author: AMY, Judge.

text:
    STATE of Louisiana v. Kenneth G. BILLINGSLEY.
    No. 13-11.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 9, 2013.

      John F. DeRosier, District Attorney, Karen C. McLellan, Assistant District Attorney, Lake Charles, LA, for Appellee, State of Louisiana.
    Edward K. Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Kenneth G. Billingsley.
    Kenneth G. Billingsley, Louisiana State Penitentiary, Angola, LA, In Proper Person.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and PHYLLIS M. KEATY, Judges.
   AMY, Judge.

| ,The defendant in this case was convicted of armed robbery and armed robbery with a firearm, and subsequently adjudicated a second felony offender. A panel of this court affirmed the defendant’s conviction and habitual offender determination, but vacated the defendant’s sentence as indeterminate and remanded the matter for resentencing. The trial court resen-tenced the defendant to seventy years at hard labor as a habitual offender and imposed a five-year sentence for armed robbery with a firearm. Both sentences were to be served without benefit of probation, parole, or suspension of sentence and to be served consecutively to each other and to the defendant’s sentence for a probation violation. The defendant appeals. For the following reasons, we affirm.

Factual and Procedural Background

A jury found the defendant, Kenneth G. Billingsley, guilty of armed robbery, a violation of La.R.S. 14:64, and armed robbery with a firearm, a violation of La.R.S. 14:64.3. The facts of the defendant’s crime were set forth in State v. Billingsley, 11-790, pp. 2-4 (La.App. 3 Cir. 3/14/12), 86 So.3d 865, 867-68 (Billingsley I), writ denied, 12-821 (La.9/28/12), 98 So.3d 827:

On the evening of April 9, 2008, the victims were sitting in Ms. [Robin] De-cote’s[ ] truck at the Goosport Recreation Center. They had just left work and Ms. [Stephanie] Foreman wanted to smoke a cigarette before she was dropped off at home. As they were talking, they noticed a group in the playground of the recreation center, three men and a woman. Two of the men approached the truck and attempted to engage the two victims in small talk. Ms. Decote politely informed the men they were not interested in talking with them. The men, together with the other two people, left the playground.
| gHowever, within a few minutes the two men returned to the truck. Defendant approached the passenger side where Ms. Foreman sat, put a gun to her head, and demanded money. At the same time, the other robber, Mr. [Brian] Paul, put a gun to Ms. Decote’s head and demanded money. Ms. Foreman gave Defendant her purse, which contained about ninety dollars, and he ran off. Ms. Decote was able to convince Mr. Paul she did not have any money, and he ran off. Although Ms. Decote did not get a good look at the second robber, she saw a very distinctive tattoo across the back of his hand: “Eddie.”
After the two men ran away, Ms. De-cote and Ms. Foreman attempted to follow the second robber. While they did not find Mr. Paul, they came upon the two other persons who were in the park with Defendant and Mr. Paul. Ms. De-cote got out of the truck and talked to the young man, got his name, and convinced him to let her take him home. During this time, Ms. Foreman called the police, and after they dropped the boy off, they returned to Goosport Recreation Center and met the police. They then went to the police station and gave statements.
Gregory Single ... with the Lake Charles Police Department, was on duty the night of the robbery. He met with the victims and got the name of the young man Ms. Decote had taken home after the robbery. He went to the young man’s house and spoke with him and his mother. The young man said he was in the playground with a man he only knew as “K.J.” The boy and his mother provided the information which led to Defendant. Officer Single obtained Defendant’s address and went to his house, which was just a few blocks from the recreation center. There, the officer was told by Defendant’s mother that he was in bed, sleeping. However, she gave the officer permission to search the house. A search of Defendant’s room located two old guns tucked behind a dresser and a gun under the mattress. The officer also found eighty-three dollars tucked into a shoe in Defendant’s bedroom. The next day, Ms. Foreman was shown a photographic lineup, and she positively identified Defendant as the man who held a gun to her head and took her purse the previous night.
Mr. Paul confessed to the police that he was the man who attempted to rob Ms. Decote, and he named Defendant as the one who robbed Ms. Foreman at gunpoint. However, at Defendant’s trial, Mr. Paul adamantly insisted that he could not remember the person who was with him the night Ms. Decote and Ms. Foreman were robbed. He did not remember ever telling the police that Defendant was other robber. Mr. Paul had pled guilty to robbing Ms. Decote and was sentenced prior to Defendant’s trial.
Finally, Sharonda Caldwell, Defendant’s mother, testified. She stated that Defendant’s nickname was “K.J.,” short for Kenneth, Junior. She further stated that he had been out with his girlfriend, 13Jasmine Williams, the night of the robbery. She said the girlfriend dropped him off at home around ten o’clock that night and he had gone straight to bed.

Subsequent to his conviction for armed robbery and armed robbery with a firearm, the State instituted habitual offender proceedings against the defendant. The trial court adjudicated the defendant as a second felony offender and imposed a sentence of seventy-five years at hard labor, without the benefit of probation, parole, or suspension of sentence.

The defendant appealed. A panel of this court affirmed the defendant’s underlying conviction in Billingsley I. However, in State v. Billingsley, 11-1425, p. 2 (La.App. 3 Cir. 3/14/12), 86 So.3d 872, 873 (Billingsley II), which addressed the defendant’s habitual offender proceedings, the panel found that the “trial court failed to impose a separate five-year sentence to run consecutively to the habitual offender sentence, rendering Defendant’s sentence indeterminate.” The panel vacated the defendant’s sentence and remanded the matter to the trial court for resentencing.

At the resentencing hearing, the trial court imposed a habitual offender sentence of seventy years at hard labor without benefit of probation, parole, or suspension of sentence. For the defendant’s armed robbery with a firearm conviction, the trial court sentenced the defendant to five years at hard labor without benefit of probation, parole, or suspension of sentence, to be served consecutively to the defendant’s habitual offender sentence and his probation violation.

UThe defendant appeals, asserting that his sentence is unconstitutionally excessive.

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, all criminal appeals are reviewed for errors patent on the face of the record. Such a review was performed in Billingsley II, 86 So.3d 872, and we note no additional errors patent here.

Excessive Sentence — Aggravating and Mitigating Factors

The defendant asserts that his sentence is unconstitutionally excessive. As part of his argument, he contends that the trial court failed to consider the sentencing factors delineated in La.Code Crim.P. art. 894.1, including mitigating factors, and that the trial court improperly considered evidence of other crimes for which the defendant was charged but not convicted.

The defendant contends that the trial court inappropriately considered charges of armed robbery, armed robbery with a firearm, and possession of stolen goods that were dismissed before resen-tencing. A panel of this court discussed such considerations in State v. J.S., 10-1238, p. 10 (La.App. 3 Cir. 5/11/11), 63 So.3d 1185, 1192, stating:

| /When evaluating a defendant’s criminal history, trial courts may consider evidence at sentencing that would otherwise be inadmissible at trial. State v. Myles, 94-217 (La.6/3/94), 638 So.2d 218. The trial court may consider records of prior arrests, hearsay evidence of suspected criminal activity, conviction records, and evidence of uncharged offenses or offenses that were nolle grossed. State v. Emerson, 31,408 (La.App. 2 Cir. 12/9/98), 722 So.2d 373, writ denied, 99-1518 (La.10/15/99), 748 So.2d 470.

The evidence the defendant complains of consists of “offenses that were nolle prossed ” and would therefore be appropriate for consideration by the trial court. We find no merit to this argument.

The defendant also contends that the trial court failed to adequately consider the aggravating and mitigating factors delineated in La.Code Crim.P. art. 894.1 and the mitigating circumstances that have arisen since his original sentencing.

A list of factors to be considered by the trial court in determining a defendant’s sentence is delineated by La.Code Crim.P. art. 894.1. The trial court need not list every aggravating or mitigating circumstance as long as the record reflects that he adequately considered the factors contained in the article. State v. Smith, 433 So.2d 688 (La.1983). “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. 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. Decuir, 10-1112, p. 3 (La.App. 3 Cir. 4/6/11), 61 So.3d 782, 785 (quoting State v. Scott, 36,763 (La.App. 2 Cir. 1/29/03), 836 So.2d 1180). However, the trial court is not required to give any specific factor any particular weight at sentencing. Id.

| (¡Further, in cases where the trial court fails to comply with La.Code Civ.P. art. 894.1, remand is unnecessary where the record clearly shows an adequate factual basis for the sentence. State v. Smith, 34,325 (La.App. 2 Cir. 12/20/00), 775 So.2d 640. “The question is whether the record presented is sufficient to demonstrate that the trial court did not abuse its discretion.” Id. at 642.

Although the transcript from the defendant’s resentencing does not contain reference to the aggravating and mitigating factors delineated in Article 894.1, the record indicates that the trial court was present at both the defendant’s first trial, which ended in a mistrial, and his second trial, at which he was found guilty of armed robbery and armed robbery with a firearm. Further, the trial court found that the defendant had violated his probation from an earlier conviction for possession of stolen property under $500 and that the defendant was a second felony habitual offender.

Additionally, at the defendant’s original sentencing hearing, the trial court heard testimony from one of the police officers involved in the case, the victims, and the defendant’s mother and uncle. The victims testified about the effect of the defendant’s actions on their lives. Ms. Foreman testified that “[w]hat happened that day was the worst the worst [sic] day of my life.” Of particular note, the victims testified that they had been contacted either by the defendant or by the defendant’s “brother” in what the State characterized as attempts to harass the victims. A copy of the defendant’s letter contacting Ms. Decote was submitted into evidence. Further, the police officer involved in the case testified that the | defendant was listed as a suspect in thirteen offenses in the Lake Charles Police Department’s computer system.

