text:
    STATE of Louisiana v. Ricky Wayne MILLER aka Ricky Miller
    16-907
    Court of Appeal of Louisiana, Third Circuit.
    05/17/2017

      Annette Fuller Roach, Louisiana Appellate Project, P, 0. Box 1747, Lake Charles, LA 70602-1747, (337) 436-2900, COUNSEL FOR DEFENDANT/APPELLANT: Ricky Wayne Miller
    Hon. Keith A. States, Lafayette Parish DA, P. 0. Box 3306, Lafayette, LA 70502-3306, (337) 232-5170, COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana
    Ted L. Ayo, Attorney at Law, 10 S. St. Charles St., Abbeville, LA 70510-5108, (800) 880-1117, COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana, Ricky Miller, Ricky Wayne Miller
    Court composed of D. Kent Savoie, Van H. Kyzar, and David E. Chatelain , Judges.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   SAVOIE, Judge.

hOn January 12, 2016, Defendant, Ricky Wayne Miller, entered a guilty plea for theft of a firearm (district court docket number 59219), a violation of La. R.S. 14:67.15. On May 13, 2016, as part of the plea agreement, Defendant was sentenced to seven years at hard labor to be served without the benefit of probation, parole, or suspension of sentence. Additionally, the trial court ordered the sentence to run concurrently with the sentences imposed in 58080, 58133, 59221, 59259, and 58075. A motion to reconsider sentence was not filed. ■

The Defendant appeals assigning the following errors:

1. The trial court erred in imposing consecutive sentences in violation of the plea agreement set forth on the record at the time of the pleas of guilty.
2. Trial court [sic] rendered assistance below that guaranteed by the Sixth Amendment of United States, Constitution by failing to object to the court’s failure to impose sentences in compliance with the plea agreement.

For the following reasons, we vacate Defendant’s sentence and remand this matter to the trial court for resentencing in accordance with the plea agreemeiit.

FACTS

At the guilty plea proceeding, the State set forth a factual basis for the charge. The State indicated that Defendant took a firearm which belonged to | ¿.Shane Winch, without the consent of Mr. Winch and with the intent to permanently deprive him of the firearm.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find one error patent present.

A conviction of theft of a firearm requires the imposition of a $1000.00 fine. La.R.S. 14:67.15. This fine was not imposed by the trial court, rendering the Defendant’s sentence illegally lenient. However, “[w]e will not recognize an illegally lenient sentence claim unless it is raised as error.” State v. Kinchen, 11-9, p. 4 (La.App. 3 Cir. 6/8/11), 71 So.3d 344, 348.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant complains that the plea agreement was breached. In the transcript of the January 12, 2016 proceeding, the plea agreement was set forth in open court. It. provided a sentencing cap of twenty-five years at hard labor, and the State agreed that it would not file a multiple offender bill. Additionally, the following pertinent exchange occurred:

[COURT]: All right. So Docket No. 58075, 58080, 58133, 59219, 59221, 59224, 59253, 59259, and 59572 are all going to run concurrent?
MS. YOUNG: Correct, with Docket No. 58118.
J^COURT]: All right. That’s what’s agreed upon?
MS. YOUNG: Correct.
[COURT]: And then the Court will decide whether or not to run 58118 concurrent or consecutive, after the sentencing Hearing [sic]?
MR. HAMILTON: That is correct, Your Honor.
[COURT]: Is that correct?
MS. YOUNG: Correct

The following exchange occurred between the trial court and Defendant:

Q. Is that your deal, Mr. Miller?
A. What’s the other docket number? What’s the—
Q. Which one?
A, The one that y’all are going to decide after, to run it.
Q. That’s the dope charge, 58118. It looks like they’re running — the forgeries, the unauthorized use, the burglaries, are going to all run together. And then I will decide whether or not the drug charge should run at the same time or to run consecutive. But all in all, y’all have agreed to a cap of 25 years.
A. Right.
Q. Is that your deal?
A. Yes, ma’am.
Q. Is that what you want?
A. I mean, it’s pretty much the best I can get.
Q. Is that what you want?
A. Yes, ma’am, yes, ma’am.

A sentencing hearing was held on May 13, 2016, at which the trial court imposed the following sentences:

(1) Theft of a firearm (district court docket number 59219) — seven years at hard labor without the benefit of parole, probation, or suspension of | ¿sentence to run concurrently with the sentences imposed in docket numbers 58080, 58138, 59221, 59259, and 58075;
(2) Unauthorized use of a motor vehicle (district court docket number 58080) — five years at hard labor;
(3) Theft between $750.00 and $5,000.00 (district court docket number 58133) — three years at hard labor;
(4) Simple burglary (district court docket number 59221) — seven years at hard labor;
(5) Simple burglary (district court docket number 59259) — seven years at hard labor;
(6) Six counts of forgery (district court docket number 58075) — seven years at hard labor on each count to run concurrently with each other;
(7) Simple burglary (district court docket number 59572) — seven years at hard labor to run concurrently with the sentence imposed in district court docket number 58118;
(8) Simple burglary (district court docket number 59224) — nine years at hard labor to run consecutively to “all of the previous docket numbers mentioned by this court.”;
(9) Simple burglary (district court docket number 59253) — nine years at hard labor to run consecutively to docket number 59224; and
(10) Possession with intent to distribute schedule IV, Clonazepam, (district court docket number 58118) — five years at hard labor to run concurrently to “all of the docket numbers mentioned here today.”

Defendant concedes that the trial court complied with the twenty-five year sentencing cap. However, Defendant argues that the plea agreement was broken stating that “the charges prosecuted by Assistant District Attorney Ayo would run concurrent to each other and the judge would decide whether to run the sentence for the charge prosecuted by Assistant District Attorney Roger Hamilton, Jr. concurrent or consecutive.” Defendant argues that the trial court failed to order all of the sentences (except for the drug charge) run concurrently. Defendant urges |Bthat, since the plea agreement was breached, “all of the sentences imposed in the convictions before the court on May 13, 2016,” should be vacated and remanded to the trial court for resentencing. Upon remand, Defendant requests that the sentence imposed in district court docket number 58118 be ordered to run concurrently to all of the other sentences imposed. Defendant argues that a failure to do so would be a violation of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Defendant prays that his sentences be set aside and that he be resentenced in accordance with the plea agreement.

In its brief to this court, the State concedes that the matter should be remanded to the trial court for resentencing in compliance with the plea agreement. Additionally, the State is in agreement with Defendant that all of the sentences imposed on May 13, 2016 should be vacated and remanded for resentencing. The State writes, in pertinent part:

This Honorable Court should, as Appellate Counsel argues, should [sic] be remanded to the Honorable Laurie A. Hulin for resentencing in compliance with the Plea Agreement of the State and Defense Counsel. Thus, on. sentencing the trial judge should look to each Docket Number and the appropriate sentence, running the Docket Number under Assistant District Attorney, Ted L. Ayo, concurrent with each other and deciding whether the Docket Number of Assistant District Attorney, Roger P. Hamilton, Jr., should run concurrent or consecutive to that sentence.

Docket No. 58080-Unauthorized Use of a Motor Vehicle (R.S. 14:68.4), Imprisoned with or without hard labor for pot more than ten (10) years;
Docket Nos. 59259, 59253, 59224 and 59221 — Simple Burglary (R.S. 14:62), imprisoned with or without hard labor for not more than twelve (12) years;
Docket No. 58133 — Theft between $750.00 and $5,000.00 (R.S. 14:67), imprisoned with or without hard labor for not more than five (5) years;
| ^Docket No. 58075 — Six (6) counts of Forgery (R.S. 14:72), imprisoned with or without hard labor for not more than ten (10) years. As these are six (6) counts, the trial judge could run the counts concurrent or consecutive to each other;
Docket No. 59219 — Theft of a Firearm (R.S. 14:67.15), imprisoned with or without hard labor for not less than two (2) years nor more than ten (10) years, without the benefit of probation, parole or suspension of sentence (Emphasis added), [sic]
Docket No. 58118 — Possession with the Intént to Distribute Clonazepam (R.S. 40:969(A)(1), imprisoned with or without hard labor for ten (10) years. The State does not agree with Appellant’s argument that (footnote 3) the total maximum sentence would be twenty-two (22) years. As stated above, the six (6) counts of forgery could be run consecutively to one another and concurrent with all other docket numbers, with the exception of the drug case, which can run consecutively; or the sentence under the Theft of a Firearm can be imposed without benefit.

The' trial court partially complied with the- plea agreement. As noted above, it ordered that the sentence for theft of a firearm in district docket number 59219 be seven years at hard labor without the benefit of parole, probation, or suspension of sentence and for the sentence to run concurrently with the sentences imposed in district court docket numbers 58080, 58133, 59221, 59259, and 58075. The trial court failed to order the sentence to run concurrently with the sentences imposed for simple burglary (district court docket number 59572), simple burglary (district court docket number 59224),- simple burglary (district court docket number 59253), and possession of clonazepam with intent to distribute (district court docket number 58118).

