text:
    Dennis GIBSON, Individually and on Behalf of All Others Similarly Situated v. NATIONAL HEALTHCARE OF LEESVILLE, INC., d/b/a Byrd Regional Hospital
    CA 18-710
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2019
   Scott R. Bickford, Lawrence J. Centola, III, Martzell, Bickford & Centola, PC, 338 Lafayette St., New Orleans, LA 70130, (504) 581-9065, COUNSEL FOR PLAINTIFF/APPELLEE: Dennis Gibson

Edwin Dunahoe, Jared Dunahoe, The Dunahoe Law Firm, P. O. Box 607, Natchitoches, LA 71458-0607, (318) 352-1999, COUNSEL FOR PLAINTIFF/APPELLEE: Dennis Gibson

Derrick G. Earles, Laborde Earles Law Firm, 203 Energy Parkway, Building B, Lafayette, LA 71351, (337) 777-7777, COUNSEL FOR PLAINTIFF/APPELLEE: Dennis Gibson

J. Lee Hoffoss, Jr., Claude P. Devall, Donald W. McKnight, Hoffoss Devall, LLC, 517 W. College Street, Lake Charles, LA 70605, (337) 433-2053, COUNSEL FOR PLAINTIFF/APPELLEE: Dennis Gibson

David R. Kelly, Thomas R. Temple, Jr., Chris D. Billings, Breazeale, Sachse & Wilson, L.L.P., P. O. Box 3197, Baton Rouge, LA 70821-3197, (225) 387-4000, COUNSEL FOR DEFENDANT/APPELLANT: National Healthcare of Leesville, Inc. D/B/A Byrd Regional Hospital

Court composed of Sylvia R. Cooks, Billy Howard Ezell, and Candyce G. Perret, Judges.

EZELL, Judge.

This case raises the issue of whether certification of a class action under La.R.S. 22:1874, the Balance Billing Act, was proper. National Healthcare of Leesville, Inc. D/B/A Byrd Regional Hospital (Byrd Regional) appeals the decision of the trial court arguing that the trial court failed to conduct a rigorous analysis of all the elements for class certification. For the following reasons, we affirm the trial court's decision.

FACTS

Dennis Gibson was injured in an accident on April 25, 2011, when a car ran into the motorcycle he was driving. He was taken to Byrd Regional for treatment. At the time of his admission, Mr. Gibson's account was designated as Financial Class "L" which stood for "liability" and meant he had been in a motor vehicle accident. The intake sheet at Byrd Regional noted that Mr. Gibson worked for the Louisiana Department of Agriculture and Forestry in DeRidder. Mr. Gibson was covered by health insurance with the State of Louisiana, Office of Group Benefits. That insurance was provided by Blue Cross and Blue Shield of Louisiana.

Linda Davis, director of patient financial services with Byrd Regional since 1996, testified at the hearing on class certification. She explained that prior to 2013, Byrd Regional was instructed to bill the motor vehicle insurance company as primary. This policy was effective in 2005. After July 1, 2013, the health insurer was billed as primary. Ms. Davis explained that Byrd Regional is a contracted healthcare provider for various health insurance companies, including Blue Cross. She stated that a Membership Provider Agreement spelled out the obligations between Blue Cross and Byrd Regional, and Byrd Regional agreed to accept the health insurance rate in accordance with the contract. This is known as the contracted reimbursement rate, which is less than the charge master rate, or total charge.

Michael Lynch, the lien unit department manager for Professional Account Services Incorporated, (PASI), also testified at the hearing. He explained that PASI handles claims for hospitals involving automobile accidents. PASI will run a query on the hospital system looking for accounts that indicate there was a motor vehicle accident, or Class "L" accounts. PASI will then begin working the case by filing a lien against the at-fault insurer. This occurs before any attempt to collect from the health insurer. "This practice of rejecting insurance and collecting or attempting to collect full charges is referred to as 'balance billing' and is prohibited by law." Emigh v. West Calcasieu Cameron Hosp. , 13-2985, p. 2 (La. 7/1/14), 145 So.3d 369, 371 ; La.R.S. 22:1874.

In Mr. Gibson's case, the total charges were $ 5,292.55. A notice of hospital lien was filed against Farm Bureau Insurance Company, the liability insurer of the at-fault driver, on May 6, 2011. On December 2, 2011, Farm Bureau paid the entire bill, which is more than Blue Cross would have paid pursuant to the contracted reimbursement rate. Byrd Regional released the lien on December 14, 2011.

On July 25, 2016, Mr. Gibson, individually and on behalf of others similarly situated, filed a class action suit for damages against Byrd Regional. Mr. Gibson asserted statutory violations and breach of contract claims. Specifically, Mr. Gibson alleged that Byrd Regional improperly refused to submit medical bills to patient's health insurers and attempted to collect payment from patients in violation of Louisiana's Balance Billing Act, La.R.S. 22:1871 to 22:1881, and in violation of the Member Provider Agreement.

After the hearing on September 28, 2017, the trial court certified this matter as a class action. Reasons for ruling were issued on October 10, 2017, and judgment was signed on October 27, 2017. The class was defined as (alterations in original):

All persons currently and/or formerly residing in the State of Louisiana during the period from May 1, 2005 to July 1, 2013:
(1) Having "Health Insurance Coverage' [as defined by La. R.S. 22:1872(18) ] providing coverage for themselves or for others for whom they are legally responsible, with any "Health Insurance Issuer" [as defined by La. R.S. 22:11872(19) ] at the time "covered health care services" [as defined by La. R.S. 22:1872(8) ] were provided by any company owned and/or operated by BYRD ; and,
(2) With which "Health Insurance Issuer" and company owned and/or operated by BYRD was a "contracted health care provider" at the time of service [as defined by La. R.S. 22:1872(6) ]; and,
(3) From whom BYRD and/or any company owned and/or operated by BYRD collected, and/or attempted to collect, the "Health Insurance Issuer's Liability" [as defined by La. R.S. 22:1872(20) ], including, but not limited to, any collection or attempt to collect from any settlement, judgment or claim made against any third person or insurer who may have been liable for any injuries sustained by the patient which insurers include those providing liability coverage to third person, uninsured/underinsured coverage, and /or medical payments coverage); and/or,
(4) From whom BYRD and/or any company owned and/or operated by BYRD , collected, and/or attempted to collect, any amount in excess of the "Contracted Reimbursement Rate" [as defined by La. R.S. 22:1872(7) ], including but not limited to, any collection or attempt to collect from any settlement, judgment, or claim made against any third person or any insurer which may have been liable for any injuries sustained by the patient (which insurers include those providing liability coverage to third person, uninsured/underinsured coverage, and/or medical payments coverage); and/or
(5) From whom BYRD and/or any company owned and/or operated by BYRD collected, and/or attempted to collect, any amount without first receiving an explanation of benefits or other information from the Health Insurance Issuer setting forth the liability of the insured as required by La. R.S. 22:1874(A)(2) and (3).

Byrd Regional filed a motion for new trial on November 9, 2017. A hearing on the motion for new trial was held on March 1, 2018. The motion was denied, and judgment was signed on March 26, 2018. Byrd Regional then filed the present appeal claiming that Mr. Gibson did not meet his burden of proof under La.Code Civ.P. art. 591 to certify the class and the trial court abused its discretion when it granted Mr. Gibson's motion to certify the class.

CLASS CERTIFICATION

In Baker v. PHC-Minden, L.P. , 14-2243, p. 23 (La. 5/5/15), 167 So.3d 528, 544, the supreme court specifically held that "the class action is the superior method for adjudicating the common issue regarding the legality, under the Balance Billing Act, of a health care provider's collection policy of filing medical liens to recover its full rate for services from an insured's settlement or judgment with a third-party [tort feasor]." Louisiana Code Civil Procedure Article 591 sets forth the requirements for class certification. Specifically, La.Code Civ.P. art. 591(A) provides for five prerequisites that a representative party or parties must meet for class certification "often referred to as numerosity, commonality, typicality, adequacy of representation, and objective definability of class[.]" Baker , 167 So.3d at 538. Furthermore, in a Balance Billing Act class certification case, a party must also "prove common questions of law or fact predominate over individual issues[.]" Id. at 539. On appeal, Byrd Regional claims that Mr. Gibson was unable to meet his burden of proof with respect to the numerosity, adequacy, and predominance elements.

"The burden of establishing the statutory criteria have been satisfied falls on the party seeking to maintain the class action." Id. A trial court has wide discretion in determining whether a class should be certified, and its factual findings are subject to the manifest error standard of review. Id. "What is of primary concern in the certification proceeding is simply whether the plaintiffs have met the statutory requirements to become a class action, not the merits of the underlying litigation." Id. at 541 (alteration in original). "[A] court's focus on review must be on the requirements and whether the evidence establishes the procedural device is appropriate." Id.

