author: THERIOT, J. McCLENDON, j.,

text:
    STATE of Louisiana v. Douglas Matthew FORD
    NO. 2017 KA 0471
    Court of Appeal of Louisiana, First Circuit.
    SEPTEMBER 27, 2017

      Prentice L. White, Baton Rouge, Louisiana, Counsel for Defendant/Appellant, Douglas Matthew Ford
    Joseph L. Waitz, Jr., District Attorney, Ellen Daigle Doskey, Assistant District Attorney, Houma, Louisiana, Counsel for Appellee, State of Louisiana
    BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.
   THERIOT, J.

| aThe defendant, Douglas Matthew Ford, was charged by grand jury indictment with aggravated rape (of á victim under the age of thirteen years), a violation of La. R.S. 14:42'(prior to amendment, which redesignated aggravated rape as first degree rape). The defendant pled not guilty; The defendant filed a motion to suppress his medical records. A hearing was held on the matter and the motion to suppress was denied. Following a jury trial, the defendant was found guilty as charged. The defendant was sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence. The defendant now appeals, designating three assignments of error. We affirm the conviction, amend the sentence, and affirm as amended.

FACTS

On September 17, 2013, Detective Trey Lottinger of the Houma Police Department was assigned to an aggravated rape complaint. He was contacted by Detective Leif Haas of the Lafourche Parish Sheriffs Office, who stated earlier that month he was dispatched to Bayou Boeuf Elementary School where it was reported that one of the students claimed she was sexually abused. The victim, J.L., bom November 7, 2006, reported to the school counselor that a man named Douglas touched her underneath her clothes. Detective Haas interviewed J.L. at the school, and she told him that someone had hurt her. Detective Haas stopped the interview at that point. Detective Haas scheduled J.L‘ for á forensic interview with Shannon Gros of the Lafourche Children’s Advocacy Center (CAC).

On September 5, 2013, the CAC interview was conducted. Although J.L. was hesitant to give information at first, she stated in the interview that a|sman named Douglas had put his penis into her vagina while they were lying in bed. with no clothes on, that it hurt her, and that he had gotten “white stuff’ on her face. J.Li also stated that the incident happened at Douglas’s grandmother’s house, which was later confirmed to be 403 Elysian Drive in Houma. Detective Hass interviewed J.L.’s mother, L.G., who stated she was dating Joseph Siano, who was a Mend , of the defendant, and the defendant .often visited their home, and vice versa. After receiving all the aforementioned information from Detective Haas, Detective Lottinger obtained an arrest warrant for the defendant, who was arrested on June 17, 2014.

The'Video of the CAG interview was played at trial. Evidence was introduced that in 2015, J.L. was taken to Children’s Hospital, where she tested positive for chlamydia, a sexually transmitted disease. The CAC interview and other testimony at trial revealed that during the summer months of 2013, the defendant took J.L, to different places, including in Houma, and vaginally raped her.

The defendant testified at trial. He had convictions for second degree battery and theft of a motor vehicle. The defendant denied that he ever had sex with J.L. or behaved inappropriately with her in any way.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, the defendant argues the trial court erred in denying his motion to suppress his medical records. Specifically, the defendant contends that after the State improperly obtained his medical records through the issuance of subpoenas duces tecum, the State should not have been permitted to cure this defect by subsequently filing search warrants to obtain his records, as required by the law.

1 ¿Prior to trial, the State had information that J.L had contracted chlamydia. In August of 2015, the State filed a motion for medical examination and testing for sexually transmitted diseases, seeking to determine if the defendant also had chlamydia. The trial court ordered that the defendant submit to a medical examination for sexually transmitted diseases.

Several days after filing its motion for a medical examination of the defendant, the State filed a motion to show cause why the medical records should not be produced. In this show cause motion, the State listed thirteen medical providers. Along with this show cause motion, the State served a subpoena duces tecum on each of the medical providers listed in. this show cause motion.

At the show cause motion hearing on November 12, 2015, the trial court found the defendant’s medical records relevant and authorized the release of all the requested medical records to the State. The first day of trial was December 8, 2015. On this date, the trial court held a pretrial motions1 hearing regarding the medical records. The attorney for the medical department of Terrebonne Parish Criminal Justice Complex (TPCJC) attended the hearing. The State indicated at the hearing that it had the defendant’s medical records from TPCJC; not only because of the subpoena duces tecum it had sent, but because the former defense counsel for the defendant had also subpoenaed those medical records and turned over a copy of thém to the State. The State noted that these medical records from the TPCJC indicated there was a ten-day regimen of minocy-cline administered to the defendant.. The State also noted that, according to the defendant’s |,■¡medical records from Terre-bonne General Medical Center (TGMC), the defendant had a history of chlamydial infections since 2010.

TPCJC argued that the statute under which the State normally subpoenas medical records, La. R.S. 13:3715.1, was held unconstitutional by State v. Skinner, 2008-2522 (La. 5/5/09), 10 So.3d 1212. Under Skinner, a search warrant is required to obtain medical records. Id., at 1218-19.

On the following day, prior to the jury being sworn, the trial court ruled consistently with Skinner, finding that in the absence of a warrant, the State could not legally obtain the medical records of the defendant, and given that the defendant objected to the State’s obtaining his medical records, the trial court required the State to obtain a warrant to procure them and use them as evidence in the trial. The State requested to continue the trial date so that it could obtain the medical records with search warrants. The defendant objected to the continuance. The trial court granted the State’s motion for continuance and dismissed the jury.

On December 14, 2015, the State produced three search warrants, with applications to the trial court, which, finding probable cause, signed the warrants and applications. The State sought the medical records from three of the defendant’s medical providers: the medical department at TPCJC, Terrebonne General Medical Center, and Chabert Medical Center (Cha-bert). The State made one application for the records at TPCJC, and another application for the records at TGMC and Cha-bert.

The defendant filed a motion to suppress the medical records, arguing that his medical records were illegally seized without a search warrant and that the State could not cure its initial warrantless seizure of the medical records “by filing a second subpoena.” The State argued that the affidavit submitted in support of the warrants did not reference the information | ^obtained initially by way of the subpoenas duces tecum. According to the State, the search warrant for TGMC was confined to only those records concerning sexually transmitted diseases.

The trial court reasoned that the medical records obtained by the warrants were not “fruit of the poisonous tree,” as the defendant argued, but were rather constantly available to be legally obtained from the health care providers by way of a warrant. Since the State narrowed its search in its application to only records concerning sexually transmitted diseases, the records that were unconstitutionally seized by way of the subpoena were no longer at issue. As such, the trial court denied the defendant’s motion to suppress.

A trial court’s legal findings on a motion to suppress are subject to a de novo standard of review. See State v. Hunt, 2009-1589 (La. 12/1/09), 25 So.3d 746, 751. We find no reason to disturb the ruling of the trial court. As noted, the State’s search warrants and search warrant applications were carefully drafted so as not to include any facts or information that the State may have obtained when it possessed the defendant’s medical records prior to filing the search warrants. Thus, the search warrants were based on a completely independent source of information, and the probable cause obtained therein was predicated on those facts alone, ie., the six-year-old victim reporting sexual intercourse with the defendant and only the defendant; the victim was examined and treated at Children’s Hospital, and it was determined that she was infected with chlamydia; the defendant’s test results at Chabert were negative for chlamydia; and it was, therefore, necessary to examine the defendant’s medical records from local providers to determine if he had ever been diagnosed with or treated for chlamydia.

[7The Louisiana Supreme Court in Skinner found that the defendant had a reasonable expectation of privacy in her medical records such that a warrant was required for a search and seizure of those records for criminal investigative purposes. Skinner, 10 So.3d at 1218. In Skinner, the State received a tip from a pharmacist that the defendant was obtaining medication with multiple overlapping prescriptions. Based on that tip, the State filed motions for production of prescription and medical records in district court. The district court issued an order requiring eight pharmacies to produce the defendant’s records. The State then prosecuted the defendant based on information derived from those records. Skinner, 10 So.3d at 1213-14. See May v. Strain, 55 F.Supp.3d 885, 897-98 (E.D. La. 2014).

In Skinner, 10 So.3d at 1218, the supreme court opined:

Because we find a warrant was required for an investigative search of the defendant’s prescription and medical records, the trial court erred in finding the remedy was for the State to comply with requirements of La. Code Crim Proc. art. 66 and La Rev. Stat. 13:3715.1, which the State had admittedly failed to comply with in obtaining the defendant’s prescription and medical records, in order for these records to be admissible at trial. The trial court’s ruling essentially permits the State to re-subpoena the prescription and medical records, allowing the State to introduce them at trial if the State has followed all the procedural requirements of La. Rev. Stat. 13:3715.1 and/or La. Code Crim. Proc. art. 66 in procuring these records a second time. However, because we find the Fourth Amendment and La. Const, art. I, § 5 require a search warrant before a search of prescription and medical records for criminal investigative purposes is permitted, the State cannot cure its warrantless search and seizure of the records by a second subpoena of these records.

The facts of the instant case are different from Skinner. The State in the instant case did not institute criminal proceedings against the defendant based on any medical records. A true bill for the crime of aggravated rape was returned against the defendant on August 12, 2014. Thus, according to the indictment filed on that date, the unexplained and uncontradicted |sevidence considered by the grand jury warranted a conviction. See La. Code Crim. P. art. 443. The State did not seek the defendant’s medical records for more than a year after the defendant had been indicted. Pursuant to Skinner, the State cured its initial defect of a warrantless search and seizure of medical records, not by a second subpoena of these records, but by properly filed and executed search warrants. Cf. State v. Pounds, 2014-1063 (La. App. 1st Cir. 3/9/15), 166 So.3d 1037, 1039-40 writ denied, 2015-0696 (La. 2/19/16), 186 So.3d 1173 (where the defendant’s medical records were obtained without a search warrant).

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 2

In his second assignment of error, the defendant makes several arguments: his motion for mistrial should have been granted; insufficient evidence of the defendant’s identity; the State did not prove the rape or rapes occurred in Terrebonne Parish; and the State’s amendment to the indictment “made it difficult for him to present a credible defense or alibi for the time period in question.”

