author: MAX N. TOBIAS, JR., Judge.

text:
    Raysel VILLALOBOS, Reyna Villalobos, Carlos Calero and Loma Abdalah v. USAGENCIES CASUALTY INSURANCE COMPANY, INC.
    No. 2012-CA-1491.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 27, 2013.

      Ivan Alberto Orihuela, Riguer Silva, LLC, Kenner, LA, for Plaintiff/Appellant.
    James L. Donovan, Jr., Donovan & Lawler, APLC, Metairie, LA, for Defendant/Appellee.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., Judge JOY COSSICH LOBRANO).
   MAX N. TOBIAS, JR., Judge.

hThe plaintiffs/appellants, Raysel Villa-lobos, Reyna Villalobos, Carlos Calero, and Lorna Abdlaha (collectively, “plaintiffs”), appeal the summary judgment granted by the trial court that dismissed their lawsuit against USAgencies Casualty Insurance Company (“USAgencies”), finding that no uninsured motorist coverage existed to cover their injuries. After reviewing the record and applicable law, we affirm the summary judgment.

On 5 March 2007, husband and wife, Raysel Villalobos (“Raysel”) and Reyna Villalobos (“Reyna”), applied for an automobile liability insurance policy at a USA-gencies agent’s office. Mr. and Mrs. Villa-lobos were aided in their application by a Spanish-speaking agent representative. In the application process, Raysel signed an application for insurance and Reyna signed an identical endorsed application for insurance. Both applications selected Reyna as the named insured under the policy. Each application referenced Ray-sel as an “operator.” Additionally, the driver and occupation of each was on the application form. Page 2 of both applications lists Reyna and Raysel as those covered under the policy.

12As required by law, an uninsured/un-derinsured bodily injury coverage form (“UMBI”) was executed during the application process. On the UMBI form, Ray-sel initialed item number 5, which states: “I do not want UMBI coverage.” The form is dated 5 March 2007 and contains the policy number. The name printed and/or typed on the form item for the “named insured or legal representative” was that of Reyna. However, the form was signed by her husband, Raysel.

Raysel and Reyna, along with plaintiffs, Carlos Calero and Lorna Abdlaha, were involved in an automobile accident on 21 June 2007. When the plaintiffs sought to recover UM benefits from USAgencies, the claim was denied based on the rejection of UMBI coverage by Raysel during the application process. Consequently, the plaintiffs filed suit against USAgencies.

USAgencies filed a motion for summary judgment asserting the policy issued to Raysel and Reyna had no UM coverage for the 21 June 2007 accident. The trial court granted the motion for summary judgment on 20 June 2011. This timely appeal followed.

The plaintiffs set forth four assignments of error. First, they contend that the summary judgment was improper because the UMBI selection was not signed by a “named insured” or his/her representative. Second, they claim that Raysel was not a named insured under the policy and did not have authority from Reyna, the named insured to sign the UMBI selection form for her. Third, the plaintiffs assert that the UMBI form is ambiguous, improperly completed, and not clear, express, |sand unmistakable, as required by law, because Reyna’s name is typed under the signature line but was signed by Raysel. Finally, the plaintiffs argue that the UMBI form was not properly completed because the date is typed on the form, suggesting that the initialing and signing of the form occurred prior to the placement of the date and the printing of Reyna’s name on the form.

Appellate courts review motions for summary judgments de novo to determine whether any genuine issue of material fact exists and whether the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B. A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966 B. The mover bears the initial burden of showing that no genuine issue of material fact exists. La. C.C.P. art. 966 C(2).

Under the UM coverage statute, La. R.S. 22:680, “the requirement of UM coverage is an implied amendment to any automobile liability policy, even when not expressly addressed, as UM coverage will be read into the policy unless validly rejected.” Duncan v. U.S.A.A. Ins. Co., 06-363, p. 4 (La.11/29/06), 950 So.2d 544, 547. The object of UM coverage is to provide full recovery for automobile accident victims who suffer damages caused by a tort-feasor who is not covered by adequate liability insurance. Id. UM rejection “shall be made only on a form prescribed by the commissioner of insurance.” Id. at p. 6, 950 So.2d at 548.

|4La. R.S. 22:1295(l)(a)(ii) [renumbered from La. R.S. 22:680] provides in part:

Such rejection, selection of lower limits, or selection of economic-only coverage shall be made only on a form prescribed by the commissioner of insurance. The prescribed form shall be provided by the insurer and signed by the named insured or his legal representative. The form signed by the named insured or his legal representative which initially rejects such coverage, selects lower limits, or selects economic-only coverage shall be conclusively presumed to become a part of the policy or contract when issued and delivered, irrespective of whether physically attached thereto. A properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected coverage, selected a lower limit, or selected economic-only coverage.

La. R.S. 22:1295(l)(a)(ii).

Because the UM coverage statute is to be liberally construed, the insurer bears the burden of proving any insured named in the policy rejected in writing the coverage equal to bodily injury coverage or selected lower limits. Duncan, 06-363 at p. 4-5, 950 So.2d at 547. Thus, a determination of whether USAgencies was entitled to summary judgment depends on whether it carried its burden of producing factual support sufficient to establish that it would be able to satisfy its evidentiary burden of proof at trial.

In Pena v. Simeon, 11-1088 (La.App. 5 Cir. 5/22/12), 96 So.3d 547, another case that involved USAgencies, Ms. Pena was in an automobile accident and sued USA-gencies seeking UMBI coverage for injuries sustained in the accident. In her deposition, she testified that she lived with Mr. Justo, who was the father of her two children. She explained that she and Mr. Justo went to the agency together to |Bobtain insurance. She stated that Mr. Justo was going to be “the one on the policy, but he was giving me authority to drive the vehicles.” She denied that Mr. Justo gave her authority to sign the forms. Rather, the “lady” at the agency “told us that we both had to sign the forms in order to drive the vehicles.” She acknowledged that Mr. Justo only signed the financing agreement for the policy premiums and did not sign the policy application.

USAgencies filed a motion for summary judgment, arguing that on the date the policy was issued, she was an “additional insured” under the policy. It noted that she testified in her deposition that it was her intention to obtain automobile insurance for Mr. Justo and herself so that she could operate Mr. Justo’s vehicles. It argued that “any insured named in the policy” is authorized to sign the UMBI Coverage Form, and concluded that because plaintiff had authority to sign the form, UMBI coverage was validly rejected.

In defense of this motion for summary judgment, Ms. Pena argued that there was no valid waiver of UMBI coverage because the UMBI Coverage Form states that Mr. Justo is the “named insured” on the policy, but the policy was signed only by her. She contended that in order for the UMBI Coverage Form to be valid, it had to be signed by the named insured. She pointed out that, in her deposition, she testified that she and Mr. Justo had never been married, and that she did not have authority to sign any documents on his behalf. The court stated:

While we acknowledge that plaintiff testified that she and Mr. Justo have never been married, we find the | ijCases that have held that a spouse can validly reject UMBI coverage to be instructive.
In Bonnette v. Robles, 32,191 (La.App. 2 Cir. 8/18/99), 740 So.2d 261, the court held that the named insured’s spouse was an “insured named in the policy” entitled to select lower limits of UMBI benefits, in spite of the fact that the policy did not designate her as a named insured. Also, in Tucker v. Valentin, 01-755 (La.App. 5 Cir. 12/26/01), 807 So.2d 292, 294-95, this Court upheld the validity of a UMBI rejection form where the spouse placed her husband’s initials next to the option' to reject UMBI coverage and signed her husband’s name on the rejection form. This Court reasoned that the spouse was a named insured under the policy and had expressed an intent not to receive UMBI coverage in the policy under which she was an insured. Further, in Bel v. State Farm Mutual Automobile Ins. Co., 02-0360 (La.App. 1 Cir. 2/14/03), 845 So.2d 459, writ denied, 03-0734 (La.5/30/03), 845 So.2d 1058, the plaintiffs argued that each insured named in the policy must sign a UMBI rejection in order for the rejection to be valid. The appellate court found “the wording of the statute clearly allows any insured named in the policy to reject UMBI coverage.” Id. at 462.

Pena, 11-1083 at pp. 6-7, 96 So.3d at 550.

In the case at bar, La. R.S. 22:1295(1)(a)(i), clearly states that “any insured named in the policy” can reject coverage. No dispute exists that Raysel is listed as a covered person under this policy, and thus is “any insured named in the policy.” When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written. Barrileaux v. NPC, Inc., 98-0728, p. 4 (La.App. 1 Cir. 4/1/99), 730 So.2d 1062, 1064. Accordingly, since Raysel was listed as an insured under this policy, he had the authority to reject UMBI coverage and sign the UMBI waiver of Coverage Form.

The UMBI Coverage Form involves six tasks: (1) initialing the selection or rejection of coverage chosen; (2) if limits lower than the policy limits are chosen 17(available in options 2 and 4), then filling in the amount of coverage selected for each person and each accident; (3) printing the name of the named insured or legal representative; (4) signing the name of the named insured or legal representative; (5) filling in the policy number; and (6) filling in the date. Banquer v. Guidroz, 09-466, p. 2 (La.5/15/09), 8 So.3d 559, 560-61.

