author: ROLAND L. BELSOME, Judge.

text:
    STATE of Louisiana v. Patrick M. CHAPLAIN.
    No. 2012-KA-1012.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 29, 2013.
    Rehearing Denied July 5, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appel-lee/State of Louisiana.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defen-dani/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge ROLAND L. BELSOME, Judge MADELEINE M. LANDRIEU).

      . The Defendant also raises this issue in his assignment of error concerning the excessiveness of his sentence. The Defendant claims that the trial court erred in denying him probation and parole as third offender when the statute does not require denial of benefits. The State concurs that the Defendant was sentenced without benefits but claims that it is unclear what benefits the trial court intended to deprive him of and asks that the matter be remanded to the trial court for clarification.

   ROLAND L. BELSOME, Judge.

hThe Defendant, Patrick Chaplain, was charged by bill of information with possession of cocaine in violation of La. R.S. 40:967(C)(2). At arraignment he entered a plea of not guilty. Subsequently, the Defendant filed several pretrial motions, including two motions to suppress. The trial court denied the motions to suppress and found probable cause to substantiate the charges.

The matter proceeded to trial, but resulted in a hung jury. After a second jury trial, the Defendant was found guilty of possession of cocaine. He filed a motion for appeal and motion for post-verdict acquittal. The trial court denied the motion for post-verdict acquittal and sentenced the Defendant to three years at the Department of Corrections with credit for time served. The trial court also fined him thirty-five dollars ($35.00) in court costs.

_JjThe State filed a multiple offender bill charging the Defendant as a third felony offender. Following a multiple bill hearing, The Defendant was adjudicated a third felony offender pursuant to La. R.S. 15:529.1. The trial court then vacated its previous sentence and sentenced him to five years at hard labor, with credit for time served, and assessed thirty-five dollars ($35.00) in cost costs. The trial court also ordered that the five year sentence be served without benefits.

ERRORS PATENT

A review of the record for errors patent reveals that the trial court’s imposition of a five year sentence “without benefits” is illegal. See, La.C.Cr.P. art. 882; La.C.Cr.P. art. 920. La. R.S. 15:529.1(G) provides that “[a]ny sentence imposed under the provisions of this section [the Habitual Offender Law] shall be at hard labor without the benefit of probation or suspension of sentence.” Accordingly, this Court amends the sentence to allow for the possibility of parole in accordance with the applicable sentencing provisions.

STATEMENT OF FACT

Officer Christian Recile and Detective Jules Martin were working a paid detail for the Lakeview Crime Prevention District in separate vehicles. Officer Recile was in a marked police vehicle, and Detective Martin was in an unmarked police car. At approximately 1:30 a.m., they observed the Defendant walking eastbound on Harrison Avenue and across West End Boulevard. The Defendant was stumbling on the “sidewalk area,” and they suspected that he was either |sintoxicated or ill and decided to investigate. The officers subsequently drove towards him, parked, and exited their vehicles.

When the officers approached the Defendant he immediately became verbally combative and aggressive. The Defendant had his hands in his front pants pockets. The officers advised him several times to take his hands out of his pockets, but he repeatedly refused, and he continued to be combative with the officers. At one point during the officers’ investigation, the Defendant removed his left hand from his pocket to grab hold of a cigarette. Detective Martin grabbed the Defendant’s right arm which was met with resistance. The officers restrained the Defendant with handcuffs at which time he dropped a packet of cocaine. The Defendant was subsequently Mircmdized and arrested for possession of cocaine, public intoxication, and resisting arrest.

DISCUSSION

On appeal the Defendant raises two assignments of error: 1) the trial court erred in denying the motion to suppress the cocaine; and 2) the trial court erred in finding the Defendant a third offender and imposing an excessive sentence.

ASSIGNMENT OF ERROR NUMBER 1

As his first assignment of error, the Defendant contends that the trial court erred in denying his motion to suppress the evidence because the officers lacked reasonable suspicion to stop and/or lacked probable cause to arrest him and thus violated his Fourth Amendment rights against illegal searches and seizures.

On a hearing on a motion to suppress, the State has the burden of proving the admissibility of all evidence seized without a warrant. La.C.Cr.P. art. 703(D). |4The trial court is vested with great discretion when ruling on a motion to suppress. State v. Oliver, 99-1585, p. 4 (La.App. 4 Cir. 9/22/99), 752 So.2d 911, 914. The district court’s findings of fact on a motion to suppress are reviewed under a clearly erroneous standard, and its ultimate determination of Fourth Amendment reasonableness is reviewed de novo. State v. Pham, 2001-2199, p. 3 (La.App. 4 Cir. 1/22/03), 839 So.2d 214, 218; U.S. v. Seals, 987 F.2d 1102, 1106 (5 Cir.1993).

The Fourth Amendment to the United States Constitution and Article 1, § 5 of the Louisiana Constitution protect people against unreasonable searches and seizures. U.S. Const. Amend. IV; La. Const. Art. 1, § 5; State v. Francis, 2010-1149, p. 4 (La.App. 4 Cir. 2/16/11), 60 So.3d 703, 708 writ denied, 2011-0571 (La.10/7/11), 71 So.3d 311. However, it is well established that a police officer may conduct a brief investigatory stop when the officer has a reasonable articulable suspicion of criminal activity. La.C.Cr.P. art. 215.1; Terry v. Ohio, 392 U.S. 1, 8, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195, 1198 (La.1983). Under the Terry standard, as codified in Article 215.1, police officers may stop a person in a public place whom they reasonably suspect is committing, has committed, or is about to commit an offense and demand that the person identify himself and explain his actions. La.C.Cr.P. art. 215.1(A); State v. Fauria, 393 So.2d 688, 690 (La.1981).

In State v. Jenkins, unpub., Case No. 2011-0280, p. 3 (La.App. 4 Cir. 9/14/11), 2011 WL 9160344, the Fourth Circuit found that arresting officers had reason to detain a subject where he appeared “very intoxicated” and when approached by the officers, he attempted to leave but could “barely walk.” Id. The Jenkins Court held that based on that information “the officers possessed [,.¡reasonable suspicion that [the subject] was intoxicated and could be a danger to himself o[r] others, a violation of Section 54-405 of the New Orleans City Code.” Id.

In the present case, similar to Jenkins, the officers had a reason to believe the Defendant was publically intoxicated pursuant to Section 54-405 of the New Orleans Municipal Code. The officers testified that they initially noticed the Defendant because he was stumbling across West End Boulevard and Harrison Avenue late at night. After observing the Defendant stagger, sway side to side, and display an overall lack of balance and coordination, the officers thought the Defendant was either ill or intoxicated. Detective Martin stated they decided to stop the Defendant out of concern that he may stumble into the street and get hit by a car. Detective Martin also testified that West End Boulevard has consistent traffic throughout the night.

The officers further testified that upon approaching the Defendant, it became apparent that he was intoxicated because he became verbally combative toward them and slurred his speech. The officers’ suspicions were further corroborated when the Defendant began interacting with the officers. The officers stated that they detected alcohol on the Defendant’s breath. The Defendant also admitted to the officers that he was in the process of leaving a bar. As such, based on the totality of the circumstances, the officers had reason to believe that the Defendant [ ^was intoxicated and could possibly present a risk of harm to himself and/or others. The officers therefore articulated reasonable suspicion to conduct an investigatory stop.

If an officer stops a person pursuant to La. C.C.P. art. 215.1(A), the officer may conduct a limited pat down frisk for weapons if the officer reasonably believes that he is in danger or that the suspect is armed. La.C.Cr.P. art. 215.1(B); State v. Curtis, 96-1408, pp. 2-3 (La.App. 4 Cir. 10/2/96), 681 So.2d 1287, 1289. The officer need not be absolutely certain that the person is armed, but the officer must be warranted in his belief that his safety or that of others is in danger. State v. Hughes, 99-2554, pp. 6-7 (La.App. 4 Cir. 5/31/00), 765 So.2d 423, 427; State v. Williams, 98-3059, p. 4 (La.App. 4 Cir. 3/3/99), 729 So.2d 142, 144; State v. Smith, 94-1502, p. 5 (La.App. 4 Cir.1/19/95), 649 So.2d 1078, 1082.

