text:
    RED RIVER INTERNATIONAL, INC., and U.S. Transcon, Inc., Plaintiffs-Appellees v. Robert L. PIERCE, Jr., Defendant-Appellant.
    No. 44,869-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 28, 2009.

      Crawford & Joyce, by Brian E. Crawford, Monroe, for Appellants, Robert Pierce and Pierce Logistics, LLC.
    Lunn, Irion, Salley, Carlisle, & Gardner, by Ronald E. Raney, Shreveport, for Ap-pellees.
    Before BROWN, CARAWAY, and PEATROSS, JJ.
   BROWN, Chief Judge.

| Appellant, Robert L. Pierce, Jr., appeals both the trial court’s granting of a declaratory judgment in favor of appellees, Red River International, Inc., and U.S. Transcon, Inc., and the trial court’s rejection of his reconventional demand. For the following reasons, we affirm.

Facts and Procedural Background

Red River International, Inc., and U.S. Transcon, Inc. (hereinafter “Red River”), provide trucking and transportation services. Robert L. Pierce, Jr. (hereinafter “Pierce”), who has been employed in the transportation industry for many years, served as the International Director of Transportation for Johns Manville. In late 2004, Pierce negotiated a “dedicated agreement” on behalf of Johns Manville with Red River for the transportation of building materials from Etowah, Tennessee to Ennis, Texas. Representing Red River in these negotiations was Mike Bishop, a Red River employee and Pierce’s longtime friend. On December 10, 2004, a final written agreement was signed by Pierce, on behalf of Johns Manville, and Clay Crenshaw, a co-owner of Red River. The executed agreement’s start date was January 17, 2005, and it was to be in effect for two years.

At issue in this case, and at great variance between the parties, is what transpired after the December 10, 2004, execution of the “dedicated agreement.”

According to Pierce’s testimony, he resigned from Johns Manville on December 31, 2004, and shortly thereafter Bishop called him and informed him that the deal with Johns Manville “fell through,” and that Bishop |2wanted him to “rekindle” it by representing Red River. In agreeing to represent Red River in its negotiations with Johns Manville, Pierce testified that Bishop informed him that if he successfully revived the deal he would be compensated with a brokerage fee of $10,000 a month for the 24-month life of the contract. Pierce further stated that he met with Johns Manville at the beginning of January 2005, and after a period of about a week he was able to get the deal revived.

Bishop testified next, and according to his testimony sometime in late December 2004 or early January 2005, Pierce informed him that “there was no contract.” Bishop asserted that as a result of this, and with the approval of Ken Shaw, Red River’s other co-owner, he asked Pierce to represent Red River in negotiations with Johns Manville. Bishop further stated that he had no further communications with Johns Manville regarding the deal, and that at the end of the second week of January 2005 Pierce informed him that Red River had gotten the contract.

The last to testify was Shaw. According to Shaw the original December 10, 2004, contract and a March 28, 2005, revision of the original contract, which specifically stated that it was a revision of the December 10, 2004, dedicated agreement, were the only contracts pertaining to the Eto-wah deal executed between Red River and Johns Manville. Shaw further testified that he brought Pierce on as a consultant in the latter part of 2005, paid him $10,000 a month, and due to Pierce’s inability to bring in any new business he terminated his services nine months later.

laThis action ensued as a result of Red River’s cessation of payments to Pierce. On December 22, 2006, Red River filed a declaratory judgment action, requesting a declaration that an oral agreement between it and Pierce was for general consulting services and subject to termination at any time. In response, Pierce filed a reconventional demand seeking a declaratory judgment from the trial court decreeing that the parties entered into an oral brokerage agreement, the terms of which provided that he would be paid the full sum of $240,000 upon the procurement of the transportation agreement with Johns Manville.

In addition to the testimony of the three witnesses, the following documents were submitted into evidence: 1) the December 10, 2004, executed dedicated agreement; 2) an unexecuted January 20, 2005, addendum to the December 10, 2004, dedicated agreement; 3) the March 28, 2005, revised dedicated agreement and intermodal service agreement; 4) a driver roster with listed hire dates as early as January 10, 2005; 5) Johns Manville’s first quarter dedicated report which shows that trucks began their pickups on January 21, 2005; 6) e-mails between the parties and witnesses; and 7) documents pertaining to Pierce Logistics, L.L.C. After hearing the testimony of the three witnesses and reviewing the submitted documentation, the trial court determined that the documentary evidence supported Red River’s position, and, as such, it believed that Pierce and Red |4River had entered into a consulting fee arrangement which was subject to termination at the will of Red River.

Discussion

The existence or nonexistence of a contract is a question of fact, and the finder of fact’s determination may not be set aside unless it is clearly wrong. Crowe v. Homesplus Manufactured Housing, Inc., 38,382 (La.App. 2d Cir.06/21/04), 877 So.2d 156. Furthermore, when there is a conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed if the factfinder’s conclusions were reasonable under the evidence. Smith v. Dishman & Bennett Speciality Co., 35,682 (La.App. 2d Cir.01/23/02), 805 So.2d 1220. A factfin-der’s decision that is based on its discretion to credit the testimony of one of two or more witnesses can virtually never be wrong. Id.

To enforce an oral agreement pertaining to something priced or valued in excess of $500, the contract must be proved by at least one witness and other corroborating circumstances. La. C.C. art. 1846. A party to the action may be a credible witness, and the other corroborating circumstances need only be general in nature. Smith v. Dishman & Bennett Speciality Co., supra.

Pierce argues that the evidence presented at trial overwhelmingly established proof of his oral brokerage agreement, and conversely, that Red River failed to offer any evidence to support the existence of a consulting agreement. Specifically, Pierce asserts that in addition to his own testimony, the fully corroborative testimony of Red River’s former |semployee, Mike Bishop, established the existence of the brokerage agreement. The trial court’s finding otherwise, Pierce posits, was manifestly erroneous.

In response to Pierce’s claim that it failed to put forth any evidence to support the existence of a consulting agreement, Red River contends that since it was not attempting to prove the existence of a contract with any remaining value, it was not necessary for it to put forth any “corroborating circumstances.” Nevertheless, Red River argues that the documentation it submitted did in fact provide corroborating circumstances from which the trial court correctly found that the parties had entered into a consulting arrangement. Red River also asserts that since La. C.C. art. 1846 requires “at least one witness,” and “other corroborating circumstances” in addition to witness testimony, Bishop’s testimony did not constitute a “circumstance.” Thus, Red River argues, since Pierce was unable to provide any extrinsic evidence to support the existence of a brokerage agreement, the trial court’s finding of fact should be upheld.

As previously noted, if the trial court’s conclusion in this matter was reasonable in light of the evidence, we may not reverse its judgment. In its reasons for judgment, the trial court listed the following reasons to support its findings: the March 28, 2005, revised dedicated agreement stated that it was a revision of the December 10, 2004, dedicated agreement; the words “broker” or “brokerage fees” never appear in any of the submitted documents; a lack of sufficient evidence to support Bishop’s authority to enter into a brokerage agreement with Pierce on behalf of Red River; the | namount Pierce claimed was due by him was more than the profit margin Red River stood to make; trucks began operating in mid-January 2005, which lent weight to Red River’s argument that the December 10, 2004, dedicated agreement was still in effect; the submitted e-mails, one of which stated “consulting services,” supported Red River’s position; and, due to Bishop’s close friendship and continued working relationship with Pierce, it was apparent that he was not an “independent” witness.

Considering the trial court’s aforementioned reasons for judgment, along with a thorough reading of the record, we cannot say that the trial court was clearly wrong in its determinations. Although there were corroborating circumstances to support both parties’ contentions, the trial court was clearly within its discretion to credit the testimony of Shaw over that of Pierce and Bishop. Therefore, the trial court’s holding that Pierce and Red River entered into a consulting fee arrangement which could be terminated at will is affirmed.

Conclusion

For the reasons expressed herein, the judgment of the trial court is affirmed. Costs are assessed to appellant, Robert L. Pierce, Jr.

      . Bishop resigned from Red River effective December 23, 2005.

      . In Red River’s original petition seeking a declaratory judgment only Pierce was named as a defendant. In Pierce's reconventional demand, however, Pierce Logistics, L.L.C., was named as a plaintiff-in-reconvention.


source: Caselaw Access Project

author: PEATROSS, J.

license: Public Domain

text:
    DELTA RETAIL 45, L.L.C., d/b/a The Lion’s Den, Plaintiff-Appellant v. Larry G. COX, et al., Defendants-Appellees.
    No. 44,873-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 28, 2009.

      H. Cameron Murray, Berkman, Gordon, Murray & DeVan by J. Michael Murray, Steven D. Shafron, for Appellant.
    Usry, Weeks & Matthews by John F. Weeks, Timothy R. Richardson, New Orleans, for Appellees, Larry Cox and Sammie Byrd.
    Steven J. Farber, Baton Rouge, for LA DPSC, Office of State Police, Todd Cummings & Michael D. Edmonson.
    Before STEWART, PEATROSS & LOLLEY, JJ.
   PEATROSS, J.

