author: CONERY, Judge.

text:
    Jewel VAUGHN, III v. DIS-TRAN STEEL, LLC
    WCA 17-689
    Court of Appeal of Louisiana, Third Circuit.
    February 7, 2018
    Scott Louis Zimmer, Kean Miller, LLP, 333 Texas Street, Suite 450, Shreveport, Louisiana 71101, (318) 562-2700, COUNSEL FOR DEFENDANT/APPELLANT: Dis-Tran Steel, LLC
    Joseph Yuri Beck, Hunter & Beck, LLP, Post Office Box 11710, Alexandria, Louisiana 71315, (318) 487-1997, COUNSEL FOR PLAINTIFF/APPELLEE: Jewel Vaughn, III
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion, and John E. Conery, Judges.
   CONERY, Judge.

Dis-Tran Steel, LLC (Dis-Tran), appeals the judgment of the workers' compensation judge (WCJ) in favor of Jewell Vaughn, III, who was formerly employed by Dis-Tran as a welder. Mr. Vaughn answers the appeal seeking attorney fees for work done on appeal. For the following reasons we affirm the underlying judgment and award five thousand dollars ($5,000.00) in attorney fees for work done on appeal.

FACTS AND PROCEDURAL HISTORY

Mr. Vaughn filed a 1008 Disputed Claim for Compensation, commonly referred to as a Form 1008, pursuant to La.R.S. 23:1034.2 (F)(1) on November 3, 2015, against Dis-Tran claiming, "1. No wage benefits have been paid." Mr. Vaughn also sought "[a]ll benefits and claims due claimant under the Louisiana workers' compensation laws. Penalties and attorney's fees." On December 17, 2015, Mr. Vaughn was allowed to file his first supplemental and amending disputed claim for compensation also seeking his "Choice of Physician, Dr. Arsham Naalbandian (neurologist)."

Mr. Vaughn claimed that on September 29, 2015, he suffered a concussion while in the course and scope of his employment with Dis-Tran. Mr. Vaughn described the accident and injury in the Form 1008 as follows, "[w]hile moving materials, a coworker inadvertently struck Mr. Jewel Vaughn in the back of his head, causing the claimant to go unconscious." Mr. Vaughn was struck in the head by two welding curtains, which were knocked over by a co-worker who was moving a load of welding pipe with a crane.

Dis-Tran answered Mr. Vaughn's claim for compensation on December 21, 2015. Dis-Tran admitted that Mr. Vaughn was employed by it on the date of the accident, and that the accident occurred while he was in the course and scope of his employment with Dis-Tran. Dis-Tran, however, denied that Mr. Vaughn had "suffered a compensable injury" and denied that he was "entitled to indemnity benefits." Dis-Tran also pled the affirmative defense of "intoxication," pursuant to La.R.S. 23:1081(1)(b) and (5). Later, Dis-Tran clarified that they believed Mr. Vaughn was under the influence of Percocet.

The matter was tried before the WCJ on March 2, 2017 and taken under advisement. The WCJ allowed the parties to file post-trial memoranda. On May 1, 2017, the WCJ issued its oral reasons for judgment, followed by its May 23, 2017 judgment finding that Mr. Vaughn suffered a "temporary total disability beginning on September 29, 2015." The parties stipulated that Mr. Vaughn's average weekly wage was $615.13. Dis-Tran was ordered to pay Mr. Vaughn "2/3 of his average weekly wage ... from the date of his accident, September 29, 2015, to the present, and shall continue to pay indemnity benefits as they become due[.]" The WCJ also ordered Dis-Tran to "authorize Mr. Vaughn's choice of physician specializing in neurology[,]" and "authorize and pay for the brain MRI recommended by Dr. Gerald Calegan[.]"

The WCJ further found that Dis-Tran had "failed to reasonably controvert Mr. Vaughn's workers' compensation claim." Therefore, the WCJ ordered Dis-Tran to "pay a $2,000 penalty for failure to authorize indemnity benefits, and shall pay an additional $2,000 for failure to authorize medical treatment[.]" The WCJ awarded Mr. Vaughn attorney fees in the amount of $7,500, assessed all court costs against Dis-Tran, and awarded "legal interest on all sums awarded above, as provided by law." It is from the May 23, 2017 judgment of the WCJ that Dis-Tran appeals.

ASSIGNMENTS OF ERROR

Dis-Tran assigns the following assignments of error on appeal:

1. The trial court erred in holding Vaughn was not disqualified from receiving workers compensation benefits due to his intoxication at the time of the accident. Dis-Tran proved that Vaughn was intoxicated at the time of the accident, and the trial court did not shift the burden to Vaughn to rebut the presumption that his intoxication caused or contributed to the alleged incident.
2. The trial court erred in holding that Vaughn sustained a compensable work injury and that he is entitled to Temporary Total Disability Benefits from the last day he worked at Dis-Tran.
3. The trial court erred in holding Vaughn is currently unable to engage in any type of employment and entitled to ongoing Temporary Total Disability Benefits.
4. The trial court erred in awarding Vaughn penalties and attorneys' fees after Dis-Tran reasonably controverted his claim.

LAW AND DISCUSSION

Standard of Review

This court discussed the standard of review to be utilized in workers' compensation cases in LeBlanc v. Wal-Mart Stores, Inc. , 15-558, pp. 10-11 (La.App. 3 Cir. 11/4/15), 177 So.3d 1125, 1132-33, noting:

The standard of review in a workers' compensation claim is well established and was succinctly stated in Bracey v. City of Alexandria , 13-16, pp. 2-3 (La.App. 3 Cir. 6/5/13), 115 So.3d 1211, 1214-15, writ denied , 13-1934 (La. 11/8/13), 125 So.3d 455 (quoting Foster v. Rabalais Masonry, Inc. , 01-1394, pp. 2-3 (La.App. 3 Cir. 3/6/02), 811 So.2d 1160, 1162, writ denied , 02-1164 (La. 6/14/02), 818 So.2d 784 ):
Factual findings in workers' compensation cases are subject to the manifest error or clearly wrong standard of appellate review.
Smith v. Louisiana Dep't. of Corrections , 93-1305 (La. 2/28/94); 633 So.2d 129. In applying the manifest error standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Stobart v. State , 617 So.2d 880 (La.1993). Where there are two permissible views of the evidence, a factfinder's choice between them can never be manifestly erroneous or clearly wrong. Id. Thus, "if the [factfinder's] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." Sistler v. Liberty Mut. Ins. Co. , 558 So.2d 1106, 1112 (La.1990).
"The determination of coverage is a subjective one in that each case must be decided from all of its particular facts." Jackson v. Am. Ins. Co. , 404 So.2d 218, 220 (La.1981). "[T]he manifest error standard of appellate review applies in workers compensation cases and great deference is accorded to the [workers' compensation judge's] factual findings and reasonable evaluations of credibility." Central Lumber Co. v. Duhon , 03-620, p. 3 (La.App. 3 Cir. 11/12/03), 860 So.2d 591, 593, writ denied , 04-315 (quoting Garner v. Sheats & Frazier , 95-39, p. 7 (La.App. 3 Cir. 7/5/95), 663 So.2d 57, 61 )[.]

Assignment of Error Number One

In its first assignment of error, Dis-Tran argues that the WCJ erred in finding that Mr. Vaughn was entitled to workers' compensation benefits because he was intoxicated at the time of the accident. In support of its position Dis-Tran relies on the presumption of intoxication based on Mr. Vaughn's positive drug screen for Percocet as evidenced by the drug urine screen taken at the emergency room after the accident.

Dis-Tran's defense was based on the presumption of intoxication under La.R.S. 23:1081, which states in pertinent part:

(1) No compensation shall be allowed for an injury caused:
....
(b) by the injured employee's intoxication at the time of the injury ...
....
(2) In determining whether or not an employer shall be exempt from and relieved of paying compensation because of injury sustained by an employee for any cause or reason set forth in this Subsection, the burden of proof shall be upon the employer.
(3) For purposes of proving intoxication, the employer may avail himself of the following presumptions:
....
(5) If there was, at the time of the accident, evidence of either on or off the job use of a nonprescribed controlled substance as defined in 21 U.S.C. 812, Schedules I, II, III, IV, and V, it shall be presumed that the employee was intoxicated.
(6) The foregoing provisions of this Section shall not be construed as limiting the introduction of any other competent evidence bearing upon the question of whether the employee was under the influence of alcoholic beverages or any illegal or controlled substance.

Pursuant to 21 U.S.C. 812, Percocet, which is a brand name for the combination of oxycodone with acetaminophen, is a Schedule II drug. Thus, it would qualify as a controlled substance. However, the WCJ found in his oral reasons "since Mr. Vaughn was using a prescribed controlled substance, not a non-prescribed controlled substance, standing on the statute alone, DIS-TRAN Steel did not have a basis to assert a presumption of intoxication."

Dis-Tran argues that the WCJ failed to "shift the burden to Vaughn to rebut the presumption that his intoxication caused or contributed to the alleged incident." As previously stated, the WCJ found that Dis-Tran was not entitled to the presumption because based on the plain wording of the statute, it does not apply to a prescribed medication.

However, La.R.S. 23:1081(6) allows "the introduction of any other evidence bearing upon the question of whether the employee was under the influence of alcoholic beverages or any illegal or controlled substance."

The urine drug screen taken at the emergency room showed Mr. Vaughn with an oxycodone level of 4,003 nanograms per milliliter and an oxymorphone level of 2,651 nanograms per milliliter. Oxymorphone is a metabolite of oxycodone. Both parties presented experts to discuss the effects of long term prescription drug use by Mr. Vaughn.