The supreme court in Baker has already determined that the class action is a proper procedural device for a claim alleging violations of the Balance Billing Act by healthcare providers. Therefore, we will review the trial court's determinations regarding the statutory requirements that Byrd Regional alleges Mr. Gibson failed to establish under La.Code Civ.P. art 591 pursuant to the manifest error standard of review.

Numerosity

Byrd Regional first claims that Mr. Gibson failed to submit any evidence as to the likely number of potential claimants and improperly relied on an assumption that the potential claimants are so numerous that joinder is impractical.

A court must look at the facts and circumstances of each individual case to determine numerosity. Baker , 167 So.3d 528. "This requirement reflects the basic function of the class action as a device for allowing a small number of persons to protect or enforce rights or claims for the benefit of many where it would be inequitable and impracticable to join every person sharing an interest in the rights or claims at issue in the suit." Id. at 542.

There is no set number above which a class is automatically considered so numerous as to make joinder impractical as a matter of law. Likewise, the numerosity element may not be met by simply alleging a large number of potential claimants exist. While the determination of numerosity is in part based upon the number of putative class members, it is also based upon considerations of judicial economy in avoiding a multiplicity of lawsuits, financial resources of class members, and the size of the individual claim. Ultimately, to meet this requirement, the plaintiff must show joinder is impractical, but, at the same time, there is a definable group of aggrieved persons.

Id. (citations omitted).

Mr. Gibson introduced Exhibit 9 at the hearing, which was provided by Byrd Regional. Ms. Davis explained that Exhibit 9 is a list generated by Byrd Regional that lists over 600 patients who were treated after motor vehicular accidents and were both "L" and Occurrence Code 01, indicating that another vehicle was involved and that there may be a liability claim. The trial court found that there may be as many as 600 patients based on this list. As noted by Byrd Regional, this exhibit does list a few claims that are outside the period of time when the classification policy was in place.

Byrd Regional claims that the list is not limited to accounts on which liens were issued to patients with health insurance. It claims that the list includes all self-pay accounts, patients insured under a fully-funded ERISA policy, uninsured patients, and all patients covered under Medicare, Medicaid, or some other government sponsored program. Byrd Regional argues that the class definition does not include these patients and, as such, the list is broad and over-inclusive. As a result, it claims that Mr. Gibson failed to establish that the class is so large that joinder would be impractical.

Clearly, of these 600 patients, there are numerous patients who were treated at Byrd Regional for motor vehicular accidents and liens were issued on the liability policy as primary when health insurance was involved. While Mr. Lynch testified that there is nothing in PASI's software that would allow it to identify Class "L" accidents where only health insurance was involved, he agreed that it would not necessarily be a problem for Byrd Regional. Even Byrd Regional's own Hospital Lien Policy regarding motor vehicle accidents with liability provided what information should be noted at registration for a patient involved in a motor vehicle accident. It required notation of whether a patient had Blue Cross insurance, other auto/liability insurance, no insurance, did not know the specific insurance, or no insurance.

Ms. Davis explained that Byrd Regional labeled all motor vehicle accidents as Class "L" resulting in the liability insurance policy as primary over the health insurance policy. She testified that from May 2005 to July 1, 2013, this policy had been implemented at the hospital more than 100 times. So, we know more than 100 names on the list would qualify as members of this class.

Also, many of the amounts listed in Exhibit 9 are relatively small so considerations of judicial economy come into play. As noted by the supreme court in Baker , 167 So.3d at 542, "many claims may be small or nominal in nature, rendering individual actions financially impractical, if not impossible." We find no manifest error in the trial court's conclusion that the numerosity requirement was met by Mr. Gibson.

Adequacy of Representation

Byrd Regional claims that Mr. Gibson is not capable of fairly and adequately protecting the interests of the purported class. It claims that there are aspects of his own claim that make his interests in direct conflict with those of the purported class. Specifically, Byrd Regional argues Mr. Gibson has no general damages claim even though he is trying to pursue a general damages claim on behalf of the class. Byrd Regional also claims that Mr. Gibson's claim is subject to the defense of prescription.

There are factors that are relevant to the inquiry of whether Mr. Gibson will fairly and adequately protect the interests of the class:

(1) The representative must be able to demonstrate that he or she suffered an actual-vis-à-vis hypothetical-injury;
(2) The representative should possess first hand knowledge or experience of the conduct at issue in the litigation;
(3) The representative's stake in the litigation, that is, the substantiality of his or her interest in winning the lawsuit, should be significant enough, relative to that of other class members, to ensure that representative's conscientious participation in the litigation; and
(4) The representative should not have interests seriously antagonistic to or in direct conflict with those of other class members, whether because the representative is subject to unique defenses or additional claims against him or her, or where the representative is seeking special or additional relief.

Baker , 167 So.3d at 543-44 (quoting Kent A. Lambert, Certification of Class Actions in Louisiana , 58 La.L.Rev. 1085, 1117 (1998) ).

The Balance Billing Act is a consumer protection law designed to prohibit health providers from "attempting to collect ... or collect ... an amount in excess of the contracted reimbursement rate for covered health care services. La.R.S. 22:1874(A). The supreme court in Anderson v. Ochsner Health System , 13-2970 (La. 7/1/14), 172 So.3d 579, held that La.R.S. 22:1874(B) grants a private cause of action to an insured to sue under the Balance Billing Act. Specifically, La.R.S. 22:1874(B) grants a prevailing party the right to "recover all costs incurred, including reasonable attorney fees and court costs" when a health care provider maintains an action at law to collect an amount in excess of the contracted reimbursement rate.

While Mr. Gibson did testify that he had no worry or concern related to Byrd Regional's handling of his medical claim, the Balance Billing Act allows recovery of all costs incurred. There is no doubt that a medical lien was filed in Mr. Gibson's case and Farm Bureau, the liability insurer, paid the full amount sought. Mr. Gibson received notice of the medical lien from Byrd Regional and acknowledged that he never got the benefit of the discounted rate. He, like many others, will have a claim aside from mental health damages. Mr. Gibson agreed that at the time of his deposition, he was not very familiar with the Balance Billing Act or a class action. However, he testified that he now has a better understanding of the issues and process and is willing to serve as the class representative.

Byrd Regional also claims that Mr. Gibson is subject to the unique defense of prescription citing Stewart v. Ruston Louisiana Hospital Co., L.L.C. , 3:14-0083, p. 5, 2016 WL 1715192 (W.D. La. 2016) (unpublished opinion), in which the federal court held "that the appropriate prescriptive period for a cause of action based on a violation of the Balanced [sic] Billing Act is one year." However, this court in Vallare v. Ville Platte Medical Center , 16-863, 16-953 (La.App. 3 Cir. 2/22/17), 214 So.3d 45, writs denied , 17-498, 17-513 (La. 5/12/17), 221 So.3d 73, specifically disagreed with Stewart and found that the cause of action involved a contract or quasi-contractual obligation and is not based on tort so that the proper prescriptive period is ten years.

Byrd Regional also takes issue with Mr. Gibson's failure to file suit against Blue Cross. Citing Emigh , 145 So.3d 369, Byrd Regional argues that Mr. Gibson has failed to pursue a claim against the health insurers for breach of contract. It claims that should any claim against it be dismissed, then the class could pursue claims against the health insurers for breach of contract because Blue Cross's contract promises that a health care provider will provide care at discounted health care costs.

We first observe that the supreme court in Emigh simply held that the petition against the health insurers stated a cause of action under La.Civ.Code art. 1977 for breach of contract due to the failure of a third party to perform an obligation. The supreme court further stated that it was offering no opinion as to the success on the merits of the claim.

The fact that Mr. Gibson did not seek to sue his own health insurer does not render him an inadequate class representative for the claims against Byrd Regional. See Gunderson v. F.A. Richard and Assocs., Inc. , 07-264, 07-331, 07-400 (La.App. 3 Cir. 2/27/08), 977 So.2d 1128, writs denied , 0-1063, 08-1069, 08-1072 (La. 9/19/08), 992 So.2d 953.

We find no manifest error in the trial court's determination that Mr. Gibson is an adequate representative of the proposed class.

Predominance

Byrd Regional also claims the trial court failed to complete an analysis of the requirements of La.Code Civ.P. art. 591(B)(3), which requires Mr. Gibson to show that any common questions of law or fact predominate over the individual issues involved. It argues that there are numerous individual issues that will make it impossible for the court to ultimately determine liability and assess damages feasibly and efficiently across the class without conducting mini-trials. Mr. Gibson argues that class certification has been approved by this court and the supreme court even though there may be possible individual issues. He argues that there is a common issue that predominates: Whether the Defendant's collection policy, which was applied to all plaintiffs, violates the prohibitions under the Balance Billing Act and the provider's contractual obligations under Louisiana law.

