author: WILLIAMS, J.

text:
    Carolyn MARTIN, Milton Lee and Mary Louise Lee on Behalf of their Daughter Sheila A. LEE, Plaintiff-Appellant v. Bruce WALKER and ANPAC Louisiana Insurance Company, Defendant-Appellee.
    No. 47,483-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 10, 2012.

      Eddie M. Clark, for Appellant.
    Cyd S. Page, Lafayette, LA, for Appel-lee.
    Before WILLIAMS, STEWART and CARAWAY, JJ.
   WILLIAMS, J.

_[xjhe plaintiffs, Milton Lee and Mary Lee, on behalf of Sheila Lee, appeal the trial court’s award of damages. The trial court granted the plaintiffs’ motion for judgment notwithstanding the verdict (“JNOV”) and awarded plaintiffs the amount of $17,000 in general damages. For the following reasons, we affirm.

FACTS

On July 27, 2009, Carolyn Martin was involved in a traffic accident when her automobile was struck by a vehicle driven by Bruce Walker in Monroe, Louisiana. Sheila Lee was a passenger in the Martin vehicle. Sheila is an adult in her 50s who is not mentally capable of earing for herself and Martin was one of her caretakers. Sheila was transported by ambulance to St. Francis North Hospital. After an examination, she was diagnosed with a contusion of her right knee and discharged. Three days later, Sheila presented to the office of Dr. Dan Holt, who diagnosed her with post-accident cervical headaches. Dr. Holt treated Sheila from July 30, 2009 through December 3, 2009. She was also seen by a nurse practitioner, Tammy Dixon, on two occasions at Sole Care, a private healthcare facility.

In November 2009, a cervical MRI was ordered because Sheila continued to have pain. The MRI showed minimal disc bulging at the C5-6 and C6-7 levels. Dr. Holt referred Sheila to Louisiana Pain Care, where she was treated by Dr. John Led-better. On December 7, 2009, Dr. Ledbet-ter performed right-sided medial branch injections of her cervical spine. Upon releasing Sheila from his care, Dr. Holt completed a form stating that she had returned to her pre-accident status and had reached maximum medical ^benefit from her treatment.

Subsequently, the plaintiffs, Carolyn Martin and Milton and Mary Lee, on behalf of their daughter, Sheila, filed a petition for damages against the defendants, Bruce Walker and his insurer, ANPAC Louisiana Insurance Company. Before trial, the parties stipulated that Walker was at fault in causing the accident and Martin’s claims were dismissed pursuant to a settlement. Thus, quantum was the sole remaining issue. After a trial, the jury awarded the plaintiffs damages of $25,496.58 for medical expenses, $6,500 for past physical pain and $500 for past mental anguish. The jury did not award any damages for future physical pain, future mental anguish or loss of enjoyment of life. Plaintiffs filed a motion for JNOV and alternatively, for additur or new trial, on the grounds that the jury’s damage award was inadequate.

After a hearing; the trial court granted the motion for JNOV and issued written reasons, finding that the jury award was inadequate for Sheila’s soft tissue injury based on the evidence. The court rendered judgment awarding the plaintiffs total damages of $42,496.58, including general damages of $14,000 for past physical pain, $2,000 for past mental anguish and $1,000 for loss of enjoyment of life. The plaintiffs appeal the award of general damages.

DISCUSSION

The plaintiffs contend the trial court erred in finding that Sheila suffered only soft tissue injuries. The plaintiffs argue that the trial court’s finding regarding the severity of Sheila’s injury is incorrect because the I «record indicates that Sheila suffered a bulging disc in her neck as a result of the July 2009 accident.

An appellate court may not reverse a trial court’s factual finding in the absence of manifest error. Miller v. Clout, 03-0091 (La.10/21/03), 857 So.2d 458. The issue to be resolved is whether the factfin-der’s conclusion was reasonable in light of the record as a whole. Miller, supra.

In the present case, Dr. Ledbetter testified that he was a specialist in pain management and that he first saw Sheila in November 2009. Dr. Ledbetter stated that the MRI results showed minimal disc bulging in Sheila’s cervical spine that was not touching her spinal cord. Dr. Ledbet-ter testified that on December 7, 2009, he performed medial branch injections to Sheila’s neck that were meant to relieve pain and determine whether the joint spaces between her cervical discs were causing her neck pain. He stated that after the procedure a rehabilitation nurse assessed Sheila with 25% improvement of her symptoms and that he would have expected greater improvement if the pain was caused by her joints. Dr. Ledbetter testified that Sheila attended physical therapy, which seemed to improve her condition. Because Sheila seemed to get more benefit from the chiropractic care and physical therapy than from the medial branch injections, Dr. Ledbetter opined that her pain was primarily muscular in nature. Based upon this record, we cannot say the trial court was clearly wrong in finding that Sheila primarily suffered from soft tissue injuries. Thus, the assignment of error lacks merit.

| vJNOV Awarding Damages

Although plaintiffs agree with the granting of JNOV, they contend the trial court erred in finding that Sheila was given medical treatment to increase her damages claim. They argue that the court improperly weighed evidence and evaluated the credibility of witnesses in assessing damages.

A party may move for a JNOV on the issue of damages. LSA-C.C.P. art. 1811. A JNOV is warranted when the facts and inferences point so strongly in favor of one party that the court believes reasonable persons could not arrive at a contrary verdict, not merely when there is a preponderance of evidence for the mover. Davis v. Wal-Mart Stores, Inc., 00-0445 (La.11/28/00), 774 So.2d 84; Hogue v. Sussmane-Stubbs, 34,340 (La.App.2d Cir.2/28/01), 780 So.2d 1203. In making this determination, the trial court does not have the discretion to evaluate the credibility of the witnesses. The court should consider the evidence in the light most favorable to the non-moving party. Davis, supra; Hogue, supra.

After reviewing the record, we find that the trial court’s reference to the testimony of Sheila’s parents was made in the context of the court’s consideration of evidence in a light most favorable to the non-moving party. The district court’s written ruling demonstrates that in making the damage award, the court considered the evidence regarding the seriousness and duration of Sheila’s injury and her level of pain. Consequently, we cannot say the trial court erred in its evaluation of the evidence in granting the JNOV on the issue of damages.

Plaintiffs also contend the trial court erred in awarding inadequate ^damages for past physical pain, past mental anguish and loss of enjoyment of life. Plaintiffs argue that the trial court abused its discretion in awarding general damages, based on prior awards in cases involving similar injuries.

The trial court has vast discretion in awarding general damages and its determination should rarely be disturbed. LSA-C.C. art. 2324.1; Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993). On appellate review, the initial inquiry is whether the trier of fact abused its vast discretion in assessing damages. If it is determined that the trial court abused its discretion, then the appellate court may review prior awards to determine the highest or lowest point which is reasonably within the trial court’s discretion. Moody v. AIG Ins. Companies, 43,946 (La.App.2d Cir.1/14/09), 999 So.2d 1207. The appellate court should increase or reduce an award only when the award is beyond that which a reasonable trier of fact could assess for the particular injury to the particular plaintiff under the particular circumstances of the case. Miller, supra; Youn, supra; Moody, supra.

In this case, Dr. Holt provided chiropractic treatment for Sheila during a period of approximately four months, including 34 total visits. Dr. Holt stated that in his initial examinations he noted that Sheila had muscle spasms in her neck and lower back, but that her condition improved over time. Dr. Holt testified that Sheila’s last visit was on December 3, 2009, when he completed a release form stating that her pain was “gone,” that her condition was “resolved,” that she had finished her treatment plan, that she had returned to her pre-accident status and had reached maximum medical | (¡benefit from her treatment.

Sheila’s parents, Milton and Mary Lee, testified that for a period of time after the accident, Sheila was hesitant to ride in their vehicle and pointed to her neck to indicate that she felt pain. However, their testimony showed that Sheila’s condition improved over time, that she did not seek medical treatment related to the car accident after March 2010, and that she was able to visit them every other weekend as before the accident.

Based upon the evidence presented, we cannot say the trial court abused its discretion in the assessment of damages. The court reasonably determined that Sheila’s injury had resolved within eight months of the accident after considering the medical records and witness testimony. Consequently, we conclude that the award of $17,000 in general damages is reasonable for the particular injuries to this particular plaintiff under the circumstances of this case. Thus, the assignments of error lack merit.

CONCLUSION

For the foregoing reasons, the trial court’s judgment awarding the plaintiffs the amount of $42,496.58 in total damages is affirmed. Costs of this appeal are assessed onerhalf to the appellants, Milton Lee and Mary Lee, on behalf of Sheila Lee, and one-half to the appellees, Bruce Walker and ANPAC Louisiana Insurance Company.

AFFIRMED.


source: Caselaw Access Project

author: AMY, Judge.

license: Public Domain

text:
    Larry ALLEN, et al. v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS, et al.
    No. 12-430.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 2012.
    Rehearing Denied Dec. 12, 2012.

      James E. Calhoun, Victoria R. Murry, Assistant Attorneys General, Leanne Broussard, Alexandria, LA, for Defendants/Appellees, Office of Risk Management, State of Louisiana, Department of Public Safety and Corrections, Terry J. Bordelon.
    Otha Curtis Nelson, Sr., Nelson & Nelson, L.L.P., Baton Rouge, LA, for Plaintiffs/Appellants, Larry Allen, et al.
    Daniel G. Brenner, R. Preston Mansour, Jr., Bolen, Parker, Brenner, Lee & En-gelsman, LTD., Alexandria, LA, for Defendants/Appellees, John Doe, Deputy, Rapides Parish, Charles F. Wagner, Jr., Sheriff, Rapides Parish.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and J. DAVID PAINTER, Judges.
   AMY, Judge.

_JjThe plaintiffs filed suit, initially against the Department of Public Safety and Corrections as well as one of its employees, alleging that the employee was negligent in causing an automobile accident and that the plaintiffs suffered damages as a result. After the plaintiffs amended their suit to name the Rapides Parish Sheriff and an unknown deputy as defendants, the defendants filed an exception of prescription and an exception of improper venue. The trial court granted the exception of prescription as to four of the five plaintiffs and dismissed those plaintiffs’ claims against all defendants. Further, the trial court granted the exception of improper venue and ordered that the remaining plaintiffs’ claims be transferred. The plaintiffs appeal. For the following reasons, we affirm.