The WCJ found that in his deposition taken October 19, 2016, a local occupational health doctor, Dr. Gordon Webb, reviewed Mr. Vaughn's urine drug screen, and "recognized that the urine had tested positive for [this] Percocet ; nevertheless, he indicated that he assigned a negative result to the drug screen because Mr. Vaughn had produced a valid prescription for Percocet."

The WCJ also referenced Dr. Webb's October 19, 2016 deposition where he stated that, "Mr. Vaughn never denied that he had taken Percocet in the past." The apparent need for Mr. Vaughn's prescription for Percocet was for a back injury that occurred in 2006. Mr. Vaughn had been taking the medication since the 2006 injury, and "up to, before, and even after the incident with DIS-TRAN ... on September 29, 2015."

In his deposition, Dr. Webb was asked, "An impairment is correlated easier with a test that shows levels of blood in the brain versus levels of a particular medication in urine; is that correct?" He replied, "I don't believe that any-that it is possible to make a correlation between impairment and levels period." He further stated, "If the person has been using for many, many years, they may show essentially no impairment with a dose that would kill an average person taking it for the first time."

Finally, Mr. Vaughn's counsel asked Dr. Webb, "You can give no opinion nor do you believe it is possible to give an opinion that those levels can prove or disprove intoxication of Mr. Vaughn at the time of the accident; is that correct?" Dr. Webb replied, "That is correct."

In opposition to the testimony of Dr. Webb, Dis-Tran presented at trial the testimony of Dr. Nima Alinejad. After sending a number of medical records concerning Mr. Vaughn's drug urine screen to Dr. Alinejad, Dis-Tran received his report on January 6, 2017, approximately two months prior to trial. The WCJ found that Dr. Alinejad's report was the first time Dis-Tran "received any kind of information of any sort of expert that the level of Percocet or oxycodone in his bloodstream gave any indication of intoxication."

Although Dr. Alinejad referenced intoxication studies that were done on long term opioid users such as Mr. Vaughn in both his deposition and at trial, he never produced those studies to counsel for Mr. Vaughn. Dr. Alinejad testified about the side effects associated with Percocet and oxycodone, which included "slowness, confusion, and memory problems." Based on these side effects, Dis-Tran asserted, despite the lack of testimony as to what a normal reaction time would be for an individual not taking medication that, "supposedly somehow Mr. Vaughn was slow to react in getting out of the way" of the falling welding screen.

However, it is significant that during his testimony Dr. Alinejad did not render an opinion as to the "causation of the accident." Counsel for Mr. Vaughn questioned Dr. Alinejad on the issue at hand:

Q So your opinion remains today the same as your opinion in your deposition which is you cannot comment on the cause of this accident we're here on today; correct?
A Correct.
....
Q All right. And my question to you is whether you agree with your deposition testimony, which is "I cannot comment on whether the accident would have happened or not if he was under the influence."
A. Correct.

Further, in consideration of La.R.S. 23:1081(6), the WCJ extensively discussed the cases involving the defense of intoxication. Chelette v. Security Indus. Ins. , 94-815, (La.App. 3 Cir. 12/7/94), 647 So.2d 469, involved a motor vehicle accident in which Mr. Chelette, like Mr. Vaughn, had a history of taking prescribed controlled substances. The WCJ denied benefits because Mr. Chelette refilled a number of prescriptions just before the accident. However, a panel of this court overturned the WCJ and granted Mr. Chelette compensation benefits.

In Stenson v. Pat's of Henderson Seafood , 11-1148, (La.App. 3 Cir. 2/1/12), 84 So.3d 661, writ denied , 12-504, (La. 4/13/12), 85 So.3d 1253, the WCJ found that because Xanax was a prescribed medication, it could not be the basis for an intoxication defense. This court disagreed but found no error in the ultimate decision made by the WCJ, as the case also involved the use of marijuana, which was a non-prescribed controlled substance. In that case, Ms. Stenson was walking around and tripped over a box of potatoes, fell and injured a wrist, which is different from the facts found by the WCJ concerning Mr. Vaughn's accident. Here, the WCJ found that "Even if someone [could] conclude that the level of substances found in Mr. Vaughn's urine somehow made him intoxicated," this incident happened "completely at the hands of Mr. Freeman, not Mr. Vaughn."

The WCJ further discussed the case of Shaw Group v. Kulick , 04-697, 04-698 (La.App. 1 Cir. 4/8/05), 915 So.2d 796, writ denied , 05-1205 (La. 11/28/05), 916 So.2d 148, in which there was a substance in the worker's system which could have allowed the application of the intoxication defense. In that case, a manhole cover fell over, injuring the worker's hips. The worker had not moved the manhole cover, he was simply walking by when it fell over and injured him. The district court granted the employer's summary judgment, which was reversed by a panel of the first circuit. The first circuit distinguished between using the intoxication defense when the claimant had caused the accident and using the defense when unforeseen incidents had occurred that were not connected to any of the claimant's behaviors. It determined that the worker could not "be required to anticipate unexpected and unseen falling objects." Id. , at 802. Similarly, here the WCJ found that Mr. Vaughn had not done anything to cause the welding curtains to fall.

The WCJ then found:

[W]hen you consider that Mr. Vaughn-and you have the testimony from all Mr. Vaughn's coworkers that there was nothing out of the-usual about the way he was working that night or how he was performing. He's-his work had been going through quality inspections all night. He was hearing this crane-they had a lot of testimony about could he hear the crane, could he hear Mr. Freeman holler at him. And, you know, he's working in a production plant. I think all these workers in this plant are entitled to assume that all of their coworkers are going to be working safely. They're hearing these cranes operate all night. I don't think these production workers having to meet some kind of production schedule are stopping their work every time they hear a crane beeping and moving around.

We therefore find Dis-Tran's assignment of error number one to be without merit. The WCJ correctly determined that Dis-Tran was not entitled to the presumption of intoxication in La.R.S. 23:1081 because Mr. Vaughn had a valid prescription for the Percocet detected in his drug urine screen after the accident. Additionally, pursuant to La.R.S. 23:1081(6), the evidence presented by Dis-Tran failed to prove there was any impairment or intoxication on Mr. Vaughn's part that led to the accident in question or barred his receipt of workers' compensation benefits.

Assignment of Error Number Two

In its second assignment of error, Dis-Tran argues the WCJ erred in finding that Mr. Vaughn sustained a compensable work injury entitling him to benefits. In other words, Dis-Tran claims that Mr. Vaughn did not suffer a compensable injury in an accident that occurred during the course and scope of his work. The WCJ found as follows:

Mr. Vaughn testified at trial that he was performing his production job working the night shift or the evening shift at DIS-TRAN Steel, some type of production outfit with some welding activities. And Mr. Vaughn began his employment there on September 19, 2014, as a welder. He testified he was doing his normal work that evening when he was struck on the head by a welding curtain which is a-sort of fabric stretched-canvas-like fabric stretched between a frame. Total weight of this object [is] about 20 to 25 pounds.

The WCJ also heard the testimony of Mr. Eric Freeman, the Dis-Tran crane operator "who was working in the same bay area as Mr. Vaughn separated by these-actually two welding curtains." The WCJ summarized Mr. Freeman's testimony:

[T]hat he was lift[ing] his tubes to be welded or worked on with an overhead crane. He raised these above shoulder height, and there were actually two curtains. He had moved them, one next to each
other. They were so tall that Mr. Freeman could not see over the curtains, and that this object he had raised with the crane struck the curtains, and the curtains began to fall towards the area Mr. Vaughn was working in. Mr. Freeman said he grabbed these curtains with his free hand and was holding the curtains, and then he shouted, "Whoa." I interpreted his expression to be W-H-O-A, whoa, two times. He did turn loose of the curtains on that occasion. Mr. Vaughn testified he was struck. He ran out from-from the area. This was corroborated by Mr. Freeman at trial as well as another gentleman at trial. I think that's Shuntaye Thomas, who was working that night.

Based on the foregoing, and upon the medical evidence discussed below, we find that the WCJ's factual findings that Mr. Vaughn suffered a corroborated, work-related, and compensable injury are reasonable. Therefore, we find Dis-Tran's assignment of error number two to be without merit.

Assignment of Error Number Three

In assignment of error number three, Dis-Tran argues that Mr. Vaughn has not established by clear and convincing evidence that he is unable to engage in any employment that supports his right to total disability benefits.

Medical History

Mr. Vaughn was taken to the emergency room at Rapides Medical Center, where he was seen by Dr. Donald A. Woolridge. Mr. Vaughn reported he had suffered a blow to the back of his head by a welding curtain. He stated he had a pain level of six out of ten, and a headache with dizziness. Mr. Vaughn underwent a CT scan of his head which showed "no evidence of an acute intracranial process." He also underwent a urine drug screen which is the basis of Dis-Tran's intoxication defense.

On October 7, 2015, seven days after the accident, Mr. Vaughn was seen at Christus St. Frances Cabrini Hospital. He maintained his complaint of headaches and sensitivity to light. He was diagnosed with post-concussive syndrome and hypertension-uncontrolled. Mr. Vaughn was ordered not to return to work until October 9, 2015.

On October 8, 2015, Mr. Vaughn had his first appointment with Dr. Robert Smith of Home Town Doctors. Mr. Vaughn reported that he continued to suffer from headaches with no improvement. Dr. Smith reported that Mr. Vaughn appeared to be in pain and his headaches showed no improvement. He also documented that Mr. Vaughn had no history of headaches or trauma before the accident and prescribed medication.

