author: CONERY, Judge. GREMILLION, J.,

text:
    Terry Lee JOHNSON, Sr. v. Lynn Edward FORET, M.D.
    No. 13-446.
    Court of Appeal of Louisiana, Third Circuit.
    June 18, 2014.

      John L. Hammons, Cornell Flournoy, Nelson & Hammons, APLC, Shreveport, LA, for Plaintiff/Appellant, Terry Lee Johnson, Sr.
    J. Gregory Bergstedt, Elizabeth F. Shea, Fraser, Wheeler & Bergstedt, Lake Charles, LA, for Defendant/Appellee, Lynn Edward Foret, M.D.
    Court composed of BILLY H. EZELL, JAMES T. GENOVESE, SHANNON J. GREMILLION, PHYLLIS M. KEATY, and JOHN E. CONERY, Judges.
   CONERY, Judge.

| TTerry Lee Johnson, Sr. (“Mr. Johnson”) appeals the trial court’s judgment that Lynn E. Foret, M.D. (“Dr. Foret”), did not breach the standard of care in his treatment of Mr. Johnson, dismissing his claim against Dr. Foret for medical malpractice. For the following reasons, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Mr. Johnson injured or scraped his right knee during Hurricane Rita. It had become infected when he was exposed to dirty water in a local lake. When the infection worsened and became serious, Mr. Johnson sought treatment at a Lake Charles emergency room. In the aftermath of the storm, which caused limited availability of medical care in the Lake Charles area, the E.R. was unable to properly treat Mr. Johnson, and he was evacuated by ambulance to Christus Schumpert Medical Center in Shreveport, Louisiana, where he was diagnosed with a severe abscess and infection of the right knee. The knee was excised, debrided, and drained. Mr. Johnson was placed on antibiotic therapy to treat the infection. He was instructed to return to his physician in Lake Charles for follow up treatment.

On October 16, 2005, some nine days after his discharge from the Shreveport hospital, Mr. Johnson sought care from Dr. Foret due to continued pain and discomfort in his right knee. Dr. Foret confirmed upon examination that Mr. Johnson continued to suffer from a serious infection of the right knee. The next day, Dr. Foret performed a second surgery consisting of irrigation and debridement, with follow up antibiotic treatment.

The infection in Mr. Johnson’s right knee persisted. Multiple laboratory studies ordered by Dr. Foret confirmed that Mr. Johnson was suffering from | amethiciIIin resistant staphylococcus au-reus (“MRSA”), a severe infection of the right knee which had not resolved. On December 22, 2005, without laboratory evidence that Mr. Johnson’s right knee infection had cleared, Dr. Foret performed total right knee replacement surgery, with the insertion of a prosthesis.

After the surgery, Mr. Johnson continued to suffer knee pain and swelling from the MRSA infection, now exacerbated by the placement of a foreign body, the prosthesis, into an infected and septic joint. Mr. Johnson returned to Dr. Foret, who again operated on Mr. Johnson on March 9, 2006, performing an arthrotomy and a bursectomy. The infection persisted.

Dr. Foret performed yet another surgery on May 8, 2006, removing Mr. Johnson’s right knee prosthesis. He noted that the infection was still present. Dr. Foret irrigated and scrubbed the knee joint before inserting a methyl-mathacrylate-im-pregnated spacer. Mr. Johnson was once again placed on continuous home IV antibiotics to be administered via a peripherally inserted central catheter (“PICC line”) in his upper arm area. On June 10, 2006, Mr. Johnson returned to the emergency room with complaints of post-operative bleeding. He was continuing to receive antibiotics via a PICC line.

On September 14, 2006, Dr. Foret performed another total right knee replacement with placement of a prosthesis in Mr. Johnson’s still infected knee. Post-surgery, Mr. Johnson’s knee remained red, swollen, and began draining due to the continuing infection. In response to these complications, on October 17, 2006, Dr. Foret operated on Mr. Johnson’s right knee yet again, performing an incision | ¡¡and drainage. However, he failed to remove the prosthesis and spacer he had placed in Mr. Johnson’s still infected knee.

Shortly thereafter, Mr. Johnson was referred by Dr. Foret to Dr. Orlando Schaening, a board-certified infectious disease specialist in Beaumont, Texas. On October 25, 2006, Dr. Schaening examined Mr. Johnson and diagnosed him with a right prosthetic knee infection. He recommended that Mr. Johnson undergo surgery for the removal of the prosthesis followed by treatment for the infection. Mr. Johnson informed Dr. Schaening that he did not wish to return to Dr. Foret for another surgery. At Mr. Johnson’s request, Dr. Schaening referred Mr. Johnson to Dr. Ronald E. Talbert, a board-certified orthopedic specialist also in Beaumont, Texas.

Dr. Talbert examined Mr. Johnson on October 26, 2006, and agreed with Dr. Schaening that the infection could not be resolved without removing the second prosthesis. He did so on October 80, 2006. Dr. Talbert, with the assistance of Dr. Schaening, treated Mr. Johnson for four months after the surgery, finally resolving the infection in his right knee. Nevertheless, Mr. Johnson continued to suffer pain and his right knee was unstable.

Dr. Talbert then referred Mr. Johnson to Dr. Daniel Thompson, an orthopedic surgeon specializing in difficult fracture and joint management. Both surgeons recommended that Mr. Johnson undergo a surgical fusion of the right knee because of the damage caused by the previous surgeries. Mr. Johnson agreed, and Dr. Thompson performed a successful surgical fusion of the knee joint. As a result of the right knee fusion, however, Mr. Johnson is now totally and permanently disabled from his former employment as a painter/sandblaster/truck 14driver. He has incurred $881,562.49 in medical expenses associated with the alleged medical malpractice of Dr. Foret, a sum that is not in dispute.

On March 19, 2007, Mr. Johnson filed a timely claim pursuant to the Louisiana Medical Malpractice Act alleging that despite the overwhelming evidence of active infection in his right knee, Dr. Foret performed a total knee replacement and then magnified his own error by failing to provide appropriate antibiotic therapy and proper post-operative treatment.

A unanimous medical review panel composed of three board-certified orthopedic surgeons concluded that Dr. Foret breached the standard of care and caused Mr. Johnson’s damages. The panel opinion stated, “Dr. Foret should not have gone forward with the surgery until the infection was demonstrated to be cleared.”

Dr. Foret was a qualified health care provider and was covered by the Louisiana Patients’ Compensation Fund (“LPCF”). After the medical evidence was submitted to the LPCF, the fund ultimately settled with Mr. Johnson. Mr. Johnson reserved his right to pursue his damage claims against Dr. Foret, and filed a timely suit on May 21, 2009. Mr. Johnson alleged in his petition that Dr. Foret negligently performed a right total knee replacement, with placement of a prosthesis, without first resolving a severe infection in his knee; that he failed to provide appropriate post-operative treatment, thereby requiring removal of the prosthesis in May 2006; and that he negligently performed a second total knee replacement and inserted another prosthesis in September 2006 while his knee was still infected.

lain December 2010, Mr. Johnson filed a motion for summary judgment arguing that there was no genuine issue of fact that Dr. Foret committed medical malpractice. He introduced the affidavits of the medical review panel who unanimously found that Dr. Foret had failed to adhere to the standard of care, causing Mr. Johnson’s damages. The hearing on Mr. Johnson’s motion for summary judgment was fixed for May 19, 2011, but was continued without date. A trial on the merits was later rescheduled for May 22, 2012. On May 22, 2012, a pre-trial conference was held in chambers.

The transcript of May 22, 2012 reflects that pursuant to the stipulation of counsel, the parties agreed to and thus submitted the entire case for decision to the trial court based on documentary evidence in lieu of live testimony. After reviewing a post-trial memorandum from Mr. Johnson, the trial court issued written reasons for judgment on August 31, 2012. The trial court found that Dr. Foret did not breach the standard of care in his treatment of Mr. Johnson and issued its judgment on October 10, 2012, dismissing Mr. Johnson’s claim with prejudice at his cost. Mr. Johnson timely appealed, assigning four errors.

ASSIGNMENTS OF ERROR

Mr. Johnson asserts on appeal that:

1. The Trial Court erred in failing to even consider the testimony of Dr. Ronald E. Talbert, appellant’s treating orthopedist.
2. The Trial Court erred in failing to even consider the testimony of Dr. William L. Overdyke, a board[-]certified orthopedic surgeon from Shreveport who specializes in joint replacement surgery.
3. The Trial Court erred in failing to consider or even reference the admissions of medical neglect made by Dr. Foret in the medical records themselves. lr,4. The Trial Court erred in concluding that Dr. Foret complied with applicable medical standards of care in providing treatment to Mr. Johnson.

DISCUSSION

Standard of Review

In Virgil v. American Guarantee & Liability Insurance Co., 507 So.2d 825 (La.1987), and Shephard v. Scheeler, 96-1690 (La.10/21/97), 701 So.2d 1308, our supreme court held that even when a case is submitted to the trial judge for decision on record evidence only with no live testimony, we are nonetheless obligated to apply the manifest error standard when reviewing the case on appeal. When reviewing a summary judgment, likewise submitted on only record evidence with no live testimony, we are to use the less restrictive de novo standard. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730; Smitko v. Gulf South Shrimp, Inc., 11-2566 (La.7/2/12), 94 So.3d 750.

How do we reconcile the cases using the manifest error standard of review when reviewing cases submitted for trial on documents, affidavits, and depositions with those cases using the de novo standard when considering summary judgments using the same type of evidence? In Virgil and Shephard, the supreme court attempted to explain by examining the rationale behind the rulings. A trial on the merits requires the trial judge to find the facts. The proper allocation of trial and appellate court functions requires deference to the fact finder. Summary judgments, on the other hand, can only be granted in cases where the material facts are not in dispute, hence no factual findings and no deference is required. Virgil, 507 So.2d 825; Shephard, 701 So.2d 1308.

