author: KYZAR, Judge.

text:
    STATE of Louisiana v. Darrin Kashy DUHON aka Darrin Duhon
    17-19
    Court of Appeal of Louisiana, Third Circuit.
    06/13/2017

      Chad M. Ikerd, Louisiana Appellate. Project, P.O. Box 2125, Lafayette, LA 70502, (225) 806-2930, COUNSEL FOR DEFENDANT/APPELLANT: Darrin Duhon-
    Jeff Landry, Attorney General, Marty-L. White, Andrea Barient, Assistant Attorneys General, Louisiana- Department of Justice, P.O. Box 94005, Baton Rouge, LA 70804-9005, (225) 326-6200, COUNSEL FOR APPELLEE: State of Louisiana
    Court composed of Sylvia R. Cooks, Billy Howard Ezell, and Van H. Kyzar, Judges.
   KYZAR, Judge.

I,The' defendant, Darrin Kash Duhon, pled guilty to one count of manslaughter, a violation of La.R.S. 14:31, and two counts of attempted manslaughter, violations of La.R.S. 14:27 and La.R.S. 14:31. He was sentenced by the trial court to forty years at hard labor on the manslaughter conviction and eight years at hard labor on each count of attempted manslaughter, with the two eight year sentences to run concurrently with each other, but consecutively to the forty-year sentence. The defendant appeals his sentences. For the following reasons, we affirm.

DISCUSSION OF THE RECORD

The facts presented at the guilty plea proceeding reveal that the defendant and his wife lived in Breaux Bridge, Louisiana, next door to his wife’s grandmother, Mildred Hebert, and her aunt and uncle, Em-maline and Charlie Thibodeaux. On the morning of September 1, 2012, Mrs. Hebert and Mrs. Thibodeaux were in the kitchen while Mr. Thibodeaux was working in the yard. The defendant entered the home, retrieved a 9mm handgun from a closet, shot Mrs, Hebert twice, and shot Mrs. Thibodeaux multiple times. As Mr, Thibodeaux entered the home, the defendant also shot him." After shooting his victims, the defendant called 911 and then returned to his home and collected his nine-year-old son, who he drove to his brother’s job site and dropped off.

Thereafter, the defendant drove onto I-10 from the Breaux Bridge exit and began following a vehicle driven by Allison Spikes until she exited onto Ambassador Caffery Parkway in Lafayette. When Ms. Spikes pulled into the parking lot of the Ambassador Caffery Inn, the defendant parked next to her and ^attempted to carjack her car. He fled the scene when Ms. Spikes locked her t door and contacted the Lafayette Police Department on her cell phone. He was later apprehended by the Abbe-ville Police Department following a high-speed chase, after which he .was turned over to the St. Martin Parish Sheriffs Office.

The defendant was originally charged by bill of information with three 'counts of attempted first degree murder. Upon the death of one of the victims, the state dismissed one of'the attempted first degree murder charges, and a grand jury indicted the defendant on one count of first degree murder. Both charging instruments were filed under the same docket number. The defendant initially entered a plea of not guilty and not guilty by reason of insanity to the three counts of attempted, first degree murder- and filed a motion to form a sanity commission to determine his sanity both at the present and at the time of the offenses. However, after the grand jury indictment on the charge of first degree murder, the defendant withdrew his motion for a sanity commission. The defendant entered a plea of not guilty to the charge of first degree murder, but later changed his plea to not guilty and not guilty by reason of insanity. Thereafter, a joint motion for a sanity commission was filed by the state and. the defendant. The defendant later entered a guilty plea to one count of manslaughter and two counts of attempted manslaughter pursuant to a plea agreement and was sentenced as stated.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find there is one error patent concerning the withdrawal of the request for the appointment of a sanity commission.

Louisiana Code of Criminal Procedure Article 642 states:

|sThe defendant’s mental incapacity to proceed may be raised at any time by the defense, the district attorney, or the court. When the question of the defendant’s mental incapacity to proceed is raised, there shall be no further steps in the criminal prosecution, except the institution of prosecution, until the defendant is found to have the mental capacity to proceed.

On January 22, 2013, defense counsel filed a pleading entitled “Motion to Form Sanity Commission” in which he requested the appointment of a , sanity commission to examine the mental condition of the defendant both at the present time as well as at the time of the offenses. The motion indicated that the request was based on a defense investigator’s observation that the defendant showed characteristics of having a mental disorder. The trial court set the matter for hearing on February 7, 2013. The court minutes and the transcript from that day indicate that defense counsel withdrew the motion prior to the trial court’s ruling thereon and that the defendant was not present in court for the hearing. In requesting to withdraw the motion, defense counsel stated:

Your Honor, the Public Defender’s Office represents Mr. Duhon, It is set today for a Motion for Your Honor, that motion was filed a while back when Mr. Duhon was originally arrested for three (3) counts of attempted murder. One of the alleged victims subsequently died and he got indicted this past week for first .degree murder. So in light of-that, we are going to withdraw the motion at this time because it is a whole new ball game with the new charge. I believe that matter is going to be set for an arraignment later .this month and we will determine if and when we will re-file the Sanity Commission at that time.

The appointment of a sanity commission is only required when- the trial court finds that there are reasonable grounds to doubt the mental capacity of a defendant to proceed to trial. La.Code Crim.P. art. 643. In State v. Normand, 04-840, pp. 3-4 (La.App. 3 Cir. 12/15/04), 896 So.2d 98, 100, wit denied, 05-231 (La. 5/6/05), 901 So.2d 1094, this court stated as follows:

The appointment of a sanity commission “is not a perfunctory matter or a ministerial duty of the trial court nor is it guaranteed to every accused in every case.” State v. Nix, 327 So.2d 301, 323 (La.1975); State v. Sepulvado, 93-2692 (La. 4/8/96), 672 So.2d 158. The burden of proof lies with the defendant. The defendant must show “by a clear preponderance of the evidence reasonable grounds for the trial judge to believe he is mentally deficient.” State v. Cyriak, 96-661, p. 8 (La.App. 3 Cir. 11/6/96), 684 So.2d 42, 47. Moreover, “[t]he fact that the defendant’s capacity to proceed is called into question does not, for that reason alone, require the trial court to order a mental examination of the defendant.” **4 State v. Lott, 574 So.2d 417, 424 [ (]La.App. 2 Cir.), writ denied, 580 So.2d 666 (La.1991), affirmed after remand, 27,849 (La.App. 2 Cir. 4/3/96), 671 So.2d 1182. The trial court has great discretion in ruling on a determination of competency, and its decision will not be overturned on appeal absent an abuse of discretion. State v. Comeaux, 514 So.2d 84 (La.1987); State v. Lowenfield, 495 So.2d 1245 (La.1985).

We find that the trial court erred in failing to specifically rule on the defendant’s January 22, 2013 motion to appoint a sanity commission contesting the defendant’s capacity to proceed before allowing counsel to withdraw the motion.

