author: THIBODEAUX, Chief Judge.

text:
    Kelli FUSELIER, v. CITY OF OAKDALE.
    No. 13-640.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 15, 2014.

      Jerry Joseph Falgoust, Falgoust, Cavi-ness & Bienvenu, LLP, Opelousas, LA, for Defendant/Appellee-City of Oakdale.
    Roy Seale Halcomb, Jr., Broussard, Hal-comb & Vizzier, Alexandria, LA, for Plaintiff/Appellant-Kelli Fuselier.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and J. DAVID PAINTER, Judges.
   THIBODEAUX, Chief Judge.

[t The plaintiff, Kelli Fuselier, was injured in a one-car accident when she ran off the roadway into a ditch on Hospital Drive in Oakdale, Louisiana. She appeals the judgment of the trial court in favor of the defendant, the City of Oakdale. The trial court found that Ms. Fuselier failed to prove that the conditions of the roadway created an unreasonable risk of harm that caused Ms. Fuselier’s accident and injuries. For the following reasons, we affirm the judgment of the trial court.

I.

ISSUES

We must decide:

(1) whether the trial court manifestly erred in finding that the conditions of Hospital Drive did not create an unreasonable risk of harm; and
(2) whether the trial court manifestly erred in finding that the conditions of Hospital Drive did not cause the plaintiffs injuries.

II.

FACTS AND PROCEDURAL HISTORY

In August 2006, twenty-five-year-old Kelli Fuselier was driving south on Hospital Drive in the City of Oakdale (City) in a well-travelled, commercial area containing medical and health facilities and business offices. A vehicle allegedly entered the two-lane street from a parking lot on Ms. Fuselier’s left and made a wide right turn, coming toward Ms. Fuselier and into her lane of travel. Ms. Fuselier moved to her right to avoid a collision. At the accident site, Hospital |2Drive had no center striping, no shoulder, and there was a shallow ditch running parallel to Ms. Fuselier’s lane of travel. The two right wheels of the Fuselier vehicle dropped onto the slope of the ditch while the two left wheels stayed on the pavement.

As Ms. Fuselier continued moving forward, the undercarriage of the vehicle scraped along the edge of the paved lane. Tire tracks in the grassy slope indicated that Ms. Fuselier’s vehicle followed the contours of the ditch and was ultimately channeled toward a protruding culvert and another open ditch which ran perpendicular to the first. There was no evidence that Ms. Fuselier applied her brakes or tried to re-enter the roadway, but she may have taken her foot off of the accelerator. She struck the culvert, jumped the perpendicular cross ditch, and finally came to rest in the grass at the edge of the cement curb of the Allen Parish Health Unit’s paved drive-way. At some point, her airbags deployed. There were apparently no witnesses to the accident, and the unknown car and driver that caused Ms. Fuselier to swerve toward the ditch were never identified.

Ms. Fuselier was taken by ambulance stretcher to the emergency room at the Oakdale Community Hospital where x-rays revealed a vertebral fracture at T-ll. She was given the anti-inflammatory, Toradol, and was transferred to Christus St. Frances Cabrini Hospital in Alexandria. There, a CT scan revealed a mild, superior end plate compression fracture involving T-ll. Though she complained of low back pain as well, there was no evidence of acute trauma involving the lumbar spine. Ms. Fuselier was discharged the same day with a prescription of Vicodin and was to follow up at the Oakdale Orthopedic Clinic, which she did not do. She did not see an orthopedic specialist or any doctor for the subject accident until August 2007, a full year after the accident.

|3Ms. Fuselier was unable to return to work for approximately two months after the accident. She brought suit against the City and its insurer for damages, and she sought medical treatment sporadically thereafter.

The case was tried as a two-day bench trial almost seven years after the accident. The trial judge found that the roadside conditions complained of were not unreasonably dangerous and found, in the alternative, that the unknown driver, not the condition of the road, was the cause-in-fact of the accident. Having found no liability against the City, the court did not reach the issues of apportionment of fault or extent of damages.

III.

STANDARD OF REVIEW

The finding of the jury or trial judge on the ultimate determination of unreasonable risk of harm is subject to the manifest error standard of review. The fact finder’s determination is accorded deference and may not be disturbed absent a finding that the determination was clearly wrong or manifestly erroneous. Reed v. Wal-Mart Stores, Inc., 97-1174 (La.3/4/98), 708 So.2d 362. Under this standard, if two reasonable and permissible views of the evidence exist, and the fact finder’s choice is based on reasonable credibility evaluations and factual inferences in light of the entire record, the appellate court cannot reverse even if it would have, as trier of fact, weighed the evidence differently and reached a different result. Stobart v. State, DOTD, 617 So.2d 880 (La.1993).

Ji.IV.

LAW AND DISCUSSION

To prevail in her suit against the City, Ms. Fuselier must prove that (1) the thing which caused the damage was in the custody of the City, pursuant to La.Civ.Code art. 2317; (2) the thing contained a defect because it had a condition that created an unreasonable risk of harm to Ms. Fuselier; (3) the defective condition of the thing caused Ms. Fuselier’s injuries; and (4) pursuant to La.R.S. 9:2800, the City had actual or constructive notice of the defect and reasonable opportunity to remedy it prior to the accident, but failed to do so. See Oster v. DOTD, State of La., 582 So.2d 1285 (La.1991).

Here, elements one and four are undisputed; i.e., the City had custody of Hospital Drive and an approximate twenty-foot right-of-way on either side; and the City knew that the roadway at the accident site had no center striping, no shoulder, and open ditches with steep slopes. As to elements two and three, the trial court found that Ms. Fuselier did not prove that the road conditions posed an unreasonable risk of harm, and in the alternative did not prove that the road conditions caused the accident and injuries.

The “duty to maintain safe shoulders encompasses the foreseeable risk that for any number of reasons, including simple inadvertence, a motorist might find himself traveling on, or partially on, the shoulder.” Brown v. Louisiana Indem. Co., 97-1344, p. 4 (La.3/4/98), 707 So.2d 1240, 1242. “[M]any Louisiana roads have narrow shoulders and steep roadside ditches and are lined with trees, culverts, fences, and other objects.” Myers v. State Farm Mut. Auto. Ins. Co., 493 So.2d 1170, 1173 (La.1986). “The finding of the existence of a defect alone is not a sufficient analysis to establish liability.” Boyle v. Board of Sup’rs, La. State 5Univ., 96-1158, p. 5 (La.1/14/97), 685 So.2d 1080, 1083. In order for there to be liability, the defect must create an unreasonably dangerous risk. Id. Whether a road condition is unreasonably dangerous is a question of fact. Cormier v. Comeaux, 98-2378 (La.7/7/99), 748 So.2d 1123; Ledoux v. State Through DOTD, 98-24 (La.9/18/98), 719 So.2d 43. In determining what is reasonable and unreasonable, the courts employ a risk-utility test. Cormier, 748 So.2d 1123.

In Broussard v. State ex rel. Office of State Bldgs., 12-1238 (La.4/5/13), 113 So.3d 175, the Louisiana Supreme Court emphasized the fact-intensiveness of the risk-utility test and its purpose:

We have described the question of whether a defect presents an unreasonable risk of harm as “a disputed issue of mixed fact and law or policy that is peculiarly a question for the jury or trier of the facts.” As a mixed question of law and fact, it is the fact-finder’s role— either the jury or the court in a bench trial — to determine whether a defect is unreasonably dangerous. Thus, whether a defect presents an unreasonable risk of harm is “a matter wed to the facts” and must be determined in light of facts and circumstances of each particular case.
To aid the trier-of-fact in making this unscientific, factual determination, this Court has adopted a risk-utility balancing test, wherein the fact-finder must balance the gravity and risk of harm against individual societal rights and obligations, the social utility of the thing, and the cost and feasibility of repair. Specifically, we have synthesized this risk-utility balancing test to a consideration of four pertinent factors: (1) the utility of the complained-of condition; (2) the likelihood and magnitude of harm, including the obviousness and ap-parentness of the condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiffs activities in terms of its social utility or whether it is dangerous by nature.

Broussard, 113 So.3d at 183-84 (citations omitted) (footnote omitted).

As part of the cost analysis, the physical and financial inability of a municipality to maintain its things in anything more than a reasonably safe condition has | fibeen considered by this Court as a factor in determining whether such condition creates an unreasonable risk of harm. Brooks v. State ex rel. Dept. of Transp. and Development, 10-1908 (La.7/1/11), 74 So.3d 187[.] This includes not only the cost to fix the instant deviation, but also all similar deviations. Boyle, [685 So.2d] at 1083.

Chambers v. Village of Moreauville, 11-898, p. 9 (La.1/24/12), 85 So.3d 593, 600.

As the Louisiana Supreme Court stated in Graves v. Page, 96-2201 (La.11/7/97), 703 So.2d 566, one cannot be protected from all risks, and economic realities make zero accidents an impossible goal. The standard then for public entities is not perfection but rather that the roads be kept “ ‘reasonably safe for persons exercising ordinary care and reasonable prudence.’ ” Cormier, 748 So.2d at 1131 (quoting Brown, 707 So.2d at 1242). The duty to maintain roads and rights of way does not require bringing old highways up to modern standards “unless a new construction or a major reconstruction of the highway has taken place.” Id. at 1129 (citing Ledoux, 719 So.2d 43). Generally, in the numerous cases against DOTD, “where no road defect caused the driver to leave the road and the driver hit an object in the DOTD’s right of way, the DOTD has been relieved of liability.” Id. at 1129-30 (footnote omitted).