Even when applying the manifest error standard, the larger question is how to decide whether the trial court was clearly wrong, how to apply the proper 17aIlocation of trial and appellate court functions. In Virgil and Shephard, the supreme court emphasized that even though a trial judge may have decided a case on a “cold record,” without live testimony that would allow the fact finder to observe demeanor, inflection, tone, and manner of testifying witnesses, appellate courts should none the less accord great deference to “the trial court’s factual findings, both express and implicit, and reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on appellate review of the trial court’s judgment.” She-phard, 701 So.2d at 1316.

Immediately after this pronouncement of the standard of review in Shephard, the supreme court went on to find that the trial court in that case “clearly erred in finding that the accident was caused by an unreasonably dangerous puddle of standing water[.]” Id. The court reversed a finding of fact made by the trial court and found that it was “clearly erroneous” based on review of all evidence of record. Clearly, great deference does not mean total deference.

In Alexandria v. Pellerin Marble & Granite, 93-1698, p. 1 (La.1/14/94), 630 So.2d 706, 710, the supreme court re-affirmed Virgil and Shephard’s holding that the manifest error standard applied, even when documentary evidence is used, but then reversed a portion of the judgment of the hearing officer and appellate court, stating:

We find that the court of appeal did not err by applying the manifest error standard of review. Application of the manifest error standard of review does not however, mandate the affirmance of a lower court decision with respect to findings of fact. When an appellate court finds manifest error, the factual findings of the trier of fact may be reversed.

See also Magbee v. Federal Exp., 12-77 (La.App. 3 Cir. 12/12/12), 105 So.3d 1048 and Racca v. Acme Truck Lines, Inc., 12-1319 (La.App. 3 Cir. 6/12/13), 115 So.3d 1222 (both applying the manifest error standard, but finding that the workers’ compensation judge was clearly erroneous). Great deference does have its limitations. The appellate court can and must review the facts and the entire record in fulfilling its purpose, role, and function.

Burden of Proof — Medical Malpractice Action

A plaintiff in a medical malpractice action must meet the three-prong burden provided for in La.R.S. 9:2794(A) by proving:

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

Thus, a ruling in favor of a defendant means that the plaintiff failed to prove that the physician breached the standard of care or that the breach caused injury. “Under the manifest error standard of review, a factual finding cannot be set aside unless the appellate court finds that it is manifestly erroneous or clearly wrong.” Salvant v. State, 05-2126, p. 5 (La.7/6/06), 935 So.2d 646, 650. If the trial court’s decision is based on reasonable factual findings, the trial court’s judgment should be affirmed.

|SF oil owing a review of the record and for the reasons stated below, we find that the trial court’s decision in this case was not based on reasonable factual findings and was clearly wrong. The trial court erred in its conclusion that Dr. Foret did not breach the standard of care in his treatment of Mr. Johnson, and that the breach did not cause the injuries claimed by Mr. Johnson.

Assignment of Error One

Mr. Johnson urges that the trial court erred in failing to consider the testimony of Dr. Ronald E. Talbert, his treating orthopedic surgeon. Mr. Johnson’s attorney references medical “reports” of Dr. Talbert dated March 27, 2007, and June 16, 2007, which had been discussed in briefs and argument to the trial and appellate courts without objection. However, the reports, though obviously intended to have been filed in evidence, were not in the record as originally lodged. We remanded this case to the trial court to determine if the referenced reports had been filed in evidence, or should have been submitted into evidence at trial, and if so, to allow the record to be supplemented.

By the time the remand reached the district court, the original trial judge who decided the case had retired. In its January 30, 2014 judgment on remand, the new trial judge concluded “that only those specific documents presently included in Trial Exhibit 17-Beaumont Bone & Joint Institute records were properly introduced and filed into evidence and any records, reports, or other documentary evidence from Dr. Talbert not specifically and presently included in Trial Exhibit 17-Beaumont Bone & Joint Institute records were not introduced and filed into evidence.” The trial court denied the request to supplement the record with the two medical reports. The two referenced narrative reports are not contained in Exhibit 17 and, therefore, are not properly before this court and cannot be considered.

ImHowever, this court is not constrained from considering the remaining medical records of Dr. Talbert from the Beaumont Bone & Joint Institute that are part of the record and were filed in evidence in Plaintiffs Exhibit 17 and further contained in Plaintiffs Exhibit 18.

Dr. Talbert’s October 26, 2006 medical record of his initial appointment with Mr. Johnson correctly summarizes Mr. Johnson’s medical history involving his right knee, the ongoing MRSA infection, and Dr. Foret’s prior treatment. Dr. Talbert’s history includes the last procedure performed by Dr. Foret on October 17, 2006, which was irrigation and debridement, which left Mr. Johnson with “drains in his knee and an open draining wound.”

Dr. Talbert states under the heading of “IMPRESSION: Chronically infected right total knee arthroplasty with failed two-stage revision. The patient currently has open draining wounds.” Dr. Talbert’s records include a “RECOMMENDATIONS” section, which states:

I have discussed with him and his daughters today that I do not think this could be treated without removal of the prosthetic components. I would recommend doing that and again putting in antibiotic spacers and treating him with long-term intravenous antibiotic therapy-
After the infection is felt to be controlled, consideration will be then be given to whether another implant could be done or whether he should consider arthrodesis[] of his knee. They are in agreement with this plan. We are going to have him be admitted Monday for prosthesis removal.

Dr. Talbert’s Operative Report gives the details of the surgical procedure he performed on Mr. Johnson on October 80, 2006, and states under the following headings:

PREOPERATIYE DIAGNOSIS:
Infected right total knee arthroplasty.
^POSTOPERATIVE DIAGNOSIS:
1. Infected right total knee arthro-plasty.
2. Disruption extensor mechanism right knee.

TITLE OF PROCEDURE:

1. Irrigation and debridement of the right knee with removal of prosthetic component and insertion of antibiotic spacers.
2. Patellectomy[] right knee.

The surgical procedure performed by Dr. Talbert is contained under the heading “DESCRIPTION OF PROCEDURE[.]” Dr. Talbert removed the drains and opened Mr. Johnson’s knee to reveal that “The patella had significant necrotic material present with minimum bone remaining. Therefore, a Patellectomy was performed and the patellar tendon debrided. Obvious necrotic material was removed. Cultures were taken and sent to the laboratory.”

Dr. Talbert then removed the prosthesis, and the knee was debrided, irrigated, and antibiotic spacers were placed between the tibia and the femur. “Two large bore drains were inserted.”

On November 7, 2006, Mr. Johnson was discharged from the hospital by Dr. Tal-bert. Dr. Talbert’s Discharge Summary states as follows:

FINAL DISCHARGE DIAGNOSIS:

1. Infected right total knee arthro-plasty.
2. Acute blood loss anemia.

FOLLOW UP:

Patient is discharged to home. He has arrangements for home IV antibiotic therapy and outpatient hyperbaric oxygen therapy. He will be seen in the office in about a week.

Following his discharge from the hospital subsequent to his surgery, Mr. Johnson continued to see Dr. Talbert and Dr. Schaening for treatment of his knee infection and monitoring of his condition. On February 8, 2007, Dr. Talbert’s records show that Mr. Johnson is three months post-surgery, and “There are no signs of inflammation with the knee.” Further, “At this point he is showing no | i2signs of active infection.”

At this juncture, Dr. Talbert referenced Mr. Johnson’s pending afternoon appointment with Dr. Schaening. Dr. Talbert also indicated that Mr. Johnson had seen Dr. Thompson during his appointment with Dr. Talbert to discuss fusing his knee and he had agreed to have this procedure done by Dr. Thompson once Mr. Johnson had been cleared for surgery by Dr. Schaening and Mr. Johnson was ready to schedule the surgery.

Dr. Talbert’s medical records contained . in the record in Plaintiffs Exhibits 17 and 18 should have been considered by the trial court, as they provide support for the opinions of the other experts and the medical review panel that the infection suffered by Mr. Johnson had not resolved either before or after any of the multiple surgical procedures performed by Dr. Foret, including two total knee replacement procedures, all of which resulted in Mr. Johnson’s damages. We find merit in Mr. Johnson’s first assignment of error that the trial court did not properly consider the findings of Mr. Johnson’s treating orthopedic surgeon, Dr. Talbert.

Assignments of Error Two, Three, and Four

This court finds that errors two and three are subsumed into error four. In error four, Mr. Johnson urges the trial court erred in concluding that Dr. Foret complied with the applicable standard of care in his treatment of Mr. Johnson. For the following reasons, we find this assignment error also has merit,

| l3Record Evidence Supporting Dr. For-et’s Breach of the Standard of Care Thereby Causing Mr. Johnson’s Injuries.

Dr. William L. Overdylce — Board-certified Orthopedic Surgeon

Dr. Overdyke is a board-certified and renowned orthopedic surgeon from Shreveport, Louisiana. He reviewed all of Mr. Johnson’s medical records, including all the laboratory work preceding the December 22, 2005, total knee replacement surgery with prosthesis performed by Dr. Foret.

In his March 5, 2007 letter opinion to Mr. Johnson’s attorney, John Hammons, Dr. Overdyke specifically details his review of the medical records of Mr. Johnson beginning on October 17, 2005. Dr. Over-dyke’s opinion letter states in pertinent part:

The next notes are hospital notes than began on 10-17-05 with an arthrotomy, irrigation and debridement. Mr. Johnson was already on antibiotics at that point. Cultures were negative. Followup laboratory began on October 20 with a sedimentation rate of 85 with normal being less than 10. He had multiple sedimentation rates as follows: On 10-27, his SED rate was 30, white court was 11.3, which is elevated. On 11-15 his SED rate was 77, white blood count was 10.6. On 11-30 his SED rate was 61. On 12-7 his SED rate was 42. The last recorded SED rate in these records was 12-13, his SED rate 30. He had a culture done on December 7 which again grew a methicillin resistant Staph au-reus. He had an MRI obtained on 11-14-05 that was consistent with septic arthritis. Subsequently, he underwent a primary right total knee replacement on December 22, 2005.

