author: MARION F. EDWARDS, Judge. JASMINE, J.,

text:
    STATE of Louisiana v. Kedarius A. LATHERS.
    No. 09-KA-20.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2009.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Assistant District Attorneys, Gretna, Louisiana, for PlaintiffiAppellee.
    Holli A. Herrle-Castillo, Attorney at Law, Louisiana Appellate Project, Marre-ro, Louisiana, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and MADELINE JASMINE, Pro Tempore.
   MARION F. EDWARDS, Judge.

[2In this criminal matter defendant, Ke-darius Lathers (“Lathers”), seeks review of the trial court’s denial of motions to suppress his statement and identification. For reasons that follow, we find the trial court’s rulings were correct, and we affirm Lathers’ conviction and sentence.

The State filed a bill of information charging Lathers with armed robbery in violation of La. R.S. 14:64, while armed with a handgun in violation of La.R.S. 14:64.3. Lathers pled not guilty and filed motions to suppress his statement and identification. When those motions were denied, Lathers filed a supervisory writ in this Court seeking review of the denials. Upon review, this Court denied the writ application.

The State amended the bill of information to remove the firearms enhancement charge of La. R.S. 14:64.3. Lathers withdrew his plea of not guilty | sand entered a plea of guilty to armed robbery, reserving his right to appeal the suppression rulings pursuant to State v. Crosby. Upon acceptance of the guilty plea by the trial court, Lathers was sentenced to serve twelve years at hard labor without benefit of parole, probation, or suspension of sentence. This appeal follows.

The first issue for our consideration is whether Lathers has a right of review of the denial of the motions to suppress the statement and the identification since these rulings were reviewed by this Court in a pretrial writ application. Lathers ala-gues he is not precluded from raising these matters on appeal. The State urges this Court to apply the “law of the case” doctrine because the issues on appeal are the same issues previously reviewed and denied by this Court in the pretrial writ application. The State also argues that, since Lathers pled guilty and the matter did not proceed to trial on the merits, there is no new evidence or testimony since this Court’s last ruling.

The law of the case doctrine is discretionary. The denial of a supervisory writ application does not bar reeonsideration of an issue on appeal, nor does it prevent the appellate panel from reaching a different conclusion on the issue. We note that the decision by this Court in the pretrial ruling created some disparity of opinion by the panel of this Court. Further, this Court’s ruling in the pretrial writ was made without benefit of all the information that later became available. In the record before us in this appeal, we now have exhibits from the suppression hearing that were not included in the writ application, including the photographic lineup. Accordingly, in the interest of justice, we will consider the rulings of which Lathers complains on appeal.

\ ¿FACTS

Because Lathers pled guilty to armed robbery and there was no trial on the merits, the facts of the crime contained in the record are minimal. It is clear from the record that this crime was a car-jacking that occurred in Kenner, Louisiana. The victim testified at the suppression hearings. She stated that she was carjacked at gun point on August 30, 2007. She identified Lathers as the perpetrator from a photographic lineup of six possible suspects. The victim testified that she recognized Lathers’ photo and marked the back of the photo lineup with her signature.

Lathers was developed as a suspect when another individual was found in possession of the stolen vehicle. Information obtained by the investigating officer led police to Lathers, who had a criminal history that included active probation for truancy and who fit the description of the perpetrator.

LAW AND ANALYSIS

In the first assignment of error, Lathers argues the trial court erred in failing to suppress his statement because he was fifteen years old at the time of his arrest, and he made a statement to police prior to his mother’s arrival. He contends the State did not prove his confession was voluntary because he signed the form indicating that he would be allowed to talk to his mother, but the police obtained a statement in her absence. He argues that, based on the totality of circumstances, his statement should have been suppressed because the State failed to meet its burden of proving defendant voluntarily waived his right to counsel and his right against self-incrimination.

The State responds that the trial court’s pretrial ruling on the suppression of his statement was correct and should not be disturbed on appeal. It argues Lathers’ | .^statement was knowingly and voluntarily made under the totality of the circumstances.

At the hearing on a motion to suppress a statement, the State bears the burden of proving the admissibility of the purported statement. Before introducing a defendant’s statement made during a custodial interrogation, the State must prove beyond a reasonable doubt that the defendant was first advised of his Miranda rights, and that the statement was made freely and voluntarily, and not under the influence of fear, intimidation, menaces, threats, inducement or promises.

The constitutional privilege against self-incrimination and the right to counsel applies equally to juveniles and adults. The determination of whether a waiver of constitutional rights is knowingly and voluntarily made is on a case-by-case basis and such a determination rests upon the “totality of the circumstances.” In State v. Fernandez, the Louisiana Supreme Court has held that the confession of an accused of any age is valid only if it was given knowingly and voluntarily. In addition to age, factors to be considered in assessing the totality of the circumstances include the individual’s experience, education, background, intelligence and capacity to understand the warning given at the time of the waiver. In setting forth the factors for consideration in assessing the totality of the circumstances, regardless of whether the accused is a juvenile, the Louisiana Supreme Court overruled prior jurisprudence in State in Interest of Dina that |(,required the State to affirmatively show that the juvenile engaged in a meaningful consultation with an attorney or an informed parent, guardian, or other concerned adult before the juvenile waived his constitutional rights. The Fernandez Court held that prophylactic rules in Diuo were not constitutionally or statutorily required. Thus, the absence of a parent is no longer dispositive of an inquiry into whether the juvenile defendant’s confession is voluntary.

We recognize that, under the current pronouncement of Fernandez, the State is no longer required to affirmatively show that the juvenile engaged in a meaningful consultation with an attorney or an informed parent, guardian, or other concerned adult before the juvenile waived his constitutional rights. However, we believe that the State must be mindful of the constitutional privilege against self-incrimination and the right to counsel afforded juveniles in criminal investigations. These privileges are not to be taken lightly and serious efforts must be made to preserve those rights in criminal matters in which the accused is a juvenile.

In the current matter, this Court must consider the Fernandez factors to decide whether, under the totality of the circumstances, Lathers’ statement was knowing and voluntary.

Defendant was fifteen years old at the time he confessed. At the suppression hearing, both Detective Charlotte Synigal (“Detective Synigal”) and Detective Brian MacGregor testified that they made numerous attempts to locate Lathers’ guai“d-ian. They called Lathers’ residence several times. Detective Synigal explained there was only a six-hour time span to process a juvenile. Once the police realized that they were probably not going to be able to contact Lathers’ mother, they decided to proceed and talk to Lathers.

