text:
    STATE of Louisiana v. Isiah Demon LIVELY.
    No. 13-883.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 12, 2014.

      Paula C. Marx, Louisiana Appellate Project, Lafayette, Louisiana, for Defendant/Appellant, Isiah Demon Lively.
    J. Phil Haney, District Attorney-Sixteenth Judicial District, Angela B. Odinet-Assistant District Attorney, St. Martin-ville, Louisiana, for Appellee, State of Louisiana.
    Court composed of ELIZABETH A. PICKETT, JAMES T. GENOVESE, and PHYLLIS M. KÉATY, Judges.
   GENOVESE, Judge.

Lin this criminal case, Defendant, Isiah Demon Lively, was convicted by a jury of the charges of attempted second degree murder and attempted armed robbery. He was sentenced on the attempted murder conviction to twenty years at hard labor without benefits; he was sentenced on the attempted armed robbery conviction to ten years at hard labor without benefits to run concurrently with the twenty-year sentence. Subsequent thereto, he was adjudicated a second felony offender. The trial court then set aside his twenty-year sentence for attempted second degree murder and imposed a new sentence as a second felony offender of twenty-five years at hard labor without benefits to run concurrently with his ten-year sentence for attempted armed robbery. He has appealed, alleging insufficiency of the evidence, trial court error in not giving his requested jury instruction on eyewitness identification, and trial court error in failing to suppress the victim’s identification of him. Defendant does not appeal his sentences. For the following reasons, we affirm Defendant’s convictions and adjudication.

FACTS

Russell Prejean, a Borden Milk route salesman and victim of these crimes, and his assistant, Ronald Hill, were making a delivery to the A & M Grocery in Jeaner-ette, Louisiana, around 8:30 a.m., on December 18, 2010. The store, as was its custom, paid its bill in cash, and Mr. Preje-an put the cash in his pocket. When they exited the store, Mr. Prejean went to the cab of the truck, while Mr. Hill went to the back of it. When Mr. Prejean reached for the door of the truck to close it, he “felt some material on [his] arm, and [he] thought it was Mr. Hill coming to tell [him] something. So [he] turned around. And when [he] did, [he] looked at a .45 in [his] face.”

¡2The gunman demanded money, and Mr. Prejean told him he had none. The gunman said he had seen Mr. Prejean come out of the store and knew he had money. Mr. Prejean testified, “[T]he next thing I knew[,] I was shot in the leg, and I was on the ground when I realized it.”

Mr. Prejean identified the gunman as a black male with “short dreadlocks and a little bit of facial hair.” He thought the dreadlocks were “probably an inch or two.” When Mr. Prejean had first looked at the gunman, he had noticed a black and white shirt. After he was shot, he noticed the gunman “had orange, light orange, baggy pants.” Mr. Prejean saw the gunman walk across the road and go behind the first house, then he lost sight of him. Mr. Prejean testified that he and the gunman “looked at each other in the face” and that the incident lasted fifteen to twenty seconds.

The bullet shattered Mr. Prejean’s femur and hit his sciatic nerve. He now has a rod from his hip to his kneecap with two screws; he uses a cane; and, he is unable to work. He spent three weeks in the hospital and then went through extensive rehabilitation.

A few days after the shooting, Mr. Pre-jean briefly saw a picture of Defendant on a television news report. Trial exhibits showed the dates, times, and content of news stories concerning the shooting, including a photograph of Defendant. Mr. Prejean recognized the photo of the man he saw on television as the man who shot him. He thinks he saw it “a couple of days. But [he] was heavily doped up. So if [he] did see it, it was only briefly[,]” and he thought he saw it twice.

Mr. Prejean also identified Defendant in a photo lineup on January 18, 2010. The same photo was used in the news stories and in the lineup. Mr. Prejean then ^identified Defendant at trial as the man who shot him. When asked at trial whether he was certain about his identification, Mr. Prejean replied, “Yes, sir. We were face-to-face in the truck when he pulled the gun in my face. And[,] we looked at each other when he walked across the street. He turned around and looked at me. We looked at each other in the face. That is the man.”

Cherell Raymond testified that on the morning of the shooting she saw a milk truck at the A & M Grocery as she drove her vehicle on Pellerin Street. She said she saw two men getting into the milk truck and a black man in orange pants and a red shirt come around the corner. The man in the orange pants fired a gun at the driver of the milk truck and ran. Ms. Raymond, who was about twenty feet from the scene, hurriedly returned home. She could not identify the shooter beyond a description of his clothes.

Ronald Hill testified that a black man in orange pants, white Pumas (tennis shoes), and a white shirt was on the corner when they arrived at the store. Mr. Hill and Mr. Prejean went in and out of the store a few times, and the man was there each time. Mr. Hill looked at him each time he went in and came out of the store. As Mr. Hill was “putting the empties on the back of the truck,” he heard Mr. Prejean call his name about three times. Mr. Hill went around the driver’s side rear of the truck. He saw the man on the top step of the cab of the truck and Mr. Prejean “laid back” in the driver’s seat. The man jumped or fell from the step, raised the gun, and shot inside the cab of the truck. Mr. Hill ran behind the store, and the man “took off’ in the direction of where he had previously stood. Mr. Hill testified that the man’s hair was in dreadlocks or twists.

Mr. Hill did not see any newscasts about the incident prior to identifying Defendant in a photo lineup on April 12, 2010. He had no conversation with ]4Mr. Prejean about the lineup. He chose Defendant’s photo from the lineup “[a]s soon as [he] saw it[,]” and he was certain Defendant was the shooter. Mr. Hill also identified Defendant at trial. He testified that “[t]he reason I know him is because I seen [sic] his face when he first shot, and I said I would never forget him.”

Shanewillow Williams testified that she knew Defendant for many years and knew him when she saw him. She further testified that on December 18, 2009, she went to the A & M Grocery and saw the milk truck. When she left the store, Defendant was standing in front of the house shown in the photograph admitted into evidence as next door to and across the street from the store. He spoke to her, using her nickname, and asked, ‘What’s up, Mocha?” She responded, “Not much, Isiah[,]” and proceeded down the street. She then heard a gunshot and saw the handle of a gun going into a pocket of the black hoodie Defendant was wearing along with orange pants. She saw Defendant run into a gap between two houses, and she saw no one else on the street. Ms. Williams went to the police station and identified Defendant as the shooter. On April 14, 2010, she also identified Defendant as the shooter from a photo lineup.

Detective Gloria Lombard of the Jeaner-ette Police Department testified that when she arrived at the scene of the shooting, she found Mr. Prejean lying on the ground alongside the truck. Based on her interviews with Officer Anthony Johnson, Mr. Prejean, and Ms. Williams, she developed Defendant as a suspect. Defendant was then arrested on January 13, 2010, by the St. Martinville Police Department and the Iberia Parish Sheriffs Office. Detective Lombard subsequently identified Defendant at trial as the person she had developed as a suspect.

| fiOfficer Morman Alexander of the Jean-erette Police Department testified that he was on his way to the scene when he heard Defendant’s name on the police radio. He started looking for Defendant in the neighborhood, but was unable to find him. Officer Alexander presented the photo lineup to Mr. Prejean on January 13, 2010, and testified that Mr. Prejean chose Defendant’s photo “almost immediately.”

Tavoris Marks testified he “was the neighborhood barber” and knew Defendant. He stated that in 2009, he cut Defendant’s hair “like a one-and-a-half on the top. It’s called the taper fade, one-and-a-half on the top, fade the sides and the back ... with a line.” He further testified that it would take hair two to three months to grow long enough from that style to do twists or braids; however, Mr. Marks could not recall precisely when he cut Defendant’s hair in 2009.

Althea Lively, Defendant’s mother, testified Defendant had a “[l]ow haircut fade” in December of 2009. She stated that she saw him two to three days prior to this incident, and “[h]e had a short haircut fade” at that time, not braids or twists. She further testified that his hair had been a little longer “whenever he got out of jail,” but Ms. Lively “forgot exactly the month he got out.” Ms. Lively stated that she saw her son’s picture on television “with the dreads,” and “other people all over the street was [sic] saying they looking for someone with dreads.” She said she knew the suspect was not her son because he did not have dreads or twists, but she never told that to police. Though she did not see Defendant on the day of the shooting, she said that she was familiar with Defendant’s clothes and that she never knew him to have a pair of orange pants.

Defendant testified on his own behalf. He stated that he did not shoot Mr. Preje-an and that he did not have a gun that day. He further stated that more than |fifive people were hanging around the corner across from A & M Grocery on the day of the shooting, but Defendant did not have any of them testify at trial because he “[d]idn’t feel the need to.” Defendant said he recalled seeing the Borden’s truck, but he did not recall seeing Ms. Williams. He stated that he never saw anyone getting in or out of the truck, and he could not recall where it was parked. Defendant said that he stood at the corner of Church and Pellerin streets, “[s]moking weed, texting on the phone,” and that when he heard a gunshot, he “was high and paranoid and took off running” to keep from being shot because he was on parole for aggravated flight in 2006 and was “not allowed to smoke weed.”

Defendant stated that when he was released on September 5, 2009, he had short dreadlocks, but he cut his hair in a “taper fade” from September until he was arrested after the shooting. He testified that he had “never owned a pair of orange pants” and had never worn “orange pants outside of jail.” Defendant testified that Mr. Pre-jean, Mr. Hill, and Ms. Williams were all lying at trial and that he was the only one telling the truth.

PROCEDURAL HISTORY

On April 12, 2010, Defendant was charged with attempted second degree murder, violations of La.R.S. 14:27 and 14:30.1, and with attempted armed robbery, violations of La.R.S. 14:27 and 14:64, as the result of a shooting incident on December 18, 2009, at the A & M Grocery in Jeanerette, Iberia Parish, Louisiana. A jury found Defendant guilty as charged on August 23, 2012.

On September 7, 2012, the State filed a bill of information, alleging Defendant was previously convicted of aggravated flight from an officer, a violation of La.R.S. 14:108.1, on July 6, 2007. The bill alleged that the jury’s finding of guilty of attempted second degree murder was Defendant’s second [7felony conviction and sought enhancement of Defendant’s sentence pursuant to La.R.S. 15:529.1.