The defendant’s uncle and mother also testified at the original sentencing hearing. The defendant’s uncle observed that the defendant was only twenty-two years old at the time of his initial sentencing and asked for leniency. The defendant’s mother echoed that sentiment, asking the court to be lenient on her only child. The defendant also argued that he intended to complete his G.E.D., had been attending self-improvement courses, including a course on anger management, and was attending church.

The trial court originally imposed a seventy-five-year hard-labor sentence, without benefit of probation, parole, or suspension of sentence. The trial court stated:

The Court has considered the records of these proceedings. I don’t have the benefit of a presentence report!,] but I had the benefit of going through the trial on two separate occasions. I have heard what the defendant’s involvement was, his continual denial of same; and ... any lesser sentence would deprecate the seriousness of the offense.

At the resentencing hearing, with regard to the defendant’s habitual offender adjudication, the trial court imposed a seventy-year hard-labor sentence, without benefit of probation, parole, or suspension of sentence. For the defendant’s conviction for armed robbery with a firearm, the trial court also imposed the separate five-year additional penalty, to be served without the benefit of probation, parole, or suspension of sentence and to be served consecutively to the defendant’s habitual offender sentence and his previous sentence for a probation violation.

The record does not indicate that the trial court discussed the aggravating and mitigating factors contained in La. Code Crim.P. art. 894.1 at the resentenc-ing [shearing. However, our review of the record, including the transcripts of both the original sentencing hearing and the resentencing hearing, reveals an adequate factual basis for the trial court’s sentence. Accordingly, we find that the record presented is sufficient to demonstrate that the trial court did not abuse its discretion and that the trial court adequately considered the sentencing factors contained in La. Code Crim.P. art. 894.1. See State v. Stipe, 10-877 (La.App. 3 Cir. 3/9/11), 59 So.3d 480.

Further, we find no merit to the defendant’s contention that the trial court did not place adequate weight on the accomplishments that the defendant has made since his original sentencing. The defendant contends that he has enrolled in a G.E.D. program, completed anger management and other self-improvement courses, and has participated in several religious activities, including a discipleship class. However, the trial court is not required to give specific matters any particular weight in fashioning a sentence. Decuir, 61 So.3d 782. We also note that the defendant participated in all of these programs after his arrest and incarceration.

Thus, we find no error on the part of the trial court concerning the evidence considered at sentencing and consideration of the sentencing guidelines.

Excessive Sentence — Constitutionality

The defendant also contends that his sentence is unconstitutionally excessive. In State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331, a panel of this court discussed the review of excessive sentence claims, stating:

La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so |flgrossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. 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).

Further, in State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061, a panel of this court discussed the considerations an appellate court should take into account when reviewing excessive sentence claims, stating:

In deciding whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals, an appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00); 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, 958.

The defendant was convicted of armed robbery and armed robbery with a firearm and was subsequently adjudicated a second felony habitual offender. Pursuant to La. R.S. 14:64(B), the potential sentence for armed robbery is imprisonment “at hard labor for not less than ten years and for not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence.” Louisiana Revised Statutes 15:529.1(A) provides that:

| iftAny person who, after having been convicted within this state of a felony, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government of a crime which, if committed in this state would be a felony, thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:
(1) If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction.

Accordingly, the defendant’s potential sentence was between 49 ½ years to 198 years at hard labor without the benefit of probation, parole, or suspension of sentence. See State v. Carroll, 41,001 (La.App. 2 Cir. 4/12/06), 926 So.2d 827, writ denied, 06-1470 (La.12/15/06), 944 So.2d 1283. Further, pursuant to La.R.S. 14:64.3, the defendant was subject to a five-year additional penalty for his conviction for armed robbery with a firearm.

Pursuant to the habitual offender determination, the trial court imposed a sentence of seventy years at hard labor without benefit of probation, parole, or suspension of sentence. The trial court also imposed the five-year additional penalty for armed robbery with a firearm, to run consecutively to the defendant’s habitual offender sentence and his sentence in a probation revocation matter.

The defendant’s sentence is well within the statutory sentencing range. We note that a sentence may violate the constitutional prohibition against excessive sentences even when it is within the statutory limits. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1. However, we find that the defendant’s sentence is not [ 1 ¡ unconstitutionally excessive. The record indicates that the defendant, a second-felony offender, held a gun to one victim’s head while an accomplice did the same to the other victim. We also observe that sentences similar to the defendant’s have been upheld for second-felony offenders convicted of armed robbery, even for youthful offenders. See, e.g., Carroll, 926 So.2d 827.

Based on our review of the facts and circumstances of this case, we find that the defendant’s sentence does not shock our sense of justice, nor is it grossly disproportionate to the severity of the offense. Accordingly, we find that the trial court did not abuse its discretion in fashioning the defendant’s sentence.

This assignment of error is without merit.

DECREE

For the foregoing reasons, the sentences of the defendant, Kenneth G. Billingsley, which were imposed on April 13, 2012, are affirmed.

AFFIRMED.

      . For clarity, we have included in this opinion an identifier for each of the defendant's prior appeals, i.e., Billingsley I, Billingsley II, Bill-ingsley III.

      . Ms. Decote’s name is also spelled as "Du-cote” in the record,

      . The defendant filed a separate appeal under docket number 13-52, which was originally consolidated with the instant appeal. However, that appeal was dismissed on April 24, 2013. See State v. Billingsley, 13-52 (La.App. 3 Cir. 4/24/13), 110 So.3d 731 (unpublished opinion) (Billingsley III).
      Further, in the instant appeal, the defendant requests that this court instruct the trial court to order that the defendant be given credit for time served pursuant to La.Code Crim.P. art. 880. We note that the defendant has neither assigned this request as error nor included any argument concerning this issue in his brief to this court. Accordingly, this court considers his request abandoned pursuant to Uniform Rules. — Courts of Appeal, Rule 2.12-4. See State v. Martin, 11-32 (La.App. 3 Cir. 6/1/11), 66 So.3d 608, writ denied, 11-1441 (La.12/16/11), 76 So.3d 1201. However, we observe that credit for time served pursuant to La.Code Crim.P. art. 880 occurs by operation of law. State v. Carthan, 99-512 (La.App. 3 Cir. 12/8/99), 765 So.2d 357, writ denied, 00-359 (La.1/12/01), 778 So.2d 547.

      . The defendant’s mother testified that she had "no idea” who the victims "were talking about[,]” as the defendant was her only child. However, she could not say if the defendant had any siblings on his father’s side.

      . Louisiana Revised Statutes 14:64.3(A) states that "[w]hen the dangerous weapon used in the commission of the crime of armed robbery is a firearm, the offender shall be imprisoned at hard labor for an additional period of five years without benefit of parole, probation, or suspension of sentence. The additional penalty imposed pursuant to this Subsection shall be served consecutively to the sentence imposed under the provisions of R.S. 14:64.”


source: Caselaw Access Project

license: Public Domain

text:
    Norma RICHARD v. LIBERTY MUTUAL INSURANCE CO., et al.
    No. 13-26.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 9, 2013.

      Michael W. Robinson, Pucheu, Pucheu & Robinson, LLP, Eunice, LA, for Plaintiff/Appellant, Norma Richard.
    Bruce D. Beach, Law Offices of Keith S. Giardina, Baton Rouge, LA, for Defendants/Appellees, Liberty Mutual Insurance Company TMC Foods, Inc.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and PHYLLIS M. KEATY, Judges.
   AMY, Judge.

| tThe plaintiff in this matter alleged that she seriously injured herself as the result of slipping on an unknown substance at a Popeye’s restaurant. The defendants filed a motion for summary judgment, contending that the plaintiff would not be able to meet her burden of proof with regard to actual or constructive notice of any defect on the part of the defendants. The trial court granted the motion and dismissed the plaintiffs claims. The plaintiff appeals. For the following reasons, we affirm.

Factual and Procedural Background

The plaintiff, Norma Richard, contends that in July of 2010, she and a friend, Ray Burnett, went to the Popeye’s Chicken and Biscuits in Eunice, Louisiana, in order to purchase dinner. According to Ms. Richard, after placing their orders and receiving their food, the pair began to leave the restaurant. Ms. Richard alleges that, when she attempted to stop and ask Mr. Burnett a question, her feet “just never stopped” and she fell. Ms. Richard later admitted that she did not know what she slipped on, did not feel to see if there was anything slippery on the floor, and did not look to see if there were stains on her clothing. However, she was adamant that she did not trip. Ms. Richard stated that she did not file an accident report with the restaurant until three days later.

According to her deposition testimony, Ms. Richard incurred several fractured ribs and an unidentified muscle or nerve condition as a result of the fall. Ms. Richard also testified that her doctor informed her that she would likely have problems with her back “forever.” Ms. Richard contends that she missed more than a month of work as a result of her injuries and has been on light duty since she returned to work.

| ¿Thereafter, Ms. Richard filed suit against TMC Foods, LLC d/b/a Popeye’s Chicken and Biscuits and its insurance company, Liberty Mutual Insurance Company. The defendants filed a motion for summary judgment, contending that Ms. Richard would be unable to meet her burden of proof with regard to Popeye’s actual or constructive knowledge of any defect. After a hearing, the trial court granted the defendants’ motion and dismissed Ms. Richard’s claims with prejudice. Ms. Richard appeals, asserting that the trial court erred in granting the motion for summary judgment.

