source: Caselaw Access Project

author: GREMILLION, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Dudley MELANCON, Jr. -aka- Dudley Melancon
    17-944
    Court of Appeal of Louisiana, Third Circuit.
    April 18, 2018
    John F. DeRosier, Fourteenth Judicial District Attorney, Carla S. Sigler, Assistant District Attorney, Elizabeth B. Hollins, Assistant District Attorney, 901 Lakeshore Drive, Suite 800, Lake Charles, LA 70601, (337) 437-3400, COUNSEL FOR APPELLEE: State of Louisiana
    Paula C. Marx, Louisiana Appellate Project, P. O. Box 82389, Lafayette, LA 70598-2389, (337) 991-9757, COUNSEL FOR DEFENDANT/APPELLANT: Dudley Melancon, Jr.
    Court composed of Shannon J. Gremillion, Phyllis M. Keaty, and D. Kent Savoie, Judges.
   GREMILLION, Judge.

Defendant, Dudley Melancon Jr., was charged as a habitual offender on December 27, 2016. The bill of information alleged Defendant was previously convicted of second degree battery, a violation of La.R.S. 14:34.1, on March 9, 2009, and of simple robbery, violations of La.R.S. 14:65, on September 15, 2015, and on August 31, 2016. The August 31, 2016 conviction for simple robbery is now pending before this court in docket number 17-943. All three felonies are statutorily identified as crimes of violence. La.R.S. 14:2(B)(6) and (23).

At the March 24, 2017 hearing on the habitual offender bill, appointed counsel requested the trial court defer the matter pending appellate resolution of both simple robbery convictions. The trial court denied the request and sentenced Defendant to life imprisonment without benefit of probation, parole, or suspension of sentence.

Defendant filed a pro se motion to reconsider his sentence on May 5, 2017, on grounds his September 29, 2015 conviction in St. Landry Parish was the subject of a pending appeal. The trial court denied the motion in written reasons on August 14, 2017. Defendant now seeks review of his habitual offender adjudication and his statutorily-mandated life sentence.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues the trial court erred in sentencing him to life in prison without benefit of probation, parole, or suspension of sentence where his predicate offenses are simple robbery and second degree battery, with imposed sentences of no more than seven years at hard labor. Defendant presented no witnesses at the habitual offender hearing.

Louisiana Revised Statutes 15:529.1(A)(3)(b) provides that a third felony offender "shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence" when the three felonies are classified as crimes of violence pursuant to La.R.S. 14:2(B). Simple robbery and second degree battery are classified as crimes of violence. La.R.S. 14:2(B)(23) and (6). Thus, La.R.S. 15:529.1 requires Defendant to be sentenced to life imprisonment without benefits.

Although a trial court should give great deference to a statutory sentence, it may:

declare a sentence excessive under Article I, Section 20 of the Louisiana Constitution, although it falls within the statutory limits provided by the Legislature. State v. Sepulvado , 367 So.2d 762, 767 (La.1979). In State v. Dorthey, supra, this Court recognized that this power extends to the minimum sentences mandated by the Habitual Offender Law. Id. at 1280-81. However, this power should be exercised only when the court is clearly and firmly convinced that the minimum sentence is excessive.

State v. Johnson , 97-1906, p. 6 (La. 3/4/98), 709 So.2d 672, 676. The trial court may only depart from the statutory minimum "if it finds that there is clear and convincing evidence" to rebut a "presumption of constitutionality." Id. The non-violent nature of a defendant's criminal history by itself does not rebut that presumption. In order for a defendant to rebut the presumption, he must clearly and convincingly show that:

[he] is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.

State v. Young , 94-1636 at pp. 5-6 (La. App. 10/26/95), 663 So.2d 525, 528. (Plotkin, J., concurring). Further, "the trial judge must also keep in mind the goals of the Habitual Offender Law ... to deter and punish recidivism." Johnson , 709 So.2d at 677. Once the trial court determines that a sentence is excessive, it "must sentence the defendant to the longest sentence which is not constitutionally excessive .... [and] articulate specific reasons why the sentence he imposes instead of the statutory mandatory minimum is the longest sentence which is not excessive under the Louisiana Constitution." Id. The Johnson court determined the defendant did not bear his burden of proving by clear and convincing evidence that his sentence was excessive, and it remanded the matter for resentencing to the statutorily-mandated term.

Defendant pled guilty to second degree battery in Lafayette Parish and was sentenced to five years at hard labor on March 9, 2009, as the result of an incident on November 1, 2008. Lieutenant Judith Estorge of the Lafayette Police Department testified that Defendant ordered a gunman to shoot the victim during an attempted drug deal. When the victim unsuccessfully tried to exchange a watch and money for drugs, Defendant told the shooter, "That's bull shit. Pop him." Lieutenant Estorge testified the victim was in the driver's seat of a vehicle, and he had a passenger with him. As he drove away from the scene, he was hit twice in the back.

According to the plea agreement, the sentence was to run concurrently to a sentence on a prior conviction for aggravated assault, a misdemeanor. Apparently, Defendant was placed on probation for second degree battery; documents submitted during the habitual offender hearing showed his probation was revoked on July 21, 2009.

Defendant was charged with first degree robbery in St. Landry Parish as the result of an incident on December 30, 2013. He drove a getaway car for another man who gave a note to a truck stop casino cashier, demanded money, and robbed her of approximately $1,800. This was almost the exact amount found on Defendant at the time of his arrest. State v. Melancon , 16-191 (La.App. 3 Cir. 12/7/16), 208 So.3d 400, writ denied , 17-26 (La. 9/15/17), 225 So.3d 485. He was convicted by a jury on September 29, 2015, of simple robbery (as a principal) and sentenced to five years at hard labor.

At the March 24, 2017 habitual offender hearing, however, Glen Marcantel of the St. Landry Parish District Attorney's Office testified he prosecuted Defendant, who "went into a casino and he presented a cashier with a note saying give me everything or you'll be dead, something to that effect." No evidence was submitted on Defendant's behalf to show this court's opinion portrayed a different set of facts. Additionally, Angela Aymond of the Probation and Parole Department testified at the hearing that Defendant voluntarily revoked his parole after he was arrested on the St. Landry Parish charge.

Defendant was next charged with first degree robbery in Calcasieu Parish after an incident on May 7, 2014. He robbed the victim of a bank bag and its contents. He never contested the fact he committed a simple robbery; he went to trial to defend the allegation that he led the victim to believe he had a dangerous weapon. A jury rendered a responsive verdict of guilty of simple robbery on August 31, 2016. The trial court sentenced Defendant to serve seven years at hard labor, with credit for time served and to run concurrently to any other sentence Defendant may have been serving at the time. The conviction led to the filing of the habitual offender bill seeking to adjudicate Defendant a third felony offender.

At the habitual offender hearing, Defendant argued for a downward departure from the mandatory life sentence pursuant to State v. Dorthey , 623 So.2d 1276 (La.1993). He noted that he was never proven to have a weapon in any of the three crimes. Further, he contended his life imprisonment would impose an undue financial burden on Louisiana taxpayers. While he believed the legislative purpose would be served by sentencing him "to a lengthy prison sentence," he thought a life sentence would be excessive, one that shocks the conscience, and "simply vengeance[.]" He offered no witness testimony or any other evidence.

The State, on the other hand, noted the plain language of the habitual offender statute that requires a life sentence after the third felony involving a crime of violence. Counsel noted Defendant's willingness to instruct his accomplice to kill a victim who was actually shot twice. He noted Defendant had been incarcerated much of the time between the predicate offenses.

Defendant cites State v. Wilson , 37,555 (La.App. 2 Cir. 11/6/03), 859 So.2d 957, writ denied , 03-3232 (La. 6/4/04), 876 So.2d 73, to support his argument for a less-than-life sentence. The defendant in Wilson was convicted of first degree robbery as his fourth felony offense. However, his three prior felonies were non-violent crimes for issuing worthless checks and for illegal possession of stolen things. Those offenses led to sentences of six months, ten months, and two years. The six-month sentence and the two-year sentence were suspended and revoked for failure to report to the probation officer, and the ten-month sentence was ordered to be served concurrently. The defendant was forty-two years old and homeless. He was depressed about the death of his son in a train accident approximately nine months prior to the robbery. The defendant had a history of drug and alcohol abuse. He was drunk when he committed the robbery, and he "felt 'hopeless.' " Id. at 964. His victim never felt threatened by him.