The fact that Reyna’s name was printed on the form although Raysel signed it does not invalidate the UMBI Coverage Form. In Banquet, the Court held that the coverage form is valid as long as the name of the named insured is printed and the legal representative signs the form. In addition, the fact that someone other than the signatory filled in the date on the form is of no moment. See Lynch v. Kennard, 09-282 (La.5/15/09), 12 So.3d 944.

The purpose of requiring the UMBI Coverage Form to be clear and unmistakable is to establish that the insured knowingly waived coverage under a particular policy. Dixon v. Direct Gen. Ins. Co. of Louisiana, 08-0907, p. 8 (La.App. 1 Cir. 3/27/09), 12 So.3d 357, 362. In this case, we find that the form executed by Raysel complies with the formal requirements of law in that there is a clear rejection of UMBI coverage, the form is signed and dated, and it contains the policy number and the name of the insured. Accordingly, by submitting the UMBI Coverage Form signed by Raysel in support of its motion for summary judgment, USA-gencies has produced factual support sufficient to establish that it would be able to satisfy its evidentiary burden of proof at trial, i.e., that UMBI coverage was validly rejected by initialing and signing the UMBI Coverage Form, indicating that Reyna did not want UMBI coverage. At that point, the burden shifted to the plaintiffs to rebut the presumption that the insured knowingly rejected UMBI coverage. The plaintiffs failed to do so in this case.

1 sBased on the foregoing, we affirm the judgment of the trial court.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Selvin Torres RODRIGUEZ. State of Louisiana v. Selvin Torres Rodriguez.
    Nos. 2012-KA-0569, 2012-KA-0570.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 27, 2013.

      John F. Rowley, District Attorney, Walker H. Drake, Jr., Assistant District Attorney, Chalmette, LA, for Appellee.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for De-fendanVAppellant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., Judge JOY COSSICH LOBRANO).
   MAX N. TOBIAS, JR., Judge.

hThe defendant, Selvin Torres-Rodriguez (“Torres-Rodriguez”) has appealed his conviction on two counts of armed robbery. The court finds that the defendant’s guilty pleas and sentences must be vacated because his Boykin hearing was defective. Accordingly, we vacate the judgment and remand the matter to the trial court for another Boykin hearing.

On 5 October 2009, Torres-Rodriguez was charged by two bills of information with one count each of armed robbery while using a firearm, a violation of La. R.S. 14:64. The two counts were prosecuted together. Darbin Maurico Santos-Castro (“Santos-Castro”) was also charged with two counts of armed robbery with a firearm under a different case number. (Collectively, Torres-Rodriguez and Santos-Castro are referred to herein as “the defendants.”) Torres-Rodriguez appeared for arraignment and pleaded not guilty with the assistance of a Spanish interpreter in both cases on 17 November 2009.

|2The defendants filed motions to suppress the identifications. On 29 January 2010, the trial court denied the motions and found probable cause following a hearing.

A 23 March 2010 trial date was continued to 24-26 August 2010 and continued again later. On 3 August 2010, Torres-Rodriguez filed a motion to produce evidence for inspection, which was set for hearing on 10 August 2010. On 17 August 2010, the court ordered the production of several items, including cell phone records. On 27 October 2010, a box of evidence was unsealed for inspection in open court. On 8 February 2011, the trial date was continued to 26-28 April 2011.

Torres-Rodriguez withdrew his pleas of not guilty on 26 April 2011, and entered pleas of guilty in both cases. His counsel also requested a presentence investigation on that date. An interpreter for Torres-Rodriguez was sworn in. The trial court advised Torres-Rodriguez of his rights and accepted his guilty pleas. The trial court also ordered a presentence investigation, which was conducted.

At the sentencing hearing on 24 January 2012, Torres-Rodriguez withdrew his former guilty pleas and re-entered a guilty plea pursuant to State v. Crosby, 338 So.2d 584 (La.1976), reserving the right to appeal the trial court’s judgment |sdenying his motion to suppress evidence. Counsel for Torres-Rodriguez stipulated to the trial court that Torres-Rodriguez had already been BoykinizecL and that he had no objection to the Boylcinizing process. The trial court subsequently sentenced Torres-Rodriguez to thirty-five years at hard labor on each count, without benefit of parole, probation, or suspension of sentence, to run concurrently. Pursuant to La. R.S. 14:64.3, the trial court also imposed a five-year enhancement, to run consecutively. Accordingly, Torres-Rodriguez’s sentences were for a total forty years at hard labor without the benefit of probation, parole, or suspension. His counsel objected to the sentence.

14Torres-Rodriguez filed a motion to reconsider sentences on or about 31 January 2012 and a motion for appeal on 2 February 2012. On 6 March 2012, after a hearing, the trial court denied his motion to reconsider sentences and his counsel objected to the ruling.

ERRORS PATENT

A review of the record discloses no errors patent.

ASSIGNMENTS OF ERROR

Torres-Rodriguez has assigned two errors for review. The first assignment of error concerns the photographic lineup and subsequent identifications made by witnesses. However, because we find merit to his second assignment of error concerning the Boykin hearing, we preter-mit discussion of the first assignment.

In the second and final assignment of error, Torres-Rodriguez argues that the trial court erred in sentencing him to an additional five years under La. R.S. 14:64.3 because the court failed to advise him that it intended to impose the five-year enhancement before accepting his guilty plea.

|sThe trial court made the following remarks to Torres-Rodriguez at the Boykin hearing:

THE COURT:
All right. You are charged with a serious crime. The crime is armed robbery. I’m going to read to you the crime, the elements of the crime and the range of penalties.
Armed robbery is the taking of anything of value belonging to another person from the other person or that is in the immediate control of another person by the use of force or intimidation while armed with a dangerous weapon. Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than ten years without the benefit of parole, probation or suspension of sentence.
Do you understand the crime of armed robbery?
THE DEFENDANT:
Yes.
THE COURT:
Do you still wish to plead guilty?
THE DEFENDANT:
Yes.

La. R.S. 14:64.3 provides:

A. When the dangerous weapon used in the commission of the crime of armed robbery is a firearm, the offender shall be imprisoned at hard labor for an additional period of five years without benefit of parole, probation, or suspension of sentence. The additional penalty imposed pursuant to this Subsection shall be served consecutively to the sentence imposed under the provisions of R.S. 14:64.
B. When the dangerous weapon used in the commission of the crime of attempted armed robbery is a firearm, the offender shall be imprisoned at hard labor for an additional period of five years without benefit of parole, probation, or suspension of sentence. The additional penalty imposed pursuant to this Subsection shall be | ^served consecutively to the sentence imposed under the provisions of R.S. 14:27 and 64. [Emphasis supplied.]

Torres-Rodriguez argues that the state did not charge him with a violation of La. R.S. 14:64.3 in the bill of information, but only charged him with armed robbery under La. R.S. 14:64. He further argues that the state did not file a notice of intent to invoke the provisions of La. R.S. 14:64.3. Further, he contends that he objected to the five-year enhancement in his motion to reconsider sentences and at the hearing on the motion, but that the trial court denied his motion to reconsider.

Torres-Rodriguez acknowledges that in State v. Lewis, 03-1234 (La.App. 4 Cir. 6/2/04), 876 So.2d 912, this court found that the state’s failure to invoke the enhancement provisions of La. R.S. 14:64.3 prior to trial was not an error patent and did not violate the defendant’s due process rights:

La. R.S. 14:64.3 provides that “[w]hen the dangerous weapon used in the commission of the crime of armed robbery is a firearm, the offender shall be imprisoned for an additional period of five years without benefit of parole, probation, or suspension of sentence.” (Emphasis added.) Although it may be arguable that the State’s failure to move to have this provision invoked prior to the trial in some cases is an error patent, we do not find that it was in this case. The indictment in this case charged Mr. Lewis with committing an armed robbery while armed with a gun. Therefore, we do not find that the State’s failure to invoke the sentence enhancement provisions of La. R.S. 14:64.3 prior to Mr. Lewis’ conviction violated his right to due process. The jury was certainly aware that the armed robbery of which Mr. Lewis was accused was committed with a firearm, since the irrefutable evidence presented at trial showed that victim was shot twice.

Id., p. 10 n. 3, 876 So.2d 917 n. 3 [emphasis supplied].

Torres-Rodriguez also recognizes that in State v. Johnson, 43,192, p. 1 (La.App. 2 Cir. 4/30/08), 981 So.2d 253, the Second Circuit found that the state’s failure to invoke the sentence enhancement provisions of La. R.S. 14:64.3 did not violate a defendant’s due process rights because the defendant entered his guilty plea knowingly and voluntarily. In Johnson, the defendant pled guilty to armed robbery after reaching an agreement that (a) sentencing would be capped at fifty years; (b) a second armed robbery charge would be dismissed; and (c) he would not be charged as a habitual offender. The Johnson court recognized that before the trial court accepted the defendant’s guilty plea, the following colloquy occurred:

Q. ... Also, when the dangerous weapon used in the commission of the crime of armed robbery is a firearm the offender shall be imprisoned for an additional period of five years without benefit of parole, probation or suspension of sentence. The additional penalty imposed under this part of the law must be served consecutively to the sentence imposed on the count of armed robbery. So in other words whatever you do in this case, if you were to be found guilty of armed robbery or if you want to enter a plea of guilty to armed robbery you have to get a five year hard labor sentence tacked on to whatever your sentence would be. You understand that ? Because the crime here involved the use of a firearm. You understand that?
Is A. That’s what the victim said. I understand what you’re saying, but like I say, I understand what the procedure is and I’m going on with the procedure.
Q. Do you understand the nature of the charge, that is, do you understand the charge that you’re facing here?
A. Yes, Sir.
Q. Do you understand the possible range of sentence you could face if you were to go to court and be found guilty of this charge?
A. Yes, Sir. [Emphasis supplied].

