author: CARAWAY, J.

text:
    Kenneth HENDERSON, Plaintiff-Appellee v. GRAPHIC PACKAGING INTERNATIONAL, INC., Defendant-Appellant.
    No. 48,491-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 20, 2013.

      Hudson,. Potts & Bernstein, L.L.P., Monroe, by Jan P. Christiansen, for Appellant.
    Street & Street, by D. Randolph Street, for Appellee.
    Before STEWART, CARAWAY and LOLLEY, JJ.
   CARAWAY, J.

| jThe employer appeals the judgment of the workers’ compensation judge which ordered payment for employee’s knee replacement surgery, weekly indemnity benefits and penalties and attorney fees for failure to provide medical treatment and benefits. We affirm in part and reverse in part.

Facts

Kenneth Henderson began his employment with Graphic Packaging International, Inc. (“Graphic”) of West Monroe, Louisiana, in July of 1989 at the Plant 31 paper mill as an entry level laborer. In 2001, Henderson was promoted to Bobcat Operator/Laborer, a job which involved his operation of various types of machinery. On August 6, 2010, as he was operating a Bobcat to remove paper debris from underneath paper machines, Henderson climbed down the equipment to remove a hook pole (12-foot poles used to manually remove debris) from a pile of debris paper. As he grabbed the pole from the paper pile, Henderson’s right leg stepped into an 18-inch wide “u-drain.” He experienced excruciating pain as he tried to get free. Three co-workers assisted Henderson in getting out of the drain.

After the accident, Henderson reported to the infirmary where ice and a knee sleeve were applied to his knee, which had begun swelling. Henderson did not return to work but remained in a break room until his shift was over. He saw an orthopedist three days after the accident with complaints of an acute right knee injury. His right knee was swelling and buckling. From the doctor’s review and directive, Henderson did not 12immediately return to work. He later returned to work for approximately three weeks. Thereafter an MRI revealed a complex extensive degenerative medial meniscus tear and severe advanced osteoarthritis of the right knee. Henderson’s physician recommended immediate knee replacement surgery and concluded that Henderson should be placed on a sedentary work restriction.

Henderson had injured his right knee while playing football in 1978 and again in 1980. In 2007, he sought medical treatment for worsening’ right knee pain and swelling. X-rays showed advanced severe degenerative arthritis. At that time, several options for treatment of the knee pain were offered to Henderson with total knee replacement being a last resort. In 2008, Henderson again sought treatment for knee pain. At that time, he indicated that his knee bothered him continually and caused pain in everyday activities. Identical findings were made regarding Henderson’s arthritic knee condition. Again, treatment options were discussed including the drawing of fluids, steroid injections and total knee replacement. Henderson chose more conservative options and was able to continue to work.

For the work-related accident, Graphic paid weekly indemnity benefits from September 2010 through June 2011. Graphic did not approve surgery and elected to send Henderson to another physician for a second opinion. On November 10, 2010, Henderson saw a second orthopedic surgeon who determined that the meniscal tear noted by the MRI was not caused by the accident, but part of the degenerative condition of RHender son’s knee. The physician concluded that “the work event of 08/06/10 resulted in a temporary exacerbation of the pre-existing severe osteoar-thritic condition of the right knee” and that the recommendation for total knee replacement was “not related to the work event of 08/06/10.”

Thereafter on March 15, 2011, Henderson underwent an independent medical examination by a third orthopedic surgeon who diagnosed “preexisting degenerative meniscal tear, probable exacerbation of preexisting condition by his most recent fall.” The physician concluded that Henderson required right total knee replacement, which was “a preexisting condition which is well documented to have been the need for surgery at least 2-3 years prior to the injury.”

Ultimately, Henderson underwent right knee replacement surgery in July of 2011 and has been unable to return to his former job. The record indicates that Henderson’s healthcare insurance provider paid for the operation.

. Henderson filed a disputed claim for compensation benefits on August 31, 2011, seeking reinstatement of indemnity benefits, past and future medical expenses, including the cost of the total knee replacement, and penalties and attorney fees for the discontinuance and for failure to pay benefits and to pay medical expenses.

At the trial, Graphic stipulated that the accident arose out of and in the course of Henderson’s employment. Henderson’s average weekly wage was stipulated at $743.20. The parties submitted the matter to the court, largely based upon the medical evidence, which included the depositions, |4records and reports of the various orthopedic surgeons who evaluated Henderson.

The sole witness to testify was Henderson who set forth the facts regarding the accident and his past knee issues as noted above. He explained that he was able to do all of his job duties without assistance until after the accident when he was not able to put any weight on his knee without it giving way. Henderson testified that at the time of his last visit to an orthopedist almost two years before the accident, his knee was drained and he was given an injection. His physician explained to him that knee replacement surgery may be an option in the future; his physician also told him that knee replacement surgery would limit his ability to function. The treatment Henderson received in December of 2008 for his knee gave him relief, and he was able to continue working.

On cross-examination, Henderson conceded that his knee pain had grown progressively worse in the years before the accident and that these knee problems caused him to cut back on certain activities such as running, squatting and weightlifting three years prior to the accident. In fact, he conceded that when he operated a machine called a “scrubber,” which had two pedals for both feet, he would occasionally have fluid build-up in his knee. When that occurred, he would improvise and use only his left foot to operate the machine. Henderson insisted, however, that both of his physicians recommended knee surgery as a possibility “down the road.”

Documentation for Henderson’s June 26, 2007 evaluation by Dr. Scott McClelland of the North Louisiana Orthopedic and Sports Medicine |sClinic revealed a diagnosis of advanced degenerative arthritis, right knee. An x-ray showed “advanced arthritic changes with bone-on-bone contact in the medial compartment of the right knee, as well as advanced patellofem-oral degenerative changes.” Dr. McClel-land prescribed medication to Henderson to “see how this will help” and noted that injections would be the next option for treatment. Dr. McClelland then concluded that “if he continues to be symptomatic, arthroscopic debridement would be the next step and if all else fails then a total knee replacement.”

Henderson next saw orthopedic surgeon Dr. Sol Graves (of the same clinic) on December 15, 2008, with the same complaints of right knee pain with everyday activities. Dr. Graves “had a long discussion” with Henderson about treatment options including injections and knee replacement. Henderson opted for an injection, which Dr. Graves hoped would give him some improvement.

After the August. 8, 2010 accident, Henderson again saw Dr. Graves, reporting acute pain, swelling and discomfort in his knee. In his medical records of Henderson’s previous visits, Dr. Graves observed that Henderson was “considering a total knee arthroplasty,” but because he wanted to continue to work, he decided not to proceed with that procedure. The doctor recorded that “[sjince that time, again he does get off and on pain, but has been able to work and do his job effectively until this recent injury.” Dr. Graves concluded that the “acute flare-up is secondary to the twisting injury that occurred” and that the accident “led to increased swelling in his | fiknee and pain.” The doctor recommended aspiration and injection of the knee and anti-inflammatories and took Henderson off of work for a week. He scheduled Henderson for a follow-up visit.

An addendum note of this visit indicated that Henderson got some improvement from the aspiration and injection but continued to have pain and discomfort, and pain when walking and knee buckling. Henderson had returned to work in pain. Dr. Graves ordered an MRI of the knee.

