text:
    STATE of Louisiana v. Jacques DUNCAN
    NO. 16-KA-493
    Court of Appeal of Louisiana, Fifth Circuit.
    February 08, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux
    COUNSEL FOR DEFENDANT/APPELLANT, JACQUES DUNCAN, Prentice L. White
    DEFENDANT/APPELLANT, JACQUES DUNCAN, In Proper Person
    Panel composed of Robert M. Murphy, Stephen J. Windhorst, and Hans J. Liljeberg
   LILJEBERG, J.

1 ¶ Defendant appeals his conviction and sentence for possession with intent to distribute cocaine. For the following reasons, we affirm. We also grant appellate counsel’s motion to withdraw as counsel of record.

PROCEDURAL HISTORY

On June 2, 2015, the Jefferson Parish District Attorney filed a bill of information charging defendant, Jacques Duncan, with possession with intent to distribute cocaine in violation of La. R.S. 40:967(A). Defendant was arraigned on June 3, 2015, and he pleaded not guilty. Thereafter, on January 19, 2016, defendant withdrew his not guilty plea and pleaded guilty as charged. He was sentenced to imprisonment at hard labor for 15 years, with two years to be served without the benefit of parole, probation, or suspension of sentence.

Also on January 19, 2016, the State filed a multiple offender bill of information alleging defendant to be a second felony offender, to which defendant stipulated. The trial judge vacated the original sentence and resentenced defendant under the multiple bill statute to imprisonment at hard labor for 15 years without the benefit of probation or suspension of sentence, to run concurrently with the sentence imposed in case number 15-3377. Defendant filed an application for post-conviction relief seeking an out-of-time appeal, which was granted.

FACTS

Because defendant pleaded guilty, the underlying facts were not fully developed at a trial. In the bill of information, the State alleged that on or about May 5,2015, defendant violated La. R.S. 40:967(A) in that he did knowingly or intentionally possess with intent to distribute a controlled dangerous substance, to wit: cocaine. Also, during the colloquy, the State provided a factual basis for the 12plea. The State indicated that if this matter had proceeded to trial, it was prepared to show that on or about the date listed on the bill of information, defendant violated La. R.S. 40:967(A) in that he knowingly or intentionally possessed with the intent to distribute a controlled dangerous substance, to wit: cocaine. Defendant acknowledged that the State’s factual basis was accurate and that he was pleading guilty because he was guilty.

LAW AND DISCUSSION

Anders Brief

Under the procedure adopted by this Court in State v. Bradford, 95-929, pp. 3-4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, appointed appellate counsel has filed a brief asserting that he has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam), appointed counsel requests permission to withdraw as counsel of record.

In Anders, supra, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds his case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by “a brief referring to anything in the record that might arguably support the appeal” so as to provide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability” and to assist the reviewing court “in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.” McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

In Jyles, 96-2669 at 2, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The Court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” Id.

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. Bradford, 95-929, at 4, 676 So.2d at 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellant counsel. Id.

In the present case, defendant’s appellate counsel asserts that after a detailed review of the record, he could find no non-frivolous issues to raise on appeal. Appellate counsel states that the trial court engaged in a meticulous discussion with defendant regarding the rights he would be waiving by pleading guilty, the charges, and the sentencing ranges for both the felony and misdemeanor offenses. He further states that defendant acknowledged his rights and indicated that he was willing to waive those rights. Appellate counsel notes that defendant denied being coerced into pleading guilty. He further notes that the district court was satisfied Uthat defendant entered his guilty plea knowingly and voluntarily, and it accepted defendant’s guilty plea on the underlying charge and his stipulation to the multiple bill. Appellate counsel contends that the sentence imposed by the district court was within the statutory range.

Appellate counsel has filed a motion to withdraw as attorney of record, in which he states that he cannot find any non-frivolous issues to raise on appeal and that he has notified defendant of the filing of his motion to withdraw from the case. Appellate counsel also indicates that he informed defendant of his right to file a pro se supplemental brief in this appeal, Defendant filed a pro se supplemental brief in this Court on November 1, 2016,

An independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal.

The record reflects that the bill of information properly charged defendant, as it plainly and concisely stated the essential facts constituting the offense chargéd. It also sufficiently identified defendant and the crime charged. See La. C.Cr.P. arts. 462-466. Also, as reflected in the minute entries, defendant and his counsel appeared at all crucial stages of the proceedings against him, including his arraignment, guilty plea, multiple bill stipulation, and sentencing. As such, there are no ap-pealable issues surrounding defendant’s presence.

Further, defendant pleaded guilty in this case. Generally, when a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the. guilty plea and precludes review of such defects either by appeal or post-conviction relief. State v. Turner, 09-1079, pp. 7-8 (La.App. 6 Cir. 7/27/10), 47 So.3d 455, 459. Here, defendant entered an unqualified guilty plea, and therefore, any non-jurisdictional defects were waived. Also, no rulings were ^preserved for appeal under the holding in State v. Crosby, 338 So.2d 584 (La. 1976).

The record also shows that defendant filed several pre-trial motions that were not ruled upon prior to the time defendant entered his guilty plea. However, when a defendant does not object to the trial court’s failure to hear or rule on a pretrial motion prior to pleading guilty, the motion is considered waived. See State v. Corzo, 04-791, p. 2 (La.App. 5 Cir. 2/15/05), 896 So.2d 1101, 1102. Defendant did not object to the trial court’s failure to rule on his pre-trial motions prior to pleading guilty. As such, defendant’s pre-trial motions were waived.

Furthermore, the record does not reveal any irregularities in defendant’s guilty plea. Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. State v. McCoil, 05-658, p. 7 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boy-kin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. Id.

In the present case, during the guilty plea proceeding, defendant was informed that he was charged with and pleading guilty to the crime of possession with intent to distribute cocaine. The record also shows that defendant' was advised of the sentencing range for that offense. On the waiver of rights form and during the colloquy with the trial judge, defendant was advised of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination, as required by Boykin v. Alabama, supra. Defendant signed the waiver of rights form, indicating that he understood he was waiving these rights by pleading guilty. During the colloquy with the trial judge, defendant also indicated that he | (¡understood those rights. He further acknowledged reviewing the waiver of rights form with his attorney.

During his guilty plea colloquy and in his waiver of rights form, defendant indicated that he had not been forced, coerced, or threatened into entering his guilty plea. He was also informed of the minimum and maximum sentence and of the actual sentence that would be imposed if his guilty plea was accepted. After the colloquy with defendant, the trial court accepted defendant’s plea as knowingly, intelligently, freely, and voluntarily made.

A review of the record also reveals no constitutional infirmity in defendant’s stipulation to the multiple bill. The record indicates that defendant reviewed the multiple offender waiver of rights form with his attorney. The waiver of rights form, in conjunction with the colloquy between the trial judge and defendant, indicates that defendant was advised of his right to a hearing at which the State would have to prove his multiple offender status and of his right to remain silent throughout the hearing. Defendant was also advised of the potential sentencing range as a second felony offender and the actual sentence he' would receive. Defendant indicated that he had not been forced or coerced into stipulating to the multiple bill. The trial judge stated that he was satisfied that defendant understood the consequences of his “plea” and had made a knowing, intelligent, free, and voluntarily act of “pleading guilty.”

With regard to defendant’s sentences, La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. State v. Washington, 05-211, p. 5 (La.App. 5. Cir. 10/6/05), 916 So.2d 1171, 1173. This Court has applied this provision to cases in which a defendant admits to the allegations in a habitual offender bill, as part of a sentencing agreement. See State v. Cross, 06-866, p. 4 (La.App. 5 Cir. 4/11/07), 958 So.2d 28, 30.

|7In the instant case, defendant’s sentences were imposed in accordance with the terms of the plea agreement set forth in the record at the time of the pleas. Defendant’s sentences also fall within the sentencing ranges set forth in the statutes. See La. R.S. 40:967(A); La. R.S. 15:529.1. Moreover, defendant’s plea agreement was beneficial to him in that he received a 15-year enhanced sentence as a second felony offender when he could have received a 60-year sentence, and the trial judge ordered the enhanced sentence to run concurrently with the misdemeanor sentences in case number 15-3377.

The transcript reflects that the trial judge informed defendant that if he stipulated to the multiple bill, his 15-year enhanced sentence would be served without the benefit of probation or suspension of sentence. Afterward, the trial judge imposed the enhanced sentence without the benefit of probation or suspension of sentence. The waiver of rights form also reflects that the enhanced sentence would be served without the benefit of probation or suspension of sentence. Neither the trial judge nor the waiver of rights form noted any restriction on parole eligibility.