Dr. Smith saw Mr. Vaughn on October 12, 2015, and on October 16, 2015, Dr. Smith's "Care Plan" stated:

The patient continues to have headaches and complains of loss in appetite and nausea. The patient appears to have improved slightly but is not capable of working at this time. He has been recalcitrant to medications and continues to [have] Hypertension and severe relentless headaches. Dr. Smith is requesting a MRI of the Brain for further evaluation due to the headaches becoming relentless and loss of appetite. The patient will return for follow up appointment on Wednesday.

On October 21, 2015, Mr. Vaughn saw Dr. Smith for the requested follow-up appointment. Dr. Smith's "Care Plan" once again documents Mr. Vaughn's continuing headaches and stated: "[T]he patient continues to have headaches since the injury occurred. He has some good days and bad days. Despite taking the medications, he continues to have headaches with no relief. Dr. Smith is referring the patient to Neurology for further evaluation."

As stated in the Care Plan, on October 21, 2015, Dr. Smith referred Mr. Vaughn to a neurologist, Dr. Arsham Naalbandian. The record reflects that Dr. Smith's referral for Mr. Vaughn to see Dr. Naalbandian was authorized by Dis-Tran on February 26, 2016. However, it does not appear that Mr. Vaughn ever actually saw Dr. Naalbandian as recommended by Dr. Smith. Dr. Smith continued to see Mr. Vaughn on November 4, 2015, December 28, 2015, and February 10, 2016. The record reflects that during these appointments Mr. Vaughn's complaints remained the same.

On April 12, 2016, Mr. Vaughn was sent by Dis-Tran to see a neurologist, Dr. Gerald J. Calegan. Dr. Calegan's initial examination of Mr. Vaughn resulted in his initial "Impression & Recommendations," which stated (emphasis added):

Unfortunately, [I] do not have any medical records at this time, but clinically, sounds like patient had a concussion, either with or without loss of consciousness . I assume he had no major injuries, o he would likely have been admitted to the hospital. He no doubt has postconcussive (sic) symptoms, consisting of headaches, memory loss, balance difficulty, sexual dysfunction and vertigo. Hopefully the symptoms will continue to improve, but some of these symptoms may be permanent. I think patient needs detailed neuropsychological testing, to get a better idea for what he can and cannot do, also to rule out significant anxiety and mood disorders. For his headaches, I would like to prescribe a preventative medication, amitriptyline (which I'm also hopeful will help with his insomnia), and indomethacin for acute therapy. We talked about how to take these medications. We talked about the possible side effects. Of course, I need to see patient's medical records, especially verifying that he has had some type of brain imaging. If he has had a CT scan of head that was unremarkable, he may need MRI brain, which is way more sensitive for any type of brain lesion than CT scan. In the meantime, because of headaches and cognitive difficulties, I do not think patient is cleared to work, at least until further testing is complete.

After Mr. Vaughn left Dr. Calegan's office and after Dr. Calegan wrote his initial impressions and recommendations, Dr. Calegan found some of Mr. Vaughn's medical records that had not been in Mr. Vaughn's chart during the examination. Dr. Calegan's office also discovered "paperwork form Genex, requesting me to answer very specific questions." Dr. Calegan's impressions based on these additional records are documented in a "Consultation Report" dated April 4, 2016. His review of these additional records did not change Dr. Calegan's ultimate diagnosis of "concussion without loss of consciousness." The medical records Dr. Calegan found and reviewed after he examined Mr. Vaughn confirmed that his diagnosis would be "concussion without loss of consciousness," based on the records of the ER. Further, Mr. Vaughn's CT scan of his head on September 29, 2015, was normal.

Dr. Calegan stated Mr. Vaughn had "no prior history of any neurologic symptoms before the accident." Therefore, since all of Mr. Vaughn's "symptoms occurred after the injury, I think his current complaints are all due to his concussion that occurred on September 29, 2015. All the symptoms he describes are known and common post-concussive symptoms. " (emphasis added).

Dr. Calegan once again recommended neuropsychological testing and based on the results of the testing, he thought Mr. Vaughn might "benefit from cognitive behavioral therapy." Dr. Calegan thought that Mr. Vaughn "could conceivably continue to improve in terms of his post-concussive symptoms," and did not require surgery at this time.

Dr. Calegan determined that Mr. Vaughn had "a moderate level of disability, with the understanding that [he did] not have a complete knowledge of [Mr. Vaughn's] cognitive limitations." However, he also stated that if Mr. Vaughn:

does not have any significant cognitive impairment on neurological testing, he could conceivably return back to work, with the understanding that any type of work or exertion can trigger headaches, which could leave him unable to work in a presence of a headache, and these headaches would be for the most part unpredictable.

The WCJ correctly determined that during this period of time, Dis-Tran was not paying any indemnity benefits to Mr. Vaughn but could not determine if any of Mr. Vaughn's medical bills had been paid because none of his bills had been introduced into evidence.

Neurological Evaluations

Mr. Vaughn was also evaluated on June 15, 2016, by Dr. James W. Quillin, a clinical medical psychologist, who was accepted as an expert in the fields of psychology and neuropsychology. Mr. Vaughn was referred to Dr. Quillin by his counsel based on the recommendation of Dr. Smith that he receive neuropsychological testing. In connection with an Independent Medical Evaluation (IME), Dis-Tran also referred Mr. Vaughn to a clinical neuropsychologist, Dr. Thomas E. Staats, who evaluated him on August 1 and 2, 2016, and subsequently issued an undated report.

There were conflicting opinions between the evaluations of Dr. Staats and Dr. Quillin. Dr. Quillin testified by deposition that he diagnosed Mr. Vaughn with post-concussive syndrome and recommended that he not return to work. Dr. Quillin further opined that Mr. Vaughn was not a malingerer and was truthful about his ongoing complaints. It was Dr. Quillin's opinion that Mr. Vaughn was depressed and the depression he was experiencing stemmed from his condition and his inability to work and earn an income after the on-the-job injury Mr. Vaughn sustained at Dis-Tran Steel, LLC.

Unlike Dr. Quillin, Dr. Staats determined-and stated in his report and in his deposition-that Mr. Vaughn was a malingerer with an unspecified depressive disorder who was "capable of returning to work as a welder from a psychological and neurological standpoint, preferably in full compliance with hypertensive and anti-depressant medications."

The WCJ placed greater weight on Dr. Quillin's opinions regarding the mental status of Mr. Vaughn. As the treating physician, Dr. Quillin had more contact with Mr. Vaughn on an ongoing basis as opposed to the single IME evaluation conducted by Dr. Staats.

In choosing to rely on Dr. Quillin's opinion, the WCJ found instructive the case of Barbarin v. TLC Home Health , 02-1054 (La.App. 5 Cir. 4/29/03), 845 So.2d 1199, which also involved post-concussion syndrome. In Barbarin , the IME neurologist found Ms. Barbarin might be a malingerer, and the defendants terminated her indemnity benefits. However, the WCJ found, after reviewing the recommendations of a neurologist chosen by Ms. Barbarin, that Ms. Barbarin's symptoms were consistent with those experienced by individuals with a concussion. The fifth circuit found the WCJ was not manifestly erroneous in finding that the claimant was temporally totally disabled. Likewise, the WCJ's findings and conclusions as to Mr. Vaughn's medical condition and resulting disability are well within his discretion.

Dis-Tran's Exhibit 27- Dr. Calegan's Supplemental Report

Dis-Tran's Exhibit 27 consists of a January 27, 2017 letter to Dr. Calegan from Genex Services, LLC (Genex), and Dr. Calegan's response. As we discussed infra, Dr. Calegan, a neurologist, had previously examined Mr. Vaughn. The January 27, 2017 letter from Genex, apparently a claims servicing agency hired by Dis-Tran, contained a number of questions concerning Mr. Vaughn's medical history and condition and included the neuropsychological report of Dr. Staats. Dr. Calegan responded to the questions in a February 21, 2017 document, which is referred to by the WCJ in his oral reasons for ruling, as "some kind of supplemental report from a doctor." Dr. Calegan's supplemental report is addressed to Ms. Keena Davis, Case Manager Genex.

Ultimately, the WCJ, in his oral reasons for ruling, properly gave no weight to the exhibit. Instead, he found that it was not "competent evidence" as defined by the supreme court in Chaisson v. Cajun Bag & Supply Co. , 97-1225, p. 13 (La. 3/4/98), 708 So.2d 375, 383 :

The Legislature in fashioning a relaxed evidentiary standard for worker's compensation proceedings envisioned the broad admission of evidence that might fall outside of the technical rules of evidence. ... However, to ensure the reliability of the factual findings, the Legislature has mandated that the hearing officer's findings be based on "competent evidence."

Further, despite the more relaxed nature of a worker's compensation proceeding, "the rule concerning expert testimony is more stringent [.]" Charles v. Lake Charles Mem'l Hosp. , 06-1590, p. 6 (La.App. 3 Cir. 5/30/07), 959 So.2d 571, 576, writ denied , 07-1607 (La. 10/26/07), 959 So.2d 571. In applying the "more stringent" rule, expert medical testimony may be admitted by:

1. certified medical records;
2. deposition;
3. oral examination in open court proceedings; however, no more than two physicians may present testimony for either party except by order of the judge;
4. any other manner provided by law.

La. Admin code. Tit. 40, pt. I, § 6209(A).

