author: PITMAN, J.

text:
    STATE of Louisiana, Appellee v. Brandon Lee GAGE, Appellant.
    No. 47,976-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 10, 2013.

      Louisiana Appellate Project by Douglas Lee Harville, for Appellant.
    Charles R. Scott, District Attorney, Jordan B. Bird, Brian H. Barber, Assistant District Attorneys, for Appellee.

      Before BROWN, WILLIAMS & PITMAN, JJ.
   PITMAN, J.

|! Defendant Brandon Lee Gage was charged with battery of a police officer, a violation of La. R.S. 14:34.2(B)(2). A jury found Defendant guilty as charged. A motion for post-judgment verdict of acquittal was filed, but was denied. Defendant was adjudicated as a second felony offender and sentenced to eight years’ imprisonment, without benefit of probation or suspension of sentence, and was ordered to pay court costs through the inmate banking system. Defendant filed a timely motion to reconsider sentence, which, was denied. This appeal followed. For the following reasons, Defendant’s conviction and sentence, as amended, are affirmed.

FACTS

On March 29, 2012, Defendant was in jail at the Caddo Correctional Center (“CCC”). Detective Michael Escude (“Es-cude”) was working as the lone security deputy in housing unit Alpha when he heard disruptive noises coming from one of the top cell areas in the housing unit. Escude determined the noise was coming from Defendant’s cell and could see Defendant standing at the door of the cell yelling to someone in the day room on the level below. Escude went to Defendant’s cell to tell him to stop causing the disturbance and to tell him that he had lost his recreation period privileges that evening because of his actions.

Defendant began cursing Escude and denied that he was misbehaving. Defendant spat on the floor in front of Escude, who told Defendant to get dressed to go to lockdown. Defendant used profane language, but eventually walked out of his cell and headed toward the lockdown cell with | ^Escude following approximately 10-15 feet behind him. When they reached the lockdown cell, Escude had the Defendant step aside in order to unlock the cell. As he did, Defendant lunged at him in an aggressive manner. A fight ensued and Defendant made several attempts to hit Escude, landing one blow to the right side of Escude’s face. A camera on that tier of the housing unit recorded the incident from approximately 150 feet away.

Defendant was charged with violating La. R.S. 14:34.2(B)(2), battery of a police officer. A jury trial was held on June 26, 2012, and Escude testified for the state. The video of the event was played at the trial, narrated by Escude. Defendant took the stand in his own defense and claimed that he was acting in self-defense when the incident occurred. No other witnesses testified. The jury rendered a verdict of guilty as charged.

Defendant filed a motion for post-verdict judgment of acquittal, which was denied. The state then filed a habitual offender bill of information against Defendant. On July 20, 2012, he was adjudicated as a second felony offender and sentenced to eight years’ imprisonment without benefit of probation or suspension of sentence. He filed a timely motion to reconsider sentence, which was denied. This appeal ensued.

DISCUSSION

Assignment of Error Number One (verbatim): There was insufficient evidence to prove that Brandon Lee Gage was guilty beyond a reasonable doubt of battery of a police officer.

Defendant argues that the state failed to prove that he had the intent to commit a battery on Escude and claims that he was defending himself against Escude by using reasonable force to end Escude’s battery.

|sThe state responds that Defendant failed to show that his actions were necessary or in self-defense.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921, cert, denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La. App.2d Cir.1/9/08), 974 So.2d 181, tvrit denied, 08-0499 (La.11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833, writ denied, 09-0310 (La.11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La. App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 09-0725 (La.12/11/09), 23 So.3d 913.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its 14sufficiency. State v. Speed, 43,786 (La. App.2d Cir.1/14/09), 2 So.3d 582, writ denied, 09-0372 (La.11/6/09), 21 So.3d 299.

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact,- is sufficient support for a requisite factual conclusion. State v. Gullette, 43,032 .(La.App.2d Cir.2/13/08), 975 So.2d 753; State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So'.2d 219, writ denied, 06-1083 (La.11/9/06), 941 So.2d 35.

The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022, cert, denied, 531 U.S. 840, 121 S.Ct. 104,148 L.Ed.2d 62 (2000).

An appellate court reviewing the sufficiency of the evidence must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Jacobs, 504 So.2d 817 (La.1987); State v. Adkins, 39,724 (La.App.2d Cir.6/29/05), 907 So.2d 232, writ denied, 06-2514 (La.5/4/07), 956 So.2d 607.

|,^Battery is defined as the intentional use of foree or violence upon the person of another; or the intentional administration of a poison or other noxious liquid or substance to another. La. R.S. 14:33.

La. R.S. 14:34.2 defines the crime of battery of a police officer and states in pertinent part as follows:

A. (1) Battery of a police officer is a battery committed without the consent of the victim when the offender has reasonable grounds to believe the victim is a police officer acting in the performance of his duty.
(2) For purposes of this Section, “police officer” shall include commissioned police officers, sheriffs, deputy sheriffs, marshals, deputy marshals, correctional officers, federal law enforcement officers, constables, wildlife enforcement agents, state park wardens, and probation and parole officers.
(3) For purposes of this Section, “battery of a police officer” includes the use of force or violence upon the person of the police officer by throwing feces, urine, blood, saliva, or any form of human waste by an offender while the offender is incarcerated by a court of law and is being detained in any jail, prison, correctional facility, juvenile institution, temporary holding center, halfway house, or detention facility.
B. (1) Whoever commits the crime of battery of a police officer shall be fined not more than five hundred dollars and imprisoned not less than fifteen days nor more than six months without benefit of suspension of sentence.
(2) If at the time of the commission of the offense the offender is under the jurisdiction and legal custody of the Department of Public Safety and Corrections, or is being detained in any jail, prison, correctional facility, juvenile institution, temporary holding center, halfway house, or detention facility, the offender shall be fined not more than one thousand dollars and imprisoned with or without hard labor without benefit of parole, probation, or suspension of sentence for not less than one year nor more than five years. Such sentence shall be consecutive to any other sentence imposed for violation of the provisions of any state criminal law.

|fiBattery of a police officer has three elements: the intentional use of force upon a police officer, without the consent of the officer, when the offender knows or should reasonably know that the victim is a police officer acting within the performance of his duty. State v. Ceaser, 02-3021 (La.10/21/03), 859 So.2d 639.

At trial, Escude testified that, on March 29, 2012, he was working security at the Caddo Correctional Center. He was the security deputy in housing unit Alpha, which is the intake housing unit. He was working alone that day.

Escude identified Defendant in the courtroom and stated that, on the day of the incident, he saw Defendant at the window of a cell yelling and attempting to communicate with someone in the day room that was a level below the upper unit. Escude testified that Defendant knew he was working in that particular housing unit because he had been there for five days in the week before the incident and Escude was wearing his uniform.

Escude testified that he used a key to open Defendant’s door to speak to him about the disturbance, informing Defendant that he had lost his recreation privileges for that evening. Escude stated that Defendant began cursing him, denying he was yelling, and then spit on the floor at Escude’s feet. Escude told him to get dressed for lockdown. Escude further testified that Defendant used very profane language to tell him he was not going to the lockdown cell and also threatened him by stating, “Come in here, you put your hands on me, bitch, I’ll beat your m.... f... .ing ass.” Escude testified that Defendant continued his profanity throughout the entire rest of |7the encounter until they reached the lockdown cell. Escude stated that he was following about 10-15 feet behind Defendant to maintain a safety or reactionary gap between them in the event Defendant decided to become aggressive toward him.

Escude further testified that, when they reached the lockdown cell, he noticed there was already another inmate in that cell. He used a key to open the locked cell; and, as the door swung open, Defendant, being in close proximity to him, lunged aggressively at him. Escude stated that he instinctively defended himself, grabbing for Defendant’s arm in an attempt to place him in a straight arm bar takedown. Defendant swung at him several times and then ran away. Escude stated that Defendant struck him on the right side of his face, but he did not realize it at the time because of his increased adrenaline. Es-cude stated that, several minutes after the incident was over, he noticed his nose was extremely sore and it remained that way for several weeks. He also stated that he did not consent to Defendant hitting him.

Escude testified that he called the emergency response team (“ERT”) of the CCC to come to the housing unit and ordered the inmate who was already in the cell to get out so that ERT would not think he was involved in the situation. The other inmate did leave the lockdown cell under Escude’s instruction. Meanwhile, Defendant had run to the top of a stairwell on the tier, where he assumed a prone position, but then ran back toward Escude to the cell, where he again assumed the prone position. Escude further testified that he had his mace ready to spray Defendant if Defendant became ^aggressive again. At that point, however, he determined that Defendant was no longer a threat to him and did not have to use the mace.

Escude testified that there are eight cameras in the housing unit for the security of the deputy and inmates. He stated that the standard procedure after an incident is to review the footage with the supervisors and that the footage was reviewed within 30 minutes of the incident. The footage of the incident was downloaded from the CCC system to a disk and provided to the Caddo Parish District Attorney’s Office.

