text:
    Abdullah MUHAMMAD a/k/a Kirk Spencer v. Burl CAIN, Warden Louisiana State Penitentiary Angola, Louisiana.
    No. 2013-KP-1523.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Abdullah Muhammad a/k/a Kirk Spencer; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. James, 23rd Judicial District Court Div. A, No. 91-CR-1695; to the Court of Appeal, Fifth Circuit, No. 13-KH-343.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


source: Caselaw Access Project

license: Public Domain

text:
    Ralph DEER v. Burl CAIN, Warden Louisiana State Penitentiary.
    No. 2013-KP-1524.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Deer, Ralph; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. J, No. 86-2005; to the Court of Appeal, Fifth Circuit, No. 13-KH-417.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE of Louisiana v. Charles RODGERS, Jr.
    No. 2013-KP-1790.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Rodgers Jr., Charles; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 317,886; to the Court of Appeal, First Circuit, No. 2013 KW 0790.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Paul WILL v. STATE of Louisiana.
    No. 2013-KH-1827.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Will, Paul; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. J, No. 00-4845; to the Court of Appeal, Fifth Circuit, No. 13-KH-48S.

Denied.

GUIDRY, J., recused.

HUGHES, J., would grant.


text:
    STATE ex rel. Donald Lee LEGER, Jr. v. STATE of Louisiana.
    No. 2013-KH-1961.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Leger, Jr., Donald Lee; — Plaintiff; Applying For Supervisory and/or Remedíal Writs, Parish of St. Mary, 16th Judicial District Court Div. G, No. 158,807.

Denied.


text:
    STATE ex rel. Bradford SKINNER v. STATE of Louisiana.
    No. 2013-KH-1980.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Skinner, Bradford; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 512-469; to the Court of Appeal, Fourth Circuit, No. 2013-K-992.

Denied.


text:
    STATE ex rel. Alan MICHEL a/k/a Allen Michel, Allan Michael v. STATE of Louisiana.
    No. 2013-KH-1987.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Alan Michel a/k/a Allen Michel, Allan Michael; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. F, No. 85,782; to the Court of Appeal, First Circuit, No. 2013 KW 1253.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Harold Joe BLACK v. STATE of Louisiana.
    No. 2013-KH-1997.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Black, Harold Joe; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 5, No. 194,296; to the Court of Appeal, Second Circuit, No. 48,-345-KH.

Denied. Moot.


text:
    STATE ex rel. Robert A. SMITH, Jr. v. STATE of Louisiana.
    No. 2013-KH-2001.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Smith Jr., Robert A.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. N, No. 09-98-0249; to the Court of Appeal, First Cir-' cuit, No. 2013 KW 0849.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Auther WILLIAMS a/k/a Arthur Williams v. STATE of Louisiana.
    No. 2013-KH-2019.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Auther Williams a/k/a Arthur Williams; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 396-904; to the Court of Appeal, Fourth Circuit, No. 2013-K-0961.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Moses GREEN v. STATE of Louisiana.
    No. 2013-KH-2020.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Green, Moses; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 365-505; to the Court of Appeal, Fourth Circuit, No. 2013-K-0973.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Manual CHAPA v. STATE of Louisiana.
    No. 2013-KH-2021.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Chapa, Manual; — Plaintiff; Applying For Supervisory and/or. Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. J, No. 349498; to the Court of Appeal, First Circuit, No. 2013 KW 0882.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. David BOUDREAUX v. STATE of Louisiana.
    No. 2013-KH-2026.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Boudreaux, David; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. M, No. 93-1435; to the Court of Appeal, Fifth Circuit, No. 13-KH-526.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Darrel JONES v. STATE of Louisiana.
    No. 2013-KH-2027.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Jones, Darrel; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. D, No. 03-7501; to the Court of Appeal, Fifth Circuit, No. 13-KH-553.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Noel A. DEAN v. STATE of Louisiana.
    No. 2013-KH-2029.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Dean, Noel A.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. K, No. 403^47; to the Court of Appeal, Fourth Circuit, No. 2013-K-1074.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. D’Marques GILL v. STATE of Louisiana.
    No. 2013-KH-2030.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Gill, D’Marques; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Webster, 26th Judicial District Court Div. C, No. 69,767; to the Court of Appeal, Second Circuit, No. 48,-648-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Kevin Charles GASAWAY v. STATE of Louisiana.
    No. 2013-KH-2031.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Gasaway, Kevin Charles; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. E, No. 3817-; to the Court of Appeal, Third Circuit, No. KH 13-00485.

Denied.

HUGHES, J., would grant.


text:
    STATE ex rel. Marlo CHARLES v. STATE of Louisiana.
    No. 2013-KH-2043.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Charles, Mario; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. D, No. 345943; to the Court of Appeal, First Circuit, No. 2013 KW 0945.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; cf. La.C.Cr.P. art. 930.4(A).


text:
    STATE ex rel. Glenn M. WEBB, Jr. v. STATE of Louisiana.
    No. 2013-KH-2045.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Webb Jr., Glenn M.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lasalle, 28th Judicial District Court Div. O, Nos. 72,949, 72,951; to the Court of Appeal, Third Circuit, No. 12-01173.

Denied.


text:
    STATE ex rel. Leonard LEWIS v. STATE of Louisiana.
    No. 2013-KH-2071.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Lewis, Leonard; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Vernon, 30th Judicial District Court Div. C, No. 67408; to the Court of Appeal, Third Circuit, No. KH 12-00095.

Denied.


text:
    STATE ex rel. Carlos HERNANDEZ v. STATE of Louisiana.
    No. 2013-KH-2073.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Hernandez, Carlos; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. M, No. 08-1653; to the Court of Appeal, Fifth Circuit, No. 13-KH-555.

Denied.


text:
    STATE ex rel. Charles WATTS, Jr. v. STATE of Louisiana.
    No. 2013-KH-2091.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Watts Jr., Charles; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. C, No. 408521-2; to the Court of Appeal, First Circuit, No. 2013 KW 0364.

Denied. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172. See also State v. Cotton, 09-2397 (La.10/15/10) 45 So.3d 1030; State v. Thomas, 08-2912, (La.10/16/09), 19 So.3d 466.


text:
    STATE ex rel. Alvin BRATTON v. STATE of Louisiana.
    No. 2013-KH-2099.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Bratton, Alvin; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 2, No. 196,603; to the Court of Appeal, Second Circuit, No. 48,-632-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Shane Demarcus LEMONS v. STATE of Louisiana.
    No. 2013-KH-2112.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Lemons, Shane Demarcus; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. E, No. 274,005; to the Court of Appeal, Third Circuit, No. KH 13-00579.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Harold Joe BLACK v. STATE of Louisiana.
    No. 2013-KH-2231.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Black, Harold Joe; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Winn, 8th Judicial District Court Div. O, No. 43701; to the Court of Appeal, Second Circuit, No. 48544-KH.

Denied. Moot.


text:
    STATE of Louisiana v. Charles KEYES.
    No. 2013-KO-2367.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Keyes, Charles; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. H, No. 501-529; to the Court of Appeal, Fourth Circuit, No. 2012-KA-1177.

Denied.


text:
    STATE of Louisiana v. Randy FONTENBERRY.
    No. 2013-K-2421.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Fortenberry, Randy; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Washington, 22nd Judicial District Court Div. G, No. 10 CR8 111169; to the Court of Appeal, First Circuit, No. 2012 KA 2084.

Denied.


text:
    STATE of Louisiana v. Algie SPEARS.
    No. 2013-KO-2434.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Spears, Algie; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. D, No. 512686; to the Court of Appeal, First Circuit, No. 2012 KA 1706.

Denied.


text:
    STATE of Louisiana v. John CUNNINGHAM.
    No. 2013-KO-2435.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Cunningham, John; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. B, Nos. 496-306, 499-077; to the Court of Appeal, Fourth Circuit, No. 2012-KA-1768 C/W 2013-KA-0106.

Denied.


text:
    STATE of Louisiana v. Jamel L. EDGAR.
    No. 2013-KO-2452.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Edgar, Jamel L.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. B, No. 487-062; to the Court of Appeal, Fourth Circuit, No. 2012-KA-0744.

Denied.


text:
    STATE of Louisiana in the Interest of D.W.
    No. 2013-CK-2478.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re D.W.; — Other; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, Jefferson Parish Juvenile Court, No. 07-JU-18; to the Court of Appeal, Fifth Circuit, No. 13-KA-114.

Denied.


text:
    STATE of Louisiana v. Ben James THOMPSON.
    No. 2013-K-2479.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Thompson, Ben James; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Vermilion, 15th Judicial District Court Div. G, No. 46373; to the Court of Appeal, Third Circuit, No. 13-261.

Denied.


text:
    STATE of Louisiana v. Edward AUGUSTINE.
    No. 2013-K-2484.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Augustine, Edward; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. F, No. 504-210; to the Court of Appeal, Fourth Circuit, No. 2012-KA-1759.

Denied.


text:
    STATE of Louisiana v. John Love ROBINSON.
    No. 2013-KO-2546.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Robinson, John Love; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. 5, No. 248,131; to the Court of Appeal, Second Circuit, No. 48,-429-KA.

Denied.


text:
    STATE of Louisiana v. Romale PERNELL.
    No. 2013-KO-2547.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Pernell, Romale; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. D, No. 422,608; to the Court of Appeal, Fourth Circuit, . No. 2013-KA-0180.

Denied.


text:
    STATE of Louisiana v. Conner Ray BROWN.
    No. 2013-KO-2550.
    Supreme Court of Louisiana.
    April 4, 2014.
   Prior report: La.App., 135 So.3d 718, 2013 WL 5345632

In re Brown, Conner Ray; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. 3, No. 284,010; to the Court of Appeal, Second Circuit, No. 48,-257-KA.

