author: AMY, Judge.

text:
    Dusty COLLETTE, et al. v. Danielle W. ALLEN, et al.
    16-846
    Court of Appeal of Louisiana, Third Circuit.
    12/28/2016
    Rehearing Denied February 1, 2017

      Staci Knox Villemarette, Cloyd, Wim-berly and Villemarette, LLC, Post Office Box 53951, Lafayette, LA 70505-3951, (337) 289-6906, COUNSEL FOR DEFENDANTS/APPELLANTS: State Farm Mutual Automobile Insurance Company, Danielle W. Allen
    John Avender London, III, 10988 North Harrells Ferry, # 18A, Baton Rouge, LA 70816, (225) 275-8100, COUNSEL FOR DEFENDANT/APPELLEE: LUBA Casualty Insurance Company, Inc.
    Connell Lee Archey, Keith J. Fernandez, Kantrow, Spaht, Weaver & Blitzer, APLC, Post Office Box 2997, Baton Rouge, LA 70821-2997, (225) 383-4703, COUNSEL FOR DEFENDANT/APPELLEE: National Trust Insurance Company
    Chaz H. Roberts, Bradley Aldrich, Chaz Roberts Law, 100 Magnate Drive, Suite Al, Lafayette, LA 70508, (337) 504-3202, COUNSEL FOR PLAINTIFFS/APPEL-LEES: Dusty Collette, Ashley Collette
    Court composed of Sylvia R. Cooks, Marc T. Amy, and Billy H. Ezell, Judges.
   AMY, Judge.

h The defendant-appellee, National Trust Insurance Company (National Trust), moves to dismiss the appeal of the co-defendants, State Farm Mutual Automobile Insurance Company (State Farm) and Danielle W. Allen (Allen), for having been taken by parties with no interest to prosecute this appeal. For the reasons below, we deny the motion.

The suit arises from an automobile collision involving a 2013 Freightliner driven by Dusty Collette (Collette), an employee of M & M and a plaintiff herein, and a vehicle driven by Allen, a defendant herein. M & M had leased the vehicle Collette was driving. The plaintiffs filed suit against Allen and her insurer, State Farm. Advancing the belief that their damages exceeded the policy limits of Allen’s State Farm policy, the plaintiffs added National Trust as a defendant in their First Amended Petition. The plaintiffs claimed that the vehicle Collette was driving was insured under M & M’s policy with National Trust and provided UM coverage to Collette.

National Trust filed a Motion for Summary Judgment, asserting that M <& M waived UM coverage; thus, National Trust did not provide UM coverage as alleged by the plaintiffs. The trial court found that there was no UM coverage and granted summary judgment in favor of National Trust, dismissing all claims asserted by the plaintiffs against National Trust. On July 6, 2016, the trial court signed a judgment in favor of National Trust, dismissing all claims of plaintiffs Dusty Collette and Ashley Collette, individually and in their capacities as tutors of the minor children, Carson Collette and Colin Collette. The district court’s clerk’s office sent notice of the signing of judgment on July 13, 2016.

On July 20, 2016, State Farm and Allen filed a motion and order for a devolutive appeal, which order was granted by the trial court on July 28, 2016. | following the lodging of the appeal by this court, National Trust filed a motion to dismiss the appeal and to suspend briefing pending the outcome of this motion. Briefing was thereafter suspended pending a ruling on the subject motion to dismiss.

By that motion, National Trust refers to appellants Allen and State Farm collectively and asserts that “State Farm” has no privity with National Trust, is not entitled to indemnity or warranty from National Trust, and has not filed a cross-claim against National Trust. As such, National Trust maintains that State Farm has no interest in the judgment dismissing the plaintiffs’ claims against National Trust; thus, National Trust argues the appeal should be dismissed at State Farm’s cost.

In support of its argument, National Trust cites La.Code Civ.P. art. 2086, which provides that “[a] person who could have intervened in the trial court may appeal, whether or not any other appeal has been taken.” National Trust maintains that with the posture of State Farm as insurer for the tortfeasor, intervention is not appropriate. National Trust adds that a third party may intervene and join with the plaintiff “in demanding the same or similar relief against the defendant[.]” La.Code Civ.P. art. 1091(1). National Trust urges, however, that State Farm has no claim for relief against National Trust.

Next, National Trust concedes that a co-defendant with no direct involvement in a case may appeal a judgment. However, the party, National Trust asserts, must show that it was aggrieved by the trial court’s judgment. See Piper v. Central Louisiana Elec. Co., 437 So.2d 997 (La.App. 3 Cir. 1983). National Trust further avers that a party does not have to show a pecuniary interest to be aggrieved by a judgment but must demonstrate its interest in the judgment or the | ¡¡effect of the judgment on the party. See Andrade v. Shiers, 516 So.2d 1192 (La.App. 2 Cir. 1987). Additionally, “an appellant may be said to have no interest in his appeal only when he cannot benefit by any reversal or change in the judgment from which he appeals.” Werhan v. Helis, 147 So.2d 260, 263 (La.App. 4 Cir. 1962), writ refused, 244 La. 667, 153 So.2d 882 (1963).

National Trust concludes that if the plaintiffs prove damages in excess of State Farm’s policy, a UM carrier would be required to pay up to its policy limits and would be subrogated to the plaintiffs’ claim against the insured. National Trust urges that State Farm would never be entitled to indemnity or warranty from a UM carrier. National Trust asserts that if required to pay under its policy, it is then subrogated to its insured’s rights against the tortfea-sor. As such, National Trust maintains that State Farm has no cognizable interest in Collette’s right to recover from National Trust, M & M’s putative UM carrier. Accordingly, National Trust seeks the dismissal of the appeal.

However, National Trust poses- the inquiry strictly from the point of State Farm alone. Yet, both State Farm and its insured, Allen, are parties in the underlying matter. Both have filed the motion for appeal.

Louisiana Code of Civil Procedure Article 2082 provides that an “[ajppeal is the exercise of the right of a party to have a judgment of a trial court revised, modified, set aside, or reversed by an appellate court.” The supreme court has explained that appeals are favored in the law arid “should not be dismissed unless the ground urged for dismissal is free from doubt[.]” Shell Pipeline Corp. v. Kennedy, 00-3207, p. 4 (La. 10/16/01), 799 So.2d 475, 478.

UFurther, and as referenced by State Farm and Allen, the supreme court in Emmons v. Agricultural Ins. Co., 245 La. 411, 158 So.2d 594, 599 (1963), explained:

A person who could have intervened in the trial court may appeal, whether or not any other appeal has been taken. LSA-C.C.P., Article 2086. The sole object of an appeal is to give an aggrieved party to a suit recourse to a superior tribunal for the correction of a judgment of an inferior court, and such right is extended not only to the parties to the suit in which the judgment is rendered, but also to a third-party when such third party is allegedly aggrieved by the judgment. Reid v. Monticello, 215 La. 444, 40 So.2d 814 [(1949)]. Any one (sic) aggrieved by the judgment of a trial court has the right to appeal, unless he has acquiesced therein, or is otherwise deprived of that remedy. White v. White, 153 La. 313, 95 So. 791 [ (1923)]. A party to a suit is given an unqualified right to appeal from adverse final judgment and need not allege and show a direct pecuniary interest in order to be entitled to appeal. Krauss Company v. Develle, 235 La. 1013, 106 So.2d 452 [(1958).]

In Emmons, 245 La. 411, 158 So.2d 594, as "the result of injuries sustained in an automobile accident, the plaintiff filed suit against the defendant and its insurer as well as the plaintiffs liability insurer. The trial court rendered judgment in favor of the plaintiff and against the defendant and his insurer, in solido. It further rendered judgment in favor of the plaintiffs insurer and against, the plaintiff, dismissing the plaintiffs suit at his cost. The defendant and his insurer appealed the judgment, averring that they were aggrieved, in part, by the judgment in favor of the plaintiffs liability insurer and against the plaintiff while the plaintiff acquiesced. The plaintiffs liability insurer filed a motion to dismiss the appeal, and the motion was sustained. The supreme court held that the appeal was tantamount to filing a third-party action, and by taking the appeal, the defendant and his insurer were continuing to deny liability of the obligation upon which the plaintiff sued. Thus, it was proper for the appellate court to consider and determine the liability of the plaintiffs liability insurer. Id.

| sAdditionally, in Cunningham v. Hardware Mut. Cas. Co., 228 So.2d 700 (La.App. 1 Cir. 1969), the court held that a co-defendant could institute a third-party demand by appeal against a co-defendant insurer although a third-party action was not initiated in the lower court. In reaching its decision, the court reasoned:

In Emmons v. Agricultural Insurance Company, 245 La. 411, 158 So.2d 594 [(1963)], a case similar to but distinguishable from the instant matter, the Supreme Court considered the right of a defendant to appeal against a co-defendant where no third party demand was filed in the trial court by the appealing defendant. As in the case at hand, the co-defendant sought to be third partied in Emmons, supra, had been dismissed from the action. In concluding the appeal of defendant constituted a third party action against the co-defendant who had been dismissed from the action, the Supreme Court in Emmons, supra, held:
“An examination of Article 2103 discloses that its terms are directory and not mandatory. It recites that a defendant may seek to enforce contribution by making his solidary co-debtor a third party. There is no penalty imposed for failure to follow its provisions. A defendant who does not call in his co-debtor as a third-party defendant maintains rights under Articles 1111—1116, LSA-C.C.P. Cf. Perot v. United States Casualty Co., La.App. [2 Cir. 1957], 98 So.2d 584.
* * * *
“We conclude that the appeal taken by Bertucci and Agricultural brings their co-defendant General Accident before the appellate court; such appeal was tantamount to filing a third-party action.”
We deem the above cited pronouncement of the Supreme Court decisive of the question whether one solidary obli-gor may third party another on appeal even though no third party demand was filed in the trial court. Thus, Aetna is subject to [the] third party action instituted for the first time on appeal.

Id. at pp. 703-04.