"An inquiry into predominance tests 'whether the proposed classes are sufficiently cohesive to warrant adjudication by representation.' " Brooks v. Union Pacific R.R. Co. , 08-2035, p. 19 (La. 5/22/09), 13 So.3d 546, 560 (quoting Amchem Prods., Inc. v. Windsor , 521 U.S. 591, 623, 117 S.Ct. 2231, 2249, 138 L.Ed.2d 689 (1997) ; Vallare v. Ville Platte Medical Center, LLC , 2014-261 (La.App. 3 Cir. 11/5/14), 151 So.3d 984. "The predominance requirement 'entails identifying the substantive issues that will control the outcome, assessing which issues will predominate, and then determining whether the issues are common to the class,' a process that ultimately 'prevents the class from degenerating into a series of individual trials.' " Brooks , 13 So.3d at 560 (quoting O'Sullivan v. Countrywide Home Loans, Inc. , 319 F.3d 732, 738 (5th Cir. 2003) ).

We agree with the trial court that the issue of whether Byrd Regional's actions violated the prohibition found in the Balance Billing Act predominates over any individual claims. As we previously stated, many of the claims will be so small so as make individual actions impractical.

For the reasons set forth in this opinion, we affirm the trial court's judgment certifying this matter as a class action. All costs of this appeal are assessed to National Healthcare of Leesville, Inc. D/B/A Byrd Regional Hospital.

AFFIRMED.


source: Caselaw Access Project

author: CONERY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. William Chester FARRY Jr.
    KA 18-721
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2019
    John Foster DeRosier, District Attorney, 14th Judicial District, Post Office Box 3206, Lake Charles, Louisiana 70602-3206, (337) 437-3400, COUNSEL FOR APPELLEE: State of Louisiana
    Elizabeth Brooks Hollins, Assistant District Attorney, 14th Judicial District, 901 Lakeshore Drive, Suite 800, Lake Charles, Louisiana 70601, (337) 437-3400, COUNSEL FOR APPELLEE: State of Louisiana
    Ross Murray, Assistant District Attorney, 14th Judicial District Court, 901 Lakeshore Drive, Suite 600, Lake Charles, Louisiana 70601, (337) 437-3400, COUNSEL FOR APPELLEE: State of Louisiana
    Chad M. Ikerd, Louisiana Appellate Project, Post Office Box 2125, Lafayette, Louisiana 70502, (225) 806-2930, COUNSEL FOR DEFENDANT/APPELLANT: William Chester Farry Jr.
    Court composed of John D. Saunders, Phyllis M. Keaty, and John E. Conery, Judges.
   CONERY, Judge.

Following proceedings on remand, Defendant, William Farry, appeals the trial court's rejection of his ineffective assistance of counsel claim. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

A jury convicted Defendant of armed robbery. The trial court ultimately found Defendant to be a third habitual offender and sentenced him to life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. This court affirmed Defendant's armed robbery conviction in State v. Farry , 16-210 (La.App. 3 Cir. 11/16/16), 206 So.3d 1222, writ denied , 17-301 (La. 10/16/17), 228 So.3d 753. By separate opinion, the court conditionally affirmed Defendant's habitual offender sentence. See State v. Farry , 16-211 (La.App. 3 Cir. 11/16/16), 207 So.3d 436. However, in this latter review, the panel remanded the matter for an evidentiary hearing to address Defendant's contention that his trial counsel was ineffective in failing to object to or to file a motion to reconsider sentence on the basis that a downward departure of the mandatory sentence was warranted. Id.

On remand, Judge David Ritchie conducted the ordered evidentiary hearing. The record establishes that Defendant appeared with appointed counsel, Edward Bauman, at that time. Mr. Bauman stated that he had intended to subpoena Defendant's original sentencing counsel, Robert Shelton, for the evidentiary hearing but determined the issue could be decided without Mr. Shelton. Mr. Bauman then urged the trial court to find the original sentencing counsel was ineffective for failing to file a motion to reconsider sentence. Mr. Bauman asked the trial court to, in turn, resentence Defendant.

Before addressing Defendant's argument, however, the trial judge noted that Mr. Shelton would likely be considered unavailable for testimony due to hospitalization. The trial court then moved on to the issue before it, stating that the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) must be applied in determining whether counsel was ineffective. As stated in the opinion remanding the matter: "In order to prove an attorney was ineffective, a defendant must show his attorney was deficient, and he was prejudiced by the deficiency." Farry , 207 So.3d at 439 (citing Strickland , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 ).

Since Mr. Shelton was not present to testify as to why he did not object to the mandatory life sentence or to file a motion to reconsider the life sentence, the trial court stated that it would assume for purposes of determining ineffective assistance of counsel that Mr. Shelton was deficient in failing to object to the sentence and in failing to file a motion to reconsider sentence. Thus, the trial court focused on whether Defendant was prejudiced by that alleged deficiency. Focusing on the nature of the underlying armed robbery, the trial court remarked on what it described as a "calculated violent" offense and one reflecting "a criminal mindset that has no consideration for anybody" but Defendant. The trial court further noted Defendant's "failure to take responsibility for or show any remorse for his crime is just another validation that I -- that I think that sentence under the habitual offender sentence was appropriate." Accordingly, the trial court concluded that "it would not have made a difference" if Mr. Shelton had objected to the life sentence or had filed a motion to reconsider sentence.

Subsequent to the hearing, Defendant's appointed counsel filed a motion to reconsider sentence. At the time the trial court convened an additional hearing for consideration of that motion, it explained that Defendant's original sentencing counsel, Mr. Shelton, had passed away since the prior hearing. Questioning whether the motion to reconsider sentence should be considered in light of the earlier determination that the prejudice prong of the Strickland standard had not been met, the trial court noted that it had reviewed all of the letters submitted on Defendant's behalf. The trial court then asked Defendant if he would like to put anything additional on the record. Defense counsel noted that Defendant would have liked to have some of his family members present and that Defendant's mother was present. The trial court allowed Defendant's mother to testify.

Afterwards, the trial court reiterated its finding that Defendant failed to prove ineffective assistance of counsel. Additionally, in denying the motion to reconsider sentence, the trial court cited State v. Lindsey , 99-3302 (La. 10/17/00), 770 So.2d 339, cert. denied , 532 U.S. 1010, 121 S.Ct. 1739, 149 L.Ed.2d 663 (2001) for the proposition that Defendant had the burden of demonstrating unusual circumstances so as to render the legislatively-prescribed mandatory sentence unconstitutional. The trial court determined that Defendant failed to do so, explaining, in part, that:

At this point I would say that after considering -- you know, after -- after the evidentiary hearing, after considering everything that was said previously on Mr. Farry's behalf, I can't say -- especially looking at his criminal history and the facts of the current case, I can't say -- and I don't believe that the defense could have met at the time that Mr. Shelton was representing him, had he made the motion, I don't see how he could have made the argument by clear and convincing evidence that Mr. Farry is an exceptional case and that these are unusual circumstances in light of his criminal history, the current charge, et cetera, to be able to prove that he -- you know, that the -- that the mandatory life sentence in this case is constitutionally excessive.

Accordingly, the trial court denied Defendant's motion.

Following that determination, Defendant filed the instant appeal. In briefing to this court, he assigns the following as error:

I. The trial court's determination that trial counsel was effective in this case was in error.
II. William Farry's appointed counsel to represent him at the evidentiary hearing on remand was ineffective and admittedly unprepared to fully represent William's interest. This matter should again be remanded for a new hearing.
III. William Farry's habitual sentence for life should be vacated and his case remanded for resentencing because his case was (is) not final as of November 1, 2017; thus, under the 2017 amendment to La.R.S. § 15:529.1, Williams is no longer subject to a mandatory life sentence. Denial of relief because of the 2018 change in law would constitute Ex Post Facto and Due Process Clause violations.

LAW AND DISCUSSION

Errors Patent

Pursuant to La.Code Crim.P. art. 920, this court reviews all appeals for errors patent on the face of the record. That review reveals no such errors.