Denied.


text:
    SUCCESSION OF Francis Alvin STALTER, Jr.
    No. 2013-CC-2948.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Stalter, Sheila Brooks; — Other; Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. D, No. 40384; to the Court of Appeal, Third Circuit, No. CW 13-00740.

Denied. Adequate remedy on appeal.


text:
    Kandi SMITH v. FIREFIGHTERS’ RETIREMENT SYSTEM and Brandon Thomas Smith.
    No. 2013-CC-2971.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Smith, Kandi; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 604927; to the Court of Appeal, First Circuit, No. 2013 CW 1460.

Denied.

JOHNSON, C.J., and VICTORY, J, would grant.


text:
    Troy MOTT v. CITY OF EUNICE, Louisiana through its Mayor, Robert “Bob” MORRIS; Chief Gary “Goose” Fontenot in his Capacity as Chief of Police of Eunice, Louisiana; Micah Arceneaux, Individually and in his Capacity as a Eunice Police Officer; Jeremy Ivory, Individually and in his Capacity as a Eunice Police Officer; Billy McCauley, Jr., Individually and in his Capacity as a Eunice Police Officer.
    No. 2014-C-0093.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Mott, Troy; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of St. Landry, 27th Judicial District Court Div. A, No. 10-C-0111-A; to the Court of Appeal, Third Circuit, No. 13-921 C/W 13-655.

Denied.

JOHNSON, C.J., and KNOLL and HUGHES, JJ., would grant.


text:
    PBGS, L.L.C., et al. v. Rhyn L. DUPLECHAIN, Assessor for St. Landry Parish, et al.
    No. 2014-C-0114.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re PBGS, L.L.C.; Port Barre Investments, LLC, co Spectra Energy Corporation; — Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of St. Landry, 27th Judicial District Court Div. B, No. 12-0170; to the Court of Appeal, Third Circuit, No. 13-278.

Denied.

WEIMER, J., would grant.


text:
    Wendy Coleman LeGARDEUR, et al. v. Renate Briel COLEMAN. Succession of William B. Coleman Jr. v. Renate Briel Coleman.
    No. 2014-C-0122.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Wendy Coleman LeGardeur, et al; — Plaintiff; Applying For Writ of Cer-tiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. K, No. 696-037 C/W 696-038; to the Court of Appeal, Fifth Circuit, No. 13-CA-435 C/W 13-CA-436.

Denied.

JOHNSON, C.J., and VICTORY, J„ would grant.


text:
    Virginia Butler BARKER v. Tony Robert BARKER.
    No. 2014-C-0130.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Barker, Virginia Butler; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, East Baton Rouge Family Court, No. 127,290; to the Court of Appeal, First Circuit, No. 2013 CA 0116.

Denied.

JOHNSON, and KNOLL and CLARK, JJ., would grant.


text:
    Donald W. ABSHIRE and the Other Petitioners Named Herein v. The STATE of Louisiana, through the DEPARTMENT OF INSURANCE OF the STATE of Louisiana; the Department of Insurance of the State of Louisiana; the State of Louisiana, through the Office of Financial Institutions of the State of Louisiana; the Office of Financial Institutions of the State of Louisiana; the Louisiana Insurance Guaranty Association; and Standard Analytical Service, Inc.
    No. 2014-C-0133.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Louisiana Department of Insurance; Louisiana Office of Financial Institutions; Louisiana Office of Risk Management; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, Nos. 377,713, 412,265; to the Court of Appeal, First Circuit, No. 2012 CA 0104.

Denied.


text:
    Donald W. ABSHIRE and the Other Petitioners Named Herein v. The STATE of Louisiana, through the DEPARTMENT OF INSURANCE OF the STATE of Louisiana; the Department of Insurance of the State of Louisiana; the State of Louisiana, through the Office of Financial Institutions of the State of Louisiana; the Office of Financial Institutions of the State of Louisiana; the Louisiana Insurance Guaranty Association; and Standard Analytical Service, Inc.
    No. 2014-C-0137.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Admiral Insurance Company;— Defendant; Applying For Writ of Certio-rari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, Nos. 377,713, 412,265; to the Court of Appeal, First Circuit, No. 2012 CA 0104.

Denied.


text:
    Donald W. ABSHIRE and the other Petitioners Named Herein v. The STATE of Louisiana, through the DEPARTMENT OF INSURANCE OF the STATE of Louisiana; the Department of Insurance of the State of Louisiana; the State of Louisiana, through the Office of Financial Institutions of the State of Louisiana; the Louisiana Insurance Guaranty Association; and Standard Analytical Service.
    No. 2014-C-0162.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Weschester Fire Insurance Company; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, No. 377,713 C/W No. 412,265; to the Court of Appeal, First Circuit, No. 2012 CA 0104.

Denied.


text:
    STATE of Louisiana v. Sean HOLLOWAY.
    No. 2014-KK-0166.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Holloway, Sean; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. L, No. 132875; to the Court of Appeal, Third Circuit, No. KW 18-01255.

Denied.


text:
    LEVIER, LLC v. Yolander THOMAS.
    No. 2014-C-0170.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Thomas, Yolander; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Avoyelles, 12th Judicial District Court Div. A, No. 2010-6072; to the Court of Appeal, Third Circuit, No. 13-472.

Denied. Not considered, not timely filed. See Supreme Court Rule X, § 5.


text:
    CLAIBORNE MEDICAL CORPORATION (a Professional Medical Corporation) and Dr. Fiaz Afzal v. Gulnaz Q. SIDDIQUI.
    No. 2014-C-0172.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Afzal M.D., Fiaz; Claiborne Medical Corporation (A Professional Medical Corporation) et al.; — Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. K, No. 683-632; to the Court of Appeal, Fifth Circuit, No. 13-CA-460.

Denied.


text:
    Stuart H. SMITH, Rodney Stephens, David A. Veazey, Guadalupe Gamez and Neal Laney v. CITY OF NEW ORLEANS, et al.
    No. 2014-C-0173.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re ACS State & Local Solutions, Inc.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. A, No. 2005-05453; to the Court of Appeal, Fourth Circuit, No. 2013-CA-0802.

Denied.


text:
    Stuart H. SMITH, Rodney Stephens, David A. Veazey, Guadalupe Gamez and Neal Laney v. CITY OF NEW ORLEANS, et al.
    No. 2014-C-0174.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re City of New Orleans; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. A, No. 2005-5453; to the Court of Appeal, Fourth Circuit, No. 2013-CA-0802.

Denied.


text:
    Bruce FEINGERTS v. AMERICAN CASUALTY COMPANY OF READING.
    No. 2014-C-0190.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Babst, James A.; — Other; Applying For Writ of Certiorari and/or Review Office of Workers’ Compensation District 8, No. 2003-01073; to the Court of Appeal, Fourth Circuit, No. 2013-CA-0701.

Denied.

HUGHES, J., would grant.


text:
    STATE of Louisiana v. PROPERTY SEIZED FROM Nicholas T. MILLER $20,919.00 IN U.S. CURRENCY.
    No. 2014-C-0193.
    Supreme Court of Louisiana.
    April 4, 2014.
   In re Miller, Nicholas T.; — Other; Applying For Writ of Certiorari and/or Review, Parish of Washington, 22nd Judicial District Court Div. A, No. 102,347; to the Court of Appeal, First Circuit, No. 2013 CA 0715.

Denied.


author: SEXTON, Judge Pro Tem.

text:
    STATE of Louisiana, Appellee v. Herbert James BRADLEY, Appellant.
    No. 47,136-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 16, 2012.
    Louisiana Appellate Project, by Carey J. Ellis, III, for Appellant.

      Jerry L. Jones, District Attorney, Geary S. Aycock, Michael J. Fontenot, Assistant District Attorneys, for Appellee.
    Before STEWART, LOLLEY & SEXTON (Pro Tempore), JJ.
   SEXTON, Judge Pro Tem.

|, Defendant Herbert James Bradley was convicted by a jury of the second degree murder of his wife, Sallie Scott Bradley, and was sentenced to life imprisonment at hard labor without parole. He now appeals. For the reasons stated herein, the conviction and sentence of Defendant are affirmed.

FACTS

Defendant’s jury trial took place in April 2011, where the following evidence was adduced. Defendant and his wife, Sallie, lived in a house on South 7th Street in Monroe, Louisiana. Between them, they had several children (mostly adults) and grandchildren. The couple had been having marital problems; and, on the evening of December 31, 2009, Sallie drove to her mother’s home in Monroe. Sallie brought two bags of clothes with her and told her mother, Almeda Caesar, that she was tired of her husband “always accusing her of having sex with another man.” According to her mother, after Sallie unloaded her clothes at her mother’s house, she received a phone call from Defendant. In response to the phone call, Sallie decided to return to the marital home, saying she was “going to go back one more time to try to make it work.” Sallie then drove home and called her mother to let her know that she arrived home.

At about 8:30 p.m., two of Defendant’s daughters, Zavier Harris and L’Maryyan Bradley, stopped by the Bradleys’ house to borrow some money. |gZavier testified that she did not see her father and Sallie arguing or fighting, although she was aware that they had been separated on occasion in the past. The daughters left the Bradleys’ home and went out to a club.

At the house next door to the Bradleys, Afrika Howard was sitting with an elderly person. Ms. Howard heard what she thought were firecrackers outside and then she heard a knock at the door. When she looked outside, she saw no one there, but she saw a red truck driving away. She believed that this truck (a red GMC Yukon) was the truck she had often seen parked at the Bradleys’ house, and it belonged to Defendant.