At 9:00 p.m., Detective Synigal explained the juvenile advice of rights form to Lathers. This form contained Lathers’ constitutional rights and also listed the 17charges about which the police desired to question him. According to Detective Synigal, Lathers signed the form, acknowledging that he understood his rights. Detective Synigal believed Lathers was familiar with the court system because he was on active probation at the time of his arrest and had been advised of the same rights dui'ing previous arrests. Detective Synigal testified that she went through the entire form with Lathers line by line. This process took nine minutes. When Detective Synigal questioned Lathers about the incident, he put his head down, and said, “[Y]eah, I did it.” Detective Synigal testified that she believed Lathers knowingly and intelligently waived his rights and that he was not threatened or coerced into making a statement.

Lathers’ mother, Tonuia Howard (“Howard”), arrived a little after midnight, after the police went to Lathers’ residence and made contact with an individual at the house. Howard had been in LaPlace. The police reviewed the form again with Howard, and she signed the juvenile advice of rights form. At the hearing, Howard testified that she asked the officers how they were able to question her son in her absence and said she did not allow any further questioning of him. Howard testified that Lathers had been arrested before for a curfew violation when he was eleven or twelve years old and that he had also been arrested for fighting.

At the time of Lathers’ statement, he was a few months shy of being sixteen years old. The Louisiana Supreme Court has previously recognized that there are sixteen year olds whose knowledge of and ability to comprehend their legal rights surpass the knowledge and comprehension of many who are older.

Lathers had an eighth or ninth grade education, and the circumstances do not appear to indicate that he was unable to understand the nature of his actions. Lathers’ mother said she had no doubt defendant could read and that he would Ighave understood the seriousness of the allegations against him. She testified that the instant matter was the third incident where defendant had been advised of his rights. Lathers was no stranger to the judicial system because he had been previously arrested, and he was on probation at the time of his arrest. Prior criminal history, even for minor offenses, serves to expose a defendant to the criminal justice system and the process for advisement of rights.

Further, it does not appear Lathers was under duress. Detective Synigal testified he was not crying when filling out the form. Lathers could have said that he did not want to speak to the police without talking to his mother, but Detective Syni-gal testified that he never said he wanted to speak to his mother, that he wanted a lawyer, or that he did not want to speak.

The trial court pointed out that Detective Synigal, who advised Lathers of his rights, is an African-American woman of small stature with a calm, not-intimidating demeanor. After considering the totality of the circumstances, the trial court denied the motion to suppress the statement.

The admissibility of a statement or confession is first a question for the trial court, and its conclusions on the credibility and weight of testimony relating to volun-tariness of a statement will not be overturned on appeal unless unsupported by the evidence. Based on the totality of the circumstances, the trial court found the State established that Lathers’ confession was given knowingly and voluntarily. Upon consideration of the suppression hearing transcript and exhibits contained in the record, we find support for the denial of the motion to suppress the statement.

This assignment of error is without merit.

|aIn his second assignment, Lathers argues the trial court erred in failing to suppress the identification by preventing counsel to ask the victim questions concerning the reliability of her identification procedure.

The State responds that, because the trial court found the witness credible and the identification procedure not suggestive, the court was not required to determine whether the procedure gave rise to a substantial likelihood of irreparable misidenti-fication.

The defense attorney sought to question the victim about the details of the crime, the length of time between the crime and the identification, and whether she provided a description of the perpetrator to the police. Defendant claimed these questions were relevant to the reliability of the victim’s identification. The trial judge sustained the State’s objections, reasoning that the questions related to reliability and the weight of the evidence. The trial judge denied the suppression motion, stating that, after viewing the lineup, he found that the identification was not suggestive and that the victim was a credible witness.

Generally, a defendant has the burden of proof on a motion to suppress an out-of-court identification. In order to suppress an identification, a defendant must first prove that the identification procedure was suggestive. An identification procedure is considered suggestive if the attention of the witness is unduly focused on the defendant during the procedure. Even if an identification process is suggestive, the defendant must also show there was a substantial likelihood of misidentifi-cation as a result of the identification procedure.

|10Under Manson v. Brathwaite, the factors that courts must examine to determine, from the totality of the circumstances, whether the suggestiveness presents a substantial likelihood of mis-identification include: the witness’ opportunity to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.

However, in the absence of the defendant proving the suggestiveness of the out-of-court identification, a Manson analysis is not necessary. Based on the foregoing jurisprudence, a defendant must prove an identification is suggestive before the factors to evaluate the suggestive identification become relevant. In the present case, the victim testified that the lineup procedure was not suggestive. She explained the photographic lineup was placed in front of her, the police stepped back, and then asked her if she recognized anyone. She testified she knew exactly who the perpetrator was when she saw the photo of Lathers and quickly identified his photo. She stated that she was not threatened by the police.

The trial judge found that the victim was credible and the identification procedure was not suggestive. The trial court judge believed the testimony that the victim was not threatened or otherwise coerced into selecting Lathers’ photo. When a trial judge makes a finding of fact based on the credibility of a witness, a reviewing court owes that determination great deference and may not overturn it in the absence of manifest error. The trial judge also looked at the lineup and considered the photographs, noting that they all had certain characteristics that were the same. The judge stated specifically that the hair and the complexions | uwere “kind of the same.” He stated, “There’s nothing that would separate the other five from the defendant in this particular case and then make him noteworthy as the one that she should select.”

Nothing in the record indicates the trial judge erred in finding the identification was not suggestive. In the absence of showing a procedure is suggestive, no further analysis is required. As such, we find no error in the trial judge’s decision to exclude testimony relating to the reliability of the victim’s identification of Lathers.

Lathers requests an error patent review. However, this Court routinely reviews the record for errors patent regardless of whether defendant makes such a request. The review reveals there are no errors patent in this case.

For the foregoing reasons, the conviction and sentence are affirmed.

AFFIRMED.

JASMINE, J., dissents with reasons.

JASMINE, J.,

dissents with reasons.

hi respectfully dissent from the majority’s holding to affirm this conviction. At trial, the interrogating officer, Detective Synigal, testified that she went through the waiver of rights form with the juvenile defendant and explicitly stated that he would be allowed to confer with his mother before deciding whether to answer any questions. It is undisputed, however, that the defendant was not allowed to consult with his mother, or any other concerned adult, prior to answering the officer’s questions and giving a statement implicating himself in this crime. It is axiomatic in our law that in order for a confession to be admitted into evidence, it must be affirmatively shown that said confession was given free and voluntary. LSA-R.S. 15:451. Given the clear testimony that the defendant was misled by being told he would be allowed to confer with his mother before giving a statement and the defendant gave a statement without being allowed to confer with his mother, it was not shown that this statement was free and voluntary. For this reason, I find the trial court erred in denying the defendant’s motion to suppress this statement.

