author: PICKETT, Judge.

text:
    Rozina AMLANI v. Rocky James McGEE, et al.
    No. 13-950.
    Court of Appeal of Louisiana, Third Circuit.
    April 2, 2014.

      Blair A. Bisbey, Seale, Stover & Bisbey, Jasper, TX, for Plaintiff-Appellee, Rozina Amlani.
    Henry G. Terhoeve, Guglielmo, Marks, Schutte, Terhoeve & Love, Baton Rouge, LA, for Defendant-Appellant, Rocky James McGee.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and ELIZABETH A. PICKETT, Judges.
   PICKETT, Judge.

|, Rocky McGee appeals a judgment of the trial court finding him liable in the death of Amin Amlani, husband of the plaintiff, Rozina Amlani, and awarding damages to Mrs. Amlani and her children in the amount of $1.5 million.

STATEMENT OF THE CASE

At approximately 1:00 A.M. on February 18, 2010, Mr. Amlani drove to work on Grand Point Highway in Henderson. Before he arrived, he collided with an SUV driven by Mr. McGee. The collision propelled Mr. Amlani’s vehicle backward. Mr. Amlani died as a result of the injuries he sustained in this accident.

Mr. McGee, who was a seventeen-year-old unlicensed driver at the time of the accident, was returning from a party at a teen club. Mr. McGee admitted that he had consumed five or six beers that night. When his vehicle came to rest, Mr. McGee fled the scene of the crime. When he was apprehended later that night, his blood alcohol content was measured at 0.097%. Mr. McGee pled guilty to felony hit and run and first offense DWI because of his actions that night.

Mrs. Amlani, who was pregnant at the time of the accident, filed suit against Mr. McGee and his insurer, Progressive Security Insurance Company, on behalf of herself, her daughter, Alina, and her unborn child. The matter proceeded to a jury trial. Following a two-day trial, the jury found Mr. McGee at fault for causing the accident. The jury ascribed no liability to Mr. Amlani. The jury awarded Mrs. Am-lani $900,000 in damages for the wrongful death of her husband and each of her children $300,000 in damages for the wrongful death of their father. The jury awarded no damages for the survival action brought on behalf of Mr. Amlani.

Following the trial, Progressive paid its policy limits and was released from this litigation. Mr. McGee now appeals the judgment rendered against him.

| ^ASSIGNMENTS OF ERROR

Mr. McGee asserts four assignments of error:

1. The jury erred in finding Rocky McGee at fault in the accident (either wholly or partially) and refusing to find that the accident was the fault of Amin Amlani (and alternatively that Amin Amlani was comparatively at fault).

2. The trial court erred in failing to charge the jury properly on the presumption of Amlani’s fault.

3. The trial court erred in allowing evidence of loss of support, including a claim for future loss of income without requiring the testimony of an economist.

4. The damage awards exceed that which is reasonable based upon the evidence presented and as allowed by law.

a. The award to Rozina Amlani of $900,000 was excessive.

b. The award of $800,000 to the minor child, Alina Amlani, and the award to Amin Amlani, unborn at the time of death, was excessive.

c. The claim of the unborn child Amin Amlani is barred as a matter of law and because that claim was prescribed.

i. Louisiana law does not support a wrongful death claim by an unborn child

ii. The claim of Amin Amlani was prescribed.

DISCUSSION

Apportionment of Fault

Mr. McGee’s first assignment of error questions the jury’s finding that Mr. McGee was completely at fault in causing the collision. The apportionment of fault is a finding of fact reviewed by this court under the manifest error standard of review. Stobart v. State, Dep’t Trans, and Dev., 617 So.2d 880 (La.1993). Under this standard, we must review the record in its entirety and determine if the jury’s factual findings were clearly wrong or manifestly erroneous. Id. After reviewing the entire record, an appellate court may not reverse reasonable findings of the trial court, even though we would have reached a different conclusion if sitting as the trier of fact. Fontenot v. Patterson Ins., 09-0669 (La.10/20/09), 23 So.3d 259.

UMr. McGee points to his own testimony, the testimony of his passenger, Victor Simon, and the testimony of an accident reconstruction expert, Vernon Tekell, to support his argument that Mr. Amlani was solely at fault in causing the accident. Mr. McGee testified that even though he had five or six beers that night, he was not impaired. He stated that he was in his lane driving fifty or fifty-five miles an hour when Mr. Amlani’s vehicle suddenly swerved in front of him when he was only one or one-and-a-half car lengths away. Mr. McGee testified that he tried to swerve to the left to avoid the collision, but he could not. Mr. McGee also testified that he had no driver’s license. He claimed that he fled the scene without checking on his passengers or Mr. Amlani because he was just “dazed-out.”

Mr. Simon testified that Mr. McGee was not driving unsafely that night. He was texting right before the accident, but did look up just before the collision. He testified that Mr. McGee tried to avoid the accident.

Mr. Tekell was qualified as an expert in accident reconstruction. His key findings were that the point of impact was in the eastbound lane of travel, in which Mr. McGee had the right of way. He stated that Mr. Amlani’s vehicle was angled at twenty to thirty degrees relative to the center stripe, while Mr. McGee’s vehicle was parallel to the center stripe. He estimated that Mr. McGee was travelling fifty-four to sixty-five miles an hour and Mr. Amlani was travelling between thirty-two and forty-seven miles an hour. The vehicles hit passenger side to passenger side.

The jury clearly did not find Mr. McGee’s testimony believable. A jury is in the best position to evaluate witness credibility, and the manifest error standard demands we afford great deference to the jury’s view of the evidence. Bonin v. Fer- rellgas, Inc., 03-3024 (La.7/2/04), 877 So.2d 89. Mr. McGee’s testimony was clearly self-serving, and conflicted in key points with the testimony of his own 14expert. He testified that he was driving slower than the expert determined his speed at impact. He testified that he swerved to avoid the collision, but the expert found his vehicle was travelling straight when the accident occurred. He testified that he was in his lane. of travel when the expert testified that he had crossed the centerline. The jury was within its discretion if it concluded that Mr. McGee’s intoxication impaired his ability to drive, despite the testimony to the contrary.

Mr. McGee argues that if he shows that Mr. Amlani was in the wrong lane at the time of the collision, the burden of proof is on the plaintiff to exculpate him from fault, citing Stapleton v. Great Lakes Chemical Corporation, 627 So.2d 1358 (La.1993). We find it reasonable for the jury, in considering the testimony of Mr. Tekell, to conclude that Mr. Amlani had swerved into Mr. McGee’s lane of travel to avoid a collision with Mr. McGee, who had encroached into Mr. Amlani’s lane of travel at a high rate of speed. We find no manifest error in the jury’s apportionment of 100% of the fault in causing the accident to Mr. McGee.

Jury Charges

In his second assignment of error, Mr. McGee argues the trial court erred in rejecting the following jury instruction:

When there is a change of lanes by a motorist immediately preceding an accident, the burden of proof is on the motorist changing lanes to show that he first ascertained the movement could be made safely. A presumption of negligence arises when the driver leaves his own lane of travel and strikes another vehicle.

Mr. McGee cited three cases to support this jury charge: Brewer v. J.B. Hunt Transport, Inc., 09-1408 (La.3/16/10), 35 So.3d 230; Barriociere v. Batiste, 99-1800 (La.App. 4 Cir. 2/2/00), 752 So.2d 324; and Shephard v. Scheeler, 96-1690 (La.10/21/97), 701 So.2d 1308.

IsThe trial court did not err in refusing to give this instruction to the jury. Each of the cases cited by the Mr. McGee to support the charge is clearly distinguishable from the case before us. In Brewer, a vehicle crossed a solid white line without signaling and was rear-ended by another vehicle. In Barriociere, a ear backing out of a space in a casino parking lot struck a vehicle. In Shephard, a vehicle skidded out of control and hit a dump truck parked on the shoulder of the road. None of these cases involve a collision between two cars heading in opposite directions on a two-lane road where both cars crossed the center line. This assignment of error lacks merit.

Evidence of Economic Damages

In this assignment of error, Mr. McGee argues that the trial court erred in allowing evidence for future lost earnings because Mrs. Amlani failed to produce expert economic testimony regarding the current value of Mr. Amlani’s potential earnings. To support this argument, Mr. McGee cites Jones v. Trailor, 93-2144 (La.App. 4 Cir. 4/28/94), 636 So.2d 1112, writ denied, 94-1337 (La.9/16/94), 642 So.2d 193. In fact, the fourth circuit’s opinion in Jones is not controlling in this circuit. See Maddox v. City of Oakdale, 99-726 (La. App. 3 Cir. 11/3/99), 746 So.2d 764, writ denied, 99-3388 (La.2/11/00), 754 So.2d 936.

This court announced the proof required to show loss of earnings in Veazey v. State Farm Mutual Automobile Insurance, 587 So.2d 5, 7 (La.App. 3 Cir.1991) (citations omitted):

A claim for loss of earnings need not be proven with mathematical certainty, but only by such proof as reasonably establishes plaintiffs claim. This may consist only of plaintiffs testimony if considered credible by the trier of fact.

|fiWe find the trial court did not err in allowing evidence concerning the loss of Mr. Amlani’s future income. The trial court explained to the jury in its charges that they must discount the amount to the current value of the future lost income. This assignment of error lacks merit.

Damages

In his final assignment of error, Mr. McGee contends the jury’s damage awards are abusively high. Our review of the damage awards to Mrs. Amlani is complicated by the fact that the jury verdict sheet only included one line for a total amount of damages. For example, in regards to Mrs. Amlani’s damages, the verdict form stated:

What sum of money, if paid now in cash, would fairly and reasonably compensate Plaintiff Rozina Amlani for her damages that resulted from the death of her husband, Amin Amlani?
Consider the elements of damages listed below and none other. Consider each element separately. Do not include for one element in any other element.
1.Pecuniary loss, which means the loss of care, maintenance, support, services, advice, counsel, and reasonable contributions of a pecuniary value that Rozina Amlani would probably have received from her husband, Amin Amlani, had he lived;
2. Loss of companionship and society, which means the loss of the positive benefits flowing from the love, comfort, companionship, and society that Rozina Amlani would probably have received from her husband, Amin Amlani, had he lived; and
3. Mental anguish, which means the emotional pain and suffering experienced by Rozina Amlani because of the death of her husband, Amin Amla-ni.
Do not reduce the amounts, if any, in your answer because of the negligence, if any, of Amin Amlani.
Answer in dollars and cents for damages, if any, that were sustained in the past and that, in reasonable probability, will be sustained in the future.
Answer: $_

17As we cannot evaluate each individual element of the damages awarded, we must determine whether the total amount awarded is within the vast discretion of the jury. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).