Id., pp. 2-3, 981 So.2d at 254.

The trial court in Johnson had refused the defendant’s subsequent request to withdraw his guilty plea at sentencing based upon a finding that the plea was knowingly and voluntarily entered. Id., p. 1, 981 So.2d at 253-54. After the defendant was sentenced, the trial court imposed the additional five-year sentence enhancement pursuant to La. R.S. 14:64.3.

On appeal, the defendant argued that La. R.S. 14:64.3 was not charged in the bill of information. The Johnson court recognized that the state did not file a motion to enhance the defendant’s sentence pursuant to La. R.S. 14:64.3; rather, “the [trial] court apparently decided to apply the statute on its own.” Id., p. 5, 981 So.2d at 255. In determining that the defendant’s due process rights had not been violated by the trial court’s application of La. R.S. 14:64.3, the court held:

In State v. Allen, 496 So.2d 301 (La.1986), the supreme court held that a sentencing enhancement statute cannot be utilized by a trial judge when the prosecutor has failed to notify the defendant prior to trial of his intention to seek enhancement of the penalty by application of the enhancement statute. Allen involved former La. C. Cr. P. art. 893.1, which, at the time, required the court to impose a minimum 5-year sentence without benefits if the court makes a finding that a firearm was used in the commission of the crime.
laThe underlying issue in this case, as in Allen, is whether a defendant has been denied due process by a failure to receive notice that he is subject to a penalty enhancement for the use of a firearm. Our review of the record indicates that the bill of information charging that the dangerous weapon used in the armed robbery was a firearm put defendant on notice that the state intended to prove at trial that the defendant used a handgun in the commission of the crime. Indeed, during the Boy-kin colloquy, the defendant disputed that he possessed a handgun.
Additionally, the trial court informed the defendant prior to accepting a guilty plea from him that the court would impose the 5-year sentence enhancement. The defendant consulted with his attorney several times before ultimately tendering a guilty plea to the charge.

Id., pp. 5-6, 981 So.2d at 256.

Torres-Rodriguez argues that the Second Circuit subsequently distinguished Johnson in State v. Willis, 45,857, p. 21 (La.App. 2 Cir. 12/15/10), 56 So.3d 362, 370-71, wherein the court found that the trial court erroneously imposed the penalty enhancement of La. R.S. 14:64.3 “where the state neither statutorily charged the defendant with a violation of R.S. 14:64.3, nor filed notice of its intent to invoke the provisions of that statute.” The Willis court indicated that it distinguished the case from the facts in Johnson “on grounds that the defendant in [Johnson ] was convicted by virtue of a plea bargain that included a sentencing cap.” State v. Willis, 45,857, p. 22, 56 So.3d at 371. The Willis court concluded:

The sentence imposed [in Johnson ], including the enhancement, was within the sentencing cap. We held that there was no due process violation under the particular facts of that case because the bill of information charged that the dangerous weapon used in the armed robbery was a firearm and, significantly, during the Boykin colloquy, prior to accepting the defendant’s guilty plea, the court informed the defendant that it intended to impose the five-year sentence enhancement and the defendant had an opportunity to | indiscuss the matter with his attorney. Although we concluded that Johnson was not denied due process, we noted in the opinion that “[t]he better practice would be for the district attorney to charge the defendant on the bill of information that the defendant did commit the armed robbery on the victim while armed with a firearm ‘contrary to La. R.S. 14:64 and 64.3,’ or file written notice in advance of trial or the guilty plea proceeding that it intends to seek enhancement of the sentence under LSA-R.S. 14:64.3.”

Id.

Additionally, Torres-Rodriguez argues that his cases are not analogous to Lewis or Johnson because he pleaded guilty, and the trial court did not advise him before accepting his guilty pleas that it planned to add the five-year enhancement. Therefore, he contends that the five-year enhancement should be vacated from his sentences. However, in these cases, the bill of information charged Torres-Rodriguez with “armed robbery ... with the use of a fireann, in violation of 1950 LA. R.S. 14:64.” [Emphasis supplied.]

Notably, in State v. King, 06-1903, p. 7 (La.10/16/07), 969 So.2d 1228, 1232, the Court determined that “[t]he addition of the penalty for use of a firearm in the commission of an armed robbery, as well as the subsequent amendments to the statute, indicates the legislature’s intent to enhance the penalty when a firearm is used in the commission of the armed robbery or attempted armed robbery by providing the additional five-year penalty to be served consecutively to the sentence imposed under the provisions of LSA-R.S. 14:64.” Furthermore, although the trial court did not advise Torres-Rodriguez of the enhancement provisions of La. R.S. 14:64.3 during the Boykinizing process, counsel for Torres-podriguezn appears to have stipulated that Torres-Rodriguez had been properly Boykinized before sentencing.

However, in this case, unlike in Johnson, the trial court did not advise Torres-Rodriguez specifically of the five-year enhancement prior to accepting Torres-Rodriguez’s guilty pleas or before sentencing. We find that this omission violated Torres-Rodriguez’s due process rights. The proper remedy is to vacate Torres-Rodriguez’s pleas and sentences in their entirety and remand the matter to the trial court so that the trial court can conduct another Boykin hearing in each case and resen-tence him. We note that under this scenario, if Torres-Rodriguez withdraws his guilty pleas, he might face terms of imprisonment of ninety-nine years. See La. R.S. 14:64 (“[w]hoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than ten years and for not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence.”).

CONCLUSION

For the foregoing reasons, we vacate Torres-Rodriguez’s guilty pleas and sentences because the trial court did not specifically advise Torres-Rodriguez of the mandatory La. R.S. 14:64.3 five-year enhancement prior to accepting his pleas; we remand the matter for another Boykin hearing.

VACATED AND REMANDED.

      .It is apparent that the defendant's actual name is "Selvin Torres-Rodriguez,” although he was charged as “Selvin Torres Rodriguez.”

      . The trial court also ordered inspection of the crime scene on 25 August 2010.

      . Also on that date, the trial court ordered that the defense provide the state with the DNA test results. At the Boykin hearing, the Assistant District Attorney stated that "[tjhere’s the issue of the donut or the pastry and the cup that have all gone through DNA testing that supports this guilty plea.”

      . Torres-Rodriguez testified that he had no trouble with the interpreter’s translations. Additionally, his counsel agreed with the state’s assertion that everything had been translated fairly and that he "did not give any appearance of him being confused by anything that the State of Louisiana said,” and his counsel stipulated that "[tjhere was a translator [sic] present for all communications between counsel as well, and the court accepted the translator [sic].”

      . Torres-Rodriguez was advised of his rights through the interpreter.

      . At that hearing, counsel for Santos-Castro filed a motion to exclude the application of La. R.S. 14:64.3. The motion was denied.

      . The following colloquy occurred between counsel for Torres-Rodriguez and the trial court:
      THE COURT:
      I want you to state for the record you have no objection to the Boykin process and your client has no objection.
      [COUNSEL FOR DEFENDANT]:
      I believe he was properly Boykined as he pled to armed robbery. One of the issues, as — I believe he was billed under armed robbery and as a principal to armed robbery.
      THE COURT:
      Two counts.
      [COUNSEL FOR DEFENDANT]:
      Two counts. He was Boykined that day, and we also advised him pursuant to P[a]d-illa versus Kentucky, we would allow that Boykin and not have no [sic] objection as to the State—
      THE COURT:
      You just wanted to make sure it was clear to this Court — if it wasn't at [the] time of Boykin — that the guilty pleas was [sic] also pursuant to Crosby as well?
      [COUNSEL FOR DEFENDANT]:
      It's a Crosby plea.

      .The trial court explained its reasons for sentencing:
      You committed the crime of armed robbery. You pled guilty to two counts of armed robbery against two individuals who live in this parish. Guns were pulled. Guns were put to their heads. Each of them thought they would die on that day.
      The victims, Baker Jaber and Amani Ja-ber, sit in my mind, and I think about them. Amani Jaber is a very young lady helping her father in a family restaurant. Mr. Rodriguez, you entered that quiet family business armed with guns with your friends, pointed guns at their heads and tied them up.

      In determining the length of your sentence, how long you’ll be in jail, I will take into account [that] you did not show remorse for your actions in the two years this case was litigated. In the presentence investigation that was conducted, you failed to tell the truth and you failed to take responsibility for your actions.
      You participated in a violent armed robbery with guns, threatened the lives of victims, intentionally and willfully you threatened the life of a young lady who has to deal with this trauma every day of her life. You participated in, threatened the life of two innocent people, two people who were doing nothing more than working in a family business in a very friendly community. Your violent actions threatened the life, as I stated, of two people and one innocent little girl.

      I will consider the fact that a firearm was used. I will consider the fact that, in this robbery, you tied up your victims. You pointed guns to their heads and you threatened to kill them.

