author: PITMAN, J.

text:
    STATE of Louisiana, Appellee v. Bobby Charles BYRD, Appellant.
    No. 49,142-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2014.

      Louisiana Appellate Project, by Douglas Lee Harville, for Appellant.
    Charles Rex Scott, District Attorney, John Aaron Crawford, Jessica D. Cassidy, Treneisha Jackson, Assistant District Attorneys, for Appellee.
    Before STEWART, LOLLEY & PITMAN, JJ.
   PITMAN, J.

1 ,A jury convicted Defendant Bobby Charles Byrd as charged of aggravated flight from an officer in violation of La. R.S. 14:108.1. He was adjudicated a fourth felony habitual offender, and the trial court initially sentenced him to 25 years at hard labor, a departure from the mandatory sentence of life imprisonment imposed by La. R.S. 15:529.1. Following a motion to reconsider sentence filed by the state, the trial court resentenced Defendant to the mandatory term of life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. Defendant now appeals his conviction and sentence. For the following reasons, we affirm.

FACTS

On May 15, 2012, the state filed a bill of information charging Defendant with aggravated flight from an officer. On January 15, 2013, the state filed an amended bill of information, alleging that Defendant “drove through red lights and stop signs without stopping.”

Cpl. Mary Jo Coburn Garrett, Cpl. K.M. Mormon and Det. Robert Gordon, all with the Shreveport Police Department, testified at trial, which began on January 14, 2013. Cpl. Garrett testified that she was patrolling downtown Shreveport on July 20, 2011, when Det. Gordon requested over the police radio that a tan-colored minivan be stopped because it matched the description of a suspect vehicle involved in other crimes. She stated that she saw the minivan proceeding on Caddo Street and initiated a traffic stop with lights and sirens from her marked police unit. She further stated that |?the minivan came to a stop and that she and Cpl. Mormon, who was in another police unit, exited their units and approached the minivan. Cpl. Mormon approached the driver’s door and Defendant “immediately put the vehicle into drive and sped off.” Cpl. Garrett stated that she and Cpl. Mormon got back in their units and began a pursuit of the minivan through downtown Shreveport. She testified that Defendant drove through red lights during the pursuit and that she had to drive 59 mph in a 35 mph-zone to keep up with Defendant’s vehicle. She also testified that she observed Defendant fail to stop at stop signs on Traffic Street and that he stopped the minivan where Traffic Street dead ends at the levee and exited his vehicle. She stated that she stopped and exited her unit at the levee and helped establish a perimeter around the area in which Defendant was thought to be located.

Cpl. Mormon testified that she was working patrol on the afternoon of July 20, 2011, when she was contacted by Det. Gordon to stop a vehicle that was possibly connected to several recent burglaries. Cpl. Mormon stated that she viewed the vehicle and initiated a traffic stop with lights and sirens at Louisiana Avenue and Caddo Street and was joined by Cpl. Garrett and Det. Gordon. She testified that she approached the driver’s side of the |,⅞vehicle and requested that the driver (Defendant) turn off the vehicle, but Defendant put his vehicle in drive and drove off from the stop. She stated that she and the other officers returned to their police units to follow Defendant, which occurred at approximately 2:20 in the afternoon on a work day where the streets were busy with many cars and people. She also stated that the lights and sirens on her vehicle were activated during the pursuit and that the officers were vigilant not to cause any accidents. She testified that Defendant ran several red lights during the pursuit that took them from downtown Shreveport and across the Texas Street bridge into a residential area and that Defendant did not stop at any stop signs and drove much faster than the 25 mph posted speed limit. She stated that Defendant then drove to where the road came to a dead end at the levee, exited his vehicle and began running away. She stated that she stopped and exited her unit and assisted in setting up a perimeter around the area where Defendant had fled. She further testified that she remained at her post and did not observe Defendant again until he was apprehended and then identified Defendant as the same person she observed driving the vehicle during the initial traffic stop.

Det. Gordon testified that he worked in the property crimes unit on July 20, 2011, and, while investigating a string of burglaries of nightclubs in Shreveport, obtained a photograph from a surveillance camera of the vehicle driven by a suspect in the burglaries at Tiki Bar and Grill. He noted that the |4photograph depicted “a light colored either Dodge or Chrysler minivan that’s an early '90’s model. And ... it’s missing the right front hubcap.” He stated that the suspect was observed on a grainy video as a white or Hispanic male and that copies of the photographs were distributed to the patrol division. Shortly after lunchtime on July 20, 2011, a vehicle matching the description was spotted in the Allendale neighborhood. Det. Gordon drove to the location and found that the minivan was parked in a parking lot and was unoccupied. He testified that he conducted surveillance on the parking lot until approximately 2:15 in the afternoon when he observed the minivan exiting the parking lot. He then called over the police radio for marked police units to conduct a traffic stop to identify the driver and obtain more information. He further testified that he followed Cpls. Mormon’s and Garrett’s units to the location of the stop and observed the minivan speed away as they approached the minivan. He stated that he then turned on his lights and sirens and followed in the pursuit that took them through all of the major intersections in downtown Shreveport, across the Texas Street bridge and onto Traffic Street in a residential neighborhood until they reached the levee. Det. Gordon testified that he observed Defendant commit several traffic violations during the pursuit, i.e., stop sign violations, red light violations, traveling at high speeds and “blatant disregard for public safety,” and noted that he never observed the brake lights of the minivan come on. Det. Gordon further testified that he stopped his unit behind the stopped minivan, did a protective sweep of the vehicle and noted that there were no occupants | Jnside the minivan. A K9 unit arrived on the scene and the dog followed Defendant’s scent into the river, where the officers apprehended him in the water and brought him back to shore to be arrested.