11 Delta Retail 45, L.L.C., d/b/a The Lion’s Den (“Delta Retail”), is a retail store that sells adult magazines and movies and other adult items. The Madison Parish Sheriffs Office conducted a search and seizure of the store in September 2003, seizing more than 9,000 items under a general search warrant. On October 16, 2008, Delta Retail filed suit under 42 U.S.C. §§ 1983 and 1988 in U.S. district court in the Western District of Louisiana seeking a declaration that the search and seizure violated its rights under the First, Fourth and Fourteenth Amendments and further seeking a TRO and preliminary injunction ordering the return of the seized property. On October 21, 2008, several individuals (ostensibly Delta Retail employees) were charged with obscenity under La. R.S. 14:106 in the Sixth Judicial District Court in Madison Parish. Delta Retail was not charged and is not a defendant in any related criminal proceedings.

Named as Defendants in the federal suit were Sheriff Larry Cox, former Chief Deputy Sammie Byrd, Criminal Investigative Detective Todd Cummings and Col. Michael D. Edmonson, Superintendent of the Louisiana State Police (“Defendants”). Defendants then moved to dismiss the federal lawsuit on the grounds of abstention under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). The federal court dismissed the suit and Delta Retail then filed this suit in Madison Parish district court. Defendants answered by way of summary judgment, which was granted, dismissing Delta Retail’s petition with prejudice. Delta Retail now appeals. For the reasons stated herein, we affirm.

| ¿BACKGROUND

As stated, Delta Retail initially filed suit in U.S. district court under 42 U.S.C. §§ 1983 and 1988 and the court dismissed the suit based on the abstention doctrine of Younger v. Harris, supra. Subsequently, on January 14, 2009, Delta Retail filed a Petition for Declaratory Judgment, Preliminary Injunction, Permanent Injunction and Attorneys’ Fees (the instant suit) in Madison Parish district court. Delta Retail also filed a Motion for Preliminary Injunction in the district court that same date. Following Defendants’ opposition to the same, Delta Retail issued a subpoena duces tecum to Sheriff Cox, ordering that he produce the seized items at the scheduled hearing. Defendants then filed a Motion to Quash Subpoena Duces Tecum and, subsequently, a Motion for Summary Judgment. The Motion for Preliminary Injunction and the Motion to Quash Subpoena Duces Tecum were heard on February 3, 2009. The tidal court held the matters open pending resolution of Defendants’ Motion for Summary Judgment.

On February 13, 2009, after taking evidence and hearing arguments on Defendants’ Motion for Summary Judgment, the trial court granted summary judgment in favor of Defendants, dismissing the petition of Delta Retail with prejudice and further finding, therefore, that the subpoena issue was moot. In granting summary judgment, the trial court did not reach the merits of the petition; rather, the court agreed with Defendants that it could not grant the relief sought because the seized property was evidence in a criminal case. In oral reasons for judgment, the trial judge stated:

|aOn the matter of the motion for summary judgment, this court finds that there are no genuine issues of material fact as recited by Counsel for the Defendants. That it (sic), neither is there any question of law. This court is in agreement that a civil proceeding cannot be used to obtain the materials that are to be used in a criminal prosecution. The Plaintiffs (sic) remedy is going to be in the criminal proceeding, and at the very least, the case that is brought before the Court today is premature, and it’s improper to rule on the constitutionality of the search and seizure under (sic) after the criminal prosecution is completed. I’m going to grant the motion for summary judgment. That makes the subpoena for the materials moot.

This appeal ensued.

DISCUSSION

Delta Retail assigns the following errors on appeal (verbatim):

I. The district court erred in granting summary judgment in favor of the defendants on the ground that Delta Retail’s remedy was in a criminal proceeding to which it was not a party.
II. The Supremacy Clause of the United States Constitution prohibits state law from barring a federal cause of action. The district court erred in granting summary judgment in favor of the defendants on state law grounds because Delta Retail’s claim was brought pursuant to 42 U.S.C. § 1983, a federal statute.

Delta Retail argues that the effect of the ruling below was to deny redress to the victim of an unconstitutional search and seizure when the victim has not been charged with a crime, but where the property was seized as evidence in a criminal prosecution against another party (in this case Delta Retail’s employees). It asserts that the ruling of the trial court that the remedy of Delta Retail lies in the criminal case at the end of the prosecution is erroneous. In support, Delta Retail argues that courts are to be “open” and provide adequate remedies and emphasizes that remedies are to be | ¿administered without delay. It then suggests that, as a third party, it has no authority to intervene in the criminal proceedings.

Delta Retail next argues that the Supremacy Clause of the U.S. Constitution mandates that state law yield to a federal claim made under section 1983. Finally, Delta Retail provides an exhaustive argument on the merits as to the constitutionality of the search and seizure.

In response, Defendants maintain that it is improper to bring a civil proceeding to have seized property returned in the same district court where the criminal proceedings are pending. La. R.S. 15:41, Disposition of property seized in connection with criminal proceedings, provides:

A. If there is a specific statute concerning the disposition of the seized property, the property shall be disposed of in accordance with the provisions thereof.
B. If there is no such specific statute, the following governs the disposition of property seized in connection with a criminal proceeding, which is not to be used as evidence or is no longer needed as evidence:
(1) The seized property shall be returned to the owner, unless a statute declares the property to be contraband, in which event the court shall order the property destroyed if the court determines that its destruction is in the public interest; otherwise, Paragraph (2) of this Section shall apply.
(2) If the seized property is contraband, and the court determines that it should not be destroyed, or if the owner of noncontraband property does not claim it within six months after its seizure, the court shall order:
(a) A sale of the property at a nonjudicial public sale or auction, if the court concludes that such a sale will probably result in a bid greater than the costs of the sale. The proceeds of the sale shall be administered by the court and used exclusively for the maintenance, renovation, preservation, or improvement of the court building, facilities, or records system.
15(b) If the court concludes that the cost of a public sale would probably exceed the highest bid, the court may order the property transferred to a public or a nonprofit institution or destroyed or may make such other court ordered disposition as it deems appropriate.
C. Where the release of seized property is sought by a person claiming to be the owner, it shall be i’eleased only upon motion contradictorily with the clerk of court. In all other cases the court may either render an ex parte order for the disposition of the property as herein provided on motion of any interested person, or on its own motion, or the court may require a motion contradictorily with the apparent owner or the person in possession of the property at the time of the seizure.
D. Notwithstanding any provision of law to the contrary, an official criminal-istics laboratory may destroy any controlled dangerous substance, controlled dangerous substance paraphernalia, or both, in its possession without an order of court after a period of five years from the date of seizure. Any criminalistics laboratory intending to destroy a controlled dangerous substance, controlled dangerous substance paraphernalia, or both, pursuant to this Subsection shall give the seizing agency and the district attorney thirty days notice prior to such destruction. In the case that the seizing agency or the district attorney object to such destruction, no destruction shall occur.

Defendants argue that, under paragraph B, the property can only be authorized to be released on a finding that the property is not to be used, or is no longer needed, as evidence in a criminal case. We agree.

The supreme court has held that a motion under La. R.S. 15:41 filed by the owner of property is the proper avenue for a party seeking return of seized property in a criminal proceeding. See In re: A Matter Under Investigation, 07-1853 (La.7/1/09), 15 So.3d 972. In that case, the supreme court held that such a motion is exclusively a criminal proceeding and that an owner may seek return of seized property in the criminal proceeding even where the owner is not a defendant.

|fiThe supreme court explained:

The AG asserts that a motion for return of property under La. R.S. 15:41 is a civil action over which the Criminal District Court for the Parish of Orleans had no jurisdiction. Tenet-Memorial, in turn, argues that only the Criminal District Court had jurisdiction over its motion for return of property, noting that it would be untenable for a party to petition the Orleans Civil District Court for relief from the orders of the Criminal District Court.
La. R.S. 15:41, entitled “Disposition of property seized in connection with criminal proceedings,” is found in Title 15 of the Revised Statutes governing “Criminal Procedure” within Code Title IV, entitled “Search Warrants”. La. R.S. 15:41(B) provides for the return of property seized in connection with a criminal proceeding so long as that property (1) “is not to be used as evidence or is no longer needed as evidence” and (2) no statute declares the property to be contraband. La. R.S. 15:41.
The rules of statutory construction provide that when a law is clear unambiguous and its application will not lead to absurd consequences, it must be applied as written. La. C.C. art. 9. Furthermore, when the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole. La. C.C. art. 12. We find nothing within the plain language of La. R.S. 15:41 that requires Tenet-Memorial’s motion to be filed in a civil court. To the contrary, the fact that this article is found within the Revised Statutes governing criminal procedure strongly suggests that it applies to courts exercising criminal jurisdiction. In addition, logical considerations suggest such a finding. A civil couti is an unlikely venue for determining the status of a criminal matter pending in another court or whether the evidence to be used therein is still needed. Such action by the Orleans Civil District Court would put it at odds with the exclusive jurisdiction of the Orleans Criminal District Court. It would be bizarre indeed to require the clerk of the Orleans Criminal District Court to appear before the Orleans Civil District Court regarding orders issued by the Orleans Criminal District Court. (Emphasis added.)