In State v. Terrebonne, 01-2632, pp. 4-5 (La.App, 1 Cir. 6/21/02), 822 So.2d 149, 152, the court held: “Where the plea agreement calls for a legal sentence and the trial court agrees, the trial court is bound by the terms of the agreement.” See State v. Anthony, 99-0107, pp. 6-7 La. App. 4 Cir. 4/7/99, 735 So.2d 746, 750-751.” In State v. Cloud, 04-838 (La.App. 3 Cir. 2/2/05), 893 So.2d 220, this court explained the remedies available when' there is a breach of the plea agreement. This court held: “There are two remedies typically available in this situation: 1) specific performance of the plea agreement; and 2) withdrawal of the guilty plea, Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); State v. Chalaire, 375 So.2d 107 (La.1979); State v. Wade, 364 So.2d 575 (La.1978).” Cloud, 893 So.2d at 221.

In this case, the parties agree that the sentence was to run concurrently with all of the sentences imposed at the May 13, 2016 proceeding and that the trial court failed to sentence Defendant in accordance with the plea agreement. Defendant prays for specific performance of the plea agreement. We agree that the sentence imposed in this case should be vacated and that the matter be remanded to the trial court for resentencing in compliance with the plea agreement. .

Defendant and the State request that all of the sentences imposed on May 13, 2016 be vacated; however, neither one offers case law nor a statute to support the notion that this court should vacate all of the sentences from separate district court docket numbers which are not subject to this appeal. In State v. Lemelle, 06-2975 (La. 9/14/07), 964 So.2d 316, which is cited by Defendant, the supreme court held that the sentences imposed by the trial court, which did not comply with the plea agreement, should be vacated and remanded for resentencing. However, there was no indication that the vacated sentences were not included in the motion for appeal. Additionally, on application for writ of review in State v. Tanner, 12-773, 12-777 (La.App. 3 Cir. 10/7/13) (unpublished opinion), writ denied, 13-2599 (La. 1/23/14), 130 So.3d 953, which is cited by Defendant, both of the sentences that |swere vacated for failure to comply with the plea agreement were properly before the court; the appellate court ordered the docket numbers to be consolidated. Thus, the parties are not entitled to this requested relief.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant complains that -his attorney was ineffective for failing to object to the breach of the sentencing agreement at the conclusion of sentencing hearing. Defendant explains:

As noted earlier, the Direct Appeal contained only three of the ten docket numbers that were before the court. However, appellate counsel for Ricky Miller urges this court to not penalize Appellant for this oversight as the Direct Appeal filing was filed pro se. If this bars remand for resentencing on all docket numbers, or at least on all docket numbers where consecutive sentences were imposed, under the assignment of error, it is asserted that had trial counsel objected at sentencing to the trial court’s failure to sentence in accordance to the terms of the plea agreement, Appellant would not have been sentenced to the three consecutive sentences.

In order to prove an attorney was ineffective, a defendant must show that his attorney was deficient, and he was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

The record before this court does not reflect that Defendant’s trial attorney objected to any of the sentences imposed or filed a pleading seeking to correct the sentences to those agreed upon in the plea agreement. However, because we are vacating the sentence at issue in this appeal and remanding the matter for resentenc-ing in compliance with the plea agreement, we find that Defendant failed to prove his attorney was ineffective on this basis. Additionally, the failure of counsel to object at the time of sentencing did not preclude review of the alleged claim that the trial court failed to comply with the plea agreement. Furthermore, |Bthe other sentences imposed as part of the plea agreement are not before this court in this appeal. Cf. State v. Ervin, 45,068 (La.App. 2 Cir. 3/17/10), 33 So.3d 986.

Accordingly, this assignment of error is denied.

DECREE

Defendant’s sentence imposed for the offense of theft of a firearm, district court docket number 59219, is vacated and remanded to the trial court for resentencing in accordance with the plea agreement.

SENTENCE VACATED; REMANDED.

      . The court minutes mistakenly indicate that the proceeding was held on January 11, 2016, but the transcript indicates that it was held on January 12, 2016,

      . In addition to the present appeal, Defendant has two pending appeals, 16-904 and 16-908. The trial court provided this court with a separate record for each of its docket numbers, and each has been assigned a separate docket number for appeal. The three docket numbers were addressed at the same plea and sentencing hearings. This court granted Defendant’s motion to consolidate hut only for purposes of briefing and consideration. Defendant and the State submitted a single brief each addressing all three docket numbers.

      . The court minutes indicate that Defendant's seven year sentence imposed for docket number 59219 is to "run consecutive with sentenced imposed in 59253 and 59224 but concurrent with 58080, 58133, 59221, 59259, 58118, 58075, 59572.” The sentences imposed in docket numbers 59219 and 59572 were not ordered to run concurrently. “[I]t is well settled that when the minutes and the transcript conflict, the transcript prevails.” State v. Wommack, 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied, 00-2051 (La. 9/21/01), 797 So.2d 62. We are not ordering a correction of the court minutes because the sentence imposed in 59219 is being vacated, and the case is being remanded for resentencing.

      . At sentencing, the trial court mistakenly referred to this charge as unauthorized use of an access card.


source: Caselaw Access Project

author: SAVOIE, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Ricky Wayne MILLER aka Ricky Miller
    16-904
    Court of Appeal of Louisiana, Third Circuit.
    05/17/2017
    Annette Fuller Roach, Louisiana Appellate Project, P. O. Box 1747, Lake Charles, LA 70602-1747, (337) 436-2900, COUNSEL FOR DEFENDANT/APPELLANT: Ricky Wayne Miller

      Hon. Keith A. States, Lafayette Parish DA, P. 0. Box 8306, Lafayette, LA 70502-3306, (337) 232-5170, COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana
    Roger P. Hamilton, Jr., Attorney at Law, P. 0. Box 12625, New Iberia, LA 70562-2625, (337) 519-7180, COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana, Ricky Wayne Miller, Ricky Wayne Miller
    Court composed of D. Kent Savoie, Van H. Kyzar, and David E. Chatelain , Judges.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   SAVOIE, Judge.

hOn January 12, 2016, Defendant, Ricky Wayne Miller, entered a guilty plea to possession of clonazepam with the intent to distribute, a violation of La. R.S. 40:969(A)(1), in district court docket number 58118. On May 13, 2016, as part of the plea agreement, Defendant was sentenced to five years at hard labor to run concurrently with all of the sentences imposed at the May 13, 2016, proceeding. A motion to reconsider sentence was not filed.

Defendant appeals assigning the following errors:

1. The trial court erred in imposing consecutive sentences in violation of the plea agreement set forth on the record at the time of the pleas of guilty.
2. Trial court [sic] rendered assistance below that guaranteed by the Sixth Amendment of United States Constitution by failing to object to the court’s failure to impose sentences in compliance with the plea agreement.

FACTS

At the guilty plea proceeding, the State set forth a factual basis for the charge. The State explained that during the execution of an arrest warrant, a routine search was conducted. During the search, a pill bottle with eighteen “green” pills was found on Defendant.

TERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we found no errors patent present.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant complains that the plea agreement was breached. In the transcript of the January 12, 2016 proceeding, the plea agreement was set forth in open court. It provided a sentencing cap of twenty-five years at hard labor, and the State agreed that it would not file a multiple offender bill. Additionally, the following pertinent exchange occurred:

[COURT]: All right. So Docket No. 58075, 58080, 58133, 59219, 59221, 59224, 59253, 59259, and 59572 are all going to run concurrent?
MS. YOUNG: Correct, with Docket No. 58118.
[COURT]: All right. That’s what’s agreed upon?
MS. YOUNG: Correct. .
[COURT]: And then the Court will decide whether or hot to run 58118 concurrent or consecutive, after the sentencing Hearing [sic]?
MR. HAMILTON: That is correct, Your Honor.
[COURT]: Is that correct?
MS. YOUNG: Correct

The following, exchange occurred between the trial court and Defendant:

Q, Is that your deal, Mr, Miller?
A. What’s the other docket number? What’s the—
Q. Which one?
A, The one that /all are going to decide after, to run it.
laQ, That’s the dope charge, 58118. It looks like they’re running — the forgeries, the unauthorized use, the burglaries, are going to all run together. And then I will decide whether or not the drug charge should run at the same time or to run consecutive. But all in all, /all havd agreed to a cap of 25 years.
A. Right.
Q. Is that your deal?
A. Yes, ma’am.
Q. Is that what you want?
A. I mean, it’s pretty much the best I can get,
Q. Is that what you want?
A. Yes, ma’am, yes, ma’am.

