author: KEATY, Judge.

text:
    Denise MATTHEWS v. LOUISIANA HOME BUILDER’S ASSOCIATION SELF INSURER’S FUND, et al.
    No. 13-1260.
    Court of Appeal of Louisiana, Third Circuit.
    March 12, 2014.

      Stephen E. Broyles, Glusman, Broyles & Glusman, LLC, Baton Rouge, Louisiana, for Defendants/Appellees: Louisiana Home Builder’s Association Self Insurer’s Fund Oakheart Farms, Inc.
    Mark L. Riley, The Glenn Armentor Law Corporation, Lafayette, Louisiana, for Plaintiff/Appellant: Denise Matthews.
    Court composed of J. DAVID PAINTER, PHYLLIS M. KEATY, and JOHN E. CONERY, Judges.
   KEATY, Judge.

In this workers’ compensation case, the claimant, Denise Matthews, appeals a judgment rendered by the Workers’ Compensation Judge (WCJ) upholding the decision of the Medical Director of the Office of Workers’ Compensation (the Medical Director) to deny requests from Matthews’ treating physician seeking authorization for MRIs of her cervical spine and right shoulder and an EMG/NCS of the cervical and bilateral upper extremities. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Matthews sustained an on-the-job injury on July 17, 2012, while employed at Oakh-eart Farms, Inc., when she slipped and fell while stepping off a skid ladder. On September 13, 2012, Matthews’ treating physician, Dr. Michel Heard, an orthopedist, filed a Form 1009 Disputed Claim for Medical Treatment, seeking the Medical Director’s approval of a cervical MRI and a right shoulder MRI that had been denied by Novare, Matthews’ employer’s workers’ compensation carrier. The Medical Director denied the requested services in a Medical Guidelines Dispute Decision (MGD) dated September 26, 2012, on the grounds that the documentation submitted with the request

does not support the approval of the requested services per the Louisiana Medical Treatment Guidelines (MTG) noted below.[] The clinical records do not include a thorough neuromuscular history and physical exam of the cervical spine and shoulder to warrant testing approval. No specific written limitations of return to work have been noted.

The Medical Director explained that the emphasis of the Guidelines “is to move patients along a continuum of care and return-to-work within a six-month time frame, whenever possible.” He further explained that “[c]linieal information obtained by history taking and physical examination should form the basis for selecting an imaging procedure and interpreting its results.” Thereafter, the Medical Director listed the specific provisions of the Guidelines that he applied in rendering his decision, which consisted of Section 2319 of Chapter 23 relative to shoulder injuries and Sections 2003, 2005, and 2007 of Chapter 20 relative to cervical spine injuries. Finally, the Medical Director explained that an aggrieved party could appeal his decision by filing a Form 1008 Disputed Claim for Compensation.

Dr. Heard filed a second Form 1009 on January 15, 2013, seeking the Medical Director’s approval of a cervical MRI and a right shoulder MRI that had been denied a second time by Novare. The Medical Director again denied the requested services in a MGD dated January 26, 2013. As before, the rational for the denial was that the documentation submitted “does not support the approval of the requested services per the Louisiana Medical Treatment Guidelines (MTG).” The denial further provided:

No therapy records are submitted. Electro-diagnostic report dated 11.20.2012 was normal for the upper extremities. Clinical records for an objective shoulder examination note only decreased measurements for ROM; for the cervical area records note decrease ROM and normal motor, sensory and reflex exam.
All the published MTG note that “Clinical information obtained by history taking and physical examination should form the basis for selecting an imaging procedure and interpreting its results.” Previous MGD-1848 was denied due to no comprehensive exam being performed. That concern has not been improved. Additionally, the limited cervical neurologic exam performed is normal, as well as the normal electro-diagnostic study results.

Again, the Medical Director listed the specific provisions of the Guidelines that he applied in rendering his decision, which, this time, consisted of Sections 2317, 2319, 2321, and 2323 of Chapter 23 relative to shoulder injuries and Sections 2003, 2005, and 2007 of Chapter 20 relative to cervical spine injuries.

Dr. Heard filed a third Form 1009 on February 20, 2013, attaching forty pages of documentation, seeking the Medical Director’s approval of an EMG/NCS of the cervical and bilateral upper extremities, a cervical MRI, and a right shoulder MRI that had again been denied by Novare. The Medical Director denied the requested services for the third time in a decision dated February 21, 2013. As before, the rational for the denial was that the documentation submitted “does not support the approval of the requested services per the Louisiana Medical Treatment Guidelines (MTG).” The denial further noted that “Appeal of a Form 1009 decision is through the 1008 process, not repetitive filing of Form 1010 and 1009. See prior MGD for further review.”

Matthews filed a Form 1008 on March 12, 2013, seeking an “[ajppeal from 1009 denial,” along with penalties and fees. She alleged therein that she injured her neck and right shoulder in the accident. Oakh-eart and its insurer, Louisiana Home Builder’s Association Self Insurer’s Fund (hereafter collectively referred to as Defendants), answered the 1008 admitting that Matthews “sustained a compensable accident arising out of and in the course and scope of her employment with Oakh-eart” but “aver[ing] that the injuries were limited to her right hand.” Defendants denied that Matthews sustained a disabling injury as a result of the accident and contended that she was not currently temporarily disabled, permanently disabled, nor suffering from a loss of earning capacity. Defendants asserted that because the treatment recommended by Dr. Heard was not owed under the MTG, the decision of the Medical Director should be affirmed and that Matthews’ claim for penalties and attorney fees should be denied.

The matter came for hearing on June 14, 2013. On July 2, 2013, the WCJ rendered judgment in open court denying and dismissing with prejudice Matthews’ appeal of the Medical Director’s decisions of September 26, 2012 in MGD-1848, January 26, 2013 in MGD-2832, and February 21, 2013 in MGD-3053. Matthews now appeals, asserting as her sole assignment of error the following, “The Trial Court erred in its assessment and review of the Medical Director and therefore erred in refusing to overrule the Director.”

DISCUSSION

Louisiana Revised Statutes 23:1203.1 was enacted by the legislature in 2009 to provide for the establishment of a medical treatment schedule, and such a schedule was promulgated by the Louisiana Workforce Commission, Office of Workers’ Compensation Administration in June 2011. As a result, “medical care, services, and treatment due, pursuant to R.S. 23:1203, et seq., by the employer to the employee shall mean care, services, and treatment in accordance with the medical treatment schedule.” La.R.S. 23:1203.1(1). Section 1203.1 establishes a procedure whereby an injured employee’s medical provider can request authorization for medical services from a payor, usually the employer or its insurer, who must act on that request within five days. La.R.S. 23:1203.1(J)(1). Thereafter, any aggrieved party has fifteen days within which to file an appeal with the Medical Director who must render a decision within thirty days. Id. “After the issuance of the decision by the medical director ..., any party who disagrees with the decision, may then appeal by filing a ‘Disputed Claim for Compensation.’ ” La.R.S. 23:1203.1(K). A decision of the Medical Director “may be overturned when it is shown, by clear and convincing evidence, the decision ... was not in accordance with the provisions of this Section.” Id.; See also Usie v. La fayette Parish Sch. Sys., 13-294 (La.App. 3 Cir. 10/9/13), 123 So.3d 885.

Dr. Heard’s initial Form 1009 contained a report from his initial visit with Matthews on August 14, 2012, wherein he prescribed conservative treatment for Matthews’ injuries, including medication and physical therapy, and he recommended that she undergo MRIs of her right shoulder and cervical spine. After his second visit with Matthews on September 6, 2012, Dr. Heard again recommended the two MRIs without waiting to see the results of the conservative treatment. When the Medical Director denied the requested testing in MGD-1848, he explained that “a thorough neuromuscular history and physical exams of both the cervical spine and shoulder” were needed in order to get the MRIs approved. The Medical Director then listed the portions of the Guidelines outlining the initial diagnostic procedures for injuries to the shoulder and spine, including the specific clinical tests that a physician could use to make a diagnosis.

In addition to his office reports dated August 14 and September 6, 2012, the second Form 1009 submitted by Dr. Heard on January 15, 2013, contained a copy of the patient history that Matthews gave on her first visit with him, along with reports from Matthews’ later visits with Dr. Heard dated August 28, 2012, September 18, 2012, October 2, 2012, October 16, 2012, November 13, 2012, November 26, 2012, December 11, 2012, and January 2, 2013. According to the November 26, 2012 report, Dr. Heard had consulted with a vocational rehabilitation counselor on that date to review Matthews’ records as well as Dr. Heard’s current and recommended treatment. The second Form 1009 also included a procedure report dated December 19, 2012, documenting that Dr. Heard had injected Matthews’ right acromioclavicular joint with Lidocaine resulting in a decrease in her pain in that area from ten out of ten to four out of ten on a scale of ten, with ten being the highest. It also included the results of EMG and nerve conduction studies done by Dr. James Domingue of Matthews’ right arm wherein he stated that the study was “normal without clear-cut electrophysiological evidence of radiculopa-thy or peripheral nerve entrapment.” No physical therapy records are included, and there is no indication that Dr. Heard conducted a more comprehensive examination of Matthews’ cervical spine and shoulder or that he had performed any additional tests of those areas, in contravention of the recommendation found in Chapters 20 and 23 of the Guidelines.