On January 16, 2013, a jury found Defendant, by a vote of 11 to 1, guilty as charged of aggravated flight from an officer.

On January 28, 2013, the state filed a fourth or subsequent felony habitual offender bill of information, alleging that Defendant had six felony convictions.

On March 27, 2013, a multiple offender hearing was held. The trial court found Defendant to be a fourth felony habitual offender and sentenced him to 25 years at hard labor without benefit of probation or suspension of sentence, noting that this sentence was a deviation from the mandatory term |fiof life imprisonment. The trial court also denied a motion for new trial filed by Defendant.

On March 28, 2013, the state filed a motion to reconsider sentence, requesting that the trial court reconsider the 25-year sentence as it deviates from the statutorily mandated sentence for a fourth felony habitual offender of life imprisonment at hard labor without benefit of parole, probation or suspension of sentence.

On May 29, 2013, Defendant filed a motion to reconsider sentence and requested that he be sentenced as follows: “2 years (must serve) suspend 25 years, 10 years probation, fine and community service 5,000 hours. Complete Cenikor Treatment Program.”

On July 15, 2013, a resentencing hearing was held, and the trial court resentenced Defendant to the mandatory sentence of life imprisonment at hard labor without benefit of parole, probation or suspension of sentence.

Defendant appeals his conviction and sentence.

DISCUSSION

Sufficiency of the Evidence

In his first assignment of error, Defendant argues that the evidence presented at trial was insufficient to support the conviction of aggravated flight from an officer. He contends that the state failed to prove that the officers had reasonable grounds to believe that he had committed an offense at the time they conducted an investigatory stop of the vehicle he was driving. Defendant also argues that, although there was evidence that he failed to stop at red lights in Caddo Parish, there was no evidence that he ran a stop sign in Caddo Parish.

The state argues that the evidence presented at trial is sufficient to convict Defendant of aggravated flight from an officer. The state contends that Defendant may not challenge the validity of the investigatory stop because he fails to challenge on appeal the trial court’s denial of his motion to suppress.

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 beyond a reasonable doubt.” Jackson v. Virginia, 448 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Hearold, 603 So.2d 731 (La.1992); State v. Smith, 47,983 (La.App.2d Cir.5/15/13), 116 So.3d 884. See also La. C. Cr. P. art. 821. This standard does not provide an appellate court with a vehicle for substituting its appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165.

The trier of fact makes credibility determinations and may accept or reject the testimony of any witness. State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000). A reviewing court may not impinge on the fact finder’s discretion unless it is necessary to guarantee the fundamental due process of law. Id. The appellate court does not assess credibility or reweigh the 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. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, writ denied, 02-3090 (La.11/14/03), 858 So.2d 422.

Thus, in order for Defendant’s convictions to be upheld, the record must establish that the state proved beyond a reasonable doubt all of the essential elements of aggravated flight from an officer. La. R.S. 14:108.1 defines aggravated flight from an officer as follows:

C. Aggravated flight from an officer is the intentional refusal of a driver to bring a vehicle to a stop or of an operator to bring a watercraft to a stop, under circumstances wherein human life is endangered, knowing that he has been given a visual and audible signal to stop by a police officer when the officer has reasonable grounds to believe that the driver or operator has committed an offense. The signal shall be given by an emergency light and a siren on a vehicle marked as a police vehicle or marked police watercraft.
D. Circumstances wherein human life is endangered shall be any situation where the operator of the fleeing vehicle or | nwatercraft commits at least two of the following acts:
(1) Leaves the roadway or forces another vehicle to leave the roadway.
(2) Collides with another vehicle or watercraft.
(3) Exceeds the posted speed limit by at least twenty-five miles per hour.
(4) Travels against the flow of traffic or in the case of watercraft, operates the watercraft in a careless manner in violation of R.S. 34:851.4 or in a reckless manner in violation of R.S. 14:99.
(5) Fails to obey a stop sign or a yield sign.
(6) Fails to obey a traffic control signal device.

Evidence of flight, concealment and attempt to avoid apprehension is relevant in the charge of aggravated flight from an officer. State v. Ashley, 33,880 (La.App.2d Cir.10/4/00), 768 So.2d 817, writ denied, 00-3122 (La.12/8/00), 776 So.2d 466; State v. Davies, 350 So.2d 586 (La.1977). Flight indicates consciousness of guilt and is a circumstance from which a jury may infer guilt. Ashley, supra, citing State v. Brown, 618 So.2d 629 (La.App. 2d Cir.1993), writ denied, 624 So.2d 1222 (La.1993).

In the case sub judice, Defendant intentionally refused to remain at the site of the initial stop and, instead, drove away as the police officers approached his vehicle. The officers all testified that Defendant was given visual and audible signals, i.e., lights and sirens, by the police units to stop his vehicle before the investigatory stop and during the pursuit. Human life was endangered during the pursuit of Defendant because he failed to stop at several stop lights in downtown Shreveport at approximately 2:20 in the afternoon on a busy work day with both pedestrian and automobile traffic. |inThe officers testified that they were concerned about other drivers in downtown Shreveport and feared that the pursuit of Defendant would lead to accidents due to Defendant’s speed and failure to stop at stop lights. The officers had reasonable grounds to believe that Defendant committed an offense because the vehicle he was driving matched the description of a vehicle that was involved in several recent burglaries, i.e., a tan-colored minivan with a missing front right hubcap. Therefore, it was reasonable for the officers to believe that the driver of this vehicle committed the offense of burglary. Furthermore, Defendant’s flight from the officers indicates his consciousness of guilt and provided the officers with reasonable grounds to believe Defendant committed an offense.