The WCJ correctly found that Dis-Tran's Exhibit 27 met none of these requirements for "competent evidence," as there was no deposition of Dr. Calegan, he did not testify at trial, and Exhibit 27 failed to meet the requirements for certified medical records as provided in La.R.S. 13:3715.1 (E) :

E. The records shall be accompanied by the certificate of the health care provider or other qualified witness, stating in substance each of the following:
(1) That the copy is a true copy of all records described in the subpoena.
(2) That the records were prepared by the health care provider in the ordinary course of the business of the health care provider at or near the time of the act, condition, or event.

Accordingly, we find that the WCJ correctly determined that Dis-Tran's Exhibit 27 was not "competent evidence" and correctly afforded it no weight in his ruling.

In conclusion, the WCJ found in his oral reasons that:

Mr. Vaughn was certainly involved in an accident as defined by 23:1021, a sudden event happening with or without human fault. Here the fault is by Mr. Freeman, not Mr. Vaughn. The consistent evidence from Dr. Smith, Dr. Calegan, and Dr. Quillin [is] that Mr. Vaughn is incapable of working, the court believes Mr. Vaughn has proven by clear and convincing evidence with the assistance of this objective medical evidence that he's incapable of performing any work and is entitled to receive temporary total disability benefits from the last day he worked.

We agree and affirm the WCJ's ruling that Mr. Vaughn is entitled to temporary total disability benefits from September 29, 2015.

Assignment of Error Number Four-Penalties and Attorney Fees

In assignment of error number four, Dis-Tran argues the WCJ erred in awarding penalties and attorney fees to Mr. Vaughn, as Dis-Tran "reasonably controverted" Mr. Vaughn's claim for indemnity benefits.

A panel of this court clearly defined the basis for an award of penalties and attorney fees in Landry v. Furniture Ctr. , 05-643, p. 10 (La.App. 3 Cir. 1/11/06), 920 So.2d 304, 311, writ denied , 06-358 (La. 4/28/06), 927 So.2d 290 :

Under La.R.S. 23:1201(F), a claimant in a workers' compensation claim has the burden of proving his entitlement to statutory penalties
for the employer's refusal or failure to timely pay workers' compensation benefits. To avoid the imposition of penalties and attorney fees, the employer and its insurer must provide factual and medical evidence to reasonably controvert a workers' compensation claim. Bolton v. Mike Fleming Construction, 36,521 (La.App. 2 Cir. 12/11/02), 833 So.2d 1177. The employer must have an "articulable and objective reason to deny benefits at the time it took the action." Authement v. Shappert Engineering, 02-1631 (La. 2/25/03), 840 So.2d 1181, 1188.

"Whether or not the employer is cast with attorney fees and penalties is a question of fact that will not be reversed on appeal absent manifest error." Alpizar v. Dollar General , 13-1150, p.13 (La.App. 3 Cir. 3/5/14), 134 So.3d 99, 108 (citation omitted) (quoting Lambert v. Brookshire Grocery Co. , 06-1001, p. 11 (La.App. 3 Cir. 12/20/06), 945 So.2d 918, 927 ).

The WCJ found that Mr. Vaughn was entitled to a $2,000 penalty for Dis-Tran's failure to pay any indemnity benefits. The WCJ was precluded from assessing penalties for Dis-Tran's failure to pay Mr. Vaughn's medical expenses as no record of these expenses was presented at trial. However, the WCJ did award a $2,000 penalty to Mr. Vaughn for Dis-Tran's failure to approve Dr. Smith's recommendation that Mr. Vaughn be referred to a neurologist. The WCJ found that Dr. Smith's recommendation for the referral was made on October 20, 2015. Dis-Tran responded to the request in February of 2016, which was clearly past the sixty-day requirement for approval of a medical referral pursuant to La.R.S.23:1201(E). The WCJ also awarded $7,500 in attorney fees to Mr. Vaughn.

In support of the award of penalties and attorney fees, the WCJ cited the supreme court case of Brown v. Texas-La Cartage, Inc. , 98-1063, p. 11 (La. 12/1/98), 721 So.2d 885, 891, which stated:

As discussed above, penalties should be assessed against defendants unless the employer or insurer reasonably controverted Brown's right to the benefits or the violations resulted from conditions over which the employer or insurer had no control. Defendants do not claim, nor do the facts support the argument that the benefits were not timely paid for reasons beyond the employer's or insurer's control. Therefore, we must determine whether the employee's right to the timely and accurate payment of benefits was reasonably controverted by the employer or the insurer. We find that it was not.

In Authement v. Shappert Eng'g , 02-1631, p. 11 (La. 2/25/03), 840 So.2d 1181, 1188 (emphasis added), the supreme court went on to instruct:

As stated in Williams v. Rush Masonry, Inc. , 98-2271 (La. 6/29/99), 737 So.2d 41, 46, awards of penalties and attorney fees in workers' compensation cases are essentially penal in nature. The purpose of imposition of penalties and attorney fees is to discourage indifference and determining whether to impose penalties and attorney fees on an employer is whether the employer had an articulable and objective reason to deny benefits at the time it took action.

In this case the WCJ emphasized the responsibility of Dis-Tran to articulate an objective reason "throughout the time they refused to pay." The WCJ found:

The employer was well aware that Dr. Smith had indicated Mr. Vaughn was incapable of working. In April of 2016, they had information form Dr. Calegan that Mr. Vaughn was incapable of working. They had no medical information from any health care provider or any expert that at all indicating Mr. Vaughn was capable of working despite the testimony of Lori Patrick, the human resource person that had offered him a job sitting at a desk sorting through some schematics or some paperwork. All they had was this test positive for Percocet, but, according to the statute, it was not a non-prescribed substance; it was a prescribed substance.

Further, the WCJ stated in his oral reasons for ruling that Dis-Tran "had information from co-employees given from the investigation that took place that night and shortly thereafter that Mr. Vaughn was struck by this apparatus containing this welding curtain, that he had a head injury, that he'd received medical care."

The WCJ also found that Dis-Tran had nothing from any expert until they received Dr. Alinejad's opinion sometime after January 6, 2017, that "some kind of expert would be available to indicate that Mr. Vaughn was intoxicated." Considering Dis-Tran's defense of intoxication, a pending trial date of March 2, 2017, and the determination by the WCJ that Dis-Tran never did "take into consideration actually how this accident happened," the WCJ was not manifestly erroneous in his determination that Dis-Tran had no "articulable and objective reason to deny benefits at the time it took action." Williams , 737 So.2d at 46.

Based on the facts as determined by the WCJ, we find that the WCJ correctly ruled that Dis-Tran failed to "reasonably controvert" Mr. Vaughn's claim for indemnity benefits owed and failed to approve the recommendation of Dr. Smith for Mr. Vaughn's referral to a neurologist of his choice. We affirm the penalties and attorney fees imposed on Dis-Tran.

Attorney Fees for Work Done on Appeal

Mr. Vaughn filed an answer and seeks an additional award of attorney fees for work done on appeal. "An increase in [attorney] fees is awarded on appeal when the defendant appeals, obtains no relief, and the appeal has necessitated more work on the part of the plaintiff's attorney, provided that the plaintiff requests such an increase." McKelvey v. City of Dequincy , 07-604, pp. 11-12 (La.App. 3 Cir. 11/14/07), 970 So.2d 682, 690. The record before this court reflects that Mr. Vaughn's counsel requested such attorney fees, filed a brief in support of the judgment of the WCJ, and was successful in defending the judgment in its favor on appeal. We find, based on our review of the work done on appeal by counsel for Mr. Vaughn, that $5,000.00 would be a reasonable award for attorney's fees on appeal and order Dis-Tran Steel to pay that amount to Mr. Vaughn and his attorney.

CONCLUSION

For the foregoing reasons, we affirm the May 23, 2017 judgment of the Workers' Compensation Judge in all respects. We also award attorney fees in the amount of $5,000 for work done on appeal in favor of plaintiff and against Dis-Tran Steel, LLC. All costs of this appeal are assessed to Dis-Tran Steel, LLC.

AFFIRMED.

      The May 1, 2017 transcript of the WCJ's oral reasons for judgment was not made a part of the record on appeal. On January 23, 2018 this court issued an order requiring the Clerk for the Office of Worker's Compensation District 2 to supplement the record with the transcript of the WCJ's oral reasons for judgment, which were received on February 5, 2018 and are now a part of the record on appeal.

      It is well settled that the failure to authorize or pay for medical treatment equates to the failure to furnish benefits, which can subject an employer to penalties and attorney fees. Authement v. Shappert Eng'g, 02-1631 (La. 2/25/03), 840 So.2d 1181. Pursuant to La.R.S. 23:1201(E), "Medical benefits payable under this Chapter shall be paid within sixty days after the employer or insurer receives written notice thereof." Romero v. Gran's, Inc. , 13-482, p.3 (La.App.3 Cir. 8/6/14), 145 So.3d 1120, 1122-23. La.R.S. 23:1201(E) was amended effective August 1, 2013, but the substance of the statute was not changed.


source: Caselaw Access Project

author: COOKS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Asahel HARVIN
    17-588
    Court of Appeal of Louisiana, Third Circuit.
    February 15, 2018
    Asa A. Skinner, District Attorney, Thirtieth Judicial District, Terry W. Lambright, First Assistant District Attorney, Thirtieth Judicial District, P. O. Box 1188, Leesville, LA 71446, (337) 239-2008, COUNSEL FOR APPELLEE: State of Louisiana
    Katherine M. Franks, Louisiana Appellate Project, P. O. Box 220, Madisonville, LA 70447, (225) 485-0076, COUNSEL FOR APPELLANT: Asahel Harvin
    Court composed of Sylvia R. Cooks, John D. Saunders and Candyce G. Perret, Judges.
   COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

On May 19, 1982, Defendant, Asahel Harvin, and a co-defendant, Roderick Smart, entered a taxi cab driven by James Mancil. Approximately halfway to their declared destination, Defendant asked Mancil to stop the car. Mancil was then shot by Defendant in the neck. Defendant and Smart then fled the taxi on foot. Mancil ultimately died from his injuries.