The MRI of September 2010 showed severe osteoarthritis involving the medial compartment and complex extensive degenerative tear of the medial meniscus of the right knee. In his progress notes, Dr. Graves stated:

[Pjrobably the meniscus tear is the acute change that has occurred since his injury at the beginning of August. At this point, he has gone from being able to do his regular duty work to having an extremely difficult time performing his job because of the amount of pain that he has in his knee. I do think that because of the injury that occurred in early August with the meniscal symptoms has aggravated his knee now to the point where he needs something done about it; however, I discussed with him in detail today that I do not think just scoping the knee and addressing the meniscus pathology is going to give him significant relief and I think that if he is going to have surgery, that the best treatment for his knee would be to proceed with a total knee arthroplasty.

On September 27, 2010, while awaiting approval for the knee replacement surgery, Dr. Graves took Henderson off of regular duty work and placed him on a sedentary work restriction.

In his deposition, Dr. Graves described Henderson’s arthritic knee condition as chronic. He testified that before the August 2010 visit, neither he nor Dr. McClel-land imposed any restrictions on Henderson. He stated that most people utilize other options before resorting to the invasive surgery. After the accident, however, Dr. Graves believed that Henderson |7had “something now that’s taken him from being able to work so now he can’t work because of severe pain and I think the acute thing that happened that made it change was that he had the meniscal tear.”

Nevertheless, since no MRI of Henderson’s knee was available prior to the accident, Dr. Graves was unable to say that he had a meniscus tear prior to the injury. Dr. Graves admitted that if Henderson had desired a total knee replacement in December of 2008, he would have been a candidate for one. However, Dr. Graves stated that such surgery at that time would have prevented Henderson from returning to his job at Graphic and prior to the accident, his symptoms were not severe enough to warrant immediate surgery. He explained that before the accident, his right knee degenerative changes “were about as bad as they could get as far as arthritic changes,” and it was impossible to tell when his right knee symptoms would have become bad enough for Henderson to decide to have surgery.

At the request of Graphic, Dr. Robert Holladay, orthopedic surgeon, gave a second medical opinion regarding Henderson’s condition on November 11, 2010. As noted earlier, Dr. Holladay concluded that neither the meniscus tear nor necessity of total knee replacement was related to the work injury. He also found “no objective medical evidence of an aggravation or acceleration” of Henderson’s preexisting knee condition and that “the work event ... resulted in a temporary exacerbation of the pre-existing severe os-teoarthritic condition of the right knee.” In his deposition, Dr. Holladay further explained that he did not “see any acute structural problem with the knee” that could be related to the work accident.

|8In his deposition, Dr. Brown, the independent medical examiner, testified that at the request of the Office of Workers’ Compensation, he saw Henderson on March 15, 2011. Dr. Brown described Henderson’s knee as “sort of shredded,” with “longstanding tears and there could have been some new tears.” Dr. Brown stated that his impression was as follows:

My feeling was is that he had a preexisting problem that looked like it had been going on at least three or four years, probably longer, before this accident, but according to the history in that edema in the inside of his knee, I thought there had been an injury and it looked like the fall had probably aggravated this torn meniscus that he had. So my feeling was that this fellow did need a total knee. I didn’t think it was really the result of the fall. That was going to be necessary no matter what.

Dr. Brown testified that it was possible to aggravate a meniscal tear in a fall, which “twists it a little bit more and those tears just extend and become more pronounced.” He also explained that “the already damaged meniscus couldn’t really stand the blow and tears a little bit more and he becomes more symptomatic.” Specifically, Dr. Brown stated that Henderson’s need for a total knee replacement “was really already there before he fell.” Dr. Brown concluded that although Henderson’s whole knee was involved, the “worst part” was “right where the meniscus was badly torn.” He agreed that trauma would increase the symptoms of his degenerative knee condition. He also conceded that although Henderson was a candidate for knee surgery in 2007 or 2008, because he continued to do work until after the accident, the accident aggravated his knee symptoms significantly. He also testified that the meniscus tear alone would not have caused a need for total knee replacement.

IciAfter considering the evidence and testimony, the Workers’ Compensation Judge (“WCJ”) ruled in favor of Henderson, concluding as follows:

The evidence presented in this case revealed claimant had longstanding medical problems with his right knee. However, he continued to work and did not become disabled from employment until the work related accident. Commencing with the accident, disabling symptoms appeared and manifested themselves thereafter. Medical evidence indicates a causal connection between the accident and the disabling condition. Dr. Sol Graves treated claimant for his knee condition pre-and-post accident. He was asked about the aggravation of claimant’s preexisting condition. He found “He’s got something now that’s taken him from being able to work. So now, he can’t work because of severe pain and I think the acute things that happened that made it change was that he had the meniscal tear.”
Furthermore, Dr. Douglas Brown, the independent medical examiner, found the work accident resulted in a significant aggravation of claimant’s knee.
Thus, this Court finds claimant’s work injury, aggravated, accelerated, and combined with his pre-exiting disease or infirmity to produce his disability.

The WCJ awarded indemnity (temporary total disability) benefits retroactive to the date of Graphic’s termination of benefits, all reasonable and necessary medical treatment, including payment for knee replacement surgery, and penalties of $2,000 for failure to pay for the surgery, $2,000 for failure to pay indemnity benefits, and $5,000 attorney fees. This appeal by Graphic ensued.

110Discussion

Graphic’s assignments of error assert that the severe degenerative arthritis in Henderson’s knee was a preexisting condition that unquestionably required total knee replacement surgery before his work-related accident of August 6, 2010. It urges that the symptoms of injury to Henderson’s knee were continuously present and exhibited before the accident, causing him to make modifications to his work for the manner in which he operated the heavy equipment. Graphic argues that the jurisprudence “does not make a requirement that the preexisting symptoms had to be ‘disabling’ prior to the work accident,” and therefore Henderson’s symptoms before August 2010 show that the injury is not work-related and compen-sable.

A claimant who seeks workers’ compensation benefits on the basis that he is temporarily totally disabled must prove by clear and convincing evidence, without taking pain into consideration, that he is unable to engage in any employment or self-employment. La. R.S. 23:1221; Bolton v. Grant Parish School Bd., 98-1430 (La.3/2/99), 730 So.2d 882; Bailey v. Smel-ser Oil & Gas, Inc., 620 So.2d 277 (La. 1993). A workers’ compensation claimant has the burden of proving, by a preponderance of the evidence, that the disability suffered is related to an on-the-job injury. Scott v. Super One Foods, 45,636 (La. App.2d Cir.9/29/10), 48 So.3d 1133; Modi-cue v. Graphic Packaging, 44,049 (La. App.2d Cir.2/25/09), 4 So.3d 968; Taylor v. Columbian Chemicals, 32,411 (La.App.2d Cir.10/27/99), 744 So.2d 704.

| nA preexisting medical condition will not bar an employee from recovery if the employee establishes that the work-related accident aggravated, accelerated or combined with the condition to cause the disability for which compensation is claimed. Peveto v. WHO Contractors, 93-1402 (La.1/14/94), 630 So.2d 689; Silver-man v. Weatherford Int’l, Inc., 46,402 (La. App.2d Cir.10/19/11), 83 So.3d 11, unit denied, 12-0076 (La.3/23/12), 85 So.3d 89; Dombrowski v. Patterson-UTI Drilling Co., 46,249 (La.App.2d Cir.4/13/11), 63 So.3d 308; Koenig v. Christus Schumpert Health Sys., 44,244 (La.App.2d Cir.5/13/09), 12 So.3d 1037; Hatfield v. Amethyst Const., Inc., 43,588 (La.App.2d Cir.12/3/08), 999 So.2d 133, writ denied, 08-2996 (La.2/13/09), 999 So.2d 1150. The preexisting condition is presumed to have been aggravated by the accident if the employee proves (1) the disabling symptoms did not exist before the accident, (2) commencing with the accident, the disabling symptoms appeared and manifested themselves thereafter, and (3) either medical or circumstantial evidence indicates a reasonable possibility of causal connection between the accident and the activation of the disabling condition. Peveto, supra; Silverman, supra; Dombrowski, supra; Koenig, supra. Once the employee has established the presumption of causation, the opposing party bears the burden of producing evidence and persuading the trier of fact that it is more probable than not that the work injury did not accelerate, aggravate or combine with the preexisting disease or infirmity to produce his disability. Peveto, supra.

| ^Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551; Dombrowski, supra; Koenig, supra. To reverse a fact-finder’s determination under this standard of review, an appellate court must undertake a two-part inquiry: (1) the court must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact; and (2) the court must further determine the record establishes the finding is clearly wrong. Stobart v. State through Dep’t ofTransp. & Dev., 617 So.2d 880 (La.1993); Dombrowski, supra; Koenig, supra.