Viewing the evidence in the light most favorable to the prosecution, a reasonable trier of fact could have found that the state presented sufficient evidence at trial to establish the essential elements of aggravated flight from an officer. We find, therefore, that this assignment of error lacks merit.

Excessive Sentence

In his second assignment of error, Defendant argues that his sentence is unconstitutionally excessive. He contends that the crime of aggravated flight from an officer carries a maximum sentence of two years’ imprisonment; and, therefore, the sentence of life imprisonment is grossly out of proportion to the severity of the crime.

InThe state argues that the trial court lawfully sentenced Defendant to mandatory life imprisonment pursuant to the habitual offender statute. The state contends that Defendant was properly adjudicated a fourth felony habitual offender because he had previously been convicted of attempted simple robbery, possession with intent to distribute hydrocodone and possession of cocaine. The state explains that attempted simple robbery and aggravated flight from an officer are both crimes of violence according to La. R.S. 14:2 and that possession with intent to distribute hydrocodone is punishable by up to 10 years at hard labor. The state also notes that Defendant has been arrested approximately 45 times for various drug offenses, crimes of violence and probation and parole violations.

La. R.S. 15:529.1(A)(4)(b) sets forth a mandatory sentence of life imprisonment for certain fourth felony habitual offenders, stating:

If the fourth felony and two of the prior felonies are felonies defined as a crime of violence under R.S. 14:2(B) ... or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or of any other crime punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

When reviewing an excessive sentence claim, the appellate court uses a two-prong test. First, the trial record must demonstrate that the trial court complied with La. C. Cr. P. art. 894.1. Second, the appellate court must determine if the sentence is constitutionally excessive. A sentence is excessive and violates La. Const. Art. 1, § 20, if it is grossly out of proportion to the severity of the crime or is nothing more than the purposeless and needless imposition of pain and suffering. State v. Bonanno, 884 So.2d 355 (La.1980). A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. Id. A trial court has wide discretion in imposing a sentence within the statutory limits, and a sentence should not be set aside absent a showing of abuse of discretion. State v. Square, 433 So.2d 104 (La.1983); State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430.

Compliance with La. C. Cr. P. art. 894.1 is not mandated where the sentence is statutorily required. State v. Gay, 48,832 (La.App.2d Cir.2/26/14), 136 So.3d 919; State v. Wilson, 37,555 (La.App.2d Cir.11/6/03), 859 So.2d 957, writ denied, 03-3232 (La.6/4/04), 876 So.2d 73. The Louisiana Supreme Court has repeatedly held that mandatory life sentences for habitual offenders are generally not unconstitutional. Gay, supra. To rebut the presumption that the mandatory sentence is constitutional, the defendant must clearly and convincingly show that because of unusual or exceptional circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense and the circumstances of the case. Id.; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 07-1209 (La.12/14/07), 970 So.2d 529, citing State v. Dorthey, 623 So.2d 1276 (La.1993), and State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672.

| ,sDefendant has not demonstrated that the mandatory sentence of life imprisonment is excessive considering the facts of this case. He has numerous previous felony convictions, including crimes of violence and drug offenses. Based on Defendant’s criminal record, he does not merit a downward departure from the mandatory sentence, and the statutorily imposed life sentence is constitutional.

Therefore, this assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the conviction and sentence of Defendant, Bobby Charles Byrd, are affirmed.

AFFIRMED.

      . On cross-examination, Cpl. Garrett clarified that she stopped the minivan because Det. Gordon requested that the minivan be stopped, not because she observed the driver commit a traffic offense. In fact, she testified that Defendant had not committed a traffic offense at the time she stopped his vehicle.

      . She testified that the pursuit was recorded by a camera in her unit that was activated when she turned on the unit’s lights and sirens. At this point in her testimony, the jury viewed the video recorded from Cpl. Garrett’s police unit.

      . Cpl. Garrett explained that the video indicates when she applied the brakes of the unit and the speed at which she drove.

      . On cross examination, Cpl. Garrett clarified that she did not use a radar gun to record Defendant’s speed.

      . Traffic Street is located in Bossier Parish.

      . This residential area is located in Bossier Parish.

      . She noted that Cpl. Garrett was driving approximately 45 mph at this time and that Defendant was driving faster than Cpl. Garrett.

      . At the close of the state's case, Defendant moved for a dismissal of the indictment and/or a directed verdict on his behalf, arguing that tire state had not proven all of the elements of the crime, specifically the element that the officer must have reasonable grounds to believe that the driver has committed an offense. The trial court denied these motions.

      . The trial court explained:
      Based on the criminal history of the defendant, the Court so sentences the defendant to serve 25 years at hard labor without benefit of probation or suspension of sentence based on the evidence adduced including the prior criminal history of attempted simple robbery from 2002, possession with intent to distribute CDS Schedule III, to wit, hydrocodone, and three counts of distribution of Schedule II, to wit, or namely, cocaine, the possession from August of ... 2006, along with the aggravated flight from an officer, the instant case for which the jury found the defendant guilty. The three counts of distribution I counted as one, as those three guilty pleas were entered at the same time.

      . The trial court explained its reasons for deviating from the mandatory sentence of life imprisonment, stating:
      The reasons for the Court deviating would be because based on the criminal history that has been — to which Mr. Byrd has been adjudicated today, one is a crime of violence, but it was an attempted simple robbery. The others are drug offenses. Although they are numerous, for purposes of the habitual offender law, the three counts of distribution are counted as one for purposes of the fact that they were pled to at the same time and can’t be considered individually as far as the habitual offender law is concerned.