When Dr. Heard filed a third Form 1009 on February 20, 2013, the only documentation that he submitted in addition to that previously submitted in the second Form 1009 was an office report from his January 29, 2013 visit with Matthews which failed to address the primary concerns noted in the Medical Director’s first two denials. As mentioned previously, this Form 1009 sought approval of an EMG/NCS of the cervical and bilateral upper extremities in addition to the MRIs contained in the previous two Form 1009s. Upon review, the Medical Director again denied the requested tests, referencing its prior MGD and again explaining that the proper mechanism for appealing a Form 1009 decision is by filing a Form 1008.

After having carefully reviewed the record in its entirety, we conclude that Matthews failed to show by clear and convincing evidence that the decisions of the Medical Director were not in accordance with La.R.S. 23:1203.1. Rather than supplementing his initial Form 1009 to comply with the explicit provisions of the Guidelines regarding what testing had to be done and what documentation had to be submitted to garner approval of the requested medical treatment, Dr. Heard filed duplicative Form 1009s without heeding the Medical Director’s advice to first document the results of the conservative treatment that he had initially recommended to Matthews. While we realize that the Guidelines provide that MRIs are useful tools in the diagnosis of injuries to the cervical spine and shoulder, La.R.S. 23:1203.1(1) provides that medical care and treatment must be “in accordance with the medical treatment schedule.” Because none of the Form 1009s submitted by Dr. Heard complied with the dictates prescribed by the Guidelines, Matthews did not meet her burden of proof under La. R.S. 23:1203.1(K). Accordingly, the judgment of the WCJ is affirmed.

DECREE

For the foregoing reasons, the judgment rendered by the Workers’ Compensation Judge upholding the decision of the Medical Director of the Office of Workers’ Compensation to deny requests from Denise Matthews’ treating physician seeking authorization for MRIs of her cervical spine and right shoulder and an EMG/ NCS of the cervical and bilateral upper extremities is affirmed. All costs of this appeal are assessed against Denise Matthews.

AFFIRMED.

      . See MGD-1848.

      . The Louisiana Medical Treatment Guidelines will hereafter be referred to as "the Guidelines.” The Guidelines are found in Title 40 of the Louisiana Administrative Code.

      . See MGD-2832.

      . See MGD-3053.

      . Defendants' answer included a reconven-tional demand to which Matthews filed various exceptions. Defendants also sought to dismiss Matthews' appeal as untimely and to suspend benefits pending Matthews' return of properly executed Form 1020 Employee’s Monthly Report of Earnings. After a hearing, the WCJ denied Matthews' exceptions as well as Defendants' motion to dismiss appeal. Defendants’ request that Matthews’ benefits be suspended was also denied, and Matthews was ordered to submit a Form 1020 within fifteen days. None of those motions or exceptions are at issue in this appeal.

      . The record does not contain a transcript of the June 14, 2013 hearing.


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge.

license: Public Domain

text:
    Willie J. ZENO, Sr. v. Jo Ann NIXON.
    No. 13-1267.
    Court of Appeal of Louisiana, Third Circuit.
    March 12, 2014.

      Jo Ann Nixon, In Proper Person, New Iberia, LA, for Defendant/Appellee.
    Willie J. Zeno, Sr., In Proper Person, Lafayette, LA, for PlaintifflAppellant.
    Court composed of Ulysses GENE THIBODEAUX, Chief Judge, MARC T. AMY, and JAMES T. GENOVESE, Judges.
   THIBODEAUX, Chief Judge.

The plaintiff, Willie J. Zeno, Sr., appeals a judgment dismissing his legal malpractice suit and granting the exception of prescription filed by the defendant, Jo Ann Nixon. Where the actions complained of occurred in the 1990s, we affirm the judgment granting Ms. Nixon’s exception of prescription, and we affirm the trial court’s denial of a new trial.

I.

ISSUES

We must decide whether the trial court manifestly erred in granting the defendant’s exception of prescription and in denying the plaintiffs motion for a new trial.

II.

FACTS AND PROCEDURAL HISTORY

Mr. Zeno, a pro se plaintiff, is appearing before this court on the same or related matter for the fifth time. He filed the present suit against Ms. Nixon on February 17, 2012. Ms. Nixon is an attorney. She represented Mr. Zeno in a social security disability matter that resolved unfavorably for him in 1996. Ms. Nixon was recommended to Mr. Zeno by his former attorney, Joslyn Renee Alex, who had represented Mr. Zeno in a workers’ compensation matter in 1991 and 1992, which also resolved unfavorably for Mr. Zeno. Mr. Zeno has sued almost every attorney and judge connected with the matters, as well as the Office of Disciplinary Counsel. When he sued Ms. Alex in 2010 for legal malpractice in handling the workers’ compensation claim, Ms. Nixon represented Ms. Alex. Mr. RZeno’s current suit asserts that Ms. Nixon had a conflict of interest and should not have defended Ms. Alex in that malpractice suit because Ms. Nixon had previously represented him.

Ms. Nixon filed exceptions of insufficiency of service, unauthorized use of summary proceedings, vagueness, prescription, and no cause of action. At the hearing on the exceptions, the trial court explained that a conflict of interest claim involved attorney conduct and is properly directed to the Office of Disciplinary Counsel. Mr. Zeno asserted that he had filed claims there as well. He then proceeded with a legal malpractice claim against Ms. Nixon. The trial court granted Ms. Nixon’s exception of prescription in open court at the end of the hearing. Her final judgment indicated that she granted the exceptions of prescription and no cause of action. Mr. Zeno appealed.

III.

STANDARD OF REVIEW

An appellate court may not set aside a trial court’s findings of fact in absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). Even where the appellate court believes its inferences are more reasonable than the fact finders, reasonable determinations and inferences of fact should not be disturbed on appeal. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

IV.

LAW AND DISCUSSION

Conflict of Interest

The current suit was brought in 2012 against Ms. Nixon for her representation of Ms. Alex in 2010. Ms. Nixon and Mr. Zeno did not have an attorney-client relationship in 2010, nor had they had an attorney-client relationship for fourteen years, since 1996. We find, as the trial court found, that Mr. Zeno’s assertions regarding the conflict of interest issue are governed by the Office of Disciplinary Counsel. Mr. Zeno indicated that he had pending claims there which he filed in 2012. The trial court was correct in stating that she did not have jurisdiction to hear the conflict of interest matter. To the extent the conflict of interest issue may arguably pertain to Mr. Zeno’s legal malpractice claim, that claim is now prescribed, as discussed below.

Legal Malpractice

Mr. Zeno has made overly burdensome assertions in the current petition that toggle back and forth between the workers’ compensation matter and the social security disability matter, both of which resolved in the 1990s. He now attempts to combine the separate matters into one, and he asserts that both women represented him in both matters. He demands documentation from Ms. Alex, even though she is not a party to this suit. In fact, we affirmed the dismissal of his legal malpractice suit against Ms. Alex in 2012. See Zeno v. Alex, 11-1240 (La.App. 3 Cir. 4/4/12), 89 So.3d 1223. He makes demands of Ms. Nixon for the return of records, but he attaches a 1996 ten-page decision from the Social Security Administration explaining exactly why his claim was denied. All pertinent assertions regarding the mishandling of his workers’ compensation suit and the social security disability claim are assertions of legal malpractice.

“In order to establish a claim for legal malpractice, a plaintiff must prove that (1) there was an attorney-client relationship; (2) the attorney was negligent in his representation of the plaintiff; and (3) the plaintiff sustained a loss as a result of the attorney’s negligence.” Waste Mgmt. of Louisiana, LLC v. Penn-America Ins. Co., 12-1033, pp. 3-4 (La.App. 3 Cir. 2/6/13), 110 So.3d 200, 203, writ denied, 13-526 (La.4/12/13), 111 So.3d 1009 (citing Costello v. Hardy, 03-1146 (La.1/21/04), 864 So.2d 129, and Morgan v. Simon, 00-1556 (La.App. 3 Cir. 2/28/01), 780 So.2d 626).

The attorney-client relationship that Mr. Zeno had with Ms. Nixon ended in 1996. Under La.R.S. 9:5605, his malpractice claims against Ms. Nixon have prescribed:

A. No action for damages against any attorney at law duly admitted to practice in this state ... whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide legal services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.

The prescription periods set forth in this statute are peremptory. Atlas Iron and Metal Co. v. Ashy, 05-458 (La.App. 3 Cir. 1/4/06), 918 So.2d 1205. Accordingly, both the underlying cause of action and the legal right to bring that cause of action to court dissolve at the end of the specified periods of limitation. Id. The evidence indicates that Ms. Nixon’s representation of Mr. Zeno ended in 1996. Thus, he had until 1999 at the latest to file suit against her. Mr. Zeno did not bring the applicable claims during the peremptive period, and he no longer has a cause of action or a right of action against her.

