author: PETERS, J.

text:
    STATE of Louisiana v. John Wesley PERRY, Jr.
    No. 13-566.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2013.

      James C. Downs, District Attorney, Thomas R. Willson, Assistant District Attorney, Alexandria, LA, for Appellant, State of Louisiana.
    Darrell K. Hickman, Alexandria, LA, for Defendant/Appellee, John Wesley Perry, Jr.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and JAMES T. GENOVESE, Judges.
   PETERS, J.

| ¶ This appeal is one of four now before us involving the same defendant and the same issue. In this appeal, the State of Louisiana (state) seeks reversal of the trial court’s grant of a motion to quash the bill of information filed against the defendant, John Wesley Perry, Jr., thereby dismissing the charge of possession of marijuana, a violation of La.R.S. 40:966. For the following reasons, we affirm the grant of the motion to quash the bill of information.

The basic facts surrounding this criminal charge are not in dispute. The defendant was arrested and charged with the offense of possession of marijuana with the intent to distribute. The date of the offense was July 30, 2006, and he posted a $5,000.00 bond on August 14, 2006, to secure his release from custody. Although prepared on what appears to be a standard appearance bond form, the copy of that bond in the record reflects that the defendant appears as both the principal and surety and lists his address as 2323 Olive Street in Alexandria, Louisiana. While it does not designate a court appearance date to answer for the charge, it does provide that the “named principal will appear at all stages of the proceedings in the Ninth Judicial District Court to answer that charge or any related charge, and will at all times hold himself amenable to the orders and process of the Court[.]” At the bottom of the form appears an attestation clause signed by the defendant without any further certification. That attestation clause contains a signature line for the approval of the Sheriff and/or Judge, but both ofpthese lines are blank.

In an October 30, 2006 bill of information, the state charged the defendant with only having committed the offense of possession of marijuana on or about July 30, 2006, a misdemeanor violation of La.R.S. 40:966, instead of the felony “intent to distribute” violation for which he was arrested. The record contains a copy of an unsigned document entitled “NOTICE OF ARRAIGNMENT” dated December 27, 2006, purporting to notify the defendant of his January 19, 2007 arraignment date for the charge. The copy bears a heading reflecting that it was generated by the Rapides Parish Sheriffs Office; contains an unsigned signature line at the bottom of the page; lists the defendant’s address as 2236 B West Sycamore Street, Alexandria, Louisiana; and includes the instruction to the defendant that “FAILURE TO APPEAR SHALL RESULT IN BOND FORFEITURE AND AN ARREST WARRANT FOR YOUR IMMEDIATE ARREST AND FOR CONTEMPT OF COURT.” The copy of the notice in the record is followed by a copy of an unsigned letter also bearing the Rapides Parish Sheriffs Office letterhead, dated December 28, 2006, but addressed to the defendant at the 2323 Olive Street address listed on the surety bond rather than the West Sycamore Street address listed on the other notice document. This letter again purports to instruct the defendant that his arraignment is scheduled for January 19, 2007, and explains the consequences of a failure to appear.

The defendant did not appear for his arraignment on January 19, 2007, and the trial court issued a bench warrant and bond forfeiture for his failure to appear. On that same day, the trial court executed a written bond forfeiture judgment. The address for the defendant listed in the judgment is the Olive Street address. The trial court record also contains a certifícate from the Rapides Parish Clerk of Court, 1 ^asserting that on March 12, 2007, that office forwarded written notice of the bench warrant and bond forfeiture judgments rendered on January 19, 2007, to the defendant at the Olive Street address. However, this certifícate does not assert that the defendant was provided with a copy of the judgment itself.

Some years later, the defendant was arrested on the bench warrant. He entered a not guilty plea to the charge now before the court at his August 10, 2012 arraignment, and filed his motion to quash the bill of information on October 8, 2012. The trial court heard the motion on November 27, 2012. With regard to evidence presented at the hearing on the motion, counsel for the state advised the trial court that “I have an exhibit which we’re going to file in globo.” The hearing transcript does not elaborate on the content of the in globo exhibit, but at a later time in the hearing, counsel for the state made the following comment:

Yes, and I’m going to — I’m going to submit, Your Honor, the minutes — the notice to Mr. Perry that was sent to 2323 Olive Street, the — also the bond information which does have that as his address. And I’m going to submit that as State’s Exhibit 1 in globo and I will submit as my memorandum, State versus Williams, which is a new case out of the Fourth Circuit and it’s 544 So.3d—no, 95 So.3d 584.

Despite this language, the record contains no exhibit, nor does it contain any reference to the trial court ordering any exhibit introduced. The trial court took all of the pending matters before it under advisement, and, by written reasons dated February 8, 2013, granted the defendant’s motion to quash in all five cases.

In its reasons for judgment granting the motion to quash as to all the pending matters, the trial court stated the following:

14Jurisprudence is clear that the mailing of the arraignment date to the Defendant’s address does not constitute actual notice. The State mailed the notice of the arraignment and did not use any other method of service. Since there was no actual notice, the prescription period for which to commence trial was not interrupted or suspended. Defendant was billed and mailed notice of the arraignment approximately one year after the arrests and the State now seeks to commence trial nearly 5 years after the Bill of Information was filed. The Court finds that the two year time limitation for the institution of prosecution has expired and the State has not met its burden of proof showing that the [sic] this time limitation has been interrupted or suspended.

On March 4, 2013, the trial court issued an order granting the motion to quash and dismissing the charge pending against the defendant. In response, the state perfected this appeal, wherein it asserted three assignments of error: 1) the trial court erred in finding there was no duty on the part of a defendant released on bond to provide the court with his/her current address; 2) the trial court erred in finding a defendant released on bond is required to receive actual notice of the date of any court appearance set in his/her case; and 8) the trial court erred in its interpretation of La.Code Crim.P. art. 579, when it decided that only actual notice would suffice for interruption of the time limitations provided by La.Code Crim.P. art. 578.

OPINION

Louisiana Code of Criminal Procedure Article 578 provides:

A. Except as otherwise provided in this Chapter, no trial shall be commenced nor any bail obligation be enforceable:
(1) In capital cases after three years from the date of institution of the prosecution.
(2) In other felony cases after two years from the date of institution of the prosecution; and
(3)In misdemeanor cases after one year from the date of institution of the prosecution.
|5B. The offense charged shall determine the applicable limitation.

In the matter now before us, the state charged the defendant with possession of marijuana, first offense, which is a misdemeanor. La.R.S. 40:966(E), La.R.S. 14:2(4) and (6). Thus, the state had one year from institution of prosecution to commence trial. La.Code Crim.P. art. 578(A)(3). Institution of prosecution began when the state filed the bill of information on October 30, 2006. La.Code Crim.P. art. 934(7). The next step in the prosecution was the defendant’s arraignment on August 10, 2012. Thus, clearly the defendant was not tried within the time limits of La.Code Crim.P. art. 578(A)(3).

The rule, repeatedly upheld by this court, is that once a defendant ... shows that his trial was not commenced within [one year] after the date of the institution of the prosecution, the State “bears the heavy burden of showing that it is excused from trying the accused on a charge later than the period mandated by [La.C.Cr.P. art.] 578.” State v. Groth, 483 So.2d 596, 599 (La.1986); State v. Amarena, 426 So.2d 613, 617 (La.1983); State v. Devito, 391 So.2d 813, 816 (La.1980) (on reh’g). This heavy burden “requires the State to exercise due diligence in discovering the whereabouts of the defendant as well as taking appropriate steps to secure his presence for trial once it has found him.” State v. Chadbourne, 98-1998, p. 1 (La.1/8/99), 728 So.2d 832. The State may discharge this burden by demonstrating that a ground for interruption exists under La.C.Cr.P. art. 579_

State v. Bobo, 03-2362, pp. 4-5 (La.4/30/04), 872 So.2d 1052, 1055-56 & n. 2.

With regard to interruption of the time period in which to begin prosecution, La. Code Crim.P. art. 579 provides:

A. The period of limitation established by Article 578 shall be interrupted if:
(1) The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state; or
(2) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other reasons beyond the control of the state; or
Ib(3) The defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears of record.
B. The periods of limitation established by Article 578 shall commence to run anew from the date the cause of interruption no longer exists.