A sentencing hearing was held on May 13, 2016, at which the trial court imposed the following sentences:

(1) Theft of a firearm (district court docket number 59219) — seven years at hard labor without the benefit of parole, probation, or suspension of sentence to run concurrently with the sentences imposed in docket numbers 58080, 58133, 59221, 59259, and 58075;

(2) Unauthorized use of a motor vehicle (district court docket number 58080) — five years at hard labor;

(3) Theft between $750.00 and $5,000.00 (district court docket number 58133) — three years at hard labor;

(4) Simple burglary (district court docket number 59221) — seven years at hard labor;

(5) Simple burglary (district court docket number 59259) — seven-years at hard labor;

k(6) Six counts of forgery (district court docket number 58075) — seven years at hard labor on each count to run concurrently with each other;

(7) Simple burglary (district court docket number 59572) — seven years at hard labor to run concurrently with the sentence imposed in district court docket-number 58118;

(8) Simple burglary (district court docket number 59224) — nine years at hard labor to run consecutively to “all of the previous docket numbers mentioned by this court”;

(9) Simple burglary (district court docket number 59253) — nine years at hard labor to run consecutively to docket number 59224; and

(10) Possession with intent to distribute schedule IV, clonazepam, (district court docket number 58118) — five years at hard labor to run concurrently to “all of the docket numbers mentioned here today,”

Defendant concedes that the trial court complied with the twenty-five year sentencing cap. However, Defendant argues that the plea agreement was broken stating “the charges prosecuted by Assistant District Attorney Ayo would run concurrent to each other and the judge would decide whether to run the sentence for the charge prosecuted by Assistant District Attorney Roger Hamilton, Jr. concurrent or consecutive.” Defendant argues that the trial court failed to order all of the sentences (except the drug charge) run concurrently. Defendant urges that, since the plea agreement was breached, “all of the sentences imposed in the convictions before the court on May 13, 2016,” should be vacated and remanded to the trial court for resentencing. Upon remand, Defendant requests that the sentence imposed in district court docket number 58118 be ordered to run concurrently to all of the other sentences imposed. Defendant argues that a failure to do so would be a violation of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Defendant prays that his sentences be set aside and that he be resentenced in accordance with the plea agreement.

lain its brief to this court, the State concedes the matter should be remanded to the trial court for resentencing in compliance with the plea agreement. Additionally, the State is in agreement with Defendant that all of the sentences imposed on May 13, 2016 should be vacated and remanded for resentencing. The State writes, in pertinent part:

This Honorable Court should, as Appellate Counsel argues, should [sic] be remanded to the ■ Honorable Laurie A. Hulin for re-sentencing in compliance with the Plea Agreement of the State and Defense Counsel. Thus, on sentencing the trial judge should look to each Docket Number and the appropriate sentence, running the Docket Number under Assistant District Attorney, Ted L. Ayo, concurrent with each other and deciding whether the Docket Number of Assistant District Attorney, Roger P. Hamilton, Jr., should run concurrent or consecutive to that sentence.
Docket No. 58080-Unauthorized Use of a Motor Vehicle (R.S. 14:68.4), Imprisoned with or without hard labor for not more than ten (10) years;
Docket Nos. 59259, 59253, 59224 and 59221 — Simple Burglary (R.S. 14:62), imprisoned with or without hard labor for not more than twelve (12) years;
Docket No. 58133 — Theft between $750.00 and $5,000.00 (R.S. 14:67), imprisoned with or without hard labor for not more than five (5) years;
Docket No. 58075 — Six (6) counts of Forgery (R.S. 14:72), imprisoned with or without hard labor for not more than ten (10) years. As these are six (6) counts, the trial judge could run the counts concurrent or consecutive to each other;
Docket No. 59219 — Theft of a Firearm (R.S. 14:67.15), imprisoned with or without hard labor for not less than two (2) years nor more than ten (10) years, without the benefit of probation, parole or suspension of sentence (Emphasis added), [sic]
Docket No. 58118 — Possession with the Intent to Distribute Clonazepam (R.S. 40:969(A)(1), imprisoned with or without hard labor for ten (10) years.
| fiThe State does not agree with Appellant’s argument that (footnote 3) the total maximum sentence would be twenty-two (22) years. As stated above, the six (6) counts of forgery could be run consecutively to one another and concurrent with all other docket numbers, with the exception of the drug case, which can run consecutively; or the sentence under the Theft of a Firearm can be imposed without-benefit.

As noted above, Defendant has no complaint about the sentence imposed in district court docket number 58118, and he requests the same sentence be imposed. Because the trial court imposed the agreed upon sentence, no correction is needed.

Additionally, the request by Defendant and the State that all of the sentences imposed on May 13, 2016 be vacated is groundless. Neither one offers case law nor a statute to support the notion that this court should vacate all of the sentences from the separate district court docket numbers which are not subject to this appeal. In State v. Lemelle, 06-2975 (La. 9/14/07), 964 So.2d 316, which is cited by Defendant, the supreme court held that the sentences imposed by the trial court, which did not comply with the plea agreement, should be vacated and remanded for resentencing. However, there was no indication the vacated sentences were not in the motion for appeal. Additionally, on application for writ of review in State v. Tanner, 12-773, 12-777 (La.App. 3 Cir. 10/7/13) (unpublished opinion), writ denied, 13-2599 (La. 1/23/14), 130 So.3d 953, which is cited by Defendant, both of the sentences that were vacated for failure to comply with the plea agreement were properly before the court; the appellate court ordered the docket numbers to be consolidated.

Accordingly, this assignment of error is denied.

^ASSIGNMENT OF ERROR NUMBER TWO

Defendant complains that his attorney was ineffective for failing to object to the breach of the sentencing agreement at the conclusion of sentencing. Defendant explains:

As noted earlier, the Direct Appeal contained only three of the ten docket numbers that were before the court. However, appellate counsel for Ricky Miller urges this court to not penalize Appellant for this oversight as the Direct Appeal filing was filed pro se. If this bars remand for resentencing on all docket numbers, or at least on all docket numbers where consecutive sentences were imposed, under the assignment of error, it is asserted that had trial counsel objected at sentencing to the trial court’s failure to sentence in accordance to the terms of the plea agreement, Appellant would not have been sentenced to the three consecutive sentences.

In order to prove an attorney was ineffective, a defendant must show his attorney was deficient, and he was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

The record before this court does not reflect that Defendant’s trial attorney objected to any of the sentences imposed or filed a pleading seeking to correct the sentences to those agreed upon in the plea agreement. However, the trial court did not err in complying with the plea agreement when it imposed the sentence in district court docket number 58118. Thus, Defendant’s attorney was not ineffective for failing to object in this case. Additionally, the failure of counsel to object at the time of sentencing does not preclude review of the alleged claim that the trial court failed to comply with the plea agreement. Furthermore, the other sentences imposed as part of the plea agreement are not before this court in this appeal. Cf. State v. Ervin, 45,068 (La.App. 2 Cir. 3/17/10), 33 So.3d 986.

Accordingly, this assignment of error is denied.

| ¡¡DECREE

The Defendant’s sentence should be affirmed.

AFFIRMED.

      . The court minutes mistakenly indicate that the proceeding was held on January 11, 2016, but the transcript indicates it was held on January 12, 2016.

      . The remaining charges in the bill of information were dismissed.

      .In addition to the present appeal, Defendant has two pending appeals, 16-907 and 16-908. The trial court provided this court with a separate record for each of its docket numbers, and each has been assigned a separate docket number for appeal. The three docket numbers were addressed at the same plea and sentencing hearings. This court granted Defendant’s motion to consolidate but only for purposes of briefing and consideration. Defendant and the State submitted a single brief each addressing all three docket numbers.

      . Although the record in this case indicates that the sentencing transcript' is included, it appears the clerk mistakenly included "another copy of the guilty plea proceeding. Thus, we are referencing the sentencing transcript in 16-907, ‘

      . At sentencing, the trial court mistakenly refers to the charge as unauthorized use of an access card.


author: SAVOIE, Judge. CHATELAIN, Judge,

text:
    Catherine COBB v. LAFAYETTE PARISH SCHOOL BOARD
    2016-990
    Court of Appeal of Louisiana, Third Circuit.
    05/17/2017
    Rehearing Denied July 26, 2017

      Michael B. Miller, Attorney at Law, P. 0. Drawer 1630, Crowley, LA 70527-1630, (337) 785-9500, COUNSEL FOR PLAINTIFF/APPELLEE: Catherine Cobb
    L. Lane Roy, Brown Sims, 600 Jefferson St., Suite 800, Lafayette, LA 70501, (337) 484-1240, COUNSEL FOR DEFENDANT/APPELLANT: Lafayette Parish School Board
    Catherine M. Landry, Mandy Simon, Preis PLC, 102 Versailles Boulevard, Suite 400, P. O. Drawer 94-C, Lafayette, LA 70509, (337) 237-6062, COUNSEL FOR DEFENDANT/APPELLANT: Lafayette Parish School Board
    Court composed of D. Kent Savoie, Van H. Kyzar, and David E. Chatelain
      , Judges.

      . Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore,

   SAVOIE, Judge.

|tIn this workers’ compensation matter, the employer appeals an award of penalties and attorney fees in favor of the claimant for failing to pay claimant’s medical bills. For the reasons that follow, we reverse in part, and affirm in part as amended.

Procedural and Factual Background

On May 8, 2001, Catherine Cobb filed a disputed claim for compensation alleging she was injured in September 2000, during the course and scope of her employment with the Lafayette Parish School Board (LPSB). On July 20, 2005, the parties stipulated that Ms. Cobb was entitled to temporary total disability benefits. LPSB then terminated these benefits on August 30, 2006. However, it did not file a motion seeking to modify Ms. Cobb’s benefits until May 30,2008.

On August 31, 2009, the Office of Workers’ Compensation (OWC) rendered judgment in favor of Ms. Cobb, awarding indemnity benefits in the amount of $195.25 payable from September 12, 2000 through May 30, 2008, as well as $3,000.00 in penalties, which was 24% of unpaid benefits from August 31, 2006 through May 30, 2008. Ms. Cobb was also awarded $10,000.00 in attorney fees, $1,135.53 in costs, and legal interest. No other benefits were awarded.

Ms. Cobb appealed the August 31, 2009 judgment to the extent it failed to award her with any other benefits, and LPSB appealed the award of penalties and attorney fees. The August 31, 2009 judgment was affirmed in all respects by this court on November 3, 2010. Cobb v. Lafayette Parish School Bd., 10-430 (La.App. 3 Cir. 11/3/10), 49 So.3d 597, writ denied, 10-2692 (La. 1/28/11), 56 So.3d 958.