Notably, Allen, as the purported tortfeasor, is a solidary obligor with National Trust, as the purported UM provider. See Rizer v. American Sur. and Fid. Ins. Co., 95-1200 (La. 3/8/96), 669 So.2d 387; Hoefly v. Gov’t Employees Ins. Co., 418 So.2d 575 (La.1982). That solidary status arises to the extent that the plaintiffs allege that their damages may exceed Allen’s liability coverage. See Fertitta v. Allstate Ins. Co., 462 So.2d 159 (La.1985). Because of that solidary obligor status, plaintiffs could demand performance of the entire joint obligation “from either obligor as if he were the sole debtor.” Id. at 163. “Moreover, payment (or partial payment) to the creditor by one debtor exonerates the other debtor from having to make that payment to the creditor (although the debtor who pays may have resulting rights against the other debtor).” Id. Notwithstanding any rights of recovery National Trust may have against Allen as tortfea-sor, in the event the purported UM coverage is implicated, it is clear that Allen, as its solidary obligor, has an interest in whether UM coverage is available to the plaintiffs. Accordingly, we leave her appeal undisturbed.

Neither do we dismiss the appeal as to State Farm, as appellant. The record indicates that State Farm continues in its defense of Allen as its insured, and below, appeared on her behalf by filing an opposition to National Trust’s motion for summary judgment and making arguments in that regard at the hearing. That participation at the trial level is reflected in the resulting judgment from which this appeal was taken insofar as costs were cast against both Allen and State Farm, in addition to the plaintiffs. While the plaintiffs allege damages exceeding Allen’s coverage under the State Farm policy, an insurer’s obligation to defend its insured is broader than its liability as to a claim for damage. See Arceneaux v. Amstar Corp., 10-2329 (La. 7/1/11), 66 So.3d 438. For these reasons, we conclude that State Farm, as Allen’s insurer and representative, has demonstrated an interest in this appeal.

MOTION TO DISMISS DEVOLU-TIVE APPEAL DENIED.


source: Caselaw Access Project

author: COOKS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Gerald Brent DEBARGE
    16-437
    Court of Appeal of Louisiana, Third Circuit.
    12/28/2016

      John F. DeRosier, District Attorney, Karen C. McLellan, Assistant District Attorney, 901 Lakeshore Drive, Suite 800, Lake Charles, LA 70601, (337) 437-3400, ATTORNEY FOR APPELLEE, State of Louisiana
    Brent Hawkins, P.O. Box 3752, Lake Charles, LA 70602-3752, (337) 210-8811, ATTORNEY FOR DEFENDANT/APPELLANT, Gerald Brent DeBarge
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and John E. Conery, Judges.
   COOKS, Judge.

12Pefendant, Gerald Brent DeBarge, is again before this court seeking review of his conviction and sentence for stalking, a violation of La.R.S. 14:40.2. In Defendant’s previous appeal, we set forth the following procedural history:

Defendant was charged by grand jury indictment with one count of stalking, a violation of La.R.S. 14:40.2(A). Defendant entered a plea of not guilty to the charge. The State amended the indictment to change the date of the offense and to add the initials of the victim. On that same date, Defendant informed the trial court of his desire to represent himself. Defendant was allowed to represent himself; however, during the trial Defendant' announced his desire for an attorney but refused the trial court’s offer to have Catherine Stagg sit with him during trial. When Defendant lay down on the floor and refused to get up during trial, the trial court recessed until the next day. The following day, Defendant stated that he was ready to proceed with trial and again refused the trial court’s offer to have Stagg assist him during trial. Thereafter, on January 10, 2014, the jury found Defendant guilty as charged.
At Defendant’s request, Stagg represented him at sentencing on January 17, 2014. Due to Defendant’s unruly behavior, he was removed from the courtroom before sentence was imposed. Pursuant to La.R.S. 14:40.2(A), the trial court found beyond a reasonable doubt that Defendant placed the victim in fear of death or bodily injury by his continued harassment. Finding the maximum sentence appropriate, the trial court sentenced Defendant to five years with the Department of Public Safety and Corrections, to be served without benefit of probation, parole, or suspension of sentence. Finally, the trial court issued a protective order against Defendant and in favor of the victim for an indefinite period of time. Defendant’s counsel waived any reconsideration of sentence.

State v. Debarge, 14-798, pp. 1-2 (La.App. 3 Cir. 3/18/15), 159 So.3d 526, 526-27. In our review of the previous appeal, we found an error patent occurred because Defendant was not present for the imposition of his sentence. Thus, we pretermitted Defendant’s assigned error and remanded the case for resentencing with the Defendant present and represented by counsel unless waived. Id. at 530.

Unbeknownst to this court and prior to our March 18,2015 opinion, Defendant was resentenced on January 30, 2015, pursuant to a Pro Se Motion to Vacate Illegal Sentence. The trial court noted two reasons for the re-sentencing. First, after Defendant’s original sentencing, one of his prior felony convictions was |areduced to a misdemeanor. State v. Debarge, 13-1060 (La.App. 3 Cir. 6/4/14), 2014 WL 2557863 (unpublished opinion). Thus, Defendant was no longer considered a second felony offender. Second, the trial court noted Defendant was not present for the imposition of sentence. At the re-sentencing, the trial court sentenced Defendant to serve five years with the Department of Corrections, thirty-three months suspended, and thirty-six months of supervised probation with various conditions. The unsuspended portion—twenty-seven months of imprisonment—was imposed without benefit of probation, parole, or suspension of sentence.

Defendant filed a Motion and Order for Appeal, which contains a file-date stamp of February 12, 2016. In that motion, appellate counsel stated that because this court pretermitted consideration of Defendant’s assignment of error in his original appeal, Defendant never had the opportunity for appellate review of the merits of his case. According to the order signed by the trial court, the motion for appeal was granted on February 12, 2015. This appears to be a typographical error, as the appeal was actually granted February 12, 2016. Since Defendant is still within the two-year time period for seeking post-conviction review of his original appeal, and the State has no opposition to Defendant receiving an out-of-time appeal, we will treat this appeal as timely filed.

FACTS

Defendant was charged with and convicted of stalking the victim, Aimee Glatt, between June 1, 2013, and July 13, 2013. Although the record established Defendant sent hundreds of letters to the victim, the State introduced only three letters at trial. Defendant and the victim were previously married but divorced prior to the offense. Because of Defendant’s harassing behavior, the victim obtained a restraining order against Defendant prior to the stalking offense. Although the restraining order prohibited Defendant irom contacting the victim, he continued to send letters to her. According to the victim, receiving letters from ^Defendant was a reoccurring problem that caused her great distress and fear. One letter in particular caused the victim to believe that the Defendant was threatening to show up at her door and try to take her and her son with him.

ERRORS PATENT

In accordance : with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. As noted above, due to Defendant’s absence when his original sentence was imposed, this court vacated the Defendant’s sentence imposed January 17, 2014, and remanded the case for resentencing in the Defendant’s presence as required by La. Code Crim.P. art. 835. Debarge, 159 So.3d 526. This court was not aware Defendant had filed a pro se Motion to Vacate Illegal Sentence on August 2, 2014, which was taken up by the trial court on November 14, 2014, but was continued to January 30, 2015, at the request of the defense. On January 30, 2015, Defendant was resen-tenced.

As evidenced in the court minutes in the record currently before this court, these resentencing proceedings occurred during the pendency of Defendant’s original appeal. Thus, it is questionable whether the trial court had jurisdiction to act prior to this court’s March 18, 2015 remand to the trial court for resentencing.

Louisiana Code of Criminal Procedure Article 916 divests the trial court of jurisdiction upon the entering of an order of appeal, which, in this case, occurred on January 17, 2014. Thereafter, the trial court has no jurisdiction to take any action except as otherwise provided by law and in limited situations set forth in La.Code Crim.P. art. 916. One such situation is correction of an illegal sentence. Defendant’s pro se motion to correct an illegal sentence was based on the error concerning his absence when his sentence was imposed, a violation of La.Code Crim.P. art. 835.

Thus, we find no error occurred because Defendant’s absence from the imposition of his original sentence, although a violation of La. Code Crim.P. art. | R835, resulted in an illegal sentence. Thus, the trial court had the authority to act, as it was correcting an illegal sentence as allowed by La. Code Crim.P. art. 916. Additionally, in effect, the trial court’s action, though premature, complied with this court’s order issued a few months thereafter.

We do note the court minutes of sentencing require correction. The court minutes reflect the court’s imposition of a $300 fine, court costs, and $75 reimbursement to the Indigent Defender Board; however, they do not reflect the trial court’s order that a payment plan for these amounts be prepared by the Office of Probation and Parole and submitted to the trial court for approval, as stated in the sentencing transcript. “[W]hen the minutes and the transcript conflict, the ti’anscript prevails.” State v. Wommack, 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied, 00-2051 (La. 9/21/01), 797 So.2d 62. Accordingly, the trial court is ordered to correct the sentencing minutes to accurately reflect this provision of Defendant’s sentence.

PRO SE ASSIGNMENT OF ERROR

As will be discussed in the following paragraph, Defendant’s pro se brief could be interpreted as alleging insufficient evidence. 'When the issues on appeal relate to both sufficiency of the evidence and one or more trial errors, an appellate court should first determine the sufficiency of the evidence. The rationale is that when the entirety of the evidence is insufficient to support the defendant’s conviction, the defendant must be discharged as to that crime, and any other issues become moot. State v. Hearold, 603 So.2d 731, 734 (La.1992). Thus, we will first address Defendant’s pro se assignment of error.

In his pro se brief, Defendant does not set forth a clearly defined assignment of error. Rather, he complains his civil rights were violated by the denial of his writing privileges. Defendant also asserts that three weeks before trial, he was beaten and taunted by law enforcement officers. Additionally, Defendant |6complains the bullying tactics by the State caused local attorneys to refuse to represent him. These claims do not involve the merits of Defendant’s conviction and sentence and are not proper for this court to review.

The only discernable allegation regarding Defendant’s conviction is the implication that the evidence was insufficient to convict him of stalking:

Defendant Gerald DeBarge is not guilty of the crime of stalking. And surely defendant Gerald DeBarge is not guilty of the misdemeanor crime of violating a protective order either. Whereas said protective order was unwarranted from the get-go, for which the defendant has Never [sic] been allowed due process, has never been tried in court for, and for which, regarding the order that was prejudicially presented to the jury during a trial for the separate crime of “stalking”, supposed victim and convicted felon Aimee Glatt NEVER sought, (as evidenced by the fact that she had no memory of seeking it, and by the fact that her signature is not on it.)