While I am aware that this Court denied the defendant’s writ from the trial court’s denial of the motion to suppress, as stated by the majority, “the denial of a supervisory writ application does not bar reconsideration of an issue on appeal, nor does it prevent the appellate panel from reaching a different conclusion.” Accordingly, I would vacate the ruling denying the | ^defendant's motion to suppress, vacate the conviction, and remand for a new trial.

      . In State v. Lathers, 08-K-626 (La.App. 5 Cir. 8/8/08), a panel on this Court rendered a unanimous decision denying the writ application as to the motion to suppress the identification. In a split decision, with one judge dissenting, the ruling denying the motion to suppress the statement was also denied.

      . 338 So.2d 584 (La.1976).

      . State v. Jacobs, 04-1219 (La.App. 5 Cir. 5/31/05), 904 So.2d 82, writ denied, 05-2072 (La.4/28/06), 927 So.2d 282, cert. denied, 549 U.S. 956, 127 S.Ct. 385, 166 L.Ed.2d 276 (2006).

      . La.C.Cr.P. art. 703.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . State v. Rose, 05-770 (La.App. 5 Cir. 2/27/06), 924 So.2d 1107, 1111, writ denied, 06-1286 (La.11/22/06), 942 So.2d 554 (citing La. R.S. 15:451).

      . State v. Terrick, 03-515 (La.App. 5 Cir. 9/30/03), 857 So.2d 1153, 1159, writ denied, 03-3272 (La.3/26/04), 871 So.2d 346.

      . State ex rel. A.B., 07-907 (La.App. 5 Cir. 3/25/08), 983 So.2d 934, 939 (quotation omitted).

      . State v. Fernandez, 96-2719 (La.4/14/98), 712 So.2d 485.

      . Id.

      . State in Interest of Dino, 359 So.2d 586, 594 (La.1978), cert. denied, 439 U.S. 1047, 99 S.Ct. 722, 58 L.Ed.2d 706 (1978).

      . Terrick, 03-515 at 10, 857 So.2d at 1159 (citing State v. Edwards, 406 So.2d 1331, 1340 (La.1981), cert. denied, 456 U.S. 945, 102 S.Ct. 2011, 72 L.Ed.2d 467 (1982)).

      . See, Terrick, 03-515 at 12, 857 So.2d at 1160; State v. James, 04-0878, p. 22 (La.App. 4 Cir. 2/23/05), 897 So.2d 821, 833, writ denied, 05-1173 (La.1/27/06), 922 So.2d 542.

        . Terrick, 03-515 at 10-11, 857 So.2d at 1159-60.

      . State v. Higgins, 03-1980, p. 19 (La.4/1/05), 898 So.2d 1219, 1232, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005) (citing La.C.Cr.P. art. 703(D)).

      . Id.

      . State v. Robinson, 07-832 (La.App. 5 Cir. 4/15/08), 984 So.2d 856, 865, writ denied, 08-1086 (La. 12/19/08), 996 So.2d 1132 (citing State v. Broadway, 96-2659 (La. 10/19/99), 753 So.2d 801, 812, cert. denied, 529 U.S. 1056, 120 S.Ct. 1562, 146 L.Ed.2d 466 (2000)).

      . Higgins, 03-1980, 898 So.2d at 1233.

      . 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

      . Higgins, 03-1980, 898 So.2d at 1233.

      . See, State v. Medford, 489 So.2d 957, 961 (La.App. 5 Cir.1986).

      . See, Higgins, 03-1980 at 20-21, 898 So.2d at 1233.

      . See, La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).


source: Caselaw Access Project

author: MARION F. EDWARDS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Steven M. CAMPBELL.
    No. 08-KA-1226.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2009.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Thomas S. Block, Assistant District Attorneys, Twenty-Fourth Judicial District, Parish of Jefferson, State of Louisiana, Gretna, Louisiana, for Plaintiff/Appellee.
    Gwendolyn K. Brown, Attorney at Law, Louisiana Appellate Project, Baton Rouge, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and MADELINE JASMINE, Pro Tempore.
   MARION F. EDWARDS, Judge.

1.¿In this criminal matter, defendant-appellant, Steven M. Campbell (“defendant”), challenges his guilty pleas and the sentences resulting from those pleas. Defendant was charged by original and amending bills of information with possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1 (count one); one count of possession of cocaine between 28 and 199 grams in violation of La. R.S. 40:967(F) (count two); and creating and operating a clandestine laboratory for the manufacturing of cocaine and crack cocaine in violation of La. R.S.40:983 (count three).

After several defense motions, including motions to suppress the evidence, identification and confession were considered and denied by the trial court, defendant withdrew his not guilty plea and entered pleas of guilty to all three counts. Pursuant to a plea agreement with the State, the trial court sentenced the defendant to ten years at hard labor without parole, probation, or suspension of sentence on the firearm possession, ten years at hard labor on the creation of a clandestine laboratory for the manufacture of cocaine, and fifteen years at hard labor without benefit of parole, probation, or suspension of ^sentence on the possession of cocaine charge. The sentences were ordered to run concurrently with each other.

Subsequently, the State filed a multiple bill of information alleging that the defendant was a second felony offender based on a prior conviction of possession with intent to distribute cocaine and the current guilty plea to possession of cocaine. When the defendant stipulated to the allegation charged in the multiple bill of information, the trial court vacated the original sentence on count two, the possession of cocaine charge, and imposed an enhanced sentence of fifteen years at hard labor, without benefit of probation or suspension of sentence for the first five years. The trial court ordered this enhanced sentence to run concurrent with the other sentences in this case. Defendant subsequently moved for and was granted an out-of-time appeal.

FACTS

Because of the guilty pleas and the lack of a trial, the facts contained in the record are minimal. It appears from the hearing on the motions to suppress and statements made at the time of the plea that defendant’s arrest and subsequent charges were the result of an investigation into complaints by neighbors that suspicious activity suggestive of narcotic trafficking was occurring in a nearby storage facility. According to the statements made by the State at the time the guilty plea was accepted by the trial court, the defendant possessed a .44 handgun and 172.57 grams of cocaine and had created and was operating a laboratory in which he manufactured cocaine.

\ ¿LAW AND ANALYSIS

In brief to this Court, defendant assigns seven errors. In the first five he challenges the validity of his guilty pleas, and, in the final two errors, the defendant asserts he had ineffective assistance of counsel in the trial court.

