author: PICKETT, Judge.

text:
    STATE of Louisiana v. Christopher B. MILLER.
    No. 12-1401.
    Court of Appeal of Louisiana, Third Circuit.
    June 5, 2013.

      James David Caldwell, Attorney General, Jeff W. Traylor, Terri R. Lacy, Assistant Attorneys General, Baton Rouge, LA, for Appellee, State of Louisiana.
    Annette Fuller Roach, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Christopher B. Miller.
    Court composed of ULYSSES GENE. THIBODEAUX, Chief Judge, ELIZABETH A. PICKETT, and JOHN E. CONERY, Judges.
   PICKETT, Judge.

FACTS

The following factual basis was recited by the Attorney General in support of the defendant’s guilty plea:

Had this case gone to trial, the State was prepared to prove that on August 15th of 2011, the defendant was in Jefferson Davis Parish and went into the vehicle — he was in the area of East Academy Avenue. He went into the vehicle of Ms. Stacey Naquin who is employed at the district attorney’s office. He went in the vehicle without her permission and took her badge from work without her permission and stole the badge out of her vehicle.

The defendant, Christopher B. Miller, was charged by bill of information filed on March 1, 2012 with seven counts of simple burglary of a vehicle, violations of La.R.S. 14:62. The defendant entered pleas of not guilty on March 26, 2012. Thereafter, on May 30, 2012, the defendant changed his plea from not guilty to guilty of one count of simple burglary. In exchange for the defendant’s guilty plea, the state agreed to dismiss counts two through seven and agreed to dismiss a misdemeanor marijuana charge. The state also agreed not to charge the defendant as a habitual offender. Before accepting the guilty plea, the trial court informed the defendant that because he was entering the guilty plea “straight up,” the trial court was ordering a Pre-Sentence Investigation Report (PSI).

On November 19, 2012, the trial court sentenced the defendant to the maximum sentence of twelve years at hard labor and ordered the sentence to run concurrently with the defendant’s probation revocation in docket number CR-p-122-09.2 The defendant filed a written motion to reconsider sentence on November 26, 2012, alleging that the sentence imposed was excessive. The trial court denied the motion to reconsider without a hearing. On that same date, November 26, 2012, the defendant filed a motion for appeal, which was granted by the trial court.

The defendant is now before this court asserting one assignment of error, the ex-cessiveness of the maximum sentence imposed.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find no errors patent. •

ISSUE RAISED BY THE STATE

The state argues that the defendant is precluded from appealing his sentence because the defendant entered an oral and written waiver of his right to appeal all non-jurisdictional errors when he pled guilty. In a reply brief responding to this argument, the defendant argues that because he entered into an open-ended plea without a sentencing recommendation or sentencing cap, he did not waive his right to appeal his sentence. The defendant is correct.

As cited by the defendant in his reply brief, in State v. Pickens, 98-1443, p. 9 (La.App. 3 Cir. 4/28/99), 741 So.2d 696, 702, writ denied, 99-1577 (La.11/5/99), 751 So.2d 232, and writ denied, 01-2178 (La.4/19/02), 813 So.2d 1081 (citing State v. Simmons, 390 So.2d 504 (La.1980)), this court held that appellate review is required in open-ended pleas “because appeals are favored and there is a ^constitutional right in Louisiana to an appeal.” The holding in Pickens was reiterated in State v. Curtis, 04-111, p. 2 (La.App. 3 Cir. 8/4/04), 880 So.2d 112, 114, writ denied, 04-2277 (La.1/28/05), 893 So.2d 71, where this court held that it was “not automatically precluded from reviewing a sentence unless the plea agreement provides a specific sentence or sentencing cap.” Again, in State v. Colar, 04-1003 (La.App. 3 Cir. 2/2/05), 893 So.2d 152, this court held that Colar was entitled to an appellate review of his sentences since he entered into an open-ended plea. Finally, in State v. Cosey, an unpublished opinion bearing docket number 11-774 (La.App. 3 Cir. 2/1/12), 2012 WL 280682, this court noted that “when a defendant pleads guilty pursuant to a plea bargain, jurisprudence traditionally holds that he is waiving only the right to appeal his conviction.” Id. at p. 5.

In the present case, both the written plea agreement and the plea colloquy establish that the defendant entered into a plea “straight up.” The trial court informed the defendant that it would order a PSI, hold a sentencing hearing, and then decide the sentence it would impose. Thus, the defendant did not plead to an agreed upon sentence or a sentencing cap. The defendant entered into an open-ended plea and is not precluded from appealing his sentence. Accordingly, we will address the defendant’s assigned error.

ASSIGNMENT OF ERROR

In his sole assignment of error, the defendant contends that the sentence he received is excessive. In addition to arguing that the maximum sentence is excessive based on the circumstances of the offense and the background of the offender, the defendant notes that the trial court failed to consider as a mitigating factor La.Code Crim.P. art. 894.1(B)(22), i.e., that his conduct did not cause or threaten serious harm. The trial court’s failure to consider this factor, however, |4was not raised in the defendant’s written motion to reconsider. Although the defendant filed a timely written motion to reconsider sentence, the defendant alleged only that the sentence imposed was excessive. Thus, according to the jurisprudence of this court, the defendant is limited to a bare claim of excessiveness:

Louisiana Code of Criminal Procedure Article 881.1(E) requires a defendant to set forth the specific grounds on which a motion to reconsider may be based. Failure to include a specific ground upon which a motion to reconsider sentence may be based “shall preclude ... the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.” In the present case, although the defendant generally raised the issue of excessiveness in his motion to reconsider sentence, he failed to specifically allege that the trial court failed to consider the factors of La.Code Crim.P. art. 894.1. Accordingly, because that claim was not specifically set forth in his motion to reconsider, it cannot be reviewed in this appeal, ... and our review of the defendant’s sentence is restricted to his bare claim of excessiveness.

State v. Sinegal, 11-1217, p. 32 (La.App. 3 Cir. 8/1/12), 97 So.3d 649, 669-70 (quoting State v. Prejean, 10-480, pp. 2-3 (La.App. 3 Cir. 11/3/10), 50 So.3d 249, 251-52.) (citations omitted). See also State v. Compton, 11-68 (La.App. 3 Cir. 6/1/11), 66 So.3d 619, writ denied, 11-1362 (La.App. 3 Cir. 12/2/11), 76 So.3d 1177; and State v. Jones, 10-786 (La.App. 3 Cir. 4/27/11), 63 So.3d 330, writ denied, 11-1035 (La.11/4/11), 75 So.3d 923.

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

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331....

[E]ven when a sentence falls within the statutory sentencing range, it still may be unconstitutionally excessive, and in determining whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, this court has suggested that several factors may be considered:

[An] appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00); 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, 958.
State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061.

