author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. Joe Nathan SMITH, Appellant.
    No. 47,800-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 27, 2013.

      Teresa C. Carroll, Jonesboro, LA, for Appellant.
    John M. Lancaster, District Attorney, Penny W. Douciere, John C. Hamilton, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and PITMAN, JJ.
   WILLIAMS, J.

17 The defendant, Joe Nathan Smith, was charged by grand jury indictment with three counts of second degree murder, violations of LSA-R.S. 14:30.1. Pursuant to a plea agreement, the state reduced the charges and defendant pled guilty to three counts of manslaughter, violations of LSA-R.S. 14:31. Additionally, the state agreed to a sentencing cap of 30 years on each count, with the sentences to run concurrently. The district court sentenced defendant to serve concurrent sentences of 30 years at hard labor on each count. The sentence for one count was imposed without benefit of probation or suspension of sentence because the victim was under ten years of age. The defendant appeals his sentences as excessive, arguing that this court should review his sentences, even though they were imposed in conformity with the plea agreement. For the following reasons, we affirm.

FACTS

On October 14, 2008, at approximately 3:00 a.m., the defendant and five others went to the Bonair Street home of Linda Christmas and poured gasoline on her vehicle, which was parked under a wooden carport attached to her house. After the gasoline was ignited, the fire spread from the vehicle to the house, where the owner and six others were asleep. As a result of the fire, the -victims, Tiffany Davis (age 19), Derrick Davis (age 17), and Devon Christmas (age 4), were overcome by smoke and died in a back bedroom.

The defendant was arrested and charged with three counts of second degree murder. After the trial began, the state and the defendant reached a plea agreement, which provided that the charges would be reduced to three |2counts of manslaughter in exchange for the defendant’s guilty plea. The state also agreed to a sentencing cap of 30 years for each count, with the sentences to run concurrently. The trial court advised defendant of his rights under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and defendant stated he understood that by pleading guilty, he would be giving up these constitutional rights. The court then continued:

Court: Is there anything I’ve discussed with you that you don’t understand?
Smith: No, sir.
Court: Okay. Okay. Do you also — and also understand that since you’re entering into a sentence with a plea with a cap you won’t be allowed or may not be allowed to appeal or seek review of the length or severity of that sentence? Okay? You understand that?
Smith: Yes.

The trial court accepted the defendant’s guilty pleas to three counts of manslaughter. The trial court sentenced defendant to serve 30 years on each count, with the sentences to run concurrently. The sentence for one count was imposed without benefit of probation or suspension of sentence because the victim was under age ten. The defendant’s motion to reconsider sentence was denied and this appeal followed.

DISCUSSION

Although the defendant’s sentence was imposed in conformity with the plea agreement and sentencing cap, he argues that he should be able to appeal the excessiveness of his sentence because of the trial court’s reference to the possibility of an appeal during the plea colloquy. Under our 1 ¡jConstitution, no person shall be subjected to imprisonment without the right of judicial review based upon a complete record of all evidence on which the judgment is based. This right may be intelligently waived. La. Const. Art. 1, § 19.

A 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. LSA-C.Cr.P. art. 881.2(A)(2). This provision applies to both agreed-upon sentences and sentencing ceilings, ranges and caps. State v. Young, 96-0195 (La.10/15/96), 680 So.2d 1171; State v. Foster, 42,212 (La.App.2d Cir.8/15/07), 962 So.2d 1214.

In Foster, supra, the district court told Foster during the plea colloquy that by pleading guilty, he was waiving his right to appeal “except as to the .amount of the sentence!.]” Considering that statement, this court, sitting en banc, found that Foster did not intelligently waive his constitutional right of review and held that a sentence made in conformity with a plea agreement could be reviewed if the record showed the defendant did not contemplate that by pleading guilty he was waiving his right to appeal his sentence for excessiveness.

Subsequently, in State v. Fizer, 43,271 (La.App.2d Cir.6/4/08), 986 So.2d 243, this court held that the sentence imposed within the agreed cap was not reviewable, even though at sentencing the court had informed Fizer of the time limitations for appeal. We reasoned that because the trial court did not mention any appeal rights during the plea colloquy, the defendant’s plea was not influenced by a belief that he could later seek review of his 14sentence. In another case, State v. Pullig, 44,606 (La.App.2d Cir.9/23/09), 22 So.3d 1043, the trial court advised Pullig after sentencing of the time limits for filing an appeal. Noting that the court did not inform Pullig of a right to appeal during the plea colloquy and that the defendant had not reserved his right to seek review of his sentence at that time, this court found that the trial court’s notice did not affect the voluntariness of Pullas guilty plea and so he was precluded from seeking review of the sentence made in conformity with the plea agreement.

The situation in this case can be distinguished from that of the Fizer and Pullig cases, in which the courts did not mention any appeal rights during the plea colloquy. The present situation is more similar to that of the Foster case, in that during the plea colloquy, the district court addressed the defendant’s ability to appeal the length of the sentence to be imposed. In light of the conditional language used by the court regarding a possible appeal, the defendant may not have contemplated that by pleading guilty he was waiving his right to appeal his sentence as excessive. Thus, there is a potential question as to whether the trial court’s advice affected the volun-tariness of defendant’s plea. Therefore, consistent with this court’s decision in Foster, we shall review the sentences for ex-cessiveness.

Sentencing

The defendant contends the trial court erred in imposing excessive sentences. Defendant argues that less harsh sentences would accomplish the goals of punishment and rehabilitation.

An appellate court utilizes a two-pronged test in reviewing a sentence | Bfor excessiveness. First, the record must show that the trial court took cognizance of the criteria set forth in LSA-C.Cr.P. art. 894.1. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259, writ denied, 2008-2341 (La.5/15/09), 8 So.3d 581.

Second, a sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166.

A trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, a sentence will not be set aside as excessive. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. A defendant’s lack of remorse is a proper sentencing consideration. State v. Birch, 43,119 (La.App.2d Cir.3/19/08), 979 So.2d 643. The penalty for committing manslaughter is imprisonment at hard labor for a maximum of 40 years. However, if the victim killed was under age 10, then |fithe sentencing range is 10 to 40 years’ imprisonment at hard labor without benefit of probation or suspension of sentence. LSA-R.S. 14:31(B).

Prior to imposing sentencing, the trial court reviewed a presentence investigation (PSI) report, which included a lengthy statement of the circumstances of the crime and showed that defendant did not have any prior convictions. In considering the guidelines of Article 894.1, the court found that there was an undue risk the defendant would commit another crime if not incarcerated, that the defendant was in need of correctional treatment that could be provided most effectively by his commitment to an institution and that a lesser sentence would deprecate the seriousness of his crimes.

Regarding the defendant’s social history, the court was aware that defendant was 23 years old and unmarried at the time of sentencing, that he had attended special education classes in school and had received a high school equivalency certifl-cate. The trial court found defendant’s young age, absence of prior criminal convictions, and his mental capacity to be mitigating factors.

As aggravating factors, the court found that defendant’s participation in a planned arson of a vehicle outside an inhabited home at 3:00 a.m. constituted deliberate cruelty to the victims, that defendant knowingly created a risk of death or great bodily harm to more than one person, that defendant did not show any remorse about his role in causing the death of three people and that the offense resulted in significant permanent injury and economic loss to the victims and their families. In addition, the court |7noted that defendant had obtained a significant reduction in exposure to confinement through the plea bargain.

The record demonstrates that the trial court took cognizance of the sentencing guidelines and tailored the sentences imposed to this specific defendant. Based upon the circumstances of this case, where the defendant participated in setting fire to the property with the inhabitants asleep inside and caused the loss of three young lives, the trial court did not abuse its discretion in imposing these concurrent 30-year sentences, which do not shock the sense of justice. Thus, we cannot say the sentences imposed are constitutionally excessive. The assignment of error lacks merit.

We have examined the record for error patent and found none.

CONCLUSION

For the foregoing reasons, the defendant’s convictions and sentences are affirmed.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    Carmen BELL, Plaintiff-Appellee v. GOODWILL INDUSTRIES OF NORTH LOUISIANA, INC., Defendant-Appellant.
    No. 47,803-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 27, 2013.

      Michael D. Lowe, Shreveport, LA, for Appellant.
    Mary L. Jackson, for Appellee, Carmen Bell.
    Cynthia T. Batiste, Jonathan C. Augustine, for Appellee, Louisiana Workforce Commission.
    Before WILLIAMS, STEWART and PITMAN, JJ.
   WILLIAMS, J.

|! Defendants, Goodwill Industries of North Louisiana, Inc. and Louisiana Workforce Commission, appeal the trial court’s finding that claimant, Carmen Bell, is entitled to a telephone hearing to appeal the denial of her unemployment compensation benefits. For the following reasons, we reverse and dismiss this claim.

FACTS

Claimant, Carmen Bell, was employed by Goodwill Industries of North Louisiana, Inc. (“Goodwill”) for approximately six years. On January 6, 2011, claimant’s employment was terminated. Claimant filed a claim for unemployment compensation benefits, asserting that she had been “discharged/fired” for “substandard work, substandard conduct.” However, Goodwill maintained that claimant voluntarily resigned. Subsequently, Louisiana Workforce Commission notified claimant that she had been disqualified from receiving unemployment compensation benefits. The letter stated, in part:

YOU STATE THAT YOU WERE SEPARATED FROM YOUR EMPLOYMENT DUE TO LACK OF WORK/DISCHARGE; YOUR EMPLOYER CONTENDS THAT YOU LEFT VOLUNTARILY. WE WERE UNABLE TO CONTACT YOU FOR FURTHER INFORMATION ABOUT YOUR SEPARATION; HOWEVER, AVAILABLE INFORMATION INDICATES THAT YOU LEFT VOLUNTARILY WITHOUT GOOD CAUSE ATTRIBUTABLE TO A SUBSTANTIAL CHANGE MADE TO THE EMPLOYMENT BY THE EMPLOYER. PLEASE NOTE YOUR APPEAL RIGHTS SHOWN BELOW.