In State v. Tyler, 11-1123 (La.App. 3 Cir. 5/9/12), 89 So.3d 510, writ denied, 12-1314 (La. 11/30/12), 103 So.3d 364, the defendant claimed on appeal that the trial court erred in allowing defense counsel to withdraw a motion to appoint a sanity commission as it was a prohibited step in furtherance of the prosecution. The trial court had signed an order appointing a sanity commission, but the defendant had not yet been examined. Although the contradictory hearing on the motion was scheduled, the motion to request a sanity commission was withdrawn by defense counsel. This court found merit to the defendant’s claim, stating:

Louisiana Code of Criminal Procedure Article 643 requires the trial court order a mental examination of Defendant when it has reasonable ground to doubt Defendant’s mental capacity to proceed. Louisiana Code of Criminal Procedure Article 644 requires the court appoint a sanity commission to examine and report on the mental condition of Defendant within seven days after a mental examination is ordered. The examination was ordered in the present case, indicating the trial court found reasonable ground to doubt Defendant’s capacity to proceed. See State v. Strain, 42,809 (La.App. 2 Cir. 12/5/07), 972 So.2d 1184, and State v. Nomey, 613 So.2d 157 (La. 1993). Withdrawal of a motion to appoint a sanity commission has been found to be a further step in the prosecution which improperly removes the ultimate decision of competency from the trial court. State v. Carney, 25,518 (La.App. 2 Cir. 10/13/95), 663 So.2d 470, Strain, 972 So.2d 1184, State v. Darnell, 43,048 (La.App. 2 Cir. 8/13/08), 988 So.2d 870. Thus, we find allowing the case to move forward in the absence of a determination that Defendant had the capacity to proceed was legal error.

Id. at 513-14.

Unlike the facts in Tyler, the trial court here had not yet appointed a sanity commission, and thus had not yet ruled on whether the defendant had presented reasonable grounds to doubt his mental capacity to proceed. It is further noted that the basis for the initial motion for a sanity commission was a broad, non-specific assertion that the defendant showed “characteristics of having a mental disorder[,]” which were observed by defense counsel’s investigator. Accordingly, the question becomes whether the trial court should have determined whether the defendant was competent to proceed or whether his request for the sanity commission was without merit, rather than simply permitting defense counsel to withdraw the motion outside of the presence of the defendant.

In State v. Carney, 25,518, pp. 4-5 (La. App. 2 Cir. 10/13/95), 663 So.2d 470, the court, in addressing the trial court’s role relative to issues of a defendant’s capacity to proceed, stated the following:

“Due process and our statutory law require that the issue of the defendant’s mental capacity to proceed shall be determined by the court.” [State v.] Rogers, [419 So.2d 840, 843 (La. 1982)]. “This cardinal principle ... prohibits [the court] from committing the ultimate decision of competency to a physician or anyone else.” Id. Furthermore, the above articles, when read in pari mate-ria, implicitly require the trial court to rule on the defendant’s motion and determine whether a “reasonable ground to doubt the defendant’s mental capacity” exists before proceeding further in the prosecution. Withdrawing a motion to appoint a sanity commission is a further step in the prosecution. Also, permitting such a motion to be withdrawn takes the ultimate decision of competency away from the court. Thus, although a mental examination may not be required in every case where the issue of mental capacity is raised, State v. Wilkerson, 403 So.2d 652 (La. 1981); State v. Folse, 623 So.2d 59 (La.App. 1st Cir. 1993), the record must reflect that the trial court made a determination of whether or not reasonable grounds exist to doubt the defendant’s capacity to proceed.

| r,After finding that the defendant had sufficiently raised the issue of his capacity to proceed following his indictment, the court, in reversing the defendant’s conviction, stated as follows:

After the defendant raised the issue, the trial court allowed further steps in the prosecution to occur without making a determination of the defendant’s mén-tal capacity to proceed to trial. When defense counsel withdrew the motion to appoint a sanity commission, the defendant was not present and the trial court did not observe or question him about his mental capacity. At the very least, the record should reflect that the trial court should have personally observed the defendant and questioned him as to his understanding of the proceedings to determine if a “reasonable ground” existed to doubt his mental capacity. Further, as noted by the United States Supreme Court, it is contradictory to argue that a defendant may be mentally incompetent, and yet he may knowingly or intelligently waive his right to have the court determine his mental capacity to stand trial. Pate [v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966)], State v. Harris, 406 So.2d 128 (La. 1981).
Once a motion to appoint a sanity commission has been made, it takes on a life of its own as nothing further can happen without resolving the issue of the defendant’s mental capacity. An attorney independently waiving or withdrawing the motion is an insufficient resolution of the issue. The trial court, not the defense attorney, is mandated to determine the defendant’s mental capacity to proceed and rule on the motion. LSA-C.Cr.P. Arts. 642 and 643.

Id. at 473.

Accordingly, we find that the trial court erred in allowing the withdrawal of the defendant’s motion to appoint a sanity commission without first specifically ruling on the motion. However, unlike in Carney, we find that the trial court specifically considered the issue when it denied a similar motion contesting the defendant’s capacity, which was later filed by the defendant’s wife, allegedly on his behalf.

The motion, which was filed on August 11, 2015, requested the appointment of a sanity commission to determine both the defendant’s mental capacity to proceed and his sanity at the time of the offenses. Court minutes from that datel7reflect that a hearing whs held to consider, among other issues, whether the defendant had the mental capacity to proceed. The defendant, who was present and represented by counsel, testified in court, and at the close of the hearing, the trial court denied the motion in writing. In doing so, the trial court specifically determined that there were no reasonable grounds to doubt the defendant’s competency to proceed. This matter was further laid to rest on August 13, 2015, when defense counsel specifically refus'ed in open court to join in the motion.

In addition to addressing the defendant on August 11, 2015, the trial court had the benefit of having him before it on numerous other occasions when his competency to proceed' was discussed. On July 29, 2013, after the withdrawal of the initial motion to appoint a sanity commission, defense counsel informed the trial court that he would be filing another motion for a sanity commission to determine the defendant’s sanity at the time of the offenses. On September 30, 2013, defense counsel, in the presence of the defendant, informed the trial court that he had filed a motion for a sanity commission to determine the defendant’s sanity solely at the time of the offense. In doing so, defense counsel stated, “[w]e are conceding that he is competent to proceed. The motion was very specific on that.” Defense counsel further' indicated that the defendant wished to change his plea on the charge of first degree murder from not guilty to not guilty and not guilty by reason of insanity. In light of this change, the state agreed with the appointment of a sanity commission and agreed to submit an order for the trial court’s signature.

The October 17, 2013 order appointed Dr. Michelle Garriga, M.D. and Dr. Rafeal Salcedo, Ph.D. to determine the defendant’s sanity at the time of the offenses. Court minutes dated August 10, 2015 and November 2, 2015, indicate that defense counsel informed the trial court that the defendant had been found ^competent to stand trial by these experts. The defendant’s capacity to proceed is further reflected in Dr. Garriga’s January 20, 2014 report and in Dr. Salcedo’s November 13, 2015 report, which references his November 4, 2013 finding that the defendant was competent to stand trial.

The defendant’s competency was also addressed at the January 22, 2016 hearing on defense counsel’s motions to withdraw as counsel and to continue the hearing. During the hearing, the trial court read from Dr. Salcedo’s November 4, 2013 report, including the finding that the defendant was competent to stand trial. The state further relied on Dr. Garriga’s October 11, 2015 and Dr. Salcedo’s November 13, 2015 reports as part of its factual basis during the defendant’s February 12, 2016 guilty plea proceeding. Although these reports address-the defendant’s mental .state at the time of the commission of .the offense, Dr. Salcedo, as stated previously, referenced his earlier finding that the defendant was competent to stand trial. During this hearing, a separate trial judge found, after an extensive Boykin examination, that the defendant acted knowingly, intelligently, and voluntarily in waiving his constitutional rights before accepting his guilty plea. Thus, the trial judge acknowledged that the defendant was, in fact, competent to enter his plea. ■

In State v. Bonicard, 98-665 (La.App. 4 Cir. 8/4/99), 752 So.2d 184, writ denied, 99-2632 (La. 3/17/00), 766 So.2d 324, one of the two physicians who examined the defendant testified he was competent to proceed, and the parties stipulated that the remaining physician’s testimony would be the same. After the matter was submitted, the trial court set the case for trial without specifically stating that it found the defendant competent. The fourth circuit held that the trial court’s setting of a trial date indicated that it found the defendant competent to proceed. Additionally, the court minutes and the docket master both indicated the ^defendant was found competent. The instant case presents an even stronger rational for our conclusion in that the trial court specifically determined that the defendant had the mental capacity to proceed at the August 11, 2015 hearing.