State v. Decuir, 10-1112, pp. 11-13 (La.App. 3 Cir. 4/6/11), 61 So.3d 782, 790-91.

Finally, it is well-settled that “[m]aximum sentences are reserved for the most serious violations and the worst offenders.” State v. Barnes, 12-667, p. 2 (La.App. 3 Cir. 12/5/12), 103 So.3d 1254, 1256 (quoting State v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 255).

IsThe defendant pled guilty to simple burglary of a vehicle, which is punishable by a term of imprisonment not to exceed twelve years and/or a fine of not more than $2,000.00. La.R.S. 14:62. The defendant was sentenced to the maximum term of imprisonment, twelve years at hard labor.

In its reasons for sentencing the defendant, the trial court noted that it had received and carefully studied the PSI. The trial court also noted that the defendant had no juvenile criminal history. However, the trial court noted, the defendant does have an adult criminal history:

On August the 3rd of- 2009, you were found guilty of possession of a legend drug without permission and resisting an officer in Deland, Florida, and you were sentenced to 10 days in the county jail. On April the 28th of 2010, you were sentenced in Jennings, Louisiana under Code of Criminal Procedure article 893 on a charge of simple burglary and placed on three years of supervised probation. However, you admitted to violating the conditions of probation on June 1, 2011 and again on May 30th of 2012, and were sentenced to serve seven years with the Department of Corrections.
In addition, you are currently having [sic] pending charges of firearm by a convicted felon, charged with possession of a firearm by a convicted felon, felony theft, illegal possession of stolen things, simple burglary, and simple burglary of an inhabited dwelling that is either set for trial or under review in Vernon Parish.

The defendant informed the trial court that he was sentenced to 15 years in Vernon Parish.

After noting the defendant’s adult criminal history, the trial court stated for the record that the defendant had been charged with seven counts of simple burglary in the present case but entered a plea to only one count of simple burglary. The trial court also took notice of the fact that the defendant was twenty-one years of age, stating that “[t]his has been taken into consideration in mitigating and this is the maximum sentence.” The trial court stated, however, that there were no 17other mitigating factors. The trial court concluded his reasons for sentencing by stating:

Your involvement in criminal activity demonstrates to this Court that you cannot live in society and that this community must be protected from you. You are certainly in need of correctional treatment in a custodial environment for a significant period of time. Anything less would deprecate from the seriousness of your offense, would not promote respect for the law, and would not provide a just punishment for the crime for which you are charged or you stand convicted. This Court has the obligation to protect the public from you and will do so by removing you from society.

The trial court then sentenced the defendant to the maximum term of imprisonment, twelve years at hard labor, and ordered the sentence to run concurrently with the defendant’s probation revocation sentence in CR-1122-09.

In further support of his excessiveness argument, the defendant contends that his youth justifies the imposition of a lesser sentence because of the chance he will be rehabilitated. The defendant cites a fourth circuit case for the proposition that “[a] youthful offender is generally worthy of a lesser sentence due to his lack of maturity.” In that case, State v. Burns, 97-1558 (La.App. 4 Cir. 11/10/98), 728 So.2d 1013, writ denied, 98-3054 (La.4/1/99), 741 So.2d 1282, the fourth circuit found that the mandatory life sentence for a habitual offender was unconstitutionally excessive in Burns’ ease. As one of the reasons for its finding, the fourth circuit noted that Burns was only twenty-five years old and that its jurisprudence “be-lievfed] that age is a factor to be considered when the statutes impose such harsh penalties.” Id. at 1019. The fourth circuit further stated:

While the State argues that defendant’s accumulation of four felonies by the tender age of twenty-five exemplifies his criminal propensities and complete lack of respect for law and order, we believe he is young enough to be rehabilitated. He indeed deserves serious punishment, including imprisonment, but a sentence less than life would afford him the opportunity to partake in self-improvement classes while incarcerated and the possibility of a productive future. He is also | ayoung enough to overcome his addiction to cocaine, the root of his criminal problems.

Id. Before concluding that the mandatory life sentence was unconstitutionally excessive for Burns, the fourth circuit noted as additional mitigating factors Burns’ supportive father, Burns’ non-violent prior offenses, and Burns’ diminished brain function due to a gunshot wound to the head. Finally, the fourth circuit noted the financial burden that a life sentence imposes on state taxpayers.

Unlike the situation in Bums, the present defendant is not exposed to a mandatory life sentence. Thus, even with the imposition of the maximum sentence, the present defendant will have the chance of rehabilitation. Although this court has recognized a defendant’s youth as a mitigating factor, we have found no cases where this court found that youth alone justifies the imposition of a lesser sentence.

In further support of his excessiveness argument, the defendant cites several cases where a ten-year sentence was imposed in arguably similar circumstances. In State v. Burns, 32,904 (La.App. 2 Cir. 2/1/00), 750 So.2d 505, the second circuit affirmed a ten-year hard labor sentence for the simple burglary of a Salvation Army Surplus Store. The simple burglary constituted Burns’ third felony conviction, with prior convictions for possession of stolen property, attempted simple burglary, and a probation revocation. Burns was also facing an armed robbery charge at the time of sentencing.

In State v. Griffin, 536 So.2d 826 (La.App. 1 Cir.1988), another case cited by the defendant, the first circuit affirmed a ten-year sentence for Griffin’s guilty plea to simple burglary. Griffin kicked in the door of a residence and stole property belonging to the victim. Griffin was an eighteen-year-old first-felony offender with an extensive juvenile record involving theft, criminal damage to ^property, simple burglary, simple assault, possession of stolen things, aggravated battery, and attempted forcible rape. Griffin had also been previously charged with simple robbery and pled guilty to the reduced charge of misdemeanor theft, for which Griffin’s probation was terminated unsatisfactorily.

In State v. Runnels, 12-167 (La.App. 3 Cir. 11/7/12), 101 So.3d 1046, another case cited by the defendant, this court affirmed a ten-year hard-labor sentence for a simple burglary, with three years suspended and four years supervised probation. Runnels broke into the storage shed of a Pizza Hut and stole various cleaning supplies and a shovel. Runnels was a forty-six year old with a prior history including cultivation of marijuana, seven counts of simple robbery, unauthorized use of a moveable, and disturbing the peace by public intoxication.

Additionally, the defendant cites State v. Thompson, 46,473 (La.App. 2 Cir. 9/21/11), 72 So.3d 978, writ denied, 11-2159 (La.3/23/12), 85 So.3d 88, in which the second circuit upheld a ten-year sentence on a fifth-felony offender convicted of simple burglary of a vehicle, and State v. Washington, 11-490 (La.App. 3 Cir. 11/2/11), 76 So.3d 1264, in which this court affirmed a ten-year hard-labor sentence on a second-felony offender convicted of simple burglary of an inhabited dwelling, during which the victim was shot.