Before dawn on January I, 2010, Jerome Manning, a good friend of Defendant, was driving down South 7th Street. Mr. Manning was on his way to work and in the area to check on his elderly mother. As he drove by the Bradleys’ house, he saw a person lying partly in the street in front of the home. The person was Sallie Bradley. She was still alive, but was unable to speak. A neighbor called 911 and paramedics and police responded just before 4:30 a.m.

Sallie had suffered five gunshot wounds to her upper body (three of which were in her back), and she died as a result of these wounds before she was able to make a statement. A responding Monroe police officer, Corporal Greg Bauer, found a blood trail leading from where Sallie lay in the grass up to the Bradleys’ front door. Officers searched the home, but found no one inside; the doors were all locked except for the front door and the windows were protected by burglar bars. Police found blood spatters on | sthe front door glass and just inside the front doorway. Officers also found spent bullets in several locations and a bullet fragment near the door. There were no signs of forced entry, and a woman’s purse containing $500 in cash was still in the house.

At about 4:00 or 4:30 a.m., L’Maryyan received a call on her cell phone from her mother, Deborah Harris. Ms. Harris asked L’Maryyan and Zaveir to come to Ms. Harris’ house on Gordon Avenue. The women drove from the club to Ms. Harris’ home.

When L’Maryyan and Zaveir arrived at Ms. Harris’ house, they observed Defendant standing outside the house, but did not see his red GMC Yukon parked in the driveway. Zaveir went inside to check on her two-year-old daughter; and, when she found nothing Wrong, she came back outside to speak with her father. Defendant told L’Maryyan, ‘Your daddy’s in trouble,” and then asked his daughters to take him to his aunt’s, Ora Bradley’s, house. Defendant told his daughters that his vehicle was parked in Zaveir’s front yard approximately four blocks away, but he would not explain why. During the drive, L’Ma-ryyan drove past Mr. Manning’s house and Defendant asked L’Maryyan to look and see if Mr. Manning was at home, but she saw that he was not there. She called Mr. Manning, who told her not to come by her father’s house and that “he [Manning] had everything under control.”

When they dropped off Defendant at Ora Bradley’s house, L’Maryyan and Za-veir went to get their older sister, Sherbert Bradley, to find out why 14their father was behaving so strangely. The three then returned to Ora Bradley’s house.

There, Defendant was making phone calls in an effort to arrange to go to Texas. Zaveir testified that Defendant related that he “needed to lay low for a couple of days.” L’Maryyan testified that Defendant said “he needs to get out of town.” Sherbert testified that Defendant stated “that he was in trouble and he needed to get out of town.” At that time, the daughters did not know that anything had happened to Sallie and none of the daughters had ever seen their father with a firearm.

The daughters agreed that Defendant first called their aunt Pam in Mesquite, Texas, and then he called his son, Jaworski Underwood, in Arlington, Texas. Sherbert’s boyfriend, Lucky, eventually agreed to drive Defendant to Texas accompanied by Sherbert, L’Maryyan and Zaveir. During the drive, Defendant did not talk; however, L’Maryyan received a phone call from “Neka” (Shaniqua Caesar), Sallie Bradley’s daughter, who told L’Maryyan, ‘Your dad killed my mama.” When L’Ma-ryyan said this out loud in the car, Defendant shook his head indicating “no.”

The group, including Defendant, traveled to Kaufman County, Texas, where Jaworski was waiting to pick up his father. Jaworski had agreed to pick up Defendant and take him back to Arlington, but Defendant had not, at that point, explained why he needed to stay in Texas. Jaworski testified that, after they arrived in-Arlington, people began to call and inquire about his father, so Jaworski confronted Defendant. Jaworski related that “He [Defendant] said that she [Sallie] died, that he killed her.... He said he shot | sher.... [A]bout three times ... in the back and shoulder....” Jaworski further testified that he then called the Monroe, Louisiana, and Arlington, Texas, police, and the Arlington police came to Jaworski’s residence and arrested Defendant.

When news of the killing spread, Sallie’s brother, Dennis Caesar, who was incarcerated at the time, related to police that Defendant owned a .38 caliber handgun which he had seen while moving some furniture into the Bradleys’ house. Police searched Defendant’s SUV, but did not find a firearm inside. The murder weapon was not recovered.

Several days later, after Defendant was returned to Louisiana from Texas, Detective James Willis interviewed Defendant. After the detective introduced himself and informed Defendant that he was investigating the murder of his wife, Defendant began crying and spontaneously told the detective that “he could not remember anything” and that “Sallie was his heart.” Defendant did not make any further statements to police.

Defendant elected to testify at trial. He admitted that he had several felony drug convictions. He said that he normally awoke at 4:00 or 4:80 a.m. in order to cook breakfast for his wife before she left for work at 5:30 a.m. Defendant testified, however, that he had been invited out by friends to attend a New Year’s Eve party on the night Sallie was killed. Defendant stated that he went out to a club called “Eddie Gibbs” at about 1:00 a.m. on January 1, 2010. He testified that he stayed at the club playing pool until about 3:00 or 3:30 a.m. and then drove home. Defendant related that there was no unfamiliar car in the driveway when he arrived home and Ule entered his home through the gameroom door. According to Defendant, when he entered the house, he saw his wife “with two dudes holding her.” Defendant testified that one of the men said, “We’ve been waiting on you so you might as well come on in.” Defendant explained:

I just stopped. And then by that time, when I stopped, one dude had a gun, and so I started trying to ease back. And so they was steady easing forward with her. So I started trying to ease back. So by that time, when I eased back, I just — I had my cell — I got my cell phone, like I had something. And so by that time, I faked it. Then, I took out running. And then I went out the back door.

Defendant said that he then heard about three shots just as he ran into the backyard. Next, he went to his truck and drove toward his daughter’s house; he said that he did not see his wife again.

Defendant testified that he believed the incident was related to associates of his son, Jaworski. Defendant explained that Jaworski and his friends did “little things,” that he described as a pigeon drop scheme, in the Ruston area rather than in their home town. Defendant said that Jaworski claimed that he would “fix up little packages of cocaine, but it don’t be fully cocaine, you know. It would be like — it would be like the quantity of it would be real, real weak.” He further explained that “the only house that the people that they had been dealing with know was my house.” Defendant stated that, in December 2009, two men had come to his house three times demanding money as a result of one of these schemes.

Defendant testified that, after the shooting, he wanted to contact Jaworski because he attributed the events of that evening to Jaworski’s scheme and he wanted Jawor-ski to pay the men. Defendant further testified [7that, at that time, he did not know that his wife had actually been shot; he thought the shots were simply to scare him. He explained that, when he finally told Jaworski what happened, his son “started freaking out” and asking whether anyone had followed him. Defendant stated that he intended for Jaworski to bring him back to Monroe the next day so Ja-worski could pay the men he had cheated; but, instead, Jaworski had Defendant arrested. Defendant denied ever having a gun (he was a convicted felon) and denied that he ever wanted to kill his wife. He also denied the various accusations that she had written on the counseling form and he denied that he called Mr. Manning on the morning of the shooting. Defendant admitted that, while at Ora Bradley’s house, he called Pam in Mesquite before he called Jaworski, but he testified that he could not recall why he had called Pam.

Trakeka Charleston, a dancer, testified that she had known Jaworski Underwood for about four or five years. She stated that, when Jaworski was in Monroe, he frequented the club where she danced. Ms. Charleston testified that Jaworski was in town the third week in December 2009 because she saw him at the club.

Jaworski denied that he had been in Monroe in December 2009 and said that he had not been there for six or seven months. Although he had a 2009 conviction in Texas for possession of marijuana and admitted that he had “associates— people who I know that deal with it,” Jaworski denied any more serious drug convictions or dealing drugs. Jaworski testified that, in October 2009, he introduced his father to his associates because his father wanted to buy a pound of marijuana.

|sThe last witness to testify was John Wilson, Zaveir’s husband. Mr. Wilson testified that, in January 2010, after the shooting, Mr. Manning brought $500 to Zaveir to “give it to her daddy,” and that Mr. Manning told Zaveir:

That the police doesn’t [sic] have any evidence, that he took care of the gun situation, don’t worry about anything, and he going to take care of everything.

Mr. Manning denied that he made any such statement about a gun.

After hearing the above evidence, the jury unanimously found Defendant guilty as charged. As previously stated, the court imposed the mandatory life without parole sentence and Defendant now appeals. Defendant appears through counsel urging one assignment of error and asserts additional errors pro se. The assignment urged by counsel for Defendant challenges the sufficiency of the evidence and will be addressed first.

DISCUSSION

Assignment of Error No. 1. The State failed to present sufficient evidence to support the verdict of second degree murder.

With an extremely careful and detailed recitation of the facts as presented by the witnesses’ testimony, Defendant’s counseled brief argues that the evidence was insufficient to convict Defendant of second degree murder. He argues:

—that there was no prior evidence of violence or physical abuse by the defendant toward his wife;
—that Jaworski Underwood was a drug dealer who cheated people who knew only the address where the victim was killed, and that the defendant’s testimony was consistent with that allegation; and
la — that the proof was scant that the defendant owned a gun.

Defendant highlights the arguable weaknesses in the State’s case; however, we find the evidence to be sufficient to prove beyond a reasonable doubt that Defendant committed the second degree murder of his wife.

La. R.S. 14:30.1 provides, in part:
A. Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm[-]

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42, 894 (La.App.2d Cir.1/9/08), 974 So.2d 181, writ denied, 08-0499 (La.11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833, writ denied, 09-0310 (La.U/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 | in(La.App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 09-0725 (La.12/11/09), 23 So.3d 913; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 07-1209 (La.12/14/07), 970 So.2d 529.