In State v. Kelly, 2006-0475 (La.App. 4 Cir. 11/21/06), 946 So.2d 222, a police officer assigned to patrol a public housing project received complaints from several residents of the project, an area well known for illegal drug activity, of drug trafficking in a specific hallway of a particular building. While on foot patrol in the project, the officer saw the Defendant walking out of the hallway indicated by the complaining residents while looking down at an object in his right hand. Id. at p. 2, 946 So.2d at 224. When the Defendant saw the uniformed officer, he immediately closed his hand, put his hand in his pocket and moved in a nervous manner. The officer initiated an investigatory stop of the Defendant and, for safety reasons, asked him to remove his hand from his pocket. The Defendant gave his name but continued to move away from the officer with his hand in his pocket. The officer moved to force the Defendant to remove his hand from his pocket. At that point, the Defendant opened his hand to reveal a syringe and a piece of foil |7containing heroin. The officer then placed the Defendant under arrest. Id. at pp. 2-3, 946 So.2d at 224.

On appeal, this Court determined that the police officer was justified in asking the Defendant to remove his hands from his pockets, and in taking action to insure the Defendant complied with that request, since the officer was acting to insure his own safety. Id. at p. 5, 946 So.2d at 225-226.

Here, like in Kelly, the officers acted reasonably in removing the Defendant’s hand from his pants pocket. The record provides that as soon as the officers approached the Defendant, he thrust both his hands in his pockets and immediately became belligerent and verbally aggressive towards the officers. The officers repeatedly ordered the Defendant to remove his hands from his pockets for officer safety, but he refused to comply and continued to make combative remarks to the officers. Officer Recile stated that it was normal police procedure to ask a subject to remove his hands from his pockets for officer safety. Additionally, both Officer Recile and Detective Martin testified that in their experience when a subject refuses to comply with such a request, it increases the suspicion that the subject is hiding something.

Although both officers stated that they never actually observed a weapon or a bulge other than the Defendant’s hands, Detective Martin testified that he suspected the Defendant was armed because of the manner in which his hands were tucked into his pockets and because of his continued refusal to remove his hands. Detective Martin explained that it would have been possible for the Defendant to hide a small caliber weapon or knife in his pockets. Although he | ^removed one hand from his pocket to grab hold of a cigarette, one hand remained concealed. Considering the Defendant’s defiant attitude and his continuous refusal to remove his hand from his pocket, the officers had reasonable basis to believe that the Defendant was hiding something that could pose a threat to their safety. Accordingly, Detective Martin was justified in removing the Defendant’s hand from his pocket.

Additionally, search incident to arrest is a long recognized exception to the warrant requirement. State v. Parker, 2006-0053, p. 3 (La.6/16/06), 931 So.2d 353, 355. When a law enforcement officer has probable cause to believe that a person has committed a crime, he may place that person under arrest. Incident to that lawful arrest, the officer may legally conduct a full search of the arrestee and the area within his immediate control for weapons and for evidence of a crime. State v. Robertson, 2002-0156, p. 7 (La.App. 4 Cir. 2/12/03), 840 So.2d 631, 636. Probable cause to arrest exists when the facts and circumstances known to the arresting officer and of which he has reasonably trustworthy information are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. State v. Wilson, 467 So.2d 503, 515 (La.1985); State v. Elliot, 407 So.2d 659, 661 (La.1981).

In State v. Williams, 2010-1023 (La.App. 4 Cir. 3/16/11), 62 So.3d 244 writ denied, 2011-0799 (La.10/14/11), 74 So.3d 217, the police officer noticed that the Defendant had trouble standing and thought that he was sick. After approaching | athe Defendant the officer realized that the he was “more intoxicated than sick.” Id. at p. 2, 62 So.3d at 245. The officer testified that the Defendant had bloodshot eyes, smelled of alcohol, was uncoordinated with his bicycle, and slurred his words. The officer then placed the Defendant under arrest for public intoxication. The officer testified he arrested the Defendant, instead of issuing a citation, because he believed that the Defendant could pose a threat to himself and others. A search incident to that arrest revealed crack cocaine in the Defendant’s sock. The Defendant moved to suppress the evidence claiming his arrest was unlawful. The trial court denied the motion to suppress.

On appeal, this Court affirmed the trial court ruling, finding that the officer had probable cause for the arrest. Id. at p. 9-11, 62 So.3d at 249. Prior to reaching its conclusion, the Williams Court examined earlier jurisprudence discussing arrests for public intoxication. The Fourth Circuit also emphasized that in reviewing a trial court’s ruling on a motion to suppress, an appellate court must evaluate whether the arresting officer acted in good faith and has articulated sufficient facts to establish probable cause to arrest; and in doing so, the reviewing court must give deference to the trial court’s factual findings.

In the instant case, the record sufficiently establishes that the officers were acting in good faith in arresting the Defendant. Similar to Williams, the officers initially approached the Defendant because they believed he was ill or intoxicated. Both officers testified and communicated their observations and concerns.

Thus, considering the vast discretion the trial court has in ruling on a motion to suppress and the testimony given by the officers who were present at the time of incident, there are sufficient articulable facts to support a finding of probable cause for arresting the Defendant for public intoxication.

11 ASSIGNMENT OF ERROR NUMBER 2

In his second assignment of error, the Defendant argues that the trial court erred in adjudicating him a triple offender and imposing an excessive sentence.

Insufficient Evidence — Triple Offender

The Defendant claims that the State failed to meet its burden of proving he was a third felony offender because it failed to show that his guilty pleas in the predicate convictions were knowingly and voluntarily entered into.

To obtain a multiple offender conviction, the State is required to establish both the prior felony conviction and that the Defendant is the same person convicted of that felony. State v. Neville, 96-0137, p. 7 (La.App. 4 Cir. 5/21/97), 695 So.2d 534, 538-539; State v. Payton, 2000-2899, p. 6 (La.3/15/02), 810 So.2d 1127, 1130-1131. There are various methods available to prove that the Defendant is the same person convicted of the prior felony offense, such as testimony from witnesses, expert opinion regarding the fingerprints of the Defendant when compared with those in the prior record, photographs in the duly authenticated record, or evidence of identical driver’s license number, sex, race and date of birth. State v. Henry, 96-1280, p. 7 (La.App. 4 Cir. 3/11/98), 709 So.2d 322, 326; State v. Wolfe, 99-0389, pp. 4-5 (La.App. 4 Cir. 4/19/00), 761 So.2d 596, 599-600.

In Louisiana, the Supreme Court adopted a scheme for burdens of proof in habitual offender proceedings in State v. Shelton, 621 So.2d 769 (La.1993). State v. Francois, 2002-2056, p. 6 (La.App. 4 Cir. 9/14/04), 884 So.2d 658, 663. That scheme has been summarized as follows:

If the defendant denies the multiple offender allegations then the burden is on the State to prove (1) the existence of a prior guilty plea, and (2) that the defendant was | ^represented by counsel when the plea was taken. Once the State proves those two things, the burden then shifts to the defendant to produce affirmative evidence showing (1) an infringement of his rights, or (2) a procedural irregularity in the taking of the plea. Only if the defendant meets that burden of proof does the burden shift back to the State to prove the constitutionality of the guilty plea. In doing so, the State must produce either a ‘‘perfect” transcript of the Boykin colloquy between the defendant and the judge or any combination of (1) a guilty plea form, (2) a minute entry, or (3) an “imperfect” transcript. If anything less than a “perfect” transcript is presented, the trial court must weigh the evidence submitted by the defendant and the State to determine whether the State met its burden of proof that the defendant’s prior guilty plea was informed and voluntary.