Claimant appealed the denial to the Louisiana Workforce Commission Appeals Unit. On May 26, 2011, a Notice of Telephone 12Hearing was mailed to claimant at the address she had provided in her original claim for benefits. In the notice, claimant was notified of the telephone number at which she would be contacted and was instructed to notify the administrative law judge’s office if she wished to be called at a different number. Additionally, claimant was notified that her hearing was scheduled for “Friday, May 27, 2011 [at] 10:00 a.m.” The notice also stated, “If the party who filed the appeal is not available when called, their appeal will be dismissed.”

Subsequently, the hearing was cancelled and rescheduled for June 6, 2011 at 10:15 a.m. On that date, the administrative law judge (“ALJ”) called claimant, but claimant was not available to receive the call. Consequently, claimant was found to be in default and her claim was dismissed due to failure to “appear.”

On June 14, 2011, claimant filed a request to reinstate her appeal, alleging that she was not available for the June 6, 2011 hearing “because she was at the dentist.” Claimant included a school/work excuse, along with a letter from her dentist verifying that claimant was seen that day for a surgical tooth extraction. Claimant’s request to reinstate her appeal was granted.

A hearing date was scheduled for June 30, 2011. During the hearing, both claimant and her supervisor, Lindsay Leith, testified and answered questions posed by the ALJ and defense counsel. Following the hearing, the ALJ concluded that claimant did not voluntarily leave her employment with Goodwill. Rather, the ALJ found that claimant had been terminated |3for misconduct, ie., the deliberate violation of a company policy, and, therefore, she was disqualified from receiving unemployment benefits.

Claimant appealed the decision to the Louisiana Board of Review (“the Board”), contending that she had not been granted a fair hearing. Claimant argued that the ALJ and her employer’s attorney asked her “the same question over and over.” Claimant also stated that the ALJ’s conduct was “biased and inappropriate.” Further, claimant asserted that she overheard the ALJ ask opposing counsel to remain on the telephone at the conclusion of the hearing. Claimant stated, “I felt very uncomfortable in this and how was I to know if this interaction had crossed the lines of ethics?”

The Board reviewed the matter and vacated the ALJ’s decision. The Board stated claimant’s appeal “raise[d] legitimate questions as to whether the [ALJ] compromised the integrity of the administrative proceeding.” The Board remanded the matter for another hearing.

On August 3, 2011, a notice was mailed to claimant informing her that her telephone hearing was scheduled for August 15, 2011 at 10:45 a.m. Claimant was also notified that the hearing would be conducted by a different ALJ, David King. Again, the notice was mailed to the address claimant had provided; claimant was notified of the telephone number at which she would be contacted; claimant was instructed to notify the ALJ’s office if she wished to be called at a different number; and claimant was notified that her appeal would be dismissed if she was not available for the hearing.

|4The ALJ called claimant on the day of the hearing, but claimant did not answer the telephone. An automated voice message system informed the ALJ that claimant’s telephone number was “not available” and instructed the ALJ to record a message. The ALJ left a message informing claimant that the telephone call was late because he was “held up due to another hearing[.]” The ALJ’s message also informed claimant that he would call her back “in a few minutes just to make sure and see if you’re going to participate in the hearing today[.]” Approximately six minutes later, the ALJ called claimant again and received the same voicemail message. At that time, the ALJ left another message informing claimant that he would issue a dismissal due to her being unavailable for the hearing. Subsequently, the ALJ found claimant to be in default and dismissed her appeal on the basis that she was unavailable to participate in the scheduled hearing.

On August 26, 2011, claimant filed a request to reopen the matter, arguing that she had not received notice of the hearing. The Board upheld the ALJ’s decision, finding that claimant had received proper notice of the hearing and that she did not provide good cause for failing to appear.

Claimant sought judicial review of the Board’s decision, arguing that she was not notified of the August 15, 2011 telephone hearing. Goodwill and the Louisiana Workforce Commission opposed the appeal, arguing that notice of the hearing was mailed to claimant’s address, and claimant failed to appear for the hearing.

During the hearing, the trial court encouraged counsel to rebut the | «¡legal presumption that claimant received the notice mailed to her address. The court inquired, “[H]ow does the court know that she didn’t get [the notice]?” Counsel replied, in part, “[A]ll I can say here is what Ms. Bell has related to me and what has been presented to me up until this time.” At the conclusion of the hearing, the court remanded the matter for a new hearing. The court stated:

[T]he Court has no problem accepting the presumption that notice was sent, but given the history of this case and the Court having some appreciation of the volume that the State has in these matters, and notwithstanding the Court’s not necessarily persuaded by Ms. Bell’s contention that she did not receive notice, I just think the fairer thing to do is to have a hearing on the merits of this ease.
Now, I hope I said enough were any appellate court would know that it’s not that the Court is making a decision on the record, per se, but this Court just does not feel comfortable that Ms. Bell ought to be denied a hearing given the history of this case[.]
* * *
[I]’m not saying that the agency has done something wrong and I don’t think [claimant has] done anything wrong, it’s just that this Court is more concerned with having a hearing on the merits than to see her denied a hearing on a technicality of notice.

Goodwill and Louisiana Workforce Commission appeal.

DISCUSSION

Defendants contend the trial court failed to apply the standard of review set forth in LSA-R.S. 23:1634 and refused to apply the evidentiary presumption that claimant had received proper notice of the appeal hearing. Defendants argue that the court ignored the conclusion of the Board and substituted its own view for that of the Board.

IrA party who has been denied unemployment benefits may appeal the determination with an appeal referee within 15 days after the date notification was given or was mailed to his last known address. LSA-R.S. 23:1630. Notice of an unfavorable decision must be sent to the claimant in a manner reasonably calculated to apprise him or her of the situation. Jones v. Blache, 480 So.2d 894 (La.App. 2d Cir.1985), citing, Bailey v. Cajun Insulation, 453 So.2d 237 (La.1984).

A notation on the notice giving the date mailed, and showing that correspondence was sent to the address given on the claimant’s claim, creates a rebutta-ble presumption that it was mailed on the date shown and that the claimant received it. Id. The agency has no legal obligation to ensure actual receipt by the claimant. Id.

In a proceeding for judicial review of an agency determination of unemployment benefits, “the findings of the board of review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law.” LSA-R.S. 23:1634(B); Menyweather v. Office of Employment Security, 43,170 (La.App.2d Cir.4/30/08), 981 So.2d 814; Banks v. Administrator, 393 So.2d 696 (La.1981). Judicial review does not permit the weighing of evidence, drawing of inferences, re-evaluation of the evidence, or substituting the views of the court for those of the board as to the correctness of facts. Menyweather, supra; Lafitte v. Rutherford House Inc., 40,-395 (La.App.2d Cir.12/14/05), 917 So.2d 684.

In the instant case, when claimant applied for unemployment ^compensation benefits, she supplied Louisiana Workforce Commission with her address. All of the notices sent to claimant were mailed to the same address. The record contains a copy of the notice of the hearing scheduled for August 15, 2011. That notice, dated August 3, 2011, was addressed to claimant at the address she had provided; the address on the notice was the same address to which the prior notices had been sent and received; the notice informed claimant that her telephone hearing was scheduled “Monday, August 15, 2011 [at] 10:45 a.m.”

Based on this record, we find no error in the Board of Review’s ruling. The notice was sent to claimant in a manner reasonably calculated to apprise her of the hearing. As stated above, the notice was sent to the address provided by claimant, and claimant presented no evidence, other than assertions advanced by counsel, that she did not receive the notice. Although the trial court stated it was “not necessarily persuaded by Ms. Bell’s contention that she did not receive notice,” it stated that providing claimant with another hearing was the “fairer thing to do.”

After reviewing the record in its entirety, we find that the trial court erred in reversing the Board’s decision. The law is clear — the notation on the notice giving the date mailed, and showing that correspondence was sent to the address given on the claimant’s claim, creates a rebutta-ble presumption that it was mailed on the date shown and that the claimant received it. Jones, supra; Bailey, supra. The law does not require Louisiana Workforce Commission to prove that claimant actually received the notice. The notice, which was addressed to claimant, stated that it was | ^mailed August 3, 2011 to the address provided by claimant. Thus, there is a legal presumption that the notice was mailed and that claimant received it. Plaintiff failed to offer any evidence to rebut this presumption. Consequently, the Board’s decision is affirmed as a matter of law. The trial court’s decision is hereby reversed.

CONCLUSION

For the reasons set forth herein, the trial court’s judgment is reversed and claimant’s action is dismissed. Costs of the appeal are assessed to claimant, Carmen Bell.

REVERSED; DISMISSED.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Derunn HENDERSON, Appellant.
    No. 47,811-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 27, 2013.

      Louisiana Appellate Project by Peggy J. Sullivan, Monroe, LA, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Assistant District Attorney, for Appellee.
    Before WILLIAMS, DREW and MOORE, JJ.
   MOORE, J.

|]Derunn Henderson appeals his adjudication as a third felony offender and his enhanced sentences of 25 years at hard labor, without benefits, on two counts of distribution of cocaine. We affirm.

