text:
    STATE of Louisiana v. George THOMAS.
    Nos. 08-KA-1171, 08-KA-1260.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 28, 2009.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Juliet Clark, Assistant District Attorneys, Gret-na, Louisiana, for Plaintiff/Appellee.
    Mary E. Roper, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for' Defendant/Appellant.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and JEROME M. WINSBERG, Pro Tempore.
   CLARENCE E. McMANUS, Judge.

12Pefendant, George Thomas, was charged by bill of information with possession with intent to distribute cocaine in violation of LSA-R.S. 40:967(A) (count one) and with distribution of marijuana within 1000 feet of a school in violation of LSA-R.S. 40:981.3 (count two). Defendant proceeded to trial and was found guilty of the lesser charge of possession of cocaine as to count one and guilty as charged as to count two. Defendant was sentenced to three years imprisonment in the Department of Corrections for count one and five years imprisonment in the Department of Corrections for count two, to run concurrently with each other. Defendant was subsequently adjudicated a third felony offender; his original sentence for count two was vacated and he was sentenced to 30 years imprisonment with the Department of Corrections, to run concurrently with the sentence in count one. Defendant filed two appeals, one from his conviction and original sentence (08-KA-1171), and one from his multiple offender proceedings (08-KA-1260). We have consolidated these appeals for consideration by this Court.

|3The following was adduced at trial. On December 12, 2006, Deputy Glenn Weber of the Jefferson Parish Sheriffs Office was assigned as an undercover narcotics agent. Deputy Weber went to Jordan Drive in Jefferson Parish in an unmarked vehicle that was equipped with video and audio surveillance equipment. He was also given departmental funds that had been photocopied. He observed two individuals sitting in a burgundy-colored Thunderbird, with the passenger side door open. Deputy Weber gave a signal, and the passenger, who was later identified as defendant, stated he had “dro.” Deputy Weber asked about the cost and was told it would be $30.00 per bag.

Defendant refused to approach the car, so Deputy Weber exited his car and a hand-to-hand transaction took place behind the Thunderbird. Deputy Weber gave defendant $60.00, and defendant gave him two bags of marijuana in exchange. A preliminary field test and further testing confirmed that this was marijuana.

Sergeant Corey Wilson, a supervisor of a narcotics unit for the Jefferson Parish Sheriffs Office, was also involved in the undercover operation near the area of Jordan Street, an area known for narcotics dealings. Sergeant Wilson was in the area for the undercover agent’s safety and when he slowly passed by he observed the hand-to-hand transaction between Deputy Weber and defendant, who was wearing a red shirt. This location was within 1000 feet of an elementary school. After the transaction, defendant entered the passenger side of the Thunderbird. Deputy Weber confirmed on the radio that he had purchased narcotics. Sergeant Wilson followed the Thunderbird onto Third Avenue.

After observing the police, defendant jumped out of the vehicle and threw a clear, plastic bag that appeared to be narcotics on the ground. The Thunderbird escaped. Defendant ran through a vacant lot as he took off his red shirt. Defendant was ultimately located inside of an abandoned house. The red shirt was recovered and | ¿Deputy Weber identified it as the same red shirt defendant was wearing at the time of the sale.

The clear, plastic Ziploc bag that was recovered had five clear baggies each containing green vegetable matter and also had a clear bag that contained an off-white rock substance inside. These matters tested positive for narcotics. The five baggies containing green vegetable matter tested positive for marijuana, and the bag containing an off-white rock substance tested positive for cocaine.

Detective Louis Alvarez of the Gretna Police Department was assigned to the Jefferson Parish Sheriffs Office Task Force and assisted in defendant’s arrest on Third Avenue. Detective Alvarez entered an abandoned home and observed defendant inside of a closet. He requested that defendant come out the closet, and at first defendant did not comply. However, when asked again, defendant came out of the closet and a brief struggle ensued. Defendant was handcuffed and arrested. The money used to purchase the marijuana was photocopied prior to the sale. Defendant had in his possession money that matched this pre-recorded currency.

Deputy Weber was called to the scene and identified defendant as the person who sold him marijuana. Sergeant Wilson likewise made an identification.

Appeal-08-KA-ll 71

The defendant alleges that the trial court erred in failing to hold a hearing on the motions to suppress filed by the defense since all of the issues regarding the suppression of evidence were not properly disposed of during the trial. He contends that two motions to suppress were filed, and were not assigned for a hearing or withdrawn. The State responds that defendant waived his right to have the motions considered by proceeding to trial without objecting to the court’s failure to rule upon the motions.

|sThe record reflects that on February 26, 2007, defendant filed a motion to suppress evidence, arguing that statements, testimony, documents, and “things” stemming from his arrest should be suppressed because they were obtained in violation of his constitutional rights. An additional Motion to Suppress Confession, Identification, and Physical Evidence was filed on August 9, 2007. These motions were never heard and defendant proceeded to trial without obtaining rulings on the motions.

A defendant waives all pending motions by permitting trial to proceed without raising the issue that his pretrial motions were neither heard nor ruled upon. State v. Fletcher, 02-707, p. 5 (La.App. 5 Cir. 12/30/02), 836 So.2d 557, 559, writ denied, 03-0409 (La.10/10/03), 855 So.2d 334.

On appeal, defendant is challenging the use at trial of the currency found on defendant. A copy of the pre-recorded currency that was photocopied prior to the sale as well as the photocopy of the money found on defendant was admitted into evidence without objection. In addition, the narcotics were admitted into evidence without objection. As such, there is no ruling for this Court to review since defendant failed to properly preserve the issue for review by contemporaneous objection. See Fletcher, 02-707 at 5, 836 So.2d at 559 (citing LSA-C.Cr.P. art. 841).

Generally, to preserve an issue for appeal, a party need not enter a contemporaneous objection to the court’s ruling on a written motion. State v. Goal, 01-376, p. 22 (La.App. 5 Cir. 10/17/01), 800 So.2d 938, 952, writ denied, 02-2335 (La.10/3/03), 855 So.2d 294 (citing LSA-C.Cr.P. art. 841(B)). However, where a defendant initially files a pre-trial motion objecting to the introduction of certain evidence, if at trial he specifically agrees to its introduction, he has waived | fihis prior objection and loses the right to present the issue on appeal. Gaal, 01-376 at 22, 800 So.2d at 952.

We find that defendant waived the pending motions to suppress by proceeding to trial without a ruling on the motions. Additionally, the evidence at issue was admitted at trial without objection. Therefore, defendant failed to preserve this issue for appellate review. This assignment of error lacks merits.

Appeal-08~KA-1260

Defendant alleges that his enhanced sentence of thirty years for distribution of marijuana within 1000 feet of a school is constitutionally excessive under the circumstances of this case. He contends that the trial judge failed to consider his personal history and the potential for rehabilitation, and also failed to consider factors in mitigation, citing LSA-C.Cr.P. art. 894.1. Defendant also cites State v. Dorthey, 623 So.2d 1276 (La.1993) and argues that the trial court erred in failing to recognize its authority to interfere with the sentencing scheme set out by the legislature if it determined the sentence was excessive. The State responds that defendant has failed to demonstrate clearly and convincingly that the mandatory minimum sentence is excessive as applied to him, and further that defendant’s sentence is illegally lenient due to the trial court’s failure to impose a mandatory $50,000.00 fine.

Defendant was sentenced on October 17, 2008 as a third felony offender to 30 years imprisonment at hard labor, to run concurrently with his sentence in count one. After the sentence was imposed, defendant objected to the sentence as excessive, however he failed to state a specific objection or to file a timely motion to reconsider sentence following his habitual offender sentencing as required by LSA-C.Cr.P. art. 881.1. The failure to make or file a motion to reconsider sentence or to state the specific grounds on which the motion is based, limits a 17defendant to a review of the sentence for constitutional excessiveness only. State v. Fuller, 07-319, pp. 8-9 (La.App. 5 Cir. 2/19/08), 980 So.2d 45, 50, writ denied, 08-0705 (La.10/10/08), 993 So.2d 1282.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Wickem, 99-1261, p. 10 (La.App. 5 Cir. 4/12/00), 759 So.2d 961, 968, writ denied, 00-1371 (La.2/16/01), 785 So.2d 839. In reviewing a sentence for excessiveness, the reviewing court must consider the crime and the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice. Wickem, 99-1261 at 10-11, 759 So.2d at 968. See also State v. Lobato, 603 So.2d 739, 751 (La.1992).