Factual and Procedural Background

The record indicates that the plaintiffs in this case, Larry Allen, Victor Jones, Evan Peter Roy, Fred Allen Wesley, and Maurice Johndell Wright, are all inmates in the custody of the Louisiana Department of Public Safety and Corrections (DPSC) at the Avoyelles Correctional Center. According to the petition, on January 9, 2007, the plaintiffs were passengers in a van owned by DPSC and driven by one of its employees, Terry Bordelon (the “State defendants”). The plaintiffs allege that Mr. Bordelon negligently drove the van off the roadway, striking two mailboxes. As a result, the plaintiffs allege that they received physical injuries and that the State defendants failed to ensure adequate medical treatment of those injuries.

On January 9, 2008, the plaintiffs filed suit in East Baton Rouge Parish. The record indicates that DPSC was served through the Attorney General’s office on January 22, 2008 and Mr. Bordelon was served via domiciliary service on January 24, 2008. Thereafter, the State defendants filed exceptions of improper venue and prematurity, alleging that La.R.S. 15:1184(F) requires that prisoner suits be filed in |2“the parish where the prison is situated to which the prisoner was assigned when the cause of action arose.” After a hearing, the East Baton Rouge Parish trial court granted the exception of improper venue and ordered that the case be transferred to Avoyelles Parish.

The State defendants filed their answer, asserting that an unknown Rapides Parish Sheriffs deputy made a sudden U-turn causing traffic to stop suddenly and placing the defendants’ van in a position of imminent peril. The plaintiffs subsequently filed a supplemental and amended petition, adding Charles Wagner, the Sheriff of Rapides Parish, and a John Doe deputy sheriff (the “Rapides defendants”) as defendants.

Thereafter, the State defendants filed exceptions of lack of subject matter jurisdiction and prescription. In response, the plaintiffs filed a supplemental and amended petition asserting that the Corrections Administrative Remedy Procedure (CARP), La.R.S. 15:1171-1179, is unconstitutional. The plaintiffs asserted that this amendment removed any objection to their suit. Further, the Rapides Parish defendants filed another exception of improper venue, asserting that pursuant to La.R.S. 13:5104(B), suits against political subdivisions must be filed in the parish where the subdivision is located.

After hearings on the exception of prescription and exception of improper venue, the trial court found that with the exception of the claims of Evan Peter Roy- the plaintiffs’ claims had prescribed. Further finding that the claims against the Rapides Parish defendants must be heard in Rap-ides Parish, the trial court ordered the remaining plaintiffs claims transferred to that parish.

|sThe plaintiffs now appeal, asserting that the trial court erred in granting the exception of prescription.

Discussion

Prescription & Improper Venue

The exception of prescription is a peremptory exception which may be “pleaded at any stage of the proceeding in the trial court prior to a submission of the case for a decision[.]” La.Code Civ.P. arts. 927 and 928. The party asserting the exception typically bears the burden of proof at the trial of the peremptory exception. Carter v. Haygood, 04-646 (La.1/19/05), 892 So.2d 1261. Further, if evidence is introduced at the hearing on the exception of prescription, the district court’s factual findings are reviewed under the manifest error-clearly wrong standard of review. Id. (citing Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993)).

“Delictual actions are subject to a libera-tive prescription of one year. This prescription commences to run from the day injury or damage is sustained.” La.Civ. Code art. 8492. However, “[pjrescription is interrupted when ... the obligee commences action against the obligor, in a court of competent jurisdiction and venue. If action is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period.” La.Civ.Code art. 3462. In their petition, the plaintiffs allege that they were injured in an automobile accident that occurred on January 9, 2007. Accordingly, they had one year from that date to file suit.

Initially, on January 9, 2008, the plaintiffs filed suit against the State defendants in East Baton Rouge Parish. See La.R.S. 13:5104(A). However, the State defendants filed an exception of improper venue, alleging that venue was only appropriate in [ 4Avoyelles Parish pursuant to the Prison Litigation Reform Act (PLRA), La. R.S. 15:1181-1191. After a hearing, the East Baton Rouge trial court granted the exception and transferred the case to Avo-yelles Parish.

Louisiana Revised Statutes 15:1184(F) provides, in part, that “[t]he exclusive venue for delictual actions for injury or damages shall be the parish where the prison is situated to which the prisoner was assigned when the cause of action arose.” We observe, however, that La.R.S. 15:1184(F) must be read within the context of the PLRA, which defines a “[cjivil action with respect to prison conditions” or “prisoner suit” as “any civil proceeding with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison, but does not include post conviction relief or habeas corpus proceedings challenging the fact or duration of confinement in prison.” La.R.S. 15:1181(2).

Here, the plaintiffs seek damages in tort for injuries they suffered as a result of the alleged negligence of Mr. Bergeron, an employee of DPSC. “Under the post-Pope [v. State, 99-2259 (La.6/29/01), 792 So.2d 713] statutory scheme, all complaints and grievances, including traditional tort claims seeking monetary relief, are subject to administrative procedures.” Wood v. Martin, 37,856, p. 5 (La.App. 2 Cir. 12/10/03), 862 So.2d 1057, 1060. See also La.R.S. 15:1172 and La.R.S. 15:1184. Further, the |5plaintiffs contend that the State defendants failed to provide them with proper medical care. We find that this claim relates to the plaintiffs’ “conditions of confinement.” La.R.S. 15:1181(2). Accordingly, transfer of venue under the PLRA was proper.

The record indicates that, although the plaintiffs initially filed suit on January 9, 2008, DPSC was not served until January 22, 2008 and Mr. Bordelon was not served until January 24, 2008. Thus, because the defendants were not served within the prescriptive period, the filing of suit in an improper venue failed to interrupt prescription. La. Civ. Code art. 3462. Accordingly, with regard to plaintiffs Larry Allen, Victor Jones, Fred Allen Wesley, and Maurice Johndell Wright, because the State defendants were not served until after the prescriptive period for delictual actions had run, their claims had prescribed. See also Charles v. First Fin. Ins. Co., 97-1185 (La.App. 3 Cir. 3/6/98), 709 So.2d 999, writ denied, 98-933 (La.5/15/98), 719 So.2d 466.

However, the parties concede that one plaintiff, Evan Peter Roy, pursued his administrative remedies pursuant to CARP. Accordingly, the prescriptive period for his cause of action was suspended from the time he filed his grievance until a final agency decision was rendered. La. R.S. 15:1172(E). In its reasons for ruling, the trial court states that a final agency decision was rendered with regard to Roy’s grievance on April 4, 2007. Accordingly, Mr. Roy’s claims have not prescribed.

_J¿Addition of the Constitutionality Claims

The plaintiffs contend that, even if their claims had prescribed, that deficiency was cured by filing their second supplemental and amended petition, which alleges that CARP is unconstitutional “because it deprives [the plaintiffs] of due process of law and the equal protection of law that other guest passengers involved in an automobile accident have the legal right to file a petition for damages in tort under the provisions of’ La.Civ.Code art. 2315. The plaintiffs also point to La.Code Civ.P. art. 934, which permits amendment of the petition after a peremptory exception is sustained in order to cure the basis for the objection.

Unlike the typical assertion that a claim made in an amended petition pursuant to La.Code Civ.P. art. 1153 relates back to claims made in a previous timely filed petition, see Bethea v. Modern Biomedical Servs., Inc., 97-332 (La.App. 3 Cir. 11/19/97), 704 So.2d 1227, writs denied, 97-3169, 97-3170 (La.2/13/98), 709 So.2d 760-61, the plaintiffs claim that their amended petition cures the defects in their untimely filed petition by alleging a new constitutionality claim. However, “an untimely filed original petition does not support the relation-back of a new cause of aetion[.]” Smith v. Cutter Biological, 99-2068, p. 37 (La.App. 4 Cir. 9/6/00), 770 So.2d 392, 413.

The Rapides defendants, in brief, contend that even if CARP is unconstitutional, “it does not change the fact that plaintiffs’ claim has prescribed. Even without [CARP], Larry Allen, Victor Jones, Fred Allen, and Maurice Johndell Wright filed their cause of action in a court [of] improper venue and did not serve a single defendant within the prescriptive period. Here, an unconstitutional statute would not extend the prescriptive period.”

In this case, the plaintiffs’ claims prescribed because they filed suit in an improper venue pursuant to La.R.S. 15:1184(F) and failed to serve the defendants |7prior to the expiration of the prescriptive period for delictual actions found in La.Civ.Code art. 3492, not because the administrative procedures delineated in CARP, La.R.S. 15:1171-1179, allegedly deprive them of the right to file a petition for damages in tort. To the contrary, La.R.S. 15:1177(C) states that “[t]his Section shall not apply to delictual actions for injury or damages, however styled or captioned. Delictual actions for injury or damages shall be filed separately as original civil actions.” See also Todd v. Tate, 04-2754 (La.App. 1 Cir. 12/22/05), 928 So.2d 113, writ denied, 06-158 (La.4/26/06), 926 So.2d 542 (finding no error in the trial court’s grant of exceptions of improper venue and prescription where the plaintiff attempted to cure a defect as to venue, and thus revive his delictual action, by adding his uninsured motorist insurer as a defendant).

Accordingly, we find no error in the trial court’s grant of the exception of prescription.

DECREE

For the foregoing reasons, we affirm the January 18, 2012 judgment of the trial court. Costs of this appeal are allocated to the plaintiffs, Larry Allen, Victor Jones, Evan Peter Roy, Fred Allen Wesley, and Maurice Johndell Wright.

AFFIRMED.

      . The plaintiffs do not assign as error the trial court's grant of the exception of improper venue and subsequent transfer of the case to Rapides Parish. Accordingly, that issue will not be addressed herein. Uniform Rules— Courts of Appeal, Rule 1-3.