      . The trial court noted:
      The Court at that time found that the-under those circumstances, the mandatory sentence of life imprisonment was unconstitutionally excessive and gave the 25 years.
      However, upon the Court’s review of the statute, the Court makes a finding that the defendant has not shown that he’s exceptional and should be sentenced to one sentence that is less than the mandatory life sentence. The fact that no such showing has been made, at this time the Court re-sentences Mr. Byrd and grants the state's motion and so sentences Mr. Byrd to a mandatory life sentence at hard labor.

      . Testimony offered by the officers also suggests that Defendant was speeding, but they did not testify as to his exact speed. Further, the officers testified that Defendant did not stop at stop signs on Traffic Street, which is located in Bossier Parish. We note that Defendant’s failure to stop occurred in downtown Shreveport, Caddo Parish, and that the pursuit of Defendant began in Caddo Parish and continued across the Texas Street bridge into Bossier Parish.

      . Defendant does not challenge on appeal the validity of the initial investigatory stop. Prior to trial, Defendant filed a motion to suppress and/or quash, arguing that the officers "had no probable cause to initiate a stop of the vehicle” operated by Defendant. The trial court denied this motion, and Defendant does not appeal the trial court’s ruling on this motion.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Troy A. GRIFFIN, Appellant.
    No. 49,146-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2014.
    Louisiana Appellate Project, by: Paula C. Marx, for Appellant.
    Richard Z. Johnson, District Attorney, Ron C. Stamps, Assistant District Attorney, for Appellee.

      Before BROWN, DREW and MOORE, JJ.
   MOORE, J.

| jAfter serving 24 years of a life sentence for a second degree murder conviction in 1988, Troy Griffin (“defendant” herein), filed a pro se motion to correct an illegal sentence, based upon the United States Supreme Court ruling in Miller v. Alabama, — U.S. —, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). Because Griffin was 17 years old when he committed the offense, after a hearing, the district court amended the sentence to life imprisonment with the benefit of parole. The defendant filed this appeal, arguing that the district court should have appointed experts and taken evidence to particularize his sentence, which should not exceed the maximum penalty for the highest lesser included offense of second degree murder. For the following reasons, we hold that the amended sentence imposed is an illegal sentence. Accordingly, we amend the sentence to life imprisonment without the benefit of parole, probation, or suspension of sentence, as mandated by La. R.S. 14:30.1. As amended, we affirm.

FACTS

Griffin’s conviction arises from the August 1987 death of two-year-old LaDarrett Gossett. Griffin and the child’s mother fought over the child in a “tug-of-war fashion.” During that struggle, the child struck his head on a windowsill. Griffin admitted to police that he struck the child in the rib area, causing him to fall down, but he did not think the child was seriously hurt. He also admitted that the child was moaning after being put |2to bed. The child died during the night or in the early morning hours. An autopsy report revealed fractured ribs and, according to the prosecutor, the child’s internal organs were “jostled around pretty severely.”

Griffin was charged by indictment with first degree murder. On February 12, 1988, Griffin entered an Alford plea of guilty to second degree murder. At sentencing, Griffin informed the court that he wished to withdraw his guilty plea and enter a plea of not guilty. The district court denied the motion without conducting any investigation into the reasons for his request. An appeal followed. This court set aside the sentence, and the matter was remanded for a hearing on the motion to withdraw. Following an eviden-tiary hearing on January 5, 1989, the motion to withdraw guilty plea was again denied. Griffin received the mandatory sentence of life imprisonment without the benefit of parole, probation, or suspension of sentence.

Now at age 43, after serving 24 years of his life sentence, Griffin filed a pro se motion to correct illegal sentence on June 18, 2013, based upon the U.S. Supreme Court ruling in Miller v. Alabama, supra. Griffin argued that he should be re-sentenced under the penalty of the most serious lesser included offense authorized by law at the time the offense was committed because a mandatory sentence of life imprisonment without the benefit of parole was deemed unconstitutional in Miller, supra. Griffin also filed a motion for appointment of a sociologist and a psychologist, arguing that expert testimony regarding his youth, growth, and development was necessary for the consideration of mitigating circumstances. Counsel was | ^appointed to represent the defendant.

On September 4, 2013, the motion to correct illegal sentence and motion for appointment of sociologist and psychologist came before the court for hearing. During that hearing, the state stipulated that Griffin was 17 years old at the time of the offense and that Miller, supra, would have some application to this matter. Counsel for Griffin noted that, even if Griffin’s sentence was amended to include the benefit of parole, the statutes governing the eligibility for parole do not allow for parole in convictions for first or second degree murder. Hence, he argued, an amendment to Griffin’s sentence to include the benefit of parole would be meaningless in practice.

The district court concluded that the only sentencing option, other than life with the benefit of parole, would be imprisonment for a specified number of years, which the law does not allow. The motion to correct illegal sentence was granted, and Griffin’s original sentence was amended to life imprisonment with the benefit of parole. Griffin filed this appeal.

Through its two assignments of error, the defense argues that the district court failed to particularize the sentence and denied the defendant the opportunity to present factors by which to evaluate the sentence imposed. It contends that a new re-sentencing hearing is warranted.

By his first assignment of error, the defendant alleges that the sentencing court erred by simply amending the life sentence to allow parole eligibility without particularizing his sentence based on developmental and other mitigation factors that are specific to juveniles, and thus it failed to comply with the mandate of Miller, supra. The defense argues that the |4court failed to consider Griffin’s age, social history, impetuosity, and other mitigating factors.

In his second assignment, the defendant contends that the trial court erred in not providing the defendant with expert assistance, as he requested in his pro se motion, who could present evidence at the re-sentencing hearing concerning the specific concerns raised in Miller, supra, which was imperative for the trial court to have a sufficient basis for individualizing the re-sentencing and to show why merely restoring the right to parole consideration does not satisfy the Miller requirements. The diminished culpability of juvenile offenders is a complicated matter that is not easily understood by a lay person, he argues. As such, the juvenile offender’s access to individual examinations is crucial to his ability to present evidence necessary to form his individualized sentence. In this case, the defendant sought and was denied access to individual examinations.