Regarding the alibi issue, the defendant argues in brief that he “was restricted from arguing before the jury that the prosecution’s amendment to the indictment made it difficult for him to present a credible defense or alibi for the time period in question.” The defendant cites no jurisprudence to support this argument. The indictment, as originally handed down, charged that the dates of the offenses were on or between May 1, 2013 and May 31, 2013. On July 29, 2015, the State amended the May 31, 2013 date to August 31, 2013. At the defendant’s pretrial motion in limine, the State told the trial court that it had learned of new information after the indictment had been handed down.

|aThe State is allowed to amend the dates of the offense in an indictment. Further, the dates when the crime occurred are not elements of aggravated rape. See La. Code Crim. P. arts. 468 & 487; State v. McCoy, 337 So.2d 192, 194-95 (La. 1976). Moreover, from the amendment to the indictment to the first day of trial, the defendant had almost seven months to provide an alibi to the State, which he never did. The defendant made no showing of surprise or prejudice resulting from the amendment. Id. at 195.

Next, the defendant argues the State did not prove that an aggravated rape occurred in Terrebonne Parish. According to the defendant, “the criminal statute makes it mandatory for the State to prosecute a defendant in the parish where the offense took place.”

Venue is not an essential element of the offense; rather, it is a jurisdictional matter. See La. Code Crim. P. arts. 611(A) & 615/ Objections to venue must be raised by a motion to quash to be ruled on by the court in advance of the trial. State v. Roblow, 623 So.2d 51, 55 (La. App. 1st Cir. 1993). The defendant did not file a pretrial motion to quash, objecting to venue. Accordingly, this issue is not properly before this court. See State v. Rideout, 42,689 (La. App. 2nd Cir. 10/31/07), 968 So.2d 1210, 1212-13, writ denied, 2008-2745 (La. 9/25/09), 18 So.3d 87; State v. Matthews, 632 So.2d 294, 296 (La. App. 1st Cir. 1993).

Following the trial, the defendant sought to argue the venue issue in a post-trial motion in arrest of judgment. -Louisiana Code of Criminal Procedure article 859, which provides the exclusive grounds for an arrest of judgment, provides: “Improper venue may not be urged by a motion in arrest of judgment.” Accordingly, this argument is baseless. •.

Next, the defendant argues his motion for mistrial should have been granted. Specifically, the defendant contends that the illegal seizure of hfejjj medical records gave the State “an undue. advantage against him at trial by allowing the jury to view information that was unconstitutionally obtained without a warrant.” This issue has been fully addressed in the first assignment of error.

Finally, the defendant argues there was insufficient evidence to convict because his identity was not established at trial. According to the defendant, the State failed to prove that he was the person who sexually assaulted J.L. because J.L. did not identify the defendant in court “as her assailant,” Further, according to the defendant, J.L. “was extremely positive that the person who raped her had a heart-shaped tattoo on his chest, but [he] clearly did not have such a tattoo.”

A conviction based on insufficient evidence cannot stand as it violates Due Process. See U;S. Const, amend. XIV; La. Const, art. I, § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether or not, 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 beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See La. Code Crim. P. art. 821(B); State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So,2d 654, 660; State v. Mussall, 523 So.2d 1305, 1308-09 (La. 1988),

The Jackson standard of review, incorporated in Article 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing Circumstantial evidence, La. R.S. 15:438 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. See State v. Patorno, 2001-2585 (La. App. 1st Cir. 6/21/02), 822 So.2d 141, 144.

| n Furthermore, when the key issue is the defendant’s identity ■ as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification. Positive identification by only one witness is sufficient to support a conviction. It is the factfinder who weighs the respective credibilities of the witnesses, and this court will generally not second-guess those determinations. See State v. Hughes, 2005-0992 (La. 11/29/06), 943 So.2d 1047, 1051; State v. Davis, 2001-3033 (La. App. 1st Cir. 6/21/02), 822 So.2d 161, 163-64.

In 2013 (the applicable time period regarding the allegations against the defendant), La. R.S. 14:42 provided in pertinent part:

A. Aggravated rape is a rape committed upon a person sixty-five years of age or older or where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
* * * *
(4) When the victim is under the age of thirteen years. Lack of knowledge of the victim’s age shall not be a defense.

In 2013, La. R.S. 14:41. provided in pertinent part:

A. Rape is the act of anal, oral, or vaginal sexual intercourse with a male or female person committed without the person’s lawful consent,
B. Emission is not necessary, and any sexual penetration, when the rape involves vaginal. or anal intercourse, however slight, is sufficient to complete the crime.

It is true that when J.L. testified, the State never asked her to point out the person in court who had raped her. This, however, had no impact on the positive identification of the defendant. At trial and in her CAC interview, J.L. referred to “Douglas” as the person who raped her. J.L. stated at trial that Douglas used to come around the house and that he was friends with Mr, Siano.

. The defendant corroborated J.L. in his own testimony when he testified about how his friendship with Mr. Siano soured after he saw the) i2 way Mr. Siano treated J.L., her brother, and L.G. The defendant admitted that he began flirting with L.G., which caused a further rift in his friendship with Mr. Siano; In her CAC interview, J.L. talked about being taken for a ride by the defendant in his black truck. J.L. added that, while the truck was black now, it used to be green. Detective Lottinger testified at trial that the defendant drove a black Dodge Ram, and that the truck was green before it was painted black.

Regarding the issue of the heart-shaped tattoo, J.L. was asked in her CAC interview if the defendant had any tattoos.’ She indicated he had a tattoo on his upper right arm. The defendant in fact had a tattoo on each of his arms. J.L. also seemed to suggest the defendant had a tattoo on his belly, possibly shaped like a heart. On cross-examination at trial, J.L. stated the defendant had a heart-shaped táttoo on his stomach.. The defendant raised his shirt at trial to show the jury he did .not have a tattoo on his stomach. At the CAC interview, J.L. stated: “The tattoo I wanted on his belly that I wanted a heart on his belly.... I wanted it heart on his belly.”

The issues of the tattoo raised by the defendant are matters of credibility. The jury heard all of the testimony and believed the account of J.L. over the defendant’s. In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Higgins, 2003-1980 (La. 4/1/05), 898 So.2d 1219, 1226, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005).

The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the | ^evidence, not its sufficiency, The trier of fact’s determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a factfinder’s determination of guilt. State v. Taylor, 97-2261 (La. App. 1st Cir. 9/25/98), 721 So.2d 929, 932. We are constitutionally precluded from acting as a “thirteenth juror” in assessing what weight to give evidence in criminal cases. See State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, 83. The fact that the record contains evidence that conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient. State v. Quinn, 479 So.2d 592, 596 (La. App. 1st Cir. 1985).

J.L. testified that the defendant raped her vaginally more than once and in different places, including in Houma. She also testified the defendant was the only person who raped her. At the CAC interview, J.L. was shown anatomical diagrams of a boy and a girl and identified the penis as the “thing down there” and the vagina as the “thing that you pee out of.” J.L. indicated that the defendant’s “thing” touched her “on the inside of her thing.” When asked how she knew it was on the inside of her, J.L. replied, “Because he put it in.”

Larry Naquin testified at trail that the defendant was his cellmate at Ashland jail during the time when the defendant had been jailed on the charge of the instant offense. Naquin testified that he and the defendant had been talking about the defendant’s case. When asked what exactly the defendant told him, Naquin stated:

He told me that he had brought [J.L.] to his grandmother’s one night and that he brought her to the back bedroom, and he had her take off her clothes, and he had her get in the bed, and he had sex with her. And before he finished he ejaculated on her face and on the bed and made her clean it up with just soap.

luNaquin added the defendant told him there was no one at home but them. When asked if the defendant seemed genuine about what he had told Naquin, Naquin testified: “He actually sounded pretty proud of what he had done because he kept telling me that he had alibis for so many days, that he was convinced that he was going to be able to get away with it and go home.”

When J.L. went to Children’s Hospital in February of 2015, she was eight years old. It was there that she tested positive for chlamydia. When, pursuant to a court order, the defendant was tested for chlamydia in October of 2015, the test was negative. The only medical records that indicated the defendant had had a sexually transmitted disease were those from Ter-rebonne General Medical Center. According to those records, in 2010 the defendant tested positive for chlamydia and was treated for it. The defendant confirmed in his testimony that he had chlamydia in 2010 and had it treated.

When a case involves circumstantial evidence, and the jury reasonably rejects the hypothesis of innocence presented by the defendant’s own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Captville, 448 So.2d 676, 680 (La. 1984). The testimony of the victim alone is sufficient to prove the elements of the offense. State v. Orgeron, 512 So.2d 467, 469 (La. App. 1st Cir. 1987), writ denied, 519 So.2d 113 (La. 1988). See State v. Rives, 407 So.2d 1195, 1197 (La. 1981). The jury’s guilty verdict reflected the reasonable conclusion that, based on the testimony of several witnesses, including J.L.’s and the CAC interview, the defendant committed aggravated rape upon J.L. In finding the defendant guilty, the jury clearly] 1S rejected the defendant’s theory of innocence. See Captville, 448 So.2d at 680.

After a thorough review of the record, we find the evidence supports the jury’s verdict. We are convinced that viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant was guilty of the aggravated rape of J.L. See State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam).

This assignment of error is without merit.

ASSIGNMENT OF ERROR NQ. 3

In his third assignment of error, the defendant argues that his mandatory life sentence was excessive.

The Eighth Amendment to the United States Constitution and Article I, § 20, of the Louisiana Constitution prohibit the imposition of cruel or excessive punishment. Although a sentence falls within statutory limits, it may be excessive. State v. Sepulvado, 367 So.2d 762, 767 (La. 1979). A sentence is considered constitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering.

A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Andrews, 94-0842 (La. App. 1st Cir. 5/5/95), 655 So.2d 448, 454. The trial court has great discretion in imposing a sentence within the statutory limits, and such a sentence will not be set aside as excessive in the absence of. a manifest abuse of discretion. See State v. Holts, 525 So.2d 1241, 1245 (La. App. 1st Cir. 1988). Louisiana Code of 11fiCriminal Procedure article 894.1 sets forth the factors for the trial court to consider when imposing sentence. While the entire checklist of La. Code of Crim. P. art. 894.1 need not be recited, the record must reflect the trial court adequately considered the criteria. State v. Brown, 2002-2231 (La. App. 1st Cir. 5/9/03), 849 So.2d 566, 569.