Proceedings on Remand

By his first assignment, Defendant asserts that the trial court erred in finding he was not prejudiced by Mr. Shelton's failure to object to or request reconsideration of the mandatory life sentence. Defendant acknowledges the facts of the case are "bad," but contends Defendant's counsel at the evidentiary hearing should have put on evidence as to the facts surrounding the two predicate convictions for simple burglary. Defendant argues:

Due to some of the reasons addressed in assignment of error 2 - namely the lack of preparedness on the part of William's counsel at the evidentiary hearings to provide effective representation on the issue of mitigation - and the trial court's own confusion about how to conduct the hearing, the trial court's failure to find prejudice was in error. The facts of this case are admittedly bad. But William was not being punished just for an armed robbery. He was also being punished for two prior simple burglary charges. The court made a point to say simple burglary is much worse than theft, but the record does not indicate the facts surrounding the two prior burglaries. Nowhere was it stated whether the burglaries where of a house versus a vehicle, whether anything was taken versus attempted to be taken, or whether there were occupants versus a vacancy. Because the court did not fully consider everything relevant to William Farry to determine if he was exceptional, it could not properly determine whether there was a mitigation argument trial counsel could have made that would have made a difference. Therefore, the basis of the court's decision was inadequate and its ruling erroneous.

Defendant asks this court to reverse the trial court's ruling and to remand the case for a hearing, at which he be given "the opportunity to fully defend himself and show prejudice existed when his trial counsel failed to object to his sentence."

In response, the State contends the record does not support Defendant's claim that the trial court erred in finding no prejudice. As for Defendant's assertion that the trial court did not fully consider all relevant evidence to determine whether Defendant was an exceptional person to which a downward departure was warranted, the State counters that Defendant fails to specifically identify what that relevant information might be. In concluding its response to this assignment of error, the State argues:

It is clear that, while the defendant's attorney did not object to the life sentence or file a Motion to Reconsider the sentence, his representation was not ineffective because the deficiency did not prejudice the defense to the extent that the defendant was deprived of a fair trial. The defendant failed to show that he was exceptional or that the legislature's sentence was not meaningfully tailored to the defendant's culpability. In fact, the statements of the trial judge illustrate just the opposite. This defendant is one for which the habitual offender statute was written.

Following review, we conclude that the trial court provided adequate reasons for its determination that Mr. Shelton's failure to request a downward departure from the mandatory life sentence had no bearing on the sentence originally imposed. As the fourth circuit has explained:

"[T]he trial judge who imposed the sentence initially is uniquely situated to determine whether any errors by counsel at sentencing would have resulted in a substantially less harsh sentence." State v. Boyd , 14-408, p. 7 (La.App. 4 Cir. 2/11/15), 164 So.3d 259, 264.

In ruling, the trial court clearly articulated that, notwithstanding the mitigating evidence presented by Defendant's mother, letters written on Defendant's behalf, and the non-violent nature of the two predicate offenses, it would not have found Defendant to be a candidate for a sentence other than the mandatory life sentence. The trial court instead relied heavily on the facts of the armed robbery, Defendant's criminal record, and Defendant's lack of remorse. The trial court explained that, unlike the cases in which a mandatory life sentence was found to be unconstitutional, the crime being enhanced in Defendant's case is punishable by up to ninety-nine years in prison.

Additionally, and as pointed out by the trial court, in order to prove Defendant was prejudiced by his counsel's failure to request a downward departure, he was required to demonstrate that he would have been one of the exceptional defendants for which a downward departure is appropriate. In State v. Johnson , 97-1906 (La. 3/4/98), 709 So.2d 672, 676, the supreme court recognized the legislature's "constitutional authority to determine the appropriate penalty for a crime," but the judiciary's respective "authority, in the rare case, to declare a sentence within these statutory limits excessive under the facts of a particular case." Given the "delicate balance" between those respective roles, the supreme court considered "under what rare circumstances a sentencing court should exercise its authority to declare excessive a minimum sentence mandated by the Habitual Offender Law." Id. It explained that the "sentencing judge must always start with the presumption that a mandatory minimum sentence under the Habitual Offender Law is constitutional[,]" and that a departure from that minimum sentence is only appropriate following a finding "that there is clear and convincing evidence in the particular case before it which would rebut this presumption of constitutionality." Id.

In considering the evidence rebutting the presumption of constitutionality, the supreme court instructed that the "trial judge may not rely solely upon the non-violent nature of the instant crime or of past crimes[.]" Johnson , 709 So.2d at 676. Rather, while that classification "should not be discounted, this factor has already been taken into account under the Habitual Offender Law for third and fourth offenders." Id. (citing La.R.S. 15:529.1 ). In light of that legislative pronouncement, and "while a defendant's record of non-violent offenses may play a role in a sentencing judge's determination that a minimum sentence is too long, it cannot be the only reason, or even the major reason, for declaring such a sentence excessive." Id. Rather, to rebut the presumption of constitutional validity, a defendant must clearly and convincingly demonstrate that "[he] 'is exceptional, which in this context 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.' " Id. (quoting State v. Young , 94-1636 (La.App. 4 Cir. 10/26/95), 663 So.2d 525, 531 (Plotkin, J., concurring), writ denied , 95-3010 (La. 3/22/96), 669 So.2d 1223 ).

Moreover, the supreme court instructed:

[T]he trial judge must also keep in mind the goals of the Habitual Offender Law. Clearly, the major reasons the Legislature passed the Habitual Offender Law were to deter and punish recidivism. Under this statute the defendant with multiple felony convictions is treated as a recidivist who is to be punished for the instant crime in light of his continuing disregard for the laws of our state. He is subjected to a longer sentence because he continues to break the law. Given the Legislature's constitutional authority to enact statutes such as the Habitual Offender Law, it is not the role of the sentencing court to question the wisdom of the Legislature in requiring enhanced punishments for multiple offenders. Instead, the sentencing court is only allowed to determine whether the particular defendant before it has proven that the mandatory minimum sentence is so excessive in his case that it violates our constitution.
....
We emphasize to sentencing judges that departures downward from the minimum sentence under the Habitual Offender Law should occur only in rare situations.

Id. at 677.

Given that standard, we find no merit in Defendant's contention that the trial court's denial of his ineffective assistance of counsel claim was erroneous. Although Defendant suggests that the trial court should have considered the specific facts surrounding the two predicate offenses, there is no indication that further information regarding those offenses would have altered the trial court's opinion. Instead, the trial court's emphasis of the facts of the armed robbery, coupled with its awareness that the two predicates were non-violent, supports its articulated determination.

This assignment lacks merit.

Ineffective Assistance of Counsel - Evidentiary Hearing on Remand

Turning to his second assignment, Defendant argues that Mr. Bauman, the attorney appointed to represent him at the evidentiary hearing, was ineffective and "unprepared to fully represent [his] interest." In particular, Defendant contends Mr. Bauman "had not prepared with his client to argue for mitigation." Thus, Defendant requests this court to remand for an additional hearing to determine effectiveness of counsel and, in turn, for presentation of mitigation evidence in order to prove his original counsel, Mr. Shelton, was ineffective.

In support of his argument, Defendant notes that Mr. Bauman admitted that the evidentiary hearing held in the present case was his first ineffective assistance of counsel evidentiary hearing. Defendant additionally points out that Mr. Bauman did not talk with or subpoena Mr. Shelton. And third, appellate counsel notes that when the State referred to the facts of the armed robbery for which Defendant was convicted and Defendant attempted to challenge those facts, Mr. Bauman stated:

MR. BAUMAN:
Well, stop right there. I wasn't here for any of that, Your Honor, so I can't argue that. If we're going to have a hearing as to, you know, he's going to be resentenced and present that evidence at that time to give me a little time to either, one, find out if the PDO is going to appoint somebody or, two, for my checking out the transcripts and the priors and, you know, brushing up on what exactly happened, you know. I'm put at a little bit of a disadvantage here if we're going to have that hearing right now.

Defendant asserts that such statements were admissions by Mr. Bauman that he was ill-prepared to show prejudice by way of putting on mitigation evidence.

As stated above, however, "[i]n order to prove an attorney was ineffective, a defendant must show his attorney was deficient, and he was prejudiced by the deficiency." Farry , 207 So.3d at 439 (citing Strickland , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 ). Defendant emphasizes that Mr. Bauman failed to present evidence to support a finding by the trial court that Defendant was prejudiced by Mr. Shelton's failure to request a downward departure from the mandatory life sentence. The record reveals, however, that Mr. Bauman did present evidence at the motion to reconsider hearing by questioning Defendant's mother. She explained that Defendant worked with his brother and father in a paint and body shop, that Defendant had not been involved in drugs, that she was shocked when she learned of the simple burglaries, and that she would keep an eye on Defendant if he was released from jail. Thus, evidence of mitigating factors was, in fact, introduced by Mr. Bauman and considered by the trial court.