The defendant further argues that adding the possibility of parole to his life sentence is meaningless, since it only grants the right to apply for parole. He contends that the mere access to the parole board does not comport with the holding in Miller, supra. Thus, the trial court’s amendment of an unconstitutional original sentence was unsuccessful because Griffin’s current sentence fails to account for mitigating qualities of youth and is the functional equivalent of the prior sentence.

The state did not object to the amended sentence and argues that the court of appeal should affirm the sentence imposed by the district court, i.e., life imprisonment with the possibility of parole. While Miller, supra, did | snot establish a categorical prohibition against life imprisonment without the possibility of parole for juvenile offenders, the state asserts that, in light of the legislative enactment of La. C. Cr. P. art. 878.1 (see discussion below), the district court afforded the defendant the only possible remedy allowed by law — life with the possibility of parole. Any other sentence would be a usurpation of legislative powers to determine sentencing guidelines. The state argues the district court complied with Miller’s requirements when it considered the defendant’s age prior to amending the sentence, and it amended his sentence to allow for the possibility of parole.

DISCUSSION

For those offenders convicted of second degree murder in Louisiana, La. R.S. 14:30.1 mandates a sentence of life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. However, as noted above, in 2012, the U.S. Supreme Court, in Miller v. Alabama, supra, held that a state’s statutory sentencing scheme that mandates life imprisonment without parole for those offenders under the age of 18 years at the time they committed a homicide offense violates the Eighth Amendment prohibition of “cruel and unusual punishments.” Miller v. Alabama, 182 S.Ct. at 2460. The Miller Court did not prohibit life imprisonment -without parole for juveniles. Instead, it required that the statutory sentencing scheme authorize a sentencing court to consider an offender’s youth and attendant characteristics as mitigating circumstances before deciding whether to impose the harshest penalty for juveniles who have committed a homicide offense. State v. Simmons, 11-1810 (La.10/12/12),6 99 So.3d 28 (per curiam).

In 2013, in response to Miller v. Alabama, supra, the Louisiana Legislature enacted La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4(E)(1).

La. C. Cr. P. art. 878.1 provides:

A. In any case where an offender is to be sentenced to life imprisonment for a conviction of first degree murder (R.S. 14:30) or second degree murder (R.S. 14:30.1) where the offender was under the age of eighteen years at the time of the commission of the offense, a hearing shall be conducted prior to sentencing to determine whether the sentence shall be imposed with or without parole eligibility pursuant to the provisions of R.S. 15:574.4(E).
B. At the hearing, the prosecution and defense shall be allowed to introduce any aggravating and mitigating evidence that is relevant to the charged offense or the character of the offender, including but not limited to the facts and circumstances of the crime, the criminal history of the offender, the offender’s level of family support, social history, and such other factors as the court may deem relevant. Sentences imposed without parole eligibility should normally be reserved for the worst offenders and the worst cases.

La. R.S. 15:574.4(E)(1) provides, in pertinent part:

E. (1) Notwithstanding any provision of law to the contrary, any person serving a sentence of life imprisonment for a conviction of first degree murder (R.S. 14:30) or second degree murder (R.S. 14:30.1) who was under the age of eighteen years at the time of the commission of the offense shall be eligible for parole consideration pursuant to the provisions of this Subsection if a judicial determination has been made that the person is entitled to parole eligibility pursuant to Code of Criminal Procedure Article 878.1 and all of the following conditions have been met:
(a) The offender has served thirty-five years of the sentence imposed.
(b) The offender has not committed any disciplinary offenses in the twelve consecutive months prior to the parole eligibility date.
|7(c) The offender has completed the mandatory minimum of one hundred hours of prerelease programming in accordance with R.S. 15:827.1.
(d) The offender has completed substance abuse treatment as applicable.
(e) The offender has obtained a GED certification, unless the offender has previously obtained a high school diploma or is deemed by a certified educator as being incapable of obtaining a GED certification due to a learning disability. If the offender is deemed incapable of obtaining a GED certification, the offender shall complete at least one of the following:
(i) A literacy program.
(ii) An adult basic education program.
(iii) A job skills training program.
(f) The offender has obtained a low-risk level designation determined by a validated risk assessment instrument approved by the secretary of the Department of Public Safety and Corrections.
(g) The offender has completed a reentry program to be determined by the Department of Public Safety and Corrections.

However, in 2013, the Louisiana Supreme Court held in State v. Tate, 12-2763 (La.11/5/13), 130 So.3d 829, a ease that is factually similar to this case, that Miller v. Alabama, supra, cannot be retroactively applied to those defendants whose underlying convictions and sentences are, and have been, final. In other words, Miller does not apply to collateral review of a sentence. Further, the Tate court also held that the newly-enacted legislation, which codifies Miller in Louisiana, La. C. Cr. P. art. 878.1 and R.S. 15:574.4(E)(1), applies only prospectively. The supreme court stated in pertinent part:

| sIn conclusion, we find, under the Teague analysis, Miller sets forth a new rule of criminal constitutional procedure, which is neither a substantive nor a watershed rule implicative of the fundamental fairness and accuracy of the criminal proceeding. Accordingly, we find the Miller rule is not subject to retroactive application on collateral review. We likewise find, under its plain and unambiguous language, 2013 La. Acts 239 applies prospectively only. Accordingly, we reverse the judgment of the Court of Appeal and reinstate the judgment of the District Court in its entirety.

State v. Tate, 2012-2763 (La.11/5/13), at *12,130 So.3d at 838 .