The articulation of the factual basis for a sentence is the goal of La. Code Crim. 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. Code Crim. P. art. 894.1. State v. Lanclos, 419 So.2d 475, 478 (La. 1982). The trial court should review the defendant’s personal history, his prior criminal record, the seriousness of the offense, the likelihood that he will commit another crime, and his potential for rehabilitation through correctional services. other than confinement. See State v. Jones, 398 So.2d 1049, 1051-52 (La. 1981). On appellate review of a sentence, the relevant question is whether the trial court abused its broad sentencing discretion,-not whether another sentence might have been more appropriate. State v. Thomas, 98-1144 (La. 10/9/98), 719 So.2d 49, 50 (per curiam).

For the defendant’s aggravated rape conviction,' the trial court imposed the mandatory life sentence.''The defendant argues' in brief that while 'the trial court did refer to La. Code Crim, P. art. 894.1, it did not articulate the factors it considered in imposing the sentence. The defendant further contends the trial court abused its discretion in imposing the life sentence, given his young age and “relatively minor criminal record.”

In State v. Dorthey, 623 So.2d 1276, 1280-81 (La. 1993), the Louisiana Supreme Court opined that if a trial judge were to find that theh? punishment mandated by La. R.S. 15:529.1 makes no “measurable contribution to acceptable goals of punishment” or that the sentence, amounted to nothing more than “the purposeful imposition of pain and suffering” and is “grossly out of proportion to the severity of the crime”, he has the option, indeed the duty, to' reduce such sentence to one that would not be constitutionally excessive. ,

In State v. Johnson, 97-1906 (La. 3/4/98), 709 So.2d 672, 676-77, the Louisiana Supreme Court reexamined the issue of when Dorthey permits a downward departure from the mandatory minimum sentences in the Habitual Offender Law. While both Dorthey and Johnson involve the mandatory minimum sentences imposed -under the Habitual Offender Law, the Louisiana Supreme Court has held that the sentencing review principles espoused in Dorthey are not restricted in application to the' penalties provided by La. R.S. 15:529.1. See State v. Fobbs, 99-1024 (La. 9/24/99), 744 So.2d 1274 (per curiam); State v. Collins, 2009-1617 (La. App. 1st Cir. 2/12/10), 35 So.3d 1103, 1108, writ denied, 2010-0606 (La. 10/8/10), 46 So.3d 1265.

Despite the defendant’s claim that the trial court did not “articulate- the factors” it considered when sentencing him, there is no need for the trial court to justify a sentence under La. Code Crim. P. art. 894.1 when it is legally required to impose that sentence. As such, the failure to articulate reasons as set forth in Article 894.1 when imposing a mandatory life sentence is not an error; articulating such reasons or factors would be an exercise in futility since the court has no discretion. State v. Felder, 2000-2887 (La. App. 1st Cir. 9/28/01), 809 So.2d 360, 371, writ denied, 2001-3027 (La. 10/25/02), 827 So.2d 1173, See State v. Ditcharo, 98-1374 (La. App. 5th Cir. 7/27/99), 739 So.2d 957, writ denied, 99-2551 (La. 2/18/00), 754 So.2d 964; State v. Jones, 31-613 (La. App. 2nd Cir. 4/1/99), 733 So.2d 127, 146, writ denied, 99-1185 (La. 10/1/99), 748 So.2d 434; State v. Williams, 445 So.2d 1264, 1269 (La. App. 3rd Cir.), writ denied, 449 So.2d 1346 (La. 1984).

Mandatory sentences have been repeatedly upheld as constitutional ancl consistent with the federal and state constitutional provisions prohibiting cruel, .unusual or excessive punishment. See State v. Jones, 46,758-59 (La. App. 2nd Cir. 12/14/11), 81 So.3d 236, 249, writ denied, 2012-0147 (La. 5/4/12), 88 So.3d 462. To rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must clearly and convincingly show that he is exceptional, which means-that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. Johnson, 709 So.2d at 676.

There is nothing particularly unusual about the defendant’s circumstances that would justify a downward departure from the mandatory sentence under La. R.S. 14:42. The record before us clearly established an adequate factual basis for the sentence imposed. As a friend of J.L.’s mother, the defendant used this position to exploit J.L.’s trust and rape her. See State v. Kirsch, 2002-0993 (La. App. 1st Cir. 12/20/02), 836 So.2d 390, 395-96, writ denied, 2003-0238 (La. 9/5/03), 852 So.2d 1024. The defendant has not proven by clear and convincing evidence that he is exceptional such that a mandatory life sentence would not be meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. See Johnson, 709 So.2d at 676. Accordingly, no downward departure from the presumptively constitutional mandatory life |1flsentence is warranted. The sentence imposed is not grossly disproportionate to the severity of the offense and, therefore, is not unconstitutionally excessive.

This assignment of error is without merit.

SENTENCING ERROR

Whoever commits the crime of aggravated rape (now, first degree rape) shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.. La. R.S. 14:42(D)(1). In sentencing the defendant, the trial court failed to provide that the sentence was to be served at hard labor. Inasmuch as an illegal sentence is an error discoverable by a mere inspection of the proceedings without inspection of the evidence, La. Code Crim. P. art. 920(2) authorizes consideration of such an error on appeal. Further, La. Code Crim. P. art. 882(A) authorizes correction by the appellate court. We find that correction of this illegally lenient sentence does not involve the exercise of sentencing discretion and, as such, there is no reason why this Court should not amend the sentence. See State v. Price, 2005-2514 (La. App. 1st Cir. 12/28/06), 952 So.2d 112 (en banc), writ denied, 2007-0130 (La. 2/22/08), 976 So.2d 1277. Accordingly, since a sentence at hard labor was the only sentence that could be imposed, we amend the sentence to provide that it be served at hard labor.

CONVICTION AFFIRMED. SENTENCE AMENDED AND AFFIRMED AS AMENDED.

McClendon, J. concurs and assigns reasons.

McCLENDON, j.,

concurring.

hi disagree with the majority that the Louisiana Supreme Court case of State v. Skinner, 08-2522 (La. 5/5/09), 10 So.3d 1212, provides a method for remedying the procedural irregularity in this case. Skinner, while finding'that the issuance of a second subpoena by the State did not cure the State’s initial illegality, does not provide guidance for the particular facts before us; that is, whether a search warrant filed after the issuance of a subpoena will cure the initial illegality of obtaining medical records via subpoena. However, finding that nothing in Skinner prohibits the State from subsequently filing a search warrant to obtain medical records after initially obtaining those records via subpoena, particularly when those medical records are obtained for trial purposes rather than for criminal investigative purposes, I concur in the result reached by the majority.

      , The victim is referred to by her initials. See La. R.S. 46;1844(W).

      . Minocycline is an antibiotic often used to treat chlamydia.

      . The minutes reflect the defendant was sentenced to life imprisonment at hard labor. Generally, where there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La. 1983).

      . ■ 'An illegal sentence'may be corrected at any time by the court that imposed the sentence or by' an appellate court on review. La. Code Crim. P. art. 882(A).

      . In Skinner, the State initially obtained a subpoena instead of a search warrant and could not cure its warrantless search and seizure of the records by a .second subpoena of those records, Skinner, 10 So.3d at 1218.


source: Caselaw Access Project

author: HOLDRIDGE, J.

license: Public Domain

text:
    Abdullah Hakim EL-MUMIT v. Kenneth J. FOGG, Judge, et al.
    1988 CA 0356
    Court of Appeal of Louisiana, First Circuit.
    SEPTEMBER 28, 2017

      Abdullah Hakim El-Mumit, D.O.C. # 1029229, Gar 1-L-# 3, Louisiana State Penitentiary, Angola, LA, Plaintiff/Appellant In Proper Person
    Brent E. Kinchen, Stephen F. Butter-field, Baton Rouge, LA, Attorneys for Defendant/Appellee, Dr. Alan Day
    Clifford Jay Enten, Stephen M. Pizzo, Metairie, LA, Attorneys for Defendanf/Ap-pellee, Dr., Richard Strobach
    Joseph Rausch, Metairie, LA, and Eric L. Pittman, Denham Springs, LA, Attorneys for Defendants/Appellees, Odom Graves, Willie Graves, Abe Ross, and Nelda Glascock
    Iddo Pittman, Jr., Hammond, LA, Attorney for Defendants/Appellees, William M. Quin, Freeman W. Ramsey, and Thomas B. Waterman
    Roy Mongrue, Jr., Baton Rouge, LA, Attorney for Defendant/Appellee, Judge Kenneth J. Fogg
    James E. Kuhn, Denham Springs, LA, Attorney for Defendant/Appellee, Dr. Edwin Walker
    BEFORE: HIGGINBOTHAM, HOLDRIGE, AND PENZATO, JJ,
   HOLDRIDGE, J.

IsThis appeal concerns the dismissal of several defendants from a prisoner’s suit for damages for alleged violations of his constitutional rights and for conditions of his incarceration after his arrest and before his conviction. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

On August 18, 1986, Abdullah Hakim El-Mumit (plaintiff) was convicted of first degree murder and sentenced to death for killing Deputy Edward Toefield, Jr., of the Tangipahoa Parish Sheriffs Office on February 2,1984. State v. Sparks, 88-0017 (La. 5/11/11), 68 So.3d 435, 448-49, cert. denied, 566 U.S. 908, 132 S.Ct. 1794, 182 L.Ed.2d 621 (2012). Plaintiff appealed, and the case went ‘directly to the Louisiana Supreme Court by operation of law. La. Const, art. V, § 10; La. C.Cr. P. art. 912.1; Sparks, 68 So.3d at 448. While the appeal was pending, plaintiff brought the civil proceedings that are the subject of the present appeal to recover money damages for diverse alleged deprivations and improprieties that occurred before and during his trial for first degree murder in the Twenty-First Judicial District Court for Livingston Parish. The district court ultimately dismissed numerous defendants from plaintiffs civil suit.