Finally, the defendant claims that since the trial court was silent as to whether his twelve-year sentence would run concurrently or consecutively to the fifteen-year sentence imposed in Vernon Parish, the sentences will have to be served consecutively. This fact, the defendant claims, is further reason for this court to find the twelve-year maximum sentence for simple burglary is excessive.

In its brief, the state argues that the sentence is not excessive in light of the defendant’s multiple-offender status and the fairness of the plea agreement. The 11flstate also notes that if the defendant had been convicted of all the simple burglary counts for which he was charged and billed as a habitual offender, he would have faced a sentence of life imprisonment.

We note this court’s recent opinion in a similarly situated case, State v. Robertson, an unpublished opinion bearing docket number 12-889 (La.App. 3 Cir. 2/27/13), 2013 WL 690834. In Robertson, the defendant pled guilty to one count of simple burglary of a vehicle for removing change, movies, and a knife from a vehicle he did not own. Robertson also pled guilty as a second habitual offender. Robertson was sentenced as a second habitual offender to serve fourteen years at hard labor. In Robertson, this court cited two cases in which an eighteen-year sentence and a fifteen-year sentence, respectively, were affirmed for defendants convicted of simple burglary and found to be second habitual offenders. State v. Sanders, 542 So.2d 1134 (La.App. 3 Cir.1989) and State v. Jones, 537 So.2d 848 (La.App. 5 Cir.1989).

In State v. Hearold, 34,183 (La.App. 2 Cir. 1/24/01), 777 So.2d 1269, writ denied, 01-807 (La.11/16/01), 801 So.2d 1076, the second circuit found the maximum twelve-year sentence was appropriate for a defendant who pled guilty to one count of simple burglary. Hearold was also charged with four counts of felony theft, one of which was dismissed pursuant to the plea agreement. Several other unrelated charges of issuing worthless checks and theft were also dismissed. In finding the maximum sentence appropriate, the second circuit noted Hearold’s lengthy juvenile record, his limited employment history, his misbehavior while in jail, and his continued criminal behavior while out on bond.

In State v. Burns, 36,337 (La.App. 2 Cir. 9/18/02), 828 So.2d 147, the second circuit upheld the twelve-year maximum sentence for the simple burglary |uof a vehicle. Burns pled guilty as charged in exchange for the state’s agreement not to file a multiple offender bill. Burns was a thirty-six-year-old with an extensive juvenile record and lengthy adult record, including three prior parole revocations. Considering Burns’ lengthy criminal record, history of parole revocations, and the significant benefit he received from the state’s agreement not to file a multiple offender bill, the second circuit found the twelve-year maximum sentence was not excessive.

Despite the fact that the defendant cites cases wherein a lesser sentence was imposed upon similarly situated defendants, we find the trial court did not abuse its discretion in imposing the maximum sentence in this case. As stated by the first circuit in State v. Hilton, 99-1239, p. 16 (La.App. 1 Cir. 3/31/00), 764 So.2d 1027, 1037, writ denied, 00-958 (La.3/9/01), 786 So.2d 113 (citing State v. Chaney, 537 So.2d 313 (La.App. 1 Cir.1988), writ denied, 541 So.2d 870 (La.1989)), maximum sentences are appropriate for the most serious offenses and the worst offenders or “when the offender poses an unusual risk to the public safety due to his past conduct or repeated criminality.” As noted by the trial court, the present defendant has a criminal history, including the revocation of probation. Furthermore, the defendant received a substantial benefit by pleading guilty — the dismissal of six counts of simple burglary, the dismissal of a misdemeanor marijuana charge, and the state’s agreement not to file a habitual offender bill. If the state had filed a habitual offender bill on the one count of simple burglary to which the defendant pled, the defendant could have been charged as a second-felony offender (exposing him to a possible sentence of six to twenty-four years) or a third-felony offender (exposing him to a possible sentence of eight years to life imprisonment), depending on the status of the charge and/or conviction in Vernon Parish. | ^Additionally, if the defendant had been convicted of all seven counts of simple burglary, the state could have multi-billed him on each count. State v. Shaw, 06-2467 (La.11/27/07), 969 So.2d 1233. Considering these factors, the factors cited by the trial court, a comparison of other cases, and the trial court’s great discretion in imposing a sentence, we find the trial court did not abuse its discretion by imposing the maximum sentence in this case.

CONCLUSION

The defendant’s sentence is affirmed.

AFFIRMED.

      . On February 15, 2012, the trial court granted the District Attorney’s motion for recusal and appointed the Attorney General of the State of Louisiana to act in the place of the District Attorney. (R. p. 11.)

      . Before the trial court took up the defendant’s guilty plea to simple burglary, the defendant admitted that he violated his conditions of probation in another matter (CR-1122-09), and the trial court revoked the defendant’s probation in that matter.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Aaron FRANCOIS.
    No. 12-1438.
    Court of Appeal of Louisiana, Third Circuit.
    June 5, 2013.

      Michael Harson, District Attorney, Patrick D. Magee, Assistant District Attorney, Lafayette, LA, for Appellee, State of Louisiana.
    Edward John Marquet, Attorney at Law, Lafayette, LA, for Defendant/Appellant, Aaron Francois.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, ELIZABETH A. PICKETT, and JOHN E. CONERY, Judges.
   PICKETT, Judge.

| .FACTS

On February 23, 2009, the defendant, Aaron Francois, and Kevin Dee Gildhouse devised a plan to commit a robbery because they needed gas money. They discussed robbing a store, but the defendant had never done anything like that, and he was uncomfortable with the idea. The defendant suggested they instead rob a pizza delivery man or a cab driver, and Gild-house told him to make the call. However, the defendant also said at one point the robbery was Gildhouse’s idea.

As the pair set out, Gildhouse was armed with a Taurus .357 handgun they had stolen from the defendant’s cousin, and the defendant was armed with a Taurus .38 Special a friend had given him. They first went to a Texaco station, where the defendant borrowed a cell phone and began a call to a cab company. He became embarrassed when people saw him, and he ended the call. The men then went to Wal-Mart, where they purchased cigarettes and stole gloves to prevent leaving fingerprints in the planned robbery. The defendant asked a man in the Wal-Mart parking lot if he could use his cell phone, and the man referred him to a nearby pay phone. The defendant called a cab company and asked for a pickup at Gloria’s, a nearby bar. The defendant told Gildhouse he had done his part. He said although he intended to commit the armed robbery, he had no intent to shoot anyone.