La. R.S. 15:529.1(G) provides that an enhanced sentence shall be at hard labor without benefit of probation or suspension of sentence. However, La. R.S. 40:967(B)(4)(b) requires that the first two years of the sentence shall be without the benefit of parole, probation, or suspension of sentence. The restrictions on parole eligibility imposed on habitual offender sentences under La. R.S. 15:529.1 “are those called for in the reference statute.” State v. Esteen, 01-879 (La.App. 5 Cir. 5/15/02), 821 So.2d 60, 79, n.24, writ denied, 02-1540 (La. 12/13/02), 831 So.2d 983. Because the underlying offense carries a parole restriction, the habitual offender sentence is to likewise be imposed without parole. See State v. Smith, 09-100 (La.App. 5 Cir. 8/25/09), 20 So.3d 501, 509, writ denied, 09-2102 (La. 4/5/10), 31 So.3d 357.

|8La. R.S. 15:301.1(A) provides that in instances where the statutory restrictions are not recited at sentencing, they are deemed contained in the sentence whether or not specified by the sentencing court, and are therefore statutorily effective. State v. Williams, 00-1725 (La. 11/28/01), 800 So.2d 790, 799. Thus, although the trial court did not indicate during defendant’s sentencing as a habitual offender that his parole eligibility would be restricted for the first two years, no corrective action is required to specify that the first two years of defendant’s sentence are to be served without benefit of parole. See State v. Young, 13-745, p. 2 (La.App. 5 Cir. 4/9/14), 140 So.3d 136, 140 n.2, writ denied, 14-1002 (La. 12/8/14), 153 So.3d 439.

We further find that the trial judge’s failure to specify that the first two years of the habitual offender sentence was to be served without benefit of parole did not affect the voluntariness of the stipulation. In State v. Harrell, 09-364, pp. 31-33 (La.App. 5 Cir. 5/11/10), 40 So.3d 311, 323-24, writ denied, 10-1377 (La. 2/10/12), 80 So.3d 473, the defendant contended that his plea on count three was not knowing and voluntary because the trial court failed to advise him that the first five years of the sentence had to be served without the benefit of parole, probation, or suspension of sentence. On appeal, this Court found that the trial court’s failure in this regard did not render the defendant’s guilty plea unknowing or involuntary. It noted that the trial court advised the defendant of his Boykin rights, that the defendant indicated his willingness to plead guilty throughout the plea colloquy, that the defendant acknowledged that he had discussed the guilty plea with his attorney and that he still desired to plead guilty, and that the defendant received a substantial benefit for pleading guilty. Harrell, 40 So.3d at 324.

In the instant case, the record reflects that the trial judge advised defendant of his multiple offender rights, and defendant indicated his willingness to stipulate to the multiple bill. Defendant acknowledged that he had discussed his stipulation [3with his attorney and that he still desired to stipulate to the multiple bill. Moreover, defendant received a substantial benefit for stipulating to the multiple bill. Also, the record does not suggest that receiving the benefit of parole during the first two years of his sentence was crucial to his stipulation. Therefore, the trial judge’s failure to advise defendant that the first two years of his sentence was to be served without benefit of parole did not render his stipulation to the multiple bill unknowing or involuntary. See Harrell, supra.

Appellant counsel’s brief adequately demonstrates by full discussion and analysis that he has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal, and an independent review of the record supports counsel’s assertion. Accordingly, we affirm defendant’s conviction and sentence, and we grant appellate counsel’s motion to withdraw as attorney of record.

Pro Se Supplemental Brief

In defendant’s pro se supplemental brief, he argues that his guilty plea is constitutionally infirm. He claims that appellate counsel’s brief does not provide a full analysis of his felony conviction for which he received a 15-year sentence. He also asserts that this Court should deny appellate counsel’s motion to withdraw and order counsel to specifically brief whether his conviction and sentence present any non-frivolous appealable issues. Defendant further contends that his guilty plea should not have been accepted with a pronouncement of innocence. He claims that the record only contains a waiver of trial, but no admission of guilt, and that there was no factual basis for the plea.

As previously discussed in this opinion, a review of the record reveals no constitutional infirmity in defendant’s guilty plea to the underlying charge or in his stipulation to the multiple bill. We have found that appellate counsel’s Anders brief adequately demonstrates by full discussion and analysis that he has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal, | 1()and an independent review of the record supports counsel’s assertion. Also, the record indicates that defendant did not proclaim his innocence; rather, during the colloquy, the State provided a factual basis for the plea, and defendant indicated that the factual basis was accurate and that he was pleading guilty because he was guilty. In any event, this was not an Alford plea, which requires a factual basis.

Defendant also argues that his 15-year sentence was disproportionately and unreasonably excessive. However, as previously noted, La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of a sentence imposed in conformity with a plea agreement that was set forth in the record at the time of the plea. In the instant case, defendant’s sentence was imposed in accordance with the terms of the plea agreement set forth in the record at the time of the stipulation. As such, he is precluded from seeking review of his sentence.

Finally, defendant complains that his appellate counsel failed to discuss his applications for reduction of bail in his appellate brief. The record reflects that on October 8, 2015, and on November 2, 2015, defendant filed pro se applications for reduction of bail. Those matters were set for hearing on October 19, 2015, and November 19, 2015, respectively. The minute entry dated October 19, 2015, shows that defendant informed the trial judge that he would retain his own attorney, and the hearing was continued to November 19, 2015, at defendant’s request. The minute entry of November 19, 2015, indicates that defendant was represented by counsel, a bench conference was held, and the next proceeding for motions was scheduled for January 19, 2016. On January 19, 2016, defendant entered his guilty plea and stipulation. As such, the record does not contain any | n discussion or ruling on defendant’s applications for bond reduction. In any event, as previously noted, when a defendant does not object to the trial court’s failure to hear or rule on a pre-trial motion prior to pleading guilty, the motion is considered waived. See Corzo, supra.

Accordingly, we find no merit in defendant’s arguments set forth in his pro se supplemental brief.

ERRORS PATENT

Defendant requests an error patent review. However, this Court routinely reviews the record for errors patent in accordance with La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990) regardless of whether defendant makes such a request. No errors requiring corrective action were noted.

DECREE

For the foregoing reasons, we affirm defendant’s conviction and sentence. We also grant appellate counsel’s motion to withdraw as counsel of record.

AFFIRMED; MOTION TO WITHDRAW GRANTED

      . At the same hearing, defendant also pleaded guilty to two misdemeanor offenses, resisting an officer in violation of La. R.S. 14:108 and battery of a police officer in violation of La. R.S. 14:34.2, in case number 15-3377. The trial judge sentenced defendant to six months of imprisonment on each of those counts, to run concurrently with each other and with the sentence in the instant case.

      . In Bradford, supra, this Court adopted the procedures outlined in State v. Benjamin, 573 So.2d 528, 530 (La. App. 4 Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981, pp. 1-2 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam).

      . The State has filed a response to appellate counsel’s brief, concurring in appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal.

      . This Court also sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had the right to file a pro se supplemental brief.

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

      . While most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite to the imposition of criminal penalty. An individual accused of a crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime. North Carolina v. Alford, 400 U.S. 25, 26, 91 S.Ct. 160, 162, 27 L.Ed.2d 162, 165 (1970). However, pleading guilty pursuant to North Carolina v. Alford, supra, requires the establishment of a factual basis for the plea when a defendant asserts that he is innocent. State v. Respert, 14-769, p. 8 (La.App. 5 Cir. 2/25/15), 168 So.3d 839, 844, writ denied, 15-0604 (La. 1/25/16), 184 So.3d 1288. When a defendant pleads guilty under Alford, constitutional due process requires that the record contain strong evidence of actual guilt.Id.


source: Caselaw Access Project

author: CHEHARDY, C.J.

license: Public Domain

text:
    STATE of Louisiana v. Jasmond L. MARTIN
    NO. 16-KA-588
    Court of Appeal of Louisiana, Fifth Circuit.
    February 08, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux
    COUNSEL FOR DEFENDANT/APPELLANT, JASMOND L. MARTIN, Jane L. Beebe
    Panel composed of Susan M. Chehardy, Marc E. Johnson, and Robert A. Chaisson
   CHEHARDY, C.J.

hOn appeal, defendant’s appointed appellate counsel has filed an Anders brief on defendant’s behalf, asserting that there is no basis for a non-frivolous appeal. For the following reasons, we affirm defendant’s convictions and sentences.

Facts and Procedural History

Because defendant entered guilty pleas, the underlying facts were not fully developed in the record but the following facts were gleaned from the testimony presented at the suppression hearing. According to Jefferson Parish Sheriffs officers, on or about January 7, 2013, defendant, along with five other individuals, violated La. R.S. 14:64, when they robbed John Vurt-tas, Eric Wells, and Charles Smith “while armed with a dangerous weapon, to wit: a firearm.”

On February 5, 2013, the Jefferson Parish District Attorney filed a three-count bill of information charging defendant, Jasmond L. Martin, in count one, with armed robbery with a firearm of John Vurttas, in violation of La. R.S. 14:64 and La. R.S. 14:64.3; in count two, with armed robbery with a firearm of Eric Wells, in violation of La. R.S. 14:64 and La. R.S. 14:64.3; and, in count three, with armed robbery with a firearm of Charles Smith, in violation of La. R.S. 14:64 and La. R.S. 14:64.3. Defendant was arraigned on February 6, 2013, and pled not guilty.

On March 5, 2013, defendant filed omnibus motions. On October 29, 2013, the trial court denied defendant’s motions to suppress identification, statement, and evidence as to the clothes. On July 21, 2014, defendant filed a motion for discovery.

