text:
    STATE EX REL. Kevin Lee BARNES v. STATE of Louisiana
    No. 2017-KH-0019
    Supreme Court of Louisiana.
    March 2, 2018
    ON SUPERVISORY WRITS TO THE FOURTH JUDICIAL DISTRICT COURT, PARISH OF OUACHITA
   PER CURIAM:

Denied. Relator fails to show he was denied the effective assistance of counsel during plea negotiations under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended La.C.Cr.P. art. 930.4 to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in state collateral proceedings in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

Attachment

STATE OF LOUISIANA PARISH OF OUACHITA FOURTH DISTRICT COURT STATE OF LOUISIANA FILED: Aug. 18, 2016 VERSUS NO. 12-F2240 KEVIN BARNES DEPUTY CLERK OF COURT

SUPPLEMENTAL RULING REGARDING APPLICATION FOR POST CONVICTION RELIEF

By written ruling, this Court previously denied all aspects of Petitioner's application for post conviction relief other than the alleged failure to communicate a more favorable plea bargain arrangement to Petitioner resulting in an allegation of ineffective assistance of counsel. At this time, this Court also denies Petitioner's remaining claim.

The Court ordered the Office of the District Attorney to file a written response regarding the claim raised by Petitioner that a more favorable plea bargain arrangement was not communicated to him. The District Attorney's Office complied with Assistant District Attorney Ellen R. Eade providing the Court with an excellent and thorough response to Petitioner's remaining claim. The documentation provided by the Record, as well as the affidavits of the Lawyers involved in this proceeding on behalf of the Petitioner and the State establish that no more favorable plea bargain or offer ever existed in this situation and, accordingly, there could have been no failure to communicate this nonexistent plea offer or bargain to Petitioner.

Accordingly, the remaining claim made by petitioner in his application for post conviction relief filed April 26, 2016 is hereby denied.

The Court notes Petitioner's filing of June 26, 2016, entitled "writ application". While that document itself makes no mention of what ruling Petitioner seeks to have reviewed, the Court assumes it complains of the original, and now the supplemental, ruling issued by this Court regarding Petitioner's April 26, 2016, post conviction relief application. Further, this pro se filing entitled "writ application" makes no request for a return date for the matter to be reviewed by a higher court. Nevertheless, this Court will proceed to address this matter at this time as well for the sake of efficiency and judicial economy with respect to Petitioner's complaints.

Although made prematurely with respect to this Court's supplemental ruling on Petitioner's post conviction relief application, the Court hereby accepts notice of Petitioner's intent to seek supervisory review of both the original and the supplemental rulings regarding Petitioner's application for post conviction relief. Accordingly, this Court issues the following of orders:

IT IS HEREBY ORDERED that notice of intent to seek supervisory review of this Court's original and supplemental rulings regarding Petitioner's application for post conviction relief is hereby accepted and that same request is hereby granted.

IT IS FURTHER ORDERED that Petitioner shall file his application for supervisory review with respect to the above mentioned rulings of this Court with the Honorable Second Circuit Court of Appeal with the return date for the filing of this application for supervisory review being the 19th day of September, 2016.

Done and signed this 18th day of August, 2016, in Monroe, Louisiana.

WILSON RAMBO, JUDGE FOURTH DISTRICT COURT DIVISION "C" PLEASE SERVE ELLEN EADE ASSISTANT DISTRICT ATTORNEY FOURTH JUDICIAL DISTRICT COURTHOUSE ANNEX MONROE, LOUISIANA 71201 KEVIN L. BARNES, SR., DOC# 20847 C/O UNION PARISH DETENTION CENTER DORM L 707 RODEO CIRCLE FARMERVILLE, LOUISIANA 71241 WARDEN STEVE HANSEN UNION PARISH DETENTION CENTER ATTORNEY ATLAW DORM L ONE WOOD STREET 707 RODEO CIRCLE MONROE, LA 71201 FARMERVILLE, LOUISIANA 71241


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    STATE of Louisiana v. Fredrick GRIGSBY
    No. 2016-KP-1408
    Supreme Court of Louisiana.
    March 2, 2018
    ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE
   PER CURIAM:

Denied. Relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2 ; see also State v. Pierre , 13-0873 (La. 10/15/13), 125 So.3d 403 ; State v. Conway , 01-2808 (La. 4/12/02), 816 So.2d 290.

Relator has now fully litigated two applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Johnnie CAUSEY v. STATE of Louisiana
    No. 2016-KH-1909
    Supreme Court of Louisiana.
    March 2, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. Relator does not identify an illegal term in his sentence, and therefore his filing is properly construed as an application for post-conviction relief. See State v. Parker , 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator's application was not timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189. In addition, relator's sentencing claim is not cognizable on collateral review. La.C.Cr.P. art. 930.3 ; State ex rel. Melinie v. State , 93-1380 (La. 1/12/96), 665 So.2d 1172 ; see also State v. Cotton , 09-2397 (La. 10/15/10), 45 So.3d 1030. We attach hereto and make a part hereof the district court's written reasons denying relief.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

JOHNSON, C.J., would grant the writ application and assigns reasons

I would grant defendant's writ application, finding his 13-year sentence on a possession of marijuana charge excessive.

In 2010, defendant entered an Alford plea to one count of possession of marijuana. The district court sentenced defendant to 5 years imprisonment at hard labor. Following habitual offender proceedings, the district court adjudicated defendant as a fourth-felony habitual offender, vacated the 5-year sentence, and resentenced defendant to 20 years imprisonment at hard labor, without the benefit of probation, parole, or suspension of sentence. The court of appeal affirmed the defendant's conviction but vacated the fourth offender adjudication and sentence and remanded the case to the district court. Defendant was then adjudicated as a third-felony offender, and resentenced to 13 years imprisonment at hard labor.

In 2016, the district court denied defendant's motion to correct an illegal sentence. The court of appeal then denied writs, finding no error in the district court's ruling. The majority of this Court now denies defendant's writ application.

In this case, the district court sentenced defendant as a habitual offender after his most recent charge of possession of marijuana and sentenced defendant to a 13-year sentence. In light of the new nationwide perspective of marijuana, where eight states have currently legalized personal use and several apply these laws retroactively, I find this sentence to be excessive. Louisiana law provides that a sentence is unconstitutionally excessive when it imposes punishment grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering.

To be clear, I embrace the notion that drug treatment should be the primary tool used to solve addictions. I have long advocated for reform in our criminal justice system and have actively participated in the Louisiana Justice Reinvestment Task Force, which successfully passed ten bills designed to reduce penalties for drug offenses and other non-violent offenses, while investing in substance abuse treatment and counseling programs. Equal protection requires that we change our approach in handling addictions. We must not continue our pattern of relegating one group of drug users to prison, while providing medical assistance for other drug abusers. See La. R.S. 14:403.10, which provides medical assistance for those who overdose on opioids and grants them immunity from prosecution.

For these reasons, I find the district court erred and defendant's sentence should be set aside.

Justice Hughes would grant for the reasons assigned by Chief Justice Johnson.

      Governing the States and Localities, State Marijuana Laws in 2018 Map , http://www.governing.com/gov-data/state-marijuana-laws-map-medical-recreational.html

      Cal. Health & Safety Code § 11361.8 -Recall or dismissal of sentence (in pertinent part) (a) A person currently serving a sentence for a conviction, whether by trial or by open or negotiated plea, who would not have been guilty of an offense, or who would have been guilty of a lesser offense under the Control, Regulate and Tax Adult Use of Marijuana Act had that act been in effect at the time of the offense may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing or dismissal ...
      See People v. Russell , 396 P.3d 71 (Colo. App.2014), as modified on denial of reh'g (May 8, 2014), aff'd , 387 P.3d 750 (Colo.2017) (Amendment 64, which decriminalized the possession of marijuana for personal use, is to be applied retroactively as it represents a significant change in the law)

      See State v. Bonanno , 384 So.2d 355, 357 (La. 1980).

      Louisiana Justice Reinvestment Package Summary , Department of Corrections Website, http://www.doc.la.gov/justice-reinvestment-task-force (last visited November 13, 2017).


author: PER CURIAM

text:
    IN RE: James Casey FOS
    NO. 2017-B-2108
    Supreme Court of Louisiana.
    March 2, 2018
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

The Office of Disciplinary Counsel ("ODC") commenced an investigation into allegations that respondent filed a frivolous claim, presented a request for a temporary restraining order in an improper fashion, and misused his client trust account, which resulted in the commingling and conversion of client funds. Following the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline in which respondent admitted that his conduct violated Rules 1.5, 3.1, 3.3, and 8.4(a)(c)(d) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that James Casey Fos, Louisiana Bar Roll number 21280, be suspended from the practice of law for a period of three years. It is further ordered that respondent make full restitution to his victims.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.

Clark, J., would reject consent discipline and order disbarment for the reasons assigned by Justice Crichton.

