author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    TOURO INFIRMARY v. AMERICAN MARITIME OFFICER, Amerihealth Administrators, Amerihealth New Jersey, Benefit Planners Limited, L.L.P., Brokerage Concepts, Inc./Universal Health, Coresource Inc./Susquehanna Health, Coresource Inc./Formosa Plastics, Golden Rule Insurance Company, et al. Touro Infirmary v. American Maritime Officer, Amerihealth Administrators, Amerihealth New Jersey, Benefit Planners Limited, L.L.P., et al.
    Nos. 2009-CA-0696, 2009-C-0314.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 7, 2010.
    Writ Denied April 9, 2010.

      Franklin D. Beahm, Jacob Best, Beahm & Green, New Orleans, LA, for Touro Infirmary.
    Errol J. King, Jr., Layna S. Cook, Daniel P. Guillory, Mcglinchey Stafford, PLLC, Baton Rouge, LA, For Sharp Health Plan, Sha, LLC, Coresource, Inc., Great West Life & Annuity, and Unicare Life & Health Insurance Company.
    Virginia N. Roddy, Jennifer M. Lawrence, Preaus, Roddy & Associates, LLP, New Orleans, LA, for Appellees, Brokerage Concepts, Inc. and Universal Health Services, Inc.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MAX N. TOBIAS, JR. and Judge PAUL A. BONIN).
   JOAN BERNARD ARMSTRONG, Chief Judge.

_|jThe plaintiff-appellant, Touro Infirmary, appeals a judgment of December 1, 2008, which, among other things, dismissed, based on the La. C.C. art. 3494 three-year prescriptive period for open accounts, Touro’s claims against the defendants-appellees as follows: All claims against Sharp Health Plan (“Sharp”), SHA, LLC, Coresource, Inc., and Great West Life & Annuity (“Great West”); the claim asserted against HMA, Inc. for patient services rendered to J. P.; the claim against Unicare Life & Health Insurance Company (“Unicare”) for patient services rendered to F. J.; and the claims against Brokerage Concepts, Inc. and Universal Health Services, Inc. Medical Plan (“Universal”) for patient services rendered to A.A. on or about April 21, 2003; the claims for patient services rendered to L.W. on or about December 3, 2003; the claims for patient services rendered to L.P. on or about December 10, 2003; and the claims for patient services rendered to-A. B., on or about September 17, 2002.

li>On February 11, 2009, the trial court rendered a subsequent judgment pursuant to a hearing granted on Touro’s unopposed motion for a new trial affirming the judgment of December 1, 2008 and specifically dismissing with prejudice the following claims based on the La. C.C. Art. 3494 three-year prescriptive period for open accounts:

(a) The claim asserted by Touro Infirmary against SHA, LLC for services provided to D. W.;
(b) The claim asserted by Touro infirmary against CodeSource, Inc. for services provided to W. B.;
(c) The claim asserted by Touro Infirmary against Brokerage Concepts, Inc./Universal Healthy [sic] Services, Inc. Medical Plan for services provided to K.M. a/k/a K. C., A. A, L. W., L.P. and A. B.

In response to these adverse judgments, Touro filed a writ application alternatively with this appeal and the two have been consolidated.

Before addressing the substance of this case, we note at the outset that Touro entered into a stipulation that in effect concedes that the last payments made on behalf of any-of the patients that were the subjects of these judgments, and/or the last date that medical service was rendered to any such patients, was more than three years prior to the filing of this suit on February 22, 2007. By entering into this stipulation Touro has effectively conceded that if the three-year open account prescriptive period applies, then all claims referred to above have prescribed consistent with the ruling of the trial court.

Touro’s primary argument is that the La. C.C. art. 3499 ten-year prescriptive period applicable to personal actions, i.e., contractual actions, should apply instead, in which case the claims would not have prescribed. Touro also argues that when it sent out certain reinvoices within three years of filing suit that it converted what may have initially been three-year open account claims into ten-year contractual |3claims. Finally, Touro argues that even if the three-year open account prescriptive period is applicable, certain reinvoices it sent out within three-years of the filing of this suit interrupted the three-year prescriptive period so that it would not have expired prior to the time Touro filed suit.

Touro’s claim is for medical services rendered to patients who were enrolled as members of health plans or health insurance provided by the appellees. Touro alleges that all of these patients through their relationships to the various appellees were part of the MultiPlan, Inc. preferred provider system. Touro alleges that in 2001, Touro participated in a physician-hospital organization known as Choice Healthcare PHO. Choice Healthcare contracted with third parties, binding all Choice Healthcare participants, including physicians and hospitals such as Touro. In 2001 Choice Healthcare entered into a contract with MultiPlan, Inc., a national preferred provider organization (“PPO”). Under the agreement between Choice Healthcare and MultiPlan, Touro as a member of Choice Healthcare was bound to accept payments at discounted rates for medical services for MultiPlans’s clients in exchange for the prospect of increased patient volume. MultiPlan’s clients are insured and self-funded health plans.

As members of this system the patients were entitled to receive medical services at pre-negotiated discounted (“alternative”) rates subject to the provisions of La. R.S. 40:2203.1, et. seq. La. R.S. 40:2203.1 B provides, in pertinent part that:

B. A preferred provider organization’s alternative rates of payment shall not be enforceable or binding upon any provider unless such organization is clearly identified on the benefit card issued by the group purchaser or other entity accessing a group purchaser’s contractual agreement or agreements and presented to the participating provider when medical care is provided....