Accordingly, while we conclude that it was error for the trial court to allow defense counsel to withdraw the motion to appoint a sanity commission at the hearing on January 22, 2013, we find that error to be harmless in light of the trial court’s denial of the August 11, 2015 motion for a sanity commission. Given this ruling, together with the overwhelming evidence in support thereof, we find that there can be no doubt that the defendant was competent during the entirety of these proceedings. Therefore, while this court concedes the error of the trial court, we find this to be a harmless error in light of'the trial court’s subsequent actions.

ASSIGNMENTS OF ERROR

The defendant alleges two errors on appeal:

1. The trial court erred by sentencing [the defendant] to forty-years [sic] at hard labor for Manslaughter and not fully considering the mitigating factors in this case.
2. The trial court erred by making the sentence for one charge consecutive to the others-when all three charges resulted from one act of violence.

In his first assignment of error, the defendant argues that the trial court erred in sentencing him to the maximum forty-year sentence for manslaughter without fully considering the mitigating factors in his case, such as his mental illness, his documented pleas for help with his mental issues, his lack of a criminal record demonstrating violence toward people, and the lack of evidence demonstrating that he was wicked or malicious in his normal life and interactions. He noted that the only evidence of prior violence arose from a protective order obtained by his step-father, after he evicted the defendant and his family from a home owned by his mother after her death. The defendant also questions the trial court’s failure to 11(lmention the mitigating fact that he immediately called 911 to obtain help for the victims and its conclusion that his attempt to ask directions from a motorist was, in fact, an attempted carjacking. The defendant claims that there is nothing in the record to establish that the car at issue had a Mississippi license plate or any other feature that would indicate that the driver was from another state and would not be a good candidate to provide directions.

In his second assignment of error, the defendant contends that the trial court erred in ordering the sentences for attempted manslaughter to run consecutively, rather than concurrently, to the manslaughter sentence, as these three offenses resulted from a single incident. We will address these two assignments together.

“[Mjaximum sentences are generally reserved for the worst offenders and the worst offenses.” State v. Fallon, 15-1116, p. 6 (La.App. 3 Cir. 4/6/16), 189 So.3d 605, 609. The standard of review applicable to a claim of excessive sentence was set out by this court in State v. Barling, 00-1241, 00-1591 p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331:

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

In State v. Frazier, 14-1132, pp. 14-15 (La.App. 3 Cir. 3/4/15), 157 So.3d 1266, 1275-76 (alteration in original), writ denied, 15-657 (La. 2/26/16), 187 So.3d 467, this court stated:

Even though a penalty falls within the statutory sentencing range, it may still be unconstitutionally excessive:
In deciding whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals, an appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.”
State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La. 5/30/03), 845 So.2d 1061 (citations omitted). “[T]he trial judge need not articulate every aggravating and mitigating circumstance outlined in [La.Code Crim.P.] art. 894.1[;] the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant.” State v. Smith, 433 So.2d 688, 698 (La.1983) (citing State v. Ray, 423 So.2d 1116 (La.1982); State v. Keeney, 422 So.2d 1144 (La.1982); State v. Duncan, 420 So.2d 1105 (La.1982)). “The appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed.” La. Code Crim.P. art. 881.4(D).

At the sentencing hearing, the state introduced the victim impact statements and the sanity commission reports of Drs. Sal-cedo and Garriga into evidence. The defense presented the testimony of several witnesses at the hearing.

Bobbie Leblanc, who met the defendant when he began living in her home with her daughter, shortly after his discharge from the Marines, testified that he | ^experienced issues from his time in Iraq. These included flashbacks to scenes he witnessed, including the deaths of children; dealing with the death of a close friend; his fear of sudden noises; and his need to sleep with the door open and a light on. Ms. LeBlanc testified that loud noises caused a “wild look” to come over the defendant and that she spent twenty minutes trying to calm him down from one such incident. She testified that the defendant was unable to obtain treatment from the Veterans Administration (VA) because he did not have an honorable discharge. Instead, she stated that he self-medicated by taking Adderall and using marijuana and that he started using alcohol extensively when he quit smoking marijuana in order to pass urine tests.

Ms. LeBlanc testified that she was not surprised by the shootings. She said that although she tried to help him, the defendant had nowhere to turn, and nobody would help him. On cross-examination, she stated that he was not violent toward anyone in her family except her daughter. She stated that there were a few fights between them where she had to intervene.

The defendant’s wife, Robyn Duhon, testified that they were living in a barbeque house behind the victims’ home at the time of the incident. She stated that on the morning of the incident, a noisy weed eater and blower were being operated outside of their home and that a rock hit the window. Mrs. Duhon testified that the defendant, who had been sleeping, got up and “walked out like in a daze.” When he returned home, she stated that he was running, and he said to his son, “Come on, Bennett, let’s go, let’s go.”

Mrs. Duhon testified that when he grabbed her purse to get her keys, he held her down and put his hands on her neck, and “[s]trangled” her, when she questioned his actions. She testified she did not believe that he was in his right mind. at that moment. After he released her, she said that the defendant took his 113son and left in her car. On cross-examination, Mrs. Duhon testified that the defendant dropped his son off at his brother’s job site without harming him. She responded affirmatively when asked if the defendant knew what he did was wrong.

During questioning by the trial court, Mrs. Duhon testified that she did not “feel that in his heart [the defendant] intended to hurt anyone that day[,]” and she believed he had a flashback and “was not all there.” With regard to the weapon used in the incident, Mrs. Duhon testified that the defendant’s firearms were kept in a closet in her grandmother and uncle’s home because he was prevented from possessing firearms as a result of a protective order obtained against him by his step-father. She testified that when she entered the kitchen after the shooting, she saw the defendant’s black gun on the table.

The defendant testified that he entered the Marines straight out of high school and provided details of his training prior to his Iraq deployment. While in Iraq, he stated that he drove trucks for an infantry platoon on the front lines. There, he said that he witnessed many killings. After the war, he learned that a close friend of his was killed in Iraq, The defendant testified that he named his son after this friend.

During the war, the defendant testified that he suffered from anxiety, depression, and the inability to sleep, but he had “río way to get help.” After returning stateside to his duty station, the defendant testified that he thought he was “all right” because he was back home. Although he felt that he had a problem, he said that he did not seek help, choosing to self-medicate with marijuana instead. He stated that the marijuana helped with his anxiety, but it eventually caused him to fail a drug test, resulting in his discharge. The defendant testified that he was not offered any rehabilitation and that his later attempts to obtain treatment from the VA were rejected because his discharge was “other than honorable.” He said | uthat he had no medical insurance at that time and that he tried unsuccessfully for years to get his discharge upgraded.'

The defendant explained that the restraining order against him was brought by his step-father, Wilmer Hebert, after he evicted the defendant and his family from property they were'fighting over af-‘ ter his mother’s death. When asked what caused his step-father to secure a restrain-' ing order, the defendant explained that they “went over there and [were] trying to' get him to let us stay and settle and he didn’t want [to.]” He stated that Mr. Hebert told him that he would have the defendant arrested if he went to the property again, and he subsequently obtained the restraining order against him. The defendant testified that he owned a shotgun and a 9mm Ruger, which he purchased after he was threatened by an employee he had fired.