Mr. Amlani was a young man with a devoted, pregnant wife and a young daughter. The jury heard evidence of the loving relationship between Mr. and Mrs. Amlani, two immigrants from India. As a result of Mr. McGee’s negligence, Mr. Am-lani was killed. We find the total damage award of $900,000 to Mrs. Amlani and $300,000 to each of the children was a reasonable exercise of the jury’s discretion.

Finally, Mr. McGee argues that the damage award to Mr. Amlani’s son, also named Amin Amlani, is not recognized under our law or is prescribed. To determine whether the claims of young Amin are cognizable under the law of this state, we first turn to La.Civ.Code art. 26, which states, “[a]n unborn child shall be considered as a natural person for whatever relates to its interests from the moment of conception.” Civil Code Article 2815.2 includes children of the decedent as those having a claim for wrongful death. Amin had been conceived at the time of his father’s death. Therefore, he has a cause of action for the wrongful death of his father. See Mason v. Luther, 05-25 (La. App. 3 Cir. 6/1/05), 903 So.2d 1145. The case cited by Mr. McGee, Diefenderfer v. Louisiana Farm Bureau Mutual Insurance Co., 383 So.2d 1032 (La.App. 1 Cir.), units granted, 384 So.2d 985 (La.1980), involved the rights of a stillborn child to recover under La.Civ.Code art. 2315 for the wrongful death of his mother. It is clearly distinguishable from this case.

| sIn the original petition, filed before young Amin was born, Mrs. Amlani claimed damages on behalf of her unborn child. In a supplemental petition filed in August 2012, the plaintiff amended the petition to name Amin Amlani. Clearly this amendment relates back to the original petition. See La.Code Civ.P. art. 1153. Mr. McGee was on notice of the younger Amin Amlani’s claims from the date of the original petition. The supplemental petition more particularly identifying him was by no means prejudicial. This court has found that the addition of a minor child as a new party in an amendment to a petition relates back to the filing of the original petition for the purposes of prescription. Hudnall v. Volk, 97-573 (La.App. 3 Cir. 10/8/97), 702 So.2d 909. The claims of Amin Amlani were not barred by prescription.

CONCLUSION

The judgment of the trial court is affirmed. All costs of this appeal are assessed to the appellant, Rocky McGee.

AFFIRMED.


source: Caselaw Access Project

author: COOKS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Christopher SPRIGGINS.
    No. 13-1114.
    Court of Appeal of Louisiana, Third Circuit.
    April 2, 2014.

      Trent Brignac, District Attorney, Shelley DeVille, Assistant District Attorney, Evangeline Parish District Attorney’s Office, Ville Platte, LA, for Appellee, State of Louisiana.
    Brent Hawkins, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Christopher Spriggins.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JOHN E. CONERY, Judges.
   COOKS, Judge.

|2On November 10, 2010, Defendant, Christophe Spriggins, entered the home of Ms. Cecilia Ardoin within the Parish of Evangeline without permission. While Defendant was in the process of burglarizing the home, Ms. Ardoin returned to her home after attending morning mass. Ms. Ardoin saw Defendant standing in front of her bookcase. Defendant then grabbed a heavy, wooden pendulum clock and hit Ms. Ardoin in the head several times. Ms. Ardoin attempted to flee, however Defendant pursued her and continued hitting her with the clock. Ms. Ardoin fell to the floor, and Defendant continued hitting her with the clock.

When police arrived on the scene they followed a trail of blood, and found Ms. Ardoin severely injured. Defendant inadvertently left a jacket at the crime scene. DNA from the jacket was matched with that of Defendant.

A bill of information was filed charging Defendant with attempted second degree murder, in violation of La.R.S. 14:27 & 14:30.1, and aggravated burglary, in violation of La.R.S.14:60. Defendant pled guilty and received two concurrent twenty-year sentences, pursuant to a plea agreement.

Defendant subsequently moved for an out-of-time appeal. The trial court granted said motion on July 11, 2013 and appointed the Louisiana Appellate Project to represent him.

Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), appellate counsel filed a motion to withdraw, alleging that no non-frivolous issues existed to appeal. This court denied the motion to withdraw and ordered counsel to submit a brief addressing a single issue. Counsel has since filed a timely brief arguing Defendant’s plea was not voluntary because the State’s recitation of the facts included a misstatement of the elements of attempted second degree murder.

_yERRORS 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 one error patent concerning the bill of information.

For the charge of attempted second degree murder, the bill cites only La.R.S. 14:80.1 and does not include La.R.S. 14:27, the citation for attempt. “Error in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.” La.Code Crim.P. art. 464. Defendant does not allege any prejudice because of the erroneous citation; thus, any error is harmless. Additionally, by entering an unqualified plea, Defendant waived review of this non-jurisdictional pre-plea defect. See State v. Crosby, 338 So.2d 584 (La.1976). Accordingly, this error is harmless. State v. Allen, 09-1281 (La.App. 3 Cir. 5/5/10), 36 So.3d 1091.

ANALYSIS

In his lone assignment of error, Defendant argues the trial court erred by accepting his guilty plea because the State’s recitation of the facts misstated an element of attempted second degree murder. The prosecutor did state that Defendant had the intent to inflict great bodily harm. However, specific intent to kill is required to support an attempted second degree murder conviction. State v. Butler, 322 So.2d 189 (La.1975), State v. Latiolais, 453 So.2d 1266 (La.App. 3 Cir.), writ denied, 458 So.2d 125 (La.1984).

Defendant cites State v. Linear, 600 So.2d 113 (La.App. 2 Cir.1992) for support, since it contains a finding that the proceedings lacked a significant factual basis to support the defendant’s Alford plea to attempted second degree murder. However, the present case is distinguishable because it was a normal guilty plea |4and thus did not involve North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), which allows a defendant to submit to legal punishment without admitting guilt. Such a plea puts a trial court “on notice that a substantial basis of guilt must be placed into the record.” State v. J.S., 10-1233, p. 2 (La.App. 3 Cir. 5/11/11), 63 So.3d 1185, 1188 (citing State v. Villarreal, 99-827 (La.App. 5 Cir. 2/16/00), 759 So.2d 126, 129, writ denied, 00-1175 (La.3/16/01), 786 So.2d 745). Thus, Defendant’s plea proceedings did not have the same basis or requirements as Linear.

Another line of jurisprudence applies to guilty pleas. In State v. Nguyen, 10-83, pp. 11-12 (La.App. 3 Cir. 2/2/11), 55 So.3d 976, 983-84, unit denied, 11-0285 (La.6/17/11), 63 So.3d 1038, a case from this court in which the defendant alleged the definition of “dangerous weapon,” an element of the charge against him, was not explained, this court stated:

“The test for the validity of a guilty plea does not depend on whether the trial court specifically informed the defendant of every element of the offense. Rather, the defendant must establish that he lacked awareness of the essential nature of the offense to which he was pleading.” State v. Strattman, 08-674, p. 5 (La.App. 5 Cir. 4/28/09), 18 So.3d 1129, 1182, writ denied, 09-1157 (La.1/22/10), 25 So.3d 130; see also, State v. Minniefield, 43,300, p. 4 (La. App. 2 Cir. 6/4/08), 986 So.2d 227, 231. Here, after the trial court read the aggravated second degree battery statute, the defendant affirmed three times that he understood the nature of the charges against him. Further, the defendant affirmed the State’s factual basis, which included reference to the defendant[’s] using an “object in a manner in which it was used it was dangerous,” was true. Accordingly, it cannot be said that the defendant lacked awareness of the essential nature of the offenses to which he was pleading.

(emphasis added).

Regarding Defendant’s understanding of the proceeding, the following colloquy occurred at the plea proceeding:

BY THE COURT:
Do you voluntarily waive all these rights that I have explained to you and entered this plea of guilty because you are in fact guilty of these charges?
J¿BY MR. SPRIGGINS:
Yes sir.
BY THE COURT:
Have you fully understood all of what I’ve told you, and particularly that you do not have to plead guilty at all if you do not want to?
BY MR. SPRIGGINS:
Yes sir.
BY THE COURT:
Do you have any questions; do you have any reservations about pleading guilty?
BY MR. SPRIGGINS:
No sir.
BY THE COURT:
Mr. Fontenot would read to Mr. Spriggins what the maximum penalties are, and give us the factual basis that gave rise to these charges.
BY MR. FONTENOT:
Yes sir Your Honor. Under the Second Degree Murder statute that carries mandatory life in prison, so any attempt to commit that carries a maximum of fifty years.
With regard to the Aggravated Burglary, whoever commits that crime shall be imprisoned for hard labor for not less than one nor more than thirty years.
In this particular case, on or about November 10, 2010 the defendant did enter the home of Ms. Cecilia Ardoin within the Parish of Evangeline without permission, which is the burglary; during the commission of that burglary did hit Ms. Ardoin with what reports [sic] to be a clock with intent to cause great bodily harm, which is where the attempted murder comes from.
BY THE COURT:
I understand. Mrs. Kelly, are you satisfied with the reading of the maximum penalty, and are you further satisfied that considering the factual basis just set forth by Mr. Tim Fontenot from the DA’s | f,office there will be sufficient evidence to prove the essential elements of the crimes charged beyond a reasonable doubt?
BY MS. KELLY:
Yes sir.
BY THE COURT:
Ms. Spriggins [sic], how do you plead to a violation of Louisiana Revised Statute Title 14, Section 30.1, Attempted Second Degree Murder?
BY MR. SPRIGGINS:
Guilty.
BY THE COURT:
How do you plead to a violation of Louisiana Revised Statute Title 14, Section 60.3, Aggravated Burglary with a Battery?
MR. SPRIGGINS:
Guilty.
BY THE COURT:
I make an affirmative finding of fact that your pleas of guilty are being made freely, voluntarily and intelligently, that you want me to accept it, and I do accept it.
Ms. Kelly, do you care to waive the provision of Louisiana Code of Criminal Procedure Article 894.1, particularly Sections D and E thereof?
BY MS. KELLY:
Yes sir.
BY THE COURT:
In accordance with your plea bargain agreement Mr. Spriggins, on both the Attempted Second Degree Murder and the Aggravated Burglary with a Battery, I’m going to sentence you to 20 years at hard labor on each count to run concurrent with one another.
Special conditions are that upon your release from jail you will have no contact with the victim and that you further understand that your Attempted Second Degree Murder [sentence] is served without benefit of parole, probation, or suspension of sentence.
|7I further inform you that [by] virtue of Louisiana Code of Criminal Procedure Article 930.8 there is a two year prescriptive period for you to apply for post conviction relief which begins to run from the time of finality of this judgment, and I will ask you Mr. Sprig-gins, and you Mrs. Kelly, do you both affirm and acknowledge for the record that Mr. Spriggins’ plea was a direct result of the plea bargain, and that Mr. Spriggins received exactly what was bargained for, and that the plea bargains terms and conditions were correctly and clearly set forth and encompassed in the sentence of this court. Is that correct sir?
MR. SPRIGGINS:
Yes.
BY THE COURT:
Ma’am?
BY MS. KELLY:
Yes sir.