In March 2010, a jury found Henderson guilty on two counts of distribution of cocaine. The court initially sentenced him to consecutive 15-year terms at hard labor. In May 2010, the state charged him as a third felony offender, citing: (1) a May 2004 guilty plea, in Bienville Parish, to possession of a Schedule II CDS, and (2) a February 2000 guilty plea, in Harris County, Texas, to possession of a Schedule II CDS. Henderson pled not guilty, and the matter proceeded to trial in April 2012.

At trial, the state introduced a February 8, 2000, order from the district court in Harris County, Texas, appointing counsel for Henderson, and a judgment on plea of guilty/waiver of trial form for possession of cocaine, signed by Henderson, his attorney and the presiding judge, and including Henderson’s right thumbprint. The state also introduced a certified copy of the bill of information, including Henderson’s right thumbprint, and minutes of court from Bienville Parish reciting that Henderson was “advised of his rights” before pleading guilty to one count of possession of cocaine and one count of possession of methamphetamine. The state called Detective Tommy Kemp Jr., an expert in fingerprint comparison, who testified that the thumbprints on these documents matched exemplars taken from Henderson. Finally, the state called Ken Pickett, a probation and parole officer, who confirmed that Henderson was the same person who pled guilty in Bienville Parish in 2004. Henderson goffered no evidence, but asked for a delay to review the state’s documents. After a short recess, the court adjudicated him a third felony offender, vacated the 15-year sentences and imposed consecutive 25-year sentences at hard labor without benefit of probation, parole or suspension of sentence. The court also denied two timely motions to reconsider sentence.

Henderson now appeals, raising two assignments of error. First he urges the district court erred in adjudicating him a third felony offender. He contends no transcripts were provided for either predicate felony and the records from Harris County lack any indication that he was represented by counsel at the time of his guilty plea.

To obtain a multiple offender adjudication against a defendant under La. R.S. 15:529.1, the state need prove only the fact of conviction and that he was represented by counsel (or waived counsel) at the time he entered his plea. State v. Zachary, 2001-3191 (La.10/25/02), 829 So.2d 405. Thereafter, the defendant bears the burden of proving a significant procedural defect in the proceedings. State v. Shelton, 92-8070 (La.7/1/93), 621 So.2d 769. If he meets this burden, the state then must prove the constitutionality of the predicate plea by producing a “perfect” transcript; anything less than a “perfect” transcript requires the court to make a factual determination whether the predicate plea was free and voluntary, and made with a specific waiver of Boykin rights. Id.

However, the mere fact that the defendant denies the multiple offender bill, or objects to evidence of a predicate conviction, does not amount to “proving a significant procedural defect in the proceedings.” This court has | ^repeatedly approved the use of evidence such as the court minutes and signed judgment introduced in this case to satisfy the state’s initial burden, and that a conclusory argument that there was no “perfect” transcript did not defeat the state’s showing. State v. Bobo, 46,225 (La.App. 2 Cir. 6/8/11), 77 So.3d 1, writ denied, 2011-1524 (La.12/16/11), 76 So.2d 1202; State v. Calhoun, 42,896 (La.App. 2 Cir. 1/16/08), 974 So.2d 805, writ denied, 2008-0579 (La.11/26/08), 997 So.2d 544; State v. O’Neal, 34,814 (La.App. 2 Cir. 10/12/01), 795 So.2d 1292, writ denied, 2001-3207 (La.11/1/02), 828 So.2d 564. The packet from Harris County, Texas, includes an order appointing counsel, a list of admonishments and a judgment signed by Henderson and his counsel. This refutes the claim that the state failed to prove he had representation for that guilty plea.

The record shows that counsel objected to the introduction of evidence of Henderson’s predicate convictions, but candidly admitted that she did so only to “preserve the record.” She alleged no irregularity in the prior proceedings and offered no evidence showing a potential violation of Henderson’s constitutional rights. This was insufficient to shift the burden to the state to produce a “perfect” record of the Boykin hearings. State v. Bobo, supra, and citations therein. This assignment lacks merit.

By his second assignment, Henderson urges the court erred in imposing excessive sentences. He argues that the original 15-year sentences were adequate punishment for the crimes, and nothing in the habitual offender proceeding altered that. He also argues the court failed to state which sentencing factors, if any, were considered in “personalizing” the sentence, as Required by La. C. Cr. P. art. 894.1. He concedes that he has a “problem” with addiction, and submits that his prior felonies were for nonviolent simple possession of cocaine.

Appellate review of sentences for excessiveness is normally a two-pronged analysis, the first being a review for compliance with Art. 894.1. However, when the defendant’s motion to reconsider urges merely that the sentence is excessive, he is then “simply relegated to having the appellate court consider the bare claim of excessiveness.” State v. Mims, 93-0808 (La.6/18/93), 619 So.2d 1059; State v. Engle, 43,812 (La.App. 2 Cir. 1/14/09), 2 So.3d 573. A punishment is constitutionally excessive under La. Const. Art. 1, § 20, if it makes no measurable contribution to acceptable penal goals, is nothing more than a purposeless imposition of pain and suffering and is grossly out of proportion to the severity of the crime. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Engle, supra. The sentencing court has wide discretion to impose sentences within the statutory limits, and such a sentence will not be set aside as excessive absent a manifest abuse of discretion. State v. Thompson, 2002-0333 (La.4/9/03), 842 So.2d 330; State v. Jones, 46,712 (La.App. 2 Cir. 11/2/11), 80 So.3d 500, writ denied, 2012-0016 (La.8/22/12), 97 So.3d 356.

The penalty for distribution of cocaine is a sentence of 2 to 30 years at hard labor, the first two without benefit of parole, probation or suspension of sentence, and a fine of up to $50,000. La. R.S. 40:967 B(4)(b). Upon adjudication as a third felony, the offense carries a sentence of 20 to 60 years at hard labor without benefit of probation or suspension of sentence. La. R.S. 15:529.1 A(3)(a). Though long, the sentences imposed are at the lower end of this range.

On appeal, Henderson does not contest any of the district court’s findings as to his criminal history. This court would note that the instant offense was actually Henderson’s fourth felony, as he pled guilty to two charges of possession of controlled dangerous substances in Bienville Parish in 2004, in addition to the possession of cocaine charge in Harris County. Prior probationary treatment failed to deter him from drug-related activity, and apparently his involvement has escalated from simple possession to distribution. While the instant sentences totaling 50 years are tantamount to life for the 37-year-old Henderson, we cannot say from this record that the district court abused its wide discretion or that the sentences offend the constitution. This assignment of error lacks merit.

We have reviewed the entire record and found nothing we consider to be error patent. La. C. Cr. P. art. 920(2).

For the reasons expressed, the convictions, adjudications and sentences are affirmed.

AFFIRMED.

      . In the Harris County records, Henderson’s first name is spelled "Derouen” but all documents are signed by him as “Derunn” or "De’Runn.”

      . The district court referred to a presentence investigation report but this document was not included in the appellate record.


author: PITMAN, J.

text:
    STATE of Louisiana, Appellee v. Johnathan C. THOMAS, Appellant.
    No. 47,821-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 27, 2013.

      Louisiana Appellate Project, by Teresa Culpepper Carroll, Jonesboro, LA, for Appellant.
    Charles R. Scott, District Attorney, Geya D. Prudhomme, J. Dhu Thompson, Brian H. Barber, Assistant District Attorneys, for Appellee.
    Before DREW, PITMAN & SEXTON (Pro Tempore), JJ.
   PITMAN, J.

|!Defendant, Johnathan C. Thomas, was convicted of armed robbery after a jury trial. He was subsequently sentenced to 26 years at hard labor without the benefit of parole, probation or suspension of sentence. Defendant appealed and the conviction was affirmed; however, the sentence was vacated and the matter remanded for resentencing. Defendant was resentenced to 24 years at hard labor without benefit of probation, parole or suspension of sentence. Defendant has appealed his sentence. For the reasons stated herein, Defendant’s sentence is affirmed.

FACTS

The underlying facts of this case were set forth in the previous appeal. State v. Thomas, 46,887 (La.App.2d Cir.1/25/12), 90 So.3d 9. Defendant attacked a defenseless victim from behind with repeated blows to the head with a rock in order to rob him and steal his truck. This court found that Defendant’s sentence of 26 years at hard labor without the benefit of parole, probation or suspension of sentence for armed robbery was not unconstitutionally excessive. The matter, however, was remanded for resentencing with instructions to the trial court to order a presentence investigation and to impose an appropriate sentence within the statutory range because the trial court had considered Defendant’s refusal to enter a plea agreement as an aggravating factor when it rendered the sentence. This purported justification for sentencing amounted to the imposition of a penalty for exercising the right to trial by jury.

A presentence investigation report was prepared and a sentencing hearing was held on April 20, 2012. The trial judge stated that he had taken |2into consideration the information provided in the pre-sentence investigation and determined that Defendant’s previous sentence was appropriate. Defendant spoke at the hearing and asked the judge to show lenience in light of various mitigating factors, including his young age at the time of the offense, the fact that he did not have an extensive criminal record, that he had turned himself in to authorities and that he had entered rehabilitation programs while incarcerated. Defendant also claimed he was unaware of the true terms of the plea agreement offered to him. The trial court affirmed the sentence of 26 years at hard labor without the benefit of probation, parole or suspension of sentence.