Ultimately, the issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Id. If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id.

The opinion of the treating physician should be accorded greater weight than that of a physician who sees the patient only once or twice. Silverman, supra; Fuentes v. Cellxion, Inc., 44,914 (La.App.2d Cir.12/16/09), 27 So.Sd 1045. However, the treating physician’s testimony is not irrebuttable, and the trier of fact is required to weigh the testimony of all medical witnesses. Id. The opinion of the IME physician is prima facie evidence of the claimant’s condition. La. R.S. 23:1128.

11sThis court was presented with somewhat similar circumstances surrounding the employee’s injury in Koenig, supra. In that case, the employee was already scheduled for surgery for a tear in the rotator cuff of her shoulder when injured on the job. While she was extending her arm in a maneuver with a patient, the tear was further injured. After the work-related injury, her doctor refused to let her continue to work. Following the jurisprudence for a preexisting medical condition and the aggravation of the condition, this court found that the awards of disability benefits and the cost of the shoulder operation were not manifestly erroneous conclusions by the finder of fact.

While Koenig presented a difficult case, demonstrating the employment risks of work activity involving preexisting weakened conditions of employees, the jurisprudential test was properly followed and the manifest error standard allowed for the factual conclusion. Contrary to Graphic’s argument, a key change of circumstance is the employee’s ability to work before the accident and the loss of that ability after aggravation of the preexisting condition. Moreover, unlike the employee in Koenig, Henderson had never elected to have knee surgery. The doctors’ testimony was that Henderson’s choice in forgoing surgery did not mean that his ability to continue working would end at any definite future date. Also, Henderson’s activity that resulted in his accident was an unusual event or happenstance, involving no excessive exertion of his knee.

Thus, just as in Koenig, we hold that there was testimony from the doctors supporting the view that at least additional tearing of the meniscus 114occurred in the accident, causing Henderson’s symptoms in his knee to worsen. That worsening unquestionably caused his inability to work, which was not the case before the accident.

Regarding Graphic’s arguments against the award of penalties and attorney’s fees, La. R.S. 23:1201(1) provides as follows:

Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims. The provisions as set forth in R.S. 23:1141 limiting the amount of attorney fees shall not apply to cases where the employer or insurer is found liable for attorney fees under this Section. The provisions as set forth in R.S. 22:1892(0) shall be applicable to claims arising under this Chapter.

For purposes of imposition of attorney fees for discontinuance of workers’ compensation benefits, “arbitrary and capricious behavior” consists of willful and unreasonable action, without consideration and regard for the facts and circumstances presented, or of seemingly unfounded motivation. Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 737 So.2d 41; Silver-man, supra; Crochet v. Barbera Chevy-Chrysler Co., Inc., 04-1390 (La.App.lst Cir.6/29/05), 917 So.2d 49. Whether a refusal to pay is arbitrary, capricious, or without probable cause depends primarily on the facts known to the employer or insurer at the time of its action. Williams, supra. The crucial inquiry is whether the employer had articulable and objective reasons for denying or discontinuing the benefits at the time it took that action. Id.

Based upon our above review of the WCJ’s determination of the aggravation of Henderson’s knee condition, the WCJ’s awards of the $2,0001 ispenalty for nonpayment of wage benefits and the $5,000 award in attorney fees are affirmed. Henderson’s inability to work after the accident, which has never been contested, makes Graphic’s discontinuation of wage benefits arbitrary and capricious.

Nevertheless, since Henderson admittedly received the payment from his healthcare insurer for the cost of total knee replacement surgery, we find that La. R.S. 23:1205(C) makes the issue of the responsibility for medical costs and penalties a matter between the two insurers. Accordingly, the $2,000 penalty for Graphic’s failure to provide medical treatment is reversed.

Conclusion

For the foregoing reasons, we affirm the WCJ award of benefits to Henderson. We affirm the $2,000 penalty award for nonpayment of wage benefits and the attorney fee award of $5,000. We reverse the $2,000 penalty award for failure to provide medical treatment. Costs of this appeal are assessed to Graphic.

J^JUDGMENT AFFIRMED IN PART; REVERSED IN PART; RENDERED.

      . At oral argument, it was conceded that the issue of Henderson's entitlement to supplemental earnings benefits had not been litigated.

      . C.(l) In the event that the workers' compensation payor has denied that the employee’s injury is compensable under this Chapter, then any health insurer which contracts to provide health care benefits for an employee shall be responsible for the payment of all medical benefits pursuant to the terms of the health insurer’s policy. Any health insurer which contracts to provide health care benefits for an employee who violates the provisions of this Subsection shall be liable to the employee or health care provider for reasonable attorney fees and costs related to the dispute and to the employee for any health benefits payable.
      (2) The payment of medical expenses shall be recoverable pursuant to and in accordance with Subsection B of this Section. However, if it is determined that the worker’s compensation payor was responsible for payment of medical benefits that have been paid by the health insurer, the obligation of the worker’s compensation payor for such benefits shall be to reimburse the health insurer one hundred percent of the benefits it paid. If it is determined that the worker's compensation payor was responsible for payment of benefits and its denial of responsibility is determined to be arbitrary and capricious, then the health insurer shall also be entitled to recover legal interest on any benefits it paid, calculated from the date such benefits were due.
      (3) Any claim filed against the worker’s compensation carrier by the health insurer or health providers in accordance with this provision shall not be subject to timely filing requirements, nor does prescription run until such time as the workers' compensation claim reaches a resolution by final judgment or settlement.


source: Caselaw Access Project

author: BROWN, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Latellas Delanio MOORE, Appellant.
    No. 48,492-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 20, 2013.

      Washington & Wells by Alex J. Washington, Shreveport, Shant’e Wells, for Appellant.
    J. Schuyler, District Attorney, John M. Lawrence, R. Randall Smith, Assistant District Attorneys, for Appellee.
    Before BROWN, WILLIAMS, and DREW, JJ.
   BROWN, Chief Judge.

| defendant, Latellas Delanio Moore, a 28-year-old third felony offender, was convicted at a bench trial of possession with the intent to distribute marijuana. His initial 15-year sentence was vacated, and he was adjudicated as a third felony offender. As such, defendant was sentenced to 20 years at hard labor to run consecutively with any other sentence. Defendant now appeals, urging that the evidence was insufficient to support his conviction. We affirm.