Defendant was indicted for first degree murder, a violation of La.R.S. 14:30, on August 3, 1982. Defendant was fifteen-years-old at the time of the offense. Defendant was found guilty of second degree murder, a violation of La.R.S. 14:30.1, and was subsequently sentenced to life in prison at hard labor without benefit of parole, probation, or suspension of sentence. Defendant appealed, and this court affirmed his conviction. State v. Harvin , 437 So.2d 983 (La.App. 3 Cir. 1983).

On November 19, 2012, Defendant filed a pleading titled "Combined Motions to Correct Illegal and Invalid Sentence Under LSA-C.Cr.P. Articles 882 and 872 and Order Setting Date for Contradictory Hearing" and a memorandum in support thereof. In his motion, Defendant alleged his sentence was illegal under the ruling in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), which prohibited a sentencing scheme that mandated a life sentence without the possibility of parole for those under the age of eighteen at the time of the commission of a homicide. The trial court denied the motion, finding it was not timely filed. Defendant sought review of the trial court's ruling, and, on March 13, 2013, this court issued the following ruling in State v. Harvin , 13-4 (La.App. 3 Cir. 3/13/13) (unpublished opinion):

WRIT GRANTED AND MADE PEREMPTORY: More than thirty years after his conviction for second degree murder, Relator filed a motion to correct illegal sentence with the trial court. In his motion, Relator asked the district court to apply Miller v. Alabama , [ 567] U.S. [460], 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) to his case and grant him any relief available. The trial court denied the motion as being untimely filed.
Under La.Code Crim.P. art. 881.5, the court may correct an illegal sentence at any time. Thus, the trial court erred in denying the motion as being untimely filed. The district court's ruling is vacated, and the matter is remanded for consideration of and ruling on the merits.

Thereafter, a hearing on Defendant's motion was scheduled for June 11, 2013. However, on June 5, 2013, the State filed a motion to stay the proceedings, citing the pendency of a number of cases before this court and the Louisiana Supreme Court regarding the retroactivity of the decision in Miller , 567 U.S. 460, 132 S.Ct. 2455. On June 11, 2013, the trial court granted a joint motion to continue and reset the matter for July 17, 2013. On July 15, 2013, the State filed a second motion to stay the proceedings, citing the Louisiana Supreme Court's writ grant in State v. Tate , 12-2763 (La. 4/19/13), 111 So.3d 1023. The proceedings were stayed on July 16, 2013. On November 5, 2013, the Louisiana Supreme Court found the decision in Miller , 567 U.S. 460, 132 S.Ct. 2455, did not apply retroactively. State v. Tate , 12-2763 (La. 11/5/13), 130 So.3d 829, cert. denied , ---U.S. ----, 134 S.Ct. 2663, 189 L.Ed.2d 214 (2014), abrogated by Montgomery v. Louisiana , --- U.S. ----, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016).

On June 15, 2015, the trial court scheduled an evidentiary hearing for July 7, 2015. However, defense counsel filed a motion to continue on June 29, 2015, noting that Montgomery , 136 S.Ct. 718, was pending on the docket of the United States Supreme Court. The motion was subsequently granted.

The United States Supreme Court issued a ruling in Montgomery , 136 S.Ct. 718, on January 25, 2016, finding the decision in Miller , 567 U.S. 460, 132 S.Ct. 2455, announced a new substantive constitutional rule that was retroactive on state collateral review. As a result thereof, Defendant filed a "Motion and Order to Reopen a Pending Motion to Correct an Illegal Sentence" on May 24, 2016. The matter was set for hearing on June 21, 2016. On the same date, Defendant also filed a pleading titled "Incorporated Motion & Memorandum to Correct Illegal Sentence Under LSA-C.Cr.P. Article 882 and Order Setting Date for Sentencing Hearing" and a "Supplemental and Incorporated Memorandum to Correct an Illegal Sentence." Therein, Defendant requested a new sentencing hearing, urging that he be resentenced to the maximum sentence provided for manslaughter at the time the offense was committed.

The State filed a motion to continue on June 14, 2016, and the motion was granted the following day. A motion to re-fix the hearing was filed by Defendant on August 17, 2016. Therein, Defendant alleged that, in light of the Louisiana Supreme Court's ruling in State v. Montgomery , 13-1163 (La. 6/28/16), 194 So.3d 606, the statutory provisions regarding prospective sentencing of juveniles were applicable to resentencing hearings, it was necessary for the trial court to determine whether he should be resentenced to life with eligibility for parole. The matter was set for hearing on September 20, 2016. Defendant filed a "Supplemental Memorandum Addressed to Remedy Under Miller v. Alabama" on September 19, 2016.

At a hearing held on September 20, 2016, the trial court resentenced the Defendant to life with benefit of parole. On October 10, 2016, Defendant filed a pro se notice of intent to seek supervisory writs. On March 2, 2017, this court issued the following ruling in State v. Harvin , 16-845 (La.App. 3 Cir. 3/2/17) (unpublished opinion):

WRIT GRANTED AND MADE PEREMPTORY: Relator seeks review of the trial court's September 20, 2016 ruling resentencing Relator to life imprisonment with the possibility of parole. In light of State ex rel. Hudson v. State , 16-1731 (La. 1/9/17), [208] So.3d [882], this court considers Relator's notice of intent filed on October 10, 2016, a motion for appeal; as such, the matter is remanded to the trial court for further proceedings consistent herewith. The trial court is to
also consider the notice of intent as a motion to appeal, to grant Relator an appeal, to appoint Relator appellate counsel, and to order the preparation of an appellate record for the purposes of the appeal.

Defendant is now before this court by appeal asserting the trial court violated his due process rights when it imposed a sentence in violation of the United States Supreme Court's mandate to impose a proportionate sentence that offered a meaningful opportunity for release of an offender who committed a homicide as a juvenile and had demonstrated that he had rehabilitated himself. Defendant also contends the Louisiana Supreme Court was without authority to craft penal provisions not authorized legislatively. Further, he asserts the trial court failed to perform its duty as sentencer and assure that a proper and proportionate sentence was imposed at resentencing.

ANALYSIS

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 there are no errors patent.

On appeal, Defendant contends the trial court violated his due process rights under both the United States Constitution and La.Const. art. 1, § 9 when it imposed a sentence in violation of the United States Supreme Court's mandate to impose a proportionate sentence that offered a meaningful opportunity for release of an offender who committed a homicide as a juvenile and had demonstrated that he had rehabilitated himself.

In Miller , 567 U.S. at 479, 132 S.Ct. 2455, the United States Supreme Court held "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." The Court went on to state:

[W]e do not consider Jackson's and Miller's alternative argument that the Eighth Amendment requires a categorical bar on life without parole for juveniles, or at least for those 14 and younger. But given all we have said in Roper [v. Simmons , 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) ], Graham [v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) ],
and this decision about children's diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon. That is especially so because of the great difficulty we noted in Roper and Graham of distinguishing at this early age between "the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption." Roper , 543 U.S., at 573, 125 S.Ct. 1183 ; Graham , 560 U.S., at 68, 130 S.Ct. at 2026-2027. Although we do not foreclose a sentencer's ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.

Id. at 479-80, 132 S.Ct. 2455.

In Montgomery , 136 S.Ct. at 736 (emphasis added), the United States Supreme Court stated:

The Court now holds that Miller [v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012),] announced a substantive rule of constitutional law.... Miller 's conclusion that the sentence of life without parole is disproportionate for the vast majority of juvenile offenders raises a grave risk that many are being held in violation of the Constitution.
Giving Miller retroactive effect, moreover, does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole. A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them. See, e.g. , Wyo. Stat. Ann. § 6-10-301(c) (2013) (juvenile homicide offenders eligible for parole after 25 years). Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity-and who have since matured-will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment.
Extending parole eligibility to juvenile offenders does not impose an onerous burden on the States, nor does it disturb the finality of state convictions. Those prisoners who have shown an inability to reform will continue to serve life sentences. The opportunity for release will be afforded to those who demonstrate the truth of Miller's central intuition-that children who commit even heinous crimes are capable of change.