Francois, 2002-2056, p. 6, 884 So.2d at 663 (citing Shelton, 621 So.2d at 779-780 (La.1993); State v. Winfrey, 97-427, p. 30 (La.App. 5 Cir 10/28/97), 703 So.2d 63, 80; and quoting State v. Conrad, 94-232, pp. 3-4 (La.App. 5 Cir. 11/16/94), 646 So.2d 1062, 1064).

As noted above, the State charged The Defendant as a habitual offender based on guilty pleas he entered into in 1998 for simple burglary and 2004 for theft of goods between $100 and $500.

To support the predicate conviction of theft of goods the State offered: the bill of information charging the Defendant on February 20, 2002 .in Jefferson Parish in Case No. 02-0878; the finger print sheet; a minute entry reflecting that the Defendant entered a plea of guilty on January 7, 2004; and the guilty plea form executed by the Defendant on January 7, 2004. Both the minute entry and the plea form provide that the Defendant was represented by counsel and that the Defendant was apprised of his rights to a jury trial, against self-incrimination, and to confront his accusers.

|1gIn support of the simple burglary conviction the State introduced the following evidence: a guilty plea/waiver of rights form executed by the Defendant on May 20, 1998 in Jefferson Parish in Case No. 95-06171; a minute entry demonstrating the Defendant pled guilty on May 19,1998; and the bill of information charging the Defendant with simple burglary on November 7, 1995. Although the plea form indicates the Defendant was advised of his Boykin rights and represented by an attorney, the May 19, 1998 minute entry does not detail the colloquy.

The State also called Officer Joseph Pollard, an expert in taking and analyzing fingerprints. Officer Pollard testified that the finger prints contained in the arrest registry relating to both his simple burglary conviction (Case No. 95-0617) and theft of goods conviction (Case No. 02-0878), matched the finger prints he took of the Defendant earlier that day.

The Defendant further argues that because the minute entry in Case No. 95-06171 does not specify the rights the Defendant waived or that he knowingly and intelligently waived those rights, the State failed to prove his conviction plea for simple burglary and did not meet its burden in demonstrating that the Defendant is a triple offender.

The State contends, however, the Defendant is prohibited from challenging a prior conviction because he did not file a written response to the multiple offender bill or object to a constitutional basis at the hearing pursuant to La. R.S. 15:529.1(D)(1)(b).

| isThe State is correct that the Defendant did not file a written response to the multiple bill of information charging him as third felony offender. However, the Defendant did object to the sufficiency of the State’s evidence relating to the 1998 guilty plea of simple burglary. The Defendant argued at the hearing that the State did not prove beyond a reasonable doubt that he was the person that-pled guilty in 1998 to simple burglary because the fingerprint card, which was photocopied on the back of the bill of information, was unsigned and undated. However, that issue has not been raised on appeal.

At the hearing on the multiple bill, the Defendant did not make the argument that the 1998 minute entry did not sufficiently demonstrate a voluntary waiver of rights. As such, the Defendant cannot raise this issue now on appeal. See, State v. Taylor, 2012-0114, p. 7 (La.App. 4 Cir. 11/28/12), 104 So.3d 679, 684 (where an issue is not presented in writing or orally during multiple offender proceedings, it cannot be raised on appeal).

| uExcessive Sentence

The Louisiana Supreme Court, in State v. Smith, 2001-2574, pp. 6-7 (La.1/14/03), 839 So.2d 1, 4, set forth the standard for evaluating a claim of excessive sentence:

Louisiana Constitution of 1974, art. I, § 20 provides, in pertinent part, that “[n]o law shall subject any person to ... excessive ... punishment.” Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. A sentence is unconstitutionally excessive when it imposes punishment grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering. A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. On appellate review of a sentence, the relevant question is not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion. (Emphasis added) (citations omitted).

For legal sentences imposed within the range provided by the legislature, a trial court abuses its discretion only when it contravenes the prohibition of excessive punishment in La. Const, art. 1, § 20, i.e., when it imposes “punishment disproportionate to the offense.” State v. Soraparu, 97-1027 (La.10/13/97), 703 So.2d 608 (quoting State v. Sepulvado, 367 So.2d 762, 767 (La.1979)).

Under the Habitual Offender Law, if a person is convicted of a felony, then subsequently commits another felony, the punishment for the subsequent conviction may be enhanced. See, La. R.S. 15:529.1. The precise ranges of | ^possible penalties are set out by the statute and depend upon the nature of the offense and the number of previous convictions.

Because the Defendant’s third felony offense is possession of cocaine and punishable by “imprisonment with or without hard labor for not more than five years,” the Defendant was exposed to a minimum sentence of forty months and a maximum sentence of ten years. See, La. R.S. 40:967(0(2); La. R.S. 15:529.1(A)(3)(a). The five year sentence the Defendant received was thus within the statutory range.

Nevertheless, the Defendant claims that the sentence is unconstitutionally excessive considering the fact that he is fifty-six years old with no prior incarcerations; a small amount of cocaine was found on him; and his prior convictions (simple burglary in 1998 and theft of goods in 2004) were non-violent and separated by several years. He also noted that he is not a danger to the public, and a substance abuse treatment would be a more effective than incarceration.

The standard for review of a claim that a mandatory sentence imposed under La. R.S. 15:529.1 is excessive is well-settled. Recently, this Court in State v. Landfair, 2010-1698, p. 17-18 (La.App. 4 Cir. 7/20/11), 70 So.3d 1061, 1072, reviewed the nature of the habitual felony offender sentencing scheme and the standard for departing from it:

Even though a sentence under the Habitual Offender Law is the minimum provided by that statute, the sentence may still be unconstitutionally excessive if it makes no measurable contribution to acceptable goals of | ^punishment, or is nothing more than the purposeful imposition of pain and suffering and is grossly out of proportion to the severity of the crime. However, the entire Habitual Offender Law has been held constitutional, and, thus, the 'minimum sentences it imposes upon habitual offenders are also presumed to be constitutional. There must be substantial evidence to rebut the presumption of constitutionality. To rebut the presumption that the mandatory minimum sentence is constitutional, the Defendant must show by clear and convincing evidence that he is exceptional, which in this context means that because of unusual circumstances he 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. “Departures downward from the minimum sentence under the Habitual Offender Law should occur only in rare situations.” (citations omitted).

Id. (quoting State v. Phillips, 2010-0582, pp. 6-7 (La.App. 4 Cir. 2/17/11), 61 So.3d 130, 134-135 and State v. Rice, 2001-0215, p. 5-6 (La.App. 4 Cir. 1/16/02), 807 So.2d 350, 354).

In the present case, the Defendant did not urge a downward deviation at the time of sentencing, nor did he provide the trial with any reason why the five year sentence is excessive as applied to him. In his motion to reconsider sentence, the Defendant simply stated that the sentencing guidelines set forth in La. C.C.P. art. 894.1 militate in his favor.

The record shows an adequate factual basis for the sentence imposed. At the original sentencing hearing, although the trial court did not specify factors it took into account in imposing three year sentence, the trial court did state that it considered the guidelines set forth in La. C.C.P. art. 894.1. Also, in sentencing the Defendant as a multiple offender, the trial court acknowledged the Defendant’s criminal history (his prior convictions for simple burglary and theft as well as his conviction for possession of cocaine) prior to imposing the five year sentence.

[17As noted above, a trial judge has vast discretion to sentence within statutory limits, and under the standard just recently articulated by the Louisiana Supreme Court in State v. Colvin, a trial court “abuses its discretion only when it ... imposes ‘punishment disproportionate to the offense.’” 2011-1040, p. 7 (La.3/13/12), 85 So.3d 663, 667-668. In making that determination, the court of appeal must consider “whether the penalty is so disproportionate to the crime committed as to shock our sense of justice.” Id. Further, on appellate review of a sentence, the relevant question is not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion. Smith, 2001-2574, pp. 6-7, 839 So.2d at 4.