The defendant described his relationships with the two female victims as good. He said he did not talk to Mi1. Thibodeaux much because “he was never around.” Other than a DWI, the defendant had no criminal record. When asked why he shot the victims, he said, “I have no idea, sir. Mental illness,” He testified that he did not recall the shootings, but that he remembered waking up in a panic in fear for his life because he heard a noise. He said that he instinctively ran to get his pistol. The defendant testified that, the next thing he recalled was calling 911, reporting that he shot some people, and providing the Breaux Bridge address. He said that he then drove to his childhood home in Abbe-ville, where “[he] felt safe.” This was where he was arrested. When asked if he; attempted a carjacking, hé said that he remembered trying to ask some people for directions, but he had no gun and did not ask anyone for-their vehicle.

On cross-examination, the defendant testified that he did not shoot his wife and son because he left his gun in the house. He stated that- he realized what had |,¿happened when he went back into the house and “Mr. Charlie said call 911 ... And I called 911 because I had shot some people.”'After the shooting, the defendant admitted that he forced the car keys from his wife and then took his son to his brother’s job site, but could not explain why, responding, “I have no idea, sir.” He affirmed that he wanted his son to be safe and that he left to avoid arrest. Although he admitted to using marijuana, Adderall, and also Lortab (which he was prescribed due to a job injury), he denied using or taking any such substance on the day of or the day prior, to the shootings.

After dropping his son off, the defendant explained that he was heading to his childhood home after the shootings. He stated that he tried to ask for directions because he was dazed, confused, and unsure of where he was, being unfamiliar with Breaux Bridge. He said that he followed a car off the interstate and asked the occupants, whom he believed to be a man and a woman from Mississippi, for directions. When asked why 'he would ask someone from Mississippi for directions in Louisiana, he replied, “I wasn’t in my right state of mind.” The defendant testified that police began following him when he reached the main highway in Abbeville and arrested him when he arrived at his childhood home. The defendant said he had no idea why he left the gun at the scene of the incident, stating, “Wasn’t in my right state of mind. I mean I wasn’t trying to hide it.”

Dr. Marc Zimmerman, an expert in the field of psychology, testified that he reviewed the defendant’s military records and, over the course of four hours, interviewed and performed tests on the defendant. He concludéd that the defendant was suffering from Post-Traumatic Stress Disorder (PTSD) brought on by his service in Iraq. He stated that Ms. Leblanc’s testimony regarding the defendant’s behavior was consistent with his findings. Dr. Zimmerman confirmed that someone getting up out of a sound sleep, entering a separate home, grabbing a |1ñgun,' and shooting three people is consistent with someone suffering from'PTSD. He confirmed that it is possible to develop PTSD from being incarcerated and that the defendant could have developed this disorder from his' time in jail; however, he said that this would not explain the defendant’s actions before he went to jail.

Dr. Zimmerman had no explanation for why the defendant would shoot the three victims, but not shoot his wife and son. He-stated that what happened was “an illogical and irrational thing.” He said that the defendant told him that he was afraid he was going to be harmed by someone and when he heard someone say,' “Call 911,” it brought him back to- reality. Based on what the defendant told him, Dr. Zimmerman stated that it was his opinion that the defendant could not distinguish between right and wrong at the time of the incident. With regard to Dr. Salcedo’s report, which concluded that, the defendant was capable of distinguishing between right and wrong and that he was legally sane at the time of the offenses, Dr. Zimmerman said that he did not know what Dr. Salcedo based his findings on and that the defendant’s presentation may have been different when he saw him. His answer was the same with regard to Dr. Garriga’s report, which reached the same conclusion as Dr. Salcedo’s. With regard to Dr. Garriga’s assertion that the defendant appeared to be psychotic at the time of the offenses, but that the psychosis was consistent with a substance induced psychosis, rather than PTSD or another mental illness, Dr. Zimmerman testified that he was not aware of any instance where a diagnosis of PTSD was based on drug use.

After ‘ hearing the ■ evidence, the trial court summarized its reasons for sentencing the defendant. It noted that upon the death of Mrs. Hebert, the defendant faced the death penalty or life imprisonment for first degree murder and fifty years on each of the two counts of attempted first degree murder. The trial court then recounted the details of the shootings of the three elderly victims, noting li7that- the defendant purposely emptied his clip as the victims lay on the kitchen floor and that he told the investigating officer that he would have emptied another clip if he had had it.

In addressing whether the defendant had a mental breakdown or anger issues, the trial court stated that it felt that the defendant’s, actions were evil. It then referenced the reports of Drs. Salcedo and Garriga, noting Dr. Garriga’s finding that the defendant’s psychosis was substance induced, rather than mentally induced, which is necessary to qualify for the insanity defense.

The trial court then detailed the defendant’s actions following the shootings, finding them to be “calculated well throughout.” It stated that even if the defendant suffered from some type of disorder, it did not find, “as [Dr. Zimmerman] did,” that it affected the defendant’s understanding of what he did. The trial court then reviewed in detail the sentencing guidelines contained in La.Code Crim.P. art. 894.1(A) and (B) and specifically found that all of the factors favoring the imposition of imprisonment were applicable to the defendant’s crimes.

With regard to mitigating circumstances, the trial court stated:

This Court has searched long and hard for any mitigating factors on behalf of Mr. Duhon. I have been unable to find any mitigating factors except he has two children, he has a wife, he served in the military but he was discharged due to his use of drugs, which he continued to use during this period of time and up [till] the time he murdered Mrs. Hebert and he shot Mr. and Mrs. Thibodeaux.
His criminal history shows in 2010 he was found guilty of Operating a Vehicle While Intoxicated. However, any mitigating factors he may have is [sic] overwhelmed by all of the earlier stated aggravating factors.

The record indicates that the trial court was fully aware of the potentially mitigating factors concerning the defendant’s mental issues, his history of non-violent crime (DWI), the fact that the protective order against him had resulted from a family-property dispute, and the lack of malice in his “normal life.” 1 ^Acknowledging that the defendant might suffer from some disorder, the trial court chose to rely on the conclusions reached by Drs. Garriga and Salcedo, rather than the opinions of Dr. Zimmerman.

As for the defendant’s immediate call to obtain help for the victims, the defendant testified that his call to 911 was in response to a request by Mr. Thibodeaux; thus, it was not entirely of his own volition. Additionally, the defendant’s assertion that the record does not establish that Ms. Spikes’ car had a Mississippi license plate or any feature identifying it as an out-of-state vehicle was refuted by his own testimony that the couple in the car he approached were from Mississippi.

In State v. Plauche, 09-400 (La.App. 3 Cir. 1/6/10), 32 So.3d 852, writ denied, 10-302 (La. 9/24/10), 45 So.3d 1070, this court upheld the imposition of the maximum sentence for manslaughter under circumstances where the defendant shot his wife in the neck two weeks after he learned she was having an affair and failed to offer her any aid after the shooting. In mitigation, the trial court noted that the defendant had no history of criminal activity, the circumstances were unlikely to reoccur, and it noted that imprisonment would impose excessive hardship on the defendant’s children. The trial court concluded that although the jury had convicted the defendant of manslaughter, the facts were more akin to a second degree murder, the crime with which he was originally charged.

In State v. Soriano, 15-1006 (La.App. 3 Cir. 6/1/16), 192 So.3d 899, this court held that the imposition of the maximum sentence for manslaughter was not excessive where the defendant, a first felony offender, who was cooperative after his arrest, stabbed the victim once and, after the victim retreated, chased him down and stabbed him again. The defendant’s claim of self-defense was rejected by the 119trial court, which concluded that there was no explanation for the defendant’s failure to retreat and his act of chasing the victim and stabbing him again.

In the present case, we find that the trial court did not abuse its discretion in imposing the maximum forty-year sentence. The entry of the guilty plea to manslaughter benefitted the defendant substantially because he faced the death penalty or life imprisonment without the benefit of parole, probation, or suspension of sentence for first degree murder. This was a heinous crime against defenseless, elderly victims, and, as the trial court held, two experts concluded that the defendant was capable of distinguishing right from wrong at the time of the shootings. Accordingly, we affirm the defendant’s sentence for manslaughter, finding that the trial court did not abuse its discretion by imposing a forty-year sentence for the crime.