On October 30, 2012, the trial court initially sentenced Defendant to twenty years at hard labor without parole, probation, or suspension of sentence for attempted second degree murder and to ten years at hard labor without parole, probation, or suspension of sentence for attempted armed robbery. Both sentences were or-, dered to run concurrently.

The next day, on October 31, 2012, the trial court set aside Defendant’s twenty-year sentence for attempted second degree murder and, having found that he was a second felony offender, imposed a new sentence of twenty-five years at hard labor without benefit of parole, probation, or suspension of sentence, the minimum sentence possible according to La.R.S. 15:529.1. This sentence was ordered to run concurrently with the sentence for attempted armed robbery. Defendant has timely appealed his convictions, but not his sentences.

ERRORS PATENT

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

ASSIGNMENTS OF ERROR

Defendant presents the following assignments of error:

As the State failed to prove the identity of the perpetrator of the attempted robbery and shooting of Russell Prejean beyond a reasonable doubt, the State failed to prove that Isiah Lively was guilty of Attempted Armed Robbery or Attempted Second Degree Murder.
The State failed to establish that Isiah Lively intended to kill Russell Pre-jean; therefore, the State failed |8to meet its burden of proving Isiah Lively was guilty of Attempted Second Degree Murder.
The trial court erred in denying the defense request for a special instruction on eyewitness identification. The trial court further erred in failing to instruct the jury on how to evaluate eyewitness identification testimony.
The trial court erred in failing to suppress Russell Prejearis identification of Isiah Lively which was tainted by news accounts of the crime containing Isiah Lively’s photograph.

ASSIGNMENT OF ERROR NO. 1

Defendant argues that the State failed to prove his guilt because it did not prove the shooter’s identity beyond a reasonable doubt. He admitted to being in the area at the time of the shooting, but testified that he only heard the shot and ran. He contends his hair style at the time did not match the hair style of the shooter, as described by eyewitnesses, and that he did not own any clothing that matched the description of what the shooter wore.

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 |fl847 (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 (La.App. 3 Cir. 9/30/98), 720 So.2d 724). Our supreme court has stated:

However, an appellate court may impinge on the fact finder’s 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, an appellate court must preserve “‘the factfinder’s 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], [134], 130 S.Ct. 665, 674, 175 L.Ed.2d 582 [ (2010) ] (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.

“Second degree murder is the killing of a human being: (1) When the offender has a specific intent to kill or inflict great bodily harm; or (2) When the offender is engaged in the perpetration or attempted perpetration of ... armed |inrobbery....” La.R.S. 14:30.1(A). “Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.” La.R.S. 14:64(A). A person attempts a crime when he, “having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object[.]” La.R.S. 14:27(A).

Our law requires the State “to negate any reasonable probability of mis-identifieation[ ]” when a key issue in a case is the defendant’s identity. State v. Hughes, 05-992, p. 5 (La.11/29/06), 943 So.2d 1047, 1051 (citing State v. Weary, 03-3067 (La.4/24/06), 931 So.2d 297, cert. denied, 549 U.S. 1062, 127 S.Ct. 682, 166 L.Ed.2d 531 (2006)). However, “[positive identification by only one witness is sufficient to support a conviction. It is the factfinder who weighs the respective credi-bilities of the witnesses, and this court will generally not second-guess those determinations.” Id. (citations omitted).

Three eyewitnesses observed this shooting. Mr. Prejean looked into the face of the man who shot him, and he identified Defendant from a photo lineup and at trial. Although he saw Defendant’s picture on television prior to viewing the lineup, Mr. Prejean testified that he recognized Defendant at the time he saw the television picture. Mr. Hill saw the shooter twice and identified Defendant from a photo lineup without seeing his picture on television. Ms. Williams had known Defendant for many years. While she did not actually see Defendant shoot the gun, she spoke to him immediately before the shooting and later saw him put the handle of a gun into a hoodie pocket immediately after the shooting. All three witnesses described the shooter’s clothing to include orange pants, although they described his shirt differently.

|nNone of these eyewitnesses saw anyone else in the area. Only Defendant testified that he saw five or more people hanging around with him on the corner while he smoked marijuana. The jury obviously did not believe Defendant’s testimony. We find that the State sufficiently proved all the elements of the offenses, including the identity of Defendant. Thus, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 2

Defendant next argues the State failed to prove that he had the specific intent to kill Mr. Prejean and thereby failed to prove his guilt. “Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La.R.S. 14:10(1).

Because specific intent is a state of mind, it does not need to be proven by fact; it may be inferred from the circumstances and the actions of the defendant. State v. Allen, 99-320 (La.App. 5 Cir. 7/27/99), 742 So.2d 949. The existence of specific intent is for the trier of fact to determine, and review of this determination is correctly made under the Jackson standard. Id.

State v. Megason, 10-112, p. 5 (La.App. 3 Cir. 10/6/10), 47 So.3d 31, 34. “It is well-settled that the act of pointing a gun at a person and firing the gun is an indication of the intent to kill that person.” State v. Thomas, 10-269, p. 7 (La.App. 3 Cir. 10/6/10), 48 So.3d 1210, 1215, writ denied, 10-2527 (La.4/1/11), 60 So.3d 1248, cert. denied, — U.S.-, 132 S.Ct. 196, 181 L.Ed.2d 102 (2011).

Mr. Prejean testified at trial that he “looked at a .45 in [his] face” and that Defendant then shot him in the leg. We find that pointing a gun in someone’s face and then shooting him, albeit the bullet entered the leg, is an indication of intent to kill.

|12In State v. Owens, 606 So.2d 876 (La.App. 2 Cir.1992), the defendant pointed a pistol at the victim’s chest. As he fired the pistol, a bystander hit the defendant’s arm and caused'the first round to miss. The victim pushed the defendant and tried to retreat, but the defendant fired three more shots. The victim was hit below the left knee and on the right foot. The defendant then fled. At his trial for attempted second degree murder, the defendant claimed he shot at the floor, intending to hit the victim’s feet and legs, and that he had the opportunity to shoot the victim in the chest, but did not. Thus, he argued that this proved his lack of specific intent to kill. The second circuit found that the jury obviously believed the other witnesses and found the defendant guilty.

This court has held “[ajiming a firearm directly at a victim is indicative of intent to kill or inflict great bodily harm.” State v. Clark, 93-1470, p. 3 (La.App. 3 Cir. 10/5/94), 643 So.2d 463, 466, writ denied, 94-2715 (La.2/9/95), 649 So.2d 418 (citing State v. Maxey, 527 So.2d 551 (La.App. 3 Cir.1988), writ denied, 541 So.2d 868 (La. 1989)). However, this court has also recognized “that a shooting at close range does not prove specific intent.” State v. Carmouche, 12-1052, pp. 15-16 (La.App. 3 Cir. 4/3/13), 117 So.3d 136,146.

In Carmouche, this court looked to additional facts to conclude the defendant possessed the specific intent to kill. The defendant and the victim had an acrimonious relationship and had scuffled just prior to the shooting when the victim threw the first punch. Thus, the defendant had a motive for the shooting. Also, the defendant fled the scene and the city to avoid capture.

Here, eyewitness testimony shows Defendant put the gun in Mr. Prejean’s face — certainly an action that could have led to Mr. Prejean’s death. However, when Defendant actually fired the gun, he hit Mr. Prejean in the upper leg.

| iSWe find that Defendant armed himself with the motive to rob Mr. Prejean at gunpoint. He then shot Mr. Prejean at close range. He subsequently fled the scene and went to New Orleans, never contacting the police to report the gunfire he said he heard. We find that these facts clearly indicate that Defendant had the specific intent to kill Mr. Prejean. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends that the trial court erred when it denied his request for a special instruction dealing with eyewitness identification. Further, Defendant argues that the trial court erred by failing to specifically instruct the jury on how to evaluate eyewitness identification.

The record contains Defendant’s lengthy proposed instruction. The gist of Defendant’s argument on appeal is that eyewitness identifications can be imperfect according to State v. Young, 09-1177 (La.4/5/10), 35 So.3d 1042, cert. denied, — U.S.—, 131 S.Ct. 597, 178 L.Ed.2d 434 (2010). Young, however, dealt with expert testimony about factors that might influence the reliability of eyewitness identifications. The Louisiana Supreme Court recognized “eyewitness identifications can be imperfect[]” and barred the expert testimony because it would not assist the jury. Id. at 1049.

The trial court here pointed out that Defendant did not tender an expert “to come and talk about the potential fallacies of eyewitness testimony.” Rather, the specific instruction “talk[ed] about what the experts say is part of their science and research. So if [an expert is] not going to say it, you certainly can’t get it in through instructions.”

“A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It 114need not be given if it is included in the general charge or in another special charge to be given.” La.Code Crim.P. art. 807. In our examination of Defendant’s proposed jury instruction, we find that it included a great deal of qualification and explanation. Thus, it is not the type of charge envisioned by La.Code Crim.P. art. 807.

In State v. Velez, 588 So.2d 116 (La.App. 3 Cir.1991), writs denied, 592 So.2d 408 (La.1992), cert. denied, 505 U.S. 1220, 112 S.Ct. 3031, 120 L.Ed.2d 901 (1992), the defendant requested a jury instruction setting out the factors the jury must consider when evaluating the testimony of an identifying witness. The trial court denied the request, but charged the jury “to consider the witnesses’ reasons for testifying, manner while testifying, and whether their testimony is supported or contradicted by other evidence.” Id. at 137. This court found no error in the charge given or in the trial court’s failure to include the requested charge.

On this issue in the instant case, the trial court instructed the jury as follows:

In evaluating the testimony of a witness, you may consider the witness’ ability and opportunity to observe and remember the matter, any time period between that, that elapsed between the observation and the statements given, the manner while testifying, any reason for testifying in favor or against the State or the defendant, and the extent to which the testimony is supported or contradicted by other evidence. Again, you must consider the credibility of the defendant’s testimony just as you do all other witnesses. However, the testimony of a witness may be discredited by showing that the witness made a prior statement which contradicts or is inconsistent with his or her present testimony. Such prior statements are admitted only to attempt to discredit the witness, not to show that the statements are true.