On May 3, 2012, Defendant filed a Motion to Reconsider Resentencing and alleged that the trial court had failed to give adequate consideration to relevant mitigating circumstances. That same day, a hearing was held at which the trial judge indicated that statements made by Defendant at the earlier hearing had prompted him to reconsider the sentencing matter.

The trial judge was particularly concerned that Defendant had suggested that he was unaware of a plea agreement prior to electing to go to trial. However, after discussion of the plea agreement, and being convinced that Defendant was aware of a plea offer, the trial judge addressed each issue raised in Defendant’s Motion to Reconsider Resentencing.

The mitigating factors raised in the motion included Defendant’s relatively young age and lack of criminal history. The judge stated that he had made reference to Defendant’s criminal history and had noted that it |swas minor, with one conviction. The presentence investigation, however, showed other criminal activity of which the trial court was unaware. The trial judge, therefore, reiterated that he had noted Defendant’s criminal history when making his decision on the sentence to be imposed.

The trial judge also noted that Defendant had not turned himself in to the authorities and that there were no notes on whether or not the court had considered that fact as a mitigating factor. The trial judge stated that Defendant had presented no mitigating factors at the earlier sentencing hearing. The trial judge also stated that he specifically recalled that Defendant had failed to express any remorse or accept any responsibility for his actions prior to sentencing. The trial judge considered that Defendant claimed he was under the influence of drugs and alcohol and that that issue had already been referenced by the Second Circuit Court of Appeal. The trial judge accepted Defendant’s statement that he had obtained his GED during the period of his incarceration.

The trial judge restated the various aggravating factors he had considered when imposing the original sentence of 26 years and noted that, at the original sentencing hearing, he was unaware of the pending charges against Defendant for aggravated battery and arson. The trial judge indicated that he believed the earlier imposed 26-year sentence was appropriate. After considering the totality of the circumstances, however, he decided to reduce the sentence to 24 years at hard labor without the benefit of probation, parole or suspension of sentence.

|40n May 9, 2012, Defendant filed both a pro se Motion for Appeal and Appointment of Counsel, as well as a Motion to Reconsider Sentence, alleging some of the same mitigating factors presented in the previously filed Motion to Reconsider Resen-tencing.

DISCUSSION

Assignment of Error Number One (verbatim): The District Court erred, as a matter of law, in denying defendant’s motion to reconsider resentencing and motion to reconsider sentence and rendering an excessive sentence in this case.

The offense of armed robbery carries a sentencing range of not less than 10 years and not more than 99 years, without benefit of parole, probation or suspension of sentence. La. R.S. 14:64(B).

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 07-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App.2d Cir.8/13/08), 989 So.2d 267, writ denied, 08-2697 (La.9/18/09), 17 So.3d 388. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259, writ denied, 08-2341 (La.5/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 07-0144 (La.9/28/07), 964 So.2d 351.

Second, a sentence violates La. Const. Art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, we may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. Lingefelt, 38,038 (La.App.2d Cir. 11/28/04), 865 So.2d 280, unit denied, 04-0597 (La.9/24/04), 882 So.2d 1165.

In State v. Thomas, supra, this court examined the 26-year sentence previously imposed in this case and found it proper, stating as follows:

In the case sub judice, Defendant’s claim that his sentence was constitutionally excessive is simply not borne out by the record before us. As noted above, the sentencing range for armed robbery is 10 to 99 years at hard labor without benefits. The sentence imposed, 26 years, falls on the low end of the sentencing range. When Defendant’s unconscionable conduct, including his surprise attack on a defenseless victim and repeated blows to the victim’s head with a rock, is viewed in light of the harm done to society, Defendant’s sentence does not shock the sense of justice, other than perhaps in its leniency. The sentence is neither grossly out of proportion to the seriousness of the offense, nor is it nothing more than a purposeless and needless infliction of pain and suffering. 90 So.3d at 13.

After the remand from this court and following its instructions, the trial court ordered the presentence investigation and resentenced Defendant. In so doing, the trial judge took into consideration the allegations of Defendant raised in the Motion to Reconsider Sentence and the Motion to Reconsider Resentencing and clearly articulated his reasons for reducing the sentence from 26 years to 24 years. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of La. C. Cr. P. art. 894.1.

We find that the sentence now imposed upon Defendant is neither grossly out of proportion to the seriousness of the offense, nor a purposeless and needless infliction of pain and suffering and does not shock the sense of justice.

^CONCLUSION

For the foregoing reasons, the sentence of Defendant, Johnathan C. Thomas, is affirmed.

AFFIRMED.


text:
    STATE of Louisiana, Appellee v. Dion LEWIS, Appellant.
    No. 47,853-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 27, 2013.

      Teresa Culpepper Carroll, Jonesboro, LA, for Appellant.
    Dion Lewis, Pro Se.
    Charles R. Scott, District Attorney, J. Dhu Thompson, Tommy J. Johnson, Assistant District Attorneys, for Appellee.
    Before CARAWAY, LOLLEY & PITMAN, JJ.
   PITMAN, J.

h This criminal appeal arises from a judgment of the First Judicial District Court, Caddo Parish, Louisiana, the Honorable Scott J. Crichton presiding. A unanimous jury found Defendant, Dion Lewis, guilty of second degree murder for the August 26, 2009 home invasion/robbery and killing of Kevin Earl Edwards (“Edwards”). Defendant was sentenced to life imprisonment without the benefit of probation, parole or suspension of sentence. For the following reasons, Defendant’s conviction and sentence are affirmed.

FACTS

On August 26, 2009, Defendant and two other men entered the home of Antonia Wesley (“Wesley”) in Shreveport, Louisiana. Defendant and one other of the intruders were armed; they immediately began searching the house and demanding money from Wesley. Edwards was sleeping in one of the bedrooms of the Wesley home when he was awakened by the intruders and fatally shot twice in the torso. Though Defendant and the other intruders rifled through drawers and repeatedly asked Wesley where the money was, there is no conclusive evidence that anything was missing from the house after the incident.

The Shreveport Police Department (“SPD”) investigated the scene and the forensic evidence gathered, including a bullet casing, a skull cap and part of a latex glove, was tested. It was determined that Edwards was shot with a .45 caliber weapon. Defendant’s DNA was found in the latex glove finger and on the skull cap that were recovered from the bedroom in which Edwards was shot.

Shortly after Edwards’ death, SPD was investigating the death of 12Shannon Gol-ston, a very close friend of Defendant. Investigators found a .45 caliber firearm in Golston’s residence that matched the rifling characteristics of the casings found at the scene of Edwards’ murder.

A few weeks after the home-invasion, Wesley received a phone call from Waco Collins, a known criminal in the Shreveport area, who offered her information about who was involved in the home invasion/robbery that led to Edwards’ death. Mr. Collins provided Wesley with three names that he knew to be the men who were in her house on August 26, 2009— Shannon Golston, Gerald Needham and Defendant. Wesley passed this information on to the SPD detectives investigating the crime. Both Wesley and her older son, D’Schwadraa, identified Defendant as the shooter in the photographic lineup that was administered by the SPD.

On June 17, 2010, Defendant was arrested and charged by bill of information for the first-degree murder of Edwards. The bill of information was later amended to the charge of second degree murder. During trial, defense counsel filed a motion to suppress identification testimony alleging that the photographic lineup used to identify Defendant as the suspect was unnecessarily suggestive. At the suppression hearing, the trial court denied the motion.

On April 23, 2012, the jury found Defendant guilty of second degree murder. Defense counsel filed a motion for post-verdict judgment of acquittal, arguing that the evidence presented by the State failed to prove beyond a reasonable doubt that Defendant committed the murder of Edwards. That motion was denied. Defense counsel also filed a motion for new trial, arguing that prejudicial hearsay testimony was admitted into trial. That motion was also Isdenied. That same day, Defendant waived the sentencing delays and the sentencing hearing was held. After reviewing Defendant’s criminal history, which included four felony convictions and four other felony arrests, the trial court sentenced Defendant to life imprisonment without the benefit of probation, parole or suspension of sentence. Defendant now appeals.

DISCUSSION

Assignment of Error 1: Sufficiency of the Evidence

Defendant contends that the evidence presented at trial was insufficient to link him to the crime, arguing that it was merely inconsistent and unreliable eyewitness identification, as well as DNA evidence taken from the ripped finger of a latex glove.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to ^accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 02-2595 (La.3/28/03), 840 So.2d 566, 02-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,032 (La.App.2d Cir.2/13/08), 975 So.2d 753; State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219, writ denied, 06-1083 (La.11/9/06), 941 So.2d 35. The trier of fact is charged to make a credibility evaluation and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Sosa, 05-0213 (La.1/19/06), 921 So.2d 94.

Viewed in a light most favorable to the prosecution, the evidence presented at trial was sufficient for the jury to find Defendant guilty of the second degree murder of Edwards. In order to convict Defendant of second degree murder, the jury had to conclude that he had the specific intent to kill or inflict great bodily harm, or that he was engaged in the perpetration or 1 ¿attempted perpetration of an enumerated felony, such as aggravated burglary, armed robbery or simple robbery. La. R.S. 14:30.1.