Turning now to the defendant’s claim that the trial court erred in ordering his two eight-year sentences to run consecutively to his forty-year sentence, we note that La.Code Crim.P. art. 883 provides in pertinent part:

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively.

Although concurrent sentences are preferred in the imposition of sentences for offenses based upon a common scheme or plan, the trial court has the discretion to impose consecutive sentences provided “that the trial court articulates particular justification for doing so at sentencing.” State v. Richardson, 16-107, p. 30 (La.App. 3 Cir. 12/28/16), 210 So.3d 340, 360. The factors upon which a trial court may base consecutive sentences include “the offender’s past criminality, violence in the charged crimes, or the risk he or she poses to the general safety of the community.” State v. Thomas, 98-1144, p. 1 (La. 10/9/98), 719 So.2d 49, 49.

Isnln the present case, the trial court ordered the two eight-year attempted manslaughter sentences to run concurrently, but ordered that they run consecutively to his forty-year manslaughter sentence. When defense counsel objected to the imposition of consecutive sentences, the trial court stated:

Mr. Legros, when somebody walks into a kitchen and kills a ninety year old woman, I have problems with that. Then turns around and shoot[s] a seventy-two year old man and a sixty-nine year old woman and makes the statement to the police that he emptied his clip. Then he goes in his house and batters his wife, brings his kid somewhere to be safe, gets on the highway and tries to carjack a young woman for her car, because now he knows the police [are] looking for him, and he darts off to Abbeville.

The reasons given by the trial court amply support the imposition of consecutive sentences. Further, even in the absence of articulated reasons for imposing consecutive sentences, “the record as a whole can be considered in determining whether consecutive sentences were justified.” State v. Blunt, 16-220, p. 34 (La.App. 3 Cir. 9/28/16), 201 So.3d 358, 378. Thus, the substantial benefit the defendant received as a result of the plea bargain can be considered and further supports the imposition of consecutive sentences. Accordingly, we affirm the defendant’s sentences, finding that the trial court did not abuse its discretion in ordering the defendant’s sentences for attempted manslaughter to run consecutively to his sentence for manslaughter.

DISPOSITION

For the foregoing reasons, the defendant’s convictions and sentences are affirmed.

AFFIRMED.

      . Thé defendant was identified as Darrin Kashy Duhon in the November 2, 2012 Bill of Information, charging him with three counts of attempted first degree murder, and the February 1, 2013 Bill of Indictment, charging him with first degree murder. In various court documents, the defendant was also identified as Darrin Duhon, Darrin K, Duhon, and Darrin Kash Duhoii. Based on a September 17, 2013 .Motion for .Bond Reduction,, which was filed by the defendant in proper 'person, we will identify the defendant as Darrin Kash Duhon.

      . The defendant’s plea agreement was "open ended” as to his sentence for manslaughter. The defendant’s plea agreement as to the attempted manslaughter charges was "capped” at fifteen years. The decision of whether to run the sentences concurrently or consecutively was left up to the court, but the agreement required that the combined sentences must not exceed fifty years. The plea agreement expressly reserved the defendant's right to appeal the excessiveness of any sentence imposed.


source: Caselaw Access Project

author: WELCH, J.

license: Public Domain

text:
    Charles R. SALEMI v. TMR EXPLORATION, INC., Park Exploration, Inc., and Vitol Resources, Inc., et al.
    NUMBER 2016 CA 0567
    Court of Appeal of Louisiana, First Circuit.
    JUNE 13, 2017
    See also 2017 WL 2558323.

      Brent K. Delee, Kirby J. Guidry, Baton Rouge, Louisiana, Attorneys for Appellant, Plaintiff—Charles R. Salemi
    Randall S. Davidson, William Lake Hearne, Jr., Shreveport, LA and Scotty E. Chabert, Jr., Baton Rouge, Louisiana, Attorneys for Appellee, Defendant—Raymond J. Lasseigne
    BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.
   WELCH, J.

|2The plaintiff/appellant, Charles J. Sale-mi, appeals a trial court judgment sustaining a peremptory exception raising the objection of prescription filed by the defen-dantyappellee, Raymond J. Lasseigne (“Lasseigne”). The trial court’s action resulted in the dismissal of the plaintiffs claims against Lasseigne with prejudice. For the reasons that follow, we reverse the judgment of the trial court.

FACTUAL BACKGROUND

. Salemi is the owner of a certain .tract of immovable property described as being located in the South 2/3 of Lot 5, Section 93, Township 7 South, Range 10 East, Parish of West Baton Rouge (“Salemi property”). Salemi filed suit seeking damages for drainage of minerals sustained as the result of the placement of a bottom hole location of a producing well within 330 feet of his property line, in violation of a state regulation. As set forth in. detail below, Salemi has asserted claims in contract against various lessees of his property for failing to take any action to -prevent the drainage as required under the leases. Additionally, Salemi has asserted a claim for damages against the initial operator, its corporate president, and two successor operators for their respective roles in the drilling and operation of the well. It is the claims against the corporate president that are the subject of this appeal.

In his petition, Salemi alleged that between the years of 2005 and 2011, he granted three mineral leases on his property. Salemi executed a mineral lease of his property on December 9, 2005, in favor of TMR Exploration, Inc. (“TMR”), a Texas corporation. The first lease expired on December 9, 2008, and Salemi executed a second lease on the property in favor of TMR, which became effective on December 9, 2008. Later, on October 24, 2011, Salemi executed a third lease in favor of Park Exploration, Inc. (“Park”), formerly known as TMR Energy, LLC. |aAccording to the allegations in Salemi’s' petition, the three lessees were subsequently subject to various partial assignments and/or subleases.

Salemi alleged that on May 15, 2007, TMR transferred all or part of its interest in the 2005 lease to TMR Energy (now Park Oil & Gas, LLC following a name change). Then, one-day after divesting itself of the lease, on May 16, 2007, TMR filed an application, for a permit to drill for minerals in Section 93, Township 7 South, Range 10 East. TMR’s permit application is alleged to have erroneously identified “A. Wilbert’s Sons, LLC” as the sole owners of all property located in Section 93, Township 7 South, Range 10 East. On May 18, 2007, a permit to drill the well designated as the‘“A. Wilbert’s Sons LLC, 93 No. 1” was issued by the Louisiana. Commissioner of Conservation (“Commissioner”).- -

TMR filed an amended permit with the Commissioner in June of 2007, identifying the proposed bottom hole location of the well at certain proposed coordinates; however, ultimately the bottom hole location of the well was completed at a location .underneath property adjacent to the Salemi property and within 330 feet of Salemfs property line. The property adjacent to.the Salemi property is owned by various individuals who trace their ownership interests to the Successions of Peter Hill and Elnora Johnson Hill (the “Hill property”). The Hill property owners filed a separate action captioned Calvin J. Hill, et al. v. TMR Exploration, Inc, (“Hill stiit”) for subsurface trespass, asserting that the bottom hole location was placed underneath their property without their knowledge or permission. See Hill v. TMR Exploration, Inc., 2016-0566 (La. App. 1st Cir. 6/13/17), 223 So.3d 556, 2017 WL 2558323.

|/The well began production on January 3, 2008, with TMR in the role of operator. On July 1, 2010, TMR ceased to be the operator of the well after an amended permit to drill was issued designating Park as the second operator of the well. Park, in turn, assigned its rights to a third operator, Vitol Resources, Inc. (“Vitol”), which was designated as the third operator of the well in an amended permit, effective December 1, 2012. Salemi alleged that he only discovered that the bottom hole location of the well was less than 330 feet from his property line on August 15, 2013, when a surveyor, Cletus Langlois, delivered a plat to Salemi showing the bottom hole location of the well 258 feet north of the north line of the Salemi property.