To the extent that Mr. Zeno asserts fraud and argues that fraud claims do not prescribe, he is incorrect. While Subsection La.R.S. 9:5605(E) provides that the three-year peremptive period of Subsection (A) does not apply in cases of fraud, the one-year peremptive period from the date of discovery of the fraud does apply. Dauterive Contractors, Inc. v. Landry and Watkins, 01-1112 (La.App. 3 Cir. 3/13/02), 811 So.2d 1242. Mr. Zeno now seems to assert that Ms. Nixon was involved in the workers’ compensation claim in 1992. In his prior appeal before this court, regarding Ms. Alex’s exception of prescription, Mr. Zeno said he suspected fraud in 1995 or 1996 after enrolling in paralegal school. We have already held that claims for fraud in the workers’ compensation suit have prescribed. See Zeno v. Alex, 89 So.3d 1223.

Mr. Zeno asserts on appeal, though not in his petition, that he is alleging theft and misappropriation of funds under La. R.S. 9:5605.1, and that his 2012 claim against Ms. Nixon in the Office of Disciplinary Counsel interrupted prescription against her. This argument is also without merit. There is nothing in the record to document a claim with the Office of Disciplinary Counsel for theft and misappropriation of funds against Ms. Nixon. Therefore, he has failed to establish that La.R.S. 9:5605.1 applies. See McKinley v. Scott, 44-414 (La.App. 2 Cir. 7/15/09), 17 So.3d 81. Additionally, prescription cannot be interrupted if it has already run. Moreover, there was no money involved in the social security disability matter to be stolen or misappropriated.

All of Mr. Zeno’s claims have prescribed. If applicable, an action against an attorney for the return of papers is subject to a liberative prescription of three years, pursuant to La.Civ.Code art. 3496. Whether viewed as a fiduciary’s simple negligence or delict with a one-year prescriptive period under La.Civ.Code art. 3492, or as a fiduciary’s contractual or deliberate act with a ten-year prescriptive period under La.Civ.Code art. 3499, the acts complained of occurred eighteen years ago. See dela Vergne v. dela Vergne, 99-364 (La.App. 4 Cir. 11/17/99), 745 So.2d 1271. Thus, all claims for negligence or intentional acts, fraud, misappropriation, conversion, tort, breach of duty, and breach of contract are prescribed. Moreover, they had prescribed in 2010 when Mr. Zeno brought suit against Ms. Alex and when Ms. Nixon represented Ms. Alex in that suit.

The Trial Court’s Judgment

At the end of the trial of the exceptions on February 19, 2013, the trial court orally granted Ms. Nixon’s exception of prescription and asked her to prepare a judgment and submit it to Mr. Zeno before filing it. In July 2013, Mr. Zeno filed a rule to show cause why Ms. Nixon should not be held in contempt and sanctioned for not submitting the written judgment. The written judgment was prepared by the trial judge herself on August 28, 2013.

The hearing on the rule to show cause was held on September 3, 2013. Counsel for Ms. Nixon indicated that he thought a judgment was handed to the judge at the end of the exception hearing in February. The trial court explained that she did not find a judgment in the record, and she therefore drafted and issued her own judgment on August 28, 2013, which was her practice to do if the parties failed to submit a judgment of their own. Mr. Zeno argued that the August 28 judgment was signed over forty-five days after the February hearing and that it was, therefore, null and void. The trial court disagreed, as do we, as will be fully explained below. Mr. Zeno attempted to have the court accept a judgment he had prepared. The trial court refused, stating that she had prepared the August 28 judgment and the case was dismissed.

Two days later, on September 5, 2013, Mr. Zeno filed a motion for a new trial, which the trial court denied. His motion for a new trial mentioned La.Code Civ.P. arts. 1972 and 1973, but did not apply them. Instead of addressing the issue of prescription on a malpractice claim, his motion focused on procedurally attacking the timeliness of the trial court’s written judgment of August 28, the same issue complained of in the rule to show cause which was heard on September 3.

Pursuant to La.Code Civ.P. art. 1911: “Except as otherwise provided by law, every final judgment shall be signed by the judge. For the purpose of an appeal as provided in Article 2083, no appeal may be taken from a final judgment until the requirement of this Article has been fulfilled.” Thus, a judgment must be written and signed in order to file an appeal. While other delay periods, such as the time for filing a motion for a new trial and the time for filing a motion for appeal, begin to run when the final judgment is signed and certified as mailed, the signing of the judgment itself is not subject to a specific time restriction. The 1960 OFFICIAL REVISION COMMENTS to La. Code Civ.P. art. 1911 state:

(a) While the rule of this article is substantially the same as the former rule on the subject, the articles in this Chapter make a radical change in the rules respecting the time when judgments may and shall be signed.
Under the articles in this Chapter, judgments are to be signed at the time of rendition or at any time thereafter. No time limit for the signing is imposed in any of these articles, but it is contemplated that all judgments will be signed within a reasonable time after rendition, which in turn depends upon the circumstances.

The 1999 amendment to La.Code Civ.P. art.1911 only clarified the law as to partial judgments under Article 1915; it did not change or affect the salient issues under review. Under La.R.S. 13:4207, the maximum delay for rendering a written judgment on a case taken under advisement is thirty days from the time the case is submitted for a decision, with a ten-day extension under certain circumstances. However, this case was not taken under advisement. Here, the trial judge orally granted the exception at the end of the hearing. Therefore, La.R.S. 13:4207 is not applicable. We could find no statute or article to support the forty-five day delay period that Mr. Zeno asserts in this case, and he has not cited a statute that supports his argument.

Moreover, Mr. Zeno has not been prejudiced by the timing of the written judgment. Under La.Code Civ.P. art. 1974, the delay for applying for a new trial is seven days after the notice of judgment is mailed. The trial judge Rmailed her August 28 judgment and notice of the judgment on August 30, 2013. Mr. Zeno filed his motion for new trial on September 5, 2013. He subsequently filed a motion for appeal, which was granted without opposition, and we are here reviewing the appeal. The purpose of the notice of written judgment is to protect the litigant’s rights to apply for a new trial and to petition for an appeal. See Hertz Lease Plan, Inc. v. Urban Transp. & Planning Assocs., Inc., 342 So.2d 886 (La.App. 4 Cir.), writ denied, 344 So.2d 1054 (La.1977), and X-L Finance Co. v. Hollinger, 185 So.2d 873 (La.App. 3 Cir.1966). Accordingly, Mr. Zeno has not been prejudiced as he was not prevented from filing a motion for a new trial or an appeal. We find no violation of the relevant article, La. Code Civ.P. art. 1911. Even if the six-month period between the oral judgment and the written judgment were viewed as unreasonable, any untimeliness of the written judgment was harmless.

Trial court is accorded vast discretion in deciding whether to grant a motion for a new trial under La.Code Civ.P. arts 1972 and 1973; its decision whether to do so is reviewed pursuant to the abuse of discretion standard of review. G.S. v. T.S., 04-1566 (La.App. 3 Cir. 4/13/05), 900 So.2d 1088. Here, Mr. Zeno presented no new evidence on the prescription issue, and he failed to show that the judgment granting the exception was contrary to the law and the evidence. Accordingly, we find no abuse of discretion in the denial of a new trial.

V.

CONCLUSION

Based upon the foregoing, we affirm the judgment of the trial court granting the exception of prescription in favor of the defendant, Jo Ann Nixon, and we affirm the denial of a new trial. All costs of this appeal are assessed to the plaintiff, Willie J. Zeno, Sr.

AFFIRMED.

      . Pursuant to the pertinent parts of La.Code Civ.P. art 1972, a new trial is granted when the "judgment appears clearly contrary to the law and the evidence” or when the mover discovers after trial "evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial.” La.Code Civ.P. art.l972(l)-(2).

      . Under La.Code Civ.P. art. 1973, the trial court has discretion to grant a new trial if there is “good ground therefor” unless contrary law provides otherwise.

      . Notwithstanding the trial court’s refusal to accept Mr. Zeno’s prepared judgment at the September 3 hearing on the rule to show cause, Mr. Zeno filed a judgment on September 9, 2013, into the record which addresses the February hearing on the exception. It does not accurately reflect the oral judgment entered by the trial court at the end-of the hearing; rather, it favors Mr. Zeno. The trial court marked through the entire page and wrote "denied” at the top of his judgment. The record indicates that Mr. Zeno is appealing this September 9 judgment, submitted by him, along with the trial court’s August 28 judgment. On September 10, 2013, the trial court signed an order, submitted also by Mr. Zeno, regarding the nullity of her August 28 judgment. The court again marked through the text, which was favorable to Mr. Zeno, and wrote "denied” at the top of the order. Because the September 9 judgment and the September 10 order were filed after the motion for a new trial, we will treat them as rulings on the motion for a new trial, and we affirm the court’s denial of a new trial.