On August 18, 2014, the State amended all counts in the bill of information to violations of La. R.S. 14:64. On that same date, defendant withdrew his pleas of not guilty and tendered a plea of guilty as charged on all counts. The State agreed not to file a bill alleging that defendant was a multiple offender. Afterward, on that 1 gsame date, the trial judge sentenced defendant to imprisonment at hard labor for twenty-five years on each count, without benefit of parole, probation, or suspension of sentence, to run concurrently with each other and any other sentence defendant was serving.

On August 5, 2016, defendant filed an Application for Post-Conviction Relief (APCR) arguing that his sentence was excessive, that his counsel was ineffective, and that his counsel failed to file a motion for appeal. On August 9, 2016, the trial judge construed defendant’s pleading as a motion for out-of-time appeal and granted it. This appeal follows.

Anders review

Under the procedure adopted by this Court in State v. Bradford, 95-929, pp. 3-4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, appointed appellate counsel has filed a brief asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam), appointed counsel requests permission to withdraw as counsel of record.

In Anders, supra, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if she finds her case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by “a brief referring to anything in the record that might arguably support the appeal,” Anders, 386 U.S. at 744, 87 S.Ct. 1396, so as to provide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support then-clients’ appeals to the best of their ability” and to assist the reviewing court “in making the critical determination whether the appeal is indeed |3so frivolous that counsel should be permitted to withdraw.” McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

In Jyles, 96-2669 at 2, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pre-trial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The supreme court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” Id.

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. Bradford, 95-929, at 4, 676 So.2d at 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellate counsel. Id.

Discussion

Defendant’s appellate counsel asserts that, after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Appellate counsel states that the appellate record reflects that there is no ruling of the trial |4 court to be challenged. She further states that this was not a Crosby plea, and, thus, there were no pre-trial rulings subject to this appeal.

Appellate counsel notes that she considered whether to raise the issue of coercion of the plea but was compelled to conclude that such a claim would be frivolous based on the appellate record presented. She further notes that she also considered the claim of excessiveness of the sentence but felt such a claim would be frivolous. Appellate counsel provides that the trial court reviewed defendant’s plea, went through a proper colloquy with him, and informed him of his sentencing exposure in the plea colloquy. Therefore, she submits that, as the appellate record now stands, the three concurrent twenty-five year sentences with credit for time served would not be regarded as constitutionally excessive or made under false representation.

The State responds that the brief filed by appellate counsel shows a conscientious and thorough review of the procedural history of the case with references to the record for convenience of this Court. It further responds that appellate counsel has “cast an advocate’s eye” over the record and determined there were no non-frivolous issues to raise on appeal. The State asserts that appellate counsel, therefore, has conformed with and followed the procedures set forth in Anders and Jyles and should be granted permission to withdraw.

The State indicates that the trial court fully explained to defendant the ramifications of pleading guilty and foregoing a trial. The State also indicates that the trial court clearly explained the charges and the sentences that defendant was facing. It further indicates that defendant entered into a fair plea agreement, which was explained to him by his trial counsel. The State notes that the trial court fully explained defendant’s right to appeal and that defendant indicated he understood | ¿and agreed to these explanations. It further notes that there is nothing else in the record that would suggest a non-frivolous issue to be raised on appeal.

Appellate counsel has filed a motion to withdraw as attorney of record, which states that she has prepared an Anders brief and that she has notified defendant of the filing of this motion and of his right to file a pro se brief-in this appeal. Additionally, this Court sent defendant a letter by certified mail informing him that an An-ders brief had been filed and that he had until December 7, 2016, to file a pro se supplemental brief. As of the date of submission, defendant has not yet filed a brief.

Our independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal. The amended bill of information properly charged defendant and plainly and concisely stated the essential facts constituting the offenses charged. It also sufficiently identified defendant and the crimes charged. See La. C.Cr.P. arts. 463-466.

Further, as reflected by the minute entry and commitment, defendant appeared at each stage of the proceedings against him, including his arraignment, guilty pleas, and sentencing. As such, we find that there are no appealable issues surrounding defendant’s presence.

Further, defendant pled guilty in this case. Generally, when a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and review of such defects either by appeal or post-cori-viction relief is precluded. State v. Turner, 09-1079, pp. 7-8 (La.App. 5 Cir. 7/27/10), 47 So.3d 455,459. Here, defendant entered unqualified guilty pleas, and therefore, all non-jurisdictional defects are waived.

Further, no rulings were preserved for appeal under the holding in State v. Crosby, 338 So.2d 584 (La. 1976). Although it is possible that not all of defendant’s pre-trial motions were ruled upon prior to his entering of guilty pleas, |fiwe find that defendant waived those motions by pleading guilty without raising that issue. See State v. Corzo, 04-791 (La.App. 5 Cir. 2/15/05), 896 So.2d 1101, 1102.

Also, once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boy-kin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. State v. McCoil, 05-658 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124.

Importantly, our review of the record reveals no constitutional infirmity or irregularities in defendant’s guilty pleas to the amended bill of information. The record shows that defendant was aware he was pleading guilty to three counts of armed robbery. Defendant was also properly advised of his Boykin rights. On the waiver of rights form and during the colloquy with the trial court, defendant was advised of his light to a jury trial, his right to confrontation, and his privilege against self-incrimination. On the waiver of rights form, defendant initialed next to each of these rights and signed the form, indicating that he understood he was waiving these rights by pleading guilty. During the colloquy with the trial judge, defendant also indicated that he understood the rights he was waiving by pleading guilty.

Further, during his guilty plea colloquy and in the waiver of rights form, defendant indicated that he had not been forced, coerced, or threatened into entering his guilty pleas and that he was satisfied with the way his attorney and the court handled his case. Defendant was also informed by the waiver of rights form and during the colloquy of his minimum and maximum sentencing exposure and of the actual sentences that would be imposed upon acceptance of his guilty pleas. |7After the colloquy with defendant, the trial court accepted defendant’s pleas as knowingly, intelligently, freely, and voluntarily made.

With regard to defendant’s sentences, they were imposed in accordance with the plea agreement. This Court has consistently recognized that La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. State v. Moore, 06-875 (La.App. 5 Cir. 4/11/07), 958 So.2d 36, 46, writ denied, 09-2046 (La. 8/18/10), 42 So.3d 394. In addition, defendant’s sentences fall within the sentencing range set forth in the statute. See La. R.S. 14:64. Also, the plea agreement was beneficial to defendant in that he received three concurrent twenty-five-year sentences when he could have received three ninety-nine-year sentences. Additionally, the State agreed not to multiple bill him as a second felony offender, which would have increased his sentencing exposure.

Because appellate counsel’s brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal, and an independent review of the record supports counsel’s assertion, we affirm defendant’s convictions and sentences.

Errors patent

In accordance with La. C.Cr.P. art. 920, this Court has reviewed the record for errors patent and found none that require correction. State v. Oliveaux, 312 So.2d 337 (La. 1975); State v. Welland, 556 So.2d 175 (La. App. 5 Cir. 1990).

Decree

For the foregoing reasons, we affirm defendant’s convictions for armed robbery and concurrent sentences of twenty-five years at hard labor.

AFFIRMED.

      .In Bradford, supra, this Court adopted the procedures outlined in State v. Benjamin, 573 So.2d 528, 530 (La. App. 4 Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981, pp, 1-2 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam).

      . The United States Supreme Court reiteratedAnders in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

      . State v. Crosby, 338 So.2d 584 (La. 1976).

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


author: LILJEBERG, J.

text:
    STATE of Louisiana v. Aaron S. ENGLE
    NO. 16-KA-589
    Court of Appeal of Louisiana, Fifth Circuit.
    February 08, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux
    COUNSEL FOR DEFENDANT/APPELLANT, AARON S. ENGLE, Prentice L. White
    Panel composed of Robert M. Murphy, Stephen J. Windhorst, and Hans J. Liljeberg
   LILJEBERG, J.

hOn appeal, defendant, Aaron S. Engle, contends his convictions for theft and receiving stolen goods violate the Double Jeopardy Clause. For the following reasons, we affirm defendant’s convictions, as well as the sentence for his theft conviction. However, we vacate the sentence for defendant’s conviction for receiving stolen goods and remand the matter to the trial court for resentencing.

FACTS AND PROCEDURAL HISTORY

On October 30, 2013, the Jefferson Parish District Attorney filed a bill of information charging defendant with theft of jewelry valued over $500.00 from Cash America Pawn in violation of La. R.S. 14:67 (count one) and with illegal receiving of stolen jewelry belonging to Ana Susie valued at over $500.00 in violation of La. R.S. 14:69 (count two). The bill of information alleges these offenses occurred on or between September 1, 2013, and September 25, 2013. Defendant pleaded not guilty at his arraignment on October 31, 2013.

On January 31, 2014, defendant withdrew his pleas of not guilty and entered pleas of guilty as charged on both counts under La. R.S. 13:5304. The trial court deferred imposition of the sentences and placed defendant on probation for five years. Defendant was also required to complete the Jefferson Parish Intensive Drug Court Program. On February 4, 2014, the trial court issued an attachment following defendant’s failure to appear for drug court. On June 13, 2014, the District Attorney filed a motion seeking to revoke defendant’s probation for failure to pay drug court costs and to appear for drug court. On June 23, 2014, the trial court held a hearing at which time defendant stipulated to the grounds alleged in revocation motion. The trial court sentenced defendant to six years at hard labor on each count to run concurrently.

|2On that same day, the District Attorney filed a multiple offender bill of information with respect to defendant’s theft conviction, alleging defendant to be a third felony offender. Defendant stipulated to the allegations in the multiple bill and the trial court vacated its original sentence on count one. The trial court then sentenced defendant as a third felony offender under La. R.S. 15:529.1 to six years at hard labor on count one without the benefit of probation or suspension of sentence to be served concurrently with the sentence imposed for count two.