In his September 21, 2010 affidavit, Dr. Overdyke reprises his opinion from his earlier March 5, 2007 letter opinion to counsel. Dr. Overdyke clearly states that Dr. Foret’s decision to perform total knee replacement surgery on Mr. Johnson in December 2005 was below the standard of care and resulted in all of the subsequent medical procedures Mr. Johnson was forced to undergo. Dr. Overdyke’s affidavit states in pertinent part:

In review of the course of lab work including SED rates, positive cultures, an MRI consistent with septic arthritis, I believe it |14was ill advised to proceed with a total knee replacement in the face of an active infection, which all evidence pointed to. Again, to clarify my position, I believe that a right total knee replacement performed in the face of overwhelming evidence of an active infection in the right knee was below medical standards.
The remainder of Mr. Johnson’s medical problems including the necessity for re-operation, revision, and ultimately probably a fusion of his right knee is a direct result of the initial infection as a result of the procedure done on December 22, 2005.

Opinion of the Medical Review Panel Consisting of Three Board-Certified Orthopedic Surgeons

The medical review panel consisted of three board-certified orthopedic surgeons, Dr. Michael Acurio, Dr. J. David DeLapp, and Dr. Bryan Frentz. The panel concluded that Dr. Foret breached the standard of care in operating on Mr. Johnson’s knee in the face of a documented infection. The panel members noted in its written reasons for the opinion that:

The patient, Terry Lee Johnson, Sr., presented with infection of the right knee prior to total right knee replaeement. The culture of 12/7/05 was positive for MRSA with SED rate of 42. No other cultures were ordered prior to the 12/22/05 surgery.
From a review of the records, the panel concluded that the infection was not cleared at the time of surgery, since no follow-up culture and lab work was done to demonstrate that reasonably the infection had cleared and immediate post-op infection ensued. It is the opinion of the panel that Dr. Foret should not have gone forward with the surgery until the infection was demonstrated to be cleared. For this reason, the panel finds that Dr. Foret failed to adhere to the appropriate standard of care and that Dr. Foret’s failure to do so is the cause of petitioner’s damages.

In addition, the signed affidavits of the three panel members were submitted into evidence. All three physicians attested in pertinent part:

I served on the medical review panel that considered the evidence submitted in this matter and after due consideration of all the evidence including joint discussions with the other panelists, I and the other panelists unanimously concluded that the evidence supports the conclusion that the defendant, Dr. Lynn E. Foret, did not adhere to the appropriate standard of care, and the damages complained of by the | lf,petitioner were caused by negligent care or failure to adhere to the appropriate standards of care by the defendant.

Dr. Orlando Schaening — Mr. Johnson’s Boardr-Certified Infectious Disease Specialist

Dr. Foret referred Mr. Johnson to Dr. Schaening, an infectious disease specialist in Beaumont, Texas, for an evaluation of his “Right prosthetic knee infection.” Dr. Schaening saw Mr. Johnson on October 25, 2006, and found that he did indeed have a “Prosthetic right knee infection.” Under the heading “PLAN,” Dr. Schaening indicated that he discussed with Mr. Johnson at great length “about treatment and management of this kind of infection.” Dr. Schaening also talked with Dr. Foret and “suggested removal of the prosthesis followed by six weeks of intravenous antibiotics. An antibiotic impregnated spacer should be considered at the time of the joint, removal surgery.”

Once the course of antibiotics was complete, Dr. Schaening suggested that Mr. Johnson undergo an observation period of two weeks. If no signs of infection were present after the two week period, Mr. Johnson should undergo “another aspiration of the knee for culture.” If the culture was negative, Dr. Schaening thought that Mr. Johnson could undergo another knee replacement surgery. However, Dr. Schaening suggested that a repeat culture be taken at the time of the latter surgery, and “If the cultures are positive then he should have six months of oral antibiotics.”

Dr. Schaening’s consultation report is filed in the record and provides in pertinent part as follows:

Physical Examination:

He has no fever and does not look toxic. However, there is diffuse swelling of the right knee. He has three drains in place and the surgical wound is open at the center. There is significant purulent drainage at the time of my exam.

11fiImpression:

Right prosthetic knee infection. I had a long conversation with the patient and his daughters about this problem. They were told that at this point in time I do not know whether he is a candidate for another replacement surgery. However, the first step is to eradicate this infection is to remove the infected hardware. Then we have to analyze his bone stock and determine whether he needs fusion or if he can tolerate another prosthesis.

Plan:

They did not want to go back to Dr. Foret if this could be avoided. They asked me if I could contact another surgeon. Therefore, I contacted Dr. Ronald Talbert and explained the situation to him. Dr. Talbert will see Mr. Johnson over the next few days. Appointment with me in one week.

Since Mr. Johnson did not want to continue to see Dr. Foret, an appointment was made for him to see Dr. Talbert. Dr. Talbert saw Mr. Johnson on October 26, 2006, and scheduled him for surgery to remove the infected prosthesis on October 30, 2006. Dr. Talbert asked Dr. Schaening to consult after the surgery, and his consultation report reflects the following plan of treatment for Mr. Johnson post-surgery:

PLAN:

Secondary to the patient’s bone necrosis and surrounding tissue necrosis, hyper-baric will be advantageous for this patient. The patient will also continue IV antibiotics and has IV antibiotic feeding in place at the surgical site. We will follow the patient along for wound care and hyperbaric treatments. The patient states that he has stopped smoking and will seek assistance if this begins to be a problem for him.

Dr. Ronald Talbert — Mr. Johnson’s Boardr-Certified Orthopedic Surgeon

We have previously discussed Dr. Tal-bert’s medical records detailing his care and treatment of Mr. Johnson in Assignment of Error One.

Dr. Daniel Thompson — Mr. Johnson’s Other Board-Certified Orthopedic Surgeon

l17On October 30 2007, one year after Dr. Talbert’s successful surgery and after he and Dr. Schaening had successfully cleared all infection, Dr. Daniel Thompson, a board-certified orthopedic surgeon with a specialty in cases such as Mr. Johnson’s, in consultation with Dr. Talbert and Dr. Schaening, operated on Mr. Johnson. Dr. Thompson debrided and irrigated the area including the bone of the tibia and femur, removed the non-biodegradable antibiotic beads, and fused Mr. Johnson’s right knee. In follow-up on April 14, 2008, Dr. Thompson’s records indicated that Mr. Johnson was five-and-a-half months removed from the knee fusion. The records showed that his right knee was well healed and that he was able to walk without significant difficulty, but with the use of a cane.

Dr. Foret’s Office Records

Dr. Foret did not testify at trial in his own defense. Instead, his attorney submitted Dr. Foret’s office records into evidence, as well as the hospital records. However, a review of the records submitted by Dr. Foret confirms the findings of Dr. Overdyke and the medical review panel that “The culture of 12/7/05 was positive for MRSA with SED rate of 42. No other cultures were ordered prior to the 12/22/05 surgery.” The failure of Dr. Foret to clear the infection in Mr. Johnson’s right knee prior to his first knee replacement surgery was the initial breach of the standard of care by Dr. Foret, as unanimously found by the medical review panel and Dr. Overdyke. Dr. Foret’s records clearly demonstrate that he performed the December 22, 2005 total right knee replacement with prosthesis without clear evidence that the infection had cleared.

Further, Dr. Foret’s office records and the hospital records continue to document the presence of the MRSA infection throughout Dr. Foret’s treatment of Mr. Johnson from December 2005 through October 2006. Dr. Foret’s narrative of 1 iSJune 2006 documents the multiple surgeries undergone by Mr. Johnson in an attempt “to clear this infection from his right knee.” These include the one in Shreveport and the four performed by Dr. Foret. Dr. Foret’s narrative further states, “This patient will need to have at least one more surgery to replace the total knee prosthesis. The patient only has a methyl mathacrylate spacer in his right knee that is not permanent.”

Dr. Foret performed yet another total knee replacement with placement of a prosthesis in Mr. Johnson’s still infected knee in September 2006. He also performed an incision and debridement in October 2006. Dr. Foret’s own records clearly show that the infection was never cleared by Dr. Foret, not before his first procedure in December 2005 or after his last procedure in October 2006. When Dr. Foret referred Mr. Johnson to Dr. Schaen-ing, the infection was still present, as confirmed by both Dr. Foret’s and Dr. Sehaening’s records.

We find no support in Dr. Foret’s medical records for the trial court’s ruling that Dr. Foret did not breach the standard of care in his treatment of Mr. Johnson.

Dr. Michael McGuire — Dr. Foret’s Expert Orthopedist

Dr. Michael McGuire, an orthopedist from Nebraska, submitted an affidavit on behalf of Dr. Foret as follows:

In analyzing the facts that I obtained from my review of the medical records of Terry Lee Johnson in light of my education, training and experience, it is apparent that Terry L. Johnson became disabled by osteoarthritis of the right knee and underwent right total knee arthroplasty in December of 2005. The procedure was performed despite a history of a right knee prepatellar bursal infection in October of 2005. That infection was appropriately treated by Dr. Foret. The decision to proceed to total joint arthroplasty was made after calculation of the risk versus benefits ratio. I am confident from my review of the records that Dr. Foret understood and fully explained the risk involved. Because of the severity of his pain, Mr. Johnson chose to accept those risks and to proceed with surgery in an effort to overcome his disability. I disagree with the statement that the 11fldecision to proceed with surgery was made in the face of overwhelming evidence of a septic knee. Unfortunately, as noted above, Mr. Johnson’s total knee arthroplasty was complicated by post-operative infection.
For the reasons outlined above, and based upon my analysis of the medical records provided in light of my education, training and experience, it is my opinion that Lynn Foret, M.D. did adhere to the appropriate standard of care in his treatment of Terry Lee Johnson under the facts and circumstances of this case and that the patient did not suffer any damage which he would not otherwise have experienced due to any act or failure to act on the part of Dr. Foret.

The trial court relied heavily, if not exclusively, on the affidavit from Dr. Michael McGuire in its reasons. Dr. McGuire apparently ignored the laboratory findings of MRSA infection in Mr. Johnson’s right knee, a septic knee shown on the MRI, and the cultures showing the continued presence of infection prior to Mr. Johnson’s total knee replacement surgery performed by Dr. Foret in December 2005.

