author: McClendon, j.

text:
    Peggy PATTERSON, on Behalf of her Daughter, Shantrell Haggan v. Sheriff Brent ALLAIN (Individually and in his Official Capacities as Sheriff of Iberville Parish), Danny Falcon, David Whittenberg, Antoinette Dominique, Calvin Green (Individually and in their Official Capacities as Deputies for the Iberville Parish Sheriff’s Office) and XYZ Insurance Company.
    No. 2012 CA 1365.
    Court of Appeal of Louisiana, First Circuit.
    April 26, 2013.

      Edmond D. Jordan, Brusly, LA, Elton Heron, Geismar, LA, for Plaintiffs/Appellants, Peggy Patterson, on behalf of her Daughter, Shantrell Haggan.
    Dana K. Larpenteur, Plaquemine, LA, James P. Dore, Amy D. Berret, R. Benn Vincent, Jr., Baton Rouge, LA, for Defendants/Appellees, Sheriff Brent Allain (Individually and In his capacity as Sheriff of Iberville Parish), Danny Falcon, David Whittenberg, Antoinette Dominique, Calvin Green (Individually and in their Official capacities as Deputies For the Iberville Parish Sheriffs Office) and XYZ Insurance Company.
    Before WHIPPLE, C.J., McClendon, and Higginbotham, jj.
   McClendon, j.

| ¡¿Plaintiff, whose daughter committed suicide while detained in an isolation cell of a local jail, sought punitive damages against the jailers pursuant to 42 U.S.C. § 1983. To recover damages under Section 1983, plaintiff was required to establish the defendants acted with “deliberate indifference” to the detainee’s serious medical needs. The trial court concluded that the jailers were not deliberately indifferent to the detainee’s serious medical needs and denied punitive damages. Plaintiff has appealed to seek review of the denial of the punitive damages. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On August 29, 2008, Deputy David Whit-tenberg of the Iberville Parish Sheriffs Office arrested Shantrell Haggan. While Haggan was being transported to the Iber-ville Parish Jail, Haggan, among other comments made to Deputy Whittenberg, threatened suicide, stating that she would hang herself if she was taken to jail. After Deputy Whittenberg arrived at the jail, he relayed the threat of suicide to Deputy Calvin Green, a jailer at the Iberville Parish Jail.

Once they arrived at the jail, Haggan, who was shackled to a bench, exhibited aggressive and combative behavior towards the jailers. Because of her prior threat of suicide and behavior, Deputy Green decided to move Haggan into an isolation cell while he and Deputy Antoinette Dominique located the items necessary to place Haggan under formal suicide watch. Said items included a suicide smock.

Haggan, who was not searched prior to being placed in the isolation cell, was wearing a short skirt with a top that fit tightly around her waist. The top of the blouse overlapped her skirt and the jailers were unaware that Haggan was wearing a belt. Nor was a belt apparent. Deputy Dominique, who had brought Haggan to the restroom before Haggan was placed in the cell, indicated that Haggan “raised her miniskirt and no print in the waist that indicated that she had a belt.... She raised her skirt up and the little top she had on, didn’t indicate a belt buckle or anything on her.”

| sAfter returning to Haggan’s cell 12 to 13 minutes after Haggan had been placed in the isolation cell, Deputy Dominique found Haggan hanging from a pipe in the cell wall. Haggan had used her belt to commit suicide.

Haggan’s mother, Peggy Patterson, instituted a wrongful death action. Plaintiff claimed that Haggan’s suicide was solely and proximately caused by the gross and flagrant recklessness, carelessness and negligence of David Whittenberg, Calvin Green, Antoinette Dominique, and Daniel Falcon. Further, plaintiff alleged that Sheriff Brent Allain failed to properly train Whittenberg, Green, Dominique, and Falcon. Plaintiff, in an amended petition, also alleged that Whittenberg, Green, Dominique, and Falcon were liable for punitive/exemplary damages under 42 U.S.C. § 1983 for acting with deliberate indifference to Haggan’s suicide condition insofar as they left Haggan in a cell unattended with her belt after being on notice of Hag-gan’s suicidal threats.

After a bench trial, the trial court found that Green and Dominique were negligent in placing Haggan in the cell without searching her. The trial court denied plaintiffs punitive damage claim, finding that the defendants did not act with deliberate indifference. The trial court rendered judgment in favor of plaintiff against Dominique, Green, and Sheriff Allain (in his official capacity) in the amount of $300,000.00. Plaintiff appeals the judgment, alleging that the trial court erred in not awarding punitive damages under 42 U.S.C. § 1983.

DISCUSSION

To state a claim under 42 U.S.C § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States and must show that the alleged deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2254-55, 101 L.Ed.2d 40 (1988). Section 1983 imposes liability for violation of rights [¿protected by the Constitution, not for violations of duties arising out of tort law. Baker v. McCollan, 443 U.S. 137, 146, 99 S.Ct. 2689, 61 L.Ed.2d 433.

Deliberate indifference to a prisoner’s serious illness or injury states a cause of action under Section 1983, based on the prisoner’s Eighth Amendment right to be free from cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976). Because Haggan was a pretrial detainee rather than a convicted prisoner, the due process clause of the Fourteenth Amendment, rather than the Eight Amendment, applies. The Fourteenth Amendment right of pretrial detainees, like the Eighth Amendment right of convicted prisoners, requires that government officials not be deliberately indifferent to any serious medical needs of the detainee. See City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244, 103 S.Ct. 2979, 2983, 77 L.Ed.2d 605 (1983).

Deliberate indifference describes a state of mind more blameworthy than negligence. Farmer v. Brennan, 511 U.S. 825, 835, 114 S.Ct. 1970, 1978, 128 L.Ed.2d 811 (1994). Eighth Amendment liability requires “more than ordinary lack of due care for the prisoner’s interests or safety.” Id. Deliberate indifference can be equated with recklessness. Acting or failing to act with deliberate indifference to a substantial risk of harm is equivalent to recklessly disregarding that risk. Id., 511 U.S. at 836, 114 S.Ct. at 1978. To be found liable under the Eighth Amendment for denying humane conditions of confinement, a prison official must know of and disregard an excessive risk to inmate health or safety. Id., 511 U.S. at 837, 114 S.Ct. at 1979. The official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. Id.

In the context of protecting a pretrial detainee from self-inflicted harm, defendants will only be liable under Section 1983 if they “had subjective knowledge of a substantial risk of serious harm to a pretrial detainee but responded with deliberate indifference.” Jacobs v. West Feliciana Sheriff's Dep’t, 228 F.3d 388, 394 (5 th Cir.2000). Although “the law is clearly ^established that jailers must take measures to prevent inmate suicides once they know of the suicide risk, we cannot say that the law is established with any clarity as to what those measures must be.” Jacobs, 228 F.3d at 394-95 (Quoting Hare v. City of Corinth, 135 F.3d 320, 328-29 (5th Cir.1998) quoting Rellergert v. Cape Girardeau County, Mo., 924 F.2d 794, 797 (8th Cir.1991)). It is well-settled, however, “that negligent inaction by a jail officer does not violate the due process rights of a person lawfully held in custody of the State.” Id. (citing Hare v. City of Corinth, 74 F.3d 633, 645 (5th Cir.1996) citing Davidson v. Cannon, 474 U.S. 344, 348, 106 S.Ct. 668, 671, 88 L.Ed.2d 677 (1986)). Accordingly, to be considered deliberately indifferent to a known suicide risk, an officer’s acts must constitute at least more than a mere “oversight.” Id., 228 F.3d at 395. The plaintiffs must establish that the officers were aware of a substantial and significant risk that the pretrial detainee might kill herself, but effectively disregarded it. Id.

Jacobs, which was distinguished by the trial court, involved a pretrial detainee who committed suicide. Prior to her suicide, the sheriff had been advised that Jacobs tried to kill herself immediately following her alleged crime but was unsuccessful because her gun jammed. Jacobs was placed in a “detox” cell and placed on suicide watch. The cell had several “tie-off” points from which a makeshift rope could be suspended and a blind spot that was not visible to jailers from the control room. Another inmate had previously committed suicide in the very same cell by hanging himself with a sheet from one of the tie-off points. On the third day of her detention, a deputy provided the detainee with a sheet. Jacobs utilized this sheet to hang herself from one of the tie-off points in the cell. Approximately forty-five minutes had elapsed from the time that the deputy last checked on Jacobs to the time she was discovered hanging from the light fixture in her cell.