Discussion

Summary judgment is favored in this state and “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B)(2). Further, in cases where the moving party will not bear the burden of proof at trial, “the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense.” La.Code Civ.P. art. 966(C)(2). Once the moving party has done so, the burden shifts to the non-moving party to show that he will be able meet his evidentiary burden of proof at trial; if he fails to do so, there is no genuine issue of material fact. Id.

Is Judgments granting or denying a motion for summary judgment are reviewed de novo. C & C Energy, L.L.C. v. Cody Invs., L.L.C., 09-2160 (La.7/6/10), 41 So.3d 1134. Thus, the appellate court must use the same criteria as the trial court in determining whether summary judgment is appropriate; “whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law.” Id. at 1137. Similarly, the judge’s role in ruling on a motion for summary judgment is not to weigh evidence or determine the truth of the matter, but to determine whether there is a genuine issue of material fact. Hines v. Garrett, 04-806 (La.6/25/04), 876 So.2d 764. “All doubts should be resolved in the non-moving party’s favor.” Id. at 765. Genuine issues are those as to which reasonable persons could disagree. Id. Further, facts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute. Id.

The burden of proof in claims against merchants is delineated in La.R.S. 9:2800.6, which states, in relevant part:

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, pri- or to the occurrence.
|4(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.
C. Definitions:
(1) “Constructive notice” means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.

Thus, in order to prosecute a claim successfully under La.R.S. 9:2800.6, a plaintiff must prove all three of the requirements listed in La.R.S. 9:2800.6(B). The record here is not determinative of what foreign substance, if any, caused Ms. Richard to slip, and the parties have focused on the requirement that the plaintiff prove that the “merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.” La.R.S. 9:2800.6(B)(2).

Popeye’s contends that Ms. Richard could not identify what substance was on the floor, noting that Ms. Richard testified that she did not see anyone spill anything on the floor, did not see any slippery liquid or other substance on her shoes after she fell, denied “feeling around” to see if there was anything on the floor, and denied looking to see if there was anything on her clothing as a result of the fall. Further, Popeye’s argues that Ms. Richard offered no evidence that would indicate how long the substance had been on the floor, thus failing to meet the temporal requirements of constructive notice. In response to Popeye’s contentions, Ms. Richard argues that Popeye’s either created a defective condition as a result of the nature of its business or that Popeye’s had constructive notice of the hazard.

IflMs. Richard’s first argument is essentially that, “slippery substances on floors in fast-food restaurants, particularly those specializing in deep-fried products, can be proven, by very reasonable inferences, to have been created by the products produced by such restaurants.” Ms. Richard insinuates that Popeye’s created the risk due to the nature of Popeye’s products and that the risk was exacerbated by the installation of tile in the restaurant. In Williams v. Shoney’s Inc., 99-607 (La.App. 1 Cir. 3/31/00), 764 So.2d 1021, the first circuit rejected a similar argument wherein the plaintiffs sought to create a bright-line rule that restaurants which had installed a self-service food bar had actual notice of the risk of food falling from the bar. The first circuit noted that “[t]o establish such a rule would directly contravene the wording and purpose of LSA-R.S. 9:2800.6 and would establish a standard of absolute liability on the proprietors of such establishments.” Id. at 1024.

Additionally, Ms. Richard has pointed to no evidence, circumstantial or otherwise, which would indicate that one of Popeye’s employees caused any defective condition. Although Ms. Richard alternatively contends that Popeye’s created the condition by installing dangerously slippery tile, she has submitted only speculation and unsupported allegations, not evidence, that the tile was somehow inappropriate for use in restaurant floors. See Sears v. Home Depot. USA, Inc., 06-201, p. 12 (La.App. 4 Cir. 10/18/06), 943 So.2d 1219, 1228 (“Mere conclusory allegations, improbable inferences and unsupported speculation will not support a finding of a genuine issue of material fact.”), writ denied, 06-2747 (La.1/26/07), 948 So.2d 168. Thus, we find no merit to Ms. Richard’s contention that Popeye’s caused the alleged defective condition.

|fiMs. Richard also contends that, if Popeye’s did not cause a defective condition, there is sufficient circumstantial evidence which would indicate that Popeye’s had constructive notice of the alleged defect. Circumstantial evidence may be used in a slip and fall case to establish the temporal element required by La.R.S. 9:2800.6(B)(2). Blackman v. Brookshire Grocery Co., 07-348 (La.App. 3 Cir. 10/3/07), 966 So.2d 1185. “Whether the period of time is sufficiently lengthy that a merchant should have discovered the condition is necessarily a fact question; however, there remains the prerequisite showing of some time period.” White v. Wal-Mart Stores, Inc., 97-393, p. 4 (La.9/9/97), 699 So.2d 1081, 1084.

At her deposition, Ms. Richard testified that she was in the restaurant for seven or eight minutes, and that there were people at two tables inside the restaurant. Ms. Richard said that she did not see anyone go by and drop anything. According to Ms. Richard, after she fell, she was on the floor for a few seconds before Mr. Burnett helped her up. Further, she testified that no one came to help her after she fell. After the defendants filed the motion for summary judgment, Ms. Richard filed an affidavit which stated that she was in the restaurant fifteen minutes before the accident and five minutes after the accident. She stated that she did not see anyone inspect the floor or go on foot patrol while she was there.

As previously mentioned, “[m]ere eonclusory allegations, improbable inferences and unsupported speculation will not support a finding of a genuine issue of material fact.” Sears, 943 So.2d at 1228. Even if contained in a deposition, such inferences, allegations and speculation are not sufficient to satisfy the opponent’s burden of proof. Id. After Popeye’s pointed out that Ms. Richard |7could not meet her burden of proof with regard to actual or constructive notice of any defect, the burden of proof shifted to Ms. Richard to show that she will be able to meet her evidentiary burden of proof at trial. Our de novo review of the record reveals that Ms. Richard offered no factual support that the condition which caused her to fall existed for such a “period of time that it would have been discovered if the merchant had exercised reasonable care.” La. R.S. 9:2800.6(0(1). See also Babin v. Winn-Dixie La., Inc., 00-78 (La.6/30/00), 764 So.2d 37.

Although Ms. Richard testified about the length of time she was in the restaurant and that she did not see anyone spill anything on the floor, Ms. Richard could not identify a substance that caused her to fall. In White, 699 So.2d 1081, the supreme court found that the plaintiffs failure to perceive the clear liquid that caused her to fall, even after walking past it on an earlier occasion, was a factor that favored lack of constructive notice on the part of the defendant/merchant. We note that Ms. Richard testified that, even after she fell, she could not identify the substance that made her fall. These contentions are not dispositive of how long any alleged dangerous substance had been on the floor. See Williams, 764 So.2d 1021.

Further, Ms. Richard has offered no evidence which would establish that Popeye’s would have discovered the alleged spill if it had exercised reasonable care, such as when Popeye’s employees last inspected the floor, or even evidence of Popeye’s inspection policies. Instead, Ms. Richard offers speculation about “nonchalance” and “extreme lack of concern” on the part of Popeye’s employees.

IsPursuant to our review of the pleadings, depositions, answers to interrogato-ríes, and admissions, together with the affidavits submitted in support of the motion for summary judgment, we find that Ms. Richard has failed to offer sufficient factual support to indicate that she would be able to meet her evidentiary burden of proof at trial. Accordingly, we find no error in the trial court’s grant of the motion for summary judgment in favor of the defendants.

DECREE

For the foregoing reasons, we affirm in all respects the trial court’s judgment granting the motion for summary judgment filed by the defendants, TMC Foods, LLC d/b/a Popeye’s Chicken and Biscuits and Liberty Mutual Insurance Company. Costs of this appeal are assessed to the plaintiff, Norma Richard.

AFFIRMED.

      . The record contains several variations on the case caption and the parties’ names, including "TMC Foods” and "Liberty Insurance Company.” We use the caption and names referred to in the parties’ briefs.

      . We note that the legislature amended La. Code Civ.P. art. 966(B)(2) in 2013 La. Acts. 391, effective August 1, 2013.

      . The defendants objected to Ms. Richard’s affidavit. However, the minutes from the hearing on the motion for summary judgment indicate that the trial court allowed the affidavit to be considered and not struck.

      . In contrast, in Beninate v. Wal-Mart Stores, Inc., 97-802 (La.App. 5 Cir. 12/10/97), 704 So.2d 851, writ denied, 98-82 (La.3/13/98), 713 So.2d 470, the plaintiff alleged that she slipped on a French fry which was on the floor directly in front of a McDonald's located in a Wal-Mart store. Although the plaintiff testified that she threw away the French fry and did not report the fall to anyone other than the store greeter, the plaintiff also submitted evidence that the store was busy due to holiday shopping and that store employees inspected the area only periodically. Further, the plaintiff submitted evidence taken by an investigator that showed that, on several occasions, there was food debris on the floor directly in front of the McDonald's, and that several Wal-Mart employees walked across the area while the debris was present. The trial court found that the plaintiff had produced sufficient circumstantial evidence that the French fry had been on the floor for a sufficient period of time to provide Wal-Mart with constructive notice of the hazard. On appeal, the fifth circuit found no error in the trial court’s findings, placing particular emphasis on the dearth of evidence about reasonable inspection procedures.


author: KEATY, Judge

text:
    STATE of Louisiana v. Dana BOWLES.
    No. 13-80.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 9, 2013.

