original terms, or (ii) in the case of an incomplete instrument altered by unauthorized completion, according to its terms as completed.

(Emphasis added.) Therefore, it the remedy for payment of a fraudulently altered instrument lies with the payor bank or drawee, not with the drawer.

Accordingly, we find that the trial court correctly found that the petition did not state a cause of action against Jeff Davis Bank.

CONCLUSION

The judgment of the trial court is affirmed. Costs of this appeal are assessed to the Plaintiff/Appellant, IHS.

AFFIRMED.


author: AMY, Judge.

text:
    STATE of Louisiana v. Giles McGHEE.
    No. 10-583.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 2010.

      Charles A. Riddle, III, District Attorney, Michael F. Kelly, Assistant District Attorney, Marksville, LA, for Appellee, State of Louisiana.
    Carey J. Ellis, III, Louisiana Appellate Project, Rayville, LA, for Defendant/Appellant, Giles McGhee.
    Giles McGhee, Homer, LA.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY and BILLY HOWARD EZELL, Judges.
   AMY, Judge.

hA jury convicted the defendant of manslaughter, and the trial court sentenced the defendant to forty years imprisonment at hard labor. The defendant now appeals his conviction and sentence. For the following reasons, we affirm.

Factual and Procedural Background

In the early morning hours of December 21, 2008, at Borrel’s Club in Marksville, Louisiana, an altercation ensued between Giles McGhee, Ronnie Day, and Troy Day. During this fight, a gun was fired and Myron Mingo, a bystander, was shot. Mr. Mingo later died as a result of his injuries.

On February 26, 2009, Giles McGhee was charged by bill of indictment with manslaughter, a violation of La.R.S. 14:31, in Mr. Mingo’s death. In that indictment, the State asserted alternative theories of manslaughter, alleging that: the defendant shot Mr. Mingo without intent to cause death or bodily harm while engaged in the perpetration or attempted perpetration of a felony not enumerated in La.R.S. 14:30 or La.R.S. 14:31, specifically, the felony of possession of a firearm by a convicted felon; or the defendant shot Mr. Mingo while in the perpetration of committing an intentional misdemeanor, aggravated assault, against Ronnie Day.

The defendant pled not guilty, and the matter proceeded to trial by jury. On September 29, 2009, the jury found the defendant guilty of manslaughter. The defendant filed a “Motion for Post Verdict Judgment of Acquittal, Judgment Notwithstanding the Verdict and Alternative Motion for New Trial” on November 16, 2009, which was subsequently denied. Thereafter, the trial court sentenced the defendant to serve forty years imprisonment at hard labor. The defendant filed two [¿‘Motions to Reconsider Sentence” which were also denied.

The defendant appeals, challenging the sufficiency of the evidence used to convict him in addition to the excessiveness of his sentence. For the following reasons, we affirm the defendant’s conviction and sentence.

Discussion

Errors Patent

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

The minutes of the sentencing hearing reflect, in pertinent part: “THE COURT ALSO INFORMED THE DEFENDANT OF THE PROVISIONS RELATING TO POST-CONVICTION RELIEF AS REQUIRED BY ARTICLE 930.8 OF THE LOUISIANA CODE CRIMINAL PROCEDURE.” However, the sentencing transcript reflects that the trial court stated, “I must tell you that under the law you do have five days to appeal to which to apply for post-conviction relief.” After the trial court excused the parties, the following exchange took place:

[State]:
I think, Judge, that, I’m not sure, but I would ask you to just repeat it, just in case. Notifying the defendant that he has to [sic] years to file post conviction.” [Counsel for the defendant]:
He did.
[State]:
He did?
By the Court:
Yeah, I just cant’ [sic] speak loud today, I’m sorry.