Jacobs’s children filed a Section 1988 action, naming the sheriff and two deputies as defendants. The defendants moved for summary judgment. The district court denied the motion and the Fifth Circuit affirmed the denial as to the 1 (¡sheriff and one of the deputies, finding that there was sufficient evidence in the record for a jury to conclude that the sheriff and deputy acted with deliberate indifference to Jacobs’s known suicidal tendencies. Jacobs, 228 F.3d at 396-98.

With regard to the sheriff, the court found that summary judgment was properly denied insofar as he ratified the decision of keeping Jacobs in the detox cell, which he acknowledged was not advisable due to its tie-off points and his awareness of a prior suicide in that cell, and he ordered his deputies to give Jacobs a blanket and towel, despite knowledge of her suicide risk. Id., 228 F.3d at 395.

As to the deputy who was denied summary judgment, the court noted that the deputy observed Jacobs lying on the bunk in the detox cell several times with a sheet, despite his awareness that a prior suicide had occurred in that cell using a blanket and that suicidal inmates should not be given loose bedding. The deputy did not take the sheet away or check on Jacobs as frequently as he was required. Id., 228 F.3d at 397.

In contrast, in Brown v. Harris, 240 F.3d 383 (4th Cir.2001), the court affirmed summary judgment in favor of a jail supervisor, Ogden, after a detainee, Brown, committed suicide by hanging himself with his shoelaces three days following his arrival at the jail. Brown’s father filed suit against Ogden, alleging that Ogden’s acts violated Section 1983 insofar as Ogden had been instructed that the detainee was suicidal, but failed to place Brown in a paper gown or have him examined by “medical,” which is what Ogden would have ordinarily done with a suicidal detainee. Id., 240 F.3d at 390. Rather, Ogden responded by immediately placing the detainee on “medical watch,” which 17established constant surveillance of Brown’s cell. In affirming the grant of a motion for summary judgment in favor of Ogden, the Fourth Circuit reasoned:

In the end, if we assume that Ogden was told that Brown was suicidal, he simply took less action than he could have, and by his own admission, should have.... That does not, however, either negate the reasonableness of his response or mean that he acted with “deliberate indifference.” At most, Ogden’s failure to take additional precautions was negligent, and not deliberately indifferent, because by placing Brown on constant video surveillance, he simply did not “disregard [] an excessive risk to [Brown’s] health or safety.” Farmer, 511 U.S. at 837, 114 S.Ct. 1970 (emphasis added). Negligence, however, does not give rise to a constitutional claim where the operative standard is “deliberate indifference.” See Grayson v. Peed, 195 F.3d 692, 695 (4th Cir.1999) (“Deliberate indifference is a very high standard — a showing of mere negligence will not meet it.”). As a result, we hold that there is no basis for a reasonable factfinder to conclude that Ogden acted with deliberate indifference to the risk which he knew.

Id., 240 F.3d at 390-91.

Herein, plaintiff contends that the trial court erred in not finding that the conduct of Deputies Green and Dominique constituted “deliberate indifference” to Haggan’s safety and life. Plaintiff avers that it is undisputed that both deputies received actual notice of Haggan’s intent to commit suicide. Moreover, the deputies were aware of the reasonable precautionary measures that the sheriffs office required them to take when confronted with actual notice of suicidal threats by a detainee, including obtaining any personal belongings that could be used by inmates to cause death or great bodily harm. Notwithstanding Haggan’s threats, plaintiff asserts that the deputies failed to take reasonable precautionary measures of removing Haggan’s belt, and other dangerous articles of clothing, before making the conscious decision to leave Haggan completely unattended in a dangerous isolation cell.

Plaintiff notes that Lindsay Hayes, her expert in suicide policy and procedure, opined that Ms. Haggan, given her threat of suicide, should have been treated as a high-suicide risk and placed on constant observation. Plaintiff also notes that defendant’s expert in suicide policy and procedure, George |sArmbruster, Jr., also agreed that Ms. Haggan was a high-suicide risk. Moreover, Mr. Armbruster did not disagree with Mr. Hayes’s opinion that constant observation was warranted. Plaintiff asserts that instead of providing continuous and uninterrupted observation, the deputies recklessly ignored the suicide threats by leaving Ms. Haggan completely unattended in a suicide-prone cell with all of her clothing, including her belt.

It is well settled that an appellate court cannot set aside a trial court’s findings of fact in the absence of manifest error or unless those findings are clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Plaintiff asserts, however, that the trial court erroneously applied the “deliberate indifference” standard, apparently requesting that this court conduct a de novo review. We disagree. Nevertheless, even utilizing a de novo review, we conclude that the trial court did not err in reaching its conclusion.

Although deputies Green and Dominique were advised that Haggan threatened suicide while in route to the jail, Haggan never threatened suicide in the presence of the deputies once she arrived at the jail. It was not evident that Haggan was wearing a belt despite her tightly fitted blouse and skirt. Further, both deputies testified that they were unaware that Haggan was in possession of a belt. Green and Dominique, recognizing the seriousness of Hag-gan’s threat of suicide, were in the process of implementing the suicide watch procedures. Due to Haggan’s behavior, however, the decision was made to place her in the isolation cell while the deputies looked for the necessary items to place her on suicide watch, including a suicide smock. The cell had been previously used for people who were intoxicated and who were threatening to harm themselves. No suicide had ever occurred in the isolation cell and no suicide had ever taken Rplace at the jail. Moreover, Haggan was left unobserved for 12-13 minutes. Cf. Jacobs, wherein the sheriff and deputy were aware of a prior suicide in the cell and the inmate was provided with a sheet and left unobserved for 45 minutes.

Clearly, Green and Dominique, by their own admission, were negligent in failing to frisk Haggan and remove the belt before placing Haggan in the isolation cell. The deputies’ negligence, however, is insufficient to constitute deliberate indifference. Their actions in, among other things, attempting to locate a suicide smock to formally put Haggan on suicide watch reflects that the deputies did not simply “[disregard] an excessive risk to [Haggan’s] health or safety.” Farmer, 511 U.S. at 837, 114 S.Ct. at 1979. Accordingly, even utilizing a de novo standard of review, we conclude that the evidence does not establish that defendants’ conduct constituted “deliberate indifference.” Plaintiffs assignments of error are without merit.

CONCLUSION

For the foregoing reasons, the trial court’s January 4, 2012 judgment is affirmed. Costs of this appeal are assessed to plaintiff, Peggy Patterson.

AFFIRMED.

      . Daniel Falcon was the assistant warden at the Iberville Parish Jail. On the morning of the incident, the jailers called him at home seeking authorization to place Ms. Haggan in the isolation cell.

      . The trial court dismissed, with prejudice, plaintiffs claims against Sheriff Allain, individually, Falcon, and Whittenberg. Plaintiff has not sought review of any of these dismissals on appeal.

      . It is unclear whether the sheet was in lieu of or in addition to the blanket and towel ordered by the sheriff.

      . By contrast, the deputy in whose favor summary judgment was granted, although he was aware that Jacobs was a suicide risk, did not make the decision to place her in the detox cell, had nothing to do with the order that Jacobs be given a blanket or towel, and had no knowledge of the prior suicide in that cell. Jacobs, 228 F.3d at 398. Although he did not check on Jacobs every fifteen minutes as required by the sheriff’s unwritten policy, the court found that such negligence was insufficient to support a finding of deliberate indifference. Id.

      .Although the detainee's cell was under constant surveillance, the officer responsible for monitoring the detainee's cell, as well as 27 others, by way of small video screens did not notice that the detainee had hung himself until after the “code” was called by someone else.