Facts

This charge against defendant originated out of a traffic stop on Loreco Street in Bossier City, Louisiana, on January 28, 2010. Defendant, the driver of the vehicle, was charged by bill of information with one count of possession with intent to distribute marijuana, a Schedule I Controlled Dangerous Substance, a violation of La. R.S. 40:966(A).

Defendant waived formal arraignment and entered a plea of not guilty. Defendant changed his plea to guilty on August 17, 2010, but changed it back to not guilty later at the same hearing. Defendant waived his right to a jury trial.

At the bench trial, Officer Jeremy Nelson of the Bossier City Police Department testified that on January 28, 2010, he saw a black Honda Accord on John Wesley Boulevard heading toward Loreco Street with its license plate light out. He stopped the vehicle on Loreco Street outside of the Alexis Park Apartments. The car was driven by defendant. One passenger, Carlos Love, was in the vehicle. Officer Nelson asked defendant to exit the vehicle and performed a pat down search for officer safety. 12Officer Nelson went to the driver’s side window and spoke with the passenger, who stated that his name was Johnny Love. Subsequent investigation revealed that the passenger was in fact Carlos Love (the brother of Johnny Love). While standing at the driver’s side window, Officer Nelson observed an open container in the car, a 24-ounce Bud Light can in the console cup holder. Officer Nelson asked defendant if there was anything illegal in the car, and he admitted that there was an open container in the vehicle. Officer Nelson then handcuffed defendant, who remained calm and cooperative throughout the process, and then performed a pat down of the passenger, Carlos Love, who appeared nervous. Defendant consented to a search of the vehicle. Officer Brett Tyson, a backup officer, arrived and opened the passenger side door. He saw a bag of marijuana on the floorboard of the passenger side. At this time, Love ran away, with Officer Nelson in pursuit.

Carlos Love testified at defendant’s trial. He stated that he was a habitual offender. At the time of the stop, Love was on parole from a 2006 seven-year sentence for possession of a firearm by a convicted felon. One of his previous convictions was possession with intent to distribute marijuana and ecstasy. He had no deal for his testifying but did so because his attorney told him “it wasn’t a deal but it would be in your best interest to testify.” Love testified that defendant picked him up from the Alexis Park apartment complex and asked Love to go with him to buy some marijuana. Love stated that when the two men met the dealer in Shreveport, defendant gave the money to Love, who passed it out of his car window to the dealer, |swho went into his house. The dealer came back with the marijuana, which he gave to Love, who put it under his seat for defendant. Love said the dealer’s street name was Malcolm.

Defense counsel agreed to the admission into evidence of the bags of marijuana found in defendant’s car. He also agreed to the admission of the crime lab certificate stating that the contents of one of the bags seized was in fact marijuana. Additionally, the state entered into evidence a videotape of the event taken from a camera on one of the police cruisers.

The court accepted Bossier Parish Sheriffs Officer Lt. Shawn Phillips as an expert in the determination of whether a quantity of marijuana was meant for personal use or for sale. Lt. Phillips testified that the marijuana found in defendant’s car was in four bags, two of which weighed approximately one pound apiece, one of which weighed 63 grams, and the other which weighed 13 grams. Lt. Phillips stated that the weight (approximately 2 lbs. combined) and the number of bags found indicated that the owner of the marijuana intended it for resale rather than for personal use.

Defendant testified. According to defendant, Love called him to ask for a ride home to Bossier. Defendant picked Love up from the Alendale neighborhood in

Shreveport and on their way to the Alexis Park Apartments, the traffic stop occurred. Defendant claimed that the beer can was his, but he did not know that there was marijuana in the car and he did not make any stops before the traffic stop. Defendant testified that he had prior convictions for simple burglary and monetary instrument abuse.

l4On rebuttal, the judge allowed the state to ask witnesses about the smell of marijuana to counter defendant’s testimony that he did not know there was marijuana in his vehicle. Love testified that he could smell the marijuana in the courtroom, and the judge observed at the close of trial that he could smell it as well. Lt. Phillips stated that the smell emanating from such an amount of marijuana would have disclosed its presence to defendant. However, Officer Tyson admitted that, while he easily observed the marijuana on the floorboard of the car when he opened the door, he did not smell the drugs at that time.

In his reasons for ruling, the judge stated that he did not find either defendant or Carlos Love to be a credible witness because each man was motivated to testify against the other in an attempt to avoid conviction and habitual offender proceedings. The judge concluded that the intent to distribute the marijuana was established by the amount and packaging of the marijuana. The judge then found there to be constructive possession in that the marijuana could have easily been smelled by either occupant of the car and because Officer Tyson’s videotaped reaction upon seeing the marijuana when he partially opened the car door indicated that both men could have easily seen the drugs. The judge concluded that the state proved beyond a reasonable doubt that defendant possessed the marijuana, that he intended to distribute it, and that he was guilty of possession with intent to distribute.

At the sentencing hearing held on August 30, 2011, defendant was sentenced to 15 years at hard labor, to run consecutively with any other sentences. Trial court minutes added to the record indicate that the court |BIater adjudicated defendant to be a third felony habitual offender and increased his sentence to 20 years at hard labor. Defendant has challenged neither his sentence nor its enhancement, but has asserted that the evidence is insufficient to support his conviction.

Discussion

According to defendant, the state failed to prove either that he had possession or an intent to distribute the marijuana found in the vehicle.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (La.05/20/03), 851 So.2d 921, cert, denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.02/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La. App.2d Cir.01/14/09), 1 So.3d 833, writ denied, 09-0310 (La.11/06/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.

The trier of fact is charged to make a credibility evaluation and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the | ^extent necessary to guarantee the fundamental due process of law. State v. Sosa, 05-0213 (La.01/19/06), 921 So.2d 94.

La. R.S. 40:966(A)(1) states in part that it is unlawful for any person knowingly or intentionally to produce, manufacture, distribute or dispense or possess with intent to produce, manufacture, distribute or dispense, a controlled dangerous substance or controlled substance analogue classified in Schedule I (which includes marijuana).

To support a conviction for possession with intent to distribute, the state must prove possession of the controlled dangerous substance and intent to distribute it. La. R.S. 40:967(A)(1); State v. Gladney, 29,791 (La.App.2d Cir.09/24/97), 700 So.2d 575; State v. Lee, 25,917 (La. App.2d Cir.05/04/94), 637 So.2d 656, writ denied, 94-1451 (La.10/07/94), 644 So.2d 631. One need not actually possess the controlled dangerous substance; constructive possession is sufficient to convict. State v. Gladney, supra; State v. Tyler, 544 So.2d 495 (La.App. 2d Cir.1989). Actual possession means having an object in one’s possession or on one’s person in such a way as to have direct physical contact and control of the object. State v. Sweeney, 443 So.2d 522 (La.1983); State v. Perez, 569 So.2d 609 (La.App. 2d Cir.1990), writ denied, 575 So.2d 365 (La.1991).

Constructive possession means having an object subject to one’s dominion and control, with knowledge of its presence, even though it is not in one’s physical possession. State v. Gladney, supra; State v. Perez, supra. Factors which may be considered in determining whether the defendant exercised dominion and control sufficient to constitute constructive dispossession are his access to the area where the drugs were found and his physical proximity to the drugs. State v. Glad-ney, supra; State v. Tyler, supra.

A person may be in constructive possession of a drug even though it is not in his physical custody, if it is subject to his dominion and control. Also, a person may be deemed to be in joint possession of a drug which is in the physical custody of a companion, if he willfully and knowingly shares with the other the right to control of it. Guilty knowledge is an essential ingredient of the crime of unlawful possession of an illegal drug. State v. Brisban, 00-3437 (La.02/26/02), 809 So.2d 923.