The second circuit found "a sentence less than life would afford him at least some opportunity to overcome his problems while incarcerated and offer him a modicum of hope." Id. The court considered the taxpayer cost of life imprisonment would only increase as the defendant aged. Based on "clear and convincing evidence that this defendant is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case[,]" the court vacated his life sentence and remanded the matter to the trial court for resentencing. Id.

Defendant's situation here is distinguishable from Wilson , 859 So.2d 957. Defendant, twenty-nine years old, merely argued the financial burden on the taxpayers is too great to support a life sentence. He offered no evidence to show he was exceptional or the product of any unusual circumstances. In the second degree battery conviction, the victim and his passenger were placed in great danger by the actions of Defendant and his accomplice. Defendant apparently received probation as a result of this violent crime, but he failed to take advantage of that opportunity to change his life. Defendant acted as a principal to a casino robbery during his second felony, the first simple robbery offense. Defendant's victim in his third felony, another simple robbery less than six months after the casino robbery, testified that Defendant said he was going to kill her. She said, "He made me believe that I was gonna [sic] die."

Accordingly, Defendant has shown no justification for a downward departure from the mandatory life sentence required for a third felony offender convicted of three crimes of violence.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant also contends the trial court erred in denying his motion to continue the habitual offender hearing and sentencing. He claims the trial court should have granted a continuance to protect his rights.

A discussion occurred at the beginning of the hearing about who actually represented Defendant. A representative of Defendant's previously-hired counsel explained a fee dispute had arisen between counsel and Defendant's mother. The trial court noted that the Public Defender's Office was appointed prior to the hearing, and he felt that appointment resolved the issue of who represented Defendant at the hearing.

Appointed counsel then asked the trial court to defer the hearing pending resolution of Defendant's writ application to the Louisiana Supreme Court concerning his St. Landry Parish conviction for simple robbery. The trial court refused to delay the hearing for that purpose and noted Defendant's objection.

Defendant never indicated any other reason to continue the hearing. In his appeal, he identifies no problem with his representation, no rights violated by going forward with the hearing, and no resulting prejudice. Since that hearing, the Louisiana Supreme Court has denied Defendant's writ application on the first simple robbery conviction. Melancon , 225 So.3d 485.

Defendant has failed to show how any of his rights were denied or how any prejudice resulted from the failure to grant a continuance of the hearing. This assignment of error lacks merit.

DECREE

Defendant's adjudication as a third felony offender and his mandatory life sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED .

      This court's opinion in State v. Melancon , 16-191 (La.App. 3 Cir. 12/7/16), 208 So.3d 400, writ denied , 17-26 (La. 9/15/17), 225 So.3d 485, shows the date of one of Defendant's simple robbery convictions as September 29, 2015.


author: KYZAR, Judge.

text:
    STATE of Louisiana v. Jose Isreal AYALA, III
    17-1041
    Court of Appeal of Louisiana, Third Circuit.
    April 18, 2018
    Peggy J. Sullivan, Louisiana Appellate Project, P.O. Box 2806, Monroe, LA 71207-2806, (318) 855-6038, COUNSEL FOR DEFENDANT/APPELLANT: Jose Isreal Ayala, III
    Asa Allen Skinner, District Attorney, Terry Wayne Lambright, First Assistant District Attorney, 30th Judicial District, P.O. Box 1188, Leesville, LA 71446-1188, (337) 239-2008, COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders and Van H. Kyzar, Judges.
   KYZAR, Judge.

The defendant, Jose Isreal Ayala, III, appeals his sentences imposed following guilty pleas to the offenses of manslaughter and obstruction of justice, entered pursuant to a plea agreement with the State of Louisiana. For the reasons assigned, we affirm.

Facts and Procedural History

Defendant was indicted on September 4, 2014 by the Vernon Parish Grand Jury for second degree murder and obstruction of justice, violations of La.R.S. 14:30.1 and La.R.S. 14:130.1. On April 27, 2017, Defendant pled guilty to the lesser offense of manslaughter and to obstruction of justice, along with the offense of aggravated escape, an offense charged under a separate docket number and which is also subject to an appeal of the sentence imposed in a separate appeal before this court.

The record contains the following facts recited at the plea hearing:

BY MR. SEASTRUNK:
Yes, sir, Judge, under the Bill of Indictment 86,777, the State believes that it could show that back on the morning of March the 29th, 2014, the State submits that the evidence will show that the victim, Jamie (spelled phonetically) Stephens, went to the home of Shannon Perkins, who he had dated off and on. Shannon's daughter, Cassandra Ward, a codefendant, had spent the night there with the defendant, Jose Ayala, and Cassandra's daughter, Ryleigh. The State submits that as Cassandra Ward saw Jamie Stephens walking up the driveway, she instructed the defendant to take her daughter and go into a room in the rear of the trailer. The State submits that Jamie Stephens walked up the driveway to the rear porch of Shannon's trailer to a sliding glass door, where he was confronted by Cassandra Ward. It is contended that, through the glass door, Cassandra Ward advised Jamie that her mother was not there and that he needed to leave. We submit that words may have been exchanged, but the evidence would show that the victim had no weapon, that the victim made no attempt to get into the home. The evidence would show that, without cause and without solicitation, the defendant, Jose Ayala, emerged from the back room of the trailer and handed Cassandra Ward her daughter, Ryleigh, moving quickly, urgently down the hall to a rear door that opened unto-onto the back porch. The State submits that a room rented by the defendant, at the end of the hall, contains what the State contends was an S.K.S. rifle, which the defendant grabbed prior to going onto the porch. The state submits that the defendant, Ayala, intentionally confronted Jamie Stephens, although Jamie had not engaged the defendant, had not confronted the defendant in any manner. Jamie had not attempted to get into the home, and the defendant was safely locked inside the home. Yet, the defendant intentionally exited onto the porch and confronted Jamie, while armed with a firearm. The State submits that the codefendant, Cassandra Ward, heard the defendant fire what she believed, Judge, was a warning shot and sees the victim turn from the sliding glass door toward the rear side door and telling the defendant, "I'm not afraid of you," and then she hears four or five rapid shots. The evidence would show that the defendant re-enters the trailer, requesting a blanket to cover the victim's body, where the codefendant gives the defendant a blanket. Thereafter, Cassandra Ward hears the defendant make a phone call to another codefendant, Matthew Andrews, telling him, bring the shovels. The evidence will show that Matthew Andrews showed up at 2409 [sic] Bailey Road with the shovels and helped defendant, Ayala, load the victim's body into Cassandra Ward's vehicle. The evidence will show that the parties, along with Cassandra Ward's daughter, traveled to a location out on Highway 1211 in Vernon Parish, Louisiana where they dug a shallow grave and buried the body of James Stephens. Thereafter, the State submits that the defendant traveled back to 2409 [sic] Bailey Road, where he, along with the codefendant, Cassandra Ward, used [a] water hose and bleach to destroy the evidence of Jamie's murder. Washed the grass, washed the porch, bleached the porch to conceal the-the murder. It was further contended by the State, that within the week after Jamie's murder, that the defendant revisited Jamie's body, the site where they had buried him. That this defendant dug his body up, removed his clothes, his shoes, his socks, his pants, his underwear, his shirt, took those items, traveled to the home of another codefendant, Robert Worth, and as Robert Worth and Cassandra War[d] watched, burned Jamie's clothes, burned their clothes, for the purpose of destroying evidence. It is further contended by the State that this defendant instructed the codefendant, Cassandra Ward, to dispose of the weapon and the digging in-implements. The digging implements were discarded behind a dumpster behind a place known as "Rudy's Bar-B-Q" over in Spring, Texas. The gun was given to an unknown individual, those arrangements having been set up by the defendant, Jose Ayala. The digging implements were later recovered by the Sheriff's Office here in Vernon Parish. The State could-believes that it could further show that this defendant bragged to another codefendant, Robert Worth, that, "Yes, I shot Jamie Stephens. It was the sloppiest murder I ever done." The State would submit this factual recitation along with all of the answers to discovery and the entire suit and file into evidence in support of the charges of second degree murder and the charge of obstruction of justice.