      James C. Downs, District Attorney, Michael W. Shannon, Assistant District Attorney, Alexandria, Louisiana, for Appel-lee, State of Louisiana.
    Brent A. Hawkins, Louisiana Appellate Project, Lake Charles, Louisiana, for Defendant/Appellant, Dana Bowles.
    Dana Bowles, In Proper Person, Winn-field, Louisiana, Defendant.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge

|, Defendant, Dana Bowles, appeals his convictions of armed robbery and second degree kidnapping. For the following reasons, we affirm.

PROCEDURAL BACKGROUND

On July 20, 2011, Dana Fletcher (Fletcher) was shopping at Old Navy. After she exited the store and got into her car, Defendant placed his arm around her neck and shoved a gun into the back of her neck. Defendant told her to shut the door and demanded money and jewelry. Fletcher advised that she was not wearing jewelry nor did she have any cash although she possessed a debit card. Defendant then ordered her to find a bank. At the bank, Defendant demanded Fletcher withdraw five hundred dollars from the ATM, which she did. He then told her to withdraw more, but the withdrawal request was denied. Defendant then directed her to a location a few miles away. As Defendant exited Fletcher’s vehicle, he grabbed Fletcher’s purse which contained her cell phone, wallet, credit cards, and other valuables.

On July 21, 2011, Defendant also robbed Brenda Jones Johnson (Jones) at gun point in a bank parking lot.

Defendant was subsequently charged with two counts of armed robbery, a violation of La.R.S. 14:64, and one count of second degree kidnapping, a violation of La.R.S. 14:44.1. The offenses involved two different victims on two different dates. A jury trial thereafter found Defendant guilty as charged. He was sentenced to fifteen years imprisonment without the benefit of parole, probation, or suspension of sentence on each count of armed robbery and ten years on the Rsecond degree kidnapping conviction, with the first two years to be served without the benefit of parole, probation, or suspension of sentence. All the sentences were ordered to be served consecutively for a total of forty years imprisonment. Defendant now appeals.

DISCUSSION

On appeal, Defendant asserts two assignments of error: (1) Defendant’s convictions for both the armed robbery and the second degree kidnapping of Fletcher violated his constitutional protection against double jeopardy because the armed robbery was the underlying felony and an essential element of the second degree kidnapping and (2) the sentence imposed for count one of the armed robbery of Jones should be vacated as excessive because the trial court failed to impose a sentence individualized to Defendant for that offense. Defendant further asserts one pro se assignment of error, contending that the identification procedure provided to Jones was suggestive such that there was a substantial likelihood of misidentifieation.

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, there are no errors patent.

Assignment of Error Number One

Defendant argues that the convictions for armed robbery and second degree kidnapping of Fletcher violated his constitutional protection against double jeopardy because the armed robbery was the underlying felony and an essential element of the second degree kidnapping.

|sThis court examined double jeopardy in State v. Cogswell, 05-510, pp. 3-4 (La.App. 3 Cir. 12/30/05), 918 So.2d 590, 593-94, writ denied, 06-314 (La.9/1/06), 936 So.2d 196 (quoting State v. Vaughn, 431 So.2d 763 (La.1983)), as follows:

In State v. Knowles, 392 So.2d 651, 654 (La.1980), the Court citing Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), outlined the following criteria for examining violations of double jeopardy:
“... The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not
This rule is constitutionally required by the States. Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), and is embodied in La.C.Cr.P. 596:
“Double jeopardy exists in a second trial only when the charge in that trial is: (1) Identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, whether or not a responsive verdict could have been rendered in the first trial as to the charge in the second trial; or (2) Based on a part of a continuous offense for which offense the defendant was in jeopardy in the first trial.”
Louisiana uses both the “Blockburger test” and the “same evidence test”. State v. Steele, 387 So.2d 1175 (La.1980); State v. Doughty, 379 So.2d 1088 (La.1980); State v. Didier, 262 La. 364, 263 So.2d 322 (1972) and State v. Hayes, 412 So.2d 1323 (La.1982). When a defendant is charged with separate statutory crimes they need not be identical in elements or in actual proof to be the same within the meaning of the constitutional prohibition. State v. Hayes, 412 So.2d at 1325.
The Louisiana Supreme Court explains the “same evidence” test in State v. Steele, 387 So.2d 1175 (La.1980) as follows:
“If the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one. The test depends on the evidence necessary for conviction, not all the evidence introduced |4at trial ... The ‘same evidence’ test is somewhat broader in concept than Block-burger the central idea being that one should not be punished (or put in jeopardy) twice for the same course of conduct.” Id. at 1177.
Double jeopardy provisions protect an accused not only from a second prosecution on the same offense, but also from multiple punishments for the same criminal conduct. State v. Steele, supra; State v. Hayes, supra; United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1931); Whalen v. United States, 445 U.S. 684, 692, 100 S.Ct. 1432, 1438, 63 L.Ed.2d 715 (1980).

In the present case, Defendant was charged in the bill of information, as follows:

COUNT 2:
IN THAT HE DID ON OR ABOUT THE 20th DAY OF JULY, 2011 while armed with a dangerous weapon rob D.F., in violation of LSA-R.S. 14:64;
COUNTS:
IN THAT HE DID ON OR ABOUT THE 20th DAY OF JULY, 2011 committed second degree kidnapping of D.F., in violation of LSA-R.S. 14:44.1 A(2)B(1)[.]

Louisiana Revised Statutes 14:64(A) provides that armed robbery is the “taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.”

Louisiana Revised Statutes 14:44.1(A)(2) and (B)(1) further provide:

A. Second degree kidnapping is the doing of any of the acts listed in Subsection B wherein the victim is:
(2) Used to facilitate the commission of a felony or the flight after an attempt to commit or the commission of a felony;
B. For purpose of this Section, kidnapping is:
L(l) The forcible seizing and carrying of any person from one place to another....

Based on the above jurisprudence and statutory law, we agree with Defendant in that the armed robbery was the underlying felony and an essential element of second degree kidnapping. Pursuant to La.R.S. 14:44.1(A)(1), the felony being facilitated by the kidnapping was the armed robbery. The second degree kidnapping occurred when Defendant, utilizing his gun, forced Fletcher to drive him to a bank to withdraw money from her account. A “taking” for purposes of armed robbery occurred at the bank when Defendant used a gun to force Fletcher to withdraw money at the bank. However, we disagree with Defendant with respect to double jeopardy as there was more than one taking.

As the State correctly points out, there was more than one “taking.” The State argues:

Therefore, Appellant’s assertion at page 6 of his brief that “other than the armed robbery of Mrs. Fletcher, the State offered no evidence that any other felony was committed during the second degree kidnaping.” This statement disregards the facts and the evidence that shows that there were two separate “takings” of property by use of force or intimidation from the victim and a separate attempted “taking” when the Appellant demanded that the victim attempt to withdraw more money from the ATM. The Appellant, during this crime, forced the victim to withdraw five hundred ($500.00) dollars from the ATM while he was armed. He then forced the victim to attempt to withdraw more money from the ATM. Then, sometime later, he forced the victim to drive from one place to another and took from the victim her designer purse along with all of her personal property in the purse, a separate and distinct robbery.

We further note that Louisiana does not follow the “ ‘same transaction’ test which would prohibit prosecutions for different crimes committed during one sequential, continuing course of conduct.” State v. Letell, 12-180, pp. 7-8 (La.App. 1 Cir. 10/25/12), 103 So.3d 1129, 1137, writ denied, 12-2533 (La.4/26/13), 112 So.3d 838. Importantly, in Louisiana, double jeopardy fails to protect an offender who violates numerous statutory provisions on a crime spree. Id.

In the present case, Fletcher testified that after she withdrew money from the ATM, Defendant was still sitting behind her with his arm around her neck. Defendant subsequently directed her to a different location to what she thought was an abandoned house. She heard a noise and testified that “[i]t sounded like a gun that when you spin it, and so, I thought to myself, he’s going to kill me right here.” Fletcher further testified that Defendant subsequently grabbed her purse, exited the vehicle, and ran away.

We find that Defendant’s act of running away with Fletcher’s purse while armed with a gun constitutes a second “taking” as it occurred in a different location other than at the bank. This “taking” constitutes the separate and distinct crime of armed robbery. Thus, there is no merit to this assignment of error.

Assignment of Error Number Two

Defendant argues that the sentence imposed for count one of the armed robbery of Jones should be vacated as excessive since the trial court did not individualize the sentence for that offense.

The offense of armed robbery carries a mandatory sentence of “not less than ten years and for not more than ninety-nine years, without the benefit of parole, probation, or suspension of sentence.” La.R.S. 14:64(B). Defendant received fifteen years at hard labor for the offense.

We note that following the sentencing hearing, Defendant made an oral objection to the sentence as being excessive. Defendant did not indicate, however, whether he was objecting to the one fifteen-year sentence or the consecutiveness of the sentences, nor did he indicate why the sentence or sentences were excessive. | ^Defendant did not file a written motion for reconsideration of the sentence in violation of La.Code Crim.P. art. 881.1(E), which provides:

Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

In State v. Bamburg, 00-675 (La.App. 8 Cir. 11/2/00), 772 So.2d 356, the defendant failed to object to the sentence imposed at the sentencing hearing and did not timely file a motion to reconsider sentence. Thus, this court found his claim of exces-siveness of sentence was barred.

