author: AMY, Judge.

text:
    STATE of Louisiana v. Charles D. SOILEAU.
    Nos. 13-770, 13-771.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 12, 2014.

      Edward K. Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Charles Soileau.
    Trent Brignae, District Attorney, Julhe-lene E. Jackson, Assistant District Attorney, Ville Platte, LA, for Appellee, State of Louisiana.
    Court composed of MARC T. AMY, BILLY HOWARD EZELL, and JOHN E. CONERY, Judges.
   AMY, Judge.

| iThe defendant pled guilty to multiple offenses in connection with several burglaries in Evangeline Parish. In docket number 91385-F, the trial court sentenced the defendant to ten years at hard labor on each count for the defendant’s two convictions for simple burglary, five years at hard labor for his theft greater than $500 but less than $1,500 conviction, eight years at hard labor for his theft of $1,500 or greater conviction, two years at hard labor for his simple criminal damage of $500 or more but less than $50,000 conviction, and eight years at hard labor for his theft of a firearm (first offense) conviction. The trial court ordered that all of the defendant’s sentences run concurrently with each other and with his other pending cases, but consecutively to the defendant’s probation and parole revocations.

In docket number 91393-F, the trial court sentenced the defendant to ten years at hard labor for the defendant’s simple burglary conviction, eight years at hard labor for his theft of $1,500 or greater conviction, two years at hard labor for his simple criminal damage of $500 or more but less than $50,000 conviction, and eight years at hard labor for his theft of a firearm (first offense) conviction. The trial court ordered that all of the defendant’s sentences run concurrently with each other and with his other pending cases, but consecutively to the defendant’s probation and parole revocations.

The defendant now appeals. For the following reasons, we affirm.

Factual and Procedural Background

The defendant, Charles Soileau, was arrested in connection with several burglaries in Evangeline Parish, which resulted in multiple charges under several docket numbers.

| ¿Docket Number 91385-F

With regard to the charges filed in docket number 91385-F, the record indicates that the defendant’s offenses stem from the burglary of the homes of Travis La-fleur and Joey Fontenot. At the defendant’s plea hearing, the State stated that the defendant forced entry into the victims’ homes and stole firearms and personal items, including jewelry.

The defendant ultimately pled guilty to two counts' of simple burglary, violations of La.R.S. 14:62; theft greater than $500 but less than $1,500, a violation of La.R.S. 14:67(B)(2); theft of $1,500 or greater, a violation of La.R.S. 14:67(B)(1); simple criminal damage to property of $500 or more but less than $50,000, a violation of La.R.S. 14:56(B)(2); and theft of a firearm (first offense), a violation of La.R.S. 14:67.15(0(1).

The trial court subsequently imposed sentence. For each of the defendant’s simple burglary convictions, the trial court imposed a sentence of ten years. For the defendant’s theft greater than $500 but less than $1,500 conviction, the trial court imposed a sentence of five years. For the defendant’s theft greater than $1,500 conviction, the trial court imposed a sentence of eight years. For the defendant’s simple criminal damage to property of $500 or more but less than $50,000 conviction, the trial court imposed a sentence of two years. For the defendant’s theft of a firearm (first offense) conviction, the trial court imposed a sentence of eight years. The trial court ordered that all of the defendant’s sentences be served at hard labor and that they be served concurrently with each other and with the defendant’s other current offenses. However, the trial court | (¡ordered that the defendant’s sentences be imposed consecutively to his parole and probation reyocations.

Docket Number 91393-F

With regard to the charges filed under docket number 91393-F, according to the record, the defendant’s offenses stem from the burglary of the home of Kent Fonte-not. At the defendant’s plea hearing, the State indicated that the defendant broke into the victim’s home, damaging the front door. The State also indicated that the defendant stole personal items, including firearms and jewelry.

The defendant subsequently pled guilty to simple burglary, a violation of La.R.S. 14:62; theft of $1,500 or greater, a violation of La.R.S. 14:67(B)(1); simple criminal damage to property of $500 or more but less than $50,000, a violation of La.R.S. 14:56(B)(2); and theft of a firearm (first offense), a violation of La.R.S. 14:67.15(0(1).

Thereafter, the trial court conducted a sentencing hearing. For the defendant’s simple burglary conviction, the trial court imposed a sentence of ten years. For the defendant’s theft of $1,500 or greater conviction, the trial court imposed a sentence of eight years. For the defendant’s simple criminal damage to property of $500 or more but less than $50,000 conviction, the trial court imposed a sentence of two years. For the defendant’s theft of a firearm (first offense) conviction, the trial court imposed a sentence of eight years. The trial court ordered that all of the defendant’s sentences be served at hard labor and that they be served concurrently ■with each other and with the defendant’s other current Roffenses. However, the trial court ordered that the defendant’s sentences be imposed consecutively to his parole and probation revocations.

The defendant appeals, asserting that his sentences are unconstitutionally excessive.

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, all criminal appeals are reviewed for errors patent on the face of the record. We note no errors requiring action by this court.

Excessive Sentence Claims

In his appellate brief, the defendant contends that his sentences imposed in both docket numbers 91385-F and 91393-F are unconstitutionally excessive. The record indicates that a single sentencing hearing was held for docket numbers 91385-F, 91393-F, and 93241-F. Our review of the record reveals that the defendant did not file a motion to reconsider sentence nor did he orally object to the sentences imposed at the sentencing hearing. Thus, review of the defendant’s sentences is limited to whether the sentences imposed are unconstitutionally excessive. State v. Casimer, 12-678 (La.App. 5 Cir. 3/13/13), 113 So.3d 1129.

Sentences within the statutory sentencing range can be reviewed for constitutional excessiveness. State v. Sepulvado, 367 So.2d 762 (La.1979). In State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331, a panel of this court discussed the review of excessive sentence claims, stating:

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

Further, in reviewing the defendant’s sentences, the appellate court should consider the nature of the crime, the nature and background of the offender, and the sentences imposed for similar crimes. State v. Lisotta, 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57 (citing State v. Telsee, 425 So.2d 1251 (La.1983)), writ denied, 99-433 (La.6/25/99), 745 So.2d 1183. In State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061, a panel of this court observed that:

While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, 958.

The record reveals that the defendant and his wife testified at the sentencing hearing, and that the trial court ordered a pre-sentence investigation. At the time of his guilty plea, the defendant was twenty-nine years old. According to the defendant, he started using drugs when he was twelve years old and, after attending several treatment programs, stopped using drugs when he was twenty-four years old. The defendant stated that he began using drugs again after he was involved in |fia “bad wreck.” The record indicates that the defendant is married, has three children, and worked regularly until his 2010 conviction for distribution of Schedule II narcotics. Further, although the defendant dropped out of school in the seventh grade, he has since completed his GED.

The pre-sentence investigation ordered by the trial court indicates that the defendant has a juvenile record and several prior adult felony convictions. In 2005, the defendant pled guilty to simple burglary and theft greater than $500. For those convictions, the defendant was sentenced to three years hard labor on each count, to run concurrently. However, his term of imprisonment was suspended and he was placed on three years supervised probation. The record indicates that the defendant successfully completed his probation and received a first offender pardon. In 2010, the defendant was convicted of distribution of Schedule II narcotics and was sentenced to ten years at hard labor. Seven years of that term of imprisonment were suspended, and the defendant was placed on five years active probation upon his release from incarceration. The defendant was placed on parole in 2011. However, the defendant’s parole was revoked in February of 2012 and his probation was revoked in March of 2012 on the basis that he remained criminally active, failed to comply with substance abuse treatment, and failed to pay his supervision fees.

Docket Number 91S85-F

In this matter, the defendant pled guilty to two counts of simple burglary, violations of La.R.S. 14:62. The defendant was sentenced to ten years at hard labor on each count. Additionally, the defendant pled guilty to theft greater than 17$500 but less than $1,500, a violation of La.R.S. 14:67. The defendant was sentenced to five years imprisonment for this conviction. The defendant also pled guilty to theft of $1,500 or greater, a violation of La.R.S. 14:67. The defendant was sentenced to eight years at hard labor for this conviction.

The defendant also pled guilty to simple criminal damage to property amounting to $500 or more but less than $50,000, a violation of La.R.S. 14:56. The defendant was sentenced to the maximum term of imprisonment, two years at hard labor. Finally, the defendant pled guilty to theft of a firearm (first offense), a violation of La.R.S. 14:67.15. The defendant was sentenced to eight years at hard labor for this conviction.

Docket Number 91393-F

The defendant pled guilty to simple burglary, a violation of La.R.S. 14:62. The defendant was sentenced to ten years at hard labor for this conviction. The defendant also pled guilty to theft of $1,500 or greater, a violation of La.R.S. 14:67... The defendant was sentenced to eight years at hard labor for this conviction. Further, the defendant pled guilty to simple criminal damage to property amounting to $500 or more but less than $50,000, a violation of La.R.S. 14:56. The defendant was sentenced to the maximum term of imprisonment, two years at hard labor. Finally, the defendant pled guilty to theft of a firearm (first offense), a violation of La. R.S. 14:67.15. The defendant was sentenced to eight kyears at hard labor for this conviction.

Simple burglary is punishable by a fine of not more than $2,000, imprisonment with or without hard labor for not more than twelve years, or both. La.R.S. 14:62(B). The defendant’s ten-year sentences are within the statutory limit. We observe that, in State v. Bums, 32,904 (La.App. 2 Cir. 2/1/00), 750 So.2d 505, the second circuit upheld a ten-year sentence for simple burglary where the defendant had two prior felony convictions, including one for attempted simple burglary, and had previously had his probation revoked. See also State v. Stanfield, 10-854 (La.App. 4 Cir. 1/19/11), 56 So.3d 428, writ denied, 11-266 (La.6/3/11), 63 So.3d 1007.