We will address the above allegation as a challenge to the sufficiency of the evidence as to the Defendant’s conviction for stalking.

The analysis for insufficiency of the evidence claims is well-settled:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La. 1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

The State charged Defendant with stalking the victim, Aimee Glatt, between June 1, 2013, and July 13, 2013. Although it was well-established at trial that the Defendant sent the victim numerous letters (over 500), the State relied on three letters in particular. The letters were sent to the victim while the Defendant was in |7jail.

The first letter, S—1, is entitled “Threshold[,]” and reads as follows:

You ask, ‘What is it?” at the door.
It is that you’re exquisite, nothing more.

The second letter was received by the victim at her home around July 2013. The second letter is written on an inmate grievance form and states the following:

Everytime he goes down, Tony Mancuso uses his teeth too much—this grieves me exceedingly.
* Angelica Dick turns 27 today!
P.S. If you’re a C.P.S.O. Deputy and you’re reading this, Gerald DeBarge said to eat his dick. TYVM.

The final letter was received by the victim at her home on June 29, 2013. This letter is much longer than the other two, and reads:

Aimee my love,
Since I received two separate copies, (one is enclosed), signed by Judge Cana-day stating that I was only given my “writing priveleges [sic]” back after the stalking/protective order charges “were resolved”—I know that it’s legal for me to contact you now.
Legalities notwithstanding, if at any time you wish me not to write you, simply write refused on the envelope and send it back. I assure you that I will not waste a single stamp writing to someone who considers my letters unwelcome in deed, and not just in words.
Gerald Brent
P.S. 1) Because I don’t like wasting paper 2) just for the fun of it, 3) and mostly because 500 + unrefused letters prove to me beyond a shadow of a doubt that no one on this planet is as interested in my writings as you are—I’m enclosing a copy of a letter I just mailed to Theresa Schmidt, Bob Jindal, and the ACLUofLA.
* Not that any of them will give a crap, it was just fun to do.

The enclosed letter referred to by Defendant states the following:

To whom it may concern,
On November 9, 2012, without advance notice or any sensible explanation, 14th J.D.C. Judge G. Michael Canaday ordered that Isinmate/untried defendant Gerald DeBarge “have no writing prive-leges [sic].”
For the next 4 months, as confirmed by several letters signed by Warden H. Greg Tete, Gerald DeBarge was disallowed/prevented from sending any mail to his mother, children, girlfriends, appeals court, attorneys, media, etc.
According to attorney Angel Hams of the Public Defender’s Office, a Georgetown University Law School graduate, Judge Canaday’s order is unprecedented in the entire history of the United States of America,
And until they take my pen away, have yourself a lovely day.
Gerald Brent
P.S. I’m reading this book today, (the first I’ve read in over a month), by a lunatic author named Chris Moore, and I’m laughing so hard my face is hurting. The book is sorta [sic] about whales, but instead of “Call me Ishmael,” the book begins with, “Amee called the whale punkin [sic].”

Amee testified at trial that she and Defendant had been married, but the marriage ended in May 2011. Amee identified a restraining order protecting her against Defendant, which was obtained a couple of months before she filed for divorce. Amee explained that Defendant was dumping old garbage “like rotten potatoes” in her yard. Amee testified that Defendant would dump the trash while she and her son were sleeping. Defendant also lined all of the house windows with Easter eggs and left strange messages. When asked to explain the messages, Amee replied:

He was texting me to let me know that it was him who did it. He said he had some camouflaged eggs. They were camo-colored, and he said Ash might have trouble finding the camo eggs, but he’ll be all white because some of them are white, just cryptic messages to let me know for sure that it was him who came and did it.

Amee explained that “Ash” is her son, Ashton. Amee further described the strange messages as follows:

Filthy text messages, letters, coming over, like I said, releasing garbage in our yard, even my parents he was harassing, just - - coworkers.

IsAmee testified that Child Protection sent her to the Women’s Shelter because of some things Ashton said about Defendant. In response to Ashton’s statement, Child Protection told Amee to leave with Ashton, to get restraining orders, to change schools and buses. According to Amee, the restraining order also protected Gary Miles, her present husband, and Ashton, her son. Amee described her divorce from the Defendant as “not amicable at all” with a “lot of physical abuse.” A-mee described the abuse as “[pjhysical, emotional, mental, coming to my jobs.” According to Aimee, even her coworkers have restraining orders against Defendant. Aimee felt it was necessary to leave the home, so she and her son moved in with Gary Miles. Aimee testified that she and Gary were just friends when she divorced the Defendant.

Although part of the reason she obtained a restraining order was to protect Ashton, Aimee testified that she also obtained the restraining order to protect herself:

A: Yes, ma’am, but also him following me. I would, you know, be at McDonald’s and he would just - - I’d get a text saying, “How are the fries?” Like anywhere I was, I would get a - -1 was picking my son up in the circle. He used to go to St. John’s, and Gary was with me and he lit a cigarette, and Gerald knew I did not smoke, and he texted, “It must suck to live with smokers.” And, you know, we don’t see him anywhere. It was constant.
Q: So, and I know you have made statements to detectives - - to the detectives during the investigation of this case that you feared Mr. DeBarge.
A: Absolutely.
Q: At that time were you afraid of him or had concerns for your safety?
A: Absolutely.

Aimee remembered attending a hearing for the protective order, a hearing at which Defendant was present. As far as Aimee knew, Defendant received a copy of the restraining order the day of the hearing. Aimee testified the restraining order | mwas effective until September 2, 2013, and prohibited Defendant from abusing, harassing, stalking, following, or threatening the protected person. The restraining order also prohibited the Defendant from using, attempting to use, or threatening to use force or physical violence that would reasonably be expected to cause bodily injury. Additionally, the order prevented Defendant from contacting the protected persons personally, electronically, by phone or in writing. According to Aimee, she began looking for a new house so the Defendant would not know where they lived.

The State then asked Aimee about the “threshold” letter that the Defendant sent her. The letter was entitled “Threshold” and stated, ‘You ask what is it at the door. It is that you are exquisite, nothing more.” Aimee explained why the letter alarmed her:

A: I know him. I know the way he writes. He writes flowery and poetic that way and I understand.
A: Okay. Well, his previous other - - his own letters ... had reference to, “I’m coming. I will get my wife and son,” you know. Then, writing “Threshold,” to me was threshold of a door, you know. I’m standing at your threshold. And, when I’m at the door you’ll say what is it, but it’s just to say you are exquisite, nothing more. I got that I’m coming. Don’t be alarmed. Don’t think it - - it’s just to come get you back, you know. It’s a good thing. I’m coming for my wife, you know. You’ll say what is it at the door, but it’s just you’re exquisite, nothing more when he’s at the threshold of my door. And he’d done it several times, been at the threshold of my door. So, it was to pattern [sic].
Q: So, it’s your personal view based on your experiences with him that if he had shown up at your door, you would have been afraid of what could have happened?
A: Absolutely.
Q: Okay. So, just to be clear, you took that letter as a threat?
A: I absolutely did.

lnAimee further explained her reason for being distressed and alarmed by the letters as follows:

A: It changes every aspect of your entire life. My son has a little bike posse. They ride to school. They love it. They get on their bikes and they ride, and they ride home. When he, Mr. DeBarge, is out, we can’t do that. I bring them everywhere. I won’t let him walk three houses down to a friend in the neighborhood. I will drive him down.
A: My son goes to counseling at Stone-bridge. I go with him. He recognizes the handwriting by now, and I try to get the mail before he does, because sometimes he checks it and he just gets angry. We’ve been dealing with this since first grade. He’s in fifth grade now.
Q: And what I want to do is to focus your testimony a little bit more because I know this is a big issue for you, and I want the jury to be clear on the emotional distress. My question to you is how have these letters, the receipt of these letters that we’re here to talk about today, and, yes, in light of your entire history, how have these letters caused you to feel the alarm and emotional distress that you believe substantiates the stalking charge?
A: I get physically sick.
Q: Why do you feel stalked?
A: I get physically sick when I see that handwriting on a letter, physically sick....
Q: Are you afraid?
A: Absolutely afraid.
Q: Are you afraid to the point of do you feel - - truly feel threatened?
A: We moved entire houses. We have set up and spent all of our money on surveillance cameras all around our houses. The guys have gotten things to protect themselves, yeah.
Q: Okay. And, in reading these letters, to be clear, in each one of these letters did you feel that they indicated there were implied threats of any sort to you or did he just mean to harass you or both?
A: Both. I have had outright threats and I’ve just had just drive me crazy [sic]. I’ve had both.
I12Q: And you believe that to be so because of this history that you’ve explained to the jury?
A: And just the more and more I see, you know, if he would do this X, he would do this, (sic) It seems like his behavior is just getting more and more irrational and I don’t know the limits he would go anymore.
Q: Have you ever had a period of time since you all split households where you have not had unwanted contact from Mr. DeBarge?
A: Even when we moved, and he was not around when we moved, so he couldn’t have watched us, he got that address very quickly, and it started at that house, too, and with jokes that, ha, I got your address.
Q: Now, to be clear, you stated that the “Threshold” letter implied to you that he might come to your door.
A: Yes, ma’am.
Q: And did you fear that, if he just showed up at your door, it would be an argument or a fight or did you truly, as you sit here under oath, believe that this was some other sort of a threat, a more serious threat?
A: The threat that I will come get my ■wife and son.
Q: What does that mean to you?
A: That, if I didn’t want that, if I didn’t go willingly, it’s going to be ugly, but it’s going to be his way.

When asked about the Defendant’s statement in one of the letters that he had written Aimee over 500 letters and would stop if she returned any of them, Aimee testified that even though she wanted Defendant to stop sending her letters, she was advised not to send any of the letters back. Aimee testified that she was told by detectives that if she did so, it would look like she was still listening to Defendant.

