author: SULLIVAN, Judge.

text:
    STATE of Louisiana v. Connor L. WOOD.
    No. 08-1511.
    Court of Appeal of Louisiana, Third Circuit.
    June 3, 2009.

      Bradley R. Burget, District Attorney, Vidalia, Louisiana, for State of Louisiana.
    W. Jarred Franklin, Louisiana Appellate Project, Bossier City, Louisiana, for Defendant/Appellant Connor L. Wood.
    Court composed of OSWALD A. DECUIR, MICHAEL G. SULLIVAN, BILLY HOWARD EZELL, Judges.
   SULLIVAN, Judge.

_JjOn May 7, 2007, Defendant, Connor L. Wood, was charged by three grand jury indictments with the March 14, 2007 murders of his parents, John and Geraldine Wood, and his alleged co-conspirator, Matthew Whittington. The indictments, which each originally charged Defendant with first degree murder, were amended by the State in March of 2008 to charge Defendant with second degree murder. After a jury trial, Defendant was convicted of the charged offenses and was subsequently sentenced to three consecutive life sentences at hard labor without the benefit of parole, probation, or suspension of sentence.

Defendant appeals, contending that the evidence was insufficient to convict him and that his sentences are excessive. For the following reasons, we affirm.

FACTS

Initial Response to the Scene

David Cobb, an employee in the communications department of the Concordia Parish Sheriffs Office (CPSO), testified that at approximately 2:55 a.m. on March 14, 2007, he received a phone call from Defendant stating that someone had broken into his house at 119 Shady Lane and shot his parents and that he thought his parents were dead. Defendant informed Cobb that he had shot the intruder but that he thought the intruder may still be alive. Cobb contacted the Ferriday Police Department and provided the details to Lieutenant (then Sergeant) John Hawkins and dispatcher Elbert White. When Cobb returned to his phone conversation with Defendant, Defendant told him he had shot the intruder again and that he was dead. The phone 12call between Defendant and Cobb ended when Hawkins arrived at the scene. The call, which had come in on the regular phone system rather than the 911 system, was not recorded. However, the conversations between Cobb and Hawkins and Cobb and Elbert White were recorded.

Lt. Hawkins testified that he and Lt. Derrick Freeman went to Defendant’s residence. When Hawkins arrived at the scene, he saw Defendant walking out from the carport area with a cell phone in his hand. Hawkins described Defendant as “sort of hysterical” upon his arrival. Freeman described Defendant as nervous, “as if he had something on his mind.” Defendant told Hawkins that his mother and father were inside the residence and that the intruder “had entered the room and he shot the intruder down in the hallway.” At this point, Hawkins placed Defendant in his patrol car for safety reasons because he did not know whether the intruder was dead or alive. Hawkins and Freeman secured the perimeter of the house, and Deputies Phillip Webber, Jack Fletcher, and Edward Lawrence arrived and entered the home.

In compliance with standard policy, Defendant was advised of his rights at the scene. He was then questioned to obtain Information regarding his family and persons to contact. Defendant provided Hawkins with the names of his parents, John and “Jerri” Wood, and his friend, Matthew Whittington, who was the “intruder” in the home. Defendant also provided them the name of his brother, Hudson, a student at Louisiana Tech University in Ruston. Defendant was removed from Hawkins’ patrol car and turned over to Investigator David Hedrick. Hedrick testified that he arrested Defendant for the murders at 12:40 p.m. on March 14, 2007.

Islnvestigator (then Sergeant) Fletcher testified that, shortly after he arrived on the scene, he approached Defendant and asked what had happened. Fletcher testified that Defendant was acting normal. Defendant told Fletcher that he heard two shots while he was in his bedroom. He went and retrieved a weapon from under the mattress in his parents’ bedroom and then met an intruder in the hall, whom he shot. Defendant said he told the 911 dispatcher that the intruder was still moving around and asked the dispatcher if he could shoot again. Defendant said he shot the intruder again. Defendant told Fletcher that, after he shot the intruder, he went to his father’s vehicle to retrieve another weapon.

Evidence Obtained from the Scene and from Subsequent Investigation

While waiting for Deputies Webber and Lawrence to arrive, Fletcher looked in the back door of the residence and saw a person lying in the hallway. Fletcher testified that the back door was open, a window was shattered, and there was glass on the floor inside the residence. There was also a jacket on the ground in front of the door with glass fragments in it. Once Webber and Lawrence arrived, the three entered the house. The person in the hallway was laying face down, with no signs of life. Defendant’s mother and father were in their bed with no signs of life. Two Emergency Medical Technicians (EMTs) arrived and confirmed that all three individuals were deceased.

Fletcher asked the EMTs to check Defendant for injuries. Defendant then told Fletcher that he needed to tell him something. Fletcher told Defendant that he needed to secure the residence and that the investigator would be there in a minute, but Defendant blurted out, “Well we had taken the guns out to shoot them last weekend |4so my fingerprints will be all over the guns in the house.” According to Fletcher, at this point, Defendant “seemed normal” and “[w]asn’t really upset a whole lot.”

When Fletcher returned to the rear door, he realized that only the outer pane of glass was broken. He observed a hammer on the barstool near the glass door and a 9 mm pistol on the bar between the refrigerator and the entrance to the dining room. Lawrence testified that the gun had a round in the chamber and several in the magazine.

Matthew Whittington’s body was found in the hallway with empty shell casings (both .22 and .32 caliber) around him. He had neoprene camouflage gloves on his hands. The bodies of John and Geraldine Wood were found in their bed. There were multiple 9 mm casings found throughout the room, with a bullet in the wall behind the headboard of the bed. There was an empty magazine from a 9 mm pistol laying on the floor between the night table and the bed. Fletcher testified that a .22 caliber rifle and a .32 caliber pistol were found on Defendant’s bed. Lawrence testified that the .32 caliber pistol still had the magazine in it but was empty and that the .22 caliber rifle had a live round in the chamber and rounds in the magazine.

Captain Frankie Carroll testified that he found a purse and some money on a chair in the kitchen, which indicated to him that a robbery did not occur. According to Carroll, he dusted for fingerprints on the door and in the bar area. The only print that had ridge detail was on the door, but when he lifted it, it had no identifiable ridge detail. Chief Investigator, Bobby Ray Sheppard, testified that an investigator checked other exterior doors and windows and found no sign of entry into the home.

|BDeputy Lawrence testified that he collected seven .32 caliber casings and two .22 caliber casings laying near Matthew’s body and two .32 caliber casings in a nearby bathroom. He collected a total of thirteen 9 mm casings inside Mr. and Mrs. Woods’ bedroom. Captain Carroll testified that five bullet fragments were recovered from each of the bodies of Defendant’s parents and nine bullet fragments were recovered from Matthew’s body. A cell phone and gloves were removed from Matthew’s body at the funeral home.

Sheppard and Evans, after initially responding to Defendant’s residence, proceeded to the Whittington home where they informed Mr. and Mrs. Whittington that their son had been shot and killed. Mr. Whittington began calling his son’s name and attempted to enter into Matthew’s bedroom but was unable to do so. The Whittingtons explained that their house was being renovated and that Matthew secured his doors with poles when he went to bed. Mr. Whittington entered his son’s room by going outside and raising the window. Once inside Matthew’s room, Sheppard observed Matthew’s wallet and a leg/knee brace on the top bunk bed. He also saw crutches inside the room. Evans testified that he was informed by the Whit-tingtons that Matthew had a knee injury and was not supposed to be walking and that he needed the brace and crutches when he was walking.

Sheppard conducted a follow-up investigation six days after the incident occurred. He searched the red Nissan truck that had been parked in the Woods’ driveway the night of the incident, which had been subsequently released to Mr. Wood’s brother. In the truck, Sheppard found a clip for a .22 caliber weapon, three boxes containing .22 caliber bullets, a case for a 9 mm Jiminez Arms handgun, and a box containing two cartridges of 9 mm ammunition. Other ammunition was | fifound in the center console of the truck, and a Remington pump shotgun was recovered.

Max Jackson, an eleventh grade student at Huntington High School, testified that he was friends with both Defendant and Matthew and that he spent a lot of time at Matthew’s house. Max testified that to his knowledge, Matthew was not a hunter, and he never saw any kind of hunting equipment in Matthew’s residence. Max testified that he had been deer hunting with Defendant, and he identified the Under Armor camouflage gloves found on Matthew’s body as some he had seen Defendant wearing when they went hunting in the 2006-2007 hunting season. Max explained that the gloves are distinctive because they are so thin.

Forensic Evidence

Dr. Karen Ross, an assistant coroner and a forensic pathologist at the Jefferson Parish Coroner’s Office, was qualified as an expert in the field of forensic pathology. She testified that Matthew received a gunshot wound to the face from a medium caliber bullet that went through the sinuses and into the base of the skull. The presence of stippling or abrasion marks around the entrance wound indicated that the gun was fired from less than three feet away. On the right side of the back of his head, there were two gunshot wounds made by small caliber bullets. There was also a graze-type wound on the back of the head. There was another wound on the right side of the back made by a medium caliber bullet. The fifth wound examined by Dr. Ross was made by a medium caliber bullet and was in the left side of the back. Wounds four and five were likely made while Matthew was bending over. The sixth |7wound was in the left upper buttock and was made by a medium caliber bullet. The seventh and eighth wounds were in the right upper buttock and were made by a medium caliber bullet. The ninth wound was below the seventh and eighth wounds that Dr. Ross examined, and it was made with a medium caliber bullet. The path of wounds two through nine traveled back to front. Dr. Ross noted that Matthew had a big bruise on the back of his left leg with an ace bandage around it.

