author: SEXTON, J. (Ad Hoc).

text:
    STATE of Louisiana, Appellee v. John W. DESADIER, Appellant.
    No. 47,991-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 10, 2013.
    Paula C. Marx, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, Charles Jacobs, Assistant District Attorney, for Appellee.
    Before MOORE, PITMAN and SEXTON (Ad Hoc), JJ.
   SEXTON, J. (Ad Hoc).

LThe defendant, J.W. Desadier, pled guilty to one count of attempted simple rape pursuant to a plea agreement that included a recommended sentence of seven years at hard labor, six years suspended, four years of supervised probation, with credit for time served. The trial court accepted the plea and sentenced the defendant in accordance with the plea agreement. This appeal followed. Seeking to withdraw, the defendant’s appellate counsel filed an Anders/Benjamin brief in this court, stating that she could find no non-frivolous issues to raise on appeal. For the following reasons, we grant the motion to withdraw and affirm the defendant’s conviction and sentence.

FACTS

The 73-year-old defendant was charged by bill of information with one count of forcible rape, contrary to La. R.S. 14:42.1(A)(1). Pursuant to a plea agreement, the defendant entered a plea of guilty to one count of attempted simple rape, violations of La. R.S. 14:43 and La. R.S. 14:27. The state originally offered to allow the defendant to plead guilty to simple rape with a recommended sentence of seven years at hard labor, with six years suspended, four years of supervised probation, and credit for time served. At the time of the guilty plea on June 25, 2012, the defendant had served 10 months in jail.

The defendant was fully informed of the sex offender registration requirements as provided in La. R.S. 15:543. His attorney went, over the forms with him, and the defendant signed the forms. The state then agreed to allow |2the defendant to plead guilty to attempted simple rape with the same recommended sentence.

The factual basis for the charge of attempted simple rape was stated on the record at the guilty plea hearing. On August 15, 2011, the defendant attempted to have vaginal intercourse with the victim, without the lawful consent of the victim and the victim was prevented from resisting the act by force or threats of physical violence. The defendant admitted the facts and stated that he was pleading guilty because he was guilty.

After advising the defendant of the rights waived by pleading guilty and the penalty range for attempted simple rape, the trial court accepted the plea as freely and voluntarily made and imposed the recommended sentence. The defendant sent a letter to the trial court saying that he wanted to appeal his case. He claimed that he-' pled guilty with the agreement that he would receive five years, with four years suspended, and credit for time served. He argued that he did not agree to the sex offender registration requirements. The trial court granted the motion for appeal and appointed the Louisiana Appellate Project to represent the defendant on appeal.

ANDERS BRIEF

The defendant’s appellate counsel filed a motion to withdraw, together with an Anders brief which alleges that she 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), 653 So.2d 1176; State v. Benjamin, supra. The brief outlined the procedural history of the case and the recitation of facts presented at the guilty plea | shearing. The brief also contained a “detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place.” State v. Jyles, supra. Defense counsel further verified that she mailed copies of the motion to withdraw and the brief to the defendant, in accordance with the Anders, Jyles, Mouton, and Benjamin cases.

The state filed a letter concurring that there are no nonfrivolous issues to raise on appeal. On December 20, 2012, this court rescinded the previously fixed pro se briefing deadline and notified the defendant that he could file a brief in this appeal within 30 days of the order and request to view the appellate record within 10 days of the date of the order.

On December 27, 2012, the defendant filed a letter with this court, not raising any assignments of error, but arguing that he was not guilty of the charges against him. He said he entered the guilty plea in order to get out of jail.

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. The defendant was fully informed of the charge against him and the rights waived by a plea of guilty. The defendant was advised on the record that he would have to comply with the sex offender registration requirements. The defendant was given time to confer with his attorney about those requirements. The defendant signed the required |4documents. The defendant knowingly and voluntarily pled guilty, stating that he was guilty of the charges.

The conviction is fully supported by the facts stated on the record and admitted in court by the defendant. See La. C. Cr. P. art. 894.1. The defendant was sentenced to the recommended sentence. Where a specific sentence or sentencing cap has been agreed upon as a consequence of a plea bargain, as in the case sub judice, a sentence imposed within the agreed range cannot be appealed as excessive. See La. C. Cr. P. art. 881.2; State v. Smith, 39,719 (La.App.2d Cir.5/11/05), 903 So.2d 598; State v. McQuarters, 44,074 (La.App.2d Cir.4/8/09), 8 So.3d 822. Furthermore, the record supports the sentence imposed.

CONCLUSION

For the reasons stated above, we find that there are no nonfrivolous issues to raise on appeal. We also find no errors patent. Consequently, the motion to withdraw filed by the defendant’s appellate counsel is granted, and the defendant’s conviction and sentence are affirmed.

MOTION TO WITHDRAW GRANTED; CONVICTION AND SENTENCE AFFIRMED.

      . The record in this case lists the defendant’s name as John W. Desadier. At his guilty plea colloquy, he told the court that his name was J.W. Desadier, not John Desadier.

        . 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).


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Caddara D. HOGAN, Appellant.
    No. 47,993-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 10, 2013.

      Teresa Culpepper Carroll, Jonesboro, LA, for Appellant.
    Richard Z. Johnson, District Attorney, Ron Christopher Stamps, Assistant District Attorney, for Appellee.
    Before STEWART, DREW and MOORE, JJ.
   MOORE, J.

| TAfter he was charged with second degree murder committed during an armed robbery, the defendant, Caddara D. Hogan, pled guilty to manslaughter pursuant to a plea agreement. The agreement provided no sentencing cap. He was subsequently sentenced to 35 years at hard labor. He now appeals his sentence. For the following reasons, we affirm.

FACTS

On February 3, 2010, the defendant, age 19, along with Paris T. Smith, age 17, and Farrell M. Rochelle, age 18, attempted to rob Ronald Wilson in Mansfield, La. Mr. Wilson was shot and killed during the robbery attempt by one of the perpetrators.

On March 25, 2010, the defendant was charged by an amended bill of indictment for the second degree murder of Ronald Wilson during the attempted perpetration of an armed robbery. Paris T. Smith and Farrell M. Rochelle were also charged with second degree murder in the same indictment.

On November 14, 2011, Hogan pled guilty to the reduced charge of manslaughter. As part of the plea agreement, Hogan agreed to truthfully testify at the trial of the codefendants and the court ordered a pre-sentence investigation (“PSI”) report.

On June 26, 2012, the sentencing hearing was conducted. At the hearing, the defense requested the court to consider the following: The state offered the other two codefendants, but not to Hogan, guilty plea agreements of manslaughter with a 15-year sentence; Hogan’s cooperation |ain testifying truthfully at the trial of the codefendants and in providing information about an unrelated robbery to law enforcement, although it did not lead to an arrest; the conflicting information as to whether Hogan or Rochelle was the shooter, although Hogan maintains that he was not the shooter; and, that under Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), one of the codefen-dants, a juvenile, could be eligible for parole at an earlier date than Hogan even though he was convicted of second degree murder.

The state argued that Miller v. Alabama, supra, does not apply in this case because Hogan, age 19, was an adult at the time of the offense and had the capacity to make an appropriate decision. Also, the state noted that Hogan was not given the same offer as the codefendants because of his criminal history, which involved violent offenses, and because there were facts indicating that Hogan was the instigator and shooter in this case.

Prior to imposing sentence, the trial court reviewed the facts of this case and the conflicting testimony as to who actually shot the victim. All parties agreed that if Hogan would have gone to trial, he would have been convicted of second degree murder. The trial court also reviewed the PSI, including Hogan’s criminal, personal and social history. The court noted that Hogan is a second-felony offender. In 2006, Hogan was arrested for second degree kidnaping and armed robbery, but later pled guilty to simple burglary of an inhabited dwelling and received a four-year sentence. He was also arrested in 2009 for second degree battery; however, there was no disposition found for this charge. Further, the court reviewed the ^sentencing guidelines set forth in La. C. Cr. P. art. 894.1, stating:

The Court: ... the Court is going to review the sentencing guidelines on the record here. Mr. Hogan is in need of correctional treatment. And his conduct did manifest a violence towards Mr. Wilson. He was attempting to gain money from him. That would be subpart 3— (B)3 of the commission of that offense. Mr. Hogan did use actual violence and at the very least, depending on whose version of this event you use, that caused others to use force or violence upon Mr. Wilson to commit this offense. There was a death as a result of this offense. There was a dangerous weapon. He was on parole at the time of this offense. He is however still considered by this Court to be a youthful offender. I don’t believe that Mr. Hogan was provoked to act in this case. There’s no grounds tending to excuse or justify other than his youthfulness. No way Mr. Hogan can compensate the victim in this matter. No undue hardship on other dependents in this matter. I do take into consideration the mitigation that he has cooperated and he did try to minimize his exposure with making better decisions. And the Court does have the pre-sentence investigation report ...