The foregoing exchange indicates Defendant understood the proceedings. Moreover, Defendant makes no showing on appeal to indicate he lacked awareness of the essential nature of attempted second degree murder such that the pleas should be vacated. Thus, we find this assignment lacks merit.

DECREE

For the foregoing reasons, Defendant’s guilty pleas and sentences are affirmed.

AFFIRMED.

      . Latiolais was abrogated on other grounds by the holding in State v. Hongo, 96-2060 (La. 12/02/97), 706 So.2d 419.


author: PETERS, J.

text:
    STATE of Louisiana v. John Wesley BILLIOT.
    No. 13-1187.
    Court of Appeal of Louisiana, Third Circuit.
    April 2, 2014.
    John F. DeRosier, District Attorney, Karen C. McLellan, Assistant District Attorney, Fourteenth Judicial District, Lake Charles, LA, for Appellee, State of Louisiana.
    Paula C. Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, John Wesley Billiot.
    John Wesley Billiot, Louisiana State Penitentiary, Angola, LA, In Proper Person.

      Court composed of JIMMIE C. PETERS, BILLY HOWARD EZELL, and PHYLLIS M. KEATY, Judges.
   PETERS, J.

|,The defendant, John Wesley Billiot, entered a no-contest plea to the offense of aggravated battery, a violation of La.R.S. 14:34, and, thereafter, the trial court sentenced him to serve ten years at hard labor with the sentence to run consecutive to other sentences he received for felony convictions to which he entered no-contest pleas on the same day. After the trial court rejected his motion to reconsider his sentence, the defendant appealed. For the following reasons, we affirm the convictions and sentence in all respects.

DISCUSSION OF THE RECORD

The matter before us is a companion ease to two other appeals now before us involving basically the same issues. However, the appeals are not consolidated as they each arise from different criminal acts. The connecting link is the fact that the three pleas arise from the same plea negotiations with the State of Louisiana (state).

On March 11, 2011, the state charged the defendant by grand jury indictment with attempted second degree murder, a violation of La.R.S. 14:30.1 and La.R.S. 14:27. He entered a not-guilty plea to the charge on April 11, 2011. On January 28, 2013, the state amended the bill of indictment to charge the defendant with aggravated battery, and, on the same day, the defendant entered a no-contest plea to that charge. On April 24, 2013, the trial court sentenced the defendant to serve ten years at hard labor and ordered that the sentence run consecutive to the sentences imposed on him for other felonies that the defendant had entered no-contest pleas to that same day: two counts of armed robbery, violations of La.R.S. 14:64; two counts of aggravated battery, violations of La.R.S. 14:34; two counts of armed robbery with a firearm, violations of La.R.S. 14:64.3; |2and one count of obscenity, a violation of La.R.S. 14:106.

At the time the defendant entered his plea to the charge now before us, the state provided the trial court with the factual basis in support of that charge. This factual basis established that on January 15, 2011, the defendant, the victim of the offense Alex Michael Cook, and a third person were traveling together in Calcasieu Parish, Louisiana. The defendant and the other man stopped in an empty field located off a state highway, removed Cook from the vehicle, and began hitting him in the face with an aluminum baseball bat. After severely beating Cook, the two men fled the scene, leaving the victim in the field. Cook was able to walk to Interstate 10, where drivers stopped to render aid and found him bleeding profusely. He was transported by ambulance to a local hospital for treatment of his injuries. As a result of the battery he received, Cook sustained a fractured mandible, fractured orbital, and numerous facial lacerations. He appeared to have been struck by the baseball bat at least thirty times.

On appeal, the defendant asserts that his sentence violates the terms of his plea agreement and that either the plea agreement should be enforced or he should be allowed to withdraw his no-contest plea. He also asserts that the trial court erred in failing to rule on his pro se motion to withdraw his plea.

Assignment of Error Number One

As previously stated, on the day the defendant entered his no-contest plea to the charge in this matter, he entered additional no-contest pleas in two other pending matters involving seven additional felony counts. The end result of his pleas from a sentencing standpoint is as follows:

Trial Court Docket Number 07597-11 (the matter now before us)
^Aggravated battery — ten years at hard labor to run consecutive to all of the other sentences. (The state had recommended a ten year hard labor sentence to run concurrent to the other sentences).
Trial Court Docket Number 07619-11
Armed robbery (two counts) — seventy years at hard labor on each count to run concurrently to each other and to be served without the benefit of parole, probation, or suspension of sentence. (The state had recommended fifteen years at hard labor without benefit of parole, probation, or suspension of sentence on each count to run concurrent to the other sentences).
Armed robbery with a firearm (two counts) — five years at hard labor to run concurrently with each other, but consecutively with the armed robbery sentences, and to be served without the benefit of parole, probation, or suspension of sentence. (The state had recommended five years at hard labor without benefit of parole, probation, or suspension of sentence on each count to run consecutive to the armed robbery sentences).
Aggravated battery (two counts) — five years at hard labor to run concurrently with each other and concurrently with the two armed robbery counts and the two armed robbery with a firearm counts. (The state had recommended ten years at hard labor on each count to run concurrent with the other sentences).
These offenses were committed on January 3, 2011, and involved victims different from the victim in the current matter.
Trial Court Docket Number 35370-11
Obscenity — three years at hard labor to run consecutively with the other sentences and a fine of $2,500.00. (The state had recommended three years at hard labor to run concurrent with the other sentences).
The defendant was originally charged with two counts of forcible rape, violations of La.R.S. 14:42.1; and four counts of tattooing and body piercing a minor without consent, violations of La.R.S. 14:93.2. The offenses occurred between November 1, 2010 and January 31, 2011, and involved a single victim who was thirteen years of age at the time of the offenses.

Additionally, as part of the plea agreement entered into between the state and the defendant, the state agreed not to pursue the defendant as a habitual offender and to recommend that the defendant receive a combined maximum ^sentence of twenty-five years at hard labor without the benefit of probation, parole, or suspension of sentence for all of the convictions in the three docket numbers. At the hearing in which the defendant entered his plea, the state made the recommendations to the trial court as promised.

In' this first assignment of error, the defendant asserts that despite the plea agreement, his pleas subjected him to sentences totaling eighty-eight years at hard labor instead of twenty-five years. He seeks either enforcement of the plea agreement or withdrawal of his plea.

It is well settled that a plea agreement is a contract between the state and a criminal defendant. State v. Davis, 41,430 (La.App.2d Cir.11/1/06), 942 So.2d 652.... When a plea agreement is breached, the defendant has the option of specific performance or to withdraw the guilty plea. State v. Byrnside, 34,-948 (La.App.2d Cir.8/22/01), 795 So.2d 435.

State v. Bouwell, 45,635, p. 7 (La.App. 2 Cir. 9/22/10), 48 So.3d 335, 340. Moreover:

This court has determined when a defendant should be allowed to withdraw his plea based on a mistaken belief regarding his sentence:
A guilty plea is invalid, or constitutionally infirm, when a defendant is induced to enter a plea of guilty by a plea bargain agreement, or what he reasonably or justifiably believes was a plea bargain agreement, and the terms of the bargain are not satisfied. State v. Jones, 546 So.2d 1343, 1346 (La.App. 3d Cir.1989); State v. Taylor, 535 So.2d 1229, 1230 (La.App. 3d Cir.1988), quoting State v. Dixon, 449 So.2d 463, 464 (La.1984). It is well settled that if a defendant’s misunderstanding is not induced by or attributed to representations made by the district attorney or the trial court, there is no ground for invalidating the guilty plea. State v. Malmay, 548 So.2d 71, 73 (La.App. 3d Cir.1989); State v. Jones, supra.
It is also well settled that a misunderstanding between a defendant and counsel for defendant does not have the same implication as a breached plea bargain agreement, and this misunderstanding does not render the Lguilty plea invalid. State v. Lockwood, 399 So.2d 190 (La.1981); State v. Johnson, 533 So.2d 1288, 1292 (La.App. 3d Cir.1988), writ denied, 563 So.2d 873 (La.1990). In the absence of fraud, intimidation, or incompetence of counsel, a guilty plea is not made less voluntary or less informed by the considered advice of counsel. See, State v. Johnson, 461 So.2d 1259, 1261 (La.App. 1st Cir.1984).
State v. Readoux, 614 So.2d 175, 176-77 (La.App. 3 Cir.1993).
Additionally, “[a] misunderstanding does not have the same implications that a breached plea bargain has,” and a defendant may not.withdraw his guilty plea simply because the sentence imposed was heavier than expected. State v. Lockwood, 399 So.2d 190, 193 (La. 1981); see also State v. Robinson, 311 So.2d 893 (La.1975).