Dr. Ross’s examination of Geraldine Wood’s body revealed a gunshot wound just below the right eye which exited the left temple. Stippling was found on this wound, indicating firing from one and one-half to three feet. A second entrance wound was located on the right lower jaw. The medium caliber bullet was recovered from the left side of the base of the skull. Scant soot and powder particles were found on this wound, indicating the weapon was fired from perhaps -within six inches. The third, fourth, fifth, and sixth wounds examined by Dr. Ross revealed the bullets, which were medium caliber, traveled right to left. Wounds seven and eight were through the right arm and nine and ten were through the left arm. Wounds eleven and twelve were in Mrs. Wood’s shoulder. There were also several graze wounds and a couple of lacerations. From the location of the entrance wounds, Dr. Ross opined that Mrs. Wood was lying on her left side “with her back open.”

Dr. Ross testified that it is very likely that some of the bullets pierced Mrs. Wood’s body and then entered the body of Mr. Wood. The first wound Dr. Ross examined on Mr. Wood was on the right cheek, and the second was on the right side of the neck. The third wound was to the right lower back, and the fourth went from the back of the right shoulder to the front of the body. The second and third wounds examined by Dr. Ross were made by a medium caliber projectile. The fifth wound | ¿went through from the back to the front of the right arm and then entered and exited his chest. Wounds six and seven entered the right upper back and were made by a medium caliber projectile. The final wound on Mr. Wood was on the back of his right hand. The cause of death for each of the three victims was multiple gunshot wounds, and the manner of death was homicide.

Firearm and Fingerprint Analysis

Mike Stelly of the North Louisiana Crime Lab was qualified as an expert in the field of firearm and latent fingerprint analysis. He testified that no latent prints of value could be detected on the Jimenez Arms 9 mm pistol, the pistol magazine, the 9 mm cartridges, or a second empty 9 mm magazine. No latent prints could be detected on the thirteen fired 9 mm casings. The empty pistol magazine found in the Woods’ bedroom fit into the 9 mm pistol.

Stelly testified that two of the bullets retrieved from the body of Mrs. Wood had positively been fired from the 9 mm Jimi-nez Arms pistol. Two of the 9 mm bullets were damaged and could not be positively said to have come from the Jiminez Arms pistol, and the final lead fragment retrieved from her body was too badly damaged for identification.

The bullets retrieved from Mr. Wood were also analyzed. Two were determined to have been fired from the 9 mm Jiminez Arms pistol, but two retained insufficient individual markings for a determination that they positively came from that pistol. One item retrieved from Mr. Wood’s body was consistent with the weight and diameter of a 9 mm bullet core, but it could not be said to have come from a particular gun. Bullets retrieved from the hallway and from the wall of the bedroom |9were consistent with being 9 mm bullets, but could not be conclusively said to have come from the Jiminez Arms weapon.

Stelly also analyzed the 7.65 mm MAE pistol and its magazine. Latent fingerprints could not be detected. He explained that .32 auto caliber cartridges fit this gun and the two fired .32 caliber cartridge cases retrieved from the bathroom had been fired from this weapon. The seven fired .32 caliber cartridge cases retrieved from the hallway were also feed from this weapon. Six bullets retrieved from Matthew’s body were determined to have come from this weapon. A bullet core retrieved from Matthew’s body was consistent with a .32 caliber bullet but was unsuitable for comparison.

A .22 caliber Ruger rifle, Model 1022, a magazine containing nineteen .22 caliber bullets, and one loose bullet were also submitted to Stelly for analysis. No latent prints of value could be detected on the magazine and cartridges. No prints could be detected on the two fired .22 caliber cartridge cases, but it was determined they were fired from the Ruger rifle. The two bullets recovered from Matthew’s body were determined to have the same class characteristics as the Ruger rifle but, due to damage, retained insufficient individual markings to conclusively determine whether they came from that weapon. Stelly also analyzed three boxes of various types of ammunition retrieved from Defendant’s bedroom table, but latent prints could not be detected on the boxes.

Defendant’s Statements

March 14,2007 Statement

Investigator Hedrick testified that he transported Defendant from the scene of the murders to the Sheriffs Office to wait for his brother, Hudson, to come in from | mRuston. Prior to their arrival at the office, Defendant told Hedrick that he needed to tell him something and that he wanted to talk to Hedrick and no one else. Hedrick advised him he could not say anything until his guardian got there. Hudson gave his permission for Defendant to speak to Hedrick alone. Defendant indicated that he would feel more comfortable with the recording equipment off; thus, Hedrick left the equipment off and conducted a pre-interview that lasted approximately thirty-five minutes.

After the pre-interview, Defendant gave a recorded statement after being advised of and waiving his constitutional rights. Therein, Defendant stated that a few months ago, his parents were arguing a lot, and he dreaded his father’s return on Wednesday nights and weekends. He told his best friend Matthew about it, and a couple of weeks later, Matthew suggested killing them. Defendant was shocked and did not say anything, but as time went by, Matthew brought it up more and became more serious, explaining how he would do it. The more Matthew talked about it, the more convinced Defendant became that it was all right to do it. Then, Defendant began to want to do it also, and they decided, after about a month and a half, that they would carry out the murders.

Someone had slashed the tires on Mr. Wood’s truck, so he had been taking his guns out of his truck and keeping them in the kitchen. Matthew knew this and suggested that they could use those guns. After deciding they were going to go through with the plan, Defendant called Matthew one night, and they talked about it. Matthew said he needed to wait for his father to go to sleep before he could go over to Defendant’s house. A little while later, Defendant called back, and Matthew said he was about to leave his house. Defendant met Matthew in his backyard. They had |, [planned for Defendant to shoot his parents and for Matthew to break the window and open the door. Defendant was to then give Matthew the gun, and he was to leave so it would look like someone else committed the crimes. When Defendant met Matthew outside, he said, “Matt, I don’t want to do this.” Matthew said, “Why not, we went through all this trouble and now you’re changing your mind.” Defendant said he told Matthew, “No, I just don’t want to shoot them.” Matthew said, “Well, fine, I’ll do it then.” They then went inside, and Defendant went to his room and stood there while Matthew entered the Woods’ room. As Matthew started shooting, Defendant started “freaking out.” Defendant said he could not believe what he (Defendant) had just done. After shooting the Woods, Matthew walked back by Defendant’s bedroom on his way to break out the window to make it look like a break-in. Defendant said he started “freaking out” and went down the hall and retrieved the gun his mother kept under the mattress. As Matthew was coming back to tell Defendant that he was done and was about to leave and Defendant was about to call the police, Defendant “just shot” Matthew. He emptied the clip and then ran in his room, called 911, and turned on the lights. Matthew was on the floor and still had the gun in his hand. Defendant said he knew Matthew still had bullets, and he was moving around. Defendant then told the 911 operator that the person was still alive and had a gun, and he asked twice if he could kill him. After not answering, Defendant asked a third time, and the man said, “Yes, you can kill him.” By this point, Defendant had retrieved another gun, and he shot Matthew in the back of the head. A few minutes later, the police arrived. Defendant said he was still “freaking 112out” when the police arrived because he could not believe he let Matthew kill his parents.

When asked why they did this, Defendant said he did not know. He commented that his dad “was real down sizing to me when other people were around.” When the two of them were alone, things were fine, but when other people were around, his dad would embarrass and make fun of him. He said his mom limited what he could do, and he was not allowed to go anywhere with his friends. Defendant said he would not have done it if it had not been for Matthew convincing him that he had a good plan. Defendant said he understood you can overcome peer pressure, and he felt stupid for not doing so.

March 17, 2007 Statement

On March 17, 2007, Hedrick was at home and was informed that Defendant wished to speak to him. Hedrick went to the correctional facility, and Defendant told him he wanted to speak to him. Hed-rick advised Defendant of his rights, and they went to the Sheriffs Office. After being advised of and waiving his rights, Defendant again spoke to Hedrick and told him that his last statement was not completely true. He said everything was true up to the point he called Matthew, Matthew came to his house, and they met outside. When Defendant met Matthew outside, Defendant told Matthew that he did not want to do it, and Matthew asked, “Do you want me to kill them?” Defendant replied, “No, I really don’t want them dead.” They talked about it for a minute and then went inside. Matthew picked up the gun, and Defendant said, “No, no, I don’t want you to do it.” Matthew said, “I’m not, we just don’t want to have to come back in here later and get this, already have it.” They then went to Defendant’s room, and Matthew reminded Defendant of all the things he had been | ^telling Matthew about why he wanted his parents dead. Matthew told Defendant his life would be better, and neither of them would get caught. Defendant then took the gun from Matthew and went in and shot his parents. He then gave the gun to Matthew, and Matthew went to break the window. Defendant explained, “[I]t was like I was somebody else. It felt like I didn’t really just do that. And I wished I wouldn’t had done it and I just got so mad, I just, extremely mad at Matt because I felt like he had done it.” Defendant then retrieved the gun his parents kept under their mattress, and he met Matthew in the hall. Defendant said he did not think Matthew knew he had the gun. Defendant then said:

And he was telling me it’s going to be better, evei-ything’s all right. You’ve done it, it’s over. You life’s going to be better, you know. You’re not going to have to deal with them anymore and all this.
And I was telling him it’s not going to be better. I just killed somebody. I didn’t want to kill them. And he says, I promise it’s going to be better and I was just so mad at him I just shot him. And I called the cops.

Hedrick then asked specific questions of Defendant. Defendant said he had called Matthew twice on his cell phone that morning, and they decided they were going to do it. Matthew arrived around 2:15 a.m., and Defendant did not think Matthew brought anything from his residence. Defendant said he told Matthew he did not want to do it, and Matthew acted like he was mad about it. Matthew asked him if he wanted Matthew to do it, and he told Matthew thát he “didn’t want it done.” Again, Defendant said Matthew came up with the idea in the first place, made the plans, and would talk about it. Most of the time, Defendant would just listen and did not have anything to say.

Defendant told Hedrick that Matthew picked up the 9 mm gun from the kitchen, and that this gun was normally kept in his father’s truck. According to 114Pefendant, Matthew originally planned to bring a gun from his house until he noticed that Mr. Wood had been bringing the gun in from his truck.