On June 16, 2016, defendant filed an application for post-conviction relief arguing his convictions constituted a double jeopardy violation. On June 23, 2016, the trial court dismissed defendant’s application for post-conviction relief without prejudice and granted defendant an out-of-time appeal pursuant to State v. Counterman, 475 So.2d 336 (La. 1985). Defendant’s appeal follows.

DISCUSSION

In his sole assignment of error, defendant argues his convictions for theft in violation of La. R.S. 14:67 and receiving stolen goods in violation of La. R.S. 14:69 constitute a violation of the Double Jeopardy Clause. He argues the State prosecuted him for multiple offenses derived from one criminal act and the trial court erred by convicting him of both offenses.

La. C.Cr.P. art. 591 provides, in pertinent part: “[n]o person shall be twice put in jeopardy of life or liberty for the same offense. ...” The Fifth Amendment to the United States Constitution, as well as Article 1, § 15 of the Louisiana Constitution, prohibit placing a person twice in jeopardy for the same offense. State v. Fairman, 15-67 (La.App. 5 Cir. 9/23/15), 173 So.3d 1278, 1289. The concept of double jeopardy, under both the federal and state constitutions, embodies the dual purpose of preventing both multiple punishments and multiple convictions for a single criminal wrong. Id.

IsDouble jeopardy may be raised at any time pursuant to La. C.Cr.P. art. 594. State v. Anderson, 10-779 (La.App. 5 Cir. 3/27/12), 91 So.3d 1080, 1088. An unqualified guilty plea does not preclude appellate review of jurisdictional defects, such as violations of the Double Jeopardy Clause. State v. Crosby, 338 So.2d 584, 588 (La. 1976). A court considering a double jeopardy challenge entered pursuant to unconditional guilty pleas, however, should engage in a limited review of only the charging documents and plea colloquy. State v. Arnold, 01-1399 (La. 4/12/02), 816 So.2d 289; State v. Miller, 12-126 (La. App. 5 Cir. 10/16/12), 102 So.3d 956, 961-62.

A double jeopardy analysis begins with the inquiry as to whether a single offense or several offenses are involved. Fairman, 173 So.3d at 1289. It is well-settled that an accused who commits separate and distinct offenses during the same criminal episode or transaction may be prosecuted and convicted for each offense without violating the prohibition against double jeopardy. State v. Nichols, 337 So.2d 1074, 1078 (La. 1976); State v. Anderson, 10-779 (La.App. 5 Cir. 3/27/12), 91 So.3d 1080, 1089.

, Louisiana courts utilize two tests to analyze double jeopardy claims: (1) the “distinct fact” or Blockburger test, set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and (2) the “same evidence” test. Fairman, 173 So.3d at 1289. Under the Blockburger test, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Blockburger, 284 U.S. at 304, 52 S.Ct. 180; State v. Knowles, 392 So.2d 651, 654 (La. 1980). The same evidence test is slightly broader in concept and focuses upon the actual evidence necessary to secure a conviction. State v. Steele, 387 So.2d 1175, 1177 (La. 1980). This test | ¿depends upon the proof required to convict, not the evidence actually introduced at trial. Thus, under the same evidence test, the court’s concern is with the “evidential focus” of the facts adduced at trial in light of the verdict rendered, ie., how the evidence presented goes to satisfy the prosecution’s burden of proof. State v. Coody, 448 So.2d 100, 102-03 (La. 1984). Therefore, if the evidence required to support a finding of guilt of one crime would also support a conviction for another offense, the defendant can be placed in jeopardy for only one of the two. Knowles, 392 So.2d at 654.

As explained above, our review in this matter is limited to the charging documents and plea colloquy, which provide few details regarding the facts surrounding the offenses at issue. Defendant does not provide any discussion of the facts in his appellate brief to explain why he contends his convictions arise out of a single criminal act. The bill of information charged defendant with theft of jewelry valued at over $500 from Cash America Pawn in violation of La. R.S. 14:67 and receiving stolen jewelry valued at over $500 belonging to Ana Susie in violation of La. R.S. 14:69. The bill of information indicates that defendant committed two separate and distinct offenses involving jewelry-taken from two different victims. Therefore, contrary to defendant’s arguments, it does not appear that the State alleged alternate offenses for theft and receiving stolen things in accordance with La. C.Cr.P. art. 482(A) in this matter.

Furthermore, the plea colloquy did not include a factual basis for defendant’s charges. During the colloquy, the trial court merely asked defendant to confirm whether he was pleading guilty to theft between $500 and $1500 in violation of La. R.S. 14:67 and receiving stolen things between $500 and $1500 in |svioIation of La. R.S. 14:69, and defendant responded affirmatively. Nothing in the record indicates that the theft of jewelry from Cash Pawn America involves the same offense as receiving stolen jewelry which belonged to Ana Susie.

After conducting a limited review of the bill of information and plea colloquy, this Court cannot find that a double jeopardy violation occurred in this matter. This assignment of error is without merit.

ERRORS PATENT DISCUSSION

The record was reviewed for errors patent, according to La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990). The review revealed two errors patent requiring corrective action.

As to defendant’s original sentences, the trial court imposed illegal sentences of six years on both counts. At the time of the offense, La. R.S. 14:67(B)(2) stated:

When the misappropriation or taking amounts to a value of five hundred dollars or more, but less than a value of one thousand five hundred dollars, the offender shall be | ^imprisoned, with or without hard labor, for not more than five years, or may be fined not more than two thousand dollars, or both. [Emphasis added.]

At the time of the offense, La. R.S. 14:69(B)(2) stated:

When the value of the stolen things is five hundred dollars or more, but less than one thousand five hundred dollars, the offender shall be imprisoned, with or without hard labor, for not more than five years, or may be fined not more than two thousand dollars, or both. [Emphasis added.]

Because count one was vacated following defendant’s adjudication as a multiple offender, no corrective action is required. However, defendant’s sentence for count two remains in effect, and therefore, this Court remands this matter to the trial court for resentencing on count two in compliance with La. R.S. 14:69(B)(2).

Lastly, the Uniform Commitment Order reflects that the trial court sentenced defendant on January 31, 2014. However, the trial court deferred defendant’s sentence on that date and did not sentence defendant until after his probation was revoked on June 23, 2014. In addition, the Uniform Commitment Order states “6 years of the sentence to be served without benefit of probation or suspension,” but fails to specify that this limitation on benefits only applies to defendant’s sentence on count one under the habitual offender statute, La R.S. 15:529.1. Therefore, we remand the matter and order that the uniform commitment order be corrected to reflect the correct date of sentencing and to specify that the limitation of benefits only apply to count one. We also direct the Clerk of Court for the 24th Judicial District Court to transmit the original of the corrected uniform commitment order to the officer in charge of the institution to which defendant has been sentenced and the Department of Corrections’ legal department. State v. Long, 12-184 (La.App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142.

DECREE

Accordingly, we affirm defendant’s convictions, as well as his sentence on count one. We vacate defendant’s sentence on count two for receiving stolen 17goods and remand the matter to the trial court for resentencing. We also remand this matter for correction of the Louisiana Uniform Commitment Order consistent with this opinion.

CONVICTIONS AFFIRMED; COUNT ONE SENTENCE AFFIRMED; COUNT TWO SENTENCE VACATED AND REMANDED FOR RESENTENC-ING AND CORRECTION OF UNIFORM COMMITMENT ORDER

      . As discussed more fully below, the trial court imposed illegal sentences on both counts. At the time of the offenses, the sentencing ranges under La. R.S. 14:67 and 14:69 were not more than five years with or without hard labor for amounts valued at five hundred dollars or more, but less than one thousand five hundred dollars.

      . La. C.Cr.P, art. 594 provides that "[d]ouble jeopardy can be raised at any time, but only once ....”

      . La. C.Cr.P. art. 482(A) provides that "[a]n indictment for theft may also contain a count for receiving stolen things, and the defendant may be convicted of either offense.. .The district attorney shall not be required to elect between the two offenses charges.”

      . La. R.S. 14:69 provided at the time of the offense:
      Illegal possession of stolen things is the intentional possessing, procuring, receiving, or concealing of anything of value which has been the subject of any robbery or theft, under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses.
      La. R.S. 14:67 provided at the time of the offense:
      Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other person permanently of whatever may be the subject of the misappropriation or the taking is essential.