Based on the above statutory law and jurisprudence, Defendant is precluded from a review of the excessiveness of the sentences. We are mindful, however, that this court has reviewed claims of exces-siveness where no objection was made, no motion to reconsider sentence filed, or at a minimum, Defendant only objected to the excessiveness without stating a ground for his objection. See State v. Johnlouis, 09-285 (La.App. 3 Cir. 11/4/09), 22 So.3d 1150, writ denied, 10-97 (La.6/25/10), 38 So.3d 336, cert. denied, — U.S. -, 131 S.Ct. 932, 178 L.Ed.2d 775 (2011); State v. Thomas, 08-1358 (La.App. 3 Cir. 5/6/09), 18 So.3d 127. Accordingly, we will review the Defendant’s claim as a bare claim of excessiveness.

This court discussed the standard of review applicable to claims of ex-cessiveness in State v. Whatley, 03-1275, pp. 5-6 (La.App. 3 Cir. 3/3/04), 867 So.2d 955, 958-59, as follows:

The Eighth Amendment to the United States Constitution and La. Const, art. I, § 20 prohibit the imposition of cruel or excessive punishment. “ ‘[T]he exces-siveness of a sentence becomes a question of law reviewable under the appellate jurisdiction of this court.’ ” State v. Dorthey, 623 So.2d 1276, 1280 (La.1993) (quoting State v. Sepulvado, 367 So.2d 762, 764 (La.1979)). Still, the trial court is given wide discretion in imposing a sentence, and, absent a manifest | «abuse of that discretion, we will not deem as excessive a sentence imposed within statutory limits. State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96), 670 So.2d 713. However, “[m]aximum sentences are reserved for the most serious violations and the worst offenders.” State v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225. The only relevant question for us to consider on review is not whether another sentence would be more appropriate, but whether the trial court abused its broad discretion in sentencing a defendant. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
The fifth circuit, in [State v.] Lisotta, [98-648 (La.App. 5 Cir. 12/16/98),] 726 So.2d [57,] 58, stated that the reviewing court should consider three factors in reviewing the trial court’s sentencing discretion:
1. The nature of the crime,
2. The nature and background of the offender, and
3. The sentence imposed for similar crimes by the same court and other courts.

With respect to the first factor, Jones testified that Defendant approached her in a bank parking lot after she deposited her paycheck. He threatened her with a gun and demanded money. When Jones said she did not have any money on her person, Defendant took her cell phone and fled.

With respect to the second factor, at the sentencing hearing, the trial court questioned Defendant extensively regarding his personal history. He was twenty-six at the time of sentencing. The trial court noted a criminal history which included possession of controlled dangerous substances, theft, simple burglary, criminal damage to property, and contempt of court charges for non-support of two minor children. The trial court further discussed the brutality of Defendant’s actions regarding Fletcher. Fletcher had submitted a lengthy impact statement detailing the terror she felt during the robbery and how difficult it was to cope afterwards. Jones chose not to make any statement to the trial court.

|flWith respect to the third factor, in State v. Lewis, 39,263 (La.App. 2 Cir. 1/26/05), 892 So.2d 702, the defendant was a first felony offender and received three concurrent twenty-year sentences for the armed robbery of three employees at a bank. The defendant was armed with a BB gun. In State v. Roddy, 33,112 (La.App. 2 Cir. 4/7/00), 756 So.2d 1272, writ denied, 00-1427 (La.5/11/01), 791 So.2d 1288, a twenty-two-year-old first felony offender defendant received a twenty-year sentence for armed robbery of a bank. The defendant was a passenger in the getaway car but was aware of the plan to rob the bank. The presentence report noted the defendant had spent eight months in a juvenile detention center for a prior adjudication for armed robbery. In State v. Square, 433 So.2d 104 (La.1983), the supreme court upheld the defendant’s twenty-five-year sentence for a bank robbery. The defendant was twenty-two years old, was gainfully employed, lacked a prior criminal record, and there was no injury to the victims of the robbery. In State v. Smith, 01-2574, p. 7 (La.1/14/03), 839 So.2d 1, 4, the supreme court stated that sentences of thirty-five to fifty years have been found to be “acceptable for first offenders convicted of armed robbery.”

Based upon the nature of the crime, the nature and background of Defendant, and the sentence imposed for similar crimes by the same court and other courts, we find that Defendant’s sentence was not excessive. While the trial court did not specifically mention Jones’ name when he sentenced Defendant to fifteen years on each conviction for armed robbery and considering that Defendant was on a two-day crime spree, the trial court did not abuse its considerable discretion when it sentenced Defendant to fifteen years for the armed robbery of Jones. Accordingly, Defendant’s assignment of error lacks merit.

hoPro Se Assignment of Error

Defendant argues that Jones’ identification of him as the robber from a photographic lineup was unduly suggestive; therefore, there was a strong likelihood of misidentification. Jones was presented with two six-person photographic lineups six days following the robbery. She did not identify anyone from these two lineups. The next day, however, she was provided with a third photographic lineup, and she identified Defendant as the man who robbed her at gunpoint. While Defendant never explains in what way the viewing of the photographs was suggestive, he argues that Jones could not have had a good enough look at the robber in order to identify him.

In State v. Thomas, 04-1341, 04-1342, p. 7 (La.App. 5 Cir. 5/31/05), 904 So.2d 896, 901-02, writ denied, 05-2002 (La.2/17/06), 924 So.2d 1013, the fifth circuit stated:

Fairness is the standard of review for identification procedures and reliability is the linchpin in determining the admissibility of identification testimony. Manson v. Brathwaite, 432 U.S. 98, 113—114, 97 S.Ct. 2243, 2252-53, 53 L.Ed.2d 140 (1977). The factors to be considered in assessing reliability include: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the crime and the confrontation. Manson, 432 U.S. at 114, 97 S.Ct. at 2253. Any corrupting effect of a suggestive identification procedure is to be weighed against these factors. Id.

Considering the factors of reliability as cited in Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, Jones testified at trial regarding her observation of the robber. Jones testified that the robbery occurred at the Chase bank ATM which was located in front of Target. While Jones was waiting for the woman in front of her at the ATM machine to finish her transaction, she noticed a man milling around the |nparking lot. After the customer ahead of her left, she walked up to the ATM and conducted her transaction. After Jones finished her transaction and walked back to her car, Defendant walked out from the side of the building and approached her. Defendant came within approximately two feet of Jones when she “looked at him in the face” and the two made eye contact. Jones testified that they were located in a well-lit area. Nevertheless, Defendant subsequently placed his hand into his pocket and retrieved a gun. Jones began begging for her life and backing up. Defendant told her to stop backing up, and Jones testified that “we was [sic] standing there facing each other. Uh he never — the gun was on his side at that point. So, I wanted to make eye contact with him to plead for my life because I was hoping he could see that I was scared.”

A few days later, Jones testified that Detective Foshee showed her two photographic lineups of six pictures each, i.e., twelve pictures total. Jones testified that Detective Foshee never suggested that she pick any certain individual from the two lineups. Jones was unable to identify her robber from this first or second lineup. A few days later, Detective Foshee showed her six more pictures. Jones again testified that Detective Foshee never suggested that she pick any certain individual from this third lineup. Nevertheless, she was able to identify Defendant as her robber. At trial, Jones was asked how sure she was that the photograph was of the man who robbed her. She replied:

Absolutely sure. I was very much sure because of the fact he was trying to stay out of the camera, and I — he— what, what happened, he was right there under the light, and by me being a couple of feet from him, I actually stood face to face with him.

Of the above Brathwaite factors listed, there was no discussion regarding identifying features such as scars, hair style, or clothing. Furthermore, at one point, 112Jones admitted she initially told Detective Foshee who showed her the final set of pictures that she was ninety percent certain the man she indicated was the robber. However, she explained that after seeing Defendant in the courtroom that she was absolutely certain he was the robber. Jones testified that she “wanted to be able to look at him and make him have sympathy for me. I had fear for my life. So, I actually looked at him and I know that that was him.”

Based on the above testimony, Defendant fails to show that the viewing procedure of the three sets of photographs to Jones was suggestive. Defendant also fails to show that Jones’ identification of him was unreliable. Accordingly, there is no merit to this assignment of error.

DECREE

Defendant’s convictions and sentences are affirmed.

AFFIRMED.

      . The victim's Ml name is Brenda Jones Johnson. We note that in the trial court transcript, she is referred to as Ms. Jones. Thus, we will refer to her as Jones, and not Johnson, throughout this opinion.

      . Defendant does not contest the conviction for armed robbery of Jones.


author: PICKETT, Judge.

text:
    STATE of Louisiana v. Dennis Weldon THOMPSON.
    No. 13-194.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 9, 2013.

      Don M. Burkett, District Attorney, Eleventh Judicial District, Anna L. Garcie, Assistant District Attorney, Many, LA, for Appellee, State of Louisiana.
    Edward Kelly Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant-Appellant, Dennis Weldon Thompson.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   PICKETT, Judge.

| ¡FACTS

Late in the evening on October 3, 2010, the defendant, Dennis Weldon Thompson, and co-defendant, Gregory Collier, knocked on Rufus and Neva Kelly’s kitchen door. One of the men said that his car had broken down, and he required help. When Mr. Kelly opened the door, one man produced a gun. The two men then forced their way into the house and threatened to harm the couple unless they complied. The two men ransacked the house and took money, Ms. Kelly’s cell phone, and Mr. Kelly’s hat. After tying the couple up, they fled the scene.