After considering the above, the trial court sentenced Hogan to 35 years at hard labor.

On June 27, 2012, the defense filed a motion to reconsider sentence, arguing that Hogan’s sentence was excessive. It argued that the trial court failed to give sufficient weight to Hogan’s cooperation in the trial of the codefendants and in providing information to law enforcement, the plea offers made to the codefendants, and the possible effects of Miller v. Alabama, supra, which could result in Hogan’s juvenile codefendant, convicted of second degree murder, being eligible for parole before Hogan.

On July 13, 2012, the trial court denied Hogan’s motion to reconsider sentence. The court stated that prior to imposing Hogan’s sentence, it considered the sentencing guidelines and Hogan’s cooperation in the trial of the codefendants. The court stated that the decision in Miller v. Alabama, \ ¿supra, is strictly confined to juvenile offenders. The court noted that by pleading guilty to manslaughter, Hogan greatly reduced his potential sentencing exposure because he was initially charged with second degree murder, which carries a mandatory life sentence. Further, the court stated that this was a violent crime that resulted in the death of the victim and that any lesser sentence would deprecate the seriousness of the crime.

This appeal followed.

DISCUSSION

Defendant’s sole assignment of error on appeal is that the district court erred, as a matter of law, in denying the defendant’s motion for reconsideration of sentence and rendering an excessive sentence in this case.

The defense argues that Hogan’s sentence is excessive, punitive, and that the goals of punishment and rehabilitation can be accomplished with a less harsh sentence. The defense claims that Hogan was an uneducated youthful offender (21 years old), with no significant adult criminal history. The defense contends that Hogan’s actual involvement, in comparison to that of the codefendants, with regard to the actual shooting of the victim was never established. The defense cites various cases in which courts have upheld sentences of 30 years or less for manslaughter. The defense asserts that Hogan’s juvenile codefendant, convicted of second degree murder, will likely serve less time than Hogan because of the decision in Miller v. Alabama, supra, and that the codefendants were offered lesser sentences during failed plea negotiations. The defense contends that Hogan is not a | ¡-“worst offender” for which a near-maximum sentence is justified.

The state contends that the trial court adequately considered all mitigating and aggravating factors. The state argues that prior to sentencing Hogan, the court reviewed the criteria set forth in La. C. Cr. P. art. 894.1 and the pre-sentence investigation report. The state claims that the court noted Hogan’s criminal history, including a kidnaping and an armed robbery, both crimes of violence, and that Hogan was on parole at the time of the instant offense. The state contends that Hogan’s sentence is supported by his prior criminal history and his instigation and participation in the death and robbery of the victim. Hogan received a significant benefit from the plea agreement allowing him to plead to a lesser offense and that the sentence imposed is not the maximum for manslaughter. It is significantly less than the required life sentence for a second degree murder conviction.

An appellate court utilizes a two-pronged test in reviewing a sentence for excessiveness. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 438 So.2d 688 (La.1983); State v. Lathan, 41,-855 (La.App. 2 Cir. 2/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual | (¡basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Landos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La. App. 2 Cir. 8/13/08), 989 So.2d 267. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La. App. 2 Cir. 8/13/08), 989 So.2d 259, writ denied, 2008-2341 (La.5/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App. 2 Cir. 12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351.

Second, the court must determine whether the sentence is constitutionally excessive. A sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Robinson, 40,983 (La.App. 2 Cir. 1/24/07), 948 So.2d 379.

A trial court has broad discretion to sentence within the statutory limits. State v. Dunn, 30,767 (La.App. 2 Cir. 6/24/98), 715 So.2d 641; State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158. Absent a showing of manifest abuse of that discretion, the appellate court may not |7set aside a sentence as excessive. State v. Guzman, supra.

As a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. Cozzetto, 2007-2031 (La.2/15/08), 974 So.2d 665; State v. McKinney, 43,061 (La.App. 2 Cir. 2/13/08), 976 So.2d 802; State v. Woods, 41,420 (La.App. 2 Cir. 11/1/06), 942 So.2d 658, writ denied, 2006-2768 (La.6/22/07), 959 So.2d 494, and writ denied, 2006-2781 (La.6/22/07), 959 So.2d 494. However, in cases where the defendant has pled guilty to an offense which does not adequately describe his conduct, the general rule does not apply and the trial court has great discretion in imposing the maximum sentence possible for the pled offense. This is particularly true in eases where a significant reduction in potential exposure to confinement has been obtained through a plea bargain and the offense involves violence upon a victim. State v. Germany, 43,239 (La.App. 2 Cir. 4/30/08), 981 So.2d 792; State v. Black, 28,100 (La.App. 2 Cir. 2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430.

There is no requirement that codefendants be treated equally by the sentencing judge. State v. Rogers, 405 So.2d 829 (La.1981); State v. Taylor, 485 So.2d 117 (La.App. 2 Cir.1986). The disparity of sentences between codefendants is only a factor to be considered along with all other appropriate considerations in evaluating a contention that a sentence is excessive. State v. Savoy, 2011-1174 (La.7/2/12), 93 So.3d 1279; State v. Quim-by, 419 So.2d 951 (La.1982); State v. Jackson, 30,473 (La.App. 2 Cir. 5/13/98), 714 So.2d 87, writ denied, 98-1778 (La.11/6/98), 727 So.2d 444.

|sIn Miller v. Alabama, supra, the United States Supreme Court held that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders” convicted of homicide. The court did not, however, eliminate the possibility that a sentencing judge could sentence a murderer, who was a juvenile at the time of the offense, to life imprisonment, in certain instances. The court stated that “a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles.”

Manslaughter is punishable by imprisonment at hard labor for not more than 40 years. La. R.S. 14:31(B). See State v. Brown, 34,767 (La.App. 2 Cir. 5/9/01), 786 So.2d 910 (the court upheld the maximum 40-year sentence imposed on a 19-year-old second-felony offender who pled guilty to the reduced charge of manslaughter, when the evidence would have supported a conviction for first degree murder).

In State v. Emerson, 31,408 (La.App. 2 Cir. 12/9/98), 722 So.2d 373, writ denied, 99-1518 (La.10/15/99), 748 So.2d 470, we found no abuse of discretion in a 36-year sentence imposed for a manslaughter conviction. The defendant, who was charged and tried for second degree murder that resulted in a manslaughter conviction, complained on appeal that the sentence imposed was excessive and amounted to cruel and unusual punishment. Although the circumstances of the crime were not among the worst found in the jurisprudence, e.g., there was no evidence of deliberate cruelty to the victim, the defendant’s prior criminal history revealed that he was among the worst type of offenders for this “typical” offense. At age 23, he had several offenses committed before age 20, including three ^convictions for distribution of cocaine and one conviction for simple robbery reduced from an initial armed robbery charge. He had several arrests for aggravated assault with a firearm and one arrest for aggravated battery, also involving a firearm.

Similarly, in this instance, the defendant has a previous criminal history involving the use of firearms. In 2006, he was charged with two counts of kidnapping and two counts of armed robbery, but was allowed to plead guilty to simple burglary. He was also arrested in 2009 with second degree battery. While on parole for the simple burglary offense, he committed the instant offense resulting in charges of first degree murder, armed robbery, and possession of a firearm by a convicted felon. These circumstances of the previous crimes and the instant crime indicate that the defendant is among the worst type of criminal offenders. State v. Emerson, supra.

Prior to imposing Hogan’s sentence, the trial court adequately considered the circumstances of the offense, the information in the PSI report, and the sentencing guidelines set forth in La. C. Cr. P. art. 894.1. In stating reasons for the sentence, the trial court noted Hogan’s relatively young age and his cooperation in the trial of the codefendants. On the other hand, the trial court noted that this was a violent crime whereby Hogan was attempting to gain money from the victim and which resulted in the death of the victim. The trial court reviewed Hogan’s criminal history and noted that Hogan is a second-felony .offender and was on parole at the time of the instant offense. Moreover, Hogan substantially benefitted from the plea agreement and reduced sentence exposure. If convicted of second degree 1 ipmurder, Hogan would have faced a mandatory sentence of life in prison. La. R.S. 14:30.1.