      . The record does not indicate that a hearing was held after Mr. Zeno filed his motion for a new trial on September 5. While La.Code Civ.P. art.1976 references a hearing, we are guided by the jurisprudential exception "whereby a motion for new trial may be summarily denied in the absence of a clear showing in the motion of facts or law reasonably calculated to change the outcome or reasonably believed to have denied the applicant a fair trial.” Lopez v. Wal-Mart Stores, Inc., 94-2059, p. 9 (La.App. 4 Cir. 8/13/97), 700 So.2d 215, 220, writ denied, 97-2522 (La.12/19/97), 706 So.2d 457 (citing Sonnier v. Liberty Mut. Ins. Co., 258 La. 813, 248 So.2d 299 (1971), and Allen v. Noble Drilling, Inc., 93-2383 (La.App. 4 Cir. 05/26/94), 637 So.2d 1298). Moreover, because Mr. Zeno’s September 5 motion for a new trial substantively tracked his rule to show cause, which was heard by the court two days earlier on September 3, the substance of the motion for a new trial was the subject of a contradictory hearing.


author: GENOVESE, Judge.

text:
    CONCORDIA PARISH SCHOOL BOARD, Concordia Parish Hospital District # 1, Concordia Parish Police Jury, City of Vidalia, Town of Ferriday v. LOUISIANA MACHINERY RENTALS, LLC.
    No. 12-422.
    Court of Appeal of Louisiana, Third Circuit.
    March 12, 2014.
    Jesse R. Adams, III, Kathryn S. Friel, Andre Brian Burvant, Matthew A. Mantle, Jones, Walker, Waechter, Poitevent, Car-rére & Denégre, L.L.P., New Orleans, LA for Defendant/Appellant, Louisiana Machinery Rentals, LLC.
    Jack Hendrix McLemore, Jr., Vidalia, LA, Robert R. Rainer, Drew M. Talbot, Rainer, Anding <& McLindon, Baton Rouge, LA, for Plaintiffs/Appellees, Con-cordia Parish School Board, Concordia Parish Hospital District # 1, Concordia Parish Police Jury, City of Vidalia, and Town of Ferriday.
    Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

Pursuant to a writ of certiorari granted January 17, 2014, by the Louisiana Supreme Court under Docket No. 2012-2503, this case was remanded to this court with instructions “to consider the matter in light of this court’s recent opinions in Washington Parish Sheriff’s Office v. Louisiana Machinery Company, LLC, 13-0583 (La.10/15/13), [126] So.3d [1273], and Catahoula Parish School Bd. v. Louisiana Machinery Company, LLC, 12-2504 (La.10/15/13), [124] So.3d [1065].”

In doing so, we note that the Washington case was decided based on the reasons assigned in the Catahoula case. In Catahoula, the supreme court affirmed this court’s reversal of the trial court’s grant of partial summary judgment in favor of the Catahoula Parish School Board and the Catahoula Parish Police Jury, with a remand for further proceedings. Specifically, the supreme court ruled that the mandatory notice requirements of La.R.S. 47:337.51 were deficient and, therefore, not final; that “the validity of the notices of assessments constituted an essential element of the Collector’s claims rather than strictly a defense asserted by the Companies[ ]”; and, that the defenses asserted by the Companies were timely filed. Id. at 1076.

After due “consideration” of the supreme court’s rulings in the Washington and Catahoula cases, and in accordance with its instructions, we again reverse the trial court’s grant of the partial summary judgment in favor of the Concordia Parish School Board, Concordia Parish Hospital District # 1, Concordia Parish Police Jury, City of Vidalia, and the Town of Ferriday and remand the matter to the trial court for further proceedings. Costs of this appeal are assessed equally to the Concordia Parish School Board, Concordia Parish Hospital District # 1, Concordia Parish Police Jury, City of Vidalia, and the Town of Ferriday in the amount of $2,223.50 pursuant to La.R.S. 13:5112.

REVERSED AND REMANDED.

      . The Catahoula case consists of the case of Catahoula Parish School Board v. Louisiana Machinery Rentals, LLC, 12-443 (La.App. 3 Cir. 10/24/12), 105 So.3d 169, which was consolidated with the case of Catahoula Parish School Board v. Louisiana Machinery Rentals, LLC, 12-444 (La.App. 3 Cir. 10/24/12), 105 So.3d 169.


author: ROBERT A. CHAISSON, Judge.

text:
    STATE of Louisiana v. Cody SMOOT.
    No. 13-KA-453.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 15, 2014.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Gail D. Schlosser, Matthew R. Clauss, Seth W. Shute, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and ROBERT A. CHAISSON.
   ROBERT A. CHAISSON, Judge.

| gDefendant, Cody Smoot, appeals his conviction and sentence for second degree murder. For the reasons that follow, we affirm defendant’s conviction and his sentence of life imprisonment without benefit of parole, probation, or suspension.

PROCEDURAL HISTORY

On August 25, 2011, a Jefferson Parish Grand Jury returned an indictment, charging defendant with the second degree murder of Johnny Ferrell in violation of LSA-R.S. 14:30.1. At his arraignment held on August 30, 2011, defendant pled not guilty. The matter thereafter proceeded to trial before a 12-person jury on January 23 and 24, 2013. After considering the evidence presented, the jury unanimously found defendant guilty as charged.

On January 31, 2013, the trial court sentenced defendant to life imprisonment without benefit of parole, probation, or suspension of sentence. Defendant then filed a motion to reconsider sentence, in which he requested that |shis sentence be amended to afford him the opportunity to receive parole. On February 4, 2013, the trial court denied defendant’s motion. Defendant now appeals.

FACTS

Benny Ferrell and his brother Johnny, the victim in this case, had been homeless for most of their lives and were both users of crack cocaine. In March of 2011, Benny had taken up residence in a shed behind his nephew’s house. However, Johnny was not allowed to stay there because he was a nuisance in the neighborhood, often begging for money.

In the early morning hours of March 29, 2011, Johnny appeared at his brother’s shed with a companion. Johnny asked Benny if he could sell his boombox in order to get money to purchase crack cocaine. After Benny refused his brother’s request, Johnny took the boombox from the shed and told Benny that his companion would give him a “dime rock” for it. Again, Benny refused to sell his boombox, and he put it back in the shed. Johnny’s companion then began to walk off and told Johnny to “come on” in a loud, angry voice. Johnny and his companion left, and Benny returned to the shed to get some rest. Within a few minutes, Benny heard several gunshots in the area. Fearing that his brother was involved, he ran to the corner, but did not see anything. Benny returned to the shed and went to sleep.

At approximately 7:00 a.m. on March 29, 2011, Officer Paul Dupuis of the Jefferson Parish Sheriffs Office was on routine patrol when he was flagged down by Eddie Deamer, who informed him that a “man was down” farther up the street. Officer Dupuis continued up the street and observed a dead body on the ground near the sidewalk in front of an empty lot located just around the corner from Benny’s shed. Officer Dupuis advised headquarters and secured the scene.

14Detective Matthew Vazquez of the Jefferson Parish Sheriffs Office arrived on the scene and found five .40 caliber Winchester casings and a projectile fragment in the vicinity of the victim’s body, as well as a projectile under the victim’s body. In addition, he and Detective Rhonda Goff, the lead investigator, encountered Benny who, by this time, had arrived on the scene having been alerted that his brother had been shot. Benny, who was visibly upset about his brother’s death, agreed to go to the detective bureau to give a statement to the police.

In connection with his statement, Benny described the person he last saw with his brother. A composite sketch was produced and distributed to the- police districts. Detective Goff received leads concerning two different individuals, and she prepared two separate photographic lineups. When she presented these lineups to Benny, he advised her that the individual who was with his brother the morning of the shooting was not in the lineups. Thereafter, a fellow officer saw the sketch and commented that it looked like Cody Smoot. Detective Goff compiled another photographic lineup, which contained defendant’s picture, and presented it to Benny on March 31, 2011. From this third photographic lineup, Benny positively identified defendant as his brother’s companion in the early morning hours of March 29, 2011.

After this positive identification, Detective Goff obtained a search warrant for defendant’s last known address, and on April 12, 2011, officers searched that residence. In addition, she obtained a search warrant for a white Pontiac Grand Prix, which was parked outside the residence at the time of the search. The vehicle was towed back to the detective’s bureau and searched pursuant to the warrant.

| ¿Defendant was subsequently taken into custody and transported to the detective bureau for questioning. After being advised of his rights and executing a waiver of rights form, defendant gave a recorded statement. In his statement, defendant admitted ownership of some of the items found during execution of the search warrants, including the crack cocaine, the 9 mm round of ammunition, the .40 caliber rounds of ammunition, and a Glock magazine. He admitted that he intended to sell the crack, and he explained that the Grand Prix belonged to his sister, but that he had been using it for the past three or four days.

Defendant further explained that the victim was his parran, who “smoked a lot of crack” and that he had last seen him several months earlier on January 21, 2011. He said he learned of the victim’s death around 7:00 a.m. on March 29, 2011, while at his grandfather’s house on Lloyd Price Avenue. He explained he was asleep with his girlfriend Joanna Miller when he was awakened by a phone call from his cousin, Rynell Allen, informing him that the victim had been killed and to watch the news.