Additionally, and related to his first assignment of error as well, Defendant further alleges Mr. Bauman failed to present evidence of facts surrounding the predicate offenses of simple burglary. Defendant fails to establish that those facts would be mitigating, however. He simply argues, instead, that the record fails to show "whether the burglaries were of a house versus a vehicle, whether anything was taken versus attempted to be taken, or whether there were occupants versus a vacancy." In order to prove his counsel acted deficiently, Strickland requires a defendant to identify the acts or omissions he alleges were not the result of reasonable judgment. Strickland , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Given that standard, and following review of the record, we conclude that Defendant fails to do so.

This assignment lacks merit.

Louisiana Revised Statutes 15:529.1

Finally, Defendant asserts his life sentence should be vacated and his case remanded for resentencing under the November 1, 2017 amendment to the habitual offender sentencing provision. By application of that amended version, Defendant would no longer be subject to a mandatory life sentence. Instead, Defendant's sentence for armed robbery, third habitual offender, would be subject to a minimum term of imprisonment of forty-nine and one-half years and a maximum term of imprisonment of 198 years. See La.R.S. 15:529.1(A)(3)(a) (current version).

Chiefly, Defendant contends that he should be resentenced under the November 1, 2017 amendment since his case is still on direct appeal and is not yet final. On this point, both this court, in State v. Purvis , 17-1013 (La.App. 3 Cir. 4/18/18), 244 So.3d 496, and the supreme court, in State v. Williams , 17-1753 (La. 6/15/18), 245 So.3d 1042 (per curiam), have previously found the wording used by the legislature as to the effective date of the November 2017 amendment required its application to any conviction not yet final on November 1, 2017.

Subsequent to the rendition of Purvis and Williams , however, the legislature amended the habitual offender statute dictating that the habitual offender penalty provision in effect on the date of the offense being enhanced is the penalty provision that must be applied. See La.R.S. 15:529.1(K)(1) (providing in pertinent part that: "notwithstanding any provision of law to the contrary, the court shall apply the provisions of this Section that were in effect on the date that the defendant's instant offense was committed."). By that legislation, effective August 1, 2018, the habitual offender statute now specifically codifies the long-standing jurisprudential rule that the penalty in effect at the time of the commission of the offense applies. See, e.g., State v. Parker , 03-924 (La. 4/14/04), 871 So.2d 317. The armed robbery being enhanced in the present case occurred in May 2009. Corresponding application of the May 2009 version of the habitual offender penalty provision directs the mandatory life sentence imposed in this case. See La.R.S. 15:529.1(A)(2)(b)(ii) (2009 version).

Defendant contends, however, that the August 2018 enactment of La.R.S. 15:529.1(K)(1) is inapplicable to his case as it "sought to change the statute's language on retroactivity that is found in the more lenient sentencing laws created in the 2017 amendment." Reference to jurisprudence rendered after the August 1, 2018 effective date reflects that courts have inquired as to whether the 2018 amendment was a substantive amendment to the 2017 legislation and thus applied prospectively only.

In State v. Washington , 02-2196, pp. 2-3 (La. 9/13/02), 830 So.2d 288, 290, the supreme court stated the following regarding the prospective or retroactive application of legislation:

Laws which are procedural or interpretive may apply retroactively, but "[i]n the absence of contrary legislative expression, substantive laws apply prospectively only." La. Civ.Code art. 6 ; Aucoin v. State Through Dep't of Transp. and Dev., 97-1938, 97-1967, p. 9 (La. 4/24/98), 712 So.2d 62, 67.
A two-fold inquiry is required by La. Civ.Code art. 6 in deciding whether a law should be applied retroactively. First, it must be ascertained whether the enactment expresses legislative intent regarding retrospective or prospective application. If such intent is expressed, the inquiry ends. Sudwischer v. Estate of Hoffpauir, 97-0785, p. 8 (La. 12/12/97), 705 So.2d 724, 728 (citations omitted). The legislature expressed no such intent with regard to article 676. Therefore, as no such intent was expressed, the second step is to classify the enactment as either substantive, procedural or interpretive. Id.
Substantive laws are laws that impose new duties, obligations or responsibilities upon parties, or laws that establish new rules, rights and duties or change existing ones. Interpretive laws are those which clarify the meaning of a statute and are deemed to relate back to the time that the law was originally enacted. Procedural laws prescribe a method for enforcing a substantive right and relate to the form of the proceeding or the operation of laws.
Jacobs v. City of Bunkie, 98-2510, p. 8 (La. 5/18/99), 737 So.2d 14, 20 (citing Sudwischer, 97-0[7]85, p. 9, 705 So.2d at 728 ). Laws that are procedural or interpretive may be applied retroactively. Aucoin, 97-1938, 97-1967, p. 9, 712 So.2d at 67.

As for the 2018 amendment under consideration, the legislature did not express an intent regarding its retroactive or prospective application. The State contends the 2018 amendment did not increase the applicable punishment and should be applied retroactively since it is an interpretive statute passed by the legislature to cure the ambiguity of the effective-date language used in the 2017 amendment. The State cites to a transcript of legislative proceedings. Reference to that legislative history, which is included in the brief alone and is outside of the record, is unnecessary.

Jurisprudential guidance instead reflects a finding that the 2018 amendment is subject to retroactive application. For example, in State v. Edden , 52,288, p. 9 (La.App. 2 Cir. 11/14/18), 259 So.3d 1196, 1202, the second circuit stated: "Because the 2018 amendments are procedural and this decision is being decided after August 1, 2018, we find that Edden was sentenced under the proper habitual offender law in effect in 2014, the date of the underlying offense."

Likewise, the second and first circuits have determined that the 2018 amendment abrogated the earlier cases of Purvis and Williams as relied upon by Defendant. See State v. Cagler , 18-427 (La.App. 1 Cir. 11/7/18), 2018 WL 5876878 (unpublished opinion). See also State v. Floyd , 52,183 (La.App. 2 Cir. 8/15/18), 254 So.3d 38. Consequently, those circuits have applied the habitual offender penalty provision in effect when the offense was committed. The second circuit explained its position on this issue as follows:

This court is sensitive to the reality that Floyd will not benefit from the leniency of the 2017 amendment because his offense occurred before it took effect. However, the legislature specified that the amendment would have "prospective application only," and a subsequent amendment further clarified that courts "shall apply the provisions of this Section that were in effect on the date that the defendant's instant offense was committed." In other words, the legislature clearly stated its intent to diminish the penalties for certain habitual offenders, but equally clearly stated its intent not to reopen or relitigate cases that arose before the effective date. The jurisprudence also holds that the version of the habitual offender law in effect at the time of the crime is the version that applies; amended provisions apply only to offenses committed after their effective dates. State v. Parker , [03-924 (La. 4/14/04), 871 So.2d 317 ]; State v. Casaday , [51,947 (La.App. 2 Cir. 4/11/18), 247 So.3d 1057 ]; State v. Barker, [17-469 (La.App. 4 Cir. 5/30/18), --- So.3d ----]. We therefore cannot adopt Floyd's premise of using the 2017 amendment as a convenient metric to find his sentence excessive.

Floyd , 254 So.3d at 43 (footnote omitted). By footnote, the second circuit specifically declined to follow Purvis , "consider[ing] it effectively abrogated by the 2018 enactment of R.S. 15:529.1K(1)." Id. at 43 n.2.

Significantly, a panel of this court has recently noted that developing line of jurisprudence in this circuit's first consideration of whether La.R.S. 15:529.1(K) applies retroactively. See State v. Bias , 18-665 (La.App. 3 Cir. 2/6/19), 265 So.3d 35. Referencing both Edden and Cagler , the panel explained that: "We agree with the first and second circuits and find La.R.S. 15:529.1(K) applies retroactively to this case." Id. at 40. The panel thus applied the sentencing range in effect at the time of the commission of the offense under consideration.

Following independent review, as well as consideration of the above jurisprudence, we too conclude that the 2018 amendment is interpretive in nature given its enactment after Williams and its specific directive for application of the law in effect at the time of the commission of the instant offense. Accordingly, Defendant's sentence stems from the penalty in effect when he committed the armed robbery - life imprisonment.

Constitutional Arguments

We next turn to Defendant's related contention that two constitutional considerations undermine the retroactive application of the 2018 legislation. First, Defendant argues the application of the 2018 legislation to his case would be a violation of his right against ex post facto application of laws. He suggests that if the 2018 amendment applies to his case, he will "be stripped of a right - that existed starting November 1, 2017 - to argue for a sentence other than his natural life in jail."