Hogan’s primary complaint relates to the weight that the trial court placed on the mitigating factors. However, the trial court was not required to place any particular weight on the mitigating facts; it only had to consider them. See State v. Shumaker, supra. In this case, the record indicates that the trial court adequately considered the appropriate mitigating and aggravating factors in determining Hogan’s sentence. Further, the decision in Miller v. Alabama, supra, is only applicable to juvenile offenders. For purposes of the Eighth Amendment, a “juvenile offender” is a person under the age of 18 years at the time of the offense. State v. Walder, 2012-0051 (LaApp. 1 Cir. 9/24/12), 104 So.3d 187.

After review, we conclude that the trial court did not abuse its discretion in imposing a 35-year sentence in this ease. Considering the foregoing, the sentence imposed by the trial court does not shock the sense of justice, nor is it disproportionate to the severity of the offense. Therefore, this assignment of error is without merit.

Having determined that the defendant’s sentence is not constitutionally excessive, we find no error in the trial court’s decision to deny the motion to reconsider sentence.

Conclusion

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

CONVICTION AND SENTENCE AFFIRMED.

      . The plea offers were rejected.


author: BROWN, Chief Judge.

text:
    STATE of Louisiana in the Interest of C.V.W. and J.W.
    No. 48,166-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    April 10, 2013.

      Keesha M. Bordelon, Rayville, LA, for Appellant, State of Louisiana, Department of Children and Family Services.
    Edwin Moberley, Assistant District Attorney, for Appellant, State of Louisiana.
    LaKeisha Gray, for Appellees, C.V.W. and J.W.
    Jami L. Crews, for Appellee, Mother.
    Angela L. Claxton, for Appellee, Father.
    Before BROWN, LOLLEY, and SEXTON (ad hoc), JJ.
   BROWN, Chief Judge.

LA termination of parental rights hearing was held on October 23, 2012. Finding that the State of Louisiana, Department of Children and Family Services (“DCFS”) failed to establish by clear and convincing evidence the necessary grounds for termination of the mother’s parental rights, the trial court continued the minor children, C.W. and J.W., in the State’s custody. It is from this portion of the trial court’s judgment that DCFS has appealed. For the reasons set forth below, we reverse and render.

Facts and Procedural Background

On June 4, 2011, an Instanter Order was issued removing C.W. (d.o.b. 06/16/09) and J.W. (d.o.b. 10/13/10) from the custody of their mother, Ch.W., and placing them into DCFS custody. Affidavits filed in support of the Instanter Order alleged that the emergency circumstances which existed requiring removal of the two children were that: the mother, during an argument with her boyfriend and while in an alcoholic “blackout,” stabbed him in the neck with a fork;' the children were in the home at the time of the incident; the mother has a history of seizures; she was arrested and incarcerated on charges of the attempted second degree murder of her boyfriend; there were no family members at the time who could take the children; and DCFS had been involved with the mother on multiple occasions in the past (at that time, the mother was not caring for her 11 older children due to DCFS intervention/involvement). Since 1993, DCFS | ahas had five Family Services cases with the mother and some of her other children have been in foster care. In one of the Case Plan Review Notes, the case worker observed that the mother’s parental rights have been terminated to “at least” four of her 13 children.

A Continued Custody Hearing Order was signed on June 8, 2011, and thereafter, on July 1, 2011, DCFS filed a Child in Need of Care Petition pursuant to La. Ch.C. art. 606. The mother stipulated that the children were in need of care, they were adjudicated as such, and they were continued in State custody by judgment dated August 9, 2011. The initial goal was reunification with the parents. Numerous plans for reunification were drawn up and court-approved. In fact, while the mother was incarcerated, the children were placed with their biological father.

On June 19, 2012, a Permanency Hearing was held. Based upon the trial court’s findings that the children were thriving in their present placements, and that the parents had not attended the required parenting classes or met the goals of the reunification plan, the court approved a change in the goal from reunification to adoption. On September 12, 2012, DCFS filed a Petition for Termination of Parental Rights alleging that both parents had failed to substantially comply with the court-approved case plan for a year and three months and that there was no reasonable expectation of | ..¡significant improvement in them conduct in the near future. A hearing was held on October 23, 2012. The court terminated the parental rights of the father as to C.W. and J.W., but declined to terminate the mother’s parental rights, finding that DCFS had failed to prove its case as to the mother.

DCFS has appealed from the trial court’s judgment, urging that the court erred in finding that DCFS failed to establish that termination was warranted pursuant to La. Ch.C. art. 1015(5) by clear and convincing evidence. DCFS further asserts that termination of the mother’s parental rights is in the children’s best interest.

Discussion

Louisiana Children’s Code article 1015 provides the statutory grounds by which a court may involuntarily terminate the rights and privileges of parents. State ex rel. 10-1111 (La.10/19/10), 49 So.3d 345; State ex rel. KG., 02-2886 (La.03/18/03), 841 So.2d 759. In order to terminate parental rights, the court must find that the State has established at least one of the statutory grounds set forth in article 1015 by clear and convincing evidence. State ex rel. H.A.B., supra. Even upon finding that the State has met its evidentiary burden, a court should not terminate parental rights unless it determines that termination is in the child’s best interest. La. Ch.C. art. 1037(B); State ex rel. H.A.B., supra; State ex rel. C.J.K., 00-2375 (La.11/28/00), 774 So.2d 107. Whether termination of parental rights is warranted is a question of fact, and a trial court’s determinations will not be set aside in the absence of manifest error. State \4ex rel. H.A.B., supra; State ex rel. KG., supra; State ex rel. J.T. v. J.M., 46,090 (La.App.2d Cir.12/12/10), 56 So.3d 1009.

DCFS sought termination of the mother’s parental rights under La. Ch.C. art. 1015(5), which provides as a ground for termination:

Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child’s age and his need for a safe, stable and permanent home.

La. Ch.C. art. 1036(C) provides that under article 1015(5), lack of parental compliance with a case plan may be evidenced by one or more of the following:

(1) The parent’s failure to attend court-approved scheduled visitations with the child.
(2) The parent’s failure to communicate with the child.
(3) The parent’s failure to keep the department apprised of the parent’s whereabouts and significant changes affecting the parent’s ability to comply with the case plan for services.
(4) The parent’s failure to contribute to the costs of the child’s foster care, if ordered to. do so by the court when approving the case plan.
(5) The parent’s repeated failure to comply with the required program of treatment and rehabilitation services provided in the case plan.
(6) The parent’s lack of substantial improvement in redressing the problems preventing reunification.
(7) The persistence of conditions that led to removal or similar potentially harmful conditions. (Emphasis added).

La. Ch.C. art. 1036(D) provides that under article 1015(5), lack of any reasonable expectation of significant improvement in the parent’s conduct in the near future may be evidenced by one or more of the following:

Is(1) Any physical or mental illness, mental deficiency, substance abuse, or chemical dependency that renders the parent unable or incapable of exercising parental responsibilities without exposing the child to a substantial risk of serious harm, based upon expert opinion or based upon an established pattern of behavior.
(2) A pattern of repeated incarceration of the parent that has rendered the parent unable to care for the immediate and continuing physical or emotional needs of the child for extended periods of time.
(3) Any other condition or conduct that reasonable indicates that the parent is unable or unwilling to provide an adequate permanent home for the child, based upon expert opinion or based upon an established pattern of behavior. (Emphasis added).

It is undisputed that the children have been in the custody of the State for more than one year, having been removed from them mother’s custody by an Instanter Order dated June 4, 2011. At the time of the termination hearing, October 23, 2012, the children had been in DCFS custody for approximately 16 months, which exceeds the one-year period set forth in La. Ch.C. art. 1015(5). During this time, the mother was given the opportunity to work on achieving the goals of her case plan and improving the conditions or conduct that led to removal of the children from her custody. Assessment of whether there is a reasonable expectation of significant improvement in the parent’s condition in the near future should be made in light of the purposes stated in La. Ch.C. art. 1001, particularly that the proceedings shall be conducted expeditiously to avoid delays in resolving the status of the parent and in achieving permanency for the children. State ex rel. L.R.S., 38,812 (La.App.2d Cir.06/23/04), 877 So.2d 1040.