Here, because the five year sentence is within the range statutorily provided by La. R.S. 40:967(0(2) for possession of cocaine and La. R.S. 15:529.1(A)(3)(a) for a triple offender, it is not shocking to the sense of justice. In fact, the Fourth Circuit has recently upheld similar sentences for multiple offenders who were convicted of possession of cocaine. Further, the Defendant has failed to show by clear and convincing evidence that he is “exceptional” such that the trial court is required to deviate from the sentencing standards set forth in La. R.S. 15:529.1. As such, we cannot find that a five year sentence for triple offender is not unconstitutionally excessive.

1 ^CONCLUSION

For the reasons discussed, we affirm Patrick Chaplain’s conviction and amend his sentence to five years at hard labor without the benefit of probation or suspension of sentence.

CONVICTION AFFIRMED; SENTENCE AFFIRMED AS AMENDED

      . La. R.S. 40:967(C)(2) provides:
      C. Possession. It is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance as classified in Schedule II unless such substance was obtained directly or pursuant to a valid prescription or order from a practitioner, as provided in R.S. 40:978 while acting in the course of his professional practice, or except as otherwise authorized by this Part.

      (2) Any person who violates this Subsection as to any other controlled dangerous substance shall be imprisoned with or without hard labor for not more than five years and, in addition, may be sentenced to pay a fine of not more than five thousand dollars.

      . The record provides that the Defendant filed a motion to suppress the evidence and a motion to suppress a statement.

        . See, State v. Green, 93-1432, p. 6 (La.App. 4 Cir. 4/17/96), 673 So.2d 262, 266 (amending the Defendant's sentence to delete the requirement that sentence be served without benefit of parole, probation, or suspension of sentence as an error patent)

      . Prior to being taken into custody the Defendant was treated for cuts he sustained during his arrest.

      . The ordinance provides:
      It is unlawful for any person to appear in a public place manifestly under the influence of alcohol, narcotics or other drugs, not therapeutically administered, to the degree that he may endanger himself or other persons or property.

      . See also, State v. Gray, 99-47 (La.App. 5 Cir. 6/1/99), 738 So.2d 668 (finding that after stopping the Defendant and three other juveniles for a suspected curfew violation, the officer was justified in handcuffing the Defendant to perform a weapons frisk where the Defendant refused to comply with repeated requests by the officer to approach his vehicle and remove his hands from his pocket).

      . See also, State v. Rabon, 2000-935, p. 1 (La.6/30/00), 764 So.2d 944, 945 (noting that an otherwise inexplicable failure to remove a hand from a pocket may give rise to reasonable suspicion for a weapons search); State v. Boyer, 2007-0476, p. 21 (La.10/16/07), 967 So.2d 458, 471 ("Officer Guillotf] was trained for the purpose of officer safety, to order persons in these situations to remove their hands from their pockets.... the Defendant’s hand was not visible and a reasonably prudent person would be warranted in believing that his safety or that of others was in danger”).

      . La. R.S. 15:529.1(D) provides in relevant part:
      D. (l)(a) If, at any time, either after conviction or sentence, it shall appear that a person convicted of a felony has previously been convicted of a felony under the laws of this state, or has been convicted under the laws of any other state, or of the United States, or of any foreign government or country, of a crime, which, if committed in this state would be a felony, the district attorney of the parish in which subsequent conviction was had may file an information accusing the person of a previous conviction. Whereupon the court in which the subsequent conviction was had shall cause the person, whether confined in prison or otherwise, to be brought before it and shall inform him of the allegation contained in the information and of his right to be tried as to the truth thereof according to law and shall require the offender to say whether the allegations are true. If he [the defendant] denies the allegation of the information or refuses to answer or remains silent, his plea or the fact of his silence shall be entered on the record and he shall be given fifteen days to file particular objections to the information, as provided in Subpara-graph (b) of this Paragraph. The judge shall fix a day to inquire whether the offender has been convicted of a prior felony or felonies as set forth in the information, (b) Except as otherwise provided in this Subsection, the district attorney shall have the burden of proof beyond a reasonable doubt on any issue of fact. The presumption of regularity of judgment shall be sufficient to meet the original burden of proof. If the person claims that any conviction alleged is invalid, he shall file a written response to the information. A copy of the response shall be served upon the prosecutor. A person claiming that a conviction alleged in the information was obtained in violation of the constitutions of Louisiana or of the United States shall set forth his claim, and the factual basis therefor, with particularity in his response to the information. The person shall have the burden of proof, by a preponderance of the evidence, on any issue of fact raised by the response. Any challenge to a previous conviction which is not made before sentence is imposed may not thereafter be raised to attack the sentence.

      . La. R.S. 15:529.1 states, in relevant part:
      A. Any person who, after having been convicted within this state of a felony, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government of a crime which, if committed in this state would be a felony, thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:

      (3) If the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life then:
      (a) The person shall be sentenced to imprisonment for a determinate term not less than two-thirds of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction.

      . The Defendant also argued the trial court’s sentence was excessive because it denies him parole eligibility. This argument has merit and was addressed earlier as a patent error.

      . See, State v. Kelly, 2008-0200, p. 5 (La.App. 4 Cir. 6/4/08), 986 So.2d 880, 883 (finding that an eight year sentence for second offender was not unconstitutionally excessive); State v. Robertson, 2002-0156, p. 15 (La.App. 4 Cir. 2/12/03), 840 So.2d 631, 640 (finding that the trial court did not abuse its discretion in sentencing the Defendant as second offender to seven years, where the Defendant faced a sentencing range between thirty months and ten years).


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    Debra Gail Theriot Aucoin FLEMMING v. James Bailey FLEMMING.
    No. 13-22.
    Court of Appeal of Louisiana, Third Circuit.
    June 5, 2013.

      Natalie B. Broussard, Attorney at Law, New Iberia, LA, for Plaintiff/Appellant, Debra Gail Theriot Aucoin Flemming.
    Elizabeth Anne Long, Attorney at Law, Lafayette, LA, for Defendant/Appellee, James Bailey Flemming.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and BILLY HOWARD EZELL, Judges.
   PETERS, J.

I,Debra Gail Theriot Aucoin Flemming appeals a trial court judgment nullifying a previous judgment of monthly spousal support rendered against her former husband, James Bailey Flemming. For the follow reasons, we reverse the trial court judgment and render judgment reinstating the previous judgment in its entirety, except as that judgment was modified by a subsequent judgment rendered on June 24, 2011.

DISCUSSION OF THE RECORD

Debra Gail Theriot Flemming (Debra) and James Bailey Flemming (James) were married on December 31, 1996; physically separated for the last time on October 6, 1998; and divorced by judicial decree on February 11, 2000. James was personally served with the divorce petition, retained counsel to represent his interests, and almost immediately moved to the state of Illinois. Although Debra filed the initial petition for divorce on December 9, 1998, the divorce decree was rendered on James’ motion based on La.Code Civ.P. art. 102.

Debra’s original petition included, among other things, a request for both temporary and permanent spousal support, and, by a judgment executed April 6,1999, the trial court awarded her temporary spousal support in the amount of $800.00 per month. On February 3, 2000, or eight days before the trial court rendered judgment granting the divorce, Debra filed a rule to show cause why she should not be awarded a judgment of final spousal support. The trial court set this rule for hearing on March 23, 2000, and James’ counsel of record was served with the pleading and notice of the hearing date.

|;>On February 15, 2000, James, who was still living in Illinois at the time, wrote to his counsel of record wherein he stated, “AS OF TODAY, I AM FIRING YOU AS MY ATTORNEY AND NO LONGER NEED YOUR SERVICES.” The record does not contain evidence of when James forwarded this letter to his attorney, but it was obviously not the same day as it was written because the attorney continued to represent James in the litigation. On February 24, 2000, he filed a motion on behalf of James seeking a continuance of the March 23, 2000 hearing. The motion stated that James would be working in Valdez, Alaska, on that date and would not return to Louisiana until March 25, 2000. Based on the content of this motion, and without a hearing, the trial court granted the motion for continuance and rescheduled the hearing for April 25, 2000.