The cab company dispatched Wallace Badeaux to pick up the defendant and Gildhouse at Gloria’s. When Mr. Badeaux stopped the cab in the parking lot at | ⅞802 Fox Run, the defendant and Gildhouse pulled their weapons on Mr. Badeaux, and the defendant told him to give them his money. Mr. Badeaux gave them about $35, and they retrieved more money from the cab’s visor, for a total of about $100. Mr. Badeaux asked them not to shoot him and told them he had a child. The defendant thought the robbery was going well, with Mr. Badeaux being totally cooperative. Gildhouse handed the money to the defendant, who put it in his pocket. The defendant then took the key to the vehicle from Mr. Badeaux, who started to cry. The defendant then put his gun in the waistband of his pants. The defendant said before he knew what was happening, Gildhouse got out of the cab and shot Mr. Badeaux in the head.

The defendant and Gildhouse ran from the cab and eventually made their way back to their vehicle, which was parked at Gloria’s. Along the way, the defendant threw the cab’s key into a field. The defendant said he was simply in the wrong place at the wrong time, and there was nothing he could do to prevent the murder. He told law enforcement “that man did not need to be shot at all.”

About a week later, Gildhouse and his girlfriend threw the murder weapon, the .357, into a coulee by the defendant’s apartment. Sergeant Guy Vizena of the Lafayette Parish Sheriffs Office testified he recovered the .357 from a canal on Cameron Street. Police recovered the cab’s key in the field exactly where the defendant told them it would be.

Sergeant Larry Brown of the Lafayette Parish Sheriffs Office testified the defendant and Gildhouse were identified by a tip from the public in late February or early March. The department’s Special Reaction Team (SRT) was called to apprehend the suspects at-the defendant’s apartment on March 1 or 2, 2009. They ^recovered a Taurus .38 Special and six .38 Special bullets from Gildhouse during the subsequent search.

Dr. Joel Carney, stipulated to be an expert in forensic pathology, testified Mr. Badeaux died from a gunshot wound to the neck. The entrance wound was on the back left side of Mr. Badeaux’s neck. Dr. Carney testified the shot was fired “from about six inches out to two to four feet.” The gunshot exited the right cheek at the back portion of the jaw. The bullet, passed through the Cl and C2 vertebrae, causing damage to the spinal cord and the brain stem, and the vertebral artery, cutting it into two segments.

Christopher Harold Henderson testified as a forensic chemist with the Acadiana Crime Lab. Forensic testimony showed the bullet introduced into evidence as Exhibit S-3 was fired from the Taurus .357 Magnum revolver introduced into evidence as Exhibit S-13G. DNA analysis showed the presence of the defendant’s DNA on a left-handed glove, and the defendant could not be excluded as the contributor of DNA found on a jacket recovered as evidence.

On February 23, 2009, a grand jury indicted the defendant and Gildhouse for the first degree murder and armed robbery of Wallace Badeaux, violations of La. R.S. 14:30 and 14:64. Trials of the co-defendants were severed by the trial court’s order of November 9, 2009. On the state’s motion, the trial court amended the indictment on January 20, 2011, to second degree murder, a violation of La.R.S. 14:30.1(A)(2), and robbery while armed with a dangerous weapon, a violation of La.R.S. 14:64.

The defendant’s counsel admitted the armed robbery to the jury in his opening statement at trial, after stating the defendant’s agreement to that admission on the record. On August 15, 2012, the jury found the defendant guilty of second 14degree felony murder and armed robbery. The trial court sentenced the defendant on the murder conviction to mandatory life imprisonment without benefit of parole, probation, or suspension of sentence on September 13, 2012. The defendant appeals, arguing the murder and the underlying felony of armed robbery did not form a continuous transaction sufficient to support a conviction for felony murder.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find there is one error patent. Additionally, the court minutes of sentencing are in need of correction.

The defendant was convicted of second degree murder and armed robbery. As noted above, a life sentence was imposed for second degree murder. In reviewing the record to determine whether a sentence was imposed for the armed robbery conviction, we note that at the close of trial the judge indicated that in light of the jury’s finding that the second degree murder conviction was based on felony murder, she would not impose a sentence for the armed robbery conviction to avoid a double jeopardy violation. Under the particular situation presented in this case, we find there is a double jeopardy violation as error patent and set aside the conviction for armed robbery because “[t]he remedy for a double jeopardy violation for multiple punishments for the same offense is to vacate the conviction and sentence for the less severely punishable offense[.]” State v. Grace, 10-1222, pp. 14-15 (La.App. 3 Cir. 4/6/11), 61 So.3d 812, 823, writ denied, 11-961 (La.10/21/11), 73 So.3d 382 (emphasis added). As noted above, the trial court did not impose a sentence for armed robbery, but the conviction was left intact.

The defendant was originally charged with first degree murder, amended to second degree murder under the felony murder provision. The jury verdict sheet clearly indicates the jury’s second degree murder conviction was based on felony murder as opposed to specific intent. The defendant’s statement to law enforcement admitted in evidence at trial reveals that the shooting occurred during the commission of the armed robbery of Mr. Badeaux. There is no indication that any other felony offense served as the underlying felony for the second degree murder conviction. Accordingly, we hereby vacate the defendant’s conviction for armed robbery.

Next, although the sentencing transcript indicates the court imposed the defendant’s life sentence at hard labor, the court minutes of sentencing do not reflect this. “[Wjhen the minutes and the transcript conflict, the transcript prevails.” State v. Wommack, 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied, 00-2051 (La.9/21/01), 797 So.2d 62. Accordingly, the trial court is instructed to correct the court minutes to reflect that the defendant’s life sentence is to be served at hard labor.

ASSIGNMENT OF ERROR

The defendant claims the evidence failed to establish that the murder and the underlying felony of armed robbery formed part of a continuous transaction without a significant break in the chain of events. The defendant believes his act of obtaining the cab’s ignition key indicates he intended to flee without inflicting further harm to Mr. Badeaux when Gildhouse shot and killed him. The defendant did not testify to this intention at trial or at any other time in the trial court.

16This argument is essentially a claim of insufficiency of the evidence required to convict him. The standard of review in a sufficiency of the evidence claim is “whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged.” State v. Leger, 05-11, p. 91 (La.7/10/06), 936 So.2d 108, 170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676 (La.1984)). The Jackson standard of review is now legislatively embodied in La.Code Crim.P. art. 821. It does not allow the appellate court “to substitute its own appreciation of the evidence for that of the fact-finder.” State v. Pigford, 05-477, p. 6 (La.2/22/06), 922 So.2d 517, 521 (citing State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165; State v. Lubrano, 563 So.2d 847 (La.1990)). The appellate court’s function is not to assess the credibility of witnesses or reweigh the evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.