Flight and attempt to avoid apprehension are circumstances from which a trier of fact may infer a guilty conscience. State v. Durden, 36,842 (La. App.2d Cir.4/09/03), 842 So.2d 1244, writ denied, 03-1350 (La.11/26/03), 860 So.2d 1131. Likewise, fabrication is evidence of consciousness of guilt. State v. King, 41,-084 (La.App.2d Cir.6/30/06), 935 So.2d 815, writ denied, 06-1803 (La.2/16/07), 949 So.2d 411.

The jury plainly chose to credit the testimony of the State’s witnesses, in particular the testimony of Jaworski Underwood. A review of the above-described testimony reveals that to be a rational choice. Defendant fled from the scene immediately after the shooting and, rather than summon the police, he called his friend, his relatives and his children in a hasty effort to “get out of town,” where he finally admitted to his son that he killed Sallie. We find this evidence sufficient to prove beyond a reasonable doubt that Defendant committed the second degree murder of his wife. This assignment of error is without merit.

.Pro se Assignments of Error (verbatim):

1. Whether the State’s assistant district attorneys were in violation of defendant’s 5th and 14th amendment rights to the U.S.C.A. when [sic ] it didn’t inform the jury that it would be granting the witnesses immunity to testify against the defendant during trial.
2. Whether it was a violation of defendant’s 5th, 6th and 14th amendment rights, and his La. Const. Rights of 1974, Article 1, §§ 2 and 16, when the State’s A.D.A. | T1knowingly knew it was required to inform the jury that the state was granting its witnesses immunity, but failed to do so, has caused a violation of Brady.
3. Whether the State’s A.D.A. knowingly knew it violated the petitioner’s rights to have these witnesses privilege against self-incrimination to testify or produce evidence, without the jury knowing they would be granted immunity in exchange for their testimony.
4. Whether the State’s A.D.A. who tried the case, violated the defendant’s La. Const, rights Art. 1, §§ 2 and 16 and the U.S. Const. Amend. 5, 6 and 14, when the police made promises for the witnesses to make statements prior to trial against the defendant by stating he promise nothing would happen to her if yes [sic] made the statement to him through interrogation without the jury knowing about the promise he made to her.

With these assignments of error, Defendant alleges that his rights were violated when the jury was not informed that witnesses L’Maryyan Bradley, Sherbert Bradley and Zaveir Harris were each the subject of a separate order, pursuant to La. C. Cr. P. art. 489.1, as follows:

It is hereby ordered that [witness] fully and truthfully cooperate and provide trial testimony in all proceedings pursuant to a grant of immunity under Louisiana Code of Criminal Procedure article 439.1 as requested by the State of Louisiana in the aforementioned prosecution.
It is further ordered that no testimony or other information compelled under this order, or any information directly or indirectly derived from such testimony or other information, may be used against this witness in any criminal case, except a prosecution for perjury, giving a false statement or otherwise failing to comply with this order.

Further, Defendant argues that the jury should have been informed that Sherbert had been promised by police, at an interview on January 15, 2010, that she would not be “locked up” for making a statement. He argues |12that the jury should have been aware that the witnesses had been granted immunity from prosecution “in exchange for” their statements.

La. C. Cr. P. art. 439.1 provides:

A. In the case of any individual who has been or may be called to testify or provide other information at any proceeding before or ancillary to a grand jury of the state, at any proceeding before a court of this state, or in response to any subpoena by the attorney general or district attorney, the judicial district court of the district in which the proceeding is or may be held shall issue, in accordance with Subsection B of this article, upon the request of the attorney general together with the district attorney for such district, an order requiring such individual to give testimony or provide other information which he refuses to give or provide on the basis of his privilege against self-incrimination, such order to become effective as provided in Subsection C of this article.
B. The attorney general together with the district attorney may request an order under Subsection A of this article when in his judgment
(1) the testimony or other information from such individual may be necessary to the public interest; and
(2) such individual has refused or is likely to refuse to testify or provide other information on the basis of his privilege against self incrimination.
C. The witness may not refuse to comply with the order on the basis of his privilege against self incrimination, but no testimony or other information compelled under the order, or any information directly or indirectly derived from such testimony or other information, may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement or otherwise failing to comply with the order.
D. Whoever refuses to comply with an order as hereinabove provided shall be adjudged in contempt of court and punished as provided by law.

The Constitution of the United States requires that the State produce exculpatory evidence upon the request of a defendant. Brady v. Maryland, 373 U.S. 88, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). This includes evidence, such as a grant of immunity, which may cast serious doubt upon the testimony of a witness whose credibility may be determinative of guilt. Giglio v. U.S., 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

Defendant’s arguments assume that the district attorney somehow hid from him, or the jury, the fact that these witnesses were granted immunity from prosecution for their testimony. However, as the orders themselves demonstrate, the orders compelling testimony and granting immunity were filed prior to trial, are part of the record of the ease and, thus, were known to Defendant prior to trial. Defendant could have chosen, on cross-examination, to explore the effect, if any, that these orders had upon the witnesses’ credibility. We find nothing to have been hidden or withheld by the State.

These pro se assignments of error are without merit.

CONCLUSION

For the foregoing reasons, the conviction and sentence of Herbert James Bradley are affirmed.

AFFIRMED.

      . Also spelled "Sally” in the record.

      . The State introduced into evidence a form completed by Ms. Bradley during counseling where she outlined her disagreements with Defendant. On this form, entitled "Setting Boundaries,” the victim wrote that she did not want to be awakened "for sex when I have to work,” that "it hurts my feelings for you to think I’m cheating” and that she would prefer not to "be thought of as a whore.”

      .Phone records show that Defendant called Mr. Manning at 4:22 a.m. and 4:36 a.m. Mr. Manning denied that he spoke with Defendant.


author: WILLIAMS, J.

text:
    SUCCESSION OF lone HUNT.
    No. 47,372-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 2012.

      Donald L. Kneipp, Monroe, LA, for Appellant, Earnest Michael Hunt.
    Bobby L. Culpepiper, Jonesboro, LA, for Appellees, Marilyn Franklin, Earnestine Singleton and Billy Hunt, and Laverne Foster through succession representative, Joseph Foster.
    Before WILLIAMS, GASKINS and SEXTON (Pro Tempore), JJ.
   WILLIAMS, J.

| ;The defendant, Earnest Michael Hunt, appeals a judgment ordering him to return $856,968 to the Succession of lone Hunt. The trial court found that the defendant was not authorized to pay the funds to himself and his family as the agent under a power of attorney executed by lone Hunt. For the following reasons, we amend and affirm as amended.

FACTS

On February 18, 2001, lone Hunt (“Mrs. Hunt”) was involved in an accident which left her paralyzed from the neck down and unable to speak. According to witnesses, Mrs. Hunt did not have a mental defect, but could only communicate by moving her lips, blinking her eyes and making clicking sounds with her tongue. On February 28, 2001, while she was hospitalized, Mrs. Hunt executed a power of attorney designating her son, E. Michael Hunt, as her agent with authority to act for her in conducting her affairs. The document states that because of a physical infirmity making her. unable to sign her name, Mrs. Hunt directed that her name be affixed to the power of attorney by her daughter, Ruth Barfield.

The decedent, Mrs. Hunt, died intestate on July 9, 2004. Michael Hunt (“Hunt”) filed a petition to open the Succession of lone Hunt (“the succession”) and was designated the administrator of the estate. In April 2005, the decedent’s other children, Laverne Foster, Billy Hunt, Marilyn Franklin and Earnestine Singleton, filed a petition to remove Hunt as administrator, alleging mismanagement of the estate assets. After a trial, Hunt was removed as administrator and Laverne Foster was appointed administratrix of the decedent’s estate.

laOn behalf of the succession, the admin-istratrix filed a petition against the defendant, Michael Hunt, demanding the return of certain assets to the succession estate. The petition sought the return of $951,000, which was the amount of insurance proceeds paid in settlement of decedent’s personal injury claim. The succession also sought from defendant an accounting for the following amounts: $659,040 in donations of the decedent’s funds made by defendant to himself and members of his family; and $50,000 withdrawn from decedent’s bank account in August 2002.

At trial, the defendant testified that in 2002 or 2008 his mother had verbally given him the amount of $400,000 to $500,000, with the understanding that he would take care of her at his home. Additionally, the defendant acknowledged that he had billed his mother for expenses such as rent, electricity, water, telephone and sitting fees for himself, his wife and his daughter. In written reasons for judgment, the trial court found that the power of attorney was valid, but did not expressly allow the defendant to contract with, or donate to, himself. The court also found that defendant failed to prove Mrs. Hunt’s donative intent for the donations of money to himself and his family members. The court determined that all such donations and expenses paid to defendant and his family were invalid and that those amounts were to be returned to the succession estate. The trial court rendered judgment ordering defendant to return the amount of $856,968 to the succession. Defendant appeals the judgment.

DISCUSSION

The defendant contends the trial court erred in ordering him to return to the succession the amount of any donations and payments for decedent’s care |smade to himself, his wife, daughter and sister, Ruth Barfield. The defendant argues that such donations and expenditures were authorized by the power of attorney and the decedent’s intent to make the donations.

A procuration is a unilateral juridical act by which a person, the principal, confers authority on another person, the representative, to represent the principal in legal relations. LSA-C.C. art. 2987. The civil code uses the term procuration, rather than the common law term, power of attorney. Article 2987, Revision Comment (a). Such juridical acts are subject to the rules governing mandate to the extent that their application is compatible with the nature of the procuration. LSA-C.C. art. 2988. Those rules allow the principal to confer on the representative general authority to do whatever is appropriate under the circumstances. LSA-C.C. art. 2994; Succession of Conville v. Bank One, Louisiana, N.A., 40,506 (La.App.2d Cir.1/25/06), 920 So.2d 397.