State v. Sigue, 06-527, pp. 4-5 (La.App. 3 Cir. 9/27/06), 940 So.2d 812, 815 (alteration in original), writ denied, 06-2963 (La.9/28/07), 964 So.2d 354.

During the plea colloquy, the trial court questioned the defendant extensively concerning the voluntary nature of his plea and his understanding of the role of the court in the plea agreement. Specifically, the trial court asked the defendant if the plea forms had been read to him and whether he felt comfortable with the information they contained; and the defendant responded affirmatively to both inquiries. It informed the defendant of the minimum and maximum sentences for aggravated battery; and the defendant stated that he understood that penalty range and that the sentences to be imposed could run concurrently or consecutively. The trial court further informed the defendant that it was not bound by the recommendations made to it by the state and that it could impose any sentence based on the circumstances and facts before it; and the defendant responded that he understood the trial court’s position on the sentencing recommendation issue. Additionally, the trial court advised the defendant of his rights to trial, to confrontation, to compulsory process, against self-incrimination, | fiand to appeal the issue of guilt; and the defendant indicated he understood and waived those rights and stated that he had not been forced to enter his plea.

After finding the defendant’s plea to be knowing and voluntary, the trial court ordered that a presentence investigation report be prepared. The trial court indicated the report was necessary to obtain information which would assist in determining whether or not it would deviate from the state’s recommendations.

At sentencing, the trial court considered all of the offenses together and, after noting that the defendant was twenty-eight-years old, had completed the eighth grade, was a tattoo artist, and, after again being reminded that the state had recommended a maximum incarceration exposure of twenty-five years, stated the following concerning the sentences imposed:

With regard to sentencing, the Court is required to review[ ] article 894.1. I do note that, after reviewing the pre-sentence investigation, Mr. Billiot was a third-time felony offender, thereby not being afforded opportunities for probation or parole. In addition, it says that the Court should impose a sentence of incarceration if any of the following occur:
Is there an undue risk during a period of a suspended sentence or probation that he would commit another crime? As a third offender class, as well as the three offenses before me, the Court must answer that in the affirmative.
Is he in need of correctional treatment or a custodial environment that can be provided most effectively by commitment to an institution? The actions that are before the Court show a pattern of violent behavior, so the court also answers that in the affirmative.
Would a lesser sentence deprecate the seriousness of the defendant’s crime? At this time I have five, basically, crimes of violence with a firearm enhancement and one crime against a juvenile before us. Anything less than incarceration would deprecate.
In looking at the degree of sentence, we look at aggravating and mitigating circumstances. First, the offender’s conduct during the commission of the offense manifested 17deliberate cruelty to the victim. I have three different individuals in two dockets that were beaten with baseball bats and two of them at gunpoint based on the report and factual scenario.
Did the offender know or should have known that the victims were vulnerable? It is noted that under # 7619 two of the individuals were young, 16 and 17 at the time of the offenses; also, under # 35870-11, obviously, a minor involved with regard to that obscenity charge.
Has he been offered or given something of value for the commission? Again, the robbery in and of itself, taking clothes, cell phones, etcetera from the two individuals in # 7619 clearly answers that in the affirmative.
Did he use his position or status to facilitate commissions of these offenses? Obviously, # 35370-11, because of his relationship with the juvenile’s mother, set up contact with that individual. And under # 7619-11 used that same connection to set up some type of visit with those younger boys that were robbed previously mentioned under that docket.
Did he create a risk of great bodily harm to more than one person? Again, I have three counts of aggravated battery which in and of themselves create a risk of great bodily harm by definition.
Used threats of violence in the commission of the offense; I also answer that in the affirmative based on the crimes of violence that are before us.
Offense resulted in significant permanent injury; specifically, one of the aggravated batteries, # 7597-11, nine months of medical treatment as indicated in the pre-sentence investigation, broken bones, nasal cavity, jaw, etcetera.
Offender used a dangerous weapon in the commission. It was a bat and a gun in # 7619-11, a bat in # 7597-11.
Multiple victims or incidents for which separate sentences are not imposed; significant charges were dropped in return for the plea that have not been made a part of any multiple offender bill.
It does appear that he has been involved in similar — not necessarily similar offenses, but other criminal activity based on his third-time felony status.
| sWhile his other felonies basically were crimes of taking, he had a number of misdemeanor charges that shows crimes against the person which again show acts of violence.
Offense being a major economical— again, # 7597-11, the medical history as given by that victim in that matter shows significant economic, (sic)
Other aggravating circumstances, the problem I have is the defendant did not contest the facts; and yet, when giving a statement to the investigating officer, continued to deny being involved whatsoever in any of the situations when he gave a statement. I think that was in March of this year.
That he did not participate. That was the one where the individuals gave false names later identified by the victim, and then the defendant didn’t contest the facts in open court, yet in his statement he says he didn’t have anything to do with that.
Indicated he was under the influence of alcohol in the # 7597-11, and denied any inappropriate behavior in the # 35370-11, saying he had parental permission.
In looking at mitigating circumstances, the defendant has no history of prior delinquency or criminal activity; that is more aggravating than mitigating.
Are circumstances of this conduct likely to reoccur? Again, more aggravating than mitigating based on history.
Is he likely to respond affirmatively to probationary treatment? Again, more aggravating than mitigating. He’s had his opportunity at probation. He was revoked. He’s had two opportunities at parole, both revoked.
If they were not mentioned, they were considered by the Court and deemed either insignificant or inapplicable to the instant offense.
At this time the defendant has pleaded guilty under docket # 7619 to two counts of armed robbery, two counts of aggravated battery — pleaded no contest, excuse me, and two counts of enhancement of armed robbery with a firearm.
The Court, after reviewing Mr. Billi-ot’s history, as well as the facts associated with this, indicate that he appears to have significant issues with regard to violence toward other | individuals, and it is the Court’s position with regard to the two counts of armed robbery he’ll be ordered to serve 70 years at hard labor on each count. They will run concurrent with one another, and they will be served without benefit of probation, parole or suspension of sentence. As far as the recommendation of 15 years, that would be more appropriate for a first-time offender; and, again, not with one with the facts associated in this situation.
With regard to 14:64.8, there is a five-year enhancement associated with each one of those counts. They are to run consecutive to the armed robbery, but they will run concurrent with one another. So, at this point he has a total of 75 years at hard labor, all to be served without benefit of probation, parole or suspension of sentence.
Under the same docket with two counts of aggravated battery, it is the Court’s position and, again, it’s based on the degree of injury and such that he would be ordered to serve five years at hard labor on each count. They will run concurrent with one another and concurrent with the armed robbery and armed robbery with a firearm enhancement. They are subject — they are with benefit. At this point he would be ordered to serve 75 years without benefit and five years with benefit total under that docket of # 7619-11.
With regard to # 7597-11, aggravated battery, one count, degree of injuries, involvement in that matter, it’s the Court’s position that he would be ordered to serve ten years at hard labor. That is to be consecutive to any other time he would be required to serve. He is with benefit on that sentence.
Under #35307-11 the defendant, again, the factual circumstances are significantly heinous in that matter, and he’ll be ordered to serve three at hard labor, again consecutive to any other sentence he is serving, and ordered to pay a fine as mandated by statute of $2,500.
In total he will have 75 years at hard labor without benefit of probation, parole or suspension of sentence. He will have 15 years at hard labor with benefit for a total of 90 years at hard labor.
It is the Court’s position, Mr. Billiot, that I don’t see any redeeming attributes in your actions, both historically or with regard to this matter; and it’s the Court’s position that you will basically serve out the balance of your life incarcerated. The crimes of violence are designated under diminution at 85%, three days for 17, which means you will serve somewhere 110between — I would say around 85 years with regard to those charges. On the obscenity 35 for 30 computation, not designated as a sex offense or crime of violence, approximately 15 months for that.
There was no enhancement under 15:529.1, habitual offender, or 893.3; but this was enhancement under 64.3 as mentioned under the firearms enhancement for armed robbery.
Prospective release date, as indicated, probably somewhere between around 85 years. Again, I would have to defer to the Department of Corrections to make the actual computation because a third-time offender, I don’t believe you’re eligible for parole. However, I again defer to the Department of Corrections, but obviously some of the offenses are without benefit and would have to be considered under that.
There is other legislative and jurisprudential concerns, and they will be applied by the Department of Corrections as they see fit. You are to get credit for time served for any time you have been incarcerated under these three dockets.

The defendant argues that the voluntariness of his plea must be questioned given that the length of the combined sentences is more than three times the combined maximum sentence outlined in the plea. While acknowledging that the trial court informed him it was not bound by the state’s recommendation, the defendant argues that because the trial court gave no indication it would reject the recommendation and triple the incarceration exposure, he was justified in believing that, at the worst, he would be sentenced in a range slightly greater than the recommended twenty-five years. Thus, he concludes, this court should either enforce the plea agreement or find that no agreement existed and allow him to withdraw his plea.

On the other hand, the state argues that it fulfilled its part of the plea agreement, and there exists no evidence to suggest that it made any misrepresentations to the defendant. The state notes that when the trial court | n informed the defendant that it was not bound by the sentencing recommendation, the defendant confirmed that he understood that statement and made no attempt to withdraw his plea. Thus, there was no breach of promise by either the state or the trial court.

We first note that there clearly existed a plea agreement between the state and the defendant and that the trial court was not a party to that agreement. However, with regard to this particular charge, the trial court did sentence the defendant to the recommended ten-year hard-labor sentence. What the trial court did not do is accept the state’s recommendation concerning running this sentence concurrently with the sentences for the other charges. Still, this was not a predetermined sentence, and it is recognized “that the sentencing discretion of the trial judge cannot be limited by a sentence recommended by both the State and the defendant. The trial judge may accept or reject a joint sentence recommendation.” State v. Robinson, 38,921, p. 2 (La.App. 2 Cir. 11/1/00), 770 So.2d 868, 870.