Theft greater than $500 but less than $1,500 is punishable by imprisonment, with or without hard labor, for not more than five years, a fine of not more than $2,000, or both. La.R.S. 14:67(B)(2). Theft of $1,500 or greater is punishable by imprisonment with or without hard labor for not more than ten years, a fine of not more than $3,000, or both. La.R.S. 14:67(B)(1). The defendant’s five-year sentence for theft greater than $500 but less than $1,500 is the maximum statutory term of imprisonment. The defendant’s eight-year sentences for his two theft greater than $1,500 convictions are within the statutory limit.

Maximum or near-maximum sentences are reserved for the worst offenders. State v. Fontenot, 09-624 (La.App. 3 Cir. 12/9/09), 25 So.3d 225. In State v. Brown, 09-10 (La.App. 1 Cir. 9/11/09), 2009 WL 3162001 (unpublished opinion), the first circuit upheld maximum sentences for theft greater than $500 and attempted theft greater than $500 where the defendant was a third-felony offender who, along with her^^accomplices, shop-lifted multiple'items from a busy store and fled to avoid capture.

Simple criminal damage to property amounting to $500 or more but less than $50,000 is punishable by a fine of not more than $1,000, imprisonment with or without hard labor for not more than two years, or both. La.R.S. 14:56(B)(2). For each of his two convictions for this charge, the defendant was sentenced to the maximum permissible term of imprisonment, two years at hard labor. In State v. Trahan, 608 So.2d 679 (La.App. 3 Cir.1992), the defendant stole a car and wrecked it, causing over $1,200 in damages. The defendant was sentenced to a four-year hard labor sentence for his simple burglary conviction and a two-year hard labor sentence for his conviction for simple criminal damage to property. The trial court ordered that the defendant’s sentences run concurrently with each other and consecutively to any other sentence. A panel of this court found that, because the simple criminal damage sentence was to run concurrently with the simple burglary sentence, there was no abuse of discretion. Id.

Finally, theft of a firearm (first offense), a violation of La.R.S. 14:67.15, is punishable by imprisonment with or without hard labor for not less than two years nor more than ten years, without the benefit of probation, parole, or suspension of sentence, and a fine of $1,000. La.R.S. 14:67.15(C)(1). The defendant was sentenced to eight years at hard labor for each of his two convictions for theft of a firearm (first offense). In State v. Hawkins, 06-1599 (La.App. 3 Cir. 5/2/07), 956 So.2d 146, writ denied, 07-1156 (La.12/7/07), 969 So.2d 627, the maximum sentence was upheld for a multiple felony offender who pled guilty to seventeen counts of theft of a firearm and two counts of simple burglary of an inhabited dwelling.

| inBased on our review of the record, we find that the defendant’s sentences are not excessive. The defendant has pri- or felony convictions for simple burglary, theft, and distribution of Schedule II narcotics. Further, the record indicates that the defendant was released from prison in August of 2011 and that the offenses at issue herein occurred approximately five months later. The defendant was on parole and/or probation at the time of the instant offenses. The defendant also had other charges pending at the time of his guilty plea. Although the trial court sentenced the defendant to maximum or near-maximum penalties, we note that the defendant received a significant reduction in the total maximum penalty because the trial court ordered that his sentences be served concurrently with each other and with his other pending offenses.

This assignment of error is without merit.

DECREE

For the foregoing reasons, the sentences of the defendant, Charles Soileau, are. affirmed.

AFFIRMED.

      . The defendant's appeals concerning the sentences imposed in docket numbers 91385-F and 91393-F were consolidated for purposes of briefing and oral argument. The defendant’s sentences in docket number 93241-F are currently on appeal in State v. Charles Soileau, 13-772 (La.App. 3 Cir. 2/12/14), 153 So.3d 1008, 2014 WL 550888.

      . We note that the sentencing exposure and classifications in La.R.S. 14:67 were amended by the legislature in 2010. See 2010 La. Acts 585.

      . Although the trial court did not state that the defendant's sentence for theft of a firearm was to be served without the benefit of probation, parole, or suspension of sentence, pursuant to La.R.S. 15:301.1(A), the defendant's sentence is deemed to contain those restrictions.

      . Although the trial court did not state that the defendant’s sentence for theft of a firearm was to be served without the benefit of probation, parole, or suspension of sentence, pursuant to La.R.S. 15:301.1(A), the defendant’s sentence is deemed to contain those restrictions.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Charles D. SOILEAU.
    No. 13-772.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 12, 2014.

      Edward K. Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Charles Soileau.
    Trent Brignac, District Attorney, Julhe-lene E. Jackson, Assistant District Attorney, Ville Platte, LA, for Appellee, State of Louisiana.
    Court composed of MARC T. AMY, BILLY HOWARD EZELL, and JOHN E. CONERY, Judges.
   AMY, Judge.

|,The defendant pled guilty to multiple offenses in connection with a burglary in Evangeline Parish. The trial court sentenced the defendant to ten years at hard labor for the defendant’s simple burglary conviction, eight years at hard labor for his theft of $1,500 or greater conviction, and two years at hard labor for his simple criminal damage less than $500 conviction. The trial court ordered that all of the defendant’s sentences run concurrently with each other and with his other pending cases, but consecutively to the defendant’s probation and parole revocations. The defendant now appeals. For the following reasons, we vacate the defendant’s sentence for simple criminal damage less than $500, remand for resentencing on that charge, and affirm the defendant’s remaining sentences.

Factual and Procedural Background

The defendant, Charles Soileau, was arrested in connection with several burglaries in Evangeline Parish, which resulted in multiple charges under several docket numbers, including the charges at issue herein. With regard to the instant charges, the defendant pled guilty to simple burglary, a violation of La.R.S. 14:62; theft of $1,500 or greater, a violation of La.R.S. 14:67(B)(1); and simple criminal damage to property less than $500, a violation of La.R.S. 14:56(B)(1).

The trial court subsequently imposed sentence. For the defendant’s simple burglary conviction, the trial court imposed a sentence of ten years. For the defendant’s theft of $1,500 or greater conviction, the trial court imposed a sentence of eight years. For the defendant’s simple criminal damage to property less than $500 conviction, the trial court imposed a sentence of two years. The trial court ordered that all of the defendant s sentences be served at hard labor and that they be served concurrently with each other and with the defendant’s other current ^offenses. However, the trial court ordered that the defendant’s sentences be imposed consecutively to his parole and probation revocations.

The defendant appeals, asserting that his sentence is unconstitutionally excessive.

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, all criminal appeals are reviewed for errors patent on the face of the record. Our error patent review reveals one error which requires correction concerning the defendant’s sentence for simple criminal damage to property less than $500. Simple criminal damage to property less than $500 is punishable by imprisonment for not more than six months, a fine of not more than $1,000, or both. La.R.S. 14:56(B)(1). The record indicates that the trial court sentenced the defendant to two years at hard labor on this conviction, which exceeds the maximum penalty allowable under La.R.S. 14:56(B)(1). An appellate court may correct an illegal sentence pursuant to La.Code Crim.P. art. 882. However, if correcting the illegal sentence involves the exercise of sentencing discretion, the appellate court must remand the matter to the trial court. State v. Jacobs, 08-702 (La.App. 3 Cir. 2/4/09), 2 So.3d 1289. Accordingly, we vacate the defendant’s sentence for simple criminal damage to property less than $500 and remand the matter to the trial court for resentenc-ing.

Excessive Sentence

The defendant contends that his sentences are unconstitutionally excessive. Our review of the record reveals that the defendant did not file a motion to | .¡reconsider sentence nor did he orally object to the sentences imposed at the sentencing hearing. Thus, review of the defendant’s sentences is limited to whether the sentences imposed are unconstitutionally excessive. State v. Casimer, 12-678 (La.App. 5 Cir. 3/13/13), 113 So.3d Í129.

Both the United States and Louisiana constitutions guarantee that no person shall be subject to cruel and unusual punishment. U.S. Const, amend. VIII; La. Const, art. I, § 20. A sentence is excessive when a reviewing court finds that the penalty is “so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering.” State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042, writ denied, 01-838 (La.2/1/02), 808 So.2d 331. The trial court has broad sentencing discretion, and a sentence within statutory limits will not be set aside absent a manifest abuse of that discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99), 746 So.2d 124, writ denied, 00-165 (La.6/30/00), 765 So.2d 1067. However, sentences within the statutory sentencing range can be reviewed for constitutional excessiveness. State v. Sepulvado, 367 So.2d 762 (La.1979).

In reviewing the defendant’s sentences, the appellate court should consider the nature of the crime, the nature and background of the offender, and the sentences imposed for similar crimes. State v. Lisotta, 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57 (citing State v. Telsee, 425 So.2d 1251 (La.1983)), writ denied, 99-433 (La.6/25/99), 745 So.2d 1183. In State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061, a panel of this court observed that:

14While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, 958.

The record indicates that the defendant’s offenses stem from the burglary of Pamela Beecher’s home. At the defendant’s plea hearing, the State indicated that the defendant and his accomplices entered Ms. Beecher’s home, causing damage. The State also stated that the defendant stole jewelry, including a diamond bridal ring and a laptop. At the sentencing hearing, Ms. Beecher indicated that her heirloom jewelry had not been recovered and that it is irreplaceable.

At the time of his guilty plea, the defendant was twenty-nine years old. According to the defendant, he started using drugs when he was twelve years old and, after attending several treatment programs, stopped using drugs when he was twenty-four years old. The defendant stated that he began using drugs, including Xanax and methadone, again after he was involved in a “bad wreck.” The record indicates that the defendant is married, has three children, and worked regularly until his 2010 conviction for distribution of Schedule II narcotics. Further, although the defendant dropped out of school in the seventh grade, he has since completed his GED.