However, express authority is required to make inter vivos donations on behalf of the principal. LSA-C.C. art. 2997. Additionally, a mandatary who represents the principal as the other contracting party may not contract with himself, or engage in self-dealing, unless he is authorized by the principal or, in so doing, he is merely fulfilling a duty to the principal. LSA-C.C. art. 2998; Succession of Conville, supra.

In the present case, Michael Hunt testified that in June 2002, his mother, lone Hunt, received the settlement amount of $951,000 after falling and breaking her back. Hunt stated .that the funds were deposited in several certificates of deposit and a checking account. Hunt testified that he made a number of donations to himself and his family from these funds under the | ¿authority of the power of attorney and his mother’s wishes. He stated that at his mother’s instruction, he donated $10,000 each to himself, to his wife, Stephanie Hunt, to his daughter, Kim Hunt, and to Ruth Barfield. Hunt testified that under the power of attorney and at his mother’s request, he gave $105,000 to his daughter to buy a house and also gave donations of $105,000 and $207,000 to himself.

Additionally, Hunt stated that for the three years between his mother’s accident and her death, she was cared for in his house because she did not want to go to a nursing home. Hunt testified that during this period, he paid $170,280 to have sitters provide care for his mother 24 hours per day, seven days per week. He also paid $28,800 for “sitter training,” which involved paying a sitter to observe and assist a trained sitter perform the job duties. Hunt acknowledged that he paid $69,048 to himself and $56,000 to his wife for sitting services, asserting that the reason was to always have a sitter and a family member available to care for his mother. Hunt stated that although his daughter was not a licensed physical therapist, she was paid $41,600 to provide physical therapy for his mother. In addition, Hunt testified that each month he had charged his paralyzed mother $600 for rent, $140 for utilities and $50 for a cell phone. Hunt explained that he did not have documentation for most of the expenses because the records which had been placed in storage were destroyed by a rat infestation. Hunt testified that as the succession administrator, he had charged the decedent’s estate $8,000 for travel to and from court and $20,000 in attorney fees.

Latisha Poole testified that in April 2003, she began working as a sitter for lone Hunt in 24-hour shifts two or three times each week. Poole stated that | fiher job duties included feeding Mrs. Hunt, cleaning her feeding tube, bathing her, washing her hair, changing her undergarments every two hours and cleaning the house. Poole testified that Mrs. Hunt could not verbalize, but she could “mouth words.” Poole explained that she could determine the words Mrs. Hunt was mouthing as a result of growing up with a deaf sister and learning to read lips. Poole stated that Mrs. Hunt made a clicking noise with her tongue to get the sitter’s attention and then mouthed the words she wanted to communicate. Poole testified that she would then repeat the words that Mrs. Hunt seemed to be saying and the patient would either nod her head yes or shake her head no to indicate whether the sitter’s understanding was accurate. Poole stated that she was present on one occasion when Mrs. Hunt discussed her finances with Michael Hunt, who reviewed with his mother several documents regarding an account of approximately $100,000. Poole testified that Mrs. Hunt mouthed the words that she wanted Michael to have that money because he took good care of her. Poole stated that she was not present when Mrs. Hunt told her son to make any other donations.

The record contains the power of attorney (procuration) by which lone Hunt, the principal, designated the defendant as her agent with the authority to “donate ... any or all property, interests or rights of any kind” owned or acquired by the principal. Although the power of attorney gave defendant, as agent, the express authority to make donations on behalf of the decedent, we agree with the trial court that the above language cannot be construed as authorizing defendant to self deal. Thus, the trial court correctly found that the power of attorney did not authorize defendant to make the donations to himself, his wife and his daughter.

|f,In his appellate brief, defendant argues alternatively that even if self dealing was not expressly authorized under the power of attorney, the testimony showed that the decedent orally expressed her intent that the money be donated to defendant and his family. The defendant also contends the donations were valid manual donations of property.

The existence of donative intent is an issue of fact. Terrell v. Terrell, 26,863 (La.App.2d Cir.5/10/95), 655 So.2d 600. The donee has the burden of proving donative intent and such proof must be strong and convincing. Terrell, supra; Montet v. Lyles, 93-1724 (La.App.lst Cir.6/24/94), 638 So.2d 727. The donation inter vivos of a corporeal movable may be made by delivery of the thing to the donee without any other formality. LSA-C.C. art. 1543. When the donor’s will to give and the donee’s actual possession of the movable property operate simultaneously, there is a sufficient delivery to constitute a valid manual donation inter vivos. Succession of Miller, 405 So.2d 812 (La.1981); Dastugue v. Fernan, 95-394 (La.App.5th Cir.10/18/95), 662 So.2d 538.

In support of his argument, defendant cites Fernandez v. Hebert, 06-1558 (La. App.1st Cir.5/4/07), 961 So.2d 404, in which the court found that the donor had validly given her nephew oral authority to act as mandatary and to make donations of stock to himself. However, the factual situation of Fernandez, supra, can be distinguished from that of the present case. In the Fernandez case, the evidence showed that the nephew’s inter vivos donations to himself were consistent with provisions of the donor’s will. In contrast, this case does not involve such corroborating evidence of the decedent’s donative 17intent. Although defendant relies on Poole’s testimony to corroborate his assertion that decedent expressed her intent that he make the donations to himself and his family, we note that Poole could testify only about one occasion when she believed decedent had indicated her wish that defendant receive $100,000.

The trial court assessed the credibility of the witnesses and determined that the testimony of Poole and the defendant regarding his mother’s oral donation of substantial amounts of money to him and his family did not convincingly demonstrate the decedent’s donative intent, given her complete dependence upon defendant for her care and the evidence that the defendant had isolated his mother from other family members. Based upon this record, we cannot say the trial court was clearly wrong in finding that the defendant failed to satisfy his burden of proving with strong and convincing evidence that the decedent possessed the requisite donative intent for the inter vivos donations made to the defendant and his family. The defendant’s argument lacks merit.

In his brief, the defendant also contends the trial court erred in determining the amount of money to be returned to the succession. After reviewing the record, we agree that the amount ordered to be returned must be amended.

The evidence shows that the decedent had received $951,000 in compensatory damages after being paralyzed in an accident. The trial testimony demonstrates that this settlement amount was the source of the donations and other payments made by defendant in this matter. In a written ruling, the trial court determined that the defendant’s payments for non-family sitters and 1 «medical supplies were authorized. The defendant’s statement of expenditures, which was accepted into evidence, lists the amounts of $170,820 as payments to non-family sitters and $10,800 for medical supplies, for a total amount of $181,620 in authorized expenses. Subtracting this figure from the original amount of $951,000 results in the sum of $769,380 to be returned, rather than the amount stated in the judgment.

In addition, we note that the testimony does not support the trial court’s finding that defendant and his family received $28,800 in fees for training sitters. Defendant testified that this money was not paid to the trainers, but was paid to the sitters who were being trained on the job by observing and assisting experienced sitters. Considering the trial court’s finding that payments to non-family sitters were authorized, $28,800 must be subtracted from the revised amount of $769,380. Thus, we conclude that defendant must return the amount of $740,580 to the succession and we shall amend the judgment accordingly.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is amended to reduce the amount to be returned and the defendant, Earnest Michael Hunt, is hereby ordered to return to the Succession of lone Hunt the amount of $740,580. The judgment is otherwise affirmed. Costs of this appeal are assessed to the appellant, Earnest Michael Hunt.

AMENDED AND AFFIRMED AS AMENDED.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Lemario D. MARTINEZ, Appellant.
    No. 47,435-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 2012.

      Douglas Lee Harville, Louisiana Appellate Project, for Appellant.
    John M. Lancaster, District Attorney, Doug Wheeler, Penny Wise Douciere, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, MOORE and LOLLEY, JJ.
   MOORE, J.

|TThe defendant, LeMario D. Martinez, pled guilty to one count of distribution of marijuana, a Schedule I controlled dangerous substance in violation of La. R.S. 40:966 A. He was subsequently sentenced to five years’ imprisonment at hard labor. The defendant now appeals, alleging that the sentence is unconstitutionally excessive. For the following reasons, we affirm the conviction and sentence.

FACTS

On June 3 and 5, 2009, the defendant sold marijuana to a confidential informant. On September 14, 2009, the state filed a bill of information charging the defendant, LeMario D. Martinez, with two counts of distribution of marijuana, a Schedule I controlled dangerous substance in violation of La. R.S. 40:966(A)(1). After initially entering pleas of not guilty on both counts, the defendant withdrew the pleas and entered a plea of guilty to one count of distribution of marijuana in exchange for the state’s agreement to dismiss the second count and to not file a bill of information charging the defendant as a habitual offender. No agreement as to sentence was reached.

After the defendant was advised of his constitutional rights under Boykin, the court accepted the defendant’s guilty plea as free and voluntary. The court ordered a presentence investigation (“PSI”) prior to imposing sentence.

Sentencing took place on October 12, 2011. The court stated that it had reviewed the PSI and the mitigating evidence presented by the defendant. The defendant was a second felony offender previously | {¡convicted on March 31, 2000, of possession with intent to distribute marijuana. On that same date, he was also convicted on a misdemeanor charge of illegal carrying of a dangerous weapon. He was sentenced to a suspended sentence of five years hard labor subject to five years of active supervised probation on the drug charge and a suspended sentence of six months in jail subject to two years of active supervised probation on the weapons charge. The defendant successfully completed his probationary period on the weapons charge, but on March 17, 2004, his probation was revoked on the drug conviction. He was subsequently released on parole on September 14, 2005, and successfully completed his parole on March 9, 2009.