The detectives subsequently investigated Rynell Allen, but were unable to locate any such person. The detectives also spoke with Joanna Miller, who informed them that she was working at a McDonald’s restaurant near Zephyr Field on Airline Drive that evening, that she left work around 1:00 a.m. on March 29, 2011, and that she met defendant at his grandfather’s house, where they spent the night. However, Detective Goff spoke with the manager of that McDonald’s, who informed the detective that a person by that name had never worked there. When Detective Goff confronted Ms. Miller with this information, she explained she made a mistake because she was scared, but had actually been working at the McDonald’s on Claiborne Avenue and Louisiana Avenue in Orleans Parish. Detective Goff determined that Ms. Miller had been fired from 1 fithis McDonald’s on March 17, 2011, twelve days before the murder. Subsequently, at trial, Ms. Miller explained that she was untruthful with the police because she was scared and did not want to get involved.

At trial, Ms. Miller testified that at around 1:00 a.m. that same morning, she received a telephone call from defendant, her boyfriend, who asked her to pick him up. Ms. Miller drove and picked defendant up from a trailer park near the Mark Twain apartment complex. When defendant got into the car, Ms. Miller observed that he was out of breath, “agitated, sweaty, and just didn’t want to be bothered.” Ms. Miller asked defendant what had happened; defendant initially did not respond, but then explained that he had shot someone.

Defendant then directed Ms. Miller to drive to her grandmother’s house on Simon Street, which was uninhabited and abandoned due to a fire. When they arrived, defendant exited the car and proceeded to the back of the house and returned to the car after a few minutes. Defendant then directed Ms. Miller to go to her parents’ house. When they arrived, the couple retreated to her bedroom, where Joanna’s mother discovered defendant the next morning. Ms. Miller testified that she did not observe defendant with a gun that night, but acknowledged that she has seen him with a “big and bulky” gun in the past.

DENIAL OF MOTION TO RECONSIDER SENTENCE

In defendant’s first assignment of error, he challenges the trial court’s denial of his motion to reconsider sentence.

Subsequent to the imposition of his life sentence without benefit of probation, parole, or suspension, defendant filed a motion to reconsider sentence. In his motion, defendant requested that the court amend his sentence to afford him |7an opportunity to receive parole, in light of the principles set forth in Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). Defendant specifically asserted that on account of his youth and his troubled childhood, he was entitled to a sentence with an opportunity for parole. The trial court denied this motion. On appeal, defendant argues that the trial court erred in denying his motion to reconsider sentence because his sentencing hearing was inadequate under Miller, and the crime was not particularly heinous. We find no merit to defendant’s arguments.

In Miller v. Alabama, 132 S.Ct. at 2469, the United States Supreme Court ruled that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison -without possibility of parole for juvenile offenders” convicted of homicide. The Miller court did not, however, establish a categorical prohibition against life without parole for juveniles. Rather, the court required that a sentencing court consider an offender’s youth and attendant characteristics as mitigating circumstances before deciding whether to impose the harshest possible penalty for juveniles. State v. Williams, 12-1766 (La.3/8/13), 108 So.3d 1169 (per curiam). In Miller, the United States Supreme Court stated, “Although we do not foreclose a sentencer’s ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Miller at 2469.

In State v. Brown, 12-0872 (La. 5/7/13), 118 So.3d 382, 335, the Louisiana Supreme Court acknowledged that “the Miller holding permits the imposition of a life sentence without parole but only after an opportunity to consider mitigating circumstances.” In light of Miller, the legislature, during the 2013 Regular |sSession, enacted LSA-C.Cr.P. art. 878.1, allowing parole consideration for juveniles sentenced to life imprisonment for certain homicide offenses after a sentencing hearing. That article, which became effective August 1, 2013, provides as follows:

A. In any case where an offender is to be sentenced to life imprisonment for a conviction of first degree murder (R.S. 14:30) or second degree murder (R.S. 14:30.1) where the offender was under the age of eighteen years at the time of the commission of the offense, a hearing shall be conducted prior to sentencing to determine whether the sentence shall be imposed with or without parole eligibility pursuant to the provisions of R.S. 15:574.4(E).
B. At the hearing, the prosecution and defense shall be allowed to introduce any aggravating and mitigating evidence that is relevant to the charged offense or the character of the offender, including but not limited to the facts and circumstances of the crime, the criminal history of the offender, the offender’s level of family support, social history, and such other factors as the court may deem relevant. Sentences imposed without parole eligibility should normally be reserved for the worst offenders and the worst cases.

In cases where a juvenile homicide offender received a life sentence without parole and the sentencing court did not consider mitigating circumstances before imposing the sentence, the Louisiana Supreme Court has remanded the matter to the trial court to reconsider the sentence after conducting a new sentencing hearing in conformity with Miller. See State v. Williams, supra; State ex rel. Landry v. State, 11-0796 (La.1/18/13), 106 So.3d 106; State v. Graham, 11-2260 (La.10/12/12), 99 So.3d 28; and State v. Simmons, 11-1810 (La.10/12/12), 99 So.3d 28; see also State v. Davis, 12-512 (La.App. 5 Cir. 4/24/13), 115 So.3d 68, 86, writ denied, 13-1205 (La.11/22/13), 126 So.3d 479 (where this Court vacated the portion of the sentence that eliminated parole eligibility and remanded the matter for the trial court to resentence the defendant in conformity with Miller ).

|nIn the instant case, the trial court clearly complied with the sentencing directives set forth in Miller v. Alabama, supra. At the sentencing hearing conducted on January 31, 2013, defendant argued that he should be allowed parole eligibility pursuant to the principles set forth in Miller. Citing studies about the intellectual ability, psychological development, and reasoning processes of adolescents, defense counsel suggested to the court that defendant, who was 17 at the time of the crime, “did not possess the full reasoning capabilities of an adult in his early twenties; that he would have been more prone to be influenced by risk taking and sensation thinking.” Defense counsel then advised the court that defendant came from a broken home; that he was raised primarily by his grandfather; that between the ages of 12 and 15, defendant was placed in group homes and Boys Town; and that during that three-year time period, he was treated by psychiatrists, psychologists, and counselors. Defense counsel then asked the court to take these factors into consideration and fashion a sentence that would afford defendant at least the opportunity for parole.

The State then articulated that it took no position as to senténcing; however, the prosecutor then discussed the principles of Miller and reviewed the factors set forth in LSA-C.Cr.P. arts. 894.1 and 905.5 that should be taken into consideration in the imposition of sentence. In particular, the State noted that “this was an elderly victim, who had HIV, who was homeless, was crack addicted, and was shot multiple times, in the front and in the back.” The State stressed that a firearm was used, that the murder occurred as a result of defendant’s involvement in the drug trade, and that a sentence of life with parole would deprecate the seriousness of the matter. The State also informed the trial judge that defendant was presently serving a sentence for his conviction for possession with intent to distribute cocaine. In addition, defendant has a prior arrest for second degree murder, but the 1 incharge was refused because the witnesses failed to come forward to testify. The State also discussed the mitigating factors and found the only applicable one under the circumstances of this case to be the youth of the offender. In discussing this factor, the State stressed that defendant was 17 years old at the time of the offense and noted that under Louisiana law, a 17-year-old can receive adult consequences.

After hearing extensive argument from both sides, the trial court articulated its considerations before imposing sentence, specifically noting that it had read Miller and the other applicable cases. The trial court stated that it had taken into account the youth of defendant as well as his upbringing and previous criminal activity. Despite defendant’s youth, the court found that defendant preyed upon a particularly vulnerable individual who was a homeless, HIV positive drug addict. Further, the court also expressed astonishment that defendant shot this victim multiple times over a stereo.

The court then meticulously considered the sentencing guidelines as provided in LSA-C.Cr.P. art. 894.1. From the fact that a bullet was located underneath the victim’s body, the court reasoned that defendant had shot the victim while he was incapacitated on the ground, shooting him “like a dog.” The court found this conduct demonstrated that defendant had “so little value [for] life” and exhibited a deliberate cruelty to the victim. Finally, the court contemplated the statutory mitigating circumstances for capital sentencing as provided in LSA-C.Cr.P. art. 905.5, finding no applicable circumstances other than defendant’s youth.

In the instant case, it is clear that the trial court complied with the principles set forth in Miller prior to imposing sentence. He considered mitigating factors and particularly took defendant’s youth into account before imposing a sentence of Inlife imprisonment without benefit of parole. Accordingly, we find no error in the trial court’s denial of defendant’s motion to reconsider sentence. The arguments raised by defendant in this assigned error are without merit.

RIGHT TO PRESENT A DEFENSE

In his second assigned error, defendant contends that the trial court denied him his constitutional right to present a defense.

At a pre-trial hearing, the State made an oral motion in limine seeking to exclude any reference to an anonymous call made to Crime Stoppers that claimed Benny Ferrell was the perpetrator of the crime. At the hearing, the State asserted this evidence was inadmissible hearsay. The defense responded that it was admissible as a res gestae exception to the hearsay rule because it was part of the police investigation. The court granted the State’s motion over the defense’s objection.

On appeal, defendant challenges this ruling. He claims that this evidence, even if it was hearsay, should have been admitted pursuant to the “fairness exception,” i.e., because it was reliable and necessary to his defense.