On plaintiffs initial appeal to this court of the dismissals in his civil suit, we stayed the appeal until final resolution of plaintiffs criminal appeal based on our finding that plaintiffs allegatioñs were an attempt to have this court review his criminal proceedings, which, as earlier noted, were on appeal to the: Louisiana Supreme Court. El-Mumit v. Fogg, 542 So.2d 149, 151 (La. App. 1 Cir. 1989). The Louisiana Supreme Court affirmed plaintiffs conviction, conditionally affirmed his death sentence, and remanded the matter to the district court for an | ¿evidentiary hearing on. plaintiffs claim that he received ineffective assistance of counsel during the penalty phase of his trial. State v. Sparks, 88-0017 (La. 5/11/11), 68 So.3d 435, 448, cert. denied, 566 U.S. 908, 132 S.Ct. 1794, 182 L.Ed.2d 621 (2012). Thereafter, pursuant to an agreement between the state and.plaintiff, the district court vacated plaintiffs death penalty sentence and sentenced him to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. State v. Sparks, 2016-0999 (La. App. 1 Cir. 2/17/17), 2017 WL 658778. Plaintiff appealed his life sentence and this court affirmed the sentence. Id. On April 28, 2017, following the conclusion of the criminal proceedings, this court lifted the stay in the instant appeal.

Numerous individuals were named as' defendants in' the civil suit, including Kenneth J. Fogg, Judge for the Twenty-First Judicial District Court; Freeman W. Ramsey, William M. Quin, and Thomas B. Waterman,. Assistant District Attorneys for Livingston Parish; Abe Ross and Nelda Glascock, Warden, and Assistant Warden, respectively, of Livingston Parish Prison;. Willie Graves, a Livingston Parish Sheriffs detective; Dr. Ralph Maxwell, coroner of Tangipahoa Parish; Dr. Richard Strobach, a physician in private practice; Dr. Alan Day, a dentist in private practice;, and Dr. Edwin Walker, a physician in Livingston Parish,

The suit appears to have been brought under both state tort law and the Civil Rights Act of 1871, 42 U.S.C. § 1983. The suit seeks monetary redress for alleged improper treatment during plaintiffs incarceration after his arrest and for alleged infirmities in the criminal proceedings that resulted in his conviction. The suit alleged that on February 10,1984, after his arrest, plaintiff was placed in the Livingston Parish Prison where Graves was sheriff and Ross and Glascock were I ¿wardens. Plaintiff raised various complaints about his incarceration, particularly seeking damages for being placed on lockdown status, allegedly improperly.

Plaintiff makes several allegations about certain actions that he contends deprived him of a fair trial, which took place from August 11 through August -18, 1986. He alleged that defendants Ross and Glascock violated an order prohibiting pretrial statements regarding the pending criminal proceedings to the press; that defendants (without specifying which defendants) detained him so that he missed the calling of the jury venire and the jury’s receipt of instructions; that Graves set up security, which caused a “carnival or circus atmosphere”; that Waterman and Ramsey acted as his defense attorneys, that Ramsey then used information about his defense to obtain a job with the District Attorney’s office, and that Waterman gave information to the District Attorney’s office; and that Waterman and Ramsey withheld, certain allegedly exculpatory evidence. Plaintiff alleged that Ross violated a court order allowing him to remain in the parish prison and speak with his court-appointed counsel and had him transferred to the Louisiana State Penitentiary in Angola; he alleged this transfer. took place between June and August of 1986. Plaintiff also alleged that Ross violated a court order allowing him to view the scene of the crime and evidence to be used in the case. Plaintiff | (¡alleged that Judge . Fogg changed the venue for the trial, granted a psychiatric evaluation, housed him where the victim’s son was a trustee, and denied his request for habeas corpus relief.

Plaintiff alleged that he was taken against his will to Dr. Day for dental x-rays on August 11, 1986 by Ross, Graves, and Waterman; on the same date, he alleged he was taken to Dixon Memorial Hospital by unidentified defendants where Dr. Walker performed a body cavity search, and performed x-rays. In reading these allegations together with plaintiffs other allegations, it appears plaintiff missed the calling of the jury venire and the giving of initial instructions at the beginning of his trial because he was at Dr. Day’s office and Dixon Memorial Hospital.

Defendants Ross, Glascock, and Graves filed an exception of prescription .and .no cause of action, which was granted, and those parties were dismissed from the suit in a judgment signed on October 27, 1987. Assistant District Attorneys Quin, Ramsey, and Waterman filed an exception of no cause of action, which was granted, and those parties were dismissed from the suit in a judgment signed on October 28, 1987. Dr. Strobach filed ah exception of no cause of action, which'was granted, and he was dismissed from the suit in a judgment signed in November of 1987;' Dr. Day filed an exception of no cause of action and/or alternatively, a motion for summary judgment, and" was dismissed from the' proceedings-in a judgment signed in November of 1987.*

1 ^Plaintiff filed three pleadings entitled “NOTICE OF INTENTION TO TAKE WRITS AND/OR APPEAL,” two of which refer to the judgment on October 27,1987, and one -of which refers to judgments rendered on October 27 and 28, 1987. The district court signed the three orders for appeal. On appeal, plaintiff contends that his claims regarding acts which occurred in August of 1986 were not prescribed because suit was filed on May 26,1987. He also contends that the district attorneys named as defendants are not entitled to immunity because they “knowingly” and “maliciously” denied plaintiff his constitutional rights Lastly, he contends that he was entitled to damages for being improperly placed on lockdown status.

DISCUSSION

We initially will address a jurisdictional issue before addressing the merits of this appeal as appellate courts have the duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue. Noyel v. City of St. Gabriel, 2015-1890 (La. App. 1 Cir. 9/1/16), 202 So.3d 1139, 1142, writ denied, 2016-1745 (La. 11/29/16), 213 So.3d 392. As to any possible appeal of the judgments of November of 1987 dismissing Drs. Stro-bach and Day from the suit, the record does not contain any motion and order for appeal as to those judgments. Louisiana Code of Civil Procedure article 2121 provides that “[a]n appeal is taken by obtaining an order therefor[.]” Louisiana Code of Civil Procedure article 2088 provides that the trial court’s jurisdiction is divested and that of the appellate court attaches “on the granting of the order of appeal[.]” A party wishing to appeal an [^adverse judgment must obtain an order of appeal. Noyel, 202 So.3d at 1142. There can be no appeal absent an order of appeal because the order is jurisdictional; this lack of jurisdiction can be noticed by the court on its own motion at any time. Id. We note that plaintiffs brief does not address any issues as to the judgments dismissing Drs. Day and Strobach; moreover, these judgments are not attached to the appellate brief, unlike the judgments of October 27 and 28, 1987, as is required for the judgment “complained of’ by Uniform Rules-Courts of Appeal, Rule 2-12.4(B)(l). Therefore, as to the judgments dismissing Drs. Strobach and Day from the suit, because there is no motion and order for appeal referencing these judgments, this court has no jurisdiction and the appeals from the November 1987 judgments must be dismissed.

The other issues in this appeal concern whether the trial court erred in granting the exceptions of no cause of action and prescription as to Ross, Glascock, and Graves, and the exception of no cause of action as to Quin, Waterman, and Ramsey. An exception of no cause of action questions whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition. Badeaux v. SW. Computer Bureau, Inc., 2005-0612 (La. 3/17/06), 929 So.2d 1211, 1217. The exception is triable on the face of the petition and, to determine the issues raised by the exception, each well-pleaded fact in the petition must be accepted as true. Id. In reviewing a district court’s ruling sustaining an exception of no cause of action, appellate courts conduct a de novo review because the exception raises a question of law and the district court’s decision is based only on the sufficiency of the petition. Id.

Plaintiff’s allegations involved the fairness of his criminal trial and the conditions of his pretrial incarceration. In the initial appeal of this matter, this [9court stated that plaintiff was attempting to seek review of his criminal proceedings. This court then explained:

In Richardson v. Fleming, 651 F.2d 366 (5th Cir. 1981), the United States Fifth Circuit Court of Appeals held that for purposes of 42 U.S.C. § 1983, it is not the relief sought but rather the basis of the claim, that determines whether the claim is cognizable under 42 U.S.C. § 1983, and that if the claim attacks the constitutionality of the state conviction, the exclusive remedy is habeas corpus with its prerequisite of exhaustion of state remedies. 651 F.2d at 372-73. Clearly, then, under the rationale of Richardson, had this suit, been brought in federal court, it would have been dismissed.6 The federal courts have extended this doctrine beyond the principals of comity to include the collateral attack of a federal conviction, holding that the federal habeas corpus remedies under 28 U.S.C. .§ 2255 must first be exhausted prior to bringing a suit under 42 U.S.C. § 1983 on a claim that would “factually undermine [the] conviction.” Dees v. Murphy, 794 F.2d 1543, 1544-45 (11th Cir. 1986), quoting Richardson, 651 F.2d at 373.
We are a court of limited jurisdiction. See La. Const, art. V, § 10. We are not vested with jurisdiction of an appeal from criminal proceedings which result in a sentence of death. LSA-C.Cr.P. art. 912.1. We therefore think it inappropriate to entertain an appeal involving issues currently pending before our supreme court and beyond our jurisdiction. For reasons of efficient judicial administration and in the interest of justice, we order the appeal stayed until final resolution of plaintiffs criminal appeal.
6 At least insofar as the petition would be construed to collaterally attack the state court conviction, it would be dismissed. See Richardson v. Fleming, 651 F.2d 366, 373 (5th Cir. 1981).

El-Mumit, 542 So.2d at 151.

Since the earlier appeal before this court, the United States Supreme Court decided Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 2372, 129 L.Ed.2d 383 (1994), wherein it held that a plaintiff who has been convicted of a crime cannot bring a § 1983 claim challenging the constitutionality of his conviction unless that conviction has been reversed, expunged,- declared invalid, or called into question by federal habeas corpus. Heck bars claims for harm caused by actions whose unlawfulness would render a conviction or sentence invalid. Id. Thus, unless the conviction has been overturned, a plaintiff cannot bring a § 1983 Imdaim if prevailing on that claim would imply that his conviction was invalid. Williams v. Harding, 2012-1595 (La. App. 1 Cir. 4/26/13), 117 So.3d 187, 190. The jurisprudence clearly holds that civil suits are not allowed to collaterally attack previous criminal convictions. Id. at 191.

Plaintiffs claims . against Waterman, Quin and Ramsey (the district attorney defendants) and his claims regarding the denial of a fair trial against Ross, Glascock and Graves challenge the validity of his conviction, and they are the type of claims that are barred by Heck and its progeny. See Williams, 117 So.3d at 190. This court’s stay was lifted after the decision affirming plaintiffs conviction became final. Because of the Heck bar to plaintiffs claims as to Waterman, Quin, and Ramsey, and as to those claims concerning the denial of a fair trial as to Ross, Glascock, and Graves, we affirm the dismissal of these claims. We pretermit discussion of the affirmative defense of prosecutorial immunity.