On June 29, 2017, the district court reviewed a pre-sentence investigation, reviewed letters, and heard from witnesses, before sentencing Defendant to forty years each for manslaughter and obstruction of justice. The sentences were ordered to run consecutively. Defendant filed a written Motion to Reconsider Sentence on July 7, 2017. The trial court denied the motion on July 12.

Defendant now appeals. In his sole assignment of error, Defendant argues that the forty-year sentences imposed for each offense, to be served consecutively, are excessive.

Errors Patent

In accordance with Louisiana Code of Criminal Procedure Article 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find there are no errors patent.

Opinion

In his sole assignment of error, Defendant argues that his forty-year sentences are excessive. The sentence imposed by the trial court for each of the offenses to which the defendant pled guilty are the maximum sentences. See La.R.S. 14:31(B) and La.R.S. 14:130.1(B)(1). The law is well settled concerning the standard of review to be used in excessive sentence claims:

La. Const. art. I, § 20 guarantees that, "[n]o law shall subject any person to cruel or unusual punishment." To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell , 404 So.2d 1205 (La. 1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne , 99-192 (La.App. 3 Cir. 10/13/99), 746 So.2d 124, writ denied , 00-0165 (La.6/30/00), 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook , 95-2784 (La. 5/31/96), 674 So.2d 957, cert. denied , 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

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

Sentences falling within statutory sentencing ranges may still be unconstitutionally excessive if they shock the sense of justice or make no meaningful contribution to acceptable penal goals. Several factors may be considered when reviewing such a sentence for excessiveness:

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

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

In this case, Defendant pled guilty pursuant to a plea agreement whereby the State amended the originally indicted second degree murder charge to manslaughter. The trial court gave extensive oral reasons for the sentences imposed for the two offenses at issue here.

The court first noted that the victim was shot multiple times with a rifle and that Defendant was originally charged with second degree murder, such that the plea agreement allowing Defendant to plead guilty to manslaughter amounted to a substantial benefit in his favor, and that Defendant also benefited by the dismissal of other charges in connection with the plea. The sentencing judge further considered mitigating factors offered by Defendant at the sentencing, including multiple letters submitted by family and friends on his behalf, Defendant's youth, being only 27 years old, and his military service primarily as a military police officer. The court noted, however, that Defendant had been discharged from the U.S. Army after repeatedly being found using or possessing marijuana and had three convictions for marijuana possession. The court also noted Mr. Ayala's attempt to blame his then-girlfriend for the murder and the fact that she was also charged in connection with the case, but eventually concluded that such would not exonerate or excuse Defendant from his involvement in the crime as a principal even if his version were true. Finally, yet significantly, the court considered the lack of remorse shown by Defendant for the results of his actions, as follows:

What is very interesting to this court as well is I read through all of this stuff and I took the time to do it 'cause I wanted to be fair to Mr. Ayala and see what he had to say. And he often expressed regret for some things that happened, regret. Never did I glean from anything I read from him that he had any kind of remorse for what happened to the victim and the victim's family and the-the agony they have had to go through. That tells me a lot about him. I think both of them were evil people. People who could end up in something that would result in someone's death and not seek to do the right thing about it. And the consequences are that many, many lives now have been involved and affected for the rest of their lives and it could have been a lot different if common sense and decency had been [ ] involved in this whole process. We've got a family, including two children-two small children, who have a family member who was killed brutally and senselessly.
They won't see him. They have memories. They have pictures. They have thoughts, but they won't see him. Two children will grow up-gonna grow up without a father. And from what I understand he was divorced, but he had involvement with his children and they I'm sure have missed him and will miss him as they grow up. Certain milestones, like graduating from school or getting married and walking the child down the aisle, will never be an option. That has been taken away. Growing old and seeing grandchildren, that is taken away[.] Instead, grandparents and other families are gonna have to fill roles they don't wanna fill and shouldn't have to fill for these children. So, there is damage and harm here that is irreparable and eternal and that makes this very, very heinous and serious and requires severity in the punishment.
As I noted, he benefitted significantly from his plea agreement and all of the other things but that's the-really from a mitigating point of view, there's not a lot that I see here that mitigates anything as it relates to Mr. Ayala. The sentence of the court-considering all of this-is as follows: In Number 86,777, Count 1, on the charge of manslaughter, I sentence him to serve 40 years at hard labor with the Louisiana Department of Corrections. In Number 86,777, Count 2, the obstruction of justice, I sentence him to serve 40 years at hard labor. These are the maximums. In 87,354, I order him to serve ten years at hard labor with the Louisiana Department of Corrections. That sentence, by law, shall be served without benefit of probation, parole, or suspension of sentence. The court is gonna [sic] order that all three of these sentences be served consecutive to each other. He is entitled to credit for time served.

The Manslaughter Sentence

Defendant pled to a factual scenario more supportive of the original charge of second degree murder than manslaughter. Generally, manslaughter is a homicide that would be murder, but the offense is partially mitigated when the circumstances are sufficient to excite the passion or heat the blood of an average person. La.R.S. 14:31(A)(1). The State, according to the recitation at the sentencing hearing, was prepared to prove that Defendant shot the victim multiple times with a rifle, under circumstances that were insufficient to provoke a murder. Defendant's conduct after the murder reflected a cold, calculated, and callous outlook on the sanctity of life, and a lack of remorse for his actions or the persons harmed thereby. As such, it is clear that Defendant received a substantial benefit by the reduction of the second degree murder charge to manslaughter. He also received the benefit of the dismissal of other charges as part of the plea agreement.

Generally, maximum sentences are reserved for the most serious violation of the offense and the worst type of offender. State v. Russell, 42,479 (La.App. 2 Cir. 9/26/07), 966 So.2d 154, writ denied, 07-2069 (La. 3/7/08), 977 So.2d 897. However, "where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense." State v. Falcon, 44,829, p. 4 (La.App. 2 Cir. 10/28/09), 26 So.3d 172, 175.

State v. Herbert , 12-228, pp. 5-6 (La.App. 3 Cir. 6/13/12), 94 So.3d 916, 920, writ denied , 12-1641 (La. 2/8/13), 108 So.3d 78.

Thus, in the context of a maximum-sentence analysis for manslaughter, where the evidence would otherwise support a murder conviction, Defendant can be considered "the worst type of offender."

In Herbert , this court considered a similar appeal of a maximum sentence for manslaughter where the initial charge of second degree murder was reduced pursuant to a plea agreement. After a thorough analysis, the forty-year manslaughter sentence was affirmed.