Five factors have been identified as useful in determining whether circumstantial evidence is sufficient to prove intent to distribute a controlled dangerous substance. These factors include: (1) whether the defendant ever distributed or attempted to distribute the controlled dangerous substances; (2) whether the drug was in a form usually associated with possession for distribution to others; (3) whether the amount of the drug creates an inference of an intent to distribute; (4) whether expert or other testimony established that the amount of drug found in the defendant’s possession is inconsistent with personal use; and (5) whether there was any paraphernalia, such as baggies or scales, evidencing an intent to distribute. State v. Cummings, 46,038 (La.App.2d Cir.01/26/11), 57 So.3d 499, writ denied, 11-0341 (La.06/17/11), 63 So.3d 1037; State v. Clark, 35,272 (La.App.2d Cir.12/05/01), 803 So.2d 280. Mere possession of contraband does not amount to evidence of intent to distribute unless the quantity is so large that | sno other inference is possible. State v. Greenway, 422 So.2d 1146 (La.1982).

In the present case, the state established that defendant was in constructive possession of the marijuana found in his car. Both access and proximity were shown. Two large bags and two smaller bags of marijuana were found on the front passenger’s side floorboard in plain view within defendant’s reach. As observed by the trial court, the amount and smell of the marijuana was significant. Defendant who was the driver and owner of the car clearly had dominion and control over the marijuana.

As to the intent to distribute, the form of the drug, the amount of the drug and expert testimony that the amount is inconsistent with only personal use is compelling. Both the amount (over two pounds) and packaging (separation into multiple bags, two of which weighed a pound) of the marijuana indicated that its possessor(s) intended to distribute the drug. Additionally, the state’s expert witness testified that the amount and packaging indicated intent to distribute. The evidence in this case was sufficient to support the trial court’s guilty verdict under the Jackson v. Virginia standard.

Conclusion

For the reasons set forth above, defendant’s conviction and sentence are AFFIRMED.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Alvin Barnard DUBOSE, Appellant.
    No. 48,501-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 20, 2013.

      Louisiana Appellate Project by Douglas Lee Harville, for Appellant.
    Jerry L. Jones, District Attorney, Michael J. Fontenot, Brandon B. Brown, Assistant District Attorneys, for Appellee.
    Before DREW, MOORE and GARRETT, JJ.
   MOORE, J.

11 After jury selection, the defendant and the state reached a plea agreement with a 10-year sentence cap. However, the trial court rejected the agreement. The defendant conferred with his attorney and decided to plead guilty as charged to three offenses, including possession with intent to distribute MDMA (Ecstasy) (Count One), contrary to La. R.S. 40:966(A)(1); conspiracy to distribute MDMA (Ecstasy) (Count Two), contrary to La. R.S. 40:979 and 40:966; and, aggravated flight from an officer (Count Three), contrary to La. R.S. 14:108.1(C), in exchange for the state’s agreement not to prosecute him as a fourth felony offender. Subsequently, the court sentenced Dubose to consecutive maximum sentences at hard labor totaling 47 years imprisonment, including 30 years and a fíne of $10,000.00 for Count One, 15 years for Count Two, and two years for Count Three, all without benefit of probation, parole, or suspension of sentence, and with credit for time served. Additionally, the court ordered that these sentences be served consecutively to Dubose’s existing federal sentence of 140 months. Dubose’s motion to reconsider sentence, filed on September 22, 2010, was denied on December 18, 2012. For the following reasons, we affirm, as amended.

FACTS

On October 7, 2008, Ouachita Parish Deputy Stan Felts stopped a 1999 Crown Victoria for improper lane usage on 1-20 in the Monroe area near mile marker 107. When he approached the vehicle, the deputy smelled the odor of burnt marijuana. The driver of the vehicle was Shakeba Williams, but the vehicle was registered to the defendant, who was the sole | zpassenger in the vehicle. Neither Williams nor the defendant had a valid driver’s license.

Deputy Felts obtained consent to search the vehicle from both occupants. After the occupants were removed from the vehicle, the deputy searched the interior. When he disengaged or “popped” the trunk lock, Mr. Dubose began to act extremely nervous. He asked if he could retrieve his cell phone from inside the vehicle. Felts denied the request, but the defendant suddenly jumped into the driver’s seat and sped off onto 1-20 forcing two vehicles off the road.

A high-speed chase ensued, with the defendant exiting 1-20 into West Monroe. The West Monroe Police Department set up a spike strip across a street, which punctured three tires on defendant’s vehicle. The chase continued until officers were able to ram the vehicle, stopping him.

The defendant was taken into custody. A search of the trunk revealed a Fruit Loops cereal box containing approximately 4800 tablets of suspected Ecstasy. The defendant admitted that he had transported the drugs from Texas to Monroe for distribution. The North Louisiana Crime Laboratory later determined that the tablets were, in fact, 3, 4-Methylenedioxy-methamphetaimine (MDMA), commonly referred to as Ecstasy or methamphetamine.

For these acts, the defendant was charged with both federal and state criminal offenses. On January 30, 2009, the defendant pled guilty in federal court to transporting MDMA. He was subsequently sentenced to 140 months imprisonment, with six years supervised probation upon release. By |aamended bill of information, on October 13, 2009, the state charged the defendant with Count 1 — Possession of Ecstasy with intent to distribute, Count 2— Conspiracy to distribute Ecstasy, and Count 3 — Aggravated flight from an officer.

Jury selection for trial on the state charges began and was completed on March 8, 2010. On March 9, 2010, before trial started, the state tendered Dubose a plea offer in which he would plead guilty to Count One with a 10-year sentence to be served consecutively to his existing federal sentence of 140 months, with Counts Two and Three to be nolle prossed. However, the trial court rejected the plea agreement, stating:

My thought is this and I — I appreciated where each side is coming from, but we’ve gone this far to pick a jury and my position would be to plead guilty with a PSI which means there are no caps. Or we can go on through the trial.

After a sidebar conference, Dubose expressed his desire to plead guilty to all three counts. The state responded that it would agree only not to file a habitual offender bill. The court advised Dubose of his Boykin rights. The court read the sentencing range for each count, ordered a PSI, and stated that there would be no sentencing cap. In addition, the court advised Dubose of the possibility of receiving 47 years to be served consecutively to his federal sentence.

Dubose’s sentencing hearing was held on August 31, 2010. The court noted Du-bose’s potential status as a fourth-felony offender and the facts of his present crimes as aggravating factors. The court recited Dubose’s prior convictions:

14* three separate arrests for trespassing in 1995;
• a 1995 conviction of possession of cocaine;
• a 1996 conviction of possession of cocaine with intent to distribute;
• a 2000 conviction of possession of cocaine;
• three misdemeanor arrests and three more felony charges in 2003;
• a 2007 conviction of DWI (first offense) and possession of cocaine.

The court stated that there was an undue risk that Dubose would commit another crime during the period of suspended sentence or probation, and noted that Du-bose was not eligible for a probated sentence “due to his prior felony convictions and prior revocation.” The court observed that Dubose had engaged in a high-speed car chase and knowingly created a risk of death or great bodily harm to more than one person; the court stated that it found La. C. Cr. P. art. 894.1(A)(1), (A)(2), (A)(3) and (B)(5) applicable.