      . This court, relying in part upon Lewis in an unpublished opinion, has also recognized that:
      For the firearm enhancement provisions of La. R.S. 14:64.3 to be applicable all the State has to do is allege in the bill of information charging the defendant with armed robbery that he committed the armed robbery while armed with a gun, as was done in the instant case — "WHILE ARMED WITH A DANGEROUS WEAPON, TO WIT: HANDGUN, ROBBED JAMES BRANCH....” State v. Lewis, 2003-1234, p. 10, n. 3 (La.App. 4 Cir. 6/2/04), 876 So.2d 912, 917, n. 3.

        State v. Hayes, 07-1280, p. 3 n. 3 (La.App. 4 Cir. 5/28/08), unpub., 983 So.2d 1033 (Table), 2008 WL 8922917 [emphasis supplied].

      . La. R.S. 14:64.3 was amended in 1999 to provide that a defendant be imprisoned for “an additional five years” when a firearm is used in commission of the crime of armed robbery, and again in 2006 to provide that the sentence be served "at hard labor.” State v. King, 06-1903, p. 7, 969 So.2d at 1231-32 (emphasis in original).


author: AMY, Judge.

text:
    STATE of Louisiana v. Demetrius D. NASH.
    No. 12-1146.
    Court of Appeal of Louisiana, Third Circuit.
    April 3, 2013.

      John F. DeRosier, District Attorney, Karen C. McLellan, Assistant District Attorney, Lake Charles, LA, for Appellee, State of Louisiana.
    Edward J. Marquet, Lafayette, LA, for Defendant/Appellant, Demetrius D. Nash.
    Demetrius D. Nash, Cottonport, LA, In Proper Person.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and J. DAVID PAINTER, Judges.
   AMY, Judge.

11 The defendant was charged with attempted armed robbery and attempted armed robbery with a firearm. In separate cases, the defendant was charged with armed robbery and armed robbery with a firearm; possession of stolen things; and a probation violation. Pursuant to a plea agreement, the State dismissed several of the charges, and the defendant pled guilty to attempted armed robbery in this case and an armed robbery charge in another case. The defendant also admitted his probation violation. Thereafter, the trial court sentenced the defendant to twenty years at hard labor, without benefit of probation, parole, or suspension of sentence for the attempted armed robbery charge. The trial court sentenced the defendant to thirty-five years at hard labor, without benefit of probation, parole, or suspension of sentence for the armed robbery conviction, and three years at hard labor for the probation violation. Further, the trial court ordered that all sentences be served consecutively. The defendant appeals. For the following reasons, we affirm.

Factual and Procedural Background

The State alleged that the defendant, Demetrius D. Nash, approached Amy Jo Tartaglia and Kayla Soileau as they were leaving an event at the Civic Center. Ms. Tartaglia and Ms. Soileau were using a baby stroller to transport a cooler and lawn chairs from the event. According to Ms. Tartaglia’s testimony, the defendant approached Ms. Tartaglia and Ms. Soileau and pointed a gun at the stroller. Realizing that there was no child in the stroller, the defendant pointed the gun at Ms. Tar-taglia and demanded money. Ms. Soileau ran, screaming for help, and Ms. 1 ¡.Tartaglia attempted to defend herself. Although Ms. Tartaglia was unable to disarm the defendant, he eventually ran away without taking anything from the two women.

The record indicates that the defendant was involved in another incident later that night. According to the State, the defendant and an accomplice approached two women, Morgan Abshire and Darlena Ab-shire, in a parking lot. After the defendant threatened the women with a gun, he and the accomplice took cash from both women and took Darlena’s cell phone. Several minutes after the robbery, the defendant used the cell phone; one of the phone calls was to his mother’s house. The State noted that this led to the defendant being identified as a suspect in both robberies.

In connection with , the attempted robbery of Ms. Tartaglia and Ms. Soileau, the defendant was charged in docket number 22567-09 with attempted armed robbery, a violation of La.R.S. 14:27 and La.R.S. 14:64, and attempted armed robbery with a firearm, a violation of La.R.S. 14:27 and La.R.S. 14:64.3. In connection with the robbery of Morgan and Darlena Abshire, the defendant was charged under docket number 27791-09 with armed robbery, a violation of La.R.S. 14:64, and armed robbery with a firearm, a violation of La.R.S. 14:64.3.

The defendant agreed to plead guilty to attempted armed robbery and armed robbery and to admit to a probation violation. In return, the State dismissed the charges of attempted armed robbery with a firearm and armed robbery with a firearm. The State also dismissed a charge of possession of stolen things over $500 under another docket number. At the change of plea hearing, the defendant initially disagreed with the State’s factual basis for the attempted armed robbery charges, and the trial court refused to accept the defendant’s guilty plea. However, |3after speaking with his attorney, the defendant indicated that he wanted to plead guilty to that charge, and the trial court accepted his guilty plea. The defendant also pled guilty to armed robbery and admitted his probation violation.

The trial court subsequently sentenced the defendant to twenty years at hard labor, without the benefit of probation, parole, or suspension of sentence for the attempted armed robbery conviction. For the armed robbery conviction, the trial court sentenced the defendant to thirty-five years at hard labor, without the benefit of probation, parole, or suspension of sentence. With regard to the probation violation, the trial court ordered that the defendant’s probation be revoked and that he serve the previously suspended three-year term. The trial court ordered that all of the defendant’s sentences run consecutively.

Thereafter, the defendant filed a motion for reconsideration, alleging that “very important mitigation evidence” was missing from the pre-sentence investigation, namely, that the defendant “was the victim of a serious crime of violence committed by his step-father who attempted to kill him and essentially left him for dead, and that this experience has been a factor in his development and ability to adapt in society.” The trial court held a hearing on the defendant’s motion. After hearing the evidence presented, the trial court found that the defendant had a traumatic experience when he was a young boy. However, the trial court declined to grant the defendant’s motion for reconsideration, noting that the defendant failed to make good choices, showed no remorse for his actions, and “did not attribute very much of what his actions were” to the trauma he experienced as a child.

Herein, the defendant appeals his conviction and sentence for attempted armed robbery. The defendant’s conviction and sentence for armed robbery is on |4appeal in State v. Demetrius D. Nash, 12-1147 (La.App. 3 Cir. 4/3/13), 112 So.3d 419, 2013 WL 1319545. The defendant moved to consolidate briefing of the two cases on appeal. For this reason, we address the issues presented in both cases simultaneously.

The defendant appeals, asserting in his counseled brief that his sentence is unconstitutionally excessive. The defendant has also filed a pro se brief, asserting that his guilty plea was involuntary, that his sentence is excessive, and that the trial court was biased against him.

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, all criminal appeals are reviewed for errors patent on the face of the record. After reviewing the record, the court finds no errors patent.

Invalidity of Guilty Plea

The defendant contends that his guilty plea with regard to the charge of attempted armed robbery is invalid because it was a product of fear and coercion. He also contends that his initial reticence to plead guilty should have put the trial court on notice of his claims of innocence and that the trial court accepted his guilty plea without having a substantial basis for the defendant’s guilt.

In State v. Johnson, 04-1266, pp. 6-7 (La.App. 3 Cir. 2/2/05), 893 So.2d 945, 950, this court addressed the requirement that the trial court ascertain a factual basis in accepting a guilty plea, stating:

Generally, a defendant waives the right to question the merits of the State’s case or the underlying factual basis by entering a plea of guilt, or plea of nolo contendere. State v. Brooks, 38,963 (La.App. 2 Cir. 9/22/04), 882 So.2d 724[, writ denied, 04-2634 (La.2/18/05), 896 So.2d 30]. “When a guilty plea is otherwise voluntary, there is no necessity to ascertain a factual basis for that plea unless the accused protests his innocence or for some other reason the trial court is put on notice that there is a need for such an inquiry. In that event, due process requires a judicial finding of a significant factual basis for the defendant’s plea.” State v. Linear, 600 So.2d 113, 115 (La.App. 2 Cir.1992); See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

Further, a guilty plea is not precluded even when a defendant communicates his belief that he is innocent to the trial court. Linear, 600 So.2d 113. In those cases, “[t]he presence of significant evidence of actual guilt provides a means by which the court may test whether a plea was intelligently entered.” Id. at 115.

The record indicates that, at the change of plea hearing, the trial court advised the defendant as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and advised the defendant of the potential sentencing exposure for each charge. The defendant denied that he was pleading guilty as a result of any force or coercion and confirmed that he had discussed the guilty pleas with his attorney. The State then offered the following factual basis for the defendant’s charge of attempted armed robbery:

22567-09 is the attempted armed robbery. This occurred on May 15th, 2009 at the Civic Center. Amy Tortaglia [sic] and a student of hers, Kayla Soileau, were leaving a function at the Civic Center. They were approached by the defendant; he pulled a gun on them. Kayla Soileau ran. He demanded money from Amy Tortaglia [sic]. She put up a fight and started struggling with him, and I believe struck him a couple of times, and then he took the gun and left without getting any money from her. So it was an attempted armed robbery.

Thereafter, the defendant denied that he robbed anyone at the Civic Center.

| fiAfter a brief discussion about whether an Alford plea or no contest plea was appropriate, the defendant indicated that he wanted to plead no contest. However, the trial court initially rejected the defendant’s guilty plea. The defendant did not contest the State’s factual basis for the charge of armed robbery, and the trial court accepted the defendant’s guilty plea for that charge. The defendant also admitted to a probation violation. However, after consulting with his attorney, the defendant indicated that he had changed his mind and wanted to “plead guilty to the 17attempted armed robbery.” The trial court then accepted the defendant’s guilty plea as to that charge.