Plaintiff also urged claims against Ross, Glascock and Graves regarding the conditions of his confinement. They contended that those claims are prescribed because plaintiffs claims concerned the time period shortly after his arrest, in February, 1984, and suit was not filed until May 26, 1987. The party urging the exception of prescription has the burden of proving facts to support the exception, unless the petition is prescribed on its face. State by & Through Caldwell v. Fournier Industrie et Sante & Labs. Fournier, S.A., 2015-1353 (La. App. 1 Cir. 12/22/16), 208 So.3d 1081, 1084. Although evidence may be introduced to support or controvert the peremptory exception of prescription, in the absence of evidence, the objection of prescription must be decided upon the facts alleged in the petition, with all allegations accepted as true. Id. No evidence was introduced at the hearing as to the defendants’ exception of prescription. The trial court’s judgment raises a pure question of law for appellate review. In a case involving no In dispute regarding material facts, but only the determination of a legal issue, the reviewing court must apply the de novo standard of review, under which the trial court’s legal conclusions are not entitled to deference. Id.

While 42 U.S.C. § 1983 does not provide a statute of limitations for 1983 actions, the settled practice is to adopt the appropriate state limitation period as federal law if the state law is not inconsistent with federal law or policy. Graugnard v. Capital Area Transit Sys., 2012-2025 (La. App. 1 Cir. 12/20/13), 137 So.3d 26, 30, writ denied, 2014-0128 (La. 3/21/14), 135 So.3d 621. Louisiana’s one-year liberative prescription for delictual actions, set forth in La. C.C. art. 3492, provides the limitation period for § 1983 actions. Id. Therefore, the district court properly sustained the exception of prescription filed by Ross, Glascock, and Graves,

CONCLUSION

' For the foregoing reasons, plaintiffs contentions on appeal have no merit, and we affirm the judgments of October’ 27, 1987 and October 28, 1987, dismissing plaintiffs claims against defendants Freeman W. Ramsey, William M, Quin, Thomas B. Waterman, Abe Ross, Nelda Glascock, and Willie Graves. The- appeal, if any, as to the judgments of November of 1987 dismissing plaintiffs claims as to Dr. Richard Strobach and Dr. Alan Day, is dismissed. All costs of this appeal are to be paid by plaintiff, Abdullah Hakim el-Mumit.

AFFIRMED, APPEAL OF NOVEMBER 1987 JUDGMENTS DISMISSED.

      . Plaintiff’s name was legally changed from Thomas Sparks to Abdullah Hakim El-Mumit after his incarceration. See Sparks v. Ware, 509 So.2 811, 813 (La. App. 1 Cir. 1987).

      . The petition recited that all defendants were sued in their respective official and individual capacities. Joseph E, Anzalone as judge, Duncan S. Kemp as district attorney, and' Odom Graves as sheriff were named as defendants, but were later voluntarily dismissed from the suit.

      . More specifically, plaintiff alleged that during his incarceration in the Livingston Parish prison, he was denied visitors; he was confined in a cell that was infested with bugs and ’ contained, open drainage in the floor; he was kept in the cell with an open gunshot wound; the cell had no windows and he could not communicate with other inmates; he was not allowed to shower daily; he was not given a copy of the prison rules upon his arrival or afforded a full hearing before being placed on lockdown status; and he could not attend religious services while on lockdown status.

      .Plaintiff's petition does not always identify which specific defendants he is' complaining about, and he does not always give the correct pertinent dates. Because he is in proper person, we are not holding plaintiff to the strin- . gent standards applied to attorneys; however. because plaintiff named fifteen people as defendants and listed, twenty-four allegations covering different periods of time, it is challenging to interpret the petition.

      . Plaintiff initially alleged that Judge Joseph E, Anzalone was one of his defense attorneys who gave information to the District Attorney’s office and then later withheld exculpatory information from him, but then later amended his petition to substitute Waterman’s name for that of Judge Anzalone.

      . Plaintiff alleged that Drs. Maxwell and Stro-bach violated his rights in conjunction with his examination for a court-ordered Sanity Commission Report (requested by plaintiffs counsel).

      . The record contains evidence that on August 11, 1986, pursuant to court order, plaintiff was to undergo a body cavity examination and submit to dental x-rays to ensure security for all parties at the trial. The warden received information that plaintiff could have foreign objects in his mouth or anal tract that were dangerous..

      , The district court held a hearing on August 31, 1987 on the exceptions and Dr. Strobach’s motion for summary judgment; the court took all matters under advisement. The judgments as to Drs. Strobach and Day contain blanks for the day and month, but only the blank for the month was filled out by the judge.

      . Judge Fogg filed an exception of no cause of action but the record does not contain a judgment or ruling on the exception. Dr. Walker filed an exception of improper service, but the record does not contain a ruling on that exception. Dr. Walker answered the petition, denying all allegations.

      . Plaintiff’s contention on appeal that, his claims regarding acts which occurred in Au- . gust of 1986 were not prescribed because suit was filed on May 26, 1987 are irrelevant because those claims pertain to his trial and were appropriately dismissed on the exception of no cause of action based upon Heck.


author: HIGGINBOTHAM, J.

text:
    Michael Rene BENBOW v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
    NO. 2016 CA 1663
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: SEPTEMBER 28, 2017

      William L. Kline, Baton Rouge, LA, Attorney for Defendant-Appellee, Louisiana Department of Public Safety and Corrections
    Michael Rene, Benbow Tallulah, LA, Plaintiff-Appellant, In Proper Person
    BEFORE: MCCLENDON, HIGGINBOTHAM, AND HOLDRIDGE, JJ.
   HIGGINBOTHAM, J.

1 ¡.Michael Benbow, an inmate in the custody of the Louisiana Department of Public Safety and Corrections (DPSC), appeals a judgment of the district court, dismissing his “Application for Writ of Review and/or Writ of Certiorari and Prohibition to Vacate an Illegal and/or Unconstitutional Multiple Offender’s- Sentence”-■ without prejudice.

On July 13, 2011, in the Twenty-Second Judicial District Court, Mr. Benbow pled guilty to distribution of a schedule II controlled dangerous substance within 1,000 feet of a school or recreational park. He was sentenced to ten years at hard labor without the benefit of parole, probation, or suspension of sentence. Subsequently, the State filed a habitual offender bill of information, and through Mr. Benbow’s admission to the allegations in the habitual offender bill, the district court found Mr. Benbow to be a second felony offender and sentenced him to seventeen years at hard labor without the benefit of parole, probation, or suspension of sentence.

On September 16, 2014, Mr. Benbow filed an application for writ of review with the Nineteenth Judicial District Court, naming DPSC as defendant and alleging that his habitual offender sentence is illegal in that the district court imposed the seventeen-year sentence as a habitual offender, but failed to vacate the ten-year sentence. In accordance with the screening requirements required by La. R.S. ISiIWSÍB), the commissioner found Mr. Benbow’s claim was subject to judicial review under the Corrections Administrative Remedy Procedure (CARP) La. R.S. 15:1177, et. seq.

IsThe commissioner reviewing Mr. Ben-bow’s writ application recommended that it be dismissed without prejudice for lack of subject matter jurisdiction based on a failure to exhaust administrative remedies, pursuant to La. R.S. 15:1177, et. seq. In accordance with the commissioner’s recommendations, the district court signed a judgment on August 31, 2016, dismissing the matter without prejudice. Mr. Benbow appealed.

Mr. Benbow contends that DPSC knew that.by failing to vacate the original sentence it would subject him to an illegal or unconstitutional multiple offender’s sentence. Upon review of the record, it is clear that the only issue Mr. Benbow raised to DPSC was that the sentence imposed by the district court was illegal or unconstitutional. This is not a claim appropriate for disposition through CARP, because DPSC had no power to alter Mr. Benbow’s sentence. See Madison v. Ward, 2000-2842 (La. App. 1st Cir. 7/3/02), 825 So.2d 1245, 1255 (en banc). Instead, this claim should have been raised either through a timely motion for reconsideration of sentence directed to the sentencing court (La. Code Crim. P. art. 881.1), timely direct appeal of that sentence to the appropriate court of appeal, or at any time by a motion to correct illegal sentence (La. Code Crim. P. art. 882(A)) directed to the sentencing court. See Madison, 825 So.2d at 1255. The record does not indicate whether Mr. Benbow attempted to challenge his sentence through any of the appropriate, available, procedural vehicles. We further observe that, because Mr. Ben-bow was sentenced in St. Tammany Parish, the Nineteenth Judicial District Court would not have had jurisdiction over such a challenge. See Madison, 825 So.2d at 1255.

For the above and foregoing reasons, this appeal is dismissed. All costs associated with the appeal are assessed to Michael Benbow.

APPEAL DISMISSED.

      . La. R.S. 1178(B) provides:
      The court, as soon as practicable after receiving the petition, shall review the petition to determine if the petition states a cognizable claim or if the petition, on its face, is frivolous or malicious, or fails to state a cause of action, or seeks monetary damages from a defendant who is immune from liability for monetary damages.


author: WELCH, J. McCLENDON, j.,

text:
    Lisa VIERING and Stephen Viering v. LIBERTY MUTUAL INSURANCE COMPANY and/or LM General Insurance Company, Aaron Michael Dick, Barry Dick, and Feather & Fin Ranch, Inc.
    NUMBER 2017 CA 0204
    Court of Appeal of Louisiana, First Circuit.
    SEPTEMBER 27, 2017

      James E. Shields, Sr., Gretna, Louisiana, Attorney for Appellants Plaintiffs— Lisa Viering and Stephen Viering
    D. Russell Holwadel, Heather England Rezniék, New Orleans, Louisiana, Attorneys for Appellee Defendant — Barry Dick
    BEFORE: MeCLENDON, WELCH, AND THERÍOT, JJ.
   WELCH, J.

|2The plaintiffs/appellants,’ Lisa Viering and Stephen Viering, appeal a trial court judgment granting summary judgment in favor of the defendant/appellee, Barry Dick, on the issue of liability for negligent entrustment. For the reasons that follow, we vacate the judgment of the trial court, and remand this matter for a contradictory hearing.