In Robinson, 770 So.2d at 871, the second circuit discussed the distinction between an “agreed upon plea” and an “agreed upon sentence.” The defendant therein agreed to plead guilty to two counts of simple burglary, a lesser crime than the original charge. The state recommended the sentences be served concurrently, but that was not noted in the written plea agreement. When the defendant complained that he did not receive the agreed upon sentence, the second circuit noted that there was only an agreement for the state to make a particular recommendation, not an agreement to a particular sentence, and it affirmed the sentence. Likewise, in State v. Higginbotham, 03-49 (La.App. 3 Cir. 4/30/03), 843 So.2d 1230, the state recommended that the defendant’s sentences run concurrently. Because the plea agreement contained an “agreed upon plea” and |12not an “agreed upon sentence,” this court found the plea agreement was not breached when the trial court did not follow the sentencing recommendation.

In State v. Guilbeau, 10-511 (La.App. 3 Cir. 12/8/10), 52 So.3d 310, writ denied, 11-0089 (La.5/20/11), 63 So.3d 973, the defendant alleged that he entered into the plea agreement solely because he believed he would receive a concurrent five-year sentence. However, that was not a part of the plea agreement. This court noted that the trial court told the defendant that the sentence to which the state and his counsel agreed was only a recommendation, one it was not required to follow. The defendant said he understood and proceeded with his guilty plea. This court found the defendant’s plea bargain was never based on an agreement that he would receive a five-year sentence; rather, it was based on the agreement that the state and defense counsel would jointly make that recommendation to the trial court. The promise to the defendant was fulfilled, and the trial court acted within its discretion in opting not to follow the sentencing recommendation. Accordingly, the defendant could not withdraw his plea simply because the sentence he received turned out to be more than the sentence he expected.

The defendant in the matter before us was advised of the rights he waived by a plea of no contest, the sentencing range for aggravated battery, and of the trial court’s discretion to disregard the sentencing recommendation. The trial court found his plea to be knowing and voluntary based on the defendant’s indication that he understood the matters explained to him.

We find that the defendant’s plea was knowingly and voluntarily made under these facts. His plea bargain was never based on an agreement that he would receive a specific sentence; rather, it was based on the agreement that the state would make a sentencing recommendation to the trial court. The state fulfilled its [ ^promise to the defendant, and the trial court acted within its discretion in choosing not to follow the sentencing recommendation. We find no merit in this assignment of error.

Assignment of Error Number Two

On the same day he was sentenced, the defendant filed two pro se motions with the trial court. One addressed his desire to have his trial attorney “recused” from his representation, and the other requested that he be allowed to withdraw his plea. In both motions, the complaints were the same: (1) the defendant’s trial counsel was ineffective in that she refused to represent the defendant if he chose to go to trial; (2) his trial counsel coerced him into taking a plea; (3) his trial counsel was ineffective in that she returned his file after he entered a plea and stated she was glad to be rid of it; and (4) his trial counsel acted under a conflict of interest and failed to give him a copy of a statement as part of the original discovery.

At the beginning of the April 24, 2013 sentencing hearing, the trial court noted the defendant’s motion to recuse his counsel, but did not mention the motion to withdraw the plea. When asked to address his complaints, the defendant asserted that the copy of discovery material provided him by his trial counsel after entering his pleas contained more pages than the original discovery material he had been provided, including statements of co-defendants he had not previously seen. However, when further questioned by the trial court, he could not say whether the statements were helpful or hurtful to his case, and his complaint was simply that they were not present in the original discovery package provided to him. When asked whether he thought he might have a defense to the charge or charges, the defendant could only respond, “I’m just saying I just want everything to be fair, that’s all.” With regard to the defendant’s complaint that his trial counsel was not _]_hgiving her best efforts because she was not being paid enough, all the defendant could do was refer to his motion and say, “It’s all there.”

The defendant’s trial counsel then informed the trial court that she was a conflict counsel with the Calcasieu Parish Public Defender’s office, and she handled this case and all others on a straight salary basis. That is to say, regardless of the number of cases assigned to her, she was paid the same amount per month. With regard to the discovery issue, the defendant’s trial counsel informed the trial court that she became the defendant’s counsel after initial extensive discovery had been provided to him, and, when she went through the discovery, she recognized that two pages were missing. She located the two pages and inserted them in her discovery file. After the defendant entered his pleas and before sentencing, she gave the defendant her copy of discovery for the singular reason that she no longer needed it. She suggested that the two missing pages were “interesting” but not “particularly significant” to the case. She concluded that the failure of the state to provide the two pages was a copying error and not intentional.

Following up on this information, the trial court had the following exchange with the defendant:

THE COURT:
I’m just going from recollection, but when I reviewed the charges at one time you had a couple of charges that carried with them life sentences that were taken or removed by the State in consideration for your pleas.
MR. BILLIOT:
Yes, sir.
THE COURT:
And you were number one on the docket that week to either go to trial or to resolve those matters. And, when the facts were given, 11Byou stated before me that you admitted to those facts; and, now you are telling me you don’t admit to those facts?
MR. BILLIOT:
I’m not stating nothing. I’m just trying to make everything fair. That’s all.

The trial court then stated, “I don’t find a valid reason for recusal.”

On appeal, the defendant argues that the trial court erred in failing to rule on his motion to withdraw his plea. The state, on the other hand, asserts the defendant presented nothing to the trial court that would provide a basis for the withdrawal of his plea.

We agree with the state’s position. The issues raised in both motions were exactly the same, and we find that the trial court impliedly denied the motion to withdraw the no-contest plea when it denied the motion to recuse counsel. To rule otherwise and remand for an express ruling on that motion would be an exercise in futility.

DISPOSITION

For the foregoing reasons, we affirm the defendant’s conviction and sentence in all respects.

AFFIRMED.


text:
    STATE of Louisiana v. John Wesley BILLIOT.
    No. 13-1188.
    Court of Appeal of Louisiana, Third Circuit.
    April 2, 2014.
    John F. DeRosier, District Attorney, Karen C. McLellan, Assistant District Attorney, Lake Charles, LA, for Appellee, State of Louisiana.

      Paula C. Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, John Wesley Billiot.
    John Wesley Billiot, Louisiana State Penitentiary, Angola, LA, In Proper Person.
    Court composed of JIMMIE C. PETERS, BILLY HOWARD EZELL, and PHYLLIS M. KEATY, Judges.
   PETERS, J.

|,The defendant, John Wesley Billiot, entered a no-contest plea to two counts of armed robbery, violations of La.R.S. 14:64; two counts of aggravated battery, violations of La.R.S. 14:34; and two counts of armed robbery with a firearm, violations of La.R.S. 14:64.3. Thereafter, the trial court sentenced him to serve seventy years at hard labor without benefit of probation, parole, or suspension of sentence on each of the armed-robbery convictions, and ordered that they run concurrent to each other; to serve five years at hard labor on each of the aggravated-battery convictions, and ordered that they run concurrent to each other and to the armed robbery convictions; and to serve five years at hard labor without benefit of probation, parole, or suspension of sentence on each of the armed-robbery-with-a-firearm convictions, and ordered that they run concurrent to each other, but consecutive to the armed-robbery sentences. After the trial court rejected his motion to reconsider the sentences, the defendant appealed. For the following reasons, we affirm the convictions and sentences in all respects.

DISCUSSION OF THE RECORD

The matter before us is a companion case to two other appeals now before us involving basically the same issues. However, the appeals are not consolidated as they each arise from different criminal acts. The connecting link is the fact that the three pleas arise from the same plea negotiations with the State of Louisiana (state).

On March 11, 2011, the state charged the defendant by grand jury indictment with the offenses set forth above, and the defendant entered not-guilty pleas to all of the offenses on April 18, 2011. On January 28, 2013, he entered a no-contest plea to all of the charges, and, on April 24, 2013, the trial court sentenced the defendant. On that same day, the trial court sentenced the defendant on |2two other felonies to which he had previously entered no-contest pleas: aggravated battery, a violation of La.R.S. 14:34; and obscenity, a violation of La.R.S. 14:106.

At the time the defendant entered his plea of no contest to the offenses before us in this appeal, the state provided the trial court with the factual basis in support of the charges. This factual basis established that on January 3, 2011, the defendant and other individuals lured C.L. Hyatt and Dalton K. Hyatt to a field in rural Calca-sieu Parish where the two victims were forced at gunpoint to exit the vehicle in which they were riding, strip down to their boxer shorts, and get on their knees. The victims were then kicked, stomped, and struck by an aluminum baseball bat numerous times. The defendant had possession of the gun used and held the victims at gunpoint. At one point, when they tried to flee the scene, he fired the weapon in the air and ordered them to stop. C.L. Hyatt sustained elbow lacerations and other injuries including lumbar and back injuries. Dalton K. Hyatt sustained abdominal contusions, abrasions on his face and forearms, and a cut on his forearm so deep that it exposed the bone. The defendant and the other assailants took the victims’ clothes, cellular telephones, and other personal property as they fled the scene. After the defendant and the other assailants left the scene, the victims walked to a local residence where they received assistance. They were ultimately carried by ambulance to a local hospital.

On appeal, the defendant asserts (1) that his sentence violates the terms of his plea agreement, and that either the plea agreement should be enforced or he should be allowed to withdraw his no-contest plea; (2) that the trial court erred in failing to rule on his pro se motion to withdraw his plea; and (3) that the seventy-year sentence is unduly harsh.

Assignment of Error Numbers One and Two

As previously stated, on the same day the defendant entered his no-contest plea to the charge in this matter, he did so in two other pending matters involving an additional two felony counts. The end result of his pleas from a sentencing standpoint is as follows:

Trial Court Docket Number 07597-11
Aggravated battery — ten years at hard labor to run consecutive to all of the other sentences. (The state had recommended a ten year hard labor sentence to run concurrent to the other sentences).
This offense was committed on January 15, 2011, and involves a victim different from any of the victims in the current matter.
Trial Court Docket Number 07619-11 (the matter now before us)
Armed robbery (two counts) — seventy years at hard labor on each count to run concurrently to each other and to be served without the benefit of parole, probation, or suspension of sentence. (The state had recommended fifteen years at hard labor without benefit of parole, probation, or suspension of sentence on each count to run concurrent to the other sentences).
Armed robbery with a firearm (two counts) — five years at hard labor to run concurrently with each other, but consecutively with the armed robbery sentences, and to be served without the benefit of parole, probation, or suspension of sentence. (The state had recommended five years at hard labor without benefit of parole, probation, or suspension of sentence on each count to run consecutive to the armed robbery sentences).
Aggravated battery (two counts) — five years at hard labor to run concurrently with each other and concurrently with the two armed robbery counts and the two armed robbery with a firearm counts. (The state had recommended ten years at hard labor on each count to run concurrent with the other sentences).
Trial Court Docket Number 35370-11
Obscenity — three years at hard labor to run consecutively with the other sentences and a fine of $2,500.00. (The state had recommended three years at hard labor to run concurrent with the other sentences). The defendant was originally charged with two counts of forcible rape, violations of La.R.S. 14:42.1; and four counts of tattooing and |4body piercing a minor without consent, violations of La.R.S. 14:93.2. The offenses occurred between November 1, 2010 and January 31, 2011, and involved a single victim, who was thirteen years of age at the time of the offenses.