The underlying conviction in this matter was for distribution of marijuana within 1000 feet of a school, in violation of LSA-R.S. 40:981.3. LSA-R.S. 40:981.3(E)(1) provides that “[w]hoever violates a provision of this Section shall be punished by the imposition of the maximum fine and be imprisoned for not more than one and one-half times the longest term of imprisonment authorized by the applicable provisions of R.S. 40:966 through 970.” The penalty for distribution of marijuana under LSA-R.S. 40:966(B)(3) is a term of imprisonment at hard labor for not less than five nor more than 30 years, and a fine of not more than $50,000.00. As such, for the underlying conviction, defendant faced a sentence of not more than 45 years of imprisonment and a mandatory fine of $50,000.00.

According to LSA-R.S. 15:529.1(A)(l)(b)(i), defendant was to be sentenced to imprisonment for a determinate term not less than two-thirds of the longest possible |ssentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction. Therefore, as a third offender with a LSA-40:981.3 underlying conviction and two predicate convictions of possession of cocaine, defendant faced a sentencing range of 30 to 90 years. See LSA-R.S. 15:529.1(A)(1)(b)(i); LSA-R.S. 40:981.3(E)(1); LSA-R.S. 40:966(B)(3). Defendant received a 30-year sentence, the mandatory minimum term of imprisonment.

A mandatory minimum sentence under the Habitual Offender Law may be reviewed for constitutional excessiveness. State v. Roberts, 08-391, p. 4 (La.App. 5 Cir. 10/28/08), 996 So.2d 1147, 1150 (citing State v. Lindsey, 99-3256, 99-3302, p. 4 (La.10/17/00), 770 So.2d 339, 342, cert. denied, 532 U.S. 1010, 121 S.Ct. 1739, 149 L.Ed.2d 663 (2001)). In State v. Dorthey, 623 So.2d 1276, 1280-81 (La.1993), the Louisiana Supreme Court specifically held that when a trial court determines that the minimum sentence mandated by LSA-R.S. 15:529.1 makes no “measurable contribution to acceptable goals of punishment” or that the sentence amounts to nothing more than “the purposeless imposition of pain and suffering” and is “grossly out of proportion to the severity of the crime,” the trial judge must reduce the sentence to one that would not be constitutionally excessive. Roberts, 08-391 at 4, 996 So.2d at 1150.

It is presumed that a mandatory minimum sentence under the Habitual Offender Law is constitutional. Roberts, 08-391 at 4-5, 996 So.2d at 1150 (citing State v. Johnson, 97-1906, p. 7 (La.3/4/98), 709 So.2d 672, 676). Downward departures from the minimum sentence mandated by LSA-R.S. 15:529.1 should only occur in rare situations. State v. Davis, 01-123, p. 9 (La.App. 5 Cir. 7/30/01), 792 So.2d 126, 132. A court may only depart from the mandatory sentence if it finds clear and convincing evidence in the present case that would rebut the presumption of constitutionality. Johnson, 97-1906 at 7, 709 So.2d at 676. The | abunden is on the defendant to rebut the presumption of constitutionality by showing:

[he] is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.

Johnson, 97-1906 at 8, 709 So.2d at 676 (quotation omitted).

Defendant did not urge a downward deviation at the time of sentencing. At sentencing, defendant merely stated he would be filing “a motion for appeal, possibly some Dorothy [sic] related motions.” At no time at trial or on appeal has defendant argued or presented any evidence showing any exceptional circumstances to justify a downward departure from the mandatory minimum sentence. Defendant has failed to carry his burden of proof that the sentence imposed was excessive. See State v. Roberts, 08-391 at 5, 996 So.2d at 1150.

Defendant argues that the trial court, in imposing the 30-year sentence, failed to consider mitigating factors under LSA-C.Cr.P. art. 894.1. This Court has recognized that compliance with the sentencing guidelines of LSA-C.Cr.P. art. 894.1 is not required when the sentence imposed is statutorily prescribed under the Habitual Offender Law. See State v. Roberts, 08-391 at 5, 996 So.2d at 1150.

We find no merit to defendant’s allegation that his sentence is constitutionally excessive.

We have reviewed the records in defendant’s conviction (08-KA-1171) and in his multiple bill proceeding (08-KA-1260) for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990) and find the following errors which warrant our attention.

1 inFirst, defendant was not properly advised of the prescriptive period for filing post-conviction relief. The original commitment as well as the multiple bill commitment reflects that defendant was properly advised of the prescriptive period for filing post-conviction relief. After defendant was sentenced, the judge stated he had “two (2) years in which to file an application for post conviction relief.” After the multiple bill sentencing, defendant was advised he had “two years to file an application for post conviction relief.”

This Court has held that the failure to advise a defendant that the prescriptive period runs from the time his conviction and sentence become final is incomplete. State v. Grant, 04-341, p. 5 (La.App. 5 Cir. 10/26/04), 887 So.2d 596, 598 (emphasis as found in original). The transcript prevails when there is a discrepancy between the commitment and the transcript. State v. Lynch, 441 So.2d 732, 734 (La.1983).

Accordingly, we order the trial court to properly advise the defendant of the prescriptive period under LSA-C.Cr.P. art. 930.8 by written notice within ten days of the rendition of this Court’s opinion and then to file written proof in the record that the defendant received the notice.

In addition, the commitment does not clearly reflect that the three-year sentence on count one was imposed at hard labor. It only indicates that defendant’s five-year imprisonment would be at hard labor. However, the transcript reflects defendant’s three-year sentence was imposed at hard labor. The transcript prevails when there is a discrepancy between the commitment and the transcript. Lynch, 441 So.2d at 734. We therefore further order the district court to amend the minute entries to reflect that defendant’s three years sentence is to be served at hard labor and to transmit the amended minute entry to the officer in charge of the institution to which the defendant has been sentenced. See LSA-C.Cr.P.11 art. 892(B)(2); State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam).

With regard to defendant’s enhanced 30 year sentence, we note the following. The penalty for distribution of marijuana includes a maximum fine of $50,000.00. LSA-R.S. 40:966(B)(3). LSA-R.S. 40:981.3 requires the maximum fine be imposed. The State argues that defendant’s enhanced sentence is illegally lenient because the trial court failed to impose the mandatory fine of $50,000.00. Because of this, the State requests that this Court take appropriate action with respect to correcting defendant’s sentence to conform to applicable law. However, the habitual offender statute, LSA-R.S. 15:529.1, does not authorize the imposition of a fine, but only provides for enhanced sentences relating to the term of imprisonment. State v. Moore, 06-875 at 3, 958 So.2d at 39 n. 2 (citing State v. Dickerson, 584 So.2d 1140 (La.1991) (per curiam)). We will not disturb the sentence imposed by the trial court.

We also note that the trial court did not order defendant’s enhanced sentence to be served without benefit of probation or suspension of sentence in accordance with LSA-R.S. 15:529.1(G). This error does not require corrective action, because under State v. Williams, 00-1725, p. 10 (La.11/29/01), 800 So.2d 790, 799, and LSA-R.S. 15:301.1(A), the “without benefits” provision is self-activating. State v. Moore, 06-875, p. 18 (La.App. 5 Cir. 4/11/07), 958 So.2d 36, 48.

For the above discussed reasons, the defendant’s conviction and sentence is affirmed. The case is remanded for the trial court to properly inform the defendant of the prescriptive period for post-conviction relief and to amend the minute entry as instructed above.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.


source: Caselaw Access Project

author: MARION F. EDWARDS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Arthur THOMAS.
    No. 08-KA-813.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 28, 2009.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Jeffrey J. Hand, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   MARION F. EDWARDS, Judge.

1 üDefendant/appellant, Arthur Thomas (“defendant”), appeals his conviction and sentence on a charge of armed robbery in violation of LSA-R.S. 14:64. For the reasons that follow, we affirm.

After entering a plea of not guilty at the arraignment, defendant filed a motion to suppress the identification that was denied by the trial court after a hearing. Marc Bercegeay, one of the two victims, testified at the hearing on that motion. Defendant was subsequently tried by a jury and convicted of the charge of armed robbery. He was sentenced to serve ninety-nine years in prison at hard labor.

Defendant filed a motion to reconsider sentence that was denied and a timely appeal that was granted.