The trial court gave oral reasons when imposing the defendant's sentence, stating that he had taken into account the evidence presented at the hearing and the sentencing guidelines provided by La.Code Crim.P. art. 894.1. In those reasons, the trial court acknowledged that the defendant had "never been involved in this type of activity before." However, the trial court disagreed with the defendant's contention that Mr. Malin's death was an accident, finding that the beating administered by the defendant and Mr. Sam was "severe, it was deliberate" and that the defendant was trying to minimize his culpability for the crime. Additionally, a certified criminal history was available to the trial court, which indicated that the defendant had a prior misdemeanor conviction.
Further, in addition to the evidence submitted at the plea and sentencing hearings, the record indicates that trial court ruled on several pre-trial evidentiary issues and was privy to DVD interviews, police reports and grand jury testimony. A trial court may rely on varied sources of information and "may include evidence usually excluded from the courtroom at the trial of guilt or innocence, e.g., hearsay and arrest as well as conviction records." State v. Myles , 94-217 (La. 6/3/94), 638 So.2d 218, 219.A review of comparable cases indicates that maximum or near-maximum sentences for manslaughter have been upheld on a number of occasions. In State v. Bowman , 95-667 (La.App. 4 Cir. 7/10/96), 677 So.2d 1094, writ denied, 96-2070 (La. 1/31/97), 687 So.2d 400, the defendant was sixteen at the time of the offense and a first offender. The defendant was driving and one of his friends was "fussing" with a pedestrian. The defendant acquiesced to the friend's request that he turn the car around and drive back towards the pedestrian. The friend then shot and killed the pedestrian; the defendant contended that he did not know the friend intended to do so. The defendant was charged with second degree murder, but a jury returned the lesser verdict of manslaughter. After a hearing, the trial court imposed a sentence of thirty-three years at hard labor. The fourth circuit affirmed, finding that the trial court adequately considered the sentencing guidelines and that the sentence was not excessive.
In State v. Sarkozy , 99-386 (La.App. 4 Cir. 1/26/00), 755 So.2d 345, the State alleged that the defendant beat the victim to death with a hammer after the victim refused to loan him a quarter. The defendant was charged with second degree murder; however, a jury found him guilty of the lesser charge of manslaughter. The trial court imposed the maximum sentence even though the defendant was a first offender. The trial court found that the crime was deliberately cruel, that the defendant was not acting in self-defense, and that he showed no remorse. On appeal, the fourth circuit found that the sentence was not constitutionally excessive. See also Falcon , 26 So.3d 172 ; State v. Black , 28,100 (La.App. 2 Cir. 2/28/96), 669 So.2d 667, writ denied, 96-836 (La. 9/20/96), 679 So.2d 430.
Based on our review of the record, we find that the trial court did not abuse its broad sentencing discretion in imposing the maximum sentence. The trial court found that the defendant committed an act of actual violence and that the beating received by the victim was severe and deliberate. Further, the trial court found that the defendant tried to minimize his culpability for the crime. Although the defendant is a first felony offender, he received a significant benefit by pleading guilty to manslaughter instead of second degree murder. Further, our review of similar cases indicates that courts have upheld maximum or near-maximum sentences for cases for manslaughter in circumstances similar to those of the defendant.

Id. at 920-22.

With respect to Defendant's forty year sentence for manslaughter, the jurisprudence reflects that the maximum penalty has also been imposed in other similar circumstances.

In State v. Bailey , 07-130 (La.App. 3 Cir. 10/3/07), 968 So.2d 247, the victim was shot multiple times with three different weapons by three different co-defendants. The defendants fled the scene after gathering the clothes and weapons for disposal. Bailey pled guilty to manslaughter and was sentenced to forty years at hard labor. This court affirmed the sentence on appeal.

In State v. Williams, 03-1537 (La.App. 3 Cir. 6/9/04), 875 So.2d 1043, writ denied, 04-1951 (La. 12/17/04), 888 So.2d 864, the defendant pled guilty to manslaughter and was sentenced to forty years at hard labor. The facts showed that the defendant and the victim had an ongoing dispute. On the date of the crime, the victim and the defendant had yet another confrontation wherein the defendant shot the victim with a twelve-gauge shotgun at point blank range. On appeal, this court affirmed the defendant's sentence.

In the instant case, the trial court gave extensive reasons for the sentence imposed and thoroughly considered, as required by La.Code Crim.P. art. 894.1, the background of Defendant, the circumstances surrounding the crimes committed, the benefit received by Defendant from the reduction of the second degree murder charge to manslaughter and other related factors, including the impact of the murder on the victim's family. Considering this, we do not find that the maximum sentence imposed for manslaughter was excessive.

The Obstruction of Justice Sentence

We next consider whether the maximum sentence imposed for the conviction for obstruction of justice is excessive. The court sentenced Ayala to forty years for obstruction of a murder investigation under La.R.S. 14:130.1(B)(1) instead of twenty years under (B)(2) as per the terms of the plea agreement. The court read Mr. Ayala the language of the obstruction-of-justice statute, La.R.S. 14:130.1, and ascertained that he understood what he was pleading to under Count 2, i.e., "[t]ampering with evidence with the specific intent of distorting the results of any criminal investigation or proceeding." On Count 1, Mr. Ayala had pled down from second-degree murder to the lesser offense of manslaughter. However, on Count 2, on the recommendation of his lawyers, Mr. Ayala pled guilty, as originally charged, to obstruction of a murder investigation under La.R.S. 14:130.1(B)(1). The court at the time of the plea and at the time of sentencing confirmed that Mr. Ayala understood the maximum to which he would be exposed:

BY THE COURT:
Alright, Mr. Ayala, you're pleading in 86,777, Count 1, to the offense of manslaughter. Is that correct, sir?
BY THE DEFENDANT (MR. AYALA):
That's correct, Judge.
BY THE COURT:
And then in Count 2, you're pleading to the charge of obstruction of justice and that's as charged. And the reason I say that, the obstruction of justice reads, obstruction of justice in conjunction with the charge of-or the offense of second degree murder.
BY MR. SEASTRUNK:
That's correct.BY THE COURT:
And that-there's a difference in the sentencing provisions there, right?
BY MS. NELSON:
That's correct, Your Honor.
BY THE COURT:
You understand that?
BY THE DEFENDANT (MR. AYALA):
I do.
BY THE COURT:
And that's what you're pleading to?
BY THE DEFENDANT (MR. AYALA):
Yes, Your Honor.
And again at sentencing, this colloquy followed:
[Court]. All right, sir. Now, the sentencing provision for that offense is under part B(1) of that article and that is, when the obstruction of justice involves a criminal proceeding in which a sentence of death or life imprisonment may be imposed. Now, that's the one that deals with the second degree. You're-you're pleading to the obstruction in the investigation of the second degree murder and that would have carried a ... life imprisonment sentence. You understand?
A. I understand.
[Court]. And, so, that's why B(1) is the one I'm reading. The offender shall be fined not more than one hundred thousand dollars, imprisoned for not more than forty years at hard labor, or both. That's your maximum, do you understand?
A. I understand.

The trial court individually considered this offense when imposing sentence and stated as follows:

On the obstruction of justice, Count 2, ... he and two others buried the body of the victim in a shallow grave in a wooded area and then, subsequently, went back to the location where the shooting occurred, washed the site down the best they could with bleach and water, and then at some point they removed everything from the victim's body, after they went back to the grave, including material they used to wrap and transport the body and burned much of that, if not all of it, in an effort to conceal whatever evidence that may contain. And, thus, that is clearly the obstruction of justice.

The evidence recited to the court in support of the guilty plea to the obstruction of justice count was that immediately after shooting the victim multiple times, Defendant retrieved a blanket to cover the victim's body. He then enlisted the aid of other co-defendants to load the victim James Stephens's body into the back of a car to transport him to a location on Highway 1211 in Vernon Parish, Louisiana where they dug a shallow grave and buried him. Later, Defendant and his henchmen traveled back to the scene of the murder, where he, along with co-defendant Cassandra Ward, used a water hose and bleach to destroy the evidence of the crime. That was not the end of the story, however. Within the week after the murder, Defendant revisited the victim's makeshift grave, dug his body up, removed all of the clothes he was wearing when he was murdered, taking those items to the home of another co-defendant, Robert Worth. As Worth and Cassandra Ward watched, Defendant then burned the victim's clothes to further destroy evidence of the murder. Defendant instructed co-defendant Cassandra Ward to dispose of the weapon and the shovels used to bury the victim. The digging implements were discarded behind a dumpster at the back of a business in Spring, Texas in yet another effort to hide the evidence of the murder and its coverup. Finally, the gun used to murder the victim was given to an unknown individual, through arrangements set up by Defendant, Jose Ayala, III. The efforts of Defendant to conceal the murder resulted in an extensive, time consuming investigation by Vernon Parish Sheriff's Department personnel, with the aid of other law enforcement agencies and private search groups. It was not until three months after the murder that the case was finally solved, and the body of James Stephens was found buried in his shallow grave.