In re Matter Under Investigation, supra. The supreme court went on to overrule three appellate decisions holding to the contrary, noting that there was no established law to support a civil action to seek seized property in a criminal proceeding. In further support of its conclusion, the court stated:

17Finally, we note that La. R.S. 15:41 must be read in light of La. C. Cr. P. art. 167, which provides as follows:
When property is seized pursuant to a search warrant, it shall be retained under the direction of the judge. If seized property is not to be used as evidence or is no longer needed as evidence, it shall be disposed of according to law, under the direction of the judge.
La. C. Cr. P. art. 167. The plain language of this article vests the judge presiding over • a proceeding with the jurisdiction to order the return of property seized under a search warrant in connection with that proceeding. Because property seized pursuant to a search warrant is almost exclusively done so in connection with criminal proceedinys and this provision is found in the Code of Criminal Procedure, we interpret this statute as allowing a criminal court judge to exercise the jurisdiction to order the return of property seized pursuant to a search warrant.
Given our mandate to read laws on the same subject matter in reference to each other under La. C.C. art. 13, and for the reasons set forth above, we find that a motion for return of property filed pursuant to La. R.S. 15:41 is part and parcel of a criminal proceeding, and is thus included within the jurisdiction of the criminal court presiding over or having presided over the criminal proceeding. (Emphasis added.)

Id.

Applying this reasoning to the case sub judice, we find that the trial court was correct in its determination that a civil proceeding was not the proper avenue for Delta Retail’s attempt to gain the return of seized property being utilized as evidence in a criminal proceeding. The appropriate remedy in such case is a motion under La. R.S. 15:41 in the criminal proceeding. Delta Retail may file such pleading seeking return of its property even though it is not a party to the criminal proceeding. In re Matter Under Investigation, supra. The trial court properly granted Defendants’ Motion for Summary Judgment.

|sIn light of our conclusion herein, the arguments of Delta Retail concerning the merits of the constitutionality of the search and seizure will not be considered.

CONCLUSION

For the foregoing reasons, the summary judgment of the trial court in favor of Defendants, Sheriff Larry Cox, former Chief Deputy Sammie Byrd, Criminal Investigative Detective Todd Cummings and Col. Michael D. Edmonson, and dismissing the petition of Delta Retail 45, L.L.C., is affirmed at the cost of Delta Retail 45, L.L.C.

AFFIRMED.

      . Defendants Det. Cummings and Col. Ed-monson are represented by separate counsel, but have adopted their co-defendants' arguments in the court below and on appeal.


author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee v. Walter Leroy ROBERTS, Appellant.
    No. 44,724-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 28, 2009.

      James E. Beal, Louisiana Appellate Project, Jonesboro, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Charles A. Smith, Robert L. Pittard, Dale N. Montgomery, II, Assistant District Attorneys, for Appellee.
    Before BROWN, GASKINS, and DREW, JJ.
   BROWN, Chief Judge.

11 Pursuant to a plea agreement defendant, Walter Leroy Roberts, pled guilty to one count of second degree kidnapping. Several other charges arising out of the same incident were dismissed. The trial court sentenced defendant to 15 years at hard labor, 2 years of which were to be served without the benefit of probation, parole, or suspension of sentence. Defendant filed a motion to reconsider the sentence, which the trial court denied. This appeal followed. We affirm.

Facts

After work on October 14, 2008, defendant went to Sheila Shriver’s residence, where she and Lacey Jones were staying at the time. Defendant, who was the women’s boss and Ms. Jones’s former boyfriend, was intoxicated so he spent the night. The next morning the two women went to Wal-Mart, leaving a note for defendant who was still asleep. When the women returned to the residence, defendant walked out to his truck and grabbed a shotgun. Defendant then forced the women inside the house, which he had destroyed while they were gone, claiming that some money ($3,000) had been stolen from his wallet. Eventually the women were able to escape, and defendant was subsequently arrested.

Based on allegations that he used a shotgun to hold the two women against their will, defendant was charged with two counts of second degree kidnapping and two counts of aggravated assault with a firearm. Defendant was also charged with aggravated criminal property damage and aggravated 12battery as a result of a claim that he struck one of the victims on the back of the head and neck with the shotgun.

Pursuant to a motion filed by defendant, a sanity commission was appointed by the court to examine him. The two psychiatrists appointed by the court found defendant to be competent; however, they noted that defendant told them that he had used ice, cocaine, ecstasy, and alcohol within 24 hours of the event leading to his arrest. The trial court found defendant to be competent.

Defendant also sought the recusal of the district attorney, Schuyler Marvin, based on a familial relationship between Marvin’s secretary, her husband, who was the head of court security, and one of the victims. The motion to recuse was denied. This court denied writs, as did the Louisiana Supreme Court.

On August 12, 2008, defendant pled guilty to one count of second degree kidnapping, and all other charges were dismissed. The trial court reviewed the pre-sentence investigation and took into consideration prior misdemeanor convictions for disturbing the peace and simple battery, the fact that defendant was 31 years old, the statements of the victims, and defendant’s mental illness. The court also noted that violence and a dangerous weapon were used in the commission of the crime.

Defendant was sentenced to 15 years at hard labor, 2 years of which were to be served without the benefit of probation, parole, or suspension of sentence. A motion to reconsider the sentence was denied, and defendant filed this appeal asserting that his sentence is excessive.

| ¡¡Discussion

A sentence violates La. Const, art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Smith, 01-2574 (La.01/14/03), 839 So.2d 1.

When a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Shirley, 41,608 (La.App. 2d Cir.12/13/06), 945 So.2d 267, writ denied, 07-1394 (La.04/04/08), 978 So.2d 321.

In this case all other felony charges were dropped. This was a crime of violence, and defendant received less than half of the possible penalty imposed for the crime to which he pled guilty. Accordingly, we find that the trial court did not abuse its discretion in sentencing defendant.

Conclusion

For the foregoing reasons, the defendant’s sentence is affirmed.

      . Six separate bills of information were filed. Defendant pled guilty to one and the others were dismissed.


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. Jackie Denise WEBSTER, Appellant.
    No. 44,816-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 28, 2009.

      Edward K. Bauman, Lake Charles, for Appellant.
    Jerry L. Jones, District Attorney, Ellen R. Eade, George D. Ross, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, GASKINS and LOLLEY, JJ.
   WILLIAMS, J.

| iThe defendant, Jackie Webster, was charged with felony theft of property having a value of $500 or more, a violation of LSA-R.S. 14:67(B). Pursuant to a plea agreement, defendant pled guilty as charged and the state agreed not to seek enhancement of defendant’s sentence as an habitual offender. The trial court ordered a presentence investigation (PSI) report. Subsequently, the defendant was sentenced to serve 8 years’ imprisonment at hard labor. The defendant’s timely motion to reconsider sentence was denied. She now appeals. For the following reasons, we affirm.

DISCUSSION

The record shows that in May 2008, Hodge Thomas reported to the Ouachita Parish Sheriffs Office that a suitcase containing $4,100 was taken from his home. He suspected it was taken by the defendant, a woman with whom he had a longtime relationship. When she was questioned about the complaint, the defendant admitted to investigators that she took the suitcase, but disputed the amount of cash it contained. She was arrested and charged with felony theft. The defendant pled guilty as charged and was sentenced to serve 8 years’ imprisonment at hard labor. The district court recommended a substance abuse treatment program during defendant’s incarceration and ordered restitution to the victim of $4,100 as a special condition of parole.

The defendant contends the district court erred in imposing an excessive sentence. Defendant argues that the sentence is grossly out of proportion to the severity of the crime, considering that she took responsibility for her actions by pleading guilty and is in need of drug [ gtreatment which could best be obtained in a non-custodial environment.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in LSA-C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 438 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App. 2d Cir.2/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of Article 894.1, not rigid or mechanical compliance with its provisions. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App. 2d Cir.8/13/08), 989 So.2d 267. The important elements which should be considered are defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of the offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App. 2d Cir.8/13/08), 989 So.2d 259. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App. 2d Cir.12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351.

Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993). A |ssentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166. The penalty for felony theft of property valued at $500 or more is imprisonment with or without hard labor for not more than 10 years or a fíne of up to $3,000, or both. LSA-R.S. 14:67(33).

Prior to imposing sentence, the district court reviewed a PSI report and recited the defendant’s criminal history, which included two prior felony convictions for cocaine possession. The court noted that defendant was a third felony offender who had repeatedly failed to satisfactorily perform while on probation or parole. In mitigation, the district court observed that defendant had no history of juvenile delinquency and the court was aware of defendant’s age and her admitted drug addiction.

The court noted that defendant had failed to avail herself of previous opportunities for rehabilitation during periods of supervised release and had reduced her sentencing exposure through the plea agreement. The 8-year sentence imposed was tailored to fit this defendant and is neither grossly disproportionate to the severity of the offense committed nor an abuse of the court’s discretion. Thus, we cannot say the sentence is constitutionally excessive. The assignment of error lacks merit. We have examined the record for error patent and found none.

CONCLUSION

The defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: GASKINS, J.

text:
    STATE of Louisiana, Appellee v. Anthony Glen WILSON, Appellant.
    Nos. 44,586-KA, 44,737-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 28, 2009.

      Annette Roach, Louisiana Appellate Project, for Appellant.
    Jerry L. Jones, District Attorney, Stephen T. Sylvester, David O’Brian Harkins, Jr., Assistant District Attorneys, for Ap-pellee.
    Before BROWN, GASKINS and DREW, JJ.
   GASKINS, J.

| ,The defendant, Anthony Glen Wilson, was convicted of simple burglary. He was originally sentenced to the maximum sentence of 12 years at hard labor. He was subsequently adjudicated a fourth felony offender and, as such, sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. The defendant appeals. We affirm the defendant’s conviction for simple burglary, his adjudication as a fourth felony offender, and his sentence of life imprisonment.