The factfinder’s role is to weigh the credibility of witnesses. State v. Ryan, 07-504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268. Thus, other than insuring the sufficiency evaluation standard of Jackson, “the appellate court should not second-guess the credibility determination of the trier of fact,” but rather, it should defer to the rational credibility and evidentiary determinations of the jury. Id. at 1270 (quoting State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27). Our supreme court has stated:

However, an appellate court may impinge on the fact finders discretion and its role in determining the credibility of witnesses “only to the extent necessary to guarantee the fundamental due process of law.” State v. Mussall, 523 So.2d 1305, 1310 (La.1988). In determining the sufficiency of the evidence supporting a conviction, |7an appellate court must preserve “ ‘the factfinders role as weigher of the evidence’ by reviewing ‘all of the evidence ... in the light most favorable to the prosecution.’ ” McDaniel v. Brown, 558 U.S. [120], [133], 130 S.Ct. 665, 674, 175 L.Ed.2d 582 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). When so viewed by an appellate court, the relevant question is whether, on the evidence presented at trial, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. Applied in cases relying on circumstantial evidence, ... this fundamental principle of review means that when a jury “reasonably rejects the hypothesis of innocence presented by the defendant ], that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt.” State v. Captville, 448 So.2d 676, 680 (La.1984).

State v. Strother, 09-2357, pp. 10-11 (La.10/22/10), 49 So.3d 372, 378. Murder occurs during the commission of an enumerated felony when “the murder and the felony form a continuous transaction without a significant break of events.” State v. Ramsdell, 09-1510, p. 9 (La.App. 3 Cir. 10/6/10), 47 So.3d 78, 84 (citing State v. Goodley, 01-77 (La.6/21/02), 820 So.2d 478).

The defendant in State v. Cooper, 03-161 (La.App. 3 Cir. 12/23/03), 862 So.2d 512, writ denied, 04-236 (La.6/4/04), 876 So.2d 74, was with the man who actually shot and killed the victim during an armed robbery in which they both participated. The defendant went to the scene with the shooter, did nothing to prevent the shooting, did not act surprised by the shooting, jumped into the victim’s vehicle with the shooter, returned to the shooter’s house with the still-living victim in the vehicle, and accompanied the shooter to a remote location to dispose of the vehicle and the victim. This court affirmed the defendant’s conviction as a principal to second degree murder because the defendant was a participant in the armed robbery in which the victim was killed.

In State v. George, 39,772 (La.App. 2 Cir. 7/1/05), 908 So.2d 79, the defendant attempted to forcibly rape a woman before putting her in the trunk of her |svehicle and driving away. The victim was able to open the trunk, but she fell from the vehicle and died from injuries sustained hitting the roadway. The defendant claimed the victim’s death and the attempted rape were too far apart in time to constitute a continuous transaction. The second circuit found it significant that the defendant never left the victim during the chain of events that culminated in her death. It affirmed the defendant’s conviction for second degree murder.

Here, the defendant’s brief points out the defendant took the cab’s ignition key from Mr. Badeaux prior to the shooting. He contends, “[a]rguably[,] this would have prevented the victim from driving away and notifying the police before the defendant could get away.”

The defendant fails to present any evidence from the record to suggest this is why he took the keys to the cab. He did nothing to try to prevent the murder, and he ran from the scene without attempting to obtain help for the victim. Throughout Defendant’s interview at the time of his arrest, he told of taking the key to the cab and throwing it in a field. He never mentioned any reason for taking the key.

The evidence shows the defendant actively planned and participated in an armed robbery that resulted in the murder of the victim. Mr. Badeaux was murdered within seconds of the armed robbery. The defendant was sitting in the back seat of the vehicle when the fatal shot was fired. He ran from the scene, disposed of the key, and never reported the crime to the authorities. He initially denied any involvement in the crime, claiming he was “clueless” about why he was being questioned. The evidence sufficiently establishes murder during the perpetration of the armed robbery that formed part of a continuous transaction with no significant break in the chain of events, even though the defendant himself may not have been the shooter. The defendant’s argument lacks merit.

| ^CONCLUSION

The defendant’s conviction for armed robbery is vacated and his second degree felony murder conviction is affirmed. The trial court is instructed to correct the court minutes of sentencing to reflect that the defendant’s life sentence is to be served at hard labor.

CONVICTION FOR ARMED ROBBERY VACATED. CONVICTION FOR SECOND DEGREE MURDER AFFIRMED. REMANDED WITH INSTRUCTIONS.

      . The facts of the plan and the actual robbery and shooting are taken from the videotaped law enforcement interview of the defendant, admitted into evidence at trial as Exhibit S-24A and shown to the jury.

      . Because the second degree murder conviction was based on a killing during the commission of a felony, the trial court did not sentence Defendant on the armed robbery conviction. La.R.S. 14:30.1(A)(2).


author: THIBODEAUX, Chief Judge.

text:
    STATE of Louisiana v. Robert James THOMAS.
    No. 12-1458.
    Court of Appeal of Louisiana, Third Circuit.
    June 5, 2013.

      Michael Harson, District Attorney, 15th Judicial District Court, Lafayette, LA, David Michael Smith, Crowley, LA, for Plaintiff/Appellee, State of Louisiana.
    Annette Fuller Roach, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Robert James Thomas.
    Robert James Thomas, Angola, LA, Pro se.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, ELIZABETH A. PICKETT, and JOHN E. CONERY, Judges.
   THIBODEAUX, Chief Judge.

hThe defendant, Robert James Thomas, appeals a jury verdict finding him guilty of second degree murder, and appeals the trial court’s judgment denying him a new trial. We reverse the jury verdict because the trial judge improperly questioned witnesses and grant the defendant a new trial.

I.

ISSUES

We must decide whether the trial court erred in exceeding the scope of proper questioning of witnesses in the presence of the jury.

II.

FACTS AND PROCEDURAL HISTORY

On May 19, 2009, the defendant, Robert James Thomas, allegedly knocked August Carter to the ground with one punch to the jaw and then kicked him twice in the head while he was on the ground. Carter died the following morning of blunt force injury to the head.

Thomas was indicted on December 21, 2011, for the second degree murder of Carter, a violation of La.R.S. 14:30.1. A jury trial found him guilty of second degree murder. On June 14, 2012, Thomas filed a Motion for New Trial asserting that the evidence was contrary to the law and evidence. The trial court denied the motion without a hearing.

Thomas was sentenced on June 19, 2012, to life imprisonment without the benefit of parole, probation, or suspension of sentence. His appeal contends 12that: (1) the evidence was insufficient to sustain the verdict of second degree murder; (2) the trial court erred when it made impermissible comments on the defendant’s guilt or innocence by questioning witnesses during the trial in the presence of the jury without the defendant’s consent; and (3) the defendant’s counsel provided ineffective assistance by failing to submit “material evidence” that would have exonerated the defendant of second degree murder.