On July 7, 2010, Ms. Cobb filed a motion seeking additional penalties and attorney fees for LPSB’s failure to pay the August 31, 2009 judgment, The ^workers’ compensation judge granted Ms. Cobb’s motion and awarded her $3,000 in penalties and $2,500 in attorney fees pursuant to a judgment dated March 27,2012.

Ms. Cobb filed another motion seeking penalties and attorney fees on October 12, 2012, alleging LPSB failed to pay the March 27, 2012 judgment. She then filed an amended motion on December 14, 2012, additionally alleging that LPSB failed to pay certain medical bills incurred by Ms. Cobb, and therefore, that she was entitled to penalties and attorney fees. Ms. Cobb did not seek payment of those bills from LPSB.

The bills at issue include $4,999 for services rendered by Michael Berard, Ph.D. from October 17, 2005, through February 14, 2008; $4,730 for services rendered by Michael Berard, Ph.D. from March 2008 through August 2010; three separate bills totaling $80 each for services rendered by Dr. Pervez Mussarat on December 1, 2009, February 24, 2010, and June 15, 2010; and receipts for medication prescribed by Dr. Mussarat that Ms. Cobb purchased from CVS pharmacy from January 2010 through July 2010.

A hearing was held on June 28, 2013. On April 23, 2015, the OWC rendered judgment granting Ms. Cobb’s motions and awarding her $3,000 in penalties in accordance with La.R.S. 23:1201(G) for LPSB’s failure to pay the 2012 judgment, $6,000 in penalties in accordance with La.R.S. 23:1201(F) for LPSB’s failure to pay medical bills, $5,000 in attorney fees, together with costs and legal interest.

LPSB filed a motion for new trial on May 4, 2015, asserting for the first time that Ms. Cobb’s claims for penalties and attorney fees with respect to the unpaid medical bills were barred by res judicata, given the finality of the August 31, 2009 | ¡^judgment. A hearing was held on June 9, 2015. Judgment was rendered on June 8, 2016, denying LPSB’s motion. LPSB has appealed. In addition, Ms. Cobb has submitted a motion to this court to remove evidence from the record before us.

Ms. Cobb’s Motion to Remove Evidence

Ms. Cobb seeks to remove from the record documentation attached as Exhibits 1 and 2 to LPSB’s post-hearing memorandum in support of its motion for new trial, arguing that no evidence was offered or accepted during the hearing on LPSB’s motion. Specifically, LPSB attached as Exhibit 1 the OWC’s August 31, 2009 judgment and reasons for judgment, and it attached as Exhibit 2 an unsigned copy of Ms. Cobb’s appellant brief to this court in connection with her appeal of the August 2009 judgment.

“Evidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record. Documents attached to memo-randa do not constitute evidence and cannot be considered as such on appeal.” Denoux v. Vessel Mgmt. Servs., Inc., 07-2143, p. 6 (La. 5/21/08), 983 So.2d 84, 88. Therefore, we do not consider the content of Exhibit 2 on appeal, and Ms. Cobb’s motion is granted in that regard.' However, We note that Exhibit 1 was merely a copy of the workers’ compensation judge’s prior judgment and written reasons rendered in connection with the instant matter; and therefore, it is already in the workers’ compensation court’s record. Thus, we deny Ms..Cobb’s motion as to Exhibit 1.

LPSB’s Appeal

On appeal, LPSB contends that the workers’ compensation judge erred in awarding penalties and attorney fees for its failure to pay Ms. Cobb’s medical bills at issue. It argues that Ms. Cobb failed to present sufficient evidence, that concepts |4of res judicata and the law of case doctrine barred Ms. Cobb’s claims, and that it was justified in not paying the bills at issue. In addition, LPSB asserts that the trial court erred in not granting its motion for new trial. LPSB does not appeal the award of penalties and attorney fees in connection with its failure to pay the prior judgment; therefore, we do not address the propriety of that portion of the judgment.

“The determination of whether an employer should be cast with penalties and attorney fees is a question of fact which should not be reversed absent manifest error.” Sigler v. Rand, 04-1138, pp. 10-11 (La.App. 3 Cir. 12/29/04), 896 So.2d 189, 196, writ denied, 06-278 (La. 4/1/05), 897 So.2d 611.

Ms. Cobb’s claim for penalties and attorney fees related to LPSB’s failure to pay the medical bills at issue is necessarily dependent upon a finding that Ms. Cobb was entitled to payment of medical benefits resulting from the September 2000 accident.

In order to establish a claim for medical benefits, a claimant must show that the benefit is occasioned by the work-related accident to a reasonable certainty and by a preponderance of the evidence. Additionally, a claimant must prove, also by a preponderance of the evidence, that a particular medical expense is necessary.

Alleman v. Fruit of the Loom-Crowley, 96-1246, pp. 5-6 (La.App. 3 Cir. 3/5/97), 692 So.2d 485, 488 (citations omitted).

At trial, invoices from Dr. Berard and Dr. Mussarat, showing only the dates of services rendered and the costs of services, were submitted into evidence. Receipts from CVS pharmacy showing medication purchased by Ms. Cobb and the costs of those purchases were also submitted into evidence. In addition, Ms. Cobb testified that she was treated by Dr. Ber-ard and Dr. Mussarat on the dates appearing on the invoices, and that Dr. Mussarat, who prescribed her the | ^medication obtained from CVS pharmacy, was a neurologist. There was no evidence whatsoever establishing the nature of the treatment received by Ms. Cobb, that the treatment or prescriptions were necessitated by any injuries Ms. Cobb allegedly sustained in the September 2000 accident, or that the particular medical expenses were necessary. The fact that she may have incurred these bills is insufficient to establish her entitlement to benefits, without showing some connection between the bills and services received with the injuries related to the workers’ compensation claim. Therefore, the OWC was manifestly erroneous in concluding that Ms. Cobb was entitled to penalties and attorney fees due to LPSB’s failure to pay the medical bills at issue. We reverse the award of $6,000 in penalties for failure to pay the medical bills at issue, and the attorney fees awarded in this matter are reduced to $2,500 so as to eliminate attorney fees incurred in connection with Ms. Cobb’s claims concerning the medical bills at issue.

Because we find that the evidence was insufficient to award penalties and attorney fees for LPSB’s failure to pay the medical bills at issue, we pretermit the issues of whether Ms. Cobb’s claims were barred by res judicata, and whether the workers’ compensation judge’s denial of LPSB’s motion for new trial asserting res judicata was an abuse of discretion.

CONCLUSION

We grant in part Ms. Cobb’s Motion to Remove Evidence with respect to Exhibit 2 attached to LPSB’s memorandum in support of its motion for new trial. Otherwise, Ms. Cobb’s motion is denied.

We further reverse the award of $6,000 in penalties for failing to pay the medical bills at issue, and reduce the attorney fee award to $2,500. Costs of this appeal are assessed to Appellee, Catherine Cobb.

J^REVERSED IN PART; AFFIRMED IN PART AS AMENDED.

Chatelain, J., concurs in the result and assigns reasons.

CHATELAIN, Judge,

concurring for additional reasons.

hi fully agree with the majority opinion, but choose to comment on the long delays this one case exposes in adjudication through the Louisiana Office of Workers’ Compensation Administration.

Workers’ Compensation is fundamentally “social legislation through which ‘employees and employers surrender certain advantages in exchange for others which are more valuable to both parties and society.’” Melancon v. Lafayette Ins. Co., 05762, p. 9 (La.App. 3 Cir. 3/29/06), 926 So.2d 693, 702, writs denied, 06-974, 061006 (La. 6/16/06), 929 So.2d 129 (citing Deshotel v. Guichard Operating Co., Inc., 03-3511, p. 7 (La. 12/20/04), 916 So.2d 72, 77). Elaborating upon this concept, our supreme court stated in Atchison v. May, 201 La. 1003, 10 So.2d 785, 788 (1942):

The act, which is social legislation, was passed for the joint benefit of labor and management in order to insure that employees who have become disabled as a result of their labors in hazardous industries would have, during the period of their disability, a weekly income for the upkeep of themselves and their families. It was also deemed advisable to provide for compensation, in cases of jdeath, to the persons dependent upon the employee for support so that these persons would not be entirely bereft of funds during the period of time following the employee’s death when they, of necessity, were compelled to reconstruct then-lives and seek a means of support, — thus avoiding the possibility that these persons would become public charges.

|aEarly on, it was observed that a conspicuous disadvantage of the court-administered system for addressing the compensation for worker injuries was the delay inherent in securing reparation through court action. H. Alston Johnston III, 13 Louisiana Civil Law Treatise, Workers’ Compensation Law and Practice § 37(5th ed. 2016). “This is particularly serious when it is recalled that one of the principal blessings desired from the compensation scheme is the assurance of a small but prompt payment made when it is most needed.” Id. Indeed, this was one of the impetuses in 1990 for Louisiana to shift adjudicatory functions in the workers’ compensation arena from our district courts to “ádministrative hearing officers, who later evolved into workers’ compensation judges[.]” Id.