The court considered the following mitigating factors:

• Dubose was raised by a single mother and had no contact or financial support from his father;
• his brother was killed in a car accident in 1991;
• he is a high-school dropout;
• he worked as a cook for three to four years;
• he has two young sons by two different women, with whom he has a good relationship;
• he began experimenting with drugs at a young age;
• he expressed remorse for his decisions;
• he is now drug-free, has given his life to Christ, and | fidesires to be a positive role model in his sons’ lives; and
• letters from Dubose’s family and friends.

The court characterized Dubose as more than a mere drug user, but “a dealer who has helped bring the scourge of drugs to our community.” The court stated that Dubose had “already been shown leniency” by the state when it offered to enter into this plea agreement and that Dubose had several additional charges pending that had been dismissed, including: possession of marijuana with intent to distribute; another possession of marijuana with intent to distribute; one count of possession of cocaine with intent to distribute as a second offense; and, possession of cocaine (third offense), DWI (first offense), and failure to wear a seat belt.

The court sentenced Dubose to 30 years and a fine of $10,000.00 for Count One, 15 years for Count Two, and two years for Count Three, with all sentences to be served consecutively at hard labor, without benefit of probation, parole, or suspension of sentence, and with credit for time served. The sentences were also ordered to be served consecutively to Dubose’s existing federal sentence of 140 months. The court noted that it had specifically charged itself with the factors and guidelines of C. ■ Cr. P. art. 883. Finally, the court advised that default time on the fine associated with Count 1 would be 365 days, to be served consecutively.

Dubose’s motion to reconsider sentence was denied on December 18, 2012. This appeal followed.

^DISCUSSION

In his sole assignment of error, Dubose contends that the court erred by imposing an unconstitutionally harsh and excessive sentence.

Dubose initially points out that the state offered him in exchange for a guilty plea to Count One, a recommended sentence of 10 years without benefits, to be served concurrently with his federal sentence of 140 months, arising from his conviction by guilty plea to the separate federal offense of transporting MDMA based upon the same occurrence as the instant offenses. Because his state offenses arose out of the same transaction and the same course of conduct as his federal offense, he contends that the sentences imposed for the state offenses should not have been ordered to run consecutively with his federal sentence, citing La. C. Cr. P. art. 883 and La. Admin. C. 22:215(A)(2), (C) in support thereof. Dubose asserts also that Counts One and Two were nonviolent offenses.

As his last argument, Dubose reflects on his family and social history. Dubose states that he is a 32-year-old high school dropout who was raised by a single mother, lost his brother to an accidental death, and who began experimenting with drugs at a young age. He has a work history of working as a cook, but explains he succumbed to criminal conduct as a result of his life as a drug addict. Due to his current incarcerated status, Dubose states that he is now a drug-free, Christian man who has secured his GED equivalent and a certificate, and is a positive role model for his sons. Dubose argues that his sentence deprives him of the opportunity of 17becoming truly rehabilitated and one day re-entering society as a productive member. He asserts that his sentence is an example of a purposeless and needless imposition of pain and suffering.

In response to Dubose’s claims, the state adopts the trial court’s reasons for Du-bose’s 47-year sentence and its condition of being served consecutive to his existing federal sentence.

A reviewing court imposes a two-prong test in determining whether a sentence is excessive. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reveals that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dillard, 45,-633 (La.App. 2 Cir. 11/3/10), 55 So.3d 56. The important elements which should be considered are the defendant’s personal history (his age, family ties, marital status, health, employment record), prior criminal history, seriousness of the offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Dillard, supra.

Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La. 1993); State v. Bonanno, 384 So.2d 355 (La.1980). A trial court has broad discretion in sentencing offenders.

As a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. Cozzetto, 07-2031 | R(La.2/15/08), 974 So.2d 665; State v. McKinney, 43,061 (La.App. 2 Cir. 2/13/08), 976 So.2d 802. Absent a showing of manifest abuse of that discretion, an appellate court may not set aside a sentence as excessive. State v. Kidd, 45,638 (La.App. 2 Cir. 11/3/10), 55 So.3d 90.

The sentencing court may specify that the sentence imposed be served concurrently with a sentence imposed by a federal court or a court of any other state. La. C. Cr. P. art. 883.1. Neither the federal court nor the state district court is required to order its sentence to run concurrently with the other. State v. Hicks, 45,001 (La.App. 2 Cir. 1/27/10), 30 So.3d 1081, 1084, unit denied, 2010-0459 (La.9/24/10), 45 So.3d 1071. See 18 U.S.C. § 3584.

The trial court has discretion to reject a plea bargain, even if the parties are in complete agreement as to its terms. State v. Manchester, 545 So.2d 528 (La.1989), State v. Walker, 32,342 (La.App. 2 Cir. 9/24/99), 747 So.2d 133,140.

Dubose was sentenced to 30 years and a fine of $10,000.00 for Count One, 15 years for Count Two, and two years for Count Three, with all sentences to be served consecutively at hard labor, without benefit of probation, parole, or suspension of sentence, and with credit for time served. The sentencing range for Count One is five to 30 years; for Count Two is a fine or imprisonment that does not exceed one-half of the longest term of imprisonment prescribed for the underlying offense; and for Count Three is a term of imprisonment at hard labor for no more than two years. The length of imprisonment for Dubose’s sentences were imposed within the |9statutory limitations.

We note initially that the trial court acted within its discretion when it rejected the plea agreement and when it imposed consecutive sentences. The trial court had the discretion to reject the plea offer and there is no requirement for state sentences to be imposed concurrent to federal sentences, nor is it mandatory that the state sentences be served concurrently, even though the federal and state offenses arose out of the same transaction; the trial court has authority to take these actions, but it always has discretion to be more lenient. See State v. Manchester, supra; State v. Walker, supra; State v. Hicks, supra; La. C. Cr. P. art. 883.1.2.

The record reveals adequate compliance with La. C. Cr. P. art. 894.1, as. the district court expressly referred to the guidelines and recited the factual considerations relevant to the case. The court cited Dubose’s extensive criminal history dating back to 1995. Most of the crimes were drug-related, although he had arrests for trespassing, resisting, and a DWI. The 4,800 Ecstasy pills in the trunk of his vehicle, his statement that he intended to sell the pills, and the high-speed car chase which created a risk of death or great bodily harm to others were also aggravating factors. Du-bose has had previous opportunities to rehabilitate himself and has not done so; the court was justified in finding that Dubose could not be rehabilitated. The court noted that Dubose was not simply a drug user, but a dealer who has brought the scourge of drugs to the community. In mitigation, the court cited Dubose’s family and social history.

lioWe conclude that there has been no showing that the court committed a manifest abuse of discretion in imposing a 47-year sentence to be served consecutively to Dubose’s federal sentence. Although the sentence is harsh, Dubose received the benefit of the state’s agreement not to file a habitual offender bill.

We note, however, that La. R.S. 14:108.1 (aggravated flight from an officer) does not authorize a sentence to be imposed without benefit of parole, probation, or suspension of sentence. We therefore amend the two-year sentence for aggravated flight from an officer by removing the prohibition on parole, probation, or suspension of sentence. In all other respects, the conviction and sentence are affirmed.

CONCLUSION

For the foregoing reasons, we affirm the defendant’s conviction and sentence as amended.

CONVICTION AND SENTENCE AFFIRMED AS AMENDED.