Montgomery was remanded to the Louisiana Supreme Court for further proceedings. In Montgomery , 194 So.3d at 607-09 (emphasis added), the Louisiana Supreme Court said:

To implement Miller's "meaningful opportunity to obtain release" for those juveniles who commit murder but are not found to be irreparably corrupt, the Legislature in 2013 La. Acts 239 enacted La.C.Cr.P. art. 878.1 and La.R.S. 15:574.4(E). Article 878.1 requires the District Court to conduct a hearing "[i]n any case where an offender is to be sentenced to life imprisonment for a conviction of first degree murder ( R.S. 14:30 ) or second degree murder ( R.S. 14:30.1 ) where the offender was under the age of eighteen years at the time of the commission of the offense ... to determine whether the sentence shall be imposed with or without parole eligibility pursuant to the provisions of R.S. 15:574.4(E)." La.R.S. 15:574.4(E) then provides the conditions under which any person serving a sentence of life imprisonment for first or second degree murder committed under the age of 18 can become parole eligible, provided a judicial determination has been made the person is entitled to parole eligibility pursuant to Article 878.1. This court found in State v. Tate , 12-2763, pp. 19-20 (La. 11/5/13), 130 So.3d 829, 843, that Article 878.1 applies prospectively to those offenders who are to be sentenced .
During the 2016 legislative session, legislation was proposed to address those cases in which persons that committed murder as juveniles and were sentenced to life imprisonment without parole eligibility before Miller [v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012),] was decided, who the Supreme Court determined in Montgomery [v. Louisiana , --- U.S. ----, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016),] must be resentenced in accordance with the principles enunciated in Miller . However, the Legislature ultimately failed to take further action in the last few moments of the legislative session regarding sentences of life without parole for juvenile homicide offenders. See HB 264 of the 2016 Regular Session. Therefore, in the absence of further legislative action, the previously enacted provisions should be used for the resentencing hearings that must now be conducted on remand from the United States Supreme Court to determine whether Henry Montgomery, and other prisoners like him, will be granted or denied parole eligibility .
Certainly, the legislature is free within constitutional contours to enact further laws governing these resentencing hearings but in the absence of such legislation, this court must provide guidance to the lower courts on the pending cases . See Gillam v. Cain , No. 14-2129 (E.D.La. 5/31/16) (slip op.), 2016 WL 3060254 ("the state trial court is ordered to resentence Petitioner in conformity with Miller v. Alabama , [ 567] U.S. [460], 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), within ninety (90) days or, in the alternative, to release him from confinement");
Palmer v. Cain , No. 03-2983 (E.D.La. 5/5/16) (slip op.), 2016 WL 2594753 ("the state trial court is ordered to resentence him in conformity with Miller v. Alabama , [ 567] U.S. [460], 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), within one-hundred twenty (120) days from entry of judgment or release him from confinement."); Tate v. Cain , No. 14-2145 (E.D.La. 4/21/16) (slip op.), 2016 WL 3005748 ("The petitioner shall be released if no such hearing is held within 90 days of this Order.");
Trevathan v. Cain , No. 15-1009 (E.D.La. 4/11/16) (slip op.), 2016 WL 1446150 ("the state court is ORDERED to resentence him in conformity with Miller v. Alabama , [ 567] U.S. [460], 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), within ninety (90) days or, in the alternative, to release him from confinement"). In providing this guidance, we note that existing legislative enactments are applicable, either directly or by analogy .
In La.C.Cr.P. art. 878.1(B), the Legislature addressed the factors to be considered to determine whether the sentence should be imposed with or without parole eligibility:
At the hearing, the prosecution and defense shall be allowed to introduce any aggravating and mitigating evidence that is relevant to the charged offense or the character of the offender, including but not limited to the facts and circumstances of the crime, the criminal history of the offender, the offender's level of family support, social history, and such other factors as the court may deem relevant. Sentences imposed without parole eligibility should normally be reserved for the worst offenders and the worst cases.
This provision does not purport to provide an exhaustive list of considerations but instead authorizes the District Court to consider other factors the court may deem relevant to its determination. Previously, and by way of example, in State v. Williams , 01-1650 (La. 11/1/02), 831 So.2d 835, this Court noted that the United States Supreme Court left to the states the task of developing appropriate ways to enforce the constitutional restriction against execution of the intellectually disabled and further noted that Louisiana had not yet directly legislatively implemented Atkins v. Virginia , 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). Absent a legislative implementation of Atkins , the Williams court drew upon other enactments to establish a procedure until the legislature could act. Similarly, although the Legislature was unable to enact legislation during the 2016 Regular Session, it has provided general sentencing guidelines in La.C.Cr.P. art. 894.1, which the District Court may deem relevant in accordance with La.C.Cr.P. art. 878.1(B). Other states have also legislatively implemented Miller . For example, Florida has enumerated the following factors to be considered in sentencing a juvenile to life imprisonment:
(a) The nature and circumstances of the offense committed by the defendant.
(b) The effect of the crime on the victim's family and on the community.
(c) The defendant's age, maturity, intellectual capacity, and mental and emotional health at the time of the offense.
(d) The defendant's background, including his or her family, home, and community environment.
(e) The effect, if any, of immaturity, impetuosity, or failure to appreciate risks and consequences on the defendant's participation in the offense.
(f) The extent of the defendant's participation in the offense.
(g) The effect, if any, of familial pressure or peer pressure on the defendant's actions.
(h) The nature and extent of the defendant's prior criminal history.
(i) The effect, if any, of characteristics attributable to the defendant's youth on the defendant's judgment.
(j) The possibility of rehabilitating the defendant.
Fla. Stat. § 921.1401(2) (2014). The District Court here may deem considerations such as these to be relevant as well under the authority of Article 878.1(B). Finally, the District Court must also be mindful of the Supreme Court's directive in Miller , 132 S.Ct. at 2469, "to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison." In making its ultimate determination regarding parole eligibility, the District Court is further directed to issue reasons indicating the factors it considered to aid in appellate review of the sentence imposed after resentencing.

Defendant argues the Louisiana Legislature has consistently failed to enact penalty statutes that satisfy the directives in Miller , 567 U.S. 460, 132 S.Ct. 2455. Defendant points out there has been no amendment to the second degree murder statute, and that statute mandates a sentence of life imprisonment without the possibility of parole without reference to age. Defendant contends that because La.R.S. 14:30.1 has not been amended, there is no statute under which a valid sentence for second degree murder can be imposed.

Rather than amending La.R.S. 14:30.1, the Louisiana Legislature enacted La.R.S. 15:574.4(E) and La.Code Crim.P. art. 878.1 in 2013, the year after the Miller decision. Louisiana Revised Statutes 15:574(E) was amended in 2017 to reduce parole eligibility time from thirty-five to twenty-five years imprisonment. However, Defendant contends that the addition of parole eligibility and access to the Parole Board after twenty-five years is not the equivalent of a meaningful opportunity for release from incarceration and does not satisfy Miller . Further, the Louisiana Supreme Court has deprived juveniles of the proportionality review mandated in Miller by delegating the "sentencing choice" to the Parole Board.

Defendant claims the Louisiana Supreme Court in Montgomery , 194 So.3d 606, said the only issue to be resolved in a Miller hearing was whether the inmate would be granted or denied parole eligibility, which he alleges is a finding the United States Supreme Court did not make in Miller , 567 U.S. 460, 132 S.Ct. 2455. He further argues the Louisiana Supreme Court created substantive law when it set forth "sentencing possibilities" in Montgomery , 194 So.3d 606, which were not and have not been authorized by the legislature. Defendant alleges the legislature's power to set forth possible sentencing choices cannot be delegated even when it fails to act. Thus, Defendant argues any interim rules created by the Louisiana Supreme Court are unenforceable because they were created without authority. Defendant asserts the sentencing scheme set forth in Montgomery allows for disproportionate sentencing by a non-juridical entity in conflict with Miller , 567 U.S. 460, 132 S.Ct. 2455, thereby depriving him of due process. However, Defendant does acknowledge the sentence imposed by the trial court in his case was within the parameters established by the Louisiana Supreme Court in Montgomery , 194 So.3d 606.

In support of his argument that the Louisiana Supreme Court may not establish interim rules and did not have authority to mandate a limited set of possibilities for a trial court at a Miller / Montgomery hearing, Defendant cites State v. Rome , 96-991 (La. 7/1/97), 696 So.2d 976. In that case, the Louisiana Supreme Court stated:

One of the traditional, inherent and exclusive powers of the judiciary is the power to sentence. State v. LeCompte , 406 So.2d 1300, 1311 (La.1981) (on rehearing). After a defendant is convicted of a crime, the determination of his sentence is within the sound discretion of the trial judge. State v. Jackson , 298 So.2d 777, 780 (La.1974). However, the trial judge's sentencing discretion is not unbridled, as the legislative branch of government is free to decide what constitutes a crime as well as "what punishments shall be meted out by a court after the judicial ascertainment of guilt."
State v. Normand , 285 So.2d 210, 211 (La.1973). Therefore, the fixing of penalties is purely a legislative function, but the trial judge has the discretion to determine the appropriate sentence within the sentencing range fixed by the legislature.

Id. at 978 (footnotes omitted). Defendant then notes that La.R.S. 15:321(A) provides:

The enactment of statutes defining criminal offenses and the establishment of ranges of penalties for those offenses is a matter of substantive law solely within the prerogative of the legislature. The determination and imposition of sentence in particular cases is generally the function of the sentencing court, subject to appellate review and to mandatory sentences provided by law.

Further, La.Const art. 2, § 2 specifies the judicial branch is prohibited from exercising the power assigned to the legislative branch. Defendant contends that "Louisiana's failure to act" resulted in a violation of his due process rights.