In this case, defendant seeks review of his sentence of life imprisonment with parole imposed after a Miller hearing on September 4, 2013. Based on the supreme court’s recent pronouncement in Tate, supra, which is the law of Louisiana on this issue, we find that defendant’s sentence of life imprisonment with eligibility for parole is illegally lenient.

This court has permissive authority to correct an illegally lenient sentence under La. C. Cr. P. art. 882. Ordinarily, when the defendant alone has appealed and the state has not sought independent review of the sentence, this court has traditionally abstained from exercising this power. State v. Hall, 43,125 (La.App. 2 Cir. 6/4/08), 986 So.2d 863. This rule exists to avoid a chilling effect on the exercise of a defendant’s right to appeal. State v. Jackson, 452 So.2d 682 (La.1984); State v. Fraser, 484 So.2d 122 (La.1986); State v. Anderson, 33,630 (La.App. 2 Cir. 6/21/00, 764 So.2d 179). However, as we noted in State v. Anderson, supra, when the defendant designates the error which renders the sentence illegally lenient, the appellate court may correct the error, since the error is no longer considered as only an error patent. Accordingly, we amend the defendant’s current |9sentence to life imprisonment at hard labor, without the benefit of parole, probation, or suspension of sentence as mandated by La. R.S. 14:30.1 and affirm, as amended.

SENTENCE AMENDED, AND, AS AMENDED, AFFIRMED.

      . In Miller, the U.S. Supreme Court held that "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders,” finding instead that the sentencing court must first hold a hearing to consider mitigating factors, such as the defendant’s youth, before imposing this severe penalty. Miller, 132 S.Ct. at 2469.

      . See, Acts 2013, No. 239, § 2, eff. August 1, 2013.

      . Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).


author: LOLLEY, J.

text:
    Ronald Wayne SHIVELY, Plaintiff-Appellant v. Delloyd BRUNSON, Jr., Dewayne Higgs, Kerry Paige, William Larry Peevy, Leonard Iles, Norman Vicknair, Donald Ray Boyett, Billy Boyer, Alvin Vines and Rex Higgs, Defendants-Appellees.
    No. 49,157-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2014.
    Rehearing Denied Aug. 7, 2014.

      Bobby J. Culpepper, Jonesboro, for Appellant.
    Vilar & Elliott, LLC, Alexandria, by Mark Felipe Vilar, Aaron L. Green, for Appellees.
    Before STEWART, LOLLEY and PITMAN, JJ.
   LOLLEY, J.

| ;The plaintiff, Ronald Wayne Shively, appeals a judgment by the Eighth Judicial District Court, Parish of Winn, State of Louisiana, dismissing his claims with prejudice against the defendants, Delloyd Brunson, Jr., Dewayne Higgs, Kerry Paige, William Larry Peevy, Leonard lies, Norman Vicknair, Donald Ray Boyett, Billy Boyer, Alvin Vines, and Rex Higgs (the “defendants”). For the following reasons, we affirm the trial court’s judgment.

Facts

Ronald Wayne Shively filed an action in quo warranto against the defendants. According to Shively, the defendants “claim” to be the board of directors of the Dodson Road Hunting Club, Inc. (the “hunting club”), a Louisiana nonprofit corporation domiciled in Winn Parish, Louisiana. Shively requested that a writ of quo warranto be issued by the trial court ordering the defendants to show by what authority they held the position as directors of the hunting club. Shively argued that the defendants have usurped the power of the hunting club and do not have authority to act as directors. Specifically, he questioned amendments to the hunting club’s articles of incorporation made in June 1994 and May 1996, and he requested the trial court to forbid the defendants from exercising any power in connection with the hunting club and declare an election for new directors.

|2The trial court set a hearing date of September 30, 2013, on Shively’s action. The defendants answered and also responded by filing dilatory exceptions of vagueness and nonconformity of the petition and peremptory exceptions of no right of action and no cause of action. Notably, the defendants did not file a peremptory exception of prescription.

The record reflects that at a pretrial conference on the date of the scheduled hearing, the trial court was advised by counsel of the applicability of La. R.S. 12:208. Based on the statute, the trial court determined that the actions by the hunting club that Shively was complaining of had occurred many years prior (in the 1990s) — in excess of one year of the filing of his petition — and his claims were prescribed. Thus, Shively’s claims were dismissed with prejudice against the defendants, and his appeal ensued.

Discussion

On appeal, Shively argues generally that the trial court erred in dismissing his claims based on La. R.S. 12:208. Specifically, he argues that the statute refers to “an act of a corporation,” when in fact, his claims are in regard to the acts of the directors. We agree with the trial court that La. R.S. 12:208 is applicable and Shively’s claims were properly dismissed, however, not precisely as stated by the trial court in its judgment.

Here, the trial court considered La. R.S. 12:208, which states as follows, in pertinent part:

A. Invalidity of an act of a corporation, or of a conveyance or transfer of movable or immovable property to or by a corporation, by reason of the fact that the corporation was without capacity or power to perform such act or to make or receive such conveyance or transfer, may be asserted only:
|3(1) In an action by a member of the corporation to set aside such act, conveyance or transfer, brought within one year after the act was done or the conveyance or transfer was consummated, which time limit shall not be subject to suspension on any ground or interruption on any ground other than timely suit....

Initially, we note that pursuant to La. R.S. 12:237(A), “[a] corporation may amend its articles in compliance with any method stipulated in its articles.” (Emphasis added). Considering that a corporation is a juridical entity, such actions as amendments to articles can only be taken by the directors and officers of the corporation—the management arms of a corporation. La. R.S. 12:224 and 12:225. Although Shively argues that La. R.S. 12:208 is inapplicable in this case because the amendments were acts of the directors and not of the hunting club, a Louisiana nonprofit corporation, his argument is misplaced. In 1994 and 1996, amendments to articles were made by the hunting club, a corporation acting through its board of directors. Thus, the statute is applicable.