Escude also testified that, when he downloaded the video, it played in real time and did not have any audio. The video shown in the courtroom at trial and narrated by Escude did not play in real time. Defendant was identified as wearing green shorts and a white T-shirt, walking on the top tier of the facility to the last door at the top of the frame. According to the narration in the courtroom, the video showed Escude opening the door to the cell and then Defendant running past him. Defendant ran to a “safety” cell and got on the floor because Escude had called ERT by that time. ERT arrived and escorted Defendant out of the housing unit and to the medical area, which is standard procedure. Escude’s narration of the video did not describe any contact between the two men, although Escude testified that, when the Defendant lunged at him, he tried to “put him in a takedown” and that is when Defendant began swinging at him, trying to hit him.

| gDefendant took the stand in his own defense and testified that a different chain of events occurred. Defendant stated that he was in his cell, talking to his “cellie,” when Escude kicked open his cell door, cursed at him and asked him why he was out of his cell. Defendant denied being out of his cell and claimed that, while he and Escude were arguing, Escude threatened him and put his hands on him. Defendant further testified that, as instructed, he walked to the lockdown cell and, when they reached the cell, Escude swung open the door in his face and grabbed him by the throat. Defendant claimed he pushed Escude’s hands off him and then he hit Escude. Defendant further claimed that Escude did not call ERT and that the two of them were fighting. Defendant did not deny that, he hit Escude, stating, “I know I swung like two or three times.” Defendant claimed he was the first person to stop fighting and get on the ground and that, when he entered the lockdown cell vacated by the other inmate, Escude “sprayed me on my face with the mace.” Defendant claimed he had witnesses who would verify his version of the events, but no other witnesses testified on Defendant’s behalf.

The state was required to prove that Defendant committed a battery on Escude without Escude’s consent when it was reasonable for Defendant to believe that Es-cude was a correctional officer acting in the performance of his duty. Based on the testimony and evidence, the state was able to prove the essential elements of the charged offense.

Defendant failed to present any evidence to support his claim that he was acting in self-defense, and the video did not show him being choked by | ^Escude and did not show Escude spraying him with mace. Defendant’s self-defense theory was unsupported by anything other than his self-serving testimony. It is within the jury’s providence to determine the credibility of the witnesses, and the jury chose to believe Escude’s account of the events rather than Defendant’s. For these reasons, this assignment of error is without merit. Assignment of Error Number Two: The trial court erred by imposing an unconstitutionally harsh and excessive sentence.

Defendant argues that, because of his age, 21 years old at the time of sentencing, his sentence is excessive and, thus, nothing more than a purposeless and needless imposition of pain and suffering and a violation of his constitutional rights.

The state responds that Defendant failed to raise a contemporaneous objection to the excessiveness of his sentence; therefore, he is barred from raising the claim on appeal. The state contends that Defendant’s sentence is appropriate based on his criminal history and the facts and circumstances of the case.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 07-0805 (La.3/28/08), 978 So.2d 297. The articulation of the I,factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Landos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,-350 (La.App.2d Cir.8/13/08), 989 So.2d 267, writ denied, 08-2697 (La.9/18/09), 17 So.3d 388. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259, writ denied, 08-2341 (La.5/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 07-0144 (La.9/28/07), 964 So.2d 351.

The second portion of the analysis requires a determination regarding the constitutional excessiveness of a sentence. A sentence violates La. Const. Art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La. p.992);12 State v. Robinson, 40,983 (La. App.2d Cir.1/24/07), 948 So.2d 379.

The trial judge is given a wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7; State v. Hardy, 39,233 (La.App.2d Cir.1/26/05), 892 So.2d 710. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. 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).

A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case and, therefore, is given broad discretion in sentencing. State v. Cook, supra.

La. R.'S. 15:529.1 provides, in pertinent parts as follows:

A. Any person who, after having been convicted within this state of a felony, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government of a crime which, if committed in this state would be a felony, thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:
(1) If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction. ⅛ ⅝ ⅜ ⅝ ⅝ *
|1SG. Any sentence imposed under the provisions of this Section shall be at hard labor without benefit of probation or suspension of sentence.

The trial judge stated that Defendant’s sentencing range as a second felony offender is 2½ to 10 years. He conducted a very thorough sentencing hearing and articulated his reasons for the sentence imposed. The trial judge noted that Defendant was 21 years old at the time of sentencing and that was the only mitigating factor in the case. Defendant’s criminal history included some juvenile adjudications, an aggravated assault and a remand for custody.

The trial judge further noted that Defendant had assaulted his mother when he was 16 years old and had locked her out of her own house, threatening her -with a stick with nails in it. Defendant had two more adjudications for aggravated assault that occurred on the same day; one involved Defendant’s use of a knife against his mother and the other an aggravated assault of another person.

Defendant’s adult record included distribution of cocaine, for which he was placed on probation. Multiple petitions to revoke his probation were filed by his probation officer; and, eventually, Defendant was ordered to serve two years at hard labor following the probation revocation. Defendant had other arrests and convictions, including an arrest for domestic battery with strangulation and resisting an officer, which charges were pending at the time of sentencing herein.

The trial judge believed that Defendant’s actions showed a total disregard for respect and authority and that he was unable to comply with 114the requirements and conditions of his probation, which led to it being revoked. The trial judge stated that, after carefully considering the factors found in La. C. Cr. P. Art. 894.1, he believed that Defendant’s behavior established a pattern that could not be ignored and found him to be in need of correctional treatment in a custodial environment. The trial judge stated that any lesser sentence would deprecate the seriousness of the crime.

Defendant was sentenced to eight years’ imprisonment at hard labor without benefit of probation or suspension of sentence. While this sentence is in the upper range for a second felony offender, the sentence is not excessive under the facts and circumstances of the case. Considering this Defendant, the crime and the harm done to society, this sentence does not shock the sense of justice. This assignment of error, therefore, is without merit.

ERROR PATENT REVIEW

An error patent is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence and can be considered on appeal. La. C. Cr. P. art. 920(2).

La. C. Cr. P. art. 930.8 Advice

At sentencing, the trial court did not fully advise Defendant of the time period within which to apply for post-conviction relief. The trial judge advised, “Under Article 930.8 Mr. Gage has two years to pursue any post conviction relief applications.”

The Louisiana Supreme Court has held that La. C. Cr. P. art. 930.8(C), which requires the trial court to inform a defendant of the | ^limitations period for filing an application for post-conviction relief, is supplicatory language which does not bestow an enforceable right on an individual defendant. State v. Brumfield, 09-1084 (La.9/2/09), 16 So.3d 1161; State v. Hunter, 36,692 (La.App.2d Cir.12/20/02), 834 So.2d 6. The trial court should have advised Defendant, and we now advise him by this opinion, that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C. Cr. P. arts. 914 or 922. See State v. Pugh, 40,159 (La.App.2d Cir.9/21/05), 911 So.2d 898.

Illegally lenient sentence

We note that Defendant’s sentence did not deny him parole eligibility as required by La. R.S. 14:34.2(B)(2).

La. R.S. 15:301.1 provides:

A. When a criminal statute requires that all or a portion of a sentence imposed for a violation of that statute be served without benefit of probation, parole, or suspension of sentence, each sentence which is imposed under the provisions of that statute shall be deemed to contain the provisions relating to the service of that sentence without benefit of probation, parole, or suspension of sentence. The failure of a sentencing court to specifically state that all or a portion of the sentence is to be served without benefit of probation, parole, or suspension of sentence shall not in any way affect the statutory requirement that all or a portion of the sentence be served without benefit of probation, parole, or suspension of sentence.
B. If a sentence is inconsistent with statutory provisions, upon the court’s own motion or motion of the district attorney, the sentencing court shall amend the sentence to conform to the applicable statutory provisions. The district attorney shall have standing to seek appellate or supervisory relief for the purpose of amending the sentence as provided in this Section.
|1fiC. The provisions of this Section shall apply to each provision of law which requires all or a portion of a criminal sentence to be served without benefit of probation, parole, or suspension of sentence, or of any one of them, any combination thereof, or any substantially similar provision or combination of substantially similar provisions.
D. Any amendment to any criminal sentence as authorized by the provisions of this Section shall be completed within one hundred eighty days of the initial sentencing.

The trial court failed to impose the sentence for battery of a police officer without benefit of probation, parole or suspension of sentence. See State ex rel. Sullivan v. Maggio, 432 So.2d 854 (La.1983); State v. Everett, 05-214 (La.App.3d Cir.11/2/05), 916 So.2d 1210; State v. Moore, 96-1835 (La.App.lst Cir.6/20/97), 696 So.2d 657. La. R.S. 15:301.1 is self-activating and makes the denial of benefits self-operative. State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790; State v. Neely, 35,993 (La. App.2d Cir.5/8/02), 818 So.2d 829.