In this case, we find that the record contains a significant factual basis which allowed the trial court to test whether or not the defendant entered into his guilty plea intelligently. The factual basis provided by the State set forth all of the elements necessary for a conviction of the crime of attempted armed robbery. See La.R.S. 14:27 and 14:64. Further, in addition to the factual basis provided with regard to the attempted, armed robbery at the Civic Center, the State offered a factual basis for the defendant’s armed robbery charge and noted that the defendant’s involvement in that offense “led us to develop him as a suspect and then he was, of course, identified in this one as well as the attempted robbery at the Civic Center.” Additionally, before he consulted with his attorney, the defendant indicated that he would be willing to enter a no contest plea to the charge of attempted armed robbery.

The record indicates that “the trial court properly inquired into and investigated the factual bas[i]s for the guilty plea[ ] in light of defendant’s temporary and vague assertion of innocence.” State v. Mack, 45,552, p. 4 (La.App. 2 Cir. 8/11/10), 46 So.3d 801, 804. Viewing the transcript in its entirety, we conclude that the defendant knowingly and intelligently entered a guilty plea to the crime of attempted armed robbery in this case. See also State v. Estes, 42,093 (La.App. 2 Cir. 5/9/07), 956 So.2d 779, writ denied, 07-1442 (La.4/4/08), 978 So.2d 324.

This assignment of error is without merit.

IsExcessiveness of Sentence

In both his counseled brief and his pro se brief, the defendant contends that his sentence is unconstitutionally excessive. Specifically, he contends that the trial court improperly ignored mitigating evidence and improperly relied on the incorrect factual conclusion that the defendant pointed a gun at a child, and that the trial court erred in imposing consecutive sentences.

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

La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

Further, this court has held that:

In deciding whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals, an appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00); 766 So.2d 501. While a comparison of sentences imposed for similar crimes may 19provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061.

We observe that, absent a motion that asserts specific grounds for reconsideration of the sentence imposed, a defendant is limited to a bare excessiveness review of his or her sentence. State v. Runyon, 06-823 (La.App. 3 Cir. 12/6/06), 944 So.2d 820, writ denied, 07-49 (La.9/21/07), 964 So.2d 330. The record indicates that the defendant filed a motion for reconsideration which alleged that mitigation evidence had come to light which warranted reconsideration by the trial court and that the defendant’s sentence was excessive, especially due to the consecutive nature of the sentences.

The trial court is required to take into consideration the aggravating and mitigating factors delineated in La. Code Crim.P. art. 894.1, and to state the considerations taken- into account and the factual basis therefor into the record. See State v. Decuir, 10-1112 (La.App. 3 Cir. 4/6/11), 61 So.3d 782. Although the record should indicate that the trial court adequately considered those guidelines, there is no requirement that that trial court list every aggravating or mitigating circumstance. Id. See also State v. Smith, 433 So.2d 688 (La.1983). “The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense, and the likelihood of rehabilitation.” Decuir, 61 So.3d at 785 (quoting State v. Scott, 36,763 (La.App. 2 Cir. 1/29/03), 836 So.2d 1180). If the offense to which the defendant has pled guilty does not adequately describe the entire course of the defendant’s conduct, the trial court may consider the benefit obtained by the defendant pursuant to plea bargain, especially in those cases where the plea bargain results in a significant reduction in the defendant’s sentencing exposure. State v. Williams, 02-707 (La.App. 3 Cir. 3/5/03), 839 So.2d 1095.

However, even if the trial court does not comply with the requirements of Article 894.1, if an adequate factual basis for the sentence is contained in the record, there is no need for the appellate court to remand for resentencing. State v. Bey, 03-277 (La.App. 3 Cir. 10/15/03), 857 So.2d 1268.

The defendant particularly objects to the trial court’s reliance on the erroneous factual conclusion that the defendant “pointed a gun at a child.” We find no merit to the defendant’s argument in this regard. The record indicates that one of the victims, Ms. Tartaglia, testified at the sentencing hearing that Mr. Nash pointed his gun at a baby stroller she was using to transport lawn chairs and an ice chest. According to Ms. Tartaglia, once Mr. Nash realized that there was not a child in the stroller, he pointed the gun at her. The following exchange occurred later:

THE COURT: .... Why would you pull a gun, point it at a child?—
MR. NASH: I ain’t—
THE COURT: — what you thought was a child—
MR. NASH: I ain’t point it at no child.
THE COURT: I understand you didn’t point it at a child, but you pointed it at a baby stroller where a child would normally have been seated.

|1TThus, we find no support in the record for the defendant’s assertion that the trial court inappropriately relied on an erroneous conclusion of fact in sentencing the defendant. Although the trial court initially misspoke, the defendant objected to the trial court’s characterization of the defendant’s actions. The trial court’s factual statements are supported by Ms. Tartag-lia’s testimony and are not manifestly erroneous.

With regard to the trial court’s consideration of the guidelines delineated in La. Code Crim.P. art. 894.1, the record indicates that the trial court was privy to a pre-sentence investigation. The defendant’s trial counsel stated at the sentencing hearing that he had the opportunity to review the pre-sentence investigation with the defendant and that he did not see anything “glaringly inaccurate.” Although the pre-sentence investigation is not contained in the record, the record reveals that the defendant was twenty-one years old at sentencing. The record also indicates that the defendant had an unspecified “long history of criminal activity.” Specifically, the record indicates that the defendant was on probation for a felony charge of simple burglary at the time the crimes herein were committed. When questioned by the trial court, the State noted that the defendant’s prior conviction actually consisted of two thefts and two burglaries. Further, the defendant had a long history of drug abuse and mental issues, which the trial court noted may have been connected to the defendant’s use ofPCP.

The defendant also complains that the trial court failed to take into consideration that he had been the victim of a serious crime when he was a young 112child. The defendant filed a motion for reconsideration on that basis, and the evidence presented at that hearing was that, when the defendant was eight years old, the defendant’s stepfather strangled him and left him for dead. The defendant was hospitalized for several weeks as a result of the attack. Subsequently, the defendant’s stepfather was tried for attempted second-degree murder, and the defendant, then twelve years old, testified at the trial. The stepfather was convicted of attempted manslaughter and sentenced, as a habitual offender, to twenty-five years at hard labor. The former assistant district attorney who prosecuted the stepfather testified that the defendant was “closed off and angry” after the case.

At the hearing on the motion for reconsideration, the trial court found that the defendant had suffered a traumatic event when he was young but that the defendant himself did not consider the incident to be significant. The trial court also noted that the defendant reported the incident to the probation officer who compiled the pre-sentence investigation and that it was contained therein. The trial court denied the defendant’s motion for reconsideration, noting that the defendant started making bad choices when he was very young, that he showed no remorse when he was in front of the court, and that he “failed woefully to impress[the trial court] in any shape, form or fashion.”

Based on this review, we find that the record clearly indicates that the trial court considered several of the factors delineated in La.Code Crim.P. art. 894.1. Although the trial court did not delineate every aggravating and mitigating factor therein, there is sufficient evidence in the record to conclude that the trial court adequately considered those guidelines.

lisWith regard to the defendant’s contention that his sentence is unconstitutionally excessive, the record indicates that the defendant pled guilty to attempted armed robbery, a violation of La.R.S. 14:27 and La.R.S. 14:64, and armed robbery, a violation of La.R.S. 14:64. The crime of armed robbery carries a potential sentence of “not less than ten years and for not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence.” La.R.S. 14:64(B). The crime of attempted armed robbery carries a maximum potential sentence of forty-nine and one-half years, without benefit of parole, probation, or suspension of sentence. See La.R.S. 14:27(D)(3); State v. Brown, 09-884 (La.App. 4 Cir. 3/31/10), 36 So.3d 974, writ denied, 10-1120 (La.4/29/11), 62 So.3d 105.

The record indicates that the defendant was sentenced to twenty years at hard labor, without the benefit of probation, parole, or suspension of sentence for the charge of attempted armed robbery. For the charge of armed robbery, the defendant was sentenced to thirty-five years at hard labor, without the benefit of probation, parole, or suspension of sentence. Further, the defendant admitted to a parole violation and the trial court imposed the previously suspended three-year hard labor sentence in that case. The trial court also ordered that all of the defendant’s sentences run consecutively.

The record indicates that the defendant committed two serious offenses, both involving the use of a firearm. See State v. Mason, 10-284, p. 15 (La.App. 5 Cir. 1/11/11), 59 So.3d 419, 429 (“Armed robbery is a most serious crime and should be dealt with very sternly.”), writ denied, 11-306 (La.6/24/11), 64 So.2d 216. The defendant’s sentences are not maximum sentences. Even so, sentences of thirty-five to fifty years have been found acceptable even for first offenders convicted of armed robbery. Id. (citing State v. Duncan, 09-232 (La.App. 5 Cir. 11/10/09); 28 So.3d 410). The defendant is not a first felony offender. According to the record, the defendant had at least one prior felony offense, for which he was on probation when these crimes occurred. We also observe that the defendant’s sentencing exposure was reduced pursuant to his plea agreement with the State. Williams, 839 So.2d 1095. Given these circumstances, the trial court did not abuse its discretion in imposing a twenty-year hard labor sentence for the crime of attempted armed robbery and a thirty-five year hard labor sentence for the crime of armed robbery. See also State v. Cairoll, 41,001 (La.App. 2 Cir. 4/12/06), 926 So.2d 827, writ denied, 06-1470 (La.12/15/06), 944 So.2d 1283. Accordingly, we find that the defendant’s individual sentences are not unconstitutionally excessive. See Barling, 779 So.2d 1035; Smith, 846 So.2d 786.