At the heart of the present case is Ms. Cobbs’s amended motion dated December 14, 2012, seeking payment of $4,999 for various bills for medical services. Although a hearing was held on June 28, 2013, the OWC did not grant Ms. Cobbs’s motions until April 23, 2015, approximately two- and-one-third years after filing. Thereafter, LPSB timely filed its motion for a new trial on May 4, 2015. Even though a hearing was held on June 9, 2015, the OWC did not render judgment until June 8, 2016. Thus, between the time of filing her motion and the adjudication of LPSB’s motion for new trial, approximately three-and-one-half years passed.

Although our decision today only partially favors Ms. Cobbs, it gives me pause that the adjudication of this one aspect of the litigation, one that has adverse economic repercussions for Ms. Cobbs, has taken so long to resolve. As William E. Gladstone said over a century ago, “Justice delayed is justice denied.”


author: CHEHARDY, C.J.

text:
    STATE of Louisiana v. Emilio CALDERON
    NO. 16-KA-690
    Court of Appeal of Louisiana, Fifth Circuit.
    April 12, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Darren A. Allemand
    COUNSEL FOR DEFENDANT/APPELLANT, EMILIO CALDERON, Bruce G. -Whittaker
    Panel composed of Susan M. Chehardy, Fredericka Homberg Wicker, and Stephen J. Windhorst
   CHEHARDY, C.J.

I defendant, Emilio Calderon, appeals his convictions and sentences for second degree murder and first degree feticide. For the reasons that follow, we affirm his cofivictions and sentences, and remand the matter for correction of the commitment.

FACTS AND PROCEDURAL HISTORY

Katherine Martinez was found strangled to death in her apartment on June 7, '2014. She was eight months pregnant. Years before, in 2007, wh.en Katherine was sixteen years old, she immigrated to the United States with her mother, Orla Martinez. They initially settled in New York City;' but after Katherine had finished high school, she and her mother moved to Gretna in 2011, where Katherine got a job and began pursuing a career in nursing. Katherine also maintained a social life, befriending Santos Reyes, Juan Lozano, and Emilio Calderon, defendant. Although she was romantically involved with each of these men to varying degrees at various points in time, the evidence suggests Katherine established a steady relationship with Mr. Lozano sometime in. 2012 and became pregnant with his child in late 2013.

On the night of Saturday, June 7, 2014, Katherine and Mr. Lozano were to pick up Katherine’s mother from the airport. Mrs. Martinez, who was in New York,, had spoken with Katherine that morning, but was unable to get in touch with her after 1:00 p.m. eastern time. Growing concerned, Mrs. Martinez called Santos Reyes around 5:00 p.m. central time to see if he could get in touch with Katherine. Mr. Reyes sent several text messages to Katherine but got no response. At Mrs. Martinez’s insistence, Mr. Reyes went to Katherine’s apartment looking for her. The lights were out and nobody answered the door, so he assumed she was not home and he left.

laMrs. Martinez arrived at the New Orleans airport around 11:00 p.m. Mr. Reyes picked her up and they went straight to Katherine’s apartment in Gretna. They forced open the door and found Katherine unresponsive on the kitchen floor. Mr. Reyes immediately began administering first aid, but soon realized that Katherine was stiff and cold to the touch. After failed attempts to revive her with fingernail polish remover, they called 9-1-1.

Detective Gabriel Faucetta of the Jefferson Parish Sheriffs Office (“JPSO”) responded to the scene around 1:00 a.m. on June 8, 2014. Katherine lay face up on the kitchen floor in only a brassiere, shorts, and underwear. Several of her acrylic fingernails were broken off, suggesting a struggle had occurred. She had sustained several stab wounds.

The autopsy later confirmed Katherine’s cause of death was asphyxia due to strangulation. This was also her unborn child’s cause of death. It was determined that the five stab wounds had not caused her death because she had not lost a fatal amount of blood. It was estimated that Katherine had been dead between four and twelve hours at the time she was found.

Through his investigation, Detective Faucetta was put in touch with Katherine’s boyfriend, Mr. Lozano, who agreed to meet with him at the detective bureau. Mr. Lozano was very cooperative: he answered the detective’s questions, allowed officers to search his cell phone, and provided a DNA sample. Mr. Lozano also removed his shirt and permitted officers to examine his body for injuries or scratches. None were found. Officers searched Mr. Lozano’s vehicle, house, and business, but located nothing of value. Through the use of cellular records, Detective Faucetta corroborated Mr. Lozano’s whereabouts on June 7, 2014. Mr. Lozano was ruled out as a suspect.

Similarly, Mr. Reyes agreed to meet with detectives, and was also very cooperative, allowing officers to search his cell phone, providing a DNA sample, |sand permitting an examination of his body, which did not reveal any injuries or scratches. Mr. Reyes’ whereabouts on June 7, 2014 were also corroborated with his cellular records. He too was ruled out as a suspect.

As detectives continued their investigation, Mrs. Martinez advised them of troubling conversations she had with defendant through Facebook and WhatsApp, a text messaging application. The evidence suggested that defendant and Katherine had a falling out and that Katherine cut off communication with him, blocking him on social media. This prompted him to reach out to her mother. In a Facebook conversation on October 26, 2012, defendant told Mrs. Martinez that Katherine had hurt him but that he still loved her and did not know what to do. Then, two days later, defendant messaged Mrs. Martinez asking for Katherine’s phone number, explaining that “despite the insults, the lies, everything, I still love her and cannot forget her.” On November 4, 2012, Mrs. Martinez relayed to defendant Katherine’s message that she did not want to hurt him but it was best for him to forget about her. Months later, on April 7, 2013, defendant messaged Mrs. Martinez asking her to tell Katherine that he loved her, that she was the love of his life, and that he would wait his whole life for her. Over the next several months, defendant continued to communicate with Mrs. Martinez through Facebook, attempting to reunite with Katherine, with no success. Finally, in May of 2014, defendant asked Mrs. Martinez if Katherine was pregnant. Upon learning that she was, he responded with two emojis of crying faces.

Detective Faucetta decided to follow this lead and obtained defendant’s cellular records. Analysis of these records revealed that on the morning of June 7, 2014, defendant’s cell phone was in close range of the shipyard in Lafourche Parish where he was employed. As the day progressed, the records reflect that his cell phone gradually drew closer in range to the victim’s apartment. At 2:05 p.m., phis phone was within one mile of the victim’s apartment. Thereafter, the records indicate that his cell phone drew progressively distant from her apartment and closer to the shipyard, where it finally stopped.

■ With this information, on June 10, 2014, Detective Faucetta coordinated with the Lafourche Parish Sheriffs Office to meet with defendant at the shipyard. Defendant agreed to accompany the detectives to the Lafourche Parish Sheriffs Office, where he was advised of his rights, agreed to waive them, and spoke with the officers. Defendant gave four recorded statements that day. Though defendant is able to communicate in English, his primary language is Spanish. Accordingly, in defendant’s first two statements, Lieutenant Valerie Martinez of the Lafourche Parish Sheriffs Office assisted with translation. Detective Julio Alvarado of JPSO assisted in defendant’s third and fourth statements.

In his first statement, which began at 4:34 p.m. and concluded at 4:52 p.m., defendant explained that he had known Katherine for two years and that they had intermittent sexual relations, but that they had- not dated exclusively. He stated that he gave her money for a plane ticket to New York and $2,000 to buy a car. He claimed the last time he saw her was two weeks prior when they met in a hotel room to have sex. He denied being in Gretna over the weekend and stated that his cell phone was with him at all times over the weekend.

In his second statement, which began at 5:21 p.m. and concluded at 5:40 p.m., defendant began to change his story. He now acknowledged that he was in Gretna on June 7 because Katherine texted him and asked him to come to her apartment. He explained he went there around 2:00 or 3:00 p.m. to have sex with her. He was waiting in the parking lot when she texted him and told him that she could not see him because she was busy. So he left. He denied entering Katherine’s apartment that day. He admitted that he loved her and that after she “de-friended” him on Facebook, he created an alias to continue to watch her.

| ¿After concluding the second statement, the detectives took a break and defendant was given some time to rest by himself. During this break, a search warrant was secured to obtain a DNA sample from defendant and to examine his body. This .examination revealed scratches and bruises on his upper left chest.

The detectives questioned defendant about these injuries in his third statement, which began at 9:30 p.m. and concluded at 9:45 p.m. In this statement, defendant’s story continued to change. He now admitted that he entered Katherine’s apartment on June 7. He explained that when he arrived around 2:00 p.m., Katherine texted him and told him to come inside. They had sex on the sofa, and afterwards Katherine told him she had things to do, so he left. He disposed of the condom he had used in a garbage can outside her apartment. He estimated that he was in the apartment for approximately one hour. Defendant reiterated that he loved Katherine and stated that he was hurt and angry when he learned that she was pregnant with another man’s child.

When the detectives questioned defendant about the scratches and bruises on his chest, he explained that he sustained those injuries at his job where he was frequently burned when welding. He denied being scratched by Katherine or being involved in a physical altercation with her. He denied killing Katherine.