In State v. Roberson, 40,809 (La.App. 2 Cir. 4/19/06), 929 So.2d 789, the court found a maximum sentence of forty years for obstruction of justice also involving a murder was not excessive. There, the defendant was convicted of second degree murder in addition to obstruction of justice. The body of the victim had been found about thirty miles away from the site of the murder, and DNA evidence was found in the trunk of a vehicle driven by the defendant. Inferring that the defendant intentionally tampered with evidence relevant to the murder investigation, the second circuit affirmed the forty year maximum sentence finding that it was not excessive.

In State v. McKnight , 98-1790 (La.App. 1 Cir. 6/25/99), 739 So.2d 343, writ denied, 99-2226 (La. 2/25/00), 755 So.2d 247, the defendant was charged with obstruction of justice in connection with disposing of the body of a twenty-two-month-old child that the defendant had been babysitting. Evidence adduced at trial established that the defendant threw the child from a car on a bridge into the water below after the child had suffered blunt force trauma to the head rendering him unconscious. According to medical testimony, the child may have still been alive when thrown into the water. After having been found guilty of obstruction of justice, the defendant was sentenced to the maximum forty years in prison at hard labor. In affirming the sentence, the first circuit stated as follows:

We acknowledge defendant's status as a first felony offender. However, as noted by the trial judge, this crime involved a heinous offense, particularly in light of the fact that the child's parents, law enforcement officials and the community continued to search for the child and they continued to hope for a successful reunion. Additionally, the longer the child's body remained in the river, the more it decomposed and deteriorated, a fact which was very traumatic to the parents. Thus, we conclude that this case involved the most serious violation of obstruction of justice and that defendant represents the worst kind of offender. We do not find the sentence imposed herein to be so grossly disproportionate as to shock our sense of justice. Accordingly, the sentence imposed is not excessive.

Id. at 359-60.

We find Defendant's brazen conduct in this case far exceeds that of the defendant in Roberson, 929 So.2d 789. Indeed, we find the facts here to be more akin to those in State v. McKnight, 739 So.2d 343. Here, Defendant went to great lengths to destroy evidence of the murder and conceal his criminal act from law enforcement officials. His actions further kept the victim's family in a state of limbo, not knowing the whereabouts or the welfare of their loved one. In addition, Defendant not only engaged in this crime to hide evidence on his own, but also enlisted the assistance of, and involved, others who also now face charges. The sentence imposed is not such as to shock the conscience and certainly is within the broad sentencing discretion of the trial court.

Consecutive Sentences

Finally, we must consider whether the trial court's imposition of the two forty year sentences as consecutive sentences in this instance amounts to an excessive sentence. Louisiana Code of Criminal Procedure article 883 provides that on conviction "of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively" and that "[o]ther sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently."

Although the trial court has this discretion statutorily there is a constitutional limitation that sentences, whether consecutive or concurrent, not be excessive. In determining whether sentences are excessive we should consider, among other factors, whether convictions arise out of a single course of criminal conduct. The general preference for concurrent rather than consecutive sentences was recognized by this Court in State v. Underwood , 353 So.2d 1013, 1019 (La. 1977), in which we observed that "(b)ased on the American theory and practice, concurrent rather than consecutive sentences are the usual rule, at least for a defendant without previous criminal record and in the absence of a showing that the public safety requires a longer sentence."
This Court, however, has never held that if convictions arise out of a single course of illegal conduct, consecutive sentences will necessarily be found to be excessive. Other factors must be considered.

State v. Ortego , 382 So.2d 921, 923 (La. 1980).

In State v. Roberson , 929 So.2d 789, the court considered a similar claim where the defendant was convicted of second degree murder and obstruction of justice and was sentenced to life in prison on the murder charge and the maximum forty years in prison on the obstruction charge.

Finally, Roberson also argues that the trial court erred in ordering his sentences be served consecutively. When two or more convictions arise from the same act or transaction, or constitute parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. La. C. Cr. P. art. 883. It is within a trial court's discretion to order sentences to run consecutively rather than concurrently. State v. Robinson, 33,921 (La.App.2d Cir.11/01/00), 770 So.2d 868. Here, considering the heinous nature of the crime against Smith, along with the anguish it caused her family, including children, we believe the record provides an adequate factual basis to support consecutive sentences. The trial court did not err in this regard.

Id. at 805.

In State v. Gay , 36,357 (La.App. 2 Cir. 10/23/02), 830 So.2d 356, the court considered maximum sentences imposed for armed robbery and attempted second degree murder of ninety-nine years and fifty years respectively, to be served consecutively and without benefits.

The record also supports the trial court's imposition of consecutive sentences. Concurrent sentences arising out of a single course of conduct are not mandatory. State v. Pickett , 628 So.2d 1333 (La.App. 2d Cir. 1993), writ denied, 94-0348 (La. 05/20/94), 637 So.2d 476 ; State v. Nelson, 467 So.2d 1159 (La.App. 2d Cir. 1985). Nor are consecutive sentences under those circumstances necessarily excessive. Ortego, supra ; State v. Williams, 445 So.2d 1171 (La. 1984) ; State v. Mills, 505 So.2d 933 (La.App. 2d Cir.), writ denied, 508 So.2d 65 (La. 1987). In imposing the chosen sentence, the trial court noted the victim's age, Gay's lack of remorse and the victim's impact statement which indicated that the victim is required to take medication since this incident and that for quite some time was afraid to leave her home. Additionally, the court was obviously impressed by the nature and viciousness of the attack and Gay's disregard for the life and property of others. We find these factors more than adequate to justify the imposition of consecutive sentences in this case and amply reflect the court's reasons for the consecutive terms.

Id. at 367-368.

In this case, the trial court adequately and correctly considered Defendant's age, background, mitigating evidence submitted on Defendant's behalf, as well as the heinous nature of the offense, the lack of remorse shown by Defendant, the extensive steps taken to hide the crime, the effect of the crimes on the family and children of the victim, and the benefits received by Defendant as a result of the plea agreement. Thus, we find that the consecutive forty year sentences for manslaughter and for obstruction of justice imposed in this case are not constitutionally excessive.

Decree

For the reasons herein set forth, Defendant's sentences are affirmed.

AFFIRMED.

      The prosecutor identified the victim as "Jamie." The indictment shows his first name as "James."

      The Motion to Reconsider Sentence bears both trial court docket numbers. The cases are not consolidated.

      Defendant's heading in his brief indicates there are two assignments of error, and the State responds accordingly. However, Defendant presents one argument in brief. To the extent that Defendant's argument as to the assignment of error raises sub-issues, we address them together in the opinion.

      The applicable statute, at the time of the 2014 offense, and the current 2016 version, both state in pertinent part as follows:
      B. Whoever commits the crime of obstruction of justice shall be subject to the following penalties:
      (1) When the obstruction of justice involves a criminal proceeding in which a sentence of death or life imprisonment may be imposed, the offender shall be fined not more than one hundred thousand dollars, imprisoned for not more than forty years at hard labor, or both.
      (2) When the obstruction of justice involves a criminal proceeding in which a sentence of imprisonment necessarily at hard labor for any period less than a life sentence may be imposed, the offender may be fined not more than fifty thousand dollars, or imprisoned for not more than twenty years at hard labor, or both.
      La.R.S. 14:130.1.


author: Judge Daniel L. Dysart

text:
    NOLA BOURBON, LLC v. Jorge RODRIGUEZ-FRANCO and Lillian Benitez
    NO. 2017-CA-1002
    Court of Appeal of Louisiana, Fourth Circuit.
    APRIL 18, 2018
    Scott M. Galante, Salvador I. Bivalacqua, Lauren Bergeron Griffin, GALANTE & BIVALACQUA, LLC, 650 Poydras Street, Suite 2615, New Orleans, LA 70130, COUNSEL FOR PLAINTIFF/APPELLEE
    Vincent J. Booth, BOOTH & BOOTH, 138 N. Cortez Street, New Orleans, LA 70119, Bradley J. Egenberg, EGENBERG, APLC, 650 Poydras Street, Suite 2525, New Orleans, LA 70130, COUNSEL FOR DEFENDANTS/APPELLANTS
    (Court composed of Chief Judge James F. McKay, III, Judge Daniel L. Dysart, Judge Dennis R. Bagneris, Sr., Pro Tempore)
   Judge Daniel L. Dysart

Jorge Rodriguez-Franco and Lillian Benitez appeal the issuance of a permanent injunction against them and in favor of Nola Bourbon, LLC. For the reasons that follow, we reverse and remand this matter for further proceedings.