      . In Pope, 792 So.2d 713, the supreme court held that portions of CARP were unconstitutional as they deprived the trial court of original jurisdiction in tort actions. Thereafter, the legislature enacted 2002 La. Acts, 1st Extraordinary Session, No. 89 (Act 89), which, in part, amended La.R.S. 15:1172 and La.R.S. 15:1184 to:
      provide with respect to the initiation and limitation of administrative remedies; ... to provide liberative prescription for certain actions; to provide for judicial review; to exempt delictual actions from judicial review under the Corrections Administrative Remedy Procedure Act; to provide proper venue for prisoner suits; ... and to provide for related matters.
      In Cheron v. LCS Corr. Servs., 04-703, p. 10 (La.1/19/05), 891 So.2d 1250, 1257, the supreme court, in addressing whether the provisions of Act 89 applied retroactively to an inmate’s negligence action, stated that "[DPSC] has instituted a two-step system of review to address inmates’ formal grievances. If dissatisfied, the inmate pursing a tort claim may file suit in district court. Thus, original jurisdiction of tort claims following Act 89 remains with die district court.” See also Mosley v. Louisiana Dept. of Pub. Safety & Corr., 07-1501 (La.App. 3 Cir. 4/2/08), 980 So.2d 836; Gray v. State, 05-617 (La.App. 3 Cir. 2/15/06), 923 So.2d 812.

      . Compare Zeitoun v. City of New Orleans, 11-479 (La.App. 4 Cir. 12/7/11), 81 So.3d 66 (In the context of an improper cumulation of actions exception, finding that an inmate’s suit alleging, in part, lack of medical care, was a prisoner suit pursuant to the PLRA.), writ denied, 12-426 (La.4/9/12), 85 So.3d 704, with Poullard v. Pittman, 39,549 (La.App. 2 Cir. 4/13/05), 900 So.2d 310 (An inmate’s medical malpractice action against treating doctor and hospital was not subject to the PLRA), writ denied, 05-1507 (La.1/13/06), 920 So.2d 237.


author: HARRISON, Judge Pro Tem.

text:
    STATE of Louisiana, Appellee v. Eric D. WALTER, Appellant.
    No. 47,149-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 14, 2012.
    Cary J. Ellis, III, Louisiana Appellate Project, for Appellant.
    Charles Rex Scott, District Attorney, Jason T. Brown, Assistant District Attorney, for Appellee.

      Before WILLIAMS, STEWART and HARRISON (Pro Tempore), JJ.
   HARRISON, Judge Pro Tem.

I,The defendant, Eric D. Walter, pled guilty to one count of possession with intent to distribute a Schedule I controlled dangerous substance, marijuana. Pursuant to the terms of his plea agreement, he was sentenced to serve 15 years at hard labor. He was also ordered to pay a fine of $5,000 plus court costs, through the inmate banking system, or to serve 60 days in lieu of payment of the fíne. Pursuant to a writ grant by this court, the defendant was allowed to bring an out-of-time appeal. His appellate counsel filed a motion to withdraw, together with an An-ders/Benjamin brief. The motion to withdraw is granted and the defendant’s conviction and sentence are affirmed.

FACTS

The defendant was charged by bill of information with one count of conspiracy to distribute a controlled dangerous substance, marijuana, and one count of possession with intent to distribute a controlled dangerous substance, marijuana. On February 14, 2011, the defendant appeared before the trial court, with retained counsel, and entered a plea of guilty to the charge of possession with intent to distribute a controlled dangerous substance, marijuana. Under the plea agreement, the defendant was to receive an agreed-upon sentence of 15 years at hard labor, with credit for time served, and with the imposition of a fine and court costs to be paid through inmate banking.

According to the facts recited by the state at the defendant’s guilty plea hearing, on February 18, 2009, during a narcotics investigation 12concerning the defendant and two other individuals, it was learned that the defendant supplied one of the other individuals with marijuana for sale. The marijuana was retrieved from that individual and was determined by the crime lab to be marijuana. The trial court advised the defendant of his Boykin rights and informed him of the minimum and maximum sentences that could be imposed. He was also informed that he did not have the right to appeal. The defendant stated that he was pleading guilty because he was, in fact, guilty. The trial court accepted the plea as being made freely and voluntarily without anyone having forced or coerced him to do so.

The defendant was sentenced to the agreed term of imprisonment of 15 years at hard labor, to run concurrently with any other sentence. Credit was given for time served. The defendant was also ordered to pay a fine of $5,000 through inmate banking, plus costs, or to serve 60 days in lieu of payment of the fine. The defendant was properly informed of the time limits for filing for post-conviction relief.

On June 2, 2011, the defendant filed in the trial court a motion for production of documents, seeking copies of the guilty plea colloquy, sentencing transcript, and Boykinization. The defendant alleged that his guilty plea was invalid because he did not knowingly and intelligently waive his rights under Boykin. On June 3, 2011, the trial court signed an order granting the defendant’s motion for production of documents.

On June 27, 2011, the defendant filed in the trial court a motion for home incarceration, arguing that he is a 37-year-old three-time felony | ^offender who had served four months of his 15-year sentence, that he had rehabilitated himself, and should be considered for “electronic monitoring supervision.” The motion was denied by the trial court on July 1, 2011.

On July 21, 2011, the defendant filed a notice of intent to apply for “supervisory writs/appeal.” The defendant argued that his sentence is excessive. On July 25, 2011, the trial court refused to grant the writ as untimely and because the defendant waived his right to appeal.

The defendant filed a writ application with this court seeking review of the trial court’s denial of his notice of intent to apply for supervisory review/appeal, which sought review of his sentence. This court had only the trial court minutes to review on the writ application and those minutes did not reflect that the defendant had an agreed-upon sentence, waiving his right to appeal. On September 22, 2011, based upon the record before us, we granted the writ and remanded the matter to the trial court for consideration of an out-of-time appeal. We specified that, if the trial court denied the request again, it should provide written reasons to this court.

On September 27, 2011, the trial court granted the defendant an out-of-time appeal. The defendant’s appellate counsel filed an Anders brief, seeking to withdraw. The defendant’s counsel stated that he could not find any nonfrivolous issues to raise on appeal. See Anders v. California, supra; State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241; State v. Mouton, 95-0981 (La.4/28/95), 658 So.2d 1176; and State v. Benjamin, supra. The brief outlined the procedural history of the case and the facts set forth by the prosecution, as previously noted. The brief contained a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing. State v. Jyles, supra. The state filed a letter with the court agreeing that there are no nonfrivolous issues to raise on appeal and declining to file a brief.

Appellate counsel verified that copies of the motion to withdraw and the appellate brief were mailed to the defendant in accordance with the Anders, Jyles, Mouton, and Benjamin cases. The defendant was also supplied with the pro se briefing notice.

On June 29, 2012, the defendant mailed to this court his notice of intent to file a pro se brief in which he stated that he would file his brief by July 25, 2012. On July 12, 2012, this court issued an order stating that appellate counsel’s motion to withdraw was being held in abeyance. The defendant was notified that he could file his own brief in this appeal within 30 days of the date of the order. The defendant was given 10 days to file a written request to view the appellate record. The defendant did not request the record and has not filed a brief in this matter.

DISCUSSION

This court has conducted an error patent review of the appellate record and no errors patent were found. The bill of information and arraignment were correctly done. There were no errors patent found in the guilty plea or sentencing proceedings. Furthermore, the defendant is | ^precluded from seeking review of his sentence because it was imposed in conformity with a plea agreement set forth in the record at the time of the plea. La. C. Cr. P. art. 881.2.

CONCLUSION

The motion to withdraw is granted, and the defendant’s conviction and sentence are affirmed.

MOTION TO WITHDRAW GRANTED; CONVICTION AND SENTENCE AFFIRMED.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990).

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      . Upon review of the transcript of the guilty plea colloquy, it is clear that the defendant pled guilty with an agreed-upon sentence set forth in the record at the time of the plea. Under La. C. Cr. P. art. 881.2(A)(2), the defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. At the time of the guilty plea, the defendant was informed that he waived his right to appeal. The trial court correctly denied the appeal on July 25, 2011, but the record before us was not sufficient to affirm the trial court's action.


author: BROWN, Chief Judge.

text:
    Laura McKINNEY, Plaintiff-Appellant v. Maria CRUZ and Her Insurer, State Farm Insurance Company Jointly and Insolido, Defendants-Appellees.
    No. 47,224-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 14, 2012.

      S.P. Davis, Sr., for Appellant.
    Thomas A. Bordelon, Shreveport, LA, for Appellees.
    Before BROWN, WILLIAMS, and SEXTON (Pro Tempore), JJ.
   BROWN, Chief Judge.

| j Plain tiff, Laura McKinney, appeals from the judgment of the trial court finding her to be 40% at fault in an automobile accident. For the following reasons, we affirm.

Facts and Procedural Background

On July 23, 2009, at approximately 6:10 a.m., plaintiff, Laura McKinney, and defendant, Maria Cruz, were involved in an automobile accident in the parking lot of their employer, Holy Angels Residential Facilities, in Shreveport, Louisiana. Plaintiff, who was arriving late for her 6:00 a.m. shift, was traveling in the main travel lane of the parking lot to clock in, when defendant, who was leaving work, collided with her. Sergeant Dews of the Shreveport Police Department responded to the incident. According to his testimony and the evidence submitted, the accident caused minor damage to the front passenger side of plaintiffs 1985 Cadillac and minor damage to the front driver side of defendant’s 1999 Chevrolet Trailblazer. Neither party reported any injuries at the scene.

As to the cause of the accident, Sergeant Dews testified that, based upon witness statements at the scene, he determined that defendant had cut across empty parking spaces and was in the main travel lane when she collided with plaintiff. Sergeant Dews did not determine what speed either party was driving, nor did he issue any traffic citations.

Star Wilson, an eyewitness to the accident, testified that defendant was exiting the parking lot in the fashion that most employees do after they clock out. Moreover, she stated that it appeared that plaintiff was traveling faster than the signed speed limit of 15 miles per hour. Ms. Wilson testified |2that she asked both plaintiff and defendant, if they were injured and that they both replied, “No.”