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      . La. Admin. Code 22:215(A)(2), (C) does not exist.


text:
    STATE of Louisiana, Appellee v. Cedric Clay WALKER, Appellant.
    No. 48,502-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 20, 2013.
    Peggy J. Sullivan, Louisiana Appellate Project, for Appellant.
    Charles R. Scott, II, District Attorney, for Appellee.
    Brady D. O’Callaghan, Jordan B. Bird, Assistant District Attorneys, for Appellee.
    Before BROWN, MOORE, and LOLLEY, JJ.
   BROWN, Chief Judge.

|! Defendant, Cedric Clay Walker, was charged by bill of information on May 23, 2012, with resisting a police officer with force or violence, in violation of La. R.S. 14:108.2, and a misdemeanor charge of domestic abuse battery, both of which arose out of a series of events that took place on or around April 25, 2012. Defendant entered a plea of not guilty. Thereafter, on November 12, 2012, defendant withdrew his initial plea and entered a pleas of guilty as part of a plea agreement with the state. On December 5, 2012, defendant was sentenced to two years at hard labor on the resisting charge and six months in the parish jail on the abuse charge, and the sentences were to be served concurrently. Defendant has appealed the hard labor sentence as excessive. We affirm.

Facts

On November 12, 2012, the following facts (which are relevant to defendant’s resisting an officer charge) were read at defendant’s guilty plea proceeding:

On April 25, 2012, ... Deputy Sean McCullough was called out to Mr. Walker’s residence. It was alleged that Mr. Walker was driving carelessly outside that residence when neighbors were outside. [Deputy McCullough] attempted to speak with Mr. Walker on the porch, Mr. Walker then attempted to shut the door on Deputy McCullough. Deputy McCullough then reached in the door to grab a hold of Mr. Walker, the defendant, then Mr. Walker forcefully pushed Deputy McCullough.

The trial court thoroughly advised defendant of his rights pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), |2and made a diligent effort to determine his competence, literacy and understanding; the court also read the sentencing exposure for both offenses. Defendant’s guilty pleas were then accepted.

At the sentencing hearing on December 5, 2012, Corporal (Deputy) McCullough testified about his encounter with defendant on April 25, 2012, which formed the basis for defendant’s arrest and conviction for resisting an officer with force. Defendant had two witnesses testify to his good character, and he apologized for his behavior on April 25, 2012, explaining that at the time, he had been an alcoholic under a lot of stress. Defendant also submitted several letters written on his behalf.

While recognizing that defendant has been helping with monetary support and the raising of his cousin’s children, and has a good work history (set forth in a letter written by defendant’s employer) as mitigating factors, the trial court noted the following aggravating factors:

* that defendant was driving drunk (and the officer could have arrested defendant for his fourth [fifth] DWI);
* that this was not defendant’s “first rodeo,” but his 42nd, having been arrested approximately 42 times, some of those for multiples offenses;
* to say that defendant has a bad background is an understatement— “there’s been a lot of drinking and being stupid over the course of almost thirty years ... and there’s just one event after another”;
* defendant has eight prior felony convictions, numerous DWI convictions, and more than 10 acts of aggression toward a law enforcement officer; and
la* defendant could have been adjudicated as a fourth felony offender and exposed to a minimum sentence of 20 years at hard labor.

Because defendant’s prior record was “so incredibly bad,” the judge concluded that defendant had earned a hard labor sentence and sentenced him to two years at hard labor on the resisting an officer conviction and six months in the parish jail on the domestic abuse battery conviction, with these sentences to run concurrently and defendant to be given credit for time served. Defendant’s motion for reconsideration was denied, and this appeal ensued.

Discussion

Defendant contends that his two-year hard labor sentence is unconstitutionally excessive in light of the mitigating factors presented at the sentencing hearing in the testimony of Cynthia Wilkerson and Linda Hicks and the letters submitted on his behalf. The state, however, points to the trial court’s reasons for sentence and written denial of defendant’s motion to reconsider sentence.

14A reviewing court, in determining whether a sentence is excessive, determines whether the trial court considered the criteria set forth in La. C. Cr. P. Art. 894.1, and whether it is violative of La. Const. Art. 1, § 20, which proscribes cruel, unusual and excessive sentences. An excessive sentence is one that is grossly disproportionate to the offense committed or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). Absent a showing of manifest abuse of the trial court’s discretion, an appellate court may not set aside a sentence as excessive. State v. Kidd, 45,638 (La.App.2d Cir.11/03/10), 55 So.3d 90. In view of the substantial deference that must be accorded the legislature and sentencing courts, a reviewing court rarely will be required to engage in an extended analysis to determine that a sentence is not constitutionally disproportionate, i.e., whether it is grossly out of proportion to the seriousness of the offense.

La. R.S. 14:108.2 (Resisting a Police Officer with Force or Violence) provides a penalty for this crime of a fine of not more than $2,000 and/or imprisonment with or without hard labor for not less than one year and not more than three years.

The record reveals compliance with La. C. Cr. P. Art. 894.1; as noted above, the trial court went through the mitigating and aggravating factors it considered in fashioning the two-year hard labor sentence given to defendant. This midrange sentence for defendant, a 42-time arrestee and |ñ8-time felony offender, is not excessive by constitutional standards. This assignment of error is without merit.

Conclusion

For the reasons set forth above, defendant’s convictions and sentence are AFFIRMED.

      . The state dropped three other misdemeanor charges which occurred on April 25, 2012: driving under suspension, simple assault and criminal trespass. The state also agreed not to file a habitual offender bill. There was no agreement about sentencing, however.

      . In setting the date for defendant's sentencing hearing, the judge asked defendant whether he would be there on the date of the hearing "ready to go.” In explaining to defendant what he meant by "ready to go,” the judge told defendant, "[Y]ou’ve earned jail time, you understand that? ... [T]he district attorney is not going to file a multiple offender bill against you on this felony conviction ... I will need time to gather a little bit more information about you and your background. ... I will see you December 5th ...”

      . In its written reasons for denying defendant's motion to reconsider sentence, the trial court stated:
      The Court notes that the criminal history report includes 42 items, many of which are arrests with numerous convictions. More troubling is the fact that the defendant has eight (8) previous felony convictions coupled with numerous (perhaps 5) convictions of driving while intoxicated. The State of Louisiana could have sought a multiple offender adjudication of defendant under R.S. 15:529.1 but, as a consideration of the guilty plea, chose not to do so. The Court could have imposed the maximum sentence under the statute but instead chose the mid sentence range (minimum of one, maximum of three) on the basis, in part, of Ms. Wilkerson and Ms. Hicks. In the overall analysis the pattern of conduct evidences far more than "drinking and acting stupid;" specifically, the instant crime plus extensive criminal history of this defendant warrants at least the term of imprisonment imposed in this case.


author: PITMAN, J.

text:
    STATE of Louisiana, Appellee v. David D. JONES, Appellant.
    No. 48,505-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 20, 2013.

      Louisiana Appellate Project by Douglas Lee Harville, for Appellant.
    Jonathan M. Stewart, District Attorney, Kenneth P. Haines, Tammy G. Jump, Assistant District Attorneys, for Appellee.
    Before STEWART, PITMAN & GARRETT, JJ.
   PITMAN, J.

^Defendant David D. Jones pled guilty to two counts of knowingly and intentionally distributing a Schedule II controlled dangerous substance (cocaine) and to one count of knowingly and intentionally distributing a Schedule I controlled dangerous substance (marijuana). He was sentenced on each count to serve 20 years, with the sentences to run concurrently. Defendant appeals his sentences as excessive. For the following reasons, we affirm.