LTouro alleges that the benefit cards of the patients in question did not identify the preferred provider organization as required by La. R.S. 40:2203.1 B. As a result Touro billed the appellees for services rendered to their patient enrollees at the usual and customary rate rather than the discounted rate. Touro further alleges that the appellees “improperly reimbursed Touro at the MultiPlan ‘alternate rates’.... ” Touro filed this suit on February 22, 2007, to obtain reimbursement at the full “usual and customary rate” rather than the discounted rate. Touro also claims penalties as provided by La. R.S. 40:2203.1 G as follows:

G. Failure to comply with the provisions of Subsection A, B, C, D, or F of this Section shall subject a group purchaser to damages payable to the provider of double the fair market value of the medical services provided, but in no event less than the greater of fifty dollars per day of noncompliance or two thousand dollars, together with attorney fees to be determined by the court. A provider may institute this action in any court of competent jurisdiction.

The defendants-appellees filed exceptions of prescription in the trial court. The trial court granted the exceptions based on the three-year prescriptive period for open account claims as well as finding that Touro’s claims under La. R.S. 40:2203.1 were also subject to the same three-year prescriptive period.

In addition to the exceptions based on three-year prescription filed by all defendants-appellees, certain defendants-ap-pellees, Sharp, SHA, LLC, Coresource, Inc., Great West, and Unicare, argue that claims under La. R.S. 40:2203.1 are subject to a one-year prescriptive period and that, therefore, the trial court erred in finding that such claims were subject to a prescriptive period of three years. The appel-lees are entitled to urge any argument they wish in support of the judgment |5below without answering the appeal or filing a separate appeal. Ventress v. Union Pacific R. Co., 96-0501 (La.5/3/96), 672 So.2d 668. However, as we do not see in the record where these defendants-appel-lees have either answered the appeal or filed an appeal, this Court is not authorized to enlarge the relief granted to the said defendants-appellees by the trial court. Id. Any claim that would prescribe in one year would, of necessity, also prescribe in three years; and the trial court has already granted the said defendants-appellees relief as to all claims that would prescribe in three years. As we hereinafter find no error in the rulings of the trial court regarding claims held to have prescribed in three years, we, therefore, find that it would be superfluous for this Court to consider the one-year prescription issue because we cannot grant relief as to any one-year claims that would not have also prescribed in three years. Accordingly, this Court will consider only those arguments concerning the three-year prescriptive period.

Touro’s original petition is entitled: “Petition on Open Account and for Damages/Penalties.” However, there are no allegations in the petition itself referring to open account claims specifically designated as such. The claims asserted by Touro in its original petition are all based on La. R.S. 40:2201, et. seq., Preferred Provider Organizations. However, annexed to Touro’s petition were numerous exhibits, including demand letters to the defendants. Each letter included a demand based on the Louisiana Open Accounts law phrased as follows:

Pursuant to LSA-R.S. 9:2781, after receipt of this written demand, if you fail to pay the principal balance and penalties set forth above, suit will be filed causing additional liability for reasonable attorney’s fees, court costs and interest commencing upon the filing of a lawsuit.

| (-.While there is no reference in the body of Touro’s petition to the Open Account law in general or to La. R.S. 9:2781, there is a prayer for reasonable attorney’s fees. However, in the context of the petition as a whole, this is clearly a reference to the attorney fees provided by La. R.S. 40:2203.1 and not to the attorney fees provided by La. R.S. 9:2781.

Touro contends that it is entitled to the benefit of the La. C.C. art. 3499 ten-year prescriptive period applicable to contract claims. In its oppositions to the exceptions of prescription filed below, Touro argued that its petition also asserted a breach of contract theory of recovery, citing the following statements found in its petition:

§ 2 ... Touro’s claims arise under state contract law....”
§ 4 ... MultiPlan, Inc. (hereinafter “MultiPlan”), is a Preferred Provider Organization, as defined by R.S. 40:2202(5), and is subject to the provisions of R.S. 40:2203.1., who, upon information and belief, contracted with several health insurance companies and health plans, i.e. “The Companies”, to negotiate preferred, or “alternate rates”, with health care providers for health care services provided by said providers.”
§ 5 Touro Infirmary and MultiPlan executed an Agreement, effective March 1, 2001, whereby Touro agreed to charge “alternate rates” for providing health care services to MultiPlan’s network of Companies for all services provided to “The Companies” enrolled members (hereinafter “enrollees”). A copy of the contract between Touro and MultiPlan is attached hereto as Exhibit “A”.
§ 7 ... Upon information and belief, the contracts between MultiPlan and The Companies provided that Touro, as a healthcare provider in MultiPlan’s network, would charge “alternate rates” to The Companies for all services provided by Touro for the enrollees of The Companies.

17Touro explains the contractual basis of its claim as follows: MultiPlan entered into a contract with Choice Healthcare PHO, as agent of Touro. Touro further contends that the defendants entered into a contract with MultiPlan, Inc., thereby establishing a mandatary relationship between them and MultiPlan. According to Touro, this mandatary relationship confers upon MultiPlan the authority to enter into a contractual relationship on behalf of the defendants with Touro. These relationships then permit Touro to assert contractual claims against the defendants, and these claims are subject to the La. C.C. art. 3499 ten-year prescriptive period.

Attached to the Touro demand letters was a Participating PHO Agreement between MultiPlan, Inc. and Choice Healthcare PHO, neither of which is a party to this litigation.

Brokerage Concepts, Inc. is a third party administrator (“TPA”) which provides administrative services for the Universal, including the payment of claims for services rendered to eligible plan participants. As a TPA, Brokerage Concepts provides services for other plans as well, including insured and non-insured plans. The Plan is not insured. The additional payments which Touro seeks in this lawsuit are payments for services rendered to Plan participants.