Relative to his guilty plea, defendant first argues that his guilty pleas to counts one and two were not voluntary and knowing because the trial court failed to properly inform him of the sentencing provisions for each offense. Specifically, defendant asserts that he was not advised of the minimum sentence or of the mandatory statutory fine for each offense. Further, defendant contends that he received illegal sentences on counts one and two, thereby rendering the pleas absolute nullities. In his final assignment relating to the pleas, defendant argues that the terms of the plea agreement were not honored.

The record shows that, during the plea colloquy, the trial judge advised defendant of the maximum sentence for each of the three offenses to which defendant was pleading guilty but failed to advise him of the mandatory minimum sentence for each offense and of the mandatory fines for counts one and two. The charge in count one, felon in possession of a firearm, mandates a sentence of not less than ten nor more than fifteen years without the benefit of probation, parole, or suspension of sentence, and a fine of between $1,000 and $5,000. Count two, possession of cocaine between 28 and 199 grams, mandates a sentence of not less than five years nor more than thirty years at hard labor, and a fine of not less than between $50,000 and $150,000.

Once a defendant has been sentenced, only those guilty pleas which are constitutionally infirm may be withdrawn and only by appeal or post-conviction | firelief. A guilty plea is constitutionally infirm when it is not entered freely and voluntarily, if the Boykin colloquy was inadequate, or when a defendant is induced to enter the plea by a plea bargain and that bargain is not kept.

La.C.Cr.P. art. 556.1, in pertinent part, states:

A. In a felony case, the court shall not accept a guilty plea or nolo conten-dere without first addressing the defendant personally in open court and informing him of, and determining that he understands, all of the following:
(l)The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.

Violations of La.C.Cr.P. art. 556.1 that do not rise to the level of Boykin violations are subject to harmless error analysis. The Louisiana Supreme Court has clearly held that the core Boykin constitutional requirements have never been extended to include advice with respect to sentencing. In determining whether a violation of Article 556.1 is harmless, the inquiry is whether the defendant’s knowledge and comprehension of the full and correct information would have likely affected his willingness to plead guilty.

This Court has previously considered the same argument presented by defendant and concluded that the mere fact that the trial court failed to inform the defendant of the statutory minimum and maximum sentence and the possibility of the imposition of a fine under the statute charged does not render the plea involuntary. We noted that, although the trial court did not advise the defendant of the statutory minimum sentence for one of the offenses, the defendant conferred with her attorney before entering her guilty pleas. This Court also noted that the | ^defendant’s sentence was part of a plea bargain, she was clearly advised of the sentence which she would receive by pleading guilty, and her plea bargain was “highly successful” in that she received a sentence considerably below the statutory maximum. We further found the trial court’s failure to advise the defendant of the applicable fines was inconsequential because no fines were actually imposed.

In the matter before us, as in Gilliam, the defendant conferred with counsel prior to entering his guilty pleas. Additionally, the guilty plea form executed by defendant contained the full sentencing range for all three offenses, including the minimum sentence for each offense. Thus, it is clear from the record that the defendant knew the minimum sentences and the possibility of fines before he entered a plea of guilty. Further, the sentences imposed pursuant to the plea bargain were clearly advantageous to the defendant since he received the minimum sentence on count one and mid-range sentences on counts two and three. Therefore, the failure of the trial court to properly inform the defendant of the full sentencing ranges in open court does not render the plea unknowing and involuntary.

Defendant also argues the State breached a promise to delay sentencing until a pending matter in Orleans Parish was resolved so that the sentences in this matter and the Orleans matter could be handled collectively. There is no evidence of such a promise in the record that would support this claim. Defendant waived all delays for sentencing in the waiver of rights form, and he was informed of the sentencing date in open court. At that time, defense counsel moved for a continuance based on the pending Orleans Parish matter. That motion was denied, and there is no Vindication that the plea bargain was predicated on this delay. Accordingly, we find no merit in this argument.

However, our inquiry into the validity of defendant’s guilty pleas does not end with the above conclusions. Defendant also argues that the failure to impose mandatory fines constitutes an illegal plea bargain that is an absolute nullity. In support of that argument, defendant cites State v. Guilbeaux, Specifically, the defendant argues that the imposition of an illegally lenient sentence is an absolute nullity that must be set aside.

In Guilbeaux, defendant was sentenced pursuant to a plea bargain that provided the defendant with a suspended sentence for which he was ineligible due to prior convictions. The State filed a motion to correct an illegally lenient sentence. In Guilbeaux, we analyzed the nature of a plea bargain, noting that it is a contract generally subject to contract rules. Under our Civil Code, an obligation cannot exist without a lawful cause. The cause of an obligation is unlawful when the enforcement of the obligation would produce a result prohibited by law or against public policy. However, we also noted that a plea bargain in a criminal case by its nature must be construed in the light of the defendant’s constitutional rights. Ultimately, we determined that it would not be in society’s best interest to uphold a plea bargain that provides a defendant with an illegally lenient sentence, and we vacated the sentence as an absolute nullity, and reserved the defendant’s right to withdraw the guilty plea.

Since the Guilbeaux decision, there have been a line of cases declaring illegally lenient sentences imposed pursuant to plea bargains absolute nullities | ¿relying on Gu-ilbeaux. The holding in Guilbeaux has expanded the concept to include any plea agreement that allowed an illegally lenient sentence, without making a distinction between a sentence that was prohibited by law and one that is simply impermissible under the circumstances presented. In Chidey, the defendant did not receive a sentence prohibited by law. The Chidey defendant received a sentence below the statutory minimum, a sentence that could be permissible under certain circumstances under State v. Dorthey.

We believe that an illegally lenient sentence imposed pursuant to a plea bargain is only an absolute nullity if the plea bargain has an unlawful cause or a negotiated sentence prohibited by law. We do not find the extension of that ruling used in Chidey appropriate.

It is undisputed that the appellate court has the authority to correct an illegally lenient sentence at any time, even if the defendant has entered into a plea bargain and is negatively affected by the correction. Subsequent to our opinion in Gidl-beanx, the Louisiana Supreme Court held that an appellate court has the authority under La.C.Cr.P. art. 882 to correct an illegally lenient sentence at any time, even if the issue of an illegal sentence was not raised by the defendant or the State. Since that time, this Court has used that authority to notice the failure of the trial court to impose a mandatory fine and our authority to remand the matter to the trial court for imposition of a mandatory fine. However, often in indigent defender matters, we have decided not to use that authority.

|flWe, therefore, hold that not every illegally lenient sentence imposed pursuant to a plea bargain constitutes an absolute nullity. In the matter before us, where the sentence is illegally lenient due to the failure to impose a mandatory fine, we do not find the plea bargain to be an absolute nullity.