In his fourth statement, which began at 10:11 p.m. and concluded at 10:37 p.m., defendant admitted to killing Katherine, but explained he did so because she attacked him. He again recounted that they had sex on the sofa, after which she asked him for $600. When defendant told her that he would give her the money another day, Katherine exclaimed, “Son of a bitch I want my money!” and began hitting defendant, who was not yet fully dressed and did not have his shirt on. He explained this was how he received the scratches and bruises on his chest. Katherine stopped momentarily, retreated to the kitchen, and came back with a knife. Continuing to scream at defendant, she “launched” forward to stab him. | ^Defendant wrested the knife away from Katherine, who resumed striking him with her hands. Bothered, upset, and angry that she would not stop hitting him, defendant stabbed her once in the side and threw the knife to the kitchen floor. As she continued to scream and strike defendant, he grabbed her by the neck “to control her.” She did not relent so defendant squeezed Katherine’s neck tightly with one hand and pushed her up against the kitchen wall. She went lifeless and fell to the ground when he released his hand. Defendant grabbed Katherine’s apartment key, the knife, and the condom, left the apartment, locked the door, and discarded the items in the dumpster outside. (A search of this dumpster turned up nothing). Defendant explained he did not go to Katherine’s apartment that day with the intention of killing her. He did so because she attacked him and he expressed remorse about doing it.

Laura Oliver, a DNA analyst with the JPSO DNA Laboratory and a qualified expert in the field, conducted DNA analysis in this case. Ms. Oliver tested four of Katherine’s acrylic fingernails, only three of which yielded usable DNA profiles. Each of these three nails contained two DNA profiles. In each nail, Ms. Oliver found one of these profiles was consistent with that of Katherine, but could only draw a conclusion regarding the second DNA profile in just one of the three. In this third nail, Ms. Oliver excluded Juan Lozano and Santos Reyes as possible donors for the second DNA profile, but could not exclude defendant. From this, Ms. Oliver concluded that it was T.l billion times more likely that the two DNA profiles in this third nail were attributable to Katherine and defendant rather than attributable to Katherine and an unknown individual. Moreover, Ms. Oliver sent these DNA profiles from this third nail to Dr. Mark Perlin at Cyber Genetics in Pennsylvania to verify the results. Dr. Perlin concluded that the match between the DNA profile from the third,nail and defendant was 134 million times more probable than a coincidence.

|7Ms.- Oliver also conducted another DNA test focusing only on the Y chromosome exclusive to males. This test revealed that there was a 99.97% probability that the male DNA profile present in one of the fingernails belonged to defendant. Similarly, there was a 99.98% probability that the male DNA profile present in another fingernail belonged to defendant.

On September 18, 2014, a Jefferson Parish Grand Jury returned an indictment charging defendant with the second degree murder of Katherine Martinez, a violation of La. R.S. 14:30.1 (count one), and with the first degree feticide of her unborn child, a violation of La. R.S. 14:32.6 (count two). Defendant entered a plea of not guilty. In anticipation of trial, the State filed motions in limine seeking to exclude from evidence exculpatory statements from anonymous sources. These motions were heard on September 3, 2015 and granted.

On September 22, 2015, the matter proceeded to trial by jury. On September 24, 2015, the twelve-person jury returned a verdict of guilty as charged on both counts. At the sentencing hearing on October 7, 2015, defense counsel orally moved for' a new trial on-the basis that the court had erred in its September 3 rulings on the motions in limine. This was reduced to a written motion, which the court denied that day.

Defendant waived sentencing delays and was sentenced on count one, to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, and on count two, to fifteen years at hard labor, to be served consecutively to his sentence on count one. Defendant was later granted an out-of-time appeal.

DISCUSSION

In defendant’s sole assignment of error on appeal, he argues that the district court erred in granting the State’s motions in limine, excluding from evidence a text message sent to Orla Martinez and the testimony of a prospective defense | ^witness. These rulings, defendant contends, deprived him of his constitutional right to present a defense.

In January of 2015, Mrs. Martinez advised the Jefferson Parish District Attorney’s Office that on January 17, 2015 she received a text message from an unknown Honduras telephone number regarding Katherine’s murder. The message was in Spanish and was translated by Detective Julio Alvarado, It provided: ,

Hello Ms. Orla I was at the point of telling you this personally, but I could not risk telling on myself and I am not that big of an asshole to stay in the United States and be imprisoned for the rest of my life. I honestly feel bad for what happened to Kata[.] We- had a one year relationship that when she came from New York from that time I discovered that she was laying down with two more in New York and three in Louisiana I investigated everyone and was .able to confirm that she did cheat on me.
Well when we were together everything was very good between us and we spent the.24th.of December that was the day • she supposedly became pregnant and I was lied to[.] I know everything about those guys and everything that happened was an accident[.] I arrived at the apartment by myself to confront her and for her to pay me money that she asked to borrow[.] I only wanted to scare her and she got stupid with the knife and wanted to hurt me and well, all finish .like that[.] It could have been worse if not for the guy that found me[.]
Guilty of what happened and yes the guy that found me in the apartment came to talk and let him come and go here and find out there because his fault I did not do more and wanted to tell her that Mr. Tomas but I see that Kata gave more to you all I am very sorry for you all but she is the one[.] When you family found out and I did what I supposedly have done is shot her in the head an[d] never talk to her again.

The State turned this information over to the defense during discovery. Through further investigation, the defense learned that defendant has a son with Nora Perei-da, both of whom reside in Honduras. The defense made contact with Ms. Pereida in July of 2015. During their conversation, Ms. Pereida explained that beginning in July of 2014, she began receiving telephone calls from a private number wherein the unidentified caller threatened her son if defendant did not take the fall for Katherine’s murder. Ms. Pereida stated that she continued to receive these calls over the next several months. Seeking to have Ms. Pereida testify at |fltrial, the defense moved for a continuance on July 27, 2015, which the court granted.

Also on July 27, 2015, the State filed a motion in limine seeking to exclude from evidence the text message sent by an anonymous source to Mrs. Martinez on January 17, 2015. The State filed its second motion in limine on August 20, 2015, seeking to exclude testimony from Nora Pereida regarding the anonymous threats she received. The two motions were heard on September 3, 2015 and granted in open court. The defense objected.

In defendant’s motion for new trial following his conviction, he argued the court’s erroneous rulings on the State’s motions in limine warranted a new trial. The court denied this motion; and now, on appeal, defendant argues that the district court’s erroneous rulings on the State’s motions in limine violated his constitutional right to present a defense.

At the outset, we note that the issue of the exclusion of Ms. Pereida’s testimony has been preserved for our review. Louisiana Code of Evidence Article 103(A)(2) provides that “Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and ... [w]hen the ruling is one excluding evidence, the substance of the evidence was made known to the court by counsel.” This Court has held that if a party does not comply with this article by failing to make known to the court the substance of excluded evidence, an error predicated upon the evidence’s exclusion is not preserved for appellate review. See State v. Thompson, 12-409 (La.App. 5 Cir. 12/11/12), 106 So.3d 1102, 1109, writ denied, 13-111 (La. 8/30/13), 120 So.3d 258.

The Louisiana Supreme Court has explained that the substance of evidence is “made known to the court” for purposes of La. C.E. art. 103(A)(2) “by proffer, either in the form of a complete record of the excluded testimony or a statement | ^describing what the party expects to establish by the excluded evidence.” State v. Magee, 11-574 (La. 9/28/12), 103 So.3d 285, 326. Here, we find the substance of Ms. Pereida’s testimony was made known to the court via defendant’s motion to continue filed on July 27, 2015 and defendant’s opposition to the State’s motion in limine filed on August 31, 2015. Both of these pleadings describe the testimony Ms. Per-eida would offer regarding the content of the alleged threatening phone calls she received. We find this was sufficient under La. C.E. art. 103(A)(2) and Magee, supra to preserve this issue for our review.

A motion in limine presents an evi-dentiary matter that is subject to the great discretion of the trial court. Moonan v. La. Med. Mut. Ins. Co., 16-113 (La.App. 5 Cir. 9/22/16), 202 So.3d 529, 534, writ denied, 16-2048 (La. 1/9/17), 214 So.3d 869, 2017 WL 347578, 2017 La. LEXIS 50; State v. Francois, 13-616 (La.App. 5 Cir. 1/31/14), 134 So.3d 42, 55, writ denied, 14-431 (La. 9/26/14), 149 So.3d 261. Accordingly, we will not disturb the district court’s rulings on the State’s motions in limine absent an abuse of discretion.

Both the Sixth Amendment of the United States Constitution and Article I, Section 16 of the Louisiana Constitution guarantee a criminal defendant the right to present a defense. State v. Smoot, 13-453 (La.App. 5 Cir. 1/15/14), 134 So.3d 1, 7, writ denied, 14-297 (La. 9/12/14), 147 So.3d 704. This fundamental right may not be superseded by evidentiary rules. Id. (citing State v. Van Winkle, 94-947 (La. 6/30/95), 658 So.2d 198, 202). For instance, normally inadmissible hearsay may be admitted if it is reliable, trustworthy and relevant, and if to exclude it would compromise the defendant’s right to present a defense. Id. At the same time, however, a defendant’s right to present a defense does not require a trial court to permit the introduction of evidence that is irrelevant or has so little 11 probative value that it is substantially outweighed by other legitimate considerations in the administration of justice. Id. Indeed, the Louisiana Supreme Court has noted that this jurisprudential “fairness exception” to the hearsay rule is unusual and should be sparingly applied. Id. (citing State v. Trahan, 576 So.2d 1, 11 (La. 1990)).

