author: SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. George McGEE.
    No. 09-KA-102.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 29, 2009.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for PlaintiflyAppel-lee, The State of Louisiana.
    Holli A. Herrle-Castillo, Attorney at Law, Marrero, LA, for Defendant/Appellant, George McGee.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   SUSAN M. CHEHARDY, Judge.

12This is an Anders appeal, in which we find merit to the assertion by the defendant’s appellate counsel that there are no non-frivolous issues to raise on appeal, and we further find no reversible patent errors. We affirm the convictions and sentences.

The Jefferson Parish District Attorney filed a five-count bill of information against George McGee, to which the defendant pleaded not guilty at arraignment on December 18, 2006.

On May 25, 2007, the district attorney filed an amended five-count bill of information, charging the defendant as follows: Count 1, violation of La. R.S. 40:967(A) by distribution of cocaine; Count 2, violation of La. R.S. 14:27:30 by attempted first degree murder; Count 3, violation of La. R.S. 14:95.1 by possession of a firearm as a convicted felon; Count 4, violation of La. R.S. 40:967(A) by possession with intent to distribute cocaine; and Count 5, violation of La. R.S. 40:966(0 by possession of marijuana, second offense. On the same date the defendant was arraigned on the amended charges and pleaded not guilty.

|ROn October 12, 2007, the trial court heard and denied the defendant’s motions to suppress evidence and statement, but held open the defendant’s motion to suppress identification.

On January 4, 2008, the State amended Count 5 of the bill of information to charge possession of marijuana, third offense. Although the minute entry for January 4, 2008 indicates arraignment on the amended charge was scheduled for January 7, 2008, the record does not show the defendant was arraigned on that date.

On March 10, 2008, the defendant withdrew his not-guilty pleas and pleaded guilty as charged to all five offenses. He was sentenced that day to ten years at hard labor on Count 1, the first two years to be served without benefit of probation, parole, or suspension of sentence; 25 years at hard labor on Count 2, without benefit of probation, parole, or suspension of sentence; ten years at hard labor on Count 3, without benefit of probation, parole, or suspension of sentence; ten years at hard labor on Count 4, the first two years to be served without benefit of probation, parole, or suspension of sentence; and ten years at hard labor on Count 5. The court ordered that all the sentences run concurrently.

The State filed a habitual offender bill as to Count 2, alleging the defendant to be a second-felony offender. On March 12, 2008, the defendant stipulated to his habitual offender status. The court vacated the sentence on Count 2 and imposed a habitual offender sentence of 25 years at hard labor without benefit of probation, parole, or suspension of sentence, to run concurrently with all the other sentences.

The defendant later sought and was granted an out-of-time appeal.

| ¿FACTS

Because there was no trial, the following facts are taken from the hearing on the defendant’s pre-trial motions. Detective Brian McGregor of the Kenner Police Department testified he investigated the attempted murder of Michael Knowles. Detective McGregor stated that upon locating witnesses who identified George McGee as the shooter, he obtained a warrant for the defendant’s arrest.

In the warrant application, Detective McGregor averred that on Thursday, September 14, 2006, Kenner police officers responded to a complaint of aggravated battery by shooting in the 2800 block of Greenwood Street in Kenner. When they arrived they found the victim, Michael Knowles, had been shot multiple times. Knowles told them he and his friend, Carl McKnight, attempted to buy crack cocaine from a man whom McKnight knew. When Knowles expressed his dissatisfaction with the cocaine that was offered, the man shot him.

Detective McGregor further stated in his arrest warrant application that officers interviewed Carl McKnight. McKnight informed them that Knowles arranged to buy drugs from a subject known as Tony. Tony and the defendant, George McGee, met with Knowles and McKnight in the 2800 block of Greenwood Street. Knowles refused to buy the crack cocaine the defendant offered because he believed it to be of poor quality. The defendant responded by producing a handgun and shooting Knowles several times.

According to the arrest warrant affidavit, detectives were familiar with the subject called Tony, known to them as Anthony Young, because the officers had arrested Young numerous times for drug offenses. McKnight told the officers that Young lived at 2829 Greenwood Street, Apartment C, in Kenner, and the defendant lived in an apartment behind Young’s.

| r,Detective McGregor testified he learned from the owner of the apartment complex that the defendant lived in apartment A. The detective then applied for and obtained a search warrant for 2829 Greenwood Street, apartment A. Detective McGregor testified he executed the search warrant on September 22, 2006. He seized a .32 caliber Smith and Wesson handgun, as well as some Louisiana identification cards and documents bearing the defendant’s name. The defendant was not at the apartment at the time of the search. Detective McGregor learned he might be at 1500 West Esplanade, apartment 1-A.

Detective David Stromeyer testified that he and other officers went to the West Esplanade apartment to execute the arrest warrant. The apartment’s occupants allowed the officers to enter. The officers found the defendant sleeping on the floor of a bedroom. Detective Stromeyer testified that when he entered the bedroom, he saw the handle of a handgun protruding from under a dresser six inches from where the defendant lay. The officers arrested the defendant on the warrant, and searched him incident to the arrest. They found marijuana, crack cocaine, currency, and bullets on the defendant’s person. Detective Stromeyer advised the defendant of his rights, and the defendant was transported to the detective bureau of the Kenner Police Department.

Detective McGregor testified he met with the defendant at the police department and advised him of his Miranda rights. The defendant waived his rights and agreed to submit to questioning. The defendant gave a recorded statement regarding the narcotics and weapon seized at 1500 West Esplanade. Detective McGre-gor testified he advised the defendant of his rights a second time. The defendant again waived his rights, and he made a recorded statement regarding the attempted murder charge. Detective McGregor took a third statement from the | r,defendant that day regarding a shooting incident in which he claimed to have been the victim. Detective McGregor testified that he did not use threats or coercion to induce the defendant to submit to the interviews, nor did he promise the defendant anything in exchange for his statements.

ANDERS BRIEF

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La.App. 4 Cir.1990), the defendant’s appointed appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and State v. Jyles, 96-2669, p. 3 (La.12/12/97), 704 So.2d 241, 242 (per curiam). Counsel asserts she has thoroughly-reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, defense counsel asks this Court’s leave to withdraw as counsel of record.

The State agrees that the record shows there are no non-frivolous issues for appeal.

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds his case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by “a brief referring to anything in the record that might arguably support the appeal” so as to provide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability” and to assist the reviewing court “in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.” McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

In State v. Jyles, 96-2669 at 2, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detañed explanation of why the motions or objections lack merit. Rather, the , court explained, an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” State v. Jyles, supra.

In evaluating an appeal for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. State v. Bradford, 95-929, p. 4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellant counsel. Id.

The defendant’s appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Counsel notes the defendant entered guilty pleas to the substantive offenses without preserving any issues for appeal. The defendant also stipulated to the allegations in the habitual offender bill of information, and his enhanced sentence was part of a|8sentencing agreement. Counsel avers that she could find no deficiencies in the Boykin colloquy and that the defendant’s guilty pleas were knowing and voluntary. She further asserts that the trial court properly advised the defendant of his rights prior to his habitual offender stipulation, and the defendant knowingly waived his rights and entered into the habitual offender admission.

Appellate counsel filed a motion for leave to withdraw as attorney of record in this Court, as well as a copy of the briefing notice she sent to the defendant informing him of his right to file a pro se brief. In addition, this Court sent the defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until April 2, 2009 to file a pro se supplemental brief. The defendant has not filed a brief.

An independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal. When a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea and precludes review of such defects either by appeal or post-conviction relief. State v. Wingerter, 05-697, p. 5 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 664. Of the defendant’s pretrial motions, the district court heard and denied only the motions to suppress evidence and statement. At the time of his guilty pleas, the defendant did not preserve the district court’s rulings for appeal under the holding in State v. Crosby, 338 So.2d 584 (La.1976).

The record shows the district court ascertained that the defendant was 29 years old and had an eleventh-grade education. The district court properly advised the defendant of the right to a jury trial, the right of confrontation, and the privilege against self-incrimination, as required by Boykin. The judge also explained the | flOffenses with which the defendant was charged, the sentencing ranges for those offenses, and the sentences he would receive under the plea agreement. The defendant acknowledged that he understood his rights, and that he wished to waive them and enter a guilty plea. In addition, the defendant, his attorney, and the judge signed a waiver-of-rights form that enumerated the defendant’s rights and detailed the sentence he would receive pursuant to his plea bargain.