When Hedrick asked Defendant how many times he shot his parents, he said he did not know. He remembered changing magazines and did not know if he shot after that point. Defendant said he did not wear gloves when he shot the pistol.

Defendant told Hedrick that the gun he retrieved from under his parents’ mattress was a black pistol. He said he thought Matthew fell face down after the first two or three shots, and then he emptied the clip. Defendant said he turned on the light in the hall, or his bedroom, or both and saw that Matthew was still moving. After the 911 operator told him he could kill the “intruder,” he got the .22 rifle out of his parents’ closet and shot Matthew in the back of the head once. Defendant then retrieved his father’s truck keys from the kitchen key rack and went to the truck.

Defendant said he did not know if Matthew had gloves, but he denied giving him a pair. Defendant also said he did not know whose sweater was at the back door. He assumed that Matthew put the gun on the kitchen counter; the last time he saw it was when he handed it to Matthew.

When Hedrick asked Defendant what made him kill his parents, he stated that he started off talking to Matthew about his parents fighting. He said that Matthew had spent the night at his house on Monday night and brought up the plan on Tuesday. Mr. Wood was due to come home Tuesday night due to the water being turned off where he was staying.

Hedrick testified that Matthew’s cell phone records revealed that a phone call was made from Matthew’s cell phone to Defendant for one minute at 1:08 a.m. on March 14, 2007. Another one minute call was made to Defendant at 1:09 a.m. At |1S1:10 a.m., Matthew called Defendant for forty-nine minutes. Information recovered from Defendant’s cell phone records indicated that Matthew called him at 1:11 a.m., and they talked for forty-nine minutes. At 2:17 a.m., Defendant called Matthew, and they talked for an undetermined amount of time. A review of phone records, computers, e-mail, My Space, and Facebook accounts, and insurance policies revealed no information regarding the existence of a one and one-half month conspiracy.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends that the evidence presented by the State was insufficient to convict him of the three murders. Specifically, he contends that there was insufficient evidence presented to prove that he possessed the requisite intent to kill or inflict great bodily harm on his parents. Further, he contends that he was justified in killing Matthew to protect his own life.

Louisiana Revised Statutes 14:30.1 defines second degree murder as “the killing of a human being ... [w]hen the offender has a specific intent to kill or to inflict great bodily harm.”

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witness. Therefore, the appellate court should not second-guess the credibility determination of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See King, 436 So.2d 559, citing State v. Richardson, 425 So.2d 1228 (La.1983).

|16State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27.

“Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La.R.S. 14:10(1). “Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant.” State v. Draughn, 05-1825, pp. 7-8 (La.1/17/07), 950 So.2d 583, 592-93, cert. denied, - U.S. -, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007).

Defendant claims that the State failed to prove he killed his parents while possessing the requisite intent to kill or inflict great bodily harm. He contends that the statement he gave to Investigator Hedrick on March 14, 2007, shows that he withdrew from the conspiracy to kill his parents and that Matthew acted alone in killing them. He argues that by withdrawing from the conspiracy, he no longer possessed the requisite intent to support his murder convictions. He contends that the physical evidence at the scene supports the veracity of this statement because Matthew was the only one wearing gloves and there were no fingerprints found on the guns or shell casings.

Within the context of his sufficiency argument, Defendant notes that at the time he made the second statement, he was incarcerated and charged with three murders. He claims that, considering his young age and the recent loss of his parents, he was in no frame of mind to make a statement without the advice of counsel. He claims that Hedrick should have recognized this and insisted on counsel being present. Defendant does not specifically challenge the admissibility of his statements. We 117interpret these statements as challenging the weight of the evidence, which is a matter strictly for the jury. Lambert, 720 So.2d 724.

We conclude that the evidence presented by the State was sufficient to prove that Defendant possessed the requisite intent to kill or inflict great bodily harm on his parents. In Defendant’s second recorded statement to Hedrick, he admitted to shooting his parents. The jury apparently chose to believe this statement over the previous statement in which Defendant labeled Matthew as the gunman, and this court will not second-guess the credibility determinations made by the jury. Id. The victims were shot numerous times, with multiple gunshot wounds to the upper portions of their bodies. Some of the gunshot wounds inflicted on Mrs. Wood were at very close range. Under these circumstances, the State clearly proved that Defendant possessed the specific intent to kill or inflict great bodily harm on his parents. Additionally, our interpretation of the March 14, 2007 statement does not support counsel’s contention that Defendant withdrew from the conspiracy. We interpret the relevant portion of the March 14, 2007 statement to mean that Defendant did not want to do the actual shooting but that he was still an active participant in the plan for Matthew to shoot his parents, which would also support a finding of him being a principal to second degree murder.

Next, Defendant claims that he was justified in shooting Matthew because it was done in self-defense immediately after Matthew shot his parents and while Matthew was still armed with a handgun. Defendant’s March 17, 2007 statement reveals that he shot Matthew out of anger, not in self-defense. Further, only one | ^gunshot wound was inflicted while Matthew was facing Defendant. The remaining eight gunshots traveled through Matthew’s body from back to front, some while he was bending over. Under these facts, there is nothing to suggest that the killing of Matthew was in self-defense. For the foregoing reasons, Defendant’s three convictions are affirmed.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant contends that the mandatory life sentences imposed upon him are grossly disproportionate to the crimes committed and represent nothing more than needless pain and suffering. Defendant further contends that the imposition of consecutive sentences added to the needless imposition of pain and suffering. He notes that although La.Code Crim.P. art. 883 allows a judge to impose consecutive sentences for two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, in this case, the trial court cited no reason or basis for doing so.

At sentencing, the State requested imposition of consecutive sentences, while Defense argued they should be concurrent. The sentencing transcript reveals that on each count, the trial court imposed a mandatory life sentence at hard labor without the benefit of probation, parole, or suspension of sentence. On each, he ordered the term to be consecutive to any other sentence Defendant may be serving. No oral objection was raised concerning the sentence imposed by the trial court. The trial court allowed Defendant twelve months from the date of sentencing, April 30, 2008, to file a motion to reconsider sentence. The record contains no indication that such a motion was ever filed.

|19In some instances when a motion to reconsider sentence is not filed, this court has held that the defendant is barred from raising an excessive sentence claim. State v. Bourque, 99-1625 (La.App. 3 Cir. 6/21/00), 762 So.2d 1139, writ denied, 00-2234 (La.6/1/01), 793 So.2d 181. However, this court has also reviewed claims of bare excessiveness in the interest of justice. State v. Davis, 06-922 (La.App. 3 Cir. 12/29/06), 947 So.2d 201; State v. Runyon, 06-823 (La.App. 3 Cir. 12/6/06), 944 So.2d 820, writ denied, 07-49 (La.9/21/07), 964 So.2d 330; State v. Jeansonne, 06-263 (La.App. 3 Cir. 5/31/06), 931 So.2d 1258; and State v. Graves, 01-156 (La.App. 3 Cir. 10/3/01), 798 So.2d 1090, wrii denied, 02-29 (La.10/14/02), 827 So.2d 420.

In the interest of justice, we will proceed with a review of Defendant’s sentences for constitutional excessiveness, including their consecutive nature. See State v. Baker, 08-54 (La.App. 3 Cir. 5/7/08), 986 So.2d 682; Davis, 947 So.2d 201; and State v. Vollm, 04-837 (La.App. 3 Cir. 11/10/04), 887 So.2d 664.

Defendant received three mandatory life sentences as required by La.R.S. 14:30.1. In State v. Ross, 03-564 (La.App. 3 Cir. 12/17/03), 861 So.2d 888, writ denied, 04-376 (La.6/25/04), 876 So.2d 829, the defendant argued that his mandatory life sentence was excessive. In finding no merit to the defendant’s claim, this court stated:

In State v. Paddio, 02-0722, pp. 16-17 (La.App. 3 Cir. 12/11/02), 832 So.2d 1120, 1131, [writ denied, 03-402 (La.2/13/04), 867 So.2d 682,] this court explained:
[A] sentence, although within the statutory limit, is considered to be excessive if “the penalty is grossly out of proportion to the severity of the crime or if it is nothing more than the purposeless and needless imposition of pain and suffering.” State v. Kitchen, 94-0900, p. 3 (La.App. 3 Cir. 2/1/95), 649 So.2d 1227, 1229, writ denied 95-0537 (La.6/23/95), 656 So.2d 1012 (quoting State v. Bonanno, 384 So.2d 355, 357 (La.1980)). A mandatory life sentence |2nis not per se unconstitutional. Richardson v. La. Dept. of Public Safety and Corrections, 627 So.2d 635 (La.1993). However, a trial court has the authority to determine whether a mandatory minimum sentence is constitutionally excessive as applied to a particular defendant. State v. Dorthey, 623 So.2d 1276 (La.1993). Further, this review extends to all mandatory minimum sentences and not just those imposed under the habitual offender law. State v. Fobbs, 99-1024 (La.9/24/99), 744 So.2d 1274.
Nevertheless, a court may depart from a minimum sentence only if it finds that there is clear and convincing evidence that rebuts the presumption of constitutionality. State v. Lindsey, 99-3256, 99-3302 (La.10/17/00), 770 So.2d 339, cert. denied, 532 U.S. 1010, 121 S.Ct. 1739, 149 L.Ed.2d 663 (2001). To rebut the presumption, a defendant must show, by clear and convincing evidence, that, “because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.” State v. Johnson, 97-1906, p. 8 (La.3/4/98), 709 So.2d 672, 676 (quoting from Judge Plotkin’s concurrence in State v. Young, 94-1636, pp. 5-6 (La.App. 4 Cir. 10/26/95), 663 So.2d 525, 531, writ denied, 95-3010 (La.3/22/96), 669 So.2d 1223). (citations omitted).