\ .FACTS

Marc Bercegeay (“Mr. Bercegeay”) and Jason Mansfield (“Mr. Mansfield”) were eating lunch at Mr. Bercegeay’s apartment when someone, claiming to be “Kevin” knocked on the door. Mr. Mansfield answered the door because Mr. Ber-cegeay knew someone named Kevin. However, the person at the door was not Kevin. Mr. Bercegeay asked the visitor to identify himself. The man, later identified as defendant, answered that Mr. Berce-geay knew who he was and what this was about. At that point, defendant pulled out a gun and instructed Mr. Mansfield to lie down on the floor. Defendant told Mr. Bercegeay to give him money. Mr. Berce-geay pulled some cash out of his pocket and gave it to defendant. Defendant stated that he wanted the “rest of the money” and indicated that he knew Mr. Bercegeay cashed a check that morning. Defendant grabbed Mr. Bercegeay’s wallet and a struggle ensued. Mr. Bercegeay refused to let go of his wallet and defendant struck Mr. Bercegeay on the head with the gun.

During the struggle between defendant and Mr. Bercegeay, Mr. Mansfield got up and ran out of the door and called for help. Defendant grabbed a set of keys and a cell phone and ran out of the back door. As he was calling 911, Mr. Mansfield observed defendant riding towards 1-10 on a bicycle.

The crime was investigated by Deputy Daniel Ordoyne (“Deputy Ordoyne”) and Detective Michael Miller (“Detective Miller”) of the Jefferson Parish Sheriffs Office. Deputy Ordoyne obtained a description of the perpetrator, which he broadcasted to fellow officers. The deputy also took photos of Mr. Bercegeay’s injuries.

Mr. Bercegeay indicated to the officers that a woman named Terry, an old drug acquaintance, may be involved in the robbery. Mr. Bercegeay arrived at this | conclusion because he saw Terry pass by his apartment about thirty seconds after the robbery. Mr. Bercegeay told Detective Miller that he called his stolen cell phone about ten minutes after the incident and someone, who identified himself as “Hawk, Eddie or Big A” answered the phone.

Police found a bicycle and a cap on the side of a building on the 1-10 Service Road about four blocks from the robbery shortly afterwards. Mr. Mansfield recognized the cap as the one the perpetrator was wearing, and the bike as the one the perpetrator was riding as he left the scene.

Mr. Bercegeay described the perpetrator to police officers as a tall, heavy-set black man wearing a baseball cap, dark jeans, and shirt. The following day, Mr. Bercegeay identified the defendant in a photo lineup presented to him by investigating officers. Mr. Mansfield also identified defendant in a separate photo lineup.

Mr. Bercegeay, through his own investigating, learned that a man matching defendant’s description and riding a silver bike frequented a nearby scrap metal yard. The manager of the scrap metal yard knew the man as “Big A.” Another employee of the business described Big A and said his name was Arthur. Mr. Berce-geay gave this information to police investigators.

As a result of the investigation, defendant was arrested and charged with the crime.

LAW

In brief to this Court, defendant assigns two errors and requests a review of the record for errors patent on the face of the record. In the first, he asserts the trial court erred in failing to grant his motion for new trial. In defendant’s written | Rmotion for new trial, he argued that there was newly discovered evidence, but also mentions that the verdict is contrary to the law and evidence. At the hearing, however, he argued that the basis of his motion was essentially that new evidence was revealed at trial to show that other people were present at the time of the incident and that evidence could have changed the verdict had it been provided in a timely manner. The trial judge denied the motion, noting that defendant had possession of the 911 tape that mentioned other people and that it was the defense who played a portion of the tape at trial while cross-examining Mr. Mansfield. The court noted that defendant addressed the issue in questioning Mr. Mansfield and that his questioning was not restricted by the court.

On appeal, defendant is arguing that the trial court erred in denying his motion for new trial because the evidence was legally insufficient. Defendant briefly mentions that any defense based on these potential witnesses was hindered because Mr. Mansfield was inconsistent as to who was present at the time of the alleged armed robbery. However, the focus of his argument is the sufficiency of the evidence, not the trial judge’s denial of his motion for new trial based on newly discovered evidence.

Generally, the denial of a motion for new trial presents nothing for review on appeal. However, this Court has reviewed the sufficiency of evidence used to convict under such circumstances.

The constitutional standard for testing the sufficiency of the evidence requires that a conviction be based on proof sufficient for any rational trier of fact, ^viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. When circumstantial evidence forms the basis for a conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. The rule as to circumstantial evidence is, assuming every fact to be proved that the evidence tends to prove, in order to convict, must exclude every reasonable hypothesis of innocence. WTien circumstantial evidence forms the basis for a conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. This statutory test works with the Jackson sufficiency test to evaluate whether all evidence, direct or circumstantial, is sufficient to prove guilt beyond a reasonable doubt to a rational trier of fact.

To support a conviction for armed robbery, the State must prove beyond a reasonable doubt that there was a taking of anything of value from the person of another by use of force or intimidation while armed with a dangerous weapon. A gun used in connection with and at the scene of a robbery is as a matter of law a dangerous weapon.

Defendant argues the evidence was insufficient because of Mr. Mansfield’s conflicting testimony. Defendant argues that Mr. Mansfield told the 911 operator there were other witnesses present but told the detective that only he and Mr. Bercegeay were present in the apartment at the time of the robbery. Defendant |7argues that Mr. Mansfield testified at trial that no other witnesses were present, but he later stated that he could not recall but there may have been others there.

Defendant argues that the evidence does not support Mr. Mansfield’s testimony and that the many inconsistencies combined with the lack of any corroborating evidence all rebut this conviction.

Initially, Mr. Mansfield testified that he and Mr. Bercegeay were alone at the time of the incident. On cross-examination, after hearing the 911 tape that was played, he recognized that he told the 911 operator others were there. On redirect, however, the matter was clarified. Mr. Mansfield agreed that what he said on the 911 tape was in reference to neighbors who heard what was happening and came to help Mr. Bercegeay.

It appears another discrepancy at trial occurred when Mr. Mansfield acknowledged that he told the police in his statement that defendant produced a black weapon from his waistband that was a .45, which is a semi-automatic weapon. Mr. Mansfield testified at trial, however, that the gun was a “big black automatic gun.”

Even assuming these discrepancies were not explained, they go to the credibility of the witness. The credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. It is not the function of the appellate court to assess credibility or reweigh the evidence.

Defendant also asserts there is a lack of any corroborating evidence. However, it is noted that Mr. Mansfield testified regarding several facts that were corroborated by Mr. Bercegeay’s testimony. Both victims testified that Mr. Mansfield was at Mr. Bercegeay’s apartment, that Mr. Mansfield opened the door, Rand that, when defendant knocked on the door, he claimed to be Kevin. Both Mr. Bercegeay and Mr. Mansfield testified that defendant pulled out a gun and told Mr. Mansfield to lie down on the floor. Both testified that defendant wanted money, that a struggle ensued, and that Mr. Mansfield ran for help.

As Mr. Mansfield called 911, he saw the perpetrator he later identified as defendant leave on a bicycle and told the operator in what direction defendant was heading. Mr. Mansfield was taken to a location about four blocks from the robbery where a bicycle was found. He recognized the bicycle as the one defendant was riding. Fingerprints lifted from the recovered bicycle matched defendant’s fingerprints.

Based on the foregoing, we find the evidence was sufficient to support defendant’s conviction for armed robbery. Accordingly, we find no merit in this assignment.

In the second assignment of error, defendant avers the trial court imposed an excessive sentence. Because we find an error patent that requires the sentence be vacated, the argument on excessive sentence is rendered moot.

Defendant was convicted on May 20, 2008. On May 29, 2008, the trial court denied defendant’s motion for new trial. Immediately thereafter, the trial court stated, “[a]ll right. Mr. Thomas, is there anything you wish to say on your behalf, or, Mr. Lambert, you wish to say on Mr. Thomas’s behalf before I sentence him?” Defense counsel replied, “[n]o, Your Hon- or.” Defendant stated, “I think I’ll hold my tongue, sir.” The trial court then sentenced defendant.

A twenty-four-hour delay in sentencing after denial of a motion for new trial is required unless waived by defendant. Defendant was not afforded a twenty-|four-hourn delay between the denial of his motion for new trial and sentencing, and there is no indication that defendant expressly waived the delay.

When the defendant challenges the penalty imposed and the imposed sentence is not mandatory, the failure to observe the twenty-four-hour delay mandated by law cannot be considered harmless error. In this instance, defendant’s sentence was not mandatory, and he did challenge his sentence on appeal. Under these circumstances, we hereby vacate the defendant’s sentence and remand the case for re-sentencing.