BACKGROUND:

Nola Bourbon, LLC, (hereinafter "Nola Bourbon" or "plaintiff") is the owner of the property located at 933 Bourbon Street in New Orleans, having purchased the property on September 27, 2011. Jorge Rodriguez-Franco and Lillian Benitez (hereinafter referred to collectively as "Benitez" or "defendants") are the owners of 927-931 Bourbon Street, and have been since 1995. A dispute over the alley that runs between the two properties is the basis for this lawsuit.

In August of 2015, Nola Bourbon filed a Petition for Preliminary Injunction, Permanent Injunction and Ex Parte Motion for Temporary Restraining Order. In the petition, Nola Bourbon alleged that Benitez ordered it to remove air conditioning units that were on defendants' property, allegedly with defendants' permission. Upon learning that defendants no longer wanted the air conditioning units on their property, plaintiff entered into a verbal and written agreement with defendants to refrain from taking any action for a ten-day period. However, prior to the termination of the ten-day period, defendants closed in with bricks plaintiff's previously existing gate opening in the wall between the properties. Nola Bourbon alleged that the closure of the wall caused damage to its property. Specifically, plaintiff alleged that because its property could no longer drain into a pre-existing French drain between the properties, water would accumulate on plaintiff's property, flooding a downstairs unit; plaintiff could no longer access its air conditioning units for maintenance; and, repairs and/or maintenance could no longer be done to that side of plaintiff's property.

In their ex parte motion for a temporary restraining order, plaintiff requested that defendants be enjoined from dismantling or moving the air conditioning units, and from denying plaintiff access to defendants' side of the alley wall. The trial court granted only the portion of the restraining order addressing the air conditioning units. The defendants answered the petition, raising allegations of harm to their property, and arguing that plaintiff had no rights to the use of the alley.

Prior to a hearing being held on the petition for injunctive relief, defendants filed exceptions of no cause of action, improper use of summary proceeding and prematurity, all of which were denied by the trial court.

On October 15, 2015 and July 12, 2016, the trial court held hearings on plaintiff's petition for injunctive relief. A judgment was rendered on September 13, 2017, along with written reasons for judgment. The trial court ordered defendants to remove the brick wall that was constructed between the two properties to block plaintiff's gate. The trial court's ruling also permanently enjoined defendants and any successors in title from denying access to plaintiff and any successors in title to the defendants' side of the alley; from blocking or obstructing the French drain in the common alleyway; from removing the currently existing air conditioning units on defendants' property or from preventing maintenance of said units.

Defendants now appeal.

DISCUSSION:

In their first assignment of error, defendants argue that the trial court erred in granting a permanent injunction, as a hearing on the permanent injunction was never scheduled; rather, only a hearing on the preliminary injunction was noticed.

The judgment from which this appeal is taken is clearly granting a permanent injunction. Specifically, the court ordered the prompt removal of the brick wall in the former passageway between the properties. The judgment further found the existence of a continuous predial servitude of drainage, an apparent predial servitude of access for maintenance acquired by acquisitive prescription, a right of access and a servitude for maintenance and repairs to plaintiff's property, and a servitude in favor of plaintiff for the placement of air conditioning units in the common alley on defendants' property.

Plaintiff argues that the parties met in chambers, at which time the trial judge stated that the matter would be tried once.

Further, plaintiff alleges that the judge instructed that the original rule to show cause would be extended to a new date, based on a waiver of service by all counsel and an agreement to hold simultaneously a hearing on both the preliminary and permanent injunctions.

Our review of the record indicates that defendants were never notified of or stipulated to the hearing of this matter being on the merits of a permanent injunction. Rather, during the first day of hearing, counsel for plaintiff argued that an affidavit should be allowed into evidence over defendants' objection to hearsay, as affidavits are allowed at hearings on preliminary injunctions. The trial court allowed the affidavit into evidence, stating that "this is a summary hearing, it's an injunction hearing, and it could have been done solely by affidavit." As this Court is a court of record, we cannot rely on plaintiff's statements concerning matters that allegedly took place off the record. Succ. of Feingerts, 17-0265, p. 11 (La.App. 4 Cir. 12/21/17), 234 So.3d 1081, 1089, quoting Denoux v. Vessel Mgmt. Servs., Inc., 07-2143, p. 6 (La. 5/21/08), 983 So.2d 84, 88.

Based on the above, it is clear that this case was tried on a petition for a preliminary injunction. See Elysian Fields Church of Christ v. Dillon, 08-0989, p. 8 (La.App. 4 Cir. 3/18/09), 7 So.3d 1227, 1232, citing Springlake Homeowners Ass'n, Inc. v. Pecot , 321 So.2d 789, 790 (La.App. 4th Cir. 1975). "[T]he jurisprudence is clear that a preliminary hearing cannot be converted to a permanent injunction hearing absent a stipulation of the parties to the contrary." Louisiana Serv. and Contracting Co., Inc. v. St. Bernard Parish Gov't. , 08-0174, p. 5 (La.App. 4 Cir. 11/26/08), 1 So.3d 557, 560.

Accordingly, we find that the defendants are entitled to a full trial on the merits of the permanent injunction. A permanent injunction may be rendered only "after a trial on the merits in which the burden of proof is a preponderance of the evidence rather than a prima facie showing." Elysian Fields Church of Christ, 08-0989, p. 8, 7 So.3d 1227, 1232, citing Bollinger Machine Shop and Shipyard, Inc. v. United States Marine, Inc. , 595 So.2d 756, 758 (La.App. 4th Cir. 1992). The judgment is hereby reversed and this matter remanded for further proceedings.

REVERSED AND REMANDED

      The petition for injunction makes a reference to the fact that water cannot drain from plaintiff's property into a French drain in the "common" alleyway. However, plaintiff's did not seek the recognition of a servitude of drainage.

      Based on our ruling, we decline to discuss the remainder of defendants' assignments of error.


author: JUDGE SANDRA CABRINA JENKINS

text:
    STATE of Louisiana IN the INTEREST OF A.N.
    State of Louisiana in the Interest of J.N.
    State of Louisiana in the Interest of S.A.
    NO. 2017-CA-0860 NO. 2017-CA-0861 NO. 2017-CA-0862
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 2, 2018
    Hester R. Hilliard, HILLIARD LAW FIRM, 2100 Rev. Richard Wilson Jr., Suite 8, Kenner, LA 70062, COUNSEL FOR APPELLANT
    Elizabeth Lincoln, Department of Children & Family Services, 1450 Poydras Street, Suite 1600, New Orleans, LA 70112, COUNSEL FOR APPELLEE
    (Court composed of Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins, Judge Dennis R. Bagneris, Sr., Pro Tempore )

      Pursuant to Louisiana Supreme Court order dated April 27, 2018, Judge Bagneris participated as judge ad hoc of the Court of Appeal, Fourth Circuit in this matter.

   JUDGE SANDRA CABRINA JENKINS

This matter involves the involuntary termination of parental rights. The State of Louisiana through the Department of Children and Family Services ("DCFS") filed a petition for the termination of parental rights of the mother, A.A., as to her minor child, J.N. After a hearing, the trial court determined that DCFS proved by clear and convincing evidence one of the statutory grounds for termination and that termination of the mother's parental rights was in the best interests of J.N. J.N. now appeals the trial court's judgment terminating the mother's parental rights. For the reasons that follow, we find no manifest error in the trial court's judgment, and we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On January 27, 2016, DCFS initiated an investigation into a report of alleged physical abuse of J.N., a fourteen-year old minor child, by the child's father. In the course of the investigation, DCFS learned that the father had sole physical custody of J.N. and that the mother, A.A., had not exercised physical care or custody of J.N. for approximately three years due to mental health issues that compromised her ability to supervise her child. Regarding the alleged physical abuse, DCFS found no information to substantiate the allegation; both J.N. and the father denied any physical abuse. Prior to closing the investigation, however, DCFS learned that the father passed away, on February 13, 2016, leaving J.N. without a legal caretaker. DCFS then learned that J.N. was residing with the maternal grandmother and was exhibiting defiant, uncontrollable behavior. Based on all the information gathered in the course of the investigation, DCFS filed a request with the trial court for an instanter order, which was granted on March 16, 2016, placing J.N. in the temporary custody of DCFS.