FACTS

On the morning of September 9, 2004, the owner of a Ford Explorer discovered the defendant sleeping in his vehicle. The rear passenger window had been broken out of the locked vehicle. The owner called the police. Two deputies responded; they woke the defendant and asked him to get out of the vehicle. Found in the vehicle was a black bag which did not belong to the owner of the Explorer; it contained bolt cutters and a black ski mask. According to the vehicle owner, the glove box had been opened and gone through. A bottle of cologne and some change were missing from the vehicle. The cologne was found either on the defendant or in his bag, while the missing coins were found in the bag.

The defendant was arrested and charged with simple burglary. Following a jury trial in July 2007, he was convicted as charged. He was sentenced to 12 years at hard labor, the maximum sentence for the offense. A motion to reconsider sentence was denied. Subsequently, the state charged the defendant as a multiple offender. After a hearing, he was adjudicated a fourth felony offender and sentenced to life imprisonment at |.¿hard labor without benefit of parole, probation or suspension of sentence. A motion to reconsider sentence was denied.

The defendant appeals, asserting nine assignments of error.

SUFFICIENCY OF EVIDENCE

Law

The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. On appeal, a reviewing court must view the evidence in the light most favorable to the state and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. Jackson v. Virginia, 443 U.S. 807, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Brown, 43,916 (La.App. 2d Cir.2/25/09), 4 So.3d 301.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App. 2d Cir.9/25/98), 719 So.2d 610, writ denied, 1998-2723 (La.2/5/99), 737 So.2d 747.

| ;iThe statutory rale with regard to the use of circumstantial evidence to sustain a conviction is found in La. R.S. 15:438. This section provides that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.”

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App. 2d Cir.2/25/09), 3 So.3d 685; State v. Hill, 42,025 (La.App. 2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529. Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, 43,786 (La.App. 2d Cir.1/14/09), 2 So.3d 582; State v. Allen, 36,180 (La.App. 2d Cir.9/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

Simple burglary is the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, or any cemetery, with the intent to commit a felony or any theft therein. La. R.S. 14:62(A). In addition to the defendant’s presence by means of an unauthorized entry, the prosecution must prove beyond a reasonable doubt that the intruder had the specific intent to commit a theft or felony therein in order to support a |4conviction of simple burglary. State v. Bell, 42,394 (La.App. 2d Cir.12/5/07), 972 So.2d 1207.

Although intent to commit a burglary is a question of fact, it need not be proved as a fact. It may be inferred from the circumstances. State v. Robinson, 29,-488 (La.App. 2d Cir.6/18/97), 697 So.2d 607, writ denied, 1997-1845 (La.12/12/97), 704 So.2d 1200. A taking is not required. State v. Wright, 36,635 (La.App. 2d Cir.3/7/03), 840 So.2d 1271. Displacement of the victim’s possessions may be indicative of the specific intent to commit a theft. State v. Bell, supra; State v. Wright, supra.

Voluntary intoxication is a defense to a prosecution for simple burglary only if the circumstances indicate that it has precluded the presence of specific criminal intent. La. R.S. 14:15(2). The defendant has the burden of proving the existence of that condition at the time of the offense. The specific legal question is not when the requisite specific intent was formed, but rather whether, at the time the unauthorized entry occurred, the defendant was so intoxicated as to preclude the existence of any specific intent on his part to commit a theft or felony therein. State v. Davenport, 08-463 (La.App. 5th Cir.11/25/08), 2 So.3d 445; State v. Godbolt, 2006-0609 (La.App. 1st Cir.11/3/06), 950 So.2d 727. When circumstances exist that intoxication could have precluded specific intent, the burden shifts to the state to show beyond a reasonable doubt that specific intent was present. Whether intoxication is sufficient to negate specific intent is a question for the trier of fact. State v. Davenport, supra.

15Discussion

The defendant argues that the evidence presented at trial was insufficient to prove beyond a reasonable doubt that he had the specific intent to commit a theft. He contends that the evidence instead indicates that he entered the vehicle to sleep or that he was so intoxicated when he entered it that he lacked the requisite specific intent and “slept off’ his intoxication.

The state presented the testimony of the vehicle owner, a responding deputy, and an evidence officer for the sheriffs office. The owner stated that he locked the Explorer the night before. When he found the defendant — a complete stranger— asleep in the vehicle the next morning, one of the windows had been broken out. There was a black bag in the Explorer that did not belong to the owner. The bag contained bolt cutters and a ski mask; the deputy testified that these items are tools commonly used in burglaries. According to the owner, the glove box had been opened and rifled. A bottle of cologne and some change that he kept in the console were missing. The cologne was found either in the defendant’s pocket or in his bag. The change was eventually found in the defendant’s bag.

The defendant cites State v. Jacobs, 504 So.2d 817 (La.1987), and State v. Wright, supra, in support of his argument that the evidence does not exclude every reasonable hypothesis of innocence. However, in both of the cited cases, there was no evidence of displacement of items in the houses | ¿into which those defendants made unauthorized entries. Also, in Wright, supra, there was no evidence of forced entry. Here the owner testified that a window in the locked vehicle had been broken out, that the vehicle had been rifled, and that items had been displaced.

As to the defendant’s claim of voluntary intoxication as a defense, the only evidence of intoxication was the defendant’s self-serving statement to the police that he had been drinking. The deputy who arrested the defendant testified at trial that he had had the opportunity to observe persons under the influence of alcohol or drugs. According to the deputy’s testimony, the defendant was coherent, able to answer questions, and appeared to understand his rights when they were read to him. The defendant did not testify at trial or otherwise present evidence of his alleged intoxication. The circumstances do not establish that the defendant was intoxicated at the time of the offense and that any such intoxication precluded the presence of the specific intent required in simple burglary. To the contrary, the defendant’s carrying of burglar tools, breaking the back car window, rifling through the console and glove box, and taking the money and cologne, all indicate that the defendant did have the specific intent to commit a theft.

Viewing the evidence in the light most favorable to the prosecution, we find that a rational trier of fact could have found beyond a reasonable doubt that the defendant made an unauthorized entry into the Explorer with the specific intent to commit a theft.

This assignment of error is without merit.

i7admission of coins

Law

La. C.E. art. 901(A) states that:

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

To admit demonstrative evidence at trial, an object must be identified, either by testimony that the object is related to the case or by the chain of custody from the time of seizure until presentation at trial. For the admission of demonstrative evidence, it suffices if the foundation laid establishes that it is more probable than not that the object is relevant to the case. State v. Collins, 43,645 (La.App. 2d Cir. 10/29/08), 998 So.2d 765, 775; State v. Toney, 26,711 (La.App. 2d Cir.3/1/95), 651 So.2d 387.

It is not necessary that the evidence as to custody eliminate all possibilities that the object has been altered. The state need only establish by a preponderance of the evidence that the object is the one connected with the case. State v. Collins, supra.

Identification can be visual or by chain of custody of the object. The identification need not be absolute, certain or wholly unqualified. Where there is some evidence for identification purposes, the objection to the sufficiency goes to the weight rather than admissibility. State v. Beaner, 42,532 (La.App. 2d Cir. 12/5/07), 974 So.2d 667, 685, writ denied, 2008-0061 (La.5/30/08), 983 So.2d 896; State v. Lawrence, 40,278 (La.App. 2d Cir.3/15/06), 925 So.2d 727, 747.

| (¿Discussion

The defendant argues that the coins found in the black bag should not have been admitted over his objection as they were not properly identified and a sufficient chain of custody was not established. The defendant emphasizes that the police report did not mention the missing change and it was not included in the items logged into evidence.

The state asserts that the testimony of the vehicle owner demonstrates he did inform the officers of the missing change. It maintains that a sufficient chain of custody existed to connect the change to the instant case because the deputy found the bag, sealed it, and checked it into evidence. When the bag was later unsealed and searched, the coins—58 cents in pennies— were discovered.

The owner of the Explorer testified that he reported missing change to the police. However, the deputy did not recall such a report and made no mention of the missing change in his police report. While the vehicle owner could not testify as to the exact amount of change taken, he was definite that the change he kept in the console was gone. Since the black bag was seized, sealed, and not re-opened until the change was discovered, a sufficient chain of custody was established. The state must only show a connection by a preponderance of the evidence. We find that the state has met this burden.

This assignment of error lacks merit.

_[c|JURY CHARGE

Law

According to La. C. Cr. P. art. 802, the court shall charge the jury as to the law applicable to the case; that the jury is the judge of the law and of the facts on the question of guilt or innocence, but that it has the duty to accept and to apply the law as given by the court; and that the jury alone shall determine the weight and credibility of the evidence. Under La. C. Cr. P. art. 807, a requested special jury charge shall be given by the court if it does not require qualification, limitation or explanation, and if it is wholly correct and pertinent. This ai’ticle also provides that the special charge need not be given if it is included in the general charge or in another special charge to be given.

The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment to the U.S. Constitution. State v. Mitchell, 44,008 (La.App. 2d Cir.2/25/09), 4 So.3d 320. In assessing a claim of ineffective assistance of counsel, a two-pronged test is employed. The defendant must show that: (1) his attorney’s performance was deficient, and (2) the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The assessment of an attorney’s performance requires that his conduct be evaluated from counsel’s perspective at the time of the occurrence. To show prejudice, a defendant must demonstrate that, but for counsel’s unprofessional conduct, the result of the proceeding would have been different. Strickland, sv,pra.

|inA reviewing court must give great deference to trial counsel’s judgment, tactical decisions and trial strategy. There is a strong presumption that trial counsel has exercised reasonable professional judgment. State v. Tilmon, 38,003 (La.App. 2d Cir.4/14/04), 870 So.2d 607, writ denied, 2004-2011 (La.12/17/04), 888 So.2d 866.