We find that the jury had the opportunity to observe the eyewitnesses and determine whether their identifications were flawed. The trial court instructed the jury with language almost identical to the language of the instruction approved by 11Bthis court in Velez, 588 So.2d 116. Accordingly, we find that Defendant’s argument and assignment of error lack merit.

ASSIGNMENT OF ERROR NO. 4

Defendant argues that the trial court erred by failing to suppress Mr. Prejean’s identification because it was tainted by news accounts of the crime containing Defendant’s photograph. He contends that the totality of the circumstance shows the likelihood of Mr. Prejean’s influence from the news story which identified Defendant as the shooter.

“A defendant who seeks to suppress an identification must prove that the identification was suggestive and that there was a likelihood of misidentification in the identification procedure.” Velez, 588 So.2d at 134. The Velez defendant contended a witness’s identification was unduly suggestive because the witness viewed a passport photo of the defendant prior to viewing a lineup. This court found the witness observed individuals at the murder scene for seven to ten minutes, gave a description consistent with that of the defendant, and identified the defendant at trial independently of the lineup. This court opined, “[c]onsidering these facts, the suggestive nature of [the witnesses identification goes to the weight, rather than the admissibility of the identification[ ]” and found “no proof of a likelihood of misidentifieation.” Id. at 135.

Here, Mr. Prejean testified at the hearing on the motion to suppress regarding what he saw on television:

I saw once that I can remember because I was heavily doped up, you know, with all the pain I was going through[,] and I did see his picture one time briefly[,] and I think it was on a couple of times[,] but I had people that was there while I was — the news was on and I was eating supper. So[,] I just briefly looked and continued eating and talking to them.

| ifiMr. Prejean recognized the photo as that of the person who shot him. He chose the same photo from the lineup on January 13, 2010, as the photo of the man who shot him, not as the man whose photo he had seen on television. Mr. Prejean’s description was consistent with relevant portions of the descriptions of the other eyewitnesses who said the shooter was wearing orange pants and his hair in twists or braids.

Ms. Williams had known Defendant for many years at the time of the shooting. She spoke to him and he replied; she heard a shot; she saw him place the handle of a gun inside his clothing immediately thereafter; and, she saw him flee the scene. Ms. Williams gave the name of the shooter. Police put Defendant’s photo on television because it matched the name she gave them. The jury obviously believed this testimony.

We find that the allegedly suggestive nature of Mr. Prejean’s identification of Defendant, if any, goes to the weight and not to the admissibility of the evidence as in Velez, 588 So.2d 116. Further, in light of the other evidence concerning the identification of Defendant, particularly Ms. Williams’ testimony, we find the totality of the evidence more than sufficient to convict Defendant, even without Mr. Prejean’s identification. This assignment of error likewise lacks merit.

DISPOSITION

We affirm Defendant’s convictions and adjudication.

AFFIRMED.


source: Caselaw Access Project

author: AMY, Judge.

license: Public Domain

text:
    Darren DUGAS, et al. v. BAYOU TECHE WATER WORKS, INC., et al.
    No. 13-890.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 12, 2014.

      Samuel Rosamond, III, Taylor, Wellons, Politz & Duhe, APLC, New Orleans, LA, for Defendant/Appellee, Pennsylvania General Insurance Company.
    Raymond Pajares, Pajares & Schexnay-dre, LLC, Mandeville, LA, Joshua G. Keller, Deutsch, Kerrigan & Stiles, LLP, New Orleans, LA, for Defendant/Appellee, Bayou Teche Water Works, Inc.
    Erin Fury Parkinson, McGlinchey Stafford, PLLC, New Orleans, LA, for Defendant/Appellee, Granite State Insurance Company.
    Rachel S. Kellogg, Schafer & Schafer, New Orleans, LA, for Defendant/Appellee, American Alternative Insurance Company.
    Theodore M. “Trey” Haik, III, Haik, Minvielle & Grubbs, Iberia, LA, for Plaintiffs/Appellants, Darren Dugas, Glenward Dugas, Cheryl Dugas.
    Court composed of MARC T. AMY, BILLY HOWARD EZELL, and JOHN E. CONERY, Judges.
   AMY, Judge.

| Nile plaintiffs alleged damage to their land and farming practices due to the defendant water facility’s discharge of brine into a canal adjacent to the plaintiffs’ property. The water facility and its insurer filed an initial exception of prescription pursuant to the time limitations of La.R.S. 9:5624, which provides a two-year period of limitation for damage to private property damaged for public purposes. Initially sustained by the trial court, a panel of this court reversed the ruling due to an inadequate factual basis provided in the record on appeal. On remand, the defendant filed a motion for summary judgment, supplementing the record regarding the question of whether it qualified as an entity offered the prescriptive limit of La.R.S. 9:5624. The trial court construed the motion as an exception of prescription and sustained the exception. The plaintiffs appeal. For the following reasons, we reverse and remand.

Factual and Procedural Background

The plaintiffs, Darren Dugas, Glenward Dugas, and Cheryl Dugas, instituted this matter with an August 7, 2007 petition, alleging that land owned and or leased by them and used for rice and crawfishing farming purposes, was damaged due to the practices of the defendant, Bayou Teche Water Works, Inc. In particular, the plaintiffs alleged that Bayou Teche discharged brine-containing wastewater from its treatment plant into a coulee that traveled adjacent to the plaintiffs’ farmland. The plaintiffs alleged that Bayou Teche did not have the appropriate permit for such a discharge from the Louisiana Department of Environmental Quality.

li>The plaintiffs asserted that, in turn, they used water from that coulee for irrigation purposes on their farmland. The result, the plaintiffs contended, was approximately twenty years of inadequate yield from their farm. Despite the long-term low yield, and in an amended petition, the plaintiffs asserted that they only became aware of the alleged salinity issue in September 2006 and that, upon notification to Bayou Teche, the discharges were terminated in November 2007.

In their petition, the plaintiffs prayed for various damages, including remediation costs and past, present, and future lost profits. In addition to Bayou Teche, the plaintiffs named Bayou Teche’s insurer, American Aternative Insurance Company, as a defendant.

Bayou Teche filed an initial exception of prescription in October 2009 and argued that the matter was prescribed by operation of La.R.S. 9:5624, a statute providing for a two-year prescriptive period in the event that “private property is damaged for public purposes[.]” On appeal, a panel of this court found that the factual findings underlying the trial court’s ruling were not supported by the record. Dugas v. Bayou Teche Water Works, 10-1211 (La.App. 3 Cir. 4/6/11), 61 So.3d 826. The panel observed that, although the hearing transcript indicated that the parties anticipated entering additional exhibits into the record, that action had apparently not been completed. Id. Accordingly, the panel reversed the trial court’s judgment and remanded for further proceedings. Id.

On remand, Bayou Teche filed a motion for summary judgment, alleging that “there is no genuine issue of material fact in dispute as to whether plaintiffs’ claims are prescribed pursuant to La.R.S. 9:5624.” In its memorandum, Bayou Teche explained that it was attempting to “satisfy the evidentiary issues identified by the appellate court” by attaching corporate documentation such as its Articles of | ^Incorporation, By-Laws, and a non-exclusive franchise agreement from Iberia Parish. Bayou Teche also attached deposition testimony and bills of sale associated with the plaintiffs’ property in an attempt to establish that the plaintiffs failed to file suit within two years of the damages being sustained. The plaintiffs opposed the motion, alleging that they filed the suit within one year of learning of the discharge of the wastewater. They further contested whether Bayou Teche, as a non-profit corporation, is a legal entity entitled to the protections of La.R.S. 9:5624. The plaintiffs attached their petitions and deposition excerpts regarding their alleged point of discovery and also regarding what they contend is the non-public nature of Bayou Teche’s actions in this case.

At the hearing, the trial court addressed the initial appellate panel’s observation that the record on appeal was deficient and observed that, although the documentation had not been included in the appellate record, it was available for the trial court’s review at that time. Accordingly, the trial court again considered the parties’ evidence and construed Bayou Teche’s prayer in its motion for summary judgment to be a re-submission of its exception of prescription. In ruling, the trial court concluded that La.R.S. 9:5624 was, in fact, applicable and that the plaintiffs failed to file suit timely given the twenty-year period of damages alleged. In its resulting judgment, the trial court sustained an exception of prescription.

I/The plaintiffs appeal.

Discussion

Exception of Prescription

The trial court construed Bayou Teche’s filing as a re-urging of its initial exception of prescription. Bayou Teche has not contested that interpretation on appeal. Accordingly, we review the trial court’s judgment pursuant to the standard of review applicable to a trial court’s ruling on an exception of prescription. In Milbert v. Answering Bureau, Inc., 13-22 (La.6/28/18), 120 So.3d 678, the supreme court considered prescription within the context of a motion for summary judgment, noting that the party urging prescription bears the burden of proof. However, in the event that prescription is apparent from the face of the pleadings, the burden of proof shifts to the plaintiff to demonstrate that the matter is not prescribed. Id.

Further, in the event that evidence is introduced at the hearing on the exception, an appellate court considers the ruling on the exception of prescription under the manifest error — clearly wrong standard of review. Rando v. Anco Insulations, Inc., 08-1163 (La.5/22/09), 16 So.3d 1065. If those findings are reasonable in light of the record reviewed in its entirety, an appellate court will not reverse the trial court’s ruling, even if convinced that it would have weighed the evidence differently had it been the trier of fact. Id.

Having reviewed the trial court’s ruling under this standard, we conclude that the trial court was manifestly erroneous in its determination.

I ¡¡Louisiana Revised Statutes 9:5624.

Bayou Teche urged prescription in this case and alleged solely that there “is no genuine issue of material fact in dispute as to whether plaintiffs’ claims are prescribed pursuant to La.R.S. 9:5624.” The plaintiffs again contested whether Bayou Teche can be afforded the protections of that statute.