Before this hearing could be held, the trial court was confronted with motions from both litigants. The court minutes of April 25, 2000, reflect that when the matter was called in open court at 10:00 a.m., an attorney appearing on behalf of James’ counsel orally requested a continuance of the pending matter. The minutes do not state the basis for the motion, but establish that the trial court granted the motion and continued the matter without date. The minutes also fail to indicate whether the trial court was informed that James had terminated his attorney’s services.

However, at 2:00 p.m. that same day, James’ counsel filed a motion to withdraw as counsel based on James’ February 15, 2000 correspondence, a copy of which was attached to his motion. The trial court executed an order that same afternoon, allowing the attorney to withdraw as counsel for James. At some point on April 25, 2000, the trial court granted a another written motion for continuance |afiled the previous day by Debra’s counsel and rescheduled the hearing on the rule for June 22, 2000.

This matter is currently before us because notice of the June 22, 2000 hearing date was not served on James. Instead, service was effected on his former counsel. When the matter came for hearing on June 22, 2000, James did not appear and the matter proceeded to trial without him. At the end of the hearing, the trial court rendered judgment wherein, among other things, it awarded Debra permanent spousal support in the amount of $1,100.00 per month.

The record remained relatively dormant for a number of years after 2000, and the next entries in the record before us relate to Debra’s 2009 attempts to reinscribe and/or revive the monetary sums awarded to her at the June 22, 2000 hearing. The record before us suggests that Debra attempted long-arm service on James to notify him of these filings, but nothing in the record establishes that he received notice of this activity.

In 2009, James became aware that a judgment against him existed when funds from his salary were withheld by his employer pursuant to an income assignment order based on the judgment arising from the June 22, 2000 support obligation hearing. Two years later, on April 28, 2011, James was personally served with a March 3, 2011 rule to show cause filed by Debra. In that rule, Debra sought to have James held in contempt for failure to pay the permanent spousal-support judgment arising from the June 22, 2000 hearing, and further sought a judgment for the past-due spousal support and an award of attorney fees. The trial court set this hearing for May 18, 2011, before a hearing officer.

[ 4James did not personally appear at the May 18, 2011 hearing, but was represented by his new counsel at the proceeding. The record before us contains the hearing officer recommendations arising from those proceedings, and on June 15, 2011, the trial court executed a judgment corresponding to those recommendations. This judgment was in favor of Debra and against James, awarding Debra $130,900.00 as back-due spousal support owed under the judgment arising from the June 22, 2000 hearing and $1,000.00 as attorney fees for successfully prosecuting the deficiency action; finding James in contempt of court for failing to comply with the judgment; and sentencing him to serve ninety days in the parish jail for contempt of court. The trial court ordered that the parish jail sentence be suspended provided James serve any sentence previously imposed for a prior contempt of court judgment; resume paying spousal support in accordance with the judgment arising from the June 22, 2000 hearing; begin paying an additional $1,000.00 per month to address the arrears judgment; pay Debra $1,000.00 in attorney fees within ninety days; and pay all costs of court within thirty days.

On June 10, 2011, or after the hearing officer proceeding and five days before the trial court rendered the June 15, 2011 judgment, James filed a rule to show cause why the final periodic spousal support award should not be terminated. This rule came before the trial court on June 24, 2011, and resulted in a consent judgment executed that same day. The consent judgment provided “that any and all future spousal support payments are hereby terminated effective June 10, 2011[.]” The judgment further provided that “any jail sentence currently pending against [James] is suspended” so long as he complies with all court orders and keeps his former wife “advised of his current employment.” Finally, the consent judgment provided that the “[pjresent Income Assignment in the amount of |s$2100.00 remains in effect until all judgments and court orders are satisfied.” Both James and Debra, as well as their attorneys, signed the judgment below the notation “APPROVED AS TO FORM AND CONTENT.”

However, this judgment did not end the litigation. Two months and one day later, on August 11, 2011, James filed a rule to set aside the judgment arising from the June 22, 2000 hearing, asserting that the judgment was a nullity. He based his motion on the lack of service to him of notice of the June 22, 2000 hearing, and his assertion that he received no notice of the hearing from any other source. The trial court heard this rule on November 18, 2011.

At the hearing on this rule, James testified that he was residing in Iberia Parish, Louisiana, when Debra filed for divorce and that he retained an attorney to assist him in the litigation; responded to the petition through the attorney; and immediately moved to Illinois and became a resident of that state. He further acknowledged that he was ordered to pay temporary spousal support during the pen-dency of the divorce proceedings and that his paycheck had been made the subject of an income assignment and order of support. According to James, he terminated the services of his attorney immediately after the trial court rendered the judgment of divorce on February 11, 2000. Although he denied ever being aware of Debra’s February 3, 2000 filing seeking permanent spousal support, he acknowledged that he was represented by his counsel of record at that time.

James further testified that after terminating his attorney’s services, he never provided anyone in Louisiana with an address where he could be contacted and that he moved to the State of Washington in 2003. His next contact with the Louisiana proceeding occurred in May of 2009, when his employer began withholding amounts from his paycheck pursuant to the income assignment order. Not only did he not take any action to stop the income assignment, but his |fiemployer was still withholding part of his pay check at the time of the November 18, 2011 hearing. In fact, he did not begin searching for an attorney to assist him in this matter until 2011.

The trial court took the matter under advisement, and on January 10, 2012, rendered reasons for judgment granting James’ request to have the June 22, 2000 judgment nullified. On March 5, 2012, the trial court executed a written judgment nullifying the judgment and vacating the income assignment then in force. Debra responded by filing a motion for new trial, which was heard on April 27, 2012. After considering the arguments of counsel at that hearing, the trial court rendered a judgment setting aside that portion of the March 5, 2012 judgment vacating the income assignment order and reinstated the order pending further orders of the court. The trial court took the new trial issue under advisement and, in written reasons for judgment dated June 9, 2012, and filed on June 13, 2012, the trial court rejected Debra’s motion for new trial. The trial court executed a written judgment to this effect on June 25, 2012, and Debra timely perfected this appeal.

In her appeal, Debra asserts two assignments of error:

1) The trial court committed manifest error in failing to recognize that JAMES FLEMMING had adequate notice and [in] vacating the Judgment under LA C.C.P. Art.2002.
2) The trial court committed manifest error in rejecting the application of voluntary acquiescence.

While we reject Debra’s initial argument that notice was adequate for the June 22, 2000 hearing, we find merit in her second assignment of error.

OPINION

The trial court declared the judgment arising from the June 22, 2000 hearing null due to the lack of service on James of notice of the hearing as required by law, and because James’ subsequent actions did not constitute a voluntarily [ 7acquiescence in the judgment. On appeal, Debra does not dispute the factual findings of the trial court. Rather, she asserts that the trial court reached incorrect legal conclusions in applying the facts to this case. Because the issues are legal and not factual, the standard of review is de novo. Hooper v. Hooper, 06-825 (La.App. 3 Cir. 11/2/06), 941 So.2d 726, writ denied, 06-2823 (La.1/26/07), 948 So.2d 177.