Contrary to the findings of the trial court, the evidence shows that there was no substantial compliance with her case plan by the mother. The | f,evidence further shows a lack of any reasonable expectation of significant improvement in the mother’s conduct in the near future.

The trial court discounted the family’s lengthy prior history with DCFS because it was not specifically pled in the Petition for Termination of Parental Rights. ■ However, the OCS Investigative Reports and Case Plans, filed in support of the various pleadings in this case, all contain documentation of the family’s prior history with DCFS. Likewise, the record contains testimony, which was not objected to by either the mother’s or the children’s counsel, discussing this history. The trial court also refused to consider the mother’s diminished mental capacity as it affects her ability to care for the children, finding again that since this was not specifically pled in the termination petition, it could not be considered.

Mental illness or disability alone is insufficient grounds to warrant termination of parental rights. State ex rel. L.R.S., supra. The parent’s mental state, however, as it relates to the ability to care for the child is an important factor to be considered in a termination proceeding. State ex rel. J.A., 99-2905 (La.01/12/00), 752 So.2d 806; State ex rel. L.R.S., supra.

This family’s involvement with DCFS dating back to 1993, and the mother’s mental capacity as it affects her ability to properly care for her children, are not in and of themselves grounds for termination under La. Ch.C. art. 1015 and therefore were not required to be specifically pled. Instead, under La. Ch.C. art. 1036(C) and (D), evidence of the family’s 17prior case history and the mother’s mental capacity may be used to establish lack of parental compliance with a case plan (i.e., to show repeated failure to comply with a required program of treatment/rehabilitation services (1036(C)(5)), lack of substantial improvement in redressing the problems preventing reunification (1036(C)(6)) and/or the persistence of conditions that led to removal or similar potentially harmful conditions (1036(C)(7)) and to establish lack of any reasonable expectation of significant improvement in the parent’s conduct in the near future (i.e., to show, inter alia, any mental deficiency that renders the parent unable or incapable of exercising parental responsibilities without exposing the child to a substantial risk of serious harm, based upon expert opinion or based upon an established pattern of behavior (1036(D)(1)) and/or to show any other condition or conduct that reasonably indicates that the parent is unable or unwilling to provide an adequate permanent home for the child, based upon expert opinion or an established pattern of behavior (1036(D)(3)). See State ex rel. J.A., supra; State ex rel. L.R.S., supra.

While the mother did take actions toward completing her case plan, such as attending the required parenting classes (although there is still an outstanding recommendation for individual parenting classes based upon serious concerns about her inability to care for her children without 24/7 supervision or assistance), and making an effort during the last five-six months of the case plan to attend every scheduled visitation with the children, we do not find these to constitute substantial compliance, in light of what was not accomplished.

| «Regina Craig, the DCFS case worker assigned to this family’s case, testified that the mother has limitations that have hindered her from being able to care and provide for her children. This is evidenced by the fact that 11 of her 13 children have been taken from or voluntarily surrendered by the mother, who, according to Ms. Craig, is okay with their placements because she was unable to care for them. Another major concern is the mother’s inability or unwillingness to address her housing situation. See State in the Interest of M.A.N., 12-946 (La.App.3d Cir.12/28/12), 106 So.3d 288; State ex rel. J.P.A., 05-1160 (La.App.3d Cir.04/19/06), 928 So.2d 736. At the time the children were removed from her care, the mother was living with her boyfriend. The two were involved in incidents of domestic violence. In fact, the children were removed from the home because of the mother’s arrest and incarceration for one such incident. Thereafter, when she was released from jail, she moved in with her mother. DCFS has objected to this home as unsuitable for the children from the outset. While home repairs have been made to address several DCFS concerns, the more serious issues with the grandmother’s home cannot be remedied: there have been incidents of domestic violence between the grandmother and mother; the grandmother is mentally ill and has a drug-abusing boyfriend; and the home, having only two bedrooms, is not large enough for the children. Notwithstanding assistance from Ms. Craig, the mother has been unwilling and/or unable as of the termination hearing to secure another housing arrangement. Another related concern is that without support or assistance on a day to day basis, the mother will not be able to properly care for the [ ^children. The record also shows that the mother has not complied with her case plan requirement that she attend and successfully complete domestic violence counseling. The trial court erred in finding that DCFS did not establish by clear and convincing evidence the ground for termination provided by La. Ch.C. art. 1015(5). The record establishes the mother’s lack of substantial compliance with her case plan and the lack of a reasonable expectation of significant improvement in her condition in the near future.

We now must determine whether termination is in the best interest of the children. In State ex rel. K.G., 841 So.2d at 762, the Louisiana Supreme Court explained that:

The State’s parens patriae power allows intervention in the parent-child relationship only under serious circumstances, such as where the State seeks the permanent severance of that relationship in an involuntary termination proceeding. The fundamental purpose of involuntary termination proceedings is to provide the greatest possible protection to a child whose parents are unwilling or unable to provide adequate care for his physical, emotional, and mental health needs and adequate rearing by providing an expeditious judicial process for the termination of all parental rights and responsibilities and to achieve permanency and stability for the child. The focus of an involuntary termination proceeding is not whether the parent should be deprived of custody, but whether it would be in the best interest of the child for all legal relations with the parents to be terminated. As such, the primary concern of the courts and the State remains to secure the best interest for the child, including termination of parental rights if justifiable grounds exist and are proven.

We cannot say that it is in the best interest of the children to keep them in foster care limbo in the hopes that at some point in the future, they can safely be returned to their mother’s care. As noted above, the testimony is uneontradicted that the mother does not possess the ability to maintain an appropriate, supportive environment for her children. See State ex rel. \mJ.P.A., supra. Furthermore, Regina Craig, DCFS case worker, testified that the children had become very bonded with their foster families and had adjusted well to foster care. She noted that the children had been separated because of aggressive behavior by the eldest child toward the youngest, but that both were thriving in their current placements. The developmental delays that both children had when they entered into DCFS custody have improved since their foster care placement. Furthermore, both families expressed interest in adopting the children. The record indicates that the best interest of the children will be served by termination of the mother’s parental rights and certification of these children for adoption.

Conclusion

For the reasons set forth above, we reverse that portion of the trial court’s judgment relative to the parental rights of Ch.W. and render judgment terminating her parental rights as to C.W. and J.W. and certifying them for adoption.

      . The trial court terminated the parental rights of the father; this portion of the judgment was not appealed.

      . At that time, the mother had been participating in the Family Services Intervention program .with DCFS since January 2011 in an attempt to keep the children in their home.

      . In its brief, DCFS alleges that the mother was allowed to plead guilty to aggravated second degree battery, was placed on felony probation, and was released from jail on October 14, 2011.

      . This placement lasted only a few months. The father left the children with a relative and moved, thereafter becoming uncooperative and refusing to work his case plan or communicate with DCFS. He did not keep in touch with his attorney, who could not locate him for the termination hearing.

      . This was probably due in part to the testimony of the case worker that the reason DCFS was seeking termination of the mother’s parental rights was because of her limited mental ability/low I.Q., she needed someone in her home on a regular basis to help her care for the children "almost like 24/7”.)


author: DREW, J.

text:
    STATE of Louisiana, Appellee v. Terral Dean JOHNSON, Appellant.
    No. 47,913-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 10, 2013.

      Louisiana Appellate Project by Douglas Lee Harville, for Appellant.
    Jerry L. Jones, District Attorney, Robert Nicolas Anderson, Carl Douglas Walker, Assistant District Attorneys, for Appel-lee.
    Before WILLIAMS, CARAWAY and DREW, JJ.
   DREW, J.

|,Terral Dean Johnson was found guilty as charged of sexual battery, La. R.S. 14:43.1, and indecent behavior with juveniles, La. R.S. 14:81. For the sexual battery conviction, he was sentenced to five years at hard labor without benefits. For the indecent behavior conviction, he was sentenced to a concurrent three years at hard labor. We affirm in all respects.

FACTS

On July 17, 2011, Hunter Ballanee (“Hunter”) was celebrating his birthday at a friend’s home. One of the guests was his girlfriend, S.S. Both were 16 years old.