The defendant’s original sentences present no appealable errors. The sentence on Count 2 was vacated when the defendant stipulated to the multiple bill. The other four sentences resulted from a plea agreement. La. C. Cr. P. art. 881.2(A)(2) provides, “The defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.” Thus, the defendant is precluded from challenging his habitual offender sentence on appeal, since it was also part of a sentencing agreement. State v. Cross, 06-866, p. 4 (La.App. 5 Cir. 4/11/07), 958 So.2d 28, 30.

In addition, all of the sentences fell within the sentencing ranges prescribed by statute. At the time of defendant’s offenses, the sentencing range for distribution and possession with intent to distribute cocaine (Counts 1 and 4) was two to 30 years, with the first two years being without benefit of parole, probation, or suspension of sentence. La. R.S. 40:967(B)(4)(b). The second-felony-offender sentencing range for attempted first degree murder (Count 2) was 25 to 100 years, without benefit of parole, probation, or suspension of sentence. La. R.S. 15:529.1(A)(l)(a); La. R.S. 14:27(D)(l)(a); La. R.S. 14:30(C). The sentencing range for possession of a firearm by a convicted felon (Count 8) was ten to 15 years, with a mandatory fine of $1,000 to $5,000. La. R.S. 14:95.1(B). The sentencing range for third offense possession of marijuana (Count 5) was zero to 20 years. La. R.S. 40:966(E)(S).

ImThe defendant entered an admission to the allegations in the habitual offender bill of information. La. R.S. 15:529.1(D)(l)(a) requires that prior to stipulating to the allegations in a habitual offender bill, a defendant must be advised of the specific allegations contained in the bill and his right to a formal hearing at which the State must prove its case. Implicit in this requirement is the additional requirement that the defendant be advised of his constitutional right to remain silent. State v. Johnson, 432 So.2d 815, 817 (La.1983); State v. Bell, 03-217, p. 4 (La.App. 5 Cir. 5/28/03), 848 So.2d 87, 90.

Before accepting the defendant’s admission, the district court adequately advised him of his right to a habitual offender hearing and his right to remain silent. The court also advised the defendant of the enhanced sentence the court would impose in accordance with the sentencing agreement. The defendant stated he understood his rights. The defendant, his attorney, and the judge completed a habitual offender waiver-of-rights form that listed his rights and the sentencing range to which he was exposed.

Because appellate counsel’s brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal, and an independent review of the record supports counsel’s assertion, -we grant appellate counsel’s motion to withdraw as attorney of record.

ERROR PATENT DISCUSSION

Pursuant to our usual procedure, we reviewed the record for patent errors, as set out in La. C. Cr. P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). We found two patent errors.

First, the record does not show the defendant was arraigned on an amended charge: On January 4, 2008, the State amended Count 5 of the bill of information Into a charge of third-offense possession of marijuana. Although the minute entry for January 4, 2008 indicates the defendant’s arraignment on the amended charge was scheduled for January 7, 2008, the record does not show he was arraigned on the amended offense prior to entering his guilty plea. That error does not affect the outcome of the ease, however, because the defendant waived the error when he entered his guilty plea without objecting to the district court’s omission. La. C. Cr. P. art. 555. In such an instance, a defendant is considered to have pleaded not guilty; hence, no corrective action is needed. Id.

Second, the district court imposed an illegally lenient sentence on Count 3, possession of a firearm by a convicted felon (La. R.S. 14:95.1), because the court failed to impose the mandatory fine of between $1,000 and $5,000. Neither the State nor the defendant has raised the issue on appeal. This Court has the authority to correct an illegally lenient sentence. La. C. Cr. P. art. 882. This authority is permissive rather than mandatory. State v. Jordan, 02-820, p. 8 (La.App. 5 Cir. 12/30/02), 836 So.2d 609, 614.

Where a defendant is sentenced pursuant to a guilty plea, this Court has declined to correct an illegally lenient sentence, recognizing that the appellate court should refrain from employing errors patent review to set aside guilty pleas about which the defendant makes no complaint and that resulted in disposition of the case favorable to the defendant. State v. Grant, 04-341, pp. 4-5 (La.App. 5 Cir. 10/26/04), 887 So.2d 596, 598.

In a recent case, State v. Campbell, 08-1226 (La.App. 5 Cir. 5/26/09), 15 So.3d 1076, this Court declined to correct an illegally lenient sentence where the district court failed to impose a mandatory fine in a sentence that was part of a plea bargain. We stated that where the defendant is indigent we 112have often declined to exercise our authority to correct illegally lenient sentences agreed upon as part of a plea bargain.

In the case at bar, it appears the defendant is indigent. He is represented by the Louisiana Appellate Project, which provides appellate services for indigent criminal defendants in non-capital felony cases. (See http://vnow. appellateproject. orgf). Since the defendant’s sentence in the instant case resulted from a guilty plea, we refrain from exercising our authority to correct the illegally lenient sentence.

For the foregoing reasons, the defendant’s convictions and sentences are affirmed. The motion to withdraw as counsel for the defendant is hereby granted.

AFFIRMED.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . The original bill of information is not in the record on appeal.

      . See error patent discussion, infra.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The procedure set forth in Benjamin for compliance with Anders was sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981, pp. 1-2 (La.4/28/95), 653 So.2d 1176, 1177 (per curiam), and adopted by this Court in State v. Bradford, 95-929, pp. 3-4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110.

      . The United States Supreme Court most recently reaffirmed its position on Anders in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      . The defendant waived his outstanding motions by pleading guilty without complaining of the trial court's failure to rule on them. State v. Corzo, 04-791, p. 2 (La.App. 5 Cir. 2/15/05), 896 So.2d 1101, 1102.

      . See also, State v. Griffin, 41,946, p. 4 (La.App. 2 Cir. 5/2/07), 956 So.2d 199, 202, in which the second circuit declined to correct an illegal sentence that did not include a mandatory fine, stating, "Given defendant's apparent indigent status and state of health, amendment of his sentence to include such a fine would be injudicious.”


source: Caselaw Access Project

author: PAUL A. BONIN, Judge.

license: Public Domain

text:
    Reginald DUNOMES v. PLAQUEMINES PARISH GOVERNMENT and Pervis Saire.
    No. 2009-CA-0570.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 21, 2009.

      John L. Young, Law Offices of John L. Young, and Patrick H. Hufft, Hufft & Hufft, APLC, New Orleans, LA, for Reginald Dunomes.
    Mario A. Arteaga, Jr., Plaquemines Parish Government, Belle Chasse, LA, for Plaquemines Parish Government and Per-vis Saire.
    (Court Composed of Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

^Reginald Dunomes filed a damages suit for personal injuries against the Plaque-mines Parish Government (“the parish”) arising out of a motor vehicle collision that occurred on January 30, 2001. Judgment was rendered against the parish for a total damage award of $42,003. Both parties appeal the amount of damages. For the reasons which follow, we affirm.

The Damages Award by the Trial Court

The trial judge made the following damage awards:

General damages $30,000
Past medical $ 5,003
Future medical $ 2,000
Loss of earning capacity $ 5,000
Total $42,003

On the one hand, the parish generally contends that the total award is excessive and specifically argues that award for “lost wages” is unsupported by the |2evidence. On the other hand, Mr. Dunomes contends that the general damages award is inadequate. Since neither party disputes the special damages award for past medical expenses, we will pretermit that from our discussion.

We review the general damages award under the standard set forth in Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260-61 (La.1993):

The initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the “much discretion” of the trier of fact.... Only after such a determination of an abuse of discretion is a resort to prior awards appropriate and then for the purpose of determining the highest or lowest point which is reasonably within that discretion....

(ellipses indicate citations omitted)

Although the standard for appellate review of general damage awards “is difficult to express and is necessarily non-specific,” the controlling theme announced is that:

the discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award. Id. at 1261.

Youn also guides us in our review of special damages awards, such as future medical expenses as well as lost wages and loss of earning capacity.

Youn, 623 So.2d at 1262, quoted approvingly from its earlier decision in Stiles v. K Mart Corporation, 597 So.2d 1012, 1013 (La.1982):

[aWhen the record establishes that future medical expenses will be necessary and inevitable, the court should not reject an award of future medical expenses on the basis that the record does not provide the exact value of the necessary expenses, if the court can examine the record and determine from evidence of past medical expenses and other evidence a minimum amount that reasonable minds could not disagree will be required. La.Code of Civ. Proc. Art. 2164.