However, in State v. Holloway , 15-1233, p. 7 (La. 10/19/16), 217 So.3d 343, 348, the supreme court explained the following regarding the definition of an ex post facto law:

A law which "does not punish as a crime an act previously committed, which was innocent when done; nor make more burdensome the punishment for a crime, after its commission; nor deprive one charged with crime of any defense available according to law at the time when the act was committed" survives an ex post facto analysis. Collins v. Youngblood , 497 U.S. 37, 52, 110 S.Ct. 2715, 2724, 111 L.Ed.2d 30 (1990). This court similarly observed that the linchpin inquiry in determining whether a statute violates the state Ex Post Facto Clause is "whether the change alters the definition of criminal conduct or increases the penalty." State ex rel. Olivieri v. State , 00-0172, p. 15 (La. 2/21/01), 779 So.2d 735, 744.

See also State v. Robinson , 423 So.2d 1053, 1063 (La.1982) (explaining that the prohibition on ex post facto laws, "extends to the enforcement of any enactment which changes the punishment to inflict a greater penalty for the crime than that authorized for the crime at the time of its commission."); State v. Vail , 17-354 (La.App. 3 Cir. 12/28/17), 236 So.3d 644, writ denied , 18-202 (La. 11/20/18), 256 So.3d 998, cert. denied , --- U.S. ----, 139 S.Ct. 1232, 203 L.Ed.2d 246 (2019).

Accordingly, application of the 2018 amendment to this case is not an ex post facto application as it does not increase the penalty to which Defendant could be punished at the time he committed his offense. In contrast, Defendant received the mandatory life sentence that was required at the time he committed his offense in May 2009.

Neither do we find merit in Defendant's contention that his due process rights were violated by procedural delays that caused his appeal to be lodged after the 2018 amendment became effective. These delays, Defendant claims, prevented him from being able to seek resentencing under the 2017 amendment prior to the August 1, 2018 effective date of the 2018 amendment. Defendant thus argues that his constitutional right to due process mandates that he be resentenced under the 2017 amendment.

Defendant's argument, however, assumes that he had a right to the application of the 2017 ameliorative changes. Our above determination regarding the retroactive application of the 2018 amendment negates Defendant's assumption. Further, it is well-settled that a criminal defendant does not have a constitutional or statutory right to an illegal sentence. See State v. Williams , 00-1725 (La. 11/28/01), 800 So.2d 790. Thus, even if Defendant's case proceeded without any of the delays of which he complains, and Defendant was resentenced under the 2017 amendment as formerly required by Purvis and Williams , the sentence would have been illegally lenient in light of the retroactive application of the 2018 amendment.

Accordingly, we find that this argument lacks merit. By decree below, we maintain Defendant's sentence.

CONCLUSION

For the foregoing reasons, Defendant's sentence is affirmed.

AFFIRMED.

      This court set forth the following facts regarding the armed robbery in the initial opinion:
      In May 2009, William Farry entered James Fodrie's home armed with a baseball bat. He took $ 15.00, a gun, and a coin bag containing mostly German coins and currency. The Defendant was convicted of armed robbery, a violation of La.R.S. 14:64. The conviction was affirmed in the companion case, [Farry , 206 So.3d 1222 ].
      Farry , 207 So.3d at 438.

      See 2018 WL 5876878. The first circuit explained:
      La. R.S. 15:529.1 was amended in 2017, in pertinent part, to no longer allow consideration of "any other crimes punishable by imprisonment for twelve years or more." See La. Acts, No. 257, § 1 & 2017 La Acts, No. 282, § 1. In enacting the amendments, the Legislature provided: "This Act shall become effective November 1, 2017, and shall have prospective application only to offenders whose convictions became final on or after November 1, 2017." 2017 La. Acts, No. 257, § 2 & 2017 La. Acts, No. 282, § 2. We are aware of State v. Williams, 2017-1753 (La. 6/15/18), 245 So.3d 1042 (per curiam) and State v. Purvis, 2017-1013 (La. App. 3rd Cir. 4/18/18), 244 So.3d 496, which gave limited retroactive application to the 2017 amendments. However, we consider those decisions effectively abrogated by the 2018 enactment of La. R.S. 15:529.1(K)(1). See State v. Floyd, 52,183, p. 7 (La. App. 2nd Cir. 8/15/18), 254 So.3d 38.
      Cagler , 18-427, p. 14 n. 6.

      See 265 So.3d 35.

      See 2019 WL 235046, --- U.S. ----, 139 S.Ct. 1232, 203 L.Ed.2d 246.


author: PICKETT, JUDGE.

text:
    STATE of Louisiana v. Michael Ja'Rel TUTSON
    18-738
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2019
    Mary Constance Hanes, Louisiana Appellate Project, P. O. Box 4015, New Orleans, LA 70718-4015, (504) 866-6652 COUNSEL FOR DEFENDANT-APPELLANT: Michael Ja'rel Tutson
    John Foster DeRosier, Fourteenth Judicial District Court District Attorney, Elizabeth Brooks Hollins, Ross M. Murray, Cynthia Killingsworth, Assistant District Attorneys, P. O. Box 3206, Lake Charles, LA 70602-3206, (337) 437-3400, COUNSEL FOR APPELLEE: State of Louisiana
    Court composed of Elizabeth A. Pickett, D. Kent Savoie, and Jonathan W. Perry, Judges.
   PICKETT, JUDGE.

FACTS

On August 29, 2014, Damion Jackson was outside a home peering into a window. That window was in the room where the defendant's mother, the mother's female friend, and the defendant's minor sister slept. When the defendant, Michael Ja'Rel Tutson, saw Jackson looking into the house, the defendant ran after him. Jackson stopped, turned toward the defendant, and took a step toward him. The defendant then shot Jackson. When the weapon jammed, the defendant cleared the jam and shot Jackson again. Jackson was shot three times, once in the neck, back, and left leg.

The defendant told police he had never seen Jackson before and Jackson had nothing in his hands. Police testified Jackson worked at a fast food restaurant regularly visited by the defendant's sister and mother, and Jackson frequently walked the defendant's sister to the bus stop. However, the defendant's sister denied knowing Jackson.

The defendant was charged by indictment filed on November 21, 2013, with second degree murder, a violation of La.R.S. 14:30.1. Trial by jury commenced on November 27, 2017, and the jury returned a verdict of guilty of the responsive verdict of manslaughter, a violation of La.R.S. 14:31, on December 4, 2017. The defendant was sentenced on February 23, 2018, to serve forty years at hard labor. A Motion for Appeal and Designation of Record was filed on March 6, 2018, and was granted. The defendant is now before this court asserting two assignments of error: 1) counsel was ineffective for failing to file a motion to reconsider his sentence; and 2) his sentence is excessive.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find there are no errors patent.

ASSIGNMENTS OF ERROR

1) Trial counsel rendered ineffective assistance at sentencing in failing to file a motion to reconsider after the trial court imposed the maximum forty-year sentence on Michael Tutson for manslaughter.
2) Mr. Tutson's forty-year sentence for manslaughter is excessive under the circumstances.

DISCUSSION

In his first assignment of error, the defendant contends trial counsel rendered ineffective assistance in failing to file a motion to reconsider after the trial court imposed the maximum forty-year sentence for manslaughter. In his second assignment of error, the defendant contends his forty-year sentence is excessive. We will address these assignments of error collectively.

Louisiana Code of Criminal Procedure Article 881.1 provides:

A. (1) In felony cases, within thirty days following the imposition of sentence or within such longer period as the trial court may set at sentence, the state or the defendant may make or file a motion to reconsider sentence.
....
B. The motion shall be oral at the time of sentence or shall be in writing thereafter and shall set forth the specific grounds on which the motion is based.
....
E. Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

Neither defense counsel nor the defendant objected to the sentence imposed at the sentencing hearing or filed a motion to reconsider the defendant's sentence. Thus, under some jurisprudence, the defendant is precluded from appealing his sentence. See State v. Bamburg , 00-675 (La.App. 3 Cir. 11/2/00), 772 So.2d 356 ; State v. William s, 01-998 (La.App. 3 Cir. 2/6/02), 815 So.2d 908, writ denied , 02-578 (La. 1/31/03), 836 So.2d 59 ; State v. Duplantis , 13-424 (La.App. 3 Cir. 11/27/13), 127 So.3d 143, writ denied , 14-283 (La. 9/19/14), 148 So.3d 949. This court has, however, previously reviewed claims of excessiveness where no motion to reconsider sentence was filed or objection made, performing a bare excessiveness review. State v. Jackson , 14-9 (La.App. 3 Cir. 6/18/14), 146 So.3d 631, writ denied , 14-1544 (La. 2/27/15), 159 So.3d 1066 ; State v. Soriano , 15-1006 (La.App. 3 Cir. 6/1/16), 192 So.3d 899, writ denied , 16-1523 (La. 6/5/17), 219 So.3d 1111 ; State v. Price , 16-899 (La.App. 3 Cir. 4/5/17), 216 So.3d 304 ; State v. Debarge , 17-670 (La.App. 3 Cir. 2/7/18), 238 So.3d 491. Therefore, we will consider the defendant's arguments on appeal.