West Monroe police officer John Allen testified that:

• he was the responding officer to a call of a sex crime in West Monroe;

• there he spoke with S.S., Jonathan Johnson, Callie Brasseal, and Hunter;

• he collected no physical evidence;

• S.S., quite nervous and upset, advised that as she slept, someone began touching her and pulling down her pants;

• she initially thought the person was Hunter;

• she asked the person to stop and told him she was on her period;

• the person put his fingers inside her vagina;

• she thought the person also tried to put his penis inside her as well;

• when the lights came on, she saw that the person was not her boyfriend;

• she became upset, running outside the bedroom and out of the trailer; and

12* Hunter gave him a statement, at which point he contacted his sergeant, who took over the investigation.

Sergeant Jennifer Smith of the West Monroe Police Department testified she was contacted by Officer Allen to investigate the case, and that:

• when she arrived, Officer Allen provided her with the basic information;

• she transported S.S. home to notify her parents;

• they all then went to the police department, where S.S. gave a statement;

• she got an arrest warrant for the defendant, who was 48 when this happened;

• S.S. refused medical treatment, as did her parents on her behalf;

• she took no statement from Hunter, with whom she spoke only briefly at the scene and has had no additional contact since the crimes;

• no witness ever provided her with anything favorable concerning the defendant; and

• she never received any information from Josh Johnson or Jarrel Johnson.

S.S. testified that:

• she was watching movies and playing games with her friends;

• she left the group and went by herself to a bedroom and went to sleep;

• she was awakened by someone touching her around her vaginal region;

Is* she told the person, whom she thought

was Hunter, to stop;

• she told the person that she was menstruating;

• she asked the person to stop three times;

• when the lights came on, she realized it was not Hunter;

• as she ran outside, she could hear the voices of Hunter and the defendant;

• she saw the defendant walking to his truck and he spoke to her;

• she took a bath and asked Callie Bras-seal to help her remove a tampon, which had been pushed in too far by the defendant’s actions;

• in court she identified the defendant as her attacker;

• she never told Josh or Jarrel Johnson that the evénts did not happen;

• she had not really discussed the incident with anyone since it occurred; and

• she never told Jarrel Johnson that she was upset because Hunter was angry. Callie Brasseal testified that:

• she was Jonathan Johnson’s girlfriend and was at Hunter’s birthday party;

• she was watching movies in the master bedroom at the time S.S. left to go to bed in another bedroom;

• subsequently, the defendant left the room;

• about 10 minutes later, Hunter left the room as well;

• she heard Hunter say “[w]hat the f* *k ?”;

• everyone got up to see what was happening;

• she chased S.S., who had run to the opposite end of the trailer park;

• S.S. was on her hands and knees crying, screaming and hyperventilating;

14* S.S. did not want to be touched, but she helped- her up, walked her back to the trailer, and helped her get ready for a bath;

• she heard the defendant make a coarse statement; and

• she gave no statement that night.

Hunter Ballance testified that:

• he was celebrating his birthday at Jonathan Johnson’s house;

• S.S. went to bed away from the rest of the group;

• he stayed with S.S. until she fell asleep, then he returned to the group;

• the defendant left the group, saying he was leaving;

• a few minutes later, he returned to the bedroom;

• he heard S.S. saying, “Hunter, stop-you know I have a tampon in;”

• he heard the defendant say, “[i]t’s not Hunter. It’s TJ”;

• when he turned on the light he saw S.S. crying, with her pants and panties down around her ankles and her vagina exposed;

• S.S. ran from the room, looking horrified, shocked, confused, and disgusted;

• the defendant’s pants were also down, but he still had his boxers on;

• the defendant clearly told him that he was trying to get some “p* * *y”;

• the defendant said, “Nobody got raped. Did they?”;

• he and S.S. went back inside the trailer and S.S. went to take a bath;

• he had to assist S.S.. in removing a tampon;

• he identified the defendant as the one who was in the bedroom with S.S.; •

he made no statements to Josh Johnson or Jarrel Johnson as to whether or not the incident did in fact occur as S.S. reported; and

• he clearly heard the defendant say he was just trying to get some “p* * *y.”

Joshua Johnson testified that:

• he was the defendant’s nephew and was best friends with S.S. and Hunter;

• he had been at boot camp when the incident occurred, but when he was on leave, he talked to Hunter about what happened;

• Hunter said: “[y]ou know, none of that really happened. Right?”;

• S.S. was present and shook her head in agreement with Hunter’s statement;

• he did not know what to do with the information so he told his father; and

• he did not report the information to the police because he was at boot camp. Jarrel Johnson testified that:

• he is the defendant’s twin brother;

• he was at home asleep when Hunter and Jonathan arrived about 5:00 a.m.;

• Hunter told him that the defendant almost raped S.S.;

• he went over to Jonathan’s trailer to find out what was going on;

• when he arrived, he first made sure everyone was safe;

• at the trailer, he looked around to make sure everything was safe;

• he spoke with S.S., who said that his brother did not touch her sexually;

• she said her clothes were not off, and the defendant did not try to get on her;

• S.S. said she was upset because Hunter was yelling at her and angry;

Hunter told him “none of this happened,” and his brother had done nothing;

• he told Hunter to tell someone about that information;

• he relayed these comments to nobody but his brother; and

• he denied lying for his brother.

Hunter was recalled by the state. He admitted telling Joshua that he hoped the situation did not affect their friendship. He testified that Jarrel told him that it would be better if he said the incident did not happen, and denied telling either Joshua or Jarrel that it did not happen. Hunter also testified that he and Joshua Johnson remained friends and they would still hang out together.

The state recalled S.S., who denied telling Joshua or Jarrel that nothing happened. She recalled being around Joshua and Hunter as they discussed the incident, but she did not hear Hunter say that the incident didn’t happen. She denied downplaying the event to Jarrel that evening. She surmised that the Johnsons may have testified as they did because of kinship to the defendant.

DISCUSSION

Sufficiency

The defendant argues that the state’s evidence is insufficient because of the inconsistencies of the testimony. The state disagrees, as do we.

Our law on appellate review of sufficiency of the evidence is well settled.

|7The relevant portions of each of these criminal statutes are noted below.

| ^Sexual battery

Under these facts, a conviction for sexual battery required proof that, without consent, he intentionally touched the victim’s anus or genitals with any part of his body. State v. Redfearn, 44,709 (La. App.2d Cir.9/28/09), 22 So.3d 1078, writ denied, 2009-2206 (La.4/9/10), 31 So.3d 381.

S.S. testified that she gave no one permission to touch her. Even though she asked the defendant to stop more than once, he inserted his fingers into her vagina. The evidence, viewed in a light most favorable to the state, clearly proves the defendant’s guilt of this crime.

Indecent behavior with juveniles

S.S. was 16 years old when this happened; the defendant was 48, a difference of over two decades. She testified that the defendant pulled her panties down and touched her vagina without her permission. This is lewd and lascivious conduct. Immediately after the incident, the defendant, in his own words, stated exactly what sexual gratification he sought. The evidence, viewed in a light most favorable to the state, clearly proves the defendant’s guilt of this crime.

DECREE

The defendant’s convictions and sentences are AFFIRMED.

      . In accordance with La. R.S. 46:1844(W), the victim shall be referred to by initials only.

      . Hunter told Officer Allen that the defendant said "it's not what it looked like": that the group had been watching movies when the defendant left the room, saying he would be back in a minute; that later Hunter heard noises so he decided to go check on S.S.; and that when he turned on the light, he saw the defendant and S.S. in bed, with their pants down and genitals exposed.

      . S.S.’s statement to Sgt. Smith was essentially the same as her earlier statement to Officer Allen, adding only that she did not give defendant consent to perform the acts.

      . Josh is the defendant's nephew; Jarrel is his twin brother.

      . "[Njobody got hurt or raped. Did they?”

      . She assisted S.S. in removing the tampon.

      . “She came on to me and nothing happened."