      .We do note the waiver of rights form signed by defendant in connection with these guilty pleas originally stated that defendant was pleading to two counts of theft and further stated the charges were based on theft of jewelry from Ana Susie and "subsequent exchange for cash at Cash America Pawn.” Defense counsel interjected at the beginning of the plea colloquy and explained that he mistakenly wrote that defendant was pleading to two counts of theft on the form. The form indicates that with respect to count 2, the word "theft” was scratched through and "(14:69)” was written underneath. No changes were made to the explanation of the basis for the charges which immediately followed this correction. However, even if this explanation was correct, it does not support a finding that a double jeopardy violation occurred in this matter.


author: CALLOWAY, J.

text:
    Jay SCHWARTZBERG v. Miller GUILLORY and Garda CL Southeast, Inc.
    2016 CA 0753
    Court of Appeal of Louisiana, First Circuit.
    February 17, 2017

      Al M. Thompson, Jr., New Orleans, Louisiana, Attorney for Appellants Defendants—Miller Guillory and Garda CL Southeast, Inc.
    Darrell J. Loup, Baton Rouge, Louisiana, and, Alan L. Schwartzberg, Hester R. Dornan, Baton Rouge, Louisiana, Attorneys for Appellee Plaintiff—Jay Schwartz-berg
    BEFORE: PETTIGREW, McDonald, and galloway, jj.

      . Hon. Curtis A. Calloway, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   CALLOWAY, J.

|2In this personal injury case, the defendants challenge the damages awarded by the trial court to the plaintiff following a bench trial.

FACTS AND PROCEDURAL HISTORY

This case involves a traffic accident, and the facts regarding the collision are undisputed. The accident occurred on April 25, 2013, when the Jeep Wrangler owned and operated by the plaintiff, Jay Schwartzberg, struck an armored van operated by the defendant, Miller Guillory, and owned by his employer, Garda CL Southeast, Inc. Mr. Guillory was driving the armored vehicle westbound on Government Street in Baton Rouge, while in the course and scope of his employment with Garda CL Southeast, Inc. Mr. Guillory was attempting to make a left turn into the parking lot of a commercial shopping center when Mr. Schwartzberg’s vehicle, trav-elling eastbound, struck the back comer of the armored vehicle. At the time of the accident, Mr. Schwartzberg had the right of way, and Mr. Guillory had a legal duty to yield that right of way to Mr. Schwartz-berg’s vehicle.

Mr. Schwartzberg filed the instant suit against Mr. Guillory and Garda CL Southeast, Inc., seeking damages for the aggravation of a pre-existing neck injury allegedly sustained as a result of the automobile accident. A bench trial was conducted on November 20, 2015, on the issue of damages. Mr. Schwartzberg stipulated that his damages, exclusive of interest and court costs, did not exceed $50,000.00. Following trial, the trial court issued reasons for judgment and signed a final judgment on January 28, 2016, in favor of Mr. Schwartzberg and against the defendants in solido, awarding |3Mr. Schwartzberg $49,999.99 in general and special damages, plus legal interest from the date of judicial demand until paid, as well as all costs of the proceedings.

The defendants now appeal, contending that the trial court erred in the amount of general and special damages awarded to the plaintiff. Specifically, the defendants assert two assignments of error. First, the defendants argue the trial court erred in finding that the accident caused an aggravation of Mr. Schwartzberg’s pre-existing neck injury for eleven months. Second, the defendants contend the trial court erred in the amount of general and special damages awarded to Mr. Schwartzberg by relying on the testimony of Mr. Schwartzberg’s treating physician, which the defendants argue is inconsistent with medical records and other evidence, including Mr. Schwartzberg’s own admissions.

LAW AND DISCUSSION

The defendants argue that the damage award is abusively high because Mr. Schwartzberg, who suffered neck pain pri- or to the accident at issue, failed to carry his burden of proof that he suffered an eleven-month aggravation of his pre-exist-ing neck injury. The defendants contend Mr. Schwartzberg failed to prove that he suffered any aggravation of this pre-exist-ing injury beyond four months after the accident, based on the medical records and expert medical testimony introduced at trial. The defendants contend the trial court erred in relying on the expert testimony of the plaintiffs treating physician, through which Mr. Schwartzberg attempted to establish the duration of the aggravation of his pre-existing neck injury, but which was inconsistent and interdicted by his own medical records and other evidence introduced by Mr. Schwartzberg at trial.

In a personal injury suit, the plaintiff bears the burden of proving a causal relationship between the injury sustained and the accident that caused the injury. American Motorist Ins. Co. v. American Rent-All, Inc., 579 So.2d 429, 433 (La. 1991). Before recovery can be granted for aggravation of a pre-existing condition, a causative link between the accident and the victim’s current status must also be established. Proof must be by a preponderance of the evidence. The test for determining the causal relationship is whether the plaintiff proved, through medical and lay testimony, that it is more probable than not that the subsequent injuries were caused by the accident. Bennett v. Louisiana Farm, Bureau Cas. Ins. Co., 43,216 (La.App. 2 Cir. 4/30/08), 983 So.2d 966, 972.

A defendant in a personal injury case takes the victim as he finds him and is responsible for all natural and probable consequences of his tortious conduct. When the tortfeasor’s conduct aggravates a pre-existing condition, the tortfeasor must compensate the victim for the full extent of the aggravation. Robinson v. Tolbert, 40,488 (La.App. 2 Cir. 1/20/06), 920 So.2d 346, 348. The “eggshell plaintiff’ is required to establish a causal link between the tortious conduct and the aggravation of his pre-existing condition. Bienemann v. State Farm Mut. Auto. Ins. Co., 2008-1045 (La.App. 3 Cir. 2/4/09), 3 So.3d 621, 623.

Although expert medical testimony is indispensable in some cases to prove or disprove causation, a finding on the issue of causation is not necessarily contingent upon the substance of expert medical-testimony. Greening v. Bell, 28,689 (La.App. 2 Cir. 9/25/96), 681 So.2d 36, 38. Expert medical testimony is only required when the conclusion regarding medical causation is one that is not within common knowledge. Newsome v. New Orleans Saints, 2008-311 (La.App. 5 Cir. 10/14/08), 996 So.2d 637, 640. Credibility determinations, including evaluating the testimony of expert witnesses, are factual findings governed by the manifest error standard of review. Sportsman Store of Lake Charles, Inc. v. Sonitrol Security Systems of Calcasieu, Inc., 99-0201 (La. 10/19/99), 748 So.2d 417, 421. Simply stated, an appellate court is required to give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations' of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Dixon v. Travelers Ins. Co., 2002-1364 (La.App. 4 Cir. 4/2/03), 842 So.2d 478, 485, writ denied, 2003-1482 (La. 9/26/03), 854 So.2d 366.

“General damages” involve mental or physical pain or suffering, inconvenience, loss of gratification or intellectual or physical enjoyment, or other losses of lifestyle that cannot be measured definitively in terms of money. Boudreaux v. Farmer, 604 So.2d 641, 654 (La. App. 1 Cir.), writs denied, 605 So.2d 1373, 1374 (La. 1992). The primary objective of general damages is to restore the party in as near .a fashion as possible to the state he was in at the time immediately preceding injury. Daigle v. U.S. Fidelity and Guar. Ins. Co., 94-0304 (La.App. 1 Cir. 5/5/95), 655 So.2d 431,437.

Thus, in determining the amount of general damages to be awarded, the trial court, as the trier of fact, had to determine whether Mr. Schwartzberg met his burden of proof, by a preponderance of the evidence, that he suffered aggravation to his pre-existing injuries as a result of the accident, as well as the duration of the aggravation of his injuries. Vast discretion is accorded the trier of fact in fixing general damage awards. La. C.C. art. 2324.1; Hollenbeck v. Oceaneering Int., Inc., 96-0377 (La.App. 1 Cir. 11/8/96), 685 So.2d 163, 172, writ denied, 97-0493 (La. 4/4/97), 692 So.2d 421. The discretion vested in the trier of fact is “great,” even vast, so that an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La. 1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). The role of an appellate court' in reviewing general damages is not to decide what it considers to be an appropriate award but, rather, to review the exercise of discretion by the trier of fact. Wainwright v. Fontenot, 2000-0492 (La. 10/17/00), 774 So.2d 70, 74. Before an appellate court can disturb the quantum of an award, the record must clearly reveal that the trier-of fact abused its discretion. In order to make this determination, the reviewing court looks first to the individual circumstances of the injured plaintiff. Theriot v. Allstate Ins. Co., 625 So.2d 1337, 1340 (La.1993). Reasonable persons frequently disagree about the measure of general damages in a particular case. Youn, 623 So.2d at 1261. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the- effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or decrease the award. Youn, 623 So.2d at 1261.

The nature, relative severity, and bodily extent of injuries are qualitative factors that must first be considered by the trier of fact in awarding general damages. The duration of a plaintiffs injury symptoms and the duration of treatment are relevant ^quantitative factors that must also be taken into account. See Gillmer v. Parish Sterling Stuckey, 2009-0901 (La.App. 1 Cir. 12/23/09), 30 So.3d 782, 788; Thibodeaux v. USAA Cas. Ins. Co., 93-2238 (La.App. 1 Cir. 11/10/94), 647 So.2d 351, 357. Only after analysis of the facts and circumstances peculiar to the particular case and plaintiff may an appellate court conclude that the award is inadequate or excessive. See Theriot, 625 So.2d at 1340. And, it is only after such a threshold determination of an abuse of discretion that the appellate court should examine prior awards for similar injuries to modify the award within the range of reasonable discretion. See Reck v. Stevens, 373 So.2d 498, 500-01 (La. 1979); Coco v. Winston Indus., Inc., 341 So.2d 332, 335-36 (La. 1976).