CRICHTON, J., would reject consent discipline, order disbarment, and assigns reasons:

I would reject the petition for consent discipline, as I find respondent's serious misconduct warrants disbarment. More specifically, this case involves a substantial aggravating factor in that there has been zero restitution during the three-year time span between the misconduct and the instant petition for consent discipline. See generally Louisiana State Bar Ass'n v. Hinrichs , 486 So.2d 116 (La. 1986).


text:
    IN RE: Gregory J. NOTO
    NO. 2018-B-0179
    Supreme Court of Louisiana.
    March 2, 2018
    ATTORNEY DISCIPLINARY PROCEEDINGS
   PER CURIAM

Prior to the filing of formal charges, respondent and the Office of Disciplinary Counsel submitted a joint petition for consent discipline, in which respondent admitted that he violated the Rules of Professional Conduct by engaging in conduct that constitutes a conflict of interest. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted, and that Gregory J. Noto, Louisiana Bar Roll number 14275, be suspended from the practice of law for a period of six months, fully deferred, subject to a six-month period of probation. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.

JOHNSON, Chief Justice, would reject consent discipline.


author: Crichton, J., would grant.

text:
    STATE of Louisiana v. Maurice ANDERSON
    NO. 2017-KO-0671
    Supreme Court of Louisiana.
    February 2, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF TANGIPAHOA
    Writ Denied.
    JOHNSON, C.J., would grant and assigns reasons.
    CRICHTON, J., would grant and assigns reasons.
    JOHNSON, C.J., would grant the writ application and assigns reasons
    I would grant defendant's writ application, finding his 60-year sentence on a theft charge excessive.
    In 2014, defendant was convicted of theft over $1500 and simple battery, charges that stemmed from a burglary and home invasion in 2012. The district court sentenced defendant to 10 years imprisonment at hard labor on the theft conviction, and six months imprisonment in parish jail for simple battery, with the sentences be served consecutively. Following habitual offender proceedings, the district court adjudicated defendant a fourth-felony habitual offender, vacated defendant's 10-year sentence on the theft charge, and resentenced defendant to 60 year years imprisonment at hard labor, without the benefit of probation or suspension of sentence. The court of appeal affirmed defendant's habitual offender adjudication and sentence. The majority of this court now denies defendant's writ application.
    In the case, the district court based its decision in part of the fact that defendant has an extensive criminal history. Notably, defendant has no convictions for crimes of violence. Louisiana's habitual offender law is set forth in La. R.S. 15:529.1. The legislature recently amended this statute to provide for a reduction of sentences under the habitual offender law in certain circumstances. In this case, because neither the underlying offense nor any of defendant's prior convictions were crimes of violence or sex offenses, defendant would only have been sentenced to 20 years imprisonment under the emended habitual offender statute. See La. R.S. 15:529.1(A)(4)(b).
    Louisiana law provides that a sentence is unconstitutionally excessive when it imposes punishment grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering. See State v. Bonanno , 384 So. 2d 355, 357 (La. 1980). Considering defendant was in his 40s when he was sentenced to 60 years imprisonment, his sentence was effectively a life sentence. In my view, the legislature's recent amendment of the habitual offender statutes suggests that a life sentence (or any sentence greater than 20 years), when the offender has no prior convictions fro crimes of violence or sex offenses, is disproportionate to the gravity of the offense. Defendant should be entitled to the benefit of the ameliorative provisions in the amended habitual offender statute. See e.g. , State ex rel. John Esteen v. State of Louisiana 16-0949 (La. 1/30/18), --- So. 3d ----. For these reasons, I find the district court abused its discretion in imposing a 60-year sentence, and defendant's sentence should be set aside,
   Crichton, J., would grant.

I would grant this application to examine the defendant's sentence in light of the recent amendments to La. R.S. 15:529.1. See La. R.S. 15:529.1(I).


text:
    IN RE: APPEAL OF the DECISION OF THE DISCIPLINARY BOARD NO. 17-PDB-058
    NO. 2017-OB-2156
    Supreme Court of Louisiana.
    February 23, 2018
    Leave to appeal denied.


text:
    STATE of Louisiana v. Kaunda Lopaz MAGEE
    NO. 2017-KO-1003
    Supreme Court of Louisiana.
    February 23, 2018
    Denied.


author: HUGHES, J., would grant.

text:
    Cindy Celestine DARDAR, Percy M. Dardar, Alvin B. Dardar, and Little Lake Oyster Co., LLC v. Melia Brunet DARDAR, as Executor of the Succession of Percy B. Dardar, Sr., et al.
    Alvin B. Dardar, and Little Lake Oyster Co., LLC v. Francis I. Spagnoletti, et al.
    NO. 2017-CC-2093
    Supreme Court of Louisiana.
    February 9, 2018
    Denied.
   HUGHES, J., would grant.


author: GUIDRY, J., would grant.

text:
    VIEUX CARRE COMMISSION FOUNDATION v. The CITY OF NEW ORLEANS, et al.
    NO. 2018-C-0248
    Supreme Court of Louisiana.
    February 9, 2018
    Stay denied. Writ denied.
   GUIDRY, J., would grant.


text:
    BURGESS, INC. v. PARISH OF ST. TAMMANY
    NO. 2017-C-2179
    Supreme Court of Louisiana.
    February 23, 2018
    Denied.


text:
    Tracy FULTON v. DEPARTMENT OF POLICE
    NO. 2018-C-0016
    Supreme Court of Louisiana.
    February 23, 2018
    Denied.


text:
    Jenez FOURNETT v. NATIONAL UNION FIRE INSURANCE COMPANY, et al.
    NO. 2018-CC-0276
    Supreme Court of Louisiana.
    February 23, 2018
    Denied.
   GUIDRY, J., would grant.


text:
    IN RE: Appeal of the DECISION OF the DISCIPLINARY BOARD NO. 17-PDB-065
    NO. 2017-OB-2129
    Supreme Court of Louisiana.
    February 23, 2018
    Leave to appeal denied.


author: GENOVESE, J., would deny.

text:
    Dale BROWN v. David HEINTZ, Steven Verrett, and Arthur Lawson, in his official capacity as the Chief for Police for the City of Gretna
    NO. 2017-CC-2139
    Supreme Court of Louisiana.
    February 23, 2018
    Granted and remanded to the court of appeal for briefing, argument and full opinion.
    WEIMER, J., would grant and docket.
   GENOVESE, J., would deny.


text:
    STATE EX REL. Theoshamond NORMAN v. STATE of Louisiana
    NO. 2017-KH-1649
    Supreme Court of Louisiana.
    February 23, 2018
    Denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Norman v. State, 16-2040 (La.__/__/__).


text:
    Sidney GOODREAUX v. LAKEWOOD COUNTRY CLUB a/k/a Lakewood CDD, LLC, New Orleans Fire Fighters Pension Fund Investments a/k/a New Orleans Fire Fighters' Pension and Relief Funds, Lakewood Restoration Partners, Ltd., a Louisiana Limited Liability Partnership a/k/a Devonshire Properties, LLC and Henry Jerome Maumus, III
    NO. 2017-CC-2101
    Supreme Court of Louisiana.
    February 23, 2018
    Denied.
   HUGHES, J., would grant.


author: WEIMER, J., recused.

text:
    Almus J. FORET v. LOUISIANA FARM BUREAU CASUALTY INSURANCE COMPANY and Juan A. Munoz-Gutierrez
    NO. 2017-CC-2157
    Supreme Court of Louisiana.
    February 23, 2018
    Denied.
   WEIMER, J., recused.


author: JOHNSON, C.J., would grant.

text:
    STATE EX REL. Edward A. LOWERY, Jr. v. STATE of Louisiana
    NO. 2016-KH-2131
    Supreme Court of Louisiana.
    February 23, 2018
    Denied.
   JOHNSON, C.J., would grant.


text:
    Anil Kumar CHAUHAN v. BAFFIN INVESTMENTS, LTD. and Fednav, Ltd.
    NO. 2017-CC-2026
    Supreme Court of Louisiana.
    February 23, 2018
    Denied.


text:
    Chester DOMINGUE v. LOUISIANA GUEST HOUSE, LLC, d/b/a Camelot of Broussard
    NO. 2018-C-0014
    Supreme Court of Louisiana.
    February 23, 2018
    Denied.


text:
    STATE of Louisiana v. Kelly L. BARNES
    NO. 2016-K-1807
    Supreme Court of Louisiana.
    February 23, 2018
    Not considered. See La.S.Ct. Rule IX, § 6.
   JOHNSON, C.J., would grant reconsideration.

HUGHES, J., would grant reconsideration.