In State v. Johnson, 97-1906, p. 9 (La.3/4/98), 709 So.2d 672, 677, the supreme court explained:

We emphasize to sentencing judges that departures downward from the minimum sentence ... should occur only in rare situations. As Chief Justice Calogero noted in a prior case:
The substantive power to define crimes and prescribe [sic] punishments lies in the legislative branch of government, [citation omitted]. Our decision in State v. Dorthey, 623 So.2d 1276 (La.1993), did not purport to grant a district court the power to usurp that legislative prerogative or to impose what the court believes is the most appropriate sentence for a particular offender in a particular case. Dorthey gives the district court the authority to depart from the mandatory minimum sentences provided by the legislature only in those relatively rare Incases in which the punishment provided violates the prohibition of La. Const. art. I, § 20 against excessive sentences, (citations omitted). dant failed to prove any unusual circumstances warranting a departure from the mandatory minimum sentence provided by the legislature. Consequently, this court finds that the sentence imposed upon the Defendant is not constitutionally excessive.

In this case, the Defendant has failed to prove by clear and convincing evidence unusual circumstances that demonstrate that this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. Furthermore, the Defen-

Id. at 897-98 (first alteration added).

Here, Defendant failed to meet his burden of proving that the sentences imposed upon him are constitutionally excessive. Given the senselessness of the three murders, we cannot say that the imposition of three consecutive life sentences at hard labor without benefits is grossly disproportionate to the offenses committed by Defendant. Accordingly, this portion of Defendant’s argument has no merit.

Louisiana Code of Criminal Procedure Article 883 provides: “If 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.” In State v. Pierre, 02-277 (La.App. 3 Cir. 6/11/03), 854 So.2d 945, writ denied, 03-2042 (La.1/16/04), 864 So.2d 626, the defendant shot her estranged husband and child before turning the gun on herself. She and her husband survived; their son died. The defendant was convicted of second degree murder, for which she was sentenced to the mandatory sentence of life imprisonment, and attempted second degree murder, for which she received a hard labor sentence of ten years. At the sentencing hearing, the defendant raised the issue of whether her sentences should bej^served concurrently or consecutively; a written motion to reconsider sentence was not filed. This court considered whether the trial court erred in imposing consecutive sentences for offenses arising from a single course of conduct and found no merit to the defendant’s claim. We stated:

This court has held that when the trial court has no discretion to deviate from a legislatively mandated sentence, failure to articulate reasons as generally required by La.Code Crim.P. art. 894.1 is not an error since it would be futile to do so at sentencing, unless the sentences are constitutionally excessive. State v. Williams, 445 So.2d 1264 (La.App. 3 Cir.), writ denied, 449 So.2d 1346 (La.1984) and State v. Dorthey, 623 So.2d 1276 (La.1993). See also, State v. Armstrong, 32,279 (La.App. 2 Cir. 9/22/99); 743 So.2d 284, writ denied, 99-3151 (La.4/7/00), 759 So.2d 92.
In a case such as the instant case, where one of the sentences was a mandatory sentence and the other a mandatory minimum sentence, the Defendant has the burden to rebut the presumption that the sentences are unconstitutional by clear and convincing evidence, showing that:
[she] is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstance of the case.
State v. Young, 94-1636, pp. 5-6 (La.App. 4 Cir. 10/26/95), 663 So.2d 525, 531, writ denied, 95-3010 (La.3/22/96), 669 So.2d 1223.
Defendant has failed to meet her burden of showing how she is exceptional under the circumstances. Except for reciting the law regarding the general requirements for an adequate sentencing procedure, Defendant does not give any reason why her consecutive sentences are excessive.
Furthermore, even though the shootings of her husband and son arose out of the same act, it is not mandatory that the sentences be served concurrently. In State v. Bibb, 626 So.2d 913 (La.App. 5 Cir.1993), writ denied, 93-3127 (La.9/16/94), 642 So.2d 188, the | ¡^defendant killed his two children. The court affirmed the two consecutive life sentences. The court noted:
Herein, the two murders, though occurring close in time and place, are separate and distinct acts that justify consecutive sentences. Further, even assuming that the murders were close enough in time and place to be considered “same act” crimes which arise from a single course of conduct, we find that the trial court did not err in imposing consecutive sentences. Article 883 permits the court to impose consecutive sentences if the court “expressly directs” such sentences.
Id. at 940.
Thus we find the trial court did not err when it ordered the sentences to be served consecutively.

Id. at 954.

We conclude, .as we previously did in Pierre, that it was not improper for the trial court to impose consecutive sentences. Furthermore, in State v. Dunbar, 94-1492 (La.App. 3 Cir. 5/31/95), 657 So.2d 429, this court noted that any error committed by the trial court in imposing consecutive sentences to a defendant sentenced to life imprisonment without benefit of probation, parole, or suspension of sentence was harmless. Thus, even if the trial court did err in imposing consecutive sentences, pursuant to Dunbar, the error would be harmless.

Finally, Defendant claims that the trial court did not cite any reasons or basis for ordering consecutive sentences. In State v. Robinson, 07-1424, p. 11 (La.App. 3 |24Cir. 4/30/08), 981 So.2d 867, 875, writ denied, 08-1314 (La.2/13/09), 999 So.2d 1144, this court held:

Defendant argues that the trial court erred by failing to articulate the factors it used in formulating the sentence, and in determining the sentences should run consecutively.
This court observes that Defendant did not object to the sentences and did not file a motion to reconsider sentence. Although he cites jurisprudence regarding excessive sentences, he does not argue that his sentences are excessive in length. Therefore, his claim regarding La.Code Crim.P. art. 894.1 has not been preserved for review. La.Code Crim.P. art. 881.1.
Defendant also argues that the trial court erred by failing to sufficiently explain why it ordered that the sentences run consecutively. However, this court finds this argument should not be considered, for the reasons noted in the previous paragraph.

As in Robinson, Defendant did not object to his sentences nor file a motion to reconsider sentence. Accordingly, this portion of Defendant’s claim will not be considered.

DECREE

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

AFFIRMED.

      . Defendant was fifteen years old at the time of the murders. Louisiana Children’s Code Article 857 provides for the transfer for prosecution to the appropriate criminal court of a child who is fourteen years or older at the time of the commission of certain enumerated alleged offenses, including first and second degree murder.

      . Cobb testified that approximately one-half of the 911 calls dialed from cell phones come into the regular phone system rather than the 911 phone system.

      . Fletcher was apparently referring to broken glass from the back door as depicted in State’s Exhibit #13, which was referenced during his testimony.

      . Matthew was sixteen years old at the time of his death.

      . Lawrence testified that the .22 caliber rifle was a Ruger 1022 that appeared to be modified to look like an assault weapon. The pistol recovered from Defendant’s bed was a Beret Model D 7.65 caliber that shot a .32 caliber round.

      . Dr. Ross testified that she deferred to the firearms examiner with regard to identification of the bullets. Her reference to medium meant the wound was made by a “nine millimeter or something in the 30s and small is like 22, 25.”

      . Dr. Ross explained that when she describes wounds, she does so in no specific order.

      . Hedrick testified that during the pre-inter-view, Defendant said Matthew retrieved the gun from the kitchen.

      . Hedrick testified that during the pre-inter-view, Defendant said he shot Matthew out of anger.

      . Defendant told Hedrick that he and Matthew had not sent e-mails or text messages about their plan and that no one else knew about it.

      . Defendant filed a pretrial writ application contending his March 14, 2007 and March 17, 2007 confessions should be suppressed. This court found no error in the trial court’s ruling denying the motion to suppress. See State v. Wood, an unpublished writ bearing docket number 08-421 (La.App. 3 Cir. 4/11/08).

      . Louisiana Revised Statutes 14:24 states, "All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.”

      . In the original appeal, this court vacated the defendant’s convictions and sentences, finding she did not knowingly and intelligently waive her right to a jury trial. The supreme court reversed, reinstated the defendant's conviction and sentence, and remanded the case to this court for consideration of the defendant's remaining claims. State v. Pierre, 02-2665 (La.3/28/03), 842 So.2d 321.

      . In Bibb, the defendant was sentenced to serve two life sentences without benefit of parole, probation, or suspension of sentence following the jury's inability to reach a unanimous verdict as to the penalty for the two counts of first degree murder. Although not mentioned by this court in Pierre, the court in
        Bibb noted that the sentencing judge stated that the murders were the most heinous crimes he had ever seen. The fifth circuit, in holding that consecutive sentences were not excessive, noted that the crimes were particularly heinous because they involved two young children and because of the manner in which they were killed.


source: Caselaw Access Project

author: EZELL, Judge.

license: Public Domain

text:
    Dave BEACH v. CONTINENTAL CASUALTY COMPANY, Et Al.
    No. CA 09-108.
    Court of Appeal of Louisiana, Third Circuit.
    June 3, 2009.

      William H. Parker, III, Allen & Gooch, Lafayette, LA, for Defendants/Appellees, Continental Casualty Company W. Jay Lu-neau, APLC.
    Emmett Cary Sole, Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P., Lake Charles, LA, for Defendant/Appellee, Thomas D. Davenport, Jr.
    Connell Lee Archey, Kantrow, Spaht, Weaver & Blitzer, Baton Rouge, LA, for Defendants/Appellees, Continental Casualty Company Gary K. Hays Gary K. Hays, APLC.
    Gordon J. Schoeffler, Joseph Joy & Associates, Lafayette, LA, for Plaintiff/Appellant, Dave Beach.
    Court composed of OSWALD A. DECUIR, MICHAEL G. SULLIVAN, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

Lin this legal malpractice proceeding, Dave Beach appeals a trial courts’ ruling granting an exception of peremption and dismissing his claims against his former attorneys who represented him in a personal injury suit. Mr. Beach claims that his legal malpractice suit filed on May 14, 2007, was timely.

FACTS

The facts are not in dispute. Mr. Beach initially hired Gary Hays to represent him in a suit for damages he sustained to his tooth and gum when he bit into a foreign object while eating at a Burger King restaurant in Pineville. Subsequently, Mr. Hays associated Thomas Davenport on the case. At the time of the case, Mr. Davenport was associated with Jay Luneau in a joint business venture to share legal fees.