The defendant also contends that his sentences are unconstitutionally excessive because the trial court ordered that they be served consecutively. Louisiana Code of Criminal Procedure Article 883 states, in relevant part:

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently.

Although concurrent sentencing is favored where the offenses arise out of the same course of conduct, the trial court has the discretion to impose consecutive sentences “based on factors including the defendant’s criminal record, the severity or violent nature of the crimes, or the danger the defendant poses to the public.” Runyon, 944 So.2d at 831 (citing State v. Thomas, 98-1144 (La.10/9/98), 719 So.2d 49). However, where the trial court imposes consecutive sentences, it must | ^articulate a particular justification for doing so beyond the standard sentencing guidelines contained in La.Code Crim.P. art. 894.1. Runyon, 944 So.2d 820.

Even assuming that the defendant’s crimes were part of the same act or transaction or that they constituted part of a common scheme or plan, we find that the trial court sufficiently articulated a particular justification for imposing consecutive sentences. The record indicates that, in addition to the information provided in the pre-sentence report concerning the effect of the defendant’s actions on the victims of his crimes, the trial court heard the testimony of Ms. Tartaglia.

Ms. Tartaglia testified as to the lingering effects of the defendant’s crime, including PTSD, panic attacks and nightmares. Further, the trial court commented on the defendant’s criminal history, including the fact that he was on probation when he committed the instant crimes. The trial court was particularly impressed that the defendant pointed a weapon at a baby stroller, although the trial court acknowledged that there was no child in the stroller at the time the defendant pointed the gun at the stroller. We also observe that, at the motion for reconsideration, the trial court associated the defendant’s denial that he pointed a gun at the stroller with a lack of remorse. Thus, we find that the trial court articulated a particular justification for the imposition of consecutive sentences. See State v. Hawkins, 06-1599 (La.App. 3 Cir. 5/2/07), 956 So.2d 146, writ denied, 07-1156 (La.12/7/07), 969 So.2d 627; Runyon, 944 So.2d 820. The trial court did not err in imposing consecutive sentences.

Based on our review of the record, we find that the trial court sufficiently considered the aggravating and mitigating circumstances delineated in La.Code Crim.P. art. 894.1 and that the trial court did not abuse its discretion in imposing either the defendant’s individual sentences or in ordering them to be served | ¡^consecutively. Accordingly, we find that the defendant’s sentences for attempted armed robbery and armed robbery are not “so grossly disproportionate to the severity of the crime as to shock our sense of justice.” Barling, 779 So.2d 1035, 1042. The defendant’s assignments of error in this regard are without merit.

Bias on the Part of the Trial Judge

In his remaining pro se assignment of error, the defendant contends that the trial court was biased against him. Louisiana Code of Criminal Procedure Article 674 addresses the procedure for recusation of judges, stating, in relevant part, that:

A party desiring to recuse a trial judge shall file a written motion therefor assigning the ground for recusation. The motion shall be filed prior to commencement of the trial unless the party discovers the facts constituting the ground for recusation thereafter, in which event it shall be filed immediately after the facts are discovered, but prior to verdict or judgment.

Our review of the record reveals that the defendant did not file a motion to recuse or otherwise make any allegations of bias prior to asserting this issue on appeal. Because the defendant failed to present this issue to the trial court, it is waived on appeal. State v. Williams, 580 So.2d 448 (La.App. 5 Cir.1991). Thus, we do not consider the defendant’s argument in this regard.

DECREE

For the foregoing reasons, the conviction and sentence of the defendant, Demetrius D. Nash, for attempted armed robbery, a violation o'f La.R.S. La.R.S.14:27 and La.R.S. 14:64, are affirmed.

AFFIRMED.

      . As discussed further herein, with regard to the charges of armed robbery and armed robbery with a firearm, the defendant pled guilty to armed robbery. His conviction and sentence in that case are on appeal in State v. Demetrius D. Nash, 12-1147 (La.App. 3 Cir. 4/3/13), 112 So.3d 419, 2013 WL 1319545.

      . Ms. Tartaglia’s name is spelled variously as “Amy Joe” and "Tortaglia” in the record. We use the spelling in her testimony given at sentencing.

      . In his pro se brief, the defendant only argues that his guilty plea for the charge of attempted armed robbery is invalid. Accordingly, we only address the validity of the defendant's guilty plea for that charge.

      . The record indicates that the following exchange occurred:
      THE COURT: Did you hear that, Mr. Nash?
      MR. NASH: Yes, sir.
      THE COURT: Is that true, sir?
      MR. NASH: Well, I said I ain’t but—
      THE COURT: How you want to plead to
      the charge?
      MR. NASH: Guilty.
      THE COURT: I don't understand, why are you shaking your head? Did you hear what Mr. Kimball said—
      MR. NASH: Yes, sir.
      THE COURT: —about you pulled a gun on some people at the Civic Center on a particular date that he talked about,—
      MR. NASH: Yes, sir.
      THE COURT: — and that the lady struggled with you and you ran away and you got nothing from the attempted armed robbery?
      MR. NASH: Yes, sir.
      THE COURT: And I asked you, did you hear it; you heard it?
      MR. NASH: Yes, sir, I heard it.
      THE COURT: Is it true? Is what he said true?
      MR. NASH: No, sir.
      THE COURT: What’s wrong with what he said?
      MR. NASH: I ain’t robbed the people at the Civic Center.
      THE COURT: That’s not the people at the Civic Center?

        MR. NASH: I ain’t robbed nobody at the Civic Center.

      . The trial court also imposed a three-year hard labor sentence for the defendant's probation violation. In his pro se brief, the defendant mentions that the consecutive nature of his sentence for the probation violation is excessive. The defendant's sentence in that matter was imposed under a separate docket number and is not on appeal in either this case or in docket number 12-1147.

      . The defendant's trial counsel also testified at the defendant’s motion for reconsideration. In his testimony, trial counsel testified about his general procedure in reviewing a pre-sentence investigation but was unsure of whether he received the pre-sentence investigation the day of sentencing or before sentencing.


text:
    STATE of Louisiana v. Demetrius D. NASH.
    No. 12-1147.
    Court of Appeal of Louisiana, Third Circuit.
    April 3, 2013.
    John F. DeRosier, District Attorney, Lake Charles, LA, for Appellee, State of Louisiana.
    Edward J. Marquet, Lafayette, LA, for Defendant/Appellant, Demetrius D. Nash.
    Demetrius D. Nash, Cottonport, LA, In Proper Person..
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and J. DAVID PAINTER, Judges.
   AMY, Judge.

_|jln this case, the defendant, Demetrius D. Nash, pled guilty to one count of armed robbery, a violation of La.R.S. 14:64. The defendant appeals. The defendant moved to consolidate briefing in this case and in State v. Demetrius D. Nash, 12-1146 (La.App. 3 Cir. 4/3/13), 112 So.3d 409. For the reasons given in docket number 12-1146, the defendant’s conviction and sentence for armed robbery are affirmed.

AFFIRMED.


author: JESS H. DICKINSON, Presiding Justice.

text:
    Ricky CHASE a/k/a Ricky Roy Chase, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CA-01983-SCT.
    Supreme Court of Mississippi.
    Jan. 15, 2013.
   EN BANC ORDER

JESS H. DICKINSON, Presiding Justice.

Based on the United States Supreme Court’s decision in Atkins v. Virginia, Ricky Chase — claiming to be mentally retarded and therefore exempt from execution — filed an application to proceed in the trial court with his petition for post-conviction relief. We granted the petition and remanded the matter to the Copiah County Circuit Court for a hearing on that issue.

In our remand order, we set forth certain requirements for a finding of mental retardation, but we did not directly address whether a psychologist or psychiatrist could render opinions based upon tests administered by other professionals. We take this opportunity to further clarify our previous remand order by stating that — subject to the requirements of Mississippi Rule of Evidence 702, — psychologists and psychiatrists rendering opinions on mental retardation in death penalty cases may rely on the testing administered by others.

On remand, the trial judge ordered the Mississippi State Hospital at Whitfield to evaluate Chase, and ordered the Mississippi State Penitentiary-at Parchman to allow Chase’s experts — Daniel Reschly, PhD, and Gerald O’Brien, PhD — access to Chase for evaluation. In order to determine Chase’s pre-incarceration adaptive functioning, Dr. Reschly conducted third-party interviews with Chase’s family members, teachers, and others, but he and Dr. O’Brien relied on full-scale intelligence testing and testing for malingering administered by doctors at the Mississippi State Hospital at Whitfield.