GENOVESE, J., would grant reconsideration.


text:
    STATE EX. REL. Reginald MORRISON v. STATE of Louisiana
    NO. 2016-KH-2277
    Supreme Court of Louisiana.
    February 23, 2018
    Denied.


text:
    Sidney GOODREAUX v. LAKEWOOD COUNTRY CLUB a/k/a Lakewood CDD, LLC, New Orleans Fire Fighters Pension Fond Investments a/k/a New Orleans Fire Fighters' Pension and Relief Funds, Lakewood Restoration Partners, Ltd., a Louisiana Limited Liability Partnership a/k/a Devonshire Properties, LLC and Henry Jerome Maumus, III
    NO. 2017-CC-2043
    Supreme Court of Louisiana.
    February 23, 2018
    Denied.
   HUGHES, J., would grant.


text:
    John THIBODEAUX and Amy Thibodeaux, Individually and on Behalf of Emily Thibodeaux and Gabrielle Thibodeaux v. GULFGATE CONSTRUCTION, LLC, et al.
    NO. 2017-C-2149
    Supreme Court of Louisiana.
    February 23, 2018
    Denied.


text:
    Gustave J. LABARRE, Jr., et al. v. TEXAS BRINE COMPANY, LLC and Georgia Gulp Chemical & Vinyls, LLC
    NO. 2017-CC-2173
    Supreme Court of Louisiana.
    February 23, 2018
    Denied.


author: GENOVESE, J., would grant the writ.

text:
    Everette DRAUGHN v. Eugene "Tat-2" "the Bounty Hunter" THACKER, et al.
    NO. 2017-CC-1841
    Supreme Court of Louisiana.
    February 23, 2018
    Reconsideration granted. Writ denied.
   GENOVESE, J., would grant the writ.


text:
    Almus J. FORET v. LOUISIANA FARM BUREAU CASUALTY INSURANCE COMPANY and Juan A. Munoz-Gutierrez
    NO. 2017-CC-2142
    Supreme Court of Louisiana.
    February 23, 2018
    Denied.
   WEIMER, J., recused.


text:
    STATE EX REL. Manal GILBERT v. STATE of Louisiana
    NO. 2014-OK-1984
    Supreme Court of Louisiana.
    February 23, 2018
    Denied.


text:
    Donald MORGAN v. ENTERGY NEW ORLEANS, INC.
    NO. 2017-C-2172
    Supreme Court of Louisiana.
    February 23, 2018
    Denied.


text:
    David John VEDROS v. Kelli Soileau VEDROS
    NO. 2018-C-0004
    Supreme Court of Louisiana.
    February 23, 2018
    Denied.
   HUGHES, J., would grant.


text:
    STATE of Louisiana v. Herman GRAVOLET
    NO. 2018-KK-0013
    Supreme Court of Louisiana.
    February 23, 2018
    Denied.
   HUGHES, J., would grant.


text:
    Sarah MORGAN v. CINEMARK, USA, INC., et al.
    NO. 2018-CC-0127
    Supreme Court of Louisiana.
    February 23, 2018
    Denied.


text:
    Oana CRASI v. Larry Steven CROW
    NO. 2018-CJ-0278
    Supreme Court of Louisiana.
    February 23, 2018
    Denied.
   HUGHES, J., would grant.


text:
    STATS EX REL. Chance OLIVER v. STATE of Louisiana
    NO. 2016-KH-1741
    Supreme Court of Louisiana.
    February 23, 2018
    Denied.


text:
    Carlos K. EDWARDS, et ux. v. GEICO INDEMNITY COMPANY, et al.
    NO. 2017-CC-2162
    Supreme Court of Louisiana.
    February 23, 2018
    Denied.
   JOHNSON, C.J., would grant.

GENOVESE, J., would grant.


text:
    Karen GUY and Stephen Guy v. The HOWARD HUGHES CORPORATION and Liberty Mutual, et al.
    NO. 2018-CC-0086
    Supreme Court of Louisiana.
    March 9, 2018
    Denied.


text:
    Tony CORMIER v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS
    NO. 2018-CI-0176
    Supreme Court of Louisiana.
    March 9, 2018
    Writ not considered. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review.


text:
    STATE of Louisiana v. Rubin ROBERTSON
    NO. 2017-K-0969
    Supreme Court of Louisiana.
    March 9, 2018
    Denied.


text:
    STATE of Louisiana v. Danny SYLVESTER
    NO. 2018-KH-0173
    Supreme Court of Louisiana.
    March 9, 2018
    Writ not considered. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review.


text:
    STATE of Louisiana v. Timothy THOMAS
    NO. 2017-KO-1264
    Supreme Court of Louisiana.
    March 9, 2018
    Denied.


text:
    STATE of Louisiana v. Noel CLARK
    NO. 2018-KK-0141
    Supreme Court of Louisiana.
    March 9, 2018
    Denied.


text:
    STATE of Louisiana IN the INTEREST OF C.E.K.
    NO. 2018-CJ-0143
    Supreme Court of Louisiana.
    March 9, 2018
    Denied.


text:
    Gail Marie VANCE v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, Chase Home Finance, L.L.C. Merger into Jr Morgan Chase and Graham, Arceneaux & Allen, L.L.C. and its Attorney Fred J. Daigle
    NO. 2018-C-0117
    Supreme Court of Louisiana.
    March 9, 2018
    Denied.


author: THIBODEAUX, Chief Judge.

text:
    James Crawford BAILEY v. VEOLIA ENVIRONMENTAL SERVICES
    17-655
    Court of Appeal of Louisiana, Third Circuit.
    January 31, 2018 Rehearing Denied March 21, 2018
    Maurice Blake Monrose, Hurlburt, Monrose & Ernest, P. O. Drawer 4407, Lafayette, LA 70502, Telephone: (337) 237-0261, COUNSEL FOR: Defendant/Appellee-Veolia Environmental Services
    George Arthur Flournoy, Flournoy Law Firm, P. O. Box 1270, Alexandria, LA 71309, Telephone: (318) 487-9858, COUNSEL FOR: Plaintiff/Appellant-James Crawford Bailey
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion, and John E. Conery, Judges.
   THIBODEAUX, Chief Judge.

Plaintiff James Crawford Bailey appeals a judgment in favor of Defendant, Veolia Environmental Services (hereafter "Veolia"), finding that Mr. Bailey failed to prove untimely payment of pharmacy bills and prescription medications for his workers' compensation claim. Mr. Bailey appeals the trial court's denial of penalties and attorney fees. Mr. Bailey also alleges that the Workers' Compensation Judge (WCJ) erred by injecting the issue of medical necessity for medical expenses post-trial. Veolia asserts that Mr. Bailey failed to prove medical necessity and that the WCJ erred in denying Veolia's objection that the documents were unreliable hearsay. Veolia requests frivolous appeal damages. We affirm the trial court's judgment in favor of Veolia, and we deny damages for a frivolous appeal.

I.

ISSUES

This court must determine whether the WCJ erred in her determination that the employee failed to prove untimely payments of prescription medication. If we find that the WCJ was clearly wrong in her determination that the employee failed to establish untimely payment of prescription medication, we must determine whether the WCJ erred in her denial of penalties and attorney fees. Additionally, we must determine whether the employer is entitled to frivolous appeal damages as requested by the employer.

II.

FACTS AND PROCEDURAL HISTORY

Mr. Bailey is alleged to have sustained a severe spinal injury on August 5, 2010, while employed by Veolia. Mr. Bailey filed a disputed claim for compensation on March 1, 2016, alleging nonpayment or untimely payment of medical expenses, penalties and attorney fees, legal interest and court costs. Veolia filed exceptions of prematurity, no cause of action, res judicata, and vagueness. Veolia filed an answer to Mr. Bailey's petition, specifically denying the allegations for lack of specific information. Trial was set for March 2, 2017, with untimely payment for medication, penalties, and attorney fees to be litigated at trial. No facts were stipulated to by Veolia prior to trial in its pre-trial statement, nor did it stipulate to any facts at trial. Mr. Bailey's pre-trial statement was submitted on March 13, 2017, after trial. However, Veolia did not object to evidence regarding entitlement. In Paragraph 2 of Veolia's pre-trial statement, Defense counsel agreed to the characterization of the issue as one of untimely payments. At trial, Mr. Bailey did not appear and his counsel did not call any witnesses.

Veolia argued in a post-trial brief that Mr. Bailey did not offer evidence nor did he offer testimony to establish: (1) an employment relationship; (2) an accident while on the job; (3) that the employee sustained an injury while in the course and scope of employment; or (4) the medical necessity of treatment from an injury sustained during the course and scope of employment. In the post-trial brief, Veolia further asserted that under La.R.S. 23:1204, Veolia's payment of medical expenses did not constitute an admission of liability and that Mr. Bailey is still required to prove untimeliness of payments. Plaintiff's counsel wrote that he advised Veolia that all medical expenses should be reimbursed in accordance with La.R.S. 23:1201(A), and this was court-mandated. However, Veolia notes that the statute is inapplicable and there was no court mandate to Veolia's knowledge. Mr. Bailey contends in a reply brief that Veolia did not dispute the receipt of the demand for payment, nor did Veolia dispute the dates of untimely payments included in Mr. Bailey's exhibits.

Mr. Bailey's exhibits, labeled "P-1" and "P-2," include the affidavit of Darla Corley, a pharmacist employed by Professional Pharmacy, and an initial demand letter dated October 26, 2010. Exhibits "P-3" to "P-9" are demand letters with dates of service from Professional Pharmacy, spanning from June 1, 2015 to March 8, 2016. The exhibits are receipts which include handwritten notations regarding the payment dates, documenting whether the payment was made timely or untimely. However, no witnesses or secondary forms of documentation were included to verify or support these handwritten notations asserting the timeliness or untimeliness of the payments. Veolia did not stipulate to these dates at trial. Accordingly, the WCJ found that Mr. Bailey's exhibits did not sufficiently establish that Veolia made untimely payments of Mr. Bailey's prescription medication.

At trial, Veolia objected to all of Mr. Bailey's exhibits as hearsay because there were no witnesses present to identify the exhibits. Additionally, Veolia objected to Exhibit "P-10," a patient profile, and Exhibit "P-11," an affidavit faxed from Plaintiff's counsel to Defense counsel because Plaintiff's counsel did not send the pre-trial exhibits until twenty hours prior to trial. The WCJ overruled Veolia's objections to Exhibits "P-2" to "P-9," noting that, even though the evidence "may be hearsay [ ], hearsay is acceptable .... Although [the court] may not be able to rely on those documents, they are admissible." The WCJ sustained the objections to Exhibits "P-10" and "P-11" because Veolia did not have copies of those exhibits. Veolia moved to dismiss the case, noting that third circuit cases establish that the claimant must prove the demand was received and no evidence showed that the demands were received.