The tort suit was filed on behalf of Mr. Beach on May 13, 2005. ConAgra Foods Packaged Foods Company, Inc. was ultimately found liable to Mr. Beach after a bench trial on April 25, 2006. ConAgra had pled an exception of prescription in its answer alleging the injury occurred on June 15, 2004, but ConAgra was not named as a defendant until March 15, 2006. Following a trial, after which ConA-gra was found solely responsible, the trial court ruled on ConAgra’s exception of prescription and denied said exception.

ConAgra appealed the judgment to this court and raised the issue of prescription on appeal. Based on the trial court’s finding that ConAgra was solely liable for Mr. Beach’s injuries and not jointly liable with the timely-sued defendant, this court ruled that the trial court erred in denying the exception of prescription and reversed the judgment that had been rendered in favor of Mr. Beach and against ConAgra for $26,380. Beach v. Peter Scalfano Enters., 06-1139 (La.App. 3 Cir. 2/7/07), 949 So.2d 653, writ denied, 07-408 (La.4/5/07), 954 So.2d 144.

12Mr. Beach filed his present legal malpractice claim on May 14, 2007. Included as defendants were W. Jay Luneau, APLC, Thomas Davenport, Jr., Gary K. Hays, Gary K. Hays, APLC, and Continental Casualty Company. Exceptions of per-emption were filed on behalf of all Defendants. A hearing on the matter was held on October 13, 2008. The trial court granted the exceptions of peremption and signed a judgment dismissing Mr. Beach’s suit on October 24, 2008. Mr. Beach then filed the present appeal.

PEREMPTION

In his appeal, Mr. Beach argues that the trial court erred in its determination of the “date of discovery” by him that he might have a legal malpractice claim. Mr. Beach argues that he had no reason to believe that malpractice had occurred until the tort suit he won was overturned on appeal on the basis of prescription. Mr. Beach argues that a reasonable man would not have known he had a malpractice claim until this time.

In written reasons for judgment, the trial court found that ConAgra had raised the exception of prescription in its answer and at trial in the presence of Mr. Beach. The trial court further found that Mr. Beach admitted he knew what the term “prescription” meant so he should have further investigated the matter. The trial court then concluded that the peremptive period for Mr. Beach’s legal malpractice claim began on the day of the trial of the tort suit, April 25, 2006, when ConAgra raised the exception of prescription in open court.

Louisiana Revised Statutes 9:5605 provides for the peremption of legal malpractice claims.

[T]he statute sets forth two peremptive limits within which to bring a legal malpractice action, namely one year from the date of the alleged act or one year from the date of discovery with a three-year limitation from the date of the alleged act, omission, or neglect to bring such|sclaims.

Teague v. St. Paul Fire and Marine Ins. Co., 07-1384, p. 11 (La.2/1/08), 974 So.2d 1266, 1274.

[U]nder the provisions of La.Rev.Stat. § 9:5605, an action should not be found perempted if it is brought within one year of the date of discovery and the record shows that the claimant was reasonably unaware of malpractice prior to the date of discovery and the delay in filing suit was not due to willful, negligent, or unreasonable action of the client.

Id. at 1275.

At issue in this case is the one-year date of discovery of the alleged legal malpractice.

The “date of discovery” from which prescription or peremption begins to run is the date on which a reasonable man in the position of the plaintiff has, or should have, either actual or constructive knowledge of the damage, the delict, and the relationship between them sufficient to indicate to a reasonable person he is the victim of a tort and to state a cause of action against the defendant. Put more simply, the date of discovery is the date the negligence was discovered or should have been discovered by a reasonable person in the plaintiffs position.

Id. (citation omitted).

“Prescription commences when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort.” Id. (quoting Campo v. Correa, 01-2707, pp. 11-12 (La.6/21/02), 828 So.2d 502, 510).

Constructive knowledge is whatever notice is enough to excite attention and put the injured party on guard and call for inquiry. Such notice is tantamount to knowledge or notice of everything to which a reasonable inquiry may lead. Such information or knowledge as ought to reasonably put the alleged victim on inquiry is sufficient to start running of prescription.

Id.

“Accordingly, peremption commences to run in legal malpractice cases when a claimant knew or should have known of the existence of facts that would have ^enabled him to state a cause of action for legal malpractice.” Id,, at 1276. “Notwithstanding, a claimant’s mere apprehension that something may be wrong is insufficient to commence the running of peremption unless the claimant knew or should have known through the exercise of reasonable diligence that his problem may have been caused by acts of malpractice.” Id.

The underlying cause of action for legal malpractice in this case was the Defendant attorneys’ failure to timely file suit against ConAgra. In Atlas Iron and Metal Co. v. Ashy, 05-458, p. 10 (La.App. 3 Cir. 1/4/06), 918 So.2d 1205, 1213, this court held “per-emption begins to run when a client knows or should have known of an act, omission, or negligence by [his] attorney.”

The manifest error standard of review is applicable to a trial court’s finding as to when the one-year peremptive period of La.R.S. 9:5605(A) begins to run. Burns v. Goudeau, 04-821 (La.App. 3 Cir. 11/10/04), 888 So.2d 1031.

The trial in the underlying tort suit was on April 25, 2006. Mr. Beach was present at the trial when ConAgra raised the prescription issue. Mr. Beach admitted he heard ConAgra raise the prescription issue. Mr. Beach also admitted he knew that prescription meant “pas[t] the date that you can do anything.” However, he explained that when it was overruled, he did not worry about it. Mr. Beach also agreed that he knew the appeal filed by ConAgra was based on the prescription issue. However, he was not concerned at the time because he was assured by his attorneys that everything would work out fine.

In finding that Mr. Beach had notice that his claim against ConAgra had prescribed at the time of trial on April 25, 2006, the trial court stated that, “[t]he plaintiff was put on notice at the trial on the underlying case that his claim may have prescribed. Considering the fact that plaintiff, as he testified, had pre-exist-ing [ r,knowledge of the meaning of the term ‘prescription’, he should have further investigated the matter.”

Mr. Beach claims that the trial court applied a subjective standard to him as opposed to an objective standard in determining when he had knowledge sufficient to determine that he had a cause of action for legal malpractice because he knew what the term “prescription” meant. However, the trial court clearly applied the “reasonable man” standard as it recited the law on the “reasonable man” standard in its written reasons for judgment before rendering its decision.

There is no doubt that Mr. Beach was present at trial when ConAgra raised the issue that suit against it was prescribed. He also admitted that he discussed the issue at that time with his attorney who told him that ConAgra was “trying to pull a fast one.” The trial court then overruled the exception of prescription filed by ConAgra. At that point, we find that a reasonable man would have thought that ConAgra was simply filing a motion that was denied as is often done in trial proceedings. Mr. Beach had no reason to worry that his attorneys had done anything wrong since the trial court ruled in his favor. A party should not be required to file a malpractice suit against his attorney every time a defense is raised in the trial court and denied. This is not sufficient notice that legal malpractice has been committed.

As observed by the federal court in West v. ABC Ins. Co., 07-5819 (E.D.La. Mar. 25, 2009), 2009 WL 911000, (citing Perez v. Trahant, 00-2372 (La.App. 1 Cir. 12/28/01), 806 So.2d 110, writs denied, 02-901, 02-847 (La.8/30/02), 823 So.2d 953); Turnball v. Thensted, 99-25 (La.App. 4 Cir. 3/1/00), 757 So.2d 145, writ denied, 00-1502, (La.8/31/00), 766 So.2d 1277, writ denied, 00-1503 (La.8/31/00), 766 So.2d 1278, An adverse ruling by a court is a fact which would put a reasonable man on notice that malpractice may have been committed. Had the trial court granted |fithe exception of prescription then Mr. Beach should have been suspicious that his attorneys had possibly committed malpractice by failing to timely sue ConAgra. In the present case, though, the trial court found that there was no basis for the exception of prescription. Had the trial court granted ConAgra’s exception of prescription, we would agree with the trial court that Mr. Beach was on notice that legal malpractice may have been committed by his attorneys.

Even though ConAgra filed an appeal on the issue of prescription, Mr. Beach was assured that everything would be “ok.” He already knew that the trial court had ruled in his favor on this issue. There was no reason to suspect that malpractice had occurred until this court issued the adverse ruling on February 7, 2007, reversing the trial court and granting ConAgra’s exception of prescription. At that time a reasonable person would have been put on notice that his attorneys committed malpractice. Shortly thereafter, on May 14, 2007, Mr. Beach filed suit for legal malpractice.

We find that the trial court committed manifest error in finding that Mr. Beach had sufficient knowledge of facts that his attorneys may have committed malpractice on the day of the tort trial. No reasonable man would consider that malpractice had been committed when a trial court denies an exception of prescription raised by the defendants, even though he knows what the term “prescription” means. Therefore, we find that Mr. Beach’s claim for legal malpractice was filed within one year of the date of discovery of the legal malpractice and his claim is not perempted by La.R.S. 9:5605. Since we find Mr. Beach’s claim is not preempted, we need not discuss the other issues raised by Mr. Beach.

The judgment of the trial court granting Defendants’ exception of peremption is reversed. The case is remanded to the trial court for further proceedings. Costs of |7this appeal are assessed to W. Jay Lu-neau, APLC, Thomas Davenport, Jr., Gary K. Hays, Gary K. Hays, APLC, and Continental Casualty Company.

REVERSED AND REMANDED.


text:
    Patricia ASHMORE v. Stephen P. McBRIDE, et al.
    No. 09-80.
    Court of Appeal of Louisiana, Third Circuit.
    June 3, 2009.