CONCLUSION

For the foregoing reasons, the conviction of Defendant, Brandon Lee Gage, is affirmed. Defendant’s sentence is amended to reflect that it is to be served without benefit of probation, parole or suspension of sentence and, as amended, is affirmed.

CONVICTION AFFIRMED; SENTENCE AMENDED AND, AS AMENDED, AFFIRMED.

      . The copy of the video provided to this court appeared to play in real time. Defendant can be seen standing next to Escude at the door of the lockdown cell; and, when Escude opened the door, Defendant lunged at him and began striking out with his fists.


source: Caselaw Access Project

author: LOLLEY, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Stanley E. MANGHAM, Appellant.
    No. 47,977-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 10, 2013.

      Teresa Culpepper Carroll, Jonesboro, LA, for Appellant.
    Charles Rex Scott, II, District Attorney, Tommy J. Johnson, Jordan B. Bird, Assistant District Attorneys, for Appellee.
    Before CARAWAY, MOORE and LOLLEY, JJ.
   LOLLEY, J.

|! This criminal appeal arises from the First Judicial District Court, Parish of Caddo, State of Louisiana. The defendant, Stanley Mangham, pled guilty to theft of assets of an aged or disabled person, in violation of La. R.S. 14:67.21. Mangham was sentenced to serve eight years’ imprisonment at hard labor, consecutive to any other sentence. He was also ordered to pay court costs and to make restitution to the victims. Mangham now appeals his sentence, which we affirm for the following reasons.

Facts

From December 2008 through early 2011, Mangham took over $200,000.00, from his in-laws, William and Wanda Beach, both individuals over the age of 60. He told the couple that he was an agent for Primerica Financial Services, and as such, he could invest their funds for a substantial return. However, Mangham did not invest the couple’s money. Instead, Mangham deposited the money into a bank account for his flooring business and spent all of it for his own use-mostly on trips, restaurants, and shopping. After becoming suspicious, the Beaches called the police. Ultimately, Mangham was arrested and charged with theft of assets from an aged or disabled person, in violation of La. R.S. 14:67.21.

Shortly before he was to be tried, Mang-ham appeared before the trial court to plead guilty as charged. The trial court advised Mangham that if he pled guilty there was no agreement regarding sentencing and that probation was unlikely based on the facts of the case. The trial court explained to Mangham the rights he was giving up by pleading guilty, and he acknowledged his understanding. Based on that information before him, IsMangham advised the trial court that he had intended to invest the money but “things just fell out the wrong way. I misunderstood what I could do and I mean I messed up, I had a big error in judgment.” He said he worked for Primerica and intended on investing the money, but then discovered that investing the money would cost him money. The State advised the trial court that none of the money that Mangham stole from his in-laws remains in the bank account in which he deposited it. Mangham admitted that he intended to take all of the money for his personal use; he did spend all of it, and none of the money remains. Mangham admitted that he was guilty of the crime charged, and the trial court accepted his guilty plea.

Subsequently, Mangham appeared for a sentencing hearing, at which several witnesses testified. Among those witnesses were: the investigating officer, Detective Bobby Herring, of the Caddo Parish Sheriffs Office; Mangham’s victims, Wanda and William Beach; William’s brother, Charles Beach; and, Gary Byrd, pastor at Haughton Baptist Temple. After considering the testimony of the stated witnesses, the trial court sentenced Mangham to serve eight years at hard labor, with credit for any time already served. The trial court stated, “I would have given him the maximum possible sentence of ten years except for the fact that he pled guilty. I’m giving him the benefit under law for ultimately admitting his guilt, although he waltzed around it quite a bit during his April 12th guilty plea.” The trial court also ordered that Mangham make restitution pursuant to a periodic payment plan consistent with his financial ability, as required by La. R.S. 1⅞14:67.21. The sentence was imposed to run consecutively to any other sentence that may be imposed at any later time.

In June 2012, Mangham’s counsel filed a motion to reconsider sentence and argued that some of the aggravating factors listed by the trial court at sentencing were improper. The trial court denied the motion on grounds that Mangham devastated his family because he had taken the life savings of his in-laws, who were senior citizens; he intentionally deceived them over the course of a number of years; and he was disingenuous with the trial court during his guilty plea and had shown no remorse. In denying the motion, the trial court also noted that Mangham had actually committed numerous counts, which were cumulated in one bill of information.

This appeal by Mangham ensued.

Discussion

In his only assignment of error, Mangham submits that his eight-year sentence is excessive for a first time felony offender, who pled guilty as charged, particularly when restitution was also ordered. Specifically, he argues that the sentence imposed is excessive and punitive and does not satisfy the goals of rehabilitation and enabling him to make significant restitution to the victims. He asserts that the goals of punishment can be met with a less harsh sentence in light of his plan to make restitution to the victims. In light of the egregious nature of this crime, we disagree.

ULouisiana R.S. 14:67.21 states in pertinent part that theft of the assets of an aged or disabled person and the corresponding sentence is:

B. (3) The intentional use, consumption, conversion, management, or appropriation of an aged person’s or disabled person’s funds, assets, or property through the execution or attempted execution of a fraudulent or deceitful scheme designed to benefit a person other than the aged person or disabled person.
C. (1) Whoever commits the crime of theft of the assets of an aged person or disabled person when the value of the theft equals one thousand five hundred dollars or more may be imprisoned, with or without hard labor, for not more than ten years and shall be fined not more than three thousand dollars, or both.
E. In addition to all other penalties, a person convicted under this Section shall be ordered to make full restitution to the victim and any other person who has suffered a financial loss as a result of the offense. If a person ordered to make restitution pursuant to this Section is found to be indigent and therefore unable to make restitution in full at the time of conviction, the court shall order a periodic payment plan consistent with the person’s financial ability. (Emphasis added.)

The trial court has wide discretion in imposing sentence within minimum and maximum limits allowed by the statute, therefore, a sentence will not be set aside as excessive unless the defendant shows the trial court abused its discretion. State v. Young, 46,575 (La.App.2d Cir.09/21/11), 73 So.3d 473, writ denied, 2011-2304 (La.03/09/12), 84 So.3d 550. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case. State v. Cook, 95-2784 (La.05/31/96), 674 So.2d 957, cert, denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). The reviewing court does not determine whether another | ^sentence would have been more appropriate, but whether the trial court abused its discretion. State v. Esque, 46,515 (La. App.2d Cir.09/21/11), 73 So.3d 1021, writ denied, 2011-2304 (La.03/09/12), 84 So.3d 551.

An excessive sentence is reviewed by examining whether the trial court adequately considered the guidelines established in La. C. Cr. P. art. 894.1 and whether the sentence is constitutionally excessive. State v. Gardner, 46,688 (La. App.2d Cir.11/02/11), 77 So.3d 1052.

A review of the sentencing guidelines does not require a listing of every aggravating or mitigating circumstance; the trial court need only articulate a factual basis for the sentence. State v. Cunningham, 46,664 (La.App.2d Cir.11/02/11), 77 So.3d 477. The defendant’s personal history and criminal record, as well as the seriousness of the offense, are some of the elements considered, but the trial court is not required to weigh any specific matters over other matters. State v. Moton, 46,-607 (La.App.2d Cir.09/21/11), 78 So.3d 508, writ denied, 2011-2288 (La.03/30/12), 85 So.3d 113. In selecting a proper sentence, a trial judge is not limited to considering only a defendant’s prior convictions, but may properly review all prior criminal activity. State v. Pamilton, 43,112 (La. App.2d Cir.03/19/08), 979 So.2d 648, writ denied, 2008-1381 (La.02/13/09), 999 So.2d 1145. The sources of information relied upon by the sentencing court may include evidence usually excluded from the courtroom at the trial of guilt or innocence, e.g., hearsay and arrests, as well as conviction records. State v. Myles, 1994-0217 (La.06/03/94), 638 So.2d 218. These matters may be considered even in the absence of proof the defendant committed |fithe other offenses. State v. Doyle, 43,438 (La.App.2d Cir.08/13/08), 989 So.2d 864.

Maximum sentences are generally reserved for the worst offenses and offenders. State v. Taylor, 41,898 (La.App.2d Cir.04/04/07), 954 So.2d 804. Where there is a mandatory sentence, there is no need for the trial court to justify, under Article 894.1, a sentence it is legally required to impose. State v. Burd, 40,480 (La.App.2d Cir.01/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/09/06), 941 So.2d 35; State v. Koon, 31,177 (La.App. 2d Cir.02/24/99), 730 So.2d 503.

Under constitutional review, a sentence can be excessive, even when it falls within statutory guidelines, if the punishment is so grossly disproportionate to the severity of the crime that it shocks the sense of justice and serves no purpose other than to inflict pain and suffering. State v. Fatheree, 46,686 (La.App.2d Cir. 11/02/11), 77 So.3d 1047. Whether the defendant’s imposed sentence is constitutionally excessive depends on the facts and circumstances of the case and the defendant’s background. State v. Robinson, 40,983 (La.App.2d Cir.01/24/07), 948 So.2d 379. The court considers (1) if the punishment is so grossly out of proportion to the seriousness of the offense and the harm done to society that it shocks the sense of justice; and (2) if the punishment is nothing more than a purposeless and needless infliction of pain and suffering. Id.