Touro seeks payments and penalties in connection with medical services rendered to the following patients: C.M. a/k/a C. C., A. A, D. W„ L. W., L. P., A. B., T.H. and K.A.P. Touro seeks penalties at the rate of $50 per day from each patient’s date of admission. If the three-year prescriptive period applies then the following claims had clearly prescribed as of the date this suit was filed on February 22, 2007:

Patient Name Dates of Service Date of last payment
NA.A. 4/21/03 5/13/03
Ti.B. 9/17/02-9/19/02 12/31/02
C. C. 5/23/03-5/27/03 8/12/03
L. P. 12/10/03 1/13/04
L. W. 12/3/02 4/29/03

Charges by medical providers for medical services are generally characterized as open account claims, and the fact that a patient may have been treated on only one occasion does not alter the open account character of the transaction. La. R.S. 9:2781 D. “In determining the applicable prescriptive period, we are guided by the well-settled principle that ‘[t]he character of an action disclosed in the pleadings determines the prescriptive period applicable to that action.’ Starns v. Emmons, 538 So.2d 275, 277 (La.1989) (collecting cases).” Parry v. The Administrators of the Tulane Educational Fund, 02-0382, p. 7 (La.App. 4 Cir. 9/4/02), 828 So.2d 30, 34.

Based on our review of the statutes, jurisprudence and record in this case discussed in subsequent paragraphs, we find that Touro’s claims can best be characterized as arising out of open account claims for medical services. Therefore, we find no error in the trial court’s decision to apply the La. C.C. art. 3494 open account three-year prescriptive period. As a logical extension of this reasoning, because there is no specified prescriptive period provided for claims arising under La. R.S. 40:2203.1, either in the statute or in the jurisprudence, we find that the same prescriptive period as that applicable to the underlying claims, in this case Touro’s claims for payments for open account medical services, should be applicable to La. R.S. 40:2203.1, i.e., three years. In other words, where the claim underlying an La. R.S. 40:2203.1 claim is characterized as claim for medical | {¡services, the La. R.S. 40:2203.1 claim should also be characterized as such, and, therefore, be subject to the same prescriptive period.

Our analysis of the open account character of Touro’s claims begins with Ward v. Sylvester, 498 So.2d 1111 (La.App. 3 Cir.1986) which stands for the principle that billings for medical services are considered to be open account claims, even when based on a single isolated transaction:

Temple Drilling Company contends that plaintiffs claim is not a suit on open account and, therefore, is not subject to La. R.S. 9:2781. Temple argues that the treatment of Sylvester “... was a onetime transaction in which Doctor Ward’s office expected immediate payment.” This argument, however, is without merit upon a reading of paragraph C[] of La. R.S. 9:2781 which provides:
“For the purposes of this Section and Code of Civil Procedure Articles 1702 and 4916, ‘open account’ includes any account for which a part or all of the balance is past due, whether or not the account reflects one or more transactions and whether or not at the time of contracting the parties expected future transactions. ‘Open account’ shall include debts incurred for professional services, including, but not limited to, legal and medical services.”

In Commercial Credit Claims Services, Inc. v. Richardson, 454 So.2d 177 (La.App. 1st Cir.1984), the court, in reviewing the amendments to La. R.S. 9:2781, stated:

“... Prior to its amendment in 1983 the statute did not address the single transaction situation. The jurisprudence held consistently a single business transaction, with no expectation of future dealings, did not create an open account and therefore in such cases no attorney fees were allowed .... [Citations omitted.]
* * *
| inThere is no question the amendment to this article overrules the holdings of the cases cited above. A single transaction, such as the one in the present case, now falls within the definition of an ‘open account’ and attorney fees are appropriate in such cases.”
Subsequently, the Louisiana Supreme Court also concluded in Frey Plumbing Company, Inc. v. Foster, 07-1091, p. 6 (La.2/26/08), 996 So.2d 969, 972 that an open account relationship could be based on a single transaction.

The fact that there may have been an agreement to bill MultiPlan patients at a certain agreed upon discounted rate does not change the nature of this claim from open account to contractual for prescription purposes.

In Dear v. Mobile, 93-1188, pp. 3-4 (La.App. 1 Cir. 5/20/94), 637 So.2d 745, 747, the court found that in spite of the fact that there was a contractual basis underlying the open account relationship, the applicable prescriptive period was the three years for open accounts, not the ten-year period for contracts:

Plaintiff further contends that even if his action is based on an open account, it is also a contract action, and, as such, he should have the option to establish his claim under the contract theory, with a ten year prescriptive period. However, as articulated by the Louisiana Supreme Court in Starns v. Emmons, 538 So.2d 275, 277 (La.1989): “[a]rticle 3494 does not present a choice between a contract remedy and some other remedy; it merely provides exceptions to the general rule stated in article 3499 that a personal action prescribes in ten years.” Starns, 538 So.2d at 278. Thus, an action on open account, while arising from a contractual relationship, is an exception to the general prescriptive period of LSA-C.C. art. 3499. Accordingly, this argument is without merit.

This Court cited and followed Dear in Parry v. The Administrators of the Tulane Educational Fund, 02-0382 (La.App. 4 Cir. 9/4/02), 828 So.2d 30, wherein this Court presented a carefully reasoned and lengthy rationale explaining why the _]_y three-year open account prescriptive period rather than the ten-year contractual period should apply:

All the actions enumerated in La. C.C. art. 3494 originate from contractual relationships. For that reason, the courts have uniformly rejected attempts to circumvent that article’s three-year prescriptive period by categorizing the entire action as sounding in breach of contract. Starns [v. Emmons, 538 So.2d 275, 277 (La.1989) ], supra (rejecting such an attempt to avoid the three-year period for actions to recover rent under La. C.C. art. 3494(2)); see also Dear v. Mabile, 93-1188 (La.App. 1 Cir. 5/20/94), 637 So.2d 745 (applying reasoning in Starns, supra, to reject argument three-year period in La. C.C. art. 3494(4) for suits on open account should not apply since a contract theory was also asserted). In rejecting such attempts, the courts have cited the following reasoning set forth by the Louisiana Supreme Court in Stams:
Such a rationale, however, cannot stand, because it renders article 3494 useless. All of the actions covered by the provisions of that article essentially arise from contractual relationships. Article 3494 does not present a choice between a contract remedy and some other remedy; it merely provides exceptions to the general rule stated in article 3499 that a personal action prescribes in ten years.
538 So.2d at 278.
* * *
Tulane contends that the reasoning in Grabert [v. Iberia Parish School Bd., 93-2715 (La.7/5/94), 638 So. 2d 645] is dispositive of the issue before us of whether the applicable prescriptive period in this case is La. C.C. art. 3494(1), as the trial court concluded and as Tulane contends, or La. C.C. art. 3499, as the Class contends. We agree. As in Grabert, supra, the Class’ claim is one for additional compensation covered by La. C.C. art. 3494(l)’s three-year period.
Given our conclusion that this action is covered by the three-year period under La. C.C. art. 3494(1), the ten-year period under La. C.C. art. 3499, by its terms, does not apply. Civil Code Article 3499 provides that | l2“[u]nless otherwise provided by legislation, a personal action is subject to a liberative prescription of ten years.” [FN 10 omitted.] As the introductory clause of that Article provides, it is a “catch-all provision” that covers personal actions not specifically covered by any other prescriptive period. See La. C.C. art. 3457 (providing that “[t]here is no prescription other than that established by legislation.”) Only when the Legislature has failed to assign a specific prescriptive period to cover the specific type of personal action at issue does that Article apply. See Buras v. Schultz, 99-1997, p. 5 (La.App. 4 Cir. 2/9/00), 752 So.2d 981, 984, writ denied, 2000-0727 (La.4/28/00), 760 So.2d 1178 (citing Grabert, supra); 2 A.N. Yiannopoulos, Louisiana Civil Law Treatise: Property § 249 (2001)(citing Grabert, supra). Civil Code Article 3494(1) is the specific prescriptive period that the Legislature has provided to cover the specific type of personal action at issue in this case: a claim for additional compensation.

Id., 02-0382, pp. 14-17, 828 So.2d at 39-40.

Because, as pointed out by this Court in Parry, all open account claims are also contractual in nature, whereas the converse is not true, if the three-year prescriptive period for open accounts provided by La. C.C. 3494 is to have any meaning at all, it must take precedence over the ten-year contractual period of prescription provided by La. C.C. art. 3499. Moreover, because we find as a matter of law that for purposes of prescription, the claims asserted by Touro are open account claims, it is not necessary that we attempt also to unravel in precise detail the exact nature of the contractual relationships between and among the various persons and entities involved.

Additionally, there is no merit in Touro’s argument that payment of the discounted rate for Touro’s services somehow constituted an acknowledgement of the debt in such a manner as to convert the claim from open account to contractual. | iSCases cited by Touro in which a written acknowledgement effectively created a new contractual obligation are not applicable. There are no written instruments involved here other than mere payment.

Finally, we note that Touro’s request for a new trial was based on its argument that certain patients within the three-year prescriptive period were “rein-voiced ... with an explanation as to why the discount was not being allowed and why the re-invoice was being issued.” Touro went on to argue that “[t]hose re-invoices constitute charges, entries, or other transactions on the referenced open accounts sufficient to recommence the running of’ prescription. We cannot agree. The prescriptive period on an open account runs from the date of the last purchase or payment. Tolmas v. Weichert, 616 So.2d 244 (La.App. 4 Cir.1993). There is no dispute that the medical services rendered and all payments made that are subject to this appeal, were made more than three years prior to the filing of this suit by Touro. We do not agree with Touro’s argument that somehow the reinvoices constitute new transactions. For these additional reasons, we find that the trial court did not err in applying the three-year prescriptive period. Therefore, we affirm the judgment of the trial court.

AFFIRMED.

      . There were numerous other defendants named by Touro in the original suit who are not parties to this appeal.

      . It appears that Touro may have dismissed its claim against HMA, Inc., which would explain why HMA is the only defendant named in the judgment of the trial court that has not filed anything in connection with this appeal. However, as appellee, it is not required that it do so. Ventress v. Union Pacific R. Co., 96-0501 (La.5/3/96), 672 So.2d 668. HMA, Inc. was a named party in an opposition to Touro's alternative supervisory writ application filed on its behalf along with Sharp, SHA, LLC, Coresource, Inc., Great West and Unicare and that writ application as noted elsewhere in this opinion has been consolidated with this appeal.

      . All patients are referred to herein by their initials in an effort to respect their privacy.

      . Redesignated as paragraph "D" by act 2001, No. 1075, § 1.


source: Caselaw Access Project

author: ROTHSCHILD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. John E. MURPHY.
    No. 09-KA-805.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 23, 2010.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Anne Wallis, Michael Morales, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Holli A. Herrle-Castillo, Attorney at Law, Louisiana Appellate Project, Marre-ro, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   ROTHSCHILD, Judge.

i statement of the case

This is the second appeal in this case filed by defendant, John E. Murphy. Defendant was convicted by a Jefferson Parish jury of possession of clonazepam, a violation of LSA-R.S. 40:969 C. On March 20, 2009, the trial court sentenced defendant to four years at hard labor. This Court affirmed the conviction and sentence on appeal. State v. Murphy, 09-432 (La.App. 5 Cir. 11/24/09), 28 So.3d 496.

On June 12, 2009, the State filed a habitual offender bill of information alleging defendant to be a fourth felony offender. On the same day, defendant was advised of the allegations in the habitual offender bill, and he denied them. Defendant also filed a written response and objection to the habitual offender bill.

The trial court held a habitual offender hearing on July 10, 2009, and found defendant to be a fourth felony offender. The court vacated defendant’s original ^sentence and imposed an enhanced sentence of 30 years at hard labor, without benefit of probation or suspension of sentence.