On March 30, 2016, DCFS filed a petition to have J.N. declared a child in need of care. On May 11, 2016, the trial court held an adjudication hearing on the petition; J.N. and his mother were present and represented by counsel at the hearing. At the conclusion of the hearing, the trial court rendered judgment adjudicating J.N. a child in need of care and ordering that J.N. remain in the custody of DCFS, pending further orders of the court, under the specified terms and conditions set forth in an approved case plan. In addition, the trial court approved a case plan for A.A. to regain custody of J.N. and advised A.A. of the case plan, case review, and permanency review procedures and compliance requirements.

On December 7, 2016, the trial court held a case review hearing, at which A.A. and J.N. were both present and represented by counsel. After consideration of the case report submitted by DCFS, regarding the progress made by A.A. and the reasonable efforts made by DCFS to achieve reunification, the trial court rendered judgment approving the permanent case plan of adoption recommended by DCFS as being the most likely means to achieve permanency and stability for J.N. and in the child's best interests.

On March 28, 2017, DCFS filed a petition to terminate the parental rights of A.A. and to declare J.N. eligible for adoption. As the grounds for termination under La. Ch.C. art. 1015(5), DCFS alleged that A.A. abandoned J.N. by leaving the child under circumstances demonstrating an intention to permanently avoid parental responsibility by failing to provide significant contributions to the child's care and support for more than six consecutive months. In addition, pursuant to La. Ch. C. art. 1015(6), DCFS alleged that A.A. failed to substantially comply with the required program of treatment and rehabilitation services under the case plan; failed to maintain a stable and safe home; failed to successfully attend, participate, and complete a mental health evaluation and follow through with any recommended treatment plan; and failed to make any of the parental contributions. Finally, DCFS alleged that, despite attempts at intervention, there was no reasonable expectation of significant improvement in A.A.'s conduct in the near future, considering J.N.'s age and need for a stable and permanent home.

On July 26, 2017, the trial court held a hearing on the termination of parental rights, at which J.N. and A.A. were present and represented by counsel. After considering the evidence and testimony presented, the trial court rendered judgment terminating the parental rights of A.A. and declaring J.N. free and eligible for adoption.

J.N. now appeals the trial court's August 11, 2017 judgment terminating A.A.'s parental rights.

LAW AND DISCUSSION

It is well-settled that a trial court's findings on factually-intense termination of parental rights issues are reviewed on appeal under a manifest error standard of review. State in the Interest of T.M.P. , 13-1006, p. 21 (La. App. 4 Cir. 10/23/13), 126 So.3d 741, 753-54. Further, in any case regarding the involuntary termination of parental rights, the courts must balance the often competing interests of the natural parent and the child. State in the Interest of C.A.C. , 11-1315, p. 7 (La. App. 4 Cir. 2/1/12), 85 So.3d 142, 146 (citing State ex rel. SNW v. Mitchell , 01-2128, p. 8 (La. 11/28/01), 800 So.2d 809, 814-15 ). Parents have a natural, fundamental liberty interest to the continuing care, custody, and management of their children that warrants great deference and protection under the law. State in the Interest of D.W. , 15-0760, p. 9 (La. App. 4 Cir. 12/2/15), 182 So.3d 281, 287 (quoting State ex rel. K.G. , 02-2886, p. 4 (La. 3/18/03), 841 So.2d 759, 762 ). However, "[t]he child has an interest in terminating parental rights that preclude or delay adoption and inhibit establishing stable, long-term family relationships." C.A.C. , 11-1315, p. 7, 85 So.3d at 146. "In balancing these interests, the courts of this state have consistently found the interest of the child to be paramount over that of the parent." K.G. , 02-2886, p. 5, 841 So.2d at 762.

Title X of the Children's Code governs the involuntary termination of parental rights and the certification of children for adoption. As stated within La. Ch. C. art. 1001, the purpose of involuntary termination proceedings is "to protect children whose parents are unwilling or unable to provide safety and care adequate to meet their physical, emotional, and mental health needs, by providing a judicial process for the termination of all parental rights and responsibilities and for the certification of the child for adoption." Recognizing that the termination of parental rights is a severe and permanent action, the Louisiana Legislature imposed strict procedural and evidentiary requirements to be met before a judgment of termination can be rendered. C.A.C. , 11-1315, p. 8, 85 So.3d at 146. The termination procedure requires the State to prove the elements of at least one the statutory grounds for termination of parental rights, set forth in La. Ch. C. art. 1015, by clear and convincing evidence. K.G. , 02-2886, p. 5, 841 So.2d at 762-63 ; See La. Ch. C. 1035. The State need only establish one of the enumerated grounds for termination. Once the State meets its evidentiary burden, the trial court must also determine that termination of the parental rights is in the best interest of the child. K.G. , 02-2886, p. 5, 841 So.2d at 762-63 ; see La. Ch. C. art. 1037.

In this case, DCFS alleged grounds for the termination of A.A.'s parental rights under La. Ch.C. art. 1015(5) and (6), which provide in pertinent part as follows:

(5) Abandonment of the child by placing him in the physical custody of a nonparent, or the department, or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:
(b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child's care and support for any period of six consecutive months.
(c) As of the time the petition is filed, the parent has failed to maintain significant contact with the child by visiting him or communicating with him for any period of six consecutive months.(6) Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent's custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent's condition or conduct in the near future, considering the child's age and his need for a safe, stable, and permanent home.

In the first assignment of error, J.N. argues that the trial court erred in determining that DCFS satisfied its burden of proving by clear and convincing evidence the elements of the grounds for termination under either La. Ch. C. art. 1015(5) or (6), as alleged in the petition. Specifically, J.N. asserts that DCFS failed to prove that A.A. had not substantially complied with her case plan and that A.A. had no reasonable expectation of significant improvement in her mental health condition in the near future. Based on our review of the record, we find no manifest error in the trial court's determination that DCFS established one of the statutory grounds for termination by clear and convincing evidence.

Lack of parental compliance with a case plan may be evidenced by one or more of the following, under La. Ch. C. art. 1036(C), pertaining to proof of parental misconduct:

(1) The parent's failure to attend court-approved scheduled visitations with the child.
(2) The parent's failure to communicate with the child.
(3) The parent's failure to keep the department apprised of the parent's whereabouts and significant changes affecting the parent's ability to comply with the case plan for services.
(4) The parent's failure to contribute to the costs of the child's foster care, if ordered to do so by the court when approving the case plan.
(5) The parent's repeated failure to comply with the required program of treatment and rehabilitation services provided in the case plan.(6) The parent's lack of substantial improvement in redressing the problems preventing reunification.
(7) The persistence of conditions that led to removal or similar potentially harmful conditions.

In addition, La. Ch. C. art. 1036(D) provides, in pertinent part, that the lack of any reasonable expectation of significant improvement in the parent's conduct in the near future may be evidenced by "[a]ny physical or mental illness, mental deficiency, substance abuse, or chemical dependency that renders the parent unable or incapable of exercising parental responsibilities without exposing the child to a substantial risk of serious harm, based upon expert opinion or based upon an established pattern of behavior."