As stated in La.Code Civ.P. art. 6(A)(1), the “legal power and authority of a court to render a personal judgment against a party to an action or proceeding.... requires ... [t]he service of process on the defendant, or on his agent for service of process, or the express waiver of citation and service under Article 1201.” However, La.Code Civ.P. art. 1201(A) (emphasis added), further provides that “[c]itation and service thereof are essential in all civil actions except summary and executory proceedings, divorce actions under Civil Code Article 102, and proceedings under the Children’s Code.” A summary proceeding includes “[t]he original granting of, subsequent change in, or termination of ... support for a spouse[.]” La.Code Civ.P. art. 2592(8). With regard to service requirements in a summary proceeding, La.Code Civ.P. art. 2594 provides:

Citation and service thereof are not necessary in a summary proceeding. A copy of the contradictory motion, rule to show cause, or other pleading filed by the plaintiff in the proceeding, and of any order of court assigning the date and hour of the trial thereof, shall be served on the defendant.

Thus, all that was required to satisfy service of process on James with regard to the June 22, 2000 hearing was to have him served with a copy of the rule to show cause and the order of the trial court assigning the matter for hearing at the appropriate time on June 22, 2000. However, this did not happen as the service was made on his prior counsel of record, and James received no notice of the date and time of the hearing from any other source. In fact, he only became aware that | Ra judgment had been rendered against him in May of 2009 when his paycheck became subject to an income assignment order.

This lack of adequate notice implicates a procedural due process concern. Each individual is afforded an opportunity to be heard in addition to the notice of a pending action. Lassere v. State, Dept. for Health & Hospitals, 00-306 (La.App. 1 Cir. 3/28/01), 808 So.2d 513. Adequate notice of the hearing, therefore, is fundamental. Id. Because adequate notice is so fundamental, the lack thereof gives rise to a nullity action. Louisiana Code of Civil Procedure Article 2002(A)(2) (emphasis added) provides, in pertinent part, that “[a] final judgment shall be annulled if it is rendered ... [ajgainst a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction!].]” Thus, considering only the absence of compliance with La.Code Civ.P. art. 2594, with respect to the June 22, 2000 hearing, it would seem that James was entitled to a nullity judgment.

However, as pointed out by Debra on appeal, La.Code Civ.P. art.2003 provides, in pertinent part, that “[a] defendant who voluntarily acquiesced in the judgment, or who was present at the time of its execution and did not attempt to enjoin its enforcement, may not annul the judgment on any of the grounds enumerated in Article 2002.” Debra argues that James’ actions subsequent to being made aware of the judgment at issue constitutes acquiescence, and he can no longer complain of lack of notice.

Debra first argues that James’ failure to take steps to set aside the income assignment order in 2009 constituted a voluntary acquiescence in the judgment arising from the June 22, 2000 hearing. We do not find that such inaction is sufficient to satisfy the requirements of voluntary acquiescence as mere failure to pact does not necessarily qualify as acquiescence pursuant to La.Code Civ.P. art.2003. See Donnelly v. Quatroy, 03-1145 (La.App. 5 Cir. 1/27/04), 866 So.2d 917.

Next, Debra argues that James’ participation in all of the proceedings after being personally served with her March 3, 2011 rule to show cause constituted voluntary acquiescence in the judgment. We find merit in this argument although we do note that James’ initial participation at the hearing officer proceeding in the litigation on May 18, 2011, did not by itself, constitute a voluntary acquiescence. That initial appearance constituted more of a response to the trial court’s order that he respond to the allegations of Debra’s rule to show cause than a voluntary acquiescence. See Custom Acceptance Corp. v. Paul, 376 So.2d 510 (La.App. 4 Cir.1979). Still, the record before us contains no evidence that James objected to the trial court’s authority to consider the issue of past-due spousal support during the hearing officer proceeding or when the trial court rendered the June 15, 2011 judgment based on the hearing officer’s recommendation.

We find that it was James’ continued participation in the litigation after the May 18, 2011 appearance before the hearing officer, combined with his initial response at that hearing, that constitutes voluntary acquiescence. Not only did James not initially contest the validity of the judgment arising from the June 22, 2000 hearing when he first responded to Debra’s March 3, 2011 filing, but his subsequent response on June 10, 2011, was a rule to show cause seeking to have the judgment terminated, not annulled. He then actively pursued this remedy and received relief by virtue of the compromise judgment rendered on June 24, 2011.

In the June 24, 2011 compromise judgment, James received relief from any future spousal support obligations previously imposed on him, as well as the incarceration sentences imposed on him for contempt of court. In exchange for those concessions from Debra, he agreed that the he would comply with the other | incourt orders in effect, keep his former wife advised of any changes in employment, and recognize that the $2,100.00 per month income assignment would remain in full force and effect until the judgment for past-due support was fully satisfied. Nothing in this judgment suggests that the issue of the nullity of the judgment arising from the June 22, 2000 hearing, was reserved as an issue for future consideration, and it is significant to the issue before us that James personally endorsed and accepted both the form and content of the June 24, 2011 judgment by his signature. Because neither litigant timely appealed the June 24, 2011 judgment, it was a final judgment even before James filed his August 11, 2011 nullity action. La.Code Civ.P. arts. 3942 and 3943.

We find that James’ participation in the underlying proceedings between April 23, 2011, when he received personal service of Debra’s March 3, 2011 rule, and the finality of the June 24, 2011 consent judgment constituted voluntary acquiescence in the judgment arising from the June 22, 2000 hearing. Thus, the trial court erred in finding that the judgment was a nullity. Accordingly, we render judgment reinstating the judgment arising from the June 22, 2000 hearing in its entirety except as modified by the June 24, 2011 compromise judgment.

DISPOSITION

For the foregoing reasons, we reverse the trial court’s judgment annulling the judgment arising from the June 22, 2000 hearing and render judgment reinstating that judgment in its entirety, subject to the modifications to that judgment made by the June 24, 2011 compromise judgment. We assess all costs of this appeal to James Bailey Flemming.

REVERSED AND RENDERED.

      . The letter is erroneously dated "2/15/99.”

      . The minutes make no reference to any appearances other than that of the attorney representing James' counsel.

      . The trial court first executed a written judgment on July 13, 2000, but executed an amended judgment on August 22, 2001. The amendments did not affect the award of permanent spousal support.


author: PICKETT, Judge.

text:
    Rhyn L. DUPLECHAIN, Assessor for St. Landry Parish v. PBGS, L.L.C., et al.
    No. 13-83.
    Court of Appeal of Louisiana, Third Circuit.
    June 5, 2013.

      Brian A. Eddington, Attorney at Law, Baton Rouge, LA, for Plaintiff/Appellant Rhyn L. Duplechain, Assessor.
    Cheryl M. Kornick, James C. Exnicios, Elisabeth L. Baer, Liskow & Lewis, APLC, New Orleans, LA, Lawrence P. Simon, Jr., Liskow & Lewis, APLC, Lafayette, LA, for Defendants/Appellees PBGS, L.L.C. and Port Barre Investments, LLC, c/o Spectra Energy Corp.
    Robert Dean Hoffman, Jr., Attorney at Law, Covington, LA, for Defendant/Appel-lee, Louisiana Tax Commission.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, ELIZABETH A. PICKETT, and JOHN E. CONERY, Judges.
   PICKETT, Judge.

liTax assessor appeals the trial court’s grant of a taxpayer’s exception of lack of subject matter jurisdiction. For the following reasons, we affirm.

FACTS

PBGS, L.L.C. c/o Spectra (PBGS) is the owner of an underground natural gas storage facility situated in St. Landry Parish. For the 2011 tax year, St. Landry Parish Tax Assessor Rhyn L. Duplechain (the Assessor) classified the storage facility as “other property” and assessed it at 15% of fair market value. See La. Const, art. 7, § 18(B)(5). PBGS filed an administrative appeal with the Louisiana Tax Commission (LTC), asserting that the Assessor improperly classified the storage facility as “other property” and that it should have been classified as “land” which is assessed at 10% of fair market value. Id.