After review of the post-trial briefs, the WCJ entered a judgment in favor of Veolia, finding that Mr. Bailey failed to prove untimely payments of prescription medication. The WCJ also denied Mr. Bailey's request for penalties and attorney fees. As an aside, the WCJ mentioned that the claimant offered little evidence of medical necessity of prescription medication, such as the claimant's own testimony.

III.

STANDARDS OF REVIEW

"The hearing officer's determination of whether a claimant is entitled to medical expenses is a factual question; thus, an appellant court cannot set aside this factual finding unless it is clearly wrong or manifestly erroneous." Fritz v. Home Furniture-Lafayette , 95-1705, p. 7 (La.App. 3 Cir. 7/24/96), 677 So.2d 1132, 1136 (citations omitted). Whether an employee "has discharged her burden of proof [is a] factual determination [ ] which we may not disturb on review unless they are clearly wrong." Wyble v. Acadiana Preparatory School , 07-91, p. 4 (La.App. 3 Cir. 5/2/07), 956 So.2d 722, 725, writ denied , 07-1178 (La. 9/14/07), 963 So.2d 1004 (citing Bruno v. Harbert Int'l Inc. , 593 So.2d 357 (La.1992) ). Further, a reviewing court "must apply a manifest error standard of review" if the "court finds incompetent evidence in the record." Chaisson v. Cajun Bag & Supply Co. , 97-1225, pp. 13-14 (La. 3/4/98), 708 So.2d 375, 383.

Penalties and attorney fees in workers' compensation cases are subject to the manifest error standard of review.

Sinegal v. Lafayette Parish Sheriff's Office , 13-1437, (La.App. 3 Cir. 5/7/14), 139 So.3d 630.

IV.

LAW AND DISCUSSION

First, we must address whether the WCJ erred in her determination that Mr. Bailey failed to prove untimely payments of prescription medication. Mr. Bailey asserts that Veolia made multiple untimely payments for Mr. Bailey's prescription medication. Mr. Bailey argues that Veolia never denied receipt of the demand letters, labeled Exhibits "P-3" to "P-9," and never disputed the untimely payments after demand of "P-4," "P-6," and "P-8." Veolia contends that Mr. Bailey did not prove untimeliness of payment of prescription medication because Mr. Bailey only provided a list of prescription medication receipts with handwritten notation that the payments were untimely. Veolia contends that Mr. Bailey did not provide any more information than a list of prescription medication bills and alleged that the medical benefits were not paid timely. Veolia cites to Cobb v. Lafayette Parish School Board , 16-990, (La.App. 3 Cir. 5/17/17), 220 So.3d 825, writ denied , 17-1481 (La. 11/13/17), 230 So.3d 209.

Louisiana Revised Statutes 23:1201(E)(1) states:

Medical benefits payable under this Chapter shall be paid within sixty days after the employer or insurer received written notice thereof, if the provider of medical services is not utilizing the electronic billing rules and regulations provided in R.S. 23:1203.2.

A "demand for work[ers'] compensation is required to be in no particular form, as long as it informs the insurer that the insured asserts a claim for compensation under the policy." Lucas v. Insurance Co. of North America , 342 So.2d 591, 598 (La.1977). In Lucas , the Louisiana Supreme Court reversed the judgment of the third circuit and reinstated medical expenses, and penalties and attorney fees, finding that letters sent by the employee's attorney "constituted a demand for the payment of compensation." Id. at 598. This court found that the demand was "received more than sixty days prior to suit and satisfied the statutory time schedule." Id. at 598.

In Cobb , this court held that the trial court was manifestly erroneous in awarding penalties to the plaintiff, finding that the evidence provided by the plaintiff was insufficient to establish entitlement to medical benefits. Id. at 829. There, the plaintiff submitted invoices from physicians with dates of services, and receipts from CVS Pharmacy for prescription medication purchases. Id. at 827. Accordingly, we reversed the trial court's judgment, finding the receipts and invoices were not enough to meet the plaintiff's burden of proof. Id. at 828. We noted that the plaintiff's "claim for penalties and attorney fees related to [the defendant's] failure to pay the medical bills at issue [was] necessarily dependent upon a finding that [the plaintiff] was entitled to payment of medical benefits resulting from the [ ] accident." Id. at 828. The plaintiff failed to establish "the nature of the treatment received" [and] ... "that the treatment or prescriptions were necessitated by any injuries ... or that the particular medical expenses were necessary." Id.

Like the plaintiff in Cobb , Mr. Bailey only submitted receipts for prescription medication and did not testify at trial. Plaintiff's counsel wrote on the receipts that the payments were made untimely but provided no corroborating testimony to prove payments were not made timely.

Further, Mr. Bailey asserts that Veolia offered no evidence that the prescription medications were not medically necessary because it was not an issue at trial and that Veolia paid for the prescription medication, proving entitlement. Mr. Bailey contends that any payments made by Veolia for prescription medication should be evidence of Veolia admitting it owed benefits. Veolia notes that there is no judgment finding that Veolia is liable for Mr. Bailey's worker's compensation benefits. Further, Veolia contends that any payments made for Mr. Bailey by Veolia do not serve as an admission of liability, despite Mr. Bailey's assertion that voluntary payments made by the employer without objection establish an admission of liability. We agree with Veolia that an employer's voluntary payment does not qualify as an admission of liability.

Under La.R.S. 23:1203(A), the employer must provide necessary medical treatment. However, payment of medical benefits is not admission of liability by the employer under La.R.S. 23:1204. Veolia acknowledges that it voluntarily made payments but that those payments were not made as an admission of liability.

Louisiana Revised Statutes 23:1203(A) provides:

...[T]he employer shall furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any nonmedical treatment recognized by the laws of this state as legal ... [.]

Louisiana Revised Statutes 23:1204 states:

Neither the furnishing of medical services nor payments by the employer or his insurance carrier shall constitute an admission of liability of compensation under this Chapter.

The record is clear that the only issue was untimely payment as characterized in Paragraph 2 of the Defendant's pre-trial statement, even though Defendant did not stipulate to any facts. The trial court was not clearly wrong that the claimant failed to prove by a preponderance of evidence that the prescription payments were untimely.

Mr. Bailey further alleges that the triable issues were limited to untimely payments of prescription medication, penalties and attorney fees and that the WCJ injected the issue of medical necessity at trial. In order to be entitled to medical benefits, it is presupposed that the claimant would need to show medical necessity and some connexity between the injury and the need for the medical benefit.

Veolia asserts that Mr. Bailey did not provide any evidence that he sought medical treatment as a result of the accident. Additionally, Veolia notes that no testimony was provided that Mr. Bailey was treated by Dr. Katz and/or was prescribed medication causally related to the accident. Veolia also argues that to be entitled to medical benefits, it is incumbent to prove a work-related injury. Veolia again cites Cobb , 220 So.3d 823, in which the plaintiff failed to show the nature of her medical treatment or necessity of treatment resulting from any injuries sustained during a work-related accident.

In Fritz , 677 So.2d 1132, 1136, this court held that the plaintiff "failed to meet his burden of proof regarding the necessity of the medical expenses" because the medical testimony provided was in conflict. We noted that in workers' compensation cases, "a claimant's medical expenses are compensable only if they are occasioned by a work-related injury." Id. "[T]he burden of establishing the disability and the causal relation with the employment accident by a preponderance of evidence"

is on the employee. Lucas , 342 So.2d 591, 599 (Sanders, C.J., concurring in part, dissenting in part) (citing Prim v. City of Shreveport, La. , 297 So.2d 421 (1974) ). "Costs of medically necessary diagnostic tests recommended by the treating physician are recoverable when needed to determine the proper treatment for the patient, and the burden rests on the plaintiff to prove by a preponderance of the evidence that the required tests are necessary." Id. (quoting Harris v. Langston Co., Inc. 94-1266 (La.App. 3 Cir. 4/5/95), 653 So.2d 789,796, writ denied , 95-1178 (La. 6/23/95), 656 So.2d 1020 ). The plaintiff was the only witness to testify at the hearing and his physician determined that the plaintiff had "reached 'maximum medical recovery' " and was "unable to 'determine a cause' " of the plaintiff's complaints. Id. at 1136.

In Fritz , Judge Saunders dissented in part, finding that the plaintiff did show objective symptoms of an injury. Judge Saunders further noted that "[a] workers' compensation claimant is not entitled to medical benefits if there is no objective evidence of an injury for which she is seeking the benefits." Fritz , 677 So.2d at 1137 (Saunders, J., dissenting) (citing Fusilier v. Slick Constr. Co., 94-11 (La.App. 3 Cir. 6/1/94), 640 So.2d 788 ); see also Alleman v. Fruit of the Loom-Crowley , 96-1246, p. 8 (La.App. 3 Cir. 3/5/97), 692 So.2d 485, 489 (upholding the WCJ's determination that the claimant failed to establish a causal connection for the injury and failed to prove entitlement to additional benefits because "the hearing officer could conclude that the physicians did not have the information necessary to accurately relate the injuries to the work-related accident ... ".).