We find merit in Thomas’s second assignment of error. On that basis, as fully set forth below, we reverse his conviction and remand the case for a new trial. We pretermit discussion of the two remaining assignments of error.

III.

STANDARD OF REVIEW

If the effect of a question or comment is to permit a reasonable inference that it expresses or implies the judge’s opinion as to the defendant’s innocence or guilt, this constitutes a violation of the defendant’s statutory right to no-comment and thus requires reversal. State v. Green, 231 La. 1058, 93 So.2d 657 (1957).

IV.

LAW AND DISCUSSION

Questioning of Witnesses

Thomas contends that the trial court committed reversible error by asking detailed questions of the State’s three main witnesses as to the specifics of the alleged crime, impermissibly recapitulating the evidence, highlighting facts relevant in the case, and suggesting to the jury the court’s view of the facts. RThomas asserts that this violation of La.Code Crim.P. art. 772 was particularly damaging in his case where the witnesses’ testimony was either vague, inconsistent, or the judge’s question was not previously asked by the prosecution. Thomas further contends that the trial court improperly questioned the witnesses without the parties’ consent in violation of La.Code Evid. art. 614(D). We agree with Thomas on both points.

Article 772 of the Louisiana Code of Criminal Procedure, referred to as the “no-judge-comment rule,” states: “The judge in the presence of the jury shall not comment upon the facts of the case, either by commenting upon or recapitulating the evidence, repeating the testimony of any witness, or giving an opinion as to what has been proved, not proved, or refuted.” See identical prohibition regarding jury charges in La.Code Crim.P. art. 806. The Century-old rule is that a “Cjjudicial comment upon the facts or the evidence in the presence of the jury is a noncorrectable error which must result in mistrial or reversal. [La.Code] Cr.P. [art.] 772[; La. Code] Cr.P. [art.] 806.” State v. Brevelle, 270 So.2d 852, 855 (La.1972) (citing State v. Lonigan, 263 La. 926, 269 So.2d 816 (1972); State v. Iverson, 186 La. 982, 68 So. 98 (1915); State v. Langford, 133 La. 120, 62 So. 597 (1913) (emphasis added)).

In State v. Williams, 375 So.2d 1379 (La.1979), where the trial court extensively questioned a witness, the Louisiana Supreme Court explained the no-judge-comment rule and reversed the conviction on the ground that the questioning constituted improper comments on the evidence:

The no-judge-comment rule is designed to safeguard the role of the jury as the sole judge of the facts on the issue of guilt or innocence. State v. Hodgeson, 305 So.2d 421 (La.1974) and decisions there |4cited. Thus, if the effect of a question or comment is to permit a reasonable inference that it expresses or implies the judge’s opinion as to the defendant’s innocence or guilt, this constitutes a violation of the defendant’s statutory right to no-comment and thus requires reversal. State v. Green, 231 La. 1058, 93 So.2d 657 (1957). Likewise, any comment or question by the judge expressing or implying his opinion with regard to a material issue is reversible. State v. Hodgeson, 305 So.2d 421, 421 (La.1974) (summarizing decisions).
The no-comment rule does not bar a trial judge from asking clarifying questions in the presence of the jury; nevertheless, in the exercise of this power, the judge’s questioning must be cautiously guarded so as not to constitute an implied comment. State v. Nicholas, 359 So.2d 965 (La.1978). The judge may even question a witness as to a material matter which has been omitted, providing he does so in an impartial manner and conducts his exafnination in such a way that he does not indicate his opinion on the merits or any doubt as to the credibility of the witness. State v. Groves, 311 So.2d 230 (La.1975). See, generally, Joseph, Work of the Appellate Courts in 1974-75 Criminal Trial Procedure, 36 La.L.Rev. 605, 624-26 (1976).
However (whatever its wisdom), the legislative imposition of the no-comment rule represents a considered determination that the trial judge’s role is essentially as an impartial umpire in an adversary trial, rather than as an active participant in the development or presentation of evidence. Therefore, as we warned in State v. Wagster, 361 So.2d 849, 856 (La.1978):
“ * * * (Q)uestioning of witnesses in a criminal jury trial by the judge is a practice to be avoided unless deemed indispensible to a fair and impartial trial. A judge should be constantly aware of the basic premise of a criminal trial which calls upon the State, not the judge, to prove the defendant’s guilt beyond a reasonable doubt. It is enough for the judge to impartially and wisely regulate the conduct of the trial without participating in the interrogation of witnesses, a practice fraught with danger of prejudice to the defendant.”

\ State v. Williams, 375 So.2d at 1381-82 (footnote omitted).

Here, the trial judge interjected himself into the prosecution’s case, recapitulating and repeating only certain testimony of three main witnesses for the prosecution, thereby implying his opinion of the evidence and giving it weight at the same time. The trial court first questioned Joseph Lovings, the State’s first witness. The State asked Lovings about his encounter with the defendant, Thomas, on the afternoon of the incident at Joe’s Club, apparently in an attempt to get to the later events at the club. Lovings explained that Thomas, his cousin, was upset and crying about an incident earlier in the day and that Lovings was trying to calm him, but the State had not yet elicited information about what occurred at the club that involved Carter and Thomas. The following colloquy took place:

Q. And why were you talking to him that evening? I’m not understanding. Was he trying to fight or was he in a bad mood or—
MR. HOWIE: (Defense counsel) Your Honor, I’m going to object. It’s a leading question.
THE COURT: Listen, Mr. Lovings, what happened on the night of May 19, 2009 at Joe’s Lounge?
MR. LOVINGS: What happened that day?
THE COURT: Yes. What did you witness?
MR. LOVINGS: Well, I didn’t actually see anything, Your Honor, but I know— I can tell you — I know I didn’t actually see nothing. I know disregard.
THE COURT: What is disregard?
MR. LOVINGS: With Mr. Carter and James.
THE COURT: Who is James?
MR. SMITH: (Prosecutor) It’s Robert James Thomas, Judge.
|fiTHE COURT: Okay. In regards to what? What happened between them?
MR. LOVINGS: Mr. Carter was hit.
THE COURT: Did you see the hit?
MR. LOVINGS: No, sir, I didn’t.
THE COURT: How do you know he was hit?
MR. LOVINGS: I don’t actually know if he — I just turned around the man he was on the ground.
THE COURT: Mr. Carter was on the ground?
MR. LOVINGS: Yes, sir.
THE COURT: Was anybody on top of Mr. Carter?
MR. LOVINGS: I never seen none of that, Your Honor.
THE COURT: Do you know who hit Mr. Carter?
MR. LOVINGS: Never seen none of that, Your Honor.
THE COURT: Well, there’s no question that Mr. Carter was hit and he was on the ground?
MR. LOVINGS: I never seen none of that.
THE COURT: Wait, you said Mr. Carter was hit, right?
MR. LOVINGS: Yes, sir, I seen he was hit but I never seen who hit him.
THE COURT: Right. But you saw Mr. Carter on the ground?
MR. LOVINGS: Yes, sir.
THE COURT: And that’s all you know about this incident?
MR. LOVINGS: That’s it.
THE COURT: You didn’t see who hit Mr. Carter? All right. Anything else, Mr. Smith?