Stiles was in line with the Louisiana Supreme Court’s earlier ruling that “[i]n the absence of any firm monetary estimates by expert witnesses,” a court should consider “the amount of past medical expenses” in setting a future medical damage award. Guillory v. Avondale Shipyards, Inc., 448 So.2d 1281, 1287 (La.1984).

We have held in Lacy v. ABC Insurance Co., 97-1182, p. 13 (La.App. 4 Cir. 4/1/98), 712 So.2d 189, 196, that

Recovery of future medicals requires proof, by a preponderance of the evidence, that such expenses will be necessary. ... However, when the need for future medical care is established, but the cost is not, the factfinder may make a reasonable award.

(ellipses indicate omitted citations)

Youn also approvingly referenced the court’s earlier holding in Jordan v. Travelers Insurance Company, 257 La. 995, 1006-07, 245 So.2d 151, 155 (1971), wherein the court fixed an award for loss of earnings based on “less-than-perfect evidence.” Youn, 623 So.2d at 1261-62. In Jordan, the court held:

Where there is a legal right to recovery but the damages cannot be exactly estimated, the courts have reasonable discretion to assess same based upon all the facts and circumstances of the case.... This latter principle is also applicable, where the fact of loss of earnings or earning power, past or future, is proved, but not any exact amount....

(ellipses indicate omitted citations)

Special damages must be proved by a preponderance of the evidence, but they need not be proved with precision. The trial court’s award need only be reasonable. See Guillory v. Lee, 09-0075, p. 14 (La.6/26/09), 16 So.3d 1104, 1116.

\/Ihe Particulars and the General Damage Award

On January 30, 2001, the parish’s employee backed its garbage truck into Mr. Dunomes’ vehicle in what the trial court in its Reasons for Judgment characterized as a low impact collision. Mr. Dunomes was first treated for his injuries that same day. At the time he was working a “14 off-14 on” schedule as a roughneck in the oilfield offshore. He was treated for his injuries until August 15, 2005, when the treating neurosurgeon, Dr. Kenneth Vogel, recommended continued conservative care.

The Resolved 1999 Accident Injury

We will detail the full course of his treatment below, but pause to explain that prior to the accident which is the subject of this lawsuit, Mr. Dunomes had been in a motor vehicle accident in Texas on November 14, 1999, for which he received his last medical treatment on December 6, 1999. He unquestionably sustained injuries to his neck area and he continued to experience some pain after he was discharged. The parish infers that Mr. Dunomes was not fully recovered from the 1999 accident when this one occurred. However, as a result of the 1999 accident, Mr. Dunomes sustained a left facet fracture at C4 which healed so completely that x-rays made on December 6, 1999, one month after that accident, did not show the fracture. Dr. Vogel stated in deposition that the C4 fracture had healed, and related Mr. Du-nomes’ injuries at C3-4 and L5-S1 to the 2001 accident at issue in this lawsuit.

The January 2001 Accident

On February 1, 2001, two days after he was initially treated at the Plaque-mines Parish Comprehensive Care Center, Mr. Dunomes began treatment by |fiDr. A.Z. Blamphin at the Westbank Physicians Rehab. His complaints were neck pain, tingling in one hand, and numbness in the low back. Mr. Dunomes underwent a regimen of medication, Phrenilin Forte, and physical therapy, ultrasound and massage. On February 16, 2001, his treating physician, Dr. Kumar, released him to return to work while continuing to periodically examine him and conservatively treat him for his complaints and symptoms of neck and back pain. On March 21, 2001, Dr. Morte-za Shamsnia performed cervical nerve conduction studies which showed abnormalities. On May 17, 2001, after reviewing the studies, Dr. Kumar referred Mr. Dunomes to Dr. Kenneth Vogel for his ongoing neck pain and complaints of numbness in light of the test results. In the months of treatment since the 2001 accident, Mr. Du-nomes’ low back pain went from “severe” to “severe on full range of motion.” His cervical spine and paravertebral muscles remained severely painful, and he suffered numbness in both arms and fingers.

Dr. Vogel recommended physical therapy and continued conservative care while he more fully evaluated Mr. Dunomes’ condition. On November 19, 2001, Dr. Vogel noted cervical and lumbosacral pain and numbness of both hands, and diagnosed chronic lumbosacral strain and herniated cervical disc versus cervical spondylosis. On April 29, 2002, Dr. Vogel diagnosed a herniated disc with possible cervical segmental instability, and recommended a cervical myelogram and CAT scan, possible left cervical facet arthrogram and block plus appropriate care. He considered Mr. Dunomes to be a surgical candidate pending results of the cervical testing and medical clearance from an internal medicine consultant. However, further testing was not approved. On November 19, 2002, Dr. Vogel recommended conservative care. Mr. Dunomes last saw Dr. Vogel on August 15, 2005, when Dr. Vogel recommended continued conservative care. Dr. Vogel |finoted — three and a half months before Mr. Dunomes’ November 2005 accident — that Mr. Dunomes continued to suffer cervical, left arm, and lumbosacral pain. Dr. Vogel stated in deposition: “The problem that he [Mr. Dunomes] had in August '05 is the same one he’s having now” at the examination on February 22, 2007. Dr. Vogel stated that more probably than not, in all medical probability, Mr. Dunomes’ symptoms are related to the motor vehicle accident on January 30, 2001.

Dr. Vogel reported to Dr. Blamphin on February 22, 2007, that Mr. Dunomes exhibited mild limitation of motion in all directions, with mild muscle spasm bilaterally, mild brachial plexus tenderness bilaterally, left greater than the right. Mr. Dunomes was noted to be left-handed. In the low back area, examination revealed bilateral tenderness of the lower facets but no muscle spasm. At the time of trial Mr. Dunomes was still experiencing pain and suffering physical deficits in his dominant hand use, which were related to the 2001 accident.

Mr. Dunomes takes anti-inflammatory medication, has impaired fine motor movement in his dominant left hand, continual neck pain, and loss of feeling in his hand that causes him to drop things. He has a cervical herniated C3^4 disc. He has to make adjustments for his work and daily activities (such as fishing, dressing himself).

Brief Aggravation of Symptoms by the November 2005 Accident

Subsequent to the 2001 accident, in late October or in November 2005, Mr. Du-nomes was in a motor vehicle accident in Lafayette, Louisiana, for which he sought treatment for injuries to his shoulder, neck and lower back until March 6, 2006, when he asked to be discharged. The parish infers that he must have fully recovered from his 2001 injuries at the time he requested discharge from medical care after his 2005 accident.

|7Pr. Vogel expressed his opinion that the motor vehicle accident on or around November 23, 2005, aggravated Mr. Du-nomes’ injuries from the January 2001 incident for a period of about four months. Mr. Dunomes was seen at a Lafayette medical clinic five days after the 2005 accident, complaining of left shoulder, neck and lower back pain. Mr. Dunomes indicated on his intake form for the clinic that he had neck or back problems before the 2005 accident. He visited the clinic again on December 30, 2005, and on February 6, 2006. The left shoulder problem resolved but he continued with “some level of neck and back discomfort” on February 6, 2006, whereupon Dr. Mack testified that he recommended that Mr. Dunomes consult an orthopedist and have MRI testing. Mr. Dunomes asked to be discharged on March 3, 2006.

The trial court’s assessment of the particular injuries to this particular person under these particular circumstances is not manifestly erroneous. The ensuing general damages award of $30,000 is within the appropriate range of adequate awards and the specific amount of the award is not an abuse of the trial court’s vast discretion. We, therefore, reject both the parish’s contention that the award is excessive and Mr. Dunomes’ contention that it is inadequate.

The Special Damage Awards

Dr. Vogel testified that Mr. Du-nomes will require future conservative medical treatment for his injuries. This was not contradicted by any medical testimony. Mr. Dunomes proved this item of damage by a preponderance of the evidence. No estimate of the costs of the treatments was made by Dr. Vogel. Considering the cost of past medical treatments, the trial court’s decision to make a | ^minimal award of $2,000 is reasonable under the circumstances. Lacy, supra., 97-1182, p. 13, 712 So.2d at 196; Guillory v. Avondale Shipyards, Inc., 448 So.2d 1281 at 1287.