Three weeks after the incident, plaintiff presented to Dr. Dharam Gurwara complaining of left knee pain. Dr. Gurwara referred plaintiff to Charles Jackson, a licensed physical therapist, who diagnosed plaintiff with a left knee contusion. Plaintiff went through weekly treatment sessions with Mr. Jackson until she was discharged on September 28, 2009. On February 17, 2010, plaintiff filed suit against defendant and her insurer, State Farm Insurance Company.

Trial on this matter was set for January 18, 2011. On that date plaintiffs counsel, S.P. Davis, Sr., made an oral motion for a continuance; defendant’s counsel objected, but the trial court granted plaintiffs motion. Trial on this matter was eventually held on June 16, 2011. After hearing witness testimony and reviewing the evidence, the trial court ruled that plaintiff was 40% at fault and defendant was 60% at fault in the accident. The trial court, in its written reasons for judgment, awarded plaintiff special damages in the amount of $6,796.64, general damages in the amount of $8,500.00, and $400.00 for expert witness fees. After reducing the award amount to account for plaintiffs liability, the trial court awarded plaintiff $9,417.84. Thereafter, defendant filed a motion for a new trial based upon the trial court’s erroneous reliance on an incorrect medical expense amount comprising a portion of the special damages award. On September 13, 2011, the trial court signed its final judgment reflecting a net award for plaintiff in the amount of $7,632.60.

| ^Discussion

On appeal, plaintiff sets forth two assignment of errors. First, she contends that the trial court erred in assessing her with 40% of the liability. Next, she contends that the trial court erred in awarding her an excessively low amount of damages.

A trial court is required to compare the relative fault of the parties in assessing liability. In allocating fault, a trial court must consider the nature of each party’s conduct and the extent of the causal relationship between that conduct and damages. McCullin v. U.S. Agencies Casualty Ins. Co., 34,661 (La.App.2d Cir.05/09/01), 786 So.2d 269. Factors which may influence the degree of fault assigned to each party include: (1) whether the conduct resulted from inadvertence or involved an awareness of danger; (2) how great a risk the conduct created; (3) the significance of what the actors sought by the conduct; (4) the capacities of the actors, whether superior or inferior; and (5) any extenuating circumstances which might require the actors to proceed in haste, without proper forethought. Watson v. State Farm Fire & Casualty Ins. Co., 469 So.2d 967 (La.1985); Bennett v. Louisiana Farm Bureau Cas. Ins. Co., 43,216 (La.App.2d Cir.04/30/08), 983 So.2d 966.

A motorist must use such diligence and care in the operation of his vehicle as is commensurate with the circumstances. Edwards v. Horstman, 96-1403 (La.02/25/97), 687 So.2d 1007.

The trial court’s apportionment of fault is a factual determination. Williams v. City of Monroe, 27,065 (La.App.2d Cir.07/03/95), 658 So.2d 820, writs denied, 95-1998, 95-2017 (La.12/15/95), 664 So.2d 451, 452. It is well settled that a court of appeal may not set aside a trial court’s finding of fact in the absence of “manifest error” or unless such finding is “clearly wrong,” and where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Stobart v. State, through Department of Transportation and Development, 617 So.2d 880 (La.1993). If the trial court’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Neloms v. Empire Fire & Marine Ins. Co., 37,786 (La.App.2d Cir.10/16/03), 859 So.2d 225.

After hearing the testimony of the witnesses and reviewing the evidence presented during the trial, the trial court made the factual determination that both parties were at fault in the causation of the automobile accident. Specifically, the trial court found that plaintiff was traveling at an unsafe speed, and that defendant was “not following the parking-lot lines or accepted parking-lot discipline.” Plaintiff contends that this finding was erroneous as all of the evidence and witness testimony indicated that defendant was the sole cause.

At issue is whether the trial court could reasonably find that plaintiff was also at fault. Plaintiff tries to make much ado about the fact that defendant cut across empty parking spaces to designate her as the sole cause |sof the accident. Lost in this, however, is the fact that Ms. Wilson testified that plaintiff appeared to be driving over the posted speed limit. Regardless of the fact that plaintiff and LaDonna Harris, a coworker who was in the car directly behind plaintiff at the time of the accident, testified that plaintiff was not driving at an unsafe speed, it is within the discretion of the trial court to credit the testimony of Ms. Wilson over the other witnesses. Additionally, considering that the record reflects that plaintiff was already late for work, a reasonable inference of fact is that plaintiff was acting in haste.

As such, we do not find that the trial court was clearly wrong in determining that plaintiff was driving at an unsafe speed. Nor do we find its assessing 40% of the fault to plaintiff to be clearly wrong, as traveling through a parking lot at an unsafe speed undoubtedly creates a substantial risk.

The assessment of “quantum,” or the appropriate amount of damages, by a trial court is a determination of fact, one entitled to great deference on review. La. C.C. art. 2324.1; Wainwright v. Fontenot, 00-0492 (La.10/17/00), 774 So.2d 70. Because the discretion vested in the trier of fact is so great, even vast, an appellate court should rarely disturb an award on review. Guillory v. Lee, 09-0075 (La.06/26/09), 16 So.3d 1104.

Plaintiffs main point of contention when setting forth her argument that the damage award was excessively low relies as well on her assertion that the trial court erred in assessing her with 40% of the fault. As we have |fialready made a determination on this matter, we will not address this argument further.

Plaintiff also states that the general damages amount is too low for a four-month injury, and she requests that this court increase the total award to $23,000.00. Plaintiff, however, sets forth very little basis for the increase. Defendant counters that the $8,500.00 general damages award is excessive given the nature of plaintiffs injuries, but nonetheless states that she does not consider the amount to be an abuse of the trial court’s great discretion.

The record indicates that on August 12, 2009, almost three weeks after the accident, plaintiff went to the doctor complaining of pain in her left knee. According to Mr. Jackson, plaintiffs physical therapist, plaintiff was diagnosed with a left knee contusion. Mr. Jackson prescribed a treatment plan that consisted of approximately seven physical therapy sessions. Mr. Jackson discharged plaintiff on September 28, 2009. Thereafter, on February 8, 2011, plaintiff again reported to the doctor complaining of intermittent left knee pain resulting from the July 23, 2009, automobile accident. On this occasion, plaintiff underwent treatment until she was discharged at the beginning of March 2011. According to plaintiff she still has pain on occasion, “twice a week sometime it would come every other month or twice a month.”

17Plaintiff was awarded $8,500.00 in general damages. Plaintiff has offered nothing evidentiary to show that trial court abused its vast discretion in setting the amount of her award. Plaintiff was not unable to work as a result of the contusion, nor does the record indicate that she ever required any pain management stronger than Aleve and physical therapy. In fact, she was discharged by her physical therapist within almost two months of the accident. Thus, given the trial court’s great discretion, and the lack of any factual errors or abuse, we find no error in the trial court’s assessment of damages.

Conclusion

For the reasons stated herein, the judgment of the trial court is affirmed.

      . The trial court concluded that the plaintiff suffered a legitimate knee injury at the outset, but it found that the post-continuance treatment "was suspect.” Therefore, it awarded medical expenses for only those that were incurred prior to January 18, 2011.


text:
    STATE of Louisiana, Appellee v. Donny CARPER, Appellant.
    No. 47,409-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 14, 2012.

      Annette Roach, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, Jack Montgomery, John M. Lawrence, C. Sherburne Sentell, III, Assistant District Attorneys, for Appellee.
    Before BROWN, CARAWAY, and LOLLEY, JJ.
   BROWN, Chief Judge.

| ,On July 7, 2008, defendant, Donny Carper, was indicted by a Webster Parish Grand Jury on one count of aggravated rape of a juvenile under the age of 13, in violation of La. R.S. 14:42(A)(4), and one count of molestation of a juvenile under the age of 13, in violation of La. R.S. 14:81.2(E)(1). His first trial was held May 4-9, 2009, and on the aggravated rape count, defendant was found guilty as charged and sentenced to life imprisonment without the benefit of parole, probation, or suspension of sentence. On the molestation of a juvenile count, defendant was found guilty and sentenced to 25 years at hard labor without the benefit of parole, probation, or suspension of sentence. Defendant’s convictions and sentences, however, were reversed on appeal following this court’s determination that defendant’s constitutional right to confrontation was violated. State v. Carper, 45,178 (La.App.2d Cir.06/09/10), 41 So.3d 605, writ denied, 10-1507 (La.09/03/10), 44 So.3d 708.

Following a second jury trial held August 15-19, 2011, defendant was again convicted of aggravated rape of a juvenile under the age of 13 and, as to the molestation count, the jury returned a lesser responsive guilty verdict of indecent behavior with a juvenile under the age of 13. He was sentenced to life imprisonment without the benefit of parole, probation or suspension of sentence for the aggravated rape conviction and 25 years at hard labor with the first two years to be served without the benefit of parole, probation or suspension of sentence on the indecent behavior with a juvenile under the age of 13 conviction. For the following reasons, defendant’s aggravated rape conviction and sentence are affirmed. Defendant’s conviction for | gindecent behavior with a juvenile is likewise affirmed, except as to the portion of the conviction requiring enhancement under La. R.S. 14:81(H)(2). Therefore, his sentence for indecent behavior with a juvenile is vacated and the matter is remanded for resentencing under the correct statute.

Facts

Defendant was married and had three daughters. The two older daughters were the victims in this case. Defendant was charged by bill of indictment as follows:

On or between the dates of November 27, 2002[,] and November 12, 2007,
Count One
[Defendant] did commit aggravated rape of a juvenile (T.D. dob 11/27/97) victim being under the age of thirteen years of age, contrary to L.R.S. 14:42(A)(4); and On or between the dates of April 10, 2005[,] and November 12, 2007,
Count Two
[Defendant] did commit Molestation of a Juvenile ünder the age of thirteen (C.C. dob 4/10/00), by committing a lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person, by use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by use of influence by virtue of a position of control or supervision over the juvenile, contrary to L.R.S. 14:81.2(E)(1) ...