Initially, as noted by the State, defendant did not raise in the trial court the argument he now raises on appeal. Here, defendant argues that the evidence is admissible pursuant to the “fairness exception,” whereas in the trial court, defendant argued the evidence was admissible pursuant to the res gestae exception. A defendant is limited to the grounds for objection that he articulated in the trial court, and a new basis for the objection may not be raised for the first time on appeal. State v. Alvarez, 10-925 (La.App. 5 Cir. 6/29/11), 71 So.3d 1079, 1085. Accordingly, this particular argument was not properly preserved for appellate review. In any event, defendant’s argument on appeal, that this evidence should have been admitted pursuant to the “fairness exception,” is without merit.

Both the Sixth Amendment of the United States Constitution and Article I, Section 16 of the Louisiana Constitution guarantee a criminal defendant the right to present a defense. State v. Lirette, 11-1167 (La.App. 5 Cir. 6/28/12), 102 So.3d 801, 813, writ denied, 12-1694 (La.2/22/13), 108 So.3d 763. This fundamental right may not be superseded by evidentiary rules. State v. Van Winkle, 94-0947 (La.6/30/95), 658 So.2d 198, 202.

Hearsay is “a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.” LSA-C.E. art. 801(C). Hearsay is not admissible except as otherwise provided by the Louisiana Code of Evidence or other legislation. LSA-C.E. art. 802.

The Louisiana Supreme Court has recognized that normally inadmissible hearsay may be admitted into evidence if it is reliable, trustworthy, and relevant, and if to exclude it would compromise the defendant’s right to present a defense. State v. Van Winkle, 658 So.2d at 202. However, the Supreme Court has noted that this “fairness exception” to the hearsay rule is unusual and should be sparingly applied. State v. Trahan, 576 So.2d 1, 11 (La.1990). Moreover, the right to present a defense does not require the trial court to permit the introduction of evidence that is irrelevant or has so little probative value that it is substantially outweighed by other legitimate considerations in the administration of justice. State v. Franklin, 11-216 (La. App. 5 Cir. 12/28/11), 87 So.3d 860, 880, writ denied,, 12-0387 (La.9/12/12), 98 So.3d 811.

On appeal, defendant relies on State v. Gremillion, 542 So.2d 1074 (La.1989) in support of his argument that the anonymous tip was erroneously excluded. [ isln Gremillion, the defendant, who had been convicted of manslaughter, argued on writs to the Louisiana Supreme Court that the trial court erred in excluding the victim’s statement to a police officer while in the hospital before his death. In the victim’s statement, he described his attackers as “three white males.” When the police officer who interviewed the victim took the stand, the defense tried to elicit this statement from the officer, but was met with hearsay objections from the State, which were sustained by the trial court.

The Louisiana Supreme Court reversed the trial court, finding that although the statement was hearsay and did not fit into any of the recognized hearsay exceptions, it should have been admitted due to its reliability and trustworthy nature. In making this ruling, the court considered that the statement was corroborated by the victim’s statement to the admitting physician. In addition, the defendant and the victim were close friends, yet in two separate statements the victim failed to identify the defendant as his attacker. Lastly, the court noted there were no circumstances to suggest that the statement was untrustworthy.

The instant case is clearly distinguishable from the Gremillion case relied upon by defendant to support his argument that the anonymous tip should have been admitted. In this case, there were no circumstances presented to suggest that this hearsay evidence was reliable and trustworthy. The declarant of the tip was anonymous and there was no evidence that corroborated the tip. In fact, the evidence adduced at trial contradicts the tip, indicating defendant was the perpetrator.

Benny Ferrell testified that he saw defendant with the victim moments before he was shot and that defendant appeared angry. Soon after the shooting, Joanna Miller testified that she received a call from defendant, picked him up not far from the murder scene, and he admitted to her that he had shot someone. In [ ^addition, Ms. Miller’s testimony was corroborated by cell phone records. The custodian for Sprint Nextel testified that several calls between defendant’s cell phone and Joanna Miller’s cell phone were exchanged between 1:15 a.m. and 1:28 a.m. on March 29, 2011.

In this case, the evidence does not fit within the “fairness exception” to the hearsay rule as there were no circumstances presented to suggest that this hearsay evidence was reliable or trustworthy. In addition, there is nothing to indicate that the exclusion of this evidence hampered defendant’s right to present a defense. Accordingly, we find that the trial court did not abuse its discretion in excluding evidence of the anonymous tip. This assigned error is without merit.

ERRORS PATENT REVIEW

We have also reviewed the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review reveals no errors that require corrective action.

Accordingly, for the reasons set forth herein, we affirm defendant’s second degree murder conviction and sentence.

AFFIRMED.

      . At trial, Dr. Susan Garcia, a forensic pathologist, testified that she performed an autopsy on the victim and determined that the manner of death was homicide and that the cause of death was multiple gunshot wounds. In addition, Deputy Jene Rauch, an expert in the field of firearm and tool mark examination, testified that the four projectiles recovered from the victim's body and the projectile recovered from under the victim's body were .40 caliber and were fired from the same weapon.

      . At trial, Deputy Jene Rauch testified that the projectiles recovered from the victim’s body exhibited signs consistent with having been fired from a hi-point firearm, which she described as "usually pretty big and bulky ... a real heavy gun.”

      . Defendant’s date of birth is January 21, 1994. Therefore, at the time of the offense, March 29, 2011, defendant was 17 years of age.

        . Cf. State v. Tate, 12-2763 (La.l 1/5/13), 130 So.3d 829, in which the Louisiana Supreme Court held that Miller v. Alabama, supra, does not apply retroactively in state cases on collateral review.

      . Although the trial court specifies that the victim was HIV positive, this fact was not confirmed by any evidence.

      . At trial, Detective Goff testified that Benny Ferrell was investigated and was cleared as a suspect in this case.

      . A trial judge's determination regarding the relevancy and admissibility of evidence will not be overturned on appeal absent a clear abuse of discretion. State v. Franklin, 87 So.3d at 880.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Brandell T. SCIE.
    No. 13-KA-634.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 15, 2014.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet L. Clark, Assistant District Attorneys, Gretna, Louisiana, for Plaintifi/Appellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, Louisiana, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAYOIS, and ROBERT A. CHAISSON.
   FREDERICKA HOMBERG WICKER, Judge.

|Jn his second appeal, defendant appeals his forty-five year sentence for his conviction for armed robbery in violation of La. R.S. 14:64 and his five-year sentence for the use of a firearm during the commission of armed robbery in violation of La. R.S. 14:64.3, claiming that the sentences imposed are unconstitutionally excessive. For the following reasons, we affirm.

STATEMENT OF THE CASE

On October 30, 2008, a Jefferson Parish Grand Jury issued an indictment charging defendant, Brandell T. Scie, with the second degree murder of Heriberto Eyello Montoya in violation of La. R.S. 14:30.1 (“Count One”); the armed robbery of Peter Pham while armed with a firearm in violation of La. R.S. 14:64 and 14:64.3 (“Count Five”); and the attempted second degree murder of Devon Martin |sm violation of La. R.S. 14:27, 14:30.1 (“Count Six”). On May 19, 2010, a twelve-person jury found defendant guilty as charged as to Counts One (second degree murder) and Five (armed robbery) and not guilty as to Count Six (attempted second degree murder). On May 26, 2010, the trial court sentenced defendant to life imprisonment for his conviction for second degree murder in violation of La. R.S. 14:30.1 and fifty years imprisonment for his conviction for armed robbery in violation of La. R.S. 14:64 and 14:64.3.

Defendant appealed his convictions and sentences. In his first appeal, this Court affirmed defendant’s second degree murder conviction and life sentence. State v. Scie, 11-254 (La.App. 5 Cir. 12/28/11), 83 So.3d 1082. As to the armed robbery conviction, this Court affirmed defendant’s conviction but vacated the fifty-year sentence, finding that the trial judge failed to state which portion, if any, of the fifty-year sentence included the mandatory five-year enhancement sentence under La. R.S. 14:64.3 for use of a firearm during the commission of the offense. Id. On remand from this Court, the trial court re-sentenced defendant to fifty years imprisonment at hard labor, clarifying that he sentenced defendant to forty-five years imprisonment at hard labor for the armed robbery conviction in violation of La. R.S. 14:64 in addition to a consecutive five-year sentence, pursuant to La. R.S. 14:64.3. The trial judge ordered that the sentences run consecutively to the life sentence previously imposed for defendant’s conviction for second degree murder in violation of La. R.S. 14:30.1.

\ .DISCUSSION

In this appeal, defendant challenges the sentences imposed for his armed robbery conviction. Defendant contends that the trial court imposed an unconstitutionally excessive sentence in ordering that his forty-five year sentence for his armed robbery conviction and his five-year firearm enhancement sentence be served consecutively to his life sentence for his second degree murder conviction. The record in this case reflects that defendant did not file a motion to reconsider his sentences, nor did he state specific grounds upon which the motion would have been based. Defendant is, therefore, limited to a bare review of his sentence for unconstitutional excessiveness. State v. Hills, 03-716 (La.App. 5 Cir. 12/9/03), 866 So.2d 278, 286, unit denied, 04-1322 (La.4/22/05), 899 So.2d 569.