      Thomas 0. Wells, Attorney at Law, Alexandria, LA, for Plaintiff/Appellee, Patricia Ashmore.
    Michael P. Cony, Jason R. Garrot, Bri-ney & Foret, Lafayette, LA, for Defendant/Appellant, Financial Indemnity Company.
    Mark J. Neal, Hudson, Potts & Bernstein, Monroe, LA, for Defendants/Appel-lees, USAgencies Casualty Insurance Company, Stephen P. McBride.
    Court composed of OSWALD A. DECUIR, MICHAEL G. SULLIVAN, BILLY HOWARD EZELL, Judges.
   SULLIVAN, Judge.

h Insurer appeals the denial of its motion for summary judgment in which it sought a judgment recognizing that its policy does not provide uninsured motorist (UM) coverage to the plaintiff and the grant of summary judgment in favor of the plaintiff that the policy provides UM coverage to her. We reverse.

Facts

Patricia Ashmore filed suit to recover damages for injuries she sustained on July 31, 2007, when the car she was driving which was owned by Patrick O’Neal, was struck from the rear by a car driven by Stephen P. McBride. She sued Mr. McBride and his insurer, USAgencies Casualty Insurance Company (USAgencies). She also sued Financial Indemnity Company (Financial), alleging that a policy of insurance it issued to Mr. O’Neal provided UM coverage to her for the accident.

Financial filed a Motion for Summary Judgment, alleging that it did not provide UM coverage because Mr. O’Neal rejected UM coverage. After a hearing, the trial court issued written reasons denying the motion. Financial filed a Notice of Intention to Apply for Supervisory Writs.

Thereafter, Ms. Ashmore filed a Motion for Summary Judgment, seeking, in part, a judgment declaring that Financial provided UM coverage to her in the amount of the liability limits of its policy. After a hearing, the trial court granted the motion. A judgment was signed on October 2, 2008; the judgment was designated a final judgment as provided in La.Code Civ.P. art.1915. Financial filed a devolutive appeal, then sought to consolidate its writ application with its appeal. The motion to consolidate was denied on the basis that the grant of summary judgment in favor of Ms. Ashmore might constitute a final judgment which would be appealable. | ^Thereafter, Financial’s writ application was denied because the judgment was an appealable judgment, pursuant to La.Code Civ.P. art. 1915(A)(5). See Ashmore v. McBride, an unpublished writ opinion bearing docket number 08-1211 (La.App. 3 Cir. 11/7/08).

Financial appeals the denial of its Motion for Summary Judgment and the grant of Ms. Ashmore’s Motion for Summary Judgment.

Summary Judgment

Appellate courts review motions for summary judgments de novo to determine whether any genuine issue of material fact exists and whether the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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). The mover bears the initial burden of proof to show that no genuine issue of material fact exists. La.Code Civ.P. art. 966(C)(2).

Discussion

One question is presented for determination herein: is there a genuine issue of material fact as to whether the insurance policy Financial issued to Mr. O’Neal provides UM coverage to Ms. Ash-more. Financial claims that Mr. O’Neal rejected UM coverage by executing a valid UM selection form and selecting the option which provides “I do not want UMBI Coverage.” Ms. Ashmore argues that the selection was invalid because the UM selection form does not meet all the requirements established by the Louisiana Insurance Commissioner. Specifically, she asserts that Financial’s failure to place the binder number in the space designated on the form for | ¡¡the policy number and its failure to place its name in the lower left corner of the form invalidated Mr. O’Neal’s rejection of UM coverage.

Louisiana Revised Statutes 22:1295(1)(a)(i) provides that no policy of automobile liability insurance “shall be delivered or issued for delivery in this state” without uninsured motorist coverage; however, UM coverage “is not applicable when any insured named in the policy either rejects coverage, selects lower limits, or selects economic-only coverage, in the manner provided in Item(l)(a)(ii) of this Section.” Subsection (a)(ii) of La.R.S. 22:1295(l)(a) provides that the “rejection, selection of lower limits, or selection of economic-only [UM] coverage shall be made only on a form prescribed by the commissioner of insurance” and that “[a] properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected [UM] coverage.”

A bulletin issued by the Commissioner of Insurance provides that the policy number must be indicated in the lower right corner of the selection form, unless a policy number is not available; in that case, “the space for the policy number may be left blank or a binder number may be inserted.” Louisiana Insurance Rating Commission Bulletin (LIRC) 98-03.

In Duncan v. U.S.A.A. Insurance Co., 06-363, p. 4 (La.11/29/06), 950 So.2d 544, 547, the supreme court observed that strong public policy is embodied in the UM coverage statute and that the statute is to be liberally construed, which “requires the statutory exceptions to coverage be interpreted strictly.” For these reasons, “the insurer bears the burden of proving any insured named in the policy rejected in writing the coverage equal to bodily injury coverage or selected lower limits.” Id. Thereafter, the supreme court identified six tasks which must be performed to |4complete the UM selection form prescribed by the Commissioner of Insurance in order to reject UM coverage:

[T]he prescribed form involves six tasks: (1) initialing the selection or rejection of coverage chosen; (2) if limits lower than the policy limits are chosen (available in options 2 and 4), then filling in the amount of coverage selected for each person and each accident; (3) printing the name of the named insured or legal representative; (4) signing the name of the named insured or legal representative; (5) filling in the policy number; and (6) filling in the date.

Id. at 551. Failure to comply with one of these six tasks results in an invalid rejection of UM coverage. Id.

In Carter v. State Farm Mutual Automobile Insurance Co., 07-1294 (La.10/5/07), 964 So.2d 375, the supreme court granted an insurer’s application for writs and granted summary judgment in favor of the insurer that urged it was entitled to summary judgment, although its insured’s UM rejection form did not include the policy number, because the policy number did not exist when the rejection form was completed. The court noted that the facts therein were “distinguishable” from the facts in Duncan, 950 So.2d 544, “because the Commissioner of Insurance’s regulations specifically allow omission of the policy number if it does not exist at the time [the] UM waiver form is completed.” Id. at 376.

The supreme court later observed in a footnote in Gray v. American National Property & Casualty Co., 07-1670, p. 11 (La.2/26/08), 977 So.2d 839, 847, with regard to the six tasks identified in Duncan, that because “Insurance Commissioner Bulletin LIRC 98-03 provides as follows: ‘In the case where a policy number is not available, the space for the policy number may be left blank or a binder number may be inserted,”’ only five “tasks” must be completed for a valid UM selection when the policy number is not available.

|fiA policy number did not exist when Mr. O’Neal executed the UM rejection form; therefore, only five tasks had to be completed for a valid UM rejection. Id. See also, Duncan, 950 So.2d 544. Pursuant to LIRC 98-03, placement of the binder number on the policy was optional. Reading this provision in conjunction with the supreme court’s footnotes in Duncan, 950 So.2d 544, and Gray, 977 So.2d 839, and its holding in Carter, 964 So.2d 375, we conclude that inclusion of the optional binder number in a place other than that provided for a policy number does not invalidate the UM rejection.

Ms. Ashmore also argues that Financial’s failure to place its name in the lower left corner of the rejection form resulted in an invalidated rejection. This claim was recently denied by the supreme court in Gingles v. Dardenne, 08-2995 (La.3/13/09), 4 So.3d 799. In Gingles, the supreme court held that although a bulletin issued by the Commissioner of Insurance stated that the insurer’s name should appear in the lower left corner of the UM selection form, the insurer’s failure to put its name in that location did not invalidate the insured’s waiver of UM because the form designed by the Commissioner did not include a space for the insurer’s name. The court explained:

It is undisputed that the pertinent designated spaces on the form were filled out. Additionally, the form at issue in these proceedings satisfies all of the requirements of our opinion in Duncan. Under these circumstances, we find [the insurer] has established it is entitled to judgment as a matter of law.

Id. at 800. Pursuant to the supreme court’s holding in Gingles, Financial’s failure to place its name in the lower left córner of the UM selection forra did not invalidate Mr. O’Neal’s rejection of UM coverage.

| ,;For these reasons, we conclude that Financial has established that Mr. O’Neal validly rejected UM coverage and that it is entitled to summary judgment as requested. This determination means that the insurance policy issued by Financial to Mr. O’Neal does not provide UM coverage to Ms. Ashmore as claimed.

Disposition

The judgments of the trial court are reversed, and summary judgment is granted in favor of Financial Indemnity Company. Ms. Ashmore’s claim that its policy of insurance provided UM coverage to her for the accident sued upon herein is dismissed. Costs are assessed to Ms. Ash-more.

REVERSED AND RENDERED.


author: THIBODEAUX, Chief Judge.

text:
    SUCCESSION OF GEORGE COLLETT.
    No. 09-70.
    Court of Appeal of Louisiana, Third Circuit.
    June 3, 2009.
    William Daniel Dyess, Dyess Law Firm, LLC, Many, LA, for Other Appellants-Naomi Ruth Collett Ebarb and Mary Lou Collett Dayhuff.
    Charles David Soileau, Many, LA, for Other Appellee-Marjorie L. Collett.

      Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and JIMMIE C. PETERS, Judges.
   THIBODEAUX, Chief Judge.

| Appellants, Mary Lou Collett Dayhuff and Naomi Ruth Collett Ebarb, claim that the trial court erred in its interpretation of their father’s testament, thereby depriving Dayhuff and Ebarb of their portion of his estate. The testament, which pre-dated the abolition of forced heirship, left the forced portion of his estate to his children. Reasoning that the law in effect at the time of George Collett’s death governed the succession rights of the parties, the trial court determined that one hundred percent of George Collett’s estate belonged to Dayhuff and Ebarb’s mother, Marjorie Collett. For the following reasons, we affirm.

I.

ISSUE

We shall consider whether the testator’s children, who were not forced heirs at the time of the testator’s death, are entitled to the forced portion, where the testator wrote his will prior to the abolition of forced heirship and died after the legislature repealed a transitional provision that guided interpretation of wills written prior to the abolition, and where the testator bequeathed the forced portion to his children and the disposable portion to his wife.

II.

FACTS

George Collett died testate on August 14, 2007. His widow and three children of their marriage survived him. At the time of George Collett’s death, none of his children was a forced heir within the meaning of La.Civ.Code art. 1493.