For example, in Myers, 493 So.2d 1170, the subject highway was built in the 1930s. Its lanes were subsequently widened leaving a narrowed shoulder and an adjacent ditch with a steep slope. The plaintiff swerved off the road to avoid a car and ran into a tree in the ditch. The court found the road’s surface conditions good and found no breach of duty by the DOTD in failing to bring the road up to current standards. Likewise, in Holloway v. State Through DOTD, 555 So.2d 1341 (La.1990), the driver left the pavement and ran into a tree on the other side of the ditch. The court found that the roadway was unobstructed with a |7clearly visible shoulder sloping into a shallow ditch. In both cases, the court found no unreasonably dangerous conditions, in spite of shoulder and ditch issues, and found no duty to bring the road up to current standards. A similar result was reached in Cormier which involved a ditch over six feet deep.

Here, the record reveals that, under Broussard: (1) The utility of Hospital Drive, which provided access to medical facilities, was high, as was the utility of its ditches, which provided drainage for Oak-dale’s flat terrain to prevent flooding in the City; however, the (2) likelihood of harm was low because there was no evidence of prior accidents at the site, or prior complaints about the lack of striping or shoulders or the steep slope into the shallow ditch, all of which were open and obvious conditions, both at the site and throughout the City. Thus, the City had no reason to target the accident site for improvements. Further, the trial court had supportable credibility concerns regarding the plaintiff and the gravity of the harm she actually suffered as a result of the subject accident. On the other hand, (3) the cost of preventing the low likelihood and questionable gravity of harm was great. The City’s budget could not cover the cost of filling ditches and installing culverts throughout the city, and its policy was to provide such improvements only if the property owner requested them and agreed to share the cost by providing the materials, which was not the case at the accident site. Finally, Ms. Fuselier’s travel on the road was for a(4) useful purpose, and there was no evidence of speeding or other dangerous activity.

Given the above factors, where utility was high, likelihood and gravity of harm were low, and the cost of preventing the harm was great, we cannot say that the trial court manifestly erred or was clearly wrong in finding no unreasonable risk of harm. The trial court provided an extensive nine-page | Sanalysis of the issues, the factors she was called upon to balance, the evidence, and her ultimate conclusions and reasons for judgment:

Hospital Drive is in the custody and control of the City of Oakdale. It is a two-lane, paved roadway with no center striping. The paved portion of the roadway is between 20' and 21'4" in width. Although there was an overlay in 2003/2004, Hospital Drive had not been reconstructed prior to the Fuselier accident. This street is a high traffic street in Oakdale, Louisiana. At the point that Ms. Fuselier left the roadway, there was no shoulder or only a foreslope (slight sloping shoulder leading directly into the ditch) on the right side of the roadway. Adjacent to the roadway was a 2-2 deep ditch with a 1:1 or a 1 1 slope that extended for about 50-53'. At the end of the ditch was a culvert under a 22' dirt/grass covered driveway, followed by a cross-ditch that was about 2 ' deep and 6' from the roadway. Past the cross ditch was a short grassy area and then the curb of the cement driveway of the Allen Parish Health Unit parking lot. On the day of the accident, the weather was clear and the roadway was dry. At.tbe site of the accident the roadway was straight with no visual obstructions. The speed limit on Hospital Drive was 30 mph.
•Robert Staehle was the public works superintendent for the City of Oakdale at the time of the accident. He has been in this position for 18 years. He verified that the City of Oakdale owned Hospital Drive. It was the City’s responsibility to maintain its roadways. Hospital Drive was overlaid in 2003/2004. The City puts in culverts and covers ditches throughout the city for landowners when the landowners so request. The landowner pays for the materials and the city provides the equipment and the labor to install the culvert. The installation of a culvert requires the building of catch basins and sometimes the movement of sewer and utility lines. Under the ditch at the site of the Fuselier accident is the main sewer line that feeds the federal prison. At the site there is, also, a gravity manhole cover.
Charles Powers, retired Oakdale police officer, stated that in the 17 years prior to the accident that he was an Oakdale police officer, he did not recall a complaint or an accident reported on Hospital Drive at the site of the Fuselier accident. Former mayor, Bobby Abrus-ley testified that for the 13 years that he was mayor prior to the Fuselier accident, the city received no lncomplaints about Hospital Drive where the Fuselier accident occurred nor were there any other accidents there. Mr. Staehle testified that in the 12 years that he was the public works superintendent for the city prior to this accident there were no complaints reported to him about the shoulders, ditches or center striping on Hospital Drive at the accident site. Additionally, he does not recall any other accidents at that site.
In the city of Oakdale, there are many roadways which have little or no shoulder, an adjacent ditch with a steep slope, and no center striping (as per testimony of Robert Staehle, Bobby Abrusley, Charles Powers, and Glen Turner). Glen Turner, an expert in the field of engineering for municipal projects which include road construction, reconstruction and overlay,' and utility and sewer projects, testified that he was asked to do a cost estimate to upgrade the streets for the City of Oakdale. He was asked to utilize DOTD standards, although he does not believe that DOTD standards ordinarily apply to cities. For example DOTD standards call for paved shoulders which he does not believe would apply to cities. Mr. Turner utilized maps of all the streets in Oakdale- as well as high resolution aerial photos and an on-site inspection of some streets to develop estimates for the cost of correcting roads with insufficient shoulders and slopes, adjacent ditches too close to the roadway with non-recoverable slopes, and no. center striping. The estimate .for the total cost would be $15.2 million, $12 million of which would be construction. Mr. Turner’s estimate did not include the movement of utilities which would increase the cost significantly. It did include the cost of paving the shoulders. Leaving the shoulders unpaved would reduce his estimate by 20-25%. Mr. Turner’s estimate would increase the slope of ditches to 3:1. From his prior work for the city, Mr. Turner testified that. Oakdale is flat and drainage is critical to prevent flooding. The proper size and depth of culverts in a sewage system is vital to maintaining proper drainage. The cost for this study was included in the estimate for the total cost of the project.
Mr. Abrusley testified that during his tenure as mayor of Oakdale the budget was always tight. There are many, many streets in Oakdale with no shoulders and steep adjacent ditches. He believed that the cost to correct the shoulders and cover the ditches throughout the city would be $10-12 million which the city did not have. According to Mr. Abrusley and Mr. Staehle, the 110culverts to the north of the Fuselier accident site were put in by the contractors of the property owners when they built their medical buildings, not by the city. There [h]as been no reconstruction of Hospital Drive since it was built.

Thus, local authorities all agreed that there were no prior accidents and no complaints regarding the condition of the road which would cause them to target the accident site for improvements. Additionally, without requests and funding by the property owners, the City could not afford to fix all such conditions throughout the City. The trial court next discussed the expert testimony:

Duaine Evans, an expert in the field of traffic engineering and accident reconstruction, testified on behalf of Ms. Fuselier. He was asked to render an opinion on whether or not the condition of the roadway was a contributing factor of the accident. He believed that it was. At the site where the Fuselier vehicle left the roadway on Hospital Drive, there was no center striping, no shoulder and an adjacent 2 ditch with a slope of 1:1. Mr. Evans testified that a 1:1 [slope] is non-recoverable. Once Ms. Fuselier’s right tires left the roadway, her vehicle was pulled down into the ditch and rode the channel of the ditch. Mr. Evans testified that there was nothing that Ms. Fuselier could do to get back onto the roadway. Once she was off the roadway, it would have taken her 1 % seconds to react. By that time (the lapse of 1 lk seconds) Ms. Fuselier would have already hit the culvert, jumped the cross ditch and come to a stop at the curb of the driveway to the Allen Parish Health Unit. All of this would have occurred before she could react to leaving the roadway.
Mr. Evans believed that Ms. Fuselier acted reasonably by pulling to the right to avoid a head on collision. Mr. Evans did not believe that the cross ditch was at issue as a cause of the accident. He did not determine the cost to the city to fix the shoulder and the adjacent ditch at the accident site. He testified that there is no other area on Hospital Drive that is like the accident site. He stated that to the north there are covered culverts and to the south there are shoulders; however, Jeremy Hoffpauir, the city’s expert, testified that he observed an area just to the north of the accident site where there was no shoulder with a 20' long, open, steep ditch adjacent to | nit. Under cross examination Mr. Evans agreed with the City’s expert that Ms. Fuselier would have entered the adjacent ditch no matter if the slope was 1:1, 2:1, or even 3:1 because there was no time for her to recover/react from leaving the roadway before her vehicle came to stop. Despite that, on redirect, Mr. Evans reiterated that without the ditch the accident would not have occurred.
Mr. Hoffpauir is an expert in the field of accident reconstruction and testified for the City of Oakdale. Mr. Hoffpauir was asked by the city to render an opinion as to the cause of the accident. He believed that the primary cause of the accident was the other vehicle moving into Ms. Fuselier’s lane of travel. A secondary cause would have been Ms. Fuselier’s emergency maneuver to avoid an on-coming vehicle, but he does not attribute fault to her because it was an “emergency” created by the other vehicle.
Mr. Hoffpauir did not believe that the lack of center striping, the lack of shoulder nor the steep slope of the adjacent ditch were causes of the accident. The roadway was a wide roadway. At the point that she left her lane of travel it was 21'4" wide. According to Ms. Fuse-lier the other vehicle was either all the way in her lane of travel or almost all the way such that she thought there was going to be a head on collision in her lane of travel. Whatever lapse or inattention caused the “mystery” driver to leave his/her lane of travel to such a degree that a head on collision was imminent would not have been cured by center striping. Mr. Hoffpauir found that no shoulder and the 32-36 degree (or 1/2:2) slope of the ditch at the site of the accident were not optimum conditions for a roadway. However, Mr. Hoffpauir testified that even if there had been a 3-4' or even 5-6' shoulder and a 3:1 recoverable slope in the adjacent ditch, Ms. Fuselier would still have gone into the ditch with the same result because she still would not have had time to react to leaving the roadway before her vehicle came to a stop. He agreed with Mr. Evans that normal reaction time is seconds and by that time the accident was over.

The experts agreed that Ms. Fuselier, who was travelling 23-30 miles per hour, covered about forty-four feet of ground in the first second, and had gone 112a total of sixty-six feet before she could react to what happened. By that time the accident was over. This theory of the reaction time is consistent with the absence of physical evidence that Ms. Fuselier applied her brakes or attempted to re-enter the roadway after leaving it. The trial court’s assessment of the expert testimony led to her finding regarding causation.