Likewise, Mr. Dunomes established by a preponderance of the evidence that he will suffer some minor diminution in hand strength which would require him to work in pain if he were to return to the oilfield as a roughneck. This impact on his ability to return to employment as a roughneck, work for which he is otherwise qualified, merits an award to reasonably compensate him for this diminution in his earning capacity. The award, a low amount of money, is reasonable, especially when we consider that Mr. Dunomes is currently able to engage in other available employment as a safety inspector, which is less physically demanding and is compensated at a rate of pay higher than that earned by a roughneck. Nevertheless, being recently hired as a safety inspector, and in an uncertain economy, Mr. Du-nomes could experience a change in his employment situation. We noted in Corliss v. Elevating Boats, Inc., 599 So.2d 434, 437 (La.App. 4 Cir. 5/12/1992):

The law allows not merely for loss of future earnings, but rather for loss of earning capacity. It is well known that under present economic conditions and under the current insurance rates paid by employers, employers will not hire a person with physical disabilities, other than under federally subsidized programs for the hiring of the handicapped, for fear of increases in their insurance. The existence of the injury places plaintiff at a distinct disadvantage in the marketplace of job competition. Likewise the earning capacity loss for which plaintiff is compensated is not loss of future earnings, but is lost future earning capacity. Plaintiff was in his chosen profession at the time of the accident. He is compensated for the loss of that profession. If plaintiff is able to compensate for his injury by retraining himself to engage in another profession, he is not penalized by his efforts to do so, but rather is still awarded damages for the lost profession.

|9The Louisiana Supreme Court in Folse v. Fakouri, 371 So.2d 1120, 1123 (La.5/21/1979), defined “lack of earning capacity” as follows: “[Wjhile his earning capacity at the time of the injury is relevant, it is not necessarily determinative of his future ability to earn.... Damages should be estimated on the injured person’s ability to earn money, rather than what he actually earned before the injury.” “The theory is that the injury done him has deprived him of a capacity he would have been entitled to enjoy even though he never profited from it monetarily.” See also Hobgood v. Aucoin, 574 So.2d 344, 346 (La.11/8/1990) and Finnie v. Vallee, 620 So.2d 897, 900 (La.App. 4 Cir. 5/27/1993).

Therefore, we conclude that the trial court did not abuse its discretion in these reasonable special damage awards.

Conclusion

We have found that the trial court did not abuse its great discretion in the general damage award and that the awards for special damages, being proven by a preponderance of the evidence and being reasonable, were also within the trial court’s discretion. Primarily because the parish also framed its contention that the in globo award is excessive, we have parenthetically reviewed the total award as was done in Guillory, supra, 448 So.2d 1281, 1286-87 (La.2/27/1984), and conclude that the total award was within the trial court’s discretion.

Decree

The judgment of the trial court is affirmed.

AFFIRMED.

      . The parish’s employee-driver was also sued as a party defendant, but judgment was not rendered against him. No appeal was taken from the failure to render judgment against the employee.

      . Liability of the parish is not an issue in this appeal.

      . The clinic physician, Dr. Mack, testified in his deposition that the clinic and its staff were in the midst of post-hurricane crowding and rush at the time of Mr. Dunomes' visits after the 2005 accident.

      . The court, or a reasonable trier of fact, could have concluded that were Mr. Dunomes to resume his work as a roughneck he would not merely be working in some pain but also with some degree of danger attributable to his hand deficits.


author: PAUL A. BONIN, Judge. LOMBARD, J.,

text:
    STATE of Louisiana v. Joseph L. FORD.
    No. 2009-KA-0392.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 21, 2009.

      Leon A. Cannizzaro, Jr., District Attorney, Nisha Sandhu, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Joseph Ford.
    (Court composed of Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

b The present appeal raises the issue of whether the trial court erred in denying defense’s untimely motion to continue, when that continuance was sought on the grounds that counsel had not yet consulted with her client on the facts of the case. Appellant, Joseph L. Ford, was convicted on November 19, 2008, of possession of between twenty-eight and two hundred grams of cocaine, a violation of La. R.S. 40:967(F)(1). Immediately prior to trial, the defendant appeared in court with defense counsel, and the defense moved for a continuance due to the fact that Mr. Ford and his attorney had not yet discussed the facts of his case. After the court denied the defense’s motion to continue as untimely, a jury found Mr. Ford guilty as charged. Mr. Ford now urges that this court find that the trial judge erred in denying the motion to continue, because such denial forced his attorney to proceed to trial unprepared — “constructively” denying him the effective assistance of counsel at trial. We reject this argument and, for the reasons that follow, affirm Mr. Ford’s conviction and sentence.

FACTS

On May 6, 2008, New Orleans police officers executed two search warrants at 4117 Willow Street, which was described as a white, wood framed residence | «that was shaped like the letter “L.” The warrants, acquired by Detective Harry Stovall, permitted searches of the apartment in the front of the residence as well as the apartment at the back of the residence. Detectives Stovall and Roceaforte were part of the team (which included a canine unit) that executed the warrant to search the apartment at the back of the house. After entering the apartment, Detective Rocea-forte recovered a brown paper bag from inside an electrical panel. Inside the bag were three clear plastic bags — each containing several pieces of what he recognized to be crack cocaine. Detective Sto-vall recovered cocaine from the dresser drawer located in the bedroom of the apartment.

Mr. Ford arrived at the scene while the officers executed the warrant, and officers arrested him. He acknowledged that he lived in the rear apartment. After being informed of his rights, Mr. Ford made a statement that the guns and drugs found inside his apartment belonged to a man named Eric Smith, who purportedly lived in the front apartment at 4117 Willow Street.

At trial, the parties stipulated that Sergeant O’Neal was an expert in the analysis and identification of controlled and dangerous substances. He testified that the substances seized from Mr. Ford’s apartment tested positive for cocaine. The sergeant also testified that the total weight of the cocaine seized was 34.7 grams. At the conclusion of the trial, a jury found Mr. Ford guilty of possession of between twenty-eight and two hundred grams of cocaine. This appeal followed.

ERRORS PATENT

A review of the record for errors patent reveals none.

| «ASSIGNMENT OF ERROR

Mr. Ford’s sole assignment of error alleges that the district court abused its discretion by denying counsel’s motion to continue the trial. Mr. Ford urges that the trial court’s denial of a continuance resulted in the constructive denial of counsel — or at least the ineffective assistance of counsel. Trial counsel sought a continuance either the morning of or the day before the trial on grounds that she had never met with her client. A party may seek a motion for continuance pursuant to La. C. Cr. P. art. 707, which provides in part that such motion shall be filed at least seven days prior to the commencement of the trial. Because this continuance motion was not raised at least seven days prior to trial, the district court denied the motion as untimely.

The decision to grant or deny a continuance lies within “the sound discretion of the trial judge, and a reviewing court will not disturb such a determination absent a clear abuse of discretion.” State v. Johnson, 96-0950 (La.App. 4 Cir. 2/4/98), 706 So.2d 468, 478-79 (on rehearing); See also State v. Martin, 93-2085 (La.10/17/94), 645 So.2d 190, 197 (“The decision to grant or deny a motion for continuance lies within the wide discretion of the trial court.”). To demonstrate that the trial court erred in denying the continuance, a showing of specific prejudice is generally required. State v. Holmes, 590 So.2d 834 (La.App. 4 Cir.1991). Mr. Ford has not made such a showing. The trial court in this case acted within its wide discretion in denying the defense’s untimely motion for continuance.

To support its assertion that the trial court abused its discretion in denying the motion to continue, Mr. Ford argues that he was “constructively” denied |4counsel and cites State v. Laugand, 99-1124 (La.3/17/00), 759 So.2d 34. The Louisiana Supreme Court in Laugand found that the trial court erred in denying defense’s motion to continue on the basis that counsel was unprepared. The court reversed defendant’s conviction because the record clearly corroborated counsel’s claim that he was unprepared; the court particularly emphasized the fact that the trial court had to intervene to prevent counsel from pursuing matters that were directly adverse to the defendant’s interests, “which prompted an incendiary confrontation between counsel and [defendant] in open court.” Laugand, 759 So.2d at 36. Mr. Ford asserts that the record in this case similarly corroborates his claim that counsel was so unprepared as to constitute the “constructive” absence of counsel. We cannot agree.