“Special damages” are those which must be specially pled or have a ready market value, that is, the amount of the damages supposedly can be determined with relative certainty. Some special damages, such as medical and lost wages, are easily measured. McGee v. A C And S, Inc., 2005-1036 (La. 7/10/06), 933 So.2d 770, 774; Wainwright, 774, So.2d at 74. In reviewing a fact-finder’s conclusion with regard to special damages, an appellate court must satisfy a two-step process based on the record as a whole; there must be no reasonable factual basis for the trial court’s conclusions, and the finding must be clearly wrong. Guillory v. Ins. Co. of North America, 96-1084 (La. 4/8/97), 692 So.2d 1029, 1032.

The record establishes that Mr. Schwartzberg was a twenty-three year old law student at the time of the accident. Before the accident at issue here, Mr. Schwartzberg suffered from anxiety, attention-deficit hyperactivity disorder, bulging of the C3-C4 and C6-C7 intervertebral discs, and chronic neck pain. Mr. Schwartzberg had been involved in several motor vehicle accidents prior to the April 25th accident at issue, the most recent of which occurred on June 7, 2012.

All of Mr. Schwartzberg’s medical records were introduced at trial. Prior to the April 25th accident, Mr. Schwartzberg treated with Metropolitan Health Group, Novamed Surgical Center of Baton Rouge, and his primary physician, Dr. Billy May with the Family Clinic, for his chronic neck pain and other injuries predating the April 25th |7accident. Two days before the April 25th accident, Mr. Schwartzberg received an epidural steroid injection to manage his chronic neck pain.

Immediately following the accident, Mr. Schwartzberg sought treatment at the emergency room at Our Lady of the Lake Regional Medical Center. The notes from the emergency room indicate that Mr. Schwartzberg stated he had been injured in an automobile accident and was experiencing neck pain and a tingling sensation in his left upper extremity. The emergency room records also include notes that Mr. Schwartzberg suffered from chronic neck pain and had just received an epidural steroid injection. Mr. Schwartzberg rated his pain at a 10 on a 10-point scale.

The same day as the accident, Mr. Schwartzberg was also treated by Dr. Keith R. Mack at the Metropolitan Health Group. Dr. Mack noted Mr. Schwartzberg was experiencing headaches, neck pain, upper back pain, muscle spasms, and a radicular pain radiating down his right am. Dr. Mack noted that Mr. Schwartz-berg had previously experienced a decrease in pain as a result of his prior treatment at the Metropolitan Group and the epidural steroid injection; however, now Mr. Schwartzberg rated his pain at a 10 on a 10-point scale. Dr. Mack prescribed several medications and recommended Mr. Schwartzberg undergo physical therapy twice a week.

The only two witnesses who testified at trial were Dr. May and Mr. Schwartzberg. Mr. Schwartzberg testified that as a result of the April 25th accident, he experienced neck pain and sought medical treatment from the day of the accident all the way through a subsequent accident he had on March 12, 2014.

Dr. May testified that he saw Mr. Schwartzberg two weeks after the accident, complaining of headaches and neck pain. Dr. May testified that as a result of the accident, Mr. Schwartzberg had inflamed facet joints and was experiencing muscle spasms. Dr. May’s testimony and notes indicate that it was his expert medical opinion that the April 25th accident aggravated Mr. Schwartzberg’s previous injuries. Dr. May stated that had the accident not occurred, the epidural steroid injection Mr. Schwartzberg received two days before the accident would have given him relief for a considerable period of time. After reviewing an MRI of Mr. Schwartzberg’s spine, Dr. May Isprescribed a treatment protocol called Vax-D, which consists of approximately twenty to twenty-four treatments wherein a computerized decompression table physically separates the vertebral body from a spinal disc and creates a negative intra-discal pressure allowing the disc to be pulled back toward its center position away from the herniated or protruding position to try to decompress off the nerve. Mr. Schwartzberg underwent seventeen sessions of Vax-D from May 13 through July 13, 2013.

As the treating physician for Mr. Schwartzberg’s neck pain, Dr. May established the eleven month duration of the aggravation of Mr. Schwartzberg’s neck injury. Dr. May testified that had the April 25th accident not occurred, Mr. Schwartz-berg would have continued to have chronic neck pain that would be intermittent with some exacerbations; however, Dr. May testified that all of the treatment Mr. Schwartzberg received from April 25, 2013, through March 12, 2014—the date of a subsequent automobile accident in which Mr. Schwartzberg was involved—was for the aggravation of his previous neck injury sustained in the April 25th accident.

In his reasons for judgment, the trial court stated:

After review of the medical testimony and other evidence submitted, this court finds that it is more probable than not that the April 25, 2013 accident was the legal cause of plaintiffs complaints and injuries....
Two days prior to the accident sued upon, the plaintiff received a cervical epidural steroid injection for a previous neck condition. As a result of this accident, he claims that his neck condition was exacerbated and that he injured his right shoulder and experienced headaches and nose bleed. Plaintiff claims, and he testified that, prior to this accident his neck condition was much better, but that immediately after the accident!,] his neck pain got worse. Plaintiff testified that he immediately, at the scene of this accident, felt the pain in his neck that was coupled with nerve sensations into his right shoulder, arm and fingers.
Plaintiff did not deny being in previous accidents. Plaintiff was in a previous accident and another accident after the one that is the subject of this lawsuit. He was in an accident in June 2012 where he suffered an injury to this neck. He was in another accident in March of 2014 where a person ran a stop sign and hit him, but the plaintiff does not claim that he suffered any injury in that accident. After plaintiff was released from OLOL, he followed up with his primary care physician, Dr. Billy May, Dr. Mack at the Metropolitan Health Group, Dr. Najeeb Thomas at the | ¡Southern Brain and Spine Center, Dr. Elizabeth Russo-Stringer at the Spine Diagnostic and Pain Treatment Center, and NO-VAMED Surgical Center, and he also underwent physical therapy and message [sic] therapy.
Dr. Billy May, who was tendered and accepted as an expert in the field of family medicine[,] testified at trial and the records of the remaining doctors that treated the plaintiff were also submitted at trial. Dr. May testified that there was no doubt that the plaintiff was making steady progress and the condition in his neck was improving before this accident. He also discounted that [sic] fact that plaintiff complained of experiencing an 8 out of 10 level of pain just prior to this accident at Dr. Mack’s office, noting that his condition causes some days to be worse than others depending on his activities. Dr. May opined that the plaintiff definitely experienced and [sic] aggravation of his preexisting condition and that the aggravation made his condition worse. One indicator he pointed to was the fact that prior to the accident the plaintiff was not experiencing muscle spasm and the day after the accident Dr. Mack noted muscle spasm.
Based upon the evidence presented, there is no doubt that the accident involved a pretty severe impact between the plaintiffs car and the defendant’s heavy armored truck and the medical evidence establishes more probable than not the plaintiffs health was exacerbated by the accident....

Based on our review of the record, we cannot say the trial court manifestly erred in accepting and relying on the testimony of Mr. Schwartzberg and the expert medical testimony of Dr. May to conclude that Mr. Schwartzberg proved, by a preponderance of the evidence, that the accident at issue caused an eleven-month aggravation of his preexisting neck injury. The trial court was in a superior position to observe and review the demeanor of the witnesses and evaluate their credibility, and we must give great weight to his factual conclusions. See Sportsman Store of Lake Charles, Inc., 748 So.2d at 421; see also Dixon, 842 So.2d at 485.

The trial court awarded Mr. Schwartzberg general damages in the amount of $28,000.00 for past, present, and future pain and suffering. The trial court awarded Mr. Schwartzberg special damages in the amounts of $22,674.45 for his medical expenses, and $1,000.00 for a medical deductible. The trial court reduced the total amount of damages to $49,999.99 in accordance with the stipulation of the parties. Based on our review of the record, we cannot say the trial court’s damages award represents an abuse of its vast discretion.

J^DECREE

Based on the foregoing, we affirm the January 28, 2016 judgment of the trial court. All costs of this appeal are assessed to the defendants, Miller Guillory and Gar-da CL Southeast, Inc.

AFFIRMED.

      . Allstate Fire and Casualty Insurance Company insured the armored van. The insurance policy, No. 9 85 636286 11/15, had liability limits of $15,000 per person and $30,000 per accident (15/30 liability policy).

      . A driver making a left turn has a statutory duty, under La. R.S. 32:122, to "yield the right of way to all vehicles approaching from the opposite direction which are within the intersection or so close thereto as to constitute an immediate hazard.” A left-turning motorist involved in a collision that occurs across the center line is burdened with the presumption that he is at fault, and he must offer evidence to show that he is free from negligence to avoid the imposition of liability. Miller v. Leonard, 588 So.2d 79, 83 (La. 1991).