During Defendant’s cross-examination, Aimee testified she actually obtained three different restraining orders against Defendant. She also testified she never had a “constant break” from Defendant’s letters.

| wGary Miles, Aimee’s husband, testified Defendant and Aimee communicated a lot through poetry during their relationship, Gary stated often Aimee would have to explain Defendant’s letters to him. Gary testified Aimee would get very upset when she received a letter from Defendant. According to Gary, Aimee would say things like, “If he gets out, he’s going to kill me.” Gary testified the “Threshold” letter seemed to have a larger impact on Aimee than the other letters. Gary was Aimee’s friend during her marriage to Defendant, and Aimee would complain to him about physical and mental abuse. Aimee would show up on occasion at Gary’s house “crying and screaming.” As for the protective orders, Gary testified that Aimee was adamant about keeping the protective order in effect because she was afraid of Defendant. When asked if there was any question in his mind that Aimee was afraid of the Defendant, Gary replied, “Oh, I know she is[,]” and the following colloquy ensued:

Q: Does it make sense to you, in light of everything you know about her and her history with Mr. Debarge that she would have that sort of fear, based on your personal observations and your experience of this whole situation?
A: Yes. I can understand why she is.
Q: Are you afraid of him?
A: Yes and no.
Q: Can you explain that?
A: Unpredictability, obsessive compulsive type actions, you know, just won’t let go. I mean just will not let go. I mean when it’s over it’s over, and everybody has moved on except him, it seems like. And, you know, he just needs to let it go. And, being so unpredictable and stuff, it’s hard to know what could occur, you know, what he might or might not do. It’s hard to make a decision, you know. Sometimes I try to give people the benefit of the doubt, but sometimes it’s better to be safe than sorry, you know, especially when you exhibit or you witness an exhibit of a roller coaster ride of emotions and compulsive obsession type things, and it’s scary. I mean, you know, I just find him to be very unpredictable and still obsessed on Ms. Glatt, my wife now.

| uElrick Jones, a Calcasieu Parish Sheriffs deputy, responded to Aimee’s call on July 3, 2013, regarding a violation of a restraining order. When the deputy arrived at the scene, Aimee showed him a letter she had received that same date and showed him a restraining order against Defendant. Deputy Jones explained that Aimee had a “no contact/no communication restraining order,” and she received a letter from Defendant.

When asked by Defendant (who was representing himself at trial) if Aimee was emotionally distressed and alarmed, Deputy Jones replied, “Yes. She did not want to receive letters from you.” Deputy Jones further described Aimee as being stressed and in “fear- of her life” because of the letter she received.

Deputy Landry Willis of the Calcasieu Parish Sheriffs Office testified that he also responded to a call from Aimee on July 9, 2013. Aimee complained that Defendant violated a restraining order by sending her a letter. According to Deputy Willis, the letter that he read contained no threats of death or bodily injury.

Sarah Stubbs, a detective with the-Cal-casieu Parish Sheriffs Office, testified by the time Aimee came to the Sheriffs Office on July 10, Aimee had' received a third letter. When asked what Aimee’s complaint was, Detective Stubbs testified:

Her complaint was that she had a relationship with Mr. DeBarge previously. They were no longer together. She had a restraining order against him, and she had received numerous letters, even after she did not want them. She was currently remarried, and she was afraid.

Detective Stubbs verified that a protective order was in place when Aimee received the letters. Detective Stubbs identified the protective order, which listed Aimee Renee Glatt DeBarge as the protected person and Gerald Brent DeBarge as the defendant. The protective order was filed in March, 2012, and was effective until September 2, 2013.

According to Detective Stubbs, Aimee thought the “Threshold” letter meant that Defendant was going to show up at her residence. Detective Stubbs testified | is Aimee was very afraid of Defendant. Detective Stubbs testified Aimee was concerned because this was not the first time she had received letters from the Defendant. When asked if Aimee expressed concern about the letters, Detective Stubbs responded, “Extreme concerní,]” and elaborated in the following colloquy:

Q: Did she express to you why these letters were of a concern to her?
A: She did. She explained the history, which is important, especially the way that she took the Threshold letter, the way she viewed it.
Q: Okay.
A: She was afraid, very afraid.
Q: Okay. How did she view the Threshold letter?
A: In her mind it meant, as soon as he was able to, he would be at her door.
Q: I’m sorry, I didn’t hear you.
A: As soon as he was able to be in the area, he would be at her residence.
Q: Sq, the Threshold letter says, “You ask what is it at the door. It is that you are exquisite, nothing more.”
A: Yes.
Q: She said that meant what exactly? And I want to be sure the jury understands what you’re saying.
A: That he would show up at her residence, and when she answered it would be him at the door.
Q: And do you - - Did she explain to you why she believed that to be the cáse?
A: Because there were four times that it happened that he had been - - I’m trying to say it, but we can’t, uh - - He has been incarcerated and four times he had been released. He had shown up at her door within 24 to 48 hours.
Q: Do you have any - - Were you able to - - Well, in regards to the other letters that she received, let’s talk about S-2. Let’s just take it step by step, S-2. The document that was on the Corrections Division | ^Inmate Grievance Form, was she able to give you any explanation or offer any explanation as to its meaning to her?
A: I would have to look at my report to refresh because I - - I just remember talking to her about all of them. I just remember her being afraid and she did not want to send a letter back refused written on there because, to her, that would be communicating. That would be telling him to continue communicating, playing a game with him, and she didn’t want to do that. She didn’t want any contact with him at all and she could not get him to stop.
Q: So, she was adamant in her communications to you that she did not want any further communications with Mr. DeBarge.
A: Correct.
Q: And did she state to you that this had been a - - that this was a repeated problem for her?
A: Yes, she did.
Q: Did she appear to be distressed about it?
A: Very.
Q: Okay.
A: Very distressed.

On July 10, 2013, Detective Stubbs spoke with Defendant in regards to Aimee’s allegations. An audio recording of Defendant’s interview was played for the jury. The following colloquy took place between Defendant and the detectives:

Q What we have, Mr. DeBarge, is we have a complaint filed on July 3,2013 by Mrs. Glatt. There is a restraining order between y’all and that you have been mailing her letters. Is that correct?
A Hell, no.
Q You haven’t mailed her any letters whatsoever?
A Okay. There was a restraining order; okay?
Q Okay.
A I was in court in March and the District Attorney asked me to sign an amended restraining order because they messed up on the paperwork and the restraining order was supposed to go through September; but, because they did the paperwork wrong, it expired in March, or something like that. So, I said, for one, I have never been given a hearing. It’s never been determined that I was ever a danger, 117that any restraining order was ever warranted. I said I signed it under duress, and the only condition I signed it on was that there would be mutually restraining orders, you know. And I said then I had a lady that lied to me. They weren’t mutual restraining orders. I said, so, no, I’m not going to help y’all finish /all's paperwork because, you know, because they said - - they agreed to say - - and I’m like, okay, if there was a restraining order, a legal, valid, restraining order what the hell do they need me to sign it to change it? So, I’m saying it’s not valid; okay?
Q Okay.
A I also got a letter from the Judge who - - now, this is real good - -he decided that the First Amendment of the United States Constitution didn’t apply to me. I got a letter from him that said he took away my writing privileges. For four months I was not allowed to write a letter. I was not allowed to write an appeals court, a lawyer or the news media, nobody; okay? And the reason it was is because I was violating a restraining order by writing Aimee Glatt; okay? That’s what he told me.
Q Okay.
A Okay. Then he wrote me a letter and said he restored my writing privileges because all of that - - those letters had all been resolved.
Q Okay.
A Okay. So, if he took my writing privileges because I was writing her and then he gave them back, I assume it means I can write her. Why the hell not?
Q But, the fact of the matter is that the restraining order isn’t supposed to expire until September of this year.
A I’m just saying if that’s true, when did - - (unintelligible) - - and Angel Harris told me do not sign that.

When asked why he was writing to Aimee, Defendant said he was exercising his First Amendment right. Defendant acknowledged that he probably sent Aimee about 500 letters over the past three years but always told Aimee to write “refused” if she wanted him to stop writing her. When asked if he thought a restraining order meant he could “tell her that,” the Defendant replied that “a restraining order is illegal.”

|1sThe State asked Detective Stubbs what evidence led her to believe that stalking had taken place in this case:

A: Well, with the repeated contact, unwanted contact, a 500 plus from his own letters that he had sent her, and from her statement, she had told'me there was probably - - because I asked her, “How many would you guesstimate or estimate that you have received?” And she said, “Probably 500 or more.” From, [sic] all the information we received and from his letters, it’s constant, unwanted contact from Mr. DeBarge.
Q: Okay. Was Mrs. Glatt in any way equivocal or unclear in her statements about not wanting contact from Mr. De-Barge?
A: No. She was very clear, very adamant that she did not want contact and she was afraid of him, and it was very stressful for her life having to deal with this.
Q: Okay. Based on your personal observations of her during your meetings with her and your conversation with her about these letters and her history that you alluded to earlier in your testimony, what was your impression of the impact these - - the receipt of these letters had on her?
A: It caused a great deal of emotional turmoil, stress. She demonstrated - - I remember her getting very emotional, her eyes tearing up. I don’t remember if she cried or not, but I just remember her wanting it to stop. I mean, she is just, from what I observed, it seems like it has just been a lot that she had to deal with and she is afraid of him, very afraid.

As for the validity of the restraining order, the following colloquy took place between the State and Detective Stubbs:

Q Okay. During the course of your investigation did you obtain any information that would lead you to believe that the restraining order that we discussed earlier and that has been offered or has been marked for purposes of identification as S-4 - - do you find anything to lead you to believe that it is not valid or was not in effect when these letters were sent to Mrs. Aimee Glatt?
A I did not. And, usually I will get a copy of the service information unless, like this one, the defendant had signed it stating that they were aware of it; but there is nothing that I saw that showed that it was not valid.

After Defendant cross-examined Detective Stubbs, the State asked her about a letter the Defendant referred to in his cross. The letter was marked as S-6 and was received by Detective Stubbs on July 11 (the day after the Defendant’s | ^interview). Greg Tete, the Assistant Warden of the Calcasieu Parish Sheriffs Prison, gave the letter to Detective Stubbs. The letter was addressed to “Mr. and Mrs. Fred Vale” but contained the street address for Aimee’s residence. The letter was intercepted, so it was never mailed to Aimee’s address. The contents of the letter named the two detectives that interviewed the Defendant as the intended recipients. The letter states:

To Dumb & Dumber, excuse me, I mean Dear Señor Juarez and Detective Snubbed—if you two brain trusts, I mean super sleuths, would provide me with a copy of the valid protective order that you say doesn’t expire until September 2013, I’ll plead guilty and we’ll wrap this up quick like and in a hurry.
Cordially yours,
Gerald Brent DeBarge
P.S. A deputy told me today that when Sheriff Mancuso’s wife looks at her vagina she just looks at him—I just took him at his word.