As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief (PCR) in the trial court than by appeal. This is because PCR creates the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. State v. Ellis, 42,520 (La.App. 2d Cir.9/26/07), 966 So.2d 139, writ denied, 2007-2190 (La.4/4/08), 978 So.2d 325. When the record is sufficient, this issue may be resolved on direct appeal in the interest of judicial economy. State v. Ellis, supra.

Discussion

The defendant asserts that he was prejudiced by the trial court’s failure to instruct the jury that it could accept part of a witness’ testimony and reject other parts. He claims he was also prejudiced by the lack of a charge concerning voluntary intoxication. The defendant claims his counsel’s failure to object to the jury instructions and request a special charge on voluntary intoxication amounted to ineffective assistance of counsel.

The prosecution contends that the credibility charge given by the trial court was a fair statement which provided adequate guidance to the jury. The prosecution also argues that no evidence of intoxication sufficient to negate the defendant’s intent was introduced. As a result, the state argues |nthat jury instructions regarding intoxication would not have been appropriate.

The jury instruction given on credibility was as follows:

If you believe that any witness in the case has willfully and deliberately testified falsely to any material fact, then I charge you that you are justified in disregarding the entire testimony of such a witness, if there be one, as proving nothing and as unworthy of belief. To state this rule another way, you as jurors have the right to accept as true, or reject as untrue, the testimony of any witness.

This record contains sufficient evidence to support a review of the defendant’s complaints at the appellate level. The jury instructions are almost identical to similar instructions ruled to be acceptable. See State v. Prestridge, 399 So.2d 564 (La. 1981); State v. Walters, 582 So.2d 317 (La.App. 4th Cir.1991), writ denied, 584 So.2d 1171 (La.1991). There is no basis for asserting that the instructions were prejudicial.

The defendant did not introduce evidence of his alleged intoxication. There-foi’e, a jury charge on the defense of voluntary intoxication in the instant case would not have been appropriate. See State v. Guillory, 2000-00386 (La.App. 3d Cir.11/2/00), 773 So.2d 794, writ denied, 2000-3334 (La.11/9/01), 801 So.2d 362.

The facts do not support a finding that the defendant’s counsel should have objected to the jury instruction or requested a special charge of intoxication. Therefore, the defendant cannot demonstrate that his counsel was deficient.

This assignment of error lacks merit.

| ^PRESENCE OF DEFENDANT

Law

A criminal defendant charged with a felony has a right to be present “[a]t the calling, examination, challenging, impaneling, and swearing of the jury, and at any subsequent proceedings for the discharge of the jury or of a juror.” La. C. Cr. P. art. 831(A)(3). However, the rights granted by La. C. Cr. P. art. 831 are not absolute. These rights can be waived by voluntarily absenting oneself or by not filing a contemporaneous objection. See State v. Sias, 2003-891 (La.App. 3d Cir.12/10/03), 861 So.2d 829, and State v. Broaden, 1999-2124 (La.2/21/01), 780 So.2d 349, cert. denied, 534 U.S. 884, 122 S.Ct. 192, 151 L.Ed.2d 135 (2001).

In State v. Sias, supra, the defendant was excluded from the judge’s chambers for jury challenging. The defendant alleged that his counsel’s failure to object was ineffective assistance of counsel. Using the Strickland analysis, the court determined that “[ijnasmuch as the defendant has not put forth sufficient evidence to show he was prejudiced by the jury challenging process, he has not met his burden of proof on his claim of ineffective assistance of counsel.”

Discussion

The defendant argues that it is not clear that the defendant was present during critical steps of the trial. The defendant asserts, and the transcript confirms, that the trial judge noted that the defendant was not present when he began questioning potential jurors about exposure to news | ^articles. The defendant argues that his counsel’s failure to object amounted to ineffective assistance of counsel.

Although the minutes state the defendant was present, the transcript shows that the defendant was not in the courtroom when the trial judge first addressed the potential jurors concerning a newspaper article published in the morning newspaper; this is found at page 169 of the transcript. However, the transcript demonstrates that the defendant was present when the trial judge introduced the lawyers and the defendant to the veniremen before the lawyers commenced voir dire questioning; this is found at page 195 of the transcript. In the intervening pages of transcript, the trial judge addressed the prospective jurors on a variety of preliminary matters. In his opening remarks, the judge referenced the article in his general discussion of avoiding media accounts pertaining to the case. He then went on to divide the veniremen into panels and question them as to their basic qualifications to serve as jurors. When the judge asked at various points if anyone had read the article, the response was overwhelmingly negative. At one point, court was recessed and then reconvened later. The transcript does not indicate at what point the defendant entered the courtroom.

Under the circumstances of the instant case, the defendant’s absence was of no consequence. Review of the record reveals no objection was made. Even if not objecting was ineffective assistance by defense counsel, the defendant has not shown that he was prejudiced by counsel’s failure to object to his absence.

This assignment of error has no merit.

| ^PROSECUTORIAL MISCONDUCT/ MOTION TO COMPEL

Law

The habitual offender statute, La. R.S. 15:529.1(D), provides in pertinent part:

If, at any time, either after conviction or sentence, it shall appear that a person convicted of a felony has previously been convicted of a felony under the laws of this state ... or has been convicted under the laws of any other state, or of the United States, or of any foreign government or country, of a crime, which, if committed in this state would be a felony, the district attorney of the parish in which subsequent conviction was had may file an information accusing the person of a previous conviction ....

The powers and duties of the district attorney are set forth in La. C. Cr. P. art. 61, which provides:

Subject to the supervision of the attorney general, as provided in Article 62, the district attorney has entire charge and control of every criminal prosecution instituted or pending in his district, and determines whom, when, and how he shall prosecute.

The district attorney has the discretionary power to charge a defendant under the habitual offender law just as he has the initial unlimited power to prosecute “whom, when, and how” he chooses. The use of the habitual offender laws “provides an ancillary sentencing factor designed to serve important and legitimate societal purposes.” La. C. Cr. P. art. 61; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Brisco, 2004-3039 (La.7/6/06), 933 So.2d 754; State v. Montgomery, 42,432 (La.App. 2d Cir.9/19/07), 966 So.2d 127.

A presumption of vindictive prosecution arises if the habitual offender bill can be explained only by a desire to punish or deter the |1sexercise of legal rights. See State v. Tassin, 2008-752 (La.App. 3d Cir.11/5/08), 998 So.2d 278, writ denied, 2008-2909 (La.9/18/09), 17 So.3d 385. The use of the habitual offender law alone does not create a presumption of prosecutorial vindictiveness. State v. Tassin, supra.

If the prosecutor’s conduct is equally attributable to legitimate reasons, the defendant must prove actual vindictiveness. A mere opportunity for vindictiveness does not suffice. State v. Heard, 36,191 (La.App. 2d Cir.7/17/02), 823 So.2d 454; State v. Montgomery, supra. A defendant has the burden of proving, by a preponderance of the evidence, the affirmative defense of prosecutorial vindictiveness. In that regard, the court will examine the state’s actions in the context of the entire proceedings. State v. Heard, supra.

Discussion

The defendant argues that the state’s choice to charge him as a habitual offender amounted to improper prosecuto-rial vindictiveness. He claims the habitual offender bill of information was filed solely due to the state’s suspicions that the defendant was involved in another unprose-cuted crime many years before this present offense. The defendant argues that the trial court erred in denying his motion to compel answers to a bill of particulars regarding the motives for the filing of the habitual offender bill of information and in failing to grant his motion to quash the habitual offender bill of information due to prosecutorial vindictiveness. The defendant has failed to carry his burden of proof on this issue.

11(iThere is no showing of a presumption of vindictiveness because the decision in this case to file a habitual offender bill of information was not explained only by a desire to punish or deter the exercise of legal rights. Further, the record shows that the choice to charge the defendant as a habitual offender was based upon legitimate reasons. The defendant had prior convictions for attempted distribution of cocaine, attempted simple burglary, simple burglary, unauthorized entry of a place of business, and possession of stolen things. The Habitual Offender Law only provides for four prior felonies. Therefore, the defendant was adjudicated a fourth felony offender.

In addition, the defendant had an extensive criminal record containing many more arrests and convictions not used in adjudicating him a fourth felony offender. The record shows that the defendant was not only a proven habitual felony offender, but had a criminal history spanning 30 years. Due to the defendant’s proven record of recidivism, the state had legitimate reasons to file the habitual offender bill of information in this case.

The defendant has also failed to show actual vindictiveness. He makes the bare allegation that the habitual offender bill of information was filed solely due to his suspected involvement in a prior offense for which he had not been prosecuted. The defendant offered no evidence to prove this allegation. He made the bare allegation that he has been treated differently from similarly situated defendants, but has offered no proof of this claim. Examining the state’s actions in the context of the entire proceedings, particularly in light of the fact that the defendant has a significant history of |17prior felonies, there is no showing of actual prosecutorial vindictiveness in this case. The trial court did not err in denying the motion to quash the bill of information or in failing to compel answers to the bill of particulars in this matter.

This assignment of error lacks merit.