Further, as noted by the State in its brief, the trial court failed to properly inform defendant of the time period within which to apply for post-conviction relief, as required by LSA-C.Cr.P. art. 930.8. The trial court is reminded to properly advise the defendant in accordance with article 930.8 upon re-sentencing.

CONVICTION AFFIRMED; SENTENCE VACATED; MATTER REMANDED.

      . Mr. Bercegeay died of unrelated causes before the trial on the merits. The transcript of his testimony at the motion to suppress the identification hearing was read to the jury.

      . In addition to the two assignments of error presented for our review by defense counsel, defendant has written a letter to this Court questioning the accuracy of the transcript of the hearing on the motion to suppress the identification in which Mr. Bercegeay testified. This Court has reviewed the accuracy of the certified transcript read to the jury at trial and is satisfied that it is correct.

      . The question of sufficiency of evidence is properly raised in the trial court by a motion for post-verdict judgment of acquittal. LSA-C.Cr.P. art. 821; State v. Hooker, 05-251 (La. App. 5 Cir. 1/17/06), 921 So.2d 1066, 1074. Although defendant filed a motion for new trial, he did not file a motion for post-verdict judgment of acquittal under LSA-C.Cr.P. art. 821. Procedurally, there is a distinction between the two motions. Nonetheless, the failure to file a post-verdict judgment of acquittal does not preclude appellate review of the sufficiency of the evidence. State v. Washington, 421 So.2d 887, 889 (La.1982).

      . State v. McFarland, 06-970 (La.App. 5 Cir. 5/29/07), 960 So.2d 1132, 1136-37, writ denied, 07-1448 (La. 1/7/08), 973 So.2d 732.

        .Id.

      . Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

      . State v. Williams, 99-223 (La.App. 5 Cir. 6/30/99), 742 So.2d 604, 608.

      . LSA-R.S. 15:438.

      . McFarland, supra.

      . State v. Watson, 08-214 (La.App. 5 Cir. 8/19/08), 993 So.2d 779, 783-84.

      . LSA-R.S. 14:64(A); State v. Ragas, 07-3 (La.App. 5 Cir. 5/15/07), 960 So.2d 266, 271, writ denied, 07-1440 (La. 1/7/08), 973 So.2d 732, cert. denied, -U.S.-, 129 S.Ct. 55, 172 L.Ed.2d 56 (2008).

      . State v. Refuge, 300 So.2d 489, 491-92 (La. 1974).

      . Ragas, 960 So.2d at 271-72.

      . LSA-C.Cr.P. art. 873.

      . State v. Young, 04-1318 (La.App. 5 Cir. 4/26/05), 902 So.2d 461, 470.

      . Id.


author: McDonald, j.

text:
    Anthony GOBERT v. S.W.D.I., L.L.C.
    No. 2008 CA 1598.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 2009.

      J. Arthur Smith, III, Nicole D. Streva, Baton Rouge, LA, for Plaintiff/Appellant-Anthony Gobert.
    Matthew W. Tierney, Kristine D. Smiley, Baton Rouge, LA, for Defendant/ Ap-pellee-S.W.D.L, L.L.C.
    Before PETTIGREW, McDONALD, HUGHES, JJ.
   McDonald, j.

| Jn this workers’ compensation case, the claimant, Anthony Gobert, was participating in a work release program under the auspices of the Louisiana Department of Public Safety and Corrections. On June 14, 2000, while performing his job working for S.W.D.I., L.L.C., (hereafter S. W.D.I.) he was riding on the back of a garbage truck. The garbage truck collided with a parked vehicle, and Mr. Gobert sustained a severe injury to his lower right leg. Mr. Gobert was returned to prison because he could not perform his work duties. While he was in prison he suffered serious complications and had to undergo numerous surgeries.

After his release from state custody, Mr. Gobert was convicted of a federal offense and was taken into federal custody. On April 12, 2006, while incarcerated, he filed a disputed claim for compensation, seeking to interrupt prescription of his claims for indemnity and medical expenses. S.W.D.I. filed an answer, asserting that Mr. Gobert was incarcerated when benefits were terminated and that benefits were not due during the period of incarceration. Further, S.W.D.I, asserted that prior to his last period of incarceration, Mr. Gobert was allowed to work; that it had been more than a year since Mr. Gobert had seen the treating physician with respect to his ability to work; and further, that Mr. Gobert was not presently entitled to any weekly workers’ compensation benefits.

Thereafter, Mr. Gobert filed a motion for stay order, asserting that after the accident, he was returned to incarceration and during the incarceration he was not entitled to workers’ compensation benefits; and thus, he had filed his claim to interrupt prescription and to preserve his rights to future medical expenses and indemnity benefits when he was released from prison. S.W.D.I. filed a peremptory exception raising the objection of |3no cause of action, asserting that pursuant to La. R.S. 23:1201.4, Mr. Gobert’s workers’ compensation benefits were forfeited during his period of incarceration and that the disputed claim for compensation failed to state a cause of action upon which relief could be granted.

After a hearing, the workers’ compensation judge ruled in favor of S.W.D.I., denying the motion to stay, granting the peremptory exception raising the objection of no cause of action, and dismissing all claims with prejudice. Mr. Gobert appealed the judgment, asserting that the workers’ compensation judge erred in denying the motion for a stay order and erred in granting the peremptory exception raising the objection of no cause of action.

Louisiana Revised Statute 23:1201.4 provided (prior to amendment by Acts of 1999, No. 320):

The employee’s right to compensation benefits, including medical expenses, is forfeited during any period of incarceration, unless a workers’ compensation judge finds that an employee has dependents who rely on a compensation award for their support, in which case said compensation shall be made payable and transmitted to the legal guardian of the minor dependent or other person designated by the workers’ compensation judge and such payments shall be considered as having been made to the employee. After release from incarceration, the employee’s right to claim compensation benefits shall resume.

In Clark v. Mrs. Fields Cookies, 1997-0397 (La.1/21/98), 707 So.2d 17, the court found that incarceration does not suspend the running of prescription for filing a workers’ compensation claim while the injured worker remains confined. The court specifically rejected the argument that under La. R.S. 23:1201.4, an injured worker should be prevented from filing a claim for benefits while imprisoned and that the prescriptive period would be suspended during that time.

|/Thereafter, the Louisiana legislature amended La. R.S. 23:1201.4 to add:

An employee who is incarcerated but is later found to be not guilty of felony criminal charges or against whom all felony charges have been dismissed by the prosecutor shall have the prescriptive period for filing a claim for benefits under this chapter extended by the number of days he was incarcerated.

The historical and statutory notes to La. R.S. 23:1201.4 explain the intention behind Acts 1999, No. 320, Section 2, as follows: “The provisions of this Act are intended to legislatively overrule the finding that incarceration does not suspend prescription for filing a workers’ compensation claim as stated in the Louisiana Supreme Court decision Clark v. Mrs. Field’s Cookies, 707 So.2d 17 (La.1998).”

However, while the legislature may have intended to legislatively overrule the finding that incarceration does not suspend prescription for filing a workers’ compensation claim, the amendment only suspends prescription in a small number of cases; that is, those in which the defendant is incarcerated and later found not guilty and those in which all felony charges are later dismissed. In those cases, the defendant’s right to file a claim would be suspended by the number of days he was incarcerated.

However, those inmates who are not later found to be not guilty or who do not later have all their felony charges dismissed do not have a suspension of their right to file a claim for workers’ compensation benefits. Thus in our case, Mr. Go-bert does not have a suspension of prescription for the time period during which he is incarcerated. Thus, while he cannot collect workers’ compensation benefits while he is incarcerated, he must be able to file his claim while he is incarcerated in order to preserve his right to collect benefits when he is released.

|/The Louisiana Supreme Court explained the standard of review of the sus-tainment or denial of a peremptory exception raising the objection of no cause of action in Kinchen v. Livingston Parish Council, 2007-0478 (La.10/16/07), 967 So.2d 1137, 1138 (citing Fink v. Bryant, 2001-0987 (La.11/28/01), 801 So.2d 346, 348-49) as follows:

The function of the peremptory exception of no cause of action is to question whether the law extends a remedy to anyone under the factual allegations of the petition. The peremptory exception of no cause of action is designed to test the legal sufficiency of the petition by determining whether [the] plaintiff is afforded a remedy in law based on the facts alleged in the pleading. No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. The exception is triable on the face of the papers and for the purposes of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. In reviewing a trial court’s ruling sustaining an exception of no cause of action, the appellate court ... should subject the case to de novo review because the exception raises a question of law and the trial court’s decision is based only on the sufficiency of the petition. Simply stated, a petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief.