After hearing the above testimony, the jury found the Defendant guilty of stalking. At the time of the commission of the offense in the present case, the offense of stalking, La.R,S. 14:40.2, provided in pertinent part:

A. Stalking is the intentional and repeated following or harassing of another person that would cause a reasonable person to feel alarmed or to suffer emotional distress. Stalking shall include but not be limited to the intentional and repeated uninvited presence of the perpetrator at another person’s home, workplace, school, or any place which would cause a reasonable person to be alarmed, or to suffer emotional distress as a result of verbal, written, or behaviorally implied threats of death, bodily injury, sexual assault, kidnapping, or any other statutory criminal act to himself or any member of his family or any person with whom he is acquainted.
C. For the purposes of this Section, the following words shall have the following meanings:
(1) “Harassing” means the repeated pattern of verbal communications or nonverbal behavior without invitation which includes but is not limited to making telephone calls, transmitting electronic mail, sending messages via a third party, or sending letters or pictures.
12n(2) “Pattern of conduct” means a series of acts over a period of time, however short, evidencing an intent to inflict a continuity of emotional distress upon the person. Constitutionally protected activity is not included within the meaning of pattern of conduct.

The evidence was sufficient to prove Defendant intentionally and repeatedly harassed the victim by sending her numerous, uninvited letters. Although the State relied on three letters at trial, Defendant admitted that he had sent the victim over 500 letters. Even though Defendant claimed he thought the victim wanted to receive the letters since she never sent any back with the word “refused” written on the envelope, Defendant knew of the victim’s desire to have no contact with him since she obtained a protective order prohibiting such. Despite Defendant’s claim that the protective order was invalid, it was signed by him prior to the stalking offense. In his statement to Detective Stubbs, Defendant claimed he was called back into court to sign an amended protective order but refused to do so. Even if Defendant refused to sign an amended protective order, Defendant was on notice that Aimee did not want to be contacted by him. Thus, Defendant knew the victim did not want to receive letters from him, yet he continued to send them to her. Considering the testimony introduced at trial, including the acrimonious relationship between Defendant and the victim as well as Defendant’s prior unwanted contact with the victim, the jury’s determination that Defendant’s harassment caused the victim to feel alarmed for her safety and to suffer emotional distress was reasonable. The evidence was sufficient to convict the Defendant of stalking.

COUNSEL ASSIGNMENT OF ERROR

In his sole counsel-filed assignment of error, Defendant asserts, “There was insufficient evidence for the judge to find the Defendant guilty of stalking by placing the victim in reasonable fear of death or bodily injury.” Although |⅞1 appellate counsel’s use of the words “insufficient evidence” in this assignment of error gives the impression that he is challenging the sufficiency of the evidence, we note the challenge is not to the jury’s verdict but to the trial court’s finding at sentencing that Aimee was placed in reasonable fear of death or bodily injury, thus allowing the trial court to sentence Defendant under La.R.S. 14:40.2(B)(2)(a). Appellate counsel states the jury reached its verdict without any finding of fact that Defendant placed the victim in fear of death or bodily injury. Instead, this finding was made by the trial judge at sentencing in accordance with La.R.S. 14:40.2(B)(2)(a):

Any person who commits the offense of stalking and who is found by the trier of fact, whether the jury at a jury trial, the judge in a bench trial, or the judge at a sentencing hearing following a jury trial, beyond a reasonable doubt to have placed the victim of the stalking in fear of death or bodily injury by the actual use of or the defendant’s having in his possession during the instances which make up the crime of stalking a dangerous weapon or is found beyond a reasonable doubt to have placed the victim in reasonable fear of death or bodily injury, shall be imprisoned for not less than one year nor more than five years, with or without hard labor, without benefit of probation, parole, or suspension of sentence and may be find one thousand dollars, or both. Whether or not the defendant’s use of or his possession of the dangerous weapon is a crime or, if a crime, whether or not he is charged for that offense separately or in addition to the crime of stalking shall have no bearing or relevance as to the enhanced sentence under the provisions of this Paragraph.

Since the only “element” appellate counsel complains of on appeal is the finding that Defendant placed the victim in reasonable fear of death or bodily injury and the trial judge made that finding at sentencing, this assignment of error attacks Defendant’s sentencing and is threefold. First, appellate counsel urges that because the jury did not find Defendant guilty of stalking the victim by placing her in reasonable fear of death or bodily injury, the trial judge was without authority to do so; second, appellate counsel seems to argue even if the matter could be properly entertained by the trial judge, he could not do so before conducting a contradictory hearing; and, third, the evidence when properly examined does not ^sufficiently show the victim was in fact placed in fear of death or bodily injury and the trial court erred in so finding.

As to the first argument that because the jury did not find Defendant guilty of stalking the victim by placing her in reasonable fear of death or bodily injury, the trial judge was without authority to do so, we find the statute provides otherwise. An examination of La.R.S. 14:40.2(B)(2)(a) provides this finding can be made by “the judge at a sentencing hearing following a jury trial.” Therefore the trial judge had the authority to render this finding at the sentencing hearing.

We also find no merit in appellate counsel’s argument that a contradictory hearing should be held prior to any determination by the trial court that the victim was placed in fear of death or bodily harm. The record establishes Defendant specifically waived his right to a contradictory hearing.

At the original sentencing, defense counsel asserted that a contradictory hearing should be held prior to any determination by the trial court that the victim was placed in fear of death or bodily harm. The trial court responded:

I don’t have a problem if you want a contradictory hearing. We’ll fix it. He’s probably eligible for release today. But, if he wants to come back in March and have the hearing, we’ll be glad to do so.

After speaking with Defendant, defense counsel informed the court that the Defendant preferred to go forward with sentencing that day:

DEFENSE COUNSEL:
Okay. I just took a minute to - - if the record would reflect, I took a second to talk to Mr. DeBarge.
THE COURT:
No problem.
DEFENSE COUNSEL:
And, we’d prefer to go forward today. But, I did want to reiterate my objection, which I made strenuously the last time and are reflected in the minutes from the last time, Your Honor,
li>sTHE COURT:
I would also take judicial notice of the testimony that occurred during the trial. But, that doesn’t give you a chance for cross-examination. So, that’s why I would say, if you wanted the contradictory hearing, you can have so. But, at this time you wish to waive it?
DEFENSE COUNSEL:
According to Mr. DeBarge, yes, sir.
THE COURT:
All right. The State’s position, Ms. Hawkins?
THE STATE:
Well, Your Honor, I’m not clear on what you are granting at this point. A contradictory sentencing hearing - -
THE COURT:
I’m not granting anything. She withdrew the request for a contradictory hearing. She’s stating that her interpretation of the statute is that there ought to be a hearing where it can be eviden-tially discussed on the stand and a record made with regard to whether he falls within the guidelines of the enhancement provisions of being placed in great bodily harm or fear of death.
THE STATE:
Okay. I understand that. The State’s position is that this was argued at the original sentencing hearing. I remember Ms. Stagg arguing this point, asking for same, and Your Honor ruled the State would submit that. Your Honor ruled previously on this particular issue, moved forward appropriately with sentencing; and, for reasons Your Honor stated in the record, made clear your reasoning behind imposing the particular sentence under 14:40.2 B 2 A, as I recall.
So, to the extent this is a rehashing of a motion or an issue that’s already been ruled upon, I would object to that. I don’t know if it is proper.
THE COURT:
If she wishes to have a hearing, she can have it.
THE COURT:
laJf you want to have your hearing, we can refix it. I anticipated basically to sentence him to five years. I was going to suspend half of that. He would do 30 months, and then be put on probation thereafter. I think, because it’s a crime of violence, under 85%, he’s going to have to do about 24 months. He’s got about 17 - - it looks like 17 or 18 in. So, if you wish to have the hearing, I don’t think he will be out today. But, that’s where I’m at with regard to him being as a first offender and the history.
DEFENSE COUNSEL:
Mr. DeBarge says he would like to go forward with the hearing, Your Honor.
THE COURT:
All right. I don’t have my transcript, and I don’t have my original workup, Tom. (Addressing Court Bailiff)
DEFENSE COUNSEL:
I have the minutes from that sentencing. That’s all I have.
THE COURT:
So, but I went through 894.2 or 894.1 with regard to - - I didn’t have my docket this morning, so I don’t have those matters. I can get those, maybe have them by this afternoon, to go back and reiterate them, because I’m pretty much gonna go back and enumerate those matters. What’s the big thing that has changed is his offender status.
DEFENSE COUNSEL:
That’s correct, Your Honor.
THE COURT:
But, he’s entitled to have the 894.1 aggravating and mitigating factors stated of record. I don’t have them with me. I’ll do them at 1:30 if you want to.
THE COURT:
I’m just asking them. I mean, they’re entitled to the sentencing hearing. They have a good idea of what I want to do. But, I mean, he’s the only one that can complain. Well, the State can complain, but - -
DEFENSE COUNSEL:
12SMr. DeBarge wants to go forward, Your Honor, if possible, if the Court has already formulated a potential sentence.
THE COURT:
So, for the record, is he willing to waive reiteration of 894.1 and have the Court resentencing consistent with what has been stated in open court today? MR. DEBARGE:
Yes, sir.

As Defendant waived his right to a contradictory hearing, this assignment of error is without merit.

Lastly, appellate counsel argues the evidence when properly examined does not sufficiently show the victim was in fact placed in fear of death or bodily injury. We find no error in the trial court’s finding that the State met its burden of proving Defendant placed Aimee in reasonable fear of death or bodily injury.