The record in this case does not reveal errors that would lead this court to conclude that Mr. Ford was constructively denied counsel. In fact, the record shows that, prior to trial, his trial counsel had served on the case since shortly after his arraignment on July 15, 2008. Trial counsel represented Mr. Ford at a motion hearing on September 18, 2008 — during which, as the transcript indicates, counsel presented evidence and appeared well-prepared. Trial counsel was joined by another attorney at trial two months later, on November 19, 2008, during which the defense gave argument, made objections, and thoroughly questioned the state’s witnesses regarding the execution of the warrant, Mr. Ford’s arrest, and his statement. While trial counsel has a professional, ethical, and legal duty to confer [¡¡with her client, her failure to do so prior to trial does not amount to a “constructive” denial of counsel. See, e.g., State v. Johnson, 04-0178 (La.App. 4 Cir. 12/8/04), 892 So.2d 28.

Mr. Ford further asserts that due to trial counsel’s failure to consult with him prior to trial, he received ineffective assistance of counsel. Appellate courts routinely defer the issue of ineffective assistance of counsel as a matter more properly addressed in an application for post conviction relief — in order for the trial court to conduct a full evidentiary hearing to uncover facts not ascertainable from the record on appeal. See State v. Prudholm, 446 So.2d 729 (La.1984); State v. Reed, 483 So.2d 1278 (La.App. 4 Cir.1986). La. C. Cr. P. arts. 930 el seq. An appellate court may decide a claim of ineffective assistance when “the record discloses evidence needed to decide the issue.” State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Garland, 482 So.2d 133 (La.App. 4 Cir.1986). For the following reasons, we find that the record does not disclose sufficient evidence to decide Mr. Ford’s claim of ineffective assistance.

To obtain relief under the claim of ineffective assistance of counsel, a defendant must meet the two-part test of Strickland v. Washington, which requires that he show both that his trial counsel was deficient and that such deficiency | ¿resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Counsel’s performance is deficient if the defendant can show that counsel made such serious errors that she was effectively not functioning as the “counsel” guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 686, 104 S.Ct. at 2064. To establish prejudice, a defendant must prove that these errors deprived him of a fair trial by showing that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 693,104 S.Ct. 2052. The defendant must satisfy both prongs of this test to establish that counsel was so ineffective as to require reversal. State v. Garland, 482 So.2d 133, 135 (La.App. 4 Cir.1986) (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052).

It is uncontested that trial counsel did not consult with her client prior to trial. In this case, Mr. Ford only alleges that counsel’s failure to meet with him prior to the trial prevented her from knowing his “side of the story” that could have led to a substantive defense. He does not provide any details or indicate what she may have done differently. Without knowing anything whatsoever about Mr. Ford’s “side of the story,” we cannot speculate on the array of possible defenses available to him — much less determine whether any of those defenses might have changed the outcome of his trial. Because the record is insufficient on the matter, we are unable to determine whether trial counsel was effective or not.

Further, the circumstances surrounding trial counsel’s failure to meet with Mr. Ford remain unclear. The record shows that a few days before trial, Mr. Ford claimed that he attempted to visit trial counsel in the Public Defender’s Office but that she was not there. Mr. Ford alleged that he left his contact information with 17her office, but trial counsel maintained that she had no contact information for her client. On the morning of trial, Mr. Ford told the trial judge that he had come to the court “about three weeks ago” to express his displeasure with the way his case was being handled by the Public Defender’s Office. As a result of this visit to the court, the trial judge contacted trial counsel, who reassured the trial judge that she had been investigating and working on the case but that she had no contact information for Mr. Ford. The trial judge said she doubted that Mr. Ford had even visited the Public Defender’s Office. Moreover, the judge said that trial counsel had previously indicated to the court that “she was ready,” and that “she had done her work on her case.” The trial judge did not abuse her discretion in denying the defense’s untimely motion to continue.

CONCLUSION

The evidence on the record is insufficient for this court to rule on the merits of the claim of ineffective assistance of counsel. Trial counsel claims to have been unable to consult with her client prior to trial yet she failed to file a timely motion to continue. The trial judge acted within her wide discretion in denying an untimely motion to continue. While we find that the denial of this motion did not amount to the “constructive” denial of counsel, appellant maintains the right to raise a claim for ineffective assistance of counsel in post-conviction proceedings in the trial court.

Accordingly, we affirm the conviction and sentence.

AFFIRMED.

LOMBARD, J., Concurs in Result.

LOMBARD, J.,

Concurs in Result.

| because the record in this case does not support a finding that the trial court abused its “wide discretion” in denying the defendant’s motion for a continuance, see State v. Martin, 93-2085 (La.10/17/94), 645 So.2d 190, 197, I concur in the result.

However, the issue of ineffective assistance of counsel is raised for the first time on appeal and, thus, not properly before the court. La.Code Crim. Proc. art. 841(A). Moreover, ineffective assistance of counsel claims are generally addressed in post-conviction proceedings rather than on direct appeal, State v. Smith, La.App. 4 Cir. 7/2/08 p. 5, 989 So.2d 816, 819; State v. Demise, 98-0541, p. 35 (La.4/3/01), 802 So.2d 1224, cert. denied, 534 U.S. 926, 122 S.Ct. 283, 151 L.Ed.2d 208 (2001), to allow the trial court to conduct, if warranted, a full evidentiary hearing. State v. Howard, 98-0064, p. 15 (La.4/23/99), 751 So.2d 783, 802, cert. denied, 528 U.S. 974, 120 S.Ct. 420, 145 L.Ed.2d 328 (1999). Accordingly, I would pretermit any discussion of the issue to avoid the appearance of issuing an advisory opinion.

      . Mr. Smith did not appear during the search. A warrant for his arrest was subsequently obtained, but it is unknown if he was ever arrested. In the search of the front apartment, the police did not recover any evidence, although the canine alerted to the presence of drugs.

      . There is some confusion as to whether the oral motion for a continuance was made either the day before trial or on the trial date. The trial court seems to have been under the impression that the defense was filing the motion the morning of the trial, on November 19, 2008. Trial counsel, however, contends that she filed the motion on November 18, 2008. Regardless, either filing date would render the motion untimely.

      . Louisiana's Rules of Professional Conduct recognize a lawyer’s duty to consult with her client. The Rules of Professional Conduct have the force and effect of substantive law. See Adams v. Med-Force, 682 So.2d 323, 325 (La.App. 4 Cir. 10/16/96). Louisiana Rule of Professional Conduct 1.4(a) and (b), provide:
      (a) A lawyer shall:
      (1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(e), is required by these Rules;
      (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;
      (3) keep the client reasonably informed about the status of the matter;
      (4) promptly comply with reasonable requests for information; and
      (5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.
      (b) The lawyer shall give the client sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued.

      . On the morning of trial, trial counsel’s supervisor attempted to stipulate to the fact of trial counsel’s ineffective assistance. This does not change the fact that the record before us is insufficient to make a finding of ineffective assistance of counsel under Strickland.


author: TERRI F. LOVE, Judge. LOMBARD, J.,

text:
    Fred CARTER v. DEPARTMENT OF POLICE.
    No. 2009-CA-0723.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 21, 2009.

      Gary M. Pendergast, Gary M. Pender-gast, L.L.C., New Orleans, LA, for Plain-tifi/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD).
   TERRI F. LOVE, Judge.

|, Officer Fred Carter, an employee of the New Orleans Police Department (NOPD), seeks reversal of the decision of the Civil Service Commission (Commission), denying his appeal of the discipline imposed by the appointing authority, the NOPD. We find that Officer Carter was prejudiced by the delay between the alleged incident and the NOPD’s failure to complete the investigation within sixty days as required by law and reverse the Commission’s decision.

FACTUAL AND PROCEDURAL BACKGROUND

The NOPD disciplined Officer Fred Carter for allegedly violating the NOPD rule relative to mandatory court appearance. The NOPD alleged Officer Carter received a subpoena, but then failed to appear in court the morning of July 6, 2005. The NOPD conducted a pre-disciplinary hearing on August 17, 2006. The NOPD concluded that Officer Carter presented nothing which would tend to mitigate, justify or explain Officer Carter’s failure to appear. The NOPD found this was Officer Carter’s second such offense and imposed a five-day suspension.