The defendant was 27 years old at the time of his offense and 30 years old at the time of sentencing. He was the first child born to unwed parents by whom the defendant has four half-brothers and seven half-sisters. He was raised by his grandparents and attended public school in Ray-ville, Louisiana. He completed the 10th grade before dropping out of school. He is currently married to Ozell Martinez although they are separated. They have a son and a daughter living with the defendant according to the PSI. The report lists various jobs held by the defendant over the years, but does not detail the length of that employment. At the time of preparation, however, the report indicates that the defendant was unemployed and had been denied disability benefits.

As to the present case, the PSI indicates that on June 8, 2009, the defendant sold to a confidential informant 12 grams of marijuana, which he |3measured on a scale. The sale took place at the defendant’s home.

At the time of sentencing, defendant and his children were living on his son’s SSI checks and approximately $400.00 per month earned by the defendant by mowing yards. The son also had a “Supplemental Care Trust” valued at approximately $247,000, the origin of which is unexplained, but presumably is related to the child’s medical condition for which he receives care at the Shriners Hospital for Children in Shreveport. The defendant also attached various letters from family and friends generally speaking to the defendant’s good character and attesting to the love and the care he provided for his children. Lastly, defendant submitted various photographs of himself with his children.

In imposing sentence, the trial court concluded that a probated sentence was not appropriate since the defendant had been unable to satisfactorily complete the probated sentence he received upon his first felony conviction, a drug charge. Stating that any lesser sentence would deprecate the seriousness of the offense, the court sentenced the defendant to five years’ imprisonment at hard labor, which is the minimum length of sentence allowed under the statute. La. R.S. 40:966(A)(3).

The defendant filed a pro se motion to reconsider sentence alleging that the sentence was unconstitutionally excessive. The trial court denied the motion on October 26, 2011, stating that the sentence was more than reasonable based upon the PSI, the defendant’s own submissions and his second-offender status. The defendant then sought a writ of review from this court for the denial of his motion to reconsider sentence. We granted 14the application, noting that the denial of such motion can be considered on appeal under La. C. Cr. P. art. 912.1, and we transferred the matter to the district court for consideration as a motion for appeal and appointment of counsel. The instant appeal followed.

DISCUSSION

Defendant’s sole assignment of error is that the court erred by imposing an unconstitutionally excessive sentence. He has two children, one of whom has a medical condition, and he is employed. He contends the sentence fails to provide him with the opportunity to be rehabilitated and re-enter society as a productive member. The five-year sentence for this nonviolent crime, defendant argues, serves no purpose other than the needless imposition of pain and suffering.

The state argues that the record reflects that the trial court considered the mitigating and aggravating factors in accordance with La. C. Cr. P. art. 894.1, tailored the sentence to this particular defendant and imposed the minimum-term sentence allowed by the statutory range. Furthermore, the state contends that the low-range sentence is not constitutionally excessive as it is neither out of proportion to the seriousness of the offense, nor does it shock the sense of justice.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately | r,considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App. 2 Cir. 2/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not 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); State v. Swayzer, 43,-350 (La.App. 2 Cir. 8/13/08), 989 So.2d 267. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App. 2 Cir. 8/13/08), 989 So.2d 259, writ, denied, 2008-2341 (La.5/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App. 2 Cir. 12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351.

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

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

Martinez received the statutory minimum sentence of five years imprisonment at hard labor. The sentencing range under La. R.S. 40:966(B)(3) is imprisonment at hard labor of not less than five nor more than thirty years. Based on his original motion to reconsider sentence, it is clear that Martinez wants the sentencing court to impose a suspended sentence under supervised probation rather than imprisonment.

|7The trial court is not required to render a suspended sentence or probation on a first (or qualifying second) felony offense. The judge may consider whatever factors and evidence he deems important to a determination of the best interest of the public and the defendant. La. C. Cr. P. art. 893; State v. Bradford, supra. See also State v. Flores, 27,736 (La.App. 2 Cir. 2/28/96), 669 So.2d 646.

In the present case, the trial court indicated that it gave consideration to the factors enumerated in La. C. Cr. P. art. 894.1, even if it did not thoroughly articulate each factor and the role it played in the determination of the sentence. Given that the defendant was a second-felony offender, had previously received the benefit of a probated sentence (which he was unable to complete) and received a substantial benefit in the state’s agreement to dismiss one of the charges against him and to not seek a habitual offender adjudication, the record shows an adequate factual basis for the sentence imposed.

We conclude that the sentence imposed is not grossly disproportionate to the seriousness of his offense, nor does it shock our sense of justice. Accordingly, it is not unconstitutionally excessive.

This assignment is therefore without merit.

CONCLUSION

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

CONVICTION AND SENTENCE AFFIRMED.


author:
CARAWAY, J. MOORE, J.,
      STEWART, J.,

text:
    STATE of Louisiana, Appellee v. Larry John THOMPSON, Appellant.
    No. 46,039-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 21, 2012.

      Louisiana Appellate Project, by Bruce G. Whittaker, for Appellant.
    Larry John Thompson, Pro se.
    Charles R. Scott, II, District Attorney, Suzanne M. Owen, Jason T. Brown, Jonathan D. Thompson, Assistant District Attorneys, for Appellee.
    Before STEWART, CARAWAY, DREW, MOORE and LOLLEY, JJ.
   CARAWAY, J.

11 This ease is before us on remand from the Louisiana Supreme Court to address the issue of the excessiveness of Thompson’s life sentence. See State v. Thompson, 11-0915 (La.5/8/12), 93 So.3d 553. The facts of this case concerning defendant’s arrest and conviction of the crime of possession with intent to distribute a Schedule II Controlled Dangerous Substance can be found in our earlier opinion of State v. Thompson, 46,039 (La.App.2d Cir.2/23/11), 58 So.3d 994.

Excessive Sentence

Thompson received a mandatory life sentence plus a $3,000 fine after his adjudication as a fourth felony offender. Subsequent to his sentencing, he filed a motion to reconsider the sentence on the grounds that his “actions were not violent and no one else was involved or in any danger whatsoever.” The motion was denied. On appeal, he makes the sole assertion that the life sentence is excessive “for this fourth offender who was not convicted of a violent crime.” Thompson argues that he received no consideration for his guilty plea and suggests that his “complaint to internal affairs” “contributed to the harsh treatment and lack of consideration of any kind.”

Included within Thompson’s previous felonies was one count of simple burglary of an inhabited dwelling, which carried a maximum sentence of 12 years. He had also previously been convicted of the crime of distribution of cocaine, a violation of the Uniform Controlled Dangerous | ^.Substances Law. His final conviction was for Possession with intent to Distribute Cocaine.

The applicable provisions of La. R.S. 15:529.1(A)(1) provide:

(c)(ii) If the fourth felony and two of the prior felonies are felonies defined as a crime of violence under R.S. 14:2(B), a sex offense as defined in R.S. 15:540 et seq. when the victim is under the age of eighteen at the time of the commission of the offense, or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more or of any other crime punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

Since the Habitual Offender Law in its entirety has been held to be constitutional, the minimum sentences it imposes upon multiple offenders are also presumed to be constitutional. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672. For these reasons, the Legislature’s determination of an appropriate sentence should be afforded great deference by the judiciary. This does not mean, however, that the judiciary is without authority to pronounce a constitutional sentence if it determines that a mandatory minimum sentence is excessive in a particular case. However, this power should be exercised only when the court is clearly and firmly convinced that the minimum sentence is excessive. Id. at 676.

A sentencing judge must always start with the presumption that a mandatory minimum sentence under the Habitual Offender Law is constitutional. A court may only depart from the minimum sentence if it finds that there is clear and convincing evidence in the particular case before it which would rebut this presumption of constitutionality. To rebut the presumption that the mandatory minimum sentence is constitutional, the | ..¡defendant must clearly and convincingly show that he is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. Id. at 676.

When determining whether the defendant has met his burden of proof by rebutting the presumption that the mandatory minimum sentence is constitutional, the trial judge must also keep in mind that the goal of the Habitual Offender Law is to punish recidivism. Thus, the defendant with multiple felony convictions is subjected to a longer sentence in light of his continuing disregard for the laws of our state. Id. at 676-677.

A trial judge may not rely solely upon the nonviolent nature of a crime before the court or of past crimes as evidence that justifies rebutting the presumption of constitutionality. While the classification of a defendant’s instant or prior offenses as nonviolent should not be discounted, this factor has already been taken into account under the Habitual Offender Law for third and fourth offenders. Id. at 676.

Because the sentence imposed for the habitual offender adjudication is prescribed by statute, the trial court’s compliance with La. C. Cr. P. art. 894.1 is not required. State v. Dukes, 46,029 (La. App.2d Cir.1/26/11), 57 So.3d 489, unit denied, 11-0443 (La.3/2/12), 83 So.3d 1033; State v. Thomas, 41,734 (La.App.2d Cir.1/24/07), 948 So.2d 1151, unit denied, 07-0401 (La.10/12/07), 965 So.2d 396. It would be an exercise in futility for the trial court to discuss the factors enumerated in that article when the |4court had no discretion in sentencing the defendant. State v. Dukes, supra; State v. Sewell, 35,549 (La. App.2d Cir.2/27/02), 811 So.2d 140, unit denied, 02-1098 (La.3/21/03), 840 So.2d 535.