Although Mr. Bailey asserts that the WCJ injected medical necessity into the case post-trial, we do not find that medical necessity was at issue at trial. Mr. Bailey asserts that medical necessity was a critical issue in the WCJ's oral reasons for judgment. The WCJ mentioned medical necessity as a mere parenthetical aside, noting that Mr. Bailey offered little evidence regarding medical necessity and did not even testify. The record does not reflect that medical necessity was a primary reason for the WCJ's judgment. The record is devoid of any evidence that proves medical necessity by a preponderance of evidence. Notably, Mr. Bailey did not even testify to the causal connection of the injury and the need for the prescription medication at issue.

On appeal, Veolia alleges error in the denial of its hearsay objections regarding the exhibits. We do not address this issue because Defense counsel's answer focuses only on damages for frivolous appeal. Therefore, we cannot address this issue.

Next, we must address whether the WCJ properly denied Mr. Bailey's request for penalties and attorney fees. Mr. Bailey requests $3,200 in penalties for three untimely payments of prescription medication. The penalty of $3,200 results from the breakdown of $800 for a late payment of sixteen days, $400 for a late payment of eight days, and $2,000 for a late payment of fifty-nine days. Moreover, Mr. Bailey requests $8,500 in attorney fees because the case has lasted two years, alleging the duration of the suit is because of Defendant's "unreasonable arbitrariness and recalcitrance." Mr. Bailey cites McCarroll v. Airport Shuttle, Inc. , 00-1123, (La. 11/28/00), 773 So.2d 694, for the proposition that an attorney should be compensated for all the work from the inception of the case. Plaintiff's counsel also suggests that penalties and attorney fees would "deter future egregious misconduct by this defendant." Plaintiff's counsel notes that he has spent over two years on this case, traveling to and from Lake Charles.

Veolia argues that Mr. Bailey failed to carry his burden of proof to recover penalties and attorney fees because the claimant must first prove medical benefits are owed. Veolia posits that this court need not reach the issue of penalties and attorney fees because Mr. Bailey failed to prove untimeliness of payment in the first place. Veolia asserts that an employee must first prove entitlement to a medical benefit before penalties and attorney fees can be awarded for the untimely payment of the alleged medical benefit. We agree.

Louisiana Revised Statutes 23:1201(F) provides that:

... [F]ailure to provide payment in accordance with this Section ... shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid together with reasonable attorney fees for each disputed claim.

Because we hold that the WCJ did not err in finding that Mr. Bailey failed to establish untimely payments, the issue of penalties and attorney fees is moot.

Additionally, Veolia requests frivolous appeal damages. Veolia alleges that Plaintiff's counsel asserts no serious legal question and failed to put forth any evidence at trial for entitlement to a medical benefit or to establish untimely payment of prescription medication. Veolia notes that Plaintiff's counsel did not call Mr. Bailey to testify, did not call any other witnesses, and provided no medical evidence at trial. Therefore, Veolia requests frivolous appeal damages, arguing that Plaintiff's counsel did not prove any elements of the case. Veolia asserts that Plaintiff's counsel does not believe in the position that he advocates and provides no legitimate argument. Veolia requests frivolous appeal damages including a minimum of $2,500 in legal fees and all costs associated on appeal and proceedings in the Office of Workers' Compensation.

Under La.Code Civ.P. art. 2164 :

The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages, including attorney fees, for frivolous appeal or application for writs, and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.

Frivolous appeal damages are "penal in nature" and "must be strictly construed." Salmon v. Hodges , 398 So.2d 548, 549 (La.App. 1 Cir. 1979). "Appeals are favored, and the imposition of penalties for frivolous appeal will not be granted unless they are clearly due, since the award of such penalties will tend to discourage appeals." Guidry v. Carmouche , 320 So.2d 267, 271 (La.App. 3 Cir. 1975) (citing Dupaquier v. City of New Orleans , 271 So.2d 78 (La.App. 4 Cir. 1972) ). In Guidry , 320 So.2d 267, this court denied the plaintiff's request for frivolous appeal damages finding that the defendant had presented a "substantial legal question." Id. at 271. In Seale v. Evangeline Parish Police Jury , 330 So.2d 378, 380 (La.App. 3 Cir. 1976), this court found that frivolous appeal damages were not warranted because the appellate process provided the "only avenue for relief."

Both parties agreed that the only issue was whether payments for prescription medication were untimely. This was not a trial on the merits on issues of entitlement to indemnity and other related benefits. Thus, Mr. Bailey felt his proof need not be fully expansive, and he thus limited his evidence-to his prejudice.

Here, Mr. Bailey's only avenue for relief is through the appellate process. Furthermore, we do not seek to discourage appeals. Therefore, we deny Veolia's request for frivolous appeal damages.

V.

CONCLUSION

For the foregoing reasons, we affirm the trial court's judgment in favor of Veolia Environmental Services, and we deny Veolia's request for damages for a frivolous appeal. All costs are assessed to the Appellant.

AFFIRMED.


author: GREMILLION, Judge.

text:
    April FERGUSON, et al. v. PROGRESSIVE ACUTE CARE AVOYELLES, LLC, et al.
    17-563
    Court of Appeal of Louisiana, Third Circuit.
    January 4, 2018
    Nicholas Gachassin, III, Holly McKay Descant, Gachassin Law Firm LLC, P.O. Box 80369, Lafayette, LA 70598, (337) 235-4576, COUNSEL FOR DEFENDANT/RELATOR: Dr. Christopher Ritter
    Mark A. Jeansonne, Attorney at Law, P.O. Box 301, Hessmer, LA 71341, (318) 563-9000, COUNSEL FOR PLAINTIFFS: April Ferguson, April Furguson on behalf of Avery Ferguson, April Ferguson on behalf of Sidney Ferguson
    Chad P. Guillot, Attorney at Law, P.O. Drawer 158, Marksville, LA 71351, 318-253-6656, COUNSEL FOR PLAINTIFFS: April Ferguson, April Furguson on behalf of Avery Ferguson, April Ferguson on behalf of Sidney Ferguson
    Court composed of John D. Saunders, Shannon J. Gremillion, and John E. Conery, Judges.
   GREMILLION, Judge.

Defendant, Dr. Christopher L. Ritter, seeks supervisory writs from the trial court's denial of his motion for summary judgment. For the following reasons, we grant the writ and render summary judgment in favor of Dr. Ritter.

FACTUAL AND PROCEDURAL BACKGROUND

This medical malpractice suit arises from the treatment provided to Joseph Ferguson (Ferguson) by Dr. Ritter, an emergency room (ER) physician, on June 29, 2014, when Ferguson presented at the Avoyelles Hospital ER complaining of weakness and pain in his right lower extremity and a history of diabetes, morbid obesity, and chronic low back pain. Based upon the patient's complaints, Dr. Ritter believed Ferguson either had a blood clot, diabetic neuropathy, or back radiculopathy. Dr. Ritter suggested Ferguson have a venous ultrasound or CT scan of his right leg to rule out a blood clot. However, this could not be done at the Avoyelles Hospital because of the patient's size, nearly 600 pounds. Dr. Ritter then called Rapides Regional in Alexandria and Our Lady of Lourdes in Lafayette, but neither hospital could accommodate the patient and refused to transfer. As he did not feel the ultrasound was immediately necessary, Dr. Ritter advised Ferguson to see his primary care provider the next day to arrange for an ultrasound, and, with the diagnosis of diabetic neuropathy, discharged the patient, who, according to the nursing records, was able to walk without pain at discharge.

On June 30, 2014, Ferguson presented at the Rapides Regional ER with similar complaints and was again discharged with instructions to follow up with his primary care physician. After a fall at home, Ferguson returned to the Rapides Regional ER on July 6, 2014, with pain in his right ankle and was discharged with instructions given for ankle sprain. Through her own initiative, Ferguson's wife, April Ferguson (plaintiff), contacted the Cardiovascular Institute in Lafayette on July 17, 2014, and was referred to Our Lady of the Lake in Baton Rouge, which could accommodate her husband's size. Ferguson then went to the Our Lady of the Lake ER on July 19, 2014-19 days after his visit with Dr. Ritter-with complaints of worsening leg weakness, a fall two weeks prior, a broken ankle, and new onset right arm weakness that had begun two days prior. A CT scan of Ferguson's head performed at Our Lady of the Lake found three separate but adjacent hyperdense and enhancing brain masses. Ferguson eventually died from these brain tumors nine months later on April 24, 2015.

On December 15, 2014, plaintiffs filed a request for medical review panel (MRP), which rendered a unanimous opinion finding that "[t]he evidence does not support the conclusion that [Dr. Ritter] failed to meet with the appropriate standard of care as charged in the complaint." On July 5, 2016, plaintiff, individually and on behalf of Ferguson's children, Avery and Sidney Ferguson, filed the instant suit against Dr. Ritter and other defendants, alleging a lost chance of survival and related damages due to an incorrect diagnosis of diabetic neuropathy.