The pre-sentence investigation ordered by the trial court indicates that the defendant has a juvenile record and several prior adult felony convictions. In 2005, the defendant pled guilty to simple burglary and theft greater than $500. For those convictions, the defendant was sentenced to three years hard labor on each count, to run concurrently. However, his term of imprisonment was suspended and |fihe was placed on three years supervised probation. The record indicates that the defendant successfully completed his probation and received a first offender pardon. In 2010, the defendant was convicted of distribution of Schedule II narcotics and was sentenced to ten years at hard labor. Seven years of that term of imprisonment were suspended, and the defendant was placed on five years active probation upon his release from incarceration. The defendant was placed on parole in 2011. However, the defendant’s parole was revoked in February of 2012 and his probation was revoked in March of 2012 on the basis that he remained criminally active, failed to comply with substance abuse treatment, and failed to pay his supervision fees.

The defendant’s sentence for simple criminal damage to property less than $500 has been addressed above. The defendant pled guilty to simple burglary, a violation of La.R.S. 14:62. Simple burglary is punishable by a fine of not more than $2,000, imprisonment with or without hard labor for not more than twelve years, or both. La.R.S. 14:62(B). The defendant was sentenced to ten years at hard labor for this conviction. In State v. Burns, 82,904 (La.App. 2 Cir. 2/1/00), 750 So.2d 505, the second circuit upheld a ten-year sentence for simple burglary where the defendant had two prior felony convictions, including one for attempted simple burglary, and had previously had his probation revoked. See also State v. Stanfield, 10-854 (La.App. 4 Cir. 1/19/11), 56 So.Bd 428, writ denied, 11-266 (La.6/3/11), 63 So.3d 1007.

The defendant also pled guilty to theft of $1,500 or greater, a violation of La.R.S. 14:67. Theft of $1,500 or greater is punishable by imprisonment with or | (¡without hard labor for not more than ten years, a fine of not more than $3,000, or both. La.R.S. 14:67(B)(1). The defendant was sentenced to eight years at hard labor for this conviction. Maximum or near-maximum sentences are reserved for the worst offenders. State v. Fontenot, 09-624 (La.App. 3 Cir. 12/9/09), 25 So.3d 225. In State v. Brown, 09-10 (La.App. 1 Cir. 9/11/09) (unpublished opinion), the first circuit upheld maximum sentences for theft greater than $500 and attempted theft greater than $500 where the defendant was a third-felony offender who, along with her accomplices, shop-lifted multiple items from a busy store and fled to avoid capture.

Based on our review of the record, we find that the defendant’s sentences are not excessive. The defendant has prior felony convictions for simple burglary, theft, and distribution of Schedule II narcotics. Further, the record indicates the defendant was on parole and/or probation at the time of the instant offenses, which were committed less than six months after the defendant’s release from prison. Additionally, at the time of his guilty plea for the charges herein, the defendant was awaiting sentencing on several similar charges. Although the trial court sentenced the defendant to maximum or near-maximum penalties, we note that the defendant received a significant reduction in the total maximum penalty because the trial court ordered that his sentences be served concurrently with each other and with his other pending offenses.

This assignment of error is without merit.

DECREE

For the foregoing reasons, the defendant, Charles Soileau’s, sentence for simple criminal damage to property less than $500 is vacated and the matter is 17remanded to the trial court for resentenc-ing. The defendant’s remaining sentences for simple burglary and theft of $1500 or greater are affirmed.

SIMPLE CRIMINAL DAMAGE TO PROPERTY SENTENCE VACATED AND REMANDED FOR RESENTENC-ING. SIMPLE BURGLARY AND THEFT OF $1500 OR GREATER SENTENCES AFFIRMED.

      . The defendant's sentences in those matters are on appeal in State v. Charles Soileau, 13-770 (La.App. 3 Cir.2/12/14), 153 So.3d 1002, and State v. Charles Soileau, 13-771 (La.App. 3 Cir.2/12/14), 153 So.3d 1002.

      . We note that the sentencing exposure and classifications in La.R.S. 14:67 were amended by the legislature in 2010. See 2010 La. Acts 585.


author: CONERY, Judge.

text:
    STATE of Louisiana v. Robert EDWARDS, Jr.
    No. KA 13-813.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 12, 2014.

      Herbert Todd Nesom, District Attorney, Joe Green, Assistant District Attorney, Oberlin, LA, for Appellee, State of Louisiana.
    Brent A. Hawkins, Louisiana Appellate Project, Lake Charles, LA, for Defen-dani/Appellant, Robert Edwards, Jr.
    Court composed of MARC T. AMY, BILLY HOWARD EZELL, and JOHN E. CONERY, Judges.
   CONERY, Judge.

| defendant, Robert Edwards, Jr., was charged with one count of possession with intent to distribute a controlled dangerous substance, Schedule III, hydrocodone, a violation of La.R.S. 40:968(A)(1); one count of possession with intent to distribute a controlled dangerous substance, Schedule II, cocaine, a violation of La.R.S. 40:967(A)(1); one count of obstruction of justice, a violation of La.R.S. 14:130.1(B)(2); one count of possession of marijuana, second offense, a violation of La.R.S. 40:966(E)(2) and 40:982. Defendant pled no contest to the charges on September 17, 2012, pursuant to a plea agreement. The State dismissed one count of illegal carrying of a weapon, a violation of La.R.S. 14:95(E), and agreed not to charge Defendant as a habitual offender in exchange for the plea.

Defendant was mistakenly sentenced on November 29, 2012, to three years at hard labor for possession of a controlled dangerous substance, Schedule III; to three years at hard labor on the conviction for possession of a controlled dangerous substance, Schedule II; to two years at hard labor on the conviction for obstruction of justice; and two years at hard labor on the conviction for possession of marijuana, second offense. The sentences were ordered to be served concurrently. The trial court further delayed execution of the sentences until December 26, 2012.

Before Defendant began serving his sentence, on December 3, 2012, the State filed a “Motion to Reset Sentencing,” asserting that the transcript of the no contest plea hearing showed that Defendant pled no contest to possession with intent to distribute both hydrocodone and cocaine, rather than simple possession of each drug, and requested that Defendant be resentenced in accordance with the charges to which he had entered a no contest plea. A hearing was held on December 10, 2012, and the trial court vacated the sentences that had been ^mistakenly imposed and resen-tenced Defendant to six years at hard labor on the conviction for possession with intent to distribute hydrocodone; eight years at hard labor on the conviction for possession with intent to distribute cocaine, with the first two years to be served without benefit of parole, probation, or suspension of sentence; three years at hard labor on the conviction for obstruction of justice; and four years at hard labor on the conviction for possession of marijuana, second offense. All the sentences were again ordered to be served concurrently.

Defendant has perfected an appeal wherein he alleges that the trial court did not have authority to resentence him, and that the trial court erred when it resen-tenced him to sentences greater than the vacated sentences. For the following reasons, we affirm Defendant’s sentence as amended.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. There is an error patent regarding whether the trial court had authority to impose payment of certain fees. The trial court ordered Defendant to pay one hundred dollars to D.A.R.E., fifty dollars to the Louisiana Commission for Law Enforcement for Drug Abuse Education and Treatment, and two hundred and fifty dollars to Southwest Louisiana Crime Lab.

In State v. Moore, 93-1632, p. 3 (La.App. 3 Cir. 5/4/94), 640 So.2d 561, 563, writ denied, 94-1455 (La.3/30/95), 651 So.2d 858, this court stated, “[a]n illegal sentence is one not ‘authorized or directed by law.’ State v. Johnson, 220 La. 64, 55 So.2d 782 (1951).” Some of the costs imposed by the trial court were not duly authorized by law.

Louisiana Code of Criminal Procedure Article 895.1 provides, in pertinent part:

|SB. When a court suspends the imposition or the execution of a sentence and places the defendant on probation, it may in its discretion, order placed, as a condition of probation, an amount of money to be paid by the defendant!.]

(Emphasis added.)

In State v. Belton, 11-948 (LaApp. 3 Cir. 3/7/12), 88 So.3d 1159, the trial court ordered the defendant to pay five hundred dollars to the public defender’s office and pay one hundred fifty dollars to the crime lab without suspending a portion of the sentence and placing the defendant on probation. This court recognized the error on error patent review and held in pertinent part:

In State v. Lozado, 594 So.2d 1063, 1067 (LaApp. 3 Cir.1992), this court noted:
Lastly, we bring to the sentencing court’s attention the provisions of LSA-C.Cr.P. Arts. 895 and 895.1 which require that before the sentencing court orders the payment of a fee to defray the expenses of probation supervision and the making of restitution to the Indigent Defender Board, it must suspend defendant’s sentence.
In State v. Frith, 561 So.2d 879 (La.App. 2 Cir.), writ denied, 571 So.2d 625 (La.1990), the defendant was convicted of simple burglary. He was sentenced to two years at hard labor and ordered to pay a $500.00 fine, $162.50 in restitution to the victim, $300.00 to the Indigent Defender Board, and all court costs. On appeal, on error patent review, the court held, in pertinent part:
Second, LSA-C.Cr.P. articles 895 and 895.1 authorize restitution and payment to the indigent defender program as a condition of probation only when the trial court suspends the imposition or execution of sentence. State v. Fluitt, 482 So.2d 906 (LaApp. 2d Cir.1986); State v. Starks, 471 So.2d 1029 (LaApp. 1st Cir.1985). []

Id. at 883.

In this case, the trial court did not suspend imposition or execution of the Defendant’s sentence and place him on probation.

| .Additionally, La.Code Crim.P, art. 887 provides, in pertinent part:

G. In addition to the costs provided in Paragraphs A, C, D, E, and F, a person convicted of a violation of the Uniform Controlled Dangerous Substances Law may be assessed an additional one hundred dollars as special costs of court. Such special costs shall be imposed by all courts and shall be used for the development or maintenance of Drug Abuse Resistance Education (D.A.R.E.) programs.