17While some of the above questions may qualify as permissible “clarifying questions,” the remaining questions were more detailed, relevant to the determination of guilt or innocence, and prohibited. See State v. Williams, 875 So.2d 1379.

More specifically, the second time the trial court questioned a witness, Mr. Car-rington was explaining to Mr. Smith, the prosecutor, why he had initially told the investigator that he had seen nothing that happened between Thomas and Carter that night at Joe’s Club:

Q. If you would have told Mr. Poullard that Robert [James] Thomas had [done] it like you’re testifying today, what would have happened to you?
A. Probably would have got in a fight with him [James].
THE COURT: That’s conjecture. Conjecture.
BY MR. SMITH:
Q. What were you afraid of happening to you?
BY MR. CARRINGTON:
A. Getting hurt.
Q. So that’s why you changed your story to Mr. Poullard?
A. Right.
THE COURT: Help me understand something. You’re saying tier, when you say tier, you mean the same cell? Jail cell?
MR. CARRINGTON: Like the same dorm.
THE COURT: Same dorm. Okay. In the jail, though?
MR. CARRINGTON: Right.
THE COURT: Mr. Carrington, I need to know from you on that evening of May 19, 2009, there’s no question in Isyour mind that you saw this defendant hit Mr. August Carter?
MR. CARRINGTON: Right.
THE COURT: And did you see Mr. Carter fall as a result of that hit — of that lick?
MR. CARRINGTON: I want to say he stagger [sic] or — I’m not sure cause I— you know, I left. I don’t know if he fell or he stumbled or—
THE COURT: And there’s no question in your mind that Mr. Ira Smith at the behest or the direction of Mr. Robert Thomas was told to go get August Carter out of the club?
MR. CARRINGTON: Right.
THE COURT: You heard that?
MR. CARRINGTON: Right.
THE COURT: And you were there. All right. Thank you, sir. You’re free to go. Next witness.
MR. HOWIE: Your Honor, I have one more thing as a re-cross from his statement.
THE COURT: No, sir. No, sir. Next witness.

The above colloquy is particularly damaging because it summarizes the testimony for the jury, even isolates it and emphasizes it in a way that suggested the court’s view of the defendant’s guilt. It also implied a strong eye-witness account by Carrington of the defendant’s actions in sending Ira Smith to get Carter so Thomas could ambush him as he exited the bar. No one testified that Carter was lulled into an ambush; and Ira Smith, Carter’s cousin, denied that he was sent to get Carter and denied that he had even seen Thomas that day.

19Mr. Carrington’s whole testimony was not strong, but was extremely tenuous, severely inconsistent, contrary to other evidence, confusing, and sometimes non-sen-sical. This is important because Carring-ton was the only one who testified that he saw Thomas hit Carter, though he told the investigator that he had not seen anything of the fight. At trial, Carrington testified that Carter and Thomas chatted briefly after Carter exited the bar, then Thomas hit Carter on the jaw. A minute later, he testified that the hit was immediate when Carter walked outside. Carrington also testified that Carter did not seem to know the punch was coming, but he probably tried to block it when his hands went up. This begs the question, if a person does not see something coming, how can he at the same time try to block it? Carrington testified that he left after the lick on the jaw; yet he also testified that he left before Ira Smith went inside to get Carter; he also said he could not remember whether the punch to the jaw was before or after Ira Smith went inside to get Carter.

Thus, the trial judge’s comments and implications, by repeating only certain parts of Carrington’s testimony, though the judge may have been attempting clarification, resulted in highlighting and summarizing only certain facts, thereby becoming an active participant in the presentation of the evidence. This constitutes just the kind of error that our legislation prohibits and that our highest court warns against.

The third incident occurred during the State’s redirect examination of the witness Glen Wheeler, who testified that he saw Thomas kick the victim in the face after he was on the ground. Wheeler’s testimony was also inconsistent. He said he could not really see Carter on the ground, but Carter was really knocked unconscious for a while. Carter then got up for a while and left the premises. | inWhen asked whether someone helped Carter off the ground, Wheeler said, “I don’t know. I wasn’t there. I had left.” During cross examination, Mr. Wheeler also admitted that he had previously told the investigator that he had not seen a kick. After the State attempted to rehabilitate Mr. Wheeler’s testimony, the trial judge asked:

THE COURT: Mr. Wheeler, there is no question you saw this gentlemen kicking Mr. Carter?
MR. WHEELER: Yes, sir, kicking him.
THE COURT: And kicking him in the face as you said?
MR. WHEELER: Yes, sir.
THE COURT: No question about that on May 19 of 2009?
MR. WHEELER: But he kick [sic] him, though, but I ain’t — he kicked him, though.
THE COURT: While he was on the ground?
MR. -WHEELER: Yes, sir.
THE COURT: And that happened at Joe’s Club or the Oasis or whatever it’s called?
MR. WHEELER: Yes, sir.
MR. HOWIE [defense counsel]: Your Honor, I — with due respect I would object to the Court asking questions of this witness.
THE COURT: We’ll note your objection for the record.

As indicated, the three witnesses’ testimonies were vague, circuitous, and self-contradictory; two essential witnesses changed their stories from the time they were first interviewed; and they gave barely articulable reasons for their different version of what occurred. In recapitulating this internally inconsistent testimony, the trial judge gave it a definite quality that did not exist; he took on an |n adversarial role in favor of the prosecution; and he expressed or implied his opinion as to Thomas’s innocence or guilt.

Additionally, “In a jury trial, the court may not call or examine a witness, except upon the express consent of all parties, which consent shall not be requested within the hearing of the jury.” La.Code Evid. art. 614(D). Here, neither Thomas nor his counsel gave consent for examination by the trial judge of the State’s witnesses.

Timeliness of Objection

Further, while Thomas did not object the first two times the judge interjected himself to question the prosecution’s witnesses, he did object the third time it occurred. “Objections to the calling of witnesses by the court or to questioning of witnesses by it may be made at the time or at the next available opportunity when the jury is not present.” La.Code Crim.P. art. 614(C). In this case, there was no recess between the testimonies at issue. The State does not address the timeliness of the defendant’s objection. We find that the objection was preserved for this appeal. Moreover, Article 614(C) uses the permissive “may” instead of the mandatory “shall.” In a case such as this which mandates a life sentence, and where the error was so fundamentally unfair and prejudicial to the defendant, no contemporaneous objection was necessary. See State v. Colligan, 95-880 (La.App. 3 Cir. 8/7/96), 679 So.2d 184.