In this case, Mangham’s imposed sentence of eight years at hard labor is within the sentencing range provided by the statute. Likewise, the statute specifically provides for full restitution to the victim, in addition to any 17other penalties. The text of the statute shows that a person, indigent or otherwise, who commits this crime is intended to serve time in prison, pay a fine, or both, and must make full restitution to the victim. Mangham’s assertion that he should serve a lesser sentence because he was ordered to pay restitution is not supported by the statute, which mandates that he must serve the penalty for the crime and pay back the victims, not one or the other.

At the sentencing hearing, the trial court provided a comprehensive factual basis for the sentence and carefully detailed its consideration of the sentencing guidelines under La. C. Cr. P. art. 894.1, including both aggravating and mitigating factors. It noted the following:

• At some point in time, Mangham sold insurance for Primerica. However, he told his in-laws, senior citizens in bad health, that if they allowed him to invest their savings in Primerica, they could triple their money and live off the interest. Mangham was not even authorized to sell any sort of investment product with Primerica;
• Having known Mangham for 39 years by his marriage to their daughter, William and Wanda Beach trusted him to invest their life savings, $190,000.00, for them in Primerica;
• Additionally, they “loaned” Mangham $18,900.00 to pay back Charles Mang-ham after he promised to repay the loan in three or four days;
Is* Mangham never invested any of the couple’s money and spent all of it. Nor did he repay the loan. The victims, William and Wanda Beach, sustained a loss of over $200,000.00; and
• In addition to taking money from William and Wanda Beach, and Charles Beach, it appears that Mangham also took approximately $10,000.00 from the congregation at Haughton Baptist Temple, in exchange for a carpet renovation that he never performed. That money has not been returned.

The trial court stated:

These victims were vulnerable, Mr. Mangham knew it. He was trusted by them and he violated their trust, really in the worse (sic) sort of way. It’s really a shocking event to me to be able to read what I’ve read in the record and to hear the testimony of these sweet victims.
He deserves nothing in terms of leniency, he deserved no promises from the court.
On the eve of trial by jury, that is, on the days just before this case was to be called for trial by jury, he pled guilty and he wanted to avail himself of the benefits of pleading guilty yet at the same time he played fast and loose with me during the guilty plea about his intent.

The trial court noted that the victims were over age 65 and in ill health, and were both devastated that all of their savings was gone after trusting their son-in-law to invest it for them.

After consideration of the sentencing guidelines in La. C. Cr. P. art. 894.1, the trial court then found that there was an undue risk that during a period of suspended sentence or probation the defendant would commit another crime, because Mangham preyed on persons who trusted him and who were vulnerable, repeatedly and for an extended period of time. The [ atrial court further noted that Mangham was in need of correctional treatment in a custodial environment best provided by the department of corrections, and that any lesser sentence than the one imposed would deprecate the seriousness of the crime. Finally, the trial court opined that Mangham manifested deliberate cruelty to his victims during the years that he committed this crime, knowing that his in-laws were particularly vulnerable due to their advanced age and William Beach’s heart problems.

Aggravating factors noted by the trial court included that Mangham used his position in a financial entity to facilitate the commission of a crime and that he committed a major economic offense to the victims, who due to age and bad health, are unable to work again. According to the trial court: “This defendant can’t possibly repay them during their lives and these victims because of their senior status they’re unable to enjoy their sunset years.... The whole thing is just incredibly shameful and worse than I even thought, way worse than I even thought.”

The only mitigating factors that the trial court found for consideration were the fact that Mangham pled guilty and that he had no prior felony convictions. However, the trial court could not ignore the disgraceful nature of the crime, noting:

This is a bad situation. I don’t know how else to say it. This sort of theft perpetrated in this manner is extremely offensive and I’m having a hard time even understanding how anybody could even sleep at night, much less sleep at night for several years, while doing it. All of that just boggles my mind.

We agree. Mangham defrauded his elderly, sick in-laws out of their savings over a period of three years. Then he moved on to his father-injjaw’sjo elderly brother. When those wells ran dry, he moved on to the local Baptist church, where it appears he continued his con. Mangham admits that he took William and Wanda Beach’s money and lied to them, but persists in maintaining that he intended to invest the money and intended to pay it back. These assertions ring hollow as there is no evidence that he ever intended anything but to steal this elderly couple’s life savings for his own personal use.

Knowing he was not authorized, he conned his in-laws into signing contracts to invest their savings. Every single check was deposited, not into an account with Primerica, but into his flooring business bank account. Mangham’s bank records show a pattern: he took their money, deposited it into his account, and then systematically spent it, day after day, until it was gone. When he was out of money and the bank charges began piling up, he would get another check from his in-laws, deposit it into his flooring business account, and spend every last penny. This pattern continued for three years until the bank account ran insolvent and the bank closed the account. For three years, Mangham dined, traveled and shopped at his leisure on the life savings of his in-laws, as he continued to tell them the money was invested. Although he has claimed that he meant to pay it back, his own actions say otherwise. He made no effort whatsoever to confess his wrongdoing to his family or to even mention paying the money back until he faced criminal charges. In fact, he repeatedly took large amounts of money from them under false pretense. Only when faced with Inimprisonment did Mangham suggest that he would work to pay back ■ the money.

Mangham preyed upon the trust of his own family members to rob them of their financial security. His theft has sentenced this poor elderly couple to live out the last years of their lives struggling in dire financial conditions. Given the large amount of money stolen and the circumstances of Mangham’s crimes, the sentence imposed clearly does not shock the sense of justice. In fact, a lessening of his sentence would serve to shock the sense of justice, considering the heinous crime committed. There is no showing that the trial court abused its discretion in sentencing; therefore, this argument is without merit.

Conclusion

For the foregoing reasons, the conviction and sentence of Stanley E. Mangham are affirmed.

AFFIRMED.

      . Mangham’s pro se motion to reconsider sentence was filed in August 2012. In that motion, Mangham argued that he had been an upstanding citizen for 49 years, he was a first offender with no prior arrests, and he planned to make restitution. He asked the trial court to consider suspending part of his sentence so that he could return to society and make restitution. To date, it appears there has been no disposition of that motion.


author: MADELEINE M. LANDRIEU, Judge.

text:
    PORTFOLIO RECOVERY ASSOCIATES, LLC v. Carter F. JOHNSON.
    No. 2012-CA-1323.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 10, 2013.

      Benjamin G. Lambert, Bradley J. Chau-vin, Couch, Conville & Blitt, New Orleans, LA, for Plaintiff/Appellee.
    Charles B. Johnson, Coleman, Johnson, Artigues & Jurisieh, L.L.C., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge MADELEINE M. LANDRIEU).
   MADELEINE M. LANDRIEU, Judge.

I ¡The appellant, Carter F. Johnson, appeals the First City Court judgment granting a motion for summary judgment in favor of the appellee, Portfolio Recovery Associates L.L.C. (“Portfolio”). For the reasons below, we affirm the judgment of First City Court.

Statement of the Case

On February 2, 2010, Portfolio filed a “Petition in Suit on Open Account” against Mr. Johnson. The petition alleged that Mr. Johnson breached an agreement with Capital One Bank, N.A. MasterCard, for his failure to make monthly payments on a credit card obtained by Mr. Johnson through Capital One Bank. Portfolio sued as the assignee of the account and prayed for “$2,419.49 plus legal interest from date of judicial demand, a minimum of 25% attorney’s fees on the aggregate of principal and interest, for all costs of this suit and for all general and equitable relief.”

Mr. Johnson answered the petition on April 29, 2010. On August 9, 2010, Portfolio filed a Motion for Summary Judgment and a Memorandum in support of |2its motion. After various continuances of hearing dates, on February 24, 2012, Mr. Johnson amended his Answer by adding the affirmative defense that the debt “has been discharged and, as such, has been extinguished.” On March 29, 2012, Mr. Johnson opposed Portfolio’s Motion for Summary Judgment and supported his opposition with a memorandum.

The matter was heard in First City Court on May 8, 2012. On June 8, 2012, summary judgment was rendered in favor of Portfolio. Mr. Johnson suspensively appeals that judgment.

Assignments of Error

Mr. Johnson offers four lengthy assignments of error for this Court’s review. We find the only issue for this Court’s review is whether the trial court erred in granting summary judgment in favor of Portfolio

Standard of Review

Favored in Louisiana, the summary judgment procedure “is designed to secure the just, speedy, and inexpensive determination of every action” and “shall be construed to accomplish these ends.” La. C.C.P. art. 966(A)(2). An appellate court reviews a district court’s decision granting summary judgment de novo, using the same standard applied by the trial court in deciding the motion for summary judgment. Under this standard, summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact | sand that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)7; Lingoni v. Hibernia Nat. Bank, 09-737, p. 4 (LaApp. 4 Cir. 3/3/10), 33 So.3d 372, 376 (citations omitted).