Salemi filed his original petition on July 3, 2014. The petition asserts an action sounding in contract against the lessees, and an action sounding in tort against TMR, Park, and Vitol in their capacities as operators of the well. Salemi maintained that the well’s location within 330 feet of his property creates a presumption that the well was draining minerals from beneath the property. He further asserted that under Louisiana Department of Natural Resources, Office of Conservation Statewide Order No. 29-E, no permit can be issued for the drilling of a well whenever a well is located within 330 feet of a property owner’s property line without the formation of a compulsory unit. In this instance, such a compulsory unit would include the Salemi property.

Salemi’s petition asserted that TMR, Park, and/or Vitol were liable for intentionally and/or negligently placing the bottom hole location of the well within 330 feet from his property line. The petition specifically alleges that TMR should have known or is presumed to know the location of the Salemi property because |fiTMR had entered into the lease with Salemi as early as 2005 for the same property. With regard to his claims against the lessees, Sa-lemi contended that the leases imposed a contractual obligation on the lessees to protect Salemi from drainage caused by a well located on the adjacent property, and sought cancellation of said leases.

At issue in the instant appeal are allegations in the petition against defendant, Raymond J. Lasseigne, the president of TMR, the entity that drilled the well and was the first operator thereof. Relevant to the issues under consideration is TMR’s status as a Texas corporation authorized to transact business in Louisiana. In particular, Salemi alleged that Lasseigne directed and/or coordinated the operations of TMR. Further, Salemi alleged that Lasseigne, a petroleum engineer experienced in the oil and gas industry, knew, should have known, or is presumed to have known the requirements of Statewide Order No. 29-E. Salemi asserted that Lasseigne’s negligent failure to require TMR to apply to the Commissioner for formation of a unit for the well resulted in Salemi not receiving his fair and equitable share of production from the well.

On August 25, 2014, TMR and Lass-eigne filed various exceptions to Salemi’s petition, including the initial exceptions was a peremptory exception of no cause of action as to the claims against Lasseigne. TMR and Lasseigne contended that because Lasseigne had no personal duty to or contractual relationship with Salemi, there was no basis for personal liability to third parties for his actions as a corporate officer. TMR and Lasseigne also asserted an exception of no cause of action, which maintained that there is no private cause of action for a violation of Statewide Order No. 29-E. The trial court overruled the exceptions in a judgment signed on April 21, 2015. Neither TMR nor Lasseigne has not sought review of either of these rulings.

IfiOn June 9, 2015, Lasseigne filed an exception of prescription as to the individual claims asserted against him. Lasseigne averred that the trial court had already sustained the exception of prescription against Lasseigne in the Hill suit following a hearing on June 3, 2015. Lasseigne argued that Salemi alleged only acts of negligence by Lasseigne and a violation of Statewide Order No. 29-E. Despite the trial court’s previous overruling Lass-eigne’s exception of no cause of action on the issue of corporate officer liability as to claims by a third party, Lasseigne reasserted his argument that third parties do not have a cause of action in negligence against a corporate officer. Then, Lass-eigne asserted that Salemi’s only other allegation, the assertion that Lasseigne violated Statewide Order No. 29-E, was prescribed under the provisions of La. R.S. 12:1502(D). Lasseigne asserted that under La. R.S. 12:1502(D), a tort action against a corporate officer cannot be brought “more than three years from the date of the alleged act or omission,” and no claims under the statute are subject to suspension or interruption on any ground except by the timely filing of suit in a court of competent jurisdiction. Lasseigne averred that the unlawful action ceased when TMR ceased operating the well in June of 2010, or when the 2008 lease terminated in December of 2010. According to Lasseigne, Salemi’s claims against him filed in July 2014 were prescribed under La. R.S. 12:1502(D), regardless of which date applied to begin -the tolling of prescription.

Lasseigne’s exception was set for heading on September 2, 2015, the same day as the 'hearing on the motion for new trial filed by the Hill plaintiffs in the Hill suit. The Hill plaintiffs sought a new trial following the trial court’s sustaining of |7the defendants’ exception of prescription as to the claims against Lasseigne under La; R.S. 12:1502(D). Counsel for Salemi and Lasseigne agreed that the legal issue on the question of prescription as to Lass-eigne in the Hill suit and the instant matter was identical; therefore, the Salemi exception was submitted on the briefs. In a judgment signed September 22, 2015, the trial court sustained Lasseigne’s exception of prescription, adopting as its reasons the argument made by the' defendant in the Hill suit.

On October 27, 2015, Salemi filed the instant devolutive appeal. Salemi asserts that the trial court erred in the following respects: in applying La. R.S. 12:1502 in peremptory fashion; applying the provisions of La. R.S, 12:1502 to Lasseigne, an officer of a foreign corporation; failing to apply the more specific prescriptive statute applicable to claims for damages to immovable property, La. C.C. art. 3493; and failing to recognize the applicability of the doctrine of contra non valentem under the particular facts of this case. As set forth below, in the instant matter, we find it necessary only to. address Salemi’s assertion that the trial court erred' in applying La. R.S, 12:1501 and 12:1502 to the officer of a foreign corporation.

DISCUSSION

The inquiry in the instant appeal is limited to the legal question of whether the trial court erred in finding that Salemi’s claims against Lasseigne, an officer of a foreign corporation authorized to do business in this state, are prescribed under La. R.S. 12:1501 and 12:1502. Accordingly, we will conduct a de novo review. See Peck v. Richmar Construction, Inc., 2013-1170 (La. App. 1st Cir. 2/26/14), 144 So.3d 1042, 1045, writ denied, 2014-0830 (La. 6/20/14), 141 So.3d 810. Further, we nóte that no evidence was introduced at -the healings herein to support or controvert TMR and Lasseigne’s exception of prescription; therefore, the exception must be decided upon' facts' alleged in the petition with all allegations accepted as true. See La. C.C.P. art. 931; Cichirillo v. Avondale Industries, Inc., 2004-2894 (La. 11/29/05), 917 So.2d 424, 428.

Louisiana Revised Statutes 12:1501 and 12:1502

Louisiana Revised Statutes 12:1501 states:

The provisions of this Chapter shall be applicable to all business organizations defined in R.S. 12:1502(B).

Louisiana Revised Statute 12:1502 provides, in pertinent part, as follows:

A. The provisions of this Section shall apply to all’ business organizations formed under the laws of this state and shall be applicable to actions against any officer, director, shareholder, member, manager, general partner, limited partner, managing.partner, or other person similarly situated. The provisions of this Section shall not apply to actions governed by R.S. 12:1-622, 1-833, 1-1407, or 1328(C).
B. The term “business organization” includes any entity formed under the laws of this state engaged in any trade, occupation, profession, or other commercial activity including but not limited to professions licensed by a state or other governmental agency. This Section shall apply without limitation to ' corporations, incorporated or unincorporated associations, partnerships, limited liability partnerships, partnerships in com-mendam, limited liability companies, |3or cooperative associations or other entities formed under the laws of this state.
C. No action for damages against any person described in Subsection A of this Section for an unlawful distribution, return of an unlawful distribution, or for breach of fiduciary duty, including without limitation an action for gross negligence, but excluding any action covered by the provisions of Subsection D of this Section, shall be brought unless it is filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered, but in no event shall an action cqvered by the provisions of this Subsection ,be brought more than three years from the date , of the alleged act, omission, or neglect.
D. No action for damages against any person listed in Subsection A of this Section for intentional tortious misconduct, or for an intentional breach of a duty of loyalty, or for an intentional unlawful distribution, or for acts ■ or omissions in bad faith, or involving fraud, or a knowing and intentional violation of law, shall be brought unless it is filed in a court of competent jurisdiction and proper venue within two years from the date of the alleged act or omission, or within two years from the date the alleged act or .omission is discovered or should have been discovered, but in no event shall an action covered by the provisions of this. Subsection-be brought more than three years from, the date of the alleged act or omission.
E. The time limitations provided in this Section shall not be subject to suspension on any grounds or interruption except by timely suit filed in a court of competent jurisdiction and proper venue.