Problematic in this case is that the trial court dismissed Shively’s claims based on prescription. Although the trial court noted that under La. R.S. 12:208 Shively’s claim had prescribed, the record does not reflect that an exception of prescription was ever filed by the defendants. Louisiana C.C.P. art. 927 requires that an exception of prescription must be brought by a party and “shall be specially pleaded.” The peremptory exception may be pleaded at any stage of the proceeding in the trial court prior to a submission of the case for a decision. La. C.C.P. art. 928(B). The trial court stated on the record that it had been “notified of the existence of [the statute]”; however, there is nothing in the record regarding prescription of |4Shively’s claims, other than that statement. Therefore, it does not appear that an exception of prescription had actually been brought and “specially pleaded” by the defendants. Shively does not raise the issue on appeal, although he did raise the argument at the trial court that the defendants had failed to bring the peremptory exception of prescription. Obviously, Shively’s claims are prescribed. Nonetheless, the trial court could not dismiss Shively’s claims based on prescription, because no such exception had been filed by the defendants.

However, Shively’s claims against the defendants (in their capacity as directors of a corporation) cannot survive for another reason apart from prescription, but also pursuant to La. R.S. 12:208. The defendants actually filed a peremptory exception of no right of action, claiming initially that Shively has no right of relief because he has “no justiciable interest in this matter.” Clearly, under La. R.S. 12:208, Shively does not have a right of action to claim the invalidity of a corporate act, because he is not a member of the hunting club. The statute is clear that to attack the validity of a nonprofit corporation’s act, one must be a member of the corporation. Shively makes no allegation that he is a member of the hunting club, nor did he present any evidence at the hearing on the exception proving that he indeed had a right of action. In fact, it is not entirely clear from this record what association Shively has with the hunting club. This fact was confirmed at the oral argument on appeal. As a result, Shively’s claims against the defendants were properly dismissed pursuant to La. R.S. 12:208.

| ^Conclusion

For the foregoing reasons, the judgment of the trial court dismissing with prejudice the claims of Ronald Wayne Shively is affirmed. Appellant is to bear all costs of this appeal.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, STEWART, LOLLEY and PITMAN, JJ.

Rehearing denied.

      . Pursuant to La. C.C.P. art. 3901, “Quo war-ranto is a writ directing an individual to show by what authority he claims or holds public office, or office in a corporation, or directing a corporation to show by what authority it exercises certain powers. Its purpose is to prevent usurpation of office or of powers.”


text:
    Dr. Donald R. WILLIAMS, Solomon Williams, Sr. and Londra Williams, Jr., individually and on behalf of their Deceased Father, Londura Williams, Sr., Plaintiff-Appellants v. Dr. William D. THOMPSON, Defendant-Appellee.
    No. 49,158-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2014.

      Alicia Johnson Butler, New Iberia, for Appellants.
    Elmer G. Noah, II, Monroe, for Appel-lee.
    Before WILLIAMS, MOORE and LOLLEY, JJ.
   MOORE, J.

_JjThe claimants, Dr. Donald R. Williams, Solomon Williams Sr. and Londura Williams Jr., individually and on behalf of their father, Londura Williams Sr., appeal a judgment sustaining exceptions of improper service and of prescription, and dismissing their medical malpractice claim against Dr. William D. Thompson. For the reasons expressed, we affirm.

The elder Mr. Williams sought medical treatment from Dr. Thompson, a physician in Rayville, Louisiana, on various occasions between July 2005 and August 2010. In early August 2010, Dr. Thompson diagnosed an irregular prostate gland and referred Mr. Williams to a urologist in Monroe; however, before the patient could make this appointment, he died on August 19, 2010. The claimants felt that Dr. Thompson had rendered substandard and inappropriate care.

The claimants filed a request for medical review panel (“MRP”) on August 4, 2011. The MRP rendered an opinion finding that Dr. Thompson did not deviate from the appropriate standard of care. The opinion was dated October 16, 2012, and received by Donald Williams, one of the claimants, via certified mail on November 5, 2012. Under La. R.S. 40:1299.47 A(2)(a), the claimants then had 90 days, or until February 4, 2013, to file suit.

The claimants filed their initial petition on January 23, 2013, in the Fourth Judicial District Court, Ouachita Parish, and requested service on the attorney, Elmer Noah, who represented Dr. Thompson before the MRP, and 12not on Dr. Thompson personally. Notably, Ouachita Parish is neither Dr. Thompson’s domicile nor where the alleged malpractice occurred. Through Mr. Noah, Dr. Thompson filed various exceptions, urging in essence that his domicile and all alleged acts of malpractice were in Richland Parish, the Fifth Judicial District Court. By joint motion, the parties dismissed the Ouachita Parish suit on August 20, 2013.

Meanwhile, on May 9, 2013, the claimants filed the instant suit against Dr. Thompson in the Fifth JDC, Richland Parish, again requesting service on “Dr. William D. Thompson / Through his attorney of record / Elmer G. Noah, II,” and service was effected. Through Mr. Noah, Dr. Thompson filed declinatory and peremptory exceptions, citing La. C.C. art. 3462.

He argued that the timely suit in the Fourth JDC, resulting in service on the attorney only, did not interrupt the prescription of R.S. 40:1299.47 in the Fifth JDC case, so the latter was untimely.

After a hearing in August 2013, the district court sustained Dr. Thompson’s exceptions and dismissed the suit with prejudice. The claimants have appealed, raising one assignment of error.