Entitled “Actions for damages to property damaged for public purposes[,]” La. R.S. 9:5624 provides that:

When private property is damaged for public purposes any and all actions for such damages are prescribed by the prescription of two years, which shall begin to run after the completion and acceptance of the public works.

In remarking upon La.R.S. 9:5624, the Louisiana Supreme Court has explained that the purpose of the statute “is to limit the exposure of the State and its political subdivisions to liability in connection with a public work to a reasonable period of time.” Avenal v. State, 03-3521, p. 33 (La.10/19/04), 886 So.2d 1085, 1108. Despite this purpose, La.R.S. 9:5624 does not encompass all lawsuits for damages caused by a public entity or those involving public works projects. Id. Instead, in order to fall within the protections of the statute, the damage must be incurred for a public purpose. Id. “Damage is incurred !for public purposes’ when the damaging is ‘intentional or occurs as a necessary consequence of the public undertaking’.” Id. at 1108-09.

In light of this description it' is apparent that the record does not support the trial court’s application of the statute. Rather, the parties’ submissions, in support |fiof and in opposition to their respective positions, reveal the absence of evidence supporting La.R.S, 9:5624’s fundamental requirement that damages be sustained for a public purpose. Certainly there is no evidence that application of the statute in this case would satisfy its purpose “to limit the exposure of the State and its political subdivisions to liability in connection with a public work to a reasonable period of time.” Avenal, 886 So.2d at 1108. As addressed below, Bayoü Teche is not a political subdivision, but is a non-profit corporation. Neither is there evidence that the discharge was performed in connection with a public work. ■

Simply, the record indicates that Bayou Teche is a non-profit corporation serving, not the public, but its membership. Its Articles of Incorporation, in Article II, reflect that “[t]he nature of the business of the corporation and the objects and purposes for which it is formed are:”

a. To associate its members together for their mutual benefit and to that end to construct, maintain and operate a private water system for the supplying of water to its members, and to engage in any activity related thereto.

Additionally, the Articles reflect that the corporation is self-governed insofar as Article V, as amended in 1992, provides that:

Subject to the terms and conditions prescribed in the by-laws, this corporation shall admit as members persons (which word as used therein includes any legal entity) who are owners or part owners or have a substantial possessory interest in properties desired to be served by the corporation’s water system.
The voting power of each member whose fees are fully paid and who is in good standing shall be equal and each member shall be entitled to one (1) vote only regardless of the number of membership certificates he might hold.
The property rights and interest of each member in earnings and assets of the corporation shall be unequal and are to be determined by [7each member’s cumulative patronage of the corporation’s services; all as more fully set forth in accordance with the provisions of the by-laws of the corporation.

Neither do the By-Laws convey a public affiliation beyond the Iberia Parish nonexclusive franchise. Instead, the By-Laws provide for the election of the Board of Directors by the members of the corporation and provide that the Board of Directors be divided into three classes: 1) three member-residents of St. Landry Parish; 2) three member-residents of St. Martin Parish; and 3) three members “of whom one shall be a resident of Iberia Parish and of whom two shall be residents of St. Martin Parish.”

While Bayou Teche notes that it is a franchisee of Iberia Parish, the ordinance granting that non-exclusive franchise again indicates only Bayou Teche’s corporate structure and its purpose to provide water to its customers and membership. Section 1 of the 1972 ordinance provides, in part, that:

[T]he Iberia Parish Police Jury, the governing authority of Iberia Parish, Louisiana, does hereby grant unto BAYOU TECHE WATERWORKS CORPORATION, a non-profit corporation duly organized under the laws of the State of Louisiana, doing business in Iberia Parish, Louisiana, its successors and assigns, hereinafter called “Grantee”, the right, privilege and authority to construct, maintain and operate within Iberia Parish a water system to sell and service its customers, users and members.

In its brief to this court, Bayou Teche refers to Crooks v. Placid Refining Co., 05-119 (La.App. 3 .Cir. 6/1/05), 903 So.2d 1154, writ denied, 05-1756 (La.1/13/06), 920 So.2d 242, for the proposition that corporations may expropriate property in the event that the project serves a public interest/public purpose. Certainly, the panel of this court resolving Crooks found a public purpose or benefit from the use of a pipeline for the transport of oil to refineries throughout [8the State. Notwithstanding the expropriation context in which it arose, however, the panel did so after observing supreme court jurisprudence explaining that:

‘No general definition of what degree of public good will meet the constitutional requirements for a ‘public use’ can be framed, as it is in every case a question of public policy. The meaning, of the term is flexible and is not confined to what may constitute a public use at any given time, but in general it may be said to cover a use affecting the public generally, or any number thereof, as distinguished from particular individuals. Some courts have gone so far in the direction of a liberal construction as to hold that ‘public use’ is synonymous with ‘public benefit,’ ‘public utility’ or ‘public advantage,’ and to authorize the exercise of the power of eminent domain to promote such public benefit, etc., especially where the interests involved are of considerable magnitude, and it is sought to use the power in order that the natural resources and advantages of a locality may receive the fullest development in view of the general welfare.’

Id. at 1165-66 (quoting City of New Orleans v. New Orleans Land Co., 173 La. 71, 136 So. 91 (1931)) (emphasis added). After consideration of that type of jurisprudence regarding public purpose, the panel in Crooks found that “despite any competitive advantage to [the defendant refining company], use of the pipeline to efficiently and economically transport oil to various refineries in the State benefits the public by increasing the availability of the oil and reducing costs to the consumer.” Id. at 1166.

Unlike the situation in Crooks, however, it cannot be said that Bayou Teche’s wastewater discharge served the public. Rather, the corporate documentation indicates only that Bayou Teche, as a cooperative, non-profit corporation, operated for the benefit of particular individuals, i.e., its members and customers, not the public generally. See Crooks, 903 So.2d 1154 (quoting New Orleans Land Co., 136 So.91).

Given the record’s absence of evidence regarding a public purpose causing the complained of damages, we find that the trial court was manifestly erroneous in | concluding otherwise. Accordingly, we reverse the trial court’s judgment and remand for further proceedings. On remand, we reiterate that this court’s ruling has been limited strictly to the applicability of La.R.S. 9:5624 since the defendants’ exception of prescription and motion for summary judgment were limited to its claim of prescription thereunder. The defendants have not raised, nor have we addressed, any other prescriptive provisions.

DECREE

For the foregoing reasons, we reverse the trial court’s judgment sustaining the exception of prescription under La.R.S. 9:5624 and remand for further proceedings. All costs of this proceeding are assigned to the appellees, Bayou Teche Waterworks, Inc. and American Alternative Insurance Company.

REVERSED AND REMANDED.

      . The coulee is referred to variously in the record as a drainage ditch, irrigation ditch, and as a coulee.

      . In reasons for ruling, the trial court determined that:
      After carefully considering the evidence (now part of the record), arguments of counsel, and the Third Circuit opinion, this court is satisfied with the evidence' submitted. In its previous Reasons for Judgment, this court stated, "this court finds the activity of supplying potable water to residents is clearly a ‘public work’ and the discharge of the waste water [sic] a ‘necessary consequence’ of that public service; thus subjecting these claims to the two year prescriptive period.” The evidence, now properly submitted, supports this conclusion. Therefore, the Defendants have met their burden of proof in showing that the defendant falls within the purview of La.R.S. 9:5624; that the defendant is performing a public work; that the discharge of water is a necessary consequence of that public work; and that the matter has prescribed.

      . This quotation reflects the current version of La.R.S. 9:5624, as amended in 1987. Prior to that amendment, the statute provided that the prescriptive period began to run when the damages were sustained. Although the defendants contend that the earlier version of La. R.S. 9:5624 should apply since the plaintiffs’ claims allegedly commenced prior to that time, we do not resolve the question of which version of the statute is applicable in this case. Rather, we find the statute otherwise inapplicable as the evidence does not indicate that the private property was "damaged for public purposes!.]”

      . The General Manager of Bayou Teche explained in his deposition that Bayou Teche has approximately 2900 meters, equating to a population of approximately 8700 using its services.


author: GENOVESE, Judge.

text:
    STATE of Louisiana In the Interest of A.G.B.
    No. 13-902.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 12, 2014.

      Carolyn Cole, 15th Judicial District Public Defenders Office, Lafayette, Louisiana, for Defendant/Appellant, A.B.
    Tamara D. Rahim, Lafayette, Louisiana, for PlaintiffiAppellee, State of Louisiana, Department of Children and Family Services.
    Court composed of ELIZABETH A. PICKETT, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   GENOVESE, Judge.

hA.B., the biological father of the minor child, A.G.B., appeals the judgment of the trial court terminating his parental rights and certifying the minor child eligible for adoption. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

A.G.B., born April 2, 2009, was placed in the care of the State of Louisiana, through its Department of Social Services, Office of Community Services (the State), pursuant to an instanter order issued March 2, 2011, based upon allegations of neglect by dependency. The basis for removal was that the mother of A.G.B., S.J.B., had been arrested for drug possession charges. At the time the removal occurred, A.B. was also incarcerated on drug charges in the St. Tammany Parish Jail in Covington, Louisiana.

An Order of Continued Custody was signed by the trial court on March 4, 2011, since both parents were incarcerated, and the State was unable to find a suitable relative for the placement of A.G.B. A.G.B. was adjudicated a child in need of care pursuant to La.Ch.Code art. 666 on May 2, 2011.

On August 2, 2012, a Petition for Termination of Parental Rights and Certification for Adoption was filed on behalf of A.G.B., seeking the termination of the parental rights of both of AG.B.’s parents. The petition asserted that the parents’ parental rights should be terminated pursuant to the provisions of La.Ch.Code art. 1015(4) and 1015(5).

^Following trial on March 4, 201B, the trial court found that there were grounds to terminate the parental rights of A.B. Specifically, the trial court found that the State proved, by clear and convincing evidence, grounds for termination under the provisions of La.Ch.Code art. 1015(4)(b) and 1015(5). A Judgment of Termination of Parental Rights and Certification for Adoption was signed by the trial court on March 19, 2013. Only A.B. appeals.