      . With regard to questions of law, appellate review is simply a review of whether the trial court was legally correct or legally incorrect. Boyd v. Boyd, 2010-1369 (La.App. 1 Cir. 2/11/11), 57 So.3d 1169, 1174. A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731, 735. Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. Id. When such a prejudicial error of law skews the trial court's finding of a material issue of fact and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo. Id.


source: Caselaw Access Project

author: THERIOT, J.

license: Public Domain

text:
    Alex T. BANKS v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, James LeBlanc and Linda Ramsey.
    No. 2012 CA 1722.
    Court of Appeal of Louisiana, First Circuit.
    April 26, 2013.

      ' Alex T. Banks, Rayville, LA, Plaintiff/Appellant Pro Se.
    William L. Kline, Baton Rouge, LA, for Defendant/Appellee Louisiana Department of Public Safety and Corrections, James M. LeBlanc, Secretary.
    Before GUIDRY, CRAIN, and THERIOT, JJ.
   THERIOT, J.

_JjAlex T. Banks, an inmate in the custody of the Louisiana Department of Public Safety and Corrections (“DPSC”), appeals the judgment of the Nineteenth Judicial District Court affirming DPSC’s final administrative decision denying the relief Banks requested through an administrative remedy procedure (“ARP”). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Banks was convicted on March 19, 1992, of first degree robbery and armed robbery. He was sentenced to twenty (20) years at hard labor and adjudicated a habitual offender. Shortly after his sentence was imposed, DPSC approved Banks to receive “good time” calculation of his release date at the rate of thirty (30) days for every 30 days served in actual custody in lieu of incentive wages, pursuant to 1991 La. Acts, No. 138, § 1 (“Act 138”). Accordingly, Banks was released from prison in May of 2001 under supervision of parole, ten years after he was initially incarcerated for his offenses.

Banks remained under the supervision of parole for approximately four and a half years, until 2005, when he violated his parole and was rearrested. Banks was recommitted to the custody of DPSC to serve out the remainder of his sentence. After returning to prison, he received his master prison record in 2006, which stated he was to remain under Act 138, potentially reducing his remaining ten years to five years.

In 2007, DPSC amended Banks’s master prison record to reflect that he was ineligible for good time under Act 138 due to his habitual offender Rstatus and that he would have to serve out all of his remaining ten years in prison.

On October 27, 2010, Banks filed his first ARP, claiming he should receive credit for his parole time pursuant to 2010 La. Acts, No. 792, § 1 (“Act 792”) which allows for credit for time served for good behavior while on parole. This ARP was denied due to Banks’s parole revocation in 2006 coming before the effective date of Act 792 in 2010. On April 5, 2011, the sentencing court advised Banks that he was illegally released on parole since his habitual offender status should have prevented him from receiving good time. Banks then filed another ARP on April 18, 2011, claiming that since he was erroneously released from prison, he should receive credit for his parole time and that by having to serve another ten years in prison, his actual sentence is being illegally extended.

Banks did not receive an immediate answer to his ARP. He wrote a letter to DPSC on May 31, 2011, inquiring into the status of his ARP, but again received no answer. His family called DPSC on June 10, 2011 to make an inquiry into the ARP’s status, and they received a reply from DPSC that the ARP would not be answered since he was asking for the same parole credit for which he was previously denied as being ineligible. Banks then filed a petition for judicial review with the 19th JDC of the denial on June 28, 2011.

The commissioner of the 19th JDC recommended to the court that DPSC was not erroneous in its release of Banks, because at the time he was released, DPSC interpreted the provisions of La. R.S. 15:571.3(B) to say that a habitual offender would be ineligible for good time if his predicate offense hwas an enumerated offense listed in the statute. Since Banks’s predicate offense was not an enumerated offense, the commissioner determined DPSC acted in good faith when it released Banks based on its interpretation of La. R.S. 15.571.3(B) at the time. The state attorney general subsequently issued an opinion regarding the interpretation of the aforementioned statute, reflecting the decision rendered in Lonzell Richards v. Louisiana Department of Corrections, et al., DPSC docket number 523455 of the 19th JDC, changing the interpretation to deny good time eligibility to an offender whose instant or predicate offense was one of the enumerated offenses. As Banks’s instant offenses of armed robbery and first degree robbery were enumerated, he had been ineligible for good time when he was released on parole. When Banks re-entered custody after violating his parole, DPSC amended his status according to the new interpretation of La. R.S, 15:571.3(B) and made him ineligible for good time on the remainder of his sentence. The 19th JDC adopted the commissioner’s recommendation and rendered judgment in conformity therewith, from which Banks filed this appeal.

STANDARD OF REVIEW

Inmates aggrieved by a decision rendered by DPSC may seek judicial review pursuant to La. R.S. 15:1177. The standard of review is set forth in La. R.S. 15:1177(A)(9), as follows:

The court may reverse or modify the decision only if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(a) In violation of constitutional or statutory provisions.
(b) In excess of the statutory authority of the agency.
(c) Made upon unlawful procedure.
(d) Affected by other error of law.
(e) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
|fi(f) Manifestly erroneous in view of the reliable, probative and substantial evidence on the whole record. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by firsthand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.
See also Victorian v. Stalder, 1999-2260, p. 5-6 (La.App. 1 Cir. 7/14/00), 770 So.2d 382, 384-385.

DISCUSSION

While the ARP of October 27, 2010, and the ARP of April 18, 2011, both asked for the same remedy of credit for time served on parole, Banks utilized a different argument for each. In the first ARP, Banks claimed entitlement to the credit under Act 792, under which DPSC ruled he was not eligible. We agree. Banks’s parole violation of 2006 predates the Act’s date of effectiveness in 2010. In Banks’s second ARP, he argued that he should receive credit for his parole time due to being erroneously released from prison and illegally placed on parole.

Banks cites Jackson v. Stalder, 1999-2240 (La.App. 1 Cir. 11/3/00), 772 So.2d 380, writ denied, 2000-3494 (La.10/12/01), 799 So.2d 496, as legal support for his argument. The doctrine of credit for time at liberty requires a two-part analysis: first, the court must determine whether the erroneous release of the inmate was the result of simple or mere negligence on the part of the state; and second, the court must determine whether there is any proof that the delay in the execution of the sentence can be attributed to the inmate’s fault. Id. at 383-384.

In Jackson, the inmate was released due to a miscommunication between Angola State Prison and the DeSoto Parish Sheriffs Office. Id. at 384. This court determined that the inmate’s erroneous release was an act of simple or mere negligence. Id. With the first part of the doctrine satisfied, [ Rthis court moved to the second part. While the inmate alleged that he attempted to alert prison officials that he had been erroneously released, he had also admitted he had left the state of Louisiana within weeks of his release and eventually was convicted for another crime in the state of Texas, paroled, and convicted again, all while living under a false name. Id. The actions of the inmate clearly made it difficult for Louisiana officials to locate him once the error was discovered, and the length of the inmate’s time away from Angola was largely due to his own illegal and deceptive acts. Id. at 385. Thus, this court found that the inmate was not entitled to credit for his time at liberty due to his erroneous release. Id.

In the instant case, the commissioner of the 19th JDC determined that Banks’s release was not erroneous since DPSC released him according to La. R.S. 15:571.3(B), as it was interpreted at the time. There is no proof in the record that any prison officials or DPSC officials were either simply or grossly negligent in releasing Banks. There was no miscommu-nication of any kind, as found in Jackson. Both DPSC and the prison acted in a manner and according to an interpretation of the rules they believed were correct.

Prison officials cannot be held liable for errors resulting from reasonable acts and applications of the law. See Vincent v. State Through Dept. of Corrections, 468 So.2d 1329, 1333 (La.App. 1 Cir.1985), writ denied, 472 So.2d 34 (La.1985). At the time of Banks’s release, DPSC interpreted Act 138 and La. R.S. 15:571.3 to allow the granting of good time to habitual offenders who did not have certain enumerated crimes as predicate offenses. Following that interpretation, Banks was released. Upon Banks’s 2006 arrest, parole violation, and recommitment to prison, that interpretation had changed — not arbitrarily, but pursuant to an opinion issued by the state attorney general. The interpretation of the statute was |7changed to prevent habitual offenders from receiving good time if either their instant or predicate offenses were enumerated. Following that interpretation of the law, DPSC was reasonable and correct to deny Banks good time credit for time he served while on parole. DPSC did not act negligently in releasing Banks since their acts and interpretation of the law at the time of his release was reasonable. Since the first requirement of Jackson is not satisfied by DPSC’s conduct, an analysis under the second part is not necessary. Banks is not entitled to receive good time credit while he was released.