Discussion

Sufficiency of the Evidence: Indecent Behavior with a Juvenile Under 13

Defendant contends that the evidence was insufficient to convict him of count two, indecent behavior with a juvenile. Specifically, defendant claims that the state failed to prove that he touched C.C. with the intent to |sarouse or gratify his or her sexual desires. Defendant has not assigned as error or briefed the issue of the sufficiency of the evidence as to the aggravated rape count.

When a defendant challenges both the sufficiency of evidence and one or more other trial errors, the appellate court should first resolve the sufficiency challenge. State v. Hearold, 603 So.2d 731 (La.1992); State v. Evans, 29,675 (La.App.2d Cir.09/24/97), 700 So.2d 1039, writ denied, 97-2942 (La.01/09/98), 705 So.2d 1121. The constitutional standard of review is “whether, after viewing the evidence in the light most favorable to the prosecution, any trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.02/28/96), 668 So.2d 1132. This standard, initially enunciated in Jackson and now legislatively embodied in La. C. Cr. P. art. 821, is applicable in cases involving both direct and circumstantial evidence. State v. Smith, 441 So.2d 739 (La.1983); State v. Daniels, 614 So.2d 97 (La.App. 2d Cir.1993), writ denied, 619 So.2d 573 (La.1993). This standard does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/04/96), 680 So.2d 1165. The appellate court does not assess credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.

Defendant was indicted:

On or between the dates of April 10, 2005[,] and November 12, 2007,
|4Count Two
[Defendant] did commit Molestation of a Juvenile under the age of thirteen (C.C. dob 4/10/00), by committing a lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person, ... by use of influence by virtue of a position of control or supervision over the juvenile, contrary to L.R.S. 14:81.2(E)(1) ... (Emphasis added).

Indecent behavior with a juvenile, La. R.S. 14:81, is a lesser and responsive verdict. The conspicuous difference between La. R.S. 14:81.2 and La. R.S. 14:81 is that the molestation statute, La. R.S. 14:81.2, requires something more than the mere exertion of physical effort necessary to commit the lewd act. The so-called “use of force” element in the molestation statute refers to the forcible means of overcoming the will or the resistance of a victim. See State v. LeBlanc, 506 So.2d 1197 (La.1987). This added element of force or intimidation must be greater or substantially different from the effort necessary to commit the less serious offense of indecent behavior with a juvenile, La. R.S. 14:81.

When the evidence is sufficient to support a conviction of the greater offense charged, the reviewing court need not determine whether the evidence supports the responsive verdict returned by the jury. Stated otherwise, the jury may return any legislatively provided responsive verdict, whether or not the evidence supports that verdict, as long as the evidence was sufficient to support a conviction of the charged offense. State v. Peterson, 290 So.2d 307 (La.1974).

The Gingerbread House video recording was played in open court. The video recording first showed an interview with a Gingerbread House ^interviewer, Crystal Clark, and C.C. on May 8, 2008. During the interview, C.C., who was eight years old at the time of the interview, stated that she did not know why she was at the Gingerbread House. When asked if anyone had ever touched her “bottom” before, C.C. responded that her father had touched her there, under her clothes, when she was five. She explained that her older sister was at school at the time and that her younger sister was “still in her mother’s tummy.” She stated that her father had become upset with her earlier, and she was in the bedroom doing her homework when defendant came up to her and touched her on her bottom underneath her clothing and underwear. C.C. said that she was standing at the time, and that her father touched her butt with his hands with his palms facing up. When asked if her father said anything when he touched her bottom, C.C. stated that he warned her not to tell anyone. The interviewer asked C.C. if her father had “ever done that to somebody else”; C.C. responded that he had touched her sister’s bottom.

The state called,C.C. to testify. C.C. stated that she was 11 years old at the time of trial and that her birthday was April 10, 2000. C.C. verified that the things that she told the Gingerbread House interviewer were true and that the drawings she made showed where defendant touched her. C.C. testified that her father touched her on her bottom on other occasions as well.

C.C.’s sister, T.D., who was the victim in the aggravated rape count, affirmed C.C.’s testimony. T.D. went further and said that C.C. was raped by their father.

| fiCrystal Clark, the woman who conducted the Gingerbread House interviews of C.C. and T.D., testified. Ms. Clark explained that she was trained to conduct, in a non-leading way, the interviews of children who had been physically or sexually abused. A law enforcement officer works with the interviewer to formulate and ask pertinent questions. During the interview, the officer watches the interview on a television screen from a separate room.

Despite defense counsel’s objection, the video recording of T.D. and C.C.’s interview was again played in open court. Ms. Clark stated that T.D. and C.C. were consistent with their stories. Ms. Clark confirmed that neither T.D. nor C.C. knew why they were being interviewed. Ms. Clark explained that there are certain signs that indicate when children are being dishonest. She observed none of these in her interviews with the victims. Ms. Clark also explained that when children are descriptive about a subject, such as when T.D. explained what semen looked like, they are usually honest because a child cannot be taught to remember something like that at a specific time. Ms. Clark stated that often abused children will not relate every incident of abuse or remember exact dates, but usually recall an incident that stands out in their mind.

On cross-examination, Ms. Clark stated that she did not find the fact that T.D. said that C.C. was raped to be inconsistent with information disclosed by C.C. in her interview. Ms. Clark opined that C.C. was not prepared to discuss anything other than what she did actually talk about.

17Based on this evidence, a rational fact finder could conclude that defendant, the father and disciplinarian of the children, committed upon C.C. the crime of molestation of a juvenile, and the jury’s responsive verdict of guilty of indecent behavior of a juvenile was sufficiently proven beyond a reasonable doubt.

Defendant contends that the facts adduced at trial were insufficient to prove that he committed the offense of indecent behavior with a juvenile under the age of 13. Specifically, he contends that the state failed to prove that the offense occurred after August 15, 2006, and, therefore, he should not have been convicted specifically of, and sentenced to the enhanced provision for, indecent behavior with a juvenile under the age of 18, in violation of La. R.S. 14:81(H)(2). In support of his argument, defendant points out that C.C. testified that he touched her buttocks when she was five years old. C.C. would have been five from April 10, 2005, to April 9, 2006, approximately four months prior to the 2006 amendment to La. R.S. 14:81.

La. R.S. 14:81, the statute criminalizing indecent behavior with juveniles, was amended in 2006 to add the following provision:

Whoever commits the crime of indecent behavior with juveniles on a victim under the age of thirteen when the offender is seventeen years of age or older, shall be punished by imprisonment at hard labor for not less than two nor more than twenty-five years. At least two years of the sentence imposed shall be served without benefit of parole, probation or suspension of sentence.

La. R.S. 14:81(H)(2).

La. R.S. 14:81 did not previously have an enhanced sentence for offenders committing the crime of indecent behavior with juveniles under | Rthe age of 13. Prior to the amendment in 2006, the sentencing range for all offenders was imprisonment of not more than seven years and/or a fine of not more than $5,000.

The statute defining molestation of a juvenile was also amended in 2006 to add a sentencing enhancement for the molestation of a juvenile under the age of 13. See La. R.S. 14:81.2(E)(1).

In the instant case, the jury was charged with determining whether defendant committed the offense of “molestation of a juvenile under the age of 13” or any responsive verdict thereof, including “indecent behavior with a juvenile under the age of 13.” The jury found defendant guilty of indecent behavior with a juvenile under the age of 13. The portion of the verdict which finds that the enhanced sentence set forth in La. R.S. 14:81 (for commission of the offense when the juvenile victim is under the age of 13) is unsupported by the facts adduced at trial. C.C. testified that her father touched her buttocks when she was five years old. Her testimony corroborated her earlier statements during her interview at the Gingerbread House that her father touched her when she was five. Although C.C. testified at trial that her father touched her buttocks on other occasions, she gave no details whatsoever as to when this conduct occurred. Furthermore, although T.D. testified that she saw defendant have sex with C.C., there were no details as to when this occurred. In returning a verdict of indecent behavior, the jury undoubtedly relied on C.C.’s testimony that her father touched her butt when she was five years old. C.C. would have been five years old from April 10, 2005, until April 9, 2006, which was four months | ^before La. R.S. 14:81 was amended. Accordingly, there was insufficient evidence to prove applicability of the enhanced portion of the amended version of La. R.S. 14:81 (relating to the indecent behavior with a juvenile under the age of 13). Therefore, the trial court erred in sentencing defendant under the enhanced penalty to 25 years’ imprisonment, with the first two years to be without the benefit of parole, probation, or suspension of sentence. Accordingly, defendant’s conviction is amended to one for indecent behavior with a juvenile and his sentence for that conviction is vacated. We will remand this matter for resentenc-ing of the indecent behavior charge under La. R.S. 14:81(C) as it read in 2005. See State v. Simpkins, 44,197 (La.App.2d Cir.05/13/09), 12 So.3d 1021, writ denied, 09-1229 (La.02/05/10), 27 So.3d 296, writ denied, 09-1539 (La.03/05/10), 28 So.3d 1004.

Alleged Error in Bill of Indictment Re: Count Two

Defendant claims that the bill of indictment in this matter alleged a crime, molestation- of a juvenile under the age of 13, that did not exist during a portion of the time frame alleged in the indictment. Defendant complains because the bill of indictment also cited La. R.S. 14:81.2(E)(1), which was not added to La. R.S. 14:81.2 until August 15, 2006.

The time for testing the sufficiency of an indictment or bill of information is before trial by way of a motion to quash or an application for a bill of particulars. State v. Campbell, 06-0286 (La.05/21/08), 983 So.2d 810, cert. denied, 555 U.S. 1040, 129 S.Ct. 607, 172 L.Ed.2d 471 (2008). A post-verdict attack on the sufficiency of an indictment should be rejected Imunless the indictment failed to give fair notice of the offense charged or failed to set forth any identifiable offense. Id.