ASSIGNMENTS OF ERROR

A.B. presents the following assignments of error for our review:

■Jtf-

The trial court erred in terminating the parental rights of A.B. for failing to substantially comply with his case plan. The court further erred in finding that [the State] proved by clear and convincing evidence that there was no reasonable expectation for further improvement in his condition or conduct in the near future, nor reasonable expectation that he would complete any new requirements of the case plan as deemed necessary for the safe return of the child.

II.

The trial court erred in finding that termination was in the best interest of the child.

LAW AND DISCUSSION

“A trial court’s findings on whether or not parental rights should be terminated are subject to the manifest error standard of review.” State in Interest of J.K.G., 11-908, p. 5 (La.App. 3 Cir. 1/11/12), 118 So.3d 10, 14 (citing State ex rel. KG., 02-2886, 02-2892 (La.3/18/03), 841 So.2d 759).

Louisiana Children’s Code Article 1015 sets forth eight grounds for termination of parental rights. Although the State need only establish one ground for termination, the trial court must also find that the termination is in the best interest of the child in order to meet the statutory requirement of La.Ch.Code art. 1035(A), which requires that grounds for termination be proven by clear and convincing evidence. State ex rel. M.H. v. K.W.H., 40,332 (La.App. 2 Cir. 9/23/05), 912 So.2d 88.

Id. at 14-15. In the case at bar, the trial court found that the State had proven grounds for termination of A.B.’s parental rights under La.Ch.Code art. 1015(4) and 1015(5) by clear and convincing evidence and that termination of his rights was in the best interest of the minor child.

In his first assignment of error, A.B. argues that the trial court erred in finding that he failed to substantially comply with his case plan and that there was no reasonable expectation for improvement in the future. At the time A.G.B. was taken into custody, A.B. was incarcerated on drug charges. He also had a history of DWI charges and a charge of simple battery. The State created case plans for |4A.B. from the time A.G.B. was placed in foster care. A.B. was provided with copies of his case plan which required him to obtain stable housing and employment, to undergo substance abuse evaluation and treatment, to make parental contributions, to refrain from criminal activity, and to maintain contact with the State. To his credit, A.B. did obtain employment when he was transferred to Northshore Work Release in Covington, Louisiana, and he did complete two substance abuse classes. The trial court acknowledged his efforts, but concluded that these actions did not constitute substantial compliance with his case plan. We agree.

Regarding employment, as noted, A.B. did work approximately five months through a work release program. However, after his release in January 2013, he did not obtain employment. A.B.’s sole source of income was social security benefits. Additionally, he presented no evidence of any plans for future employment or employment possibilities.

An additional requirement of A.B.’s case plan was for him to make parental contributions. He made none. Despite the limited period of employment and his receipt of social security benefits, A.B. failed to make any of the $20.00 per month contributions as he was required to do.

A.B. was also required to undergo substance abuse evaluation and treatment. He did complete two programs while he was incarcerated; however, upon his release, he failed a drug screen. The drug screen indicated that he had taken Lortab and Xanax, both without a prescription. Notably, A.B. did not remain substance-free after he was released.

Finally, A.B. was required to obtain safe, adequate, and stable housing. Upon his release, A.B. began living with his mother in Bogalusa, Louisiana. His plan was for A.G.B. to reside there as well. However, based upon her findings | ^during home visits, the case worker did not think that the home was safe. In light of the evidence presented, the trial court was concerned that the home was not an appropriate place for the child to live. Additionally, the trial court recognized that the length of its availability was uncertain and commented that A.B. had failed to achieve “any independence from his mother.” We find these ruminations of the trial court to be supported by the record.

While we recognize that some effort was made on the part of A.B. to fulfill the requirements of his case plan, we find his efforts fall considerably short of substantial compliance. The trial court’s findings were not manifestly erroneous.

Additionally, the record supports the trial court’s conclusion that there was no reasonable expectation for improvement in the near future. The trial court stated that it was “not very impressed by the housing [A.B.] provided and the income he’s proved because he hasn’t done anything to earn or achieve either of those things.” Rather, “he’s living in his mother’s house, and he’s on public assistance.” Moreover, as the trial court recognized, given that A.B. failed to remain substance free after his release, he is in violation of the terms of his parole and is subject to revocation of his parole and, potentially, future incarceration. Therefore, this assignment of error is without merit.

In his second assignment of error, A.B. asserts that the trial court erred in determining that termination of his parental rights was in the best interest of the child. We likewise find no merit in this assignment of error.

When A.G.B. was originally placed into foster care, he was twenty-three months old. The case worker testified that when the minor child was first placed in foster care, he did not talk. His speech was “severely delayed.” A.G.B. has since undergone speech therapy and has improved. According to the case worker, the child is “doing really well there. He’s adjusted. He’s bonding.” A.G.B. refers to | fihis foster parents as “mom” and “dad” and calls the other child in the home his “brother.” A.G.B. loves his foster family and wants to stay in their home. The foster family loves and has provided for A.G.B., and they want to adopt him.

On the other hand, the child has no relationship with A.B. They had no contact from the time A.B. was incarcerated in December of 2010 until one visit in February 2013. While we are aware that A.B. was incarcerated for much of the time, even upon his release, he failed to take advantage of scheduled visits in January and February of 2013. By the date of the trial, A.B. had had only one visit with the child. The social worker observing that visit explained that the child would “whine,” push away from A.B., and would try to leave the room.

In termination proceedings, the court must carefully balance the interests of the children and the interests of the parents. State ex rel. J.M., 02-2089, p. 8 (La.1/28/03), 837 So.2d 1247, 1252. While a parent has a natural fundamental interest in the continuing companionship, care, and custody of their children, the child has a profound interest in terminating parental rights that prevent adoption and inhibit establishing secure, stable, long-term and continuous relationships found in a home with proper parental care. State ex rel. L.B. v. G.B.B., 02-1715, p. 4 (La.12/4/02), 831 So.2d 918, 921; State ex rel. G.J.L., 00-3278, p. 6 (La.6/29/01), 791 So.2d 80, 85; Lehman v. Lycoming County Children’s Services Agency, 458 U.S. 502, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982). In balancing these interests, courts have consistently found that the interest of the child is paramount over that of the parent. State ex rel. G.J.L., 00-3278 at p. 6, 791 So.2d at 85.

State ex rel. D.D.M., 07-1017, pp. 7-8 (La. App. 5 Cir. 3/25/08), 983 So.2d 141, 145. In light of the foregoing, we find no error in the trial court’s ruling that termination of A.B.’s parental rights is in A.G.B.’s best interest.

DECREE

For the foregoing reasons, the judgment of the trial court terminating A.B.’s parental rights as to A.G.B. is affirmed. Costs of this appeal are assessed to A.B.

AFFIRMED.

      . Pursuant to Uniform Rules — Courts of Appeal, Rules 5-1 and 5-2, the initials of the parties will be used to protect and maintain the privacy of the minor child involved in this proceeding.

      . Louisiana Children's Code Article 666 provides, in pertinent part, "Following the adjudication hearing, the court shall immediately declare whether the evidence warrants a child in need of care adjudication.”

      . Louisiana Children's Code Article 1015 provides, in relevant part, as follows:
      The grounds for termination of parental rights are:

      (4) Abandonment of the child by placing him in the physical custody of a nonparent, or the department, or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:
      (a) For a period of at least four months as of the time of the hearing, despite a diligent search, the whereabouts of the child’s parent continue to be unknown.
      (b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child’s care and support for any period of six consecutive months.
      (c) As of the time the petition is filed, the parent has failed to maintain significant contact with the child by visiting him or communicating with him for any period of six consecutive months.
      (5) Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child’s age and his need for a safe, stable, and permanent home.

      . The judgment of the trial court terminated the parental rights of both A.B. and S.J.B. However, S.J.B. did not appeal; thus, the termination of her parental rights is not presently before this court.


author: KEATY, Judge.

text:
    Joseph D. POTIER v. ACADIAN AMBULANCE SERVICE, INC.
    No. 13-914.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 12, 2014.
    Taylor J. Bassett, Morrow, Morrow, Ryan & Bassett, Opelousas, LA, for Plaintiff/Appellant, Joseph D. Potier.

      K. Wade Trahan, Ottinger Hebert, L.L.C., Lafayette, LA, for Defendants/Ap-pellees, Acadian Ambulance Service, Inc. Seabright Insurance Company.
    Court composed of ELIZABETH A. PICKETT, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

It Claimant appeals a judgment rendered by the workers’ compensation judge (WCJ) denying his motion for summary judgment and granting a cross motion for summary judgment filed by his employer and its insurer. For the following reasons, we affirm.

PROCEDURAL HISTORY

Claimant, Joseph D. Potier, was injured in a one-vehicle automobile accident on U.S. Highway 190 in Pointe Coupee Parish, Louisiana, on August 26, 2011. He was employed by Acadian Ambulance Service, Inc. as a utility or swing medic at the time, and the accident occurred when he was returning to his home in Sunset, Louisiana, after working a shift in Zachary, Louisiana. Potier filed a Disputed Claim for Compensation Form 1008 on March 28, 2012, seeking indemnity and medical benefits going back to the date of his accident. Acadian answered the 1008, denying that Potier’s accident was work related.

Potier filed a motion for summary judgment requesting a determination that, as a matter of law, he was in the course and scope of his employment with Acadian when the accident occurred. Acadian filed a cross motion for summary judgment seeking a determination that Potier was not in the course and scope of his employment when the accident occurred.

Following a hearing, the WCJ denied Potier’s motion and granted summary judgment in favor of Acadian and its workers’ compensation insurer, Seabright Insurance Company, thereby dismissing Po-tier’s claim with prejudice. Potier now | {.appeals, alleging that the WCJ erred in finding that he was not in the course and scope of his employment at the time of the accident.

DISCUSSION

Appellate courts “review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law.” Supreme Servs. & Specialty Co., Inc. v. Sonny Greer, Inc.,, 06-1827, p. 4 (La.5/22/07), 958 So.2d 634, 638.