SENTENCE FOR BURGLARY

Law

Regarding sentences under the habitual offender law, La. R.S. 15:529.1(D)(3) provides:

When the judge finds that [the defendant] has been convicted of a prior felony or felonies or adjudicated a delinquent as authorized in Subsection A, or if he acknowledges or confesses in open court, after being duly cautioned as to his rights, that he has been so convicted or adjudicated, the court shall sentence him to the punishment prescribed in this Section, and shall vacate the previous sentence if already imposed, deducting from the new sentence the time actually served under the sentence so vacated. The court shall provide written reasons for its determination. Either party may seek review of an adverse ruling. [Emphasis supplied.]

Under this statute, a trial court is required to vacate the previous sentence if already imposed when the enhanced sentence is thereafter imposed for the substantive offense. State v. George, 39,959 (La.App. 2d Cir.10/26/05), 914 So.2d 588, writ denied, 2006-0707 (La.10/6/06), 938 So.2d 66. Where, as here, it is obvious that the trial court intended to increase the substantive sentence, and correction of the illegal sentence does not involve the exercise of sentencing discretion, the appellate court may amend to correct without remanding for resentencing. La. C. Cr. P. art. 882; State v. George, supra.

11 ^Discussion

The defendant argues that the trial court erred in failing to set aside the originally imposed sentence of 12 years at hard labor for his simple burglary conviction in this matter. He claims that this nullifies the subsequently imposed life sentence following the habitual offender adjudication. The defendant contends that the case should be remanded to the trial court for resentencing. In the alternative, the defendant maintains that this court should set aside the original 12-year sentence.

In this case, it is clear that the trial court intended to sentence the defendant to the mandatory life sentence as a fourth felony habitual offender. Correction of the illegal sentence does not involve the exercise of sentencing discretion. Accordingly, we vacate the defendant’s original 12-year sentence.

EXCESSIVE SENTENCE

Law

La. R.S. 15:529.1(D)(2)(c) states:

Following a contradictory hearing, the court shall find that the defendant is: A fourth offender, upon proof of three or more prior felony convictions or adjudications of delinquency as authorized in Subsection A, or any combination thereof.

La. R.S. 15:529.1(A)(l)(c)(ii) states in pertinent part:

If the fourth felony and two of the prior felonies are ... a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or of any other crime punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be | ^imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

La. Const, art. 1, § 20 provides in pertinent part:

No law shall subject any person to ... cruel, excessive, or unusual punishment.

A sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, supra. A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Bonanno, 384 So.2d 355 (La.1980); State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992).

Louisiana’s judiciary maintains the distinct responsibility of reviewing sentences imposed in criminal cases for constitutional excessiveness. State v. Dorthey, supra.

The defendant argues that the two-pronged test for review of excessive sentences should apply. However, compliance with La. C. Cr. P. art. 894.1 is not mandated where the sentence is statutorily required. State v. Wilson, 37,555 (La.App. 2d Cir.11/6/03), 859 So.2d 957, writ denied, 2003-3232 (La.6/4/04), 876 So.2d 73.

The Legislature enacted the Habitual Offender Law pursuant to its sole authority under La. Const, art. 3, § 1 to define conduct as criminal and to provide penalties for such conduct. State v. Wade, 36,-295 (La.App. 2d Cir.10/23/02), 832 So.2d 977. See also State v. Heard, supra. The Habitual Offender Law has consistently been held to be constitutional and therefore, the minimum sentences the statute imposes upon multiple offenders are presumed constitutional, and should be accorded great deference by the judiciary. State v. Wade, supra; State v. Johnson, 1997-1906 (La.3/4/98), 709 So.2d 672.

The courts may declare a mandatory sentence excessive if the defendant shows by clear and convincing evidence that the facts rebut the presumption of constitutionality. State v. Wade, supra. This power should only be exercised in rare cases and only when the court is firmly convinced that the minimum sentence is excessive. State v. Ponsell, 33,543 (La.App. 2d Cir.8/23/00), 766 So.2d 678, writ denied, 2000-2726 (La.10/12/01), 799 So.2d 490; State v. Johnson, supra.

To rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must clearly and convincingly show 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. State v. Lindsey, 1999-3302 (La.10/17/00), 770 So.2d 339, cert. denied, 532 U.S. 1010, 121 S.Ct. 1739, 149 L.Ed.2d 663 (2001).

Whenever a defendant is faced with a mandatory life sentence as a multiple offender, heightened scrutiny is triggered when determining if the defendant falls within those “rare” circumstances where a downward 121 departure is warranted. State v. Wilson, supra; State v. Burns, 1997-1553 (La.App. 4th Cir.11/10/98), 723 So.2d 1013, writ denied 1998-3054 (La.04/01/99), 741 So.2d 1282.

In making this determination, while a defendant’s record of nonviolent 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. State v. Lindsey, supra.

The trial judge must keep in mind the goals of the statute, which are to deter and punish recidivism. The sentencing court’s role is not to question the wisdom of the legislature in requiring enhanced punishments for multiple offenders, but rather to determine whether the particular defendant before it has proven that the minimum sentence is so excessive in his case that it violates Louisiana’s constitution. See State v. Lindsey, supra.

Discussion

The defendant claims that the trial court erred in failing to acknowledge and consider his arguments that it could deviate below the statutorily mandated sentence set forth in the Habitual Offender Law and in imposing a cruel, unusual, and excessive sentence in violation of the Eighth Amendment to the United States Constitution and La. Const, art. 1, § 20. The defendant in this matter was proven to have five prior felony convictions. The present offense was his sixth felony conviction. One prior conviction, attempted distribution of cocaine, was a violation of the _j22Uniform Controlled Dangerous Substances Law punishable by imprisonment for 10 years or more. A prior conviction was for simple burglary, punishable by imprisonment for 12 years or more. Also, the present conviction is for simple burglary. Therefore, the requirements of La. R.S. 15:529.1(A)(l)(c)(ii) were satisfied and resulted in the imposition of the mandatory sentence of life imprisonment without benefit of parole, probation, or suspension of sentence. Although the prior felonies and the present offense do not involve crimes of violence, the defendant has an extensive criminal history including convictions for numerous serious felonies. This demonstrates that he is the type of recidivist that the Habitual Offender Law was designed to punish and deter.

In addition to the crimes used as predicates for the habitual offender bill of information, the defendant had numerous felony and misdemeanor convictions and charges not contained in the bill of information. In 1978, when the defendant was 19 years old, he was convicted in California of committing a lewd act with a minor under the age of 14. His arrest record in California includes vehicular theft, receiving stolen property, possession of a controlled substance, and burglary. The defendant’s Louisiana criminal history includes a conviction for disturbing the peace and numerous other arrests. The felony convictions forming the basis for the habitual offender bill of information include attempted distribution of cocaine, attempted simple burglary, simple burglary, unauthorized entry of a place of business, and illegal possession of stolen things.

| aaThe defendant has failed to show that he falls within those rare circumstances in which a downward departure from the mandatory life sentence is warranted. The defendant has been given numerous opportunities for rehabilitation and has chosen to continue a life of serious crime. Given the defendant’s extensive criminal history, the sentence in this case does not shock the sense of justice and does not constitute a needless and purposeless imposition of pain and suffering. Accordingly, we affirm the mandatory life sentence without benefit of parole, probation, or suspension of sentence imposed by the trial court in this matter under the Habitual Offender Law.

CONCLUSION

The defendant’s conviction for burglary is affirmed. Additionally, his adjudication as a fourth felony offender is affirmed, as is his sentence of life imprisonment as such.

AFFIRMED.

      . The owner testified that the cologne was discovered in the bag and kept by the police. The deputy stated that it was recovered from the defendant's back right pocket and returned to the owner. These minor discrepancies are irrelevant; in either case, the defendant had put the cologne in a place over which he exercised control in anticipation of his departure from the vehicle.

      . On appeal, the defendant argues that the 12-year hard labor sentence imposed was cruel, unusual, and constitutionally excessive. Because we vacate the 12-year sentence, this argument is moot.


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Falice Anissa FISHER, Appellant.
    No. 44,865-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 28, 2009.

      Paula Corley Marx, Louisiana Appellant Project, for Appellant.
    J. Schuyler Marvin, District Attorney, John Michael Lawrence, Darius Q. Henderson, Assistant District Attorneys, for Appellee.
    Before STEWART, PEATROSS and LOLLEY, JJ.
   LOLLEY, J.

11 This criminal appeal arises from the 26th Judicial District Court, Parish of Bossier, State of Louisiana. Defendant, Fal-ice Anissa Fisher, entered a guilty plea to the crime of Cruelty to a Juvenile, a violation of La. R.S. 14:93, pursuant to a plea bargain agreement that capped her sentence at seven years. However, Fisher was sentenced to serve ten years of imprisonment at hard labor, five of which were suspended, and she was placed on five years’ probation. Fisher now appeals. For the following reasons, the defendant’s sentence is vacated and the matter remanded for resentencing.

On July 1, 2008, in Bossier Parish, Fisher violated the provisions of La. R.S. 14:93 in that she did intentionally mistreat or neglect a child under the age of 17, namely, E.L., whereby unjustifiable pain or suffering was caused. Louisiana R.S. 14:93(D) states that “whoever commits the crime of cruelty to juveniles shall be fined not more than one thousand dollars or imprisoned with or without hard labor for not more than ten years, or both.”