Defendant did not file a motion to quash the indictment in this matter. However, even if he had done so, the motion would have been denied. The bill of indictment in this matter alleged that defendant molested C.C., a child under the age of 13, sometime between April 10, 2005, and November 12, 2007. Therefore, during a portion of the time period alleged by the state wherein defendant may have molested C.C., specifically after August 15, 2006, La. R.S. 14:81.2(E)(1) was applicable. Accordingly, the indictment presented defendant with adequate notice that he was being charged with molesting C.C. and further advised him that he was possibly subject, if the evidence proved as much at trial, to the enhanced penalty added to La. R.S. 14:81.2 in 2006 because C.C. was under the age of 13 at the time of the alleged molestation.

This assignment lacks merit.

Apprendi Violation

Defendant asserts that the trial court violated the mandates of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Defendant contends that in the instant case, the United States Supreme Court’s rule in Apprendi which requires that any fact which increases a penalty for a crime must be submitted to a jury and proved beyond a reasonable doubt, was violated when the state failed to submit the question of whether or not the offense was committed prior to, or after, the August 15, 2006, amendment to La. R.S. 14:81.2 in the jury instructions or I, .verdict form. Defendant concludes that bis 25-year sentence is therefore excessive.

The jury in this matter was not instructed that it needed to determine whether the offense committed against C.C. occurred before or after August 15, 2006, the date when both the statutes for molestation of a juvenile and indecent behavior of a juvenile were amended to provide enhanced sentences for offenders committing those respective offenses against victims under the age of 13. Nonetheless, the trial court determined, based on the jury’s verdict, that the enhanced penalty for indecent behavior with juveniles applied. Arguably, an Apprendi violation occurred. However, given this court’s determination that defendant’s sentence should be vacated based on the fact that insufficient evidence existed to utilize the enhanced sentence for indecent behavior with a juvenile under the age of 13, the Apprendi violation is rendered moot.

This assignment lacks merit.

Ineffective Assistance of Counsel

Defendant contends that his trial attorney was ineffective for: failing to file a motion to quash the indictment; object to the jury charges and verdict sheets; object to the verdict for the crime of indecent behavior with a juvenile under the age of 13; and object to his excessive sentence for the indecent behavior with a juvenile conviction.

For the reasons set forth herein above, his attorney’s failure to file a motion to quash the bill of indictment did not constitute ineffective assistance of counsel because the motion would have been denied.

| i2As for defendant’s other claims of ineffective assistance of counsel — his trial counsel’s failure to object to the sufficiency of the jury charges, the verdict form, and the return of a verdict for indecent behavior with juveniles, the Apprendi violation and the excessiveness of his sentence— these claims are rendered moot by the fact that the portion of his conviction requiring him to be sentenced under La. R.S. 14:81(H)(2), and the sentence imposed in conjunction therewith, will be vacated.

Accordingly, this assignment lacks merit.

Testimony of Unavailable Witness

Defendant contends that the trial court erred in allowing the prior testimony of Laveta Frazier to be re-enacted during defendant’s second trial. According to defendant, the state failed to prove that the testimony was relevant and that the probative value of the testimony outweighed its prejudicial effect. Additionally, defendant argues that even if the testimony was relevant and not unduly prejudicial, the trial court erred in admitting the re-enacted testimony into evidence without first requiring the state to prove that the witness was unavailable at a later point in time. According to defendant, this error denied defendant his right to confront the witness and denied the jury the opportunity to view the witness’s demeanor while testifying.

La. C.E. art. 403 provides in part that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. A district court judge enjoys broad discretion in admitting or excluding evidence on relevancy grounds. State v. Dressner, 08-1366 (La.07/06/10), 45 So.3d 127, cert. denied, - U.S. -, 131 S.Ct. 1605, 179 L.Ed.2d 500 (2011); State v. Miles, 402 So.2d 644 (La.1981).

Determining the unavailability of a witness is a preliminary question for the trial court. La. C.E. art. 104(A). Such determinations are subject to manifest error review and will not be overturned absent an abuse of discretion by the trial court. State v. Ball, 00-2277 (La.01/25/02), 824 So.2d 1089, cert. denied, 537 U.S. 864, 128 S.Ct. 260, 154 L.Ed.2d 107 (2002).

To protect a defendant’s constitutional right to confront and cross-examine adverse witnesses, certain conditions must be met before the prior testimony may be introduced: (1) defendant must have been represented by counsel at the earlier hearing; (2) the witness must have testified under oath; (3) the witness must have been cross-examined (or there must have been a valid waiver of the right to cross-examination); (4) at the time of trial, the witness must be “unavailable” to testify; and (5) the state must have made a good faith effort to locate the unavailable witness. State v. Ball, supra, citing State v. Hills, 379 So.2d 740 (La.1980).

The trial court held a hearing to determine whether the state could utilize the recorded trial testimony of Laveta Frazier. The state sought to use the recorded testimony due to the witness’s deliberate unavailability. The state called Angela Hall, the felony supervisor at the Webster Parish District Attorney’s Office, as its first witness. Ms. Hall stated that she was in charge of issuing subpoenas in defendant’s case and had attempted to have Ms. Frazier served so that she would be present for the trial. Ms. Hall |14explained that she spoke with Ms. Frazier on May 13, 2011, and Ms. Frazier stated that she heard that the trial had been continued. Ms. Hall confirmed the continuance and asked Ms. Frazier to verify her address and telephone number in Bossier City, Louisiana, which she did.

On May 16, 2011, Ms. Hall sent out a subpoena for Laveta Frazier at the Bossier City address to ensure her presence at trial on August 15, 2011. On May 23, 2011, the subpoena was returned, indicating that on May 18, 2011, the Bossier Parish Sheriffs Office attempted service on Ms. Frazier, but that she had moved and her current address was unknown. Ms. Hall also sent a subpoena via certified mail to a post office box, but the returned mail indicated that the occupant had “moved, left no address.” Service on Ms. Frazier was also attempted at a Springhill, Louisiana, address on May 26, 2011, but the Webster Parish Sheriffs Office could not complete service and the return was marked “moved.” On July 13, 2011, service was again attempted unsuccessfully at the Springhill address. Ms. Hall contacted the plant where Ms. Frazier had been employed, but the employer advised Ms. Hall that Laveta Frazier had not worked at the plant for some time. Ms. Hall also spoke with Ms. Frazier’s sister-in-law, but she failed to provide any new information regarding the potential witness’s whereabouts.

Bobby Morgan, an investigator for the Webster Parish District Attorney’s Office, also testified. Morgan stated that he was asked by Ms. Hall to try to locate Laveta Frazier using a “skip trace program,” something Morgan utilizes to secure addresses for prospective witnesses. Morgan explained that the program gave two possible addresses for Ms. Frazier, the |1Bpost office box address and the Spring-hill address. Morgan gave Ms. Hall the two addresses to attempt service on Ms. Frazier. Morgan testified that there were no other current addresses for Laveta Frazier. On cross-examination, Morgan stated that he did not try to locate Ms. Frazier by speaking with any of her family members.

The trial court determined that the state had made the appropriate efforts to locate Laveta Frazier. Further, Ms. Frazier’s previous testimony was given under oath and was subject to cross-examination. Therefore, the trial court ruled that Ms. Frazier’s previous trial testimony would be read by a third party, his law clerk, at trial.

The trial court did not abuse its broad discretion by allowing Laveta Frazier’s testimony to be read to the jury during defendant’s second trial. Ms. Frazier previously testified that she watched C.C. and T.D. between the dates of 2001 and 2007, encompassing the period of time in which the state alleged that defendant raped T.D. and molested C.C. Ms. Frazier also testified that both the children were afraid of their father, were “jumpy,” especially when being bathed, were not doing well in school and “smelled like sex.” Her testimony was clearly relevant to whether the children had been sexually abused by defendant, and the trial court did not abuse its discretion by determining that the probative value outweighed the prejudicial effect of the testimony.

Additionally, defendant’s confrontation rights were not violated by admission of the testimony. As required under State v. Ball, supra, the state proved the following: (1) defendant was represented by counsel during the | )f,first trial when Laveta Frazier testified; (2) Ms. Frazier testified under oath at the first trial; (3) Ms. Frazier was cross-examined by defense counsel during the first trial; (4) at the time of trial, Ms. Frazier was unavailable; and (5) the state made a good faith effort to locate Ms. Frazier. Id.

Although defendant argues that the state was required to demonstrate that Laveta Frazier would not be available at a later point in time to testify, Louisiana law only requires the state to prove that Ms. Frazier was unavailable at the time of trial. The state, through the testimony of Angela Hall and Bobby Morgan, provided sufficient proof that the state made a good faith effort to locate Ms. Frazier and secure her presence for trial by issuing several subpoenas requiring her presence.

This assignment lacks merit.

Denial of Motion for Mistrial

Defendant asserts that the trial court erred when it failed to grant his motion for a mistrial based on a prospective juror’s statement during voir dire that he served as a jury member on this case two years ago. Defendant contends that although the comment was not a direct reference to another crime, nor was it made by the judge or court official, it would serve as a basis for a mistrial under La. C. Cr. P. art. 775(3) which provides for mistrial when “it is physically impossible to proceed with the trial in conformity with law.”

Defendant’s second trial commenced on August 15, 2011, with jury voir dire. On August 16, 2011, during the questioning of a prospective juror, Ramey Gryder, an issue arose when the district attorney asked Gryder |I7whether he knew either the defense attorney, Randal Fish, or defendant, Donny Carper. The following exchange took place:

Gryder: I served as a jury member on [t]his case two years ago.
D.A.: On?
Gryder: His case.
D.A.: Okay. Let’s — we will visit with you then in private. I think those are all the questions I have then. Thank you very much.