In its reasons for judgment, the trial court stated that the appearance bond executed by the defendant “did not contain any provision in which the Defendant was instructed that he would be under any obligation to keep his address current with the agency or division in the judicial system.” The state, in its first assignment of error argues that the trial court erred in concluding that a defendant released on bond has no obligation to provide the court with his current address. While we agree with the state that La.Code Crim.P. art. 322(A) does require a defendant released on bond to file in the criminal proceedings a written declaration changing the address listed on the appearance bond document, we find that the trial court’s error in this regard is irrelevant to the issue before this court on appeal. Simply stated, there is no evidence in the record to suggest that the defendant changed his address from the address listed on the appearance bond document. Thus, we need not consider this assignment of error.

In its last two assignments of error, the state asserts that the trial court erred in concluding that a defendant released on bond must receive actual notice of the date of any court appearance and that actual notice is required to interrupt the time limitations provided by La.Code Crim.P. art. 578. This issue arises because the Rapides Parish Sheriffs Office uses the United States postal service to mail 17required notices to defendants by first class mail. The state argues that the presence in the record of the previously referenced notices dated December 27 and December 28, 2006, is proof that they were mailed; and that notice by United States first class mail is sufficient. The defendant’s position is that he did not receive the notice setting his arraignment on January 19, 2007, and there is no evidence to the contrary.

In concluding jurisprudentially that the mailing of an arraignment notice does not constitute actual notice, the trial court relied on the State v. Dillon, 11-188 (La.App. 4 Cir. 8/24/11), 72 So.3d 473. In Dillon, the defendant was arrested and bail was set, but not posted. Instead, he was released under an internal program of the prison wherein he was incarcerated. The prison document executed by the defendant to obtain his release included his home address, and after he was released from custody, the state filed a bill of information charging him with issuing worthless checks in a felony amount. The Sheriffs office thrice attempted to serve the defendant with notice of arraignment at the address provided on the prison release document, and, on the third attempt, left the notice on the door of the home located at that address.

The defendant failed to appear for arraignment, and a warrant was issued for his arrest. He was arrested on the warrant approximately twenty years later and, after his arraignment, filed a motion to quash. The trial court concluded that the notice left on the door was sufficient notice to the defendant of the arraignment date. The fourth circuit disagreed and granted the motion to quash. However, in doing so, it drew a distinction between the notice required of a defendant released pursuant to a bond obligation and one released without a bond obligation.

| sIn drawing this distinction, the fourth circuit first noted that there exists “no express provision of our procedural law specifically regarding service on a defendant of notice of his arraignment.” Id. at 476. Noting that the notice of arraignment “closely resembles the form for a subpoena of a witness[,]” the court in Dillon, stated, “We, therefore, extend the application of the procedural requirements for proper service of a subpoena to the proper service of notice of arraignment in those limited cases where the defendant is not in custody and not released on a bail undertaking.” Id. Noting that the jurisprudence provides that “leaving a subpoena on the door of a residence is not proper service[,]” the fourth circuit concluded that service by the sheriff in this case did not meet the notice requirements.

While we do not disagree with the decision in Dillon, we find it distinguishable from the case before us. Thus, we find the trial court’s reliance on that decision and conclusion that the mailing of notice of an arraignment date in all cases is insufficient to constitute notice, to be error. The Dillon court limited its decision to a situation where a defendant is not in custody and is not subject to a bail obligation. With regards to the notice requirements for a defendant released pursuant to an appearance bond obligation, La.Code Crim.P. art. 344 provides in pertinent part:

B. When a bail bond does not fix the appearance date, written notice of the time, date, and place the defendant is first ordered by the court to appear shall be given to the defendant or his duly appointed agent and his personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety.
_[⅛- • • •
D. Notice required pursuant to the provisions of this Article to the defendant and the personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety shall be made to the address provided pursuant to Article 322. Notice may be:
(2) Mailed by United States first class mail at least five days prior to the appearance date.

In the matter now before us, the defendant was released on an unsecured, personal security bond as provided for in La.Code Crim.P. art. 317, and mailing notice to him at the Olive Street address provided on the appearance bond would constitute adequate notice. Thus, the only question before us is whether the state carried its burden of establishing an interruption of the period of limitation provided in La.Code Crim.P. art. 578, by showing that the defendant failed to appear at the arraignment proceeding “pursuant to actual notice, proof of which appears of record.” La.Code Crim.P. art. 579(A)(3). We find that the state fell short of its burden of proof in this regard.

In argument to the trial court at the hearing on the motion to quash the bill of information, the state relied on “the minutes — the notice to Mr. Perry that was sent to 2323 Olive street, the — also the bond information which does have that as his address.” The minutes simply state that:

No appearance was made by accused or by attorney. State represented by C MAXWELL. Testimony given by Dep. Gus Sarpy. State offered notices and bond. Bench warrant and bond forfeiture. Bond set at 5,000.00. Contempt bond set at 10,000.00. No R O R. Commercial or cash bond only.

As previously stated, there are copies of two arraignment notices filed in the trial record. The first, in a formal notice format, is dated December 27, 2006, and addressed to the defendant at 2236 B West Sycamore Street, Alexandria, Louisiana. JjThe second, in letter form, is dated December 28, 2006, and addressed to the defendant at 2323 Olive Street, Alexandria, Louisiana. Both purport to notify the defendant that the arraignment is scheduled for January 19, 2007. However, neither copy bears a signature, and the record contains nothing to establish that either document was actually mailed.

Because the state has failed to establish that notice, mailed or otherwise, was served on the defendant, we find that the trial court properly granted the motion to quash the bill of information charging the defendant with possession of marijuana.

DISPOSITION

For the foregoing reasons, we affirm the trial court judgment granting the motion to quash filed by the defendant, John Wesley Perry, Jr., and dismissing the bill of information charging him with the offense of possession of marijuana.

AFFIRMED.

      . There were actually five cases before the trial court when it rendered judgment in all five granting the defendant’s motion to quash. These bore Ninth Judicial District Court Docket Numbers 284,807; 286,892; 286,893; 288,318; and 288,319. The issues involving Docket Number 284,807 are before us in this appeal raised in Docket Number 13-566, while Docket Number 13-567 of this court addresses the issues raised in Docket Number 286,893; Docket Number 13-568 of this court addresses the issues raised in Docket Number 286,319; and Docket Number 13-569 of this court addresses the issues raised in Docket Number 286,318. The state did not appeal the judgment in Docket Number 286,892.

      . Although the defendant’s brief in support of the motion to quash asserts that he was taken into custody on the outstanding bench warrant on July 31, 2012, after having been arrested for another unrelated offense, the trial record contains no evidence of how and when the defendant returned to the custody of the state for the possession of marijuana offense.

      . The motion to quash was filed in all of the cases before us at this time, and, because the issue was the same in all of the cases, the trial court considered the individual motions in a single hearing.

      . In 2006, Louisiana Code of Criminal Procedure Article 322(A) read as follows:
      The defendant when signing a bail bond shall write under his signature the address at which he resides. The address shall be conclusively presumed to continue for all proceedings on the bond, until he files in the proceeding in which the bond was given a written declaration changing the address.

      . In a footnote, the court explained that this oversight was "likely attributable to the circumstance that in the usual case a defendant is either incarcerated (and his appearance is arranged directly through the sheriff, his custodian) or has been released from pretrial detention on bail (which has its own notification requirements).” Dillon, 72 So.3d at 476, n. 5.


source: Caselaw Access Project

author: GENOVESE, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Rodney Ian BARNES.
    No. 13-576.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2013.

      Edward K. Bauman, Louisiana Appellate Project, Lake Charles, Louisiana, for Defendant/Appellant, Rodney Ian Barnes.
    Van Kyzar, District Attorney — Tenth Judicial District, Charles W. Seaman, Assistant District Attorney, Natchitoches, Louisiana, for Appellee, State of Louisiana.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and JAMES T. GENOVESE, Judges,
   GENOVESE, Judge.

Ijn this criminal case, Defendant, Rodney Ian Barnes, appeals his second degree murder conviction, alleging that the trial court erred in denying his motion for new trial. For the following reasons, we affirm Defendant’s conviction.