Additionally, as part of the plea agreement, the state agreed not to pursue the defendant as a habitual offender and to recommend that he receive a combined maximum sentence of twenty-five years at hard labor without the benefit of probation, parole, or suspension of sentence for all of the convictions in the three docket numbers. At the hearing in which the defendant entered his plea, the state made the recommendations to the trial court as promised.

In this first assignment of error, the defendant asserts that despite the plea agreement, his pleas subjected him to sentences totaling eighty-eight years at hard labor instead of twenty-five years. In the second assignment of error, he asserts that the trial court erred in failing to rule on his pro se motion to withdraw his plea. We considered these same assignments of error in the companion cases and have rendered an opinion this day finding no merit in either of those arguments. State v. Billiot, 13-1187 (La.App. 3 Cir. 4/2/14), 135 So.3d 1257; State v. Billiot, 13-1189 (La.App. 3 Cir. 4/2/14), 135 So.3d 1271. We adopt the analysis set forth in that opinion as though set forth herein in full and, for those reasons, find no merit in the first two assignments of error.

Assignment of Error Number Three

In his third assignment of error, the defendant asserts that the concurrent seventy-year hard-labor sentences are unduly harsh. We find no merit in this assignment of error.

Louisiana Revised Statutes 14:64(B) provide that “[wjhoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than ten years |fiand for not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence.” Additionally, La.R.S. 14:64.3(A) provides:

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

Finally, La.R.S. 14:34(B) provides in pertinent part that “[wjhoever commits an aggravated battery shall be fined not more than five thousand dollars, imprisoned with or without hard labor for not more than ten years, or both.” Thus, all of the sentences imposed are within the statutory limits.

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. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

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

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

[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. State v. Smith, 99-0606 (La.7/6/00); 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061.

In State v. Thomas, 98-1144 (La.10/9/98), 719 So.2d 49, the supreme court stated that a sentencing range of thirty-five to fifty years is acceptable for first felony offenders convicted of armed robbery.

We previously quoted the pertinent language in the trial court’s reasons for sentencing the defendant in Billiot, 135 So.3d at 1261-64, and adopt the complete, thoughtful, and accurate analysis set forth in that opinion as though set forth herein in full. Considering that analysis, and especially the fact that the trial court noted that the defendant was a third-felony offender, we do not find that the trial court imposed excessive sentences. See generally, State v. Douglas, 389 So.2d 1263 (La. 1980); State v. Lagarde, 07-123 (La.App. 5 Cir. 5/29/07), 960 So.2d 1105, unit denied, 07-1650 (La.5/9/08), 980 So.2d 684; State v. Jackson, 04-1388 (LaApp. 5 Cir. 5/31/05), 904 So.2d 907, writ denied, 05-1740 (La.2/10/06), 924 So.2d 162; State v. Wilson, 452 So.2d 773 (La.App. 4 Cir. 1984); State v. Weeks, 449 So.2d |71158 (La.App. 2 Cir.1984); and State v. Jack, 448 So.2d 725 (La.App. 5 Cir.1984).

DISPOSITION

For the foregoing reasons, we affirm the defendant’s convictions and sentences in all respects.

AFFIRMED.


text:
    STATE of Louisiana v. John Wesley BILLIOT.
    No. 13-1189.
    Court of Appeal of Louisiana, Third Circuit.
    April 2, 2014.

      John F. DeRosier, District Attorney, Karen C. McLellan, Assistant District Attorney, Lake Charles, LA, for Appellee State of Louisiana.
    Paula C. Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant John Wesley Billiot.
    John Wesley Billiot, Louisiana State Penitentiary, Angola, LA, In Proper Person.
    Court composed of JIMMIE C. PETERS, BILLY HOWARD EZELL, and PHYLLIS M. KEATY, Judges.
   PETERS, J.

| ,The defendant, John Wesley Billiot, entered a no-contest plea to obscenity, a violation of La.R.S. 14:106. Thereafter, the trial court sentenced him to serve three years at hard labor and to pay a fíne of $2,500.00. The trial court further ordered that the three-year sentence run consecutive to other sentences the defendant had received for pleas to other charges entered on the same day. After the trial court rejected his motion to reconsider the sentence, the defendant appealed. For the following reasons, we affirm the conviction and sentence in all respects.

DISCUSSION OF THE RECORD

The matter before us is a companion case to two other appeals now before us involving basically the same issues. However, the appeals are not consolidated as they each arise from different criminal acts. The connecting link is the fact that the three pleas arise from the same plea negotiations with the State of Louisiana (state).

On September 1, 2011, the state charged the defendant by grand jury indictment with two counts of forcible rape, violations of La.R.S. 14:42.1; and with four counts of tattooing and body piercing a minor without consent, violations of La.R.S. 14:93.2. The defendant entered not-guilty pleas to all of the offenses on September 12, 2011. On January 28, 2013, the state amended one count of the indictment to charge the defendant with obscenity and dismissed the remaining charges. On that same day, the defendant entered a no-contest plea to the obscenity charge, and on April 24, 2013, the trial court sentenced the defendant. On that same day, the trial court sentenced the defendant on seven other felonies to which he had previously entered no-contest pleas: three counts of aggravated battery, violations of La.R.S. 14:34; two counts of armed robbery, violations of La.R.S. 14:64; and two counts of armed robbery with a firearm, violations of JgLa.R.S. 14:64.3.

At the time the defendant entered his plea of no contest to obscenity, the state provided the trial court with the factual basis in support of the charge. This factual basis established that between November 1, 2010 and January 31, 2011, the defendant exposed his genitals and pubic hair to the thirteen-year-old victim in this matter and induced her to expose her vulva and nipples to him. Additionally, the defendant committed sexual acts with the victim and solicited or enticed her to commit the prohibited acts knowing that she was under the age of seventeen. The defendant’s purpose in respect to these actions, according to the state, was to arouse the sexual desires or interest of both him and the victim.

On appeal, the defendant asserts (1) that his sentence violates the terms of his plea agreement and that either the plea agreement should be enforced or he should be allowed to withdraw his no-contest plea; (2) that the trial court erred in failing to rule on his pro se motion to withdraw his plea; and (3) that the $2,500.00 fine should be vacated given his indigent status.

Assignment of Error Numbers One and Two

As previously stated, on the day the defendant entered his no-contest plea to the charge in this matter, he did so in two other pending matters involving seven additional felony counts. The end result of his pleas from a sentencing standpoint is as follows:

Trial Court Docket Number 07597-11
Aggravated battery — ten years at hard labor to run consecutive to all of the other sentences. (The state had recommended a ten year hard labor sentence to run current to the other sentences).
This offense was committed on January 15, 2011, and involves a victim different from the victim in the current matter.
Trial Court Docket Number 07619-11
IsArmed robbery (two counts) — seventy years at hard labor on each count to run concurrently to each other and to be served without the benefit of parole, probation, or suspension of sentence. (The state had recommended fifteen years at hard labor without benefit of parole, probation, or suspension of sentence on each count to run concurrent to the other sentences).
Armed robbery with a firearm (two counts) — five years at hard labor to run concurrently with each other, but consecutively with the armed robbery sentences, and to be served without the benefit of parole, probation, or suspension of sentence. (The state had recommended five years at hard labor without benefit of parole, probation, or suspension of sentence on each count to run consecutive to the armed robbery sentences).
Aggravated battery (two counts) — five years at hard labor to run concurrently with each other and concurrently with the two armed robbery counts and the two armed robbery with a firearm counts. (The state had recommended ten years at hard labor on each count to run concurrent with the other sentences).
These offenses were committed on January 3, 2011, and involved victims different from the victim in the current matter.
Trial Court Docket Number 35370-11 (the matter now before us)
Obscenity — three years at hard labor to run consecutively with the other sentences and a fíne of $2,500.00. (The state had recommended three years at hard labor to run concurrent with the other sentences).

Additionally, as part of the plea agreement, the state agreed not to pursue the defendant as a habitual offender and to recommend that he receive a combined maximum sentence of twenty-five years at hard labor without the benefit of probation, parole, or suspension of sentence for all of the convictions in the three docket numbers. At the hearing in which the defendant entered his plea, the state made the recommendations to the trial court as promised.

In this first assignment of error, the defendant asserts that despite the plea agreement, his pleas subjected him to sentences totaling eighty-eight years at hard labor instead of twenty-five years. In the second assignment of error, he asserts that the trial court erred in failing to rule on his pro se motion to withdraw his plea. 14We considered these same assignments of error in the companion cases and have rendered an opinion this day finding no merit in either of those arguments. State v. Billiot, 13-1187 (La.App. 3 Cir. 4/2/14), 135 So.3d 1257; State v. Billiot, 13-1188 (La.App. 3 Cir. 4/2/14), 135 So.3d 1267. We adopt the analysis set forth in that opinion as though set forth herein in full and, for those reasons, find no merit in the first two assignments of error.

Assignment of Error Number Three

In his third assignment of error, the defendant asserts that because he is indigent, the $2,500.00 fine should be vacated as no indigent defendant can be subjected to confinement in lieu of payment of a fine or cost. He notes that his indigent status is clear from the record in that he was represented by a court-appointed indigent defender at trial and by the Louisiana Appellate Project on appeal. Finally, he asserts that the fine is unduly burdensome and serves no useful purpose.