Instead of facts from the medical records, Dr. McGuire relied on his unsupported opinion that Dr. Foret “fully explained” the serious risks inherent in operating on an infected knee to Mr. Johnson, and the risks associated with placing a knee replacement prosthesis in a severely infected knee. Dr. McGuire, without any evidence in the record to back up his statement, then opined that Mr. Johnson voluntarily accepted the risks “because of the severity of the pain” and elected to proceed with the surgery “in an effort to overcome his disability.” Mr. Johnson’s “informed consent” form is in the record and fails to mention anything about the particular risks of performing a total knee replacement with insertion of prosthesis in a severely infected knee.

Mr. Johnson’s deposition and his wife’s affidavit also directly contradict Dr. McGuire’s unsupported opinion of Mr. Johnson’s understanding of the risks and need for the initial December 2005 knee replacement surgery. Yet, the trial court 12ofailed to mention Mr. Johnson’s deposition or Mrs. Johnson’s affidavit in its reasons for judgment, nor did it even discuss or mention the overwhelming evidence in the medical records that Dr. Foret operated on a septic knee.

A review of Mr. Johnson’s pre-trial deposition that was filed in the record fails to demonstrate a true understanding and appreciation by Mr. Johnson of the actual risk of severe continued infection following total knee replacement with the insertion of a prosthesis in an already infected knee.

Q. Okay. All right. And I’m not trying to, you know, make you guess a date; but I mean, how did it come up? Did Dr. Foret bring it up to you or
A. Yes, Dr. Foret brought it up to me, yes.
Q. What do you recall him telling you?
A. Well, my knee was pretty — pretty well messed up and that it would be better to have it taken out because it was — it was pretty — pretty messed up on the inside. I’d have been better off with getting a new knee replacement. So, I left it up to him—
Q. All right.
A. — for that.
Q. Were you involved in the decision-making process as to when to do it?
A. I don’t know. I don’t — I don’t know that.
A. Yeah. I think the way he said it, we would — you know, he’d put it in there and I could be back to work and that’s what I wanted to do was go back to work.
Q. Did you — all at that time discuss the fact that infection was a possibility, especially since you had already been treated for an infection in the fall?
12i A. I don’t know. I can’t — couldn’t tell you. I don’t know.
Q. Okay. In the document that you signed, did you understand that infection was a possibility from the surgery?
A. Well, I knew there was — there was—
Q. A risk?
A. Yeah.

Mrs. Karen Johnson’s affidavit stated:

Terry went to see Dr. Foret in October 2005 for treatment of his still infected leg. Terry was told that he needed a total knee replacement by Dr. Foret and agreed to have the procedure done. However, if we had known that there was still an active infection and this would lead to further complications and the lost use of Terry’s right knee joint we certainly would not have consented to this operation.

(Emphasis added.)

Despite the overwhelming evidence in the record of the breach of the standard of care in Dr. Foret’s treatment of Mr. Johnson, the trial court concluded in part:

Upon weighing all the evidence presented, the Court finds the Dr. Foret’s evidence more credible. It is the Court’s opinion that Mr. Johnson was well aware of the inherent risk of infection, but because of the severe pain, and his desire to return to work he chose to proceed with the surgery.
In light of Mr. Johnson’s continuing knee problems, Dr. Foret with Mr. Johnson’s consent took a calculated risk to resolve the severe pain of his patient. The Court finds the plaintiff has not shown by a preponderance of the evidence that Dr. Foret’s standard of care reached a negligent level.

In applying the manifest error standard of review, we find that the trial court erred in its conclusion that Mr. Johnson knew, understood, and accepted the risks involved in allowing Dr. Foret to operate on his seriously infected right knee and 122introduce into that infected knee a foreign body in the form of a prosthesis. All experts, except Dr. McGuire, whose opinion is not supported by the record, agreed that Dr. Foret breached the standard of care and that breach was the cause of Mr. Johnson’s damages.

Although Mr. Johnson may have been understandably anxious to resolve his knee problem and thereby relieve his pain, Dr. Foret, as determined by at least four other board-certified orthopedic surgeons, and as supported by the medical evidence in the record, was bound by the standard of care to postpone the knee replacement surgery until there was a resolution of the MRSA infection. There was no indication in the record that if Dr. Foret had postponed the December 5, 2005 surgery until after the infection had cleared, that delaying this elective surgery would have resulted in an unreasonable danger to Mr. Johnson’s health or caused him further harm.

To the contrary, all the medical evidence in the record clearly demonstrates that Dr. Foret’s decision to proceed to perform this elective procedure while the knee was still infected did actually cause substantial harm to Mr. Johnson. The standard of care for an elective procedure requires that the patient be in the best possible medical condition to tolerate the stress and trauma which is inherent in a surgical procedure. In Re Dunjee, 10-1217 (La.App. 4 Cir. 1/26/11), 57 So.3d 541.

Likewise, there is no evidence in the record demonstrating that an emergency situation existed which required Dr. Foret to operate on Mr. Johnson on December 22, 2005 without first clearing the infection in his right knee. While a patient may give informed consent to a risky emergency surgery, a patient cannot give informed consent to medical malpractice. A physician must | gjheed his Hippocratic Oath, “I will prescribe regimens for the good of my patients according to my ability and my judgment and never do harm to anyone.”

This court does not agree with the conclusion of the trial court that Dr. Foret did not breach the standard of care by operating on Mr. Johnson’s knee because Mr. Johnson acquiesced to a knee replacement procedure that on its face was below the standard of care required by Dr. Foret. In its ruling, the trial court completely ignored the deposition testimony of Mr. Johnson, the affidavit of his wife, as well as the affidavits of four expert Louisiana board-certified orthopedic surgeons, the medical records of Dr. Foret, the hospital, and the medical records of Mr. Johnson’s treating physicians in Texas, Dr. Talbert, Dr. Thompson, and Dr. Schaening. We find that the trial court committed manifest error in its ruling and hereby reverse its judgment of October 10, 2012 in favor of Dr. Foret.

DAMAGES

We now address the issue of damages based on our finding that Dr. Foret breached the standard of care in his medical treatment of Mr. Johnson and that his subsequent injuries were the result of that breach. In Robicheaux v. Adly, 02-37, p. 19 (La.App. 3 Cir. 6/12/02), 827 So.2d 429, 441, writ denied, 02-2783 (La.2/7/03), 836 So.2d 100 (quoting Craven v. Universal Life Ins. Co., 95-1168, pp. 16-17 (La.App. 3 Cir. 3/6/96), 670 So.2d 1358, 1367, unit denied, 96-1332 (La.9/27/96), 679 So.2d 1355), this court stated:

Where a fact finder does not reach an issue because of an “earlier” finding which disposes of the case, the appellate court, in reversing the earlier finding, must make a de novo determination of the undecided issues from the facts in the record. Lasha v. Olin Corp., 625 So.2d 1002 (La.1993); Austin v. Fibrebond Corp., 25,565 (La.App. 2 Cir. 2/23/94), 638 So.2d 1110, writ denied, 94-1326 (La.9/2/94), 643 So.2d 149.

I^We have conducted a complete review of the record before us. We find, and the record supports, that Mr. Johnson underwent multiple unsuccessful surgical procedures by Dr. Foret, none of which alleviated his pain and discomfort. The failed surgeries resulted in significant damage and deterioration to his right knee requiring a Patellectomy and ultimately, a complete fusion of his right knee. As a result of the surgical fusion to Mr. Johnson’s right knee, he is totally and permanently disabled from his previous employment as a painter/sandblaster/truck driver and has a continuing risk of osteomyelitis with the need for future medical care.

Mr. Johnson’s related medical expenses total an undisputed $881,562.49. Mr. Johnson also seeks an award of $500,000.00 for loss of earnings, future loss of earnings and earning capacity, and an award of general damages in the amount of $750,000.00. The record before us supports a finding that Mr. Johnson has a serious disability, a fused right knee, but has no real evidence of past or future economic loss. Moreover, except for future medical expenses, the damages claimed are in excess of the statutory cap of the Medical Malpractice Act, La.R.S. 40:1299.42(B). Though Mr. Johnson’s injuries and pain and suffering may justify a substantial award, the Louisiana Supreme Court in Oliver v. Magnolia Clinic, 11-2132, 11-2139, 11-2142 (La.3/13/12), 85 So.3d 39, reiterated its holding in Butler v. Flint Goodrich Hospital of Dillard University, 607 So.2d 517 (La.1992), cert. denied, 508 U.S. 909, 113 S.Ct. 2338, 124 L.Ed.2d 249 (1993), which found the medical malpractice cap constitutional. Any award for general damages and loss of earnings and earning capacity is limited to $500,000.00 pursuant to La.R.S. 40:1299.42(B)(1), “exclusive of future medical care and related benefits as provided in R.S. 1^40:1299.43.” Dr. Foret is a covered health care provider whose liability is limited to $100,000.00, pursuant to La.R.S. 40:1299.42(B)(2).

“Future medical care and related benefits” are defined under La.R.S. 40:1299.43(B)(l)(a) & (b). Section (a) states as follows, “All reasonable medical surgical, hospitalization, physical rehabilitation, and custodial services and includes drugs, prosthetic devices, and other similar materials reasonably necessary in the provision of such services, incurred after the date of the injury up to the date of the settlement, judgment, or arbitration award.” Section (b) provides for all of the above, but covers the period from “after the date of the injury that will be incurred after the date of the settlement, judgment, or arbitration award.”

In accordance with the supreme court’s decisions in Oliver and Butler, future medical expenses can only be claimed against the LPCF. Thus, the LPCF would have been responsible for all of Mr. Johnson’s medical bills totaling $331,562.49, plus any additional medical bills in the future that are medically related to the malpractice of Dr. Foret, payable in accordance with the statute. La.R.S. 40:1299.43(B)(l)(b). As previously noted, however, Mr. Johnson settled his claims against the LPCF, and the settlement documents are not in evidence. Hence, we express no opinion on whether any further sums are or may be owed to Mr. Johnson by the LPCF. Thus, Mr. Johnson’s claim against Dr. Foret is limited to $100,000.00, plus legal interest from the date of judicial demand and all court costs. La.R.S. 40:1299.42(B)(2).