FACTS

On March 15, 2011, Defendant sold cocaine and marijuana to a reliable confidential informant who was working for the Bienville Parish Sheriffs Department. On May 3, 2011, Defendant was formally charged by bill of information with two counts of knowingly and intentionally distributing a Schedule II controlled dangerous substance (cocaine) in violation of La. R.S. 40:967(A)(1) and to one count of knowingly and intentionally distributing a Schedule I controlled dangerous substance (marijuana) in violation of La. R.S. 40:966(A)(1). Defendant waived formal arraignment and entered pleas of not guilty on all three counts.

On August 20, 2012, Defendant withdrew his former pleas of not guilty and pled guilty to all three counts. In exchange for his guilty plea, the state dismissed an additional distribution of cocaine charge in a separate docket number and agreed not to file a habitual offender bill of information.

|2On November 7, 2012, the trial court sentenced Defendant to 20 years on each count and ordered the sentences to run concurrently. On December 11, 2012, Defendant filed a motion to reconsider sentence, which was denied by the trial court. Defendant now appeals his sentences as excessive.

DISCUSSION

Defendant argues that the trial court erred in imposing unconstitutionally excessive sentences. He contends that the sentences serve no purpose other than needless imposition of pain and suffering because they do not provide him an opportunity for rehabilitation. Defendant emphasizes that his crime was a nonviolent crime and that he now understands the impact of his criminal conduct on his family and wants to provide for his family.

The state argues that Defendant’s sentences are not excessive, contending that Defendant received a “substantial benefit” from the state agreeing not to file a habitual offender bill of information. The state also argues that Defendant received mi-drange sentences and, considering his criminal history, could have received sentences resulting in life in prison.

When reviewing an excessive sentence claim, the appellate court uses a two-prong test. First, the trial record must demonstrate that the trial court complied with La. C. Cr. P. art. 894.1. The trial court is not required to list every aggravating and mitigating circumstance, but the record must reflect that the trial court adequately considered the guidelines of La. C. Cr. P. art. 894.1. State v. Smith, 438 So.2d 688 (La.1983). The trial court should | ^consider the defendant’s personal history and prior criminal record, the seriousness of the offense, the likelihood that the defendant will commit another crime and the defendant’s potential for rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981). The trial court is not required to assign any particular weight to any specific matters at sentencing. State v. Quiambao, 36,587 (La.App.2d Cir.12/11/02), 833 So.2d 1103, writ denied, 03-0477 (La.5/16/03), 843 So.2d 1130. When the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary, even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Landos, 419 So.2d 475 (La.1982).

Second, the appellate court must determine if the sentence is constitutionally excessive. A sentence is excessive and violates La. Const. Art. 1, § 20, if it is grossly out of proportion to the severity of the crime or is nothing more than the purposeless and needless imposition of pain and suffering. State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. Id. A trial court has wide discretion in imposing a sentence within the statutory limits, and a sentence should not be set aside absent a showing of abuse of discretion. State v. Square, 433 So.2d 104 (La.1983); State v. Black, 28,100 (La. App.2d Cir.2/28/96), 669 So.2d 667, unit denied, 96-0836 (La.9/20/96), 679 So.2d 430.

As to the first prong of the excessive-sentence test, the trial court complied with La. C. Cr. P. art. 894.1. The trial court stated that it reviewed [ 4the presen-tence investigation report, which includes information about Defendant’s personal history and criminal history; a letter to the court from Defendant; and the La. C. Cr. P. art. 894.1 factors. The trial court explained the possible sentencing range of 5 to 30 years on each count and that the state had dismissed an additional charge of distribution of cocaine and agreed not to file a habitual offender bill.

During the sentencing hearing, the trial court emphasized Defendant’s criminal history, which includes additional drug offenses. In 1999, Defendant pled guilty to cruelty to animals and possession of marijuana and was sentenced to time served. In 2000, Defendant was convicted of possession of a Schedule II controlled dangerous substance (cocaine) with the intent to distribute, for which he received three years at hard labor and two years’ probation. While on probation in 2003, Defendant was charged with simple escape, aggravated escape, resisting an officer and possession of a firearm by a convicted felon. He was convicted of possession of a firearm by a convicted felon and attempted simple escape and was sentenced to ten years.

The trial court also noted that, in 2001, a jury found Defendant not guilty of distribution of a Schedule II controlled dangerous substance (cocaine). Additionally, in 2003, Defendant was arrested for tampering with a jury, but a bill of information was not filed in that case.

As to the second prong of the excessive-sentence test, the concurrent 20-year sentences are not constitutionally excessive. The sentencing range |sfor the distribution of cocaine is a term of imprisonment for not less than 2 nor more than 30 years at hard labor, with the first 2 years of the sentence to be served without the benefit of parole, probation or suspension of sentence; a fine of not more than $50,000 is discretionary. La. R.S. 40:967(B)(4)(b). The sentencing range for the distribution of marijuana is a term of imprisonment for not less than 5 nor more than 30 years at hard labor with a fine of not more than $50,000. La. R.S. 40:966(B)(3). Considering Defendant’s criminal history and that he was not adjudicated a habitual offender, the sentences of 20 years are not grossly out of proportion to the severity of the crime and do not shock the sense of justice. The sentences imposed are within the statutory limits and are midrange sentences. The trial court chose to run the sentences concurrently, but had the discretion to run the sentences consecutively. Defendant benefitted from the plea bargain because his possible maximum sentence was reduced when the state agreed to dismiss one count of distribution of cocaine and agreed not to file a habitual offender bill. See State v. Duncan, 47,697 (La.App.2d Cir.1/16/13), 109 So.3d 921, writ denied, 13-0324 (La.9/13/13), 120 So.3d 280. We find that the trial court did not abuse its discretion in sentencing Defendant. Therefore, this assignment of error is without merit.

ERRORS PATENT

Our review of the record reveals two potential errors patent.

First, the trial court failed to order that the first two years of the sentences for distribution of cocaine be served without the benefit of | r,probation, parole or suspension of sentence, as required by La. R.S. 40:967(B)(4)(b). When the trial court fails to order that a portion of a sentence be served without benefits as statutorily mandated, the sentence will automatically be served without benefits for the requisite time period. State v. Gamer, 46,723 (La.App.2d Cir.11/2/11), 78 So.3d 186, citing La. R.S. 15:301.1(A); State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790; State v. Cooks, 36,613 (La.App.2d Cir.12/4/02), 833 So.2d 1034.

Second, the trial court failed to impose a fine of not more than $50,000 for the sentence for distribution of marijuana, as required by La. R.S. 40:966(B)(3), and, therefore, imposed an illegally lenient sentence. Pursuant to La. C. Cr. P. art. 882(A), an appellate court may correct an illegal sentence on review, but is not required to do so. See State v. Jones, 42,531 (La.App.2d Cir.11/7/07), 968 So.2d 1247. The state did not object to the trial court’s error, and Defendant is not prejudiced by the trial court’s failure to impose a mandatory fine. Thus, we decline to remand the case for correction of the sentence to include such a fine.

CONCLUSION

For the foregoing reasons, the convictions and sentences of Defendant, David D. Jones, are affirmed.

AFFIRMED.

      . The original bill of information incorrectly categorized marijuana as a Schedule II controlled dangerous substance in Count Two and incorrectly categorized cocaine as a Schedule I controlled dangerous substance in Count 3. On August 20, 2012, the state orally amended the bill of information to correct these errors.

      . The trial court misstated the minimum sentence for the cocaine charges as five years instead of two years.