Even if DPSC had been correct to release Banks on parole, notwithstanding the interpretation of La. R.S. 15:571.3(B), Banks still would have forfeited his accrued good time through his parole violation. An inmate who has been returned to the custody of DPSC because of a violation of the terms of his parole shall forfeit all good time earned on that portion of the sentence served prior to the granting of parole. La. R.S. 15:571.4(B)(2). Banks would have forfeited his good time credit which afforded his release in 2001, and he would be made to serve his full 20 years at hard labor.

CONCLUSION

Banks never absconded or engaged in any deceptive acts to subvert any attempts by DPSC to find him and return him to prison, and likewise DPSC did not actively search for Banks to bring him back to prison. Both parties believed Banks was legally under parole supervision, which continued until Banks violated the conditions of his parole. It is by his own action of violating parole that the error of his release was realized and his good time credit revoked. The same result could have occurred had he been on parole legally. We find no error on the part of DPSC that rises to the Rlevel of negligence or misconduct contemplated in Jackson. We also find DPSC’s actions to be reasonable and not arbitrary or capricious. Banks is therefore not entitled to any credit under Act 138 or any other act or statute for the granting of time credit while under the supervision of parole.

DECREE

The ruling of the 19th JDC affirming DPSC’s decision to deny Banks’s ARP is affirmed. All costs in this appeal are assessed to the appellant, Alex T. Banks.

AFFIRMED.

GUIDRY, J., concurs in result.

      . Prior to the enactment of 1995 La. Acts, No. 1099, § 1 ("Act 1099”) on January 1, 1997, which amended La. R.S 15:571.3 to require that persons convicted of crimes enumerated under La. R.S. 14.2(B) serve a minimum eighty-five percent of their sentence, persons convicted of violent crimes were eligible for "good time” pursuant to Act 138, which became effective January 1, 1992. Banks’s convictions, which occurred in March of 1992, therefore are governed by Act 138.

      . Act 792 is now incorporated into La. R.S. 15:571.5(0 and 15:574.9(E).

      . La. R.S. 15:571.3(B) has since been amended and no longer reflects this provision.

      . The change in the interpretation of the statute is based on the state attorney general’s opinion and Lonzell Richards v. Louisiana Department of Corrections, et al, 19th JDC No. 523455.


author: McDonald, j.

text:
    STATE of Louisiana v. Jonathan PARKER.
    No. 2012 KA 1550.
    Court of Appeal of Louisiana, First Circuit.
    April 26, 2013.

      Ricky Babin, District Attorney, Donald-sonville, LA, Donald Candell, Assistant District Attorney, Gonzales, LA, for Appel-lee, State of Louisiana.

      Julie C. Tizzard, New Orleans, LA, for Defendant/Appellant, Jonathan Parker.
    Before KUHN, PETTIGREW, and McDonald, jj.
   McDonald, j.

|2The defendant, Jonathan Parker, was charged by bill of information #27572, with one count of indecent behavior with a juvenile (count I), a violation of La. R.S. 14:81(A)(2); and one count of pornography involving juveniles (count II), a violation of La. R.S. 14:81.1, and initially pled not guilty, on both counts. Additionally, he was charged by bill of information # 27573, with one count of computer-aided solicitation of a minor (count I), a violation of La. R.S. 14:81.3; and one count of extortion (count II), a violation of La. R.S. 14:66(3). Thereafter, he withdrew his initial pleas and pled guilty to all four counts. He subsequently moved to withdraw his guilty pleas, but the motion was denied. As to bill # 27572, the defendant was sentenced to seven years at hard labor on count 1, and ten years at hard labor without the benefit of parole, probation, or suspension of sentence on count II. As to bill # 27573, he was sentences to ten years at hard labor without benefit of parole, probation, or suspension of sentence on count 1, and fifteen years at hard labor on count II. The trial court ordered all four sentences to be served concurrently. He moved for reconsideration of sentence, but the motion was denied. He now appeals, alleging three assignments of error: (1) the trial court lacked jurisdiction; (2) the trial court erred in denying the motion to withdraw the guilty pleas; and (3) the trial court erred in denying the motion to reconsider sentence. For the following reasons, we affirm the convictions and sentences.

FACTS

Due to the defendant’s guilty pleas, there was no trial, and thus, no trial testimony concerning the offenses. At the Boykin hearing, however, the trial court reiterated the factual bases for the charges set forth by the State, which the defendant |3accepted as accurate. In regard to bill # 27572, count I (indecent behavior with a juvenile), the State set forth that, on or about March 1, 2009, through July 6, 2010, in Ascension Parish, the defendant transmitted electronic textual communication or electronic visual communication depicting lewd or lascivious conduct, text, or images to a person reasonably believed to be under the age of seventeen, and reasonably believed to be at least two years younger than the offender, with the intent of arousing the sexual desires of either the defendant or the victim.

In regard to bill # 27572, count II (pornography involving juveniles), the State set forth that, on or about March 1, 2009, through July 6, 2010, in Ascension Parish, the defendant photographed, videotaped, filmed, or otherwise reproduced visual sexual performances involving a child under the age of seventeen.

In regard to bill # 27573, count I (computer-aided solicitation of a minor), the State set forth that, on or about March 1, 2009, through July 6, 2010, in Ascension Parish, the defendant, being eighteen years of age or older, contacted or communicated through the use of electronic textual communication with a person who had not yet attained the age of eighteen, or a person reasonably believed not to have attained the age of eighteen, for the purpose of, or with intent to persuade, entice, induce, or coerce the person to engage or participate in any sexual conduct or crime of violence, or with intent to engage or participate in sexual conduct in the presence of the person who has not yet attained the age of eighteen, or a person reasonably believed not to have attained the age of eighteen.

In regard to bill # 27573, count II (extortion), the State set forth that the defendant, on or about March 1, 2009, through July 6, 2010, in Ascension Parish, communicated threats to S.M. to expose or impute any deformity or disgrace to her, or to any member of her family or to any person dear to her.

^Additionally, the presentence investigation (PSI) report indicated the victim’s father contacted authorities after the defendant sent explicit photographs of the victim to the victim’s father’s and the victim’s mother’s cell phones. When the victim’s father tried to call the defendant, he claimed to be someone else. Subsequently, however, the defendant admitted that he had sent the photographs.

According to the PSI, the victim indicated she met the defendant on “Frostwire” and “MSN” approximately two years earlier. After approximately five months, the conversations between the defendant and the victim “turned to a sexual manner,” and he began asking for nude photographs of the victim performing sexual acts. The defendant instructed the victim “as to the type, manner and sexual acts that she was to perform.” Subsequently, the victim told the defendant she no longer wanted to take pictures of herself and send them to him. The defendant then blackmailed the victim, threatening to contact her parents unless she sent him “more explicit photography with [the] juvenile performing sex acts with a hairbrush, a banana, a curling iron and with her dog.” The victim sent the defendant approximately S(M0 pornographic images. The defendant sent the photographs to his 14-year-old girlfriend in Wharton, Texas, an adult male in Baton Rouge, and a 14-year-old female in Hammond in an attempt to arrange a sexual encounter. The defendant also sent pornographic pictures of himself and his 14-year-old girlfriend to the victim.

VENUE

In assignment of error number 1, the defendant argues that trial counsel was ineffective for failing to move to quash for improper venue or lack of jurisdiction because “the entirety of the crime[s] in question occurred in Texas wholly outside of Louisiana.”

A claim of ineffective assistance of counsel is generally relegated to post-conviction proceedings, unless the record permits definitive resolution on appeal. State v. Miller, 99-0192 (La.9/6/00), 776 So.2d 396, 411, cert. denied, 531 U.S. 1194, 121 S.Ct. 1196, 149 L.Ed.2d 111 (2001).