The workers’ compensation judge found that Mr. Gobert’s right to compensation was forfeited while he was incarcerated; therefore, he had no cause of action. However, our review of the case shows that while Mr. Gobert could not collect workers’ compensation benefits while incarcerated, he did have the right to file his cause of action while incarcerated, thus we reverse the trial court judgment granting the peremptory exception raising the objection of no cause of action and remand the case to the trial court for further proceedings. Mr. Gobert’s motion to stay is denied. Costs are assessed against S.W.D.I.

REVERSED AND REMANDED.


author: DOWNING, J.

text:
    STATE of Louisiana v. Aaron BERNARD.
    No. 2008 KW 1372R.
    Court of Appeal of Louisiana, First Circuit.
    May 8, 2009.

      Hillar Moore, III, District Attorney, Doug Moreau, District Attorney, Ettie S. Bernie, Asst. District Attorney, Dylan C. Alge, Asst. District Attorney, Baton Rouge, LA, for Relator, State of Louisiana.
    Jason Chatagnier, Mark D. Plaisance, Baton Rouge, LA, for Respondant, Aaron Bernard.
    Before CARTER, C.J., WHIPPLE and DOWNING, JJ.
   DOWNING, J.

12Pefendant, Aaron Bernard, was charged by grand jury indictment with two counts of aggravated rape, violations of La. R.S. 14:42; one count of distribution of cocaine to a person under eighteen years of age, a violation of La. R.S. 40:967 and 981; and one count of false imprisonment with a dangerous weapon, a violation of La. R.S. 14:46.1.

Defendant entered a plea of not guilty and filed a pretrial motion to suppress a statement made to Rose Marie Collins an employee of the Office of Community Services (OCS). In his motion to suppress, defendant argues the statements made to Collins were obtained without his being advised of his rights. After taking the matter under advisement following the hearing on the motion to suppress, the trial court granted the motion.

The State filed a writ application with this Court to review the trial court’s ruling on the motion to suppress, and defendant filed a response. On August 29, 2008, this Court issued an interim order directing the trial court to submit a per curiam on the issues of whether defendant was “in custody” when he gave statements to a child caseworker and whether a community services agent was a “state actor” who had a duty to administer Miranda warnings.

In State v. Bernard, 2008 KW 1372 (La. App. 1st Cir.10/9/08) (unpublished), this Court denied the State’s writ application. The State then filed a supervisory writ application with the Supreme Court. In State v. Bernard, 2008-2569 (La.12/12/08), 997 So.2d 552, the Supreme Court granted the State’s writ application and remanded the matter to this Court for briefing and argument.

FACTS

On September 5, 2006, defendant was arrested and charged with aggravated rape and false imprisonment with a dangerous weapon. The alleged victim is |3eleven-year-old F.H. At the time of the incident at issue, Collins was an investigator with the Child Protection Office of OCS. On September 22, 2006, Collins met with defendant at the East Baton Rouge Parish Prison, where defendant had been incarcerated since September 5, 2006. Collins arranged to meet with defendant because OCS received a report of possible abuse or neglect of the children living at defendant’s residence. The focus of the OCS investigation was defendant’s girlfriend, who was the mother of all the children in the residence. Defendant was the father of the youngest child in the residence. Collins explained that OCS policy was to interview everyone in the home with regard to what took place in the home.

During her testimony at the motion-to-suppress hearing, Collins stated she was aware of an incident that took place in defendant’s home on September 5, 2006, and this was the incident she was investigating with respect to the children in the house. On cross-examination, Collins explained that this matter was referred to OCS through a call into the agency’s twenty-four-hour hotline.

Collins testified that prior to speaking with defendant, she had not reviewed any police reports pertaining to the criminal investigation, nor had she spoken to any of the investigating officers. Collins further testified that she was not a party to the September 5, 2006 interview of defendant by law enforcement.

According to Collins, she was not conducting a criminal investigation of the events of September 5, 2006, nor did she contact anyone in law enforcement prior to her interview of defendant. Upon leaving Parish Prison, Collins never contacted any law enforcement personnel to advise them of the interview. She stated, however, that she was required to report the investigation to the D.A.’s office, which she apparently did.

When Collins arrived at Parish Prison, she waited for defendant to be brought into a holding cell. When defendant was brought in, she introduced Rherself, providing defendant with her name and title. Collins testified she explained to defendant that OCS was conducting an investigation with regard to his girlfriend and the well-being of her children. Collins further explained that OCS received a report of possible abuse or neglect and that because defendant was the father of the youngest child and a member of the household, OCS wanted to interview him with regard to the daily activities of the home. Collins informed defendant that he had a right not to speak with her if he chose and that if he did not wish to speak with her, she would leave.

After explaining to defendant that she was investigating Claudia, defendant expressed that Claudia was a “good mother,” and stated had he not been under the influence of cocaine, the incident with F.H. would not have happened. According to Collins, defendant’s demeanor was very nice and articulate, and he spoke clearly. Collins testified that she did not threaten, promise, or induce defendant in an effort to get him to speak with her. Collins did not question defendant about the criminal investigation or charges against him. Collins indicated she spent approximately ten minutes with defendant.

Collins did not provide Miranda warnings to defendant and stated she had not been trained in such warnings. According to Collins, administering Miranda warnings is not part of her responsibility based on OCS protocol.

Collins acknowledged that she is required by law to report her investigative findings to the juvenile division of the district attorney’s office, which would determine if that office wanted to pursue further action. Collins testified that she did not forward her report to the specific law enforcement agency investigating the criminal charges against defendant. The focus of the OCS investigation that Collins was conducting was whether the children residing in defendant’s home should be adjudicated “children in need of care.”

According to Collins, this is not a criminal proceeding, but a civil action whereby a juvenile court judge determines [ .^whether the children will remain in parental custody or will be removed. Collins further testified that OCS just supplies information and does not use its findings to tell the district attorney or law enforcement whom to arrest.

ISSUES RAISED BY THE STATE

1. The lower court erred in finding that defendant was “in custody” when Collins spoke with defendant at the East Baton Rouge Parish Prison. More specifically, the lower court erred by failing to apply the well-established totality test that governs all custody determinations.

2. The lower court erred in determining that Collins needed to issue defendant Miranda warnings before conducting her investigation. More specifically, the lower court erred by finding that being a “state actor” is all that is necessary before one must give Miranda warnings to a defendant.

DISCUSSION

When reviewing a trial court’s ruling on a motion to suppress based on findings of fact, great weight is placed on the trial court’s determination because the court has the opportunity to observe the witnesses and weigh the relative credibility of their testimony. Appellate courts will not set a credibility determination aside unless it is clearly contrary to the record evidence. But the legal findings of the trial court on a motion to suppress are subject to review without the great deference standard attached to credibility determinations. State v. Peterson, 2003-1806, p. 9 (La.App. 1st Cir.12/31/03), 868 So.2d 786, 792, writ denied, 2004-0317 (La.9/3/04), 882 So.2d 606.

In Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966), the United States Supreme Court set forth the doctrine that the prosecution may not use a statement, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. These safeguards, commonly known as the Miranda warnings, are as follows: Prior to any questioning, the person must be warned that he has a right [ rito remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. Id.

Miranda warnings are applicable only when it is established that the defendant has been subject to a “custodial interrogation.” Id. The Louisiana Supreme Court has reiterated that Miranda only applies where the party performing the “interrogation” is a “state actor.” State v. Maise, 2000-1158, p. 10 (La.1/15/02), 805 So.2d 1141, 1149.

Custodial Interrogation

In the State’s first issue, it argued the trial court erred in finding defendant was in custody when Collins spoke to him at the East Baton Rouge Parish Prison.

In Miranda, the Supreme Court defined “custodial interrogation” as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” 384 U.S. at 444, 86 S.Ct. at 1612.

In Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968), the Supreme Court addressed a case where a defendant, while incarcerated in state jail, was questioned by an internal revenue agent as to whether he had prepared a specific tax return. The defendant also consented to extend the statute of limitations on the tax return at issue. Following the investigation conducted by the internal revenue agent, defendant was charged and convicted of filing false claims based on the tax return at issue. On appeal, defendant argued the internal revenue agent should have warned him that any evidence he gave the government could be used against him. The government contended that defendant was not “in custody” in connection with the matter being investigated by the internal revenue agent, thus there was no need for the agent to administer Miranda warnings. Mathis, 391 U.S. at 4, 88 S.Ct. at 1504-05.

|7The Supreme Court declined to recognize a distinction regarding the basis of the defendant’s incarceration and the basis of the government’s investigation. In so holding, the court noted that nothing in Miranda called for a curtailment of the warnings to be given persons under investigation by officers based on the reason why the person is in custody. Id. 391 U.S. at 4-5, 88 S.Ct. at 1505. The Supreme Court quoted from Miranda, to emphasize this point:

“To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized.” [Miranda v. Arizona], 384 U.S., at 478, 86 S.Ct., at 1630.

Mathis, 391 U.S. at 5, 88 S.Ct. at 1505.

In the present case, defendant’s incarceration in the East Baton Rouge Parish Prison clearly qualifies him as being “in custody.” We are not persuaded by the State’s urging that recent case law allows for a “totality of the circumstances” application. None of the cases cited by the State involve a situation wherein a defendant was questioned following his arrest and incarceration. Given this important factual distinction, there is no need to examine the totality of the circumstances surrounding defendant’s interview with Collins. Accordingly, we cannot say the trial court erred in determining that defendant was “in custody” when Collins interviewed him.

State Actor

The State also argues the trial court erred in finding that as an OCS worker Collins was a “state actor.”

|sThe Louisiana Supreme Court in State v. Maise, 2000-1158, at pp. 10-11, 805 So.2d at 1149, determined that a Jefferson Parish probation officer was a “state actor,” by using the following analysis:

In West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988), the United States Supreme court defined state action as “the deprivation caused by the exercise of some right or privilege created by the State ... or by a person for whom the State is responsible,” and “the party charged with the deprivation must be a person who may fairly be said to be a state actor.” The Court further stated that “[Sjtate employment is generally sufficient to render the party a state actor.” Id. at 47, 108 S.Ct. 2250. In the instant case, the statement was made to a Jefferson Parish probation officer, an agency of the state. Therefore, the probation officer was a “state actor.

In Mathis v. United States, the U.S. Supreme Court analyzed whether the internal revenue agent who interviewed a defendant in jail was required to give Miranda warnings before speaking with him. The Court found the internal revenue agent was required to issue such warnings before speaking to defendant (who was incarcerated). In so finding, the Court noted that although the internal revenue agent was conducting a “routine tax investigation,” which usually invokes civil enforcement, there are types of tax investigations that frequently lead to criminal prosecutions. Mathis, 391 U.S. at 4, 88 S.Ct. at 1505.

Using the guidance provided by the Mathis and Maise courts, we note that Collins was employed by OCS, a state agency, and that Collins was required by law to report her investigative findings to the juvenile division of the District Attorney’s Office. Collins testified that defendant’s girlfriend treatment of the children was the main focus of the investigation, and the information she gathered could be utilized in a civil proceeding where the children would be adjudicated “children in need of care.” However, Collins’s own testimony indicated that she was investigating allegations of abuse and neglect of the children. Information regarding allegations of child abuse, which she was required to turn over to the | aD.A., is material in both civil proceedings under the Children’s Code and in criminal prosecutions.

Accordingly, we conclude the trial court did not abuse its discretion in determining Collins was a “state actor.” Under these circumstances, we find the trial court’s ruling granting defendant s motion to suppress his statements to Collins to be proper. In this situation, Collins should have informed defendant of his Miranda rights prior to questioning him about the allegations of abuse and neglect of the children in the household he shared with them.

DECREE

For the foregoing reasons, we affirm the trial court’s ruling granting the defendant’s motion to suppress statements.

TRIAL COURT’S RULING GRANTING DEPENDANT’S MOTION TO SUPPRESS STATEMENTS AFFIRMED.

      . Rose Marie Collins is sometimes referred to in the record as Rosemarice Collins.

      . In brief, the State argues that the cases of Stansbury v. California, 511 U.S. 318, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994) (per curiam), and Thompson v. Keohane, 516 U.S. 99, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995), have created a "line of caselaw concerning the definition of custody,” and "any portion of Mathis that is inconsistent with the current totality test may no longer be considered good law.” We disagree. In Stansbury, the defendant was questioned at a police station prior to being arrested for any crime, and in Thompson, the defendant was questioned pri- or to his arrest at a state trooper headquarters.


text:
    Eloyce Everett Wife of/and Aldon EVERETT v. Gordon N. PHILIBERT, Bel Oaks Builders, Inc. and ABC Insurance Company.
    No. 2008 CA 2270.
    Court of Appeal of Louisiana, First Circuit.
    May 8, 2009.

      David C. Clement, Lara J. Jensen, New Orleans, LA, for Plaintiffs/Appellants, Eloyce Everett wife of/and Aldon Everett.
    Andre C. Gaudin, Dennis J. Phayer, Benjamin C. Rodgers, Sue Buser, Metair-ie, LA, for Defendants/Appellees, Bel Oaks Builders.
    John S. Lawrence, Jr. Mandeville, LA, for Defendant/Appellee, Gordon N. Phili-bert.
    Gerald A. Melchiode, Sarah R. Ziomek, Jason J. Markey, New Orleans, LA, for Defendant/Appellee, Essex Insurance Company.
    Charles L. Dirks, III, Baton Rouge, LA, for Defendant/Appellee, Hi Insulation, L.L.C.
    Before CARTER, C.J., WHIPPLE and DOWNING, JJ.
   DOWNING, J.

[gPlaintiffs, Aldon and Eloyce Everett, appeal a judgment granting Essex Insurance Company’s (Essex’s) motion for summary judgment. In the judgment the trial court ruled that the Commercial General Liability (CGL) policy issued by Essex to Gordon N. Philibert and Bel Oaks Builders, Ine., (collectively, Bel Oaks), provided no coverage for the tort claims alleged in plaintiffs’ petition. The trial court also ruled that Essex had no duty to defend Bel Oaks against those claims. For the following reasons, we affirm the trial court judgment.

PACTS AND PROCEDURAL HISTORY

This litigation arises out of alleged defects or deficiencies in the construction of a residence in Covington. The Everetts entered into a written contract with Bel Oaks and its president, Mr. Philibert, to build a house. The Everetts repeatedly lodged complaints about alleged drastic deficiencies in the construction. Bel Oaks never resolved the problems, and the contract was cancelled.

The Everetts filed suit against Bel Oaks alleging negligent hiring, negligent supervision, breach of contract, and breach of the New Home Warranty Act. Later they filed an amended petition against Essex as the insurer of Bel Oaks. In Essex’s answer it denied all allegations and asserted that the policy precluded coverage for plaintiffs’ claims, which included property damage, bodily injury, and emotional and economic damages.

Essex filed a motion for summary judgment, asserting that due to the policy exclusions, there was no coverage under the policy for the claims alleged against Bel Oaks. The trial court granted the motion and dismissed plaintiffs’ claims against Essex with prejudice. In plaintiffs’ appeal, they assert various reasons why the trial court erred in finding no coverage under the policy. These assignments of error include: that the policy was ambiguous; that the work product exclusion did |3not reference claims for bodily injury; and that the breach of contract exclusion failed to apply to the negligence claims.

STANDARD OF REVIEW

A trial court should grant summary judgment if the pleadings, depositions, answers to interrogatories, admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art 966 B. Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Lacrouts v. Succession of Longo, 04-1938 (La.App. 1 Cir. 9/23/05), 923 So.2d 717, 719. Summary judgment is a proper procedural method of determining the meaning of a contract when no factual issue is raised. Id.

DISCUSSION

Initially, the movant bears the burden of proof on the motion for summary judgment; if the movant successfully meets this burden, then the burden shifts to the other party to present factual support that he/she will be able to satisfy the evidentiary burden at trial. Supreme Services and Specialty Co. v. Sonny Greer, Inc., 06-1827, p. 5 (La.5/22/07), 958 So.2d 634, 638. The insurer has the burden of proving that a policy claimed loss falls within the exclusion. Id., 06-1827, p. 6, 958 So.2d at 639.