Generally, injuries sustained by an employee while traveling to and from work are not considered to have occurred within the course and scope of his employment, and thus, are not com-pensable under the Workers’ Compensation Act. Stephens v. Justiss-Mears Oil Co., 312 So.2d 293 (La.1975); W. Malone & H. Johnson, 13 Louisiana Civil Law Treatise — Workers Compensation § 168 (4th ed.2002). This rule, often called the “going-and-coming rule,” is premised on the theory that, ordinarily, the employment relationship is suspended from the time the employee leaves his work to go home until he resumes his work. Phipps v. Bruno Const., 00-0480 (La.App. 3 Cir. 11/2/00), 773 So.2d 826 (citing Yates v. Naylor Industrial Senices, Inc., 569 So.2d 616, 619 (La.App. 2 Cir. 1990), writ denied, 572 So.2d 92 (La.1991)). Furthermore, an employee’s place of residence is a personal decision not directly controlled by the employer, and treating commuting time as part of the determination of course and scope of employment would remove manageable boundaries from the determination. Orgeron ex rel. Orgeron v. McDonald, 93-1353 (La.7/5/94), 639 So.2d 224, 227.
The going-and-coming rule is, however, subject to various exceptions....

| sMcLin v. Indus. Specialty Contractors, Inc., 02-1539, pp. 4-5 (La.7/2/03), 851 So.2d 1135, 1140.

The facts in this matter are not in dispute. Potier was involved in a one-vehicle accident on U.S. Highway 190 in Pointe Coupee Parish on his way home to Sunset after completing a shift in Zachary on August 26, 2011. Potier had been employed by Acadian since 1997. When he was initially hired, he was an emergency medical technician (EMT) paramedic and was not compensated for his mileage. After becoming a swing medic in 2008, Potier began receiving mileage payments which were calculated based upon the distance between his home and the substation where he was temporarily assigned to work. Approximately six months later, however, Acadian designated the Grosse Tete substation as Potier’s home station, and his mileage payments began being calculated based upon the predetermined distance between the Grosse Tete substation and whatever station he was scheduled to work out of rather than the actual mileage Potier actually traveled on any particular date. Potier was not compensated for the time he spent traveling, and he was not required to check in at the Grosse Tete substation before or after any of his shifts. At the time of the accident, Potier was assigned to the Capital area, which encompassed the following parishes: Ascension, East and West Baton Rouge, East Feliciana, Iberville, Livingston, and Pointe Coupee. Potier’s accident occurred to the west of the Grosse Tete substation, i.e., Potier had already traveled from his assignment in Zachary to well beyond the Grosse Tete area en route to his home in Sunset.

|4In support of his motion for summary judgment, Potier argued that because Aca-dian reimbursed him for his mileage on trips to and from his assignments as a utility medic, it interested itself in his transportation, thus bringing this case within an exception to the going-and-coming rule. He likened his situation to that presented in Johnson v. Templeton, 99-1274 (La.App 3 Cir. 3/29/00), 768 So.2d 65, writ denied sub nom., Schaefer v. Templeton, 00-1235 (La.8/31/00), 766 So.2d 1276, and writs denied, 00-1912, 00-1930 (La.8/31/00), 766 So.2d 1285,1286.

In Johnson, employees and the estate of an employee filed personal injury and wrongful death actions against their employer, its insurer, and the eo-employ-ee/driver of a van which was involved in a one-vehicle accident that occurred when the employees were returning to Baton Rouge in a company van after completing an auditing job Alexandria. The employees had met at a Baton Rouge hotel early one morning and had traveled to Alexandria on one of four company vans, arriving at their destination around 7:30 a.m. They worked until about 11:30 p.m. that evening, after which they boarded their assigned van to return to Baton Rouge. While traveling near Opelousas, the driver swerved to avoid an animal and lost control of the van, which rolled three times before coming to rest, ejecting several employees in the process and resulting in serious injuries, and in one case death, to the employees. The employees in Johnson “were paid $0.08 per mile in travel pay, less the first twenty miles traveled.” Id. at 70. The record further disclosed that the employees were required to check in at the Baton Rouge hotel before leaving for the worksite in Alexandria.

After determining that the employees were not in the course and scope of their employment when the accident occurred, a jury awarded the employees varying damage awards. The defendants appealed, and this court reversed, finding 15that the jury committed legal error in finding that the employees were not engaged in the course and scope of their employment when the accident occurred. In doing so, we held that “where transportation is furnished as an incident of employment, either through a vehicle or payment of expenses, and where wages are paid for the time spent traveling, the employee is engaged in the course and scope of employment.” Id. at 71. Accordingly, we reversed the jury’s verdict as a result of our application of the exclusivity provision of the Louisiana Workers’ Compensation Act, La.R.S. 23:1032. In doing so, we distinguished Mitchell v. Pleasant Hill General Hospital, Inc., 491 So.2d 183 (La.App. 3 Cir.), writ denied, 493 So.2d 1223 (La.1986), where we found that an $8 per day travel allowance was a salary supplement meant to attract qualified personnel and was not paid in lieu of the employer furnishing transportation for the employee, so that the employee injured on her way home from work was not in the course and scope of her employment and, thus, was not entitled to workers’ compensation benefits.

Here, Potier submitted that like the employer in Johnson, Acadian paid his mileage in lieu of providing him transportation and not as a means of supplementing his salary, thus interesting itself in his transportation. Potier admitted that unlike the employees in Johnson, he was not required to check in at a certain place before heading to work. Nevertheless, he insists that this court should apply the principles pronounced in Johnson to find that he was in the course and scope of his employment with Acadian when this accident occurred.

In support of its own motion for summary judgment, Acadian insisted that Potier’s reliance on Johnson was misplaced because it did not provide him with ^transportation, its mileage payments to him were not based upon his actual travel expenses, and because he was not paid for his time traveling to and from his assigned substation. Acadian argued that this matter is akin to Mitchell, the case distinguished by the Johnson court, because the mileage it paid to swing medics, such as Potier, was done for the purpose of attracting qualified personnel to work in areas where there are an insufficient number of EMTs to staff Acadian’s ambulances. Acadian submitted that the following language from Mitchell, 491 So.2d at 185, is dispositive of this case:

The mere payments of travel expenses, without an expressed or implied agreement to furnish transportation, does not place the employee within the course and scope of his employment while traveling to and from work if such payments bear no relation to the actual travel expenses involved in the specific case, and are intended only as an inducement to attract qualified personnel at a particular job site.

Acadian attached to its motion the affidavit of Joseph Lightfoot, Acadian’s head of human resources, who stated that only swing ipedics receive mileage payments from Acadian and that such payments are made as “a supplement and/or inducement to attract qualified personnel.” Lightfoot further attested that Potier was not compensated for the time he spent traveling and that the mileage payments to swing medics did not incorporate the actual miles that they traveled.

In further support of its motion for summary judgment, Acadian argued that in Trahan v. Acadian Ambulance Service, 96-1331 (La.App. 3 Cir. 3/5/97), 689 So.2d 751 (unpublished opinion), a case which presented facts identical to those presented herein, this court affirmed the WCJ’s finding that an employee who was injured in an automobile accident on her way home from work was not in the course and scope of her employment. Acadian submitted that, like Potier, the claimant in Trahan was compensated for the mileage from her home base station to her |7assigned work station. Accordingly, Acadian contended that summary judgment should be issued in its favor, finding that Potier was not in the course and scope of his employment when the accident occurred.

We reject Potter’s contention that Acadi-an involved itself in his transportation to work. Like the mileage payments made to the claimant in Mitchell, the mileage payments made to Potier bore “no relation to the actual travel expenses” that he incurred in getting to work each day. Mitchell, 491 So.2d at 185. Rather, the facts indicate that the mileage payments were an inducement used by Acadian to attract qualified EMTs to work as swing medics. Moreover, this matter is factually distinguishable from Johnson, 768 So.2d 65, where the claimants were injured while traveling from a work assignment in a van provided by their employer. After conducting a de novo review of the evidence submitted by Potier and Acadian in support of their respective motions for summary judgment, we conclude that Potier was not in the course and scope of his employment with Acadian when the accident occurred.

DECREE

For the foregoing reasons, we affirm the WCJ’s grant of summary judgment in favor of Acadian Ambulance Service, Inc. and Seabright Insurance Company and the resulting dismissal, with prejudice, of Joseph D. Potter’s claims against them. All costs of this appeal are assessed against Joseph D. Potier.

AFFIRMED.

      . According to the Statement of Uncontested Facts submitted in support of Potier’s motion for summary judgment, swing medics "are paramedics employed by Acadian who do not have permanent station assignments, but rather fill employment needs at various Acadi-an stations within their districts."

      . The following have been cited in the jurisprudence as exceptions to the going-and-coming rule:

      (3) If the employer had interested himself in the transportation of the employee as an incident to the employment agreement either by contractually providing transportation or reimbursing the employee for his travel expenses ....

      . In this opinion, we refer to Potier’s position at Acadian interchangeably as a swing or utility medic as has been done by the parties throughout this litigation.

      . Although not relevant to this appeal, we rejected the employees’ assertion that the driver and/or their employer were guilty of intentional acts so as to allow them to fall under the exception to the workers’ compensation exclusivity rule. Johnson, 768 So.2d 65.


author: PAINTER, Judge.

text:
    Hank Allen MORAN v. CAJUN WELL SERVICES, INC. and Zurich American Insurance Company.
    No. 13-821.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 12, 2014.

      Skylar Comeaux, Attorney at Law, Lafayette, LA, for Defendants-Appellants, Cajun Well Services, Inc. and Zurich American Insurance Company.
    Thomas J. DeJean, Attorney at Law, Opelousas, LA, for Plaintiff-Appellee, Hank Allen Moran.
    Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   PAINTER, Judge.

|T The employer, Cajun Well Services (Cajun), and its workers’ compensation insurer, Zurich American Insurance Company (Zurich), appeal the decision of the Workers’ Compensation Judge, which rejected the findings of the Medical Director and ruled that certain treatment must be authorized by the employer and its insurer. The WCJ, however, denied the claim for penalties and attorney’s fees by Claimant, Hank Allen Moran. Claimant answered the appeal, seeking a reversal of the denial of his claim for penalties and attorney’s fees as well as attorney’s fees for work done on appeal. For the reasons that follow, we affirm the decision of the WCJ and award $2,500.00 in attorney’s fees to claimant for work done on appeal.