A claim of ineffectiveness of counsel is analyzed under the two-pronged test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to establish that his trial attorney was ineffective, the defendant must first show that the attorney’s performance was deficient, which requires a showing that counsel made errors so serious that he was not functioning as counsel guaranteed by the Sixth Amendment. Secondly, the defendant must prove that the deficient performance prejudiced the defense. The defendant must prove actual prejudice before relief will be granted. This element requires a showing that the errors were so serious that the defendant was deprived of a fair trial; it is not sufficient for the defendant to show that the error had some conceivable effect on the outcome of the proceeding. Rather, he must show that, but for the counsel’s unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Further, it is unnecessary to address the issues of both counsel’s performance and prejudice to the defendant if the defendant makes an inadequate showing on one of the components. State v. Serigny, 610 So.2d 857, 859-60 (La.App. 1st Cir.1992), writ denied, 614 So.2d 1263 (La.1993).

Louisiana Constitution Article I, § 16, in pertinent part, provides that every person charged with a crime has the right to an impartial trial “in the parish where the offense or an element of the offense occurred, unless venue is changed in accordance with law.”

Additionally, Louisiana Code of Criminal Procedure art. 611(A) provides:

All trials shall take place in the parish where the offense has been committed, unless the venue is changed. If acts constituting an offense or if the elements of an offense occurred in more than one place, in or out of the parish or state, the offense is deemed to Rhave been committed in any parish in this state in which any such act or element occurred.

Venue is not an essential element of the offense; rather, it is a jurisdictional matter. Objections to venue must be raised by a motion to quash to be ruled on by the court in advance of the trial. At the hearing, the burden is on the State to prove venue by a preponderance of the evidence. La.Code Crim. P. art. 615. State v. Roblow, 623 So.2d 51, 55 (La.App. 1st Cir.1993).

We will address assignment of error number 1, even in the absence of a motion to quash, because it would be necessary to do so as part of the analysis of the ineffective assistance of counsel claim. See State v. Bickham, 98-1839 (La.App. 1st Cir.6/25/99), 739 So.2d 887, 891-92.

In regard to indecent behavior with juveniles, prior to amendment by 2009 La. Acts No. 198, § 1, La. R.S. 14:81 provided;

E. An offense committed under this Section and based upon the transmission and receipt of electronic textual or visual communications may be deemed to have been committed where the communication was originally sent, originally received, or originally viewed by any person.

Regarding to computer-aided solicitation of a minor, La. R.S. 14:81.3 provides:

F. An offense committed under this Section may be deemed to have been committed where the electronic textual communication was originally sent, originally received, or originally viewed by any person, or where any other element of the offense was committed.

Concerning bill # 27572, count 1 (indecent behavior with a juvenile) and bill. # 27573, count I (computer aided solicitation of a minor), the defendant argues “when the ‘receipt’ or ‘viewing1 referred to in the above referenced statute[s] refers to an action taken by someone other than the defendant we would argue that the action can’t be imputed to a defendant outside of the jurisdictional borders of Louisiana for the purpose of obtaining jurisdiction over him.” In regard to bill 17# 27573, count 11 (extortion), the defendant argues, “if said communication was initiated, it was initiated in Texas.”

The place where the effect of the criminal conduct occurs is an important consideration in determining whether the charged criminal acts have substantial contacts with the venue chosen for prosecution. See State v. Hayes, 2001-3193 (La.1/28/03), 837 So.2d 1195, 1199 (per cu-riam); State v. Odom, 2002-2701 (La.App. 1st Cir.6/27/03), 861 So.2d 195, 201, writ denied, 2003-2147 (La.10/17/03), 855 So.2d 766. Although the defendant resided in Texas, his actions victimized a child and her parents in Ascension Parish, and thus, Ascension Parish was a proper venue in this matter. Further, the defendant focuses on certain elements of the offenses while ignoring others. The transmission of a pornographic picture to the victim was not a completed offense until receipt of that picture. Additionally, the defendant’s communication through the use of electronic textual communication with the victim, for the purpose of, or with intent to persuade, induce, or coerce her to engage or participate in sexual conduct, was not a completed offense until receipt of the communication. Similarly, the defendant’s communication of a threat to disgrace the victim to force her to continue to provide naked pictures of herself to him was not a completed offense until receipt of the threat by the victim in Ascension Parish.

In regard to bill # 27572, count II (pornography involving juveniles), the defendant argues “[t]he alleged act[s] of possession, receipt, and distribution of said photos occurred in Texas.” The defendant’s argument ignores the fact that pornography involving juveniles includes the “coercion of any child under the age of seventeen for the purpose of photographing ... or otherwise reproducing visually any sexual performance involving a child under the age of seventeen.” La. R.S. 14:81.1(A)(2) (prior to amendment by 2010 La. Acts No. 516, § 1). The victim was coerced in Ascension Parish, and thus Ascension Parish was a proper venue in this | ^matter. Accordingly, the defendant tails to show deficient performance by defense counsel in failing to move to quash the bills of information for improper venue.

However, even assuming, arguen-do, defense counsel had performed defi-ciently in failing to move to quash, the defendant suffered no prejudice from the deficient performance because this court considered the defendant’s challenges to venue and jurisdiction in connection with the ineffective assistance of counsel claim and found them to be without merit.

This assignment of error is without merit.

MOTION TO WITHDRAW GUILTY PLEA

In assignment of error number 2, the defendant argues the trial court erred in not allowing the guilty pleas to be withdrawn because defense counsel told the defendant he would not receive maximum sentences.

A guilty plea is a conviction and, therefore, should be afforded a great measure of finality. A defendant may not withdraw a guilty plea simply because the sentence imposed is heavier than anticipated. It is not unreasonable for a trial court to deny a defendant the luxury of gambling on his sentence, then being able to withdraw his plea if and when he discovers the sentence is not to his liking. Nevertheless, a guilty plea is constitutionally infirm if a defendant is induced to enter the plea by a plea bargain, or what he justifiably believes to be a plea bargain, and that bargain is not kept. In such cases, the guilty plea was not given freely and knowingly. State v. Roberts, 2001-3030 (La.App. 1st Cir.6/21/02), 822 So.2d 156, 158, writ denied, 2002-2054 (La.3/14/03), 839 So.2d 31.

On July 11, 2011, the defendant, with benefit of counsel, pled guilty to all four charges against him. He indicated that he was twenty-two years old, and had “some college credits.” He stated that defense counsel had explained his rights to him. He |flalso stated that he understood his Boykin rights when the court explained them to him.

In regard to bill # 27572, count I (indecent behavior with a juvenile), the court explained:

[Court]: The range of penalties for this offense is a fíne of not more than $5,000, or imprisonment with or without hard labor for not more than seven years, or both. So you understand the possibility of sentence for that offense?
[Defendant]: Yes, sir.

In regard to bill # 27572, count II (pornography involving juveniles), the court explained:

[Court]: Now, the range of penalties for that offense is a fine of not more than $10,000 and imprisonment for not less than two years nor more than ten years without benefit of parole, probation, or suspension of sentence. So do you understand the possibility of sentence for that offense?
[Defendant]: Yes, sir.

In regard to bill # 27573, count I (computer-aided solicitation of a minor), the court explained:

[Court]: Now, the range of penalties for that offense is a fíne of up to $10,000, imprisonment for not less than five years nor more than ten years without benefit of parole, probation, or suspension of sentence. So do you understand the possibility of sentence for that offense?
[Defendant]: Yes, sir.

In regard to bill # 27573, count II (extortion), the court explained:

MCourt]: Now, the range of penalties of that offense is imprisonment for not less than one nor more than 15 years. So do you understand the possibility of sentence you could receive for that? [Defendant]: Yes, sir.