Accordingly, we do not find any argument presented by defendant relating to the invalidity of the plea bargain because it was unknowing, involuntary, or an absolute nullity convincing.

Nevertheless, upon a review of the record for errors patent, we find that defendant’s enhanced sentence is illegal and indeterminate because the trial court ordered it to run concurrent with “any parole violation or probation violations (defendant) may have, or revocations.” Only the judge who revokes the probation can order the sentence on a probation revocation to run either concurrently or consecutively with the sentence of a later conviction. This Court has the authority to correct an illegal sentence at any time. Pursuant to that authority, we vacate that portion of the sentence.

We further note that the portion of defendant’s enhanced sentence that states it is to run concurrent with any parole violations is indeterminate and, therefore, in violation of La.C.Cr.P. art. 879. While there is no prohibition against the trial judge ordering a sentence to run concurrent with a parole revocation, the sentence is indeterminate because defendant’s parole status is unclear.

In the final two assignments of error, defendant asserts he had ineffective assistance of counsel. Specifically, defendant argues that his defense counsel failed to object to the trial court’s improper recitation of the sentencing provisions and to the imposition of sentences that did not comply with the plea agreement. hnHe also claims his trial counsel was ineffective for failing to file a motion to set aside his guilty pleas because the terms of the plea agreement were breached.

A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution of 1974. In assessing a claim of ineffectiveness, a two-pronged test is employed. The defendant must show that (1) his attorney’s performance was deficient, and (2) the deficiency prejudiced him. The error is prejudicial if it was so serious as to deprive the defendant of a fair trial, or “a trial whose result is reliable.” In order to show prejudice, the defendant must demonstrate that, but for counsel’s unprofessional conduct, the outcome of the trial would have been different. Although an ineffective assistance of counsel claim is most appropriately addressed through an application for post-conviction relief filed in the trial court where a full evidentiary hearing can be conducted, the record in the present case is sufficient to address the merits of defendant’s claims and, therefore, may be addressed in the interest of judicial economy.

Defendant’s claims of ineffective assistance of counsel are based on the same grounds he advanced in his previous assignments of errors addressed above. He first claims his trial counsel was ineffective for failing to object to the trial court’s failure to advise him of the minimum sentences on each count and of the mandatory fine provisions for counts one and two. As stated above, defendant was not prejudiced by these errors. Defendant was advised of the minimum sentences in the waiver of rights form he executed prior to pleading guilty. Additionally, ^defendant did not receive the mandatory fine and, therefore, was not prejudiced by his lack of knowledge of the statutorily mandated fines and defendant’s sentence on count two was vacated. Furthermore, defendant received the mandatory minimum sentence on count one minus the mandatory fine, the mandatory minimum fifteen-year sentence on his enhanced sentence as a second felony offender on count two, and a mid-range sentence on count three. All three sentences were ordered to run concurrently.

His claim of ineffective assistance of counsel based on his counsel’s failure to file a motion to set aside his guilty pleas because of a breach in the plea agreement is also without merit. As discussed above, there was no breach in the plea agreement.

Accordingly, these assignments of error are without merit.

CONCLUSION AND DECREE

For the reasons set forth herein, we vacate the illegal portions of defendant’s enhanced sentence making the sentence run concurrently with any probations or probation revocations. We affirm the sentence as amended.

We further remand this matter to the trial court to clarify defendant’s parole status. Because neither of the above discussed errors in sentencing were part of defendant’s negotiated plea agreement, it is not necessary to reserve defendant’s right to withdraw his guilty plea.

CONVICTIONS AFFIRMED; SENTENCE AMENDED AND AS AMENDED AFFIRMED; MATTER REMANDED WITH INSTRUCTIONS.

      . We note that the sentence on count two, the possession of cocaine charge, was illegal; however, the issue is moot since that original sentence was vacated when the enhanced sentence was imposed.

      . La. R.S. 14:95.1(B).

      . 40:967(F)(1)(a).

      . State v. McCoil, 05-658 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124.

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

      . Id.

      . State v. Guzman, 99-1753 (La.5/16/00), 769 So.2d 1158, 1164

      . Id.

      . State v. Gilliam, 01-748 (La.App. 5 Cir. 1/15/02), 807 So.2d 1024, 1027, writ denied, 02-512 (La.11/1/02), 828 So.2d 562.

      . See, State v. Guzman, supra and State v. Gilliam, supra.

      . State v. Gilliam, supra.

      . 99-591 (La.App. 5 Cir. 11/10/99), 749 So.2d 16.

      . La. C.C. art. 1966: Guilbeaux, supra.

      . La. C.C. art. 1968; Guilbeaux, supra.

      . Guilbeaux, supra.

      . Id.

      . See, State v. Chisley, 03-426 (La.App. 5 Cir. 10/15/03), 860 So.2d 45, writ denied, 03-3358 (La.4/2/04), 869 So2d 874; State v. Fairman, 06-366 (La.App. 5 Cir. 10/31/06), 945 So.2d 945 So.2d 783; State v. Adams, 07-355 (La.App. 5 Cir. 11/27/07), 973 So.2d 777; State v. Hines, 07-313 (La.App.5Cir.11/27/07), 970 So.2d 707.

      . State v. Chisley, supra.

      . 623 So.2d 1276 (La.1993). State v. Hines, supra, has also followed this expanded reasoning in Chisley.

      . State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790.

      . See, State v. Grant, 04-341 (La.App. 5 Cir. 10/26/04) 887 So.2d 596.

      . La.C.Cr.P. art. 901(C)(2).

      . La.C.Cr.P. art. 882.

      . See, State v. Hines, 07-312 (La.App. 5 Cir. 10/30/07), 970 So.2d 1134, 1138.

      . Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); State v. Soler, 93-1042 (La.App. 5 Cir. 4/26/94), 636 So.2d 1069, 1075, writ denied, 94-1361 (La.11/4/94), 644 So.2d 1055.

      . Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064; State v. Serio, 94-131 (La.App. 5 Cir. 6/30/94), 641 So.2d 604, 607, writ denied, 94-2025 (La.12/16/94), 648 So.2d 388.

      . Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068; State v. Soler, supra at 9, 636 So.2d at 1075.

      . State v. Taylor, 04-346 (La.App. 5 Cir. 10/26/04), 887 So.2d 589, 595.