To contest the suspension, Officer Carter filed an appeal with the Commission. At the hearing held on December 7, 2006, the NOPD called Officer Carter. Officer Carter testified that he did not recall failing to appear on July 6, |⅞2005, stating, “[b]ut that’s what I’m being charged— accused of, so I guess I did.” Officer Carter indicated that he did not recall what he was doing on July 6, 2005. Officer Carter, referring to the statement given to the Public Integrity Bureau, testified that he did not give a statement as to why he missed court during the pre-disciplinary hearing. Officer Carter testified that he was prejudiced by the delay between the alleged incident and the failure to complete the investigation within the sixty days required by law.

The Commission issued a decision denying Officer Carter’s appeal, thus upholding the discipline imposed by the NOPD. From that decision, Officer Carter appeals to this Court.

STANDARD OF REVIEW

The Commission has authority to “heai* and decide” disciplinary cases, which includes the authority to modify (reduce) as well as to reverse or affirm a penalty. La. Const, art. X, § 12; Pope v. New Orleans Police Dept., 2004-1888, p. 5 (La.App. 4 Cir. 4/20/05), 903 So.2d 1, 4. The appointing authority is charged with the operation of its department, and it is within its discretion to discipline an employee for sufficient cause. The Commission is not charged with such discipline. The authority to reduce a penalty can only be exercised if there is insufficient cause for imposing the greater penalty. Pope, 2004-1888, pp. 5-6, 903 So.2d at 4.

The appointing authority has the burden of proving, by a preponderance of the evidence, that the complained of activity or dereliction occurred, and that such dereliction bore a real and substantial relationship to the efficient operation of the appointing authority. Cure v. Dept. of Police, 2007-0166, p. 2 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094, citing Marziale v. Dept. of Police, 2006-0459, p. 10 (La.App. 4 Cir. 11/8/06), 944 So.2d 760, 767. The protection of civil service employees is only against firing (or other discipline) without cause. La. Const, art. X, § 12; Cornelius v. Dept. of Police, 2007-1257, p. 7 (La.App. 4 Cir. 3/19/08), 981 So.2d 720, 724, citing Fihlman v. New Orleans Police Dept., 2000-2360, p. 5 (La.App. 4 Cir. 10/31/01), 797 So.2d 783, 787.

The decision of the Commission is subject to review on any question of law or fact upon appeal to this court, and this court may only review findings of fact using the manifestly erroneous/clearly wrong standard of review. La. Const, art. X, § 12; Cure, 2007-0166, p. 2, 964 So.2d at 1094. In determining whether the disciplinary action was based on good cause and whether the punishment is commensurate with the infraction, this court should not modify the Commission order unless it was arbitrary, capricious, or characterized by an abuse of discretion. Id. A decision of the Commission is “arbitrary and capricious” if there is no rational basis for the action taken by the Commission. Cure, 2007-0166, p. 2, 964 So.2d at 1095.

PREJUDICIAL DELAY

Officer Carter argues he was prejudiced by the delay between the alleged incident and the failure to timely complete the investigation. Louisiana law requires that an investigation of a police officer be completed within sixty days from commencement. La. R.S. 40:25s!. Specifically, La. R.S. 40:2531 provides in pertinent part:

B. Whenever a law enforcement officer is under investigation, the following minimum standards shall apply:
1/7) Except as otherwise provided in this Paragraph, each investigation of a law enforcement officer which is conducted under the provisions of this Chapter shall be completed within sixty days. (Emphasis added).

La. R.S. 40:2531 (B)(7).

The Louisiana Supreme Court found that the failure to comply with the sixty-day investigatory period required by La. R.S. 40:2531 is relevant as to whether the appellant is prejudiced by that failure, but does not require summary dismissal. Marks v. NOPD, 2006-0575, p. 12 (La.11/29/06), 943 So.2d 1028, 1036. In Marks, the NOPD terminated the appellant for unpermitted use of police vehicle. Id., p. 2, 943 So.2d at 1030. An investigation commenced on November 12, 2002. Id. On January, 13, 2003, just beyond the sixty-day time period, a request was made for additional time to complete the investigation. Id., pp. 2-3, 943 So.2d at 1030-31. The request for additional time was denied. On August 13, 2003, the NOPD received the complete report. Id.

The Commission concluded the Officer Marks failed to demonstrate that he was prejudiced by the NOPD’s failure to comply with the sixty-day investigatory time period requirement. Id., p. 6, 943 So.2d at 1033. This Court reversed the Commission’s decision, finding that it was bound by the language of the statute. Id., pp. 5-6, 943 So.2d at 1032. The Supreme Court reversed that decision and remanded the matter, finding that the failure to comply with the sixty-day investigatory time period does not require summary dismissal of the disciplinary action but rather requires the determination of whether the employee was prejudiced by the failure to comply. Id., p. 12, 943 So.2d at 1036.

Under Louisiana law, an investigation is considered complete upon notice to the police employee of a pre-disciplinary hearing. La. R.S. 40:2531(B)(7). In the | r,instant matter, the NOPD issued a disciplinary letter dated September 25, 2006, which indicated a pre-disciplinary hearing was held on August 17, 2006.

The NOPD alleged that Officer Carter received a subpoena, however he failed to appear in court the morning of July 6, 2005. Officer Carter’s testimony elicited that approximately one month' later, on August 2, 2005, he gave the NOPD a statement on the alleged missed court date. As the statement was not admitted into evidence, we are limited to Officer Carter’s testimony. Officer Carter testified that the statement did not state why he missed court. The NOPD presented no other witnesses or evidence concerning the facts of this case.

We find that the NOPD faded to prove that the notice of the pre-disciplin-ary hearing issued to Officer Carter in September 2006, occurred within the sixty-day investigatory period that commenced in 2005. The fact that Officer Carter gave the NOPD a statement on the alleged missed court date in 2005 evidences that the investigatory period commenced in 2005. The September 2006 disciplinary letter signaled the completion of the NOPD’s investigation, and given that, we find that the sixty-day investigatory time limit was exceeded.

Officer Carter testified that he was prejudiced by the investigatory delay in that he was unable to recall the reason for his absence from court on July 6, 2005. The acceptable reasons for missing a mandatory court appearance are few. However, they exist. We find Officer Carter was prejudiced by the failure to comply with the sixty-day time period provided by La. R.S. 40:2531 in that Officer Carter was not allowed to provide a defense or offer mitigating circumstances. | r,While the delay is understandable considering the conditions presented by the aftermath of Hurricane Katrina, it is also understandable that Officer Carter would have trouble recalling a missed court date which occurred some seventeen months prior to the December 7, 2006 hearing date.

Further, while Louisiana law requires a determination of whether the employee was prejudiced by the failure to comply with the sixty-day investigatory time period, reference to prejudice or lack thereof is absent from the Commission’s reasons for denying Officer Carter’s appeal. Silence in a judgment on any issue that has been placed before the court is deemed a rejection of the claim. See Caro v. Caro, 95-0173, p. 6 (La.App. 1 Cir. 10/6/95), 671 So.2d 516, 520; Leary v. Foley, 03-0751, p. 4 (La.App. 4 Cir. 2/13/08), 978 So.2d 1018, 1021, citing Bain v. Middleton, 00-2630, p. 1, fn. 2 (La.App. 4 Cir. 11/14/01), 802 So.2d 837, 838, citing Zatzkis v. Zatzkis, 632 So.2d 307, 313 (La.App. 4 Cir.1993). Further, a court’s silence on an issue has been construed as a tacit finding on that issue. See Rodsuwan v. Christus Health Northern La., 41,043, p. 8 (La.App. 2 Cir. 5/17/06), 930 So.2d 1116, 1120. We find that the Commission acted arbitrarily and capriciously in denying Officer Carter’s appeal.

DECREE

Accordingly, the decision of the Commission is reversed.

REVERSED.

LOMBARD, J., Dissents.

LOMBARD, J.,

Dissents.

|T Officer Carter was suspended for five days for failing to appear for a court appearance, his second violation of a NOPD rule pertaining to mandatory court appearance. The Commission rejected his appeal of the disciplinary 5-day suspension imposed by the NOPD and, after review of the record in light of the applicable law, I would affirm this decision.