In weighing the gravity of harm, the trial court detailed the medical evidence and other incidents which caused her to question Ms. Fuselier’s credibility. The record reveals that Ms. Fuselier’s orthopedist, Dr. David Delapp, related her injuries and ongoing chronic pain to the August 2006 accident, based upon the history she gave him. However, when he first saw Ms. Fuselier in August 2007, a year after the accident, her compression fracture at T-ll had healed. He found full range of motion on flexion-extension, some pain on side bending, 2+ deep tendon reflexes bilaterally, diminished sensation in the lower extremities, which he found questionable, and a negative straight leg raise. He recommended an MRI and referred her to Dr. William Dole for an EMG and pain management. He also recommended physical therapy. Eventually, Ms. Fuselier attended three sessions, then stopped. The August 2007 MRI indicated three thoracic disc bulges.

When Ms. Fuselier saw Dr. Dole in September 2007, he did not perform the EMG because she had no complaints of radiculo-pathy in her back. His physical exam showed normal range of motion and normal strength in the arms, legs, and muscles, and the straight leg-raise test was negative. When she saw him for pain management almost a year later, in August 2008, Dr. Dole performed a drug screen which was positive for Xanax, Valium, Cocaine, and Hydrocodone. After performing a physical exam, his impression was thoracic compression fracture, substance abuse and myofacial pain of the right scapula. He 113recommended substance abuse treatment, prescribed nonnarcotic pain medication, and released her because of the positive drug test. He thought she would continue to improve and could manage future pain with over-the-counter medicine. She subsequently spent nine months in drug rehabilitation and continued treatment on an outpatient basis into 2009.

When Dr. Delapp saw Ms. Fuselier in June 2009, she complained that her pain was worse and that it affected her sexual activity and daily living. However, she did not tell Dr. Delapp about the May 2009 domestic violence and sexual assault by her live-in boyfriend. She was beaten, thrown to the ground, and he hit her head on the floor several times, but she denied any injuries from the beating. Photographs indicate otherwise. In a 2011 protective order, Ms. Fuselier asserted numerous beatings by the boyfriend. In December 2009, she had a one-car accident, running into a bridge due to inattention; she was convicted of a DWI for this accident, which she explained was due to having taken pain medication for the subject accident. Ms. Fuselier said she had no injuries from this accident.

The trial court also stated that between the accident and trial, Ms. Fuselier had two more children, but had only shared custody of one of her four children; the other three were living elsewhere. Ms. Fuselier had also had kidney stones and other renal problems, an emotional breakdown, a slip and fall injury to her head requiring a visit to the ER, and continued treatment for pre-existing depression. She alleged no pre-accident injuries but had filed suit in Rapides Parish for injuries sustained in a 2001 car accident, which she did not remember filing when questioned at trial. In 2005, a year before the subject accident, Ms. Fuselier had a felony conviction for conspiracy to forge a prescription, a violation |14of the controlled dangerous substance law. The trial court summarized her findings as follows:

As a result of the accident Ms. Fuselier had a Til compression fracture that is healed. It continues to cause her pain to date. Although none of the physicians who testified found that she was a malingerer, the court did have some credibility issues with Ms. Fuselier relative to her testimony as. to her chronic pain. Ms. Fuselier was able to go back to work within two months and, to date, has treated her pain primarily with over the counter medications and heat. Her treating physician, Dr. Delapp, saw her the first time a year after the accident, then once in 2008 and twice in 2009. Ms. Fuselier did not see Dr. Delapp again until August 2012. She had no new complaints except for some spasms that Dr. Delapp said could be attributed to her being eight months pregnant. This last visit coincided with a trial fixing set for September, 2012. At his deposition Dr. Delapp was made aware of the May, 2009 domestic abuse event. He said that there was no acute evidence of injury from it in the 2009 MRI. However, he did not seem to be aware of the prior accident, the intervening accident, the other domestic abuse incidents or of her substance abuse problems (except for the positive drug screen at Dr. Dole’s office). Ms. Fuselier has drug dependency issues. She has seen three different pain management specialists, none of whom would give her narcotic pain medication and only one of whom she saw more than one time. (She saw Dr. Dole twice). So, although the court finds that Ms. Fuselier had a Til compression fracture which has healed, the court is uncertain about the severity and gravity of her chronic pain.
Consequently, after balancing the gravity and risk of harm to Ms. Fuselier against the cost to the city of repairing this type of deviation throughout the city and the feasibility of said repairs, the court cannot say that the instant deviation is unreasonably dangerous.
Furthermore, even if the court found that the condition of the roadway, shoulder and ditch created an unreasonable risk of harm to Ms. Fuselier, the court would not find that it was a cause-in-fact of the harm to Ms. Fuselier. A defendant’s conduct is a cause-in-fact of the harm only if it is “substantial factor” in bringing hsabout the harm. Graves, [703 So.2d] at 570. The breach of duty by the defendant must be such that it denies Ms. Fuselier the opportunity, to avoid an accident. Ms. Fuselier left the roadway because another vehicle was in her lane of travel. The roadway was 21'4" at the site of the accident, clearly wide enough for two vehicles.

It is clear that the trial court’s choice was based on reasonable credibility evaluations and factual inferences in light of the entire record. The judge had supportable credibility concerns, as the record was replete with events calling into question the gravity of the harm allegedly caused by this single car accident. There were significant gaps in treatment, failures to follow up and follow through with recommended treatment, lack of objective symptoms at times, unreported accidents, repeated domestic violence, substance abuse, DUI, positive drug testing, felony conviction relative to prescription fraud, refusals by pain management physicians to treat Ms. Fuselier, confinement to rehabilitation, symptoms related to pregnancies rather than the accident, only six or eight weeks of missed work, and numerous job changes also not related to the accident.

In view of these facts regarding the questionable gravity of harm, the low likelihood of harm due to the open and obvious conditions and the absence of prior accidents or complaints, and the high cost to the City of adding culverts and shoulders throughout the city, we cannot find manifest error in the trial court’s failure to find an unreasonable risk of harm. Accordingly, we need not further address the trial court’s alternative ruling on cause-in-fact.

_bV.

CONCLUSION

Based upon the foregoing, we affirm the judgment of the trial court. Costs are assessed against Kelli Fuselier.

AFFIRMED.


source: Caselaw Access Project

author: GARRETT, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Johnny Lee JACKSON, Appellant.
    No. 48,534-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 15, 2014.

      Douglas Harville, Louisiana Appellate Project, for Appellant.
    Charles Rex Scott, District Attorney, Jordan B. Bird, Catherine M. Estopinal, Assistant District Attorneys for Appellee.
    Before STEWART, DREW and GARRETT, JJ.
   GARRETT, J.

|,The defendant, Johnny Lee Jackson, pled guilty to attempted first degree robbery and was sentenced to 15 years at hard labor without benefit' of probation, parole, or suspension of sentence. He also pled guilty to second degree robbery and was sentenced to 20 years at hard labor. The sentences were ordered to be served concurrently. Jackson appealed, claiming that his sentences are excessive. We affirm his convictions and sentences.

FACTS

On July 13, 2012, shortly before noon, Jackson and another man entered the Regions Bank on Texas Street in downtown Shreveport. Jackson gave a teller a handwritten note demanding $475 and stating that he had a gun. The note was signed, “Johnny Jackson.” The teller stalled and Jackson, empty-handed, exited the bank with his accomplice.

Karleene Silvertooth was standing outside the bank. She had just cashed her Social Security disability check and was waiting for a taxicab. She noticed Jackson and another man exit the bank and walk across the street to a car where a third man was sitting in the driver’s seat. The men kept looking back toward the bank, which Ms. Silvertooth thought was unusual. She put her purse on her shoulder and held it tightly. Jackson and his accomplice came back toward the bank. Jackson then walked toward Ms. Silvertooth. He told her he had a gun, and demanded her purse. Ms. Silvertooth said, “[Hjell no,” and a struggle ensued. Jackson hit Ms. Silvertooth in the mouth with his elbow, knocking out two of her teeth. In the struggle, Jackson pushed her and she fell to the sidewalk, injuring her hip and arm. Jackson dragged her along the sidewalk until her purse strap |2broke. Jackson ran with the purse, but was quickly apprehended by citizens and police. Ms. Silver-tooth was taken to the hospital for treatment of her injuries.

Jackson was arrested and charged with attempted first degree robbery arising from his attempt to rob the bank, and second degree robbery for taking Ms. Sil-vertooth’s purse and causing her serious bodily injury. On September 13, 2012, Jackson pled guilty as charged to both offenses, with sentencing left up to the trial court. Jackson acknowledged that he understood that his sentencing exposure was 20 years at hard labor without benefits on count one and 40 years at hard labor on count two, and the sentences could be run consecutively.

Ms. Silvertooth was present at the guilty plea and related to the court what occurred during the second degree robbery. She testified that Jackson and his accomplice had seen her in the bank cashing a check. When Jackson accosted her outside he said, “I have a gun, bitch, I want your purse.” Ms. Silvertooth stated that her purse contained “all my ID, my Medicare card, my birth certificate, my Social Security card, my bank book, my debit card, I had everything in my purse.” Ms. Silvertooth stated that Jackson’s actions in injuring her teeth, hip, and arm were intentional. She was still undergoing physical therapy twice a week for her arm. Ms. Silvertooth told the court, “I’m not out for blood, but I do hope the court sentences him to enough time to where he can maybe get his head and his life and his heart straightened out because what he did to me was heartless.”

The sentencing hearing was continued to September 19, 2012. On that date, the bank teller Jackson attempted to rob appeared in court andjotestified about that offense. Following her testimony, Jackson made a statement to the court. He said that he wanted to apologize and that he had never done anything like this before in his life. He said he had been “drugging and drinking” the night before he committed the offenses.