FACTUAL AND PROCEDURAL HISTORY

During a domestic argument, Defendant shot his girlfriend, Chackawanda Beard, in the presence of her two teenage daughters. She died as a result of the gunshot wound.

Defendant was charged with the second degree murder of Ms. Beard on July 29, 2010. He was originally tried for the shooting death of the victim in March 2011, and was found guilty of second degree murder; however, in State v. Barnes, 11-1242 (La.App. 3 Cir. 5/2/12), 93 So.3d 666, this court vacated the conviction and sentence and remanded the matter to the trial court for a new trial. Subsequent thereto, a jury trial commenced on September 18, 2012, following which the jury found Defendant guilty as charged by an unanimous verdict. Defendant filed a “MOTION FOR NEW TRIAL PURSUANT TO LA CCP 851” on September 26, 2012.A hearing was held on October 24, 2012, following which the trial court denied the motion in open court. On November 28, 2012, Defendant was sentenced to life imprisonment without the benefit of parole, probation, or suspension of sentence. Defendant has timely perfected an appeal.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find no errors patent.

| «ASSIGNMENT OF ERROR

In his sole assignment of error, Defendant alleges that the trial court erred in denying his motion for new trial. In his motion, Defendant alleged that the prosecutor “improperly placed into the potential jury’s mind the fact that the defendant was in jail at the time of his trial.”

During voir dire, when asked by the trial court if any of the prospective jurors knew Defendant, one of the jurors answered that he knew both Defendant and his attorney, Jason Methvin. When asked how he knew Defendant, the prospective juror answered, “Uh, did time.” Later, the prosecutor, Lala Sylvester, asked, “Mr. Wilson, number 5 on the front row please. Uh, Mr. Wilson[,] you had stated that you knew Mr. Barnes because ya’ll were incarcerated together?” Mr. Wilson answered affirmatively. Defense counsel then objected, and a bench conference was conducted. Following the bench conference, the State continued questioning potential jurors.

At the hearing on Defendant’s motion for a new trial, Defendant’s counsel argued:

Uh, during that trial, Your Honor, with the second [sic] grounds for the new trial is that injustice was caused by the trial [sic] when the State had in fact solicited from a potential juror that he in fact had spent time in jail with Mr. Barnes. At that time, I did a contemporaneous objection. Uh, I believe the ... contemporaneous objection and a move [sic] for a mistrial, based upon the fact that such a remark was at least an indirect comment, uh, as to the ... Mr. Barnes’ other crimes, because it did not specifically state that he was being held in jail for this particular crime or for another one.

The State responded: “[T]he comment that was made was ... I understand you said that you knew Mr. Barnes in jail. It did not say, Mr. Barnes is in jail at this particular time. And the prospective juror had already said that to everyone in the courtroom.” The trial court concluded:

|J remember Ms. Sylvester’s comment during voir dire whenever a juror said something like, you were in jail together or incarcerated at the same time, or at least it was said, and Mr. Methvin made his timely objection. And I felt the comment was so vague and so general that it was not prejudicial. In fact, it’s probably safe for a prospective juror or a jury to assume that if someone is arrested for murder they are going to be incarcerated at some time anyway when they are arrested, at the time of their arrest. And there was no time reference as to when this occurred. And so, it really wasn’t specific at all. We had a brief discussion about it as to whether there should be an admonition or anything like that. And my recollection was, Mr. Methvin, that we agreed that we shouldn’t admonish the jury about it or ... I denied in mistrial [sic]. And we decided not to do an admonishment, because we didn’t want to raise the issue anymore. So, I don’t find grounds there for a new trial. And so it’s denied ... a mistrial.

In brief, Defendant argues that a mistrial should have been granted pursuant to La.Code Crim.P. art. 770. Louisiana Code of Criminal Procedure Article 770, in pertinent part, provides:

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during trial or in argument, refers directly or indirectly to:
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.

Defendant contends that the comment severely prejudiced him as it portrayed him as a repeat offender. Defendant argues that the reference was not harmless error. However, it is well established jurisprudence in Louisiana that inadmissible other-crimes evidence is subject to a harmless error analysis. In State v. Peloquin, 04-667, pp. 5-6 (La.App. 3 Cir. 11/17/04), 888 So.2d 393, 397, writ denied, 04-3170 (La.4/8/05), 898 So.2d 1280, this court discussed harmless error in the context of inadmissible other-crimes evidence, as follows:

In State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94, the trial court erroneously admitted other crimes evidence introduced by the State to attack the credibility of the defendant under La.Code Evid. art. 609.1. In Johnson, the supreme court held “that the introduction of inadmissible other crimes evidence results in a trial error subject to harmless error analysis.” Id. at 102. In its ruling, the supreme court set out the following regarding the harmless error analysis:
The history of Louisiana’s harmless error rule makes clear that there has been one common directive: appellate courts should not reverse convictions for errors unless the accused’s substantial rights have been violated. This comports with the general theory that “appeals in criminal cases are not granted merely to test the correctness of the trial court’s ruling, but only to rectify injuries caused thereby.” State v. Saia, 212 La. 868, 876, 33 So.2d 665, 668 (1947), citing State v. Cullens, 168 La. 976, 123 So. 645, 648 (1929).
This Court adopted the federal test for harmless error announced in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), as a practical guide for determining whether substantial rights of the accused have been violated. See State v. Gibson, 391 So.2d 421 (La.1980). Chapman tests whether it appears “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” 386 U.S. at 24, 87 S.Ct. at 828. An error did not “contribute” to the verdict when the erroneous trial feature is unimportant in relation to everything else the jury considered on the issue. Yates v. Evatt, 500 U.S. 391, 403, 111 S.Ct. 1884, 1893, 114 L.Ed.2d 432 (1991), overruled as to standard of review for erroneous jury instructions in Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991).
Chapman was refined in Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). The Sullivan inquiry “is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” Id., 508 U.S. at 279, 113 S.Ct. at 2081. This Court adopted the \ ¡Sullivan refinement of Chapman. See State v. Code, 627 So.2d [1373,] 1384; State v. Bourque, 622 So.2d [198,] 241 fn. 20.

Id. at 100.

Finally, in State v. Chairs, 99-2908, pp. 5-6 (La.App. 4 Cir. 2/7/01), 780 So.2d 1088, 1093, writ denied, 01-892 (La.2/1/02), 808 So.2d 333 (alteration in original), the fourth circuit noted:

A mistrial is warranted under La. C.Cr.P. art. 770 when certain remarks are considered so prejudicial and potentially damaging to a defendant’s rights that even a jury admonition cannot provide a cure. State v. Johnson, 94-1379, p. 16 (La.11/27/95), 664 So.2d 94, 101. Potentially damaging remarks include direct or indirect references to another crime committed or alleged to have been committed by the defendant, unless that evidence is otherwise admissible. La. C.Cr.P. art. 770(2). The comment must be within earshot of the jury and must be made by a judge, district attorney, or other court official. Id. A comment must be viewed in light of the context in which it is made and the comment must not arguably point to a prior crime and must unmistakably point to evidence of another crime. State v. Edwards, 97-1797, p. 20 (La.7/2/99), 750 So.2d 893, 906, cert. denied, 528 U.S. 1026, 120 S.Ct. 542, 145 L.Ed.2d 421 (1999). In addition, the imputation must unambiguously point to the defendant; and[,] the defendant bears the burden of proving that a mistrial is warranted. Id. If the elements of Article 770 have not been satisfied, the decision on the motion for mistrial is governed by La.C.Cr.P. art. 771. The determination of whether a mistrial is warranted under the circumstances is within the sound discretion of the trial judge. Id. at p. 24, 750 So.2d at 908. Under Article 771, the trial court can grant a mistrial if an admonition is not sufficient to assure the defendant of a fair trial when a remark or comment made by the judge is not within the scope of Article 770. A mistrial is warranted if substantial prejudice will deprive the defendant of a fair trial. State v. Manuel, 94-0087, 94-0088, p. 4 (La.App. 4 Cir. 11/30/94), 646 So.2d 489, 491.
“Arguably, the reference to the Defendant [having an alias] may be a reference to another crime, wrong or bad act, but in order for such a reference to mandate a mistrial, there must be a distinct or recognizable reference to another crime alleged to have been committed by the defendant.” State v. Chambers, 99-679 (La.App. 3 Cir. 1/19/00), 758 So.2d 231, writ denied, 2000-0551 (La.9/22/00), 768 So.2d 600.

|fiIn the instant case, Defendant has failed to show that there was substantial prejudice that deprived him of a fair trial. As noted in Chairs, the offending remark must unmistakably point to evidence of another crime. Also, as argued by the State at the hearing on Defendant’s motion for a new trial, the prospective jurors could have reasonably concluded that Defendant was in jail because of the crime for which he was currently accused. Finally, the evidence in this case was overwhelming. The victim’s two teenage daughters witnessed the shooting. They described how he tossed their mother onto the bed and then, holding a gun to her neck, gave her to the count of five to get up. When she did not, he shot her point blank. Furthermore, although he claimed that the gun accidentally discharged when he hit her with it, he confessed that he shot her during a domestic fight.