Accordingly, pursuant to La.Code Crim.P. art. 887(G), this court finds the trial court’s ordering the Defendant to pay a one hundred dollar payment to D.A.R.E. was permissible.

However, this court finds that imposition • of the fees to the Louisiana Commission on Law Enforcement and to the Southwest Louisiana Crime Lab are not an imposition of costs allowed under La.Code Crim.P. art. 887. This Court hereby amends Defendant’s sentence by deleting the provisions requiring payment of fifty dollars to the Louisiana Commission for Law Enforcement for Drug Abuse Education and Treatment and two hundred and fifty dollars to Southwest Louisiana Crime Lab. The trial court is instructed to note the amendment in the court minutes.

DISCUSSION OF ASSIGNMENTS OF ERROR

When Defendant entered into his plea agreement, the facts were recited to the trial court by the State to support Defendant’s no contest plea:

[O]n or about December 1st, 2010, Allen Parish Narcotics Task Force received information that Mr. Edwards was selling pills and/or cocaine. They did a knock and talk terry [sic]. Whenever they drove up they saw Mr. Edwards who walked away from the officer going to the garage area of his residence. He indicated he wanted to speak with one of the officers wherein he admitted to selling his Hydrocodone medication. He gave consent to search the residence. He brought the officers in and showed them where the Hydrocodone medication was. It was located in a safe, which he opened. Inside the safe was a pill bottle of Hydrocodone belonging to Mr. Edwards having been filled the day before, supposedly having a hundred and twenty (120) |5quantity; however now it only had thirty (30). He admitted to selling some of those, taking some of those. Also in that same safe was a bag of marijuana. One of the officers located a bottle and a blood test strip bottle. And he admitted that it had crack cocaine. This was found over in the garage area above where a board was at, it had been placed up there. At first Mr. Edwards denied the cocaine was his, said it was someone else’s. And then he said if you don’t arrest me I’ll tell you the truth about the cocaine. And he never gave a statement after that.

The factual basis was established and was sufficient to support the plea.

Initially, this court notes that Defendant’s allegation that the trial court did not have the authority to resentence him is without merit. A trial court has no authority to amend a hard labor sentence once a defendant has begun serving it. State v. Wimberly, 32-984 (La.App. 2 Cir. 7/29/99), 760 So.2d 355. However, following Defendant’s sentencing on November 29, 2012, the trial court deferred execution of the sentences due to Defendant’s medical issues until December 26, 2012. Louisiana Code of Criminal Procedure Article 881(A) provides that “[ajlthough the sentence is legal in every respect, the court may amend or change the sentence, within the legal limits of its discretion, prior to the beginning of execution of the sentence.” At the time the State filed its motion to reset sentencing on December 3, 2012, Defendant had not begun to serve the sentences.

Defendant also argues that the trial court had no authority to increase the sentences without providing a factual basis for the more severe punishment. Defendant cites State v. Mitchell, 547 So.2d 1136 (La.App. 4 Cir.1989), writ recalled and writ denied, 580 So.2d 906 (La.1991), for the proposition that a resentencing trial court cannot increase a sentence that a defendant is required to serve unless there is justification based upon the defendant’s conduct after his original sentencing.

| (Mitchell, however, is distinguishable from the current case. In Mitchell, the defendant’s resentencing involved the same offense, armed robbery. Defendant, in the current case, was mistakenly sentenced for different offenses than the ones to which he had actually entered a no contest plea — simple possession instead of possession with the intent to distribute. Simple possession offenses are punishable by a lesser range of imprisonment. Obviously, the severity of the offense increases the severity of the sentence.

At the December 2012 resentencing, the trial court noted that the court minutes, which indicated Defendant had pled no contest to possession of hydrocodone and cocaine, instead of possession with intent to distribute, were wrong. Furthermore, at the December 2012 resentencing, Defendant acknowledged he had pled no contest to possession with intent to distribute hydrocodone and cocaine and made no objections.

Finally, and most importantly, Defendant did not file a motion to reconsider the sentences on any grounds. Louisiana Code of Criminal Procedure Article 881.1 provides that a defendant has thirty days from the date of the imposition of the sentence to file for reconsideration. If the defendant fails to do so, he is precluded from raising sentencing matters on appeal or review. La.Code Crim.P. art. 881.1(E). Accordingly, Defendant is precluded from now raising the issue on appeal. In any event, the trial court did not commit error in this case in increasing the sentences to reflect the proper offenses to which Defendant pled. There is no merit to these two assignments of error.

DISPOSITION

We amend Defendant’s sentence by deleting the provisions requiring payment of fifty dollars to the Louisiana Commission for Law Enforcement for |7Prug Abuse Education and Treatment and two hundred and fifty dollars to Southwest Louisiana Crime Lab. Additionally, we order the trial court to correct the minutes to reflect the amendment to Defendant’s sentence. Except as amended, Defendant’s sentences are affirmed.

AFFIRMED AS AMENDED.


author: GREMILLION, Judge. COOKS, J.,

text:
    Darlene VITAL v. LANDMARK OF LAKE CHARLES, d/b/a Lake Charles Healthcare, LLC.
    No. 13-842.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 12, 2014.

      Lawrence Bernard Frieman, Juge, Na-politano, Guilbeau, Covington, LA, for Defendant/Appellant, Landmark of Lake Charles.
    Tina Louise Wilson, Attorney at Law, Lake Charles, LA, for Plaintiff/Appellee, Darlene Vital.
    'Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

| landmark of Lake Charles (Landmark) appeals the judgment of the workers’ compensation judge (WCJ) overturning the decision of the Medical Director for the Office of Workers’ Compensation (OWC) and ordering that it provide its injured employee, Darlene Vital, lumbar epidural steroid injections (LESI). Ms. Vital also appeals the WCJ’s denial of an award for penalties and attorney fees. For the reasons that follow, we affirm.

FACTS

Ms. Vital was injured in the course and scope of her employment with Landmark on April 22, 2010, when she slipped and fell while showering a Landmark resident. She alleged injuries to her shoulder and lumbar spine. Her demands for medical treatment were submitted to the Office of Workers’ Compensation’s Medical Director, Dr. Christopher Rich. Dr. Rich opined that Ms. Vital’s demands for shoulder surgery and for LESI were not appropriate under the applicable OWC medical guidelines. Thereafter, Ms. Vital appealed Dr. Rich’s decision to the WCJ. The WCJ found that Ms. Vital proved by clear and convincing evidence that she was entitled to the LESI procedure, but not shoulder surgery. Landmark appealed the WCJ’s decision. Ms. Vital has answered the appeal and urged that the WCJ erred in not awarding her penalties and attorney fees, and that we award her additional attorney fees for this appeal.

ANALYSIS

An employer’s obligation to furnish medical treatment to its injured employee is governed by La.R.S. 23:1201 et seq. Louisiana Revised Statute 23:1203.1 provides for the creation of a medical treatment schedule to be developed by “the conscientious, explicit, and judicious use of current best |2evidence in making decisions about the care of individual patients, integrating clinical expertise, which is the proficiency and judgment that clinicians acquire through clinical experience and clinical practice, with the best available external clinical evidence from systematic research.” The Director of the Office of Workers’ Compensation is charged with creating this schedule, the oversight of which is entrusted to an appointed medical advisory council composed of members of various medical disciplines, such as orthopedic surgeons.

When a health care provider submits a request to the payor of workers’ compensation benefits that a given medical course of treatment or procedure be authorized, and there is a dispute as to whether the treatment is in accordance with the medical treatment schedule, the dispute is directed to the medical director of the Office of Workers’ Compensation. The medical director then renders a decision on whether the treatment requested is in accordance with the medical treatment schedule. The decision of the medical director is appealable to the WCJ by the filing of a Disputed Claim for Compensation. The medical director’s decision can be overturned when it is shown by clear and convincing evidence that the decision was not in accordance with Section 1203.1.

There is no jurisprudence to guide us on the standard of review of a WCJ’s decision about the medical director’s application of'the medical treatment schedule. The WCJ’s analysis is necessarily fact-intensive; therefore we conclude that, as with most findings of fact, the WCJ’s decision is subject to review under the manifest error/clearly wrong standard. See Poissenot v. St. Bernard, Parish Sheriffs Office, 09-2793 (La.1/9/11), 56 So.3d 170. The manifest error standard requires that we review the record in its entirety to determine not whether the WCJ Rwas wrong, but whether the record reflects a reasonable basis for the WCJ’s decision. Id.

The medical director’s denial of the LESI procedure was predicated upon the fact that the date of injury was fourteen months and that Ms. Vital’s symptoms of low back and leg pain had not changed. Specifically, it stated:

Rationale: All pertinent clinical records submitted were reviewed. (206 pages). The documentation does not support the approval of the requested services per the Louisiana Medical Treatment Guidelines (MTG) noted below. The date of injury is over 14 months ago.
More than 200 pages of records were submitted, a significant amount was redundant with multiple copies; administrative, fax cover sheets, billing sheets, and other non-clinical material; Form 1009 submitter needs to only send pertinent clinical data.
Most recent clinical record submitted dated 11.21.2012 noted low back and left leg pain, no change in pain; exam noted normal motor and reflex. Lumbar imaging report dated 08.07.2012 noted articular facet degeneration at L3/4 and L4/5 with neurOforaminal [sic] narrowing.