The trial judge held an evidentiary hearing on this matter on August 16-17, 2010. Following the hearing, the circuit court ordered the State and Chase’s counsel to submit proposed findings of fact and conclusions of law. The State submitted a fifty-seven page Proposed Findings of Fact and Conclusions of Law. The trial judge signed the State’s submission verbatim, including leaving the title “Proposed Findings of Fact and Conclusions of Law,” raising concerns in this death-penalty case.

Additionally, the Court needs clarification on whether, in denying Chase’s petition for post-conviction relief, the trial judge believed that our previous remand order precluded Chase’s experts from relying on the results of tests performed by the Mississippi State Hospital.

We vacate the trial court’s judgment and remand the matter for the trial judge to take into account our clarification, to issue his own Findings of Fact and Conclusions of Law, and to enter a new judgment based thereon.

SO ORDERED.

KITCHENS AND COLEMAN, JJ., NOT PARTICIPATING.

      . Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).

      . Chase v. State, 873 So.2d 1013 (Miss.2004).

      . Miss. R. Evid. 702.


author: PIERCE, Justice,

text:
    Shirley ALSTON and Robert Alston v. Justin P. POPE and T.K. Stanley, Inc.
    No. 2010-CT-01760-SCT.
    Supreme Court of Mississippi.
    March 28, 2013.

      Stephen J. Maggio, attorney for appellants.
    B. Stevens Hazard, Jackson, Steven James Griffin, Flowood, attorneys for ap-pellees.
   ON WRIT OF CERTIORARI

PIERCE, Justice,

for the Court:

¶ 1. Shirley and Robert Alston filed suit in the Wayne County Circuit Court against Justin P. Pope and T.K. Stanley, Inc. (“Defendants”), seeking damages they claim resulted from a motor-vehicle accident in Tuscaloosa, Alabama. The circuit. court dismissed the case on grounds of forum non conveniens. The Alstons then filed suit in Alabama. The suit was dismissed because Alabama’s statute of limitations for the claim had expired. The Alstons thereafter filed a motion for relief from judgment, under Rule 60(b) of the Mississippi Rules of Civil Procedure, in the Wayne County Circuit Court. The Al-stons claimed the circuit court’s previous dismissal was void because Defendants had failed to file a written stipulation with the court, waiving the right to assert a statute-of-limitations defense. The circuit court denied the Alstons’ motion and the Alstons appealed. The Court of Appeals reversed and remanded the matter for an adjudication on the merits after finding the circuit court abused its discretion by denying the Alstons’ Rule 60(b) motion.

¶ 2. Defendants petitioned this Court for a writ of certiorari, which we granted. Having found that the Court of Appeals erred in reversing the circuit court’s decision to deny the Alstons’ Rule 60(b) motion, we reverse the Court of Appeals’ decision. We reinstate and affirm the circuit court’s judgment denying the Alstons’ Rule 60(b) motion.

BACKGROUND FACTS AND PROCEEDINGS

¶ 3. On December 12, 2005, Shirley Alston, an Alabama resident, was a passenger in a vehicle that collided with an eighteen-wheeler driven by Justin Pope in Tuscaloosa, Alabama. Pope, a Mississippi resident, was operating the eighteen-wheeler on behalf of his employer T.K. Stanley Inc., a Mississippi corporation with its principal place of business in Wayne County.

¶ 4. On November 27, 2007, Shirley and her husband, Robert, filed a negligence action in Wayne County Circuit Court against Pope and T.K. Stanley. On January 25, 2008, Defendants filed a motion to dismiss on forum non conveniens grounds.

¶ 5. On October 14, 2008, the court conducted a hearing on Defendants’ motion to dismiss. At the hearing, Defendants argued that Alabama was the most appropriate forum for resolution of the Alstons’ claim. In response, the Alstons argued that Defendants were required to file a written stipulation waiving the right to assert a statute-of-limitations defense, but failed to do so. Specifically, counsel for the Alstons stated:

So I think the [c]ourt has a balancing [test] to engage in, and I grant you that the [c]ourt may decide on balance that my lawsuit should be over in Alabama; and if it does, the relief I’d request from the [c]ourt in that regard is the requirement that [Defendants] stipulate to a waiver of the statute of limitations and accept service of process.

In response, counsel for Defendants stated:

In regard[ ] to the statute requiring stipulation of the waiver of statute of limitations, I admit, your Honor, that was an oversight of not having done so beforehand. It was just kind of the path this took. But we certainly don’t — we certainly are willing to abide by the statute. So in the event the [c]ourt is inclined to dismiss this and — such that it be re-filed in Alabama, we’ll certainly file the necessary stipulation as soon as I leave here today.
Same thing goes for the service of process acceptance. I mean, there’s — we don’t dispute any Mississippi law on that topic, so anything that’s necessary in that regard will certainly be followed.

¶ 6. The following exchange then occurred:

BY THE COURT: All right. Well, the [c]ourt has considered the motions that are filed by the Defendant, the response filed by the Plaintiff as well as the memorandum of the law that’s been provided to the [c]ourt by the Defendant and the arguments of Counsel.
The [c]ourt is considering all the factors and the involvement of the witnesses possibly in the future. All of these factors taken together, the [c]ourt finds that the motion is going to be granted. I am going to accept Defendants’ statement that he does agree as he-the [c]ourt-since he’s agreeing to that, the [c]ourt will put in the order that the Defendant agrees to stipulate to the waiver of the statute of limitation period as well as the acceptance to service of process.
BY MR. BERRY: Your Honor, will the [c]ourt be drafting that order, or would you like us to draft it?
BY THE COURT: I’d like you to draft it since it’s your motion.
And if you’d submit that to Mr. Mag-gio for his approval as to form and submit it to the Court, and I’ll sign it and mail y’all a copy of it.

(Emphasis added.)

¶ 7. The statute referred to by the attorneys is Mississippi Code Section 11-11-3(4)(b). It states:

A court may not dismiss a claim under this subsection until the defendant files with the court or with the clerk of the court a written stipulation that, with respect to a new action on the claim commenced by the plaintiff, all the defendants waive the right to assert a statute of limitations defense in all other states of the United States in which the claim was not barred by limitations at the time the claim was filed in this state as necessary to effect a tolling of the limitations periods in those states beginning on the date the claim was filed in this state and ending on the date the claim is dismissed.

Miss.Code Ann. § 11 — 11—8(4)(b) (Rev. 2004).

¶ 8. When the Alstons filed suit in Wayne County on November 27, 2007, fifteen days remained before their claim would be barred by Alabama’s two-year statute of limitations. For purposes of Section 11 — 11—3(4)(b), Alabama’s two-year statute of limitations stopped running and began tolling when the Alstons filed their complaint in Mississippi.

¶ 9. On October 17, 2008, after the dismissal hearing, counsel for Defendants sent the Alstons’ lawyer a copy of the draft order dismissing their complaint. Six days later, Defendants’ counsel sent a letter to the circuit court judge. In that letter, Defendants’ counsel said he had sent the draft order to the Alstons’ lawyer, per the circuit judge’s instruction, and the Alstons’ lawyer had not responded or objected to any of the language included in the draft order.

¶ 10. On October 28, 2008, the circuit court entered the order dismissing the Al-stons’ complaint. The order included the following language:

Having read the motions and briefs and having heard the arguments of the parties, the Court finds that all factors as annunciated [sic] in [Missouri Pacific R. Co. v. Tircuit, 554 So.2d 878, 882 (Miss.1989)] and Miss.Code Ann. § 11-11-3 weigh in favor of dismissal of [the Al-stons’] complaint based on the doctrine of forum non conveniens and, therefore, the case is dismissed and shall be refiled by the [Alstons] in the more convenient jurisdiction of the Circuit Court of Tuscaloosa County, Alabama. Further, the Court finds that since [the Alstons’] complaint was filed in this Court on November 27, 2007, before the expiration of the applicable Alabama two[-]year statute of limitations, [Defendants] waive the right to assert a statute[-]of [-limitations defense upon the refiling of the action in the Circuit Court [of] Tuscaloosa County, Alabama, pursuant to and as defined by [Mississippi Code Section] 11 — 11—3(4)(b).

¶ 11. The Alstons did not file their complaint in Alabama until October 15, 2009, approximately one year after the circuit court dismissed their Mississippi suit. Defendants successfully moved for summary judgment in Alabama on the basis that Alabama’s statute of limitations had expired sixteen days after the Mississippi circuit court had dismissed the Alstons’ lawsuit on forum non conveniens grounds.

¶ 12. On May 12, 2010, the Alstons filed a Rule 60(b) motion in Wayne County, seeking relief from the circuit court’s order dismissing their original complaint filed in Mississippi. The Alstons asserted they were entitled to relief from the order because Defendants never filed the required written stipulation pursuant to Section 11-11 — 3(4)(b). After a hearing, the circuit court found the Alstons’ Rule 60(b) motion was both untimely and without merit.

¶ 13. The Alstons appealed. The case was assigned to the Court of Appeals, which reversed the circuit court’s judgment and remanded the matter to the circuit court for an adjudication on the merits. Alston v. Pope, 112 So.3d 439, 2012 WL 266856 (Miss.Ct.App.2012). The Court of Appeals held that the circuit court’s order dismissing the Alstons’ original complaint was void. Id. The Court of Appeals found that the circuit court was without authority to dismiss the case under the doctrine of forum non conveniens without Defendants’ stipulation of waiver. Id. The Court of Appeals reasoned that Section ll-ll-3(4)(b) does not permit oral stipulations, and the filing of a written stipulation is a mandatory condition precedent to dismissal. Id.