We find that the error was “surely unattributable” to the verdict and that the trial court did not abuse its discretion when it denied Defendant’s motion for a new trial. There is no merit to this assignment of error.

DISPOSITION

We affirm Defendant’s conviction of second degree murder.

AFFIRMED.


author: PICKETT, Judge.

text:
    STATE of Louisiana v. Thaddius Brock BERGERON.
    No. 13-627.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2013.

      Michael Harson, District Attorney, Ronald E. Dauterive, Assistant District Attorney, Lafayette, LA, for Appellee, State of Louisiana.
    Daniel James Stanford, Attorney at Law, Lafayette, LA, for Defendant-Appellant, Thaddius Brock Bergeron.
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and JOHN E. CONERY, Judges.
   PICKETT, Judge.

I,FACTS

On September 11, 2006, the defendant, Thaddius Brock Bergeron, pled guilty to operating a vehicle while intoxicated in the Thirteenth Judicial District Court, Evangeline Parish, under docket number 72152-T. He was represented by counsel at the time he pled guilty. On October 10, 2006, the defendant pled guilty to operating a vehicle while intoxicated in the Eighteenth Judicial District Court, Pointe Cou-pee Parish, under docket number 72720. He was not represented by counsel at the time he pled guilty.

The defendant was charged on January 24, 2011, with operating a vehicle while intoxicated, third offense, a violation of La.R.S. 14:98. On October 11, 2012, the defendant filed a “Motion to Quash Bill of Information for 3rd Offense DWI and Incorporated Memorandum of Law.” A hearing was held on the defendant’s motion on October 25, 2012, following which the trial court denied the motion. The defendant pled guilty on February 25, 2013, to operating a vehicle while intoxicated, third offense. However, he reserved his right to appeal the October 25, 2012 denial of his motion to quash pursuant to State v. Crosby, 338 So.2d 584 (La.1976). He was sentenced to five years at hard labor with all but one year suspended, without the benefit of parole, probation, or suspension of sentence, and credit for time served.

The defendant has perfected a timely appeal, wherein he alleges the trial court erred when it ruled that he knowingly and intelligently waived his right to counsel prior to entering his guilty plea to the second offense of operating a vehicle while intoxicated; accordingly, the trial court erred when it denied his motion to |2quash the bill of information charging the current offense of operating a vehicle while intoxicated as a third offense.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find there is one error patent and the court minutes of sentencing require correction.

For third offense D.W.I., La.R.S. 14:98(D)(l)(a) (emphasis added) provides in pertinent part:

[T]he offender shall be imprisoned with or without hard labor for not less than one year nor more than five years.... One year of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence. The court, in its discretion, may suspend all or any part of the remainder of the sentence of imprisonment. If any portion of the sentence is suspended, the offender shall be placed on supervised probation with the Department of Public Safety and Corrections, division of probation and parole, for a period of time equal to the remainder of the sentence of imprisonment, which probation shall commence on the day after the offender’s release from custody.

The trial court sentenced the defendant to five years at hard labor with all but one year suspended. He was placed on probation for five years. Louisiana Revised Statutes 14:98 requires the probation to be for a period of time equal to the remainder of the sentence of imprisonment, which in this case is four years. Accordingly, we hereby amend the term of probation to four years and instruct the trial court to make an entry in the court minutes reflecting the change. Cf. State v. Jacobs, 10-292 (La.App. 3 Cir. 10/6/10), 48 So.3d 1218.

Additionally, we find the court minutes of sentencing require correction. The trial court imposed all of the conditions of probation listed on the plea form, and it reviewed some of the conditions with the defendant in open court. One of |3the conditions listed on the form is that the defendant “shall be under home incarceration pursuant to a program approved by the division of probation and parole for the remainder of the sentence of imprisonment.” However, the court minutes of sentencing state that the term of home incarceration is six months. The trial court is instructed to correct the court minutes of sentencing to correct the length of home incarceration imposed as a condition of probation.

ASSIGNMENT OF ERROR

The issue before this court is whether the second conviction for operating a vehicle while intoxicated was a valid plea for the purpose of sentencing the defendant as a third offender pursuant to La.R.S. 14:98(D)(l)(a).

The defendant alleges that at the hearing on his motion to quash the bill of information, “the State did not carry its burden of proving that Mr. Bergeron was represented by counsel or that he had knowingly and intelligently waived his right to representation by counsel.” At the hearing, the defendant argued that according to the October 10, 2006 transcript of the guilty plea hearing, the trial court did not specifically engage the defendant as to his right to counsel, that “[i]t can’t be simply yes-or-no answers[.]” However, after reviewing the record, the current trial court determined that the prior trial court engaged the defendant extensively. The prior trial court asked him whether he understood all the rights he was waiving by pleading guilty without counsel and discussed with him the differences between a plea of no contest and a guilty plea.

In brief, the defendant further points out that it was not until after the prior trial court pronounced the sentence that the court asked him certain questions regarding his age, background, education, and mental health — questions that were |4to be asked to determine a defendant’s ability to knowingly and intelligently waive counsel.

An uncounseled misdemeanor conviction, absent a valid waiver of counsel, may not serve as the predicate for enhancement of a subsequent DWI offense. See, State v. Stevison, 97-3122 (La.10/30/98), 721 So.2d 843, 844. The State bears the burden of proving that an unrepresented defendant knowingly and intelligently waived his right to counsel before pleading guilty to a predicate misdemeanor DWI that is used to enhance a subsequent DWI offense. See, State v. Boudreaux, 99-1017 (La.App. 5 Cir. 2/16/00), 756 So.2d 505, 508. Accord, State v. Rodrigue, 01-377 (La.App. 5 Cir. 8/28/01), 795 So.2d 488, 493. The determination of the validity of the accused’s waiver of counsel rests on the totality of the circumstances in each case. State v. Stevison, supra.

State v. Bush, 03-1438, p. 4 (La.App. 5 Cir. 4/27/04), 873 So.2d 795, 798.

Furthermore, in State v. Strain, 585 So.2d 540, 543-44 (La.1991), the supreme court stated:

When an accused waives his right to counsel in pleading guilty to a misdemeanor, the trial judge should expressly advise him of his right to counsel and to appointed counsel if he is indigent. The judge should further determine on the record that the waiver is made knowingly and intelligently under the circumstances. Factors bearing on the validity of this determination include the age, education, experience, background, competency and conduct of the accused, as well as the nature, complexity and seriousness of the charge. The nature of the self-representation to be undertaken is also significant, since a layman obviously can more easily understand from a brief explanation by the judge the significance of a guilty plea than he can the significance of defending himself in a felony trial, with the latent dangers and pitfalls attendant thereto. Determining the defendant’s understanding of his waiver of counsel in a guilty plea to an uncomplicated misdemeanor requires less judicial inquiry than determining his understanding of his waiver of counsel for a felony trial.