The medical director also stated:

The MTG notes the following:

• The emphasis within these guidelines is to move patients along a continuum of care and return-to-work within a six-month time frame, whenever possible.
• Return to Work is therapeutic, assuming the work is not likely to aggravate the basic problem or increase long-term pain. The practitioner must provide specific written physical limitations
• Therapeutic spinal injections may be used after initial conservative treatments, such as physical and occupational therapy, medication, manual therapy, exercise, acupuncture, etc., have been undertaken.
• The purpose of spinal injections is to facilitate active therapy by providing short-term relief through reduction of pain and inflammation.
• Epidural steroid injections are effective for patients with radicular pain or radiculopathy (sensory or motor loss in a specific dermatome or myotome).
• Maintenance care will be based on principles of patient self-management
li* Management of pain or injury exacer-bations will emphasize initiation of active therapy techniques and may occasionally require anesthetic injection blocks.

The WCJ found that Ms. Vital has chronic pain for which conservative treatment had proven ineffective and that she suffers from disc bulging and degenerative changes that have resulted in neuroforami-nal narrowing. This is corroborated by the medical records.

An MRI ordered by Dr. Gunderson and performed on August 7, 2012, was interpreted by the radiologist, Dr. Scott Mills, as demonstrating bilateral neural forami-nal narrowing at every level in Ms. Vital’s lumbar spine except Ll-2. Ms. Vital had undertaken active physical therapy for her condition. These two factors, which are identified by the medical director as having been utilized under the MTG to deny Ms. Vital the LESI procedure, are directly contradicted by the medical records reviewed by the medical director. The record reflects a reasonable basis for the WCJ’s finding that the denial was overturned by clear and convincing evidence.

Ms. Vital argues that the WCJ erred in not awarding her penalties and attorney fees for the denial of the LESI procedure. We likewise affirm the WCJ on this point. Penalties and attorney fees for failing to authorize medical treatment by an employer or insurer are governed by La.R.S. 23:1201(F). That section does not authorize penalties or attorney fees if the claim is reasonably controverted by the employer or insurer. La.R.S. 23:1201(F)(2). The MTG governs all treatment to patients unless it can be demonstrated to the medical director that treatment not in accordance with the MTG is reasonably required by a preponderance of the medical evidence. La.R.S. 23:1203.1(1) An employer is entitled to rely upon the | ^decision of the medical director that any treatment proposed is beyond the scope of the MTG.

Ordinarily, a workers’ compensation claimant is entitled to additional attorney fees on appeal when she successfully defends a judgment. Phillips v. Diocese of Lafayette, 03-1241 (La.App. 3 Cir. 3/24/02), 869 So.2d 313. Accordingly, we award Ms. Vital attorney fees of $2,000.00 for work by her counsel on appeal.

AFFIRMED AND RENDERED.

COOKS, Judge, concurs and assigns written reasons.

COOKS, J.,

concurring in the result.

| jAlthough I agree with the majority’s conclusion to affirm the WCJ’s judgment denying penalties and attorney fees, I do not agree with the reasons it relies on for that decision. The majority finds the employer is entitled to rely on the Medical Director’s decision and abide by it. I believe this reasoning ignores the provisions of La.R.S. 23:1201(F) which provides for the award of penalties and attorney fees for an employer’s “failure to provide payment in accordance with this Section ...” The employer’s denial of benefits was based on the same medical records relied upon by the Medical Director which the majority correctly finds “directly contradicted” Rich’s conclusion that the requested procedure should be denied as not in line with the MTG. When the employer denied the requested treatment it was not relying on a decision by the Medical Director. The employer’s actions must be gauged at the time of its initial refusal. The mere fact that the Medical Director agreed with the employer does not exonerate the employer for its actions if it acted improperly. The workers’ compensation statutes make no, such exception. Louisiana Revised Statute 23:1201(F)(2) provides: “This subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.” However, other evidence in the record, other than the Medical Director’s opinion, does not suggest the WCJ erred in finding the employer did not act unreasonably |2or capriciously in denying the doctor’s request for the injections. Thus, there is no basis to overturn the WCJ’s decision regarding penalties and attorney fees.


text:
    Janie LEJEUNE v. LOUISIANA MEDICAL MUTUAL INS. CO., et al.
    No. CA 13-845.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 12, 2014.

      R. Scott lies, Lafayette, Louisiana, for Janie Lejeune.
    Michael W. Adley, Judice & Adley (A Professional Law Corporation), Lafayette, Louisiana, for Louisiana Medical Mutual Ins. Co., et al.
    Court composed of MARC T. AMY, BILLY HOWARD EZELL, and JOHN E. CONERY, Judges.
   CONERY, Judge.

¡ iJanie Lejeune appeals a trial court’s grant of summary judgment in favor of Dr. Thad Bourque and Louisiana Medical Mutual Insurance Company. Mrs. Lejeune filed suit against Dr. Bourque for medical malpractice alleging that Dr. Bourque breached the standard of care in his treatment of her deceased husband, Joseph Le-jeune. Defendants moved for summary judgment and filed an affidavit containing the opinion of the medical review panel stating that Dr. Bourque’s treatment of Mr. Lejeune was appropriate and that he did not breach the standard of care for a urologist. The trial court found that Mrs. Lejeune failed to offer proper expert testimony to controvert the expert opinion of the medical review panel (MRP) and granted summary judgment dismissing her claim with prejudice at her cost. For the following reasons, we affirm.

FACTS

After seeking treatment for blood in his urine with Dr. Kent Humble, Mr. Lejeune was referred to Dr. Thad Bourque, a urologist. Dr. Bourque first saw Mr. Lejeune on August 28, 2008. Dr. Bourque ordered testing, and a CT scan revealed a seven centimeter mass on Mr. Lejeune’s right kidney that appeared to affect the fatty tissue on the edge of the kidney capsule itself. On September 17, 2008, a right radical nephrectomy was performed, removing the kidney and the surrounding fat tissue. Mr. Lejeune was discharged from the hospital on September 21, 2008, and seen in Dr. Bourque’s office for a post-surgical visit on September 25, 2008.

At the September 25, 2008 office visit, Dr. Bourque observed that Mr. Lejeune’s liver enzymes normalized after surgery. The surgical pathology report dated September 18, 2008, indicated that the “MARGINS OF EXCISION FREE EOF TUMOR.” Dr. Bourque further noted that Mr. Lejeune had an increased risk of recurrence of cancer since the tumor was Grade 4 and had extended into the fatty tissue on the edge of the kidney capsule. In his deposition testimony, Dr. Bourque discussed the implications of Mr. Le-jeune’s increased risk of cancer in relation to the surgery he had just performed removing Mr. Lejeune’s right kidney and the fatty tissue surrounding it. First, he did not obtain an oncology consult after the surgery “because, typically they do not give chemotherapy without the presence of visible residual disease, either local or metastatic.” Second, when questioned if he presumed all the cancer cells had been removed with the surgical procedure, Dr. Bourque responded, “[Slaying that I got all the cancer is not something that anybody can say.” Dr. Bourque also testified that removing the tumor and finding it did not “go to or through the margins” lead him to believe “the local tumor was resect-ed completely,” and no other cancerous lesions were detected elsewhere in Mr. Lejeune at that time. The pathology report confirmed his opinion. Due, however, to the increased risk of recurrence of the cancer, Dr. Bourque wanted to follow Mr. Lejeune quarterly and continue to conduct testing which included a chest x-ray, CMP, and CBC.

Mr. Lejeune returned for a follow-up visit with Dr. Bourque on October 30, 2008. Dr. Bourque ordered and reviewed the recommended series of testing on Mr. Lejeune. The testing revealed the following as per Dr. Bourque’s testimony, “[t]he chest x-ray didn’t show any signs of recurrence. His CBC showed normal white blood count and hemoglobin levels with no acute infection.” There was no |3mention in Dr. Bourque’s deposition testimony about the CMP results. By the time of this visit, Mr. Lejeune had started to gain weight. Dr. Bourque once again noted that Mr. Lejeune had a high grade tumor removed and was to be watched closely for possible recurrence. Dr. Bourque’s notes indicated that Mr. Lejeune should return in three months and he scheduled a followup appointment for him on January 22, 2009.

Dr. Bourque’s office notes indicate that in the interim, Mr. Lejeune came to his satellite office in Opelousas on the morning of December 8, 2008, asking to see Dr. Bourque because he was concerned that his cancer may have returned due to the fact that he was experiencing swelling again. Mr. Lejeune asked whether there was a blood test Dr. Bourque could order to check the problem. Dr. Bourque was not in the Opelousas office on December 8, 2008, but was consulted by phone about the request by his nurse, Nancy Major. After speaking with Dr. Bourque, Nurse Major called Mr. Lejeune and relayed Dr. Bourque’s advice that Mr. Lejeune should see his family physician, Dr: Mark Dawson, who could address the problem. Mr. Lejeune was already scheduled for followup testing on January 22, 2009, with Dr. Bourque. The documentation of the conversation indicates that Mr. Lejeune responded that he would call Dr. Dawson to schedule an appointment in the morning. The medical records contained in the record on appeal do not contain any documentation that Mr. Lejeune did follow-up with Dr. Dawson.

Mr. Lejeune returned to see Dr. Bo-urque for his regularly scheduled appointment on January 22, 2009. Dr. Bourque noted that Mr. Lejeune’s weight was stable and that he would watch Mr. Lejeune closely for possible recurrence of the high grade tumor. The same testing was ordered and reviewed by Dr. Bourque. The chest x-ray was negative or normal. The CBC showed no signs of infection Land his blood counts were a little lower than the time before. His CMP, or metabolic panel, showed a high blood sugar level and his overall kidney function was a bit elevated, which was not unexpected due to his age (seventy-four) and his having only one kidney.

Dr. Bourque wanted to see Mr. Lejeune in three months, as indicated on his office summary of the January 22, 2009 visit. For some unknown reason, the appointment was scheduled for six months later. Dr. Bourque testified in his deposition that he had wanted to see Mr. Lejeune every three months and could not explain why an appointment was scheduled for July 28, 2009. Dr. Bourque offered that it might be possible that he wrote six months on the charge ticket, or that the scheduling person scheduled it for six months instead of three.