At trial, the State presented the eyewitness testimony of Wesley and her two sons, D’Schwadraa and D’Artre-yus, who all testified as to the same basic sequence of events that occurred on the night of the crime. At approximately 1:00 a.m., when Wesley returned home from work, three suspects followed her inside. She screamed and ran into her older son’s bedroom, where Defendant got on top of her on the bed and demanded money. She took Defendant to the bedroom where Edwards was sleeping and a scuffle between Edwards and Defendant followed. Defendant fired multiple gunshots, striking Edwards. Thereafter, the men searched the dresser drawers and fled. Wesley and D’Schwadraa identified Defendant in a photographic lineup and at trial.

The evidence presented at trial established that Defendant’s DNA was found at the crime scene in the bedroom where Edwards was shot. A latex glove finger and a black skull cap were found on a bloodstained area of the bedroom floor, between the bed and the wall, in the area where the victim’s body was located. Defendant’s DNA was found on the inside of the latex glove finger. The witnesses’ testimony established that the perpetrator was wearing gloves. Further, the black skull cap contained the DNA of Defendant and the blood of Edwards.

In addition, the evidence connected Defendant to the revolver that killed Edwards. The revolver found at the scene of Shannon Golston’s homicide, when tested, created markings that matched the two bullets that ultimately killed Edwards. At the Golston crime scene, Det. Rudell, the same SPD detective investigating the Edwards murder, found photographs that showed 1 r,Golston and Defendant together, and Defendant told Det. Rudell that Gol-ston was “his boy” and that he “loved him to death,” establishing their close friendship. Moreover, Det. Rudell’s description of Golston as a short, stocky, muscularly built black man matches the witnesses’ description of the second perpetrator.

The State presented sufficient evidence for the jury to reasonably find that Defendant had the specific intent to kill or inflict great bodily harm. Edwards died from two gunshot wounds to his back, fired from a very close range. Edwards’ body was pressed against something, presumably the floor or the bed, when he was shot. The revolver had a double action pull of 12 1/5 pounds, which is somewhat difficult to pull. Wesley testified that, after she heard the first gunshot, she went to the bathroom doorway and saw Defendant stand over Edwards and shoot two more times. Also, Wesley testified that Defendant had a gun and threatened to kill them if they did not give him the money.

Further, the State presented sufficient evidence for the jury to reasonably find that Defendant was engaged in the perpetration or the attempted perpetration of an aggravated burglary, armed robbery, or simple robbery. Defendant was armed with a gun when he made an unauthorized entry into an inhabited dwelling, Wesley’s home. Wesley, D’Schwadraa and D’Artre-yus testified that the men repeatedly asked where the money was located and that they rummaged through the dresser drawers. This evidences Defendant’s intent to commit a theft. Also, there was testimony presented that Wesley’s cell phone and Edwards’ wallet were missing from the house after the incident, even though none of the witnesses saw the men leave the house with anything. [ 7However, even if the jury could not conclude that a completed aggravated burglary or armed robbery had occurred, the evidence was sufficient to support a finding that he attempted either of these crimes.

Therefore, the evidence presented was sufficient to support Defendant’s conviction for second degree murder, either by the specific intent to kill or inflict great bodily harm, or by the attempted perpetration of an aggravated burglary or an armed robbery.

Assignment of Error 2: Failure to Suppress Identification Testimony

Defendant argues that the photographic lineup that was presented to Wesley and her son D’Schwadraa was unduly suggestive because the white shirt that Defendant is wearing and the cropping of the photograph immediately draws the eye to Defendant. Defendant also suggests that there is a significant likelihood of misidentification as a result of the photographic lineup because the witnesses were not able to view the suspects during the crime due to low lighting and handkerchiefs that were worn over the suspects’ faces. Further, Defendant argues that it is clear that Wesley was traumatized during and after the incident, as she was unable to speak to the 911 operator; therefore, her recollection of the events must have been compromised. Defendant also cites the inconsistent statements and descriptions of the eyewitnesses as a reason to dismiss the identification testimony. Immediately after the shooting, Wesley told SPD detectives that she was not able to get a good look at any of the intruders; however, at trial, she testified that she was able to recognize Defendant because she had seen his eyes when she was pushed down onto the bed and he was straddling her, holding her down. The photograph included in jsthe lineup has a partial shadow over Defendant’s left eye, which Defendant argues allows for a possibility of error.

The photographic lineup was generated using a computer system, which eliminates the possibility of tampering or making the lineup unduly suggestive. It was shown to the witnesses separately and neither Wesley nor her son was shown a picture of Defendant prior to the photographic lineup.

In seeking to suppress an identification, a defendant must prove the procedure used was suggestive and that the totality of the circumstances presented a substantial likelihood of misidentification. State v. Martin, 595 So.2d 592 (La.1992); State v. West, 561 So.2d 808 (La.App. 2d Cir.1990), writ denied, 566 So.2d 983 (1990). The U.S. Supreme Court has approved several factors for evaluating whether the reliability of an identification may outweigh the suggestiveness of the procedures employed. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); State v. Davis, 27,961 (La.App.2d Cir.4/8/96), 672 So.2d 428, writ denied, 97-0383 (La.10/31/97), 703 So.2d 12. The factors are: (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness’s degree of attention, (3) the accuracy of the victim’s prior description of the criminal, (4) the level of certainty demonstrated at the confrontation and (5) the length of time between the crime and the confrontation.

Photographs used in a lineup are suggestive if they display a defendant so singularly that the witness’s attention is unduly focused on the defendant. State v. Smith, 430 So.2d 31 (La.1983). It is not required that each person whose ^photograph is used in the lineup have the exact physical characteristics as the defendant. What is required is sufficient resemblance to reasonably test identification. State v. Smith, supra; State v. Davis, supra.

Even if suggestiveness is proven by a defendant, it is the likelihood of mis-identification, and not the mere existence of suggestiveness, which violates due process. State v. Williams, 375 So.2d 364 (La.1979); State v. Davis, supra.

The photographic lineup used in this case was not unduly suggestive. The only distinguishing feature of Defendant in the lineup is that his photograph was taken from a farther distance than the others and he is wearing a white t-shirt. However, a review of the photographic lineup does not show that this focuses attention upon Defendant so as to make the lineup unduly suggestive. All of the men contained in the lineup are of similar height, weight and age and have similar facial hair and facial features. All of the photographs have a similar background and all of the men are wearing various forms of casual street clothing. Neither of the witnesses had seen a photograph of Defendant prior to viewing the lineup. There is nothing in the record to indicate that, in making their identification, the witnesses focused on the clothing worn by Defendant, rather than his overall physical appearance. The photographic lineup, therefore, does not unduly focus attention on Defendant.

In addition, the record does not indicate that the use of this photographic lineup was tainted by the likelihood of misidentification. At the time of the crime, the house was dark and the only light came from a stove light in the kitchen and TVs in the bedrooms. Defendant was wearing a bandana that | incovered the bottom half of his face. The witnesses, however, were able to view Defendant, specifically his eyes, while they were in close proximity to him. Wesley was able to view Defendant when he was face-to-face with her on top of her bed, and D’Schwad-raa was able to view Defendant when Defendant stood over him in the hallway. During the crime, the witnesses appear to have been paying attention to what the men were doing, as shown by the fact that D’Schwadraa kept coming out of his room to see what was happening. Although some of their descriptions of the perpetrators were inaccurate, such as the number of men and the fact that Defendant’s arms are covered in tattoos, their general descriptions of the men were accurate and consistent. Further, while there was conflicting testimony about the manner in which the witnesses viewed the lineup, Wesley and D’Schwadraa were positive in their identifications of Defendant when they viewed the lineup, two months after the crime, and at trial. Considering the totality of these circumstances, there was no substantial likelihood of misidentification. Therefore, the photographic lineup used in this case was not suggestive and the identifications made by the witnesses were sufficiently reliable. This assignment of error, therefore, is without merit.

Assignment of Error 3: Denial of Defendant’s Motion for New Trial; Denial of Defendant’s right to confrontation; and Admission of Hearsay Evidence over defense counsel’s objection.

Defendant contends that the trial court erred in denying his motion for new trial in that hearsay testimony was introduced during the trial over defense objection. The defense objected when Wesley testified that she gave Det. Rudell the names given to her by Waco Collins. The assistant district attorney Instated that he would not go into any actual discussions Wesley had with Mr. Collins, just the information she passed on to detectives. The trial court overruled the objection. As the questioning continued, trial counsel renewed the hearsay objection, arguing that any names Wesley was given are hearsay. Again, the trial court overruled the objection.

Defendant now argues that Wesley’s testimony was inadmissible hearsay and should not have been presented to the jury. Defendant claims that this information was prejudicial to him because it represented the initial connection of him to this case and impacted his right to confront witnesses against him to his detriment.

In his pro se brief, Defendant reiterates his attorney’s argument almost verbatim. However, in addition, Defendant claims that, although the trial court recognized that Wesley’s statements were testimonial in nature, it held that the statements were subject to the harmless error standard and denied him relief. Defendant contends that neither the Louisiana Supreme Court nor the United States Supreme Court has addressed the issue of whether the harmless error standard applies to this type of constitutional error. Thus, Defendant argues that Wesley’s testimony was inadmissible and prejudiced his defense.

La. C. Cr. P. art. 851 provides that the court shall grant a motion for a new trial whenever the verdict is contrary to the law and the evidence or the trial court’s ruling on a motion or objection shows prejudicial error. The denial of a motion for new trial is not subject to appellate review, except for error of law. La. C. Cr. P. art. 858; State v. Jones, 41,672 (La.App.2d Cir.1/14/09), 999 So.2d 1156. The decision to grant or deny a new trial rests in the sound discretion of the trial court. State v. Brisban, 00-3437 (La.2/26/02), 809 So.2d 923. Generally, a motion for new trial will be denied unless the defendant establishes that he has suffered some injustice. La. C. Cr. P. art. 851; State v. Jones, supra.