FACTUAL BACKGROUND

On June 24, 2014, at approximately 12:40 p.m., plaintiff, Lisa Viering, was operating a friend’s van and travelling in an easterly direction on U.S. 190 near its intersection with LA. 433. At the same time, the defendant, Aaron Michael Dick, was permissively operating a Mercury Mountaineer owned by his father, defendant, Barry Dick, in a westerly direction on the same highway; It is undisputed that the Dick vehicle crossed the centerline of the road and struck the front left of the van being operated by Mrs. Viering. Unfortunately, Mrs. Viering sustained serious injuries as a result of the accident. According to the motor vehicle traffic crash report, .Aaron Dick submitted to a series of standardized field sobriety tests and no impairment was determined.

PROCEDURAL HISTORY

On July 17,2014, the plaintiffs filed-their initial petition for damages naming as defendants, Aaron Dick, Barry Dick, Liberty Mutual (Barry Dick’s automotive insurer), and Feather & Fin Ranch, Ina (“Feather and Fin”). The petition asserted liability on the part of Barry Dick on the basis that he owned the vehicle that Aaron Dick Was driving at the time of accident. The petition alleged that Aaron Dick was an employee of Feather & Fin and acting within the course and scope of his employment at the time of the accident. Based on the allegations |sregarding Aaron Dick’s status as an employee, the petition asserted Feather & Fin was liable hinder the doctrine of respondent superior and/or principal agent.

In October of 2015, Barry Dick filed a peremptory exception raising the objection of ño cause of action asserting that the petition was insufficient to state a cause of action that he was independently responsible for the plaintiffs’ damages. On January 21, 2016, prior to the scheduled hearing on Barry Dick’s exception of no cause of action, the plaintiffs filed a second amended petition specifically asserting a claim for negligent entrustment against Barry Dick.

The second amended petition alleged that Aaron Dick was performing errands for Barry Dick, individually, and' for Feather & Fin on the date of the accident. With regard to Barry Dick’s liability, the plaintiffs alleged that Barry Dick knowingly entrusted his vehicle to Aaron Dick, despite knowing that Aaron Dick’s driver’s license was suspended and that he was on parole for a drug offense. The second amended petition also named as a defendant, Travelers Casualty Insurance Company of America (“Travelers”), in its capacity as the liability insurer of Feather & Fin.

At a hearing addressing Barry Dick’s exception.,of no cause of action, it was conceded by the parties that the allegations of negligent entrustment contained in the second amended petition rendered Barry Dick’s -exception moot. The plaintiffs subsequently filed third and fourth amended petitions, which relate solely to the plaintiffs’ claims regarding Feather & Fin’s liability as the alleged employer of 14Aaron Dick, and acts of fraud, deceit, and bad faith by Liberty Mutual and Travelers.

Relevant to the instant appeal, on August 30, 2016, Barry Dick filed a motion for summary judgment seeking the dismissal of the plaintiffs’ claims against him for negligent entrustment. Specifically, the motion asserted that the plaintiffs lacked evidence to demonstrate that Barry Dick knew or should have known that Aaron Dick was incompetent to drive on the day of the accident. The motion was supported by Barry Dick’s affidavit, selected portions of Aaron Dick’s deposition, the official accident report from the June 24, 2014 accident, and a document entitled “Addendum to Conditions of Parole.”

in their timely opposition to the motion for summary judgment, the plaintiffs alleged various facts, which they purport support a finding that Barry Dick was liable for negligent entrustment. The plaintiffs stressed Barry Dick’s knowledge of Aaron Dick’s criminal background, “use and misuse of drugs and alcohol,” status as a parolee, and lack of a driver’s license. Further, the plaintiffs’ averred that Aaron Dick’s deposition testimony that the accident was caused by his falling asleep at the wheel, coupled with the fact that the accident happened very shortly after Barry Dick loaned him the vehicle, support a finding that. Barry Dick knew that his son was impaired when he gave him the keys. Finally, the plaintiffs maintained that the motion for summary judgment merely reasserted the same arguments unsuccessfully raised by Barry Dick in his previously denied exception of no cause of action.

Pursuant to La. C.C.P. art. 966(B)(2), the plaintiffs’ opposition to the motion for summary judgment attached the district court’s March 17,. 2016 judgment denying Barry Dick’s exception of no cause of action, the entire transcript of [ sAaron Dick’s deposition, and various court minutes and printouts related to Aaron Dick’s criminal record. Neither Barry Dick nor the plaintiffs objected to the documents filed in support of their respective positions. See La. C.C.P. art. 966(D)(2). .

October 11, 2016 Hearing

A contradictory hearing on Barry Dick’s motion for summary judgment was held on October 11, 2016. Also set for hearing on the same day were various motions filed by Travelers against the plaintiffs, including Travelers’ motion for summary judgment asserting that there was no coverage under the Travelers’ policy issued to Feather & Fin because there was no evidence to demonstrate that Aaron Dick was an employee on the date of the accident; a motion to quash the La. C;C.P. art. 1442 corporate deposition of Travelers; and an opposition to the plaintiffs’, motion for leave to file their fourth amended petition. Also on the docket was the plaintiffs’ motion to continue the hearing on Travelers’ motion for summary judgment filed six days before the scheduled hearing. In their motion to continue, the plaintiffs 'maintained the hearing on Travelers’ motion for summary judgment should be- continued until Travelers’ motion to quash its corporate deposition was ruled upon. The plaintiffs did not file an opposition memorandum to Travelers’ motion for summary judgment, only the aforementioned motion to continue.

Review of the transcript from the October 11, 2016 hearing reveals that counsel for Travelers argued its motions first. The district court granted Travelers’ motion for summary judgment, and the motion to quash the La. C.C-.P. art. 1442 corporate deposition of Travelers. The district court then denied the plaintiffs’ motion for leave of court to file the fourth amended petition, and the plaintiffs’ | Bmotion to continue the hearing on Travelers’ motion for summary judgment. There was no direct discussion or argument regarding Barry Dick’s motion for summary judgment. Nevertheless, when ruling on the motions related to the claims against Travelers, the district court also appeared to grant Barry Dick’s motion for summary judgment, to wit:

THE COURT:
And there being no opposition being filed, you [plaintiffs’ counsel] waive any oral argument to that, and I grant both summary judgments, dismissing this matter with prejudice.
I will certify this as a final appeal of a judgment. [Emphasis added.]

Following this statement by the district court, an exchange was held between the district court and counsel for the plaintiffs wherein counsel for the plaintiffs urged consideration of the plaintiffs’ motion to continue the hearing on Travelers’ motion for summary judgment. Following this discussion, counsel for the plaintiffs was instructed by the district court to direct any further argument to the court of appeal. At no point during the hearing was argument or substantive discussion entertained regarding Barry Dick’s motion for summary judgment. At the end of the hearing, counsel for Barry Dick had the following exchange with the district court:

[Counsel for Barry Dick]:
Are you going to grant the motion for summary judgment for Barry Dick as well?
THE COURT:
Oh, yes. Yes. I granted that as well.

In a judgment signed October 28, 2016, the district court granted Barry Dick’s motion and dismissed the plaintiffs’ suit against Barry Dick with prejudice. The plaintiffs now appeal the district court’s October 28, 2016 judgment granting |7Barry Dick’s motion for summary judgment. The plaintiffs maintain that the district court erred in denying the plaintiffs the opportunity to present oral argument at the October 11, 2016 hearing, as well as in failing to find that the evidence presented revealed genuine issues of material fact as to their claims of negligent entrustment. Finally, the plaintiffs aver that the district court erred in denying the plaintiffs’ motion for leave of court to file a fourth amended petition “dismissing [plaintiffs’] cause of action and pleading of negligent entrustment.” As set forth below, as a result of the 2015 legislative amendment to La. C.C.P. art. 966 (La. Acts 2015, No. 422, § 1) we find merit in the plaintiffs’ assertion that the failure to hear arguments in connection with Barry Dick’s motion for summary judgment was in error. We note that this is a matter of first impression.

LAW AND DISCUSSION

Requirement of Hearing for Summary Judgment

As noted above, the plaintiffs timely filed their opposition to Barry Dick’s motion on September 28, 2016, which was more than fifteen days before the scheduled hearing as required by La. C.C.P. 966(B)(2); however, they did not file an opposition to Travelers’ motion for summary judgment. The plaintiffs surmise that the district court denied summary judgment on the erroneous belief that the plaintiffs had not filed a timely opposition to Barry Dick’s motion for summary judgment. The plaintiffs suggest that had they been allowed to argue, they would have had the opportunity to point out certain facts supporting their claim for negligent entrustment.

The fundamental question in all cases of statutory interpretation is legislative intent. SWAT 24 Shreveport Bossier, Inc. v. Bond, 2000-1695 (La. 6/29/01), 808 So.2d 294, 302; Succession of Boyter, 99-0761 (La. 1/7/00), 756 So.2d 1122, 1128. The meaning and intent of a law is determined by considering the law in its entirety and all other laws on the same subject matter and by placing a construction |Ron the law that is consistent with the express terms of the law and with the obvious intent of the legislature in enacting the law. SWAT 24 Shreveport Bossier v. Bond, 808 So.2d at 302; Succession of Boyter, 756 So.2d at 1129. , A statute must be applied and interpreted in a manner that is logical and consistent with the presumed purpose and intent of the legislature. Swat 24 Shreveport Bossier v. Bond, 808 So.2d at 302; Succession of Boyter, 756 So.2d at 1129.

The articles of the Louisiana Code of Civil Procedure are to be construed liberally, and with due regard for the fact that rules of procedure implement the substantive law and are not an end in themselves. La. C.C.P. art. 5051. When the language of an article of the Louisiana Code of Civil Procedure is clear and free from ambiguity, its letter is not to be disregarded under the pretext of pursuing its spirit. La. C.C.P. art. 5052. Finally, it is presumed that the legislature acts with full knowledge of well-settled principles of statutory construction. Sultana Corporation v. Jewelers Mutual Insurance Company, 2003-0360 (La. 12/3/03), 860 So.2d 1112, 1119.

As a result of the 2015 amendments to La. C.C.P. art. 966(B), the parties must now attach all documents in support of or in opposition to their motion for opposition. Further, all objections to any documents submitted for the district court’s consideration must be raised in the opposition or reply memorandum. La. C.C.P. art. 966(D)(2). As a result, parties are precluded from submitting or objecting to evidence at the hearing' on the motion. Yet, despite the inability to present or object to documents at the hearing, a contradictory hearing is. mandated by the La. C.C.P. arts. 963 and 966.