Additionally, the court advised the defendant:

[Court]: Now, in your case, your attorney and the district attorney have conducted plea bargaining. They agree that there will be no sentencing today, that they’re going to order a pre-sen-tence investigation. A pre-sentence investigation is performed by probation and parole. They can look at you, your background; have any pastor or any member you want to participate in the pre-sentence investigation. The State is also entitled to participate in it and then they’ll send a report to the court with a recommendation as to what they think the sentence should be. That report will be made available to you through your attorney, and the Court will then schedule it for a sentencing. So knowing that that’s the procedure we’re going to follow in this case, do you still want to plead guilty?
[Defendant]: Yes, sin

On February 6, 2012, prior to sentencing, defense counsel moved to withdraw the guilty pleas, claiming they were not knowingly, intelligently, or voluntarily entered. The motion set forth that defense counsel had advised the defendant that, since he was a first-felony offender, and the sentences would likely be served concurrently, he could expect to be sentenced to somewhere between five and ten years total. The motion alleged “[the defendant] never would have pled guilty had he been advised that he could reasonably expect to be sentenced to anything close to 42 years, which is what this court has now proposed.”

At the hearing on the motion, the defendant claimed he had been forced into the plea. Re stated, “I was told a sentence and that’s what I get.” Defense counsel responded that he had not forced anyone into a plea. He stated the defendant was a first-time offender, and the motion was tiled because the court had sent out a “proposed sentencing of 42 years, which means every charge to be run consecutively with each other.” The trial court denied the motion to withdraw, noting “we went over the [Bjoykin very carefully.”

|nThe trial court did not abuse its discretion in denying the motion to withdraw the guilty pleas. The defendant moved to withdraw his guilty pleas because he was afraid he would receive consecutive sentences. There was no plea bargain for non-consecutive sentences. Moreover, no substantial rights of the accused were affected because the defendant received concurrent, rather than consecutive, sentences. See La.Code Crim. P. art. 921.

This assignment of error is without merit.

EXCESSIVE SENTENCES

In assignment of error number 3, the defendant argues that the trial court abused its discretion in denying the motion to reconsider, as the sentences were excessive. He claims that he was only nineteen when he began communicating with the victim using the internet, had no prior felony convictions, and that the victim was “more savvy and sexually experienced [than] the defendant.”

The Louisiana Code of Criminal Procedure sets forth items that must be considered by the trial court before imposing a sentence. La.Code Crim. P. art. 894.1 The trial court need not recite the entire checklist of Article 894.1, but the record must reflect that it adequately considered the criteria. In light of the criteria expressed by Article 894.1, a review for individual exeessiveness should consider the circumstances of the crime and the trial court’s stated reasons and factual basis for its sentencing decision. State v. Hurst, 99-2868 (La.App. 1st Cir.10/3/00), 797 So.2d 75, 83, writ denied, 2000-3053 (La.10/5/01), 798 So.2d 962. Remand for full compliance with Article 894.1 is unnecessary when a sufficient factual basis for the sentence is shown. State v. Harper, 2007-0299 (La.App. 1st Cir.9/5/07), 970 So.2d 592, 602, writ denied, 2007-1921 (La.2/15/08), 976 So.2d 173.

Louisiana Constitution Article 1, § 20 prohibits the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant’s constitutional right against excessive punishment and is subject to | ^appellate review. Generally, a sentence is considered excessive if it is grossly disproportionate to the severity of the crime or is nothing more than the needless imposition of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm to society, it is so disproportionate as to shock one’s sense of justice. A trial judge is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed should not be set aside as excessive in the absence of manifest abuse of discretion. Hurst, 797 So.2d at 83.

Whoever commits the crime of indecent behavior with juveniles (bill # 27572, count 1) shall be fined not more than five thousand dollars, or imprisoned with or without hard labor for not more than seven years, or both, provided that the defendant shall not be eligible to have his conviction set aside or his prosecution dismissed in accordance with the provisions of Code of Criminal Procedure Article 893. La. R.S. 14:81(H)(1). On bill # 27572, count I, the defendant was sentenced to seven years at hard labor.

Whoever commits the crime of pornography involving juveniles (bill #27572, count II) shall be fined not more than ten thousand dollars and be imprisoned at hard labor for not less than two years or more than ten years, -without benefit of parole, probation, or suspension of sentence. La. R.S. 14:81.1(E) (prior to amendment by 2010 La. Acts No. 516, § 1 & 2012 La. Acts No. 446, § 1). On bill # 27572, count II, the defendant was sentenced to ten years at hard labor without benefit of parole, probation, or suspension of sentence,

As applicable here, whoever commits the crime of computerized solicitation of a minor by violating the provisions of La. R.S. 14:81.3 (bill # 27573, count I) shall be fined not more than ten thousand dollars and shall be imprisoned at hard labor for not less than five years nor more than ten years, without benefit of parole, probation, or suspension of sentence. La. R.S. 14:81.3(B)(l)(a). On bill #27573, count I, the 11 .-¡defendant was sentenced to ten years at hard labor without benefit of parole, probation, or suspension of sentence.

Whoever commits the crime of extortion (bill # 27573, count II) shall be imprisoned at hard labor for not less than one nor more than fifteen years. La. R.S 14:66 (prior to amendment by 20.11 La. Acts No. 243, § 1). On bill # 27573, count II, the defendant was sentenced to fifteen years at hard labor.

The court ordered the sentences imposed would run concurrently, “so ten years of the sentence shall be without benefit of parole, probation, or a suspension of sentence.”

In sentencing the defendant, the court noted he was twenty-two years old and officially classified as a first-felony offender. The court indicated it had ordered and received a PSI to assist in making a fair decision on sentencing. The court stated it “considers thoroughly that report that’s received as well as the comments made today and as well as the letters that the Court has received in support of [the defendant].” The court found:

The subject has multiple offenses involving juveniles. Based on this information, the State of Louisiana Department of Public Safety and Corrections is recommending that he receive a sentence of seven years at hard labor for indecent behavior with a juvenile; ten years at hard labor for pornography involving juveniles without benefit of parole, probation, or a suspension of sentence; ten years at hard labor for computer-aided solicitation of a minor without benefit of parole, probation, a suspension of sentence; and fifteen years at hard labor for extortion. Louisiana Department of Public Safety and Corrections recommends that these sentences be run consecutively for a total of 42 years with 20 years of the sentence to be imposed without benefit of parole, probation, or a suspension of sentence.

A thorough review of the record reveals the trial court adequately considered the criteria of Article 894.1 and did not manifestly abuse its discretion in imposing the sentences herein. See La.Code Crim. P. art. 894.1(A)(3), (B)(2) & (B)(21). Further, the sentences imposed were not grossly disproportionate to the severity of the offenses and, thus, were not unconstitutionally excessive. Additionally, | Umaximum sentences were warranted in this matter. Maximum sentences may be imposed only 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 of repeated criminality. State v. Miller, 96-2040 (La.App. 1st Cir.11/7/97), 703 So.2d 698, 701, writ denied, 98-0039 (La.5/15/98), 719 So.2d 459. Defendant’s actions were classified as the most serious offenses because the defendant coerced a minor child into sending him sexually explicit photographs of herself and then proceeded to circulate those photographs to others. He falls into the category of the worst offender because he repeatedly victimized the child and also victimized her family.

This assignment of error is without merit.

CONVICTIONS AND SENTENCES AFFIRMED.

      . The record does not reflect the defendant's initial pleas to these counts.

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

      . The victim's initials, rather then name, are used pursuant to La. R.S. 46:1844(W).

      . In Boykin v. Alabama, the United States Supreme Court reversed five robbety convictions (founded upon guilty pleas because the court accepting the pleas had not ascertained that the defendant voluntarily and intelligently waived his right against compulsory self-incrimination, right to trial by jury, and right to confront his accusers. 395 U.S. at 243-44, 89 S.Ct. 1709. Boykin only requires a defendant be informed of these three rights. Id. "Its scope has not been expanded to include advising the defendant of any other rights which he may have, nor of the possible consequences of his actions.” State v. Smith, 97-2849 (La.App. 1st Cir.11/6/98), 722 So.2d 1048.


author: THERIOT, J. CRAIN, J.,

text:
    STATE of Louisiana v. Kenneth Truman ROBERTS, Jr.
    No. 2012 KA 1555.
    Court of Appeal of Louisiana, First Circuit.
    April 26, 2013.