Hearsay is an oral or written assertion, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. La. C.E. arts. 801(A)(1), 801(C). Hearsay evidence is not admissible except as otherwise provided by the Code of Evidence or other legislation. La. C.E. art. 802. Hearsay is excluded because the value of the statement rests on the credibility of the out-of-court asserter, who is not subject to cross-examination and other safeguards of reliability. State v. Martin, 458 So.2d 454 (La.1984). However, if a statement is not introduced to prove the truth of the matter asserted, then that statement, by definition, is not hearsay. State v. Tate, 25,765 (La.App.2d Cir.2/23/94), 632 So.2d 1213, writ denied, 94-1218 (La.8/23/96), 678 So.2d 33.

A witness is generally competent to testify that a statement was made to him so long as no attempt is made to vouch for the credibility of its contents. State v. Watson, 449 So.2d 1321 (La.1984). Also, when an investigating officer testifies concerning events leading to the arrest of a defendant, the statements made to him by others during the course of the investigation are not hearsay if they are not offered for the truth of the matter asserted, but merely to explain the officer’s actions. State v. Wille, 559 So.2d 1321 (La.1990), cert. denied; State v. R.G., 49 So.3d 56 (La.App.2d Cir.9/22/10); State v. Grant, 954 So.2d 823 (La.App.2d Cir.4/4/07). When the officer does not testify with regard to the substance of what another person told him, but -with regard to what he did in response to that information, the testimony is not considered hearsay. Information received by a police officer can have both hearsay and nonhearsay elements. When admissibility is questioned, the court should balance the need of the evidence for the proper purpose against the danger of improper use of evidence by the jury. State v. Wille, supra.

The erroneous admission of hearsay evidence does not require reversal of the conviction when the error is harmless beyond a reasonable doubt. State v. Grant, supra. Rather, reversal is mandated only when there is a reasonable possibility that the hearsay evidence might have contributed to the verdict. Id. The Louisiana Supreme Court has long held that the admission of hearsay testimony is harmless error where the effect is merely cumulative or corroborative of other testimony adduced at trial. State v. Johnson, 389 So.2d 1302 (La.1980); State v. McIntyre, 381 So.2d 408, 411 (La.1980), cert. denied., 449 U.S. 871, 101 S.Ct. 209, 66 L.Ed.2d 90 (1980).

Wesley’s testimony regarding the names of potential suspects that she received from Waco Collins and then relayed to Det. Rudell is inadmissible hearsay. The statements represented the initial connection of Defendant to this case, and Mr. Collins did not testify at trial. This testimony may have been offered to prove the truth of the assertion that Defendant committed this crime. Further, after defense counsel objected, the assistant district attorney rephrased 114his questions to elicit testimony only of the names of potential suspects that Wesley gave to Det. Rudell and not the actual discussions that she had with Mr. Collins.

With aspects of Wesley’s statements clearly hearsay, the trial court erred in admitting them; however, they are subject to the harmless error standard. The jury was presented with substantial evidence to convict Defendant, even without consideration of the questioned testimony, as discussed above. Further, on cross-examination, defense counsel elicited the same testimony from Wesley when he questioned her about whether she received the three names from Mr. Collins and how Mr. Collins obtained that information. In addition, Det. Rudell testified as to the names of the three suspects, including Defendant, and that Wesley had given him names of potential suspects. Considering the totality of the evidence presented and the fact that the names given to Wesley were admitted in other lines of questioning, the admission of the hearsay statements was harmless error.

Assignment of Error k: Excessive Sentence

Defendant argues that the evidence presented did not prove who shot Edwards or negate the possibility that Edwards may have pulled the trigger himself during a struggle with the perpetrators. Thus, Defendant contends that, under these circumstances, Defendant’s life sentence at hard labor is excessive and unjustified.

The mandatory sentence for second degree murder is punishment by life imprisonment at hard labor without the benefit of parole, probation or suspension of sentence. La. R.S. 14:30.1(B). The argument that the mandatory 11filife sentence for second degree murder is a violation of the prohibition against excessive punishment in the Louisiana Constitution has been repeatedly rejected. State v. Parker, 416 So.2d 545 (La.1982); State v. Brooks, 350 So.2d 1174 (La.1977); State v. Roberson, 40,809 (La.App.2d Cir.4/19/06), 929 So.2d 789. The decision to assess mandatory life sentences for certain felonies is within the prerogative of the legislature. State v. Parker, supra.

In State v. Dorthey, 623 So.2d 1276 (La.1993), and State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, the supreme court addressed the issue of mandatory sentences in the context of the habitual offender law. The court held that a downward departure from a mandatory minimum sentence may occur in rare circumstances if the defendant rebuts the presumption of constitutionality by showing clear and convincing evidence that he is exceptional, namely, that he is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the gravity of the offense, the culpability of the offender and the circumstances of the ease. This rule has been extended to mandatory sentences beyond habitual offender cases. See State v. Fobbs, 99-1024 (La.9/24/99), 744 So.2d 1274; State v. Chandler, 41,063 (La.App.2d Cir.9/8/06), 939 So.2d 574, writ denied, 2006-2554 (La.5/11/07), 955 So.2d 1277. However, the “rare circumstances” described by Johnson, supra, in which a mandated sentence can be altered are even less likely in the case of a life sentence chosen by the legislature for a single crime, such as aggravated rape or second degree murder. State v. Chandler, supra. In such crimes, 11fiunlike the mandatory minimum sentence under the habitual offender law, the “tailoring” of the sentence by the legislature was for life because the culpability of offenders and the gravity of the offense are so great. Id.

Defendant was convicted of second degree murder and the trial court sentenced him to life imprisonment without the benefit of parole, probation or suspension of sentence, as required by La. R.S. 14:30.1(B).

Defendant failed to demonstrate that he is the “exceptional” defendant for which a downward departure from the statutory minimum sentence is required. The jury obviously accepted the overwhelming evidence against Defendant, and he was accordingly convicted of second degree murder. In addition, prior to imposing Defendant’s sentence, the trial court reviewed Defendant’s criminal history, including four felony convictions and four other felony arrests. When compared to the severity of the offense, the imposed sentence is neither grossly disproportionate nor shocking to the sense of justice. Therefore, the trial court did not err in imposing the mandatory sentence of life imprisonment. This assignment of error is without merit.

Assignment of Error 5: The DNA evidence was admitted without determining that it meets the appropriate standard of scientific reliability.

In the pro se brief submitted to this court, Defendant contends that the trial court should have conducted a DNA hearing prior to trial. Defendant claims that the trial court must determine whether the overall methodology used while conducting a DNA test satisfies the requirements in Daubert and whether each step in the methodology was performed properly. The DNA |17evidence linking Defendant to this crime was from a ripped finger of a latex glove. Defendant argues that, since the trial court failed to conduct a hearing to establish the appropriate testing methodology, he was limited to cross-examination of the State’s witness, Cassandra Hernandez, regarding the appropriate methodology for relating blood and cell samples to individuals.

In State v. Charles, 602 So.2d 15 (La.App. 3d Cir.1992), writ granted in part and amended, 607 So.2d 566 (La.1992), the court recognized the extremely prejudicial effect of DNA testing and held that a defendant is entitled to a pretrial hearing on the admissibility of DNA test results, if such a hearing is requested. The burden of proving the admissibility of the DNA test results rests with the state. State v. Charles, 617 So.2d 895 (La.1993); State v. Spencer, 95-208 (La.App. 3d Cir.10/4/95), 663 So.2d 271.

The defense never requested a pretrial hearing to determine the admissibility of the DNA evidence. At a pretrial hearing on April 17, 2012, defense counsel acknowledged that he had met with the DNA expert and that there had been full compliance with his discovery requests for DNA test results.

Prior to being qualified by the court as an expert in forensic DNA analysis, Cassandra Hernandez was questioned by the assistant district attorney and defense counsel regarding her qualifications and experience in DNA analysis. Also, Ms. Hernandez’s curriculum vitae was presented into evidence. Defense counsel made no objection to Ms. Hernandez’s testimony. Therefore, since the defense had full knowledge of the DNA evidence and did not object to the admission of the DNA test results prior to trial, this | ^assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the conviction and sentence of Defendant, Dion Lewis, are affirmed.

AFFIRMED.


text:
    MIDLAND FUNDING, LLC., Plaintiff-Appellant v. Bennett CADY, Defendant-Appellee.
    No. 47,854-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 27, 2013.

      Eaton Group Attorneys, LLC., by Gregory Eaton, Baton Rouge, LA, Paul E. Pendley, Stacey L. Greaud, for Appellant.
    Bennett Cady, In Proper Person.
    Before BROWN, MOORE and SEXTON (Pro Tempore), JJ.
   MOORE, J.

|-i Midland Funding LLC appeals an order denying its motion to nullify an ex parte order in which the Shreveport City Court “vacated” a prior summary judgment against Bennett Cady for the balance due on a MasterCard account. For the reasons expressed, we reverse and render.