DISCUSSION

In his first assignment of error, defendant argues that the trial court erred in finding him to be a fourth felony offender, because the State failed to provide sufficient proof of identity as to the alleged predicate conviction in district court case number 97-0414. The State responds that the documentation it produced with respect to case number 97-0414 was sufficient to prove identity when viewed in conjunction with the evidence of the remaining predicate convictions.

In the instant case, the State alleged the following predicate convictions in the habitual offender bill of information: 1) a guilty plea to possession of cocaine (LSA-R.S.40:967 C) on October 26, 1995, in case number 95-3807, for which he was sentenced to two years at hard labor; 2) a guilty plea to theft in the amount of $500 or more (LSA-R.S.14:67) on September 11, 1997, in case number 97-0414, for which defendant was sentenced to five years at hard labor; 3) a guilty plea to distribution of cocaine within 1,000 feet of a church (LSA-R.S.40:981.3) and distribution of counterfeit cocaine (LSA-R.S.40:971.1) on December 4, 2002, in case number 02-5399, for which he was sentenced to 10 years at hard labor; 4) a guilty plea to distribution of cocaine within 1,000 feet of a church and distribution of counterfeit cocaine on December 4, 2002, in case number 02-5576, for which he was sentenced to ten years at hard labor; and 5) a guilty plea to distribution of cocaine within 1,000 feet of a church on December 4, 2002, in case number 02-5691, for which he was sentenced to 10 years at hard labor.

| ⅜At the habitual offender hearing on July 10, 2009, the State introduced the testimony of Deputy Chad Pitfield, an expert in the comparison and analysis of latent fingerprints. Deputy Pitfield identified State’s Exhibit 1 as a card containing a set of fingerprints he had obtained from defendant that day in the courtroom.

Deputy Pitfield testified that he compared the fingerprints on State’s Exhibit 1 with those on the certified copy of the bill of information in case number 95-3807. He concluded that the prints on both documents were made by the same person. Deputy Pitfield compared the fingerprints on State’s Exhibit 1 with those on certified copies of the bills of information in case numbers 02-5399, 02-5576, and 02-5691, which were part of State’s Exhibits 4, 5, and 6 respectively, and he concluded that these prints were made by the same person. Deputy Pitfield was also shown State’s Exhibit 3, which contained certified copies of documents in case number 97-0414, including the bill of information, the habitual offender bill of information, the habitual offender waiver of rights form, and a minute entry pertaining to the habitual offender guilty plea. He noted that none of those documents contained a set of fingerprints. Defense counsel objected to the admission of State’s Exhibit 3, arguing that it did not contain fingerprints for comparison. The trial court ruled that the exhibit was admissible, and that the lack of fingerprints on the documents went to the weight of the evidence, not the admissibility-

After hearing arguments on the matter, the trial court found that defendant was a fourth felony offender.

In order to prove that a defendant is a habitual offender, the State must establish by competent evidence the defendant’s prior felony convictions, and that the defendant is the same person who was convicted of the prior felonies. State v. Jenkins, 07-586, p. 4 (La.App. 5 Cir. 1/22/08), 977 So.2d 142, 146. The Habitual 1 ^Offender Law, LSA-R.S. 15:529.1, does not require the State to use a specific type of evidence in order to carry its burden of proof. State v. Payton, 00-2899, p. 8 (La.3/15/02), 810 So.2d 1127, 1132. Jenkins, 07-586 at 4, 977 So.2d at 147. The defendant’s prior convictions may be proven by any competent evidence. Id.

The defendant’s identity as the same person convicted of a prior felony offense may be shown by a variety of methods, including the testimony of witnesses, fingerprint analysis by an expert, photographs contained in a duly authenticated record, or evidence of identical driver’s license number, sex, race, and date of birth. State v. Curtis, 338 So.2d 662, 664 (La.1972); State v. Henry, 96-1280, p. 7 (La.App. 4 Cir. 3/11/98), 709 So.2d 322, 326, writ denied, 99-2642 (La.3/24/00), 758 So.2d 143. Merely establishing that the defendant’s name and that of the person previously convicted are the same is not sufficient evidence of identity under LSA-R.S. 15:529.1. Id.

The documents in State’s Exhibit 3 were all filed in case number 97-0414, which is the predicate conviction disputed by defendant. Although State’s Exhibit 3 does not contain a set of fingerprints or a photograph for comparison, there is other competent information in this exhibit to identify defendant as the person convicted in case number 97-0414. The name on the bill of information and other documents in State’s Exhibit 3, John Murphy, is the same as the name on the bills of information in each of the exhibits that were identified by Deputy Pitfield. Also, the date of birth (11/28/72) on the bill of information in State’s Exhibit 3 is the same as the date of birth on the exhibits identified by the deputy. Further, the certified copies of the habitual offender bill of information and waiver of rights form in State’s Exhibit 3 indicate that the defendant in case number 97-0414 admitted to being the same person who was convicted in case number 95-3807, which is a predicate conviction in the present case for which the State offered fingerprint documentation.

In State v. Westbrook, 392 So.2d 1043, 1045 (La.1980), which involved a conviction for driving while intoxicated (D.W.I.), the Louisiana Supreme Court found that documentation of the defendant’s name, driver’s license number, sex, race, and date of birth was sufficient evidence for the State to carry its burden of proving that this defendant was the same person previously convicted of D.W.I.

In State v. Neville, 96-0137, p. 8 (La.App. 4 Cir. 5/21/97), 695 So.2d 534, 539, writ denied, 97-1637 (La.12/12/97), 704 So.2d 1180, the evidence was found sufficient to support the defendant’s adjudication as fourth felony offender, although the State did not submit fingerprint or photographic evidence as to one of the predicate convictions. The court found it was sufficient that the arrest registers pertaining to all three prior convictions showed the same name, date of birth, address, and social security number.