On December 9, 2010, the defendant was charged by a bill of information with one count of armed robbery, a violation of La. R.S. 14:64, and one count of home invasion, a violation of La.R.S. 14:62.8. A jury trial commenced on August 28, 2012, and on August 29, 2012, the jury returned a guilty verdict of first degree robbery, a violation of La.R.S. 14:64.1, and home invasion.

The defendant was sentenced on December 18, 2012, to forty years at hard labor without the benefit of parole, probation, or suspension of sentence on the conviction for first degree robbery, and twenty-five years at hard labor without the benefit of parole, probation, or suspension of sentence on the conviction for home invasion. The sentences were ordered to be served consecutively. Defense counsel filed a Motion to Reconsider Sentence alleging that the sentences were excessive considering the circumstances of the case. The motion was denied without written reasons.

The defendant has perfected a timely appeal, alleging insufficient evidence to sustain the convictions and excessive sentences.

| .ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find no errors patent.

SUFFICIENCY OF THE EVIDENCE

The defendant argues that there was no direct evidence connecting him with the home invasion and first degree robbery of the Kellys. He points out that neither Mr. Kelly nor Mrs. Kelly identified him as the robber prior to or during the trial. The convictions are based solely on circumstantial evidence. He further asserts that the credibility of two of the state’s witnesses is questionable. Accordingly, the defendant asserts that the evidence was insufficient to sustain the convictions.

In evaluating the sufficiency of the evidence to support a conviction, a reviewing court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984). Additionally, where circumstantial evidence forms the basis of the conviction, the evidence must exclude every reasonable hypothesis of innocence, “assuming every fact to be proved that the evidence tends to prove.” La. R.S. 15:438; see State v. Neal, 2000-0674 p. 9 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). The statutory requirement of La.R.S. 15:438 “works with the Jackson constitutional sufficiency test to evaluate whether all evidence, direct and circumstantial, is sufficient to prove guilt beyond a reasonable doubt to a rational jury.” Neal, 2000-0674 p. 9, 796 So.2d at 657.

State v. Draughn, 05-1825, p. 7 (La.1/17/07), 950 So.2d 583, 592, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007).

The credibility of a witness is a matter of weight of the evidence, not sufficiency, and determination of the credibility is left to the finder of fact’s sound | (¡discretion and will not be re-weighed on appeal. State v. F.B.A., 07-1526 (La.App. 3 Cir. 5/28/08), 983 So.2d 1006, writ denied, 08-1464 (La.3/27/09), 5 So.3d 138.

At trial, the following witnesses testified:

Rufus Kelly testified that he was seventy-four years old at the time of the incident. He lived on Kelly Road, in Sabine Parish, about a mile away from BJ’s Grocery on Highway 6. At approximately 11:30 p.m., there was a knock at Mr. Kelly’s kitchen door. Mrs. Kelly had already retired to the bedroom. A man stood outside and, through the door, told Mr. Kelly that his car was broken down in a ditch. When Mr. Kelly opened the door the man charged up the steps, pulled a gun, and shouldered his way into the kitchen. The man jammed the gun under Mr. Kelly’s chin and asked if there was anyone else in the house. He told the man only his wife, who was in the bedroom. He described the man as a dark-skinned black male, and not wearing a mask. The man then pushed him towards the bedroom. When they entered the room, Mrs. Kelly was standing beside the bed with a .22 rifle. The man “got excited and jammed the gun up harder and said, uh, put that gun down, put it down, I’ll kill him, I’ll kill him.” Mrs. Kelly put the gun down.

Mr. Kelly testified that at this point another man came into the bedroom wearing a ski mask and gloves. The first man gave the gun to the masked man. The masked man told the first man to put his mask on, which he did at that time. The two men then marched the couple around the house looking for money. They took Mr. Kelly’s wallet. The first man demanded more money, stating that “I need some ice.” Additional money was taken from a bedroom drawer. They took over two hundred fifty dollars and Mrs. Kelly’s cell phone. The two men tied the couple up with duct tape and fled the house. Mr. Kelly testified that after the men went outdoors, he heard “one say, hey, and that’s when the driver pulls up. You can hear |4the vehicle and they got in it and left.” Mr. Kelly stated that he was never shown a photographic lineup or identified the men for the police. He did not identify the two men at trial as the individuals who perpetrated these offenses.

Mrs. Neva Kelly also testified. Her testimony corroborated her husband’s testimony. She also stated she was never shown a photograph lineup or identified the two robbers. She said she never saw their faces.

The couple was eventually able to free themselves. Upon discovering that their house phone was inoperable, they drove to the sheriffs office to report the robbery.

David Self, a lieutenant with the Sabine Parish Sheriffs Office, investigated the case. He stated that they collected the duct tape used to tie the victims to look for DNA evidence. Lieutenant Self explained that “ice” was the street term for methamphetamine. He also testified that eleven days after the robbery, he was contacted by Chris Miller, a distant neighbor of the Kellys, who told him that he had found Mrs. Kelly’s cellphone alongside the road about one-half mile from the Kellys’ house. He told Mr. Miller to stay right where he was and immediately drove to the location. Lieutenant Self stated that near where the cellphone was found, he located several items that were apparently tossed toward the wooded area: a ski mask, a pillow case, a blue hoodie, and some scrap material. These items were collected to be tested for DNA evidence. He stated that shortly after these items were sent to the crime laboratory, he was contacted by Alice Maxie, who advised him that her former boyfriend, the defendant, had told her that he and another man had robbed a couple and had tied them up with duct tape. Lieutenant Self also collected DNA samples from the defendant, the co-defendant, and two other suspects.

IbMs. Maxie testified at trial that the defendant told her that “him and Greg had went and robbed someone out there on the — I don’t know the name of the road but across from BJ’s[.]” He said that he tied up the victims with duct tape and that he had robbed them to get money for ice. The defendant said that he and Mr. Collier had thrown items of clothing out of the vehicle. She explained that although she and the defendant had been living together with her young daughter, she moved out and began living with her parents a few weeks prior to the robbery. The defendant stayed in the rental house for a while because he had no other place to stay at the time. However, shortly before she called the police, her former landlady called her and told her that the stove and refrigerator were missing from the house and she was expected to pay for the missing appliances. At trial, Ms. Maxie identified the blue hoodie as one that belonged to her, but that the defendant wore it. She also identified some of the material found with the blue hoodie and the ski mask as one pant leg from her daughter’s jogging suit. Based on this information, Lieutenant Self obtained an arrest warrant for the defendant and Mr. Collier.

Albert Brown, Jr. testified that he lived in New Orleans, but in October 2010, he lived in Florien, Louisiana, and knew Mr. Collier. He said that at the time he did a lot of drugs with Mr. Collier. He did not know the defendant until he was introduced to him by Mr. Collier. He identified both men in court. He testified that one night in October 2010, he drove the two men and Mr. Collier’s daughter to a location directed by Mr. Collier’s daughter. Mr. Collier said that he and his daughter were homeless and he needed to pick up some money. They drove down Highway 6 and then turned off and went a short distance. He was told to stop, and the two men got out of the car. He said they told him to go get gas and come back |fito pick them up. After he got gas, he went back, but “I passed them up at first and I just, you know, and I heard them holler — somebody holler then I stopped.” He said they drove for a bit and stopped again. The defendant and Mr. Collier got out of the vehicle and it “sounded like they was [sic] throwing something out or whatever, you know.”

Roxanne Liles testified regarding the DNA samples collected by the police. She worked for the North Louisiana Criminal-istics Laboratory and was qualified as a DNA analyst and forensic scientist. She testified that she found hair in the ski mask. She analyzed the DNA taken from the hair and a blue shirt found with the items on the roadside. She stated that Mr. Collier could not be excluded as the major contributor to the DNA located on those two items. Furthermore, Ms. Liles testified that the defendant could not be excluded as the major contributor of the DNA found on the blue hoodie.

The defendant argues that, in addition to the fact that there is no physical evidence to connect the defendant with the crimes, Ms. Maxie’s and Mr. Brown’s testimonies were suspect. He argues that they had both received deals in exchange for their favorable testimonies.

At trial, Mr. Brown testified that he pled guilty to accessory after the fact to home invasion and spent sixteen months in jail. An accessory after the fact is defined as “any person who, after the commission of a felony, shall harbor, conceal, or aid the offender, knowing or having reasonable ground to believe that he has committed the felony, and with the intent that he may avoid or escape from arrest, trial, conviction, or punishment.” La.R.S. 14:25. He agreed that because of his extensive prior criminal history, had he been charged as a principal, he would have been facing a lengthy prison sentence. Mr. Brown also admitted that he |7agreed to testify for the state as a part of the plea agreement, although he insisted at trial that he did not know what the two men were up to when he dropped them off and returned to pick them up.

Ms. Maxie, however, was not charged with any crime. Ms. Maxie agreed that she did not report the defendant’s revelation until after she learned that he may have taken the appliances out of the house she had leased. A person does not have a legal obligation to report a crime if she should learn about the crime after the fact but did nothing to aid the offender. In this case, there was no plea agreement. Ms. Maxie did not benefit from her testimony.