In his sole assignment of error, defendant complains only of the consecutive nature of his sentences. In the past, this Court has held that when the consecutive nature of sentences is not specifically raised in the trial court, then the issue is not included in the bare review for unconstitutional excessiveness, and the defendant is precluded from raising the issue on appeal. See State v. Escobar-Rivera, 11-496 (La.App. 5 Cir. 1/24/12), 90 So.3d 1, 8, writ denied, 12-0409 (La.5/25/12), 90 So.3d 411; see also State v. Jacobs, 07-887 (La.App. 5 Cir. 5/24/11), 67 So.3d 535; State v. Williams, 10-265 (La.App. 5 Cir. 11/9/10), 54 So.3d 98, 103.

In this case, defendant failed to file a motion to reconsider his sentences and failed to specifically object to the consecutive nature of his sentences in the trial court. Therefore, he is not entitled to review of the consecutive nature of his sentences in this appeal. See Escobar-Rivera, 90 So.3d at 8.

We accordingly conduct a bare review of defendant’s sentence for unconstitutional excessiveness. The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the | ^imposition of excessive punishment. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Home, 11-204 (La.App. 5 Cir. 2/14/12), 88 So.3d 562, 569, writ denied, 12-0556 (La.6/1/12), 90 So.3d 437 and State v. Wickem, 99-1261 (La.App. 5 Cir. 4/12/00), 759 So.2d 961, 968, unit denied, 00-1371 (La.2/16/01), 785 So.2d 839. The trial judge is afforded broad discretion in sentencing and a reviewing court may not set aside a sentence for excessiveness if the record supports the sentence imposed. La.C.Cr. P. art. 881.4(D); State v. Berry, 08-151 (La.App. 5 Cir. 6/19/08), 989 So.2d 120, 131, writ denied, 08-1660 (La.4/3/09), 6 So.3d 767; and State v. Pearson, 07-332 (La.App. 5 Cir. 12/27/07), 975 So.2d 646, 656.

In reviewing a sentence for ex-cessiveness, an appellate court must consider the crime and the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice. State v. Lobato, 603 So.2d 739, 751 (La.1992). On review, an appellate court does not determine whether another sentence might have been more appropriate, but whether the trial court abused its discretion. State v. Pearson, 07-332 (La.App. 5 Cir. 12/27/07), 975 So.2d at 656, and State v. Horne, 11-204 (La.App. 5 Cir. 2/14/12), 88 So.3d at 569. In considering whether the trial court abused its discretion in sentencing a defendant, a reviewing court should consider the nature of the crime, the nature and background of the offender, and the sentences imposed for similar crimes by other courts. State v. Home, 11-204 (La.App. 5 Cir. 2/14/12), 88 So.3d at 569.

Defendant’s conviction for armed robbery is punishable by imprisonment at hard labor for not less than ten years and not more than ninety-nine years, without | Bbenefit of parole, probation, or suspension of sentence. Additionally, the state sought a firearm enhancement under La. R.S. 14:64.3, which provides for an additional mandatory five-year sentence at hard labor without benefit of parole, probation, or suspension of sentence to be served consecutively to the sentence imposed under the provisions of La. R.S. 14:64.

Accordingly, defendant faced a sentencing range of imprisonment at hard labor for not less than fifteen years and not more than one hundred and four years. Therefore, defendant’s forty-five year sentence and, in addition, the five-year firearm enhancement sentence, fall within the statutory range. The imposition of a sentence, although within the statutory limits, may still violate a defendant’s constitutional right against excessive punishment. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1, 4.

Upon review of the record in this case, we find that defendant’s sentences for his conviction for armed robbery under La. R.S. 14:64 and 14:64.3 are not unconstitutionally excessive. The Louisiana Supreme Court has recognized that the crime of armed robbery “is a pernicious offense” which “creates a great risk of emotional and physical harm to the victim, to witnesses, and, at times, even to the offender.” State v. Sam, 12-459 (La.App. 5 Cir. 11/27/12), 105 So.3d 988, 991-92, writ denied, 12-2766 (La.5/31/13), 118 So.3d 389 (quoting State ex rel. Sullivan v. Maggio, 432 So.2d 854, 856 (La.1983)). Moreover, our jurisprudence has recognized that sentences ranging from 25 to 50 years imprisonment at hard labor for convictions for armed robbery are not excessive. Id.; see also State v. Burton, 12-1321 (La.App. 4 Cir. 5/8/13), 116 So.3d 863; State v. Stipe, 10-877 (La.App. 3 Cir. 3/9/11), 59 So.3d 480.

CONCLUSION

For the reasons provided herein, we find defendant’s sentences, including a forty-five year sentence for his armed robbery conviction in violation of La. R.S. 14:64 and a five-year firearm enhancement sentence pursuant to La. R.S. 14:64.3, are not unconstitutionally excessive. Accordingly, defendant’s sentences are affirmed.

AFFIRMED.

      . Defendant was also charged with the armed robbery of Isaías Lopez while armed with a firearm, in violation of La. R.S. 14:64 and 14:64.3 ("Count Three”). The state dismissed that charge prior to trial. Defendant was not charged on Counts Two and Four. Charged as co-defendants in the bill were Drevon Q. James, William Smith, Elvin Ascension-Cal-cano, Jacoby Dixon, and Bradley Edwards.

      . The facts related to defendant’s convictions are set forth in this Court’s opinion concerning defendant’s first appeal. See State v. Scie, supra.

      . La. R.S. 14:64 provides:
      A. Armed robbery is die taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.
      B. Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than ten years and for not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence.

      . La. R.S. 14:64.3, in pertinent part, provides:
      When the dangerous weapon used in the commission of the crime of attempted armed robbery is a firearm, the offender shall be imprisoned at hard labor for an additional period of five years without benefit of parole, probation, or suspension of sentence. The additional penalty imposed pursuant to this Subsection shall be served consecutively to the sentence imposed under the provisions of R.S. 14:27 and 64.


text:
    STATE of Louisiana v. Joseph SIGGIO, III.
    No. 13-KA-656.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 15, 2014.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, Louisiana, for Plain-tiffyAppellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and ROBERT A. CHAISSON.
   JUDE G. GRAVOIS, Judge.

|2Pefendant, Joseph Siggio, III, has appealed his convictions and sentences for conspiracy to distribute marijuana, second degree kidnapping, and aggravated burglary. For the reasons that follow, we affirm defendant’s convictions and sentences and grant defendant’s appellate counsel’s motion to withdraw as counsel of record for defendant.

PROCEDURAL HISTORY

On December 20, 2007, the Jefferson Parish District Attorney filed a bill of information charging defendant, Joseph Siggio, III, with aggravated burglary, in violation of La. R.S. 14:60 (Count 1); possession of a firearm while committing a crime of violence, in violation of La. R.S. 14:95(E) (Count 2); and unauthorized entry into a place of business, in violation of La. R.S. 14:62.4 (Count 3). Defendant was arraigned on December 28, 2007 and pled not guilty to all charges brought in the bill of information.

|sOn April 30, 2009, a Jefferson Parish grand jury indicted defendant with conspiracy to distribute marijuana, in violation of La. R.S. 40:979 and 40:966(A) (Count 1); aggravated kidnapping, in violation of La. R.S. 14:44 (Count 2); aggravated burglary, in violation of La. R.S. 14:60 (Count 3); possession of a firearm while committing crimes of violence, in violation of La. R.S. 14:95(E) (Count 4); and unauthorized entry into a place of business, in violation of La. R.S. 14:62.4 (Count 5). Defendant was arraigned on May 8, 2009 and pled not guilty to all charges brought in the bill of indictment.

On December 15, 2009, the State amended Count 2 of the bill of indictment to second degree kidnapping, in violation of La. R.S. 14:44.1. On that same date, defendant withdrew his not guilty pleas and pled guilty as charged to: Count 1 of the indictment (conspiracy to distribute marijuana, in violation of La. R.S. 40:979 and 40:966(A)); Count 2 of the indictment (as amended) (second degree kidnapping, in violation of La. R.S. 14:44.1); and Count 3 of the indictment 1^aggravated burglary, in violation of La. R.S. 14:60). After-wards, the trial judge sentenced defendant to imprisonment at hard labor for fifteen years on each of the three counts, to run concurrently, with the first two years of the sentence on Count 2 to be served without the benefit of parole, probation, or suspension of sentence. The State then entered a nolle prosequi as to Counts 4 and 5 of the indictment. Defendant subsequently filed a pro se motion to reconsider sentence that was denied by the trial court on February 1, 2010.

On December 15, 2011, defendant filed an application for post-conviction relief that was denied by the trial court on July 12, 2012. Defendant then filed a writ application with this Court challenging the trial judge’s denial of his application for post-conviction relief. This Court granted defendant’s writ application for the limited purpose of vacating the trial court’s order denying the application for post-conviction relief and transferring the writ application to the trial court for consideration as an application for post-conviction relief seeking an out-of-time appeal. State v. Siggio, 12-683 (La.App. 5 Cir. 9/18/12) (unpublished writ disposition). On January 22, 2013, the trial court granted defendant an out-of-time appeal. On June 19, 2013, the trial court appointed the Louisiana Appellate Project to assist defendant with his appeal.