Defendant argues because no legal sentence is set out in La.R.S. 14:30.1 and the legislature has failed to act, he should have been resentenced to the next lesser included responsive verdict of manslaughter. Thus, Defendant asserts the appropriate action would have been to follow the decision in State v. Craig , 340 So.2d 191 (La.1976). In Craig , the defendant had been convicted of aggravated rape, which carried a mandatory sentence of death. The Louisiana Supreme Court held that, since the mandatory death penalty for first degree murder had been found unconstitutional in Roberts v. Louisiana , 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), the mandatory death penalty for aggravated rape was likewise unconstitutional. At the time the rape was committed, the legislature had abrogated the responsive verdict of guilty without capital punishment. Therefore, the appropriate remedy to correct the defendant's illegal sentence was to remand for resentencing to the most serious penalty for the next lesser responsive verdict, simple rape. Defendant acknowledges a similar argument was rejected by the Louisiana Supreme Court in State v. Shaffer , 11-1756 (La. 11/23/11), 77 So.3d 939. However, he declares the supreme court did not expressly overrule Craig in Shaffer .

In Shaffer , 77 So.3d 939, the Louisiana Supreme Court addressed the claims of three relators, all juvenile offenders who had been convicted of aggravated rape and given life sentences, who asserted that their sentences violated the pronouncement in Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), that the Eighth Amendment precluded sentencing a juvenile to life imprisonment without the possibility of parole for commission of a non-homicide offense. One defendant had been sentenced to life imprisonment with an express restriction against parole eligibility. The two others had received life sentences without express restrictions on parole eligibility. Relators argued that the appropriate remedy in light of the Graham decision was to resentence them in accordance with the penalty provision for the next lesser and included responsive verdict of attempted aggravated rape. The Shaffer court concluded that Graham required neither the immediate release of relators, nor a remedy that would guarantee their immediate release based on credit for time served. Rather, Graham required only that the state provide a "meaningful opportunity" for relators and other similarly situated persons to obtain release as part of the rehabilitative process. Shaffer , 77 So.3d at 942. The Shaffer court found that under Graham , 560 U.S. 48, 130 S.Ct. 2011, the Eighth Amendment prohibited the state from enforcing against relators and other similarly situated persons the commutation provisions of La.R.S. 15:574.4(A)(2) and La.R.S. 15:574.4(B), both of which required commutation of a life sentence to a fixed term before parole consideration. The Shaffer court went on to reject the suggestion that the proper remedy was resentencing under a lesser and included offense and held the appropriate remedy was to delete the restrictions on parole eligibility.

The Shaffer court noted, in footnote six of its opinion:

This Court is aware that in the past session, the legislature addressed, but did not resolve, the Graham issue. 2011 House Bill 115 provided that an inmate serving life sentences for a nonhomicide crime committed as a juvenile would become eligible for parole consideration after serving 35 years of his sentence, subject to a
variety of special conditions. However, House Bill 115 failed final passage and the legislature has by concurrent resolution directed the Louisiana Law Institute to convene a task force to evaluate Louisiana law for compliance with Graham [v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010),] and to report back with its findings and recommendations by January 1, 2012. Thus, our decision in relators' cases is an interim measure (based on the legislature's own criteria) pending the legislature's response to Graham . Cf. State v. Williams , 01-1650, pp. 32-33 (La. 11/1/02), 831 So.2d 835, 861 (adopting as an interim measure procedure for determining whether a capital defendant is mentally retarded and so exempt from capital punishment under Atkins v. Virginia , 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), pending the legislature's own response to the Atkins decision, see La.C.Cr.P. art. 905.5.1, 2003 La. Acts 698).

Shaffer , 77 So.3d at 943, n.6.

Defendant further argues the same issue was rejected in State v. Graham , 14-1769 (La.App. 1 Cir. 4/24/15), 171 So.3d 272, writ denied , 15-1028 (La. 4/8/16), 191 So.3d 583, and State v. Brown , 51,418 (La.App. 2 Cir. 6/21/17), --- So.3d ----, 2017 WL 2665128. However, the issue at hand has not been addressed by this court. In Graham , 171 So.3d 272, the defendant was convicted of second degree murder and sentenced to life imprisonment without the benefit of parole. While the case was pending in the Louisiana Supreme Court, the decision in Miller , 567 U.S. 460, 132 S.Ct. 2455, was rendered. The supreme court remanded the matter to the district court to conduct a sentencing hearing in accordance with the principles enunciated in Miller . On remand, the defendant was resentenced to life imprisonment at hard labor with the benefit of parole. On appeal, the first circuit rejected the defendant's claim that he should have been resentenced to the penalty for next available responsive verdict of manslaughter, noting the only other sentence available to the defendant under Miller was life imprisonment with parole. Graham , 171 So.3d at 281. In Brown , 51,418, p. 9, --- So.3d at ----, the second circuit stated:

[O]ur circuit courts have repeatedly rejected the claim that, in light of Miller [v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) ], juvenile homicide defendants should be sentenced under the manslaughter statute. State v. Williams , 50,060 (La. App. 2 Cir. 9/30/15), 178 So.3d 1069, writ denied , 2015-2048 (La. 11/15/16), 209 So.3d 790 ; State v. Calhoun , [ 51,337 (La.App. 2 Cir. 5/17/17), 222 So.3d 903 ];
State v.Plater , [ 51,338 (La.App. 2 Cir. 5/17/17), 222 So.3d 897 ]; State v. Graham , 2014-1769 (La.App. 1 Cir. 4/24/15), 171 So.3d 272, writ denied , 2015-1028 (La. 4/8/16), 191 So.3d 583 ; State v. Dupre , 2016-1352 (La.App. 1st Cir. 4/12/17), 2017 WL 1376526 ; State v. Williams , 2015-0866 (La. App. 4 Cir. 1/20/16), 186 So.3d 242, writ denied , 2016-0332 (La. 3/31/17), 217 So.3d 358 ; State v. Jones , 2015-157 (La. App. 5 Cir. 9/23/15), 176 So.3d 713.

The State notes that in Montgomery , 136 S.Ct. 718, the United States Supreme Court declared that a state could remedy a Miller violation by permitting a juvenile homicide offender to be considered for parole rather than by resentencing. The State further points to La.Code Crim.P. art. 3, which states: "Where no procedure is specifically prescribed by this Code or by statute, the court may proceed in a manner consistent with the spirit of the provisions of this Code and other applicable statutory and constitutional provisions."

The State contends the sole question to be answered in a Miller hearing is whether Defendant will receive parole eligibility, and Defendant is not entitled to be resentenced to the responsive verdict of manslaughter. The State points out that Defendant's argument has been rejected in several cases. In State v. Dupre , 16-1352, p. 5 (La.App. 1 Cir. 4/12/17) (unpublished opinion) (footnote omitted), the first circuit held:

Thus, under [ State v. ] Shaffer [, 11-1759 (La. 11/23/11), 77 So.3d 939,] and Graham [v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) ], the appropriate remedy for a minor sentenced to life imprisonment without parole for a nonhomicide crime is to let stand the life sentence, but delete the restriction on parole eligibility. See State v. Graham , [ 14-1769 (La.App. 1 Cir. 4/24/15),] 171 So.3d [272] at 280 [, writ denied , 15-1028 (La. 4/8/16), 191 So.3d 583 ].
Our courts used the same approach as that taken in the Graham line of cases when applying Miller [v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012),] to sentencing juveniles for homicide offenses. See e.g., State v. Fletcher , 49,303 (La. App. 2d Cir. 10/1/14), 149 So.3d 934, 941-42, cert. denied , --- U.S. ----, 136 S.Ct. 254, 193 L.Ed.2d 189 (2015). Thus, once a defendant has been afforded a hearing pursuant to La. C.Cr.P. art. 878.1, either a sentence of life imprisonment with parole or a sentence of life imprisonment without parole is proper and not unconstitutional under Miller . Accordingly, the defendant was not entitled to be sentenced to the next available responsive verdict of manslaughter.

The State also cites Brown , --- So.3d at ----, which was cited by the Defendant; State v. Keith , 51,389 (La.App. 2 Cir. 6/21/17), 223 So.3d 767 ;

State v. Calhoun , 51,337 (La.App. 2 Cir. 5/17/17), 222 So.3d 903 ; State v. Shaw , 51,325 (La.App. 2 Cir. 5/17/17), 223 So.3d 607 ; State v. Plater , 51,338 (La.App. 2 Cir. 5/17/17), 222 So.3d 897 ; State v. Sumler , 51,324 (La.App. 2 Cir. 5/2/17), 219 So.3d 503 ; and State v. Kelly , 51,246 (La.App. 2 Cir. 4/5/17), 217 So.3d 576.

In Keith , 223 So.3d at 771, the second circuit addressed Craig , 340 So.2d 191, stating:

[ State v. ] Craig [, 340 So.2d 191 (La.1976),] eliminated the possibility of a mandatory death sentence entirely, necessitating vacating those now illegal sentences and resentencing to the most severe sentence for the next lesser included offense. Conversely, Miller v. [Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012),] did not eliminate the possibility of a life sentence for juvenile homicide offenders; it simply held sentencing to life imprisonment at hard labor, without parole eligibility, is unconstitutional if the defendant is denied a meaningful opportunity to present mitigating factors-such as, the attendant qualities of youth.

The court went on to find that " Craig relief" was inapplicable to the defendant, citing Graham , 560 U.S. 48, 130 S.Ct. 2011, and Shaffer , 77 So.3d 939. Keith , 223 So.3d at 771.