The testimony at trial established there had been a “lot of physical abuse” during the marriage between Defendant and Aimee. Aimee testified Defendant followed her and would frequently text her to let her know he was watching her. Defendant also entered Aimee’s yard and dumped garbage throughout the yard while she and her son were inside the residence sleeping. Defendant lined her house windows with Easter eggs on one occasion. Clearly this led to Aimee’s fears that Defendant had no concern about coming and going from her residence as he wished. Aimee testified Defendant’s behavior required her to seek a protective order for her and her son’s safety. Mr. Miles, Aimee’s current husband, testified Aimee would state that if Defendant was released from jail, she believed he was going to kill her.

Aimee testified she believed the “Threshold” letter meant that Defendant was physically going to show up at her door and that he “will come get my wife |2fiand son.” Deputy Jones testified it was his opinion that Aimee was in “fear of her life’ due to the letters she received. Detective Stubbs testified the victim expressed “extreme concern,” particularly over the “Threshold” letter. Detective Stubbs explained that Defendant had on four prior occasions showed up at Aimee’s door within 24 to 48 hours of being released from jail. Detective Stubbs believed Aimee was “very distressed” due to Defendant’s consistently threatening behavior toward her and her son.

In State v. Schexnaider, 03-144 (La.App. 3 Cir. 6/4/03), 852 So.2d 450, this court reiterated that the trier of fact has the discretion to accept or reject, either partially or wholly, the testimony of any witnesses, including the victim. In the present matter, the trial court found Defendant placed Aimee “in fear of death or bodily injury by his continued and actual use—and pattern of conduct and the harassment that had been part and parcel of the years leading up to the event.” The evidence and testimony fully support the trial court’s finding in this case.

DECREE

For the foregoing reasons, Defendant’s conviction and sentence are affirmed. The trial court is ordered to correct the court minutes of sentencing to include the trial court’s order that a payment plan be prepared by the Office of Probation and Parole and submitted to the trial court for approval for the payment of the fine, court costs, and reimbursement to the Indigent Defender Board.

AFFIRMED WITH INSTRUCTIONS.


author: THERIOT, J. McClendon, J.,

text:
    IN RE: SUCCESSION OF Roselee Pooler SIMS and Alvin Sims In re: Succession of Rosa Lee Pooler Sims and Alvin Sims
    2015 CA 1904 Consolidated With 2015 CA 1905
    Court of Appeal of Louisiana, First Circuit.
    DECEMBER 28, 2016

      Joseph A. Prokop, Jr. Courtney King Humphrey Baton Rouge, Louisiana, Counsel for PlaintiffiAppellee Patricia Sims White
    Ronnie J. Berthelot Baton Rouge, Louisiana, Counsel for Defendant/Appellant Lionel Sims, Sr.
    Kenneth R. Fabré Baker, Louisiana, Counsel for Faith Baptist Spiritual Church
    BEFORE: WHIPPLE, McDONALD, McClendon, crain, and theriot, JJ.
   THERIOT, J.

|aThe appellant, Lionel Sims, Sr., seeks review of a judgment adjudicating the ownership of certain property and denying his motion and rule for an accounting. For the following reasons, we affirm in part, vacate in part, and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

In the mid-1970s, the decedents, Rev. Alvin Sims, Sr., and his wife, Rev. Roselee Pooler Sims, founded Faith Baptist Spiritual Church in their home in Zachary, Louisiana. The Simses later acquired a tract of immovable property in Zachary and constructed a church building on that tract of land (“the church property”). The Simses then acquired and built a beauty salon and barber shop on another tract of immovable property in Zachary (“the salon property”). Additionally, in June of 1982 and September of 1989, two contiguous tracts of land were acquired in the name of “Faith Baptist Spiritual Church” in East Feliciana Parish (“the East Feliciana property”).

In July of 2008, Rev. Mrs. Sims died intestate. Less than a year later, in June of 2009, Rev. Mr. Sims died testate. In his will, Rev. Mr. Sims bequeathed everything he owned to one of the couple’s nine surviving children, Patricia Sims White, with the sole exception of his interest in “the lot and improvements on the lot where the beauty shop and barber shop is located[,]” which he bequeathed to his granddaughter, Acena Judson Shropshire.

|aThe successions for both decedents were opened and consolidated. Patricia Sims White was named testamentary executrix of her father’s succession and was qualified as the administratrix of her mother’s succession. Mrs. "White’s brother, the appellant, Lionel Sims, Sr., appeared in the successions as a forced heir based upon injuries and medical conditions attributable to the Vietnam War.

On July 9, 2014, Mr. Sims filed a motion and rule concerning an accounting and the decedents’ detailed descriptive lists of assets. Mr. Sims sought to have Faith Baptist Spiritual Church declared as an asset of the decedents; sought to have the church property and the East Feliciana property included on the detailed descriptive lists of assets of the decedents; sought to have the executrix/administratrix account for all rent, income and other money received on account of the beauty salon and barber shop; and sought to have the executrix/administratrix account for all donations, collections, or gratuities received by Faith Baptist Spiritual Church during religious services.

On March 16, 2015, the trial court held a hearing on Mr. Sims’ motion and rule concerning an accounting and the decedents’ detailed descriptive lists of assets for the limited purposes of considering the classification and ownership of the various properties involved in the dispute. The trial court deferred any issues relating to the accounting to a later date. At the end of the hearing, the trial court took the matter under advisement.

On August 4, 2015, the trial court signed a judgment denying Mr. Sims’ motion and rule for an accounting; declaring Faith Baptist Spiritual Church to be an entity “separate and independent” from the decedents and capable of acquiring and disposing of immovable property; declaring the salon property to be community property; ordering that a one-half interest in |4the salon property be included in the detailed descriptive list of assets in Rev. Mrs. Sims’ succession; declaring Faith Baptist Spiritual Church to be the owner of the church property and the East Feliciana property; and decreeing that the church property and the East Feliciana property were not community property and should not be included on the decedents’ detailed descriptive list of assets. Mr. Sims now appeals.

ASSIGNMENTS OF ERROR

Mr. Sims raises the following assignments of error:

1. The trial court committed legal error when it declared that Faith Baptist Spiritual Church is a person under Louisiana law capable of owning immovable property and intervening in the succession proceeding, and the trial court committed legal error when it declared the church owned the church property.
2. The trial court committed legal error when it allowed a lawyer to enroll to represent a non-entity and give testimony about churches, make allegations about the church, and otherwise give oral argument after trial on the merits.
3. The trial court committed manifest error when it declared that Faith Baptist Spiritual Church owns the immovable property located in East Feliciana Parish.
4. The trial court committed legal error when it denied Mr. Sims’ rule concerning an accounting for income generated by Faith Baptist Spiritual Church and income generated and rent owed by the barber shop/beauty parlor.

DISCUSSION

First, we examine whether the trial court properly declared Faith Baptist Spiritual Church to be the owner of the church property and the East Feliciana property, despite the fact that the church does not appear as a party to this litigation.

Louisiana Code of Civil Procedure article 1841 states, in relevant part, that “[a] judgment is the determination of the rights of the parties in an |,^action and may award any relief to which the parties are entitled.” As we have previously explained, pursuant to La. C.C.P. art. 1841, “a judgment cannot determine rights or award relief to persons or entities that are not parties to the litigation.” Gentile v. Baton Rouge General Medical Center, 95-0348 (La.App. 1 Cir. 11/9/95), 665 So.2d 422, 430 (citing Rosella v. Dede’s Wholesale Florist, 607 So.2d 1055, 1059 (La. App. 3 Cir. 1992)). Accord In re Succession of Banks, 11-26 (La.App. 5 Cir. 6/29/11), 71 So.3d 1086, 1097; Minton v. Crawford, 98-478 (La.App. 3 Cir. 10/7/98), 719 So.2d 743, 748.

In the instant case, Mr. Sims recognized in his pleadings before the trial court that Faith Baptist Spiritual Church asserted a potentially adverse ownership claim to the church property and the East Feliciana property. However, Mr. Sims never joined Faith Baptist Spiritual Church as a party to the litigation, and he maintains on appeal that the church is not a juridical entity capable of owning property. Moreover, while Faith Baptist Spiritual Church continues to assert its adverse ownership interest in the subject property, the church never formally filed a petition for intervention in the underlying proceedings. See La. C.C.P. art. 1091.

Louisiana Code of Civil Procedure article 1091 states that a third person having an interest therein may intervene' in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by: 1) joining with plaintiff in demanding the same or similar relief against the defendant; 2) uniting with defendant in resisting the plaintiffs demand; or 3) opposing both plaintiff | (¡and defendant. Here, the record reflects that on April 21, 2015, the trial court granted a motion to enroll as counsel on behalf of Faith Baptist Spiritual Church. Critically though, a motion to enroll as counsel is not the same as an intervention, which is a type of incidental demand, see La. C.C.P. art. 1031(B), and which must be commenced “by a petition which shall comply with the requirements of Articles 891, 892 and 893.” La. C.C.P. art. 1032.

Consequently, we find that the trial court erred in declaring Faith Baptist Spiritual Church, which was not a party to this litigation, to be the owner of the church property and the East Feliciana property, and, relatedly, we find that the trial court erred in ordering that the church property and the East Feliciana property be therefore excluded from the decedents’ detailed descriptive list of assets. Hence, we vacate that portion of the trial court’s judgment regarding the ownership of the church property and the East Feliciana property. Cf., Succession of Banks, 71 So.3d at 1098 (vacating that portion of the trial court’s judgment awarding relief to the dative testamentary executor in his individual capacity as opposed to in his capacity as a succession representative).

Next, we turn to consider whether the trial court properly denied Mr. Sims’ motion and rule concerning an accounting for income generated by Faith Baptist Spiritual Church and the beauty salon and barber shop located on the salon property.

The transcript for the hearing on Mr. Sims’ motion and rule concerning an accounting and the decedents’ detailed descriptive lists of assets reflects that the trial court “decline[d] to hear evidence on th[e] full accounting.” The trial court explained that it was unnecessary to hear evidence concerning an accounting until the outstanding issues regarding 1ownership of the subject properties were resolved, i.e., until the trial court determined whether the properties should be regarded as assets of the decedents. The trial court indicated that all issues concerning an accounting could be preserved and presented at a later date.