In his April 28, 1988 testament, George Collett bequeathed to Marjorie Collett “the disposable portion of all of the property” of which he died possessed, “of any kind, whether movable or immovable, wherever located.” George Collett next |2bequeathed to his three children “the forced portion of the property” of which he died possessed, “of whatever nature, and wherever the same is located, share and share alike, subject to the lifetime usufruct in favor of Marjorie L. Collett.”

During the probate proceedings, two of George and Marjorie Collett’s children— Dayhuff and Ebarb — claimed entitlement to the forced portion of George Collett’s estate. Dayhuff and Ebarb argued that George Collett’s intent, at the time he wrote the will, was to bequeath the forced portion of his estate to his children. Day-huff and Ebarb also argued that Louisiana Supreme Court jurisprudence applying the now-repealed transitional provision, La. R.S. 9:2501, should govern this case. The trial court reasoned that the proper interpretation of the will involved application of Louisiana law in effect at the time of the testator’s death. Because at the time of George Collett’s death forced heirship was abolished, the trial court ruled that the disposable portion bequeathed to Marjorie Collett was one hundred percent of George Collett’s estate. This appeal followed.

III.

STANDARD OF REVIEW

When a court interprets a will, the court’s function is to determine and carry out the intention of the testator. Adams v. Willis, 00-589 (La.App. 3 Cir. 11/2/00), 777 So.2d 5, writ denied, 00-3289 (La.2/2/01), 784 So.2d 7. If the will is not ambiguous, it must be carried out according to its written terms, without reference to the external information. Id. Here, the parties did not argue that the will was ambiguous. Thus, we shall determine George Collett’s intent from the language of his testament. Interpretation of an instrument’s language is a question of law that this court reviews to determine whether the trial court was legally correct. Cleland v. City |3of Lake Charles, 02-805 (La.App. 3 Cir. 3/5/03), 840 So.2d 686, writs denied, 03-1380, 03-1385 (La.9/19/03), 853 So.2d 644, 645.

IV.

LAW AND DISCUSSION

Over the last two decades there have been many changes in the law of forced heirship, and the following is a brief overview that is relevant here. The Louisiana constitution was amended in 1995 to abolish forced heirship with an exception for children who were the age of twenty three or younger, or who were permanently disabled at the time of the testator’s death. In re Succession of Boyter, 99-761 (La.1/7/00), 756 So.2d 1122. The legislature also enacted a transitional statute, La.R.S. 9:2501, that specified rules by which the courts should interpret the |4testaments written prior to the change to ascertain the testator’s intent. Boyter, 756 So.2d 1122. Prior to its repeal in 2001, the Louisiana Supreme Court held that the 1996 version of La.R.S. 9:2501 was a mandatory statute applicable to all successions where a person executed a will before January 1, 1996 and died after December 31,1995. Boyter, 756 So.2d 1122.

By Act 560 of the Regular Session of 2001, effective June 22, 2001, the Louisiana legislature repealed La.R.S. 9:2501 and included in La.Civ.Code art. 870 a provision that “[t]estate and intestate succession rights, including the right to claim as a forced heir, are governed by the law in effect on the date of the decedent’s death.” The legislature also added that

[w]hen a testament uses a term the legal effect of which has been changed after the date of execution of the testament, the court may consider the law in effect at the time the testament was executed to ascertain the testator’s intent in the interpretation of a legacy or other testamentary provision.

La. Civ. Code art. 1611.

Dayhuff and Ebarb’s argument is two-fold. First, they argue that the facts in this case and the facts in Boyter, where the supreme court declared La.R.S. 9:2501 mandatory, are similar. Thus, Dayhuff and Ebarb argue that we should apply Boyter here, which leads to their inheriting the forced portion of George Collett’s estate. Second, Dayhuff and Ebarb maintain that George Collett’s inclusion of the language regarding the forced portion in his testament manifested his intent to leave something to his children. Thus, because the testator’s intent is paramount, Dayhuff and Ebarb assert that this court should award them the forced portion of the estate.

Dayhuff and Ebarb’s first argument turns on its head our long-cherished legal principle that no law can survive the reasons on which it was founded. The existence of La.R.S. 9:2501 was the reason for the Boyter decision. By the time | r,George Collett died, the legislature repealed La. R.S. 9:2501. Therefore, the supreme court’s application of the now-repealed statute in Boyter has no consequence in this case.

We also find without merit the contention that George Collett manifested a specific desire to leave a portion of his estate to his children by stating that he wished to leave the forced portion to them. George Collett’s testament employed terminology that has legal meaning. Thus, instead of using a numerical value, such as one-half or some other fraction or portion of the estate, which would indeed signify a desire to leave something to the children, the testament used legal terms, i.e., “forced portion” and “disposable portion.” What is “forced portion” and what is “disposable portion” is to be decided according to the law in effect on the date of the testator’s death. See La.Civ.Code art. 870. At the time of George Collett’s death, his estate had no forced portion.

Finally, we conclude that even though the legal effect of the terms George Collett used in his testament has changed after his execution of the testament, Dayhuff and Ebarb are not entitled to any portion of his estate. The change in the legal effect of the terms used in the testament is only one of several factors our courts consider when they try to ascertain the testator’s intentions. The legislature’s use of the permissive “may” instead of the mandatory “shall” when it suggested in La.Civ. Code art. 1611 that the courts may consider the law at the time of the testament’s execution if the legal effect of the testament’s terms changed, supports this proposition.

Yet, even this factor is in favor of Marjorie Collett. Contrary to Dayhuff and Ebarb’s assertions that George Collett’s reference to the forced portion in his will signifies his intent to leave them a portion of his estate, George Collett’s use of this | ilegal phraseology manifests his desire to leave his children only that which the law required him to leave, whatever the law may be at the time of his death. Had George Collett, in fact, wanted to leave his children some portion of his estate and not simply that which the law required him to leave, he would have used terminology that does not vary with the fluctuations in the law. Moreover, the absence of something other than these legal terms demonstrates George Collett’s desire to leave his wife the maximum portion of his estate the law allows. Thus, this court’s consideration of the law in effect at the time George Collett executed his testament does not militate in favor of Dayhuff and Ebarb’s claims. The trial court was eminently correct in its interpretation of the legal effects of Mr. Collett’s testament.

V.

CONCLUSION

The trial court’s judgment in favor of Marjorie Collett is affirmed. Costs of this appeal are assessed to Mary Lou Collett Dayhuff and Naomi Ruth Collett Ebarb.

AFFIRMED.

      . Prior to its repeal, the statute, as amended in 1997, read:
      Construction of testaments executed prior to January 1, 1996
      If a person dies testate after July 15, 1997, and the testament is executed before January 1, 1996, then the testator's intent shall be ascertained according to the following rules:
      (1)That the testament shall be governed by the law in effect at the time of the testator's death in any of the following instances:
      (a)When the testament manifests an intent to disinherit a forced heir or to restrict a forced heir to the legitime under the law in effect at the time of the testator's death.
      (b) When the testament leaves to the forced heir an amount less than the legi-time under the law in effect at the time the testament is executed.
      (c) When the testament omits a forced heir and the language of the testament indicates an intent to restrict the forced heir to an amount less than the legitime under the law in effect at the time the testament is executed.
      (2) That in all other instances the testament shall be governed by the law in effect at the time the testament was executed.
      (3) That the term forced heir, as used above, shall mean a presumptive forced heir under the law in effect at the time the testament was executed.


author: GENOVESE, Judge.

text:
    STATE of Louisiana v. David Paul GUIDRY.
    No. 08-1574.
    Court of Appeal of Louisiana, Third Circuit.
    June 3, 2009.
    Peggy J. Sullivan, Louisiana Appellate Project, Monroe, Louisiana, for Defendant/Appellant, David Paul Guidry.
    Michael C. Cassidy, District Attorney— Thirty-First Judicial District, Stacey C. Naquin, Assistant District Attorney, Jennings, Louisiana, for Appellee, State of Louisiana.
    Court composed of SYLVIA R. COOKS, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   GENOVESE, Judge.

|,On June 27, 2007, the Defendant, David Paul Guidry, was charged with simple rape, a violation of La.R.S. 14:43, sexual battery, a violation of La.R.S. 14:43.1, and molestation of a juvenile, a violation of La.R.S. 14:81.2. On June 25, 2008, the Defendant entered a plea of no contest to the charge of sexual battery in exchange for the dismissal of the remaining charges. The Defendant was sentenced on October 23, 2008, to serve ten years at hard labor, with all but seven years suspended, and to serve the remainder of his sentence without benefit of parole, probation or suspension of sentence. The Defendant did not make or file a motion to reconsider sentence.

The Defendant is now before this court on appeal, asserting that his sentence is excessive. For the following reasons, we vacate the Defendant’s sentence and remand the case to the trial court for resen-tencing.

FACTS

The following facts were elucidated at the Defendant’s “no contest” plea hearing and at his sentencing. On February 27, 2007, the sixteen-year-old victim, the daughter of the Defendant’s girlfriend, was staying in the Defendant’s home. The Defendant was forty years old at the time. The victim was ill and was taking the medication, Phenergan, which made her drowsy. Some time between 3:00 and 4:00 a.m., the victim was vomiting in the bathroom, and the Defendant began rubbing her stomach while they were in the bathroom. The Defendant then moved the victim to the sofa where he removed her pants and inserted his finger into her vagina. After the incident occurred, the Defendant instructed the victim not to tell anyone and that it was their “little secret.”

^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 one error patent.

The trial court suspended a portion of the Defendant’s sentence pursuant to his guilty plea on the charge of sexual battery which is prohibited by the sexual battery statute. The trial judge sentenced the Defendant to imprisonment at hard labor for ten years and “suspend[ed] all but seven (7) years of that sentence and order[ed] that [the Defendant] serve the remainder without benefit of parole, probation, or suspension of sentence.” The penalty provision for sexual battery provides for imprisonment with or without hard labor, without benefit of parole, probation, or suspension of sentence, for not more than ten years. La.R.S. 14:43.1.