At the October 10 guilty plea hearing, the defendant was Boykinized with three other offenders. The trial court explained to all their constitutional right to have counsel appointed if they should desire, the right to a jury trial, to confront witnesses, and that it was the state’s burden to prove their guilt beyond a | ^reasonable doubt. The trial court also explained the elements of the offense of operating a vehicle while intoxicated, including the sentencing range for a first offense, and the affect of the conviction on subsequent convictions. The trial court then addressed the defendant, as follows:

THE COURT: What’s your name?
MR. BERGERON: Thaddius Bergeron.
THE COURT: All right. Mr. Berger-on, you understand your constitutional rights that I advised you of?
MR. BERGERON: Yes, sir.
THE COURT: Would you like me to repeat all or any portions of them?
MR. BERGERON: No, sir.
THE COURT: Do you have any questions about them?
MR. BERGERON: No, sir.
THE COURT: Do you give up your constitutional rights and admit to the charge of DWI First Offense?
MR. BERGERON: I’d like to plead, Your Honor, No Contest.
THE COURT: No; he’s pleading to a Second Offense?
MR. BERGERON: Yes, sir.
THE COURT: Right, Mrs. Lucas? [prosecutor] He’s pleading to a Second Offense?
MRS. LUCAS: He is pleading to a Second, Your Honor. His First, and if I could verify that for you, was September 11th, 2006, Number 72,152, Thirteenth Judicial District, Evangeline Parish; is that correct?
MR. BERGERON: Yes, ma’am.

At this point, the state explained to the trial court that the defendant had pled guilty a month earlier to the first offense of operating a vehicle while intoxicated. LHe was on a fast track expungement in that district court, but because the current (second) offense was pending, the ex-pungement could not proceed. When the trial court asked what a fast track ex-pungement was, the defendant explained it to the trial court. After discussing the basis of the plea, the trial court asked:

THE COURT: So, why are you pleading — why do you want to plead No Contest?
MR. BERGERON: That’s what I was told to plead, Your Honor.
THE COURT: Well, who told you that, may I ask?
MR. BERGERON: Just by many— many people; just — they said it’s Not Guilty and it’s — you’re -not pleading Guilty, so just plead No Contest.
THE COURT: But I mean the consequences are — there’s no difference whatsoever. The only thing a No Contest does is if you were involved in a — like an automobile accident, they couldn’t use your admission of guilt against you at a civil trial. So you just plead No Contest. That way, you make them prove it at a civil trial; so they don’t use it against you. You understand that?
MR. BERGERON: Yes, sir. I’ll—
THE COURT: Okay.
MR. BERGERON: — plead Guilty, then.

After a short discussion regarding the defendant’s guilt and the sentencing range for a second conviction, the trial court continued:

THE COURT: All right. Where are you from, Mr. Bergeron?
MR. BERGERON: Ville Platte.
THE COURT: Ville Platte? You know a lawyer by the name of Gilbert Aucoin? MR. BERGERON: Yes, sir; that was my lawyer for the other one.
THE COURT: So—
(LAUGHTER).
|7THE COURT: Now I’m getting somewhere. So did you plead no Contest to the first one?
MR. BERGERON: So, sir; the first one, he just told me to plead Guilty. THE COURT: Did Mr. Aucoin tell you to—
MR. BERGERON: I didn’t—
THE COURT: — plead—
MR. BERGERON: — discuss it with him about this one.

The trial court then accepted the guilty plea. After sentencing the defendant, the trial court discussed options for treatment, and after speaking briefly with the defendant’s mother, the trial court asked if the defendant had a substance abuse problem and was told he was on medication for manic depression and a bi-polar condition. The trial court then asked:

THE COURT: Are you working, son?
MR. BERGERON: Yes, sir.
THE COURT: Okay. Now, let me ask you this. There’s a few other things I want to clean up with you. Listen to me. Any — anybody promise or threaten you to plead guilty?
MR. BERGERON: No, sir.
THE COURT: You’re doing this freely and voluntarily?
MR. BERGERON: Yes, sir.
THE COURT: You can read and write?
MR. BERGERON: Yes, sir.
THE COURT: What grade did you complete?
MR. BERGERON: High school.
THE COURT: Okay. Do you have a job?
MR. BERGERON: Yes, sir.
|STHE COURT: Where do you work?
MR. BERGERON: Offshore.
THE COURT: Okay. Well — and you understand and you fully appreciate what you did here this morning by admitting to the charge?
MR. BERGERON: Yes, sir.

In brief, the defendant argues that “the judge did not make an inquiry into the factors necessary to determine whether Mr. Bergeron was knowingly and intelligently waiving his right to counsel. Any after-the-fact inquiry, via yes and no questions by the judge, is wholly insufficient to cure the defective waiver of right to counsel.”

In Strain, 585 So.2d 540, the defendant also was charged with operating a vehicle while intoxicated, third offense. He filed a motion to quash the bill of information asserting that second offense not valid because the state failed to show that he knowingly and intelligently waived his right to counsel. Finding that there was an intelligent waiver of counsel, the supreme court noted:

The crime of driving while intoxicated is a non-complex crime, even among misdemeanors, and is almost self-explanatory. Moreover, this defendant had previously pleaded to and been punished for the exact same crime so that he was even more familiar with the nature of the crime. The judge also properly reminded defendant that this was a second offense and that a third commission of the same crime would likely result in a penitentiary sentence. Only after this determination of defendant’s ability to understand the waiver of counsel did the judge advise defendant regarding the right to counsel and then explain the significance of a guilty plea by advising of the rights being given up.
While some cases may call for additional explanation or inquiry, nothing in the colloquy of the present case or in defendant’s subsequent pleadings, briefs or other arguments to any court suggests that defendant did not fully understand the significance of the waiver of counsel or of the plea. There is also no suggestion that if the judge had warned him of any particular danger or pitfall of self-representation, defendant would not have waived counsel or pleaded |flguilty. Nor is there any hint of prejudice to the defendant from the lack of any particular or general warning.

Id. at 544 (footnotes omitted).

The trial court in the prior case had enough one-on-one conversation with the defendant to determine his understanding of his right to counsel and that he was capable of intelligently waiving counsel in this case. While many of the trial court’s questions received yes or no responses, the defendant discussed his first guilty plea with the trial court. He explained to the trial court what the “fast track expungement” was all about. The defendant further advised the trial court who his attorney was for the first conviction. He discussed to some degree with his attorney the second charge, which was pending at the time of his first conviction. As in Strain, the defendant was already familiar with the process, and he was not charged with a complicated crime.

While it is correct that the trial court did not question the defendant regarding his education, work experience, and whether he was induced in any way to plead guilty until after he had accepted the guilty plea and imposed the sentence, a sentence is not deemed to be executed until the day after pronouncement. See State v. Branch, 96-1626 (La.App. 3 Cir. 5/21/97), 696 So.2d 81, and State v. Sholar, 35,047 (La.App. 2 Cir., 10/31/01), 801 So.2d 534. Accordingly, once a defendant is sentenced, only those guilty pleas which are constitutionally infirm may be withdrawn by appeal or post-conviction. State v. Scott, 08-703 (La.App. 5 Cir. 1/27/09), 8 So.3d 658, writ denied, 09-650 (La.12/11/09), 23 So.3d 910. The trial court was in a position to immediately withdraw the defendant’s guilty plea on its own motion should the late questioning have revealed that the defendant’s waiver of counsel was not knowingly and intelligently made.

|TnWe find there is no merit to this assignment of error. The trial court did not err when it denied the defendant’s motion to quash the bill of information charging him with operating a vehicle while intoxicated, third offense.

CONCLUSION

The defendant’s conviction is affirmed. Furthermore, this court hereby amends the term of probation from five years to four years and instructs the trial court to make an entry in the court minutes reflecting the change. Additionally, the trial court is instructed to correct the court minutes of sentencing to correctly reflect the length of home incarceration imposed as a condition of probation.

AFFIRMED.

REMANDED WITH INSTRUCTIONS.


author: PAINTER, Judge.

text:
    Herschel CARTER v. TURNER INDUSTRIES.
    No. 13-643.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2013.