      Scott M. Perrilloux, District Attorney, Patricia Parker Amos, Assistant District Attorney, Amite, LA, for Plaintiff/Appel-lee, State of Louisiana.
    Powell Miller, New Orleans, LA, for Defendant/Appellant, Kenneth Truman Roberts, Jr.

      Before GUIDRY, CRAIN, and THERIOT, JJ.
   THERIOT, J.

| ¿The defendant, Kenneth Truman Roberts, Jr., was charged by bill of information with one count of simple kidnapping of a person sixty-five years of age or older, violations of La. R.S. 14:45 and La. R.S. 14:50.2, and pled not guilty. Following a jury trial, he was found guilty as charged. He was sentenced to five years at hard labor and to an additional three years at hard labor because the victim was sixty-five years of age or older. He now appeals, challenging the trial court’s denial of his motion for continuance and the court’s questioning of a juror outside of his presence. For the following reasons, we affirm the conviction, amend the sentence, affirm the sentence as amended, and remand with instructions.

FACTS

On August 5, 2011, the victim, Delores Roberts, signed a written statement at her home indicating her son, the defendant, had broken into her bedroom and threatened to “beat [the victim’s] brains in” with her Virgin Mary statue if she did not get out of bed and take $80 out of the ATM. The statement indicated the defendant told the victim not to make a sound or he would “hurt [the victim].” The statement set forth the victim was terrified of the defendant and “afraid [the defendant] really will kill [the victim].” The statement also indicated the defendant had previously threatened to cut the victim “like a pig” and throw her in a ditch if she did not give him money.

At trial, the victim testified, at approximately 10:00 p.m. on the night of the incident, the defendant knocked on her door, woke her up, and told her he needed money. He was upset because “somebody was after him and was going to shoot him.” The victim stated the defendant did not have anything in his hand, did not threaten her, and did not physically harm her. She claimed he drove her to the bank because she did not see well enough to |sdrive at night, and she gave him $80, which he promised to repay. The victim indicated she signed the earlier statement about the incident and went to the Denham Springs Police Department because she was upset that the defendant had woken her up “in the middle of the night.” She denied that the defendant kidnapped her.

Denham Springs Police Department Officer Kevin Prejean also testified at trial. He indicated, on August 5, 2011, the victim “called in a complaint about a robbery,” and came to the police department at 7:24 a.m. Officer Prejean stated the victim was afraid of her son and had “snuck out of the house.” According to Officer Prejean, the victim alleged she had woken up to find the defendant holding a picture frame above her head. He threatened to “smash her skull if she didn’t bring him to the ATM to get eighty dollars.” Officer Preje-an testified the victim had also alleged the defendant threatened to hit her with a statuette of the Virgin Mary. Officer Pre-jean indicated the victim stated she rode with the defendant to the ATM and gave him $80 because “she was scared of him.”

Denham Springs Police Officers subsequently went to the victim’s residence to contact the defendant. He did not respond to knocks on the door or on the windows. Thereafter, the police entered the residence using the victim’s key. They found the defendant hiding in a bedroom closet. They arrested him for aggravated kidnapping and simple robbery and advised him of his Miranda rights.

DENIAL OF CONTINUANCE

In assignment of error number 1, the defendant argues the trial court abused its discretion in refusing to continue the trial after the State notified him it intended to offer fifteen hours of his phone calls.

14At a pretrial conference on April 9, 2012, defense counsel “put on the record” that the State had informed her that morning that the State was in possession of phone records from the jail to the victim, as well as a CD of the records. The defense moved for a continuance, alleging there was also a possible witness “that was there,” and that could testify on behalf of the defendant, and who had not been subpoenaed by prior defense counsel. The State indicated it was not in possession of any transcripts but would let the defense listen to the calls. The court ruled, “Well, you all can listen to them together today, then. And we are going to start the trial at 9:00 o’clock in the morning.”

On April 10, 2012, the day of trial, the defense filed a written motion for a continuance, alleging:

The State produced phone logs accompanied with the recorded conversations between defendant and the victim on late Monday, April 9, 2012. The phone conversations range from December 2011 — April 2012. Defense has not been properly afforded an opportunity to fully examine the documents and recordings. It is believed that the recorded conversations may include exculpatory statements and/or evidence. Further no transcripts of the recordings were provided.

The trial court denied the motion.

Additionally, at the hearing on post-trial motions, the State set forth:

As far as the State only received these tapes late Thursday, the Thursday afternoon before trial. In order to obtain these tapes we have to have a valid phone number to be able to compare it for the jail’s records. I did not receive that until 2:30 or 8 o’clock that Thursday. Quickly was able to call the jail and get them to pull those records. That was Easter weekend. As the court well know[s], court was closed all that weekend. Monday[,] I made the defense aware of that. Court ordered me to provide a copy to the Defense counsel. In fact, that afternoon, the Monday afternoon after we finished with court[,] I played the specific conversations that would be played at trial to Defense counsel, going over which ones.
Furthermore, Judge, these are the Defendant’s own statements. So he was aware that he had been making these Isphone califs] to the victim. It’s his own voice. He knew he was being recorded. And the conversation — the jail let’s [sic] them know these phone conversations are being recorded.
Furthermore, Judge, prior Defense counsel was made aware that the State was looking and investigating into the possibility that this defendant was intimidating the victim in this case, and that we were going to be trying to attempt to pull these jail records. The problem was that we didn’t have the correct phone numbers. The ones that we pulled, there were no recordings. Until we got the home phone number of the victim, which is where all these recordings came from.

The granting or denial of a motion for continuance rests within the sound discretion of the trial court, and its ruling will not be disturbed on appeal absent a showing of a clear abuse of discretion. State v. Albert, 96-1991 (La.App. 1st Cir. 6/20/97), 697 So.2d 1355, 1360.

There was no clear abuse of discretion in the denial of the motion for continu-anee. The trial court instructed the State to provide the defense with the opportunity to listen to the recordings, and the State “played the specific conversations that would be played at trial to Defense counsel[.]” At trial, the defense used the recordings to cross-examine the victim.

This assignment of error is without merit.

IMPROPER QUESTIONING OF JUROR

In assignment of error number 2, the defendant argues the trial court abused its discretion by questioning a juror without defense counsel present and by failing to replace the juror due to partiality.

The State or the defendant may challenge a juror for cause on the ground that the juror is not impartial, whatever the cause of his partiality. La.Code Crim. P. art. 797(2). A challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the prospective juror’s responses as a whole reveal facts from which bias, prejudice, or inability to render judgment according to the law reasonably may |fibe inferred. However, the trial court is vested with broad discretion in ruling on a challenge for cause; its ruling will not be disturbed on appeal absent a showing of an abuse of discretion. State v. Henderson, 99-1945 (La.App. 1st Cir. 6/23/00), 762 So.2d 747, 754, writ denied, 00-2223 (La.6/15/01), 793 So.2d 1235.

A trial judge’s refusal to excuse a prospective juror for cause is not an abuse of his discretion, notwithstanding that the juror has voiced an opinion seemingly prejudicial to the defense, when subsequently, on further inquiry or instruction, he has demonstrated a willingness and ability to decide the case impartially according to the law and the evidence. State v. Taylor, 03-1834 (La.5/25/04), 875 So.2d 58, 63.