CONCLUSION

For the forgoing reasons, the judgment of the trial court in favor of Lynn E. Foret, M.D., finding that he did not breach the standard of care in his treatment of Mr. Terry Lee Johnson, Sr. and cause his subsequent injuries, is reversed. Based on | gfithe record before this court, pursuant to the provisions of the Medical Malpractice Act, La.R.S. 40:1299.42(B)(1) & (2), and considering Mr. Johnson’s settlement with the LPCF, we hereby award damages in favor of Mr. Terry Lee Johnson, Sr. and against Lynn E. Foret, M.D., in the amount of $100,000.00, plus legal interest from March 19, 2007, the date of judicial demand until paid, plus all court costs. All costs of this appeal are assessed against Lynn E. Foret, M.D.

REVERSED AND RENDERED.

GREMILLION, J., dissents and assigns reasons.

GREMILLION, J.,

dissents.

_JjThe majority ignores the manifest error standard of review in order to reach the conclusion it deems more reasonable. First, rather than noting the manifest error standard of review, the majority spends several pages attempting to “reconcile” some issue regarding summary judgments despite the fact that there is no summary judgment at issue here. Furthermore, no appellate court in this state, nor the supreme court, has ever identified such a need for reconciliation.

The trial court was tasked with determining whether Dr. Foret breached the applicable standard of care. Instead of reviewing the testimony of the witnesses who addressed this question, the majority examined page after page of medical records from health care providers who never answer the question; that is, they never opine that Dr. Foret breached the applicable standard of care.

For example, the majority exhaustively recites the medical records of Dr. Ronald E. Tolbert. However, Dr. Tolbert’s opinion as to whether Dr. Foret breached the applicable standard of care is not found in the record. The majority tries to sanitize that fact by pointing out that Dr. Tolbert’s opinion was “obviously intended to have been filed into evidence.”

The majority goes through the medical records of Dr. Orlando Schaening to try to answer the question “Does Dr. Schaening believe that Dr. Foret breached the |2applicable standard of care?” We obviously cannot know, as his answer to that question is not expressed in his records.

What about Dr. Daniel Thompson? Again, the majority thoroughly reviews Dr. Thompson’s records. However, this record does not contain Dr. Thompson’s opinion as to whether Dr. Foret breached the applicable standard of care.

When all of this clutter is cleared away, the record contains the opinions of four doctors (Dr. Michael Acurio, Dr. J. David DeLapp, Dr. Brian Frentz, and Dr. William L. Overdyke) who were asked the proper question. Those four doctors clearly opined that Dr. Foret breached the applicable standard of care. But it is well established that “witnesses are weighed and not counted, and the weight to be given evidence is not determined by the number of witnesses.” Duhon v. Slickline, Inc., 449 So.2d 1147, 1151 (La.App. 3 Cir.), writ denied, 452 So.2d 172 (1984). The court of appeal is not entitled to reverse the trial court’s opinion merely because it would have weighed the evidence differently. Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106 (La.1990).

The last step in the majority’s long trip around manifest error is to attack the evidence that requires that we affirm the trial court. There is absolutely nothing in the record before us that would render the opinion of Dr. Michael McGuire, a board-certified orthopedist, any less competent or credible than the other doctor witnesses. Dr. McGuire opined that Dr. For-et “did adhere to the appropriate standard of care.” The majority repeatedly disparages Dr. McGuire’s opinion as being from out of state, as being relied upon too heavily, and as being “unsupported.” Ironically, however, the majority relies heavily on experts who, in fact, provide no opinions at all, be they “unsupported” or otherwise.

| a“When the expert opinions contradict concerning compliance with the applicable standard of care, the trial court’s conclusions on this issue will be granted great deference. It is the sole province of the factfinder to evaluate the credibility of such experts and their testimony.” Charpentier v. Lammico Ins. Co., 606 So.2d 83, 87 (La.App. 8 Cir.1992).

The majority does not like it, but this is the essence of the manifest error standard of review. The trial court was clearly within its province when it found Dr. McGuire’s expert opinion more credible than those of the other experts who provided the necessary opinions. I, therefore, would affirm the trial court, and I respectfully dissent.

      . An arthrotomy is an incision into the joint.

      . A bursectomy is removal of the bursa, a small sac filled with synovial fluid that cushions adjacent structures, usually due to infection.

      . The settlement documents were not filed in evidence and hence this opinion does not address any continuing potential claims Mr. Johnson may have for future medical expenses against the LPCF pursuant to La.R.S. 40:1299.43(B)(1)(b).

      . An arthrodesis is a fusion of the knee.

      . A patellectomy is the removal of the patella.


source: Caselaw Access Project

author: KEATY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Tony JACKSON aka Leoanrdo Jackson aka Leon Jackson aka Leonardo Marice Jackson aka Leonard Maurice Jackson aka Leonard Jackson aka Leonardo Jackson aka Leonardo M. Jackson aka Leonard M. Jackson.
    No. 14-9.
    Court of Appeal of Louisiana, Third Circuit.
    June 18, 2014.

      Michael Harson, District Attorney, Alan P. Haney, Assistant District Attorney, Lafayette, LA, for Appellee, State of Louisiana.
    Edward K. Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Tony Jackson.

      Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

| defendant, Tony Jackson, was convicted by a jury of armed robbery of the Olive Garden restaurant located in Lafayette, Louisiana, in violation of La.R.S. 14:64. After a sentencing hearing, Defendant was sentenced to fifty years at hard labor with fifteen years of the sentence to be served without the benefit of probation, parole, or suspension of sentence. Defendant appeals his conviction and sentence alleging that: (1) the jury erred in finding him guilty of committing the armed robbery of the restaurant beyond a reasonable doubt and (2) the trial court imposed an excessive sentence. For the following reasons, we affirm and remand with instructions.

FACTS & PROCEDURAL HISTORY

On October 25, 2007, as the restaurant was closing for the evening, the Olive Garden in Lafayette, Louisiana, was robbed by two armed gunmen wearing ski masks and gloves. The gunmen moved the employees who remained at the restaurant to the back office and demanded money. They took money from the business’ safe and the manager’s wallet, totaling an estimated $854.00, and left the restaurant. Shortly thereafter, Officer Ron Czajkowski of the Lafayette Police Department spotted a vehicle with no lights on and sought to stop the vehicle. When the officer attempted to make the stop, a car chase ensued. The two occupants of the vehicle thereafter abandoned the automobile behind a local business and escaped on foot.

On December 21, 2007, Defendant was charged by a bill of information with one count of armed robbery and one count of possession of a firearm by a convicted felon, a violation of La.R.S. 14:95.1. Alexis Almaguer was also charged in the armed robbery as a co-defendant. Victoria Roberts, Almaguer’s girlfriend, |¡>was arrested for accessory after the fact to armed robbery. The charges against Victoria were later dismissed. On December 27, 2007, Defendant entered a plea of not guilty to the charge of armed robbery. Count two of the bill of information, the charge of possession of a firearm by a felon, was severed for trial. Defendant’s trial by jury on the sole count of armed robbery began on January 31, 2012. Following trial, the jury reached a unanimous verdict of guilty. On May 29, 2012, Defendant was sentenced to fifty years at hard labor with fifteen years of the sentence to be served without benefit of probation, parole, or suspension of sentence. Thereafter, the State, on its own motion, dismissed the second count pertaining to the possession of a firearm by a felon.

On September 17, 2013, a Motion for an Out of Time Appeal was filed on behalf of Defendant and granted by the trial court. For the reasons set forth herein, we affirm Defendant’s conviction and sentence. We remand to the trial court with instructions to provide Defendant with written notice of the provisions of La.Code Crim.P. art. 930.8.

ASSIGNMENTS OF ERROR

This court is charged with reviewing trial court proceedings for errors patent on the face of the record. La.Code Crim.P. art. 920. In so doing, we note one such error. The record reflects that the trial court provided Defendant with erroneous information pertaining to the time period for filing for post-conviction relief. At sentencing, Defendant was advised that he had two years from the date of sentencing to apply for post-conviction remedies. However, in accordance with La.Code Crim.P. art. 930.8, the prescriptive period for filing for post-conviction relief is two years from the date upon which a defendant’s conviction and sentence become final as per La.Code Crim.P. arts. 914 or 922.

lain accordance with La.Code Crim.P. art. 930.8, the trial court is ordered to inform Defendant, by written notice, within ten days of the rendition of this opinion, of the prescriptive period for the application for post-conviction relief. Thereafter, the trial court shall file written proof in the record of these proceedings that Defendant received such notice. State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La.2/10/06), 924 So.2d 163.

I. Defendant’s First Assignment of Error

The trial court erred in finding Tong Jackson guiltg of armed robberg begond a reasonable doubt.

In his first assignment of error, Defendant contends that the trial court erred in finding him guilty of armed robbery as the evidence was insufficient to conclude that he was guilty of the offense charged beyond a reasonable doubt. For the reasons set forth herein, we find that Defendant’s first assignment of error is without merit.

This court has stated the following regarding the standard for reviewing a claim of insufficient evidence. The standard of review in a sufficiency of the evidence claim is “whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged.” State v. Leger, 05-11, p. 91 (La.7/10/06), 936 So.2d 108, 170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007). The foregoing Jackson standard of review is now legislatively embodied in La.Code Crim.P. art. 821. It does not allow the appellate court “to substitute its own appreciation of the evidence for that of the fact-finder.” State v. Pigford, 05-477, p. 6 (La.2/22/06), 922 So.2d 517, 521. The appellate court’s Rfunction is not to assess the credibility of witnesses or reweigh the evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.