In State v. Smoot, 13-453 (La.App. 5 Cir. 01/15/14), 134 So.3d 1, writ denied, 14-297 (La. 9/12/14), 147 So.3d 704, this Court considered the applicability of the “fairness exception” under a similar set of facts to those presently before us. In Smoot, the defendant, who had been convicted of second degree murder, argued on appeal that his right to present a defense had been violated when the trial court granted the State’s motion in limine to exclude evidence of an anonymous telephone call to Crimestoppers naming someone other than the defendant as the perpetrator. This Court found this hearsay evidence did not qualify under the “fairness exception” because there was nothing to suggest that the evidence was reliable or trustworthy. Smoot, 134 So.3d at 8. The Court noted that the declarant of the tip was anonymous, no evidence corroborated the tip, and all the evidence adduced at trial contradicted the tip and indicated the defendant was the perpetrator. Id.

In the instant case, the text message sent to Ms. Martinez and the content of the alleged phone calls to Ms. Pereida are unquestionably hearsay. Both are out-of-court statements being offered for the truth of the matter asserted, namely, that an unidentified individual murdered Katherine. We do not find any statutory hearsay exceptions apply, and so consider whether this otherwise inadmissible hearsay should come in under the jurisprudential “fairness exception.”

Similar to Smoot, both the text message and the alleged phone calls are from anonymous sources. This fact alone raises serious doubts about the reliability and trustworthiness of this evidence. As the United States Supreme Court has | ^observed, albeit in the Fourth Amendment context: an anonymous tip “provides virtually nothing from which one might conclude that its author is either honest or his information reliable[.]” Illinois v. Gates, 462 U.S. 213, 227, 103 S.Ct. 2317, 2326, 76 L.Ed.2d 527 (1983).

Additionally, no evidence corroborates the text or calls. None of the evidence offered even hinted at the possibility that another individual was in Katherine’s apartment on the day of her murder. In fact, all of the evidence adduced at trial supports the opposite conclusion that defendant was the perpetrator. Most notably, defendant confessed to killing Katherine. He does not contest this confession here on appeal, and his confession is corroborated by forensic evidence. Defendant’s cell records place defendant in proximity, both in time and place, to Katherine’s murder. Defendant stated that he choked Katherine until she went lifeless, and the coroner determined that Katherine’s cause of death was asphyxia due to strangulation.Defendant’s chest bore scratches and bruises consistent with a struggle; and the DNA evidence confirmed with near-certain probability that the DNA material found underneath Katherine’s fingernails broken off in the struggle moments before her death belonged to defendant.

■After considering that the anonymous text message to Mrs. Martinez and the anonymous phone calls to Ms. Pereida were not corroborated by any evidence at trial and bear no indicia of reliability or trustworthiness, we are not convinced that their exclusion compromised defendant’s right to present a defense. We therefore conclude that this evidence does not qualify under the “fairness exception” to the hearsay rule and that the district court‘did not abuse its discretion in granting the State’s motions in limine to exclude this evidence.

This assignment of error is without merit.

J^ERRORS PATENT

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. Wetland, 556 So.2d 175 (La. App. 5 Cir. 1990). Upon review, we find -defendant’s sentence benefits are not clearly reflected in the commitment or the Uniform Commitment Order, Accordingly, we remand the matter for the district court to -amend both the commitment and the Uniform Commitment Order to reflect that on count one (second degree murder), defendant was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, and that on count two-(first degree feti-cide), defendant was sentenced to fifteen years at hard labor without restriction of benefits. The Clerk of Court for the 24th Judicial District Court is ordered to transmit the originals of the amended commitment and Uniform Commitment Order to the officer in charge of the institution to which defendant has been sentenced and to the Department of Corrections’ Legal Department, See State v. Lyons, 13-564 (La.App. 5 Cir. 1/31/14), 134 So.3d 36, 41, writ denied, 14-481 (La. 11/7/14), 152 So.3d 170.

DECREE

For the foregoing reasons, defendant’s convictions and sentences are affirmed. The matter is remanded for correction of the commitment and the Uniform Commitment Order,

CONVICTIONS AND SENTENCES AFFIRMED; REMANDED FOR CORRECTION OF COMMITMENT

      . DNA tests confirmed that Juan Lozano was the father of the child.

      . It is noted that these conversations were originally in Spanish and were translated at trial by an interpreter.

      . We decline to undertake a similar analysis regarding the anonymous text message received by Mrs. Martinez because the translated text of the message was attached as an exhibit to the State’s motion in limine filed on August 20, 2015, and so was unquestionably "made known to the court” in accordance with La. C.E. art. 103(A)(2) and Magee, supra.


author: WINDHORST, J.

text:
    Cordell HULL, Sr. v. JEFFERSON PARISH HOSPITAL DISTRICT NO. 1 d/b/a West Jefferson Medical Center
    NO. 16-CA-273
    Court of Appeal of Louisiana, Fifth Circuit.
    April 26, 2017

      COUNSEL FOR PLAINTIFF/APPELLANT, CORDELL HULL, SR., Michael J. Begoun, Mark R. Wolfe, T. Daniel Pick, Nancy S. Silbert
    COUNSEL FOR DEFENDANT/AP-PELLEE, JEFFERSON PARISH HOSPITAL DISTRICT NO. 1, D/B/A WEST, JEFFERSON MEDICAL CENTER, Carl T. Conrad, Guice A. Giambrone, III
    Panel composed of Robert M. Murphy, Stephen J. Windhorst, and Hans J. Liljeberg
   WINDHORST, J.

| r Appellant, Cordell Hull, seeks review of the trial court’s judgment granting ap-pellee, Jefferson Parish Hospital District No. 1 d/b/a West Jefferson Medical Center’s (“WJMC”), motion for summary judgment and dismissing appellant’s claims against WJMC with prejudice. For the reasons that follow, we affirm.

Facts and Procedural History

On February 3, 2011, appellant was receiving physical therapy treatment at WJMC for injuries sustained from an automobile accident in 2010. While under the supervision of his physical therapist, appellant was instructed to get on a hand cycle after it was adjusted by the physical therapist. The hand cycle collapsed and appellant sustained injuries.

On January 12, 2012, appellant filed a petition for damages against WJMC contending that the physical therapist did not properly adjust the hand cycle and as a result, the hand cycle collapsed and he sustained injuries. Appellant claimed that WJMC was liable for its own negligence pursuant to La. C.C. art. 2315 and was strictly liable pursuant to La. C.C. art. 2317 for the hand cycle in its custody and control.

On September 8, 2014, WJMC filed its first motion for summary judgment arguing (1) that there was an issue concerning the alleged date of the incident, if it occurred at all, and (2) that appellant could not show that WJMC had actual or constructive notice of the defect or hazard in the equipment and failed to act in a reasonable amount of time to remedy the situation pursuant to La. R.S. 9:2800. Appellant filed an opposition stating that the medical documents showed that the accident occurred on the date alleged and that he was not alleging a defect in the equipment. Appellant argued that WJMC’s employee, the physical therapist, was negligent in the adjustment of the hand cycle and WJMC was vicariously liable |2under the theory of respondeat superior for the physical therapist’s actions or inactions. The trial court denied WJMC’s motion on January 30, 2015.

On April 8, 2015, WJMC filed a second motion for summary judgment arguing (1) that there was an issue concerning the alleged date of the accident, if it occurred at all, (2) that appellant could not show that WJMC had actual or constructive notice of the defect or hazard in the equipment and failed to act in a reasonable amount of time to.remedy the situation pursuant to La. R.S. 9:2800, and (3) that the physical therapist, Terese Joseph, was an employee of RehabCare Group Management Services, Inc. (“RehabCare”), not WJMC. The motion was set for hearing but the hearing was continued without date.

On June 1, 2015, appellant filed a first supplemental and amending petition naming RehabCare as an additional defendant. Appellant contended that RehabCare, who was an independent contractor providing physical therapy services in a space it leased from WJMC, was the employer of Ms. Joseph. Appellant claimed that Rehab-Care was liable for its own negligence pursuant to La. C.C. art. 2315 and was strictly liable pursuant to La. C.C. art. 2317 for the hand cycle in its custody and control.

On August 6,2015, WJMC filed a motion to re-urge its two previous motions for summary judgment. Appellant filed an opposition restating his previous arguments and additionally arguing that this was the first time WJMC alleged that Ms. Joseph was not its employee and provided the contract between WJMC and RehabCare. Appellant argued that the contract indicated that WJMC exercised sufficient control over RehabCare for it to be considered an employee of WJMC. Additionally, on its website WJMC promoted its rehabilitation facility as being owned and operated by WJMC and did not state that the rehabilitation facility was staffed by a third party. The trial court granted WJMC’s motion for IjjSummary judgment dismissing appellant’s claims against WJMC with prejudice. This appeal followed.

Discussion

Appellate courts review the granting of a summary judgment de novo using the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. Duncan v. U.S.A.A. Ins. Co., 06-363 (La. 11/29/06), 950 So.2d 544, 547; Rayfield v. Millet Motel, 15-496 (La.App. 5 Cir. 01/27/16), 185 So.3d 183, 185; Bailey v. Exxon Mobil Corp., 15-225 (La.App. 5 Cir. 12/23/15), 184 So.3d 191, 198. A motion for summary judgment should be granted “if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits; if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as. to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966 B(2). The party moving for summary judgment bears the burden of proof. La. C.C.P. art. 966 C(2). However, if the mov-ant will not bear the burden of proof at trial, the movant’s burden on a motion for summary judgment does not require him to negate all essential elements of the adverse party’s claim, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the claim. Id. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial, there .is no genuine issue of material fact and summary judgment should be granted. Id.