      Charles J. Duhe, Jr., Heidel A. Schneider, Taylor, Wellons, Politz & Duhe, APLC, Baton Rouge, LA, for Defendant-Appellant, Turner Industries.
    Louis V. Champagne, Dina F. Do-mangue, Ashley P. Thomas, McKeithen, Ryland, Champagne & Domangue, Columbia, LA, for Plaintiff-Appellee, Herschel Carter.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

_JjThe employer, Turner Industries, appeals the award of temporary total disability (TTD) benefits, penalties, attorney’s fees, and for reimbursement of all medical, mileage, and prescription expenses incurred as a result of the work-related accident of March 3, 2001, as well as the rulings that the employee, Herschel Carter, is entitled to seek medical treatment from the physician of his choice and that the employer failed to prove that the employee violated La.R.S. 23:1208. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On March 3, 2011, Carter was employed by Turner Industries as a general foreman earning $21.50 per hour. He alleges that he injured his back, on that date, when he attempted to lift two wooden boards while in the course and scope of his employment building scaffolding for a construction site. He had an MRI on March 9, 2011, and he was found to have two herniated discs. His last day of work was March 14, 2011. In April, an initial evaluation with a neurosurgeon was approved; however, the neurosurgeon’s request for approval of a surgical procedure was denied. Moreover, the employer refused to authorize any further treatment and did not pay any benefits at all based on its assertion that that Carter made false and inconsistent statements concerning his injury.

Carter filed a disputed claim for compensation, and Turner Industries filed a reconventional demand asserting a violation of La.R.S. 23:1208. The matter proceeded to trial. The Workers’ Compensation Judge (WCJ) found that there was no violation of La.R.S. 23:1208 and that Carter was entitled to TTD benefits from the date last worked. The WCJ also awarded $2,000.00 in penalties for failure to authorize medical treatment, $2,000.00 in penalties for failure to pay indemnity benefits, and $5,000.00 in attorney’s fees. Thereafter, the WCJ issued an amended | ¿judgment finding that Carter was entitled to seek medical treatment from the physician of his choice and to be reimbursed for all medical, mileage, and prescription expenses incurred as a result of this injury. Defendant appealed both the original and amended judgments. Carter did not answer the appeal.

DISCUSSION

Violation ofLa.R.S. 23:1208

Turner Industries first asserts that the WCJ committed manifest error in finding that Carter did not violate the provisions of La.R.S. 23:1208, which provides for a forfeiture of benefits by an employee who willfully makes a false statement or misrepresentation for the purpose of obtaining benefits. Specifically, Turner Industries asserts that Carter had a long history of back pain dating back to at least October 6, 2004, and that he had taken medication for back pain before this accident. Turner Industries further asserts that Carter specifically denied ever taking pain medication for a prior back injury. Reference is also made to an incident in 2008, when Carter fell down some steps at his home. An x-ray of Carter’s lumbar spine taken in connection with the 2008 incident revealed a mild spondylosis at L3-4 and L4-5, the areas where Carter now has herniated discs. Turner Industries also alleges that Carter sought treatment for low back pain and demanded an MRI a few weeks prior to the accident that is the subject matter of this litigation. However, the medical records from that date indicated that Carter was complaining of a pinched nerve in his left hip.

For his part, Carter contends that his trial testimony does not contain any denial of previous back complaints and, in fact, contains admissions of “muscle tightness in his back” prior to the subject accident. Carter further contends that he clearly identified the fall in 2008 in his answers to interrogatories. He alleges that he made no willful, false representation of any fact.

In Jim Walter Homes, Inc. v. Guilbeau, 05-1473, pp. 5-6 (La.App. 3 Cir. 6/21/06), 934 So.2d 239, 243-44, this court recognized:

Under the unambiguous and clear language of the statute, an employer claiming that an employee has violated La. R.S. 23:1208 must prove “that (1) there is a false statement or representation, (2) it is willfully made, and (3) it is made for the purpose of obtaining or defeating any benefit or payment.” Resweber v. Haroil Constr. Co., 94-2708, p. 7 (La.9/5/95), 660 So.2d 7, 12. If the WCJ finds that all three of “these requirements are met, Section 1208 applies and its forfeiture provisions must be enforced.” Id. at 14.
The determination by a WCJ as to whether a claimant has made a false statement, willfully, for the purpose of obtaining workers’ compensation benefits is a finding of fact, and is, therefore, subject to the manifest error standard of review. Phillips v. Diocese of Lafayette, 03-1241 (La.App. 3 Cir. 3/24/04), 869 So.2d 313. However, we must keep in mind that La.R.S. 23:1208(E) is penal in nature. Any statute that is penal in nature must be strictly construed in favor of the one receiving benefits under that chapter of the law. Fontenot v. Reddell Vidrine Water Dist., 02-439 (La.1/14/03), 836 So.2d 14; Olander v. Schillilaegh’s, 04-725 (La.App. 3 Cir. 3/23/05), 899 So.2d 97.
La.R.S. 23:1208 authorizes forfeiture of benefits upon proof that (1) there is a false statement or representation; (2) it is willfully made; and (3) it is made for the purpose of obtaining or defeating any benefit or payment. The statute applies to any false statement or misrepresentation made willfully by a claimant for the purpose of - obtaining benefits. All of these requirements must be present before a claimant can be penalized. Because this statute is penal in nature, it must be strictly construed, both in its substantive ambit and in its penalty provisions.
Concerning the standard of appellate review of a forfeiture claim, the court in Rowan Cos., Inc. v. Powell, 02-1894, 02-1895, p. 6 (La.App. 1 Cir. 7/2/03), 858 So.2d 676, 680, writ denied, 03-2177 (La.11/14/03), 858 So.2d 425 (citations omitted), stated:
The determination of whether there is a false statement or representation willfully made for the purpose of obtaining any benefit or payment involves inherently factual determinations and, thus, this court’s review of those findings by the WCJ is governed by the manifest error standard. Under that standard of review, this court may only reverse the WCJ’s decision if we find (1) there is no reasonable factual basis for the finding in 14the record and (2) the finding is clearly wrong or manifestly erroneous.
Phillips v. Diocese of Lafayette, 869 So.2d at 316-17, (quoting in part Flintroy v. Scott Cummins Salvage, 36,857, p. 12 (La.App. 2 Cir. 3/10/03), 839 So.2d 1231, 1238, writ denied, 03-1068 (La.6/6/03), 845 So.2d 1093 (citations omitted)).

In this case, in oral reasons for ruling, the WCJ stated:

This Court does not find that claimant forfeited his right to receive workers’ compensation benefits due to 1208 fraud. His deposition testimony revealed admission to prior back complaints, injuries[,] and accidents. Defendants relied on a recorded statement to support their contentions of fraud. They contend the recorded statement include[s] denials of previous injuries to claimant’s back. The statement was not offered into evidence.
Inasmuch as the statement is not a part of the record, this Court could not examine it to determine the weight it should be afforded. This Court cannot examine the specific question asked claimant concerning his pre-existing condition, nor can the Court examine his answers.
Any summary cannot be given a greater weight than actual questions and answers posed as presented in claimant’s deposition testimony and the testimony he offered in this Court.

After our review of the record, we find no manifest error in the WCJ’s ruling that there was no violation of La.R.S. 23:1208 by Carter. Turner Industries did not meet its burden of proof in this regard.

Occurrence of Work-Related Accident

Carter claims that the injured his back on March 3, 2011, when he lifted some boards at the construction site. The accident was not witnessed. Carter’s wife testified at trial that Carter came home from work and told her about “some pain in his back and shooting down to his legs.” The WCJ found that no testimony was presented by Turner Industries to refute Carter’s allegations regarding the accident and that Carter’s account was confirmed by his wife and by medical evidence. Carter was able to perform his job duties prior to March 3, 2011, but was found to have herniated discs and was unable to work thereafter.

|fiThe jurisprudence establishes that:

An employee can prove an unwit-nessed accident with her testimony alone if “(1) no other evidence discredits or casts serious doubt upon [her] version of the accident; and (2)[her] testimony is corroborated by the circumstances following the alleged incident.” Marange [v. Custom Metal Fabricators, Inc., 11-2678, p. 2 (La.7/2/12), 93 So.3d 1253, 1257], The employee’s testimony may be corroborated by the testimony of coworkers, spouses, or friends, or by medical evidence. Ardoin v. Firestone Polymers, L.L.C., 10-245 (La.1/19/11), 56 So.3d 215 (citing Bruno v. Harbert Int’l, Inc., 593 So.2d 357 (La.1992)). The WCJ’s determinations that an employee is credible and that she satisfied her burden of proof are factual determinations that should not be disturbed by a reviewing court unless the determinations are “clearly wrong ... absent a showing of manifest error.” Bruno, 593 So.2d at 361.