The failure to comply with the sixty-day investigation period does not mandate dismissal but is relevant to the issue of whether the appellant was prejudiced by the delay. See Davis v. New Orleans Police Dept., 04-1023 (La.App. 4 Cir. 2/2/05), 899 So.2d 37 (60 day investigatory period mandatory unless extension requested), abrogated by Marks v. New Orleans Police Dept., 06-0575 (La.11/29/06), 943 So.2d 1028 (language in La. Rev.Stat. 40:2531(B)(7) is directory not mandatory). “When a judgment is silent with respect to any demand which was at issue under the pleadings, the silence constitutes an absolute rejection of the demand.” Rodsuwan v. Christus Health Northern La., 41,043, p. 8 (La.App. 2 Cir. 5/17/06), 930 So.2d 1116, 1120 (citing Sun Finance Co. v. Jackson, 525 So.2d 532 (La.1988)). Accordingly, the Commission’s failure to make a finding of prejudice is deemed an absolute rejection of that claim, a finding we review for manifest error. As noted by the majority, the only evidence of prejudice in the | ^record is Officer Carter’s statement that he was unable to recall the reasons for his absence from court on July 6, 2005. Under our standard of review, I do not find this a sufficient basis to make a finding that Officer Carter was prejudiced by the delay or that the Commission acted arbitrary and capricious in denying his appeal. Accordingly, I respectfully dissent.

      . The Louisiana legislature, in 2007, amended the statute to provide that no disciplinary action can be taken against a police officer when the investigation is not timely completed. As the incident at issue occurred before the amendment, the jurisprudence interpreting the statute applies.

      . The NOPD called Sgt. Nevil as a witness, but Sgt. Nevil's testimony was limited to the reason for the enforcement of the mandatory court appearance rule and the discipline imposed for violation of the rule.


author: GREMILLION, Judge.

text:
    H.B. RENTALS, LC, et al. v. Maurice BLEDSOE, Jr.
    No. CA 09-478.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 4, 2009.
    Robert B. Worley, Jr., Jones, Walker, et al., New Orleans, LA, for Plaintiffs/Appellants, Superior Energy Services, Inc. H.B. Rentals, LC.
    Joel P. Babineaux, Babineaux, Poche, Anthony & Slavich, LLC, Lafayette, LA, for Plaintiffs/Appellants, Superior Energy Services, Inc., H.B. Rentals, LC.
    Michael P. Maraist, Maraist Law Firm, Lafayette, LA, for Defendant/Appellee, Maurice Bledsoe, Jr.
    Michael Y. McCormick, McCormick, Hancock & Newton, Houston, TX, for Defendant/Appellee, Maurice Bledsoe, Jr.
    Court composed of OSWALD A. DECUIR, MICHAEL G. SULLIVAN, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

_JjH.B. Rentals, L.C., and Superior Energy Services, Inc. (H.B.) appeal a partial summary judgment rendered in favor of Maurice Bledsoe, Jr., dismissing their demands against Bledsoe seeking injunctive relief and damages. For the reasons that follow, we affirm.

FACTS

Bledsoe was the president of H.B. when it was acquired by Superior in 2000. At the time, he signed an agreement not to compete with H.B. and not to solicit H.B.’s customers for a period of two years following termination of his employment. The agreement “restricted” the geographic territory within which Bledsoe was prohibited from competing and soliciting in accordance with an appendix thereto, as well as within the States of Texas, Mississippi, Alabama and Florida. The appendix lists all 64 Louisiana parishes. The agreement contained no severance, but did stipulate that its terms were not binding if Bledsoe was terminated for reasons other than disability or for cause. Bledsoe resigned from H.B. in August 2008, and went to work for TanMar Rentals, LLC, a competitor of H.B. H.B. then filed suit.

Bledsoe filed a motion for partial summary judgment in which he asserted that the agreement was overly broad, and that the consequence of the contract’s over-breadth was its nullity. Bledsoe based this argument on the supreme court’s decision in SWAT 24 Shreveport Bossier, Inc. v. Bond, 00-1695 (La.6/29/01), 808 So.2d 294, which held that the statute governing non-compete agreements, La. R.S. 28:921, merely prohibited an employee subject to such an agreement from operating his own business and not being employed by another. He further argued that the provisions of La. R.S. 2S:921(H) were enacted after he signed the agreement, and are not applicable to his case. Thus, he argued, the agreement did not prohibit his 12employment with TanMar.

The trial court granted Bledsoe’s motion for partial summary judgment as to the allegations of H.B. that he violated the agreement by his employment with Tan-Mar, and seeking injunctive relief. H.B. then perfected this appeal.

ANALYSIS

Non-compete agreements (non-competes) are governed by La. R.S. 23:921. Section (A)(1) (emphasis added) opens with a very strong statement of public policy disdain for these contracts:

Every contract or agreement, or provision thereof, by which anyone is restrained from exercising a lawful profession, trade, or business of any kind, except as provided in this Section, shall be null and void.

Since its enactment in 1962 by Act 104, this statute has undergone several amendments, most of which were aimed at addressing situations that were simply not contemplated by the legislature in the original bill, such as relationships between franchisors and franchisees and the creation of limited liability companies. Many amendments, though, were aimed at strengthening the enforcement of these agreements. The trend in the jurisprudence, as well, seems to have swung in the direction of greater enforceability of non-competes.

Prior to 2003, paragraph (D) was not included in § 921. Paragraph (D) specifically provides that a person who becomes employed by a competitor may be deemed to be carrying on or engaging in a similar business. Thus, in SWAT 21, a 2001 case, the production manager of a construction company was not barred from employment by another construction company in which he held no equity interest. The Louisiana Supreme Court interpreted paragraph (C) of the statute to only allow |san employer to prohibit his former employee from establishing his own business in competition with the former employer. The rationale was the use by the legislature of the phrase “carrying on or engaging in a business similar to that of the employer,” as the conduct that could be enjoined by such an agreement. Carrying on or engaging in a business is not synonymous with accepting employment.

Thus, in the form the statute took when the non-compete was executed by Bledsoe, such agreements could not restrain one from leaving the employ of another and going to work as an employee of his competitor; rather, one was allowed to restrain one’s employees only from setting up their own businesses in competition. See SWAT 24, 808 So.2d 294.

Before the trial court, H.B. acknowledged that the law governing the interpretation of this non-compete was the version in existence in 2001. However, it contends a genuine issue of material fact exists regarding whether Bledsoe is an owner of TanMar. H.B. propounded discovery to Bledsoe seeking information on this issue, but Bledsoe had not deigned to answer that discovery at the time his motion for partial summary judgment was heard. However, we note that in support of his motion, Bledsoe executed an affidavit attesting to a complete lack of ownership interest in TanMar.

Appellate courts review grants of summary judgment de novo, applying the same standards as would a trial court. Schroeder v. Bd. of Sup’rs. of La. State Univ., 591 So.2d 342 (La.1991). Summary judgment is governed by La.Code Civ. P. arts. 966 and 967. Article 966, as amended by Act 483 of 1997, provides that while the burden of proving entitlement to summary judgment rests with the mover, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does not | ¿require him to negate all essential facts of the adverse party’s claim, action or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606.

H.B. argued before the trial court that it was entitled to discovery on the ownership issue and summary judgment is thus premature. However, in opposition to Bledsoe’s motion, it offered nothing in terms of even suggesting to the trial court what areas “not addressed by the affidavit” it wished to question Bledsoe about. The only specific questions it has identified are Bledsoe’s role in TanMar, negotiations leading up to his employment and any employment agreements he has with Tan-Mar. The negotiations are not relevant, nor are any employment agreements except to the extent they might place Bled-soe in an equity ownership capacity with TanMar, which is addressed specifically in Bledsoe’s affidavit. Bledsoe’s role in Tan-Mar, except to the extent that he would be conferred with an ownership interest or directly soliciting H.B.’s customers, which we will address infra., is similarly irrelevant.

The subject agreement distinguishes between competing against H.B. and soliciting H.B.’s customers, both current and potential. Section 921 makes no such distinction between non-competes and so-called “non-solicitations.” The provisions applicable to one apply to the other, including the geographic designation requirements. Both are contained in paragraph (C). While the agreement contains a very broad geographic designation, the non-solicitation clause contains none. Under the plain terms of § 921, it is null and void. However, H.B. maintains that our decision in Petroleum Helicopters, Inc. v. Untereker, 98-1816 (La.App. 3 Cir. 3/31/99), 731 So.2d 965, writ denied, 99-1739 (La.8/5/99), 747 So.2d 40, governs and renders the non-compete valid. The issue in Petroleum Helicopters, as in the present matter, is the geographic specificity of the non-compete. Paragraph (C) of § 921 allows the execution of a non-compete within “a specified parish or parishes, municipality or municipalities, or parts thereof, so long as the employer carries on a like business therein.” In Petroleum Helicopters, the non-compete simply prohibited the defendant from competing “within the parishes which PHI carries on a like business.” Id. at 968. Our reasoning in enforcing the non-compete was that although the parishes were not specified, they were identifiable.