      . The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert, denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir. 1/9/08), 974 So.2d 181, writ denied, 2008-0499 (La. 11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir. 1/14/09), 1 So.3d 833, writ denied, 2009-0310 (La. 11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 2009-0725 (La. 12/11/09), 23 So.3d 913; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La. 12/14/07), 970 So.2d 529. Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, 43,786 (La.App.2d Cir. 1/14/09), 2 So.3d 582, writ denied, 2009-0372 (La.l 1/6/09), 21 So.3d 299; State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255, cert, denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,032 (La. App.2d Cir.2/13/08), 975 So.2d 753; State v. Burd, 40,480 (La.App.2d Cir. 1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La. 11/9/06), 941 So.2d 35.
      The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 1999-0023 (La. 1/26/00), 775 So.2d 1022, cert, denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000); State v. Robinson, 36,147 (La.App.2d Cir. 12/11/02), 833 So.2d 1207; State v. Ponsell, 33,543 (La.App.2d Cir.8/23/00), 766 So.2d 678, writ denied, 2000-2726 (La. 10/12/01), 799 So.2d 490. Such testimony alone is sufficient even where the state does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant. State v. Robinson, supra; State v. Ponsell, supra.

      An appellate court reviewing the sufficiency of the evidence must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Jacobs, 504 So.2d 817 (La. 1987); State v. Adkins, 39,724 (La.App.2d Cir.6/29/05), 907 So.2d 232, writ denied, 2006-2514 (La.5/4/07), 956 So.2d 607.

      . La. R.S. 14:43.1, as it applies to this case, reads:
      Sexual battery is the intentional engaging in any of the following acts with another person where the offender acts without the consent of the victim,

      (1) The touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender[J
      La. R.S. 14:81, as it applies to this case, reads:
      Indecent behavior with juveniles is the commission of any of the following acts with the intention of arousing or gratifying the sexual desires of either person:
      (1) Any 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. Lack of knowledge of the child’s age shall not be a defense[.]


author: ROBERT A. CHAISSON, Judge.

text:
    Daniel A. CAMPBELL v. NEW ORLEANS SAINTS and Berkley Specialty.
    No. 12-CA-886.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 16, 2013.
    Rehearing Denied June 18, 2013.
    Frank A. Bruno, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    Christopher J. Kane, David C. Coons, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, ROBERT A. CHAISSON, and HANS J. LILJEBERG.
   ROBERT A. CHAISSON, Judge.

12This is an appeal by Daniel A. Campbell from a judgment denying his claim for workers’ compensation benefits' filed against his former employer, the New Orleans Saints football team, and their insurer, the Louisiana Worker’s Compensation Corporation. For the following reasons, we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

Mr. Campbell, a professional football player, injured his right knee on June 5, 2009, while at the Saints’ mini-camp. He was treated and cleared to play in late July, but reinjured the knee at practice sometime between July 31 and August 2, 2009. Those injuries ended his career as a player. It was stipulated that the Saints have paid all medical expenses associated with these injuries.

At the time of the injuries, Mr. Campbell was under .a contract with the Saints beginning on March 1, 2009. The contract provided that he would be paid $525 per week for pre-season activities, and if he made the 58-man roster he would receive $335,000, plus additional payments on a regular season per game basis. If he made the roster for the entire season, his total pay would be $745,000. The contract further provided that if he were unable to perform because of a pre-season 1..¡injury, he would nonetheless receive his $335,000 base contract amount, to be paid in equal installments, beginning with the first game of the season and ending at the end of the 17-game season. Another provision of the contract provided that if he did not make the 53-man roster, he would still be paid $200,000 over the course of the regular season.

Defendants do not contest that Mr. Campbell suffered a work related injury prior to the first game of the season. At the time that he was injured, he was being paid $525 per week for pre-season workouts. Mr. Campbell acknowledges that he was paid pre-season wages equal to, or more than, the $525 per week from the time of his injury until the beginning of the regular season, as well as the $335,000 contract amount over the 17 weeks of the regular season. He was last paid any amounts by the Saints on February 19, 2010. It was also stipulated that the NFL Collective Bargaining Agreement (CBA) for 2006-2012 provided that for every week that a player is paid wages in lieu of compensation, the team at issue receives a one and one-half weeks credit against future payments of compensation, and that in Mr. Campbell’s case, the credit was for 25 weeks.

Evidence presented at the hearing before the Office of Workers’ Compensation (OWC) judge established that Mr. Campbell did volunteer coaching work for several months after his injury. On July 15, 2010, he signed a consulting contract with the Miami Dolphins football team at a salary of $8,000 per month for seven months. Thereafter, the Dolphins renewed Mr. Campbell’s contract at a salary of $275,000 for the following year, and $300,000 per year for the next two years.

On the above evidence and stipulations, the OWC judge ruled that Mr. Campbell was not entitled to any temporary total disability payments because he was paid wages in lieu of compensation. The court further denied supplemental Learnings benefits (SEBs) because Mr. Campbell had failed to prove that he could not earn 90% of his pre-injury wages. Finally, the court denied his request for awards of penalties and attorney fees. This appeal followed.

LAW AND DISCUSSION

Mr. Campbell’s primary argument is that the OWC judge imposed upon him an improper burden to establish that he was unable to earn wages equal to 90% of his pre-injury wages pursuant to La. R.S. 23:1221(3)(a). Underlying that argument is the assertion that the court improperly calculated his average weekly wage (AWW) by not using his total pay amount for the contract period, but rather by using only the $525 per week figure that he was actually earning when he was injured. He argues specifically that his AWW should be based on his base contract amount of $335,000, or at least on the guaranteed $200,000 payment that he would have been paid had he not made the 53-man roster.

Before addressing these issues, we first note that under the CBA, the Saints qualified for the 25 weeks of credit against compensation which might have been owed. Since Mr. Campbell was paid wages in lieu of compensation through February 19, 2010, the earliest that any compensation would have been due would have been August 13, 2010. We also point out that the OWC judge’s judgment nowhere makes a factual finding of what claimant’s AWW was. However, there is no question that her decision to deny SEBs could only have been based on a finding that the $2,000 per week earned under his first contract with the Miami Dolphins beginning on July 15, 2010, was more than 90% of his AWW.

In Hoffman v. New Orleans Saints, 10-391 (La.App. 5 Cir. 1/25/11), 56 So.3d 446, writ denied, 11-0676 (La.5/6/11), 62 So.3d 126, a case factually indistinguishable from the present matter, this Court stated:

|fiThe appellate court reviews the workers’ compensation judge’s findings of fact under the manifest error or clearly wrong standard. Newsome v. New Orleans Saints, 08-311 (LaApp. 5 Cir. 10/14/08), 996 So.2d 637, 639 (citation omitted). A court of appeal may not overturn a judgment of the workers’ compensation judge absent an error of law or a factual finding, which is manifestly erroneous or clearly wrong. Hughes v. New Orleans Saints & UNCO, 05-712 (LaApp. 5 Cir. 2/27/06), 924 So.2d 1086.
In this appeal, Hoffman argues the workers’ compensation court incorrectly calculated his average weekly wage because it used his rate of pay he was earning during workouts at the time of his injury, $404.00 per week, instead of the total salary listed in his contract for the 2006 season, $175,000.00.
As noted by Hoffman, this Court has addressed cases with very similar facts in the past. Most recently, in Farquhar v. New Orleans Saints, 08-800 (LaApp. 5 Cir. 5/26/08), [16 So.3d 404, unit denied 09-1366 (La.10/2/09), 18 So.3d 114], this Court determined an injured player’s average weekly wage based on the amount the player actually earned prior to his injury. Farquhar was injured prior to the beginning of the regular football season. Farquhar was paid his entire salary for the season, in accordance with his contract; however, this Court found the contract salary was immaterial to a determination of his average weekly wage for workers’ compensation purposes.
Hoffman argues on appeal that Farqu-har, as well as other previous cases decided by this Court, are erroneous decisions. Hoffman contends this Court has incorrectly found that a player must be on an active roster in order to be paid for the season and to have workers’ compensation benefits based on the contract salary. We disagree with Hoffman and find the workers’ compensation court correctly found, as we have previously, that the players’ average weekly wage must be based on the amount actually earned at the time of the injury. The fact that the player is subsequently paid the full contract salary while on injured reserve is not pertinent to the calculation of workers’ compensation benefits.

The undisputed facts of the present case are that during the week of Mr. Campbell’s injury, he was earning $525 per week. All of the remaining payments that he received arose out of the contract, but were not owed until after the injury, when he was placed on injured reserve. Under the law in this circuit, the only figure of significance is the amount Mr. Campbell was earning at the time of his injury, which was $525 per week. While the OWC judge did not fix an amount in her judgment for Mr. Campbell’s AWW, had she arrived at any figure other than | fi$525 per week, it would have been a manifestly erroneous factual finding and constituted a reversible legal error.