Franklin v. Calcasieu Parish Sch. Bd., 12-1032, p. 2 (La.App. 3 Cir. 2/6/13), 108 So.3d 907, 909.

We find that the WCJ’s ruling was based on reasonable credibility evaluations that are supported by the record. As such, we cannot reverse the WCJ’s findings.

Penalties and Attorney’s Fees

The WCJ awarded $2,000.00 in penalties for the failure to authorize medical treatment, $2,000.00 in penalties for the failure to pay indemnity benefits, and $5,000.00 for attorney’s fees. Turner Industries finally argues that the imposition of penalties and attorney’s fees was not warranted since it “reasonably controverted” Carter’s claim by obtaining factual and medical information to show that either there was no accident or that Carter violated La.R.S. 23:1208.

Louisiana Revised Statutes 23:1201 is the relevant statute in determining whether an employer should be assessed penalties and attorney fees for failure to timely pay indemnity or medical benefits. The statute provides that no penalties or attorney fees shall be assessed “if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer ... had no control.[”] La.R.S. 23:1201(F)(2). Further, “[t]o avoid the imposition of penalties and attorney fees for the nonpayment of benefits, the employer has a continuing obligation to investigate, to assemble, and to assess factual information before denying benefits.” Romero v. Northrop-Grumman, 01-24, pp. 10-11 (La.App. 3 Cir. 5/30/01), 787 So.2d 1149, 1156, writ denied, 01-1937 (La.10/26/01), 799 So.2d 1144.
An employer avoids the imposition of penalties and attorney’s fees by satisfying its continuing obligation to investigate, assemble, and assess factual information prior to it denying benefits. Furthermore, the decision to award penalties and attorney’s fees is factual in nature and will not be reversed on appeal absent manifest error.
Odom [v. Kinder Nursing Home, 06-1442, p. 24 (La.App. 3 Cir. 4/25/07), 956 So.2d 128,] 141-42 (citations omitted). “The purpose of imposition of penalties and attorney fees is to discourage indifference and undesirable conduct by employers and insurers.” Burns v. Interstate Brands Corp., 09-705, p. 7 (La.App. 3 Cir. 2/3/10), 30 So.3d 271, 277.

Green v. Nat’l Oilwell Varco, 10-1041, p. 15 (La.App. 3 Cir. 4/27/11), 63 So.3d 354, 364.

In oral reasons for judgment, the WCJ stated:

[According to the records of the adjuster, the investigation was never completed in this matter. The adjuster chose to rely on hearsay allegations from Mark VanWinkle [claimant’s supervisor] about back complaints allegedly made to claimant’s coworkers prior to the accident. No evidence was presented to support those allegations. And even if they were found to be correct, pre-existing conditions are not preventative of recovery under the Workers’ Compensation Act.
Therefore, defendants did not have a reasonable basis to deny this claim. Claimant provided persuasive testimony concerning the occurrence of the accident. His testimony was supported by the testimony of his wife and by medical evidence. Claimant’s deposition testimony was forthcoming in regard to prior back complaints and previous accidents. Claimant was able to work prior to the accident, but commencing with the accident, the disabling symptoms appeared and continued to manifest itself [sic].
Herniated discs were discovered post-accident that were not present prior to the accident.

After reviewing the record, we find no manifest error in either the award of or amount of penalties and attorney’s fees given by the WCJ, and we affirm these awards.

ItPECREE

We affirm the original and amended judgments of the WCJ. Carter is entitled to TTD benefits from the date last worked as well as to seek treatment for the work-related injuries from the physician of his choice and for reimbursement of all medical, mileage, and prescription expenses incurred as a result of the work-related accident of March 3, 2011, and to penalties and attorney’s fees. No additional attorney’s fees are awarded for the appeal because Carter did not ask for this relief. Costs of this appeal are assessed to Defendant-Appellant, Turner Industries.

AFFIRMED.


author: CONERY, Judge.

text:
    STATE of Louisiana v. Jeremy OSBORN.
    No. 13-697.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2013.

      Brent A. Hawkins, Louisiana Appellate Project, Lake Charles, Louisiana, for Defendant/Appellant: Jeremy Osborn.
    Van Hardin Kyzar, District Attorney, Billy Joseph Harrington, Assistant District Attorney, Natchitoches, Louisiana, for Ap-pellee: State of Louisiana.
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and JOHN E. CONERY, Judges.
   CONERY, Judge.

|,Defendant, Jeremy Osborn, was charged in an indictment filed on March 28, 2011, with second degree murder, a violation of La.R.S. 14:30.1. Defendant entered a plea of not guilty on April 15, 2011. On June 6, 2012, the State amended the indictment to charge Defendant with manslaughter. Defendant then entered a plea of guilty.

A sentencing hearing was held on December 14, 2012. On January 30, 2013 the sentencing hearing was reconvened, and Defendant was sentenced to serve thirty years at hard labor. A motion to reconsider sentence was filed on February 13, 2013, and was denied on February 28, 2013, with written reasons.

A motion for appeal was filed on March 6, 2013, and was subsequently granted. Defendant is now before this court asserting two assignments of error. First, Defendant contends the trial court failed to adequately consider mitigating factors when imposing his sentence, and second, he claims his thirty year sentence is excessive. For the following reasons, we find these assignments of error lack merit and affirm the sentence.

FACTS

Leon Norsworthy engaged in an altercation with Michael Shields and several others outside Antoon’s Bar in Natchitoches, Louisiana, on March 10, 2011. The flight spilled over to a neighboring parking lot. The victim, Kasey Ragan, Norsworthy’s girlfriend, was trying to break up the fight when she was fatally shot by defendant, Jeremy Osborn.

Defendant pled guilty to a charge of manslaughter. At the sentencing hearing, the trial court found that Defendant was not a participant in the dispute 12between Norsworthy and Shields, but intentionally went to a nearby vehicle to retrieve a gun and fired it resulting in the death of the victim.

The trial judge carefully reviewed all the pertinent facts and circumstances in her reasons for sentencing and thoroughly reviewed the aggravating and mitigating factors before imposing a thirty-year hard labor sentence on the defendant.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, there is one error patent.

Louisiana Code of Criminal Procedure Article 930.8 provides that a defendant has two years after the conviction and sentence become final to seek post-conviction relief. Louisiana Code of Criminal Procedure Article 930.8(C) provides in pertinent part, “[a]t the time of sentencing, the trial court shall inform defendant of the prescriptive period for post-conviction relief either verbally or in writing.” In this case, the transcript of sentencing indicates that the trial court, referring to post-conviction relief, informed Defendant that “[y]ou can file a[sic] post-conviction relief within two years.” The notice is insufficient, as it does not contain the language “after the conviction and sentence become final.” State v. Celestine, 11-1403, p. 3 (La.App. 3 Cir. 5/30/12), 91 So.3d 573, 576.

Therefore, the trial court is ordered to instruct Defendant of the provisions of La. Code Crim.P. art. 930.8 by sending appropriate written notice to Defendant within ten days of the rendition of this opinion and to file written proof in the record that it issued the notice to Defendant. 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.

| ¡ASSIGNMENTS OF ERROR

In his first assignment of error, Defendant contends that his sentence is excessive because the trial court failed to adequately consider certain mitigating factors when imposing its sentence of thirty years at hard labor. In his second assignment of error, Defendant contends the trial court’s sentence of thirty years at hard labor is excessive given the facts and circumstance of this case. The assignments of error will be considered together, as they both pertain to the sentence imposed.

The law is well settled concerning the standard to be used in reviewing excessive sentence claims:

La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. 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. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.

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 (citations omitted).

Manslaughter is punishable by a term of imprisonment up to forty years at hard labor. La.R.S. 14:31(B). Defendant’s thirty year sentence was well within the sentencing range.

Even when a sentence falls within the statutory sentencing range, it still may be unconstitutionally excessive. In determining whether a sentence shocks the|4sense of justice or makes no meaningful contribution to acceptable penal goals, this court has suggested that several factors may be considered:

[A]n 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. 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. 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. 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 (citations omitted).