Midland, which acquired certain MasterCard accounts of First Bank & Trust, sued Cady in Shreveport City Court for the balance due on his account, $1,225.47, plus contractual interest and attorney fees. Cady, appearing pro se throughout, filed a general denial, interrogatories and requests for admissions, urging that he “never had any contract or debtor-creditor arrangements with” Midland. Midland moved for summary judgment, attaching two affidavits of correctness, a printout of Cady’s transaction history and a copy of the credit agreement. After a hearing on July 28, 2010, the city court rendered judgment as prayed for. Cady filed a motion and order for appeal on August 16. On Midland’s motion, however, this court dismissed the appeal as untimely under La. C.C.P. art. 5002, which sets a 10-day limit to appeal the judgment of a city or parish court. Cady did not seek supervisory review; the summary judgment against him is therefore final. Morneau v. American Oil Co., 272 So.2d 313 (La.1973); Sheets Family Partners-Louisiana, Ltd. v. Inner City Refuge Dev. Corp., 47,156 (La.App. 2 Cir. 6/20/12), 94 So.3d 964.

On October 25, 2011, Cady filed a “motion and memorandum to vacate judgment.” In support, he cited FRCP 60 (“Relief from a judgment or order”) and three federal cases from the Northern District of Ohio which allegedly enjoined Midland from using false and misleading affidavits to |2collect debts. He argued that his constituted “new evidence and obvious misrepresentation by adverse party,” warranting relief from the summary judgment.

The city court granted this motion ex parte, writing on the bottom of the order, “Judgment vacated. This 17th November 2011. Set case for trial on merits.”

On December 15, 2011, Midland filed the instant motion to nullify the judgment to vacate. Midland contended that it never received notice of Cady’s “motion to vacate”; even if this filing could be construed as a motion for new trial or petition for nullity, it was untimely; and the city court lacked jurisdiction once Cady appealed. The city court ultimately set Midland’s rule for hearing on February 24, 2012, at 1:30 p.m.

At 1:30 on February 24, Cady appeared pro se in city court but Midland’s counsel did not. According to the transcript, the court stated that all parties received notice, but it was already 1:44 p.m. and “the court has not been notified of any express reason why there is a delay or absence.” The court therefore denied Midland’s motion to nullify.

Midland took a writ, which this court remanded to the city court for perfection as an appeal.

Midland now raises one assignment of error: the city court erred in granting Cady’s motion to vacate the underlying judgment. It shows that La. C.C.P. art. 963 permits an ex parte judgment if it is “one to which the |3mover is clearly entitled without supporting proof,” and argues that a court cannot nullify a prior judgment without notice and a hearing. State v. Babineaux, 196 So.2d 668 (La.App. 3 Cir.1967); Connell v. Albritton, 64 So.2d 507 (La.App. 1 Cir.1953). Specifically, Cady’s “motion to vacate” did not show he was clearly entitled to this relief, as FRCP 60 has no bearing on state court proceedings and he did not show that the affidavits used here were fraudulent or contained the misleading language censured by the federal court in Brent, supra. Midland asks this court to vacate, set aside or nullify the judgment of February 24, 2012, which vacated the summary judgment of July 28, 2010, and reinstate the latter judgment.

Cady has filed no brief.

Midland’s position has merit. As noted above, this court dismissed Cady’s appeal of the summary judgment and Cady did not seek supervisory relief; that judgment is therefore final and we will not revisit it. Morneau v. American Oil Co., supra; Sheets Family Partners-Louisiana, Ltd. v. Inner City Refuge Dev. Corp., supra. After the appeal was taken, the city court lacked jurisdiction to amend the judgment or entertain a motion for new trial. La. C.C.P. art.2088; Bourgeois v. Kost, 2002-2785 (La.5/20/03), 846 So.2d 692; Winston v. Martin, 34,195 (La.App. 2 Cir. 7/6/00), 764 So.2d 368, unit granted on other grounds, 2000-2914 (La.12/15/00), 776 So.2d 1179.

Cady attempted to modify or avoid the judgment by filing a document called a “motion and memorandum to vacate judgment.” The Code of Civil Procedure does not recognize a motion to “vacate” a judgment. Bourgeois v. Kost, supra. Cady’s filing must therefore be interpreted by its substance |4rather than its caption. La. C.C.P. art. 865; Smith v. Cajun Insulation Inc., 392 So.2d 398 (La.1980); Scranton v. Ashley Ann Energy, 46,984 (La.App. 2 Cir. 4/11/12), 91 So.3d 1174, writ denied, 2012-1345 (La.9/28/12), 98 So.3d 846. Cady’s motion specifically alleged “new evidence of misrepresentation, fraud and disregard for court orders.” This closely approximates the “fraud or ill practices” which may be asserted as grounds for nullity under La. C.C.P. art. 2004 A.

The jurisprudence has established the following criteria for an action in nullity: (1) the circumstances under which the judgment was rendered showed the deprivation of legal rights of the litigant seeking relief, and (2) the enforcement of the judgment would have been unconscionable and inequitable. Wright v. Louisiana Power & Light, 2006-1181 (La.3/9/07), 951 So.2d 1058; Straughter v. Hodnett, 42,827 (La.App. 2 Cir. 1/9/08), 975 So.2d 81, writ denied, 2008-0573 (La.5/2/08), 979 So.2d 1286. Article 2004 is not limited to cases of actual fraud or intentional wrongdoing, but is sufficiently broad to encompass some improper practice which operates, even innocently, to deprive the party cast in judgment of some legal right, and where the enforcement of the judgment would be unconscionable and inequitable. Wright v. Louisiana Power & Light, supra. “Deprivation of legal rights” is conduct which prevents an opposing party from having an opportunity to appear or present a defense. Id. An action for nullity is not intended as a substitute for an appeal or as a second chance to prove a claim that was previously denied for failure of proof. The purpose of an action for nullity is to prevent injustice which cannot be | ^corrected through new trials and appeals. Id.; Straughter v. Hodnett, supra.

Discovery of evidence which could have been presented at the original trial usually cannot serve as the basis for an action for nullity. Gladstone v. American Auto. Ass’n, 419 So.2d 1219 (La.1982); Wright v. Louisiana Power & Light, supra. Further, even if new evidence is not discovered until after the judgment becomes final, despite the exercise of due diligence, that fact is not grounds to nullify the judgment unless fraud was involved or unless enforcement of the judgment would be inequitable and unconscionable. Otherwise, the finality of judgments would be seriously impaired. Gladstone v. American Auto. Ass’n, supra; Wright v. Louisiana Power & Light, supra; Straughter v. Hodnett, supra.

On close examination, we find the city court abused its great discretion in granting Cady’s motion to “vacate” — essentially, to annul — the summary judgment. The principal case on which Cady relied, Midland Funding LLC v. Brent, was rendered on August 11, 2009, nearly one full year before the instant hearing on Midland’s motion for summary judgment. There is no showing that Brent was unavailable to Cady, or could not have been discovered through due diligence, before the hearing. Moreover, there is no showing that the affidavits submitted in support of the motion for summary judgment contained the “many falsehoods” noted by the federal court in the Brent affidavit. Also, we must state the obvious in that FRCP 60 is a rule for federal courts, not for Louisiana state courts. Federal | ajurisprudence interpreting federal rules is persuasive on Louisiana courts if a state statute is patterned on the federal rules. Parish Nat’l Bank v. Lane, 397 So.2d 1282 (La.1981); Caldwell Wholesale Co. v. Central Oil & Supply Corp., 31,573 (La.App. 2 Cir. 1/26/99), 731 So.2d 305, writ denied, 2000-2151 (La.10/13/00), 771 So.2d 650. Article 2004 is based on provisions of the former Code of Practice, not on FRCP 60, so federal cases interpreting the latter are not binding on Louisiana state courts.

Perhaps most importantly, this record does not show that in the original city court proceeding Cady was deprived of legal rights or of any opportunity to appear or present a defense. Perhaps unwisely, Cady elected to proceed without legal representation in city court; he apparently offered no competent summary judgment evidence to dispute Midland’s properly supported motion, and his motion for appeal was untimely. While he did not present much of a defense, this was not because of fraud, ill practices or other circumstances depriving him of his rights; it was because of his own choice to act pro se. On this record, we perceive not one scintilla of evidence that enforcing the original judgment would be inequitable or unconscionable. Cady has not shown that he is entitled to nullity under Art. 2004.

Finally, we note that the city court granted Cady’s motion to “vacate” the summary judgment ex parte, without notice to Midland or a hearing. A judgment of nullity without notice and hearing is, itself, a nullity. Halley v. Guerriero, 577 So.2d 781 (La.App. 2 Cir.1991); State v. Babineaux, supra. Even if Cady had made some showing of fraud or ill practices, this 17court would have to reverse the ex parte order and remand the case for trial. Since, however, Cady has made no such showing, we are constrained to reverse that order and reinstate the underlying judgment.

For these reasons, the order of November 17, 2011, vacating the summary judgment is reversed and vacated; the summary judgment of July 28, 2010, is hereby reinstated. All costs in the city and appellate court are to be paid by the defendant, Bennett Cady, to the extent permitted by La. C.C.P. art. 5186.

ORDER VACATING SUMMARY JUDGMENT REVERSED AND VACATED; SUMMARY JUDGMENT REINSTATED.

      . Midland Funding LLC v. Brent, 644 F.Supp.2d 961 (N.D.Ohio 2009); Vassalle v. Midland Funding LLC, unrep. (N.D.Ohio 8/12/11); Franklin v. Midland Funding LLC, 2011 WL 3557033 (N.D.Ohio 8/12/11).