In this case, the defendant argues defense counsel was ineffective for failing to file a motion to reconsider sentence. He also notes that such a claim must be resolved on direct review, as sentencing errors are not cognizable in post-conviction proceedings. See State ex rel. Melinie v. State , 93-1380 (La. 1/12/96), 665 So.2d 1172.

In State v. Doucet , 09-1065, pp. 6-7 (La.App. 3 Cir. 5/5/10), 36 So.3d 1105, 1110-11, writ denied , 10-1195 (La. 12/17/10), 51 So.3d 19, this court discussed ineffective assistance of counsel for failure to file a motion to reconsider sentence as follows:

[W]hen the record contains sufficient evidence to address the ineffective assistance of counsel issue, this court examines "whether there was a reasonable probability that the trial court would have reduced" Defendant's sentence if Defendant's trial counsel made or filed a motion to reconsider sentence. [State v. Blake , 03-1465 (La.App. 3 Cir. 5/5/04), 872 So.2d 602] at 608 (citing State v. Prudhomme , 02-511 (La.App. 3 Cir. 10/30/02), 829 So.2d 1166, writ denied , 02-3230 (La. 10/10/03), 855 So.2d 324 ).
When the defense counsel fails to file a motion to reconsider sentence, Defendant may have a claim of ineffective assistance of counsel when Defendant "can show a reasonable probability, but for defense counsel's error, his sentence would have been different." Prudhomme , 829 So.2d at 1177 (citing State v. Texada , 98-1647 (La.App. 3 Cir. 5/5/99), 734 So.2d 854 ). Moreover,
[a] claim of ineffective assistance of counsel is properly raised in an application for post-conviction relief. This allows the trial judge an opportunity to order a full evidentiary hearing on the matter. State v. Burkhalter , 428 So.2d 449 (La.1983). However, where the record contains evidence sufficient to decide the issue and the issue is raised by an assignment of error on appeal, it may be considered. State v. James , 95-962 (La.App. 3 Cir. 2/14/96), 670 So.2d 461.
State v. Francis , 99-208, pp. 10-11 (La.App. 3 Cir. 10/6/99), 748 So.2d 484, 491, writ denied , 00-544 (La.11/13/00), 773 So.2d 158.
To prove an allegation of ineffectiveness, the defendant must specifically show prejudice. Blake , 872 So.2d 602 (citing State v. Reed , 00-1537 (La.App. 3 Cir. 3/6/02), 809 So.2d 1261, writ denied , 02-1313 (La. 4/25/03), 842 So.2d 391 ). "Whether or not a defendant received ineffective assistance of counsel is a two-part inquiry. First, we must determine whether the trial court would have reduced the Defendant's sentences upon the filing of a 'Motion to Reconsider Sentence.' Second, we must determine whether the sentences were excessive." Id. at 609.

The first question to be answered is whether the trial court would have reduced the defendant's sentence had a motion to reconsider sentence been filed. The defendant was convicted of manslaughter, which is punishable by imprisonment at hard labor for not more than forty years. La.R.S. 14:31. The defendant received the maximum sentence.

At sentencing, the court heard victim impact statements from the mother of Jackson's child, who was one year old at the time of Jackson's death. The court also heard from Jackson's sister, Keyanna Hobson. Defense counsel spoke on behalf of the defendant, as the defendant was "almost painfully shy." Defense counsel advocated against imposition of the maximum sentence and indicated the defendant had no prior felony convictions. The state sought imposition of the maximum sentence, arguing the victim fell to the ground after the defendant shot him. The victim then asked the defendant for help, and the defendant cleared a jam from the gun and shot the victim again.

The judge subsequently noted he had reviewed the presentence investigation report (PSI) and letters submitted on behalf of the victim and the defendant. The judge then stated the following:

[A]t a minimum, if you want -- just, best case scenario, characterizing his -- his actions on this night, using his irrational decision making, you know, to feel like -- assuming that he felt like he really was trying to protect his family, to chase somebody down that was not a threat to him, instead of calling the police to -- or even after -- or even if he felt like he just had to shoot him one time to neutralize the threat, which I -- which wasn't necessary into the facts of this case.
But, even still -- And then -- But to feel like he needed to continue shooting and shooting, when there was no threat -- There was never any other allegation that there was any kind of threat, other than, I know that -- you know, the Defense argued that -- that this was a -- you know, tried to -- tried to liken this -- you know, tried to say the victim, here, was a peeping Tom, and -- and that, you know, tried to liken this to the shoot-the-burglar law, you know, where somebody breaks into your house, you're justified in shooting them and, you know -- and tried to equate, somehow, being a peeping Tom was somehow equivalent to that.
And I -- And I think that's, actually, probably, why the jury ended up coming back with a manslaughter, because I think you got to the -- I mean, I think, you know, you made a compelling case and appealed to their emotions, and assuming all those facts were even accurate, as far as, you know, the peeping in the window, and all those things.
But -- But that's not the law. The law doesn't say if somebody's looking in your window you get to go chase them down and execute them, which is what happened here. And so, I mean -- I -- So, I think, rather than the family asking me, asking the Court to, you know, take another life, when one's already been, you know -- In other words, the one that takes the life doesn't have the right to -- to say that somebody else ought to just get over it and -- and, you know, let this other man get on with his life, the -- or let the -- so that he can get on with his life. It doesn't work that way.
I think that, you know -- Because, I mean, if Mr. Tutson has demonstrated that -- that he can't use better judgment than that in -- in deciding how to handle a situation that he found himself in, other than violence and murdering somebody, then -- then, you know, I think the family, you know, would like to not only protect other people from other would-be killers, but other people from Michael Tutson. That's what I read into what they -- what they've asked me to do.
So -- Anyway -- Because they can bring -- There's nothing -- nothing anybody here can do to bring the victim in this case back. So the best we can do is -- is try to have justice here and -- and protect society and, you know, all -- all those things are important.
And, you know -- And, I know, there was discussion about forgiveness and punishment. You know, that is such a tough, tough thing, you know -- Of course, my job is not to forgive anybody; that's not my job. My job is to -- is to punish people for their crimes to the extent there's a crime that -- that involves, you know, potential for rehabilitation. I have to -- You know, I have to consider all those things.
....
So, in any event, I -- I do want to say that, you know, this -- this -- you know this is a -- it's such a senseless -- you know, every murder is -- is senseless, you know. There are some true, true really close calls sometimes as to whether something is self-defense or not, people get in this -- in the heat of battle, and somebody crosses that line, and -- and kills somebody.
But the -- But those cases are the exception rather than the rule, you know, when -- when somebody gets charged for killing somebody when there's a true, you know, struggle, whatever the case may be. But this is not that case. This is not even close to being that case. This was a one-sided deal and -- that you pursued, and that you made the decision, multiple times, to pull that trigger. Anyway.
....
The -- You know, 14:31 is the manslaughter statute. It says (reading) "Whoever commits manslaughter shall be imprisoned at hard labor for not more than 40 years." And I also want to say that, you know, I have considered the aggravating and mitigating factors set forth in Code of Criminal Procedure Article 894.1 and -- in -- in the sentence.
I don't really -- It's really -- I just -- I just wanted to say for the record, I really don't find that any of these mitigating factors are applicable. I know there are a couple of them could be argued by Defense, but I just don't really find them to be applicable.
And -- And there are multiple of the aggravating factors that are -- that I find apply. I don't think I need to name -- I just -- or list them out, but I just -- I will just say that I have reviewed the sentencing guidelines under 894.1 and the aggravating and mitigating factors in -- in consideration of this sentence.
Anyway, I will just say at this time, I think the only appropriate sentence in this case I -- I mean, frankly, had this been a judge trial, I think second-degree murder would have been an appropriate verdict, based on the fact that -- you know, that Mr. Tutson, he chased down the victim and he proceeded to shoot him multiple times and -- clearly intending to -- to cause the death of the -- of the victim, Damion.
So, anyway, in -- in light of -- anyway -- and because of that, I think that -- that you -- the mercy that really -- that any mercy that you would have deserved in this case was shown by the jury in coming back with a manslaughter verdict instead of a second-degree murder verdict.
So, in -- Anyway, all those things being said, I'm -- I hereby sentence you to serve 40 years at hard labor with the Louisiana Department of Public Safety and Corrections.