The Assessor filed an exception of lack of subject matter jurisdiction, asserting that PBGS’s appeal “presents a question of constitutional interpretation that is subject to the exclusive jurisdiction of the judicial branch” because it contests the classification of property under La. Const, art. 7, § 18. The LTC denied the exception, and the Assessor filed suit, asserting that the trial court, not the LTC, has jurisdiction to address PBGS’s complaints. The Assessor filed a motion to stay the proceedings before the LTC which the LTC opposed. After a hearing, the trial court denied the request. PBGS filed an exception of lack of subject matter jurisdiction which the trial court granted after a hearing. The Assessor appealed the trial court’s judgment granting the exception of lack of subject matter jurisdiction.

JjISSUE PRESENTED FOR REVIEW

The sole issue presented for review is whether the trial court has jurisdiction to review the LTC’s denial of the Assessor’s exception of lack of subject matter jurisdiction.

DISCUSSION

The Assessor contends that pursuant to La.R.S. 47:1989(D), read in pari materia with La.R.S. 47:1998, his appeal was properly presented to the trial court. Section 1989(D)(1) provides: “All decisions by the tax commission are final unless appealed to the district court within thirty days.”

The LTC hears appeals filed by taxpayers and assessors concerning “assessment lists as certified by the local board of review” when those parties are “dissatisfied with the determination of the local board of review.” La.R.S. 47:1989(A)-(B), respectively. Section 1998(A)(1)(a) (emphasis added) provides:

Any taxpayer ... dissatisfied with the final determination of the Louisiana Tax Commission under the provisions of R.S. 17:1989 shall have the right to institute suit within thirty days of the entry of any final decision of the Louisiana Tax Commission ... in the district court contesting the correctness of assessment.

Reading Sections 1989 and 1998 in pari materia, we conclude that the term “decisions” in Subsection 1989(D) refers to “final determination” or “final decision” by the LTC regarding an “assessment” and that the LTC’s denial of the Assessor’s exception of lack of subject matter jurisdiction was not a “final decision” regarding “the correctness of assessment” as contemplated by La.R.S. 47:1989(D) and La. R.S. 47:1998. Accordingly, we find the Assessor’s argument lacks merit.

Moreover, a declinatory exception of subject matter jurisdiction does not determine the merits of the litigant’s claims and, therefore, is an interlocutory |sexception that is not a final appealable judgment unless specifically provided for by law. La.Code Civ.P. arts. 1841, 2083(C). See also Allen v. Valero Energy Corp., 06-726 (La.App. 5 Cir. 1/9/07), 951 So.2d 370; Johnson v. Shelton Trucking Serv., Inc., 597 So.2d 499 (La.App. 1 Cir.), rev’d on other grounds, 599 So.2d 1089 (La.1992). The Assessor has not cited any statute that specifically provides for an appeal from an interlocutory judgment of the LTC denying an exception of subject matter jurisdiction, and this court’s research has not revealed such a statute.

DISPOSITION

For these reasons, the judgment of the trial court granting the exception of lack of subject matter filed by BCGS, L.L.C., c/o Spectra is affirmed, and this matter is remanded to the Louisiana Tax Commission for further proceedings.

AFFIRMED AND REMANDED.

      . We reference PBGS herein as the parties reference it in the record. In their submission information contained on their trial court and appellate briefs, PBGS’s counsel, however, reference counsel as representing "PBGS, L.L.C. and Port Barre Investments, LLC, c/o Spectra Energy Corp.”


author: STEPHEN J. WINDHORST, Judge.

text:
    Newell NORMAND, Sheriff of the Parish of Jefferson v. Raymond JONES.
    No. 12-CA-508.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 10, 2013.

      Edmund W. Golden, John A. Kopfinger, Jr., Attorneys at Law, Metairie, LA, for Plaintiff/Appellee.
    Jeffrey M. Reilly, Attorney at Law, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges ROBERT A. CHAISSON, STEPHEN J. WINDHORST and HANS J. LILJEBERG.
   STEPHEN J. WINDHORST, Judge.

| ^Appellant, Raymond Jones appeals the trial court’s judgment which awarded $75,000.00 in general damages, subject to an 80% reduction for his fault in the cause of the accident. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On February 5, 2008, Mardi Gras Day, at approximately 5:00 P.M., Mr. Jones stepped from the neutral ground into the left-lane of the eastbound side of Veterans Memorial Boulevard (“Veterans”) and was struck by a marked police unit owned by the Jefferson Parish Sheriffs Office and operated by Deputy Gregory Joerger. Deputy Joerger was driving westbound on the eastbound side of Veterans, in the lane closest to the neutral ground.

Newell Normand, in his capacity as Sheriff of Jefferson Parish, filed suit against Mr. Jones for damages to the Sheriffs vehicle related to the accident. Mr. Jones filed an Answer and Reconven-tional Demand against Sheriff Normand alleging that Deputy Joerger and Sheriff Normand were liable for the accident and subsequent damages Mr. Jones sustained.

After a bench trial, the trial court rendered judgment in favor of Mr. Jones and against Sheriff Normand, in the amount of $75,000.00 in general damages, |3$50,077.82 in medical expenses and $7,200.00 for lost wages with legal interest from the date of judicial demand. The trial court found Mr. Jones’ recovery would be reduced by 80% for his fault. Mr. Jones filed this appeal alleging that the trial court erred in assessing him with 80% fault, and that the award of general damages was inadequate.

STANDARD OF REVIEW:

The factual findings of a trier of fact may not be disturbed by an appellate court absent manifest error. Arabie v. CITGO Petroleum Corp., 2010-2605 (La.3/13/12), 89 So.3d 307, 312, citing Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1979). Allocation of fault between comparatively negligent parties is a finding of fact. Sims v. State Farm Auto. Ins. Co., 98-1613, (La.3/2/99), 731 So.2d 197, 199. An appellate court must find, from review of the entire record, that there is a reasonable factual basis for the findings of the trier of fact, and must determine that the record shows the findings of fact are not manifestly erroneous or clearly wrong. Arabie, 89 So.3d at 312, citing Arceneaux, 365 So.2d at 1333; see also Stobart v. State, Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993). If the findings of the trier of fact are reasonable, when the record is reviewed in its entirety, an appellate court may not reverse. Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990); Marange v. Custom Metal Fabricators, Inc., 2011-2678 (La.7/2/12), 93 So.3d 1253, 1259. When there are two permissible views of the evidence, the findings of the trier of fact cannot be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 883; Rosell, 549 So.2d at 844.

The issue to be determined is not whether the finder of fact was right or wrong, but whether the trier of fact’s conclusion was reasonable. Stobart, 617 So.2d at 882; Housley v. Cerise, 579 So.2d 973 (La.1991); Sistler, 558 So.2d at 1112. A |4trier of fact’s reasonable evaluations of credibility and inferences of fact should not be reversed, even if the appellate court sitting as the fact finder would have weighed the evidence differently. Rosell, 549 So.2d at 844. The reviewing court must be mindful that the trial court is in a better position in witnessing the entire trial, evaluating the credibility of witnesses, and in reviewing first hand all the evidence. Clement v. Frey, 95-1119 (La.1/16/96), 666 So.2d 607, 610-611; Stobart, 617 So.2d at 883.

ALLOCATION OF FAULT:

In his first assignment of error, Mr. Jones alleged that the trial court erred in allocating 80% of the fault to him.

The following facts were adduced at trial. Mr. Jones arrived at the parade route between 12:00 P.M. and 1:00 P.M. He ate two to four sandwiches, chips, consumed six to eight beers, and watched the parade. He testified that even though he consumed six to eight beers while at the parade, he was alert, his speech was not slurred, his judgment was not impaired, and he was not intoxicated.

Immediately prior to the incident, Mr. Jones left his spot along the parade route and crossed to the neutral ground in an attempt to cross Veterans to purchase cigarettes. He walked over to the eastbound side of Veterans. He looked to the right and saw that traffic was stopped at the traffic light. Without looking to the left, Mr. Jones stepped off the neutral ground between two parked cars and onto the street, which is ordinarily one-way. He was struck by Deputy Joerger’s vehicle, headed westbound in the eastbound lanes. He testified that while walking from the neutral ground to the curb he did not observe any emergency or flashing lights nor did he hear a siren to warn him that Deputy Joerger’s vehicle was approaching.