The appellate court’s authority to review questions of fact in a criminal case is limited to the sufficiency of the evidence evaluation under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The appellate court’s function is not to assess credibility or re-weigh the evidence. State v. Helou, 02-2302 (La.10/23/03), 857 So.2d 1024. “In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the fact finder, is sufficient support for a requisite factual conclusion.” State v. Dorsey, 10-216, p. 44-45 (La.9/7/11), 74 So.3d 603, 634, cert. denied, — U.S. -, 132 S.Ct. 1859, 182 L.Ed.2d 658 (2012).

Although the victims could not identify the men who robbed them at gunpoint, the circumstantial evidence was overwhelming. A ski mask was located a short distance away from the victim’s house. DNA analysis of the hair found in the mask connected the mask to Mr. Collier. The blue hoodie contained the defendant’s DNA. Both items were located close to where Mrs. Kelly’s cellphone was found. Mr. Kelly testified that his house was located close to BJ’s store. The defendant told his former girlfriend that he had robbed a couple who lived close to |sBJ’s store. Mr. Kelly testified that after the two men left the house, he heard one of the men yell out, and a vehicle stopped and picked them up. Mr. Brown testified that he had passed up the two men, and when one of the men hollered, he turned around and drove back to them. The jury heard all of the testimony, and there were no internal contradictions or irreconcilable conflicts with the physical evidence. We find that the jury’s decision was rational in this case. “[Irrational decisions to convict will be overturned, rational decisions to convict will be upheld, and the actual fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law.” State v. Mussall, 523 So.2d 1305, 1310 (La.1988) (emphasis in original). See also State v. Perry, 08-1304 (La.App. 3 Cir. 5/6/09), 9 So.3d 342, writ denied, 09-1955 (La.6/25/10), 38 So.3d 352. We find the circumstantial evidence presented excluded every reasonable hypothesis of innocence.

There is no merit to this assignment of error.

EXCESSIVE SENTENCE

The defendant was sentenced to forty years at hard labor on the conviction for first degree robbery and twenty-five years at hard labor on the conviction for home invasion. The sentences were ordered to be served consecutively for a total of sixty-five years imprisonment. The defendant argues that the sentences are excessive considering the offenses and excessive in that the sentences were ordered to be served consecutively.

The statute regarding the offense of first degree robbery provides for a range of punishment “at hard labor for not less than three years and for not more than forty years, without benefit of parole, probation or suspension of imposition or execution of sentence.” La.R.S. 14:64.1(B). The statute regarding home invasion in |9a case where the victim is sixty-five years or older mandates that the offender “shall be fined not more than ten thousand dollars and shall be imprisoned at hard labor for not less than ten nor more than twenty-five years. At least ten years of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence.” La.R.S. 14:62.8(B)(2).

The sentences were the maximum prison sentences that could have been ordered. The defendant asserts that the sentences are nothing more than cruel and unusual punishment. This court discussed the standard of review applicable to claims of excessiveness in State v. Whatley, 03-1275, pp. 5-6 (La.App. 3 Cir. 3/3/04), 867 So.2d 955, 958-59, as follows:

The Eighth Amendment to the United States Constitution and La. Const, art. I, § 20 prohibit the imposition of cruel or excessive punishment. “ ‘[T]he exces-siveness of a sentence becomes a question of law reviewable under the appellate jurisdiction of this court.’ ” State v. Dorthey, 623 So.2d 1276, 1280 (La.1993) (quoting State v. Sepulvado, 367 So.2d 762, 764 (La.1979)). Still, the trial court is given wide discretion in imposing a sentence, and, absent a manifest abuse of that discretion, we will not deem as excessive a sentence imposed within statutory limits. State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96), 670 So.2d 713. However, “[m]aximum sentences are reserved for the most serious violations and the worst offenders.” State v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225. The only relevant question for us to consider on review is not whether another sentence would be more appropriate, but whether the trial court abused its broad discretion in sentencing a defendant. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

This court went on to agree with the fifth circuit, who, in State v. Lisotta, 98-648, p. 4 (La.App. 5 Cir. 12/16/98), 726 So.2d 57, 58, writ denied, 99-433 (La.6/25/99), 745 So.2d 1183, stated that a reviewing court should consider three factors in reviewing the trial court’s sentencing discretion:

1. The nature of the crime,
2. The nature and background of the offender, and
|103. The sentence imposed for similar crimes by the same court and other courts.

In the current case, at the sentencing hearing, the trial court stated for the record:

You appeared in this court and you were convicted by a jury of home invasion and first degree robbery. I discussed with your attorney and Ms. Garcia regarding the mistake made in the presentence investigation. It should have reflected that jury convicted you of home invasion and first degree robbery not armed robbery. I note that you are in fact a fourth felony offender. I’ve reviewed the PSI. I’ve made it available to your attorney to review. I’ve read your statement. I’ve noted the victim impact statement. As I stated earlier, I noted that you are a fourth felony offender. I’ve reviewed the sentencing guidelines. In this court’s opinion, a lesser sentence would not address the seriousness of these offenses that you committed. And this is not the first time that you have gone into someone’s home or a dwelling. You were originally back in 2000 in fact — and of course the PSI reflects all this and I’m going to cause it to be filed in the record — you were originally charged with aggravated burglary and armed robbery and allowed to plead guilty to aggravated burglary. And then you have some other felonies as well.

The defendant argues that the trial court did not state for the record sufficient aggravating factors to warrant maximum sentences, particularly maximum sentences that are also ordered to be served consecutively. However, the trial court is not required to list every aggravating or mitigating circumstance as long as the record reflects that it adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688, 698 (La.1983). 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.Code Crim.P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982).

As noted above, the trial court ordered and reviewed a presentence report and filed it into the record. The report indicated that the defendant was thirty-four at the time. He had a tenth grade education. In the defendant’s statement, he admitted he relied on a life of crime to support a drug and alcohol problem. The |nreport revealed that while he was not married, he had four children, whom, he claimed, he supported. Prior to the current offenses, he had been arrested five times, involving twelve offenses, starting in 1997. He pled guilty to two misdemeanors and four felonies. Several of the sentences imposed were suspended, and he was placed on probation. In each case, the probation was revoked and he was required to serve out the sentence. The defendant has never satisfactorily completed a term of probation or parole.

The trial court heard the evidence at trial that supported a conviction for armed robbery, but the jury chose to convict the defendant of first degree robbery, an offense that involves threats of death or great bodily harm to more than one person. The defendant also argues that it was error for the trial court to order the sentences to run consecutively pursuant to La.Code Crim.P. art. 883, which provides that, when two or more convictions arise from the same 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 all be served consecutively. However, the jurisprudence recognizes that it is within a trial court’s discretion to order sentences to run consecutively rather than concurrently. State v. Bartie, 12-673 (La.App. 3 Cir. 12/5/12), 104 So.3d 735. “The factors to consider when imposing consecutive sentences include defendant’s criminal record, the severity or violent nature of the offenses, or the danger the defendant poses to the public.” State v. Wallace, 11-1258, p. 14 (La.App. 3 Cir. 5/30/12), 92 So.3d 592, 602, writs denied, 12-1861, 12-1865 (La.3/8/13), 109 So.3d 355. Failure to articulate specific reasons for consecutive sentences does not require remand if the record provides an adequate factual basis to support consecutive sentences. State v. Williams, 08-556 (La.App. 5 Cir. 1/13/09), 8 So.3d 3, writ denied, 09-330 (La.11/6/09), 21 So.3d 298. Furthermore, while noting that particularly where the convictions arise out of the same course of conduct, in State v. Brown, 627 So.2d 192, 199 (La.App. 3 Cir.1993), writ denied, 93-3101 (La.3/18/94), 634 So.2d 850, this court stated that “in cases involving offenders without prior felony record, concurrent rather than consecutive sentence should be imposed[.]” This defendant has a significant felony record.

This court affirmed a thirty-year sentence imposed on a conviction for first degree robbery in State v. Sullivan, 02-360 (La.App. 3 Cir. 10/2/02), 827 So.2d 1260, writs denied, 02-2931 (La.4/21/03) 841 So.2d 790 and 02-2965 (La.9/5/03), 852 So.2d 1024. The defendant, who had four prior convictions, robbed a bank while pretending he had a gun. In the current case, while the maximum sentences imposed consecutively for a total of sixty-five years is harsh, we cannot say that the trial court abused its vast discretion when it sentenced the defendant. There were two elderly victims, there was a serious threat of death or great bodily harm, and the defendant has a lengthy criminal history involving violent crimes.

ILLEGALLY LENIENT SENTENCE

Lastly, the defendant argues that the sentences are illegally lenient and indeterminate. He notes that at the sentencing hearing, when the trial court pronounced the sentences, it stated only that the sentences were to be served without parole. The trial court did not recite the standard language, “without the benefit of parole, probation, or suspension of sentence.” See La.R.S. 14:62.8(B)(2) and 14:64.1(B). However, La.R.S.15:301.1 provides, in pertinent part:

A. When a criminal statute requires that all or a portion of a sentence imposed for a violation of that statute be served without benefit of probation, parole, or suspension of sentence, each sentence which is imposed under the provisions of that statute shall be deemed to contain the provisions relating to the service of that sentence 11swithout benefit of probation, parole, or suspension of sentence. The failure of a sentencing court to specifically state that all or a portion of the sentence is to be served without benefit of probation, parole, or suspension of sentence shall not in any way affect the statutory requirement that all or a portion of the sentence be served without benefit of probation, parole, or suspension of sentence.
C. The provisions of this Section shall apply to each provision of law which requires all or a portion of a criminal sentence to be served without benefit of probation, parole, or suspension of sentence, or of any one of them, any combination thereof, or any substantially similar provision or combination of substantially similar provisions.