Similarly, in State v. Henry, 96-1280 at 8, 709 So.2d at 326, the Fourth Circuit found the State provided sufficient proof of identity as to a predicate conviction alleged in the habitual offender bill, despite its failure to produce fingerprints or a photograph. The court noted that the certified copy of the conviction bore the same Bureau of Identification Number, physical description, birth date, and social security number as the two predicate convictions for which the State did produce fingerprints.

In the present case, Deputy Pitfield testified that the fingerprints taken from defendant on the date of the hearing in this case and the fingerprints of the defendant in case number 95-3807 were made by the same person. The certified documents from case number 97-0414 indicate that the defendant in that case admitted to being the same person who pled guilty in case number 95-3807. This information, along with the matching name and birth dates on the bills of information, is sufficient to establish that defendant is the same person who pled guilty in case number 97-0414.

^Accordingly, based on the pertinent law, jurisprudence, and the facts and circumstances before us, we find no error in the trial judge’s determination that defendant is a fourth felony offender.

In his second assignment of error, defendant complains that his 30-year habitual offender sentence is unconstitutionally excessive, considering that the underlying offense, possession of clonazepam, was relatively minor. In response, the State claims that the sentence is appropriate, considering that defendant had several prior convictions for narcotics distribution, which demonstrates he is a habitual drug dealer.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive, even when it is within the applicable statutory range, if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Warmack, 07-311, p. 7 (La.App. 5 Cir. 11/27/07), 973 So.2d 104, 109. In reviewing a sentence for excessiveness, the appellate court must consider the punishment and' the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock the sense of justice. Id. The trial judge is afforded wide discretion in determining sentence, and the court of appeal will not set aside a sentence absent a clear abuse of the trial court’s discretion. State v. Brown, 04-230, p. 4 (La.App. 5 Cir. 7/27/04), 880 So.2d 899, 902. Accordingly, the relevant question on appeal is whether the trial court abused its broad sentencing discretion, and not whether another sentence might have been more appropriate. State v. Cook, 95-2784, p. 3 (La.5/31/96), 674 So.2d 957, 959, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

At the time of the underlying offense in this case, the sentencing range for possession of clonazepam was not more than five years. LSA-R.S. 40:969 C(2). |sAs a fourth felony offender whose underlying conviction was not for a crime of violence, defendant was subject to a sentencing range of 20 years to life in prison. LSA-R.S. 15:529.1 A(l)(e)(i).

At the time of sentencing, the trial judge noted that LSA-R.S. 15:529.1 B was amended to provide that multiple convictions obtained on the same day pri- or to October 19, 2004 count as only one conviction for purposes of multiple offender proceedings. On December 4, 2002, defendant entered guilty pleas to drug distribution charges in three cases, but they counted as one conviction for multiple bill purposes. The trial judge also stated that he felt the 30-year sentence was appropriate based on defendant’s criminal record, and that a lesser sentence would deprecate the seriousness of that record.

Defendant’s prior convictions show a continuing pattern of drug distribution that was not forestalled by previous convictions and terms of imprisonment. Based on the record before us, we find that the trial court did not abuse its broad discretion in imposing the 30-year sentence. Accordingly, this assignment of error is without merit.

ERRORS PATENT

This Court performed an errors patent review of the original record in this case at the time of defendant’s first appeal. He is now entitled to an error patent review of only the habitual offender proceedings. State v. Yrle, 05-202, p. 5 (La.App. 5 Cir. 10/6/05), 916 So.2d 1197, 1200. Our review did not reveal any errors requiring corrective action.

DECREE

For the foregoing reasons, we affirm defendant’s adjudication as a fourth felony offender and his 30-year sentence.

AFFIRMED.

      . LSA-R.S. 15:529.1 B was amended by 2005 La. Acts No. 218, § 1 to provide that "[m’Julti-ple convictions obtained on the same day prior to October 19, 2004, shall be counted as one conviction for the purpose of this Section.” The effective date of this amendment was August 15, 2005. Since defendant’s three 2002 convictions were obtained on the same day, they count as one conviction for purposes of the habitual offender bill.


author: EDWARD A. DUFRESNE, JR., Chief Judge.

text:
    STATE of Louisiana v. Joseph D. DEE.
    No. 09-KA-712.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 23, 2010.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appel-lee.

      Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Joseph D. Dee, Kinder, LA, Defendant/Appellant, In Proper Person.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and MARC E. JOHNSON.
   EDWARD A. DUFRESNE, JR., Chief Judge.

LOn February 7, 2008, the Jefferson Parish District Attorney filed a bill of information charging defendant, Joseph D. Dee, with possession with intent to distribute heroin in violation of LSA-R.S. 40:966(A). At the March 20, 2008 arraignment, defendant pled not guilty. Thereafter, on June 23, 2008, the trial judge heard and denied defendant’s motions to suppress evidence and statements.

The matter proceeded to trial on March 17 and 18, 2009. After considering the evidence presented, the twelve person jury found defendant guilty as charged. Defendant filed a motion for new trial on April 15, 2009, and the trial judge denied this motion on April 17, 2009. Thereafter, the trial court sentenced defendant to forty years imprisonment at hard labor, with the first twenty years to be served |swithout benefit of parole, probation, or suspension of sentence. Defendant now appeals.

FACTS

In January of 2008, Detective Ashton Gibbs of the Gretna Police Department was involved in a narcotics investigation which targeted defendant. Specifically, on January 22, 2008, Detective Gibbs was contacted by a confidential informant who told him that defendant was selling heroin out of room 20 of the Oasis Motel in Gretna. That afternoon, the confidential informant, under Detective Gibbs’ constant surveillance, went to the Oasis Motel and purchased heroin from defendant. Immediately after the purchase, the confidential informant met with Detective Gibbs and turned over the four foil packets of heroin that he had just purchased.