In support of its motion for summary judgment pursuant to LSA-C.C.P. art. 966, Essex introduced the Bel Oaks — Everett building contract, the depositions of both plaintiffs, the affidavit of the Essex claims examiner, and the CGL policy. Pertinent provisions of the policy are as follows:

The Contractor Limitation Endorsement provides, in pertinent part:

The coverage under this policy does not apply to “bodily injury,” “property damage,” “personal injury,” “advertising injury,” or |4any injury, loss or damage arising out of inadequate, improper, faulty or defective construction ...

The Breach of Contract Exclusion provides:

This insurance does not apply to claims for breach of contract, whether express or oral, nor claims for breach of an implied in law or implied in fact contract, whether “bodily injury,” “property damage,” “advertising injury,” “personal injury” or an “occurrence” or damages of any type is alleged; this exclusion also applies to any additional insured under this policy.
Furthermore, no obligation to defend will arise or be provided by us for such excluded items.

The Endorsement, dated July 20, 2003, for mold exclusion provides, in pertinent part:

It is hereby understood and agreed that Item 5 of either M/E001 (4/00) or M/E-001 (4/99) is amended to read as follows:
5. Asbestos, Lead, Silica Dust, Mold, Bio-organic Growth or Mildew are not covered under this policy, nor are any expenses nor are any obligation to share damages with or repay anyone else who must pay damages from same in conjunction with occurrences arising or alleged to have arisen out of:
(a) “Bodily Injury,” “Personal Injury,” “Property Damage” or Damages of any type, arising out of the inhalation, ingestion, physical exposure to, absorption of, or toxic substances from asbestos, lead, silica dust, mold, bio-organic growth or mildew in any form, or from any goods, products or structures containing same; ...

We first consider the breach of contract exclusion.

After Essex presented its evidence, it pointed out that the Everetts’ claims for bodily injury and emotional distress arose from Bel Oak’s failure to properly construct the residence. While acknowledging that some facts can support a both tort action and breach of contract action, Essex asserted that plaintiffs failed to demonstrate that Bel Oaks committed an independent act of negligence or breach of a general duty. Essex asserted that pursuant to LSA-C.C.P. art. 966 C(2), the Everetts have failed to produce the factual support sufficient to establish that they will be able to satisfy their evidentiary burden of proof at trial since all of their alleged claims were excluded under the breach of contract exclusion.

|sIn response, the Everetts contend that they can prevail at trial because: (1) the policy is ambiguous and does not clearly exclude their claims as the exclusion does not explicitly exclude “claims relating to, arising from and/or based upon a breach of contract;” and (2) their claims sound in tort as well as breach of contract.

In this case, the policy exclusions unambiguously exclude claims for breach of contract, whether express or oral, for “bodily injury,” “property damage,” “advertising injury,” “personal injury” or an “occurrence” or damages of any type, if alleged from the faulty construction caused by the builder or its subcontractors. These exclusions are not limited to intentional or negligent breach, but address all breaches of contract claims. Thus, there is no merit to the claim of ambiguity.

The Everetts claim they may be able to recover if their claims for personal injury arise in tort and are separate from the breach of contract claims. Citing Borden, Inc. v. Howard Trucking Company, Inc., 454 So.2d 1081, 1096 (La.1983); Dietrich v. Travelers Ins. Co., 551 So.2d 64, 66-67 (La.App. 1 Cir.1989); In re St. Louis Encephalitis Outbreak in Ouachita Parish No. 01-1221 All Cases, 41,250-41,-259 (La.App. 2 Cir. 9/1/06), 939 So.2d 563, 566-67; Dubin v. Dubin, 25,996 (La.App. 2 Cir. 8/17/94), 641 So.2d 1036, 1039-1040, they argue that the same operative facts can create separate actions; when a person negligently performs a contractual obligation, he has committed an action in tort.

We agree that it is well settled that the same acts or omissions may constitute breaches of general and contractual duties and may give rise to both actions in torts and actions in contract. See Franklin v. Able Moving & Storage Company, Inc., 439 So.2d 489, 491 (La.App. 1 Cir.1983). However, for the Everetts to prevail under this theory, they must show that their negligence claims are separate and distinct and not arising from the breach of contract claim. See Dubin, 25,996, 641 So.2d at 1039-1040. Particularly, the tort claim must arise from a duty other than one imposed by the contract. See In re St. Louis \Encephalitis, 41,250, 939 So.2d at 566-567, where the trial court ruled in favor of plaintiffs because, even though there was an alleged breach in the contractual obligation, plaintiffs petition also alleged a breach of duty owed to all persons which supported a separate and distinct action in tort.

Here, however, all of the claims of personal injury and emotional distress arise from the duty created by the contract to build a house competently, which is a duty personal to the Everetts. Despite the Ev-eretts’ arguments to the contrary, our review of the record indicates that their claims for bodily injury and emotional distress, including the ones that may have been caused by mold and mildew, all arise from the alleged underlying negligent breach of contract. The record is void of any showing to negate that the Essex exclusions clearly and unambiguously do not provide coverage for bodily injury and emotional distress. All the tort claims alleged by the Everetts, stem from Bel Oaks’ contractual duty to properly and timely construct a residence. There is no showing of a breach of a general duty. The only allegations in the petition are for breaches of duty confected by contract.

After conducting our de novo review, we conclude that the policy at issue is not ambiguous and that the policy and the breach of contract clause in the policy clearly exclude the personal injury damages which Bel Oaks and/or its subcontractors may become liable to plaintiffs. The discussion of the other possible arguments by the Everetts is therefore pretermitted. Pursuant to LSA-C.C.P. art. 966 C(2), the Everetts have failed to produce the factual support sufficient to establish that they will be able to satisfy their evidentiary burden to prevail at trial. Accordingly, summary judgment was appropriate. We conclude there are no genuine issues of material fact, and, the CGL policy issued by Essex to Bel Oaks does not provide coverage for plaintiffs’ claims.

|7The cost of this appeal is assessed against the plaintiffs/appellants Eloyce Everett and Aldon Everett. This memorandum opinion is issued in accordance with Uniform Rules of Louisiana Courts of Appeal Rule 2-16.1B.

AFFIRMED.

WHIPPLE, J., concurs.

      . The New Home Warranty Act is not at issue in this appeal.


author: PETTIGREW, J.

text:
    Robert ARMANT v. Tim WILKERSON, Warden, Winn Correctional Center; Libby Tigner, Carl Coleman, Tommy Glover and James Rails.
    No. 2008 CA 2287.
    Court of Appeal of Louisiana, First Circuit.
    May 8, 2009.
    Robert Armant, Winnfield, LA, in proper person, Plaintiff-Appellee.
    Jonathan R. Vining, Baton Rouge, LA, for Defendant-Appellant,- Louisiana Department of Public Safety and Corrections.
    Before PETTIGREW, McDONALD, and HUGHES, JJ.
   PETTIGREW, J.

| aThis is an appeal by defendant, the Department of Public Safety and Corrections for the State of Louisiana (“DPSC”), from a September 9, 2008 judgment of the 19th Judicial District Court. Among other things, the judgment ordered the restoration of 540 days of good time credits to plaintiff, Robert Armant, and the recalculation of Mr. Armant’s good time release date in accordance with the findings of the court. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

At all time pertinent hereto, Mr. Armant was an inmate at Winn Correctional Center in Winnfield, Louisiana. In June 2007, Mr. Armant filed a request for relief pursuant to La. R.S. 15:1177 seeking judicial review of the final agency decision rendered under Administrative Remedy Procedure No. WNC-2006-1485. Mr. Armant alleged his good time had been improperly taken without authority by a private prison contractor in violation of the requirements of La. R.S. 39.T800.5, which provides as follows:

No contract for correctional services shall authorize, allow, or imply a delegation of authority or responsibility to a prison contractor for any of the following:
(1) Development and implementation of procedures for calculating inmate release and parole eligibility dates.
(2) Development and implementation of procedures for calculating and awarding sentence credits.
(3) Approval of inmates for furlough and work releases.
(4) Approval of the type of work inmates may perform and the wages or sentence credits which may be given the inmates engaging in such work.
(5) Granting, denying, or revoking sentence credits.