The claimants contend that the court erred in granting Dr. Thompson’s declina-tory exceptions of insufficiency of citation and insufficiency of service and his peremptory exception of prescription. They argue that an action filed in an improper venue interrupts the prescriptive period. They concede that Art. 3462 interrupts prescription “only as to a defendant served by process within the prescriptive period.” However, they | ^contend that “even if process is defective and subject to exception, it interrupts prescription if it is sufficient to inform the persons served of the legal demands made upon them.” Breaux v. Vicknair, 507 So.2d 1242 (La.1987); Conner v. Continental Southern Lines Inc., 294 So.2d 485 (La.1974). They show that the Fourth JDC petition was served on Dr. Thompson’s attorney, Mr. Noah, within the 90 days, and argue that such an acceptance of service and waiver of citation by an attorney on behalf of the client is effective and binding on the client, on a theory of agency. In support they cite Doe v. Delta Women’s Clinic of Baton Rouge, 2009-1776 (LaApp. 1 Cir. 4/30/10), 37 So.3d 1076, writ denied, 2010-1238 (La.9/17/10), 45 So.3d 1055; Foster v. Foster, 2010-0353 (La.App. 1 Cir. 6/11/10), 2010 WL 2342769 (not designated for publication). Finally, they submit that prescriptive statutes must be narrowly construed against prescription and in favor of the claim, Bailey v. Khoury, 2004-0620 (La.1/20/05), 891 So.2d 1268. They seek reversal.

Under the Medical Malpractice Act, the filing of a request for a review of claim suspends the time within which suit must be instituted “until ninety days following notification” to the claimant or his attorney of the issuance of the opinion of the MRP. La. R.S. 40:1299.47 A(2)(a). The claimants received notice, by certified mail, of the MRP’s opinion on November 5, 2012; thus they had until February 4, 2013, to file suit.

The interruption of prescription is regulated by La. C.C. art. 3462, which provides, with emphasis added:

Prescription is interrupted when the owner commences action against the possessor, or when the obligee commences paction against the obligor, in a court of competent jurisdiction and venue. If action is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period.

The record shows that within the time limit of R.S. 40:1299.47 A(2)(a), the claimants filed suit in improper venue and made service on the defendant’s attorney. It does not show that the defendant himself, Dr. Thompson, was served by process within the prescriptive period.

Service of process interrupts the running of prescription even though the process is defective and subject to exception, if it is sufficient to inform the person served of the legal demands made upon him from the described occurrence. Conner v. Continental Southern Lines, supra at 488, and citations therein. The Conner court added:

However, the proper person, as designated by law, must be served before service of process will interrupt the running of prescription. The Code of Civil Procedure does not authorize that a distinction be drawn between the persons to be served for the purpose of interrupting prescription and those to be served for other purposes.

Id,.; Giovingo v. Dunn, 11-781 (La.App. 5 Cir. 3/13/12), 90 So.3d 1098, unit denied, 2012-0831 (La.5/25/12), 90 So.3d 418; Jinright v. Glass, 06-888 (La.App. 5 Cir. 2/27/07), 954 So.2d 174, writ denied, 2007-0570 (La.5/4/07), 956 So.2d 618; Mejia v. Lineas Marítimas de Santo Domingo, 570 So.2d 548 (La.App. 4 Cir.1990). This record clearly shows that the proper person was not served within the prescriptive period.

We have closely considered the contrary authority cited by the claimants. In Doe v. Delta Women’s Clinic, supra, the court did indeed approve of service on the defendant’s attorney of record, rather than on its 1 «¡registered agent for service, as sufficient to satisfy Art. 3462. However, the court then held even with the interruption, the claim was prescribed for failure to file suit within three years under a special statute, La. R.S. 9:2800.12 A. In light of this analysis, we consider the court’s comments about Art. 3462 to be dicta. The unpublished opinion of Foster v. Foster, supra, also found service on the ex-wife’s attorney counted as service on the ex-wife herself, but explicitly premised this on the finding that her previous attorney had executed a waiver of citation and service, under La. C.C.P. art. 1201 B, which had never been revoked. By contrast, the instant record contains no waiver of citation and service. Doe and Foster are therefore factually distinguished from the instant case and simply do not support the claim to deviate from the rule of Art. 3462.

This court is sensitive to the tenet that prescriptive statutes must be narrowly construed against prescription and in favor of the claim. Bailey v. Khoury, supra; Hammond v. St. Francis Med. Ctr., 45,263 (La.App.6/2/10), 38 So.3d 1270; Abels v. General Motors Corp., 39,489 (La. App. 2 Cir. 4/6/05), 899 So.2d 810, writs denied, 2005-1182, 2005-1193 (La.1/27/06), 922 So.2d 542. However, we find no ambiguity in Art. 3462 and no special facts, similar to those presented in Doe and Foster, that would permit us to circumvent the rule. While the claimants’ initial suit in the wrong parish placed Mr. Noah on notice, to equate this with notice on Dr. Thompson would effectively repeal Art. 3462. The district court did not err in 1 (¡sustaining Dr. Thompson’s declinatory and peremptory exceptions.

The judgment is therefore affirmed. Costs are to be paid by the claimants, Dr. Donald R. Williams, Solomon Williams Sr. and Londura Williams Jr.

AFFIRMED.

      . Londura Williams Jr.'s first name is spelled "Londra” in the original petition and the caption of the case.

      . The Ouachita Parish petition is not included in the instant record, but all parties concede it requested service on Mr. Noah, not on Dr. Thompson.

      . Notably, the defendant in Doe was a corporation, a juridical person on which actual service cannot be effected except through an agent.

      . La. C.C.P. art. 1201 B states, "The defendant may expressly waive citation and service thereof by any written waiver made part of the record.”