In response to questions by the court, Jackson stated that he was 39 years old, had graduated from high school, and had attended college for two years, but did not graduate. Jackson grew up in Wisconsin and Mississippi. He had worked as a certified nurse assistant and had done janitorial and grocery work. Jackson was not married and had no children. He had been in Shreveport for approximately two months prior to these offenses. Jackson said that he had been addicted to drugs and alcohol for 16 years. He admitted that he had a prior felony conviction in Wisconsin.

The court ordered a presentence investigation (“PSI”) report because Jackson had spent a good bit of time out of state. However, on October 31, 2012, the trial court rescinded the order and instead requested that the local probation and parole office prepare a criminal history report on Jackson. This report was made available to counsel prior to sentencing.

Jackson appeared before the court for sentencing on December 4, 2012. Ms. Sil-vertooth was again present in court. The prosecutor noted that her right arm was now in a cast due to surgery and that additional medical expenses had been incurred by this victim. For the offense of attempted first degree robbery, the trial court ordered Jackson to serve 15 years at hard labor without benefit of probation, parole, or suspension of sentence. For the offense of second degree robbery, the trial court sentenced Jackson to serve 20 years at hard labor. The trial court ordered that the sentences be served | concurrently, even though, as two separate events, they could have been imposed consecutively. Jackson was given credit for time served.

Jackson filed a motion to reconsider his sentences, arguing they were excessive and that the trial court failed to consider “all other mitigating circumstances.” The motion was denied by the trial court and Jackson appealed.

EXCESSIVE SENTENCE

On appeal, Jackson contends that his sentences are excessive. He urges that he was prejudiced by the trial court action in cancelling the PSI because the report would have contained information favorable to him. He also claims that the trial court understated the mitigating factors and overstated his arrests. These arguments are without merit.

Legal Principles

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. State v. Elmore, 46,833 (La.App.2d Cir.12/14/11), 80 So.3d 731, writ denied, 2012-0006 (La.4/27/12), 86 So.3d 627. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the | ¡¡likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La. App.2d Cir.4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728. There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 2000-1467 (La.2/2/01), 783 So.2d 385; State v. Elmore, supra.

Second, a sentence violates La. Const. art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Elmore, supra. 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. Elmore, supra.

In selecting a proper sentence, a trial court is not limited to considering only a defendant’s prior convictions but may properly review all prior criminal activity. State v. Boyte, 42,763 (La.App.2d Cir.12/19/07), 973 So.2d 900, writ denied, 2008-0175 (La.6/20/08), 983 So.2d 1272; State v. Russell, 40,526 (La.App.2d Cir.1/27/05), 920 So.2d 866, writ denied, 2006-0478 (La.9/29/06), 937 So.2d 851. The sources of information relied upon by the sentencing court may include evidence usually excluded from the courtroom at the trial of guilt or innocence, e.g., hearsay and arrests, as well as conviction records. State v. Myles, 638 So.2d 218 (La.1994). These matters may be considered even in the absence of | fiproof the defendant committed the other offenses. State v. Estes, 42,093 (La.App.2d Cir.5/9/07), 956 So.2d 779, writ denied, 2007-1442 (La.4/4/08), 978 So.2d 324.

The trial court has wide discretion in the imposition of sentences within the statutory limits and such sentences should not be set aside as excessive in the absence of a manifest abuse of that discretion. State v. Williams, 2003-3514 (La.12/13/04), 893 So.2d 7. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Williams, supra.

Under La. R.S. 14:64.1 and La. R.S. 14:27, the maximum sentence for attempted first degree robbery is 20 years at hard labor without benefit of probation, parole, or suspension of sentence. The maximum sentence for second degree robbery is 40 years at hard labor. La. R.S. 14:64.4.

Discussion

The trial court did not err in rescinding the order for a PSI, instead requesting a criminal history report. La. C. Cr. P. art. 875 provides in pertinent part that if a defendant is convicted of a felony offense, the court may order the Department of Public Safety, division of probation and parole, to make a presen-tence investigation. See also La. R.S. 15:1132. However, such an investigation is not mandatory. State v. Hall, 42,767 (La. App.2d Cir.11/21/07), 969 So.2d 827. Such an investigation is more in the nature of an aid to the court, and not a right of the accused. State v. Howard, 262 La. 270, 263 So.2d 32 (1972); State ex rel. B.A.A., 44,494 (La.App.2d Cir.5/20/09), 13 So.3d 1183; State v. Walker, 2000-1349 (La.App. 4th [7Cir.5/16/01), 789 So.2d 632, writ denied, 2001-1785 (La.5/3/02), 815 So.2d 96; State v. Torres, 05-260 (La. App 5th Cir. 11/29/05), 919 So.2d 730.

The trial court allowed the parties to review the criminal history report and gave the prosecution and defense an opportunity to line up anyone they wanted to provide information to the court regarding sentencing. The court stated that regarding the defense, it had heard only from Jackson himself. Jackson was allowed to address the court in both September and December and provided the court with information about his background. When asked if there were any comments to the criminal history report, defense counsel stated that Jackson agreed that he had one felony conviction and asked the court to note that his other arrests were either not prosecuted or were misdemeanors. Jackson had the opportunity to present to the trial court any information favorable to him or to refute any information, contained in the criminal history report. He did not object to any of the information contained in the criminal history report. Jackson has failed to demonstrate that he was prejudiced by the trial court’s action in rescinding its order for a PSI.

The trial court complied with La. C. Cr. P. art. 894.1 in imposing the sentences in this case. The trial court pointed out that Jackson said he had a prior felony conviction. Jackson’s criminal history report showed 17 entries. The trial court meticulously went through those entries, noting that some charges were dismissed and some were reduced to misdemeanors. Jackson’s criminal history included a 1995 arrest in Georgia for robbery which was not prosecuted, and a 1997 arrest in Wisconsin for criminal property damage. He was arrested in Wisconsin in 1998 for robbery with use of force and | ¡¡injury by negligent use of a weapon. Jackson was allowed to plead guilty to misdemeanor theft and endangering the safety of others with a dangerous weapon, which was á misdemeanor. Jackson was given a suspended sentence and placed on supervised probation.

In 2001, in Wisconsin, Jackson had an arrest for indecent exposure and disorderly conduct. In 2002, Jackson was arrested for robbery with the use of force, which the court noted may have been related to the 1998 offense. Jackson was arrested for robbery in 2002, and there was no disposition of that charge. In 2003, Jackson pled guilty to disorderly conduct and was sentenced to 46 days in jail. Jackson was arrested in Wisconsin in 2003 for property damage, bail jumping, unlawful phone use, and threatening harm to others. He was convicted on those charges and sentenced to nine months in jail. The sentence was suspended and Jackson was placed on two years’ supervised probation which was later revoked. Jackson was arrested in Wisconsin in 2004 for theft as well as violation of a restraining order and criminal damage to property. He received a misdemeanor sentence. Jackson was arrested in Wisconsin in 2005 for vandalism, theft, and violation of a restraining order.

In 2006, Jackson pled guilty in Wisconsin to burglary of a building or dwelling, which is a felony. He was given a two-year hard labor sentence which was suspended and he was placed on four years’ supervised probation and ordered to enter a residential treatment facility. Jackson’s criminal history showed two entries for probation violations in 2009 and one in 2010, all related to the felony conviction.

|9Jackson.was arrested in Mississippi in 2010 on a fugitive warrant. In June 2012, Jackson was arrested for felony theft but pled guilty to misdemeanor theft in Shreveport and was sentenced to four days. On July 13, 2012, Jackson was arrested for the present offenses. The trial court noted that some of the entries on the criminal history were duplicates. However, the trial court stated that the numerous entries show that Jackson “had a lot of opportunities to get a hold of the issue which brings him here today.”

The trial court pointed out that, because Jackson has a prior felony conviction, the prosecution could have charged him as a multiple offender which would have greatly increased his sentencing exposure for the present offenses.

The trial court considered the sentencing guidelines set forth in La. C. Cr. P. art. 894.1. It found that there was an undue risk that during the period of a suspended sentence or probation, Jackson would commit another crime; that Jackson was in need of correctional treatment in a custodial environment that could be provided most effectively by commitment to the Department of Corrections; and a lesser sentence would deprecate the seriousness of Jackson’s crimes. The trial court also noted that Jackson’s offense involving Ms. Silvertooth showed deliberate cruelty to the victim. The trial court stated that, although Jackson said he was addicted to cocaine, he did not act under strong provocation.

As mitigating factors, the trial court noted that Jackson pled guilty as charged to these offenses, admitted his guilt, and expressed remorse. The trial court stated that, after weighing all the factors, Jackson committed two | ^serious violent felony crimes which warrant a significant hard labor punishment.

The sentences imposed in this case are not excessive. The trial court thoroughly examined Jackson’s criminal record and properly weighed the aggravating and mitigating circumstances. The trial court noted the serious injuries suffered by Ms. Silvertooth as a result of Jackson’s brutal attack upon her. Although the trial court could have imposed consecutive sentences, it chose to order that they be served concurrently. Jackson also received the benefit of not being charged as a multiple offender. The sentences are not grossly disproportionate to the severity of the offenses and do not shock the sense of justice. After reviewing the record and considering all of the factors in this case, we find that the trial court acted within its discretion in the sentences imposed upon Jackson.

CONCLUSION

For the reasons stated above, we affirm the convictions and sentences of the defendant, Johnny Lee Jackson.

AFFIRMED.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Paul Edward HOLMES, Appellant.
    No. 48,535-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 15, 2014.

      Louisiana Appellate Project, by Carey J. Ellis, III, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Assistant District Attorney, for Appellee.
    Before WILLIAMS, MOORE and GARRETT, JJ.
   MOORE, J.

hThe defendant, Paul Edward Holmes, pled guilty to two counts of video voyeurism involving juveniles in exchange for the state’s dismissal of the remaining 15 counts of video voyeurism charged in the bill of information and four counts of pornography involving juveniles. There was no agreement as to sentencing. Following a sentencing hearing, the court sentenced the defendant to five years at hard labor without benefit of probation, parole or suspension of sentence on each conviction, sentences to run consecutively, for a total of 10 years at hard labor. The defendant now appeals arguing that his sentences are excessive. For the following reasons, we affirm the convictions and sentences.