      . We also note a discrepancy between the transcript and the commitment in the original sentence imposed on count two. However, since that sentence was vacated before the enhanced sentence was imposed, the issue is moot.


author: CLARENCE E. McMANUS, Judge.

text:
    Janos VOROS, M.D., Individually and on Behalf of Janos Voros, M.D., a Professional Medical Corporation v. Charley DORAND, Individually and Dorand, Individually and Dorand Consulting Services.
    No. 08-CA-667.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2009.

      Bruce A. Miller, Attorney at Law, Me-tairie, LA, for PlaintiffAppellee.
    Henry L. Klein, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and CLARENCE E. McMANUS.
   CLARENCE E. McMANUS, Judge.

12This appeal concerns a claim for damages by Dr. Janos Varos against Damien Knight, the Bank of Louisiana, and Charley Dorand & Dorand Consulting Services resulting from the unauthorized conversion of funds by Knight from Dr. Voros’ Bank of Louisiana accounts. The Bank of Louisiana now files this appeal from the trial court’s judgment in favor of Dr. Voros in the amount of $22,000.00, finding the Bank to be 50% at fault, and thus ordering the bank to pay $11,000 to Dr. Voros.

For the following reasons, we amend the judgment of the trial court, in part, and affirm the judgment as amended.

STATEMENT OF THE CASE

Janos Voros, M.D. is the sole shareholder, director and officer of Janos Voros, MD, A Medical Corporation. In approximately 1983, Dr. Voros hired Damien Knight, who eventually became his officer manager and handled his financial and banking affairs. Dr. Voros also had an accountant, Charley Dorand of Dorand Consulting Services, that reviewed bank statements for reconciliation and performed other necessary accounting services.

Dr. Voros, with the assistance of Knight, opened bank accounts at Bank of Louisiana in 2000, including a personal money mai'ket account and a corporate checking account for his medical corporation. Sharon Welch, a patient of Dr. Voros, was the branch manager of the Lapalco location of the Bank of Louisiana. |3She processed and opened the bank accounts for Dr. Vo-ros. The signature cards on both the personal money market account and the corporate checking account included only Dr. Voros’ signature. Knight was not listed on the signature card for either account.

Knight was responsible for making deposits for Dr. Voros and paying all expenses due. Dr. Voros would sign blank checks for Knight to use to pay the expenses. Unknown to Dr. Voros at the time, Knight was using some of the blank checks he signed to pay her own personal bills. In addition, Knight made telephone transfers from Dr. Voros’ personal money market account to his corporate account. Knight would speak with Welch at Bank of Louisiana and request these transfers. These transfers were made without Dr. Voros’ knowledge.

Dr. Voros discovered the problem with the accounts and unauthorized checks and transfers by Knight after his wife pointed out to him that the credit card debt was high and the bills were not being paid. Dr. Voros contacted Welch at the bank and she helped him review the accounts and they discovered that Knight had stolen money from his accounts using the signed blank checks to pay her personal bills and by making unauthorized transfers from Dr. Voros’ personal account at Bank of Louisiana.

Criminal charges were brought against Knight. On June 15, 2004, she pled guilty to theft over $500. She was sentenced to imprisonment at hard labor for 3 years. That sentence was suspended and she was placed on five years active probation. She was also ordered to pay costs and ordered to pay a total of $190,000.00 in restitution to Dr. Voros.

On September 27, 2002, Dr. Voros, individually, and on behalf of his medical corporation, filed a Petition for Damages against his accountant, Charley Dorand, individually, and Dorand Consulting Services. Dr. Voros alleged Dorand |,,was negligent in balancing accounts, preparing ledgers and failing to detect irregularities to prevent the systematic removal of funds by Knight.

On June 7, 2005, Dr. Voros filed a First Amended Petition for Damages naming Knight and Bank of Louisiana as defendants. Dr. Voros alleged Knight purposefully converted his money for her own use by paying credit card bills with his funds and taking cash directly from his bank accounts. Dr. Voros alleged the Bank of Louisiana negligently permitted Knight to transfer funds from Dr. Voros’ individual account to his corporate account without appropriate authority. In a second amending petition, Dr. Voros alleged the Bank of Louisiana permitted Knight to make the transfers by telephone.

On April 7, 2006, Bank of Louisiana filed a peremptory exception of prescription arguing the amended petition naming it as a defendant was filed more than three years after the original petition. The trial court denied this exception July 19, 2006.

Trial was held on January 10, 2008 with regards to Dr. Voros’ claim against Bank of Louisiana for reimbursement of $22,000.00 in losses resulting from the unauthorized telephone transfers, which were not covered by the order of restitution in the criminal action against Knight. On March 5, 2008, the trial court rendered judgment in favor of Dr. Voros for $22,000.00. However, the trial court also found Dr. Voros to be 50% at fault for the lack of due diligence in the supervision or review of his own financial accounts. Therefore, the trial court reduced his award to $11,000.00 in accordance with the finding of comparative fault.

Bank of Louisiana now appeals the trial court’s judgment arguing four assignments of error: 1) the trial court erred in failing to find that the negligence claims against Bank of Louisiana had prescribed and failed to rule on this matter, |s2) the trial court erred in failing to find that Dr. Vo-ros’ claims were barred as a matter of law by La. R.S. 10:3-405 and La. R.S. 10:3-406, 3) the trial court erred in failing to apply the legal principles enunciated in Black v. Whitney National Bank, 618 So.2d 509 (4th Cir.1993), and 4) the trial court erred in failing to apply fault to either Charley Dorand or Damien Knight. For the reasons which follow, we amend the trial court’s judgment in part and affirm the judgment as amended.

DISCUSSION

First, Bank of Louisiana claims the trial court erred in failing to find that the negligent claims against the Bank had prescribed. Bank of Louisiana further argues that, despite considerable focus on the issue of prescription, there was no ruling made by the trial court.

In opposition, Dr. Voros argues the exception of prescription was heard and denied by the trial court. We agree with Dr. Voros and find the issue of prescription was heard and decided by the trial court prior to the commencement of trial. Bank of Louisiana filed the peremptory exception of prescription on April 7, 2006. The trial court heard arguments on the exception and it was denied on July 19, 2006. Bank of Louisiana argued the issue of prescription again at the beginning of the trial, although no formal written exception was filed at that time. We find that since the trial court did rule on the exception of prescription prior to trial, a second ruling in the judgment following trial was not necessary. Further, we note that following the trial court’s July 19, 2006 denial of its peremptory exception of prescription, Bank of Louisiana did not file an application for supervisory writs with this Court.