Louisiana Revised Statutes 14:106(G)(1) provides that one convicted of obscenity can be punished by imposition of a fine of not less than $1,000.00 nor more than $2,500.00, or imprisonment with or without hard labor for not less than six months nor more than three years, or both. Thus, the fine imposed on the defendant is within statutory limits.

In considering this assignment of error, we note that this very issue has been before us before. In State v. Allen, 09-1281 (La.App. 3 Cir. 5/5/10), 36 So.3d 1091, the defendant argued that the imposition of his $2,000.00 fine should be set aside because of his indigent status. In support of his argument, the defendant referred this court to State v. Perry, 472 So.2d 344 (La.App. 3 Cir.1985), where this court found that a $5,000.00 fine imposed on an indigent defendant, with a | r,one-year prison-default provision, could not stand given the defendant’s indigent status.

In Perry, the indigent defendant with court-appointed counsel had pled guilty to attempted distribution of a counterfeit schedule II controlled-dangerous substance. In addition to a four-year hard-labor sentence, the trial court ordered the defendant to pay a $5,000.00 fine and court costs, and, in default of paying the fine and costs, the defendant was to serve an extra year of incarceration.

The court in Allen distinguished Perry in a number of ways, including the fact that in the matter then before it, the trial court had not imposed a default condition on the defendant as had been the case in Perry. The court noted that it was unable to find any jurisprudence which prohibited or limited the trial court’s imposition of a fine on an indigent defendant other than in situations where default time was imposed on the indigent defendant.

DISPOSITION

For the foregoing reasons, we affirm the defendant’s conviction and sentence in all respects.

AFFIRMED.


author: EZELL, Judge.

text:
    STATE of Louisiana v. Willie James ROBERTSON.
    No. KA 13-1234.
    Court of Appeal of Louisiana, Third Circuit.
    April 2, 2014.

      Michael Harson, District Attorney, Fifteenth Judicial District Court, Roger P. Hamilton, Jr., Assistant District Attorney, Lafayette, LA, for Appellee, State of Louisiana.
    Edward John Marquet, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Willie James Robertson.
    Court composed of JIMMIE C. PETERS, BILLY HOWARD EZELL, and PHYLLIS M. KEATY, Judges.
   EZELL, Judge.

| defendant, Willie James Robertson, was indicted in 2012 for the October 6, 1999, second degree murder of Irene Schoops. A jury trial commenced on May 29, 2013, and on May 30, the jury found Defendant guilty of manslaughter, a violation of La.R.S. 14:31. Defendant was then sentenced on September 26, 2013, to forty years imprisonment without the benefit of parole, probation, or suspension of sentence but with credit for time served.

Defendant has perfected a timely appeal wherein he alleges the evidence failed to support a conviction for manslaughter or second degree murder. For the following reasons, we reverse Defendant’s conviction, vacate his sentence, and enter an order of acquittal.

FACTS

Prior to the start of testimony, the State submitted into evidence the victim’s death certificate and the autopsy report. According to the autopsy report, the apparent cause of death was “sudden cardiac arrest,” at approximately 4:30 p.m. on October 6,1999.

Denise Breaux, the victim’s granddaughter, testified first at trial. She explained that the victim worked with her mother, Karen Cordova, in a law office. On October 6,1999, the victim left work about 4:00 p.m. She was driven home by one of the office workers. She went to the grocery store close to her house and picked up some groceries. Ms. Breaux testified she saw the victim the day before, on October 5, 1999, and on the morning of October 7, 1999. She called the victim, but she did not answer the phone. Ms. Breaux called several times throughout the | ¿morning, and then called her mother at work to see if she knew the whereabouts of the victim. They decided to check on her at the house.

Ms. Breaux testified that her mother arrived first. Ms. Breaux subsequently let herself in with a key at the side door. She saw the victim lying on the floor in the kitchen with the plastic grocery bags by her outstretched hand. She stated that the back sliding double door was pushed in. After the police arrived, she and her mother found that the house had been burglarized. The VCR and the victim’s silverware were missing. She also noticed that the victim’s wedding ring was not on her hand as it always was. She stated that the curtains in the living room were pulled shut, which was not customary. It was also noted that some of the groceries Ms. Schoops had purchased were missing from the plastic bags.

Chris Cogburn, a detective with the Lafayette Parish Sheriffs Office, was one of the original officers to process the crime scene. He took the photographs. He noted that on the back porch close to the pushed-in double door was a collection of gardening tools, including a screw driver. He also collected fingerprints. He testified that he located a blue metal security box in the living room from which he was able to lift a latent print. There was testimony that seventy-nine latent fingerprints were collected altogether. There were no prints found on any of the gardening tools located outside the pushed-in sliding door or the screw driver. He testified that he made comparisons and none of the prints matched Defendant’s.

Detective Philip Buris, an officer with the Lafayette Police Department, testified that the investigation was suspended in 2002. However, in 2011, he asked Ra crime scene technician to reprocess the fingerprints through the Automated Fingerprint Identification System [AFIS], and' among other prints, Defendant’s prints were highlighted. After he inquired and learned that no one in the victim’s family knew Defendant, he obtained an arrest warrant.

Detective Scott Broussard, a crime scene investigator with the Lafayette Police Department, and Detective Dwayne Angelle, an officer with the Lafayette Parish Sheriffs Office assigned to the Metro Crime Scene Unit, were both qualified at trial as experts in fingerprint analysis. They both examined the latent print discovered on the blue security box and compared the fingerprint to Defendant’s prints and determined that the print on the box indeed was Defendant’s. Detective Brous-sard testified that two of the prints found on the “point of entry” were also Defendant’s prints.

Defendant was subsequently charged with second degree murder.

ASSIGNMENT OF ERROR

Defendant argues that there was no evidence connecting him with the victim’s death. The only evidence submitted were Defendant’s alleged fingerprints, found in the house along with seventy-nine other fingerprints. The victim was not found until the next day, more than eighteen hours after the estimated time of death. There was no DNA processed. Defendant submits the evidence was insufficient pursuant to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and that all reasonable hypotheses of innocence were not eliminated beyond a reasonable doubt as required when the conviction was based primarily on circumstantial evidence.

In State v. Dotson, 04-1414, pp. 1-2 (La.App. 3 Cir. 3/2/05), 896 So.2d 310, 312, this court has explained the insufficiency analysis as follows:

l4In considering questions of sufficiency of the evidence, a reviewing court must consider the evidence presented in the light most favorable to the prosecution and consider whether a rational trier of fact could have concluded that the essential elements of the offense were proven beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The reviewing court defers to rational credibility and evidentiary determinations of the trier of fact. State v. Marcantel, 00-1629 (La.4/3/02), 815 So.2d 50.

State v. Chesson, 03-606, p. 5 (La.App. 3 Cir. 10/1/03), 856 So.2d 166, 172, writ denied, 03-2913 (La.2/13/04), 867 So.2d 686.

Further, when the conviction is based upon circumstantial evidence, La.R.S. 15:438 provides that such evidence must exclude every reasonable hypothesis of innocence. State v. Camp, 446 So.2d 1207 (La.1984); State v. Wright, 445 So.2d 1198 (La.1984). However, La.R.S. 15:438 does not establish a stricter standard of review on appeal than the rational juror’s reasonable doubt standard. The statute serves as a guide for the jury when considering circumstantial evidence. On appeal, the issue is whether a rational trier of fact, when viewing the evidence in a light most favorable to the prosecution, could find that all reasonable hypotheses of innocence were excluded.

Defendant was initially charged with second degree murder. Second degree murder at the time of the offense was defined, in pertinent part, as follows:

A. Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm; or
(2)(a) When the offender is engaged in the perpetration or attempted perpetration of aggravated rape, forcible rape, aggravated arson, aggravated burglary, aggravated kidnapping, second degree kidnapping, aggravated escape, drive-by shooting, armed robbery, first degree robbery, or simple robbery, even though he has no intent to kill or to inflict great bodily harm.

La.R.S. 14:30.1.

In the current case, we find that the evidence was not sufficient to support a verdict of second degree murder. This crime requires proof of a specific intent to either kill the victim or to inflict serious bodily harm or that the person who | .^burglarized the victim’s home was armed with a dangerous weapon. From the position of the body, it appeared as if the victim had just arrived at her house with the grocery bags still in hand. There was no evidence of a dangerous weapon or that anyone inflicted any trauma on the victim. There was no evidence of rape or any of the other enumerated offenses as listed in Section (2)(a) of La.R.S. 14:30.1(A). There was no evidence of when the burglar entered the house. The evidence given to the jury indicated conclusively that the victim died of natural causes. The autopsy report listed the cause of death as “possible acute left ventricular arrhythmia, in subject with severe, up to 70% stenosing left anterior descending/right coronary atheromatosis.”

As noted above, however, Defendant was convicted of the responsive verdict of manslaughter. The verdict reflects the jury’s right to compromise between the verdicts of guilty of second degree murder and not guilty. A jury may return any legislatively provided responsive verdict, as long as the evidence was sufficient to support a conviction of the charged offense. State ex rel. Elaire v. Blackburn, 424 So.2d 246 (La.1982), cert. denied,, 461 U.S. 959, 103 S.Ct. 2432, 77 L.Ed.2d 1318 (1983); State v. Sepulvado, 10-435 (La.App. 3 Cir. 3/9/11), 59 So.3d 463, writ denied, 11-1151 (La.11/14/11), 75 So.3d 941.

The manslaughter statute at the time of the offense, in pertinent part, provided:

A. Manslaughter is:

(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood Ifihad actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed; or
(2) A homicide committed, without any intent to cause death or great bodily harm.
(a) When the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Article 30 or 30.1, or of any intentional misdemeanor directly affecting the person[.]

La.R.S. 14:31.