It is well settled that the fact finder’s role is to weigh the credibility of witnesses. State v. Ryan, 07-504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268. An appellate court should not second guess the credibility conclusions of the trier of fact, but rather, should defer to the rational credibility and evidentiary determinations of the jury. Id. The appellate court may impinge on the fact finder’s discretion and its role in determining the credibility of witnesses “only to the extent necessary to guarantee the fundamental protection of due process of law.” State v. Mussall, 523 So.2d 1305, 1310 (La.1988). As stated herein, upon viewing evidence in the light most favorable to the prosecution, the question for the appellate court is whether, on the evidence presented' at trial, “ ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” State v. Strother, 09-2357, p. 10 (La.10/22/10), 49 So.3d 372, 378 (quoting Jackson, 443 U.S. 307, 99 S.Ct. 2781).

In those cases relying on circumstantial evidence, the fundamental principle of review means that when a jury “reasonably rejects the hypothesis of innocence presented by the defendant’s own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt.” State v. Captville, 448 So.2d 676, 680 (La.1984). In the present case, Defendant avers that his co-defendant, Alma-guer, lied about his participation in the robbery to protect his stepbrother, Mario Teharis.

A review of the evidence considered by the jury reveals the testimony by Defendant’s co-defendant, Almaguer, Almaguer’s girlfriend, Victoria, the general manager and assistant manager of the Olive Garden restaurant, sevei’al members of |sthe Lafayette Police Department as well as a DNA analyst with the Acadiana Crime Lab who was accepted as an expert in DNA analysis.

The prosecution’s main witness was Defendant’s co-defendant, Almaguer. Alma-guer testified that on the day of the robbery, he and Defendant went to the apartment of Almaguer’s girlfriend, Victoria, after work. Almaguer stated that the two men stayed for a couple of hours. Sometime thereafter, they decided to rob the restaurant. Almaguer testified that the two men entered the restaurant wearing masks and gloves. According to Al-maguer, both men were armed with guns. Almaguer stated that when they left Victoria’s apartment, his gun was already in the vehicle, but he did not know where Defendant’s gun was located. He further stated that the masks were already in the vehicle as he had previously purchased them for Halloween.

After entering the restaurant, both men demanded money. The men took money from the restaurant safe as well as the manager’s wallet. Almaguer stated that the two men quickly left the restaurant in Almaguer’s automobile driving towards the Acadiana Mall. They then stopped the vehicle and took off on foot and headed in different directions. Almaguer positively identified Defendant as the man who accompanied him into the Olive Garden restaurant and participated with him in the robbery of that business. Almaguer was unequivocal in his testimony that his stepbrother, Teharis, did not commit the robbery of the Olive Garden restaurant with him. Under cross-examination, Almaguer admitted that Teharis was at Victoria’s apartment where he was visiting his girlfriend, Tess Roberts, but that Teharis did not assist with the plans for the robbery. Almaguer testified that Teharis and Tess were still at Victoria’s apartment when he and Defendant left to commit the crime.

| i;The prosecution also presented the testimony of Michelle Stelly, the restaurant’s assistant manager. Stelly testified that two people wearing masks entered the restaurant. She stated she thought, based on the voice of one of the robbers, that he was black. She testified that the masked person told the manager, Michael McQuade, to get down and crawl to the corner office. She stated that she then saw another masked man, armed with a gun, wearing white tennis shoes with some kind of blue mark on them. She also noticed that the other man was wearing black “distressed” dress shoes. She further testified that she was unable to identify either man because they both wore masks.

McQuade, the restaurant’s general manager, testified that at about 10:40 p.m. on the night of the robbery, two people wearing masks entered the restaurant. McQuade stated that he was counting money with his assistant manager in the cash booth area. He was sealing the last deposit, an estimated $855.00, when he heard someone yell to give him the money. McQuade stated that the first robber put a gun to his head and demanded all of the money. McQuade told the robber that the rest of the money was located in his office. He indicated that the robber made him crawl to his office where he opened the safe. Once the safe was opened, the first robber threw the manager to the ground and started to go through the contents of the safe. According to McQuade, the robbers took “a couple of things” along with his wallet. According to the manager, the entire incident lasted about six to seven minutes. After the robbers left the restaurant, McQuade called 911 to report the crime.

Victoria, Almaguer’s girlfriend, testified that at the time of the robbery, she was living on Jeffrey Drive in Lafayette. She stated that both men were at her apartment on the date in question. Contrary to Almaguer’s testimony, she testified |7that Teharis was not at her apartment that day. Victoria stated that the men arrived at her apartment dressed in work clothes and stayed for about two or three hours. She saw Almaguer the next morning around 5:00 a.m. Victoria also encountered the police that same morning. The police had a search warrant and searched her apartment. Victoria testified that about a month before the robbery, she, Teharis, Almaguer, and Defendant all went out to eat at the Olive Garden restaurant. She further stated there were no discussions that night of robbing the restaurant, and further, she was not involved in the planning of the robbery.

On cross-examination, Victoria stated that the two men came to her home at about 5:30 p.m. that afternoon and stayed for about an hour. Defendant left for the store at approximately 7:30 p.m. Victoria stated that she did not see Defendant at her apartment again. She stated that she did not let Defendant back into her apartment that night. Victoria adamantly stated that Teharis was not at her apartment on the night of the robbery. She indicated that she would be surprised to know that Defendant had secreted himself in her bathroom closet in possession of $854.00.

During the course of the trial, several Lafayette Police Officers testified on behalf of the prosecution. Officer Czajkow-ski testified that he was on patrol on the night of the robbery. He received a dispatch regarding the robbery, and, on his way to the restaurant, he observed a vehicle approaching him without its headlights on. He began following the vehicle whereupon he observed two men exit the vehicle and run into some woods nearby. Officer Czajkowski stayed with their vehicle, and the suspects were not apprehended. Officer Czajkowski described the suspects as two black males. When questioned if he observed any items in the vehicle, Officer Czajkowski testified he saw a money or bank bag on the back seat.

IsOfficer Terrance Olivier indicated that he was the first officer at the scene of the robbery and that the manager’s wallet was recovered from the vehicle abandoned by the two suspects after they fled on foot. Detective Judith Estorge testified that she obtained a search warrant for the premises of Victoria’s apartment located on Jeffrey Drive. Pursuant to the search of the premises, Detective Estorge confiscated $854.00 in cash, a pair of size ten black shoes, a pair of white tennis shoes, two pairs of blue jeans, a pair of gloves, a black sweatshirt, one box of forty caliber bullets, and one box of twenty-two caliber bullets. Detective Craig Mouton also collected evidence from the vehicle as well as DNA samples from Defendant and Almaguer. From the vehicle, Detective Mouton recovered two prescription bottles belonging to Almaguer, black gloves, yellow gloves, and two black ski masks. Detective Mouton testified that several items of evidence were sent to the Acadiana Crime Lab for processing for DNA. Detective Mouton also testified that shoes discovered during the search matched the description of the shoes worn by the robbers as reported by Stelly. While testifying, Detective Mouton identified Defendant as one of the persons from whom he took a reference swab for DNA testing.

Sergeant Blair Dore of the Lafayette Police Department testified that he searched the apartment on Jeffrey Drive pursuant to a search warrant on October 25, 2007. He testified that he located a box under the lavatory with money in it and took some DNA evidence and photographs. He further testified that he located a person hiding on the top shelf of a bathroom closet. He identified Defendant as that person. Additionally, Officer Beau Guidry, as he searched the apartment, discovered a Glock handgun hidden in a box of cereal.

l9The jury also heard the testimony of Stephanie Buford, Almaguer’s mother. She testified that she owns a green Infiniti automobile and that her son had use of it. She testified that she did not see Teharis on the evening of October 25, 2007, but that Teharis had slept at her home the night before. There was a conflict in the testimony between Almaguer and his mother. Almaguer testified that Teharis was with him the night of the robbery. Buford insisted that Teharis was at her house that night.

The State’s final witness was DNA analysis expert, Carolyn Booker, an employee of the Acadiana Crime Lab. Booker tested eighteen items in connection with this case. Booker tested a black glove found on the floorboard of the vehicle as well as a yellow glove confiscated from the passenger side of the Infiniti. Booker concluded with “reasonable scientific certainty” that Defendant was the source of the DNA found on these gloves. On a mask found on the front floorboard of the vehicle, Booker discovered a mixture of DNA from three people. Additionally, Booker tested DNA found on the mask found on the back passenger side of the automobile as well as the Glock firearm. Her testimony reflects that she could not exclude either Almaguer or Defendant as contributors to the DNA found on those items.

Defendant contends that Almaguer is identifying him as his co-defendant to protect his stepbrother, Teharis. After examining Teharis’s profile, DNA expert Booker explained that all three men could not be excluded as contributors to the mask found on the passenger side of the vehicle. Although Booker could not tell the jury when each man deposited his DNA on the mask, she explained that if more than one person put the mask on, she would be able to detect more than one person’s DNA. However, Booker clearly testified that the DNA found on the left 11f)black glove with the red lining and on the left yellow glove was “the DNA from one single person and it matched the DNA from Tony Jackson.”

The defense called Almaguer on cross-examination, and he again testified, contrary to his mother, that Teharis was at Victoria’s apartment on the day of the robbery. He denied that he had ever seen Teharis driving the green Infiniti.

Defendant presented his own DNA expert, Gina Pineda. She reviewed the DNA analysis conducted by the Acadiana Crime Lab. She testified that she reviewed the lab’s results, interpreted those results, and made her own conclusions. She then compared Teharis’s reference profile with not only the masks and gloves but also the steering wheel. She concluded that Te-haris came into contact with the vehicle’s steering wheel, but just as the State’s expert, Booker, she could not tell when Te-haris came into contact with the steering wheel or how his DNA got there. Pineda did confirm that the DNA testing performed by the Acadiana Crime Lab was standard and usual in its methods.

Defendant contends that no rational trier of fact could have found him guilty of the crime charged of armed robbery. A review of the testimony received at trial viewed in a light most favorable to the prosecution clearly supports the finding of the jury.