Moreover, upon a defendant’s adjudication as a fourth felony offender who is subject to mandatory sentencing provisions, a presentence investigation report is inconsequential. State v. Dukes, supra.

Thompson has failed to put forth any facts or arguments which support a conclusion that he is clearly and convincingly the exceptional defendant for whom downward departure from the mandatory life sentence is required. Louisiana law clearly holds that a defendant cannot rely solely upon the nonviolent nature of his offenses to receive relief. Moreover, the fact that he received no consideration for his Crosby plea presents no unusual circumstance. His allegation that the imposed sentence was given in retribution for his internal affairs complaint is also unsupported by the record. Otherwise, Thompson has failed to show that because of unusual circumstances he is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to his culpability, the gravity of the offenses he has committed and the circumstances of this case. Therefore, Thompson’s sentence is affirmed.

We note error patent on the record before us. In addition to the mandatory life sentence, the trial court imposed a $8,000 fíne, the payment of court costs through the inmate banking system and 60 days of jail time for failure to pay the court costs. Although the statute of conviction, La. R.S. 40:967, authorizes a fine of up to $50,000, the statute of enhancement, |sLa. R.S. 15:529.1(A), does not authorize the imposition of a fine. Thus, such fine is appropriately deleted. State v. Dickerson, 584 So.2d 1140 (La.1991); State v. Jetton, 32,893 (La.App.2d Cir.4/5/00), 756 So.2d 1206, writ denied, 00-1568 (La.3/16/01), 787 So.2d 299. Moreover, an indigent defendant may not be subjected to imprisonment because he is unable to pay a fíne which is part of his sentence. Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983); State v. Monson, 576 So.2d 517 (La.1991); State v. Howard, 44,-434 (La.App.2d Cir.6/24/09), 15 So.3d 344. Indigency may be discerned from the record. State v. Howard, supra. This court has considered it error for a trial court to impose jail time for failure to pay court costs and has amended such sentences to delete the jail time. State v. Howard, supra; State v. Kerrigan, 27,846 (La. App.2d Cir.4/3/96), 671 So.2d 1242. The record discloses Thompson’s indigency as he was represented by the Caddo Parish Public Defender Office throughout the proceedings. Accordingly, we correct the sentence to delete the $3,000 fine as well as the imposition of jail time in lieu of the payment of court costs. As amended, Thompson’s conviction and sentence are affirmed.

SENTENCE AMENDED; AFFIRMED.

MOORE, J., concurs and assigns written reasons.

STEWART, J., dissents and assigns written reasons.

MOORE, J.,

concurs.

Li respectfully concur. The supreme court has held that a defendant must show by clear and convincing evidence that he is “exceptional” if he is to receive a downward deviation from the mandatory sentence under the habitual offender law. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672. Because this defendant has made no such showing, the court has no alternative but to affirm the life sentence. I concur only to express concern over what societal goals will be served by imprisoning this 52-year-old nonviolent offender for the rest of his life, at a cost to society of nearly $20,000 a year. See, e.g., State v. Jackson, 2009-2406 (La.1/19/11), fn. 3, 55 So.3d 767 (Knoll, J, dissenting); State v. Cass, 46,228 (La.App. 2 Cir. 4/13/11), 61 So.3d 840 (Moore, J, dissenting), writ denied, 2011-1006 (La. 11/4/11), 75 So.3d 922. While a severe sentence less than life would probably be acceptable in this case, I concur in the application of the habitual offender law.

STEWART, J.,

dissenting.

IjThe majority determined that Thompson’s sentence was not excessive, since he “failed to put forth any facts or arguments which supports a conclusion that he clearly and convincingly falls within the category for which departure from the mandatory life sentence is required.” For the following reasons, I respectfully dissent.

In State v. Dorthey, 623 So.2d 1276, 1280-1281 (La.1993), the Louisiana Supreme Court recognized that if a trial judge determines that the punishment mandated by the Habitual Offender law makes no measurable contribution to acceptable goals of punishment, or that the sentence amounts to nothing more than the purposeful imposition of pain and suffering and is grossly out of proportion to the severity of the crime, he is duty bound to reduce the sentence to one that would not be constitutionally excessive. (Emphasis added.)

In State v. Johnson, 97-1906 (La.03/04/98), 709 So.2d 672, the Louisiana Supreme Court further qualified the Dorthey holding permitting a downward departure from a mandatory minimum sentence in the context of the Habitual Offender Law. Specifically, the court held that to rebut the presumption that the mandatory minimum sentence was constitutional, the defendant had to “clearly and convincingly” show that:

[he] is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.

State v. Johnson, supra.

12When evaluating whether the defendant has met his burden, the trial court must be mindful of the goals of the Habitual Offender Law, which are to deter and punish recidivism. State v. Wilson, 37,555 (La.App. 2 Cir. 11/6/03), 859 So.2d 957. Further, if the trial court finds clear and convincing evidence that justifies reducing the mandatory minimum sentence, the court cannot impose whatever sentence it may feel is appropriate. Id. Rather, the trial court must impose the longest sentence that is not constitutionally excessive with specific reasons to explain why that sentence is the longest sentence that is not constitutionally excessive. Id. Johnson emphasized that a downward departure from the mandatory minimum of La. R.S. 15:529.1 should only occur in “rare situations.” State v. Johnson, supra.

A trial judge may not rely solely upon the nonviolent nature of a crime before the court or of past crimes as evidence that justifies rebutting the presumption of constitutionality. State v. Johnson, supra. While a defendant’s record of non-violent offenses may play a role in a sentencing judge’s determination that a minimum sentence is too long, it cannot be the only reason, or even the major reason, for declaring such a sentence excessive. Id.

In the instant case, the trial judge sentenced the defendant to life imprisonment at hard labor, without the benefit of parole, probation, or suspension of sentence. Whenever a defendant is faced with a mandatory life sentence as a multiple offender, heightened scrutiny is triggered when ^determining if the defendant falls within those “rare” circumstances where a downward departure is warranted. State v. Burns, 97-1553 (La.App. 4 Cir. 11/10/98), 723 So.2d 1013, writ denied, 98-3056 (La. 4/1/99), 741 So.2d 1282.

This case is a prime example of “being in the wrong place at the wrong time.” The defendant was visiting a friend in room 29 of the Levingston Motel. While en route to the motel dumpster, he was detained by the Shreveport Police Department’s Special Response Team, as they attempted to execute a search warrant on rooms 81 and 37 of the Motel. Neither this defendant, nor the apartment he was visiting, were the target of the search warrant. Additionally, the defendant’s truck was not parked in front of the targeted apartments. When Agent Shawn Parker asked the defendant his reason for being there and how he had gotten there, the defendant responded that he was visiting a friend and pointed to his truck in the parking lot. The defendant subsequently signed a consent form to have his vehicle searched. He then entered his truck and produced a clear plastic bag containing five individually packaged rocks of crack cocaine from the center armrest of the bench seat.

The defendant testified that he informed Agent Parker that he smoked crack. He further testified that he had a “little heart attack a while back,” and that the crack cocaine “relieved some pain and takes your mind off of a lot of things.” The record does not contain any testimony or evidence that the defendant was actively distributing any drugs. Although the defendant pled guilty to distribution of Schedule II CDS in his previous drug conviction, we note that he was initially billed for possession with intent to distribute a Schedule II CDS, as well. The defendant’s admission to use of |4crack cocaine, coupled with his previous drug conviction and other nonviolent offenses, strongly supports the theory that this is an unfortunate case of a drug-addicted man.

The defendant clearly falls within that rare category of the “atypical” defendant, where the defendant’s situation is not adequately addressed by the legislature’s prescribed sentence to life imprisonment without benefit of probation, parole, or suspension of sentence. That is, the legislature mandated sentence is not tailored to the culpability of this offender, the gravity of his offenses and the circumstances of this case. State v. Wilson, supra; State v. Johnson, supra.

The defendant’s fourth habitual offender bill of information provided me with the defendant’s criminal history. The four convictions prior to the instant possession with intent to distribute Schedule II, CDS, resulted in prison terms of eight years (ordered to be served concurrently), eight years (ordered to be served concurrently), four years (one year without benefits with credit for time served), and five years. These non-violent offenses and resulting sentences are not to be taken lightly. However, they do not reach a level of culpability and gravity warranting a life sentence.

I do not dispute the fact that the defendant in this case needs a period of incarceration. However, I find clear and convincing evidence that the instant case involves an atypical defendant who has fallen victim to the legislature’s failure to assign sentences that are meaningfully tailored to him. Since the trial court imposed a life sentence pursuant to La. R.S. 15:529.1, he did not comply with La. C. Cr. P. art. 894.1 when sentencing |Bthe defendant. As a result, the record is void of any reasons for the sentence imposed, or any mitigating factor which may be present.

The defendant’s life sentence is disproportionate to the harm done and definitely shocks one’s sense of justice. State v. Lobato, 603 So.2d 739 (La. 1992). Therefore, I cannot conclude that this life sentence is not excessive under the constitutional standard. For these reasons, I would recommend that we vacate the life sentence imposed by the district court and remand to the trial court for re-sentencing accordingly.

Therefore, I respectfully dissent.


text:
    In re Medical Review Panel Proceeding of ROBINSON.
    No. 47,380-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 2013.
    Ruthie Robinson, Third-Party Appellant, In Proper Person.
    Robert W. Robison, Jr., Jennifer M. Durham, Baton Rouge, LA, for Appellees, Erick Salvatierra, M.D. and Willis-Knigh-ton Bossier Medical Center.
    Rendi B. Wiggins, Shreveport, LA, for Third-Party Appellee, Michael Banda, M.D.
    Robert G. Pugh, Jr., Shreveport, LA, for Third-Party Appellee, Paul G. Cole, M.D.
    Before WILLIAMS, LOLLEY and SEXTON (Pro Tempore), JJ.
   WILLIAMS, J.

| j Plaintiff, Ruthie Robinson, appeals a district court’s ruling sustaining peremptory exceptions of prescription filed by defendants, Dr. Michael Banda and Dr. Paul Cole, and denying plaintiffs motion for new trial. For the following reasons, we affirm.