J{¿ANDERS BRIEF

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La.App. 4 Cir.1990), appointed appellate counsel has filed an Anders brief, asserting that he has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, appointed appellate counsel requests permission to withdraw as counsel of record for defendant.

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw as counsel of record for defendant if he finds defendant’s case to be wholly frivolous after a conscientious examination of the case. The request must be accompanied by “a brief referring to anything in the record that might arguably support the appeal” so as to provide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability” and to assist the reviewing court “in making the critical determination [as to] whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.” McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988). The Louisiana Supreme Court approved this procedure in State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241.

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. State v. Bradford, 95-929 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110. If, after an independent review, the reviewing court determines that there are no non-frivolous issues for appeal, it may grant appellate counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the Emotion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellate counsel. Id.

In the instant case, defendant’s appellate counsel asserts that after a detailed review of the record, he could find no non-frivolous issues to raise on appeal. Counsel also indicates that defendant was informed of the sentences that he would receive, and was sentenced in accordance therewith.

Appellate counsel has filed a motion to withdraw as counsel of record for defendant which states that he mailed defendant a copy of his brief. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed on his behalf and that he had until October 3, 2013 to file a pro se supplemental brief. Defendant has not filed a pro se brief.

The State filed a response to appellate counsel’s brief, noting that the brief shows a complete and thorough recitation of the procedural history of the case, has complied with the procedure set forth in An-ders, and requests that this Court affirm defendant’s convictions and sentences.

Our independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal. The amended bill of indictment to which defendant pled properly charged defendant: it plainly, concisely, and definitely states the essential facts constituting the offenses charged, and cites the statutes that defendant violated. It also sufficiently identifies defendant and the crimes charged. Also, as reflected by the minute entries and commitment, defendant appeared at all crucial stages of the proceedings against him, including his arraignments, guilty pleas, and sentencing.

Although defendant filed omnibus pretrial motions, including a motion to suppress evidence, identification, and statement, the record does not reflect rulings |7by the trial court on these motions. As such, there were no rulings for defendant to preserve for appellate review under State v. Crosby, 338 So.2d 584 (La.1976). Additionally, when a defendant does not object to the trial court’s failure to hear or rule on a pre-trial motion prior to pleading guilty, the motion is considered waived. See State v. Corzo, 04-791 (La.App. 5 Cir. 2/15/05), 896 So.2d 1101, 1102. In the instant case, defendant did not object to the trial court’s failure to hear or rule on his pre-trial motions prior to his guilty pleas. Therefore, the motions are considered waived.

Defendant pled guilty as charged to the amended bill of indictment. If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea. This also precludes review of such defects, either by appeal or on post-conviction relief. State v. Wingerter, 05-697 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 664. Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or on post-conviction relief. State v. McCoil, 05-658 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. In such a case, the defendant has been denied due process of law in that the plea was not given freely and knowingly. State v. Dixon, 449 So.2d 463, 464 (La.1984).

A review of the record reveals no irregularities in defendant’s guilty pleas. The record shows that defendant was aware he was pleading guilty to “attempted or conspiracy to distribute marijuana” (Count 1), second degree kidnapping (Count 2), and aggravated burglary (Count 3). On the waiver of rights form and during the | ^colloquy with the trial judge, defendant was advised of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination, as required by Boykin v. Alabama, supra. On the waiver of rights form, defendant initialed next to each of those rights and signed the form, indicating that he understood he was waiving these rights by pleading guilty. During the colloquy with the trial judge, defendant also indicated that he understood that he was waiving these rights.

On the waiver of rights form and during his guilty plea colloquy, defendant indicated that he had not been forced, coerced, or threatened into entering his guilty pleas. Defendant indicated during the guilty plea colloquy that he understood the possible legal consequences of pleading guilty, and wished to plead guilty at that time. He also indicated that he understood that his guilty pleas could be used to enhance penalties for any future convictions. Defendant was informed during the colloquy and by means of the waiver of rights form of the sentencing ranges he faced for each count and of the actual sentences that would be imposed if his guilty pleas were accepted. After his colloquy with defendant, the trial court accepted defendant’s pleas as knowingly, intelligently, freely, and voluntarily made.

Furthermore, La.C.Cr.P. art. 881.2(A)(2) precludes á defendant from seeking review of his sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea. See State v. Washington, 05-211 (La.App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. Additionally, it is noted that defendant’s sentences fall within the sentencing ranges set forth in the respective statutes and do not present any non-frivolous issues for appeal. Moreover, defendant’s plea agreement was greatly beneficial to him. The State reduced Count 2 from aggravated kidnapping, which carries a mandatory life liiimprisonment sentence, to second degree kidnapping, for which defendant received a 15-year sentence. The State also dismissed Counts 4 and 5 of the indictment.

Defendant’s appellate counsel is correct in asserting that the trial judge did not ascertain a factual basis before accepting defendant’s guilty pleas. However, when a guilty plea is otherwise voluntary, there is no necessity to ascertain a factual basis for that plea unless the accused protests his innocence or for some other reason the trial court is put on notice that there is a need for such an inquiry. State v. Autin, 09-995 (La.App. 5 Cir. 4/27/10), 40 So.3d 193, 196-97, writ denied, 10-1154 (La.12/10/10), 51 So.3d 725. In the instant case, defendant did not protest his innocence, and the trial court was not put on notice for any other reason that there was a need to obtain a factual basis. As such, the trial judge was not required to ascertain a factual basis before accepting defendant’s guilty pleas.

Defendant’s appellate counsel notes that defendant filed an application for post-conviction relief raising claims regarding his competency; he addresses the merits of those claims in his Anders brief. However, the ruling on the application for post-conviction relief was vacated, and defendant’s appellate counsel did not see fit to assign as error, in this appeal, issues regarding competency. Additionally, there is nothing in the record to show that defendant lacked the mental capacity to understand the proceedings against him or to assist in his defense.

Because defendant’s appellate counsel’s brief adequately demonstrates by full discussion and analysis that he has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal, and our independent review of the record supports counsel’s assertion, defendant’s convictions and sentences are hereby affirmed, and appellate counsel’s motion to withdraw as counsel of record for defendant is hereby granted.

\wERROItS PATENT REVIEW

The record was reviewed for errors patent, according to La.C.Cr.P. art. 920 and State v. Oliveaux, 312 So.2d 337 (La.1975). This review did not reveal any errors requiring corrective action.

CONCLUSION

For the foregoing reasons, defendant’s convictions and sentences are hereby affirmed, and appellate counsel’s motion to withdraw as counsel of record for defendant is hereby granted.

AFFIRMED; MOTION TO WITHDRAW GRANTED.

      . Although not specifically mentioned in the record, the bill of indictment filed against defendant apparently superseded the bill of information that had earlier been filed against defendant.

      . La. R.S. 40:979 provides, in pertinent part:
      A. Except as otherwise provided herein, any person who attempts or conspires to commit any offense denounced and/or made unlawful by the provisions of this Part shall, upon conviction, be fined or imprisoned in the same manner as for the offense planned or attempted, but such fine or imprisonment shall not exceed one-half of the longest term of imprisonment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

      .La. R.S. 40:966 provides, in pertinent part:
      A. Manufacture; distribution. Except as authorized by this Part, it shall be unlawful for any person knowingly or intentionally:
      (1) To produce, manufacture, distribute or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance or controlled substance analogue classified in Schedule I;

      B. Penalties for violation of Subsection A of this Section. Any person who violates Subsection A of this Section with respect to:

      (3)A substance classified in Schedule I which is marijuana ... shall upon conviction be sentenced to a term of imprisonment at hard labor for not less than five nor more than thirty years, and pay a fine of not more than fifty thousand dollars.

      . La. R.S. 14:44.1 provides:
      A. Second degree kidnapping is the doing of any of the acts listed in Subsection B wherein the victim is:
      (1) Used as a shield or hostage;
      (2) Used to facilitate the commission of a felony or the flight after an attempt to commit or the commission of a felony;
      (3) Physically injured or sexually abused;
      (4) Imprisoned or kidnapped for seventy-two or more hours, except as provided in R.S. 14:45(A)(4) or (5); or
      (5) Imprisoned or kidnapped when the offender is armed with a dangerous weapon or leads the victim to reasonably believe he is armed with a dangerous weapon.
      B. For purposes of this Section, kidnapping is:
      (1)The forcible seizing and carrying of any person from one place to another; or
      (2) The enticing or persuading of any person to go from one place to another; or
      (3) The imprisoning or forcible secreting of any person.
      C.Whoever commits the crime of second degree kidnapping shall be imprisoned at hard labor for not less than five nor more than forty years. At least two years of the sentence imposed shall be without benefit of parole, probation, or suspension of sentence.

      . La. R.S. 14:60 provides:
      Aggravated burglary is the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with the intent to commit a felony or any theft therein, if the offender,
      (1) Is armed with a dangerous weapon; or
      (2) After entering arms himself with a dangerous weapon; or
      (3) Commits a battery upon any person while in such place, or in entering or leaving such place.
      Whoever commits the crime of aggravated burglary shall be imprisoned at hard labor for not less than one nor more than thirty years.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).