It is clear from the record in both the minutes and transcript that the state and Fisher agreed to cap her sentence at seven years in exchange for her plea of guilty as charged. In fact, after accepting Fisher’s guilty plea, the trial court specifically advised all of the parties to note the seven-year cap in their files because “a lot of times that does not show up in the presen-tence investigation report.” At the sentencing hearing, after |2considering the presentence investigation report and the facts of the case, including Fisher’s age and social history, the trial court improperly imposed a ten-year sentence, five of which were suspended, and five years’ active supervised probation with special conditions. Unfortunately, neither the defense nor the state noticed the error or objected to the sentence.

On appeal, Fisher assigns as error, and the state agrees, that the trial court erred in imposing the ten-year sentence. The applicable law was recently set forth by this court in State v. Cheatham, 44,247 (La.App. 2d Cir.05/13/09), 12 So.3d 1047, 1051, where we explained that:

A plea bargain agreement is considered to be a contract between the State and the criminal defendant. If the State is a party to a plea bargain agreement, the bargain must be enforced. Although an irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence, Defendant’s complaint is that the trial court failed to enforce a plea bargain agreement, which renders her guilty plea constitutionally infirm.
A guilty plea cannot be withdrawn after sentencing unless it is shown that the facts surrounding the guilty plea render it constitutionally deficient. A guilty plea is invalid when the defendant is induced to plead guilty by a plea agreement and the terms of the bargain are not satisfied. When a plea bargain is breached, the defendant has the option of specific performance or to withdraw the guilty plea. (Internal citations omitted.)

Because the terms of Fisher’s plea bargain agreement were not met, and the trial court’s discretion is involved in determining a sentence within the seven-year sentencing cap, including possible suspension of a portion of the sentence, Fisher’s sentence is vacated and the matter remanded for resentencing in accordance with the plea bargain agreement.

|sFor the foregoing reasons, the defendant’s sentence is vacated and the matter remanded for compliance with the plea bargain agreement of a sentencing cap of seven years.

SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING.

      . The victim’s initials are used because of victim confidentiality requirements applicable to the instant case under La. R.S. 46:1844(W).

      . Specifically, the victim, a 19-day-old boy, sustained a “bucket handle” injury to his right anide (whereby the foot was breached from the socket) caused by excessive pulling of the foot while the defendant put on the victim’s shoes.


author: MOORE, J.

text:
    URBAN HOUSING OF AMERICA, INC., et al., Plaintiff-Appellant v. CITY OF SHREVEPORT, et al., Defendant-Appellee.
    No. 44,874-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 28, 2009.
    Rehearing Denied Dec. 3, 2009.

      Margrett Ford, for Appellant.
    Neil Erwin Law, LLC, by Neil T. Erwin, for Appellee.
    Before WILLIAMS, CARAWAY and MOORE, JJ.
   MOORE, J.

11 The owners, Urban Housing of America Inc. Louisiana, and its partners, Greenwood Villa Partners II and Malmstrom Family Limited Co. (collectively, “Urban Housing”), appeal an action of the Shreveport City Council that denied approval of its subdivision plan to build Phase 3 of Greenwood Villa Subdivision. We reverse and render.

Factual Background

Urban Housing owns an 11.384-acre tract on Danny R. Wimberly Drive, on the north side of Greenwood Road and about 1,000 feet east of Pines Road in Shreveport. Part of the tract is zoned R-A (residence/agriculture), part R-1D (one-family dwellings on large building sites with a minimum lot size of 7,200 sq. ft.), and part R-3 (PUD) (mixed one- and two-family dwellings, townhouses and apartments, the highest population density allowed).

In 2007, Urban Housing filed with the Metropolitan Planning Commission (“MPC”) a subdivision plan to build Phase 3 of Greenwood Villa, comprising 40 houses. The plan was similar to two prior phases approved in 1999 and already developed adjacent to this tract, targeting low-income buyers utilizing the federal Low Income Housing Tax Credit. Under this program, buyers who would not qualify for conventional home financing (most earn 60-90% of the area median income) may acquire a new home by actually renting it from the developer with an option to purchase which can be exercised at the end of 15 years. After the 15 years, if the buyer wishes to exercise the option, she must apply to the Federal Home Loan Bank, which will loan her 80% of the house’s value. It is, in essence, |2a “rent to own” plan for low-income homebuyers.

Urban Housing’s principal, Dan Wim-berly, consulted with MPC officials, who offered various suggestions; all these were incorporated into the plan, and the senior planner testified that the plan satisfied all zoning and use ordinances. The MPC approved the plan on November 7, 2007, by a 4-3 vote (two members were not present). The city council took up the matter on December 11, 2007, receiving 74 letters in support of Greenwood Villa but 386 signatures against it, and hearing testimony from 9 persons (including the Wimberlys and their attorney) in support and 5 against; the council voted 4-3 to overturn the MPC and disallow the subdivision plan.

Wimberly testified that shortly after submitting it, he noticed that the plan actually did not fully comply with zoning, as two lots in the R-1D zone were slightly under 7,200 sq. ft. His counsel presented this fact to the MPC staff, which concluded that the matter required more than administrative correction, so Wimberly filed a new, corrected plan. His surveyor, Forrest Rayburn, and the MPC director, Charles Kirkland, testified that the second plan satisfied all zoning ordinances. However, after a meeting on February 6, 2008, in which opponents turned in over 700 signatures, the MPC voted 5-2 to deny the plan.

Urban Housing appealed the decision to the city council, which took up the matter on February 26, 2008. Only Urban Housing’s attorney spoke in favor; several local residents spoke fervently against it. Without giving any further reasons, the council voted 4-2 to uphold the MPC’s denial.

| ¡¡Action in the District Court

Urban Housing filed the instant suit for judicial review of the council’s action. At trial in April 2008, the witnesses testified as outlined above. All agreed that the second subdivision plan met all zoning and use criteria. The MPC director testified that the plan created no adverse impact on any discretionary factor enumerated in the ordinance, Shreveport City Code § 82-41(a), and that R zoning (residential), which governs the entire tract, does not distinguish between owned and rented houses.

Wimberly testified that because buyers are still technically renters for 15 years, Urban Housing could wield tight control over residents and evict anyone for “non-compliant occupancy.” On cross-examination, he admitted knowing that a drug arrest had occurred in Greenwood Villa in July 2006. He also admitted that in his 1998 subdivision plan for Phase 1, he had agreed to erect a 6-ft. screen fence on property lines that abutted other residences, but that he had never done so because Phases 1 and 2 abutted only “the woods as we see it.”

The city argued that Code § 82-41 (a), recently amended by Ord. No. 10 of 2007, gave the MPC and council broad power to evaluate “all aspects that might relate to” the approval, not just those listed, and that the enabling statute, La. R.S. 33:101.1, expressly conferred “legislative discretion” in approving a proposed subdivision. The MPC director, Kirkland, and the senior planner, Stephen Jean, agreed that staff approval was limited to technical compliance and not determinative; the MPC and council may consider a host of other issues. Kirkland also conceded that in this case, |4there were serious issues of compatibility with surrounding residential properties, and vocal opposition.

Joyce Lawrence, a resident of Scenic Drive (on the other side of Pines Road from Greenwood Villa), who had organized the opposition and testified at both council meetings, testified that she was concerned about crime in the area, as a “drug bust” had occurred on Danny Wimberly Drive. She disputed that Urban Housing’s proposed small homes (1,100-1,200 sq. ft.) on relatively small lots (7,200 sq. ft.) were consistent with the average 1,500 sq. ft. homes on half-acre lots in nearby Twilight Meadows, Western Hills Village, and other older subdivisions. She also described personally seeing several “young people” walking through a yard on Rose Street en route to Greenwood Villa; when the owner asked them not to cross his property, they “gave him the finger.” She testified that all her neighbors share her concern about fostering this element so close to their established homes.

After holding the case under advisement for six months, the district court issued a brief opinion recapping the procedural history and noting that the constitutionality of Ord. No. 10 of 2007 was not contested. The court held that under Prest v. Parish of Caddo, 41,039 (La.App. 2 Cir. 6/2/06), 930 So.2d 1207, the city had “virtually boundless discretion” which it did not violate in this case. The court denied Urban Housing’s appeal.

Urban Housing moved for a new trial. At the close of the hearing on this motion, the court remarked that had he been sitting on the council he probably would have voted differently, and he personally did not like the l^Prest case, but he still could find no abuse of discretion. The court denied the motion for new trial, and this appeal followed.

Regulatory Scheme

The general authority for local governments to regulate land use is conferred by La. Const. Art. 6, § 17, which provides in part:

Subject to uniform procedures established by law, a local governmental subdivision may (1) adopt regulations for land use, zoning, and historic preservation, which authority is declared to be a public purpose; (2) create commissions and districts to implement those regulations; (3) review decisions of any such commission; and (4) adopt standards for use, construction, demolition, and modification of areas and structures.

The approval of subdivision plats is regulated by La. R.S. 33:101.1:

Except as otherwise provided in this Subpart, the act of approving or disapproving a subdivision plat is hereby declared a legislative function involving the exercise of legislative discretion by the planning commission, based upon the data presented to it; provided that any subdivision ordinance enacted by the governing authority of a parish or municipality or the acts of the planning commission, or planning administrator shall be subject to judicial review on the grounds of abuse of discretion, unreasonable exercise of police powers, an excessive use of the power herein granted, or denial of the right of due process. The right of judicial review of a subdivision ordinance shall not be limited by the foregoing[;] however, nothing contained in this Subpart or in any subdivision ordinance adopted by a parish or municipality shall be construed as imposing upon such parish or municipality a duty, special or otherwise, to or for the benefit of any individual person or group of persons.