Nevertheless, in its August 4, 2015 judgment, the trial court denied Mr. Sims’ “opposition” to the annual accounting without explanation. Because the trial court limited the hearing and refused to take evidence on the issue of the accounting, and in light of our ruling on the issue of the ownership of the church property and East Feliciana property, we vacate that portion of the trial court’s judgment denying Mr. Sims’ motion and rule for an accounting. We pretermit consideration of any other issues or remaining assignments of error.

DECREE

For the foregoing reasons, we affirm the trial court’s August 4, 2015 judgment, in part, insofar as it adjudicated the ownership of the salon property and ordered that a one-half interest in the salon property be included in the detailed descriptive list of assets in Rev. Mrs. Sims’ succession, which ruling is not contested on appeal. We vacate the trial court’s August 4, 2015 judgment, in part, insofar as it adjudicated the ownership of the church property and the East Feliciana property and denied the motion and rule for an accounting. This case is remanded to the trial court for further proceedings. The trial court is instructed to allow Faith Baptist Spiritual Church an opportunity to intervene in the litigation, if it is capable of doing so, and to hold a retrial, including the admission of further evidence, to determine whether the church is a juridical entity with procedural capacity to proceed in suit and, if so, to adjudicate any ownership | ¿interests of Faith Baptist Spiritual Church. All costs of this appeal are assessed to the appellant, Lionel Sims, Sr.

AFFIRMED IN PART; VACATED IN PART; REMANDED.

McClendon, J.,

concurring in part and dissenting in part.

I agree that the trial court erred in declaring Faith Baptist Spiritual Church, which was not a party to the litigation, to be the owner of the church property and East Feliciana property. However, I disagree with the majority’s analysis. While the majority merely allows the Church an opportunity to intervene and vacates only a portion of the judgment, I find the Church to be a party necessary for a complete and equitable adjudication of the controversy. Therefore, I would vacate the entire judgment and remand for a joinder of the Church and a retrial of the case, including further evidence to determine if the Church is a juridical entity capable of owning property and to determine any ownership rights of Faith Baptist Spiritual Church. See LSA-C.C. art. 479.

Louisiana Code of Civil Procedure article 641 provides:

A person shall be joined as a party in the action when either:
(1) In his absence complete relief cannot be accorded among those already parties.
(2) He claims an interest relating to the subject matter of the action and is so situated that the adjudication of the action in his absence may either:
(a) As a practical matter, impair or impede his ability to protect that interest.
(b) Leave any of the persons -already parties subject to a substantial risk of incurring multiple or inconsistent obligations.

As noted by the majority, Mr. Sims recognized in his pleadings that Faith Baptist Spiritual Church asserted a potentially adverse ownership claim to the church property and the East Feliciana property. Nevertheless, the Church was not joined as a party. Additionally, the trial court adjudicated the Church to be the owner of the property at issue. Clearly, Faith Baptist Spiritual Church should be joined in the action.

Louisiana Code of Civil Procedure article 646 provides that “[w]hen the failure to join a party ... is noticed by an appellate court, the [appellate court] may remand the case for [amendment of the petition] and further evidence.” Accordingly, I would remand this matter to the trial court for the amendment of the petition to join Faith Baptist Spiritual Church as a party and for retrial of the entire case. See Blanchard v. Naquin, 428 So.2d 926, 928 (La.App. 1 Cir.), writ denied, 433 So.2d 162 (La. 1983).

McClendon, J., concurs in part and dissents in part for assigned reasons.

      . The Simses were survived by nine children, Yvonne Sims, Alvin Sims, Jr., Aldreamia Sims Omar, Lionel Sims, Sr., Aletha Sims Jordan, Burnell Sims, Patricia Sims White, Charles Sims, and Samuel Sims, all of whom were over twenty-three years of age at the time each of their parents died. The Simses had one other child, Glinda Sims Jones, who was above the age of twenty three years of age when she preceded her parents in death.

      . The trial court decreed that the salon property should not be included in Rev. Mr. Sims’ succession, because Rev. Mr. Sims had divested himself of his one-half interest in the salon property prior to his death.

      . We recognize that the issue of juridical personality is interconnected with the issue of procedural capacity, since an entity must qualify as a juridical person, i.e., an entity to which the law attributes juridical personality, in order to have the capacity to sue or be sued. See Dejoie v. Medley, 41,333 (La.App. 2 Cir. 12/20/06), 945 So.2d 968, 972; Dugas v. City of Breaux Bridge Police Dept., 99-1320 (La.App. 3 Cir. 2/2/00), 757 So.2d 741, 743, writ denied, 00-0671 (La. 4/20/00), 760 So.2d 1159.

      . Louisiana Civil Code Article 479 provides that "[t]he right of ownership may exist only in favor of a natural or juridical person.” The official 1979 revision comments to article 479 recognize that "[a]n unincorporated association may have certain attributes of juridical personality. See Yiannopoulos, Louisiana Civil Law System 105 (1978).” LSA-C.C. art. 479 Official Revision Comment (c) (1979).

      . A party is defined as "anyone who both is directly interested in a lawsuit and has a right to control the proceedings, make a defense, or appeal from an adverse judgment.” Black’s Law Dictionary (10th Ed. 2014).


author: BROWN, CHIEF JUDGE.

text:
    Julius and Gloria BOSTON, on behalf of their minor son, Jordon Boston, Plaintiffs-Appellants v. JACKSON PARISH SCHOOL BOARD, Defendant-Appellee
    No. 50,988-CA
    Court of Appeal of Louisiana, Second Circuit.
    November 16, 2016

      RICHARD J. GALLOT, JR., Counsel for Appellants
    PROVOSTY, SADLER & deLAUNAY, APC By: Ronald J. Fiorenza, Stephen F. Butterfield, Counsel for Appellee
    Before BROWN, DREW, and MOORE, JJ.
   BROWN, CHIEF JUDGE.

|!Plaintiffs, Julius and Gloria Boston, on behalf of their minor son, Jordan, brought suit against defendant, Jackson Parish School Board, for damages, claiming negligent supervision. After a bench trial, the district court rendered a judgment in favor of defendant, finding no liability and dismissing the case. Plaintiffs filed the instant appeal. For the reasons set forth below, we affirm.

Facts

On February 8, 2012, P.E. Coach Greg Garner instructed Jordan and another student, Clayton Hampton, both ninth grade students at Jonesboro-Hodge High School, to move a table from the gym to the academic building. The tables had been set up in the gym for a science fair. The boys crossed the parking lot carrying the table, a distance of about 40 yards, and, upon reaching the academic building, Jordan held the door open for Clayton, who was to carry the table through the door. As Clayton was carrying the table through the door, the table slipped from his hands, landing on Jordan’s left big toe. Jordan was eventually diagnosed with a fractured left big toe.

On February 4, 2013, Julius and Gloria Boston filed a petition for damages against the Jackson Parish School Board, claiming defendant was liable for negligence in: (1) instructing students to engage in unsafe activities; (2) failing to provide adequate instruction and supervision; (3) instructing students to move furniture; (4) failing to properly supervise and monitor teachers; and (5) failing to implement policies and procedures [^relating to inappropriate activities for students, such as furniture moving. Plaintiffs sought damages for medical expenses, physical pain and suffering, emotional distress, loss of enjoyment of life, mental anguish, reasonable attorney’s fees, legal interest, and court costs.

After a bench trial on the merits, the court found in favor of defendant and dismissed plaintiffs’ claims with prejudice. The court stated in its oral reasons for judgment that asking students to move a table was not a breach of defendant’s duty to keep students safe while at school.

Discussion

A school board, through its agents and teachers, owes a duty of reasonable supervision over students. La. C.C. art. 2320; S.J. v. Lafayette Parish Sch. Bd., 09-2195 (La. 7/6/10), 41 So.3d 1119; Brammer v. Bossier Parish Sch. Bd., 50,220 (La.App. 2 Cir. 11/25/15), 183 So.3d 606. The supervision compelled is reasonable, competent supervision appropriate to the age of the children and the attendant circumstances. Brammer, 183 So.3d at 612. There must be proof of negligence in furnishing supervision and proof of a causal link between the insufficient supervision and the accident before liability can be levied upon a school board for failure to sufficiently supervise the wellbe-ing of students. Id. To impose such liability on the part of a school board, the risk of unreasonable injury must be foreseeable, constructively or actually known, and preventable if a requisite degree of supervision had been exercised. Id. Generally, teachers are obliged to use only that supervision and discipline required of a reasonably prudent person under the circumstances at hand. Id. Furthermore, constant supervision of all students is not possible, nor is it required, for educators to discharge their laduty to provide adequate supervision. Wallmuth v. Rapides Parish Sch. Bd., 01-1779 (La. 4/3/02), 813 So.2d 341.

Jordan testified that he and Clayton were able to easily carry the table across the parking lot without additional help. Clayton testified that he had been asked to move a table before and had done so without incident and that he did not need instructions from Coach Garner on how to hold the table. Coach Garner testified that no student had been injured moving a table in his more than 17 years of teaching, and he had students move tables in the past without incident.

The record reveals that there is no school policy preventing a teacher from asking students to perform routine tasks, such as moving furniture, while at school. The Jonesboro-Hodge High School Code of Student Conduct expects students to “be helpful and courteous” to any adult in the school, including teachers. The Code of Student Conduct also states, “Students will be expected to care for them assigned textbooks, furniture, and equipment,” which certainly could include moving the furniture as requested by a teacher.

This Court recently, in Bramrner, supra, found liability on the part of the school board for a teacher’s failure to investigate an incident of reported bullying during recess. The fourth grade student injured in that case reported to his teacher that a group of boys were bullying him on the playground. The teacher did not investigate the student’s allegations as required by school policy, and the reporting student was subsequently injured in a physical altercation with the other students.

14As previously stated, in the instant case there was no school policy that prohibited Coach Garner from having Jordan and Clayton move tables at the school. Additionally, the law requires the court to consider the age of the children involved and the attendant circumstances. Jordan and Clayton were high school students who would have known how to move a table. Clayton testified that he had moved tables before, and he did not need instructions on how to move a table.

Finally, the injury involved in this case still could have occurred had Coach Garner been personally supervising Clayton and Jordan while the two were moving the tables.

Conclusion

For the above reasons, we AFFIRM the district court’s judgment. Costs are assessed to plaintiffs.