In cases in which the trial court does not recite restrictions on probation or suspension of sentence at sentencing, La.R.S. 15:301.1(A) deems that those required statutory restrictions are included in the sentence, whether the sentencing court imposes them or not. State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790. Furthermore, in a case where the trial court did not specify that the sentence was not subject to probation or suspension of sentence when required by statute, the fifth circuit, in State v. Fletcher, 03-60, p. 12 (La.App. 5 Cir. 4/29/03), 845 So.2d 1213, 1222, held that “a trial court is in substantial compliance with the sentencing directives of the multiple offender statute if the court does not affirmatively suspend any portion of the enhanced sentence or impose any probationary period, despite the failure to state the above restrictions.”

The defendant also argues that the trial court did not indicate for the record how many of the years imposed on the home invasion conviction were to be served without parole. However, the trial court did state that “[Regarding the home invasion[,] because at least one of the occupants was sixty-five years of age or older, the sentence of the court is twenty-five years at hard labor without parole.” 114The trial court quite clearly ordered that the entire sentence to be served without parole.

The defendant further argues that the trial court failed to impose a mandatory fine, and as such, the sentence is illegally lenient. The defendant argues “This error alone requires that the matter be remanded to the trial court for the imposition of the fine.” The home invasion statute provides that, in a case where there is present in the dwelling a person sixty-five years or older, the offender “shall be fined not more than ten thousand dollars.” La.R.S. 14:62.8(B)(2).

This court has routinely declined to recognize La.R.S. 14:62.8(B)(2) as requiring vacation of the sentence and remanding even though no fine was imposed. See State v. Francois, 06-788 (La.App. 3 Cir. 12/13/06), 945 So.2d 865, wherein this court did not find the defendant’s sentence excessive or deficient even though he did not receive a fine as mandated by statute. We find that when the sentence includes a penalty of a fine of “not more than” a certain amount without also including a minimum fine, the trial court’s failure to impose a fine does not make the sentence illegally lenient. A fine of $0 is “not more than ten thousand dollars.”

CONCLUSION

The defendant’s convictions and sentences are affirmed.

AFFIRMED.


author: ROBERT A. CHAISSON, Judge.

text:
    LAW OFFICES OF FRED L. HERMAN, APLC, et al v. Belinda HELMER.
    No. 12-CA-897.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 9, 2013.
    Rehearing Denied Oct. 31, 2013.
    See also — So.3d -, 2013 WL 5552904.

      David R. Cannella, Attorney at Law, New Orleans, LA, for Plaintiff/Appellee.
    Richard H. Barker, IV, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, ROBERT A. CHAISSON, and HANS J. LILJEBERG.
   ROBERT A. CHAISSON, Judge.

|2In this suit on open account for attorney fees, Belinda Helmer appeals from a summary judgment in the amount of $363,059.72 in favor of the Law Offices of Fred L. Herman, APLC, et al. For the following reasons, we affirm that judgment.

FACTS AND PROCEDURAL HISTORY

Mrs. Helmer employed plaintiffs’ law firm in January of 2006 to handle her late husband’s succession on an hourly fee basis. By the spring of 2007, it appears that Mrs. Helmer was unable to continue paying the hourly fees, therefore the parties confected an alternative payment plan. Attorney Fred Herman sent Mrs. Helmer a letter dated April 10, 2007, in which he set forth the new fee arrangement. After February 16, 2007, the firm would continue to bill at hourly rates for recovery of up to 2.5 million dollars, with a 25% contingency fee on any amounts recovered over 2.5 million. The firm would advance all costs and no payments would be due until the succession assets were distributed. Mrs. Helmer approved and signed the letter on that same date.

The succession proceedings dragged on until early 2009. On January 26, 2009, Mrs. Helmer executed an Irrevocable Assignment of Proceeds in which she | ¡¡admitted owing $325,000.00 in fees. The interested parties to the succession scheduled a mediation in early May 2009, to resolve the remaining issues in the succession. On May 4, 2009, Mrs. Helmer had not yet paid the legal fees. On that date, she executed a second Irrevocable Assignment of Proceeds, in which she admitted owing the attorneys $365,555.00, and assigned them this amount from the proceeds of the succession upon its conclusion.

As of February 24, 2011, the fees had still not been paid, and on that date the attorneys filed the present action on open account. The petition recited that after various adjustments for additional fees and costs since May 4, 2009, and giving credit for amounts paid on the account, Mrs. Helmer still owed $363,059.72 in fees and costs. Plaintiffs urged a motion for summary judgment, and after a hearing on March 21, 2012, judgment was granted in the above amount. A motion for a new trial urged by Mrs. Helmer was subsequently denied. This appeal followed.

DISCUSSION

Mrs. Helmer urges two assignments of error. First, she contends that there are issues of material fact in dispute which preclude entry of summary judgment, and second, she asserts that her motion for a new trial was improperly denied.

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant, A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; i.e., whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Samaha v. Rau, 07-1726, (La.2/26/08), 977 So.2d 880, 882-83. See also La. C.C.P. art. 966.

A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions, together with the |4affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C. P. art. 966(B)(2). “The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action ... The procedure is favored and shall be construed to accomplish these ends.” La. C.C.P. art. 966(A)(2).

In the present case, plaintiffs presented the April 10, 2007 letter, signed by Mrs. Helmer, which established the new fee agreement for billable hours for work on the first 2.5 million dollars of recovery, and a 25% contingency fee for recovery above that amount. They also presented the January 26, 2007 and May 4, 2007 Irrevocable Assignments of Proceeds, which acknowledged fees owing of $325,000.00 and $365,000.00, respectively. Both of these assignments are in authentic form. They also presented another document dated May 4, 2007, and signed by Mrs. Helmer, showing a general breakdown of fees, wherein she again acknowledged a fee balance of $365,000.00. Plaintiffs also presented an affidavit of Thomas J. Barbera, one of the plaintiffs at the law firm, stating that since the execution of the May 4, 2007 assignment and acknowledgement, various charges for additional legal work accrued and various payments were made, leaving a balance of $359,195.72. Also, additional costs incurred were $3,864.00, leaving a total balance owing of $363,059.72.

In response, Mrs. Helmer presented a document styled Statement of Contested Facts Precluding Summary Judgment. At the end of this document is a notarized recitation that all of the facts recited there are within her personal knowledge, and are truthful and accurate. The document is attached to a memorandum in opposition to the motion for summary judgment which contains other factual allegations, and the recitation noted above also represents that all of the facts stated on the memorandum are also accurate on her personal knowledge.

1 ¡¡Plaintiffs urged that neither the statement of contested facts nor the memorandum in opposition to the motion for summary judgment constituted acceptable evidence in the summary judgment proceeding, citing Kaufman v. Cleaton, 03-452 (La.App. 4 Cir. 10/8/03), 861 So.2d 586. While we agree that the memorandum is not properly sufficient to meet the requirements of La. C.C.P. art. 967, the result is different as to the statement of contested facts. That document recites specific facts which Mrs. Helmer swears are known to her personally. That it is not styled as an “affidavit” does not render it any less a sworn statement of specific facts known personally to her. In this circumstance, we accept that document as sufficient for purposes of the summary judgment proceedings.

However, accepting the statement as proper does not end the inquiry. The issue remains whether any of the facts presented there create issues of material fact which would defeat summary judgment. In the statement, Mrs. Helmer asserts that the January 26, 2007 assignment of proceeds was signed by her with the understanding that the amount stated there was only an estimate of fees owing. However, she makes no mention in the statement of the May 4, 2007 assignment by authentic act which recites that the fees owing are $365,555.00, nor does she mention the May 4, 2007 synopsis of legal bills owing in the same amount, which she also acknowledged by signing.

In her judgment the trial judge notes that there are no material facts in dispute as to fees and costs owing as set forth in the affidavit of Thomas Barbera. Significantly, that affidavit makes reference to the assignment of May 4, 2007, which as noted above was not contested in Mrs. Helmer’s statement of contested facts. Because our review here is de novo, we have considered all of the evidence of record that is sufficient under the standards set forth in the summary judgment procedure, and we find that there is no dispute as to any material facts as to the | (¡attorney fees and costs owing, and that movers are entitled to judgment as a matter of law.

The second issue is whether the motion for a new trial was improperly denied. The pertinent law is La. C.C.P. art. 1972(2), which provides that a new trial shall be granted when a litigant discovers “evidence important to the cause, which he could not, with due diligence, have obtained before or during trial.” Mrs. Helmer submitted with her motion for a new trial a document which basically repeated the assertions of fact contained in her earlier Statement of Contested Facts Precluding Summary Judgment, with one significant addition. She now claimed that the May 4, 2007 assignment of proceeds was merely an estimation of fees and costs owing, and that she signed it with this understanding. The problem with this submission is that it does not contain any facts or information discovered “since the trial,” but merely amplifies facts long known to Mrs. Helmer, but simply not presented at the hearing on the motion for summary judgment. In this circumstance, the trial judge clearly did not abuse her discretion in denying the motion for new trial.

DECREE

For the foregoing reasons, the summary judgment in favor of plaintiffs in the amount of $363,059.72 is hereby affirmed.

AFFIRMED