Mr. Lejeune did not return for treatment with Dr. Bourque, but continued to treat with his family physician, Dr. Dawson. He presented to Dr. Dawson on three occasions in June 2009 — 6/17, 6/23, and 6/30. On each of these office visits he complained of a cough and a shortness of breath. A chest x-ray on June 18, 2009 revealed bilateral pneumonia with car-diomegaly, an enlarged heart. The chest x-ray of June 30, 2009, revealed a suspicious white spot on the left, pleural effusion on the right and cardiomegaly. The Brain Natriuretic Peptide (BNP) was normal, indicating no heart failure and there was no increase in his white blood cell count. Dr. Dawson noted no acute distress or respiratory distress, and his assessment was DOE (dyspnea, or shortness of breath on exertion), with abnormal chest x-ray. Dr. Dawson then ordered a repeat chest x-ray with a PA view, in which the x-ray beams pass from back to front.

On July 1, 2009, Mr. Lejeune’s condition worsened and at the request of Dr. Dawson he presented to the emergency room for possible pneumonia versus Rpleural effusion. Dr. Dawson also recommended a pulmonologist consult. Mr. Lejeune was subsequently admitted to Our Lady of Lourdes Regional Medical Center. After extensive testing, an oncologist, Dr. Joseph E. Brierre, was consulted and on July 2, 2009, Dr. Brierre diagnosed Mr. Lejeune with metastatic lung disease related to his previously diagnosed renal cell carcinoma. Dr. Brierre recommended a trial of chemotherapy as an outpatient in the Church Point area.

After his discharge from Our Lady of Lourdes Regional Medical Center, Mr. Le-jeune was admitted to Ochsner Baptist Hospital in New Orleans on July 8, 2009, where further testing revealed that the cancer had also metastasized in his brain. Mr. Lejeune died on July 29, 2009.

On July 21, 2009, prior to Mr. Lejeune’s death, Dr. Bourque’s office called the Le-jeunes to remind them of Mr. Lejeune’s appointment scheduled for July 23. Dr. Bourque’s office notes indicate that Mrs. Lejeune informed them that she was disappointed with the service they had received because Dr. Bourque had refused to see Mr. Lejeune a month after his last visit. However, the medical records from Dr. Bourque’s office do not contain any such calls. Mrs. Lejeune told them that Mr. Lejeune was going to Ochsner Baptist Hospital for treatment of cancer of the brain.

After her husband’s death, Mrs. Lejeune filed a claim with the Louisiana Patient’s Compensation Fund. A unanimous MRP found that Dr. Bourque met the applicable standard of care in his treatment of Mr. Lejeune. Mrs. Lejeune then filed suit against Dr. Bourque and his insurer. In her suit, Mrs. Lejeune sued for damages for the wrongful death of her husband and for the loss chance of survival of her husband as a result of the alleged substandard medical care received by Dr. [(¡Bourque. She also asked for survival damages for his pain and suffering prior to his death.

In response to the suit, the Defendants filed a motion for summary judgment alleging that Mrs. Lejeune could not present any competent expert evidence indicating that Dr. Bourque breached the applicable standard of care for a urologist and/or that any alleged breach caused damages. A hearing on the motion was held almost a year later on December 17, 2012, after discovery had been completed. After the hearing, the trial court gave Mrs. Lejeune thirty days to submit an affidavit of a physician indicating that Dr. Bourque breached the standard of care in his treatment of Mr. Lejeune.

The next hearing was held on February 19, 2013. After reviewing the evidence submitted by Mrs. Lejeune, which consisted of an affidavit and what was purported to be an attached narrative by an oncologist, not a urologist, the trial court granted the Defendants’ motion for summary judgment, finding that the affidavit submitted by Mrs. Lejeune did not provide the evidence necessary to defeat summary judgment. Mrs. Lejeune then timely filed the present appeal.

ASSIGNMENT OF ERROR

(1) THE TRIAL COURT ERRED IN GRANTING THE DEFENDANT DOCTOR’S MOTION FOR SUMMARY JUDGMENT.

LAW AND DISCUSSION

Standard of Review

Summary judgments are reviewed de novo, applying the same standard to the matter as that applied by the trial court. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 689 So.2d 730. Summary judgment is favored by law and provides a vehicle by which the just, speedy, and inexpensive determination of |7an action may be achieved. La.Code Civ.P. art. 966(A)(2). The trial court is required to render summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B)(2).

In 1997, the legislature enacted La.Code Civ.P. art. 966(C)(2), which clarified the burden of proof in summary judgment proceedings. The initial burden of proof remains with the mover to show that no genuine issue of material fact exists. If the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that a genuine material factual issue remains. Id. “[T]he failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion.” Hutchinson v. Knights of Columbus, Council No. 5717, 03-1533, p. 6 (La.2/20/04), 866 So.2d 228, 233 (citing Hardy v. Bowie, 98-2821, pp. 4-5 (La.9/8/99), 744 So.2d 606, 609-10).

When a motion for summary judgment is made and supported, the adverse party may not rest on the allegations or denials of his pleadings, but must set forth specific facts showing that there is a genuine issue for trial. La.Code Civ.P. art. 967(B). “A fact is ‘material’ when its existence or nonexistence may be essential to [a] plaintiffs cause of action under the applicable theory of recovery.” Smith, 639 So.2d at 751. “[Fjacts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” Id. (quoting S. La. Bank v. Williams, 591 So.2d 375, 377 (La.App. 3 Cir.1991), writ denied, 596 So.2d 211 (La.1992)).

| sIn determining whether a fact is material, we must consider the substantive law governing the litigation. Davenport v. Albertson’s, Inc., 00-685 (La.App. 3 Cir. 12/6/00), 774 So.2d 340, writ denied, 01-73 (La.3/23/01), 788 So.2d 427. Our supreme court in Johnson v. Morehouse Gen. Hosp., 10-387, 10-488, pp. 10-11 (La.5/10/11), 63 So.3d 87, 95-96 (footnote omitted), stated:

When a medical malpractice action is brought against a physician, the plaintiff must establish the standard of care applicable to the physician, a violation of that standard of care by the physician, and a causal connection between the physician’s alleged negligence and the plaintiffs resulting injuries. See La. R.S. 9:2794(A); Schultz v. Guoth, 10-0343 (La.1/19/11), 57 So.3d 1002; Pfiffner v. Correa, 94-0924 (La.10/17/94), 643 So.2d 1228,1233.... Expert testimony is generally required, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony. Schultz, supra; Samaha v. Rau, 07-1726 (La.2/26/08), 977 So.2d 880, 883.

Louisiana Revised Statutes 9:2794(A) provides in pertinent part:

A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq.... the plaintiff shall have the burden of proving:
(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, ... licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians ... within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

Briefly stated, the plaintiffs burden of proof in a medical malpractice action requires the plaintiff to present evidence to establish the applicable standard of care, j9a breach of that standard of care, and a causal connection between the breach and the injury. La.R.S. 9:2794(A); Pfiffner v. Correa, 94-0924 (La.10/17/94), 643 So.2d 1228.

In support of his motion for summary judgment, Dr. Bourque submitted into evidence the unanimous opinion of the MRP. A panel of this court, in the case of Palombo v. Bacque, 06-218, pp. 4-5 (La.App. 3 Cir. 5/31/06), 931 So.2d 1226, 1230, writ denied, 06-1698 (La.10/6/06), 938 So.2d 82, applied the findings of the second circuit in the case of Edwards v. Raines, 35,284, p. 5 (La.App. 2 Cir. 10/31/01), 799 So.2d 1184, 1187, which held:

One of the essential elements of a medical malpractice action is that the plaintiff establish that the conduct of the defendant fell below the applicable standard of care. Hinson v. Glen Oak Retirement Home, 34,281 (La.App. 2 Cir. 12/15/00), 774 So.2d 1134. The .opinion of the Medical Review Panel may be considered by the court when ruling on a summary judgment motion. Id. at 1137. Hinson also holds that a favorable affidavit by the treating physician and a favorable opinion by the Medical Review Panel are sufficient to establish an absence of factual support for the plaintiffs claims. 774 So.2d at 1137.

In this case, the unanimous opinion of the MRP in this case stated, in pertinent part:

It is the opinion of the Medical Review Panel that the Defendant, DR. THAD BOURQUE did not deviate from the standard of care which is required of health care providers, of the same specialty, for the following reason:
All medical care provided by DR. TELAD BOURQUE was appropriate and met the acceptable standards of care.

In opposition to the motion for summary judgment, Mrs. Lejeune introduced the affidavit of Dr. Mohamed B. Elmongy, a hematologist and oncologist, who treated Mr. Lejeune at Ochsner Baptist Hospital. The affidavit states in its entirety:

BEFORE ME, the undersigned authority, a Notary Public in and for the above County and State, personally came and appeared DR. MOHAMED B. ELMON-GY, M.D., hematologist and oncologist, |inwho after being duly sworn did depose and state that the attached narrative report is a true and correct reflection of his opinions regarding the care and treatment rendered in the above captioned matter related to Joseph Le-jeune, Jr. both before receiving Mr. Le-jeune as a patient, as well as the limited care that could be offered regarding Mr. Lejeune after he became my patient.

Attached to Dr. Elmongy’s affidavit was an unsigned and undated narrative to Mrs. Lejeune’s attorney and unauthenticated documents which were purported to be clinical practice guidelines for an oncologist, not a urologist. The unsigned and unauthenticated narrative stated in pertinent part:

Because the patient is listed as having high grade tumor which indicated that he is at high risk of tumor recurrence, he could have referred him to an Oncologist specialist to evaluate him and might be able to offer him clinical trial for adjuvant treatment for high risk renal cell carcinoma.