FACTS AND PROCEDURAL HISTORY

Claimant was employed by Cajun as a derrick man. On October 13, 2011, in the course and scope of his employment, Claimant injured his lower back when he fell about three feet off of an elevated walkway. He rested for a few days and then, when the pain did not subside, he went to the emergency room at Opelousas General Hospital and was referred to an orthopedist, Dr. George “Ray” Williams. He first saw Dr. Williams on November 8, 2011, and Dr. Williams requested approval for MRIs. An MRI of the thoracic spine was performed and was unremarkable. An MRI of the lumbar spine showed “degenerative disc and protrusion at L5/S1 questionable osteoporosis noted.” Dr. Williams then requested approval for a bone densitometry and instructed Claimant to rest and apply ice/heat and referred him to physical therapy. In April of 2012, Dr. Williams referred Claimant to Dr. David Weir for electromyogram and nerve conduction studies (EMG/NCS) and to Dr. Steve Wyble for lumbar epidural steroid injection (LESI). 12CIaimant did have the LESI on April 14, 2012. A few months later, in July 2012, when Claimant sought authorization for additional injections recommended by Dr. Williams, Zurich denied the request because Dr. Williams’ notes indicated that “recent injection did offer relief but has ‘worn off.’ ” It was Zurich’s position that Dr. Williams’ notes evidenced that he did not find any subjective or objective improvement in Claimant’s condition because of the initial injection.

Claimant sought review of the denial from the Medical Director in accordance with La.R.S. 23:1203.1. The Medical Director reviewed the claim and, on October 24, 2012, he issued a decision denying the request for additional injections. Claimant then sought review of the Medical Director’s decision. Following a hearing, on March 26, 2013, the WCJ issued judgment finding that Cajun and Zurich must authorize the LESI recommended by Dr. Williams but denying Claimant’s demand for penalties and attorney’s fees. We affirm.

DISCUSSION

Louisiana Revised Statutes 23:1203.1(K) provides that:

After the issuance of the decision by the medical director of the office, any party who disagrees with the medical director’s decision, may then appeal by filing a “Disputed Claim for Compensation,” which is LWC Form 1008. The decision of the medical director may be overturned when it is shown, by clear and convincing evidence, the decision of the medical director was not in accordance with the provisions of this Section.

The WCJ found that “by clear and convincing evidence ... the medical records do establish an improvement with the three weeks without pain, and by failing to take that into consideration,” the Medical Director was wrong in denying the recommended treatment.

Cajun and Zurich contend that they are entitled to a de novo review because there was no finding of fact involved .and that the WCJ was merely reviewing the decision of the Medical Director and that her decision to affirm or reverse the IsMedical Director’s finding is a question of law. We agree. However, we do not agree with Cajun and Zurich that the WCJ misinterpreted and misapplied the law. She reviewed the Medical Director’s decision and the medical records submitted by Claimant with his 1008 and found that the decision did not comply with the law. The Medical Director’s decision did not include a summary of what records he reviewed to make his decision and, as noted by the WCJ, stated “no factual basis.” In fact, the medical records presented indicate that the injection did provide some relief to the point that Claimant was “pain free” for three weeks after the injection. Therefore, we affirm the WCJ’s determination that the LESI must be approved by Cajun and Zurich.

Claimant contends that the WCJ erred in failing to award him penalties and attorney’s fees. “The applicable standard of review in determining whether a defendant should be cast with penalties and attorney fees is the manifest error-clearly wrong standard.” Rutledge v. Resource Transp., 08-1149, p. 2 (La.App. 3 Cir. 3/4/09), 7 So.3d 794, 795 (quoting Bennett v. Pilgrim’s Pride, 07-753, p. 10 (La.App. 3 Cir. 12/12/07), 972 So.2d 423, 429, writ denied, 08-103 (La.3/7/08), 977 So.2d 907). We find no manifest error in the WCJ’s denial of penalties and attorney’s fees.

Claimant has further requested that this court award attorney’s fees for work done in connection with this appeal. “A workers’ compensation claimant is entitled to an increase in attorney fees to reflect additional time incurred in defending an employer/insurer’s unsuccessful appeal.” Nash v. Aecom Tech. Carp., 07-990, p. 8 (La.App. 3 Cir. 2/6/08), 976 So.2d 263, 268. Accordingly, we award claimant $2,500.00 in attorney’s fees for work done in connection with this appeal.

^DECREE

The ruling of the WCJ finding that the lumbar epidural steroid injection recommended by Claimant’s treating physician must be approved by Cajun and Zurich is affirmed. We also affirm the denial of penalties and attorney’s fees on the basis that it was not arbitrary and capricious for Cajun and Zurich to deny the recommended treatment because they were relying on the decision of the Workers’ Compensation Administration’s Medical Director. However, we award $2,500.00 in attorney’s fees to Claimant for work done on appeal. All costs of this appeal are assessed to Defendants-Appellants, Cajun Well Services, Inc. and Zurich American Insurance Company.

AFFIRMED.

      . Cajun and Zurich do not dispute that claimant was in the course and scope of his employment at the time of the alleged accident.


author: EZELL, Judge.

text:
    Joshua DORE v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY, OFFICE OF MOTOR VEHICLES.
    No. CA 13-892.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 12, 2014.

      Stephen A. Quidd, Jennifer Del Murray, Department of Public Safety & Corrections, Baton Rouge, LA, for Defendant/Appellant, State of Louisiana, DPS, Office of Motor Vehicles.
    D. Warren Ashy, A .Professional Law Corporation, Lafayette, LA, for Plaintiff/Appellee, Joshua Dore.
    Court composed of MARC T. AMY, BILLY HOWARD EZELL, and JOHN E. CONERY, Judges.
   EZELL, Judge.

|, The State of Louisiana Department of Public Safety, Office of Motor Vehicles (hereinafter DPS) appeals the decision of the trial court ordering a notation on the driving record of Joshua Dore for refusal of a chemical test to be stricken. For the following reasons, we reverse the decision of the trial court.

On May 23, 2010, Mr. Dore was arrested for operating a vehicle while intoxicated. Mr. Dore had a commercial drivers’ license (CDL) at the time. At the scene, Mr. Dore refused to take a breath test. Thereafter, in accordance with state and federal law, Mr. Dore’s CDL was disqualified for one year. He did not in any way challenge this disqualification, even though administrative appeal was an option. After his year of disqualification, Mr. Dore applied for reinstatement of his driving privileges and was issued a Class A CDL. He then filed the current suit to challenge the notation on his driving record indicating his refusal to take the chemical test.

After a hearing on the issue, the trial court below ordered the notation stricken from Mr. Dore’s driving record. The DPS appeals, asserting as its sole assignment of error that the trial court erred in so ruling. We agree.

In cases concerning issues of law, “the standard of review of an appellate court is simply whether the court’s interpretive decision is legally correct.” Duhon v. Briley, 12-1137,12-1138, p. 4 (La.App. 4 Cir. 5/23/13), 117 So.3d 253, 257-58. “Accordingly, if the decision of the trial court is based upon an erroneous application of law rather than on a valid exercise of discretion, the decision is not entitled to deference by the reviewing court.” Id.

In this matter, the relevant statute is La.R.S. 32:414.2. It states, in pertinent part (emphasis added):

| ¾A. (l)(a) Notwithstanding any other law to the contrary, a person shall be disqualified from driving a commercial motor vehicle for committing any offense specified in this Section. The disqualification offenses apply to violations occurring in this or any other state or in any foreign jurisdiction complying with the requirements of the Federal Motor
Carrier Safety Administration for commercial motor vehicles. The department shall suspend, revoke, or cancel the commercial driving privileges of a person who is disqualified to drive pursuant to this Section.
(b)(i) There shall be no economic hardship license to operate a commercial motor vehicle. Upon receipt of a conviction of an offense which requires disqualification of commercial driving privileges, the department shall disqualify the individual from commercial driving privileges. A disqualification shall be imposed even if the conviction is set aside or dismissed pursuant to any provision of the Code of Criminal Procedure unless the conviction is set aside or dismissed because of an appeal of the conviction. The disqualification shall become part of the individual’s official operating record.
(4) Except as provided in Subpara-graph (A)(2)(a) for lifetime disqualification, and in Paragraph (A)(3) for three years disqualification for offenses committed while transporting hazardous materials, any person shall be disqualified from operating a commercial motor vehicle for a minimum period of one year for:
(d) A first offense of refusal to submit to an alcohol concentration or drug test, while operating a commercial motor vehicle or noncommercial motor vehicle by a commercial driver’s license holder.
(9)(a) The operating record of a commercial motor vehicle driver shall include those offenses where an individual has pled guilty and been sentenced thereupon, forfeited bond resulting in a final judgment of forfeiture,' or been found guilty in a final disposition by a court of competent jurisdiction of violating a law in the operation of a motor vehicle, regulatory actions in which an individual has been adjudged at fault....

^Moreover, under 49 C.F.R. § 384.225(a)(emphasis added), the DPS must: “Post and maintain as part of the CDLIS driver record: (1) All convictions, disqualifications and other licensing actions for violations of any State or local law relating to motor vehicle traffic control (other than parking, vehicle weight, or vehicle defect violations) committed in any type of vehicle.”

In this case, Mr. Dore was advised of his rights as required by La.R.S. 32:661(C), as he signed the form acknowledging that his license would be suspended for the refusal to submit to a chemical test for intoxication. This suspension came via an administrative regulatory action, as La. R.S. 32:414.2(A)(4)(d) sets forth, not a disqualification for a conviction as the discussed in the rest of La.R.S. 32:414.2, but rather for a “first offense of refusal to submit to an alcohol ... concentration test.” The language of the statute is clear that a refusal alone results in the actions taken by the state, regardless of any subsequent criminal filings or proceedings. This is a regulatory action in which Mr. Dore has been automatically adjudged at fault. He accepted without administrative challenge his subsequent year-long disqualification for that refusal. It remains unchallenged still. Under La.R.S. 32:414.2(9)(A), the offense of refusing the chemical test was required to be noted on his driving record. The language of the statute is clear and unambiguous. Again, the fact that he was not. charged with the underlying OWI charge does not affect that whatsoever, as the disqualification was for the refusal and not for any OWI offense. The trial court committed legal error in ordering the notification removed.