FACTS

The defendant served as a deacon in First Baptist Church of Haughton. From January 21 to 23, 2012, he hosted a weekend church function or retreat at his home in Haughton, Louisiana. The retreat was for young female church members. Seven girls attended, all under the age of 17. Prior to their arrival, the defendant had installed hidden video cameras in the bathroom which the girls would be using during the weekend.

During their stay, one of the girls discovered the camera and removed it. She alerted her parents. Several images of the girls had been recorded in various stages of undress and nudity. The authorities were notified.

A search warrant was issued for the residence, revealing pornographic material involving juveniles and adults. These images had been transferred to the defendant’s personal computer, which had internet access.

| gThe defendant was ultimately charged with a total of 21 counts. As stated above, he pled guilty to two counts of video voyeurism in exchange for dismissal of the remaining charges. A presentence investigation was ordered and a sentencing hearing was held wherein impact statements were presented to the court on behalf of the defendant and the victims. A report by Dr. Vigen stated that the defendant had been in treatment following discovery of the offenses. Dr. Vigen testified that the defendant would likely not re-offend, and that he suffered from severe depression.

Thereafter, the defendant was sentenced to two consecutive terms of five years at hard labor. This appeal followed.

DISCUSSION

Excessive Sentence

Defense counsel argues that the sentences totaling 10 years is excessive for this offender. The defendant was 55 years old at the time of the offenses and had no criminal history. He was active in his church, gainfully employed and a full-time husband and father. Defense counsel asserts that the sentences place undue hardship on the defendant’s wife and family, who have forgiven him and have chosen to support him through this traumatic time. Finally, he argues that the defendant’s likelihood of re-offending is slight and his chances for rehabilitation are great.

The defendant also submitted two pro se briefs raising several issues related to the prosecution and defense of his case which, he contends, present valid reasons why his sentence is constitutionally excessive. He contends that he was unfairly prejudiced by the prosecutor’s decision to levy multiple charges of video voyeurism against him when all charges involved a |3single incident. He contends that every time an individual victim walked by a camera, even when it involved the same victim, he was charged with an additional offense of video voyeurism. He submits that there should have been only one charge with multiple victims, or at most, one charge per victim. Instead, he contends, the prosecution charged him with as many counts as possible to prejudice him and lead the trial court to conclude that he received a favorable plea bargain. He further notes that he pled guilty to two counts of video voyeurism that involved the same incident and the same victim and no nudity. He believes he should have been convicted of only one charge rather than two.

In a similar vein, the defendant alleges that the bill of information charged him with multiple counts of pornography involving juveniles in violation of La. R.S. 14:81.1, arising solely out of nudity depicted in some of the videos. None of these videos, however, meet the criteria to constitute “pornography” as defined by the statute, which requires a “sexual performance” involving, more or less, actual or simulated sexual intercourse. He contends that he was prejudiced by these false charges.

The defendant contends that he has never had possession of or viewed the videos because the cameras were confiscated by one of the victims. He contends that the crime of video voyeurism was not completed as a result, and he should have been convicted of attempted video voyeurism, which would limit his sentencing exposure to half of the maximum for the offense, or five years.

The defendant argues that he was suffering from severe depression and stress such that he was unable to make rational decisions. He contends |4that his willingness to seek treatment demonstrates that he is unlikely to recommit this crime or other crimes. He contends that the lengthy sentence imposed will hamper his ability to obtain rehabilitation.

The defendant charges other anomalies: he contends that his prosecution was politically motivated because one of the victims is a niece of one of the judges in the district; he believes that the political nature of the case prejudiced him. He says that his attorney misrepresented to him that he would receive a total sentence of two to four years if he pled guilty, even though he was told his maximum exposure under the plea deal was 20 years. He contends his attorney did not provide any defense for him and failed to follow any avenues of defense suggested by him.

Comparing his own sentence to considerably shorter sentences imposed in several cases involving rape, incest and molestation of juveniles, the defendant argues that his offense involved no physical harm, and is considered a less serious offense under the sex offender registration scheme. He argues that the trial court failed to adequately consider Dr. Vigen’s report and the impact of the sentence on his family. He submits that a sentence of not more than four years is appropriate in his case.

The statutory sentencing range for the crime of video voyeurism of any child under the age of 17 is a fine not more than $10,000.00 and imprisonment at hard labor for not less than two years or more than ten years-without benefit of parole, probation or suspension of sentence. La. R.S. 14:283 B(4).

An appellate court utilizes a two-pronged test in reviewing a sentence for excessiveness. First, the record must show that the trial court took [.¡cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. 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, the court must determine whether the sentence is constitutionally excessive. A sentence violates La. Const. Art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is 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. Robinson, 40,983 (La.App. 2 Cir. 1/24/07), 948 So.2d 379.

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 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. The trial court is given wide discretion in the imposition of sentences within the statutory limits. Such a sentence will not be set aside as excessive absent a manifest abuse of that discretion. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7; State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330; State v. Diaz, 46,750 (La.App. 2 Cir. 12/14/11), 81 So.3d 228. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Williams, supra; State v. Free, 46,894 (La.App. 2 Cir. 1/25/12), 86 So.3d 29.

When two or more convictions arise from the same act or transaction, or constitute parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or 17all be served consecutively. La. C. Cr. P. art. 883. Concurrent sentences arising out of a single course of conduct are not mandatory. State v. Wallace, 44,880 (La.App. 2 Cir. 1/27/10), 31 So.3d 557; State v. Derry, 516 So.2d 1284 (La.App. 2 Cir.1987), writ denied, 521 So.2d 1168 (1988). It is within the court’s discretion to make sentences consecutive rather than concurrent. State v. Johnson, 42,323 (La.App. 2 Cir. 8/15/07), 962 So.2d 1126. A judgment directing that sentences arising from a single course of conduct be served consecutively requires particular justification from the evidence or record. When consecutive sentences are imposed, the court shall state the factors considered and its reasons for the consecutive terms. State v. Johnson, supra. Among the factors to be considered are the defendant’s criminal history, the gravity or dangerousness of the offense, the viciousness of the crimes, the harm done to the victims, whether the defendant poses an unusual risk of danger to the public, the potential for the defendant’s rehabilitation, and whether the defendant has received benefit from -a plea bargain. State v. Johnson, supra; State v. Barnett, 46,303 (La.App. 2 Cir. 5/18/11), 70 So.3d 1, writ denied, 2011-1612 (La.4/13/12), 85 So.3d 1239.

After review, we conclude that the trial court did not abuse its discretion by sentencing the defendant to two consecutive terms of five years at hard labor. The trial court adequately considered the circumstances of the offense, the information in the PSI report, and the factors set forth in La. C. Cr. P. art. 894.1 prior to imposing sentence. Insofar as Holmes was charged with 17 counts of video voyeurism and 4 counts of pornography involving juveniles, irrespective of the merits of his allegations that the multiplicity Land substance of these charges were prejudicial to him, he substantially benefitted from the plea agreement and the reduced sentence exposure. Additionally, a plea of guilty normally waives all nonjurisdictional defects in the proceedings prior to the plea unless specifically reserved. State v. Crosby, 338 So.2d 584 (La.1976); State v. Cooper, 43,809 (La.App. 2 Cir. 1/14/09), 2 So.3d 1172.

The trial judge carefully considered the defendant’s circumstances and mitigating factors presented by his family, including their statements regarding his good character and church leadership activities, as well as the statements from other church members and victims and their families. Considering the position of trust this defendant enjoyed with his fellow church families and their children and the betrayal of that trust as evidenced by statements from the victims’ families during sentencing, these midrange sentences, run consecutively, were well within the trial judge’s discretion. These sentences do not shock our sense of justice in this case, nor are they disproportionate to the severity of the offenses.

Error Patent Review

La. R.S. 14:283 B(4) requires that the trial court impose a fine of $10,000.00 when sentencing a person convicted of video voyeurism involving juveniles and the trial court failed to do so in this case. The sentence is illegally lenient.

La. C. Cr. P. art. 882 A provides that an illegally lenient sentence may be corrected at any time by an appellate court on review. State v. Sterling, |943,540 (La.App. 2 Cir. 9/17/08), 996 So.2d 445. However, as the language is permissive, this court may decline to impose the fíne. State v. Young, 46,575 (La.App. 2 Cir. 9/21/11), 73 So.3d 473, writ denied, 11-2304 (La.3/9/12), 84 So.3d 550; State v. Jamerson, 43,822 (La. App. 2 Cir. 1/14/09), 1 So.3d 827; State v. Griffin, 41,946 (La.App. 2 Cir. 5/2/07), 956 So.2d 199. Since this court is not required to take action, the state has not objected to the error and the defendant is not prejudiced in any way by the failure to impose the mandatory fine, we decline to impose the fine.

CONCLUSION

For the foregoing reasons, we affirm the defendant’s convictions and sentences.

CONVICTIONS AND SENTENCES AFFIRMED.

      . The defendant also had pending charges under two additional docket numbers which were dismissed as part of this plea agreement.

      . Some of the statements made during sentencing referenced other atrocious activities of the defendant. For example, he taped a camera to his shoe at church to photograph up the girls’ skirts.


author: DREW, J.

text:
    STATE of Louisiana, Plaintiff-Appellee v. BOBBY DARREN BOOMER BANKERS INSURANCE COMPANY (As Surety for Bobby Darren Boomer), Defendant-Appellant.
    No. 48,555-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 15, 2014.
    Kenneth J. Beck, Joy Grundmann Cres-send, Harvey, LA, for Appellant, Bankers Insurance Co.