Even though we find the Bank of Louisiana is incorrect in its assertion that the trial court failed to rule on its exception of prescription, we will address the merits of the exception and consider the Bank of Louisiana’s assignment of error to | ^address the trial court’s 2006 denial of the exception. In its original exception, the Bank of Louisiana argued the alleged negligent acts by the Bank of Louisiana that Dr. Voros complained of took place between February 21, 2002 and July 12, 2002. The First Amended Petition filed by Dr. Voros adding Bank of Louisiana as a defendant was filed June 6, 2005. Therefore, Bank of Louisiana argued the amended petition containing Dr. Voros’ claims against it was filed more than one year after the last alleged act of negligence and the claim was prescribed. Bank of Louisiana further argued Dr. Voros complained that Bank of Louisiana’s independent negligence caused his damages and this negligence had nothing to do with the actions of Knight. Therefore, Bank of Louisiana argued the claims against it were prescribed.

In opposition to the exception of prescription, Dr. Voros argued in the trial court that Bank of Louisiana and Knight are solidary obligors because the negligence and actions of the bank were extri-cably intertwined with the actions of Knight. Dr. Voros further argued the applicable prescriptive period for the claims against Knight is ten years under La. C.C. art. 3499 because the action is a personal action. Further, Dr. Voros argued in accordance with La. C.C. art. 3503, when prescription is interrupted against a soli-dary obligor, the interruption is effective against all solidary obligors and their successors.

The trial court denied the exception without reasons. We find the trial court correctly denied the exception. We agree with Dr. Voros and find that Knight and Bank of Louisiana are solidary obligors in this action. Dr. Voros’ claim against Knight is a personal action and is governed by La. C.C. art. 3499 which states “[ujnless otherwise provided by legislation, a personal action is subject to a liberative prescription of ten years.” Therefore, a liberative prescription of ten years applies to the claims against Knight and Dr. Vo-ros’ amending petition |7naming her as a defendant was timely filed. Further, La. C.C. art. 1793 provides that “[a]ny act that interrupts prescription for one of the soli-dary obligees benefits all the others.”

Since we find Knight and Bank of Louisiana to be solidary obligors in this matter, and the ten year liberative prescription applies to Dr. Voros’ claim against Knight, the claim against Bank of Louisiana was also timely filed. Thus, the trial court correctly denied the exception of prescription.

Second, Bank of Louisiana argues the trial court should have applied LSAR.S. 10:3-405 and LSA-R.S. 10:3-406. Bank of Louisiana argues these statutes apply and bar the claims against it by Dr. Voros. Bank of Louisiana argues La. R.S. 10:3-405 and 406 dictate that an employer who fails to exercise ordinary care in connection with defalcations by an employee is barred from making any claims against a financial institution which handles the employer’s bank accounts.

In opposition, Dr. Voros argues these statutes deal only with negotiable instruments, and do not apply to the unauthorized transfer of funds from the one account to another. Dr. Voros argues there is no instrument related to the account that would trigger an obligation under these statutes on the part of the account holder. Dr. Voros contends these statutes concerning negotiable instruments between a bank and a depositor relate only to money within an account that is demanded by a written instrument from that account and has nothing to do with a verbal and unauthorized telephone transfer of funds by a non-customer.

Chapter 3 of Title 10 of the Louisiana Revised Statutes specifically refers to and is titled “Negotiable Instruments”. Further, the language of both statutes cited by Bank of Louisiana refers to defalcations made by “instrument”. Therefore, we agree with Dr. Voros and find these statutes apply only to acts by an employee dealing with negotiable | ¡^instruments. Since this ease does not deal with negotiable instruments, but instead involves unauthorized telephone transfers of funds from an account, we find these statutes inapplicable in this case. Therefore, we find Bank of Louisiana’s second assignment of error lacks merit.

Third, Bank of Louisiana argues the trial court should have applied the case of Black v. Whitney National Bank, 618 So.2d 509 (4th Cir.1993) and found that Dr. Voros is barred from making a claim against Bank of Louisiana. Bank of Louisiana argues Dr. Voros, like the plaintiff in Black, did not exercise supervision or review of his bank statements or the actions of Knight, therefore, he cannot bring a claim against the bank.

In opposition, Dr. Voros argues this case concerns negotiable instruments, unlike the unauthorized telephone transfers made by Knight. Thus, Dr. Voros contends this case does not apply and does not bar his claim against Bank of Louisiana.

A review of Black indicates the plaintiffs claims in that case center around the acts of an employee/office manager who forged the employer/physician’s signature on checks payable to the physician. These acts clearly involved the use of negotiable instruments, unlike the telephone transfers that took place in the instant case.

Additionally, we find Black is distinguishable from the instant case because in Black, the employee was given much more authority with regards to the employers bank accounts. The employee and the employer in Black had joint bank accounts and the employee was a signature on the employer’s account. Therefore, as noted by the Fourth Circuit in that case, this authority held the employee out to the banking community as having the authority to engage in the questionable transactions.

lain the instant case, Knight was given no such authority. She was not a signature on Dr. Voros’ accounts with Bank of Louisiana. The claims in the instant case stem from Bank of Louisiana’s allowance of the transfers without authority from a signature on the account. Black only addresses the employee’s forging of the employer’s signature on checks payable to the employer.

For the reasons discussed above, we find Black to be distinguishable from this instant case and find Bank of Louisiana’s third assignment of error lacks merit.

Finally, Bank of Louisiana argues the trial court erred in failing to apply fault to either Dorand or Knight. Bank of Louisiana argues Dorand should have been assessed some fault because she was responsible for evaluating the cheeking accounts and failed to catch the defalcations. Bank of Louisiana also argues the trial court should have assessed some fault to Knight since she actually stole the money. Bank of Louisiana contends Knight has offered no defense and has admitted she was the proximate cause of Dr. Voros’ losses.

Dr. Voros argues in opposition that the fault of the co-defendants Dorand and Knight was not an issue before the trial court and should not be addressed by this Court. Dr. Voros argues there were only two parties to the contract between the bank and Dr. Voros and there is no way the other defendants breached its terms. Dr. Voros goes on to argue the trial court’s judgment should be affirmed and not disturbed, and specifically points out that he has chosen not to appeal the trial court’s judgment which found him to be 50% at fault for the losses he sustained.

After reviewing the record and trial testimonies presented, we agree with the trial court that Dr. Voros was partially at fault for the losses he sustained. Additionally, we agree with the trial court that Bank of Louisiana was also at fault. However, we agree with Bank of Louisiana and find that some fault must be [ U)assessed to Knight, the individual that actually stole the funds and initiated the unauthorized telephone transfers. We do not find the evidence and testimonies presented at trial support an assessment of fault on behalf of Do-rand.