As part of his investigation, Detective Gibbs met with a member of the motel staff and was given a registration card with defendant’s name on it for room 20. Although John Holmes’ name was also on the registration card, he was not the subject of the investigation. In addition, the officers conducted surveillance of the motel and observed defendant entering and exiting room 20. Defendant was also seen entering a Honda Accord.

After defendant’s presence was corroborated at the motel, Detective Gibbs, on January 23, 2008, applied for and obtained a search warrant for room 20. Thereafter, Detective Gibbs, along with assisting members of the major crimes task force, went to the motel to execute the warrant. Upon arrival, Detective Gibbs noticed that the black Honda Accord was missing from the parking lot. However, the vehicle was located at a convenience store about one block from the motel. Defendant was seated in the driver’s seat of the vehicle. Detective Gibbs approached defendant, identified himself as a police officer, and asked defendant |4where he was staying. Defendant replied that he was staying in room 20 at the Oasis Motel. Detective Gibbs told defendant he was the subject of a criminal investigation and that a search warrant had been issued for room 20 of the Oasis Motel. For the officers’ safety, defendant was detained using handcuffs, and a pat down of his outer clothing was conducted for weapons. Defendant was advised of his constitutional rights, and he acknowledged that he understood his rights. Defendant was placed in the rear of a police unit and was transported to the Oasis Motel.

Defendant was given a copy of the warrant and was asked if he had a key for room 20. Defendant said he had a key in his pants’ pocket. Detective Gibbs retrieved defendant’s key chain, which contained a gold key and a black key. The gold key was used to gain access to room 20. A security sweep of the room revealed no one was present in the room. Thereafter, the room was searched.

A black Sentry safe was found in the room. The black key recovered from defendant was used to open the safe. Inside the safe, a shaving cream can was found, and it contained a false compartment. The bottom of the can was unscrewed, and a clear plastic bag with brown powder substance was discovered inside the can. A bluish, felt bag with two more clear plastic bags containing a brown powder substance was also found inside the can. A preliminary field test determined this was heroin. Two digital scales and motel receipts were also found inside the safe. Defendant’s name appeared on some of the receipts. A clear plastic bag with a fíne white powder and a package of heavy duty aluminum were also found in the room.

After the search was completed, defendant was presented with the evidence against him and was advised that he was under arrest. A search incident to defendant’s arrest resulted in the seizure of $497 in currency from his pants’ |fipocket. Detective Gibbs testified that defendant was not able to offer an explanation of how this money was obtained. He testified that defendant stated he was currently unemployed and did not have any source of income.

Further testing confirmed that the brown powder substance was heroin. Also, the white powder was tested, and it was determined to be sodium bicarbonate, which is commonly used to cut drug products.

ASSIGNMENT OF ERROR NUMBER ONE

In this assigned error, defendant’s appellate counsel challenges the sentence imposed as constitutionally excessive. Defendant was convicted of possession with intent to distribute heroin. LSA-R.S. 40:966(B)(1) provides that the penalty for this offense is “imprisonment for not less than five nor more than fifty years at hard labor at least five years of which shall be served without benefit of probation, or suspension of sentence, and may, in addition, be required to pay a fine of not more than fifty thousand dollars.” In the present case, the trial court sentenced defendant to forty years at hard labor, with the first twenty years to be served without benefit of parole, probation, or suspension of sentence. Defendant now contends that his sentence is excessive noting that he was not a “big time drug dealer” who deserved a sentence of forty years. To support this argument of excessive sentence, defendant points out that the trial court’s only justification for the sentence was that any lesser sentence would deprecate the seriousness of the crime, that the trial court failed to consider any mitigating circumstances, and that the sentence was disproportionate to the crime and his history.

Defendant did not file a motion to reconsider sentence in the trial court. Rather, at the time of sentencing, counsel noted an oral objection to the sentence imposed, but he failed to give any basis for his objection. The failure to file a motion to reconsider sentence, or to state the specific grounds upon which the | (¡motion is based, limits a defendant to a review of the sentence only for constitutional excessiveness. State v. Ragas, 07-3 (La.App. 5 Cir. 5/15/07), 960 So.2d 266, 272, writ denied, 07-1440 (La.1/7/08), 973 So.2d 732, cert. denied, — U.S. —, 129 S.Ct. 55, 172 L.Ed.2d 56 (2008); see also LSA-C.Cr.P. art. 881.1.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive, even when it is within the applicable statutory range, if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Warmack, 07-311 (La.App. 5 Cir. 11/27/07), 973 So.2d 104, 109.

In reviewing a sentence for ex-cessiveness, the appellate court must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock the court’s sense of justice. The trial judge is afforded wide discretion in determining sentences, and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Berry, 08-151 (La.App. 5 Cir. 6/19/08), 989 So.2d 120, 131, writ denied, 08-1660 (La.4/3/09), 6 So.3d 767. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. Warmack, 973 So.2d at 109.

Based on our review of the record, we do not find that the trial court abused its wide discretion in imposing the forty year sentence on defendant. Before sentencing defendant, the trial judge requested that the State set forth defendant’s past criminal history for the record. The State provided that defendant pled guilty to manslaughter in 1992 and was convicted for attempted possession of cocaine in 1995. He also had prior arrests for aggravated battery,' aggravated assault, armed robbery, and possession of a firearm by a convicted felon. We further note that ^defendant had a significant amount of heroin in his motel room. Moreover, the scales, cutting agent, aluminum foil, motel receipts, and amount of the heroin indicate that defendant had an ongoing business involving the heroin.

Considering the amount of heroin as well as defendant’s criminal history, we find that the sentence imposed is not excessive and further that the trial court did not abuse its discretion in sentencing defendant to forty years imprisonment. Accordingly, this assigned error is without merit.