      John Schuyler Marvin, District Attorney, John M. Lawrence, Robert Lane Pit-tard, Alexandra Aiello, Assistant District Attorneys, for Appellee, State of Louisiana.
    Donald Whitaker, for Appellee, Across the State Bail Bonds.
    Before DREW, MOORE and GARRETT, JJ.
   DREW, J.

_JjBobby Darren Boomer was arrested on two felony drug charges in Bossier Parish on May 18, 2011. His combined bail obligation was fixed at $40,000.

Two days later, Bankers Insurance Company, through its agent, “Across the State Bail Bonds,” agreed to act as Boomer’s surety, posting bonds securing his release and guaranteeing his appearance in court.

It is undisputed that Boomer:

• was given an initial court appearance date of July 19, 2011; but

• did not appear in court on that date or at any time since.

FACTS

We recite here a chronology of the relevant events of the last 30 months:

• May 20, 2011 — Boomer satisfied his bail obligation by posting bond and contractually agreed to be in court on July 19, 2011.

• July 19, 2011 — Boomer failed to appear. A bench warrant issued and a bond forfeiture was ordered, in compliance with La. C. Cr. P. art. 349.2. The forfeiture was in solido against Boomer and his surety.

[2* September 16, 2011 — The forfeiture judgment was signed and the notice of judgment was properly mailed pursuant to La. C. Cr. P. art. 349.3.

• March 8, 2012 — Bankers was granted 60 additional days to find Boomer.

• May 15, 2012 — A second 60-day extension was granted.

• July 6, 2012 — The court granted an ex parte motion and order to declare the bond forfeiture judgment to be due and payable.

• July 16, 2012 — A third 60-day extension was granted.

• October 1, 2012 — Bankers filed a motion to set aside the forfeiture.

• November 28, 2012 — The motion to set aside the forfeiture was denied.

• December 27, 2012 — Bankers filed a notice of appeal, relative to the trial court’s decision of November 28, 2012.

• July 24, 2013 — Pursuant to our instructions, the trial court signed a judgment denying Bankers additional time to find Boomer.

LLAW AND ARGUMENT

When a surety’s efforts to surrender a defendant are impeded by a fortuitous event, a surety can apply for an extension of time. To define a fortuitous event making performance impossible, Bankers cites La. R.S. 15:83(0(1) and (2), which directs that a surety will not be liable for failure to perform if the failure is caused by a fortuitous event making performance impossible as long as the event is one that could not have been reasonably foreseen by the surety.

Bankers also compares its situation with another surety who was unable to produce the defendant because of the actions of other | ¿governmental agencies.

In this case, Bankers puts forth cloudy theories that perhaps Boomer was in protective custody of the DEA and working with the State of New York. A previous theory had been that he was being pursued by the DEA for drug crimes.

This record contains no proof that Boomer is in the prison of another jurisdiction and only the hint of a suggestion that he may be in protective custody.

At the hearing on November 28, 2012, Bankers and the State stipulated that, had the two Bankers witnesses testified, they would have recited oral hearsay that Boomer was in protective custody. The trial court was dissuaded by this testimony.

Bankers had 180 days, plus three 60-day extensions, during which to return Boomer to court, which would have satisfied its suretyship obligations.

REASONING

We agree with Bankers that the purpose of bail bonds is not to enrich |fithe State and that bond forfeitures are not favored.

A deal, however, is a deal.

Bankers presumably received a signification commission for agreeing to post bond for a New York resident who faced serious Louisiana drug charges. After all, that is their business.

It cannot have been a surprise that Boomer might return to New York or that he might be amenable to cutting a deal with other law enforcement agencies. The trial court granted three extensions before agreeing with the State that the time for surrendering Boomer had long since expired.

Boomer agreed to appear in court. For money, Bankers agreed to act as his surety and guarantee his court appearance. After 29 months, Boomer is still a no-show. It is past time for Bankers to comply with the surety obligation it undertook.

On the weak testimonial showing by Bankers, the trial court made no error in denying Bankers any additional time.

DECREE

The trial court’s judgment in favor of the State of Louisiana and against Bobby Darren Boomer, principal, and Bankers Insurance Company, surety, is affirmed, at the cost of Bankers Insurance Company.

AFFIRMED.

      . La.C.Cr.P. Art. 344. Right to notice of time and place of defendant’s required appearance
      A.When a bail bond fixes an appearance date, the defendant appears as ordered, and notice of the next appearance date is given to the defendant, no additional notice of that appearance date is required to be given to the defendant or the personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety.

      . La.C.Cr.P. Art. 346. Court order for arrest of defendant
      The court in which the defendant is held to answer may issue a warrant for the arrest and commitment of the defendant who is at large on bail when any of the following are true:
      (1) There has been a breach of the bail undertaking.
      La.C.Cr.P. Art 349.1 Failure to appear; issuance of arrest warrant
      If at the time fixed for appearance the defendant fails to appear as required by the court, the judge may, or shall on motion of the prosecuting attorney, issue a warrant for the arrest of the defendant.

      . Art. 349.2. Proof necessary at bond forfeiture hearing
      A. Upon motion of the prosecuting attorney, and upon proof of the bail contract, the power of attorney if any, notice to the defendant and the surety as required by Article 344, and the defendant’s failure to appear as required, a bond shall be forfeited and a judgment of bond forfeiture shall be signed.

      .La.C.Cr.P. Art. 349 Forfeiture procedure
      A. A bond that secures the appearance of a person before a court in the state of Louisiana shall be forfeited and collected as provided by law.
      B. The court shall immediately issue a warrant for the arrest of the person failing to appear and order a judgment decreeing the forfeiture of the bond and against the defendant and his sureties in solido for the full amount of the bond.
      C. A bail agent who represents the surety as an insurance agent shall not be solidarily liable for the forfeiture of a bond against the defendant and his sureties. In the event that a bail agent who represents the surety as an insurance agent is held solidarily liable, then that bail agent may request to be released from the judgment, and the release of the bail agent shall have no effect on the judgment decreeing the forfeiture of the bond against the defendant and his sureties.

      . This motion was presented and the order signed on July 6, 2012, 280 days after the date of mailing the notice of the signing of the judgment of bond forfeiture (September 16, 2011), in full compliance with La. C. Cr. P. art 349.7. A. (1) Enforcement of judgment.

      . In brief. Bankers maintains that the relief actually sought was another extension of time.

      . The dispositive portion of the appealed judgment merely states: "IT IS ORDERED, ADJUDGED AND DECREED that the surety’s request for additional time to surrender the Defendant herein and/or for relief from the Judgment of Bond Forfeiture is DENIED.”

      . La. C. Cr. P. art. 345, Surrender of defendant, provides, in pertinent part:
      I. In addition to and notwithstanding any other provision of law, a surety may seek an extension of time to surrender a defendant, or have the judgment of bond forfeiture set aside by filing a motion in the criminal court of record and after contradictory hearing with the district attorney and with proof satisfactory to the court that a fortuitous event has occurred and that the event has made it impossible to perform as required under the contract. A motion seeking relief pursuant to this Paragraph must be filed within three hundred sixty-six days from the date of the fortuitous event, ex-eluding legal delays. The court in its discretion may do any of the following:
      (1) Set aside the forfeiture or grant the nullity.
      (2) Grant an extension of up to three hundred sixty-six days from the expiration of the initial time period allowed for the surrender of the defendant from the date of the mailing of proper notice of bond forfeiture. If the court grants that extension, judicial interest shall be suspended during that additional time period.
      (3) Deny the relief.

      .La. R.S. 15:83. Bail bond contracts
      A. As criminal bail bonds are contractual and civil in nature, their creation and enforcement are governed both by the laws applicable to civil contracts and by the laws set forth in the statutes and code articles governing criminal procedure.
      B. The surety, when entering into a criminal bail bond obligation, must consider the risks of his undertaking and assume those risks reasonably foreseeable.
      C.(l) The surety is not liable for his failure to perform when it is caused by a fortuitous event that makes performance impossible. A surety is, however, liable for his failure to perform when he has assumed the risk of such a fortuitous event.
      (2) A fortuitous event is one that, at the time the contract was made, could not have been reasonably foreseen by the surety.

      . In State v. De la Rosa, 43,696 (La.App.2d Cir. 10/22/08), 997 So.2d 165, this court held it was not a fortuitous event exempting the surety when a defendant visited his family in Mexico and was unable to return to the United States. We reasoned that the risk that the defendant would leave the country was foreseeable.

      . In State v. Allen, 2011-0693 (La.App.4th Cir.8/8/12), 98 So.3d 926, writ denied, 2012-1995 (La.4/1/13), 110 So.3d 138, our sister circuit affirmed the trial court’s granting a surety an extension because it was likely Allen was in federal protective custody, since he was an unapprehended, unindicted coconspir-ator in a federal drug charge. We further note that our facts provide less support for the position of the bondsmen, as compared with Allen.

      . Besides the stipulated hearsay testimony, Bankers had previously produced precious little in support of its position: an undated handwritten letter stating that the N.Y. Dept. of Corrections and Community Supervision was actively engaged in Boomer’s apprehension; an undated letter from a recovery task force indicating that Boomer’s apprehension was forthcoming; and a letter from another bonding company reporting that Boomer had been tracked to Brooklyn, New York — smoke and mirrors.

      . See La. C. Cr. P. art. 349.9(A)(2) and La. C. Cr. P. art. 345(D).

      . See La. C. Cr. P. art. 349.8(A)(1).


text:
    Joey HUNTER, Plaintiff-Appellee v. USAGENCIES INSURANCE COMPANY, Defendant-Appellant.
    No. 48,656-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 15, 2014.

      Neal Law Firm by: Mark J. Neal, for Appellant.
    C. Bryan Racer, for Appellee.
    Before BROWN, CARAWAY and MOORE, JJ.
   MOORE, J.

h USAgencies Casualty Insurance Company appeals a judgment ordering it to pay Joey Hunter $8,905.07, the salvage value of his truck, after an accident in which the truck was a total loss and USA-gencies paid off Hunter’s mortgage lender in accord with the insurance policy. We reverse and render.