FACTS

On August 23, 2009, the decedent, Eddie Robinson, presented to the emergency room at Willis Knighton-Bossier Health Care System (“Willis Knighton”) complaining of abdominal pain and vomiting. The decedent was diagnosed with a small bowel obstruction secondary to an incarcerated hernia, and was admitted to the hospital under the care of Dr. Erick Salvatierra. That same day, defendant, Dr. Michael Banda, performed surgery to repair the hernia and to correct the bowel obstruction. Following the surgery, defendant, Dr. Paul Cole, a cardiologist, was consulted to care for the decedent due to a history of “cardiac problems.”

Plaintiff, Ruthie Robinson (the decedent’s sister), alleged that she visited the decedent in the hospital on August 24, 2009. During plaintiffs visit, hospital personnel assisted the decedent from the bed to the chair. According to plaintiff, the decedent was experiencing weakness and shortness of breath prior to being assisted to the chair; however, at least one member of the hospital’s staff insisted that the decedent get out of bed. Soon thereafter, the decedent stopped breathing and attempts to resuscitate him were unsuccessful. The autopsy revealed that the decedent’s death was caused by a pulmonary embolus.

On August 20, 2010, plaintiff filed a request for a medical review | ^panel with the Patient’s Compensation Fund (“PCF”). The request was filed in proper person and named Willis Knighton, Dr. Salvatierra, Dr. Banda and Dr. Cole as defendants. The complaint was mailed to the PCF via certified mail and was received by the PCF on August 27, 2010.

Subsequently, on September 3, 2010, plaintiff filed a request for a medical review panel with the Division of Administration. The complaint was acknowledged as received by the Division of Administration on September 7, 2010.

On November 17, 2010, Willis Knighton and Dr. Salvatierra filed an exception of prescription. They argued that plaintiffs medical malpractice claim had prescribed because the claim was not submitted to the Division of Administration until September 3, 2010, more than one year after the alleged act(s) of malpractice. A hearing was held, at which plaintiff did not appear. In plaintiffs absence, the district court sustained the exception of prescription and dismissed with prejudice “all claims asserted by the plaintiff in the matter entitled ‘Eddie Robinson (D) et al. vs. Willis Knigh-ton!,]’ bearing Louisiana Patient’s Compensation Number 2010-00993[.]”

On June 8, 2011, Dr. Banda filed an exception of prescription. Subsequently, Dr. Cole filed an exception of prescription on June 22, 2011. A hearing was held on July 18, 2011, and again, plaintiff did not appear at the hearing. The district court sustained the exceptions.

On July 20, 2011, plaintiff filed, in proper person, a “Motion for Another Trial Date.” Plaintiff argued that she failed to appear at the hearing Ron the exceptions of prescription filed by Dr. Banda and Dr. Cole because she “went to the wrong court room as directed by a court house authority.” A hearing was scheduled for September 12, 2011. However, defendants were not provided with notice of the hearing on plaintiffs motion; therefore, defendants did not appear. The hearing was rescheduled for November 7, 2011. Following the hearing, the district court denied plaintiffs motion for new trial, concluding that the claims had prescribed. The court stated:

[T]he letter mailed to the division of administration ... was received, return receipt requested, green card returned, showing Ms. Latoya Bell from the division of administration received that. That is the proper entity for you to file your claim, which would interrupt prescription. The only problem is you didn’t mail it until September 3rd. That’s why the filing date is September 3rd. The receipt from the post office where you paid for it to be mailed by certified mail is dated September 3rd, with expected delivery of September 7th, which shows that Ms. Bell received it on September 7th.
You did not file it with the proper administrative body within the one year of the alleged malpractice of August 23rd. As a result of that, I am going to deny your motion for new trial and uphold the previous order granting the defendants’ request on the dismissing [sic] the case based on prescription[.]
Plaintiff appeals.

DISCUSSION

Plaintiff contends the district court erred in denying her motion for new trial. She argues that the court’s conclusion that she failed to file the medical malpractice claim within one year of the alleged act(s) of malpractice is erroneous. According to plaintiff, the court based its ruling on the date the request for a medical review panel was received by the | ^Division of Administration, rather than the date the request was mailed.

A new trial shall be granted upon contradictory motion of any party when the judgment appears clearly contrary to the law and the evidence or when the party has discovered new evidence which he could not have obtained before or during trial. LSA-C.C.P. art. 1972. A new trial may be granted if there is good ground therefor. LSA-C.C.P. art. 1973. The denial of a motion for new trial is considered under the abuse of discretion standard of appellate review. Carthon v. Johnson Controls, Inc., 47,037 (La.App.2d Cir.4/11/12), 92 So.3d 417, writ denied, 2012-1076 (La.9/12/12), 98 So.3d 311; Jones v. LSU/EA Conway Medical Center, 45,410 (La.App.2d Cir.8/11/10), 46 So.3d 205.

The prescriptive period for medical malpractice is found in LSA-R.S. 9:5628. That statute provides that an action for damages against a physician or a hospital based upon tort and/or arising out of patient care must be filed within one year from the date of the alleged act, omission or neglect, or within one year from the date of discovery of the alleged act, omission or neglect.

Generally, the burden of proving that a suit has prescribed rests with the party pleading prescription. However, when the plaintiffs petition shows on its face that the prescriptive period has expired, the burden shifts to the plaintiff to allege and prove facts indicating that the injury and its causal relationship to the alleged misconduct were not apparent or discoverable until within one year before the action was filed. Thomas v. Crawford, 42,386 (La.App.2d Cir.9/26/07), 966 So.2d 786; Cruse v. LSU Medical Center, 34,-779 (La.App.2d Cir.6/20/01), 792 So.2d 798. An appellate court may not set aside a trial court’s finding of fact unless it is clearly wrong. Stobart v. State, 617 So.2d 880 (La.1993).

LSA-R.S. 40:1299.47 provides, in pertinent part:

A. (l)(a) All malpractice claims against health care providers covered by this Part, other than claims validly agreed for submission to a lawfully binding arbitration procedure, shall be reviewed by a medical review panel[.]
(2)(a) The filing of the request for a review of a claim shall suspend the time within which suit must be instituted!.] Filing a request for review of a malpractice claim as required by this Section with any agency or entity other than the division of administration shall not suspend or interrupt the running ofprescription^ ]
(b) The request for review of a malpractice claim under this Section shall be deemed filed on the date of receipt of the request stamped and certified by the division of administration or on the date of mailing of the request if mailed to the division of administration by certified or registered mail[.]

(Emphasis added).

In the instant case, the record reveals that plaintiff filed a request for a medical review panel on August 20, 2010. The certified mail receipt from the United States Postal Service shows that the request was addressed and mailed to “Patients’ Compensation Fund[,] P.O. Box 3718, Baton Rouge, LA 70821” on August 20, 2010, as evidenced by the United States Postal Service postal stamp. The request was stamped received by the PCF on August 27, 2010.

|fiThe record also contains a copy of a certified mail return receipt which was addressed to “Division of Administration!,] Medical Review Panel!,] Claiborne Building!,] 1201 N. Third St. 7th Floor S. 230[,] Baton Rouge, LA 70804-4336.” The card addressed to the Division of Administration does not indicate the date the request was mailed. However, a United States Postal Service certified mail receipt, on which the sendee’s name was omitted, indicates that an item was mailed on September 3, 2010. The return receipt card, which was addressed to the Division of Administration, shows that the item was delivered on September 7, 2010. Additionally, the record indicates that plaintiffs request for a medical review panel was filed, via facsimile transmission, with the Division of Administration on September 3, 2010, at “12:10.” The document was faxed from the Bossier Parish Library and bears the stamp “Division of Administration Commissioner’s Office 2010 SEP — 3 PM 1:38.”

It is undisputed that the alleged acts of medical malpractice occurred and were made known to plaintiff no later than August 24, 2009, the date of the decedent’s death. Thus, any action for medical malpractice must have been filed within one year of that date. See, LSA-R.S. 9:5628. The claim was filed with the PCF on August 20, 2010. However, the Division of Administration is the proper entity in which to file a request for a medical review panel. Therefore, the original claim of malpractice was not filed with the proper entity within one year of the alleged act(s) or malpractice. ^Consequently, the filing of the claim with the PCF was rendered invalid and without effect and did not suspend the running of prescription. LSA-R.S. 40:1299.47(A)(2)(a). Plaintiff did not mail her complaint to the Division of Administration until September 3, 2010, and the complaint was received by the Administration on September 7, 2010. Accordingly, we find that the trial court did not err in sustaining defendants’ exceptions of prescription and in denying plaintiffs motion for new trial.

CONCLUSION

For the reasons set forth herein, the district court’s ruling sustaining the peremptory exceptions of prescription filed by defendants, Dr. Michael Banda and Dr. Paul Cole is hereby affirmed. The court’s ruling denying plaintiffs motion for new trial is also affirmed. Costs of this appeal are assessed to plaintiff, Ruthie Robinson.

AFFIRMED.

      . On September 9, 2010, the PCF acknowledged the official receipt of the August 20, 2010 request for a medical review panel and notified plaintiff of the required filing fee to continue with the proceedings. Plaintiff's filing fee in the amount of $400 was received by the PCF on September 20, 2010.