      . Comparing the affidavit with the affiant’s subsequent deposition in Brent, the court found that the affiant did not have personal knowledge of the account or that his affidavit would be used as the basis of a debt collection lawsuit.


author: ROLAND L. BELSOME, Judge.

text:
    Thomas Andrew FLENNER, Jr. v. SEWERAGE AND WATER BOARD OF NEW ORLEANS, and the City of New Orleans.
    No. 2012-CA-0829.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 4, 2013.

      Beau F. Camel, Roberta L. Burns, Sidney D. Torres, III, Law Offices of Sidney D. Torres, III, APLC, Chalmette, LA, Timothy R. Richardson, Usry Weeks & Matthews, APLC, New Orleans, LA, for PlaintiffiAppellant.
    Anthony J. Stewart, Harold D. Mar-chand, Deputy Special Counsel, Gerard M. Victor, Special Counsel, Sewerage & Water Board of New Orleans, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME, Judge DANIEL L. DYSART).
   ROLAND L. BELSOME, Judge.

11 This case involves an accident that occurred while the plaintiff, Thomas Andrew Flenner, Jr., was cleaning the catch basin or storm drain located in front of his home. The plaintiff stepped into a large hole located directly behind the catch basin and sustained injuries. The trial court rendered a judgment in favor of the defendant, the Sewerage and Water Board (S & WB), finding that it was not liable for the plaintiffs injuries. We affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

On August 11, 2001, the plaintiff, while cleaning leaves and debris from the catch basin, fell into a concealed hole immediately adjacent to the catch basin and sustained injuries. When the plaintiff stepped behind the catch basin to place some debris in the trash, his entire right leg fell through the hole.

The plaintiff immediately called the S & WB to report the issue. After the S & WB inspected the hole, it was determined that there was a crack in the seal surrounding a four-inch stub located underground, near the rear of the catch basin. As a result, the soil surrounding the rear of the basin was escaping and washing out to the main drain line. The S & WB commonly refers to this as a “cave-in.” | ^According to the plaintiffs testimony the hole was five to six feet deep and three to four feet in circumference but obscured from detection by grass.

The plaintiff filed suit and a bench trial commenced. After post-trial memoranda were submitted, the trial court rendered a judgment in favor of the defendant, dismissing the plaintiffs lawsuit with prejudice. The trial court found that the catch basin was not the responsibility of or in the control of the defendant. Therefore, it was under no legal duty to maintain the basin.

This appeal follows.

STANDARD OF REVIEW

“A factual finding cannot be set aside unless the appellate court finds that it is manifestly erroneous or clearly wrong.” London Towne Condo. Homeowner’s Ass’n v. London Towne Co., 06-401, p. 4 (La.10/17/06), 939 So.2d 1227, 1231 (citing Smith v. Louisiana Dept. of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129, 132; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993); Rosell v. ESCO, 549 So.2d 840, 844 (La.1989)). Appellate courts should not re-weigh the evidence or substitute its own factual findings. Id.; Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217, p. 11 (La.4/3/02), 816 So.2d 270, 279 (citation omitted). Likewise, “[w]here there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong.” Id.

DISCUSSION

On appeal, the plaintiff contends that the trial court erred in finding that he failed to prove the material elements under negligence and strict liability theories.

lsUnder either negligence or strict liability, for a plaintiff to succeed in an action against a public entity based on the condition of property for which it allegedly had responsibility, the plaintiff must show that (1) the property causing the damage was in the custody of the public entity; (2) the property was defective due to a condition that created an unreasonable risk of harm; (3) the public entity had actual or constructive knowledge of the risk; and (4) the defect was a cause-in-fact of the plaintiffs injury. Toston v. Pardon, 03-1747, p. 10 (La.4/23/04), 874 So.2d 791, 798-99 (citation omitted). To recover, the plaintiff bears the burden of proving these elements in the affirmative, and the failure of any one is fatal to the case. Dupree v. City of New Orleans, 99-3651, p. 6 (La.8/31/00), 765 So.2d 1002, 1008; Palermo v. Port of New Orleans, 04-1804, p. 11 (La.App. 4 Cir. 1/19/07), 951 So.2d 425, 434.

A person who has custody or garde of a thing is he who has the legal duty to prevent its vice or defect from harming another. King v. Louviere, 543 So.2d 1327, 1328 (La.1989). It is well-settled law in Louisiana that liability under La. C.C. art. 2817 is based upon the relationship, 1.e., supervision and control, between the person with custody and the thing posing an unreasonable risk of harm to others. Liability is imposed based on custody or garde, not just ownership. Thumfart v. Lombard, 613 So.2d 286, 290 (La.App. 4 Cir.1993). The fault of the custodian is based upon his failure to prevent the thing under his garde from causing an unreasonable risk of injury to others. Entrevia v. Hood, 427 So.2d 1146, 1149 (La.1983).

|4The loss resulting from the creation of the risk falls upon the person to whom society allots its garde. The rationale is the custodian is in a better position than the innocent victim to detect, evaluate, and take steps to eliminate an unreasonable risk of harm which arises from the thing. Dupree, 99-3651 at 7, 765 So.2d 1002, 1009 (citations omitted). Because Article 2317 imposes liability upon persons for things in their custody or garde, “a principle much broader than ownership,” it is clear that more than one party may have custody or garde of a thing under Article 2317, determined by an examination of the parties’ actions and relationships to the thing causing the injury. Id. (citations omitted).

In this case, the primary issues before this Court pertains to custody and knowledge.

Determining who has the custody or garde of the thing is a fact driven determination. Doughty v. Insured Lloyds Ins. Co., 576 So.2d 461, 464 (La.1991). In attempting to define a test for determining who has custody or garde of a thing, the Supreme Court has set forth several general principles to assist the trier-of-fact. To determine whether a thing is in one’s custody or garde, courts should consider (1) whether the person bears such a relationship as to have the right of direction and control over the thing; and (2) what, if any, kind of benefit the person derives from the thing. Dupree, 765 So.2d at 1009 (citations omitted).

At trial, the defendant provided testimony that the catch basin was under the sole control of the City. Rudy August, Chief of Networks of the S & WB, and Marvin Thompson, Principal Civil Engineer of the CNO, testified that there was an agreement between the CNO and the defendant. The defendant was responsible for drain lines thirty six inches in diameter and larger and the CNO was responsible for drain lines under thirty-six inches.

|fiThe deposition of Wilson Blake, which was entered into evidence at trial, reflects that he conducted an investigation and determined that the catch basin and the four-inch stub was the responsibility of the CNO. Documents introduced into evidence reflect that the defendant referred the issue to the CNO. The CNO responded with a request and authorization that the defendant perform the work at the CNO’s cost. Mr. Blake’s testimony also revealed that it would not clean or perform any work on the CNO’s catch basins without a direct order. He further explained that had the investigation revealed that the issue was the responsibility of the defendant, the repairs would have taken place immediately.

Based on the record before this Court, we cannot find that the trial court was manifestly erroneous or clearly wrong in its determination that the cave-in was not in the control of the defendant.

On further review, we also find that the plaintiff failed to establish that the defendant had constructive notice of the defect. Constructive notice is the existence of facts which imply actual knowledge. Leblanc v. City of New Orleans, 573 So.2d 1274, 1276 (La.App. 4 Cir.1991) (citing La. R.S. 9:2800). To establish constructive notice, plaintiff must prove that the defect causing the injury existed over a sufficient length of time to establish that reasonable diligence would have led to its discovery and repair. Id.; Smithwick v. City of Farmerville, 45,362, p. 4 (La.App. 2 Cir. 6/23/10), 42 So.3d 1039, 1042, writ denied, 10-2013 (La.11/12/10), 49 So.3d 888 (citations omitted).

|RThe record does not give any indication as to how long the seal around the stub had been cracked. There was no testimony regarding the size of the crack or the time-period it took to create the cave-in. The plaintiffs only reference to support a finding of constructive notice is from the deposition of Raymond Frischhertz, which was admitted into evidence at trial. Mr. Frischhertz, who did not inspect the catch basin at issue, stated that rain water eroded soil around the catch basin. However, he could not answer over what period of time. Specifically, when asked over what period of time the erosion occurred, his response was “Oh, that’s God’s answer.” No other witnesses presented gave an answer with respect to the period of time.

Constructive notice is another element that the plaintiff must prove to establish liability on the part of the defendant. Absent proof that the defect existed for a long period of time and the defendant failed to remedy it, the plaintiff cannot establish constructive notice. Jackson v. Sewerage and Water Board of New Orleans, 501 So.2d 826 (La.App. 4 Cir.1986). This finding further supports the trial court’s determination that the defendant was not liable to the plaintiff for his injuries.

For the reasons discussed, we find no error in the trial court’s judgment.

Accordingly, the matter is affirmed.

      . Both the S & WB and the City of New Orleans (CNO) were originally named in the lawsuit. However, a settlement was reached between the plaintiff and the CNO, and the trial court signed a consent judgment releasing the CNO from the suit.

      . La. C.C. art. 2317 states in pertinent part: “We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.”

      . Wilson Blake, a S & WB employee, inspected the cave-in. His deposition was admitted into evidence at trial. He testified that tree roots or vibrations from large trucks can disturb the pipes and cause the ground to subside around it. However, he could not remember whether he observed any tree roots at the scene. He did not give any testimony as to the cause of the crack in the seal relative to the catch basin at issue in this case.

      . Other cases have similarly found no liability where the plaintiffs have failed to show how long the defect had existed. See LeBlanc, supra; Baker v. Sewerage and Water Board of New Orleans, 466 So.2d 720 (La.App. 4 Cir. 1985).