.Louisiana Code of Civil Procedure article 963 provides, in pertinent part, as follows:

If the order applied for by written motion is one to which the mover is not clearly entitled, or which requires supporting proof, the motion shall be served on and tried contradictorily with the adverse party.

|9The rule to show cause is a contradictory motion.

Similarly, regarding the requirement of a contradictory hearing La. C.C.P. art. 966(C) provides, in pertinent part, as follows:

(1) Unless otherwise agreed to by all of the parties and the court:
(a) A contradictory hearing on the motion for summary judgment shall be set not less than thirty days after the filing and not less than thirty days prior to the trial daté.

The word “shall” is mandatory.-La. C.C.P. art. 5053. We note that the phrase “contradictory hearing” in the 2015 amendment to La; C.C.P. art. 966 is new. As discussed below, under the previous version of the La. G.C.P. art. 966, the district court was required-to “hear” the motion for summary judgment. A reading of La. C.G.P. art. 966, as amended, evidences the legislative1 intent, in the absence of an agreement otherwise, that a contradictory hearing on the motion for summary judgment shall be set not less than thirty days after filing and not less than thirty days prior to the trial date. Such a reading is supported by the text of La. C.C.P. art. 963, which mirrors the express requirement of a. contradictory hearing for contradictory motions, like the summary judgment,

We recognize that Louisiana District Court ¡Rule 9.18 provides: “[o]ral argument is a privilege, not a right, and is within the court’s discretion.” We also acknowledge that the district court has great discretion in the construction, interpretation, application, and enforcement of its own rules. Vincent v. Vincent, 2011-1822 (La. App. 4th Cir. 5/30/12), 95 So.3d 1152, 1161. However, we- find that in those instances where a party follows the procedural requirements of La. |inC.C.P. art. 966,' the legislature’s inclusion of the phrase “contradictory hearing” in La. C.C.P. art. 966(C)(1)(a) signals the intent that both parties be allowed to appear and present argument. We note that the only reference to forfeiture of the privilege of oral argument is Louisiana District Court Rulé 9.9(e), which provides that parties who fail ’to timely file their memorandum in support of the motion for summary judgment or opposition may forfeit the privilege of oral argument.

A hearing on the motion for summary judgment, regardless of whether evidence can bé admitted or not, serves the important purpose of allowing parties and/or their counsel to present argument and' engage with the tribunal. As the Louisiana Supreme Court pronounced in Bastrop State Bank v. Samson Levy, 106 La. 686, 31 So. 164, 166 (1901):

Judicial tribunals are established to administer justice between litigants, and the first and most important step to that end is the ascertainment of the truth of the ' controversies which come before them.' It is only when the truth is ascertained that the law can b'e properly 'applied in the just settlement of disputes.

It is a well-established principle that the judiciary’s foremost functions are to hear cases and, based on the evidence presented, render judgments. See La. C.C.P. art. 1.

Finally, we find the instant matter distinguishable from this court’s previous decision in Walker v. LeBlanc, 2012-0764 (La. App. 1st Cir. 12/21/12), 111 So.3d 1069, writ denied, 2013-0539 (La. 4/12/13), 110 So.3d 1080, wherein this court found no error in the district court’s ruling on the motion for summary judgment solely bn the memoranda of the parties without allowing oral argument or conducting a hearing, Id. at 1073-1074. At the time Walker v. LeBlanc was In decided La. C.C.P. art. 966(D) required that the district “court shall hear and render judgment on the motion for summary within a reasonable time.” This court, noting that all parties submitted multiple memoranda with exhibits for the district court’s consideration, found that there was “absolutely no indication that the district court failed to consider or ‘hear’ the positions and/or the evidence in support” before making the decision to grant the summary judgment. Id. at 1074. This court also found relevant the fact that neither party filed an order requesting that a hearing be set pursuant to Rule 9.8 of the Louisiana Rules for District Courts. Id.

In contrast, La, C.C.P. art. 966(C)(1)(a) now expressly provides that a district court must set a contradictory hearing on the motion for summary judgment unless the parties and district court agree otherwise. Further, the instant matter was properly set for a hearing and the parties were represented by counsel at the hearing. Finally and relevantly, here, the hearing transcript indicates that the district court may have failed to consider the plaintiffs’ opposition and documents in support before ruling based on the mistaken belief that the plaintiffs had not filed a timely opposition to Barry Dick’s motion for summary judgment.

We conclude that La. C.C.P. art. 966 as amended in 2015 clearly intends that the hearing will be contradictory with adverse counsel or parties present such that it affords the adverse party a reasonable opportunity to appear and to present argument. We find the district court erred in failing to allow the plaintiffs an opportunity to present oral argument opposing Barry Dick’s motion for summary judgment. Thus, we vacate the portion of the district court’s judgment granting the motion for summary judgment and remand with instructions that the matter be set |12for a contradictory hearing. Finding merit to this assignment of error, we pretermit discussion of the plaintiffs’ remaining assignments of error.

CONCLUSION

For the' foregoing reasons, the district court’s October 28, 2016 judgment granting the motion for summary judgment filed by Barry Dick is vacated, and we remand the matter to the district court to set Barry Dick’s motion for summary judgment for a contradictory hearing. The costs of this appeal are assessed to the defendanVappellee, Barry Dick.

VACATED AND REMANDED.

McClendon, J., agrees and assigns additional reasons'.

McCLENDON, j.,

agreeing.

IJ agree with the result reached by the majority, finding it to be consistent with my dissent in Walker v. LeBlanc, 12-0764 (La.App. 1 Cir. 12/21/12), 111 So.3d 1069, writ denied, 13-0539 (La. 4/12/13), 110 So.3d 1080.

      . Feather & Fin is a family-owned business associated with the Dick family.

      . On November 10, 2014, an amended petition was filed adding Progressive .Security Insurance Company, , the plaintiffs’ uninsured/underinsured motorist coverage provider, and Progressive Paloverde Insurance Company, the uninsured/underinsured motorist coverage provider for the van being operated by Mrs. Viering at the time of the accident.

      ,We note that the record lacks a full copy of the memorandum in support of Barry Dick’s exception of no cause of action, However, related information in the record reveals that Barry Diek’s exception of no cause of action asserted that the plaintiffs' allegations that Barry Dick was the owner of the vehicle operated by Aaron Dick were insufficient to state a claim that Barry Dick was independently liable for the plaintiffs’ losses.

      . Barry Dick’s motion for summary judgment was filed in August of 2016. As such, it is governed by the version of La. C.C.P. art, 966 amended and reenacted by La. Acts-2015, No. 422, § 1 (effective date of January 1, 2016).

      . The plaintiffs filed a separate appeal from the ruling on Travelers' motions, which is addressed in a separate opinion by this court. See Viering v. Liberty Mutual Insurance Co., 2017-0205 (La. App. 1st Cir. 9/27/17), 2017 WL 4314604.

      . We could find no established definition of "contradictory hearing” in the context of civil motions; however, La. C.C.P. art. 963 makes clear that it -must be "served on and tried contradictorily with the adverse party.” The calling of witnesses is not permitted at the hearing on a summary judgment, and all documents in support of and in opposition to the motion must be submitted prior to the hearing. Thus, we are constrained to find that in selecting the phrase “contradictory hearing" the legislature intended that both parties, including the adverse party, be afforded the privilege of oral argument, except in those cases where the memorandum or opposition is untimely filed in violation of La. C.C.P. art. 966(B).

      . Louisiana District Court Rules 9.8(b) and 9.9(a), (b), and (c), as amended October 7, 2015, effective January 1, 2016, provide that all .time delays associated with the filing of memorandums, oppositions, and replies associated with motions for summary judgment will be governed by La. C.C.P. art. 966, not the court rules. We find nothing in the text of La. C.C.P. art. 966 or the Louisiana District Court Rules to indicate that the provisions granting privilege of oral argument referenced in Rules 9.9(e) and 9.18 are no longer applicable to motions for summary judgment.

      . We express no opinion as to the merits of the motion for summary judgment. Instead, we hold only that the procedure employed with regard to the contradictory hearing was improper.


author: PENZATO, J.

text:
    Alisha HOWZE v. Jacob HOWZE
    2017 CU 0358
    Court of Appeal of Louisiana, First Circuit.
    SEPTEMBER 28, 2017

      Wyman E. Bankston, Livingston, Louisiana, Attorney for Appellant, Jacob Howze
    Sherman Q. Mack, Albany, Louisiana, Attorney for Appellee, Alisha Howze
    Scott M. Perrilloux, District Attorney, Mike Lee, Assistant District Attorney, Livingston, Louisiana, Attorneys for Ap-pellee, State of Louisiana
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   PENZATO, J.

|2This is an appeal by Appellant, Jacob Howze, of a judgment modifying custody of the two minor children in favor of Ap-pellee, Alisha Howze. For the reasons set forth below, we reverse the trial court.

FACTS AND PROCEDURAL HISTORY

Jacob and Alisha were married on September 5, 2003, and were divorced on February 5, 2013, and by stipulated judgment signed February 4, 2013 (2013 judgment), the parties agreed to joint custody and to be named co-domiciliary parents of the two minor children born of the marriage. In the 2013 judgment, Alisha maintained physical custody of the children during the week and Jacob had physical custody every weekend. Subsequently, Jacob filed a rule to modify custody. In his motion to modify custody, Jacob noted that despite the stipulated 2013 judgment, he consistently had physical custody of the children over 50% of the time and primarily assisted them with school and extracurricular activities. He also requested that Alisha’s boyfriend at the time have no contact with the children. After a trial on May 20, 2014, the trial court granted Jacob’s motion, continued the joint custody of the children, but designated Jacob as the primary domiciliary parent and changed the custody schedule so that the children would primarily reside with Jacob. Alisha was granted supervised custodial periods with the children every other weekend from Friday to Sunday and on Tuesday evenings from 4:00 p.m. to 7:00 p.m., and the trial court signed a judgment in conformance with this ruling on June 12, 2014 (2014 judgment). The transcript from the May 20, 2014 trial is not in the record, but according to the minutes the trial court heard testimony and admitted evidence. Additionally, the judgment states “[t]he court, after considering the evidence presented, did render judgment .... ” Therefore, although from the record it cannot be determined the reasoning as to why the trial Ucourt modified custody, decreasing the time of physical custody oí Alisha, it did so after hearing testimony and admitting evidence.