If the court finds that a genuine issue of material fact exists, then summary judgment must be rejected. Doe v. ABC Corp., 04-1806, p. 6 (LaApp. 4 Cir. 1/24/07), 951 So.2d 452, 457 (citation omitted). The mover for summary judgment must make a prima facie showing of each fact necessary to prove his case; if a prima facie case is made, the burden shifts to the opposing party to raise genuine issues of material fact to preclude the granting of summary judgment. La. C.C.P. art. 966(B); U.S. Risk Mgrnt., L.L.C. v. Day, 11-533, p. 5 (LaApp. 4 Cir. 9/28/11), 73 So.3d 1100, 1103. Appellate courts review the grant or denial of summary judgment de novo. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, p. 7 (La.2/29/00), 755 So.2d 226, 230. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. Art. 966(B).

Discussion

In his amended answer, Mr. Johnson rebutted Portfolio’s suit on open account by pleading the affirmative defense that the “alleged debt had been discharged and extinguished.” In opposition to Portfolio’s motion for summary judgment, Mr. Johnson provided the district court with (1) a copy of his credit |4report indicating the debt had been “charged off’; and (2) an article from the Wall Street Journal entitled “U.S. Gets Tougher on Debt Collecting”.

The record reveals that attached to Portfolio’s motion for summary judgment is (1) an Affidavit of Assessment signed by a Capital One authorized agent; (2) a Statement of Account bearing the name “Johnson, Carter, F” indicating the date the account in question was opened and a charge off balance in the amount of $2406.73; (3) a letter dated December 14, 2009, addressed to Mr. Johnson from the law firm of Couch, Stillman, Blitt & Con-vide indicating that the firm was representing Portfolio in an attempt to collect a debt owed by Mr. Johnson.

La. C.C. P art 966(B) lists the documents that may be considered by the trial court in deciding a motion for summary judgment as pleadings, depositions, answers to interrogatories, admissions, and affidavits. In Williams v. Memorial Medical Center, 2003-1806 (La.App. 4 Cir. 3/17/04), 870 So.2d 1044, 1053, this Court further addressed the issue of what form documents must take in order to be appropriate for consideration on summary judgment:

In meeting the burden of proof, unverified documents, such as letters or reports, annexed to motions for summary judgment are not self-proving and therefore will not be considered; “merely stapling them to a motion for summary judgment” does not “magically” transform such documents into competent summary judgment evidence. Schully v. Hughes, 2000-2605, p. 5 (La.App. 4 Cir. 6/5/02), 820 So.2d 1219,1222. However, expert opinion testimony in the form of either an affidavit or deposition may be considered in support of a motion for summary judgment. Johnson v. State of Louisiana/University Hosp., 2001-1972, p. 3 (La.App. 4 Cir. 1/16/02), 807 So.2d 367, 369 (citation omitted).

Therefore, upon de novo review of this matter, we consider the evidence presented to the trial court, the admissibility of such evidence, and whether, after such evidence is studied, a genuine issue of material fact remains.

^Considering the documents offered by the parties in support of and in opposition to summary judgment, only the Affidavit of Assessment signed by a Capital One authorized agent submitted by Portfolio may be considered in deciding the motion under La. C.C.P. Art. 966(B). Mr. Johnson failed to offer any documents acceptable under La. C.C.P. 966(B) to counter Portfolio’s affidavit. Therefore, Portfolio was successful in proving to the trial court that there was an absence of factual support for Mr. Johnson’s defense, and we find the same on appeal.

Moreover, the legal theory Mr. Johnson argued in support of his affirmative defense, that the debt was extinguished once Capital One charged it off, is incorrect. Mr. Johnson contends that the debt being charged off by Capital One released his obligation to pay. Portfolio counterargues that an internal charge-off is not a remission of debt but simply an internal accounting procedure. Portfolio relies on this Court’s decision in Discover Bank v. Andrea Nelson, 2011-1284 (La. 4 CirApp. 2/29/12), 86 So.3d 80.

In Discover Bank, the defendant, Andrea Nelson, opposed Discover Bank’s motion for summary judgment by arguing that Discover Bank had charged off her obligation to pay a $6,333.61 debt. In support of her opposition, Ms. Nelson submitted an account statement from Discover Bank that designated the debt as an “Internal Charge-Off.” Ms. Nelson argued that the account statement was evidence enough to meet her burden under summary judgment. This Court, however, disagreed, stating:

In researching the term “internal charge-off,” we find no directly related jurisprudence, but the term “internal,” is | figenerally defined as “of, relating to, or occurring on the inside of an organized structure (as a club, company or state),” and the general definition for the term “charge-off’ is,“[t]o treat (an account receivable) as a loss or expense because payment is unlikely; to treat as a bad debt (a debt that is uncollectable and may be deductible for tax purposes).” Thus, an internal charge-off is only a corporate accounting mechanism and does not extinguish a debt. Therefore, Ms. Nelson’s submission of this document does not create a genuine issue of material fact.

Id. at 82.

Here the district court expressly relied upon the holding in Discover Bank in granting the summary judgment. We agree that the facts here are so similar to those in Discover Bank that our prior decision controls. We also note that Mr. Johnson argues that Discover Bank is distinguishable to the case at bar, but fails to offer an argument as to why.

Decree

For the reasons stated herein, we affirm the judgment of the district court granting summary judgment in favor of Portfolio.

AFFIRMED

      . Mr. Johnson offers the following four assignments of error (1) The trial court erred in its interpretation of the words "charge-off” used in the factual situation of this case; (2) The trial court, in reaching its judgment, erroneously relied on its finding of fact that "there was no remission of a debt on the part of Portfolio Recovery Associates in favor of Carter F. Johnson”; (3) The trial court erroneously failed to hold that the actions of the original creditor constituted under Louisiana law an express or tacit remission of the defendant’s debt; and (4) The trial court erroneously relied on the holding of this court , in the case, Discover Bank vs. Nelson, infra, despite several distinguishing facts.

      . This article was amended effective January 1, 2012; however, the amendment is inapplicable here.

      . The record is devoid of any testimony or argument that there were documents properly offered by either party and accepted into evidence by the trial court.

      . We find no merit to Mr. Johnson’s other two arguments: (1) that Section 166(a)(1) of the Internal Revenue Code of 1986 suggests that since Capital One, as the original creditor, fully deducts the debt for income tax purposes, that debt should become "wholly worthless,” and, therefore, Capital One is es-topped from collecting on the debt; and (2) that the debt in question was "tacitly” extinguished.


author: EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana in the Interest of D.J.
    No. 2012-CA-1416.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 10, 2013.
    Rehearing Denied April 24, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Matthew C. Kirkham, Assistant District Attorney, New Orleans, LA, for Ap-pellee, State of Louisiana.
    Bethany Conner, Juvenile Regional Services, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).
   EDWIN A. LOMBARD, Judge.

hThe juvenile, D.J., seeks review of the trial court judgment denying his motion to dismiss for failure to timely prosecute. For the following reasons, we reverse the judgment of the trial court.

Relevant Facts and Procedural History

D.J. was arrested for theft of an automobile on July 8, 2012.

On July 9, 2012, the State filed the petition charging D.J. with illegal possession of stolen things in violation of La.Rev. Stat. 14:69 and the juvenile appeared at a hearing before Judge Doherty (Section “F” of Juvenile Court) to answer, denying the offense charged. Accordingly, that same day (July 9, 2012), Judge Doherty signed an order finding probable cause for the arrest, setting the matter for a further hearing in Section “C” on July 16, 2012, and remanded the juvenile to custody pending the hearing, setting his bond at “$85,000.00 property or surety or 10% cash.” On July 10, 2012, Judge Doherty signed an order identical to the order signed on July 9, 2012.

Defense counsel filed a motion for release pending trial, stating D.J. was unable to afford bond and was not a danger to the public or likely to miss future court appearances. After a pretrial hearing on July 16, 2012, Judge Nadine Ramsey | g(Ad Hoc, Section “C”) denied the motion for release pending trial and set the matter for trial on August 13, 2012. The judgment of July 16, 2012, also states that the juvenile entered a plea of not guilty on that date. On July 17, 2012, Judge Ramsey granted D.J. motion for discovery, requiring the State to provide all requested discovery by August 9, 2012.

On August 6, 2012, the State filed a motion to extend the trial date, stating as its reasons: (1) at the pretrial conference on July 16, 2012, Section “C” did not have a copy of the judgment from Section “F” and “as such the juvenile again entered a denial to the petition on July 16, 2012;” (2) the case was set for trial on August 13, 2012; (3) the deadline for trial pursuant to La. Ch.Code art. 877(A) was August 8, 2012; (4) “Section C is currently closed.” Based on these reasons, the State requested the court “to find good cause to extend defendant’s trial deadline to August 13, 2012.” On August 6, 2012, Judge Doherty (of Section “F”) granted the motion, stating that good cause has been shown to extend the La. Ch.Code art. 877(A) deadline until August 13, 2012.