On October 19, 2016, Dr. Ritter filed a motion for summary judgment on the ground that plaintiffs did not have an expert to establish breach of the standard of care. In support, Dr. Ritter filed a copy of the MRP opinion and reasons, as well as the petition and answer thereto. The hearing was originally set for December 5, 2016. After plaintiffs faxed their opposition to the court and Dr. Ritter's counsel on December 4, 2016, the trial court allowed the opposition, deferred ruling on the motion, re-set the hearing for February 17, 2017, and ordered that "Plaintiffs obtain an expert and provide an expert report or affidavit, if any they can, 15 days prior the hearing." No expert report was produced prior to the hearing. Instead, plaintiffs filed a motion for extension of time, at the hearing of which plaintiffs filed their opposition to Dr. Ritter's motion for summary judgment. Therein, plaintiffs argued that an expert was not necessary because the negligence was so obvious given that Ferguson's wife, a layperson with a fifth grade education, was able to find a hospital in one of the three cities capable of providing top quality medical care-Shreveport, New Orleans, and Baton Rouge-that could accommodate Ferguson's size, with just a simple phone call. At the conclusion of that hearing, the trial court, very conscious of plaintiffs' indigent status, granted the extension to produce an expert until April 17, 2017. The summary judgment hearing was again re-set to April 28, 2017.

After hearing arguments and taking the matter under advisement, the trial court denied Dr. Ritter's motion, reasoning:

The record reflects that [Dr. Ritter] suspected that Mr. Ferguson may have been suffering from diabetic neuropathy or potential blood clots. [Dr. Ritter] recommended an ultrasound of Mr. Ferguson's leg, but due to his size, was unable to accommodate him at Avoyelles Hospital where Mr. Ferguson sought treatment. After calling two hospitals in the area, both of which could not accommodate Mr. Ferguson's size, [Dr. Ritter] diagnosed Mr. Ferguson with diabetic neuropathy, and released him from care. This Court considered not only the potentially deadly nature of blood clots, but also that during the 19-day lapse between Mr. Ferguson's release from the visit with [Dr. Ritter] and when his wife ultimately scheduled an ultrasound of his leg at a Baton Rouge hospital, Mr. Ferguson suffered a fall which broke his ankle.
The defendant argues that the plaintiffs cannot meet the element of establishing causation, as there is no causal connection between [Dr. Ritter]'s failure to transfer Mr. Ferguson for an ultrasound of his leg, and the subsequent cause of his death-three brain tumors referred to as glioblastoma. However, the record reflects that Mr. Ferguson's brain tumors were discovered on the same day that he received an ultrasound of his leg at a Baton Rouge hospital, supporting plaintiffs' argument that, had Mr. Ferguson been properly assessed, it is more likely than not that a correct diagnosis would have been made sooner rather than later. This fact (i.e. that the diagnosis of brain tumors was made during the same hospital stay as the ultrasound of Mr. Ferguson's leg) undermines defendant's argument that plaintiff cannot prove a causal connection between the delay in treatment and Mr. Ferguson's resulting injuries. Once the flawed diagnosis of diabetic neuropathy was excluded by the Baton Rouge hospital, the correct diagnosis for brain tumors was immediately determined.
Genuine issues of material fact exist as to whether this 19-day delay in Mr. Ferguson's diagnosis and subsequent treatment lowered his chances of survival. Furthermore, the issue of damages Mr. Ferguson suffered, which may or may not have resulted from [Dr. Ritter]'s failure to secure the appropriate tests, remain a question of fact for the jury. Under the facts presented at bar, is inquiry at two facilities sufficient to meet the standard of care to absolve the defendant doctor of liability? Or, is more required? Again, these are questions for resolution by a jury.
... Because no expert is required as a matter of law, this Court finds that summary judgment is not appropriate. A genuine issue of material fact exists as to whether a 19-day delay in Mr. Ferguson's diagnosis and subsequent treatment may or may not have significantly contributed to his suffering, caused him further injury, and lowered his chances of survival. This Court finds that dismissing the claims of a widow and her two young children, depriving them of their day in court, is a particularly harsh remedy at this stage of the litigation, given the disputed facts that remain in question.

Dr. Ritter now seeks review of the trial court's judgment.

SUPERVISORY RELIEF

A court of appeal has plenary power to exercise supervisory jurisdiction over trial courts and may do so at any time, according to the discretion of the court. When the trial court's ruling is arguably incorrect, a reversal will terminate the litigation, and there is no dispute of fact to be resolved, judicial efficiency and fundamental fairness to the litigants dictate that the merits of the application for supervisory writs should be decided in an attempt to avoid the waste of time and expense of a possibly useless future trial on the merits. Herlitz Const. Co., Inc. v. Hotel Investors of New Iberia, Inc ., 396 So.2d 878 (La.1981) (per curiam). This "supervisory jurisdiction may also be exercised to reverse a trial court's denial of a motion for summary judgment and to enter summary judgment in favor of the mover." Csaszar v. Nat'l Cas. Co. , 14-1273 (La.App. 3 Cir. 11/4/15), 177 So.3d 807, 809. Nevertheless, appellate courts generally will not exercise their supervisory jurisdiction when an adequate remedy exists by appeal. Douglass v. Alton Ochsner Med. Found. , 96-2825 (La. 6/13/97), 695 So.2d 953.

ON THE MERITS

Appellate courts review motions for summary judgment de novo, using the identical criteria that govern the trial court's consideration of whether summary judgment is appropriate. Samaha v. Rau , 07-1726 (La. 2/26/08), 977 So.2d 880. The reviewing court, therefore, is tasked with determining whether "the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La.Code Civ.P. art. 966(A)(3).

Initially, the burden of producing evidence at the motion hearing is on the mover, "who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent's case." Schultz v. Guoth , 10-343, p. 6 (La. 1/19/11), 57 So.3d 1002, 1006. If it is determined that the moving party has met its burden, the burden then shifts to "the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law." La.Code Civ.P. art. 966(D)(1).

At that point, the party who bears the burden of persuasion at trial (usually the plaintiff) must come forth with evidence (affidavits or discovery responses) which demonstrates he or she will be able to meet the burden at trial. Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion.

Samaha , 977 So.2d at 883 (quoting Wright v. La. Power & Light , 06-1181, p. 16 (La. 3/9/07), 951 So.2d 1058, 1069-70 ).

To establish a claim for medical malpractice, a plaintiff must prove, by a preponderance of the evidence:

(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, optometrists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, optometrists, or chiropractic physicians within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

La.R.S. 9:2794(A). Expert testimony is generally required to establish the applicable standard of care, breach of the applicable standard, and causal link between the injury and the breach. Samaha , 977 So.2d 880. The only recognized exception is where the negligence is so obvious that a layperson can infer negligence without the guidance of expert testimony. Pfiffner v. Correa , 94-924, 94-963, 94-992 (La. 10/17/94), 643 So.2d 1228. The supreme court has held, however, that a causal nexus between delayed treatment and a patient's death is not obvious and requires expert testimony, either from plaintiff's experts or defendant's experts, to establish that the health care provider breached the applicable standard of care and that this breach caused the patient's death or loss of a chance of survival. Id.

Dr. Ritter asserts the trial court erred in ruling that an expert was not necessary given the complex medical issues presented in this case, which are beyond the province of a layperson to assess without the aid of expert testimony. He notes that a lay jury will need to determine the significance of the location of the brain tumors, the size of the brain tumors, and interpret medical terms like "frontoparietal lobe," "central necrosis," "right parietal lobe," "falx," "multicentric glioma," "mass effect," and "midline shift." Moreover, the jury will be called upon to answer such questions as (1) would an ultrasound of the leg have revealed the same findings as the CT scan of the head ; (2) were the brain tumors treatable on June 29, 2014; and (3) would treatment of those brain tumors have extended Ferguson's life beyond April 24, 2015? Without expert testimony, Dr. Ritter argues that plaintiffs cannot show that Ferguson would have discovered his brain tumors earlier or fared any better had Dr. Ritter done an ultrasound of the patient's leg. And even if Dr. Ritter was able to testify to the expert standard of care at trial as plaintiffs argued below, plaintiffs have not produced expert evidence to counter the uncontradicted expert opinion of the MRP that there was no breach.

To succeed on her claim, Dr. Ritter points out that plaintiffs needs to establish, either through their own experts or the testimony of the defendants or defense experts, that, given Ferguson's medical history and conditions, as well as Dr. Ritter's clinical and diagnostic findings, that Dr. Ritter breached a specific standard of care and that this breach caused Ferguson's loss of a chance of survival. At the hearing, plaintiffs' attorney even acknowledged an expert regarding causation was necessary. Simply put, the evidence submitted by Dr. Ritter establishes a prima facie case that he did not breach the applicable standard of care in his treatment of the patient and that there was no causal connection between the alleged breach and Ferguson's death. In the absence of any countervailing evidence from plaintiffs, Dr. Ritter is entitled to summary judgment.

Regarding the trial court's written reasons, Dr. Ritter challenges what he refers to as the trial court's gross misstatements of fact, explaining that: (1) the record does not reflect that Ferguson had an ultrasound done at the Baton Rouge Hospital; (2) Ferguson presented at that hospital with new symptoms that indicated the need for a CT scan of the head ; (3) there was no indication for a CT scan of the head when Dr. Ritter saw the patient; (4) it was the CT scan of the head that diagnosed the brain tumors, which ultimately led to Ferguson's demise; (5) an ultrasound of the leg would not have diagnosed the tumors; and (6) the trial court was not presented with any records regarding "intense pain" or administration of "appropriate pain medication."