Factual and Procedural Background

Hunter, a resident of Monroe, bought a new Toyota Tundra in February 2009. Although he placed the title and took out the loan in his own name, he went to the USAgencies office and added the Tundra to an existing personal auto policy on which his wife, Bathsheba, was the only named insured. At the lender’s request, Hunter also purchased “gap” insurance to pay off the full mortgage if the vehicle was worth less than the loan balance at the time of loss.

In early July 2009, en route to his construction job in Beaumont, Texas, Hunter fell asleep at the wheel, crossed the center-line and collided with a truck towing a horse trailer. The Tundra was badly damaged.

Hunter testified that he promptly called USAgencies to report the accident, but he never heard back from them or received any documents concerning the claim. He also testified that by the time of the accident, he and Bathsheba had separated and she relocated to Houston, Texas, but he did not advise USAgencies of this change.

DMA, an adjuster retained by USAgen-cies, determined that the Tundra was a total loss. In late August 2009, DMA sent a claim packet to Bathsheba at her Houston address. This included estimates of the truck’s pre-accident and salvage value, and a Texas DMV power of attorney granting USAgencies authority to sell the salvage. Someone — it was never |2disclosed who — signed Hunter’s name to the power of attorney, which was not notarized or witnessed. Nevertheless, acting on it, USAgencies sold the salvage for $8,905.07 and paid the mortgage lender the appraised value of the Tundra, less Hunter’s $500 deductible, a total of $24,525.00. The “gap” insurer paid off the balance of the loan, as the lender released the title to USAgencies.

Hunter testified that after months of frustrating efforts to contact USAgencies, he finally got through and somebody told him that they had settléd the claim in full and sold the salvage. Hunter was indignant, insisting that he never authorized the sale and would have wanted to keep the salvage himself.

Hunter filed this suit in Monroe City Court in June 2010, alleging that USAgen-cies used a forged power of attorney to sell the salvage. He demanded the lost value of the salvage, lost use, consequential damages, and penalties and attorney fees for bad faith failure to settle the claim.

USAgencies answered with denials and filed a third-party demand against Hunter’s ex-wife, Bathsheba. Mail to her Houston address, however, was returned “unclaimed” and “unable to forward”; she did not participate in the litigation. On the merits, USAgencies argued that Hunter was not the policyholder; Bathsheba was, and the company complied with all its obligations by handling the claim through her.

Action of the Trial Court

The matter was tried in September 2012. Hunter testified as outlined |sabove. This was his first time to buy a vehicle on his own, and he claimed he did not understand the significance of adding the truck to an existing policy on which he was not the policyholder; he was more interested in getting collision and “gap” coverage. He was in a great hurry when he visited USAgencies’ office, as he had to leave early the next day for his shift in Beaumont. He was not aware if Bathsheba went to the USAgencies office the next morning to complete the paperwork on the policy, but he did not deny that her initials and signature appeared on the declarations page and UM rejection form. He admitted that he never advised USAgen-cies that Bathsheba had moved to Houston. He was adamant that he did not authorize the sale of the salvage, and he never would have done so because he felt he could repair it. He showed that the power of attorney was not notarized or witnessed. He demanded the value of the salvage, $8,905.07, and 3$ months’ lost use of the truck. He apparently abandoned his claim for damages arising from mishandling the insurance claim.

The only other witness was Mark Ack-ley, a litigation specialist for one of USA-gencies’ subsidiaries and a longtime adjuster, called by Hunter as an adverse witness. Ackley stated that Hunter was the title and registered owner of the truck, that the lender actually held the title, and that as a matter of practice nobody can sell a vehicle without the owner’s signature, which was not present on this power of attorney. He testified, however, that this power of attorney was a Texas document and perfectly legal under Texas law. On cross-examination, Ackley added that US-Agencies had paid off the loan under its collision coverage (as well as settling the liability claim with the driver into whom Hunter collided), so Hunter had sustained no actual |4loss. He also testified that under the policy, if the vehicle is a total loss, the salvage becomes the property of the insurer, so Hunter had to transfer the title anyway. In his 33 years of experience, Ackley never knew of a lender that allowed an insured to keep the wrecked car in lieu of payment from the insurer. Finally, Ackley testified that USAgencies dealt exclusively with Bathsheba because she was the named insured.

After taking the case under advisement, the city court issued reasons for judgment finding that under La. R.S. 32:705, any transfer of title of a motor vehicle must be before a notary and two witnesses; the instant power of attorney lacked these formalities, and Hunter never gave anybody authority to assign his title. “The mere act of insuring a vehicle does not ipso facto equate to ownership and the authority to devolve title to the vehicle.” The court found “nothing in the record via testimony, exhibits, or affidavits that the lien holder would not have allowed Plaintiff to retain title to the vehicle!,]” and rejected Ackley’s “pure speculation” that this lender, Federal Employees Credit Union, would not have let Joey keep the salvage. The court awarded the salvage value, $8,905.07, and asked Hunter to provide “specific statutory authority” for an award of attorney fees. Apparently no such authority was provided, as the court later rendered judgment for only $8,905.07, plus costs and legal interest. The judgment is silent as to the claims for lost use or attorney fees.

USAgencies took this appeal, raising four assignments of error.

Discussion

15An insurance policy is a contract that constitutes the law between the parties. La. C.C. art.1983; Marcus v. Hanover Ins. Co., 98-2040 (La.6/4/99), 740 So.2d 603; Clarendon Nat’l Ins. Co. v. Jeansonne & Remondet, 37,765 (La.App. 2 Cir. 10/23/03), 859 So.2d 877, writ denied, 2004-0002 (La.3/12/04), 869 So.2d 826. If the wording of the policy is clear and expresses the intent of the parties, the policy must be enforced as written. La. C.C. art.2046; Marcus v. Hanover Ins. Co., supra; Sibley v. Deer Valley Homebuilders, 45,064 (La.App. 2 Cir. 3/3/10), 32 So.3d 1034. Absent conflict with statutory provisions or public policy, insurers are entitled to limit their liability and to impose conditions on the obligations they contractually assume. Marcus v. Hanover Ins. Co., supra; Bamert v. Johnson, 40,-066 (La.App. 2 Cir. 8/17/05), 909 So.2d 705.

The USAgencies “Louisiana Personal Auto Policy” contains the following provision on page 11:

Payment of Loss
We may, at our option, elect to pay for the cost of repair of property damage any auto insured under Parts D or E [collision coverage] or the cost of replacement of the damaged or stolen property. * * * We may, at our option, keep all or part of any recovered theft loss or other salvaged property for which you have otherwise been paid or compensated. If the auto is subject to a lien or a person or entity other than you had an ownership interest in the auto at the time of the accident or loss, such person or entity may be included by us as a payee on any payment.

This provision plainly allows USA-gencies, at its option, to keep all or part of the salvaged property for which Hunter or his mortgage lender was paid or compensated. The record shows that USAgencies did indeed pay or | ficompensate the mortgage lender as required by the policy, and that USAgencies exercised its option to keep the salvage. With these policy provisions satisfied, Hunter had no right to retain the salvage. The city court’s conclusion to the contrary is legally wrong and is hereby reversed.

With this conclusion, further discussion is not really necessary, but we would note that Hunter’s adverse witness, Mark Ack-ley, cogently described this policy provision and the economics of declaring a vehicle a total loss. He testified that in his 33 years’ experience adjusting claims, no mortgage lender had ever agreed to let the insured retain the salvage after the insurer paid for it. In light of the clear policy provision and the allocation of risk inherent in the insuring agreement, the city court was manifestly erroneous to reject Ackley’s testimony.

On this record, the fact that USA-gencies used a power of attorney that lacked a notary and witnesses is of no consequence. Under the policy’s “Payment of Loss” provision, Hunter was required to assign the title once USAgencies paid the claim and elected to keep the salvage. USAgencies correctly shows that the title transfer law, La. R.S. 32:705, is chiefly intended to protect innocent purchasers. Ballard v. McBryde, 275 So.2d 464 (La.App. 2 Cir.1973). When no innocent purchaser is involved, failure to comply with the statute does not void the transfer. Hyster Co. v. Reeves, 541 So.2d 363 (La.App. 2 Cir.), writ denied, 546 So.2d 1215 (1989); Gooch v. Dick Bohn Ford Inc., 140 So.2d 903 (La.App. 4 Cir. 1962). Such is the case here; Hunter was not prejudiced by the apparent failure to comply with R.S. 32:705. We also note that the named insured, Bathsheba, was domiciled in Texas, the accident occurred in Texas, the 17salvage was stored in Texas, and the ultimate sale of salvage occurred in Texas. On these facts, USAgen-cies was warranted in treating the sale as subject to Texas law, under which the power of attorney was valid at the time of this transfer.

Conclusion

For the reasons expressed, the judgment of the city court is reversed and judgment is rendered herein dismissing the case. All costs are to be paid by Joey Hunter.

REVERSED AND RENDERED.

      . USAgencies initially filed a peremptory exception of nonjoinder, urging that the matter could not be fully adjudicated without Bathsheba’s presence. The record shows no ruling on this exception, and it was made moot by USAgencies' third-party action against her.

      . The court also wrote, incongruously, “Any damages for loss of use were clearly established and are therefore denied.”

      . Boldface type in the original, indicating terms defined in the policy, has been omitted.

      . Texas Transp. C. § 501.075 provided, "A document necessary to transfer ownership of a motor vehicle is valid without regard to whether the document is executed before a notary public.” This section was repealed effective January 1, 2012.


author: CARAWAY, J.

text:
    STATE of Louisiana, Appellee v. Ronnie Jean OSBORNE, Appellant.
    No. 48,662-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 15, 2014.