On August 13, 2012, defense counsel orally moved the court to dismiss the petition for failure to timely prosecute. The court denied the motion and commenced the adjudication hearing. At the conclusion of trial, D.J. was adjudicated a delinquent. D.J. appeals.

Applicable Law

La. Ch.Code art. 877(A) clearly states that, unless charged with a crime of violence, when a child is in continued custody “the adjudication hearing shall commence within thirty days of the appearance to answer the petition.” La. Ch.Code art. 877(A) (emphasis added). This time period is mandatory. State in the Interest of R.D.C., Jr., 93-1865, p. 4 (La:2/28/94), 632 So.2d 745, 748. If the ^adjudication hearing “has not been commenced timely, upon motion of the child, the court shall release a child continued in custody and shall dismiss the petition.” La. Ch.Code art. 877(C).

La. Ch.Code art. 877(D) provides that “[f]or good cause, the court may extend such period.” In considering what constitutes good cause, a court should be mindful of those situations or causes beyond the control of the State that may impinge on its ability to prepare for a hearing. State in the Interest of R.D.C., Jr., p. 6, 632 So.2d at 749 (“draconian definition” of good cause is not appropriate when State seeks extension of deadline). Notably, the article does not provide for an adjudication hearing to be initially set outside the mandatory period; rather, it specifically allows the court to extend the deadline for adjudication if good cause is demonstrated. State ex reí J.B., 03-0587, p. 4 (La.App. 4 Cir. 12/10/03), 863 So.2d 669, 671.

Discussion

The issue before this court on appeal is whether, in accordance with La. Ch.Code art. 877, the trial court abused its discretion in denying the juvenile’s motion to dismiss.

The juvenile answered the petition on July 9, 2012. He was unable to make bond and his motion for release pending the adjudication hearing was denied. Thus, he was in continued in custody pending his adjudication hearing and, as such, pursuant to La. Ch.Code art. 877(A), the adjudication hearing should have been set on or before August 8, 2012. It was clear error for the adjudication hearing to be set beyond the mandatory deadline.

If we accept arguendo this error (setting an adjudication hearing beyond the mandatory deadline) can be corrected after the fact by a motion to extend the ^adjudication hearing to the original date set, the issue becomes whether a bureaucratic/administrative error (the judge in Section “C” not having a copy of the judgment of August 9, 2012, before her at the hearing on July 16, 2012) constitutes “good cause” under La. Ch.Code art. 877(D).

The State argues that the juvenile acquiesced in the initial setting of the adjudication hearing date and, therefore, because there is no definition for “good cause” in the Louisiana Children’s Code, we must look to jurisprudence analyzing La. Code Crim. Proc. art. 701, the speedy trial provision for adult defendants. The State’s reliance on this argument and citation to State v. Lathers, 2000-2970 (La.11/01/00), 772 So.2d 659, and State v. Green, 2001-3358 (La.2/1/02), 808 So.2d 318, is misplaced. The State cites no statute or case in which these cases have been applied to a juvenile adjudication hearing and, in fact, this argument (citing Lathers and Green) has already been rejected by this court. See State in the Interest of W.P., unpub., 2011-1442, p. 3 (La.App. 4 Cir. 3/7/12), 82 So.3d 571, writ denied, 2012-0794 (La.9/28/12), 98 So.3d 802.

Moreover, juvenile proceedings are specifically governed by the provisions of the Children’s Code, La. Ch.Code art. 103, and only when there is no applicable provision in the Children’s Code does the court look to a relevant provision in the Code of Criminal Procedure. La. Ch.Code art. 104. In this case, the Children’s Code provides a specific procedure and mandates a specific outcome for a violation of that procedure; the Code of Criminal Procedure is not applicable. Further, the outcome provided in the Children’s Code is drastically different from the one provided in the Code of Criminal Procedure for adult defendants: La.Code Crim. Proc. art. 701 allows only for the release of the defendant from jail without bail if the matter does not proceed to trial timely; it | ¿does not mandate dismissal of the charge in addition to ordering the release as does La. Ch.Code art. 877.

In addition, the juvenile court and the State are equally bound to be familiar with the record. State in the Interest of W.P., supra; see also State in the Interest ofKB.C., 2010-953 (La.App. 3 Cir. 12/8/10), 54 So.3d 735 (failure to commence adjudication hearing within time period of La. Ch.Code art. 877 is patent error). In this case, the record contains two signed judgments from the July 9, 2012 hearing. One is dated July 9, 2012, and the other is dated July 10, 2012. Both are signed by Judge Doherty, and both reveal that D.J. entered a denial to the charges in the petition on July 9, 2012. Coincidentally, both indicate that the State was present at the July 9, 2012 hearing. Clearly, because the State was present at the hearing, knowledge of D.J.’s denial of the charge can be imputed to the State. In addition, although the State asserts that Judge Ramsey did not have a copy of either judgment at the hearing on July 16, 2012, there is no evidence of this in the record before us. It is not the duty of defense counsel to inform the court of the date the juvenile appeared to answer the petition when that evidence is in the record; rather, it is the duty of the juvenile court and the State to be familiar with the record. State in the Interest of W.P., supra.

Even accepting arguendo that the trial judge did not have a copy of the judgment relating to the July 9, 2012, hearing in front of her at the hearing, this is an administrative error that does not impinge the State’s ability to prepare for the adjudication hearing and certainly does not justify extending the deadline during which the juvenile remains in custody pending that adjudication hearing.

With regard to the State’s suggestion that D.J. waived his right to a timely adjudication by failing to object to the adjudication date when it was initially set, Ifithis argument has already been considered and rejected by this court. In State in the Interest of W.P., supra, the juvenile entered a denial to the offense charged in the petition on July 8, 2011, and July 21, 2011. On July 21, 2011, a trial date of August 15, 2011 was set. The juvenile filed a motion to dismiss which the trial court granted. The State appealed, citing Lathers and Green in support of its argument that W.P. waived the right to a timely adjudication by acquiescing in the trial date. After examining jurisprudence arising after Lathers and Green, and specifically involving juveniles, this Court determined “[ajbsent an explicit waiver of the right to a timely adjudication, we decline to find that W.P. waived the right to the commencement of an adjudication proceeding” within the time limits imposed by La. Ch.Code art. 877. Id., p. 4, 82 So.3d 571.

Finally, the State argues that pursuant to the Code of Criminal Procedure, defense counsel’s oral motion to dismiss was invalid because the Code of Criminal Procedure mandates that motions to quash be in writing. However, although La.Code Crim. Proc. art. 531 provides that pleas and defenses “shall be urged by a motion to quash,” the applicable Children’s Code article states “[a]ll objections to the proceedings, including objections based on defects in the petition and defenses capable of determination as a matter of law, may be raised by motion to dismiss.” La.Code Crim. Proc. art. 531 (emphasis added); La. Ch.Code art. 763(emphasis added). As previously stated, the Children’s Code has primacy over the Code of Criminal Procedure in juvenile matters and, therefore, we decline to find that a motion to dismiss under La. Ch.Code art. 877 must be in writing.

Conclusion

After review of the record in light of the applicable law and arguments of the parties, we find that DJ.’s adjudication hearing did not take place within the 17mandated time period of La. Ch.Code 877 and no “good cause” existed to extend the mandated deadline. Accordingly, the trial court abused its discretion in denying the motion to dismiss. The judgment of the trial court is reversed.

REVERSED


author: JOY COSSICH LOBRANO, Judge. LANDRIEU, J.,

text:
    August GUILLOT and Juli Guillot, Individually and as the Survivors of their Minor Child, Collin Jacob Guillot, and Natural Tutor or their Minor Child, Madison Guillot v. DAIMLERCHRYSLER CORPORATION, Lamarque Dodge, Inc., ABC Insurance Company, XYZ Insurance Company and John Doe.
    No. 2012-CA-0888.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 15, 2013.
    Rehearing Denied May 15, 2013.

      J. Wayne Mumphrey, Sarah B. Mum-phrey, Mumphrey Law Firm, LLC, Slidell, LA, Dane S. Ciolino, Dane S. Ciolino, L.L.C., New Orleans, LA, Gregory J. Noto, Noto Law Firm, Chalmette, LA, for Appellees/Intervenors.
    Bruce S. Kingsdorf, Dawn M. Barrios, Barrios, Kingsdorf & Casteix, L.L.P., J. Van Robichaux, Jr., Robichaux Law Firm, New Orleans, LA, Scott P. Nealey, Lieff, Cabraser, Heimann & Bernstein, LLP, San Francisco, CA, for Plaintiffs/Appellants.
    (Court composed of Judge ROLAND L. BELSOME, Judge MADELEINE M. LANDRIEU, Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

11 This appeal involves a fee dispute between former and current attorneys of the Plaintiffs, August Guillot and Juli Guillot, individually and as survivors of them minor child, Collin Jacob Guillot, and as natural tutors of their minor child, Madison Guil-lot. Plaintiffs and the law firms of Barrios, Kingsdorf & Casteix, LLP; Lieff, Ca-braser, Heimann & Bernstein, LLP; and J. Van Robichaux, Jr. (hereinafter referred to collectively as “Current Counsel”) appeal the trial court judgment awarding fees and costs to Plaintiffs’ former counsel in this litigation, J. Wayne Mumphrey; Mumphrey Law Firm, L.L.C.; and Glenn E. Diaz (hereinafter referred to collectively as “Intervenors”). Intervenors answered the appeal, requesting that the judgment be modified to increase their fee award.