It is well settled that “[a]s a general matter, when the key issue is the defendant’s identity as the perpetrator, rather than whether the crime was committed, the state is required to negate any reasonable probability of misidentification.” State v. Neal, 00-674, p. 11 (La.6/29/01), 796 So.2d 649, 658, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). It is also well settled that a witness’s testimony alone is sufficient to support a verdict as long as that testimony was believed by the trier of fact and that the testimony does not contain internal |,1 contradictions or irreconcilable conflicts with physical evidence. State v. Dorsey, 10-216 (La.9/7/11), 74 So.3d 603, cert. denied, — U.S. —, 132 S.Ct. 1859, 182 L.Ed.2d 658 (2012). In Dorsey, 74 So.3d at 634 (citations omitted), our supreme court concluded that,

A victim’s or witness’s testimony alone is usually sufficient to support the verdict, as appellate courts will not second-guess the credibility determinations of the fact finder beyond the constitutional standard of sufficiency. In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness’s testimony, if believed by the fact finder, is sufficient support for a requisite factual conclusion.

The record is not devoid of contradictory testimony. Almaguer testified that Teharis was at Victoria’s apartment on the night of the robbery. Almaguer’s mother testified that Teharis was at her home. However, as explained in State v. Bender, 598 So.2d 629, 636 (La.App. 3 Cir.), writ denied, 605 So.2d 1125 (La.1992):

When a witness is impeached, this simply means the jury, as the trier of fact, was presented with evidence which it could consider and weigh in determining the credibility, or believability, of a witness. Simply because the witness may have been impeached by prior inconsistent statements does not mean that the jury was prohibited from believing anything said by the witness. The inconsistencies in the witness’s statements are one of any number of factors the jury weighs in determining whether or not to believe a witness’s trial testimony.

Co-defendant Almaguer’s testimony alone was sufficient to convict Defendant of armed robbery.

At the outset it should be noted that Defendant was unequivocally identified by his co-defendant, Almaguer, as the person who perpetrated the crime of armed robbery of the Olive Garden restaurant on October 25, 2007. Almaguer’s girlfriend placed the two men together at her apartment the night of the robbery. Alma-guer’s testimony was corroborated by the DNA evidence connecting Defendant to the vehicle, masks, and gloves found by the police in the vehicle and 112in the apartment of Almaguer’s girlfriend. Clothing worn by the robbers, as described by eyewitnesses, was found at the girlfriend’s apartment by police during their search of the premises. The State’s DNA expert testified that DNA from Defendant was present on two of the gloves. Perhaps, most compelling is the discovery of Defendant hiding in Victoria’s bathroom behind a blanket and a pack of toilet tissue in close proximity to a sum of cash within a dollar or two of the amount of money taken in the robbery.

The jury heard the testimony of Almaguer that Teharis was at Victoria’s apartment the night of the robbery as well as Victoria’s testimony that she did not see Teharis that night. Almaguer’s mother told the jury that Teharis was at her house the night of the crime. The jury considered Defendant’s hypothesis of innocence contending that Teharis was Almaguer’s criminal partner that night. The jury rejected Defendant’s theory of the crime. A reviewing court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. State v. Calloway, 07-2806 (La.1/21/09), 1 So.3d 417. With respect to a jury’s rejection of a hypothesis of innocence, our supreme court in Calloway, 1 So.3d at 422 (citations omitted), concluded:

[W]e have repeatedly cautioned that due process, rational fact finder test of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), does not permit a reviewing court to substitute its own appreciation of the evidence for that of the fact finder or to second guess the credibility determinations of the fact finder necessary to render an honest verdict. A reviewing court may intrude on the plenary discretion of the fact finder “only to the extent necessary to guarantee the fundamental protection of due process of law.” Thus, as Judge Pettigrew emphasized, when a jury reasonably and rationally rejects the exculpatory hypothesis of innocence offered by a defendant’s own testimony, an appellate court’s task in reviewing the | ^sufficiency of the evidence under the Due Process Clause is at an end unless an alternative hypothesis “is sufficiently reasonable that a rational juror could not ‘have found proof of guilt beyond a reasonable doubt.’ ”

The jury’s decision to reject Defendant’s hypothesis regarding the commission of the crime was based upon its rational credibility and evidentiary determinations. Accordingly, the jury’s verdict should not be overturned. Thus, Defendant’s first assignment of error lacks merit.

II. Defendant’s Second Assignment of Error

The trial court erred in imposing an excessive sentence.

Defendant contends that the trial court erred by imposing an excessive sentence. It is noteworthy that counsel for Defendant acknowledges that no motion was filed on Defendant’s behalf requesting that Defendant’s sentence be reconsidered. Additionally, it is noted that Defendant made no objection to the sentence when it was imposed. In State v. Batiste, 09-521 (La.App. 3 Cir 12/9/09), 25 So.3d 981, our court found that where there has been no motion to reconsider sentence as per La. Code Crim.P. art. 881.1(E), the review of one’s sentence is limited to a bare claim of excessiveness. In addition, the failure to file such motion prevents Defendant from addressing the trial court’s alleged failure to comply with La.Code Crim.P. art. 894.1 which requires the trial court to state for the record the considerations taken into account and the factual basis for imposing its sentence. State v. Evans, 09-477 (La.App. 5 Cir. 12/29/09), 30 So.3d 958, writ denied, 10-363 (La.3/25/11), 61 So.3d 653. This court in State v. Bamburg, 00-675 (La.App. 3 Cir. 11/2/00), 772 So.2d 356, found that because the defendant failed to object to his sentence at the sentencing hearing and did not timely file a motion to reconsider his sentence, his claim that his sentence was excessive was barred. | nContrarily, our court has “reviewed claims of excessiveness where no objection was made and no motion to reconsider sentence was filed.” State v. Johnlouis, 09-235, p. 21 (La.App. 3 Cir. 11/4/09), 22 So.3d 1150,1163, writ denied, 10-97 (La.6/25/10), 38 So.3d 336, cert. denied, — U.S. —, 131 S.Ct. 932, 178 L.Ed.2d 775 (2011). We elect to review Defendant’s claim that his sentence was excessive.

The trial court, upon imposing sentence, stated that it had reviewed the pre-sentence investigation, particularly Defendant’s prior criminal record. The trial court acknowledged it considered the aggravating and mitigating circumstances as per the applicable provisions of the Louisiana Code of Criminal Procedure. The trial court then sentenced Defendant to fifty years at hard labor. Fifteen of the fifty years must be served without benefit of probation, parole, or suspension of sentence.

Although Defendant’s pre-sentence investigation report was not originally a part of the appellate record, this court obtained a copy of the report for review. The report provides a picture of a forty-six-year-old man with a lengthy juvenile record dating back to when he was only thirteen years old. His adult criminal history characterizes him as a third-felony offender. His criminal background includes numerous arrests and convictions for crimes against the person, including offenses committed as a juvenile for which he was tried as an adult. Defendant pled guilty in 1999 to attempted robbery and carjacking in Florida. He received probation which was subsequently revoked. He was sentenced again in 1999 to a probated sentence for robbery and vehicle theft. This probated sentence was also subsequently revoked. The report further reflects Defendant has two pending armed robbery charges that are factually similar to the Olive Garden robbery. | ^Defendant’s pre-sentence investigation report recommended a sentence significantly more severe than the sentence imposed by the trial court.

Louisiana Revised Statutes 14:64(B) provides the penalty for the crime of armed robbery as follows: “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.” Defendant’s sentence in this case falls within the middle range of acceptable sentences under the statute.

La. Const, art. 1, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331.

[E]ven when a sentence falls within the statutory sentencing range, it still may be unconstitutionally excessive, and in determining whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, this court has suggested that several factors may be considered:

[An] appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences | ^imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00); 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, 958.
State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061.

State v. Decuir, 10-1112, pp. 12-13 (La.App. 3 Cir. 4/6/11), 61 So.3d 782, 791.

According to our supreme court, sentences “within the thirty-five to fifty-year range ... [are] acceptable for first offenders convicted of armed robbery.” State v. Smith, 01-2574, p. 7 (La.1/14/03), 839 So.2d 1, 4. Additionally, the Louisiana Supreme Court has described armed robbery as 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 ex rel. Sullivan, Sr. v. Maggio, 432 So.2d 854, 856 (La.1983). Considering the seriousness of an armed robbery offense in general, the seriousness of the armed robbery offense committed in the present case, and Defendant’s prior criminal history, we find that the trial court did not abuse its discretion in its imposition of sentence.

Lastly, Defendant alleges that his co-defendant, Almaguer, was the more culpable of the two defendants and alleges that his co-defendant orchestrated the criminal undertaking. There is no finding by the jury regarding comparable culpability. Defendant’s co-defendant pled guilty to armed robbery and possession of a firearm by a felon, and his sentences for his crimes were imposed by the trial court. The fact that the co-defendant’s sentence was less than that of Defendant is not equivalent to Defendant being penalized for maintaining his innocence as [ ^suggested by counsel. Similarly, the law does not seek to penalize defendants for the errors or omissions of their counsel. Rather, the law provides a necessary orderly and structured manner in which to afford due process to those accused of criminal wrongdoing.

Defendant asserts that he received a harsher sentence than his co-defendant. As we stated in State v. Lofton, 97-383, p. 5 (La.App. 3 Cir. 10/8/97), 701 So.2d 712, 715, writ denied, 98-389 (La.6/5/98), 720 So.2d 679, “it is well settled that a sentence must be individualized as to each defendant. Even when dealing with co-defendants or other defendants with similar records, there is no requirement that the sentences be the same.”

We find that, although the reasons provided by the trial court were scant, the trial court clearly stated that it reviewed Defendant’s pre-sentence investigation report and considered all of the aggravating and mitigating factors as per the applicable statute. Further, this court has considered Defendant’s long criminal history, the pre-sentence report and its recommendations regarding sentencing, and the testimony of the various witnesses at trial regarding Defendant’s involvement in this violent crime. We conclude Defendant received an individualized sentence that is not excessive under the law. In accordance with La.Code Crim.P. art. 881.4(D), this court finds that the record supports the sentence imposed upon Defendant. Therefore, we shall not set aside Defendant’s sentence for excessiveness. For these reasons, this assignment lacks merit.