Louisiana Code of Civil Procedure Article 967 states that an affidavit submitted in opposition to a motion for summary judgment must meet the following standards:

A. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in, evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. The supporting and opposing affidavits of experts may set forth such experts’ opinions on the facts as would be admissible in evidence under Louisiana Code of Evidence Article 702, and shall show -affirmatively that the affiant is competent to testify to the matter stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.
B. When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.

InMrs. Lejeune argues that the trial court erred in granting summary judgment by dismissing her expert’s testimony because he is an oncologist and not a urologist. She argues that when disciplines overlap because of a particular medical event, the standard of care in question is the needed focus of the court, not the nature of the specialty itself.

“[A] specialist in one field can give expert testimony regarding the standard of care applicable to those areas of practice that are common to both disciplines.” Smith v. Clement, 01-87, p. 5 (La.App. 3 Cir. 10/3/01), 797 So.2d 151, 156, writs denied, 01-2878, 01-2982 (La.1/25/02), 807 So.2d 249, 843. Pursuant to La.R.S. 9:2794(D)(3), “a specialist’s knowledge of the requisite subject matter, rather than the specialty or subspecialty within which the specialist practices, determines whether a specialist may testify as to the degree of care which should be exercised.” Harper v. Minor, 46,871, p. 9 (La.App. 2 Cir. 2/1/12), 86 So.3d 690, 696, writs denied) 12-524, 12-528 (La.4/27/12), 86 So.3d 629, 632.

The trial court, in its colloquy with counsel at the hearing on the motion for summary judgment, did not discount the affidavit of Dr. Elmongy on the basis his specialty was oncology and not urology. The trial court stated, “doctors in urology and radiology [oncology] ought to be able to talk about the same kind of care for cancer patients and whatever else.” The trial court, however, found that Dr. El-mongy’s opinion, even assuming it was in proper affidavit form, was not sufficient to defeat the motion for summary judgment and stated:

And I said to you, okay, if your guy tells me enough to make me comfortable that he’s comfortable with the standard of care and that if he is that he then can tell me in his opinion that there was a breach of standard of care. So guess what your guy does? He convinces me enough that he’s okay, but he doesn’t give me an opinion that makes me comfortable in not granting a motion for summary judgment....
| i?His affidavit says that — here we go. That because the patient is listed as having a high grade tumor which indicated that he is at high risk of tumor recurrence, he could have referred him to an oncologist specialist to evaluate him and might be able to offer him clinical trial for adjuvant treatment for high risk renal cell carcinoma....
THE COURT: Could have is my concern.

A de novo review of Dr. Elmongy’s affidavit reveals that it does not meet the requirements of La.Code Civ.P. art. 967. The narrative attached to the affidavit stated the conclusion that Dr. Bourque could have referred Mr. Lejeune to an oncologist for an evaluation and he might have been included in a clinical trial. The trial judge found that this statement was not sufficient to defeat summary judgment, and we agree.

Moreover, this “opinion” was not contained within the affidavit, but in an unsigned and undated narrative to Mrs. Lejeune’s counsel. Louisiana Code of Civil Procedure Article 967 requires attachments referred to in an affidavit to be “[s]worn or certified copies.” As such, the narrative attached to the affidavit is not in proper form. Even were it to be considered, the affidavit also fails to correlate Dr. Elmongy’s expertise in oncology with Dr. Bourque’s expertise in urology and fails to state that Dr. Elmongy is familiar with the standard of care required for urologists. Additionally, there is no mention that any of the alleged treatment or alleged lack of follow-up by Dr. Bourque was a breach of the standard of care of a urologist, or was causally connected to Mr. Lejeune’s death.

We agree with the trial court that plaintiff did not properly controvert the findings of the MRP. We further find that even were we to consider the unsigned and unauthenticated attachment to Dr. Elmon-gy’s affidavit, no genuine issue of material fact was presented sufficient to defeat defendants’ summary judgment motion.

| ^DISPOSITION

For the foregoing reasons, we affirm the trial court’s grant of summary judgment in favor of Dr. Thad Bourque and Louisiana Medical Mutual Insurance Company. Costs of this appeal are assessed to Janie Lejeune.

AFFIRMED.

AMY, J., concurs and assigns reasons.

EZELL, J., dissents.

      . A Comprehensive Metabolic Panel (CMP) is a group of fourteen tests designed to give a health care provider current status of the kidneys and liver. A Complete Blood Count (CBC) gives information about the numbers of cells in the blood, especially the red and white blood cells and platelets.


text:
    STATE of Louisiana v. Gabe McKEEL, Jr.
    No. KA 13-855.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 12, 2014.

      John Foster DeRosier, District Attorney, Karen C. McLellan, Assistant District Attorney, Lake Charles, LA, for Appellee, State of Louisiana.
    Edward J. Marquet, Lafayette, LA, for Defendant/Appellant, Gabe McKeel, Jr.
    Court composed of MARC T. AMY, BILLY HOWARD EZELL, and JOHN E. CONERY, Judges.
   CONERY, Judge.

| iDefendant, Gabe McKeel, Jr., was indicted on March 11, 2012, for aggravated rape, a violation of La.R.S. 14:42; aggravated burglary, a violation of La.R.S. 14:60; and aggravated second degree battery, a violation of La.R.S. 14:34.7.

The victim was a ninety-four-year-old woman. Prior to trial, the State filed a motion to perpetuate her testimony in light of her age and medical condition. On April 25, 2012, both parties, with the judge present, videotaped the victim’s testimony for use at trial.

Defendant waived his right to trial by jury. The trial court found Defendant guilty of aggravated rape, aggravated burglary, and the lesser included offense of second degree battery, a violation of La. R.S. 14:34.1. The videotape of the victim’s perpetuated testimony was introduced into evidence in lieu of her live testimony without objection. After conducting a sentencing hearing, the trial court sentenced Defendant to thirty years with the Department of Corrections for aggravated burglary; five years with the Department of Corrections for second degree battery; and life imprisonment without benefit of probation, parole, or suspension of sentence for aggravated rape. He ordered the sentences for aggravated rape and aggravated burglary to run consecutively and the five-year sentence for second degree battery to run concurrently. Defendant objected to the consecutive nature of the sentences of aggravated rape and aggravated burglary, as the crimes resulted from one incident. For the following reasons, we affirm.

| .ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find two errors patent.

Defendant’s charges entitled him to a trial by jury. See La.R.S. 14:42,14:60, and 14:34.7 and La.Code Crim.P. art. 782. On January 17, 2013, Defendant filed a motion to waive jury trial, and he was tried by the trial court judge. The motion provided, in pertinent part:

Andrew M. Casanave, attorney for GABE MCKEEL, defendant in the above captioned case; upon consideration and consultation together, waive Defendant’s right to a trial by jury in this case.
GABE MCKEEL, defendant, further states that he fully understands his right to a trial by jury and thus waives his right knowingly, voluntarily, and intelligently.

Defendant and his attorney signed the motion. Additionally, at the beginning of the bench trial held on February 13, 2013, Defendant’s attorney stated in open court that Defendant, in writing, had waived his right to a jury trial. We find, after a review of the record on its face, Defendant knowingly, voluntarily, and intelligently waived his right to a trial by jury. See State v. Ray, 12-1217 (La.App. 3 Cir. 5/1/18), 157 So.3d 13, 2013 WL 1809908. The question at issue is whether the waiver was timely.

Effective November 22, 2010, La. Const, art. I, § 17(A), added, “[ejxcept in capital cases, a defendant may knowingly and intelligently waive his right to a trial [¡¡by jury but no later than forty-five days prior to the trial date and the waiver shall be irrevocable.”

In State v. Bazile, 12-2243 (La.5/7/13), 144 So.3d 719, the court interpreted the term “trial date” in La. Const, art. I, § 17(A) to mean the initial trial setting.

In this case, the initial trial setting was September 17, 2012. The case was continued and reset for February 13, 2013. Defendant waived his right to a jury trial on January 17, 2013, resulting in a violation of La. Const, art. I, § 17(A), as the waiver was not made more than forty-five days prior to the initial trial date of September 17, 2012, nor was it made more than forty-five days prior to the resetting of the new trial date.

In State v. T.T., 12-146 (La.App. 1 Cir. 9/21/12), 111 So.3d 71, as an assigned error, the defendant argued that the trial court erred in granting a jury trial waiver because the waiver was made less than forty-five days before the trial date, as is required by La. Const, art. I, § 17(A). The defendant argued untimeliness of a waiver is an error discoverable by a mere inspection of the pleadings and proceedings under La.Code Crim.P. art. 920(2), and that he needed to make no contemporaneous objection at trial. The court agreed with the defendant to the extent that timeliness issue was discoverable under La.Code Crim.P. art. 920(2) but found that any error with respect to defendant’s jury trial waiver was “merely a |4waivable trial error and not a non-waivable structural defect.” T.T., 111 So.3d at 74.

In the present case, Defendant requested a waiver of his right to a trial by jury, and he did not object' when it was granted. We find the error by the trial court in allowing Defendant to waive his trial by jury trial in violation of the time period set forth in La. Const, art. I, § 17(A) was harmless. T.T., 111 So.3d 71. Moreover, Defendant did not assign as an error or argue the jury waiver issue on appeal. No action need be taken by this court.

Another error patent is noted. According to the transcript and the minutes, the trial court failed to impose the aggravated rape sentence at hard labor, as required by La.R.S. 14:42(D)(1). In State v. Loyden, 04-1558, p. 6 (La.App. 3 Cir. 4/6/05), 899 So.2d 166, 172, this court explained in pertinent part:

[W]e find that the sentences imposed for the defendant’s two aggravated rape convictions in this case are illegally lenient, because the trial court did not indicate that they were to be served at hard labor.