During a recess at trial, the bailiff brought juror Ronnie Shirley and the court reporter to the Judge’s chambers. The court stated the bailiff had brought it to the court’s attention that Juror Shirley had advised the bailiff that he knew one of the officers who would be a witness. Juror Shirley indicated he had worked with Detective Prejean at the East Baton Rouge Parish Sheriffs Office. The following colloquy occurred:

[Court]: And the fact that you know him[;] would that cause you to give his testimony any more weight because you know him?
[Shirley]: Well, I would believe him, but I would have to hear and weigh all of the evidence of all the case before I would make any decision about the case, you know.
[Court]: Okay. But what I need to know is because of the fact that you know this officer, would that keep you in any way from being fair and impartial to both parties in this case?
[Shirley]: No, Ma’am. I can be fair, and I’d listen to everything.
[Court]: So, then, what you’re telling me is that during this trial you would listen to all the facts and all the evidence and then make a decision from what those facts are and that you |7could give this defendant a fair trial even though you know this officer?
[Shirley]: Yes, Ma’am. I would.
[Court]: So, you would not give more weight to his testimony because of the fact that you know the officer?
[Shirley]: No. I would not.
[Court]: And you can be fair and impartial to both the State and the defendant?
[Shirley]: I will be fair. Yes, Ma’am.
[Court]: Okay. Now, we have an alternate that can step up and you would not have to stay if you—
[Shirley]: No, Ma’am. I would like to stay, and, yes I will give him a fair trial.
[Court]: Okay. And you are sure?
[Shirley]: Yes, Ma’am.
[Court]: All right. Thank you, Sir.
[Shirley]: Thank you, Ma’am.

Following the recess, in an unrecorded bench conference, the court advised the State and the defendant that it had questioned Juror Shirley. In post-trial pleadings, the defense set forth, “[d]efense counsel immediately urged the right of [the defendant] to be present at any voir dire of a juror.”

The defendant’s right to be present during the questioning of Juror Shirley was violated. See La.Code Crim. P. art. 831(A)(8); State v. Copeland, 419 So.2d 899, 905 (La.1982); State v. Clay, 441 So.2d 1227, 1230-31 (La.App. 1st Cir.1983), writ denied, 446 So.2d 1213 (La.1984). However, the provisions of Article 831 are not absolute. An accused may waive his presence by voluntary absence, La.Code Crim. Proc. art. 832, or by not objecting to his absence from an Article 831(A)(3) hearing, as required under the general contemporaneous objection rule to preserve the | smatter. State v. Broaden, 99-2124 (La.2/21/01), 780 So.2d 349, 360, cert. denied, 534 U.S. 884, 122 S.Ct. 192, 151 L.Ed.2d 135 (2001); La.Code of Crim. Pro. art. 841(A).

The transcript of the proceeding reflects the trial court’s request that counsel approach the bench after she questioned Juror Shirley in chambers. Neither party disputes that the trial court advised counsel at that time of the communication with Juror Shirley. Although the defendant’s trial counsel asserted that he lodged an objection to the improper juror communication during the bench conference, the State does not concede that fact; and the record does not reflect an objection by defense counsel on the record after the completion of the unrecorded bench conference. Because the record does not confirm that defense counsel made a contemporaneous objection as required by Article 841 A, the defendant is precluded from raising this issue on appeal. See, Broaden, 780 So.2d at 360; State v. Howard, 31,807 (La.App. 2 Cir. 8/18/99), 746 So.2d 49, 56, writ denied, 1999-2960 (La.5/5/00), 760 So.2d 1190; State v. Brown, 07-388 (La.App. 3 Cir. 10/3/07), 966 So.2d 1138, 1157 writ denied, 07-2159 (La.3/28/08), 978 So.2d 304 and writ denied, 08-0326 (La.3/28/08), 978 So.2d 312.

This assignment of error is without merit.

REVIEW FOR ERROR

Initially, we note that our review for error is pursuant to La.Code Crim. P. art. 920, which provides that the only matters to be considered on appeal are errors designated in the assignments of error and “error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” La.Code Crim. P. art. 920(2).

Louisiana Revised Statutes 14:50.2, in pertinent part, provides;

The court in its discretion may sentence, in addition to any other penalty provided by law, any person who is convicted of a crime of violence ... as defined in R.S. 14:2(B) ... to an 19additional three years’ imprisonment when the victim of such crime is sixty-five years of age or older at the time the crime is committed.

Simple kidnapping is a crime of violence. La. R.S. 14:2(B)(17).

Pursuant to La. R.S. 14:50.2, the trial court imposed an additional three years at hard labor to the defendant’s sentence because the victim was sixty-five years of age or older. The statute, however, does not provide for the additional penalty to be served at hard labor. The statute’s failure to provide for hard labor may be the result of legislative oversight. Nevertheless, it is a well-established tenet of statutory construction that criminal statutes are subject to strict construction. Any ambiguity in the substantive provisions of a criminal statute is resolved in favor of the accused and against the State. Accordingly, imprisonment at hard labor cannot be imposed under this statute. State v. Williams, 01-1398 (La.App. 1st Cir. 3/28/02), 815 So.2d 378, 382-83, wit denied, 02-1466 (La.5/9/03), 843 So.2d 388; See and compare La. R.S. 14:64.3 (prior to amendment by 2006 La. Acts No. 208, § 1). Accordingly, we amend the sentence by deleting that provision of the sentence which requires the additional penalty of imprisonment for three years, under La. R.S. 14:50.2, to be served at hard labor. We remand this case to the trial court for correction of the minutes and the commitment order.

We also note the trial court did not wait twenty-four hours after denying the motions for a new trial and for a post-verdict judgment of acquittal before imposing sentence. La.Code Crim. P. art. 873; See also State v. Wilson, 526 So.2d 348, 350 (La.App. 4th Cir.1988), writ denied, 541 So.2d 851 (La.1989) (“[La.Code Crim.] Art. 873 refers to both motions for a new trial and in arrest of judgment when it requires the twenty-four hour delay. Thus, the trial court’s failure to delay after denying |in... a motion for post-verdict judgment of acquittal should be analogously treated.”). However, the issue was neither assigned as error, nor was the sentence challenged, nor does the defendant cite any prejudice resulting from the court’s failure to delay sentencing. Thus, any error which occurred is not reversible. See State v. White, 404 So.2d 1202, 1204 (La.1981) and State v. Perez, 95-2445 (La.App. 1 Cir. 12/20/96), 686 So.2d 114, 118, writ denied, 97-0280 (La.6/20/97), 695 So.2d 1351.

CONVICTION AFFIRMED; REMAND SENTENCE WITH INSTRUCTIONS, AND AFFIRM AS AMENDED.

CRAIN J., concurs with reasons.

CRAIN, J.,

concurring.

1,1 join in the majority opinion in all respects but write separately to address a sentencing error under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), identified while reviewing for error pursuant to Louisiana Code of Civil Procedure article 920.

The trial court added three years to the defendant’s sentence pursuant to Louisiana Revised Statute 14:50.2 because the victim was sixty-five years of age or older at the time the crime was committed. The verdict form does not reflect a finding by the jury regarding the age of the victim and that fact was not admitted by the defendant. Any fact, other than a prior conviction, that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. Apprendi, 530 U.S. at 476, 120 S.Ct. 2348. The statutory maximum sentence for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. Blakely, 542 U.S. 296, 303, 124 S.Ct. 2531 (2004); State v. Bines, 10-1118 (La.App. 1 Cir. 12/22/10), 52 So.3d 1120, 1126.

The verdict form reflects only that the jury found the defendant guilty of simple kidnapping, a violation of Louisiana Revised Statute 14:45 which is subject to a maximum sentence of imprisonment of five years, with or without hard labor, and a fine of not more than five thousand dollars. La. R.S. 14:45B. The trial court sentenced the defendant to the maximum of five years imprisonment, then utilized | ^Section 50.2 to add three more years to the sentence. Defense counsel objected to the enhancement. Under these circumstances, an Apprendi violation occurred.

However, the failure to submit a sentencing factor to the jury, like the failure to submit an element of the offense to the jury, is not structural error and remains subject to harmless error analysis. Washington v. Recuenco, 548 U.S. 212, 221, 126 S.Ct. 2546, 165 L.Ed.2d 466; State v. Gibson, 09-486 (La.App. 5 Cir. 3/9/10), 38 So.3d 373, 381, writ denied, 10-0802 (La.11/5/10), 50 So.3d 814. Where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the error is properly found to be harmless. Neder v. United States, 527 U.S. 1, 17, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999).

In this case, the State introduced in evidence a statement signed by the victim showing her date of birth to be January 21,1938, making her 73 years old when the offense occurred. In light of this uncontested evidence, I find that the Apprendi violation was harmless error.

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