[Emphasis added.]

Chapter 24 of Title 12 of the Louisiana Revised Statutes contains only La. R.S. 12:1501 and 12:1502. La. R.S. 12:1502 recognizes two separate time limitations applicable to suits filed against any “officer, director, shareholder, member, manager, general partner, limited partner, managing partner, or other person similarly situated” of a “business organization” “formed under the laws of this state” for specific and enumerated non-intentional and intentional tort actions. La. R.S. 12:1502(A), (C), and (D). Louisiana Revised Statutes 12:1502 has been classified as a “hybrid liberative prescriptive statute.” See Wooley v. Lucksinger, 2006-1140 (La. App. 1st Cir. 12/30/08), 14 So.3d 311, 462, rev’d on other grounds, 2009-0571 (La. 4/1/11), 61 So.3d 507. This classification recognizes that the 110statute has been expressly identified by the legislature as a prescriptive statute that is conditioned by certain per-emptive attributes—in particular, the inability of claims asserted thereunder to be subject to interruption and suspension.

The trial court found that all Salemi’s claims against Lasseigne for his actions as the president of TMR were prescribed under La. R.S. 12:1501 and 12:1502. In adopting its reasoning from the Hill suit, the trial court apparently found that the application of La. R.S. 12:1502 was not limited to domestic corporations “formed under the laws of this state” as stated in the statute, but also included foreign corporations authorized to transact business in this state. The trial court also apparently found that under La. R.S. 12:306 foreign corporations authorized to transact business in Louisiana are afforded the same “rights and privileges” and are subject to the “same duties, restrictions, penalties and liabilities” as businesses organized under Louisiana law.

As set forth below, we find that La. R.S. 12:1502 does not apply to the claims asserted against Lasseigne, because the statute unambiguously applies only to persons who control business organizations formed under the laws of this state—i.e., domestic business organizations. Thus, the trial court’s sustaining of the exception of prescription under La. R.S. 12:1501 and 12:1502 was in error.

Application of La. R.S. 12:1502 Limited to Domestic Corporations

The starting point in the interpretation of any statute is the language of the statute itself. M.J. Farms, Ltd. v. Exxon Mobil Corp., 2007-2371 (La. 7/1/08), 998 So.2d 16, 27. The plain meaning of the legislation should be conclusive. Borel v. Young, 2007-0419 (La. 11/27/07), 989 So.2d 42, 50. The words of a law must be given their generally prevailing meaning. La. C.C. art. 11; La. R.S. 1:3. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature, nor shall the letter of the law be ^disregarded under the pretext of pursuing its spirit. La. C.C. art. 9; La. R.S. 1:4; La. C.C.P. art. 5052. Importantly, with regard to the particular type of statute at issue here, Louisiana courts have consistently held that prescriptive statutes are strictly construed against prescription and in favor of the obligation sought to be extinguished; thus, of two possible constructions, that which favors maintaining, as opposed to barring, an action should be adopted. Carter v. Haygood, 2004-0646 (La. 1/19/05), 892 So.2d 1261, 1268.

Louisiana Revised Statutes 12:1502 contains the phrase “formed under the laws of this state” in three separate places. Subsection A of La. R.S. 12:1502 states that the provisions of this statute “shall apply to all business organizations formed under the laws of this state.” The limitation set forth in Subsection A is reiterated in Subsection B wherein the statute defines the phrase “business organization” initially referenced in Subsection A as “any entity formed under the laws of this state.” Subsection B then concludes that “[t]his Section shall apply without limitation to corporations ... formed under the laws of this state.” Further, both Subsections C and D also refer back to Subsection A when setting forth the operation of the prescriptive periods set forth therein.

The words of a law must be given their generally prevailing meaning. La. C.C. art. 11; La. R.S. 1:8. In the context of a corporate officer, reading the plain language of La. R.S. 12:1502 establishes that the legislature intended the statute to apply to officers of domestic corporations “formed under the laws of this state.” The word “formed” is defined as follows: “... to combine to make ... to arrange in order ... come into existence.... ” WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY 485(1991 ed.) “Under” is defined as follows: “subject to the authority, control, guidance, or instruction of.” Id. at 1285. Thus, the generally prevailing meaning of “formed under the laws of this state” when referring to a corporation means a corporation created in accordance with Louisiana statutory | ^requirements governing the formation or creation of a domestic corporation as set forth in the Business Corporation Act, or its predecessor, the Business Corporations Law. See La. R.S. 12:1 (repealed by 2014 La. Acts, No. 328). In contrast, a foreign corporation is an entity incorporated under a law other than this state. See La. R.S. 12:1(K) (repealed by 2014 La. Acts, No. 328); and La. R.S. 12:1-140(10). Notably, a foreign corporation remains classified as such even when it takes the necessary steps to become authorized to transact business in Louisiana.

Yet, Lasseigne contends, and the trial court agreed, that the scope of La. R.S. 12:1502 includes officers of foreign corporations authorized to transact business in Louisiana, like Lasseigne. Lasseigne points to La. R.S. 12:306, which in addition to granting foreign corporations authority to transact business in the state, provides that a certificate of authority has the effect of granting a foreign corporation the right to “[e]njoy the same, but no greater, rights and privileges as a business or nonprofit corporation organized under the laws of this state to transact the business which such foreign corporation is authorized to transact in this state.” La. R.S. 12:306(2). La. R.S. 12:306 has been interpreted to grant to authorized corporations powers and privileges as including:

[T]he legal status to sue, and be sued in the Courts of our State, continuity of business without interruption by death or dissolution, [^transfer of property interests, by the disposition of shares .of stock, advantages of business controlled and managed by corporate directors, and the general absence of individual liability, among others.

Colonial Pipeline Co. v. Agerton, 289 So.2d 93, 100 (La. 1974), aff'd sub nom. Colonial Pipeline Co. v. Traigle, 421 U.S. 100, 111-112, 95 S.Ct. 1638, 1544-1545, 44 L.Ed.2d 1 (1975).

Louisiana Revised Statutes 12:306 is located in Chapter 3 of Title 12 entitled “Foreign Corporation Law.” Louisiana Revised Statutes 12:306 was enacted in 1969. Review of Chapter 3 evidences a focus on establishing the procedures for the issuance, effect, withdrawal, termination, and revocation, of certificates of authority to foreign corporations. Lasseigne has not directed our attention to, nor has our review revealed, any statutory basis to support the conclusion that the legislature considered, much less intended, the extension of the privileges afforded to authorized foreign corporations under La. R.S. 12:306 to the officers,, directors, or shareholders of such corporations. Further, we note that La. R.S. 12:1502’s enactment in 2001 constitutes the latest expression of legislative intent on this issue. See Pumphrey v. City of New Orleans, 2005-0979. (La. 4/4/06), 925 So.2d 1202, 1211.

When the law is clear and unambiguous it must be applied as written, thus, reading the phrase “formed under the laws of this ■state” to include officers of authorized foreign corporations reads a provision into the statute not present in the existing text. It would be more logical to conclude that had the legislature intended to include officers of authorized foreign corporations it would have included foreign authorized corporations in the language of the statute, or would have omitted the multiple recitations of the phrase “formed under the laws of this state.”