Mr. Campbell argues that Hoffman, supra, and the line of cases upon which it relied, were incorrectly decided. He cites Meier v. New Orleans Saints, 08-1158 (La. App. 4 Cir. 3/12/09), 6 So.3d 944, for the proposition that the entire contract amount should be used in arriving at the AWW. While that may be a correct reading of Meier, that is not the law in this circuit.

Because the OWC judge properly denied benefits, she was also correct to deny penalties and attorney fees.

DECREE

For the foregoing reasons, the judgment of the Office of Workers’ Compensation is hereby affirmed.

AFFIRMED


author: ROBERTA. CHAISSON, Judge.

text:
    STATE of Louisiana v. Troy ARNAUD.
    No. 12-KA-899.
    Court of Appeal of Louisiana, Fifth .Circuit.
    May 16, 2013.
    Rehearing Denied June 18, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Douglas W. Freese, Myles D. Rainer, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for DefendanVAppellant.
    Panel composed of Judges ROBERT A. CHAISSON, ROBERT M. MURPHY, and HANS J. LILJEBERG.
   ROBERTA. CHAISSON, Judge.

lain this appeal, defendant, Troy Ar-naud, challenges his convictions for second degree murder and obstruction of justice. For the reasons that follow, we affirm defendant’s convictions and sentences.

PROCEDURAL HISTORY

In June of 2011, a Jefferson Parish Grand Jury returned an indictment charging defendant with second degree murder, in violation of LSA-R.S. 14:30.1, and obstruction of justice, in violation of LSA-R.S. 14:13o.!. At his arraignment, defendant pled not guilty. The case proceeded to trial before a twelve-person jury on April 16 and 17, 2012. After considering the evidence presented, the jury found defendant guilty as charged on both counts. The trial judge sentenced defendant to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence on the second degree murder conviction and to thirty years | .¡imprisonment at hard labor on the obstruction of justice conviction, to run consecutively. Defendant now appeals.

FACTS

On Saturday, January 29, 2011, Jonathan Pineda dropped off his brother, Marvin Romero-Pineda, at the Daiquiri Zone in Marrero to have a few drinks and to play pool. Jonathan became concerned when Marvin failed to return home. The next day, Marvin’s sister called the police and filed a missing person’s report.

On Monday, January 31, 2011, Jonathan called Timmy Palmisano, the owner of the Daiquiri Zone, and informed him that his brother was missing. Mr. Palmisano reviewed the video surveillance of the bar from January 29, 2011, and observed that Marvin, defendant, and another guy were playing pool, drinking, and talking. The three left together in a car at approximately 6:50 or 6:55 p.m. Mr. Palmisano recognized defendant in the video because defendant frequented his bar.

Detective Derek Johnson of the missing persons section of the Jefferson Parish Sheriffs Office subsequently reviewed the video with Mr. Palmisano. As a result, Detective Johnson developed defendant’s name as one of the persons who left the bar with Marvin and brought defendant in for questioning.

On February 7, 2011, after being advised of his rights, defendant gave a recorded statement, in which he claimed that while walking to the Daiquiri Zone he encountered Gregory Ford, got into Ford’s vehicle, and drove with him to the Daiquiri Zone. As they were shooting pool at the Daiquiri Zone, they saw a Spanish male who bought everyone drinks. When they were leaving, the Spanish |4male asked Ford for a ride. Defendant said that the three of them left the bar and got into Ford’s car, and that Ford dropped him off at his house in Marrero. Defendant claimed that he left Ford with the Spanish male and that he did not know what happened to the Spanish male after that time.

Following his interview with defendant, Detective Johnson spoke with other witnesses and then decided to speak with defendant again to see if he would release any further information. On February 9, 2011, defendant gave a second recorded statement, in which he said that Ford dropped him off at his mother’s house, and not his house as he claimed in his first statement, and that he later walked to his own house. Defendant claimed that at some point that night Ford came to his house and told him that he had blood in the back seat and needed some cleaning supplies. He further claimed that after he gave Ford the cleaning supplies, Ford left and did not return.

Co-defendant Ford gave numerous statements to police during the course of this investigation. In particular, Detective Brett Beavers of the Jefferson Parish Sheriffs Office conducted six interviews with Ford. Although Ford initially lied in his statements, which he admitted to at trial, he ultimately implicated himself and defendant in Marvin’s murder. On February 10, 2011, Ford led detectives to Marvin’s body which Ford and defendant had hidden in the woods near the River Birch landfill.

During the investigation, a search warrant was executed at defendant’s home. While there, the police officers found a Blackberry cell phone case in the corner of the yard. At trial, Jonathan Pineda identified the cell phone case as the same type of cell phone case that Marvin used. The officers also found some shampoo bottles and a scrub brush by the pool. In addition, the officers noticed that there was charred earth, burn marks, and charred clothing along the fence line |sof the property. Based on their investigation, defendant and Ford were arrested and charged with Marvin’s murder and with obstruction of justice.

At trial, co-defendant Ford testified as to the specifics of the offenses. According to Ford, on January 29, 2011, he and defendant, whom he had known for twelve or thirteen years, went to the Daiquiri Zone where they encountered Marvin. At some point, Marvin, Ford, and defendant left in Ford’s white Dodge Neon. Ford got into the driver’s seat, defendant got into the front passenger side seat, and Marvin got into the back seat. Ford drove away from the Daiquiri Zone and entered his neighborhood. As he did so, Ford knew that defendant intended to rob Marvin.

When they got to the first stop sign, defendant exited the front seat and entered the back seat with Marvin. Defendant demanded money from Marvin, showed Marvin a firearm, and started beating him. When Marvin did not surrender his money, defendant got on top of Marvin’s back, opened the back door on the driver’s side, pushed Marvin’s head outside the car, shot him in the back of the head, and then closed the door. Afterward, Ford drove to defendant’s house.

When they arrived, they took the body out of the car and placed it on the side of the pool in the backyard. Defendant went to the window and asked his wife for cleaning supplies, which she provided. The clothes were subsequently removed from the victim’s body, and the body was washed off. They then placed the body back in Ford’s car in the back seat. Ford drove toward Waggaman and eventually pulled over by a wooded area, as he was directed by defendant.

Ford and defendant took the body out of the car, put it over the fence, and dragged it to the woods. Defendant then shot the victim in the back of the head even though the victim was already dead. The victim’s facial and genital areas were subsequently burned using gasoline that Ford kept in his car to cut grass. [fiAfter the fire, they left and went back to defendant’s house. Later on, Ford was concerned that the police might find blood in his back seat, so he removed the back seat, threw it in a dumpster, and replaced it with another one.

Michael Thornton, a neighbor of defendant, testified at trial as to what he observed on January 30, 2011. According to Thornton, on that day at approximately 4:00 or 5:00 a.m., he was awakened by people talking across the street. When he looked outside, he saw defendant and another individual standing by a picket fence talking to each other. A short while later, one of the gentlemen brought a Shop Vac from the backyard and put it into the back seat of a white car. The person in the white ear left but subsequently returned. Sensing that something was not right, Thornton continued looking out of his blinds and saw defendant standing over what appeared to be a barrel with something burning in it.

In addition to lay witnesses, there were several expert witnesses who testified at trial. Dr. Dana Trosclair, an expert in the field of forensic .pathology, testified that she performed an autopsy on the victim and determined that the cause of death was two gunshot wounds to the back of the head. She further noted that the victim sustained blunt force injuries on the right forehead and had extensive thermal injury, or burning, to the face, neck, and genital area evidenced by black charring and skin splitting and blistering.

Adriana Perez, an expert in the field of forensic DNA analysis, testified that her testing strongly indicated that blood found in the back seat of Ford’s vehicle and DNA found on the cell phone case belonged to the victim.

Colonel Timothy Scanlan, an expert in the fields of firearms identification, tool mark identification, blood stain pattern analysis, and crime scene | ^reconstruction, testified that the physical evidence in Ford’s vehicle was consistent with Ford’s statement regarding the position of the victim’s body when he was killed, as the source of the victim’s blood was at or near the doorway behind the driver’s side door. Colonel Scanlan also asserted that the evidence tended to corroborate that the victim was subjected to a physical attack as well as a gunshot wound, and he confirmed that the back seat in Ford’s vehicle was not the original one.

OTHER CRIMES EVIDENCE

In his sole assigned error on appeal, defendant argues that the trial court erred when it denied his motion for mistrial based on the improper admission of other crimes evidence during Gregory Ford’s testimony.