DECREE

We hereby affirm Defendant’s conviction for armed robbery. We also affirm the sentence imposed by the trial court. In accordance with La.Code Crim.P. art. 930.8, we order the trial court to inform Defendant, by written notice, within | ,sten days of the rendition of this opinion, of the prescriptive period for the application for post-conviction relief. Thereafter, the trial court shall file written proof in the record of these proceedings that Defendant received such notice.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . Jackson v. Virginia, 443 U.S. 307, 99 S.Ct 2781, 61 L.Ed.2d 560 (1979).


author: EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana v. Corey J. LADD.
    No. 2013-KA-1663.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 2, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, Donna Andrieu, Assistant District Attorney, Parish of Orleans, New Orleans, LA, for Appellee/State of Louisiana.
    Powell W. Miller, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).
   EDWIN A. LOMBARD, Judge.

hThe defendant, Corey J. Ladd, appeals his sentence, arguing that it is unconstitutionally excessive. After review of the record in light of the applicable law and argument of the parties, we vacate that portion of his sentence prohibiting parole and affirm the sentence as amended.

Relevant Facts and Procedural History

The defendant was arrested on August 25, 2011, pursuant to a traffic stop wherein it was discovered that he (a passenger) was in possession of a plastic baggie containing marijuana tucked into his waistband. On October 7, 2011, he was charged by bill of information with possession of marijuana, third or subsequent conviction, in violation of La.Rev.Stat. 40:966(E)(3). In addition, the State filed a multiple bill of information against him, charging him under La.Rev.Stat. 15:529.1 as a “Multiple Offender-Marijuana.” On May 29, 2013, a six-person jury found the defendant guilty of possession of marijuana third offense.

On September 4, 2013, he was sentenced to serve ten years at hard labor with the Louisiana Department of Corrections with credit for time served and assessed $45.00 to be paid to the Indigent Transcript Fund. This sentence was vacated after a multiple bill hearing wherein the defendant was found to be the same person who pleaded guilty to possession of Hydroco-done, a violation of LajRev.Stat.2 40:967(e), on June 21, 2004, in Case Number 04-1883 “F” and who pleaded guilty to possession of LSD, a violation of La.Rev.Stat. 40: 966(c), on April 20, 2006, in Case Number 05^4995 “F.” Based upon the finding that the defendant was a third felony offender, he was sentenced to serve twenty years with the Louisiana Department of Corrections without benefit of parole, probation, or suspension of sentence.

Error Patent

La.Rev.Stat. 40:966E (3) requires that upon a third or subsequent conviction the offender be sentenced to imprisonment with or without hard labor for not more than twenty years. In turn, La.Rev.Stat. 15:529.1G provides that any sentence imposed under the provisions of this Section shall be at hard labor without benefit of probation or suspension of sentence. Notably, neither provision requires that a person so convicted and adjudicated serve that sentence without benefit of parole. Accordingly, to the extent that the defendant’s sentence is without benefit of parole, it is illegal. Accordingly, we amend the sentence to delete that portion prohibiting parole.

Assignment of Error

The defendant contends that his sentence is unconstitutionally excessive because it makes no “measurable contribution to acceptable goals of punishment”. Specifically, he points out that he is a nonviolent drug user who stands convicted of possessing roughly a half ounce of marijuana who previously pleaded guilty (at age eighteen) to possession of LSD and (at age twenty-one) to possession of hydroco-done. He was twenty-five when arrested and is presently twenty-eight; under his current sentence he will be forty-five years of age when he is released from prison. Accordingly, he asserts that a twenty year sentence is unwarranted |3for possession of a minimal amount of marijuana by a defendant with no history of violence or of sexual offenses and should be found excessive. In addition, the defendant notes that the 2013 Louisiana Legislature recently considered lowering the penalty for third offense to a maximum of five years. House Bill Number 103 was approved by the Senate Judiciary Committee, which considered ending enhancement of marijuana charges, but the full Senate failed to approve the bill before the Legislature adjourned.

Applicable Law

A sentence is unconstitutionally excessive if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime. State v. Telsee, 425 So.2d 1251 (La.1983). Mandatory minimum sentences imposed on multiple offenders under the Habitual Offender Law are presumed to be constitutional, State v. Johnson, 97-1906, pp. 5-6 (La.App. 4 Cir. 3/4/98), 709 So.2d 672, 675, and defendant bears the burden of rebutting that presumption. State v. Short, 96-2780, p. 8 (La.App. 4 Cir. 11/18/98), 725 So.2d 23, 27. To rebut the presumption that a mandatory minimum sentence is constitutional, the defendant must clearly and convincingly show that:

[he] is exceptional, which in this context means that because of unusual circumstances, the defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.

State v. Lindsey, 99-3302, p. 5 (La.10/17/00), 770 So.2d 339, 343.

|4In making this sentencing determination, the trial judge may consider a defendant’s record of non-violent offenses, but “it cannot be the only reason, or even the major reason, for declaring such a sentence excessive” because the “defendant’s history of violent or non-violent offenses has already been taken into account under the Habitual Offender Law for third and fourth offenders, which punishes third and fourth offenders with a history of violent offenses more severely than those with a history of non-violent offenses.” Id. Moreover, the Louisiana Supreme Court explicitly warned that “the sentencing court’s role is not to question the wisdom of the Legislature in requiring enhanced punishments for multiple offenders, but rather to determine whether the particular defendant before it has proven that the minimum sentence is so excessive in his case that it violates Louisiana’s constitution.” Lindsay, supra.

Recently, in a case similar to the instant case, the defendant was convicted of a fourth offense possession of marijuana and adjudicated as a third felony offender based on two prior guilty pleas to possession of cocaine. Although the mandatory minimum under the Habitual Offender Law is thirteen and a half years, in a downward departure, the trial court sentenced him to a five year term of imprisonment. Pursuant to the State’s writ application, this court found that the trial court failed to articulate sufficient reasons to justify its downward departure and remanded the matter back to the trial court to amplify its reasons. State v. Noble, 2012-0186 (La.App. 4 Cir. 8/9/12) (un-pub’d). On remand, the trial court adopted the previously enunciated reasons, including the facts that the defendant supported seven children, two of whom have significant medical problems, and that all of his offenses had been non-violent. The trial court also expressed concern about the sentencing ranges authorized by Louisiana law generally for 15possession of marijuana, opining that possession of marijuana is a less serious crime than possession of other controlled dangerous substances such as cocaine. Noting that possession of small quantities of marijuana is punished more harshly under state than federal law, the trial judge expressed disbelief that possession of marijuana, which is enhanced for repeated violations, should be further subject to enhancement under the Habitual Offender law. Finally, the trial court noted that defendant’s offenses all involved the possession of small quantities of narcotics and were committed over several years.

This court, finding that the trial court on remand had articulated sufficient reasons, denied the State’s subsequent writ application. State v. Noble, 2012-0850 (La.App. 4 Cir. 7/26/12) (unpub’d). This decision was reversed by the Louisiana Supreme Court which found as follows:

The courts below erred. Defendant was properly adjudicated and sentenced as a third felony offender because the prior felony convictions alleged in the habitual offender bill filed by the state formed no part of defendant’s conviction for fourth offense possession of marijuana. See State v. Lewis, 12-1835 (La.11/30/12), 104 So.3d 407. The mandatory minimum sentence provided by the Habitual Offender law in this instance is 13 1/3 years imprisonment at hard labor without benefit of probation or suspension of sentence. The legislature has the sole authority under the Louisiana Constitution to define conduct as criminal and provide penalties for such conduct. La. Const, art. Ill, § 1. Given the legislature’s plenary authority, departures from mandatory minimum sentences by their nature must be exceedingly rare, and the class of exceptional offenders for whom presumptively-constitutional mandatory minimum terms of imprisonment are nevertheless excessive as applied to them, exceedingly narrow. State v. Johnson, 97-1906, p. 9 (La.3/4/98), 709 So.2d 672, 676-77.
In the present case, the district court noted that defendant supports several children, who would also be punished by incarcerating him, and that defendant’s criminal history consists of nonviolent but repeated possession of small quantities of cocaine and marijuana. Neither factor individually or in combination defines a class of offender sufficiently narrow to qualify as exceptional. Furthermore, the district court expressed criticism for the sentences | (¡authorized for possession of marijuana in this jurisdiction generally, a criticism not limited to this particular defendant and these particular circumstances, and therefore also not a sufficiently narrowing and defining circumstance. Johnson, 97-1906 at 11, 709 So.2d at 678 (“The trial court stated that crimes of personal destruction did not warrant mandatory sentences [but] this policy decision is for the Legislature to make, not the judiciary.”). Defendant faces the enhanced sentencing ranges provided by Louisiana’s Habitual Offender Law to punish him not only for his most recent violation of this state’s controlled substances law, but also for his repeated felonious behavior over time, placing him in an unfortunately large class of offenders.
We therefore agree with the state that the district court erred in granting defendant’s motion to impose a sentence less than the minimum mandated by the Habitual Offender law. The sentence is vacated and the matter remanded for resentencing to a term of imprisonment not less than the mandatory minimum term required by law, consistent with the principles enunciated in Johnson.

State v. Noble, 2012-1923, pp. 2-4, 114 So.3d 500, 501.

Accordingly, the matter was remanded back to the trial court for resentencing and, as mandated by the Louisiana Supreme Court, the trial court reluctantly sentenced the defendant to serve the mandatory minim thirteen and one-third years. On appeal this court, also as mandated by the Louisiana Supreme Court, affirmed that sentence. State v. Noble, 13-1109 (La.App. 4 Cir. 2/12/14), 133 So.3d 703.

Conclusion

Mandatory minimum sentences imposed on multiple offenders by the Habitual Offender Law are presumed to be constitutional and we cannot find, in light of Noble, supra, that the defendant rebutted that presumption and established the excep-tionality of his circumstances such that a downward departure may be considered. Therefore, the defendant’s sentence is affirmed.

AFFIRMED.