DISCUSSION

¶ 14. We find the waiver requirement provided by Section ll-ll-3(4)(b) was sufficiently complied with in this instance. Accordingly, the Court of Appeals erred in reversing the circuit court’s decision to deny the Alstons’ Rule 60(b) motion.

15. Section 11-11-3, Mississippi’s general venue statute, was amended in 2004, effectively codifying the common-law doctrine of forum non conveniens, which this Court first recognized in 1943 in Strickland v. Humble Oil & Refining Co., 194 Miss. 194, 11 So.2d 820 (1943); and later that year, in Barnett v. National Surety Corp., 195 Miss. 528, 15 So.2d 775 (1943). The common-law doctrine simply allows a court to dismiss a case-even where jurisdiction is authorized-upon determination that the plaintiffs chosen forum is a “seriously inconvenient forum” and a more suitable forum is available elsewhere. Missouri Pac. R. Co. v. Tircuit, 554 So.2d 878, 881-82 (Miss.1989) (quoting Restatement (Second) of Conflicts of Laws, § 84 (1971)).

¶ 16. The waiver requirement set forth by Section 11 — 11—3(4)(b) is consistent with the principles enunciated by this Court in Shewbrooks v. A.C. & S., Inc., 529 So.2d 557 (Miss.1988), superceded by statute as stated in Albert v. Allied Glove Corp., 944 So.2d 1 (Miss.2006). The Court of Appeals relied on language contained in the Shew-brooks decision in reaching its holding for this case. But, as will be explained, Shew-brooks must be put into its proper context.

¶ 17. In Shewbrooks, two nonresident Delaware plaintiffs brought tort claims in the Hinds County Circuit Court against eighteen nonresident defendants licensed to do business in this state. Shewbrooks, 529 So.2d at 559. The circuit court dismissed the suit on the grounds of lack of personal jurisdiction over the defendants and forum non conveniens. Id. This Court reversed the circuit court, finding that the circuit court did have jurisdiction and the plaintiffs had no alternative forum available in which to sue because their actions were barred by the statute of limitations in all other states. Id. at 559-68. At the time, Mississippi had a six-year statute of limitations for tort actions under Mississippi Code Section 15-1-49 (1972). That Section was amended in 1989 to provide a three-year limitation period.

¶ 18. As noted by the Court of Appeals, the Shewbrooks Court, discussing the doctrine of forum non conveniens, held:

[Tjhere is one classic instance when the doctrine of forum non conveniens will never be applied, and that is to dismiss a ease if it is barred elsewhere by a statute of limitations, unless or until the defendant is willing to stipulate that he will waive the statute of limitation defense.

Id. at 562. Shewbrooks further provided, “To insure an alternative forum is available, the overwhelming authority in this country requires a defendant to waive the statute of limitations before the court will grant a forum non conveniens transfer.” Id. (citations omitted).

¶ 19. We point out, though, that when Shewbrooks was decided, the former version of Mississippi’s borrowing statute, Mississippi Code Section 15-1-65 (1972), controlled. It provided:

[Wjhen a cause of action has accrued in some other state or in a foreign country, and by the law of such state or country, or of some other state and country where the defendant has resided before he resided in this state, an action thereon cannot be maintained by reason of lapse of time, then no action thereon shall be maintained in this state.

Speaking to that version, the Shewbrooks Court held:

We have consistently held that this statute applies only to a nonresident who moves to this State after the statute has run on the cause in the other state. It does not apply to the factual situation presented here, and in cases such as this our Mississippi statute of limitations applies.

Shewbrooks, 529 So.2d at 561.

¶20. Notably, the Mississippi Legislature amended Section 15-1-65 in 1989 following the Shewbrooks decision. The section now provides:

When a cause of action has accrued outside of this state, and by the laws of the place where such cause of action accrued, an action thereon cannot be maintained by reason of lapse of time, then no action thereon shall be maintained in this state; provided, however, that where such a cause of action has accrued in favor of a resident of this state, this state’s law on the period of limitation shall apply.

Miss.Code Ann. § 15-1-65 (Rev.2012).

¶ 21. Under present law, the Shew-brookses’ tort claims would have been barred. See, e.g., Patton v. Mack Trucks, Inc., 556 So.2d 679, 680 n. 1 (Miss.1989) (where Justice Robertson stated in dicta that Section 15-1-65, as amended, “effectively ends this state’s days as a home for unpled foreign torts”). Thus, this Court’s forum non conveniens discussion in Shew-brooks must be considered accordingly.

¶ 22. That said, Section 15-1-65 is not at issue in the instant case. As the facts demonstrate, at the time the Alstons originally filed suit in Mississippi, fifteen days remained before Alabama’s two-year limitation period expired on the Alstons’ tort claims. Thus, unlike in Shewbrooks (when it was decided), the Alstons had an alternative forum in which to bring suit.

¶23. For purposes of Section 11 — 11— 3(4)(b), once the circuit court dismissed their suit in Mississippi, the Alstons had fifteen days to file suit Alabama. But, as mentioned, they did not file suit in Alabama until approximately one year after the circuit court had dismissed their suit in Mississippi.

¶ 24. On the question of Section 11 — 11—3(4)(b)’s waiver requirement, we agree with Judge Roberts’s dissent, in that we can see “no substantial distinction between a defendant filing a separate stipulation before a circuit court dismisses a claim based on the ground of forum non conveniens and a defense counsel’s inclusion of the stipulation language in the actual order dismissing a claim on the ground of forum non conveniens.” Alston, 112 So.3d 439 at 450 (Roberts, J., dissenting). Section ll-ll-3(4)(b) simply requires proof that the defendants have waived “any defense that the statute of limitations expired during the time that a claim was pending in the inconvenient forum or the period that remained on the statute of limitations after the tolling effect of the statute ends.” Alston, 112 So.3d 439 at 449 n. 6 (Roberts, J., dissenting). Such proof was established here with the circuit court’s filed written order, drafted by Defendants’ counsel and delivered to the Al-stons’ counsel via fax and mail for preview, with no response or objection interposed from the Alstons’ counsel.

CONCLUSION

¶25. Accordingly, we find the circuit court did not abuse its discretion by denying the Alstons’ Rule 60(b) motion. We reverse the Court of Appeals’ decision and reinstate and affirm the circuit court’s judgment denying the Alstons’ Rule 60(b) motion.

¶ 26. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE JUDGMENT OF THE WAYNE COUNTY CIRCUIT COURT IS REINSTATED AND AFFIRMED.

WALLER, C.J., RANDOLPH, P.J., LAMAR, KITCHENS, CHANDLER, KING AND COLEMAN, JJ., CONCUR. DICKINSON, P.J., NOT PARTICIPATING.

      . Pursuant to Mississippi Code Section 11-ll-3(l)(a)(i),
      [c]ivil actions of which the circuit court has original jurisdiction shall be commenced in the county where the defendant resides, or, if a corporation, in the county of its principal place of business, or in the county where a substantial alleged act or omission occurred or where a substantial event that caused the injury occurred.
      Miss.Code Ann. § 11-1 l-3(l)(a)(i) (Rev.2004).

      . Mississippi Code Section § 11 — 11—3(4)(a) provides:
      [i]f a court of this state, on written motion of a party, finds that in the interest of justice and for the convenience of the parties and witnesses a claim or action would be more properly heard in a forum outside this state or in a different county of proper venue within this state, the court shall decline to adjudicate the matter under the doctrine of forum non conveniens. As to a claim or action that would be more properly heard in a forum outside this state, the court shall dismiss the claim or action. In determining whether to grant a motion to dismiss an action or to transfer venue under the doctrine of forum non conveniens, the court shall give consideration to the following factors:
      (i) Relative ease of access to sources of proof;
      (ii) Availability and cost of compulsory process for attendance of unwilling witnesses;
      (iii) Possibility of viewing of the premises, if viewing would be appropriate to the action;
      (iv) Unnecessary expense or trouble to the defendant not necessary to the plaintiff's own right to pursue his remedy;
      (v) Administrative difficulties for the forum courts;
      (vi) Existence of local interests in deciding the case at home; and
      (vii) The traditional deference given to a plaintiff's choice of forum.
      Miss.Code Ann. § 11-1 l-3(4)(a) (Rev.2004).

      . Alabama has a two-year statute of limitations for negligence actions, while Mississippi has a three-year statute of limitations for negligence actions. See Ala.Code § 6-2-38 (2011); Miss.Code Ann. § 15-1-49 (Rev. 2003).

      . In Strickland, we held that, as an equitable matter, a chancery court could decline to settle a title dispute to land located in another state. See Strickland v. Humble Oil & Refining Co., 194 Miss. 194, 11 So.2d 820 (1943) (“We are unable to see how a Mississippi Court could settle the question of title to lands in Texas so that such decree would be res adjudicata of the question in that State.”). Further, in Barnett, we held a circuit court could refuse to exercise jurisdiction over an action against an Alabama sheriff on his surety bond because the action implicated the internal police regulations of another state. See Barnett 15 So.2d at 776 ("The Alabama statutory regulations referred to are governmental and are so intimately connected with the rights of the parties that it cannot be said that this action was transitory.”).