The facts and procedural history of the underlying litigation from which the instant fee dispute arises are detailed in this Court’s opinion in Guillot v. Daimlerchrys-ler Corporation, 08-1485 (La.App. 4 Cir. 9/24/10), 50 So.3d 173. For purposes of this appeal, we note the following pertinent dates and events: The |2accident from which the cause of action arose in this case occurred on May 21, 1999. Plaintiffs contacted Mr. Mumphrey in the summer of 2001, and a petition for damages was filed by Intervenors on behalf of Plaintiffs on November 30, 2001. In August of 2005, Plaintiffs terminated Intervenors as their attorneys and retained Current Counsel to represent them. On November 6, 2007, Intervenors filed a petition of intervention, asking that their costs and fee interests be fully recognized and protected out of any recovery by settlement or judgment in Plaintiffs’ case. Attached to the petition was the original retainer agreement and contract for legal representation signed by Mr. Guillot on April 2, 2002, which named the Law Offices of J. Wayne Mumphrey as counsel for Mr. Guillot, but did not include attorney Glenn Diaz’s name in the contract. The contract signed by Mr. Guillot on April 2, 2002 was not signed by Mrs. Guillot.

Trial of the Plaintiffs’ claims was held in March 2008, and the trial court rendered judgment in favor of Plaintiffs on April 10, 2008. On April 8, 2008, Intervenor, Glenn Diaz, filed an amended petition of intervention. In this petition, Mr. Diaz asserts that a new identical retainer contract was signed by both Mr. and Mrs. Guillot after Mr. Guillot signed the April 2, 2002 contract, and the new contract also listed Mr. Diaz as counsel of record along with Mr. Mumphrey. The amended petition asserts that the contract signed by both Mr. and Mrs. Guillot was lost in Hurricane Katrina in August 2005. On September 24, 2010, this Court handed down its opinion in the above-referenced appeal of the April 10, 2008 trial court judgment. Guillot, OS-1485, 50 So.3d 173. Subsequent to the rendition of 13this Court’s opinion, the parties entered into a settlement agreement, the details of which were sealed by court order. On December 15, 2010, Plaintiffs filed a reconventional demand against In-tervenors, seeking damages for Interve-nors’ refusal to release funds to them on account of Intervenors’ assertion of a lien and privilege on a portion of attorney fees allegedly due to Plaintiffs in this matter.

On December 21, 2010, Intervenors filed a second amended and restated petition of intervention. In this petition, Intervenors clarified that the phrase “Guillot’s” in the amended petition for intervention referred to both Mr. and Mrs. Guillot. The petition further asserts that the retainer agreement signed by both Mr. and Mrs. Guillot was lost in Hurricane Katrina. Interve-nors attached to the petition an affidavit executed by J. Wayne Mumphrey and Glenn E. Diaz, attesting that both Mr. and Mrs. Guillot signed a retainer agreement, which added Mr. Diaz’s name but was otherwise identical in terms to the agreement signed by Mr. Guillot and attached to the original petition of intervention. Mrs. Guillot denied at trial that she ever signed any written contract with Intervenors.

On August 10, 2011, trial commenced on the intervention claims and reconventional demand. On April 13, 2012, the trial court rendered judgment awarding Intervenors 30% of the 40% pre-appeal contingency fee in their contract with Plaintiffs, together with interest accrued while these funds were in the registry of the court, and costs of $46,130.55. Current Counsel and Plaintiffs have ^appealed the April 13, 2012 judgment, and Intervenors have answered the appeal. The trial court did not issue reasons for judgment, and none of the parties requested written reasons pursuant to La. C.C.P. article 1917.

On appeal, Current Counsel and Plaintiffs argue that the trial court erred in awarding Intervenors 30% of the 40% pre-appeal contingency fee set forth in Inter-venors’ contract with Plaintiffs. Current Counsel and Plaintiffs argue that Interve-nors are entitled to no more than 3% of the 40% pre-appeal contingency fee. In their answer to the appeal, Intervenors argue they are entitled to 30% of a 50% contingency fee, because a 50% contingency fee is the highest percentage to which Plaintiffs agreed in their contract with In-tervenors. The following clause was included in the Intervenors’ retainer agreement and contract for legal representation:

It is understood that should my attorney find it necessary to file a suit on my behalf in order to enforce recovery of my damages that I then assign forty (40%) percent of my claim for his services. If appealed, fifty (50%) percent of the claim.

We initially note that in the trial court judgment, the trial court used the plural “Plaintiffs” in referring to Intervenors’ “contract with Plaintiffs.” This leads us to conclude that the trial court accepted In-tervenors’ claim, which Plaintiffs dispute, that both Mr. and Mrs. Guillot signed a retainer agreement and contract for legal representation with them that included the above-referenced fee agreement, |Band that the contract with both Plaintiffs’ signatures was subsequently lost in Hurricane Katrina. We find no error in that presumed finding by the trial court.

A trial court’s apportionment of a contingency fee is a factual determination and may not be disturbed absent manifest error. Osborne v. Vulcan Foundry, Inc., 96-1849 (La.App. 4 Cir. 9/3/97), 699 So.2d 492, 494, citing Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993). In Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102, 118 (La.1979), the Louisiana Supreme Court held that in cases where a client has been represented by more than one attorney in the same case at separate times and under separate contingency fee contracts, only one contingency fee should be paid by the client. The amount of the fee to be paid by the client is to be determined according to the highest ethical contingency percentage to which the client contractually agreed in any of the contingency fee contracts that he executed. Id.

The factors to be considered in determining a reasonable fee for legal services are set forth in Rule 1.5(a) of the Rules of Professional Conduct, as follows:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
|fi(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.

Before addressing the argument of Current Counsel and Plaintiffs regarding the apportionment of fees, we find merit in Intervenors’ argument that the highest ethical contingency percentage to which the Plaintiffs agreed in this case was the 50% contingency fee, which Plaintiffs agreed to assign to Intervenors if the case were appealed. Because of this conclusion, we find error in the portion of the trial court’s judgment apportioning the amount of fees owed to Intervenors based on a 40% pre-appeal contingency fee agreement. We find no merit in the argument of Current Counsel and Plaintiffs that the 50% fee is inapplicable because Intervenors were no longer involved in the case at the time of the appeal. The contract that Plaintiffs signed with Interve-nors does not make such a distinction. Under Saucier, supra, the amount of the fee to be paid by the client is to be determined according to the highest ethical contingency percentage to which the client contractually agreed in any of the contingency fee contracts that he executed. In this case, that percentage is 50%.

As for the trial court’s finding that Intervenors earned 30% of the fees in this case, Current Counsel and Plaintiffs argue that Intervenors’ contribution to this case merited no more than a 3% share of the total attorney fees because “[o]ther than initiating suit, virtually all of the substantive work in this matter was performed by Current Counsel.” Notwithstanding that assertion, Current Counsel and Plaintiffs admit that Intervenors performed the following tasks on behalf of |7Plaintiffs: 1) filed suit; 2) successfully opposed defense counsel’s attempt to remove the case to federal court; 3) reacquired the vehicle causing Plaintiffs’ injuries, which vehicle had been sold after the accident; and 4) secured Mr. Gerard Rosenbluth as an expert witness, and had the vehicle inspected by him. However, Current Counsel and Plaintiffs argue that the effect of these contributions to the success of Plaintiffs’ case was minimal, and further suggest that some of the work performed by Interve-nors on behalf of Plaintiffs was substandard. By contrast, Current Counsel and Plaintiffs claim that during Current Counsel’s representation of Plaintiffs, they did the following: 1) took all depositions; 2) completed discovery; 3) briefed and argued all motions and exceptions; 4) prepared the case for trial; 5) tried the case; 6) handled the appeal; and 7) resolved the case by settlement after the appeal.

While Current Counsel undoubtedly performed the majority of the legal work in this case, the record reflects that the In-tervenors expended considerable time and effort on Plaintiffs’ case and that the legal services provided by Intervenors contributed significantly to the ultimate success of Plaintiffs’ case. Although Intervenors did not keep contemporaneous time records during the almost four-year period that they represented Plaintiffs, the record contains testimony and exhibits indicating that the services provided by Intervenors on Plaintiffs’ behalf included much more than those stated by Current Counsel and Plaintiffs. These services included filing suit, conducting research, gathering documents, conducting discovery, participating in depositions, reacquiring the vehicle involved the accident and arranging for its inspection by an expert witness, successfully defeating defense counsel’s attempt to remand the case to federal court, filing oppositions to defendant’s exception of prescription and motion for 18summary judgment, and identifying and securing witnesses. Considering the evidence presented, we do not find that the trial court erred in concluding that the value of Inter-venors’ services in this matter entitles them to 30% of the attorney fees.