      Teresa Culpepper Carroll, Jonesboro, LA, for Appellant.
    Jerry L. Jones, District Attorney, G. Mennon Campbell, Assistant District Attorney, for Appellee.
    Before BROWN, CARAWAY and MOORE, JJ.
   CARAWAY, J.

|, Ronnie Jean Osborne pled guilty to aggravated second degree battery and was subsequently sentenced to 15 years at hard labor. Osborne appeals, arguing that her sentence is excessive. We affirm the defendant’s conviction and sentence.

Facts

On August 31, 2012, Ronnie Jean Osborne and her boyfriend, William Long, were drinking beer at their residence when an argument and physical altercation ensued. After the altercation, Osborne got into Long’s vehicle intending to go to another location. Long positioned himself in the roadway in an attempt to recover his vehicle from Osborne and waved his hands in an effort to get her to stop. As Osborne approached Long, witnesses observed her slow the vehicle down, as if she were going to stop, but then rapidly accelerate, striking Long. Eyewitnesses also reported that Osborne never attempted to stop, slow down, or swerve to avoid striking Long. Long was trapped under the vehicle, and he was dragged for approximately 400 feet. Osborne left the area. Long was taken to the hospital with life-threatening injuries, and he ultimately lost his left arm and sustained severe injuries to his right arm and left leg. Osborne was located and arrested later that night.

On October 25, 2012, Osborne was initially charged by bill of indictment with attempted manslaughter; the bill was amended to aggravated second degree battery on December 19, 2012.

On January 17, 2013, pursuant to a plea agreement in which the state agreed not to file a habitual offender bill of information, Osborne pled guilty 12to aggravated second degree battery. The trial court ordered a presentence investigation report (“PSI”).

On March 26, 2013, the sentencing hearing was conducted. Defense counsel noted that the victim was convicted of domestic violence against Osborne on two prior occasions and argued that the previous trial judge in the case was under the impression that Long precipitated the event that led to this incident. The state conceded this fact as one of the reasons that had led to amendment of the bill in addition to the previous judge’s suggestion that the charges be reduced. The sentencing court agreed that Long’s convictions had been factored into the plea agreement, which along with the state’s agreement to forgo habitual offender proceedings, afforded Osborne reduced charges and sentencing exposure.

Prior to sentencing Osborne, the trial court reviewed the facts of this case and the PSI, including Osborne’s social and criminal history. The court noted that Osborne was 45 years old, originally charged with attempted manslaughter and failed to submit a statement to police regarding the events. The court also considered that the victim had indicated that he was satisfied that Osborne receive no more than a 15-year sentence.

Thereafter, the court reviewed Osborne’s lengthy criminal history which includes the following:

1) October 2, 1985 charge of theft. Osborne pled guilty to unauthorized use of a movable on January 15,1986.
2) January 29, 1986 guilty plea to trespassing.
3) November 6, 1987 arrest for operating a vehicle while intoxicated, which was dismissed pursuant to a plea agreement.
|a4) September 8, 1989 charge for conspiracy to commit second degree murder when Osborne conspired with her husband to kill their landlord because they could not afford to pay the rent. The landlord was beaten to death with a shovel. As part of a plea agreement, Osborne agreed to testify against her husband in exchange for a reduced charge of manslaughter and a 10-year sentence.
5) September 22, 2001 arrest for DWI-first offense, no driver’s license, and careless operation, but these charges were later dismissed as part of a plea agreement.
6) February 11, 2003 guilty plea to unauthorized use of a movable, for which Osborne received a six-month suspended sentence with two years’ probation, which was later revoked.
7) February 11, 2003 guilty plea to theft. Osborne was sentenced to pay a fine and a six-month suspended sentence, with two years of probation, which was later revoked.
8) July 11, 2003 guilty plea to theft; sentenced to time served.
9) October 21, 2003 guilty plea to simple possession of marijuana. Charges for possession of drug paraphernalia and resisting an officer were dismissed. Osborne was sentenced to a fine and a 90-day suspended sentence, with 24 months of supervised probation, which was later revoked.
10) October 21, 2003 guilty plea to possession of marijuana.
11) January 3, 2007 guilty plea to traffic violations. Osborne received a sentence of 20 days in jail.
12) September 6, 2006 guilty plea to misdemeanor unauthorized use of a movable for which Osborne was sentenced to ’ pay a fine.
IB) March 20, 2007 guilty plea to possession of drug paraphernalia. Osborne was sentenced to time served.
14) January 3, 2007 guilty plea to contempt of court for failure to appear; sentenced to 20 days in jail. Second count of contempt of court was dismissed.
15) September 18, 2007 guilty plea to attempted theft for which Osborne was sentenced to pay a fine and serve 20 days in jail with credit for time served.
16) January 28, 2009 arrest for disturbing the peace, intoxication and possession of drugs without a prescription. On June 17, 2009, | ¿Osborne was sentenced to a fine, five years’ hard labor, suspended, with three years of supervised probation which was later revoked.
17) April 30, 2009 arrest for disturbing the peace and two counts of resisting an officer. Osborne pled guilty to disturbing the peace and was sentenced to pay a fine on May 10, 2009. The remaining two counts were dismissed.
18) April 11, 2012 guilty plea to improper harassing phone calls; sentenced to six months in jail.

Further, the trial court considered the guidelines set forth in La.C.Cr.P. art. 894.1. As an aggravating factor, the court observed that Osborne’s conduct during the commission of the offense manifested deliberate cruelty and resulted in significant permanent injury to the victim. Further, the court stated that it was unaware of any mitigating factors. The court considered that the victim was convicted on two prior occasions of battering Osborne, but because this was taken into account in the plea agreement, it did not factor into the court’s consideration of the sentence. The court stated that there is undue risk that during a period of suspended sentence Osborne would commit another crime, noting that on every occasion she was placed on probation, it was revoked. The court concluded that Osborne was in need of correctional treatment and that any lesser sentence would deprecate the seriousness of the offense. The court noted that Osborne received leniency in the plea agreement and that she is a third-felony offender.

Considering the above, the trial court sentenced Osborne to 15 years at hard labor. Osborne requested that the sentence be imposed concurrent to her parole revocation sentence. The court denied the request and ordered the sentence to run consecutively to any other sentence that Osborne was | ¡¡serving, given the fact that this was her third felony offense and that it is a crime of violence. The defense did not file a motion to reconsider Osborne’s sentence. This appeal followed.

Discussion

Osborne contends that the maximum 15-year sentence is excessive, punitive and will not achieve any goals of rehabilitating her. She argues that the sentence is excessive both as to its length and consecutive nature and is not supported by the record, particularly considering the mitigating factors of her use of alcohol prior to the offense, her failure to contemplate the consequences of her conduct and the victim’s wishes.

The offense of aggravated second degree battery provides for a fine of not more than $10,000 or imprisonment, with or without hard labor, for not more than 15 years, or both. La. R.S. 14:34.5.

Ordinarily, appellate review of sentences for excessiveness is a two-step process, the first being an analysis of the district court’s compliance with the sentencing guidelines of La.C.Cr.P. art. 894.1. However, when a defendant fails to file a motion to reconsider sentence in the lower court, appellate review is limited to the second step, an analysis of the sentence for constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Williams, 45,755 (La.App.2d Cir.11/3/10), 54 So.3d 1129, writs denied, 10-2682, 10-2706 (La.4/25/11), 62 So.3d 85, 89.

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 | fipurposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Lobato, 603 So.2d 739 (La.1992). A sentence is deemed grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice or makes no reasonable contribution to acceptable penal goals. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158. Whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. State v. Teston, 47,651 (La. App.2d Cir.1/16/13), 109 So.3d 452, writ denied, 13-0354 (La.9/27/13), 123 So.3d 180.

The sentencing court has wide discretion in imposing a sentence within statutory limits, and such a sentence will not be set aside as excessive in the absence of manifest abuse of that discretion. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7; State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330; State v. Duncan, 47,697 (La.App.2d Cir.1/16/13), 109 So.3d 921, writ denied, 13-0324 (La.9/13/13), 120 So.3d 280. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. Id.

17As a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. Cozzetto, 07-2031 (La.2/15/08), 974 So.2d 665; State v. Hogan, 47,993 (La. App.2d Cir.4/10/13), 113 So.3d 1195, writ denied, 13-0977 (La.11/8/13), 125 So.3d 445; State v. Duncan, supra. However, in cases where the defendant has pled guilty to an offense that does not adequately describe his conduct, the general rule does not apply, and the trial court has great discretion in imposing the maximum sentence possible for the pled offense. This is particularly true in cases where a significant reduction in potential exposure to confinement has been obtained through a plea bargain and where the offense involves violence upon a victim. State v. Hogan, supra; State v. Germany, 43,239 (La.App.2d Cir.4/30/08), 981 So.2d 792.

Prior to imposing Osborne’s sentence, the trial court adequately considered the circumstances of the offense and the information in the PSI. Thus, even though Osborne is entitled to review of her sentence for a bare excessiveness claim, we find adequate Article 894.1 compliance.

Moreover, we find the chosen sentence, even with the consecutive condition, to be adequately tailored to this defendant. The deliberate cruelty shown by Osborne to the victim in this case qualifies her as the worst possible type of offender. Any claimed justification (fear for her safety) for Osborne’s actions was removed by her protection inside the moving vehicle. Despite this fact, she chose to ignore the opportunity to bypass the victim and instead accelerated the vehicle. Osborne received substantial leniency from the plea agreement, which took the victim’s actions into account and forfeited habitual offender proceedings thereby reducing sentencing | sexposure from 40 years to 15 years. Thus, considering the circumstances of the offense, Osborne’s criminal history, and the benefit she received from the plea agreement, the sentence imposed by the trial court does not shock the sense of justice, nor is it grossly disproportionate to the severity of the offense. This assignment of error is without merit.

Decree

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

AFFIRMED.

      . Osborne contends that with the consecutive sentencing, she will be subject to 20 years in prison, contrary to the victim’s wishes.