We find a very clear distinction between an employer attempting to comply with the statute by narrowly tailoring an albeit somewhat flawed non-compete, and one drafting an agreement that is overly broad such as the present agreement. Here, H.B. not only fails specifying the parishes or municipalities in which Bledsoe is prohibited from soliciting customers, it also attempts to prohibit him from soliciting potential customers. We cannot discern whether this refers to customers of H.B. at the time of the agreement, at the time Bledsoe left H.B.’s employ, or at any time present or future. The inclusion of potential customers is particularly troubling, in that it can be assumed that any entity in the field is a potential customer. Unlike the situation in Petroleum Helicopters, this provision is simply so overly broad that any attempt to reform it would not be in keeping with either the letter or spirit of the statute.

Before this court, H.B. argues that summary judgment was premature and it is entitled to additional discovery in order to determine whether Bledsoe had any knowledge of the parishes in which H.B. did business. This would be relevant, it argues, for purposes of determining the validity of the agreement under the Petroleum | (Helicopters case. This would be true, however, only if the agreement could validly prohibit Bledsoe from becoming an employee of TanMar without acquiring an equity interest in it. The total lack of any reference to geographic limits to the non-solicitation agreement renders it null and void.

CONCLUSION

Agreements in restraint of trade are generally disfavored as evidenced by the language of La. R.S. 28:921. Any such agreement that does not comply with the statute’s dictates is declared by the legislature to be null and void. The law governing the agreement between H.B. and Bledsoe is the law that existed when the agreement was confected in 2000. At that time, § 921 did not prohibit one from becoming an employee of a competitor of one’s former employer.

Therefore, Bledsoe, who has no ownership interest in TanMar, is not in violation of the agreement to not compete against H.B. The agreement not to solicit current or potential customers of H.B. is overly broad to the point that the court is unable to reform it. In the latter regard, it fails in two respects: it does not designate the parishes or municipalities in which Bledsoe is prohibited from soliciting customers, and it purports to prohibit him from soliciting potential customers.

The judgment rendered by the trial court is affirmed. All costs of appeal are assessed against plaintiffs/appellants, H.B. Rentals, L.C., and Superior Energy Services, Inc.

AFFIRMED.

      . This was amended by Acts 2003, No. 428. The paragraph was originally designated as (H), but was redesignated (D) upon approval by the governor under authority granted to the Louisiana Law Institute.


author: PAINTER, Judge.

text:
    STATE of Louisiana v. Michael Wayne CATLIN.
    No. 09-220.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 4, 2009.
    G. Paul Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant-Appellant, Michael Wayne Catlin.
    Laurie Ann Hulin, Assistant District Attorney, Abbeville, LA, for Appellee, State of Louisiana.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

| defendant, Michael Wayne Catlin, appeals his conviction for aggravated battery. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On the afternoon of July 10, 200t, Defendant was at his mother’s house along with his two adult sisters. And argument erupted between Defendant and one of his sisters, Donna Jenkins. The argument escalated, and Defendant physically assaulted Jenkins by grabbing her hair and banging her head into a kitchen cabinet several times.

DISCUSSION

Errors Patent

In accordance with La.Code Crim. P. art. 920, all appeals are reviewed for error patent on the face of the record. After reviewing the record, we find none.

Sufficiency of the Evidence

In his sole assignment of error, Defendant argues that the evidence was insufficient to show that he specifically intended to use a kitchen cabinet as a weapon during scuffle with his sister. Defendant also maintains that his sister was the aggressor in the argument.

The analysis for a claim of insufficient evidence is well-settled:

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

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

Aggravated battery is defined by La. R.S. 14:34 as “a battery committed with a dangerous weapon.” A dangerous weapon pursuant to La. R.S. 14:2(3) “includes any gas, liquid or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm.” Additionally, as noted in State v. Odom, 03-1772 (La. App. 1 Cir. 4/2/04), 878 So.2d 582, 589, writ denied, 04-1105 (La.10/8/04), 883 So.2d 1026,

The dangerousness of an instrumentality because of its use is a factual question for the jury to decide for purposes of a conviction of aggravated battery. State v. Rainey, 98—136 (La.App. 5th Cir.11/25/98), 722 So.2d 1097, 1102, writ denied, 98-3219 (La.5/7/99), 741 So.2d 28. Aggravated battery requires neither the infliction of serious bodily harm nor the intent to inflict serious injury. Instead, the requisite intent element is general criminal intent. State v. Brown, 00-1951 (La.App. 1st Cir.5/11/01), 808 So.2d 622, 623-624.

At trial, Jenkins testified that on July 10, 2006, she lived with and cared for her elderly mother who was also Defendant’s mother. Defendant lived next door. That afternoon, Defendant entered the house to speak with their mother who was sitting at the kitchen table. Jenkins stated that although it is difficult to tell when Defendant is sober, he did not appear sober from the way he was talking.

According to Jenkins, Defendant reported that he was thinking about getting a driver’s license and that he wanted their father’s old car. Jenkins replied, “Are they letting drunks drive now?” Defendant responded by threatening to flatten the tires of their vehicles. Their sister, Patricia Jones, was also present, helping Jenkins care for their mother. Jones heard Defendant and Jenkins arguing so she went to kitchen to see what was going on. Jones testified that when she entered the kitchen, | ^Defendant -was still yelling at Jenkins. She stated that she approached Defendant and asked him to leave because it was not good for their mother to hear the arguing. Defendant responded that he was not going to leave. Jones asked him to leave again. According to Jones, Defendant pushed his weight against her, and she was unable to push back. She testified that hit her slamming her head into the corner of a freezer and causing her to see stars. While this altercation was in progress, Jenkins called 911 to report that they needed help.

Jenkins then grabbed Defendant’s arm to prevent him from striking Jones again. Defendant grabbed Jenkins by the hair and began banging her head into the kitchen cabinet. According to Jenkins, Defendant banged her head into the cabinet three or four times. Jenkins testified that Defendant also tried to bite her, causing his dental bridge to dislodge and splatter blood on her pants. Lastly, Defendant began banging her head onto the floor and continued to do so until the sheriff arrived. On cross-examination, Jenkins maintained that she did not try to defend herself in any way. She explained that she was just trying to hold onto him to keep him from hitting Jones.

As a result of the altercation, Jenkins suffered from headaches for several days. She also had sore areas on her scalp and areas where her hair was pulled out. The injuries to her scalp were not visible and thus, were not photographed. Jenkins did not seek medical attention because she did not have health insurance. She denied suffering from any scarring or permanent injuries.

On appeal, Defendant conceded that a simple object can become a weapon under La. R.S. 14:33. However, Defendant argues that the presence of a cabinet or counter was essentially the environment where the incident occurred. Defendant asserts that in a situation where two people roll around on the kitchen floor in a fight, 14one cannot ascribe dangerous characteristics to the environment and simply find that contact with the environment constitutes aggravated battery. Defendant contends that the element of dangerousness is missing, especially when Jones testified that Jenkins’ head hit the cabinet two times.

Defendant does not, however, refer to any testimony that suggests that he and Jenkins were rolling around on the floor and that, as a result, she hit her head on a cabinet. In fact, Jenkins and Jones both testified that Defendant took the victim by the hair and banged her head into a cabinet at least two time, which supports the conclusion that Defendant used the cabinet as a weapon in a way likely to cause severe injury.

Finally, Defendant argues that Jenkins was the first to use physical force, and that, as a result, the aggressor doctrine bars this court from finding him guilty of aggravated battery. Defendant does not, however, point to any evidence in the report to support his claim. After reviewing the record, we find no evidence suggesting that Jenkins was the first to use physical force.

Considering the facts adduced at trial, the evidence was sufficient to show that a dangerous weapon was used. Although Jenkins did not sustain serious injuries, the infliction of serious bodily harm is not an element of aggravated battery. Accordingly, the jury’s factual determination was not erroneous and will not be disturbed on appeal.

CONCLUSION

For these reasons, Defendant’s conviction is affirmed.

AFFIRMED.