Current Counsel and Plaintiffs also argue that the trial court erred in failing to find that Intervenors were terminated for cause, and in not reducing Inter-venors’ recovery due to the nature and gravity of such cause. The judgment appealed from in the instant case is silent on the issue of whether or not Intervenors were terminated for cause by Plaintiffs. Silence in a judgment on any issue that has been placed before the court is deemed a rejection of that claim. Carter v. Department of Police, 09-0723, p. 6 (La.App. 4 Cir. 10/21/09), 24 So.3d 255, 259; see also, Leary v. Foley, 07-0751, p. 4 (La. App. 4 Cir. 2/13/08), 978 So.2d 1018, 1021; Southern Marine Sales, Inc. v. Matheme, 05-181, pp. 8-9 (La.App. 5 Cir. 11/29/05), 915 So.2d 1042,1047.

The trial on the intervention included a substantial amount of testimony on the issue of whether or not Intervenors were terminated for cause by Plaintiffs. Mr. and Mrs. Guillot both testified that they discharged Intervenors for, among other things, failure to communicate with Plaintiffs, being dilatory in the handling of their case and misrepresenting the reason for the delay in the litigation. However, Plaintiffs’ testimony also revealed that they did not complain about the Interve-nors’ services at any time during the almost four-year period that Intervenors represented them. Furthermore, the testimony given by Mrs. Guillot, particularly during cross-examination, supports a finding that the reason Plaintiffs changed counsel was because their expert witness, Mr. Rosenbluth, refused to continue working with Intervenors, and steered Plaintiffs in the direction of other 19attorneys, including the firm of Lieff, Cabraser, Heimann & Bernstein, LLP, one of Current Counsel representing Plaintiffs. After reviewing the evidence presented on this issue at trial, we find no error in the trial court’s tacit rejection of the claim of Current Counsel and Plaintiffs that Intervenors were terminated for cause.

Current Counsel and Plaintiffs also argue that the trial court erred in failing to address Plaintiffs’ reconventional demand and award damages to them for Interve-nors’ allegedly improper assertion of hen rights pursuant to La. R.S. 37:218. The judgment appealed from is silent on this issue that was fully litigated at trial; therefore, that claim is deemed rejected by the trial court. Carter, 09-0723, p. 6, 24 So.3d at 259; see also, Leary, 07-0751, p. 4, 978 So.2d at 1021; Southern Marine Sales, Inc., 05-181, pp. 8-9, 915 So.2d at 1047.

Plaintiffs claimed that Intervenors were not entitled to assert lien privileges as to their fees and costs due to the absence of a written fee agreement with Mrs. Guillot. As stated above, we find no error in the trial court’s presumed acceptance of Inter-venors’ claim that both Mr. and Mrs. Guil-lot signed a retainer agreement and contract for legal representation with them, and that the contract with both Plaintiffs’ signatures was subsequently lost in Hurricane Katrina. Because we find that In-tervenors were within their rights in asserting lien privileges under La. R.S. 37:218, we find no error in the trial court’s tacit rejection of the claim in Plaintiffs’ reconventional demand that Intervenors improperly asserted such rights. Additionally, we find that Plaintiffs did not prove their entitlement to an award of damages.

ImCurrent Counsel and Plaintiffs next argue that the trial court erred in awarding Intervenors costs in the amount of $46,130.55. They allege that the Interve-nors did not provide adequate proof that they made the expenditures claimed on Plaintiffs’ behalf and that the expenses were reasonably incurred and directly related to the representation undertaken.

We find that the evidence in the record substantiates the award to Interve-nors of $46,130.55 in costs. Absent an abuse of discretion, this Court will not interfere with an award of costs. Vela v. Plaquemines Parish Government, GO-2221, p. 29 (La.App. 4 Cir. 3/13/02), 811 So.2d 1263, 1282. We find no such abuse of discretion in the trial court’s award of costs.

Intervenors argue that the award of costs should be increased to $60,553.98. We note that Intervenors’ answer to the appeal includes only a request that the trial court judgment be modified to calculate their award of attorney fees based on a 50% contingency fee, rather than the 40% fee used by the trial court. As stated above, we find merit in that request. However, the answer to the appeal does not include a request for modification of the award of costs to Intervenors. La. C.C.P. article 2133(A) states, in pertinent part:

An appellee shall not be obliged to answer the appeal unless he desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant. In such cases, he must file an answer to the appeal, stating the relief demanded, not later than fifteen days after the return day or the lodging of the record whichever is later.

Id. (Emphasis added.)

Because Intervenors’ answer to the appeal does not contain a request for modification of the award of costs, this request is not properly before this Court |nand will not be considered. See Clark v. Schwegmann Giant Supermarket, 96-2301 (La.App. 4 Cir. 1/13/99), 740 So.2d 137.

Finally, Current Counsel and Plaintiffs argue that the trial court erred in awarding any interest to Intervenors prior to the entry of the judgment appealed from. We agree. The trial court judgment awarded interest “accrued while the funds were in registry of the court.” Because the amount of the fee due to Inter-venors was not ascertainable until awarded by the trial court, the trial court should have only awarded interest on the award of attorney fees from the date of judgment. Verges v. Dimension Development Co., Inc., 08-1336 (La.App. 4 Cir. 2/10/10), 32 So.3d 310. The judgment will be amended accordingly.

For the reasons stated above, the trial court judgment is amended to increase the amount of attorney fees awarded to Inter-venors to 30% of 50% of the Plaintiffs’ total recovery. The judgment is also amended to award interest only from the date of the trial court judgment, April 13, 2012. In all other respects, the trial court judgment is affirmed.

AMENDED, AND AS AMENDED, AFFIRMED

BELSOME, J., concurs for the reasons assigned by J. LANDRIEU.

LANDRIEU, J., concurs with reasons.

LANDRIEU, J.,

concurs with reasons.

hi agree with the result reached by the majority. However, I write separately to further address the trial court’s award to Intervenors of interest from the date the funds were deposited into the registry of the court.

Relying upon this court’s prior decision in Verges v. Dimension Development Co., Inc., 08-1336 (La.App. 4 Cir. 2/10/10), 32 So.3d 310, the majority amends the trial court’s judgment to award interest only from the date of the judgment dispersing those funds. Like the present case, Verges involved the division of fees that have been deposited into the registry of the court among competing attorneys. I agree that Verges is directly on point, and that the majority is bound to follow it.

Nevertheless, I believe this particular issue in Verges was wrongly decided because the five-judge panel sitting in that case mistakenly relied upon Alexander v. Burroughs Corporation, 359 So.2d 607 (La.1978), a Supreme Court decision that involved legal interest rather than interest that has accrued on funds on deposit in the registry of the court. In Alexander, the question addressed by the Court was) ¡/‘the running of legal interest in a redhibition action-” 359 So.2d at 613 (Emphasis added). One of the elements of damages sought by the plaintiffs was the attorneys’ fees they had incurred in pursuing their redhibition claim. The Supreme Court held that the plaintiffs were entitled to legal interest from the date of formal demand on all damages awarded except for attorneys’ fees, reasoning: “The amount of attorneys’ fees due was not ascertainable until awarded by the court, and interest, therefore, will run on that demand only from the date awarded.” 359 So.2d at 613-614.

Because Verges concerned interest on money deposited into the registry of the court, rather than legal interest, it is clearly distinguishable from Alexander. In Verges (as in the present case) the trial court did not determine the amount of “legal interest” on attorneys’ fees due from one party to another, it merely divided up an amount already deposited into the registry of the court among competing attorneys who represented the same party. I therefore believe that the Verges court’s reliance upon Alexander in this circumstance was misplaced.

In this situation, despite the precedent of Verges, it seems illogical for one party to benefit from interest accrued on funds ultimately awarded to another.

      . Because the details of the settlement were sealed by court order, we will only state percentages, and not dollar amounts, when referring to attorney fees.

      . In Plaintiffs’ contract with Current Counsel, the highest percentage to which Plaintiffs agreed was 45% in the event that an appeal was filed.

      . In addition to attesting to these facts by affidavit, Mr. Mumphrey and Mr. Diaz both testified at trial that they had written contracts with both Mr. and Mrs. Guillot, and that all contracts were destroyed in Hurricane Katrina, except for the one signed only by Mr. Guillot on April 2, 2002. La. C.C.P. article 1832 states, "[w]hen the law requires a contract to be in written form, the contract may not be proved by testimony or by presumption, unless the written instrument has been destroyed, lost, or-stolen." (Emphasis added.)