Our review of the record reflects that at the time J.N. was placed in the custody of DCFS, on March 16, 2016, the mother, A.A., had not exercised physical care or custody of J.N. for the previous three years due to her mental illness, which the record indicates as schizophrenia and bipolar disorder. Thereafter, following a hearing on May 11, 2016, the trial court adjudicated J.N. a child in need of care and approved a case plan developed by DCFS for A.A. to regain custody of J.N. The terms of the case plan included: maintaining contact with DCFS by phone or in person; reporting all changes regarding contact information within 48 hours of the change; supporting her child while in foster care by paying $25.00 in parental contributions; maintaining safe and stable housing with adequate space for her child; submitting to an assessment by the Office for Addictive Disorders (OAD) and following all recommendations; and submitting to random drug screening as requested by DCFS. In addition, the case plan advised that A.A. "needs to be compliant with her mental health diagnosis and medication management in order to focus on the needs of the children." As reflected by the May 17, 2016 judgment, the trial court advised A.A. of the case plan, case review, and permanency review procedures; advised her of the obligations to cooperate with DCFS and comply with the requirements of the plan; and cautioned her that her failure to comply could result in the filing of a petition to terminate her parental rights.

At a case review hearing on December 7, 2016, DCFS submitted a progress report on the case plan to the trial court. The report states that A.A. had not made any contact with DCFS and had not begun any components of her case plan. In addition, the report indicates that A.A. did not attend a scheduled psychological appointment. Notably, the report also states that A.A. had not attended any of the weekly scheduled visitations with J.N., and indicates no contact between A.A. and J.N.

At the termination hearing on July 26, 2017, Shantrel Jones, the assigned DCFS case manager, provided testimony supporting the grounds alleged for termination. Regarding the terms of A.A.'s case plan, Ms. Jones testified that A.A. had not made any financial contributions to J.N.'s care during the entire period J.N. had been in the custody of DCFS. Ms. Jones acknowledged that A.A. had signed a consent to release information form to allow DCFS to obtain treatment information; however, she stated that the information received by DCFS indicated A.A. had not followed through with any recommended counseling or mental health treatment. Ms. Jones also testified that A.A. was referred to a parenting education program that she did not attend. In regards to whether A.A. had safe and stable housing, Ms. Jones stated that A.A. had maintained housing during the entire period of this case; however, A.A. had never permitted a DCFS case worker to enter her home; consequently, DCFS had not been able to determine the conditions of the home environment. In addition, Ms. Jones stated that A.A. did not maintain any contact with DCFS and did not provide a phone number. Regarding visitation and contact between A.A. and J.N., Ms. Jones testified that A.A. had visited with J.N. in court and reportedly had seen J.N. at the grandmother's house, where J.N. was allowed to visit regularly; however, A.A. did not attend any scheduled weekly visitations with J.N. Finally, according to all the information obtained by DCFS in this case, Ms. Jones testified that there was no indication A.A. had made any progress to achieving mental health stability.

A.A. also testified at the termination hearing. She acknowledged reviewing a case plan with a DCFS case manager and asserted that she had complied with all of it; but, she stated that DCFS kept "changing their story" and "everything I hear from someone in this courtroom is a lie." As her testimony continued, A.A. made several incoherent statements about chemicals being brought into her house, "being used as lab rats," and grease coming out of her skin. The trial court then addressed A.A. and asked whether she was taking her proper medications; her response indicates that she was not taking medication, as she stated that the medication is full of insect hormone meant to poison her.

Following testimony and arguments, the trial court noted that many hearings had taken place over the period that J.N. had been in DCFS custody and that the case plan was repeatedly discussed and reviewed with A.A. The trial court then found that, based on the record and testimony presented, DCFS had proved that A.A. failed to substantially comply with her case plan and mental health treatment. The trial court also determined it was in the best interest of J.N. that A.A.'s parental rights be terminated and to allow J.N. to be free for potential adoption.

A review of the record and the testimony reflects that the elements of the grounds for termination of parental rights under La. Ch. C. art. 1015(6) were proven by clear and convincing evidence. First, the record reflects that J.N. had been in DCFS custody for more than one year, pursuant to the instanter order issued on March 16, 2016. Further, the record reveals that A.A. failed to make any financial contributions to J.N.'s care; A.A. failed to maintain contact with DCFS or even provide a phone number; A.A. failed to attend scheduled visitations and other recommended programs and appointments; and, by her own admission and testimony, A.A. refused to follow recommended mental health treatment, to ensure that she can provide a safe, stable home and adequate care for J.N. Finally, the record of the case, particularly A.A.'s testimony, clearly reveals an established pattern of non-compliance and mental illness demonstrating there is no reasonable expectation of improvement in A.A.'s condition or conduct. Consequently, we find no manifest error in the trial court's determination that DCFS proved by clear and convincing evidence the grounds for terminating A.A.'s parental rights. Accordingly, we find no merit to the first assignment of error.

In the second and final assignment of error, J.N. argues that the trial court erred in determining that termination of the mother's parental rights was in J.N.'s best interest. As discussed previously, the termination of parental rights involves a two-pronged inquiry. "[A]fter the ground for termination is found, the trial court must determine whether the termination is in the child's best interests." C.A.C. , 11-1315, p. 8, 85 So.3d at 147 (citing La. Ch. C. art. 1039 ; State ex rel. L.B. v. G.B.B. , 02-1715, pp. 5-6 (La. 12/4/02), 831 So.2d 918, 922 ).

At the time of the termination proceeding, J.N. was fifteen years old and had been in DCFS custody for sixteen months. The record reflects that J.N. had been in placement at a group home, where it was reported that J.N. was doing well in school, taking proper medication for ADHD (Attention Deficit Hyperactivity Disorder ) and ODD (Oppositional Defiant Disorder ), and making progress in controlling anger and behavioral issues. Ms. Jones testified that over the period of time that J.N. had been in custody, DCFS had determined that termination of A.A.'s parental rights and certification for adoption was in the best interest of J.N., based on A.A.'s mental illness, the fact that the father is deceased, and the inability of the grandmother to provide adequate supervision of J.N. Ms. Jones also testified that, prior to the hearing, she spoke with J.N., whose stated preference was to go home with A.A.; but, if that could not happen, then J.N. stated a preference for adoption. J.N. did not testify at the termination hearing, but J.N.'s counsel argued that J.N. wanted to go home with A.A. and did not want to be adopted.

At the conclusion of the hearing, the trial court stated its familiarity with the case and noted that alternatives to termination had been explored, including placement with the grandmother, who was unable to handle the supervision of J.N. Based on the history of the case and the mother's lack of rehabilitation, the trial court stated that it was in the best interest of J.N. to terminate the mother's parental rights and free J.N. for potential adoption.

Based on our review of the record, and given the need to secure a stable environment for J.N., we find no manifest error in the trial court's determination that termination of A.A.'s parental rights is in the best interest of J.N. Thus, we find no merit to the second assignment of error.

CONCLUSION

For the foregoing reasons, we find no manifest error in the trial court's August 11, 2017 judgment terminating the parental rights of A.A. and declaring J.N. eligible for adoption; and we affirm.

AFFIRMED

LOBRANO, J., CONCURS IN THE RESULT.

      We use the initials of the minor child and the parent to protect the minor's identity and ensure the parties' privacy. See Uniform Rules-Courts of Appeal, Rule 5-2.

      DCFS filed three separate petitions to terminate the parental rights of A.A. as to each of her three minor children, J.N., A.N., and S.A. Each of the children was appointed counsel to represent his/her interests. The three cases were consolidated for purposes of the hearing on the termination of the mother's parental rights. Following the hearing, the trial court rendered three separate judgments terminating the mother's parental rights as to each child. The August 11, 2017 judgment at issue in this appeal pertains only to the parental rights of A.A. as to J.N., who is the only party to appeal the trial court's termination of the mother's parental rights. This appeal does not discuss the facts or issues related to the termination of A.A.'s parental rights to her other two children, A.N. and S.A. However, the records for each child's case have been lodged in this Court and consolidated with this appeal.

      We note that the affidavit in support of the instanter order states further allegations regarding J.N.'s behavior and actions; but, due to the sensitive nature, those allegations will not be discussed herein.

      As previously noted, A.A.'s parental rights as to all three of her children were terminated. The trial court presided over all hearings for all three children, from the time each was placed in DCFS custody through the termination proceedings. A.N. was the first placed in the custody of DCFS pursuant to an instanter order, on November 6, 2015.

      We note that A.A.'s failure to contribute to J.N.'s support and care also constitutes a sufficient ground for termination of parental rights under La. Ch.C. art. 1015(5), as alleged in the petition.