      .Prior to trial, the parties stipulated to the admission of certain evidence. Additionally, the trial court granted partial summary judgment in favor of Mr. Schwartzberg on the issue of liability, finding the defendants to be 100% at fault for the accident. See La. C.C.P. arts. 1915(A)(1)(3), 1915(B), and 966(E).


author: McDonald, j.

text:
    MIE PROPERTIES-LA, L.L.C. v. Joseph E. CAREY, Holly L. Carey and Heaux Jeaux’s, L.L.C.
    2016 CA 0763
    Court of Appeal of Louisiana, First Circuit.
    February 17, 2017

      Larry S. Bankston, Jenna H. Linn, Baton Rouge, Louisiana, Attorneys for Plaintiff/Appellee, MIE Properties-LA, L.L.C.
    John S. Odom, Jr., Shreveport, Louisiana, Attorney for Defendant/Appellant, Joseph E. Carey
    BEFORE: PETTIGREW, McDonald, and calloway , jj.

       Judge Curtis A. Calloway, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   McDonald, j.

12This is an appeal from a judgment awarding past due lease payments, maintenance fees and taxes, and attorney fees. The appellant asserts that the trial court erred in failing to grant him relief under the Servicemembers Civil Relief Act, 50 U.S.C.A. § 3901, et seq. (the SCRA).

FACTS AND PROCEDURAL HISTORY

On August 5, 2011, Heaux Jeaux’s, L.L.C. (Heaux Jeaux’s) entered into a commercial lease with MIE Properties-LA, L.L.C. (MIE Properties) for a suite in a building at 14241 Airline Highway to open a bar. Joe Carey signed the lease agreement for Heaux Jeaux’s. Joe Carey and Holly Carey were married at that time and were the co-owners of Heaux Jeaux’s.

The lease had a term of five years, starting on February 1, 2012 and ending on January 31, 2017. The yearly rent total was $33,000.00, subject to an annual rent increase, and payable in advance each month in the amount of $2,750.00, along with taxes and common area fees. Mr. Carey and Ms. Carey each signed in solido guarantees agreeing to unconditionally pay MIE Properties in accordance with the lease. The in solido guarantee provides in part that “the undersigned hereby makes himself or itself a party to the Lease and bind[s] himself or itself in solido with the Lessee”.

An amendment to the lease was entered into between Heaux Jeaux’s and MIE Properties on December 7, 2011, changing the commencement date of the lease to July 1, 2012. Mr. Carey was called to active duty by the Louisiana National Guard on February 7, 2013. Heaux Jeaux’s was not able to turn a profit, and on August 8, 2013, Ms. Carey turned over the keys to MIE Properties and vacated the premises.

On April 7, 2014, MIE Properties filed suit on the lease for $68,358.01, together with legal interest from date of demand, reasonable attorney fees, and 1.«¡costs, naming as defendants Heaux Jeaux’s, L.L.C., Joseph Carey, and Holly Carey. MIE Properties averred that the total amount of $68,358.01 included $44,201.50 in past due rental payments, $15,021.29 for late fees, and $9,039.36 for common area maintenance and taxes due. MIE Properties maintained that it had retaken possession of the premises without terminating the lease and would attempt to lease the premises to another tenant; however, the tenants were liable for the additional monthly rent and related costs for each month that the premises remained vacant until the lease ended on June 30, 2017.

On May 28, 2014, Ms. Carey, individually and on behalf of Heaux Jeaux’s, filed a general denial asking for judgment in her favor and against MIE Properties in a sum to be determined at trial. On June 2, 2014, Mr. Carey submitted notice requesting termination of the lease under the SCRA by sliding a letter under the locked door of MIE Properties. Todd Pevey, Vice President of MIE Properties, acknowledged that he received the letter in June 2014. On June 10, 2014, Mr. Carey and Ms. Carey were divorced.

On June 12, 2014, Mr. Carey filed an answer generally denying the allegations of the suit, asserting that he had been on active military duty since February 7, 2013, and seeking relief under the SCRA.

A trial on the merits was held on September 8, 2016. Thereafter, the district court ruled in favor of MIE Properties and against Mr. Carey, Ms. Carey, and Heaux Jeaux’s in solido for $137,782.47 in damages, together with $21,500.00 in attorney fees, and all costs. The judgment was signed on March 14, 2016. Mr. Carey filed a devolutive appeal on May 6,2016.

Mr. Carey makes the following assignments of error.

1. The trial court committed reversible error when it failed to find that the changing of the locks on the bar in August 2013 constituted an unlawful non-judicial constructive eviction Rnotice of Joseph Carey, a person protected by [the SCRA].
2. The trial court committed reversible error when it failed to find that the seizure and sale of the beer from Heaux Jeaux’s in August 2013 without either a valid court order or a valid waiver of SCRA rights having been obtained from Joseph Carey violated [the SCRA],
3. The trial court committed reversible error when it failed to find that the hand delivery of the June 2, 2014 lease termination notice to MIE from Joseph Carey (P. Ex. 24), the receipt of which was acknowledged by MIE’s agent, Todd Pevey, validly terminated the lease under the SCRA effective July 31, 2014, pursuant to [the SCRA].
4. The trial court committed reversible error when it awarded excessive damages to plaintiff; and
5. The trial court committed reversible error when it awarded excessive attorneys fees to plaintiff.

(Footnote omitted.)

ASSIGNMENT OF ERROR NO. 1

|fiIn this assignment of error, Mr. Carey asserts that the trial court committed reversible error when it failed to find that the changing of the locks at Heaux Jeaux’s in August 2013 constituted a constructive eviction as to him because he was protected by the SCRA.

Mr. Carey testified at trial that after his military deployment on February 7, 2013, he turned over all management of Heaux Jeaux’s to Ms. Carey. Thus, when Ms. Carey voluntarily turned over the keys to the premises to MIE Properties and vacated the premises on August 8, 2013, she acted on behalf of both herself and Mr. Carey as the managing owner of the business.

Therefore, we find no error by the trial court in its determination that Mr. Carey was not unlawfully evicted from the premises by MIE Properties. This assignment of eiTor has no merit.

ASSIGNMENT OF ERROR NO. 2

In this assignment of error, Mr. Carey asserts that the trial court committed reversible error by failing to find an invalid seizure and sale of beer from Heaux Jeaux’s in August of 2013 without either a valid court order or a valid waiver of his SCRA rights.

As noted above, Ms. Carey decided to close down the business, and thereafter voluntarily surrendered the keys to the leased premises to MIE Properties and vacated the premises on August 8, 2013. Ms. Carey left behind inventory in the bar, including alcohol and beer. Mr. Pevey testified that as the beer had an expiration date, MIE Properties sold it and applied the proceeds, $360.00, to the amount due under the lease. As Ms. Carey was the managing owner of Heaux Jeaux’s with Mr. Carey’s consent, and voluntarily turned over the keys and vacated the premises, leaving the inventory behind, we find no error by the trial court in its determination that there was no invalid seizure and sale of the beer. This assignment of error has no merit.

ASSIGNMENT OF ERROR NO. 3

In this assignment of error, Mr. Carey asserts that the trial court committed reversible error when it failed to find that his hand delivery of the June 2, 2014 lease termination notice to MIE Properties, the receipt of which was acknowledged by Mr. Pevey, validly terminated the lease under the SCRA.

Mr. Carey delivered the termination of lease notice to MIE Properties on June 2, 2014, by sliding it under the door of MIE Properties, which was closed at that time. Mr. Pevey acknowledged at trial that he received the notice in June of 2014, although he could not remember which day he received it.

The SCRA provides in part at 50 U.S.C.A. § 3955:

(a) Termination by lessee
(1) In general
IfiThe lessee on a lease described in subsection (b) may, at the lessee’s option, terminate the lease at any time after—
(A) the lessee’s entry into military service; or
(B) the date of the lessee’s military orders described in paragraph (1)(B) or
(2)(B) of subsection (b), as the case may be.
⅜ jfc ⅜: sfc ⅝
(b) Covered leases

This section applies to the following leases:

(1) Leases of premises
A lease of premises occupied, or intended to be occupied, by a servicemember or a servicemember’s dependents for a residential, professional, business, agricultural, or similar purpose if—
(A) the lease is executed by or on behalf of a person who thereafter and during the term of the lease enters military service; or
(B) the servicemember, while in military service, executes the lease and thereafter receives military orders for a permanent change of station or to deploy with a military unit, or as an individual in support of a military operation, for a period of not less than 90 days.
* * ⅛ # #
(c) Manner of termination
(1) In general
Termination of a lease under subsection (a) is made—
(A) by delivery by the lessee of written notice of such termination, and a copy of the servicemember’s military orders, to the lessor (or the lessor’s grantee), or to the lessor’s agent (or the agent’s grantee); and
⅜ * * * *
(2) Delivery of notice
Delivery of notice under paragraph (1)(A) may be accomplished—
(A) by hand delivery;
(B) by private business carrier; or
(C) by placing the written notice in an envelope with sufficient postage and with return receipt requested, and addressed as designated |7by the lessor (or the lessor’s grantee) or to the lessor’s agent (or the agent’s grantee), and depositing the written notice in the United States mails.
(d) Effective date of lease termination
(1) Lease of premises
In the case of a lease described in subsection (b)(1) that provides for monthly payment of rent, termination of the lease under subsection (a) is effective 30 days after the first date on which the next rental payment is due and payable after the date on which the notice under subsection (c) is delivered. In the case of any other lease described in subsection (b)(1), termination of the lease under subsection (a) is effective on the last day of the month following the month in which the notice is delivered.
⅜⅜⅜⅜⅜
(e) Arrearages and other obligations and liabilities
(1) Leases of premises
Rent amounts for a lease described in subsection (b)(1) that are unpaid for the period preceding the effective date of the lease termination shall be paid on a prorated basis. The lessor may not impose an early termination charge, but any taxes, summonses, or other obligations and liabilities of the lessee in accordance with the terms of the lease, including reasonable charges to the lessee for excess wear, that are due and unpaid at the time of termination of the lease shall be paid by the lessee.
⅜ ⅜ ⅜ ⅝ sfc
(i) Definitions
(1) Military orders
The terra “military orders”, with respect to a servicemember, means official military orders, or any notification, cei’-tification, or verification from the ser-vicemember’s commanding officer, with respect to the servicemember’s current or future military duty status.
(2) ConUS
The term “continental United States” means the 48 contiguous States and the District of Columbia.