In Calhoun , 222 So.3d 903, the seventeen-year-old defendant was sentenced to life with parole eligibility for first degree murder. In addressing various claims by the defendant on appeal, the second circuit stated:

This sentence is not illegal. He received the mandatory minimum sentence available under Miller [ v.Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) ], La. R.S. 14:30, and La. C. Cr. P. art. 878.1. As this Court noted in [ State v. ] Fletcher , [ 49,303 (La.App. 2 Cir. 10/1/14), 149 So.3d 934, writ denied , 14-2205 (La. 6/5/15), 171 So.3d 945, cert. denied , --- U.S. ----, 136 S.Ct. 254[ 193 L.Ed.2d 189] (2015),] the legislature was not required to amend the murder statutes to provide for sentencing of juvenile homicide defendants. The legislature designed an adequate solution to Miller by creating statutes relating to parole eligibility for juvenile homicide defendants which are to be read in conjunction with the murder statutes. He has a chance at parole, but he will have to earn it. This scheme is reasonable and satisfies Miller , supra .

Id. at 907.

In Shaw , 223 So.3d 607, 613, the second circuit stated:

Eligibility for parole is the sole question to be answered in a Miller hearing; and, accordingly, there is no consideration of whether there should be a downward departure from the mandatory sentence of life imprisonment at hard labor. Rather, the trial court considers only whether that mandatory sentence should include parole eligibility.

The court went on to find the defendant's claim that he should be sentenced to a lesser-included responsive verdict was without merit.

Prior to the decisions in Montgomery , 136 S.Ct. 718, and Montgomery , 194 So.3d 606, the Louisiana Legislature enacted La.Code Crim.P. art. 878.1 and La.R.S. 15:574.4(E). In Tate , 130 So.3d at 844 n.6 (emphasis added), the Louisiana Supreme Court found these provisions did not apply retroactively and, in footnote five of the decision it discussed the legislature's intent when enacting these provisions in 2013:

Evidence of legislative intent further supports our interpretation. In the House Committee on Criminal Justice, Pete Adams, Executive Director of the Louisiana District Attorneys Association, and Dana Kaplan, Executive Direct of the Juvenile Justice Project of Louisiana, testified the bill was a carefully negotiated compromise and, as part of that compromise, the bill was written to apply prospectively only, leaving the question of Miller's retroactivity to the courts . Thus, Pete Adams testified: "One of the issues that is not addressed in the bill that we're concerned about is retroactivity. We agreed not to address this in the bill. We believe that the statute on its face is prospective only but of course the courts will make that decision whether they are constitutionally required to be applied retroactively. If the courts decide that the law should be applied retroactively, that is for those already in jail, then this statute will be the vehicle by which those already in jail would gain access. I would just kind of conclude there." Dana Kaplan concurred: "We also concur with the decision to not have the legislation comment on retroactivity because that's a matter that the courts themselves will decide." These comments were then endorsed by the bill's primary author, Representative Chris Hazel.

In State v. Doise , 15-713, pp. 9-10 (La.App. 3 Cir. 2/24/16), 185 So.3d 335, 342, writ denied , 16-546 (La. 3/13/17), 216 So.3d 808, this court addressed the defendant's claim that the statutory scheme implemented by the Louisiana Legislature in response to Miller , 567 U.S 460, 132 S.Ct. 2455, in 2013 was unconstitutional, stating:

In his brief, the Attorney General argues that he fails to see how life with the possibility of parole is a permissible alternative for juveniles who have committed non-homicide offenses but is not a permissible alternative for juveniles who have committed homicide offenses. We agree. Under Graham , a juvenile who commits a nonhomicide offense punishable by life imprisonment must be eligible for parole. Graham [ v. Florida ,] 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 [ (2010) ]. However, as the Louisiana Supreme Court held in Shaffer , the juvenile may not be released on parole unless the Board of Parole decides to release him. [State v. ] Shaffer , [ 11-1756 (La. 11/23/11),] 77 So.3d 939. Thus, in reality, a juvenile who commits a non-homicide offense punishable by life in Louisiana is only promised the possibility of being released on parole. It stands to reason that a juvenile who commits a homicide offense punishable by life imprisonment should be granted no greater relief. As the Attorney General points out, if the mere possibility of being released on parole is sufficient to satisfy the mandatory parole eligibility established in Graham for juvenile non-homicide offenders, the mere possibility of being released on parole is more than sufficient to satisfy the chance of parole eligibility after a hearing established in Miller [, 567 U.S. 460, 132 S.Ct. 2455,] for juvenile homicide offenders. As the Louisiana Supreme Court held in Shaffer regarding Graham , the mere access to the Board of Parole's consideration satisfies the mandates of Miller .

In State v. Fletcher , 49,303 (La.App. 2 Cir. 10/1/14), 149 So.3d 934, writ denied , 14-2205 (La. 6/5/15), 171 So.3d 945, cert. denied , --- U.S. ----, 136 S.Ct. 254, 193 L.Ed.2d 189 (2015), the defendant complained the legislature failed to amend La.R.S. 14:30.1 to comply with Miller's prohibition on a mandatory life sentence without the possibility of parole for juveniles convicted of murder. He further argued that La.Code Crim.P. art. 878.1 and La.R.S. 15:574.4(E) did not comply with Miller , 567 U.S. 460, 132 S.Ct. 2455. In addressing the defendant's claims, the second circuit stated:

[T]he Miller court was presented with an opportunity to categorically declare that no juvenile murderer shall be imprisoned without benefit of parole, but it specifically refused to do so. The Supreme Court plainly recognized that the circumstances of some murders and the characters of some juvenile killers would warrant the imposition of the "harshest possible penalty," and it gave the sentencer latitude to respond appropriately to those situations.
The Louisiana legislature promptly addressed the Miller directive against mandatory life-without-parole sentences for juvenile killers by devising a sentencing procedure which would require that a
trial court sentencing a youthful offender review all pertinent factors before determining whether parole eligibility was warranted. By its very application to only murderers under the age of 18, the provisions of La. C. Cr. P. art. 878.1 mandating a sentencing hearing at which the defense will be given an opportunity to present mitigating factors-which obviously include the defendant's age as an important part of his social history-satisfy Miller's requirement that mitigating factors favoring a juvenile killer be heard in a proceeding held for that purpose. Furthermore, we find that Miller [v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012),] does not require deferral to the distant future of the determination of whether to allow parole eligibility.
Contrary to the defendant's claim, the legislature was not required to amend the second degree murder statute itself to provide for sentencing of juvenile killers. As noted by the attorney general, life without parole is still a constitutionally acceptable sentence for adult killers and it is not a prohibited sentence for all juvenile killers. Our legislature carefully designed an adequate solution by adding a new statute pertaining to parole eligibility for juvenile killers which is to be read in conjunction with the first and second degree murder statutes. In the event that the trial court imposes a life sentence with parole eligibility, La. R.S. 15:574.4(E) provides conditions which must be satisfied before the defendant can apply to the parole board for parole consideration.

Id. at 942. The Fletcher court cited State v. Baker , 14-222 (La.App. 1 Cir. 9/19/14), 154 So.3d 561, writ denied , 14-2132 (La. 5/15/15), 170 So.3d 159, wherein the first circuit rejected the defendant's argument that the trial court should have quashed the indictment on the basis that Miller , 567 U.S. 460, 132 S.Ct. 2455, invalidated the mandatory penalty provision of La.R.S. 14:30.1, thereby prohibiting him from being sentenced as an adult in district court to life without parole. In rejecting the defendant's claims and finding the trial court complied with Miller , the first circuit stated: "Moreover, if Miller invalidated the penalty provision found in LSA-R.S. 14:30.1, our Louisiana Supreme Court has previously held that the invalidation of a penalty provision does not render an entire statute unconstitutional." Baker , 154 So.3d at 566.

In Montgomery , 136 S.Ct. at 736, the United States Supreme Court stated: "A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them." In his concurrence in Montgomery , 194 So.3d 606, 610, Justice Crichton wrote: "Eligibility vel non is the sole question to be answered in a Miller hearing. If parole eligibility is not denied by the district court, future prospects for parole will depend on the prerequisites of La. R.S. 15:574.4(E) and on the ultimate determinations of the Parole Board."

District courts are bound to follow the decision in Montgomery , 194 So.3d 606, as it was the last expression of law by the United States Supreme Court. As noted Defendant argues that compliance with the dictates in Miller requires the trial court to resentence him to the next lesser offense in this case as the state supreme court did in Craig , 340 So.2d 191. However, as earlier set forth, in Shaffer , 77 So.3d 939, the Louisiana Supreme Court rejected the suggestion that the proper remedy was resentencing under a lesser and included offense and held the appropriate remedy was to delete the provisions on parole eligibility. We note as well, in State v. Straub , 12-270, pp. 5-6 (La.App. 1 Cir. 9/21/12), 111 So.3d 38, 41, the first circuit stated:

Although the Shaffer court did not expressly overrule Craig (wherein the Louisiana Supreme Court remanded for resentencing for aggravated rape to the most serious penalty for the next available responsive verdict, which is attempted aggravated rape), it is clear that the Court considered and rejected the Craig remedy, albeit without explanation. [State v. ] Shaffer , [ 11-1756 (La. 11/23/11),] 77 So.3d [939] at 941 n. 3.

See also State v. Walder , 12-51, p. 6 (La.App. 1 Cir. 9/24/12), 104 So.3d 137, 141, writ denied , 12-2534 (La. 4/19/13), 111 So.3d 1032. Additionally, Craig has not been applied in any Miller / Montgomery case cited by the parties or found by this court.

The trial court's judgment resentencing Defendant to life imprisonment with benefit of parole eligibility complies with the last expression of the Unites States Supreme court in Miller and the Louisiana Supreme Court's interpretation of that holding in Montgomery . Therefore, we affirm Defendant's sentence of life imprisonment with eligibility for parole.

AFFIRMED.

      The State incorrectly lists this case as State v. Parker .