IsLouisiana Code Criminal Procedure Article 930.8 provides that the two-year prescriptive period begins to run when the defendant’s conviction and sentence become final under the provisions of La. Code Crim.P. arts. 914 or 922. Louisiana Code of Criminal Procedure Articles 914 and 922 provide for the time period for filing an appeal as well as the time at which an appellate court or supreme court judgment becomes final. According to the time periods set forth in those articles, the earliest a conviction and sentence can become final is thirty days after the imposition of sentence, provided that the defendant files neither an appeal nor a motion to reconsider sentence. Thus, the trial court erroneously advised the defendant regarding the prescriptive period of La.Code Crim.P. art. 930.8. Accordingly, the trial court is directed to inform the defendant of the correct prescriptive period by sending appropriate written notice to the defendant within ten days of the rendition of this opinion. Additionally, the trial court should be instructed to file written proof in the record that the defendant received the notice. State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La.2/10/06), 924 So.2d 163.

Sufficiency of the Evidence

In his first assignment of error, the defendant contends that there was insufficient evidence to support his manslaughter conviction.

In reviewing the sufficiency of the evidence to support a conviction, an appellate court is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921. Under the Jackson standard, the appellate court must determine that the evidence, viewed in the light most favorable to the Lprosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt. Id.

Manslaughter is defined, as applicable to the present matter, in La.R.S. 14:31(A)(2)(a), which states:

A. Manslaughter is:
(2) A homicide committed, without any intent to cause death or great bodily harm.
(a) When the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Article 30 or 30.1, or of any intentional misdemeanor directly affecting the person;

Here, the State sought to prove the defendant’s guilt under alternative theories. First, the bill of indictment alleged that the defendant committed manslaughter:

by shooting him with a pistol without any intent to cause death or great bodily harm when Giles McGhee was engaged in the perpetration or attempted perpetration of a felony not enumerated in Article 30 or 30.1 namely a violation of R.S. 14:95.1 entitled “Possession of a Firearm by a Person Convicted of Certain Felonies” in that after having been convicted by [sic] a violation of the Uniform Controlled Dangerous Substances Law which is a felony, namely Possession of Cocaine in Criminal Docket Number 142,999 on the Docket of the Twelfth Judicial District Court on April 3, 2008 and was sentenced to 3 years at hard labor, sentence suspended and placed on supervised probation for two years, did thereafter possess a firearmf.]

Also, the State alleged that the defendant committed manslaughter by “intentionally committing] a misdemeanor directly affecting a person, that is a violation of R.S. 14:37 entitled ‘Aggravated Assault’ in that he did intentionally place Ronnie Day in reasonable apprehension of receiving a battery with a dangerous weapon,” resulting in the death of Mr. Mingo.

In brief, the defendant asserts that the testimony of the witnesses was inconsistent and irreconcilable, thus the State could not have been said to present sufficient proof that he had a gun or fired a gun. The defendant asserts that neither laof the bouncers working at the lounge testified they saw the defendant with a gun. He contends that the “only two witnesses] who testified that Defendant had a gun were Ronnie and Troy Day.” The defendant also points to the testimony of Natalie Stovall, the sister of Brenda Campbell who was also at Borrel’s Lounge when Mr. Mingo was killed. Natalie testified that she could not see the defendant’s hands during the fight because he was balled up on the floor. She testified that she did not see a gun, but heard the gunshots. She further related that the defendant was wearing a tight shirt. In brief, the defendant asserts that Natalie’s testimony that he was wearing a tight-fitting shirt evidences that it would have been hard for him to conceal a weapon.

The record reveals that several witnesses testified that the defendant brandished a weapon at Borrel’s Lounge. At trial, Ronnie Day testified that prior to the night at Borrel’s Lounge, there had been a dispute between his family and the defendant’s family. He related that he went to Borrel’s Lounge with his cousin Troy Day, and after an hour in the club, he encountered Brenda Campbell, the defendant’s girlfriend. He testified to the events as follows:

She [Brenda] had a [bottle of] gin in her hand. Then I pushed out the way [sic]. And he [the defendant] was standing behind her where she was standing. And that’s when he [the defendant] looked up, he seen me. He went to raise up his shirt. That’s when I started hitting him. He leaned forward and I heard him going for it. I leaned over him and I stuck my hand underneath him and grabbed the head of the gun. Then I moved to his hand trying to open it and finally to get the gun. I told my cousin he’s got a gun. So I moved to the other side of him and my cousin came on the other side and me and my cousin was [sic] trying to pry his hands open. That’s when everybody started rushing out [of] the club.

|fiHe further testified that after wrestling for the gun, the defendant fell over and “balled up” on the ground under him, and he did not see the gun again. Ronnie responded affirmatively that he did not doubt that there was a gun in the defendant’s hand.