The trial court’s failure to order Defendant’s sentence for aggravated rape to be served “at hard labor” renders the sentence illegally lenient. In accordance with La.Code Crim.P. art. 882, as an appellate court, we can amend a sentence to reflect that it is to be served at hard labor when that sentence is mandated by law, as it is this case. State v. Guillory, 12-986 (La.App. 8 Cir. 3/6/13), 129 So.3d 108.

We hereby amend Defendant’s sentence for aggravated rape to reflect that Defendant is to serve his life sentence without benefit of parole, probation, or suspension of sentence at hard labor. State v. Guilbeau, 02-972 (La.App. 3 Cir. 2/5/03), 838 So.2d 160, writ denied, 03-553 (La.6/6/03), 848 So.2d 538; Guillory, 129 So.3d 108.

| .ASSIGNMENTS OF ERROR

On appeal, Defendant urges the following assignments of error:

I. Trial court erred in allowing the introduction of prior recorded testimony of the alleged victim without a determination that the witness was “unavailable” to testify at trial. La. C.E. Article 804(B)(1).

II. Sentencing judge improperly imposed a consecutive 30-year sentence to a life sentence from crimes arising out of a single course of conduct.

FACTS

On January 28, 2012, Defendant broke into the ninety-four year old victim’s home, beat her severely, and raped her. He also stole an electronic keyboard from her home. The trial court found circumstantial evidence that Defendant armed himself with a knife before committing the burglary, battery, and rape.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues that the trial court improperly allowed the videotaped testimony of the victim at trial without making a determination that she was unavailable pursuant to La.Code Evid. art. 804(B)(1). After the State filed a motion to perpetuate the victim’s testimony on March 12, 2012, Defendant filed an objection, contending the motion was “essentially a motion for preliminary examination,” and the hearing on the motion should be delayed until discovery was complete.

On April 25, 2012, the victim’s testimony was perpetrated in open court before the judge with Defendant and his defense counsel present and participating. Defendant acknowledged he had received discovery answers and stated “we can proceed with this proceeding.” Nevertheless, defense counsel stated a general objection to the fairness of the proceeding, arguing that in defense counsel’s | .experience, after an indictment has been returned, defense requests for a preliminary examination are denied as untimely.

The court overruled the objection and the victim’s testimony was perpetrated. During defense counsel’s opening statement at the bench trial, he told the trial court, “[the victim] has already testified. We have that. Your Honor was present when she testified, but you will be given her transcript as well as her video testimony. And it’s our position that it will fall short of some of the accusations.” Counsel then told the trial court, “[a]nd just for the record, Your Honor, [the victim’s] testimony was taken in Court, before Your Honor, on the 25th of April, last year.... And we have no objection to the testimony being presented in this matter ” (emphasis added).

The State then marked the DVD as evidence and offered it along with the transcript. The trial court again asked for any objections, and defense counsel responded, “[n ]o objections, Your Honor” (emphasis added). Nevertheless, Defendant argues for the first time on appeal that the trial court erred by failing to determine the victim was unavailable for trial even though he made no objection to the presentation of the victim’s properly perpetuated testimony at trial.

Louisiana Code of Criminal Procedure Article 841(A) requires a party to make a contemporaneous objection to any ruling made by or sought from the trial court. The record provides that the victim’s testimony in this case was presented in an adversarial setting where Defendant had the opportunity to confront and cross-examine his accuser. Defendant was present and represented by counsel, the trial judge was present, and this was a bench trial. The trial court made no ruling on the unavailability of the victim because no one raised an objection and asked it to do so. Thus, nothing exists for this court to review. Defendant’s earlier objection to |7the perpetuation of testimony as the equivalent of a preliminary examination was an objection to the State’s perceived preferential treatment regarding preliminary examinations; it had nothing to do with the argument Defendant now makes. Defendant’s first assignment of error was not preserved for review, and has no merit.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant argues that his crimes arise out of a single course of conduct and the trial court erroneously imposed his thirty-year sentence for aggravated burglary consecutively to his life sentence for aggravated rape without explanation or justification.

Louisiana Code of Criminal Procedure Article 883 states, in part, “[i]f the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively.” “[Cjonsecutive sentences are not prohibited; rather, the trial court must specifically justify its imposition of consecutive sentences.” State v. Massey, 08-839, p. 6 (La.App. 3 Cir. 12/10/08), 999 So.2d 343, 348.

The Second Circuit has stated:

Among the factors to be considered [when imposing consecutive sentences] are the defendant’s criminal history; the gravity or dangerousness of the offense; the viciousness of the crimes; the harm done to the victims; whether the defendant constitutes an unusual risk of danger to the public; the defendant’s apparent disregard for the property of others; the potential for the defendant’s rehabilitation; and whether the defendant has received a benefit from a plea bargain!.] When consecutive sentences are imposed, the court shall state the factors considered and its reasons for the consecutive terms. A | ¿judgment directing that sentences arising from a single course of conduct be served consecutively requires particular justification from the evidence of record.

State v. Coleman, 32,906, p. 42 (La.App. 2 Cir. 4/5/00), 756 So.2d 1218, 1247-48, writ denied, 00-1572 (La.3/23/01), 787 So.2d 1010 (citations omitted). In Coleman, the trial court recognized the general rule of La.Code Crim.P. art. 883 and then stated its reasons for imposing consecutive sentences. The second circuit found the record supported the sentencing order. Coleman, 756 So.2d 1218.

Nevertheless, the trial court’s failure to articulate reasons for imposing consecutive sentences for crimes arising from a single course of conduct does not necessarily invalidate the sentences or their consecutive nature. In State v. Bradley, 02-1130, p. 6 (La.App. 5 Cir. 3/11/03), 844 So.2d 115, 118, the fifth circuit explained:

We do note that LSA-C.Cr.P. art. 883 does not specifically require the trial court state reasons justifying the imposition of a consecutive sentence when the crimes arise out of a single course of conduct. Rather, the history of the jurisprudence reveals that the requirement for articulating specific reasons for imposing a consecutive sentence is based on LSA-C.Cr.P. art. 894.1, which requires a sentencing court to “state for the record the considerations taken into account and the factual basis therefore in imposing sentence.” State v. Franks, 373 So.2d 1307, 1308 (La.1979). Over time, the Louisiana Supreme Court has found that the failure to articulate reasons for sentence pursuant to Article 894.1 does not require a remand when the sentence imposed is not “apparently severe” and there is an adequate factual basis for the sentence contained in the record. State v. Robicheaux, 412 So.2d 1313, 1319 (La.1982). Therefore, it logically follows that the failure to articulate specific reasons for imposing a consecutive sentence also does not require a remand if the record provides an adequate factual basis to support a consecutive sentence.

Here, the trial court did not specifically set out specific factors or cite cases at the sentencing hearing. Rather, he noted Defendant’s criminal history and then stated that La.Code Crim.P. art. 888 allowed him to impose consecutive sentences. |flThe trial court commented that Defendant had “a Burglary conviction, Illegal Possession of Stolen Things conviction. I know there was a third conviction and possibly a fourth. Also, he was prosecuted as an Habitual Offender in New Orleans; was given a ten-year sentence following an Habitual Offender proceeding.”

The trial court in this case did not specify any other particular reasons at the sentencing hearing to justify the imposition of consecutive sentences. However, he did note, “I gave my feelings, my reasons, and basis upon which I found Mr. McKeel guilty of Aggravated Rape, Aggravated Burglary and — Second-degree Battery ... I’m not going to elaborate any further except, I guess, to reinforce what I said earlier. I just can’t believe these things happened, but they did.” In effect, the trial judge incorporated his findings on the guilty verdict at the sentencing hearing.

The testimony presented at trial and the reasons given by the trial court when he found Defendant guilty provided ample basis for consecutive sentences in this case. The underlying facts supporting the sentencing factors were well-known to the trial court and in the record when he imposed the consecutive sentences.

The record shows Defendant raped and brutally beat a ninety-four-year-old woman. The victim had a heart attack at the hospital after the ordeal. The trial court noted when he rendered the guilty verdict that what Defendant did to the victim was life-threatening, vicious, and heinous. Defendant had been out of prison only a short time when he committed these crimes, confirming that he was indeed an unusual risk of danger to the public. He showed complete disregard for the victim. As the State asked in its appellee brief, “[i]f [Defendant] could do this to a 94 year old woman who did nothing but ask that he do odd jobs for the community, who would he not attack?” The record supports a finding that the Impotential for Defendant’s rehabilitation is slight; Defendant apparently was not favorably influenced by his just-completed prison term for his prior multiple offender enhanced sentence. As the trial court noted when he announced his verdict, what Defendant did to the victim was inhumane; it defied logic. He commented further that Defendant “did subject [the victim] to physical violence, sexual violence, but there’s also violence to her dignity. It’s just unbelievable — violence to her psyche.’ ”

Accordingly, we find that the record as a whole adequately supports the trial judge’s imposition of consecutive sentences for aggravated rape and aggravated burglary and concurrent sentence for second degree battery. Defendant’s second assignment of error lacks mérit.

DISPOSITION

This court amends Defendant’s sentence for aggravated rape to reflect that it is to be served at hard labor. Defendant’s consecutive sentences for aggravated rape and aggravated burglary are otherwise affirmed as is his concurrent sentence for second degree battery.

AFFIRMED AS AMENDED.

      . Louisiana Code of Criminal Procedure Article 780 was amended, effective June 17, 2013 (2013 La. Acts 343), to provide in pertinent part:
      B. The defendant shall exercise his right to waive trial by jury in accordance with Article I, Section 17 of the Constitution of Louisiana. The waiver shall be by written motion filed in the district court not later than forty-five days prior to the date the case is set for trial. The motion shall be signed by the defendant and shall also be sjgned by defendant’s counsel unless the defendant has waived his right to counsel.