The method provided for termination of a lease under the SCRA is permissive. It provides that termination “may” be accomplished by hand delivery, private business carrier, or by U.S. mail with return receipt requested. The |8permissive use of “may” rather than “shall” or “must” indicates that other methods may be used. As Mr. Pevey verified that he received the termination notice in June 2014, we find that the delivery system used by Mr. Carey was sufficient notice of termination. Thus, the termination was effective “on the last day of the month following the month in which the notice is delivered.” Notice was delivered and received by MIE Properties in June of 2014, so the termination was effective on July 31, 2014.

Therefore, we find that the trial court committed legal error when it failed to find that Mr. Care/s hand delivery of the June 2, 2014 lease termination notice to MIE Properties, the receipt of which was acknowledged by Mr. Pevey, validly terminated the lease as to Mr. Carey under the SCRA, effective July 31, 2014. This assignment of eiTor has merit.

ASSIGNMENT OF ERROR NO. 4

In this assignment of error, Mr. Carey asserts that the trial court erred in awarding excessive damages to MIE Properties. First, Mr. Carey maintains, and we have found, that the delivery and receipt of the June 2, 2014 termination letter constituted termination of the lease as to Mr. Carey on July 31, 2014. Further, Mr. Carey maintains that he and Ms. Carey entered into an oral agreement with MIE Properties during the course of the lease to reduce the rent from $2,750.00 to $1,500.00 per month.

Mr. Pevey testified at trial that Heaux Jeaux’s had trouble making the lease payments from the beginning of the lease period, so MIE Properties entered into an oral agreement with Mr. Carey and Ms. Carey to allow them to pay a temporary reduced rent payment of $1500.00 per month, with the remainder of the rent payment deferred to a later time. He noted that any permanent reduction in rent would have had to have been put in writing, pursuant to the terms of the lease.

Bo Diez, the leasing and marketing director for MIE Properties at the)irrelevant time period, likewise testified that the reduction of rent from $2,750.00 to $1,500.00 per month was a temporary deferral of rent that would be paid later, in an attempt to “work with” Heaux Jeaux’s to let them “catch up” and get back on their feet. The notices of payments due sent from MIE Properties to Heaux Jeaux’s also reflected that the reduced rental payments were only providing a temporary deferral of the remainder of the rent owed. By contrast, Mr. Carey testified at trial that the reduction of rent to $1,500.00 per month was not a deferral of the balance, but rather a renegotiated rental payment.

Based on the totality of the evidence, including the lease requirement that any change to the lease be put into writing, we cannot say that the trial court erred in finding that the $1,500.00 lease payments were a temporary deferral of the remainder owed on the lease, rather than a permanent reduction of the lease payments. However, as we have found that Mr. Carey’s termination of the lease under the SCRA was effective as to him on July 31, 2014, we find that the trial court erred in holding Mr. Carey liable for lease payments, common area maintenance fees, management fees and late fees past July 31, 2014. This assignment of error has merit.

Mr. Carey also maintains that the trial court erred in accepting MIE Properties’ accounting of late charges, which he avers are overstated by $12,503.50. He maintains that the late fee should only be based on the monthly amount due for rent, common area fees, and management fees, and not the accrued balance owed. MIE Properties maintains that this issue was not raised at the trial court, and thus, cannot be raised on appeal. However, we note that in his answer to the petition for damages, Mr. Carey denied all allegations in the petition. Further, at trial Mr. Carey did not agree that the amounts shown as due in the statements were in fact correctly calculated. He testified that the parties had renegotiated the lease to $1,500.00 per month.

11flThe lease provides that:

If Tenant shall fail to pay when due, the said Annual Rent, Additional Rent or any other sum required by the terms of this Lease to be paid by Tenant, then, upon the happening of any such event, and in addition to any and all other remedies that may thereby accrue to Landlord, Tenant agrees to pay to Landlord a late charge of five percent (5%) of the monthly account balance. The late charge on the base rent accrues after ten (10) days of the due date and said late charges shall be collectible as Additional Rent.

The language of the lease specifically provides that the late charge is 5 percent of the “monthly account balance”, and that the late charge on the “base rent” accrues after 10 days of the due date. It does not provide that the late charge is 5 percent of the accrued balance.

In ease of doubt that cannot be otherwise resolved, a provision in a contract must be interpreted against the party who furnished its text. A contract executed in a standard form of one party must be interpreted, in case of doubt, in favor of the other party. La. C.C. art. 2056. See Crum v. Crum, 330 So.2d 925 (La. App. 1 Cir. 1976). Herein, we find that the contract is ambiguous, and thus must be interpreted against MIE Properties. We find that the trial court erred in finding Mr. Carey liable for 5 percent interest on the accrued balance.

The amount of base rent due for December 2012 through June 2013 is rent of $2,750.00 per month, with common area maintenance fees of 423.33 per month, management fees of $137.50 per month, and a 5 percent late fee of $165.54 per month, for a total of $3,476.37 per month. For seven months, this amounts to $24,334.59.

With a 3 percent increase in base rent and management fees per annum, for July 2013 through June 2014 the base rent due is $2,832.50, with common area maintenance fees of $423.33, management fees of $141.63, and a 5 percent late fee of $169.87, for a total of $3,567.33. For 12 months, this amounts to $42,807.96.

In With the next 3 percent increase in base rent and management fees per an-num, for July 2014 (the last month of the lease), the base rent due is $2,917.48, plus common area maintenance fees of $423.33, management fees of $145.87, and a 5 percent late fee of $174.33, for a total of $3,661.01.

We add the amounts of $24,334.59, $42,807.96, and $3,661.01 for a grand total of $70,803.56 due by Mr. Carey on the lease. Thus, we amend the award of damages due by Mr. Carey on the lease to MIE Properties from $137,782.47 to $70,803.56.

ASSIGNMENT OF ERROR NO. 5

In this assignment of error, Mr. Carey asserts that the trial court committed reversible error in awarding excessive attorney fees to MIE Properties. There was no evidence in the record regarding attorney fees, and the tidal court did not give any reasons for its attorney fees award in the amount of $21,500.00. The lease agreement provides for attorney fees in the amount of 10 percent of the amount claimed, and also provides that in the event of a successful legal action to enforce the terms of the lease, the losing party agreed to pay all reasonable expenses to the prevailing party, including attorney fees.

The trial court has much discretion in fixing an award of attorney fees, and its award will not be modified on appeal absent a showing of an abuse of discretion. An attorney fee must be “reasonable.” The amount is regulated by the Rules of Professional Conduct. Regions Bank v. Automax USA, L.L.C., 2002-1755 (La.App. 1 Cir. 6/27/03), 858 So.2d 593, 595-96, writ denied, 2003-2131 (La. 11/7/03), 857 So.2d 503.

Rule 1.5(a) of the Rules of Professional Conduct provides the following factors to determine an attorney fee:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
|,¾(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
8) whether the fee is fixed or contingent.

We find that, after consideration of the factors used in determining a reasonable attorney fee, and considering the lease agreement provision for a 10 percent attorney fee, the trial court erred in its award of attorney fees in the amount of $21,500.00, which we find excessive under the circumstances of this relatively simple case. We find that 10 percent of the amended damage award, $7,080.36, is a reasonable attorney fee in this case.

CONCLUSION

For the foregoing reasons, the trial court judgment, awarding $137,782.47 in damages to MIE Properties, against Mr. Carey, Ms. Carey, and Heaux Jeaux’s, in solido, is amended as to Mr. Carey, and the award against Mr. Carey is amended to $70,080.36. The award of $21,500.00 in attorney fees to MIE Properties against Mr. Carey, Ms. Carey, and Heaux Jeaux’s, in solido, is amended as to Mr. Carey, and the attorney fees award against Mr. Carey is amended to $7,080.36. As amended, the trial court judgment is affirmed. Costs of this appeal are assessed against MIE Properties.

AMENDED, AND AS AMENDED, AFFIRMED.

      . We note that the amounts listed total $68,262.15, rather than $68,358.01.

      . Ms. Carey did not appear at trial and did not appeal the judgment.

      . Mr. Carey also testified that in April of 2013 Ms. Carey obtained a restraining order against him that provided that he was not allowed to go "near Heaux Jeaux’s”.

      . Mr. Pevey testified at trial after all payments were credited, Heaux Jeaux’s was paid up on the lease through December 1, 2012.