While the evidence may very well establish beyond a reasonable doubt that Defendant burglarized the victim’s residence, we find that the evidence was not sufficient to sustain the charged offense of second degree murder or the responsive verdict of manslaughter. There was no information submitted to the jury regarding Defendant’s whereabouts during that time period between the victim’s death and her discovery. There was approximately eighteen hours between the time of her death and when she was discovered the next day. It was speculated that the burglary was in commission at the time of the victim’s arrival since groceries were missing from the plastic bags, and her wedding ring was gone from her finger. However, the State failed to eliminate beyond a reasonable doubt the very real possibility that the victim was already deceased when the burglary commenced. The burglar could have entered the house late afternoon, evening time, during the night, or early the next morning and availed himself of the opportunity to take whatever he wanted including groceries and the victim’s wedding ring.

Every person charged with a crime is presumed innocent until proven guilty and is entitled to a speedy, public, and impartial trial. La. Const, art. I, § 16. The principle that there is a presumption of innocence in favor of the accused is the undoubted law axiomatic and elementary; and its enforcement lies at the foundation of the [ 7administration of our criminal law. Coffin v. United States, 156 U.S. 432, 15 S.Ct. 394, 39 L.Ed. 481 (1895). The presumption of innocence is a “conclusion drawn by the law” by which a defendant must be acquitted unless proven to be guilty. Id.

State v. Hopkins, 39,730, pp. 9-10 (La.App. 2 Cir. 8/17/05), 908 So.2d 1265, 1273-74, writ denied, 05-2253 (La.3/17/06), 925 So.2d 541. Accordingly, because the evidence is constitutionally insufficient to support Defendant’s conviction for second degree murder or manslaughter, we reverse the conviction for manslaughter, vacate the sentence, and enter a judgment of acquittal.

CONVICTION REVERSED; SENTENCE VACATED; ORDER OF ACQUITTAL ENTERED.

      . This information apparently came from Mrs. Cordova, Ms. Breaux's mother, who died a few years later.

      . There was no explanation given as to why Defendant was a suspect at the time of the offense.

      . At the time of the offense in 1999, the only responsive verdicts to second degree murder were manslaughter and not guilty. La.Code Crim.P. art. 814(A)(3).


author: PAINTER, Judge.

text:
    Kathlene WALKER v. THE SUMMIT.
    No. 13-1285.
    Court of Appeal of Louisiana, Third Circuit.
    April 2, 2014.
    Lawrence B. Frieman, Bradley P. Nac-eari, Juge, Napolitano, Guilbeau, Ruli & Frieman, Covington, LA, for Defendant-Appellant, The Summit.
    W. Jay Luneau, Graham M. Brian, Lu-neau Law Office, Alexandria, LA, for Plaintiff-Appellee, Kathlene Walker.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

| j Defendant, The Summit, appeals the decision of the Workers’ Compensation Judge (WCJ) denying its motion to modify judgment which sought to have a prior judgment in favor of the claimant, Kath-lene Walker (Walker), modified to include a finding that Walker is capable of working and is no longer entitled to benefits or, alternatively, to include a finding that Walker is capable of working and entitled to SEB. For the following reasons, we affirm the denial of this motion.

FACTS AND PROCEDURAL HISTORY

Walker had been employed as a housekeeper at The Summit, a nursing home, for approximately seventeen years when she was injured in the course and scope of her employment on July 31, 2009. Walker alleged that she slipped and fell in a puddle of water and injured her right knee, right hip, and back. Walker did have preexisting problems with arthritis in her right knee.

When The Summit denied compensability for this claim and did not pay any medical or indemnity benefits, Walker filed a 1008 on July 6, 2010. A trial was held on March 2, 2012, and the WCJ issued oral reasons for judgment on March 7, 2012, wherein he found in favor of Walker and ruled that she was entitled to receive medical benefits and temporary total disability (TTD) benefits. The WCJ also awarded penalties in the amount of $8,000.00 and attorney’s fees in the amount of $8,500.00 to Walker. Judgment in accordance with the WCJ’s oral reasons was signed on May 9, 2012. The Summit did not appeal this judgment and began paying TTD benefits as ordered. However, on June 12, 2013, The Summit filed a motion to modify the May 9, 2012 judgment.

The Summit alleged that Walker had not seen either her treating orthopedist, Dr. Todd Drury, or her treating neurosurgeon, Dr. Troy Vaughn, since before the trial in March 2012. The Summit alleged that its choice of orthopedist, Dr. Karl 12Bilderback, examined Walker on November 7, 2012, and later approved a list of modified job duties. The Summit further alleged that it made a job offer to Walker with those modified job duties and that Walker was requested to return to work on June 28, 2013. The Summit sought to have the original judgment amended in accordance with Dr. Bilderback’s findings to show either that claimant was able to return to work such that she was not entitled to benefits or that she was capable or working and entitled to SEB.

A hearing on The Summit’s motion was held on July 1, 2013. The Summit called only one witness, Lyman Philips, the claims manager for Walker’s case. Walker also called only one witness, Jessica Anders, the paralegal employed by Walker’s attorney. Among other things, Dr. Bilderback’s report and Dr. Drury’s medical records (which included an affidavit signed by Dr. Drury) were admitted into evidence. The WCJ denied the motion, finding that The Summit had not met its burden of proof under La.R.S. 23:1310 to show that Walker’s disability had diminished. The WCJ specifically stated that there was no opinion from Walker’s treating physicians as to her ability to return to work or approval of any job offered to Walker, that there was nothing in the record to show what Walker’s restrictions are such that it cannot be determined whether she can perform the “job” offered to her (which the WCJ also noted to be an “unnamed position”), and that there was a need for further testing as indicated by The Summit’s own choice of physician, Dr. Bilderback.

The Summit now appeals, asserting that the WCJ erred in three particulars: (1) in failing to find that Walker is no longer entitled to TTD where the evidence shows that her physical condition has improved such that she is capable of performing work; (2) in rejecting the bona fide job offer extended to Walker and in | ¡.failing to find that she is no longer entitled to indemnity benefits of any kind; and (3) in abusing its discretion by admitting Dr. Drury’s affidavit into evidence as it was severely prejudicial, factually inaccurate, and unreliable. Agreeing with the WCJ’s reasoning that The Summit did not meet its burden of proof, we affirm his denial of the motion to modify judgment.

DISCUSSION

Pursuant to La.R.S. 23:1310.8, a party may seek the modification of an award in a workers’ compensation case on the grounds of a change in condition. The burden of proof is on the party seeking the modification, who must show by a preponderance of the evidence that the disability of the worker has either increased or diminished. Lormand v. Rossclaire Constr., 01-0515 (La.App. 3 Cir. 12/12/01), 801 So.2d 675. “The factual finding of a workers’ compensation judge that [a party] has demonstrated a change in condition is entitled to great weight and will not be disturbed unless clearly wrong.” Hardee v. City of Jennings, 07-242, p. 3 (La.App. 3 Cir. 5/30/07), 961 So.2d 531, 533, writs denied, 07-1779 (La.11/9/97), 967 So.2d 505, 509 (citing Lormand, 801 So.2d 675).

The Summit first argues that the WCJ “committed manifest error in failing to find that the claimant is no longer entitled to temporary total disability benefits where the only competent and relevant medical evidence establishes that her physical condition has improved and that she is capable of performing work.” The Summit refers to Dr. Bilderback’s report as “the only competent and relevant medical evidence.” Walker objected to the introduction of this report, but it was admitted into evidence during the questioning of Philips. The WCJ, in his own questioning of Philips, noted that Dr. Bilderback opined that “if one were to further evaluate Ms. Walker’s problems, ... the EMG and nerve conduction study would be the most reasonable next step.” Philips testified that his company did nothing to | ^follow up on this testing since as a second medical opinion physician, Dr. Bilderback could not order any testing.

In asking us to find manifest error in the WCJ’s failure to find that claimant is no longer entitled to TTD, The Summit ignores that the burden of proof is on it to show that Walker’s disability has diminished and further ignores that the WCJ’s finding that it had not proven a change in Walker’s condition is entitled to “great weight” and cannot “be disturbed unless clearly wrong.” Hardee, Id. Dr. Bilder-back was not called to testify, and his report does not establish what Walker’s condition is to any degree of certainty. It merely states that “[examination of her back was not useful due to her large size” and that “examination of her lower extremities was difficult.” The WCJ found that Dr. Bilderback’s report was insufficient to meet The Summit’s burden of proving a change in Walker’s condition. The WCJ also specifically noted that one of the reasons it was denying the motion was that there was a need for further testing, as indicated by Dr. Bilderback, and that pursuant to Pickett v. Stine Lumber Co., 93-1534 (La.App. 3 Cir. 01/01/94), 640 So.2d 769, a claimant is entitled to continue receiving TTD benefits when further medical testing is needed to ascertain the claimant’s condition. We do not find this conclusion to be clearly wrong.

The Summit next argues that the WCJ “committed manifest error in rejecting the bona fide job offer extended to the claimant and in failing to find that the claimant is no longer entitled to indemnity benefits of any type.” The Summit again relies on the testimony of Philips to establish that Walker was capable of performing certain tasks because Dr. Bilderback identified the specific tasks given by Philips were within Walker’s physical capabilities. In rejecting this argument, the WCJ specifically noted that there is no opinion from Walker’s treating physician as to her ability to work or whether he would approve any job offered to |sher. Further, the WCJ noted that there was no functional capacity examination conducted, that there was no vocational rehabilitation performed, and that there was no evidence to show that Walker’s educational background or her mental or physical capacity allowed her to perform any of the tasks approved by Dr. Bilderback. In short, “there’s no evidence of what Ms. Walker is capable to do.” Again, we note that it was not Walker’s burden to prove her inability to work at this juncture, and we agree with the WCJ that The Summit did not prove that there was a job available that Walker was able to perform.

Finally, The Summit argues that the WCJ “abused its discretion by admitting into evidence an affidavit executed by Dr. Drury which was severely prejudicial, factually inaccurate, and unreliable considering that Dr. Drury had not examined the claimant in over three years at the time he rendered an opinion regarding her condition.” Even if we agree with The Summit that the affidavit should not have been admitted into evidence, we find any error in that regard to be harmless. The ruling was made solely on the grounds that The Summit did not meet its burden of proof.

DECREE

We affirm the WCJ’s denial of The Summit’s motion to modify judgment. All costs of this appeal are assessed to Defendant>-Appellant, The Summit.

AFFIRMED.

      . Walker did not return to work on that date.