On September 18, 2014, Alisha sought to modify custody, or in the alternative, modify visitation rights. A trial of the matter took place on March 30, 2015, and the trial court ordered that the parties maintain joint custody of the minor children, with Jacob designated as the domiciliary parent. The trial court signed a judgment in accordance therewith on October 8, 2015 (2015 judgment). The 2015 judgment granted Alisha custodial periods on alternating weekends from Friday after school until she returned them to school on Monday morning, as well as every’ Tuesday from after school until she returned them to school on Wednesday morning, together with such other holiday periods as had been set forth in' the 2013 judgment. Therefore, the 2015 judgment increased the time Alisha had physical custody of the children, and the custodial periods were no longer required to be supervised.

On December 23, 2015, Appellee filed a second motion to modify custody alleging that she sought to modify the 2015 judgment because a change of circumstances had occurred such that “the continuation of the present custody is so deleterious to the children to justify a modification of the present custody decree, and/or that the harm likely to be caused by a change in environment is substantially outweighed by its advantages to the children,” Appel-lee claimed that she should be the domiciliary parent of the children because (1) the children expressed a preference to primarily reside with her; (2) Appellant had refused to facilitate and foster a relationship with Appellee; (3) Appellant had performed. acts that .disturbed the visitation privileges of Appellee; (4) Appellee had taken steps and | ¿accomplished goals to be able to provide a more stable environment for the children; and (5) other reasons to be proven at trial.

' A trial was held on April 8, 2016 regarding Appellee’s second motion to modify custody. After taking the matter under advisement, the trial court signed a judgment on September 30, 2016 (2016 judgment), modifying the 2015 judgment, awarding the parties joint custody, maintaining Appellant as the designated domiciliary parent, but changing the physical custody of the children to each party having alternating weeks from Friday to Friday. It is from the 2016 judgment that Appellant appeals.

ERRORS

Appellant asserts that the trial court erred in (1) modifying a considered custody decree without requiring a showing that the continuation of the existing custody arrangement was so deleterious to the minor children as to justify a modification of the custody decree; and (2) modifying a considered custody decree without requiring, a showing that the harm likely caused by a change of environment was substantially outweighed by its advantages to the minor children.

LAW AND DISCUSSION

It is well settled jurisprudentially that “upon appellate review, the determination of the trial judge in child custody matters is entitled to great weight, and his discretion will not be disturbed on review in the absence of a clear showing of abuse.” Bergeron v. Bergeron, 492 So.2d 1193, 1196 (La. 1986). The paramount consideration in any determination of child custody is the best interest of the child. La. C.C. art. 131. However, in actions to change custody decisions rendered in considered decrees, an additional jurisprudential requirement is imposed. Evans v. Lungrin, 97-0541 (La. 2/6/98), 708 So.2d 731, 738. A considered decree is an award of permanent custody in which the trial court receives evidence of parental fitness to exercise care, custody, and control of | fiChildren. Evans, 708 So.2d at 738; Major v. Major, 2002-2131 (La. App. 1 Cir. 2/14/03), 849 So.2d 547, 551. An uncontested decree in which no evidence is presented as to the fitness of the parents is not a considered decree. Major, 849 So.2d at 552. When a trial court has made a considered decree of permanent custody, the party seeking a change bears the heavy burden of proving that the continuation of the present, custody is “so deleterious to the child- as to justify a modification of the custody decree,” or of proving by “clear and convincing evidence that the harm likely to be caused by the change of environment is substantially outweighed by its advantages to the child.” Bergeron, 492 So.2d at 1200. “Although the trial court retains a continuing power to modify a child custody order, there must be a showing of a change in circumstances materially affecting the welfare of the child before the court may consider making a significant change in the custody order.” Bergeron, 492 So.2d at 1194.

The transcript of the March 20, 2015 trial on the motion to modify custody is not contained in the record before us. However, from the minutes and the - language of the judgment stating “after conclusion of the trial,” it is evident that both parties put on testimony and evidence at the trial. Therefore, the 2015 judgment was a considered decree and the heavy burden enunciated in Bergeron applies in this matter.

Alisha, as the party seeking a modification of custody, bore the heavy burden to prove the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or by proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child. Smith v. Smith, 615 So.2d 926, 930-31 (La. App. 1 Cir.), writ denied, 617 So.2d 916 (La. 1993). Alisha alleged that the children expressed a preference ■ to live with .her, but the only evidence was the general assertion that the children performed acts that led Alisha | fito believe that they wanted to live with her. There was no specific testimony as to what those acts were. A child’s preference, in and of itself, with no explanatory evidence, is not a material change.of-circumstance affecting the child’s . welfare. Bergeron, 492 So.2d at 1203. Alisha, also asserted that Jacob had refused to facilitate and foster a relationship between the children and her and had disturbed her visitation privileges. The evidence at the trial was- that Alisha requested to change the visitation schedule quite frequently. However, both Alisha and Jacob testified that Jacob.accommodated Alisha with those requests. Alisha testified that her visitation time was interrupted when the children had ball practices or had to go to a baseball camp, but she admitted those occasions were for extracurricular activities of. the children. Alisha also -testified that she works -cleaning houses and a bank Monday through Thursdays both in the morning and from 5:00 p.m. to 8:00 p.m. Both parties agreed that her requests to alter the schedule were due to her work schedule.

Alisha further alleged that she could provide a more stable environment for the children. At trial, Jacob testified that Alisha’s environment was not stable because she constantly requested to change the visitation schedule for various reasons. He also testified that the children went with their mother on occasions to her cleaning job.

Alisha testified that since the rendition of the 2015 judgment she had been found not guilty for the felony theft charges for which she had previously been arrested. She testified that she wanted to co-parent the children at least 50% of the time and was willing to work with Jacob. There is evidence in the record that the children were checked into school late on three occasions by Alisha, who testified that two of those occasions were for dermatologist appointments. Nothing in the record indicates whether any of the occasions were excused or unexcused. The report cards of both children showed that they were doing very well. Alisha | testified that her older child exhibited an attitude, and she and Jacob communicated regarding discipline. This child also shot himself with a BB gun while at Alisha’s house, even though the gun had been in a locked box in a closet. Alisha agreed that- she was $5000.00 behind in the child support payments she owes to Jacob. Alisha claimed that if she had the children for a week at a time, rather than just on the weekends and every Tuesday night, the .scheduling problems would not be an issue. Alisha also testified that if she had the children for an entire week at a time, she would not have to work the 5:00 p.m. to 8:00 p.m. shifts on the weeks she had the children because she worked those shifts to pay for the child support she owed. Jacob testified that the children usually had to stay with their grandmother or someone else on Tuesday nights.

The trial court stated On the record that the Bergeron standard had not been met with regard to a modification of custody. However, the trial court opined that there was room to modify the visitation schedule as the Tuesday night visitation did not appear to be working for either party. Therefore, although the trial court issued no written reasons, it appears that the judgment was based on the “tweaking” of visitation schedules. Other circuits have noted that as a practical matter, courts may “tweak” visitation schedules even when the evidence will not support modifying a prior considered decree. Mason v. Mason, 2016-287 (La. App. 3 Cir. 10/5/16), 203 So.3d 519, 529; Brantley v. Kaler, 43,418 (La. App. 2 Cir. 6/4/08), 986 So.2d 188, 191. Visitation is always open to change when the conditions warrant it. However, courts are not permitted to apply the more flexible standard of visitation to circumvent the principles and protection announced in Bergeron. Mason, 203 So.3d at 529; Brantley, 986 So.2d at 192.

This circuit has recognized that the standard to modify visitation and to modify custody are separate and distinct. In Harang v. Ponder, 2009-2182 (La. App. 1 Cir. 3/26/10), 36 So.3d 954, 961, writ denied, 2010-0926 (La. 5/19/10), 36 So.3d 219, both parties expressly requested a modification in the “visitation” time that the defendant was exercising under the joint custody plan implemented in the consent judgment. This circuit noted that the parties’ use of the term “visitation” in their requests to modify the defendant’s physical custody time and in the language of both judgments was misleading. The parties in Harang continuously shared joint legal custody of the minor child since the rendering and signing of the consent judgment. The time that parents with joint legal custody share with their child is more properly described as a “physical” or “actual” custody allocation of a joint custody plan, rather than visitation. Harang, 36 So.3d at 961, citing La. R.S. 9:335(A); Cedotal v. Cedotal, 2006-1624 (La. App. 1 Cir. 11/4/06), 927 So.2d 433, 436 (wherein Mr. Cedotal’s use of the term “visitation privileges” was found to be misleading when he sought to obtain equal physical custody of the child by way of alternating weeks). The typical joint custody plan will allocate time periods for physical custody between parents so as to promote a sharing of the care and custody of the child in such a way as to ensure the child of frequent and continuing contact with both parents. Harang, 36 So.3d at 961, citing Evans, 708 So.2d at 737.

In the present case, Alisha shared joint custody with Jacob. When she sought to obtain equal physical custody of the children by way of alternating weeks, she was seeking to modify custody, not visitation. The more flexible standard of visitation could not be used to circumvent the principles and protection announced in Bergeron. Mason, 203 So.3d at 629; Brantley, 986 So.2d at 192. The trial court recognized that Alisha did not meet the Bergeron standard to modify custody. We agree with that assessment that Alisha failed to carry her burden of proof, as there was no evidence that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or proof by clear and convincing evidence that the harm likely to be caused |9by a change of environment is substantially outweighed by its advantages to the child. The record does not contain any evidence to support a finding that a modification of child custody would be in the best interest of the minor children and that the current custody decree adversely affects the welfare of the children. Therefore, we are unable to infer that the present custody is so deleterious to the children as to justify a modification of the custody decree or that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the children. Instead of applying the standard of Bergeron, it appears that the trial court erroneously applied the more flexible standard of visitation to the facts of this case.

CONCLUSION

For the above and foregoing reasons, the trial court’s September 30, 2016 judgment' is reversed and set aside and the custody decree dated October 8, 2015, is reinstated. All costs of this appeal are assessed against Appellee, Alisha Howze.

REVERSED.

      , The 2015 judgment referred to the judgment "rendered on February 13, 2012,” Although the trial court rendered the judgment in open court on February 13, 2012, it was not signed until February 4, 2013.