First, with regards to the fault of Bank of Louisiana, we agree with the trial court that the bank was at fault for allowing Knight to make the transfers by telephone that resulted in her stealing funds from Dr. Voros.

Welch, the branch manager, handled the unauthorized transfers on behalf of the bank and she testified at the trial of this matter. She testified that Bank of Louisiana is a small bank and she knew 90% of her customers. She further testified that if she knew a customer, she would make a transfer for them if they called and requested it. She stated she complied with the “know your customer rule”, which she claimed was contained in bank regulation literature. Welch testified that she knew Dr. Voros and had set up both his corporate and personal accounts with Bank of Louisiana. Welch further stated that she knew Knight worked for Dr. Voros and she felt she had expressed authority to permit Knight to request these transfers on Dr. Voros’ accounts because Knight “handled the office.” Welch testified that she had not talked directly to Dr. Voros concerning Knight’s requests, but Knight handled all his affairs, so this led her to believe Knight had the authority to do the transfers. However, Welch also testified that she knew Knight was not a signatory on Dr. Voros’ personal or corporate accounts and knew Knight was not an officer, director, or shareholder of Dr. Voros’ corporation.

Additionally, Welch did not get authority from Dr. Voros for Knight to make the transfers, nor did she call him for approval prior to completing the transfers. Welch also did not call Dr. Voros after the transfers, instead she completed the written debit advices and mailed a copy to Dr. Voros’ office. The | n original debit advices were sent in the monthly bank statements. Ultimately, Welch testified she would not have made the transfers if she had not personally known Knight.

Dr. Voros testified that he never added Knight’s name to any accounts, never provided her or the bank with the express authority or written authority, for Knight to access the accounts. He further testified that he never told Knight or Welch that Knight was authorized to make transfers. Additionally, Dr. Voros never told anyone at Bank of Louisiana that his advance approval would not be needed for employees to make transfers.

At trial, Dr. Voros also presented the testimony of a banking expert, Clayton Domingue, who was a former bank examiner for the Louisiana Office of Financial Institutions. He testified that transfers like the ones Welch made for Knight, must be made by the owner or beneficiary and no other. He further testified that he “know-your-customer rule” which Welch stated she relied upon, was a published regulation by the federal agencies that regulate banks, however, he believed this rule had been abrogated by new banking laws, especially after September 11th and the passage of the Patriot Act. He testified that banks have moved to a customer identification program. Domingue further explained that authority to make such transfers must be in writing and this writing must delegate authority to the non-owner in order to make the transfer legal. Do-mingue testified that transfers by telephone by a non-account holder who was not listed on the signature card were neither customary nor ordinary and did not comply with law. He also testified that there were no internal procedures in place at the Bank of Louisiana for transfers by telephone of an account holder’s funds by a non-customer.

Based on the testimonies presented at trial, we find that Welch, working on behalf of Bank of Louisiana, did not have the authority to make the telephone 112transfers requested by Knight. Therefore, Welch’s actions allowed Knight to steal the funds from Dr. Voros’ account at Bank of Louisiana. Thus, we agree with the trial court and find Bank of Louisiana to be at fault in this matter.

We further agree with the trial court that Dr. Voros is partially at fault for his lack of due diligence in the supervision and/or review of his financial accounts. At trial, Dr. Voros testified regarding Knight’s role in the handling of his financial affairs. He testified that Knight would go to Bank of Louisiana to make deposits in his accounts. Further, Knight would come to him and tell him certain bills needed to be paid. He would sign blank checks and Knight would fill in the payee and amount. Dr. Voros testified that Knight opened most of the mail at his office, including the bank statements. Dr. Voros stated he never opened or reconciled a bank statement. He thought Knight sent the statements directly to his accountant, Charley Dorand.

In addition, Dr. Voros testified that his wife had warned him for years that she suspected Knight was stealing funds. But, he did not personally take any steps to check his accounts because he was under the impression that Dorand was checking all his accounts and she had assured him everything was fíne. Ultimately, Dr. Vo-ros testified at trial that he thinks he probably has some responsibility in taking care of his business and he should have been more careful. He agreed that part of the losses were his responsibility.

Based on the above, we find Dr. Voros did not properly supervise or review his own financial accounts. If he had reviewed the monthly bank statements and seen the debit advices, Dr. Voros would have known immediately that Knight was making transfers from his personal account that he had not authorized. Further, if Dr. Voros had discovered these unauthorized transfers immediately after the first one occurred, he could have taken action to stop Knight and alert the bank as to the | ^wrongdoing. Therefore, we agree with the trial court that Dr. Voros was partially at fault for his lack of due diligence in supervising his financial accounts.

Unlike the trial court, we also attribute some fault to Knight, who actually stole the money by initiating these transfers. At trial, Knight admitted she made the telephone transfers and then used the funds to pay her personal bills. After criminal charges were brought against her, she pled guilty to theft over $500.

Since Knight actually initiated the unauthorized transfers and ultimately took the money from Dr. Voros, we find her to be 25 % at fault for her role in this matter. Further, we find Dr. Voros to be 25% at fault for his failure to review his financial accounts and discover the actions of Knight. And finally, we agree with the trial court’s assessment of fault as to Bank of Louisiana and find it to be 50% at fault for its role in allowing Knight to make the unauthorized transfers by telephone. Ultimately, Knight would not have been able to take these funds from Dr. Voros if Bank of Louisiana had never allowed her to make the telephone transfers. Bank of Louisiana failed to protect its account holder, Dr. Voros, by requiring the transfers to be made by an account holder only, or by requiring written authority from Dr. Voros before allowing the transfers by Knight. Therefore, we agree with the trial court’s 50% assessment of fault for Bank of Louisiana.

Accordingly, we amend the trial court’s judgment to reflect that Dr. Voros is 25 % at fault, Knight is 25% at fault for their respective roles in this theft matter. We affirm the trial court’s judgment finding Bank of Louisiana to be 50% at fault and affirm the trial court’s award of $22,000.00 to Dr. Voros for reimbursement of funds stolen by Knight and not covered by restitution in the criminal matter. Dr. Voros proceeded to trial in this matter against only Bank of Louisiana. Therefore, we order judgment in favor of Dr. Voros and against Bank of Louisiana in the 114amount of $11,000.00, which reflects Bank of Louisiana’s 50% fault assessment. As amended, we affirm the trial court’s judgment.

JUDGMENT AMENDED; JUDGMENT AFFIRMED AS AMENDED.