Motion for New Trial

Thomas’s motion for a new trial was denied. Louisiana Code of Civil Procedure Article 1972(1), provides that a new trial shall be granted “[w]hen the verdict or judgment appears clearly contrary to the law and the evidence.” | ^Accordingly, where the trial court’s questions and remarks constituted comments on the facts of the case, contrary to our express law (La.Code Crim.P. art. 772 and La.Code Evid. art. 614) and the jurisprudence of this court and our supreme court, thereby depriving the defendant of his right to a fair trial, we find that he is entitled to a new trial. See State v. Green, 93 So.2d 657.

Y.

CONCLUSION

Based upon the foregoing, we reverse the jury’s guilty verdict and conviction against Robert James Thomas for second degree murder, and we remand the case to the trial court for a new trial.

REVERSED AND REMANDED FOR NEW TRIAL.

CONERY, J., concurs in the result.

      . Ira Smith testified that when he went in the bar, he saw his cousin, August Carter, sitting at the bar drinking a beer; and that "Rachel” came in the bar later and got Carter, and Ira stayed inside and started shooting pool. Ira seemed to indicate that all of this occurred after the fight.


text:
    RON WILLIAMS CONSTRUCTION, INC. v. Kenneth JONES.
    No. 13-113.
    Court of Appeal of Louisiana, Third Circuit.
    June 5, 2013.
    Daniel Frazier Jr., Frazier Law Offices, PLC, Baton Rouge, LA, for Defendani/Ap-pellant, Kenneth Jones.
    David Laine Morgan, Stockwell, Sievert, et al., Lake Charles, LA, for Plaintiff/Ap-pellee, Ron Williams Construction, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, ELIZABETH A. PICKETT, and JOHN E. CONERY, Judges.
   PICKETT, Judge.

| T Kenneth Jones appeals the workers’ compensation judge’s (WCJ) judgment dismissing his claim for benefits against his employer, Ron Williams Construction, Inc. (RWC).

STATEMENT OF THE CASE

Kenneth Jones alleged he injured his lower back while in the course and scope of his employment with Williams on June 20, 2011. RWC paid Jones’ medical bills and workers’ compensation benefits through the trial of this matter. After Zurich American Insurance (Zurich), RWC’s workers’ compensation insurer, investigated the claim, RWC filed a Disputed Claim for Compensation on October 28, 2011. In their claim to the Office of Workers’ Compensation (OWC), RWC alleged that Jones made material misrepresentations regarding his past medical history such that he forfeited his rights to workers’ compensation benefits pursuant to La. R.S. 23:1208 and 23:1208.1. Throughout the claim and pre-trial brief, RWC categorizes Jones’ injury as “alleged,” though there is no indication in the record that they seek termination of benefits because Jones lied about his injury or the circumstances giving rise to the injury.

Following a hearing on July 9, 2012, the WCJ took the matter under advisement. On August 27, 2012, the WCJ issued oral reasons for ruling, wherein he determined that Jones lacked credibility and failed to prove that an accident occurred in the course and scope of his employment. A judgment terminating Jones’ benefits was signed on August 31, 2012. Jones now appeals.

ASSIGNMENTS OF ERROR

Jones asserts two assignments of error:

1. The lower court erred when it ignored the WCA-WC-1008, the Pre-Trial Statements, the trial stipulations of the parties, and rendered a decision contrary to said documents and stipulations on an issue that was not contested and on which no evidence was submitted by either party.

2. The lower court erred in its failure to address the issues presented for adjudication by the parties and in not determining that Appellant made no material misrepresentation in violations of La.R.S. 28:1208 and 1208.1.

DISCUSSION

We find the WCJ erred by reaching an issue not properly before him. In its pretrial statement, Williams states:

The sole issue to be litigated at this time is whether Kenneth Jones made material misrepresentations and/or omissions as contemplated by La.R.S. 23:1208 and 1208.1 such that he shall have forfeited his right to any and all workers compensation benefits under the Act. RWC reserves the right to assert that all of Mr. Jones’ alleged injuries pre-existed his employment with RWC such that RWC is not responsible for any workers compensation benefits under the Act.

While the record before us shows that RWC did not stipulate that Jones sustained a workplace accident or suffered injuries therefrom, it was not the issue presented to the WCJ for adjudication. The testimony and documentary evidence presented at the hearing before the WCJ all concerned the alleged misrepresentations and omissions made by Jones on his Second Injury Fund Questionnaire and to the physician who performed his pre-em-ployment physical.

In his oral reasons for ruling, the WCJ discusses the evidence presented. He finds that Jones lacked credibility, and therefore he must not have been truthful about the accident giving rise to his claim. The WCJ, therefore, found that Jones benefits should be terminated because there was no compensable accident. As a |3result of the WCJ’s ruling, Jones has been denied the opportunity to present evidence supporting his claim. Other than the date and time of the unwitnessed incident, Jones was not even asked about the circumstances giving rise to his alleged injury. We find the trial court erred when he failed to rule on the issues presented at the hearing, i.e., the alleged material misrepresentations of Jones in violation of La.R.S. 23:1208 and 1208.1. The WCJ’s judgment is reversed, and the case is remanded for a proper disposition of the issues before the court and such other issues as may be properly presented by the parties at trial.

CONCLUSION

The judgment of the trial court is reversed and the case remanded for further proceedings consistent with this opinion. Costs of this appeal are assessed to Ron Williams Construction, Inc.

REVERSED AND REMANDED.


author: GENOVESE, Judge.

text:
    STATE of Louisiana v. Jerald C. FOWLER.
    No. 12-1381.
    Court of Appeal of Louisiana, Third Circuit.
    June 5, 2013.
    Edward J. Marquet, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Jerald C. Fowler.
    John F. DeRosier, District Attorney, Fourteenth Judicial District, Carla S. Si-gler, Karen C. McLellan, Assistant District Attorneys, Lake Charles, LA, for Appellee, State of Louisiana.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

liFor the reasons assigned in the companion and consolidated case of State v. Fowler, 12-1380 (La.App. 3 Cir. 6/5/13), 114 So.3d 650, 2013 WL 2420883, Defendant’s sentence for failure to register as a sex offender is amended to delete the provision that it be served without the benefit of parole, probation, or suspension of sentence, and the trial court is instructed to note the amendment on its court minutes. In all other respects, Defendant’s sentence is affirmed.

AFFIRMED AS AMENDED WITH INSTRUCTIONS.