A hearing was then conducted outside the presence of the other prospective jurors during which additional questions were asked. Gryder clarified that he had served on defendant’s first trial a little more than two years previously. The state explained that it had understood Gryder to mean, when he answered the question during the voir dire, that he had served on a jury at a trial where Fish was the defense attorney. Gryder returned to the jury pool after being instructed not to speak with the other prospective jurors about his prior jury service. The trial court then explained to both attorneys that it would excuse Gryder. Defense counsel then moved for a mistrial based on Gry-der’s statement that he had served as a member of the jury at defendant’s previous trial. After conducting some research, the trial court denied the motion for a mistrial. Citing State v. Hattaway, 28,060 (La.App.2d Cir.05/08/96), 674 So.2d 380, writ denied, 96-1900 (La.01/10/97), 685 So.2d 141, the trial court determined that Gryder’s statement did not prejudice the entire jury venire. Specifically, the trial court noted that Gryder did not mention that defendant had previously 11Rbeen convicted, but only that there had been a previous trial. Gryder was later released for cause.

Defendant claims that the trial court erred in relying on State v. Hattaway, supra, because the instant case is distinguishable. Defendant argues that Laveta Frazier’s re-enacted testimony from “an earlier proceeding,” along with the prospective juror’s comment, undoubtedly left the jury with the conclusion that defendant had been previously convicted.

La. C. Cr. P. art. 770 provides:

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;

When a remark is made that does not fall under La. C. Cr. P. art. 770, a mistrial is not mandated. Instead, the court must admonish the jury, if this is requested, and only grant a mistrial if, within the court’s discretion, the admonishment is not sufficient to assure a fair trial. La. C. Cr. P. art. 771. A trial court’s ruling denying a mistrial will not be set aside absent an abuse of discretion. State v. Narcisse, 426 So.2d 118 (La.1983), cert. denied, 464 U.S. 865, 104 S.Ct. 202, 78 L.Ed.2d 176 (1983); State v. Williams, 45,755 (La.App.2d Cir.11/03/10), 54 So.3d 1129, writ denied, 10-2682 (La.04/25/11), 62 So.3d 85. A mistrial must also be ordered when prejudicial conduct in or outside the courtroom makes it impossible for defendant to obtain a fair trial. La. C. Cr. P. art. 775.

In State v. Hattaway, supra, a prospective juror mentioned in front of other prospective jurors that she had read in a newspaper that defendant’s case was “coming back for a retrial.” The prospective juror was excused. Defendant then requested a mistrial, which was denied. The defense was allowed to question the venire members about whether they had read the article, and all indicated they had not. The trial court then asked the prospective jurors if they had heard anything that had influenced their ability to sit on the jury and none stated that they had. Defendant raised the issue on appeal, and this court held that the trial court correctly denied the motion because the prospective juror “merely mentioned a retrial; she made no reference to the previous conviction or death sentence.” Further, this court noted that the trial court had confirmed that none of the prospective jurors stated that they had been influenced by anything they heard.

The trial court in the instant case did not abuse its discretion by denying defendant’s motion for a mistrial. This case is analogous to State v. Hattaway, supra. The prospective juror, Gryder, when questioned whether he knew either the defense attorney or defendant stated, “I sat on [t]his trial two years ago.” The prosecutor immediately stopped questioning Gryder, and the matter was handled outside the presence of the other prospective jurors. Gryder’s statement is similar to the one made by the prospective juror in State v. Hattaway, supra, although probably more benign. In State v. Hattaway, supra, the prospective juror stated that she had read that defendant had been tried before. In the instant ease, Gryder’s statement was more equivocal; he never stated that he had sat on defendant’s previous 12fitrial. Additionally, the trial court in this matter, as did the judge in State v. Hattaway, questioned the venire to ensure that none of the prospective jurors had been influenced by anything they heard.

Furthermore, defendant’s argument that the re-enacted testimony of Laveta Frazier compounded the issue is unfounded. Prior to the reading of Ms. Frazier’s testimony, the trial court advised the jury that Ms. Frazier had “previously given a statement under oath.” No mention was made of a previous trial.

This assignment of error is without merit.

Introduction of Videotaped Interviews

Defendant contends that the trial court erred by allowing the videotapes from the Gingerbread House into evidence because the interviewer utilized leading questions in an effort to elicit a particular response in violation of La. R.S. 15:440.5(4). Defendant cites several of the questions utilized by the interviewer to get T.D. or C.C. to talk about “touches” or to elaborate on their answers. Defendant argues that the questions were designed to obtain specific responses.

According to the state, the videotapes were introduced in compliance with La. R.S. 15:440.1 et seq.

La. R.S. 15:440.1 provides:
It is declared to be in the best interest of the state that protected persons be spared from crimes of violence, and that persons who commit such crimes be prosecuted with a minimum of additional intrusion into the lives of such protected persons.
La. R.S. 15:440.2 provides in pertinent part:
|2iA. (1) A court with original criminal jurisdiction or juvenile jurisdiction may, on its own motion or on motion of the district attorney, a parish welfare unit or agency, or the Department of Social Services, require that a statement of a protected person who may have been a witness to or victim of a crime be recorded on videotape.
(3) Such videotape shall be available for introduction as evidence in a juvenile proceeding or adult criminal proceeding.
B. For purposes of this Part, “videotape” means the visual recording on a magnetic tape, film, videotape, compact disc, digital versatile disc, digital video disc, or by other electronic means together with the associated oral record.
C. For purposes of this Part “protected person” means any person who is a victim of a crime or a witness in a criminal proceeding and who is ... (1) Under the age of seventeen years.
La. R.S. 15:440.3 provides:
The videotape authorized by this Sub-part is hereby admissible in evidence as an exception to the hearsay rule.
La. R.S. 15:440.4 provides, in pertinent part:
A. A videotape of a protected person may be offered in evidence either for or against a defendant. To render such a videotape competent evidence, it must be satisfactorily proved:
(3) That such recording was not made of answers to interrogatories calculated to lead the protected person to make any particular statement.
La. R.S. 15:440.5 provides, in pertinent part:
A. The videotape of an oral statement of the protected person made before the proceeding begins may be admissible into evidence if:
122(4) The statement was not made in response to questioning calculated to lead the protected person to make a particular statement ...

Both La. R.S. 15:440.4(A)(3) and La. R.S. 15:440.5(A)(4) clearly prohibit questions leading the protected person into making a particular statement. The Louisiana Supreme Court, however, has found that the rule forbidding leading questions may “yield somewhat to the trial court’s discretion in the examination of young victims.” State v. Abbott, 29,497 (La.App.2d Cir.06/18/97), 697 So.2d 636, writ denied, 97-1929 (La.01/09/98), 705 So.2d 1097, citing State v. Carthan, 377 So.2d 308 (La.1979).

This court, in State v. Watson, 39,362 (La.App.2d Cir.04/20/05), 900 So.2d 325, explained that some leading questions do not render such videotapes inadmissible under these statutes, relying upon State v. Feazell, 486 So.2d 327 (La.App. 3d Cir.1986), writ denied, 491 So.2d 20 (La.1986), wherein the appeals court considered the admissibility of a videotape of a child victim in which some leading questions had been asked under La. R.S. 15:440.4. In State v. Feazell, 486 So.2d at 330, the court observed:

Leading questions are ordinarily prohibited when propounded to one’s own witness unless such witness is unwilling or hostile. La. R.S. 15:277. However, it is well settled that an exception is usually made when questioning a young child. State v. Kelly, 456 So.2d 642 (La.App. 2d Cir.1984), writ denied, 461 So.2d 312 (La.1984); State v. Kahey, 436 So.2d 475 (La.1983); State v. Bolton, 408 So.2d 250 (La.1981); State v. Francis, 337 So.2d 487 (La.1976). Furthermore, notwithstanding the general rule against leading questions, the matter is largely within the discretion of the trial court and in the absence of palpable abuse of that discretion resulting in prejudice to the accused, a finding of reversible error is not warranted. State v. Kelly, supra; State v. Francis, supra.

| gjThe court in State v. Feazell, supra, found that the leading nature of the questions constituted harmless error especially since the defense viewed the videotape pri- or to trial and cross-examined the child during trial. Id.

The trial court did not err by allowing the videotapes to be played at defendant’s second trial. The tapes reveal that C.C. and T.D. were asked some leading questions, but mainly in order to get them to elaborate on their previous answers. C.C., who was only eight years old, appeared very shy during the interview. The interviewer, Crystal Clark, after undoubtedly realizing that C.C. was uncomfortable talking about her body, asked if “anyone” had ever touched her bottom. C.C. responded right away that her father had done so. The interviewer then asked a few somewhat leading questions to allow C.C. to give a detailed description of the encounter.

T.D., who was ten years old at the time of the interview, was more outgoing, and explained, without encouragement, that her father had touched her thigh in a way that made her uncomfortable. When given the anatomical drawing and asked if anyone had ever touched her, T.D. explained that her father “touched her privacy with his privacy” and touched her “bottom with his privacy.” Ms. Clark asked somewhat leading questions only to elicit some particular details about the encounters, which T.D. thoroughly provided. The defense was also given an opportunity to cross-examine both C.C. and T.D. at trial.

Accordingly, this assignment lacks merit.

| ^Conclusion

For the foregoing reasons, defendant’s conviction and sentence for aggravated rape are affirmed. Defendant’s conviction for indecent behavior with a juvenile is affirmed; however, his sentence under the enhancement provision of La. R.S. 14:81(H)(2) is reversed. Thus, his sentence for indecent behavior with a juvenile is vacated and the matter is remanded for resentencing.

Affirmed in Part, Reversed in Part, Vacated and Remanded for Resentenc-ing.


author: CARAWAY, J.

text:
    STATE of Louisiana, Appellee v. Jatavious WORTHAM, Appellant.
    No. 47,431-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 14, 2012.

      Peggy J. Sullivan, Monroe, LA, Louisiana Appellate Project, for Appellant.

      J. Schuyler Marvin, District Attorney, John M. Lawrence, C. Sherburne Sentell III, Assistant District Attorneys, for Ap-pellee.
    Before CARAWAY, SEXTON (Pro Tempore) and HARRISON (Pro Tempore), JJ.
   CARAWAY, J.

hJatavious Wortham pled guilty to one count of distribution of cocaine and one count of simple possession of marijuana for which he received concurrent sentences of 12 years at hard labor and 6 months in the parish jail. After his probation on a separate felony was revoked, and his previous sentence imposed consecutively to his offenses of conviction, Wortham appealed his sentences as excessive. We affirm.