      . The judgment rendered by Judge Fallin included Coach Greg Garner as a defendant in the case. However, plaintiffs' petition named only the school board as a defendant.


author: STONE, J.

text:
    STATE of Louisiana, Appellee v. J’son TURK, Appellant
    No. 50,990-KA
    Court of Appeal of Louisiana, Second Circuit.
    November 16, 2016

      LOUISIANA APPELLATE PROJECT By: Douglas Lee Harville, Counsel for Appellant
    JOHN SCHUYLER MARVIN, District Attorney Counsel, JOHN MICHAEL LAWRENCE, HUGO A. HOLLAND, JR., Assistant District Attorneys, Counsel for Appellee
    Before MOORE, GARRETT, and STONE, JJ.
   STONE, J.

| jThis criminal appeal arises from the 26th Judicial District, Webster Parish, the Honorable Parker Self, presiding. The defendant, J’son Turk, pled guilty to manslaughter in violation of La. R. S. 14:31 and was sentenced to 38 years at hard labor. J’son appeals, arguing that his sentence is excessive. For the following reasons, his sentence is affirmed.

FACTS

On August 27, 2014, the aunt of Omar Lott (“Lott”) found his partially decomposing body in a wooded area in Webster Parish, Louisiana. Lott, who had been missing for three days, had been shot six times. The autopsy report indicated Lott had been shot in the back, thigh, arm, and head while he was running away. Detectives learned that brothers J’son and Dylan Turk were among the last persons seen with Lott before his disappearance. Eventually, the brothers confessed that because Lott had previously stolen J’son’s gun, they lured Lott into a remote location under the pretense that he would be joining them in robbing a known drug dealer. When Lott arrived to participate in the robbery, J’son shot and killed Lott with a .45 caliber pistol. The brothers dragged the body into the woods in an attempt to conceal the crime.

J’son was charged with second-degree murder by an amended grand jury indictment. On October 12, 2015, after being advised of and waiving his rights, J’son entered a plea of guilty to manslaughter with no sentencing recommendation. A presentence investigation (“PSI”) report was ordered by the trial court. After reviewing the PSI, the trial court sentenced J’son, then 18 years old, to 38 years at hard labor. After a timely filed motion to | ¡¡reconsider sentence was denied by the trial court, this appeal ensued.

DISCUSSION

In his one assignment of error, J’son alleges the trial court erred by imposing an unconstitutionally harsh and excessive sentence. Specifically, J’son argues his age and social history merit a lesser sentence than that imposed. J’son contends the imposed sentence makes no measurable contribution to acceptable goals of punishment and amounts to nothing more than purposeful imposition of pain and suffering. He believes a sentence of significantly less than 38 years would provide him with the opportunity for rehabilitation and reentry into society as a productive member while he’s being punished for the convicted crime.

The state claims the trial court found a factual basis for the plea, had the benefit of a PSI report, and complied with the provisions of La. C. Cr. P. art. 894.1. Considering J’son planned the killing of Lott, lured him to a remote location under false pretenses without any justification, and received a considerable benefit from the plea agreement, the state contends the imposition of the 38-year sentence with the possibility of parole was within the trial court’s discretion.

At the time of J’son’s offense, La. R.S. 14:31 provided for imprisonment at hard labor for not more than 40 years for a manslaughter conviction.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show the |strial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record refleets he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La. 1983); State v. Johnson, 48,320 (La.App. 2d Cir. 11/20/13), 127 So.3d 988; State v. Watson, 46,572 (La.App. 2d Cir. 09/21/11), 73 So.3d 471. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Jones, 398 So.2d 1049 (La. 1981); Johnson, supra; State v. Ates, 43,327 (La.App. 2d Cir. 08/13/08), 989 So.2d 259, writ denied, 08-2341 (La. 05/15/09), 8 So.3d 581. The important elements which should be considered are J’son’s personal history (age, family ties, marital status, health, and employment record), prior criminal record, the seriousness of the offense, .and the likelihood of rehabilitation. There is no requirement that specific matters be given any particular weight at sentencing. State v. Taves, 03-0518 (La. 12/03/03), 861 So.2d 144; State v. Thompson, 50,392 (La.App. 2d Cir. 02/24/16), 189 So.3d 1139.

Second, a sentence violates La. Const. Art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 01-2574 (La. 01/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La. 1993); State v. Allen, 49,642 (La.App. 2d Cir. 2/26/15), 162 So.3d 519, writ denied, 15-0608 (La. 1/25/16), 184 So.3d 1289. A sentence is considered grossly disproportionate if, whén the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La. 01/15/02), 805 So. 2d 166; Johnson, supra; State v. Sims, 49,682 (La.App. 2d Cir. 02/27/15), 162 So.3d 595, writ denied, 15-0602 (La. 02/5/16), 186 So.3d 1161. To constitute an excessive sentence, a court must find the sentence makes no reasonable contribution to acceptable penal goals. State v. Griffin, 14-1214 (La. 10/14/15), 180 So.3d 1262.

Maximum or near maximum sentences are generally reserved for the worst offenses and offenders. State v. Cozzetto, 07-2031 (La. 02/15/08), 974 So.2d 665; Sims, supra. The trial judge is given wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Williams, 03-3514 (La. 12/13/04), 893 So.2d 7; Sims, supra. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Zeigler, 42,661 (La.App. 2d Cir. 10/24/07), 968 So.2d 875.

A substantial advantage obtained by means of a plea bargain is a legitimate consideration in sentencing. State v. Mendenhall, 48,028 (La.App. 2d Cir. 5/15/13), 115 So.3d 727; State v. Ross, 35,552 (La.App. 2d Cir. 02/27/02), 811 So.2d 176. Accordingly, where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence for the pled offense. State v. Givens, 45,354 (La.App. 2d Cir. 06/23/10), 42 So.3d 451, writ denied, 10-1584 (La. 01/14/11), 52 So.3d 902; State v. Germany, 43,239 (La.App. 2d Cir. 04/30/08), 981 So.2d 792; State v. Black, 28,100 (La.App. 2d Cir. 02/28/96), 669 So.2d 667, writ denied, 96-0836 (La. 09/20/96), 679 So.2d 430.

|fiAt the sentencing hearing, the trial court noted its review of the PSI report and the sentencing memorandum submitted by the state. The trial court reviewed letters from both Lott’s and J’son’s families. In the letters, J’son’s relatives, including his mother and aunt, requested that due to his admission of guilt and remorse, the court provide leniency. Lott’s relatives expressed the effect his murder and decomposing body had on the family and requested the maximum sentence.

J’son also made a statement in the PSI report. In the statement, J’son asserted Lott had been bullying him for a long time; he had taken money from J’son and was very violent toward him. J’son stated that “this is not something I wanted to do. I was forced to do it.” J’son also indicated that “I want to tell her [Lott’s mother] I’m sorry for what happened.” J’son expressed a desire to get his GED and to be a video game designer.

During the sentencing hearing, the trial court allowed J’son to make an additional statement for the record. J’son declared he “was fearing for [his] life” and was “trying to protect himself.” J’son maintained he was “very remorseful” for what he put the family through and stated he was sorry. J’son conceded he did not make a good decision.

The trial court considered J’son’s age, social history, and criminal background. At the time of sentencing, J’son was 19 years old, had been raised by his mother, and was not a victim of abuse. There were no drugs present during the crime; however, the court noted that J’son did admit to smoking synthetic marijuana. J’son completed the ninth grade but was expelled from school. He began working on his GED but had not obtained it. J’son had held only one job, this was his first felony, and he had no juvenile record.

| fiThe trial court took note of J’son’s claim he had been bullied and’robbed by the victim and was defending himself. However, the court was unimpressed with J’son’s self-defense argument because the alleged robbery occurred a year before, and furthermore, J’son shot Lott six times as Lott was running away. The trial court did consider the fact that J’son, his brother, and Lott, had conspired to commit a crime together but ultimately found nothing to justify or mitigate J’son’s actions.

In its oral reasons, the trial court reiterated the fact that after J’son killed Lott, the two brothers moved Lott from the road, rifled through his pockets, removed the cell phone and cash he had, and threw the phone in the water. The brothers left Lott in the woods for several days and went back to Shreveport. The court further noted that some time after the murder, J’son asked Lott’s girlfriend if she had seen him, although he knew exactly where Lott was. Finally, the court considered that Lott’s aunt found his decomposing body, which could only be identified by a tattoo, and that the family was not able to give Lott a proper burial.

The court contemplated its responsibility to the community and the fact that J’son took the law into his own hands, having no regard for human life. The court described the situation as extremely atrocious and was disturbed by the fact that the body was just left “out there.” Prior to sentencing J’son to 38 years at hard labor, the court noted its obligation to make sure the punishment fit the crime.

The record before us reveals an adequate factual basis for the sentence. The trial court considered J’son’s social, family, and criminal history; aggravating and mitigating factors; and recognized J’son’s remorse and young age in fashioning a sentence. We find no abuse of discretion in the trial court’s judgment. J’son’s plan of luring Lott to a location where he 17robbed him and shot him six times demonstrates his total disregard for human life. Likewise, his action in leaving Lott’s body to rot is quite disturbing. Even with the history between J’son and Lott, the trial court was within its discretion in concluding that no mitigating factors were shown to justify the shooting.

J’son received a substantial sentencing benefit from his plea bargain which did not adequately describe his conduct. For a second-degree murder conviction, J’son faced a life sentence without the benefit of probation, parole, or suspension of sentence. Even with J’son’s lack of a criminal history and young age, when the crime and punishment are viewed in light of the harm done to society, the imposed sentence, with the benefit of probation, parole, or suspension of sentence, does not shock the conscious or sense of justice.

CONCLUSION

For the above reasons, the sentence of J’son Turk is AFFIRMED.

      . J’son filed a timely pro se motion to reconsider sentence arguing that the imposed sentence was excessive due to his youth and lack of prior criminal record. J’son also argued that the imposition of his sentence “was motivated by the trial judge’s own hypothetical and assumed set of facts,” thus denying him his due process rights under the Fourteenth Amendment. Finally, J’son argued that the trial court engaged in conduct prejudicial to the expeditious administration of the business of the court. J'son’s motion to reconsider sentence was denied by the court on March 7, 2016.