Troy Day, Ronnie Day’s cousin, testified that he also saw the defendant “draw back underneath his shirt” before Ronnie started hitting him. He testified that, after being hit, as the defendant was falling back, he saw a “chrome and black gun” coming out from underneath the defendant’s shirt. Troy stated that the gun fired while Ronnie was hitting the defendant, and Ronnie yelled, “Troy he[’s] got a gun.” Troy related that he began struggling for the gun, eventually holding the defendant’s hand upward “where the gun couldn’t be shot any more.” He testified that while he was holding the defendant’s arm, the defendant bit his arm and Brenda and some of Brenda’s friends started beating him. He related that when the group of people fighting fell to the ground, the gun flew out of the defendant’s hands. He testified that he did not pick up the gun nor did he see anyone else pick up the gun.

Robert Malbrough, a bouncer at Borrel’s on the night at issue, testified that he was coming out of the bathroom when the fight started. He related that he heard a gunshot and saw the defendant and Ronnie struggling over a gun. Robert testified that he grabbed Ronnie and dragged him into the bathroom while Ronnie was telling him “hold on, hold on, he’s trying to shoot me.” Robert confirmed that Ronnie was referring to the defendant. Another bouncer, Bennett Dominick, testified that he heard the sound of gunfire and observed that the defendant and Ronnie and Troy Day were fighting. He stated that he never saw a gun.

After reviewing the record in a light most favorable to the prosecution as required under the Jackson standard, we find that there was sufficient evidence to 17prove that the defendant committed manslaughter. “It is well-settled jurisprudence that the testimony of a single witness, absent internal contradictions or irreconcilable conflicts with physical evidence, is sufficient to support a conviction. The credibility of the witness is a matter of weight of the evidence, not sufficiency, and determination of the credibility is left to the trier-of-fact’s sound discretion and will not be re-weighed on appeal.” State v. Jeter, 09-1004, p. 3 (La.App. 3 Cir. 4/7/10), 33 So.3d 1041, 1043-44. Here, Ronnie Day testified that he felt the gun when the defendant fired it, and he subsequently grabbed the gun. Troy Day testified that he saw the gun in the defendant’s hand. Further, Ronald Malbrough testified that he saw Ronnie and the defendant struggling over a gun, and Ronnie stated that the defendant was trying to shoot him. The jury’s guilty verdict indicates that it chose to believe this testimony, and as explained above, those credibility determinations should not be second-guessed by this court. Thus, the State proved that the defendant possessed a firearm.

As explained above, the necessary elements of proving manslaughter under the State’s first theory was proving that a homicide was committed without any intent to cause death or great bodily harm when “the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Article 30 or 30.1 [.]” Possession of a firearm by a convicted felon, a violation of La.R.S. 14:95.1, is not an enumerated felony in Article 30 or 30.1. To prove a violation of La. R.S. 14:95.1, the State must prove: (1) the possession of a firearm; (2) a prior conviction for an enumerated felony as enumerated in La.R.S. 14:95.1; (3) the absence of the ten-year statutory limitation period; and, (4) the general intent to commit the crime. State v. Hanner, 09-1109 (La.App. 3 Cir. 4/14/10), 35 So.3d 1178. The State offered evidence | sthat the defendant pled guilty in April 2008 to possession of cocaine, a felony. The general intent to commit the crime of possession of a firearm was proven through the defendant’s actual possession of the gun. Thus, under the standard of review here, we find that the record supports a finding that the State proved the elements of manslaughter beyond a reasonable doubt.

This assignment of error is without merit.

Excessiveness of the Sentence

In his second assignment of error, the defendant contends that his sentence of forty years imprisonment at hard labor is excessive. A conviction of manslaughter is punishable by imprisonment for not more than forty years. La.R.S. 14:31. The defendant asserts that although he has a prior conviction for possession of cocaine, he is not the worst offender for whom maximum sentences are reserved. He additionally asserts he was twenty-five years old at the time of sentence. Further, “considering that factors in mitigation of a less severe sentence should have been given more weight, the goals of punishment can better be accomplished with a less severe sentence.”