In this matter, we are presented with the issue of whether the trial court erred in denying summary judgment after Dr. Ritter presented prima facie proof, in the form of the MRP opinion, that he did not breach the applicable standard of care, and plaintiffs then failed to produce an expert, or any evidence, to contradict that expert medical evidence. We find the trial court erred in summarily concluding that expert testimony is not needed to establish either breach of the standard of care or causation.

This is not a case of obvious negligence, which would not require expert testimony to prove the elements of plaintiffs' malpractice claim. Whether Dr. Ritter breached the applicable standard of care and whether that breach caused injury will turn on complex medical issues and terms that are not within the experience or lexicon of an average layperson. Because the issues are beyond the province of a layperson to assess without the aid of expert testimony, the parties, to either succeed on or survive summary judgment, have to produce such evidence.

Through the uncontradicted medical evidence contained in the MRP opinion and reasons, Dr. Ritter arguably supported his position that plaintiffs cannot prove an essential element for their medical malpractice claim-breach of the standard of care. Upon this prima facie showing, the burden then shifted to plaintiffs to "produce evidence from a medical expert to establish a breach of the standard of care" sufficient to show the existence of a genuine issue of material fact or that Dr. Ritter was not entitled to judgment as a matter of law. Schultz , 57 So.3d at 1009. Plaintiffs produced no evidence whatsoever. Accordingly, Dr. Ritter is entitled to summary judgment, and plaintiffs' claims against Dr. Ritter are dismissed. All costs of this appeal are assessed to the plaintiffs, April Ferguson, April Ferguson on behalf of Avery Ferguson, and April Ferguson on behalf of Sidney Ferguson.

WRIT GRANTED AND MADE PEREMPTORY .


author: KEATY, Judge.

text:
    STATE of Louisiana v. Kelvin Latrial MCADORY
    17-571
    Court of Appeal of Louisiana, Third Circuit.
    January 4, 2018
    Asa A. Skinner, District Attorney, Terry W. Lambright, First Assistant District Attorney, Post Office Box 1188, Leesville, Louisiana 71446, (337) 239-2008, Counsel for Appellee: State of Louisiana
    Edward L. Tarpley, Jr., Attorney At Law, 819 Johnston Street, Alexandria, Louisiana 71301, (318) 487-1460, Counsel for Defendant/Appellant: Kelvin Latrial McAdory
    Court composed of Marc T. Amy, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.
   KEATY, Judge.

Defendant, Kelvin Latrial McAdory, appeals the trial court's sentence. For the following reasons, the trial court's judgment is affirmed and remanded with instructions.

FACTS & PROCEDURAL BACKGROUND

On November 7, 2014, Defendant, Kelvin Latrial McAdory, was a passenger in a vehicle in Vernon Parish when it was stopped by police for a traffic violation.

During the traffic stop, a consent to search the vehicle was requested and subsequently denied. Thereafter, a police canine at the scene was led around the vehicle and alerted the police to the presence of drugs. A subsequent search of the car uncovered drugs, which Defendant admitted belonged to him.

On March 2, 2016, Defendant was charged with the intent to distribute marijuana, in violation of La.R.S. 40:966(A)(1) ; possession with the intent to distribute cocaine, in violation of La.R.S. 40:967(A)(1) ; possession with the intent to distribute methamphetamine, in violation of La.R.S. 40:967(A)(1) ; and possession of ethylone/bath salts, in violation of La.R.S. 40:966(C). On the same day, Defendant pled guilty to possession of methamphetamine pursuant to a written Plea Agreement. In the Plea Agreement, which was silent with respect to Defendant's sentence, the State dismissed the remaining charges. The trial court thereafter ordered a presentence investigation (PSI) report. On May 10, 2016, Defendant was sentenced to serve five years at hard labor, three years suspended, with him serving five years of supervised probation, with credit for time served. He was also fined $4,000 plus court costs and, as conditions of probation, ordered to pay $2,500 to the district attorney's office for the cost of prosecution, $1,000 in restitution to the clerk of court, supervision fees, and $150 for the PSI. Defendant did not object to his sentence.

On June 3, 2016, Defendant timely filed a Motion to Reconsider Sentence, arguing that the trial court failed to consider mitigating factors in its sentencing. He also alleged that the imposition of fines and costs was unreasonable, excessive, and imposed without any notice to Defendant that he would be subject to costs above and beyond the statutory fine and normal court costs. Following a hearing on August 24, 2016, the trial court denied the motion to reconsider. Defendant thereafter sought review of the denial through writ of review to this court. A panel of this court remanded the case to the trial court to be treated as an appeal rather than a writ due to Defendant's conviction arising out of a criminal case triable by jury. State v. McAdory , 16-872 (La.App. 3 Cir. 3/15/17) (unpublished writ opinion).

Defendant appeals his sentence, arguing the trial court erred in denying his Motion to Reconsider Sentence because he did not have sufficient notice of the costs to be assessed by the trial court for the district attorney and clerk of court.

DISCUSSION

I. 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 an error patent concerning Defendant's sentence. In sentencing Defendant, the trial court imposed a fine of $4,000, court costs, $2,500 for the cost of prosecution, and $1,000 in restitution to the clerk of court. In outlining the conditions of probation, the trial court stated:

You will have to follow the normal conditions of probation and the following special conditions: you pay your fine and costs that are due immediately. If you do not pay those out, you have to get with the court's collection officer if you decide to do that. If not, you'll have to do one year in the Vernon Parish jail. Likewise, you will have to pay the fine and costs over that payment plan you work out at a minimum of $150 per month; a supervision fee in the amount of $71 to the probation office; $150 for the PSI; the restitution of $2,500 to the-for the costs of prosecution as well as the $1,000 to the Clerk of Court as well.

A payment plan was imposed for the fine and court costs. However, a payment plan was not imposed for the $150 PSI fee, the $2,500 cost of prosecution, and the $1,000 payment to the clerk of court. In State v. Wagner , 07-127, p. 7 (La.App. 3 Cir. 11/5/08), 996 So.2d 1203, 1208, this court held:

When the fines and costs are imposed as a condition of probation, but the trial court is silent as to the mode of payment or the trial court attempts to establish a payment plan, this court has required a specific payment plan be established. See State v. Theriot , 04-897 (La.App. 3 Cir. 2/9/05), 893 So.2d 1016 (fine, court costs, and cost of prosecution); State v. Fuslier , 07-572 (La.App. 3 Cir. 10/31/07), 970 So.2d 83 (fine and costs); State v. Console , 07-1422 (La.App. 3 Cir. 4/30/08), 981 So.2d 875 (fine and court costs).
We view this procedure as no different from payment plans for restitution . See State v. Dean , 99-475 (La.App. 3 Cir. 11/3/99), 748 So.2d 57, writ denied , 99-3413 (La. 5/26/00), 762 So.2d 1101 (restitution only), State v. Reynolds , 99-1847 (La.App. 3 Cir. 6/7/00), 772 So.2d 128 (restitution, fine, and costs), State v. Stevens , 06-818 (La.App. 3 Cir. 1/31/07), 949 So.2d 597 (restitution, fine, court costs, and reimbursement to Indigent Defender Board), and State v. Fontenot , 01-540 (La.App. 3 Cir. 11/7/01), 799 So.2d 1255 (restitution, court costs and payments to victim's fund, Indigent Defender Board, and District Attorney).
We, therefore, remand this case to the trial court for establishment of a payment plan for the fine, noting that the plan may either be determined by the trial court or by Probation and Parole, with approval by the trial court. See Stevens , 949 So.2d 597.

Likewise, in the present case, Defendant's case is remanded to the trial court for establishment of a payment plan for the $150 PSI fee, the $2,500 cost of prosecution fee, and the $1,000 payment to the clerk of court. This plan may either be determined by the trial court or by the Office of Probation and Parole with approval by the trial court.

II. Assignment of Error

At the outset, we address the State's objection to Defendant's appeal, arguing that it lacks merit because Defendant waived his right to appeal his conviction and sentence. In support, the State references the Plea Agreement, which was signed by Defendant and his attorney at the time of his plea, which contains the following clause:

3) By accepting this plea agreement, the defendant waives, releases and relinquishes any and all rights to appeal the conviction and sentence resulting from this plea agreement, whether on direct appeal or by application for post-conviction relief, motion to modify sentence, motion to correct sentence, application for habeas corpus relief, or otherwise.

According to the State, the foregoing language represents a clear and unambiguous waiver of Defendant's appellate rights which were knowingly and intelligently given. The State compares the similarities between the language at issue to the language of a waiver of post-conviction relief rights upheld by this court in State v. Crittenden , 14-83 (La.App. 3 Cir. 6/4/14), 2014 WL 2558202 (unpublished opinion).

We note, however, that the language in Crittenden did not include any waiver of sentencing review; it merely waived the right to challenge the defendant's conviction.

Jurisprudence reveals that when a defendant agrees to an open-ended plea without a sentencing recommendation or sentencing cap, he does not waive his right to appeal the sentence received. See State v. Miller , 12-1401 (La.App. 3 Cir. 6/5/13), 114 So.3d 670 ; State v. Pickens , 98-1443 (La.App. 3 Cir. 4/28/99), 741 So.2d 696, writ denied , 99-1577 (La. 11/5/99), 751 So.2d 232, and writ denied , 01-2178 (La. 4/19/02), 813 So.2d 1081.