At trial, Ford testified about his participation with defendant in the instant offenses. During his testimony, Ford stated that after the victim’s body was set on fire, he and defendant left and went back to defendant’s house. Thereafter, the following exchange occurred:

Q. Did you and he [defendant] discuss what steps you might take to help avoid you getting in trouble with the law? A. Yes, sir.
Q. What did you all discuss?
A. He discussed if I just get anybody involved that someone was going to be harm to me or my family member— Q. Hold on. You’re going to have to say that—

Defense counsel then objected, after which Ford testified as follows:

If something ever get heard by the police or anybody, that someone was going to be harmed, me or my family.

Defense counsel lodged another objection and asked to approach the bench. She argued that this statement was not contained in Ford’s factual basis, and that it | Swas evidence of another crime or bad act. Defense counsel then moved for a mistrial. The trial judge had the jury removed from the courtroom, and the audio recording of Ford’s last answer was played back. After hearing arguments of counsel, the trial judge denied the motion for a mistrial, as follows:

All right. Let the Record reflect that we did, in fact, listen to the responses, and the Record will be clear. He said, in response to a question what did you all talk about that if the police found out, in essence — and I’m summarizing — that harm could come to me and my family. He did not, he did not say Troy would have someone harm me and my family. He did not say that Troy would harm me and my family. He made a statement, which was a generalization that, obviously, if law enforcement becomes aware of my involvement harm could come to me and my family. That is a very broad and general statement.

Defendant now contends that the trial court erred in denying his motion for mistrial based on the improper admission of other crimes evidence. In particular, he asserts that this testimony was introduced to portray defendant as a person of criminal character who was directly responsible for the victim’s death. Further, defendant claims that Ford’s reference to other crimes during his testimony was not relevant to any genuinely contested issue and contends that the probative value of the evidence was greatly outweighed by its prejudicial effect.

Except under certain statutory or jurisprudential exceptions, evidence of other crimes or bad acts committed by the defendant is inadmissible at trial. LSA-C.E. art. 404(B)(1). State v. Walker, 03-1072 (La.App. 5 Cir. 12/30/03), 865 So.2d 172, 174. LSA-C.Cr.P. art. 770(2) provides that a mistrial shall be granted, upon motion of the defendant, when a remark or comment is made within the hearing of the jury by the judge, district attorney, or a court official, during trial or in argument and that remark refers to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible. State v. Ventris, 10-889 (La.App. 5 Cir. 11/15/11), 79 So.3d 1108, 1122.

| ¡As a general rule, LSA-C.Cr.P. art. 770 does not apply to testimony by a State witness, since a witness is not considered a “court official.” However, an impermissible reference to another crime deliberately elicited by the prosecutor is imputable to the State and triggers the rule mandating a mistrial. State v. Lagarde, 07-123 (La.App. 5 Cir. 5/29/07), 960 So.2d 1105, 1113, writ denied, 07-1650 (La.5/9/08), 980 So.2d 684. In State v. Edwards, 97-1797 (La.7/2/99), 750 So.2d 893, 906, cert. denied, 528 U.S. 1026, 120 S.Ct. 542, 145 L.Ed.2d 421 (1999), the Louisiana Supreme Court stated that the “comment must not ‘arguably point to a prior crime; to trigger mandatory mistrial pursuant to Article 770(2), the remark must ‘unmistakably point to evidence of another crime,” and “the imputation must ‘unambiguously’ point to defendant.”

In the instant case, we find that a mandatory mistrial was not warranted pursuant to the provisions of LSA-C.Cr.P. art. 770. Ford was a State witness and, therefore, not a “court official” within the meaning of Article 770. Further, the remark at issue was not deliberately elicited by the prosecutor; rather, it appears that the prosecutor was attempting to elicit information from Ford as to how he and defendant took action to avoid being caught by the police. Lastly, Ford’s comment did not constitute inadmissible evidence of other crimes or bad acts because it did not unmistakably point to evidence of another crime or unambiguously point to defendant. A review of the transcript shows that Ford did not refer to any specific crime or bad act committed by defendant, and that Ford’s comment was vague and ambiguous. As the trial judge noted, Ford did not testify that defendant said he would harm Ford or his family, nor did Ford testify that defendant said he would have someone harm Ford or his family. Accordingly, a mandatory mistrial was not warranted under the provisions of LSA-C.Cr.P. art. 770.

| inRather, Ford’s comment falls under the discretionary mistrial provisions of LSA-C.Cr.P. art. 771, that govern those prejudicial remarks made by persons other than the court, district attorney, or court officials and provides:

In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

A mistrial is a drastic remedy and is warranted only when trial error results in substantial prejudice to a defendant, depriving him of a reasonable expectation of a fair trial. Whether a mistrial should be granted is within the sound discretion of the trial court, and the denial of a motion for mistrial will not be disturbed absent an abuse of discretion. State v. Lagarde, 960 So.2d at 1113-14.

In the instant case, it is noted that defense counsel did not request an admonition under Article 771. Further, defendant has failed to show that he was substantially prejudiced by Ford’s comment. Accordingly, we find no abuse of discretion in the trial court’s denial of defendant’s motion for mistrial.

Moreover, even assuming the comment constitutes an impermissible reference to another crime, such an error is subject to a harmless error analysis. The test for determining harmless error is whether the verdict actually rendered in the case was surely unattributable to the error. State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94, 102. In the instant case, Mr. Palmisano testified that the videotape showed the victim left the bar with defendant and Ford in Ford’s vehicle. |nFord testified at trial that he knew defendant intended to rob the victim, and he observed defendant shoot the victim in the head. Ford also testified that he and defendant took the body to defendant’s house and cleaned it, and then they disposed of the body in the woods. Lastly, the expert testimony of Colonel Scanlan and Ms. Perez showed that the victim was in the back seat of Ford’s vehicle when he was killed. Thus, given this evidence presented at trial, any error in allowing Ford’s comment can be deemed harmless.

Based on the foregoing, we find that the trial court did not abuse its discretion by denying defendant’s motion for a mistrial.

ERROR PATENT REVIEW

We have also reviewed the record for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review reveals that the trial court failed to fully advise defendant at sentencing of the two-year prescriptive period for filing post-conviction relief. LSA-C.Cr.P. art. 930.8A states in pertinent part, “No application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final.” Here, the sentencing transcript reveals that the trial judge informed defendant that he had “two years for post-conviction relief.”

This Court has previously held that the failure of the trial court to advise a defendant that the prescriptive period runs from the time his conviction and sentence become final renders the advisement incomplete. State v. Holmes, 08-719 (La. App. 5 Cir. 3/10/09), 10 So.3d 274, 283, writ denied, 09-816 (La.1/8/10), 24 So.3d 857. In accordance with this Court’s routine practice, we advise defendant, by this opinion, that no application for post-conviction relief, including [ ^applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of LSA-C.Cr.P. arts. 914 or 922. State v. Davenport, 08-463 (La.App. 5 Cir. 11/25/08), 2 So.3d 445, 451, writ denied, 09-0158 (La.10/16/09), 19 So.3d 473.

Accordingly, for the reasons set forth herein, defendant’s convictions and sentences are affirmed.

CONVICTIONS AND SENTENCES AFFIRMED

      . Co-defendant, Gregory Ford, Jr., was charged in that same indictment with being a principal to second degree murder and obstruction of justice. Ford pled guilty to manslaughter and obstruction of justice and received a sentence of forty years on each count, to run concurrently. On March 13, 2013, this Court affirmed Ford’s convictions and sentences. State v. Ford, 12-717 (La.App. 5 Cir. 3/13/13), 113 So.3d 319, 2013 WL 950875.

      . According to Mr. Palmisano, defendant had been coming to his bar for approximately a year. He testified that defendant and a friend used to visit the bar a couple of times a week and that defendant would also come to the bar with his girlfriend to play pool.

      . The video from the bar was not shown at trial because it was only kept on the surveillance system for four days.

      . Detective Brett Beavers testified that during the search of Ford's residence, a Shop Vac was found in a shed in the backyard and taken into evidence. Ford admitted in his last statement that he used a Shop Vac to clean his car after the murder. Adriana Perez, the expert forensic DNA analyst, testified that the Shop Vac was submitted to her, but no samples were considered probative in order to move through the further steps of DNA analysis.