Lasseigne makes a peripheral suggestion that a failure to find that La. R.S. 12:306 extends the “privileges” of La. R.S. 12:1502 to officers of corporations would violate the provisions of the equal protection clause of the Fourteenth Amendment of the United States Constitution. As a general rule, statutes are presumed to be constitutional. See State v. Citizen, 2004-1841 (La. 4/1/06), 898 So.2d 325, 334. Nevertheless, the question of the constitutionality of La. R.S. 12:1502 was not properly pleaded nor ruled upon by the trial court, and, thus it cannot be considered by this court. In Vallo v. Gayle Oil Co., Inc., 94-1238 (La. 11/30/94), 646 So.2d 859, 864-865, the supreme court explained the requirements for pleading the unconstitutionality of a statute in the district court:

Our Code of Civil Procedure does not require a single procedure or type of proceeding for challenging or assailing the constitutionality of a statute. However, the long-standing jurisprudential rule of law is: a statute must first be questioned in the trial court, not the appellate courts, and the unconstitutionality of a statute must be specially pleaded and the grounds for the claim particularized.
The pleadings allowed in civil actions are petitions, exceptions, written motions and answers, LSA-C.C.P. art. 852, Therefore, when the unconstitutionally of a statute is specifically pled, the claim must be raised in a petition (the original petition, an amended and- supplemental petition or a petition in an incidental demand), an exception, a motion or an answer. It cannot be raised in a memorandum, opposition or brief as those documents do not constitute pleadings. [Citations and footnotes omitted],

A review of the record in the instant case indicates the issue of the constitutionality of La. R.S. 12;1502’s application only to officers of domestic corporations was discussed in a footnote in Lasseigne’s “Reply to Opposition to Lasseigne’s Peremptory Exception of Prescription” filed'1 in the trial court. As the supreme court explained in Vallo, a memorandum is not a pleading recognized under the Code of Civil Procedure and is therefore not a proper method to challenge the constitutionality of a statute. Meaux v. Galtier, 2007-2474 (La. 1/25/08), 972 So.2d 1137, 1138.

A straightforward reading of La. R.S. 12:1502 clearly demonstrates that it does not apply to Salemi’s claims asserted against Lasseigne, the officer of a Texas corporation.

^CONCLUSION

Based on the above, we find that the trial court erred in finding that the action against Raymond J. Lasseigne was prescribed under La. R.S. 12:1502(D). We. reverse the judgment of the trial court dismissing the claims of Charles R. Salemi and remand this matter to the trial court for further proceedings. AH' cost of this appeal are to be paid by the defendant/ap-pellee, Raymond J. Lasseigne.

APPEAL MAINTAINED; REVERSED AND REMANDED.

      . While the facts are different in the two cases, the legal issues being considered in both appeals are identical. Similar to the instant matter, Lasseigne also filed a peremptory exception of prescription raising the objection of prescription in response to the Hill property owners’ claims against Lasseigne on the grounds of La. R.S. 12:1502(D). We address the merits of the appeal brought by the Hill plaintiffs in a separate opinion being issued at the same time as the opinion in the instant matter. See Hill v. TMR Exploration, Inc., 2016-0566 (La. App. 1st Cir. 6/13/17), 223 So.3d 556, 2017 WL 2558323.

      . The defendants named by Salemi in connection with the contract claim arising out of the lease include: Park Oil & Gas, LLC, Park Resources, LLC, Donald J. Owen, Michelle D. Uria, Katana Energy, LLC, Jonsnogren Oil & Gas Properties, Inc., Edgewood Cockfield Project, LLC, McCauley O. Bullock, Jr., Inc., Bullock Interests II, LLC, Wellbore Capital, LLC, and Lord Securities, Corp.

      . Notably, at no point during the consideration of this issue below was the application of former La. R.S. 12:96 (repealed by La. Acts 2014, No. 328, effective January 1, 2015) raised by the parties or considered by the trial court. As a general rule,'appellate courts will not consider issues that were not raised in the pleadings, were not addressed by the trial court, or are raised for the first time on appeal. Segura v. Frank, 93-1271 (La. 1/14/94), 630 So.2d 714, 725, cert. denied, 511 U.S. 1142, 114 S.Ct. 2165, 128 L.Ed.2d 887 (1994): Stewart v. Livingston Parish School Bd., 2007-1881 (La. App. 1st Cir. 5/2/08), 991 So.2d 469, 474.

      . A rule to show cause was issued by this court on May 4, 2016, noting that the trial court’s September 22, 2015 judgment appeared to lack decretal language dismissing the claims against Lasseigne. In response, the trial court issued an Amended Judgment signed May 18, 2016, clarifying that Salemi’s claims against Lasseigne were dismissed with prejudice.

      . Based on our finding that La, R.S, 12:1502 does not apply to officers of foreign corporations, we decline to consider Sálemi’s other assignments of error regarding the application of La. R.S. 12:1502 under the facts presented herein; The jurisprudence provides that courts should not decide abstract, hypothetical or moot controversies, or render advisory opinions with respect to such controversies. See St. Charles Parish School Bd. v. GAF Corp., 512 So.2d 1165, 1170 (La. 1987) (on rehearing).

      . The timeline of relevant events as outlined herein is not in dispute; therefore, the doctrine of manifest error does not apply to this court’s review. Ristroph v. Louisiana Public Facilities Authority, 2006-1669 (La. App. 1st Cir. 9/14/06), 943 So.2d 492, 494.

      . We note that pursuant to La. Acts 2014, No. 328 (effective January 1, 2015) the legislature adopted the " Business Corporation Act,” which repealed and reenacted Chapter 1 of Title 12 to make Louisiana business law consistent with the Model Business Corporation Act. Louisiana Revised Statutes 12:1502 was amended by the 2014 Act to add the last sentence in La. R.S, 12:1502(A)("The provisions of this Section shall not apply to actions governed by R.S. 12:1-622, 1-833, 1-1407, or 1328(C)”). The excluded actions relate to actions for unlawful distributions against shareholders of corporations (La. R.S. 12:1-622), directors of a corporation (La, R.S. 12:1-833), members of an LLC (La. R.S. 12;1328(C)), and claims against a dissolved corporation (La. R.S, 12:1-1407).

      . At the hearing on the exception and herein, Lasseigne maintains that in Wooley this court applied the provisions of La. R.S. 12:1502 to officers of foreign corporations. In Wooley, the Louisiana Commissioner of Insurance, in his capacity as the liquidator of an insolvent insurer, filed claims against the officers and directors of multiple corporate entities, both domestic (formed in Louisiana) and foreign. See Wooley, 14 So.3d at 337, 346-347. Relying on La. R.S. 12:1502, the defendants filed exceptions of prescription, which the trial court denied. In affirming that ruling, this court relied, in part, on La. R.S. 22:735(B) (see now La. R.S. 22:2008(B)), providing that the filing of a suit by the commissioner of insurance seeking an order of liquidation interrupts the running of prescription for any claim in favor of the insolvent insurer for two years, if an order of liquidation is granted. See Wooley, 14 So.3d at 463, 466-467. The effect of that interruption, together with the continuing nature of the alleged torts, were essential to this court’s conclusion that the commissioner's claims filed on behalf of the insolvent insurer had not prescribed. See Wooley, 14 So.3d at 463, 466-467. While La. R.S, 12:1502 was also cited, the citation of that statute can be construed as pertinent only to the claims against the officers of the domestic coiporation; this court never stated that La. R.S. 12:1502 applies to actions against officers of foreign corporations. The Louisiana Supreme Court later reversed on other grounds, finding Texas’ substantive law applied to the claims of breach of fiduciary duty. We do not find Wooley controlling on this issue.