In this case, the State contends that the parties agreed to a sentencing cap of five years on the reduced charge pled by Defendant. We find that is an inaccurate description of what occurred. At the time of Defendant's plea, the original agreement was that Defendant would plead guilty to two charges: possession of methamphetamine and possession of ethylone. However, confusion existed as the attorneys believed the maximum sentence on the second charge was five years, while the trial court stated the maximum sentence was ten years. The State initially offered a sentencing cap of five years but subsequently dismissed the charge. Accordingly, there was no sentencing cap in place, as noted on the Plea Agreement.

As such, the question is whether the clause stating that Defendant waives his right to appeal his conviction and sentence should be upheld as valid. The State argues that because the supreme court found in State v. Bordelon , 07-525 (La. 10/16/09), 33 So.3d 842, that even a capital defendant sentenced to death may waive his right to appeal, the waiver should be considered valid so long as it was given knowingly and intelligently. We caution, however, that the Bordelon court also noted it was still required to review the defendant's capital sentence for excessiveness under La.Code Crim.P. art. 905.9. Although the excessiveness issue in Bordelon is not relevant in the instant matter, we note that the trial court instructed Defendant at sentencing that, "[y]ou have two years from the date this sentence becomes final to assert any claim for post conviction relief and you have 30 days in which to file an appeal." We will, therefore, address Defendant's appeal.

On appeal, Defendant asserts that the trial court erred in denying his Motion to Reconsider Sentence because he did not have sufficient notice of the costs to be assessed by the trial court for the district attorney and clerk of court. His actual argument, however, swings back and forth between an argument for lack of notice and an argument regarding the excessive amounts of imposed fines. We will, therefore, address the issue as a hybrid claim of the two arguments.

The procedure required for preserving the review of a sentence on appeal is codified in La.Code Crim.P. art. 881.1, which states:

A. (1) In felony cases, within thirty days following the imposition of sentence or within such longer period as the trial court may set at sentence, the state or the defendant may make or file a motion to reconsider sentence.
....
E. Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

In Louisiana, the law is well settled concerning the standard to be used in reviewing excessive sentence claims:

[Louisiana Constitution Article] 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.
... [E]ven when a sentence falls within the statutory sentencing range, it still may be unconstitutionally excessive, and in determining whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, this court has suggested that several factors may be considered:
[An] 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.
State v. Decuir , 10-1112, pp. 11-13 (La.App. 3 Cir. 4/6/11), 61 So.3d 782, 790-91 (second alteration ours).

State v. Zhegao Quan , 14-1126, pp. 5-6 (La.App. 3 Cir. 3/4/15), 157 So.3d 1259, 1263-64.

Defendant argues that the trial court imposed an excessive sentence when it ordered him to pay $2,500 for prosecution costs and $1,000 in "restitution" fees to the Vernon Parish Clerk of Court. The supreme court recently upheld a trial court's rights to impose costs of prosecution and investigation on convicted criminal defendants. State v. Griffin , 14-1214, 14-1238 (La. 10/14/15), 180 So.3d 1262. Defendant, however, argues not that the trial court lacks authority to impose said costs upon him but rather argues that the amounts of those fines are excessive. The Griffin court specifically stated:

[ Louisiana Code of Criminal Procedure Article] 887(A) and La.C.Cr.P. art. 895.1(B) are clear and unambiguous on their face, and the articles provide support for the imposition of a broad category of costs of prosecution and costs of investigation within the sound discretion of the trial judge. The permissible costs imposed under these articles are not limited to costs that are special or extraordinary to the case at the bar. The Code of Criminal Procedure does not require that the costs imposed under article 887(A) or article 895.1(B) be expressly tied, dollar-for-dollar, to those incurred by the state in its prosecution or investigation of the case. Nor do the articles require that the costs imposed be accompanied by specific evidentiary proof unique to each and every case. Rather, so long as the defendant has sufficient notice of the imposition of such costs, and as long as the costs are reasonable and not excessive, costs of prosecution and costs of investigation may be imposed upon convicted defendants, as set forth in the articles.
As to the costs imposed in this case on this defendant, all defendants in the 3rd JDC have been on notice since 2004 that a misdemeanor conviction could result in the imposition of a $100 cost of prosecution, and since 2006, that a misdemeanor conviction could result in a $100 cost of investigation. The defendant here was assessed with those standard amounts in accordance with a public fee schedule, the costs were reasonable and not excessive and the defendant had sufficient notice of the costs.

Id. at 1273-74.

In Griffin , 180 So.3d 1262, the defendant was ordered to pay $100 for the cost of prosecution and an additional $100 for the cost of the sheriff's investigation. The trial court noted that those amounts were supported by a 2004 "Omnibus Motion for Costs of Prosecution" filed by the district attorney's office and a 2006 en banc order from the judges of the Third Judicial District Court, signed by the clerk of court, authorizing a $100 cost of investigation for misdemeanor convictions.

Defendant herein contends that he was not provided notice in light of the testimony of Jeff Skidmore, the Vernon Parish Clerk of Court, who testified that he had no knowledge of any motion being filed by the district attorney's office for costs of prosecution, which would set out any amount to be imposed or of any order from the judges authorizing the imposition of costs or fees for the clerk of court. Defendant maintains that absent public notice similar to that present in Griffin , the costs imposed on him were excessive, unreasonable, improper, and should be rescinded. Although Defendant claims that the costs imposed are excessive, his argument addresses a lack of notice, and then concludes by again claiming the amounts are excessive and unreasonable.

With respect to the notice issue, Defendant's argument boils down to one question: Does the existence of La.Code Crim.P. arts. 887(A) and 895.1(B), which unambiguously give the trial court authority to impose these fines, provide sufficient notice to defendants that they may be liable for costs above normal fines and court costs? Louisiana Code of Criminal Procedure Article 887(A) states that a "defendant who is convicted of an offense ... shall be liable for all costs of the prosecution or proceeding [;]" La.Code Crim.P. art. 895.1(B)(3) allows a trial court, which suspends a defendant's sentence and places him on probation, to "order placed, as a condition of probation, an amount of money to be paid by the defendant to any or all of the following[,]" including the "clerk of court for costs incurred." Based upon his focus on Skidmore's testimony, Defendant appears to argue that the outcome in Griffin relied exclusively on the existence of the nearly decade-old public notices alerting defendants to the possibility of liability for exactly the costs imposed. This argument lacks merit. While it is true that the two outstanding public notices provided additional notice of the possibility that the trial court might impose additional costs on the defendant in Griffin , the supreme court made it clear that the authority for those fines came not from those public notices, but from the Code of Criminal Procedure.

To accept Defendant's argument herein would make La.Code Crim.P. arts. 887(A) and 895.1(B) obsolete unless and until the district attorney and trial court judges of a judicial district took additional steps to promulgate notices to potential criminal defendants that they are liable for the costs of their prosecutions. Furthermore, "[e]veryone is presumed to know the law, including the penalty provisions that apply." State v. Sugasti , 01-3407, p. 7 (La. 6/21/02), 820 So.2d 518, 522.

To the extent that Defendant argues the amounts of the fees imposed are excessive, the Griffin court noted in footnote six that, "[l]ower courts of this state have also historically upheld the imposition of costs of prosecution under article 887(A) and costs of investigation under article 895.1(B)." Griffin , 180 So.3d at 1269, n.6. In particular, the Griffin court referenced State v. Heath , 513 So.2d 493 (La.App. 2 Cir. 1987), writ denied , 519 So.2d 141 (La.1988), wherein the second circuit affirmed the imposition of over $3,800 associated with prosecution costs; State v. Ratliff , 35-144 (La.App. 2 Cir. 9/26/01), 796 So.2d 101, wherein the second circuit upheld the imposition of $2,500 associated with costs of prosecution as not excessive; and State v. Brown , 04-184 (La.App. 3 Cir. 9/29/04), 882 So.2d 1273, wherein a panel of this court explained that costs of investigation are generally upheld so long as payment is made to a party listed by La.Code Crim.P. art. 895.1. In light of these cases, we hold the fees are not excessive and affirm Defendant's sentence.

CONCLUSION

The trial court's sentence imposed on Defendant, Kelvin Latrial McAdory, is affirmed. The case is further remanded to the trial court for establishment of a payment plan for the $150 PSI fee, the $2,500 cost of prosecution, and the $1,000 payment to the clerk of court. This plan may either be determined by the trial court or by the Office of Probation and Parole with approval by the trial court.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

      The Plea Agreement in Crittenden , p. 4,, contained the following language:
      (3) By accepting this plea agreement, the defendant waives, releases and relinquishes any and all rights to appeal the conviction resulting from this plea agreement, whether on direct appeal or by application for post-conviction relief, application for habeas corpus relief, or otherwise.
      (4) By accepting this plea agreement, defendant asserts that he/she is fully satisfied with the services and assistance rendered by his/her counsel and has had sufficient time to confer with counsel concerning his/her case and this plea agreement. By accepting this plea agreement, defendant acknowledges that his/her counsel has performed adequately and competently, securing a satisfactory plea agreement and resolution of defendant's criminal case(s). By accepting this plea agreement, defendant waives, releases and relinquishes any claim or right to appeal this matter, whether on direct appeal or by application for post-conviction relief, motion to modify sentence, motion to correct sentence, application for habeas corpus relief, or otherwise on a claim of ineffective assistance of counsel.