To establish liability for damages in a negligence case, the plaintiff is required to prove: (1) that the defendant had a duty to conform his conduct to a specific standard; (2) that the defendant’s conduct failed to conform to the appropriate standard; (3) that the defendant’s substandard conduct was a cause-in-] 4fact of the plaintiffs’ injuries; (4) that the defendant’s substandard conduct was a legal cause of the plaintiffs injuries; and (5) proof of actual damages. La. C.C. art. 2315; Helwig v. H.P.B. Inc., 15-389 (La.App. 5 Cir. 12/23/15), 182 So.3d 1169, 1171 (citing Detraz v, Lee, 05-1263 (La. 01/17/07), 950 So.2d 557, 565).

La. C.C. art. 2317 provides:

We are responsbile, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.

La. R.S. 9:2800 Limitation of liability for public bodies provides, in part:

C. Except as provided for in Subsections A and B of this Section, no person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused- by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.
D. Constructive notice shall mean the existence of facts which infer actual knowledge.
G (1) “Public entity” means and includes the state and any óf its branches, departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, employees, and political subdivisions and the departments, offices, agencies, boards, commissions, instru-mentalities, officers, officials, and employees of such political subdivisions.

WJMC is a political subdivision of the State of Louisiana, and is therefore a public entity pursuant to La. R.S. 9:2800 G(l). To prove liability against WJMC for negligence pursuant to La. C.C. art. 2315, and also pursuant to La. R.S. 9:2800 and La. C.C. art. 2317 for strict liability, the analysis is the same. Hebert v. Jefferson Parish Hosp. Dist. # 1, 11-943 (La.App, 5 Cir. 03/27/12), 91 So.3d 1126, 1127. The plaintiff has the burden of showing that: (1) the public entity had custody of the thing that caused the plaintiffs injuries or damages; (2) the thing was defective because it had a condition that created an unreasonable risk of harm; R(3) the public entity had actual or constructive knowledge of the defect and did not take corrective measures within a reasonable time; and (4) the defect in the thing was a cause-in-fact of the plaintiff injuries. Id. at 1127-1128. The failure to prove any of these inquiries is fatal to the plaintiffs case. Id. at 1128.

In his sole assignment of error, appellant contends the trial court erred in granting WJMC motion for summary judgment and dismissing appellant’s claims against WJMC. Appellant contends that genuine issues of material fact exist as to whether or not: (1) appellant suffered an accident while attending physical therapy on February 3, 2011; (2) Ms. Joseph, was an employee of WJMC, RehabCare, or both; (3) the hand cycle was defective pursuant to La. R.S. 9:2800.6, the Merchant Liability Statute; (4) Ms. Joseph failed to properly secure and/or adjust the hand cycle pursuant La. C.C. art. 2316; and (5) WJMC’s counsel intentionally failed to provide information concerning Ms. Joseph’s employer for more than three years following the filing of this suit. Appellant also argues that WJMC could not be granted summary judgment because it failed to assert an affirmative defense that another party could be held liable for plaintiffs damages.

La. B.S. 9:2800 — Actual or constructive notice

In support of its motion, WJMC submitted the appellant’s deposition wherein appellant acknowledged that he had no evidence to show that WJMC had actual or constructive notice of the defect in the hand cycle and failed to take corrective action within a reasonable-amount of time to' satisfy the temporal' requirement óf La. R.S. 9:2800. The burden then shifted to appellant to establish that a genuine issue of material fact existed. Appellant failed to submit any evidence to sustain his burden. Notably, appellant repeatedly informed the trial court that he was not alleging a defect in the hand cycle, even though he alleged liability pursuant to La. C.C. art, 2317 in his petition. Therefore, WJMC was entitled to summary judgment as to this cause of action.’

Employer-employee or independent contractor status of physical therapist

WJMC argued that it could not be liable for the negligent actions of Ms. Joseph because it was not Ms. Joseph’s employer. WJMC submitted the affidavit of Carol Reppel, WJMC’s risk manager, and the contract between WJMC and RehabCare to establish that Ms, Joseph was an employee of RehabCare, not WJMC. Ms. Reppel’s affidavit provided that Ms. Joseph was not an employee of WJMC and that RehabCare was an independent contractor to WJMC, who provided physical therapy services as set forth in the contract. The contract provided, in pertinent part: (1) that RehabCare managed and provided the staffing for WJMC’s rehabilitation program; (2) that RehabCare was responsible for the payment of wages, employee benefits, workers’ compensation insurance, liability insurance, other compensation for its employees, and all fees of independent contractors engaged by Re-habCare to provide services to WJMC; (3) that RehabCare personnel who provided services to WJMC “will not be deemed employees” of WJMC; (4) that RehabCare was responsible for providing orientation regarding the rehabilitation program to directors of WJMC’s departments and training for WJMC’s nursing and other clinical staff assigned to the program; (5) that RehabCare personnel were subject to the policies and procedures of WJMC to the extent that they did not conflict with the status of RehabCare personnel as “non-employees” of WJMC and did not conflict with the policies and procedures of RehabCare; (6) specific payment terms due to RehabCare; and (7) the term of the contract. Thus, pursuant to La. C.C. art. 2320, WJMC argued it was not vicariously liable under the theory of respondeat superior for the negligent acts of Ms. Joseph. The burden then shifted to appellant to establish that a genuine issue of material fact existed.

17Appellant argued that WJMC intentionally withheld the contract for more than three years following the institution of this suit. He claimed that because WJMC provided the building, leased space, and equipment for the rehabilitation facility and provided for certain guidelines for staffing the facility, WJMC sufficiently controlled RehabCare such that Ms. Joseph was an employee of WJMC, not an independent contractor to WJMC. Appellant argued that the provisions in the contract supported this contention. Appellant also contended that on its website WJMC promoted the rehabilitation facility as being owned and operated by WJMC without stating that it was staffed by a third party.

An employer is vicariously liable for the damage caused by their employees in the exercise of the functions in which they are employed. La. C.C. art. 2320. Thus, for an employer to be liable for the actions of an employee, the plaintiff must show that an employer-employee relationship existed and that the employee’s negligent act was committed within the scope and course of their employment with their employer. Smith v. Morange, 03-150 (La. App. 5 Cir. 09/16/03), 858 So.2d 65, 67-68; Timmons v. Silman, 99-3264 (La. 05/16/00), 761 So.2d 507, 510. In determining whether an individual is an employee or an independent contractor, the following factors are relevant in determining if a principal and independent contractor relationship exists: (1) there is a valid contract between the parties; (2) the work being done is of an independent nature such that the contractor may employ non-exclusive means in accomplishing it; (3) the contract calls for specific piecework as a unit to be done according to the independent contractor’s own methods, without being subject to the control and direction of the principal, except as to the result of the services rendered; (4) there is a specific price for the overall ^undertaking agreed upon; and (5) the duration of the work is for a specific time and not subject to termination or discontinuance at the will of either side without a corresponding liability. Hickman v. Southern Transport Co., 262 La. 102, 262 So.2d 385, 390-391 (1972); Sims v. Cefolia, 04-343 (La.App. 5 Cir. 11/30/04), 890 So.2d 626, 630.

Based on the uneontradicted affidavit of Ms. Reppel and the contract between WJMC and RehabCare, RehabCare is an independent contractor to, and not an employee of, WJMC. WJMC does not exercise sufficient control over RehabCare, and RehabCare is allowed to employ non-exclusive means to accomplish the contract. The contract provides for a specific price for work performed, and is not subject to termination at the will of either side as it provides for specific circumstances that the contract may be terminated by either party without the parties being in breach of the contract. Furthermore, this Court does not find persuasive appellant’s argument that WJMC’s self-promotion of the rehabilitation facility on its website establishes that RehabCare is an employee of WJMC such that WJMC is hable for the negligent acts of Ms. Joseph. WJMC provided sufficient evidence to establish that it was not vicariously liable for the negligent acts of Ms. Joseph and appellant failed to sustain his burden of proof.

Conclusion

For the reasons stated above, we affirm the trial court’s judgment granting WJMC’s motion for summary judgment and dismissing appellant’s claims against WJMC with prejudice.

AFFIRMED

      . La. C.C.P. art. 966 was amended by 2015 Act 422, § 2, effective January 1, 2016. However, die amendment of La. C.C.P. art. 966, "shall not apply to any motion for summary judgment pending adjudication or appeal on the effective date.” Because this matter was pending adjudication before the effective date of the amendment, the prior version of La. C.C.P. art. 966 was the law in effect when WJMC’s motions for summary judgment were filed.

      . WJMC did not assert, and the trial court-did not find, that La. R.S. 9:2800.6 applied to this case. Accordingly, we find this argument does not have merit.

      . On appeal, appellant also argued that the doctrine of contra non valentem applied because WJMC intentionally did not turn over the contract between WJMC and RehabCare for more than" three years after this suit was filed. Appellant contended that he would not have discovered the contract because it was never affirmatively pleaded as a defense but was known to appellee’s counsel from beginning of the proceeding. Appellant, however, did not plead this argument in the trial court. Further, the doctrine of contra non valentem, a doctrine used to prevent the running of prescription, is not applicable in this case and does not defeat the motion for summary judgment filed by WJMC.

      . We also note that in the first supplemental and amending petition appellant specifically alleged that RehabCare was an independent contractor to WJMC and the employer of Ms. Joseph.