In accordance with these authorities, the Shreveport Code, as amended by Ord. No. 10 of 2007, provides as follows:

Division 2. Review and AppROVal PROCEDURES
Sec. 82-41. Generally.
(a) The purpose of the approval process described herein |nis to assure the orderly development of property and reduction of blight in existing neighborhoods within the jurisdiction. These requirements do not imply an inherent right to subdivide property or to create building sites except as consistent with the public health, safety and welfare of the entire community. It is intended that this review and any potential approval include an evaluation of all aspects that might relate to this decision, including but not limited to: infrastructure capacity or impact, current growth management policies, traffic congestion, and environmental impacts. Moreover, it is specifically within the authority of the planning commission to require specific improvements, easements or other limitations to development rights that further these public interests as a condition of an approval.

Discussion

Urban Housing contends, by one assignment of error, that the MPC and council abused their discretion by denying a subdivision plan that complied with all applicable ordinances, effectively denying Urban Housing’s use by right of its own property. It shows that zoning regulations must be applied uniformly within each district or zone, Jenkins v. St. Tammany Parish Police Jury, 98-2627 (La.7/2/99), 736 So.2d 1287, and contends that because the city already approved the first two phases of Greenwood Villa, it was facially arbitrary and capricious to deny the third. Urban Housing reiterates that there was no evidence of adverse impact on any factor enumerated in Code § 82-41(a); that it complied with every zoning and use ordinance, requiring no variance or exception; hence, this subdivision was a use by right and presumptively valid. To deny a use by right, the city must meet a “much higher” burden and such a decision is subject to strict scrutiny. D'Argent Properties LLC v. City of Shreveport, 44,-457 (La.App. 2 Cir. 6/24/09), 15 So.3d 334. Urban Housing concludes that the stated concerns (“who the residents of the houses might be, and |7fears that the identity of the residents would lower their property values”) were speculative and insufficient to support the denial of a use by right.

The city responds that the district court properly followed controlling jurisprudence recognizing the council’s legislative discretion, as in King v. Caddo Parish Comm’n, 97-1873 (La.10/20/98), 719 So.2d 410, and that the council properly exercised that discretion in accord with Prest v. Parish of Caddo, supra. It cites the grant of legislative discretion in R.S. 33:101.1 and the broad language of § 82-41(a). The city submits that pursuant to King and Prest, supra, denying a variance, exception or nonconforming use may be based on any consideration whatsoever. The city also stresses Ms. Lawrence’s view that Greenwood Villa’s lots are much smaller than those in “long established” subdivisions off Pines Road, and her description of the foot traffic and rude behavior of Greenwood Villa residents toward homeowners on Rose Road. Finally, it asserts that Urban Housing has never built the 6 — ft. screen fence as agreed in a 1998 stipulation for Phase 1. The city concludes that incompatibility of lot sizes with surrounding residential properties, traffic congestion and circulation, security concerns, and Urban Housing’s failure to comply with the 1998 agreement, all provided a rational basis for denying the plan.

In the recent case of D’Argent Properties LLC v. City of Shreveport, supra, this court considered the analogous situation of a landowner who applied for site plan, completely in compliance with all zoning ordinances, to build a drive-in restaurant. In that case, the MPC had approved the site plan, but on appeal the city council denied it, with members citing “the | sbetterment of the area” and “the majority of the citizens.” On judicial review, the district court upheld the denial of the fully compliant site plan, citing the “broad legislative prerogative and decision-making authority” conferred by King v. Caddo Parish Comm’n and Prest v. Parish of Caddo, supra.

On appeal, however, this court found those authorities inapplicable:

[W]e distinguish King v. Caddo Parish Comm’n, supra, Prest v. Parish of Caddo, supra, and several other cases cited in brief, on a factual basis. Those cases all involved requests for variances, special exceptions or rezoning of a particular parcel. When an owner seeks to alter the established zoning, the commission or governing body must apply its great discretion and, as a result, the courts will not “take issue with the council.” King v. Caddo Parish Comm’n, supra. The instant case, by contrast, is the res nova situation in which an owner seeks a use by right, in compliance with the applicable zoning, conforming to every modification imposed, and approved by the commission. This use by right should be presumptively valid and approved. For the council to deny such a use, the burden on the city is much higher. On judicial review, the council’s decision to deny a use by right is subject to strict scrutiny, not the normal standard of broad discretion applied to variance cases. On this record, the city council did not meet its heightened burden of refuting the owners’ use of right.

Id. at p. 5, 15 So.3d at 840 (footnote omitted).

Although the matter was res nova for Louisiana, this court cited Hessee Realty Inc. v. City of Ann Arbor, 61 Mich.App. 319, 232 N.W.2d 695 (1975), and Bateson v. Geisse, 857 F.2d 1300 (9 Cir.1988), which applied similar reasoning and reached the same conclusion. This court was unable to find any contrary authority.

The instant case is analogous to D Argent. Like the landowner applying for approval of a site plan that complied with all applicable zoning | Requirements, Wim-berly has applied for approval of a subdivision plan that complies with all applicable zoning and use requirements. Despite the sweeping language of R.S. 33:101.1 and Code § 82-41 (a), which would appear to give the city virtually boundless discretion to grant or deny an application, we will apply, as in D’Argent, strict scrutiny to the decision to deny a fully compliant application.

Regulations for land use are subject to uniform procedures established by law. La. Const. Art. 6, § 17; Morton v. Jefferson Parish Council, 419 So.2d 431 (La.1982). When applications are granted in similar situations and refused in others, the refusal to grant one may constitute a non-uniform application that is arbitrary and capricious. Jenkins v. St. Tammany Parish Police Jury, supra; Bailey v. Parish of Caddo, 30,822 (La.App. 2 Cir. 8/19/98), 716 So.2d 523, writ denied, 98-2642 (La.12/11/98), 730 So.2d 461. The fact that the MPC and council approved the first two phases of Greenwood Villa and then denied the third, in the absence of a showing of any significant difference in the plans, creates a strong appearance of arbitrary and capricious governmental action.

Some of the reasons offered for the different treatment of Phase 3 find little support in the record. In brief, the city cites traffic congestion and circulation as a legitimate concern. The MPC chairman testified that these issues were raised by neighbors, but he did not confirm that they had any substance, and the city offered no further proof of this point. Obviously, any new development will contribute to traffic; in what way is Greenwood 1 inVilla Phase 3 different? Also, Urban Housing’s failure to build the privacy fence is only a technical violation, as portions of Greenwood Villa do not closely abut other houses.

The issue of disparity of house and lot sizes is factual. At 1,100 to 1,200 sq. ft., Greenwood Villa’s houses are noticeably smaller than the average 1,500 sq. ft. houses in nearby Twilight Meadows and Western Hills Village; the proposed lots of 7,200 sq. ft. (about 1/6 acre) are dramatically smaller than the one-half to one-acre lots along Pines Road. However, the city zoned this property R-1D, obviously anticipating lots as small as 7,200 sq. ft. in close proximity to large, rural lots on Pines Road. Further, the MPC and council previously approved the first two phases of Greenwood Villa, undeterred by the same size disparity.

The issue of security also has some record support, as Ms. Lawrence described a “drug bust” on Danny Wimberly Drive; Wimberly admitted that a drug arrest occurred in July 2006, but stated that all the persons involved had been “evicted.” Ms. Lawrence also described seeing young people walking through yards in nearby subdivisions and interacting unfavorably with the homeowners; Wimberly testified that Urban Housing could evict anyone for noncompliant behavior. There was no evidence of the law enforcement presence in the area.

In short, some of the reasons offered for denying the instant subdivision plan have no support- in the record, and others, while factual, do not satisfy the constitutional requirement under Art. 6, § 17, of “uniform procedures established by law” or meet the heightened burden of denying awfully compliant applicant, recognized in D Argent, supra. We are also guided by the principle that zoning and land use regulations are construed in favor of the owner’s proposed use of his own property. Wright v. DeFatta, 244 La. 251, 152 So.2d 10 (1963); D'Argent Properties LLC v. City of Shreveport, supra; Residents of Shenandoah Estates Subd. v. Green Trails LLC, 2005-1331 (La.App. 1 Cir. 6/9/06), 938 So.2d 1027, writ denied, 2006-2098 (La.12/8/06), 943 So.2d 1095. On this record, we are constrained to find the MPG and city council abused their discretion in denying approval of Urban Housing’s fully compliant subdivision plan.

Conclusion

For the reasons expressed, the judgment affirming the MPC and city council’s action is reversed. Judgment is rendered herein approving Urban Housing’s subdivision plan to build Phase 3 of Greenwood Villa Subdivision. Costs are not assessed. La. R.S. 18:4521.

REVERSED AND RENDERED.

APPLICATION FOR REHEARING

Before BROWN, C.J., and WILLIAMS, STEWART, CARAWAY and MOORE, JJ.

Rehearing denied.

BROWN, C.J., would grant rehearing.

      . Members Wooley, Webb, Shyne and Bowman voted to uphold; Lester and Long voted to reverse; Walford is noted in the minutes as “out of the chamber.”

      . Curiously, the city did not address (or even cite) D'Argent in brief, even though Urban Housing cited and quoted from it profusely.