When confronted with medical records in evidence, Mr. Jones could not confirm or deny whether he consented to take an ETOH (alcohol) test that was | .^administered once he arrived at the hospital. Mr. Jones was shown JPSO Exhibit 4, a serum drug screen which showed his blood alcohol level was .258% alcohol. Despite his extremely high level of alcohol, Mr. Jones continued to assert that he was alert and not impaired. Upon further examination, Mr. Jones admitted that he also had marijuana in his system.

Earlier that day, prior to his arrival at the parade route, Mr. Jones went to a daiquiri shop. Detective Wayland Shepard stated that while working the parade route he went to the same daiquiri shop and was immediately directed to Mr. Jones. Detective Shepard testified that Mr. Jones appeared to be under the influence of alcohol, smelled of alcohol, and his speech was slurred. He asked Mr. Jones where he lived, and ordered him to leave the parade route and not return, or be arrested for public intoxication. Mr. Jones left the daiquiri shop without incident.

Detective Shepard further testified that while he did not witness the accident, when he arrived on the scene immediately after the accident, he recognized Mr. Jones from the incident earlier in the day at the daiquiri shop, and reported the earlier incident to his supervisor. At trial, Mr. Jones stated that he did not recall going to any daiquiri shops prior to his arrival at the parade route.

Deputy Joerger and his partner, Sergeant Chad Deer, were assigned to the Aurora and Veterans area on Mardi Gras Day. It is usually a “younger crowd” and more prone to “a lot of fights.” Prior to the accident in which Mr. Jones was injured, and on request from his supervisor, Deputy Joerger picked up a female and child and took them to the end of the parade route. His partner, Sergeant Deer, stayed at the assigned location.

After dropping off the female and child, Deputy Joerger testified that he was advised to go back to his post because several fights were breaking out and his partner was alone. He testified that the safety of his partner was his primary | (¡concern. The only available way to return to his post was to travel westbound in the eastbound lanes of Veterans, and he stated that he followed the Jefferson Parish Sheriffs Office procedure for traveling against the flow of traffic for emergencies, which was routinely used during Mardi Gras parades. He proceeded westbound in the eastbound lane, closest to the neutral ground, traveling 15-20 miles per hour with his fights on and used his “yelp” button, although not continuously. The procedure did not require an officer to have his siren on continuously.

The accident occurred close to the intersection of East William David Dr. and Veterans. As Deputy Joerger approached the first parked vehicle, Mr. Jones darted out from between two parked cars located in the turn lane. Mr. Jones struck the front right corner of the police vehicle. Deputy Joerger testified that Mr. Jones appeared to be unbalanced and he stumbled head first when he came across the road in between the two legally parked vehicles. Deputy Joerger stated that there was nothing to prevent Mr. Jones from seeing all of his emergency fights. However, he conceded that it was possible that Mr. Jones did not hear the “yelp” because of the noise in the area.

After impact, Deputy Joerger immediately got out of the vehicle to check on Mr. Jones, called for emergency services, notified his supervisor, and waited for help to arrive. Deputy Joerger did not dispute that the accident report indicated that a cause of the accident was the fact that he was traveling against the flow of traffic.

Chief Deputy Craig Taffaro testified that he has been with the department for 39 years and has a total of 43 years with law enforcement. He is directly below Sheriff Normand in the chain of command and is in charge of all field operations and management of Mardi Gras. He testified that the policy and procedure used to allow emergency vehicles to travel against the flow of traffic had been in place for the last thirty years. In order to travel against the flow of traffic, the policy required [ 7that an officer utilize his overhead lights and other emergency fights. Officers are also required to use their sirens, although they are not required to be continuously on, and must travel at a reasonably safe speed. The procedure does not require travel in a specific lane. Counsel for Mr. Jones stipulated that Deputy Joerger followed the department’s policies and procedures, but not that he traveled in the correct lane.

It was stipulated that Donna Lucas would testify that she was walking the same path as Mr. Jones and that she observed the approaching emergency lights. It was further stipulated that Major Kerry Najolia, the Training Academy Director for the Jefferson Parish Sheriffs Office, would testify that Deputy Joerger was in compliance with the procedure used by the Jefferson Parish Sheriffs Office, and that the procedure was “reasonable and safe.” The parties additionally stipulated that Earl Morris, an expert from Utah, would testify that the procedure used by the Jefferson Parish Sheriffs Office is used throughout the country for other parades and is “reasonable and safe.”

Considering the foregoing, we find no error in the trial court’s decision allocating 80% of the fault to Mr. Jones and 20% of the fault to Deputy Joerger. The record clearly supports finding that Mr. Jones was intoxicated at the time of the accident and his intoxication impaired or affected his judgment. Mr. Jones was removed from the parade route for public intoxication prior to the accident. According to Detective Shepard, Mr. Jones appeared to be under the influence, smelled of alcohol, and his speech was slurred. Mr. Jones’ serum drug screen, taken after the accident, showed that Mr. Jones’ blood alcohol level was .258% alcohol. Mr. Jones also had marijuana in his system. Deputy Joerger testified that as he approached the first parked vehicle, Mr. Jones darted out between two parked vehicles, appeared to be unbalanced, and he stumbled head first across the roadway. |8We find that the trial court was not manifestly erroneous in concluding that Mr. Jones was too intoxicated to be aware of his surroundings and that the accident was caused primarily by his negligence.

The record also supports a finding that Deputy Joerger was negligent in the cause of the accident. The policy and procedure utilized during parades was authorized by La. R.S. 32:24 which allows emergency personnel to travel against the flow of traffic, if responding to an emergency. The record reveals that while Deputy Joerger followed the procedure required to travel against the flow of traffic, he was not responding to an emergency. Deputy Joerger was returning to his post to assist his partner, for safety reasons.

We find no merit in this assignment of error.

QUANTUM:

In his second assignment of error, Mr. Jones alleged that the trial court erred in awarding an insufficient amount for general damages.

In awarding general damages, the trier of fact is afforded great discretion. La. C.C. art. 2324.1; Howard v. Union Carbide Corp., 08-750 (La.App. 5 Cir. 10/27/09), 21 So.3d 1084, 1087; writ granted, 09-2750 (La.4/23/10), 32 So.3d 808, and aff'd as amended, 09-2750 (La.10/19/10), 50 So.3d 1251, citing Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). An appellate court may only disturb a general damages award after an articulated examination of the facts discloses an abuse of discretion. Miller v. LAMMICO, 07-1352 (La.1/16/08), 973 So.2d 693, 711. In Howard, supra at 1087, the Supreme Court, citing language from the Fifth Circuit explained:

[t]he discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of 19general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.

Here, Mr. Jones suffered from a subdural hematoma, headaches, a compression fracture of the T-12 vertebrae and left shoulder pain as a result of the accident. Mr. Jones’ subdural hematoma, while it is a serious medical condition, resolved within a couple of months. He underwent a kyphoplasty surgery on his back and received physical therapy and a TENS unit for his back. The medical records and testimony show that Mr. Jones treated for the majority of his injuries in the first couple of months after his accident and had no treatment from August through December 2008. In 2009 and 2010, he received treatment for his injuries on five occasions. Mr. Jones’ medical records indicate one date for physical therapy in 2009. He did not receive treatment for any of his injuries in 2011.

The trial court awarded Mr. Jones $75,000.00 in general damages for his injuries subject to an 80% reduction for his percentage of fault, as discussed above. Based on the record and evidence, we do not find that the trial court abused its discretion in this award of general damages and therefore, this assignment of error is without merit.

CONCLUSION

For the above discussed reasons, the judgment of the trial court is affirmed. Costs are assessed against appellant.

AFFIRMED