In State v. Normand, 04-840 (La.App. 3 Cir. 12/15/04), 896 So.2d 98, writ denied, 05-231 (La.5/6/05), 901 So.2d 1094, the trial court imposed a seven-year sentence, suspended three years of that sentence, and placed the defendant on supervised probation for an offense which required a sentence of no more than ten years without benefit of probation, parole, or suspension of sentence. This court recognized the error, vacated the defendant’s sentence, and remanded for resentencing.

In the present case, since the trial court suspended a portion of the Defendant’s sentence in contravention of the sentencing provisions of the sexual battery statute, we find that the trial court imposed an illegally lenient sentence. Consequently, we vacate the Defendant’s sentence and remand the case to the trial court for lresentencing. Because we vacate the Defendant’s sentence and remand the case for resentencing, we pretermit addressing the Defendant’s claim of excessive sentence.

DISPOSITION

The Defendant’s sentence is vacated, and we remand the case to the trial court for resentencing.

SENTENCE VACATED; REMANDED FOR RESENTENCING.


text:
    STATE of Louisiana. v. Cory Reginald SHEPHERD.
    No. 08-1556.
    Court of Appeal of Louisiana, Third Circuit.
    June 3, 2009.

      Paula C. Marx, Louisiana Appellate Project, Lafayette, Louisiana, for Defendant/Appellant, Cory Reginald Shepherd.
    John F. DeRosier, District Attorney— Fourteenth Judicial District, Paul P. Reggie, Assistant District Attorney, Carla S. Sigler, Assistant District Attorney, Lake Charles, Louisiana, for Appellee, State of Louisiana.
    Court composed of SYLVIA R. COOKS; JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   GENOVESE, Judge.

11 On October 5, 2006, the Defendant, Cory Reginald Shepherd, was indicted for attempted first degree murder, aggravated burglary, armed robbery, theft of a firearm, possession of a firearm by a convicted felon, and accessory after the fact. On March 4, 2008, the Defendant pled guilty to the amended charge of aggravated battery, a violation of La.R.S. 14:34, armed robbery, a violation of La.R.S. 14:64, and possession of a firearm by a convicted felon, a violation of La.R.S. 14:95.1. In addition to amending the attempted first degree murder charge to aggravated battery, the State agreed to recommend a ten-year sentence on the charge of aggravated battery, a twenty-two-year sentence, without benefit of parole, probation, or suspension of sentence, for armed robbery, and a ten-year sentence, without benefit of probation, parole, or suspension of sentence, for possession of a firearm by a convicted felon, with the sentences to run concurrently. The State entered a nolle prosequi on the remaining charges of aggravated burglary and theft of a firearm.

On March 19, 2008, the trial court sentenced the Defendant, as recommended, to twenty-two years at hard labor, without benefits, on the armed robbery conviction, and to ten years at hard labor, without benefits, on the conviction of possession of a firearm by a convicted felon, both sentences to run concurrently with each other. However, on the aggravated battery conviction, the trial court deviated from the recommendation and ordered the Defendant to serve an eight-year sentence, without benefits, to run consecutively to the Defendant’s other two sentences. The Defendant filed a pro se Motion to Reconsider Sentence. Following a hearing, the motion was denied.

|2The Defendant subsequently filed a pro se notice of his intent to seek an appeal which was granted by the trial court. Following the lodging of the appeal under docket number 08-1220, the matter was remanded to the trial court for an eviden-tiary hearing to determine whether the Defendant was entitled to court-appointed counsel for the purposes of appeal or whether the Defendant made an intelligent and voluntary waiver of counsel after the trial court informed him of the dangers and disadvantages of self-representation. Following a hearing before the trial court on December 3, 2008, the Louisiana Appellate Project was appointed to handle the Defendant’s appeal. The case was lodged under the new and present docket number, 08-1556.

The Defendant is now before this court on appeal, asserting that the trial court erred in ordering the aggravated battery sentence to be served consecutively, thereby resulting in an excessive sentence. For the following reasons, we affirm the Defendant’s sentence in its entirety.

FACTS

The following facts were established at the Defendant’s guilty plea hearing. On August 5, 2006, the Defendant, a convicted felon, entered the home of the “60-some-year-old” victim. While in the victim’s home, the Defendant armed himself with the victim’s pistol and shot the victim in the chest below the right nipple. The Defendant then fled from the victim’s home with the victim’s pistol and wallet.

ASSIGNMENT OF ERROR

In his sole assignment of error, the Defendant argues that the trial court erred in ordering his sentence for aggravated battery to be served consecutively, thereby resulting in an excessive sentence. The Defendant asserts there was only one victim | pand one incident in this case, and, as part of the plea agreement, the State and the Defendant agreed to the recommendation of concurrent sentences on all the charges for a total of twenty-two years at hard labor. The Defendant also stresses that he does not have a violent criminal history, that he was not armed when he entered the victim’s home, and that he has a past history of substance abuse. Lastly, the Defendant maintains that the trial court did not articulate particular justification for ordering consecutive sentences.

In State v. Hawkins, 06-1599, pp. 1-2 (La.App. 3 Cir. 5/2/07), 956 So.2d 146, 148-49, writ denied, 07-1156 (La.12/7/07), 969 So.2d 627, this court discussed the appropriateness of ordering consecutive sentences as follows:

Louisiana Code of Criminal Procedure Article 883 states, in pertinent part, “If 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.” As noted by this court in State v. Vollm, 04-837, p. 6 (La.App. 3 Cir. 11/10/04), 887 So.2d 664, 669, “The Louisiana Supreme Court has recognized that although concurrent sentencing is favored, it is within the trial judge’s discretion to impose sentences consecutively based on factors including the defendant’s criminal record, the severity or violent nature of the crimes, or the danger the defendant poses to the public. State v. Thomas, 98-1144 (La.10/9/98), 719 So.2d 49.” See also State v. Walker, 00-3200 (La.10/12/01), 799 So.2d 461.

The court in Hawkins also addressed the factors to be considered in ordering consecutive sentences. First, the court noted that the imposition of consecutive sentences requires particular justification which must be articulated beyond the standard factors considered in the sentencing guidelines set forth in La.Code Crim.P. art. 894.1. Next, the court observed a host of factors identified by various courts across the state to be considered in making such a determination. These factors were compiled by the second circuit in 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), as follows:

[T]he 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.

In reaching its decision to order consecutive sentences in the instant case, the trial court stated:

Well, I’m changing the sentence. I read the report thoroughly. This is one of the worst cases I’ve read. Walked in the house and shot a man lying in his bed through his heart. How he didn’t die, I don’t have a clue. And then you robbed him and you — I mean, it’s one of the most vicious cases this Court has seen in a while.

At the hearing on the Defendant’s motion to reconsider sentence, the Defendant asked the trial court to impose concurrent sentences, because it was his first aggravated charge. The Defendant also stressed that the victim had agreed to the sentence recommendation.

The trial court responded, “I didn’t agree with it because you walked in the man’s house, he’s sleeping in bed, and you shot him in the heart, and he nearly died.” The Defendant then asserted that the shooting was an accident. The State interjected that it totally disagreed with the Defendant’s recitation of the facts and objected to what it deemed to be a “ridiculous” motion. The trial court reiterated that it did not have to accept the recommendation and that after listening to the facts, it felt that the recommendation was too lenient. The trial court added, “I thought that your actions were violent. I articulated my reasons for that. ' You’re lucky it was amended down from attempted murder to aggravated battery. I think the sentence is justified, and I’m not going to reconsider my sentence.”

|5There are several cases in the jurisprudence wherein consecutive sentences were ordered for offenses arising out of a common scheme or plan. In State v. Leyva-Martinez, 07-1255 (La.App. 3 Cir. 4/30/08), 981 So.2d 276, writ denied, 08-1200 (La.1/30/09), 999 So.2d 747, the defendant raped a woman and then stole her vehicle. He was later found guilty of aggravated rape and carjacking and sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence for aggravated rape, and to ten years at hard labor for carjacking, to run consecutively to his sentence for aggravated rape.

In Hawkins, 956 So.2d 146, the defendant burglarized two homes during a single day. He pled guilty to two counts of simple burglary of an inhabited dwelling and was sentenced to twelve years on each count to run concurrently to one another. For the seventeen counts of theft of a firearm, the defendant was sentenced to ten years at hard labor on each count, the sentences to run concurrently to one another, but consecutively to the sentences for simple burglary of an inhabited dwelling.

In State v. Runyon, 06-823 (La.App. 3 Cir. 12/6/06), 944 So.2d 820, writ denied, 07-49 (La.9/21/07), 964 So.2d 330, the defendant received consecutive sentences for his convictions for manslaughter and aggravated battery, thirty years and ten years respectively, which arose out of the same course of conduct. In affirming the consecutive sentences, the court observed that the defendant initiated a violent attack of four armed men against two unarmed men in which the first victim was killed. Additionally, the court noted that the defendant exhibited little or no remorse.

In the instant case, the trial court articulated several factors for imposing consecutive sentences, including the dangerousness and viciousness of the crime and|fithe harm done to the victim. Additionally, the trial court noted the fact that the Defendant derived a significant benefit from his plea agreement, thereby greatly reducing his sentencing exposure. Prior to his plea, the Defendant faced a maximum possible sentence of fifty years without benefit of parole, probation or suspension of sentence for attempted first degree murder. La. R.S. 14:27 and 14:30. As such, we find that the trial court adequately and appropriately expressed its reasons for imposing consecutive sentences and, thus, did not abuse its discretion.

DISPOSITION

The Defendant’s sentence is affirmed in its entirety.

AFFIRMED.

      . Black’s Law Dictionary defines nolle prose-qui as "[a] legal notice that a lawsuit or prosecution has been abandoned.” Bryan A. Garner, Black's Law Dictionary (8th ed.2004).

      . The charges of aggravated burglary and theft of firearm were nolle prosequied. This decision, however, was not part of the Defendant’s plea agreement, and thus, the benefit received from same is not considered herein.