A sentencing hearing was held in this matter on December 14, 2012. At that hearing, the trial court heard the testimony of Detective Jeff Townson, victim impact evidence from Wayne Ragan and Tina Ragan, and the State introduced the statements of several witnesses to the events at issue. The trial court reviewed all of the evidence and testimony in detail, including listening to the taped statements of the witnesses. The trial court subsequently gave the parties time to file briefs in the matter and re-set the sentencing for January 30, 2013.

At final sentencing on January 30, 2013, the trial court exhaustively reviewed the facts of the case, thoroughly applied all the sentencing guidelines, and concluded:

I don’t think that, that Mr. Osborn went to Antoon’s that night to shoot and kill Kasey Ragan. But when you pick up a gun, when you go get a gun, it shows the intent and the intent to use the gun. Considering the above, after evaluation of all of the facts that the Court deems relevant, the Court is ready to sentence the defendant. Would you please stand, sir? Let me say this also. Mr. Osborn is a young man; he’s 27 years old today. ... And the Court is required to consider all the facts, to consider all the kinds of crimes that we are, that are brought into our court before we make a decision what to do. And I understand that the Ragan family and all of their friends and [sall of their close acquaintances have asked this Court to sentence Mr. Osborn to the maximum that he could be sentenced to. The maximum that he could be sentenced to is 40 years.... Mr. Osborne must serve at least 85% of the time to which I sentence him. And only then will he be eligible for consideration of parole. That doesn’t mean he’ll be paroled. So it’s a very long time. I’ve considered all these things. I’ve considered the different kinds of crimes I’ve had to address and the behavior that I’ve had to address. I was very concerned Mr. Noel, because until today I’ve heard no remorse. I’ve only heard him cry and say what am I going to do I’m in trouble which is different than remorse. And I’m sorry that he can’t today turn to this family and tell them he’s sorry.

Defendant belatedly apologized to the victim’s family. The court then pronounced the sentence of thirty years at hard labor.

Defendant contends his sentence is excessive because it remains unclear that he had the specific intent to inflict great bodily harm or kill anyone. Defendant contends, pursuant to La.Code Crim.P. art. 894.1(B)(24) & (29), that he acted under strong provocation and the circumstances resulting in Ragan’s death are unlikely to “reoccur.” Louisiana Code of Criminal Procedure Article 894.1(B)(24) provides that the trial court should consider whether a defendant acted under strong provocation, and, pursuant to subsection (B)(29), the trial court should consider whether a defendant’s criminal conduct was the result of circumstances unlikely to recur.

Defendant argues that he was conducting himself in a lawful manner prior to arming himself. Additionally, it was not absurd for him to arm himself in light of the attack on Michael Shields, as he could have been next. Defendant further argues that Detective Townson’s testimony that Ragan was shot in close to intermediate range could support his statement that he was in the process of swinging the gun to try and scare the participants and stop the fight when the gun |fiaccidently discharged. Defendant contends that punishing the ultimate result of his conduct without adequately considering the different levels of provocation that occurred on the evening at issue resulted in a sentence that is excessive. Defendant asserts that the trial court failed to adequately consider the fact that the events at issue evolved out of a series of events that are highly unlikely to “reoccur.” Additionally, having been through this scenario, Defendant argues that he is much more likely to be aware of the development of such a situation and not allow something like this to happen again.

Defendant further argues that the trial court failed to adequately consider the mitigating factors he presented and imposed an excessive sentence. Defendant further asserts that, “given the circumstances, a highly intoxicated group involved in a melee, where a gun is produced and Ms. [Ragan] was killed, a sentence of thirty years and leaves him holding the bag for others who have culpability for the death of Ms. [Ragan].” Defendant contends his sentence is excessive and argues that his sentence needs to be proportionate to his role and the context of the events. Defendant argues that he responded to the circumstances presented that evening.

In support of his arguments, Defendant cites State v. Brown, 08-442 (La.App. 3 Cir. 11/12/08), 997 So.2d 875, writ denied, 09-232 (La.10/30/09), 21 So.3d 279. Therein, the defendant ordered his guests to leave his home. As the victim was backing out of the home, the victim asked if he could retrieve his keys and phone from inside the home. When the victim reached the front porch, defendant fired a shot. As the victim began running, the defendant fired again. The defendant was convicted of manslaughter, and this court affirmed his sentence |7of forty years. In this case, unlike Brown, Defendant claims that he did not intentionally fire a weapon at anyone.

Defendant also cites State v. Batiste, 06-875 (La.App. 4 Cir. 12/20/06), 947 So.2d 810. In Batiste, the defendant and the victim argued over a twenty dollar bet on a domino game. During the argument, the defendant retrieved a gun from his truck and returned to the domino table. The defendant and the victim argued more, the two scuffled, and defendant shot the victim. The defendant was convicted of manslaughter, and the fourth circuit affirmed his sentence of twenty years.

Defendant further cites State v. Johnson, 94-1523 (La.App. 3 Cir. 5/3/95), 657 So.2d 178, writ denied, 95-1397 (La.11/3/95), 662 So.2d 9. Therein, the defendant was standing on the street when the victim drove up and engaged defendant in conversation. The defendant stated that the victim appeared angry, reached across his body, and appeared to be reaching for a weapon. At that point, the defendant reached into his jacket, removed a gun, and fired into the victim’s truck. The defendant was convicted of manslaughter, and this court affirmed his sentence of twenty years.

Defendant asserts his conduct pales in comparison to that of the defendants in Brown, 997 So.2d 875, Batiste, 947 So.2d 810, and Johnson, 657 So.2d 178.

A comparison of this case with other cases addressing the excessiveness of a sentence imposed for manslaughter, however, supports affirmation of the sentence imposed. In State v. McGhee, 10-583 (La.App. 3 Cir. 12/8/10), 52 So.3d 318, writ denied, 11-62 (La.5/20/11), 63 So.3d 973, the defendant was convicted of manslaughter and sentenced to forty years at hard labor. During an altercation at a bar, the defendant shot and killed a bystander. The defendant was twenty-six years old at the time of the offense and had prior convictions for possession of cocaine 18and domestic abuse battery. On appeal, this court found that the sentence was not excessive.

In State v. Lewis, 09-1404 (La.10/22/10), 48 So.3d 1073, a sixteen-year-old male watched a fight between friends, Bush and Crain, as a bystander. During the fight, he picked up a gun that had fallen out of Bush’s pocket and fired a single shot into Crain’s temple. The sixteen-year-old was convicted of manslaughter and sentenced to thirty years at hard labor. The supreme court affirmed defendant’s sentence.

In State v. Weatherspoon, 06-539 (La.App. 5 Cir. 12/12/06), 948 So.2d 215, writ denied, 07-462 (La.10/12/07), 965 So.2d 398, the sixteen-year-old defendant was a passenger in a vehicle that was struck by a bottle. Witnesses testified that the defendant exited the vehicle and fired several shots into a crowd. A fourteen-year-old boy was struck by a bullet and died as a result of his injuries. The defendant was subsequently convicted of manslaughter and sentenced to thirty-five years at hard labor. The fifth circuit affirmed the defendant’s sentence, noting that he had a criminal history consisting of a juvenile adjudication for aggravated assault.

In the instant case, the trial court provided detailed reasons for the sentence imposed. The trial court thoroughly discussed the nature of the offense, Defendant’s background, Defendant’s criminal history, and several of the factors set forth in La.Code CrimJP. art. 894.1, including provocation and the likelihood that Defendant’s actions would recur. Louisiana Code of Criminal Procedure Article 894.1 does not require that the trial court assign any particular weight to any specific matters at sentencing. This court cannot say the trial court failed to [ 9adequately consider the issue of provocation and the likelihood that Defendant’s actions would “reoccur.”

Based on the circumstances of the offense, Defendant’s criminal history, and the jurisprudence, we find that the trial court did not abuse its considerable discretion when it imposed a thirty year hard labor sentence. Accordingly, these assignments of error lack merit.

DISPOSITION

Defendant’s sentence is affirmed. The trial court is ordered to instruct Defendant of the provisions of La.Code Crim.P. art. 930.8 by sending appropriate written notice to Defendant within ten days of the rendition of this opinion and to file written proof in the record that it issued the notice to Defendant.

AFFIRMED.

      . Detective Townson testified at the sentencing hearing and indicated that the muzzle of the gun did not make contact with Ragan’s body and was in intermediate to close range when she was shot.