In State v. Fontenot, 09-1044, pp. 4-6 (La.App. 3 Cir. 5/12/10), 38 So.3d 1122, 1125-26, a panel of this court stated:

The Eighth Amendment to the United States Constitution and La. Const, art. 1, § 20 prohibit the imposition of cruel or excessive punishment, and the law is well settled with regard to what constitutes cruel or excessive punishment. An excessive sentence is a penalty that is so grossly disproportionate to the severity of the crime that it shocks our sense of justice or it makes no measurable contribution to acceptable [9penal goals and, therefore, is nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). Additionally, the trial court is given wide discretion in imposing a sentence, and, absent a manifest abuse of that discretion, the reviewing court should not deem as excessive a sentence imposed within statutory limits. State v. Howard, 414 So.2d 1210 (La.1982); State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96), 670 So.2d 713. Still, a sentence that falls within the statutory limits may be excessive under the particular circumstances of a given case. State v. Sepulvado, 367 So.2d 762 (La.1979). Additionally, “[mjaximum sentences are reserved for the most serious violations and the worst offenders.” State v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225. The only relevant question for the reviewing court to consider is not whether another sentence would be more appropriate, but rather whether the trial court abused its broad discretion in sentencing a defendant. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

Louisiana Code of Criminal Procedure Article 894.1(A) provides that the trial court should impose an imprisonment sentence if any of the following are established by the record:

(1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime.
(2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution.
(3) A lesser sentence will deprecate the seriousness of the defendant’s crime.
Additionally, the trial court must “state for the record the considerations taken into account and the factual basis therefor in imposing sentence.” La. Code Crim.P. art. 894.1(C). However, in complying with this article, the trial court “need not articulate every circumstance or read through a checklist of items.” State v. Anderson, 95-1688, p. 4 (La.App. 3 Cir. 5/8/96), 677 So.2d 480, 483.

At the sentencing hearing, the trial court noted the defendant’s criminal history and found that there was an undue risk that the defendant might commit another crime if he received a suspended sentence. Additionally, it noted that the defendant was in Imneed of a custodial environment that could be most effectively provided by commitment to the Department of Corrections. The trial court also discussed the victim’s background and stated that a lesser sentence than what it was going to impose would deprecate the seriousness of the offense. The trial court further found the case “called for the severest of penalties” because the victim was “living a virtuous life, had nothing to do with any type of violent activity[,]” and “people have to know that when you [c]on-duct yourself in that kind of behavior senselessly, recklessly, and a life is taken that there is the severest punishment awaiting.” The trial court then discussed the factors set forth in La.Code Crim.P. art. 894.1.

After review of the record, we find that the trial court did not abuse its discretion in sentencing the defendant to the maximum sentence. In light of facts of this case as considered by the trial court, such as the seriousness of the offense and the defendant’s criminal history, we find that the defendant’s sentence is not excessive.

This assignment of error lacks merit.

DECREE

For the foregoing reasons, we affirm the defendant’s conviction and sentence. The trial court is directed to inform the defendant of the correct prescriptive period by sending appropriate written notice to the defendant within ten days of the rendition of this opinion. Additionally, the trial court is instructed to file written proof in the record that the Defendant received the notice.

AFFIRMED.

      . Originally, the bill of indictment read “engaged in the perpetration or attempted perpetration of a felony enumerated in Article 30 or 30.1[.]” On September 28, 2009, the bill of indictment was amended to add the word not in the phrase "perpetration or attempted perpetration of a felony [not] enumerated in Article 30 or 30.1.”

      . A felony is defined as "any crime for which an offender may be sentenced to death or imprisonment at hard labor.” La.R.S. 14:2. Conviction of the possession of a schedule II drug, cocaine, carries a sentence of imprisonment with or without hard labor for no more than five years. La.R.S. 40:967. Thus, the defendant was convicted of a felony.

      . At the sentencing hearing, the trial court noted that the defendant had pled guilty to domestic battery in 2007 in Avoyelles Parish and possession of cocaine in 2008 in Avo-yelles Parish.