According to the record before us, when this matter was initially before the Commissioner on October 4, 2007, DPSC was ordered to supplement the record with a copy of Mr. Armant’s master prison record to prove whether he was eligible for good time. DPSC complied with said order. On February 6, 2008, the Commissioner remanded the matter to DPSC to address whether the forfeiture of good time at issue had been approved by an employee of DPSC. In response thereto, DPSC submitted a copy of the|3disciplinary report in question and the affidavit of Elizabeth Tig-ner, a full-time employee of DPSC. Ms. Tigner stated in her affidavit that she “visits Winn Correctional Center each week whereby she reviews and initials all disciplinary reports.” Ms. Tigner further indicated that the initials on the disciplinary report at issue were her own and that “no employee of the private prison contractor can either award or deduct good time credits.”

The next minute entry in the record is from May 27, 2008, at which time Mr. Armant, appearing in proper person, and counsel for DPSC were both present for a hearing on Mr. Armant’s petition for judicial review. During the hearing, Mr. Ar-mant “moved to expand the pleadings by way of request for production of documents.” According to the record, the matter was argued by the parties, submitted to the Commissioner, and granted. DPSC was ordered to produce all of Mr. Ar-mant’s disciplinary reports generated at Winn Correctional Center since December 2000 to the present where good time had been taken. DPSC responded with twelve disciplinary reports where a loss of good time was imposed as a disciplinary penalty. In connection with the twelve reports, DPSC maintained that all but two of the reports, an October 6, 2007 report and a report dated October 9, 2001, had been clearly signed and/or initialed by a full-time DPSC employee.

After reviewing all twelve reports, the Commissioner found two other reports that contained illegible notations. The Commissioner ultimately concluded that Mr. Armant was entitled to the restoration of 540 days of good time credits as follows:

On February 6, 2008 this matter was remanded to the Department to address whether the Department had approved the petitioner’s loss of good time at issue. The Department responded with 12 disciplinary reports where a loss of good time was imposed as a disciplinary penalty. The defendants acknowledge that two of the reports do not contain any form of notation to show an employee of the Department approved the loss of good time in those particular matters. The defendants contend good time was not yet taken in an October 6, 2007 report and a report dated October 9, 2001 contains no initials or notation to indicate the loss of good time had been approved by the Department. However, this Commissioner additionally finds the disciplinary reports dated October 3, 2001 and June |410, 2001 contain illegible notations to identify the Department’s employee who approved the loss of good time or the date of the approval of the loss of good time.

The defendants are unable to present proof regarding the following three disciplinary incident reports to show an employee of the Department approved the taking of good time as a penalty in these particular disciplinary matters:

October 9, 2001 — 180 days good time credit taken as a penalty
October 3, 2001 — 180 days good time credit taken as a penalty
June 10, 2001— 180 days good time credit taken as a penalty
As no good time was taken on the [October 6, 2007] incident report, no good time should be restored. However, the defendants offered no basis for the delay in the approval of the loss of good time imposed on the [October 6, 2007] disciplinary report. The Department should not be allowed to go back at this point in these proceedings, after the petitioner has challenged the manner in which his .good time was taken, and actually take the 150 days of good time credits imposed as a prior disciplinary penalty. This Commissioner finds the petitioner is entitled to the restoration of 540 days of good time credits in this matter.
Accordingly, it is the recommendation of this Commissioner that the final agency decision rendered in this matter be reversed as an abuse of discretion and manifestly erroneous pursuant to R.S. 15:1177(A)(9). The defendants should be ordered to recalculate the petitioner’s good time release date in accord with the findings of this recommendation within thirty days of the signing of a judgment in this matter.

On September 9, 2008, the district court signed a judgment adopting the Commissioner’s recommendation and reasons as its own. It is from this judgment that DPSC has appealed, assigning the following specifications of error:

1. It is an error of law for the District Court to interpret LSA-R.S. 39:1800.5 and this Court’s decision in Singleton so as to require initials by a state employee on any disciplinary report issued by a private prison contractor for that report to be considered a valid forfeiture of good time.
2. It is an error of law for the District Court to interpret this Court’s decision in Singleton so as to allow review of every disciplinary report ever issued to a particular inmate within one (1) suit for judicial review.[]

[.DISCUSSION

On appeal, DPSC argues that this court’s decision in Singleton v. Wilkinson, 2006-0637 (La.App. 1 Cir. 2/14/07), 959 So.2d 969, merely requires approval by DPSC of any loss of good time that is recommended by a private prison contractor. DPSC maintains that Singleton is void of any language stating that the initials of a state employee must appear on each disciplinary report from a private prison contractor in order for the report to be valid. Rather, DPSC asserts this court in Singleton merely found that one acceptable method for DPSC to approve a loss of good time recommended by a private prison contractor was for a state employee to initial the report and thereby approve the good time forfeiture. We disagree with DPSCs interpretation of our holding in Singleton.

In Singleton, petitioner, an inmate at Winn Correctional Center, challenged an action by DPSC whereby petitioner was penalized for an act of defiance with an upgrade to maximum custody status and forfeiture of 180 good time days. Petitioner argued that because the prison disciplinary board, comprised of employees of the private entity Corrections Corporation of America (“CCA”) rather than DPSC personnel, imposed his forfeiture of good time, it exceeded its authority under La. R.S. 39:1800.5. Singleton, 2006-0637 at 2, 959 So.2d at 969-970. After review of the Commissioner’s report and the evidence in the record, this court reversed the district court’s judgment, which had affirmed the decision of DPSC to uphold petitioner’s loss of good time, noting as follows: Winn

While it is understandable that for practical purposes, Mr. Slay or a similarly situated and experienced DPSC employee may not be present at each and every CCA inmate disciplinary hearing, the system in place should ensure that DPSC oversight of such proceedings be consistent and clearly delineated by the presence of a DPSC official’s initials on each disciplinary report that is reviewed. In this regard, the language quoted above from the DPSC’s First Step Response bears repeating: “He [Mr. Slay] is at Winn Correctional Center twice a week, reviewing and initialing all disciplinary reports.” Additionally, the DPSCs “Second Step Response” to Mr. Singleton states: “Mr. Slay, a full time DOC employee, reviews all disciplinary actions by the CCA staff.”
We do not necessarily disagree with this policy, but we note that the copy of Mr. Singleton’s disciplinary report in the record is of poor quality and it is not at all clear to this court that Mr. Slay or any other DPSC official reviewed the CCA disciplinary officials’ decision to forfeit Mr. [ fiSingleton;s good time days. It is thus not clear from the record that the necessary DPSC oversight and approval required to validate the CCA officials’ decision imposing forfeiture of Mr. Singleton’s good time days pursuant to La.R.S. 39:1800.5 has occurred.

Singleton, 2006-0637 at 5-6, 959 So.2d at 971 (emphasis added). Thus, it is clear from our holding in Singleton that when private prison contractors impose sentences on inmates at disciplinary hearings, there must be oversight and approval by DPSC, “clearly delineated by the presence of a DPSC official’s initials on each disciplinary report that is reviewed,” in order to satisfy the statutory provisions of La. R.S. 39:1800.5.

As in Singleton, it is not clear from the record before us that the necessary DPSC oversight and approval required to validate the private prison contractor’s decision imposing forfeiture of Mr. Armant’s good time days pursuant to La. R.S. 39:1800.5 has occurred. Thus, we find no error in the district court’s judgment, ordering the restoration of 540 days of good time credits to Mr. Armant and the recalculation of Mr. Armant’s good time release date in accordance with the recommendation of the Commissioner.

CONCLUSION

For the above and foregoing reasons, we affirm the September 9, 2008 judgment of the district court. Appeal costs in the amount of $665.50 are assessed against DPSC.

AFFIRMED.

      . With regard to the October 6, 2007 report, DPSC indicated that no good time forfeiture had been imposed because the report had not yet been reviewed by Ms. Tigner. Concerning the October 9, 2001 report, DPSC noted that although the report was never initialed by a DPSC employee, it involved the loss of 180 days of good time, a sentence that was indeed imposed.

      . We note no objection in the record by counsel for DPSC to Mr. Armant's motion to expand the pleadings or to the Commissioner's ruling granting same. Failure to object deprives the district court, or in this case the Commissioner, of the opportunity to correct a contested ruling and constitutes waiver of the issue on appeal. La.Code Civ. P. art. 1635; Martin v. Martin, 44,020, p. 5 (La.App. 2 Cir. 12/3/08), 3 So.3d 512, 515. See also Schoon-

        maker v. Capital Towing Co., 512 So.2d 480, 486 (La.App. 1 Cir.), writ denied, 514 So.2d 458 (La.1987). Thus, as this issue has not been properly preserved for appellate review, we will pretermit discussion of same.