The trial judge considered the circumstances of this case, the PSI, and the sentencing guidelines set forth in La.Code Crim.P. art. 894.1 before imposing the sentence. Based on the trial judge's statement that he felt the defendant was guilty of second degree murder, it is unlikely the trial judge would have reduced the defendant's sentence had defense counsel filed a motion to reconsider the sentence.

The second question to be answered is whether the defendant's sentence is excessive.

Sentences within the statutory sentencing range can be reviewed for constitutional excessiveness. State v. Sepulvado , 367 So.2d 762 (La.1979). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Barling , 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43 (citing State v. Etienne , 99-192 (La.App. 3 Cir. 10/13/99), 746 So.2d 124, writ denied , 00-165 (La. 6/30/00), 765 So.2d 1067 ).
....
"[Louisiana] Const. art I, § 20, guarantees that, '[n]o law shall subject any person to cruel or unusual punishment.' " Barling , 779 So.2d at 1042-43. "To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering." Id. at 1042 (citing State v. Campbell , 404 So.2d 1205 (La.1981) ).
The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. Barling , 779 So.2d at 1042-43 (citing State v. Cook , 95-2784 (La. 5/31/96), 674 So.2d 957, cert denied , 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996) ). In reviewing the defendant's sentence, the appellate court should consider the nature of the crime, the nature and background of the offender, and the sentences imposed for similar crimes. State v. Lisotta , 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57 (citing State v. Telsee , 425 So.2d 1251 (La.1983) ), writ denied , 99-433 (La. 6/25/99), 745 So.2d 1183. "[T]he appellate court must be mindful that the trial court is in the best position to consider the aggravating and mitigating circumstances of each case. ..." State v. Williams , 02-707 (La.App. 3 Cir. 3/5/03), 839 So.2d 1095, 1100 (citing Cook , 674 So.2d 957 ).

State v. Rexrode , 17-457, pp. 3-4 (La.App. 3 Cir. 11/15/17), 232 So.3d 1251, 1253-54. "Generally, maximum sentences are reserved for the most serious violation of the offense and the worst type of offender." State v. Herbert , 12-228, p. 5 (La.App. 3 Cir. 6/13/12), 94 So.3d 916, 920, writ denied , 12-1641 (La. 2/8/13), 108 So.3d 78. "[I]n the context of a maximum-sentence analysis for manslaughter, where the evidence would otherwise support a murder conviction, the defendant can be considered 'the worst type of offender.' " State v. Ayala , 17-1041, p. 7 (La.App. 3 Cir. 4/18/18), 243 So.3d 681, 687-88.

The defendant mentions he has no prior felony convictions and he was twenty years old at the time of the offense. He asserts he has the potential for rehabilitation. The defendant argues the trial court arbitrarily limited the mitigating factors and failed to consider his lack of felony convictions as such. Additionally, the defendant argues the trial judge should have also treated his youth as a mitigating factor. The defendant contends society recognizes that persons under the age of twenty-one are not mature adults. He states, "It has long been known that such individuals do not always make responsible decisions." As examples of his statement, he claims that almost all car rental companies refuse to rent vehicles to persons under the age of twenty-one, and most impose heavy surcharges on persons under the age of twenty-five because they are not as responsible as older persons. The defendant further states the following in his appellate brief about the adolescent brain:

In a neuroscience publication from 2013 discussing the "adolescent brain," the following was stated:
... It is well established that the brain undergoes a "rewriting" process that is not complete until approximately 25 years of age. [footnote omitted] This discovery has enhanced our basic understanding regarding adolescent brain maturation and it has provided support for behaviors experienced in late adolescence and early adulthood. Several investigators consider the age span of 10-24 years as adolescence, which can be further divided into substages specific to physical, cognitive, and social-emotional development. [footnote omitted].
Arian, Miriam et al., Neuropsychiatric Disease and Treatment, Maturation of the Adolescent Brain , published online on 4/3/2013, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3621648/. In the same article it is stated that "[t]he fact that brain development is not complete until near the age of 25 years refers specifically to the development of the prefrontal cortex," which happens to be responsible for many things, including "the moderation of correct behavior." In discussing "behavioral problems and puberty," the article states that, because adolescents rely heavily on the emotional regions of their brains, it can be challenging for them to make decisions that adults consider logical and appropriate. Id.
The very fact that the brain does not reach maturity until the age of twenty-five leads to the conclusion that younger persons have a very real capacity to change and moderate their behavior as they age. In other words, they have great potential for rehabilitation.

The defendant argues that because the trial judge failed to consider his youth as a mitigating factor, he had difficulty understanding his reaction to seeing a stranger peeping into the window of the room where his mother and teenaged sister slept. The defendant further argues the trial court did not appreciate that younger persons have more difficulty controlling their emotions. The defendant contends his conduct should be viewed in a different light than the same conduct committed by older, more mature persons.

Manslaughter is a violent crime, and the defendant acted intentionally when he shot Jackson in the back. The defendant was a twenty-year-old first offender at the time the offense was committed. However, no argument regarding the adolescent brain was made in the trial court. Moreover, the Supreme Court, in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2016), decided to treat those who commit murder when they are under the age of eighteen at the time of the offense differently, and that decision is inapplicable to the defendant.

In Soriano , 192 So.3d 899, defendant and the victim were leaving an activity at a local restaurant when defendant stabbed the victim. The defendant then chased the victim through the parking lot, and, after the victim fell, stabbed the victim again. The state alleged that the defendant attempted to flee the scene but was apprehended by off-duty police officers. On appeal, the defendant contended he acted in self-defense, the victim had attacked him on previous occasions, and, on the night of the offense, the victim made threats toward him. The defendant was charged with second degree murder, but the jury returned a responsive verdict of guilty of manslaughter. The twenty-five-year-old first felony offender was sentenced to serve forty years at hard labor. This court affirmed that sentence.

In State v. Bowens , 14-416 (La.App. 4 Cir. 12/10/14), 156 So.3d 770, writ denied , 15-66 (La. 10/23/15), 179 So.3d 598, the victim got into a verbal dispute with the defendant and his brother. That dispute escalated into a physical altercation. Ultimately, a "gun battle" erupted between the victim and the defendant. Id. at 773. When both men ran out of ammunition, the victim attempted to run away, but the defendant reloaded his gun and shot the victim in the back of the leg. The victim attempted to get away, but the defendant shot him again. As the victim was lying on the ground pleading for his life, the defendant shot him several more times in the head and torso. The defendant was charged with second degree murder but found guilty of manslaughter and sentenced to serve forty years at hard labor. The trial court noted the victim was protecting himself when he got his gun, as the defendant and his brother were attacking the victim and that attack was not waning. The fourth circuit affirmed the sentence, remarking the defendant shot at the victim seventeen times and continued to shoot the victim while the victim was on the ground, he showed no remorse for his actions, and he continued to argue that he acted in self-defense.

In State v. White , 48,788 (La.App. 2 Cir. 2/26/14), 136 So.3d 280, writ denied , 14-603 (La. 10/24/14), 151 So.3d 599, the nineteen-year-old first felony offender was charged with second degree murder. He and his two brothers fought with the victim. The victim got the best of the three brothers and withdrew to the carport of a neighbor's house. The three brothers then grabbed a golf club and a plastic chair and re-initiated the fight. The victim again overpowered the brothers. The brothers left, and the victim returned to the carport. Moments later, the defendant returned with a handgun and fired at least two rounds that struck the victim. The defendant was convicted of manslaughter and sentenced to serve forty years. The second circuit affirmed the defendant's sentence, stating:

An examination of the facts in this case demonstrates that this was a second degree murder case in which defendant benefitted greatly from the lesser verdict of manslaughter. Three brothers fought a lone man and used as weapons a golf club and a chair. When the fight ended, Powell who was wearing only basketball shorts walked away, but defendant got a pistol and shot Powell. Intentionally pointing and firing a gun at close range supports a specific intent by defendant to kill the unarmed and defenseless victim.

Based on the facts of the offense and the above-cited cases, we find the trial court did not abuse its discretion when imposing the maximum sentence. Thus, that sentence is not excessive.

Even if defense counsel had filed a motion to reconsider sentence, the defendant's sentence would have been deemed appropriate under the circumstances. Therefore, defense counsel's failure to file the motion did not prejudice the defendant. Consequently, the defendant's sentence is affirmed.

CONCLUSION

The defendant's conviction and sentence are affirmed.

AFFIRMED.

      The same indictment charged Marcus Dewayne Handy, Lee James Gibbs, and Johnnie Michelle Celestine as accessories after the fact, a violation of La.R.S. 14:25 and La.R.S. 14:30.1.