Furthermore, the trial court made its ruling claiming Mr. Dore had not received proper notice of the length of the notification on his record. However, “the long-standing jurisprudential rule of law is: a statute must first be questioned |4in the trial court, not the appellate courts, and the unconstitutionality of a statute must be specially pleaded and the grounds for the claim particularized.” Vallo v. Gayle Oil Co., Inc., 94-1238, p. 8 (La.11/30/94), 646 So.2d 859, 864-65 (footnote omitted). Mr. Dore’s argument regarding lack of notice of the above-discussed law’s penalties was raised at his hearing; it was never mentioned in any pleading. Moreover, Mr. Dore did not serve the attorney general or notify him of any challenge to the constitutionality of the statute, nor did he afford DPS sufficient time to brief and prepare arguments defending the constitutionality of the statute. Hence, the trial court should not have even considered any claims of insufficient notice surrounding the law in question.

For the above reasons, the decision of the trial court is hereby reversed. Costs of this appeal are hereby assessed against Mr. Dore.

REVERSED.


author: THIBODEAUX, Chief Judge.

text:
    STATE of Louisiana v. Gerald Lamont KIMBLE.
    No. 13-912.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 12, 2014.

      James C. Downs, District Attorney-9th Judicial District Court, Harold A. Van Dyke, III, Assistant District Attorney-9th Judicial District Court, Alexandria, LA, for Plaintiff/Appellee-State of Louisiana.
    Annette Fuller Roach, Charles, LA, for Defendant/Appellant-Gerald Lamont Kim-ble.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and JIMMIE C. PETERS, Judges.
   THIBODEAUX, Chief Judge.

| ¶ After fatally shooting his brother, Anthony Kimble, the State charged Defendant, Gerald Lamont Kimble, with second-degree murder under La.R.S. 14:30.1. Defendant subsequently pled guilty to one count of manslaughter pursuant to a plea agreement with a specific sentencing range of ten to thirty years, and he was sentenced to twenty years at hard labor. On appeal, Defendant contends that the sentence was constitutionally excessive. As Defendant is proeedurally barred from raising this issue on appeal, we affirm his sentence.

I.

ISSUE

Defendant submits that the trial court’s sentence, which was in accordance with a valid plea agreement, was constitutionally excessive.

II.

FACTS AND PROCEDURAL HISTORY

On April 28, 2012, Defendant, Gerald Lamont Kimble, shot and killed his brother, Anthony Kimble. Defendant was charged by bill of indictment with one count of second-degree murder, a violation of La.R.S. 14:30.1. After a sanity evaluation, the trial court found Defendant competent to proceed with trial. Pursuant to a plea agreement, Defendant pled guilty to one count of manslaughter, a violation of La.R.S. 14:31, which has a maximum sentence of forty years. The Defendant’s plea agreement contained a specific sentencing range of ten to thirty years. At the sentencing hearing, the trial court sentenced Defendant to twenty | ¿years with hard labor. Defendant filed a Motion to Reconsider Sentence, which the trial court denied.

III.

LAW AND DISCUSSION

Defendant claims that his sentence is constitutionally excessive. However, Defendant is proeedurally barred from raising this claim. Louisiana Code of Criminal Procedure Article 881.2(A)(2) states that “[t]he defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.” The Louisiana Supreme Court further held that “the legislature intended [La.Code Crim.P. art. 881.2(A)(2) ] to apply to plea agreements involving both specific sentences and sentencing caps.” State v. Young, 96-195, p. 5 (La.10/15/96), 680 So.2d 1171, 1174. In line with the supreme court’s reasoning, we have held that sentence review is precluded “when a specific sentence or sentencing range is agreed to by both parties as part of a plea agreement, and is judicially recognized at the sentencing hearing.” State v. Goodman, 96-876, p. 4 (La.App. 8 Cir. 11/6/96), 684 So.2d 58, 61.

Here, it is uncontested that Defendant entered into a plea agreement with the State. Defendant pled guilty in exchange for a charge reduction from second-degree murder to manslaughter and a specific sentence range of ten to thirty years. Defendant and the State jointly recommended the sentence range, and Defendant was sentenced within the terms of his plea agreement. Therefore, he is now procedurally barred from appealing this issue.

_h.iv.

DISPOSITION

For the foregoing reasons, Defendant is procedurally barred from seeking review of his claim. As such, we affirm Defendant’s sentence for manslaughter.

AFFIRMED.


text:
    In re ELEANOR PIERCE (MARSHALL) STEVENS LIVING TRUST.
    No. 13-939.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 12, 2014.
    Scott J. Scofield, Phillip W. DeVilbiss, Peter J. Pohorelsky, Andrea A. Crawford, Scofield, Gerard, Pohorelsky, Gallaugher & Landry, Lake Charles, LA, for Appellant Finley Hilliard.
    Henry C. Perret, Jr., Jude C. David, Perret Doise L.L.C., Lafayette, LA, Kenneth Michael Wright, Kenneth Michael Wright, LLC, Lake Charles, LA, for Ap-pellees The Eleanor Pierce (Marshall) Stevens Living Trust, Preston Marshall and Patrick Wright.
    Court composed of ELIZABETH A. PICKETT, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   GENOVESE, Judge.

11 This case is before us on appeal from a judgment rendered against Finley Hilliard relative to his status, vel non, as co-trustee of the Eleanor Pierce (Marshall) Stevens Living Trust. For the following reasons, we find that this court does not have jurisdiction to consider the appeal because the record does not reflect that the trial court ruled on Mr. Hilliard’s Motion for New Trial. Therefore, we dismiss his appeal and remand the ease to the trial court.

DISCUSSION

The issue in this case is whether Mr. Hilliard is a co-trustee of the Eleanor Pierce (Marshall) Stevens Living Trust. The trial court entered judgment on February 15,. 2018, declaring: that the act of resignation of Finley Hilliard as co-trustee of the Eleanor Pierce Stevens Living Trust will be effective as of 3:15 P.M., February 4, 2013[, and]
... that through the same actions of attempting to accept the resignation of Finley Hilliard as co-trustee of the Eleanor Pierce (Marshall) Stevens Living Trust, that PRESTON MARSHALL, as Trust Protector of the Eleanor Pierce (Marshall) Stevens Living Trust, has effectively removed Finley Hilliard as co-trustee of the Eleanor Pierce (Marshall) Stevens Living Trust as of 3:15 P.M., February 4,2013.[]

Mr. Hilliard filed a Motion for New Trial with the trial court on March 8, 2013. Mr. Hilliard also filed a Motion for Devolutive Appeal on March 28, 2013. This court lodged the record in this appeal on August 20, 2013.

Initially, in response to Mr. Hilliard’s appeal, this court issued a rule to show cause as to why the appeal should not be dismissed as being taken from a partial | ajudgment which had not been designated as appealable pursuant to La.Code Civ.P. art. 1915(B). In Re: Eleanor Pierce (Marshall) Stevens Living Trust, 13-939 (La.App. 3 Cir. 9/25/13), 121 So.3d 1289. However, pursuant to the statutory provisions of La.R.S. 9:1791, this court recalled its rule to show cause, and Mr. Finley’s appeal was maintained. Id.

On October 7, 2013, Mr. Hilliard filed with this court a Motion to Remand to Fourteenth Judicial District Court. Mr. Hilliard’s motion reiterated his request for this matter to “be remanded so that a full and complete record can be created following discovery and ordinary proceedings.” Mr. Hilliard contends that even though La.R.S. 9:1791 required him to appeal the February 15, 2013 judgment within thirty days, a remand of this matter is still necessary. We agree.

Under La.R.S. 9:1791, Mr. Hilliard’s filing of a Motion for New Trial does not delay the time in which he is required to file an appeal. Louisiana Revised Statutes La.R.S. 9:1791 clearly requires that Mr. Hilliard file an appeal of the trial court’s judgment removing him as a trustee of the living trust “within thirty days from the date of the order or judgment notwithstanding the filing of an application for a rehearing or a new trial.” However, La. Code Civ.P. art. 2123(C) states: “An order of appeal is premature if granted before the court disposes of all timely filed | amotions for new trial or judgment notwithstanding the verdict. The order becomes effective upon the denial of such motions.”

The record before us does not reflect that the trial court ruled on Mr. Hilliard’s Motion for New Trial; therefore, the jurisdictional defect of prematurity exists, and a remand to the trial court to address Mr. Hilliard’s Motion for New Trial is warranted. This court cannot rule upon the validity of the trial court’s removal of Mr. Hilli-ard as a co-trustee unless and until the trial court renders a final judgment in the matter pursuant to its decision on Mr. Hilliard’s Motion for New Trial.

DISPOSITION

For the foregoing reasons, we dismiss Mr. Hilliard’s appeal and remand the matter to the trial court for disposition of Mr. Hilliard’s Motion for New Trial. We hereby dismiss the instant appeal at Appellant’s cost.

APPEAL DISMISSED; CASE REMANDED.

      . Mr. Hilliard has alleged that he rescinded his resignation before it was accepted.

      . This rule to show cause was issued on August 21, 2013.

      . In his response to this court’s rule to show cause, Mr. Hilliard requested "that this court remand this case to the trial court for full discovery and trial by ordinary proceedings." However, Mr. Hilliard had not filed a motion for remand; therefore, this court denied his request as being "sought ... through a procedurally inappropriate means[.]” In Re: Eleanor Pierce (Marshall) Stevens Living Trust, 121 So.3d at 1292.

      .Louisiana Revised Statutes 9:1791 provides:
      A judgment or an order of court' appointing or removing a trustee shall be executed provisionally. An appeal from an order or judgment appointing or removing a trustee must be taken and the security therefor furnished within thirty days from the date of the order or judgment notwithstanding the filing of an application for a rehearing or a new trial. The appeal shall be docketed and heard by preference.