Facts

On June 23, 2011, Wortham was charged with separate counts of distribution of cocaine, possession of marijuana and resisting an officer after he sold the drugs to a confidential informant earlier in the year. At the time of the offenses, Wortham was on probation for a prior undisclosed felony for which he had received a suspended 8-year sentence with probation.

On December 5, 2011, Wortham pled guilty to distribution of cocaine and simple possession of marijuana in exchange for the state’s dismissal of the resisting an officer offense. Additionally, the state recommended a 12-year hard labor sentence for the distribution charge and that the court impose a concurrent sentence for the misdemeanor marijuana conviction.

At his guilty plea, Wortham confirmed that his attorney had explained the charges and penalties, as well as the state’s plea offer and “suggested sentence.” He also confirmed his understanding of his rights and waiver of those rights by the guilty plea. Wortham admitted to the prosecution’s stated factual basis for the plea. Finding that Wortham knowingly and voluntarily waived his rights, the trial court accepted Wortham’s guilty |2pleas. The defendant waived time delays for sentencing and no presentence investigation report was ordered.

Wortham received concurrent sentences of 12 years at hard labor without benefit of probation, parole, or suspension of sentence for the first 2 years on the cocaine conviction and 6 months in the parish jail for the marijuana conviction.

Immediately after sentencing, the trial court addressed the state’s petition to revoke Wortham’s probation on his previous felony conviction and the issue of whether the reinstated sentence should run concurrently or consecutively as follows:

COURT: All right. Any — any requests as it relates to how these should run?
STATE: No, Your honor.
COURT: All right. Then, Mr. Gilley, anything you or Mr. Wortham want to tell the Court?
GILLEY: No, Your Honor. He would like to have his probation revoked and start working on that time.
COURT: All right. Then we will show based upon the conviction of this felony, that his probation is revoked. Now, previously I had stated that 88,-743 and 83,744 will run concurrent with one another but the Court in 77,772 and 77,785 will revoke the probation, reinstate the original sentence, run that consecutive with the matters he had pled guilty to today and give him credit for time served.

After sentencing on December 12, 2011, Wortham sent a letter to the trial court entitled “Motion to appeal sentence” informing the court that his appointed attorney told him that if he pled guilty and took the 12-year recommended sentence, then “everything else would be running | .¡concurrent.” Wortham asked that he be allowed to withdraw his plea or be resen-tenced so that all the sentences would run concurrently.

By letter stamped filed December 21, 2011, Wortham made a pro se request to reconsider sentence in which he asked the trial court to consider running his recent convictions concurrently with his prior sentences and recommend Wortham for a substance abuse program.

The trial court responded to these letters by granting Wortham an appeal on December 29, 2011.

Discussion

On appeal, Wortham raises two sentencing issues. He first contends that the record lacks a sufficient factual basis for the 12-year sentence and does not indicate that the facts of the case “were adequately considered in particularizing the sentence to Mr. Wortham.” Wortham argues that he is a “youthful offender with a limited education” who sold “one $20 rock of crack to a confidential informant.” Wortham also complains that under these circumstances, the 12-year sentence, imposed consecutively to the original 8-year sentence on Wortham’s prior felony, are excessive.

The trial court has wide discretion in imposing a sentence within minimum and maximum limits allowed by the statute and a sentence will knot be set aside as excessive unless the defendant shows the trial court abused its discretion. State v. Hardy, 39,238 (La.App.2d Cir.1/26/05), 892 So.2d 710; State v. Young, 46,575 (La.App.2d Cir.9/21/11), 73 So.3d 473, writ denied, 11-2304 (La.3/9/12), 84 So.3d 550. The reviewing court does not determine whether another sentence would have been more appropriate, but whether the trial court abused its discretion. State v. Esque, 46,515 (La.App.2d Cir.9/21/11), 73 So.3d 1021, writ denied, 11-2347 (La.3/9/12), 84 So.3d. 551.

An excessive sentence is reviewed by examining whether the trial court adequately considered the guidelines established in La.C.Cr.P. art. 894.1 and whether the sentence is constitutionally excessive. State v. Gardner, 46,688 (La.App.2d Cir.11/2/11), 77 So.3d 1052. A review of the sentencing guidelines does not require a listing of every aggravating or mitigating circumstance; the trial court need only articulate a factual basis for the sentence and the record must reflect that the trial court adequately considered the guidelines of the sentencing guidelines. State v. Cunningham, 46,664 (La.App.2d Cir.11/2/11), 77 So.3d 477; State v. McGraw, 616 So.2d 262 (La.App. 2d Cir.1993). Where the record shows an adequate factual basis for the sentence imposed, remand is unnecessary even where the trial court has not fully complied with the sentencing guidelines of La.C.Cr.P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. McGraw, supra. The important elements which should be considered are the defendant’s personal history, prior criminal record, seriousness of offense, and the likelihood of rehabilitation. State v. McGraw, supra. The trial court is not required to weigh any specific matters over other matters. State v. Moton, 46,607 (La.App.2d Cir.9/21/11), 73 So.3d 503, writ denied, 11-2288 (La.3/30/12), 85 So.3d 113; State v. Caldwell, 46,645 (La.App.2d Cir.9/21/11), 74 So.3d 248, writ denied, 11-2348 (La.4/27/12), 86 So.3d 625.

Under constitutional review, a sentence can be excessive even when it falls within statutory guidelines, if the punishment is so grossly disproportionate to the severity of the crime that it shocks the sense of justice and serves no purpose other than to inflict pain and suffering. State v. Fatheree, 46,686 (La.App.2d Cir.11/2/11), 77 So.3d 1047.

The trial court’s discretion in sentencing is not limited by sentencing recommendations from the state and the defense attorney. State v. Robinson, 33,921 (La.App.2d Cir.11/1/00), 770 So.2d 868; State v. Green, 221 La. 713, 60 So.2d 208 (1952).

When a defendant has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Fatheree, supra; State v. Germany, 42,239 (La.App.2d Cir.4/30/08), 981 So.2d 792.

It has long been held that dissatisfaction with the sentence or expected sentence imposed is not grounds for withdrawal of a guilty plea if the accused entered the plea with the advice of competent counsel and there is no indication that a prior commitment has been broken. State v. Clark, 414 So.2d 369 (La.1982). A plea bargain is considered to be a contract | (¡between the state and the criminal defendant. State v. Givens, 99-3518 (La.1/17/01), 776 So.2d 443; State v. Waffer, 45,210 (La.App.2d Cir.8/11/10), 47 So.3d 533, writs denied, 10-2382 (La.3/4/11), 58 So.3d 474, 10-2375 (La.3/4/11), 58 So.3d 475. The first step under contract law is to determine whether a contract was formed in the first place through offer and acceptance. The party demanding performance of the contract has the burden of proving its existence. State v. Givens, supra.

Despite the lack of a specific recitation of the 894.1 factors by the court, we find an adequate factual basis for the imposed sentence on the record before us. Before his guilty plea, the court obtained information from Wortham regarding both his age and education. Thus, the record adequately demonstrates the court’s awareness of Wortham’s youth and educational history. Furthermore, the facts as set forth in the record by the State clearly indicate that Wortham sold only $20 worth of crack cocaine to a confidential informant. Thus, the court also understood the amount of drugs and money involved in the transaction. The court had knowledge of Wortham’s criminal history as it conducted his probation revocation hearing immediately after sentencing. Accordingly, consideration by the trial court of the important elements including Wort-ham’s personal history, prior criminal record and seriousness of offense are evident from the record before us and provide a sufficient factual basis for the imposed sentences.

Considering that Wortham faced possible sentencing exposure of 2-30 years under La. R.S. 40:967, when viewed in light of the aforementioned facts, his imposed sentence of 12 years is below the medium |7range of sentencing. Wortham received a substantial benefit from his plea bargain and qualified as a second felony offender. In these circumstances, he has not shown that his 12-year punishment is so grossly disproportionate to the severity of the crime that it shocks the sense of justice and serves no purpose other than to inflict pain and suffering.

Wortham’s final complaint is that his sentence is excessive because the revoked sentence was imposed to run consecutively to the instant sentence. Wortham confirmed in his guilty plea colloquy that he was informed of the state’s recommended sentence of 12 years for the felony and was in agreement that the imposed sentences for that offense and the misdemeanor would run concurrently. No evidence of the any agreement regarding a concurrent imposition of the original suspended 8-year sentence is contained in the record. Thus, Wortham has failed to prove that any agreement as to this fact existed.

The revocation proceeding is a separate criminal action from the case at hand. While the probation revocation occurred immediately after Wortham’s guilty plea and his sentencing in the instant matter and was included in this record on appeal, nothing in our law requires the two proceedings to be considered as one. Under La.C.Cr.P. art. 901 C(2), without any agreement by the state and defendant or the court’s specific order that the sentence run concurrently to the other sentences, the court was mandated upon revocation of Wortham’s probation to impose the sentence consecutively with the sentence for the new conviction. For these reasons, this argument is without merit.

IsDecree

For the foregoing reasons, Wortham’s convictions and sentences are affirmed.

AFFIRMED.

      . Wortham's request to withdraw his plea was made after he was sentenced. La.C.Cr.P. art. 559 states that “the court may permit a plea of guilty to be withdrawn at any time before sentence.” Withdrawal of a guilty plea after sentencing is also at the trial court’s discretion. State v. Anderson, 27,356 (La.App.2d Cir.9/27/95), 661 So.2d 542.

      . By letter filed January 9, 2012, and titled "Motion to reconsider sentence,” Wortham again asked the trial court to run the sentences concurrently. The trial court did not rule on this motion. This court may review Wortham’s sentence in spite of the pending motion. Upon the trial court’s later ruling upon such motion, Wortham may seek appellate review of that decision pursuant to La. C.Cr.P. art. 914(B)(2). State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 07-0805 (La.3/28/08), 978 So.2d 297.