PRO SE ASSIGNMENT OF ERROR NUMBER ONE

On appeal, defendant challenges the trial court’s denial of his motion to suppress evidence and his motion to suppress statements.

At the suppression hearing, Detective Gibbs testified about the circumstances leading to the issuance of the search warrant as well as the circumstances surrounding defendant’s statements. According to Detective Gibbs, on January 22, 2008, he was contacted by a confidential informant who told him that defendant was residing and selling heroin out of room 20 of the Oasis Motel in Gretna. Deputy Gibbs testified that he had used this informant in the past, over six times, and that he had proven to be reliable. Deputy Gibbs acknowledged that the confidential informant was paid for the information given in this case.

Detective Gibbs met with the informant and presented him with a photograph of defendant. After viewing the photograph, the confidential informant positively identified defendant. Detective Gibbs then checked the confidential informant for money and contraband. Finding nothing, the detective supplied the informant with pre-recorded currency to facilitate a purchase of heroin from defendant at the Oasis Motel.

Under constant surveillance, the confidential informant proceeded to the Oasis Motel and met defendant outside of room 20. The informant had a short ^conversation with defendant and then defendant went inside the motel room. He returned a few seconds later, at which time Detective Gibbs observed a hand-to-hand transaction between defendant and the informant outside of the motel room. Using binoculars, Detective Gibbs observed the confidential informant retrieve currency from his pocket and hand it to defendant. He then saw defendant release something that was cuffed in his hand into the hand of the confidential informant. A few minutes later, the informant met Detective Gibbs at a pre-arranged location and gave him four foil packets containing a brown powder substance. A preliminary field test confirmed the substance was heroin.

Detective Gibbs testified that he returned to the Oasis Motel and continued to conduct surveillance on the room. He observed defendant exit the room and enter a black Honda Accord. Detective Gibbs followed the vehicle, but lost the vehicle due to traffic. Further, Detective Gibbs went to the motel management and inquired as to who registered for room 20. The detective received the registration card, which included defendant’s name.

On the following day, a search warrant was obtained for room 20. After arriving at the motel for execution of the warrant, Detective Gibbs observed that the black Honda Accord was missing from the parking lot. The detective spoke to the manager and learned that defendant had paid for the room through that day. The area was canvassed, and the black Honda Accord was found about a block away from the motel at a convenience store. Defendant was seated in the driver’s side of the vehicle.

Detective Gibbs approached defendant, identified himself as a police officer, identified who defendant was, and asked defendant where he was staying. According to Detective Gibbs, defendant responded that he was staying at the Oasis Motel in room 20. Defendant was advised that the officers had a search |9warrant for his motel room. Defendant was detained and advised of his Miranda rights. Detective Gibbs testified that defendant nodded his head to indicate he understood his rights and seemed capable of understanding his rights. The detective also testified that defendant did not ask to speak to an attorney or indicate that he did not want to speak to him.

Detective Gibbs testified that defendant was not under arrest at this point. Defendant was brought to the Oasis Motel and was given a copy of the search and seizure warrant. After being questioned about the key to the room, defendant stated that the key for the room was in his pocket, and this key was used to gain entry into room 20. Initially, a security sweep was conducted of the room, but no individuals were located inside the room. Thereafter, the room was searched.

During the course of the search, the officers retrieved a black safe that contained three plastic bags of a brown powder substance. A preliminary field test of the substance confirmed the presence of heroin. The officers also recovered motel receipts from the motel in defendant’s name, two digital scales, a clear plastic bag that contained a fine white powder, and a box of aluminum foil.

Defendant was advised of the evidence found inside the room and was arrested. A search incident to this arrest revealed approximately $497 in currency on his person. According to Detective Gibbs, defendant could not explain a source of this income. In addition to Detective Gibbs’ testimony, the State introduced the application in support of the warrant and the search warrant at the suppression hearing.

After considering the evidence presented, the trial judge denied the motion to suppress the evidence from the search warrant, finding there was probable cause for the issuance of the warrant. The trial judge also denied defendant’s motion to suppress statements. Defendant now challenges these denials.

\mMotion to Suppress Evidence

Defendant argues that there was no probable cause for the issuance of the search warrant because the warrant was based on Detective Gibbs’ misrepresentations. Defendant contends that there was no evidence that the confidential informant existed or that the transaction even took place. He appears to also challenge the informant’s reliability because Detective Gibbs could not recall specific details such as how many convictions resulted from this confidential informant’s tips in the past.

A search warrant may be issued only upon probable cause, to establish to the satisfaction of a magistrate, by the affidavit of a credible person, particularly describing the person or place to be searched and the things to be seized. LSA-C.Cr.P. art. 162. Probable cause for the issuance of a search warrant exists when the facts and circumstances within the affiant’s knowledge and of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched. State v. Lee, 05-2098 (La.1/16/08), 976 So.2d 109, 122, cert. denied, — U.S. —, 129 S.Ct. 148, 172 L.Ed.2d 39 (2008); State v. Johnson, 08-265 (La.App. 5 Cir. 8/19/08), 994 So.2d 595, 598.

In establishing that an informant’s tip is sufficient to provide a basis for a finding of probable cause, the affiant should include statements about the informant’s reliability and about the manner in which the informant obtained the information. Nevertheless, there are no specific tests to be satisfied by an informant’s tip, and the magistrate may issue the warrant when the totality of the |T circumstances, viewed in a commonsense and non-technical manner, establishes there is a fair possibility that contraband or evidence of a crime will be found in a particular place. State v. Barrilleaux, 620 So.2d 1317, 1320 (La.1993). An affidavit supporting a search warrant is presumed to be valid and the defendant has the burden of proving that the representations made in the affidavit are false. State v. Johnson, 994 So.2d at 599. The task for a reviewing court is simply to ensure that under the totality of the circumstances the magistrate had a “substantial basis” for concluding that probable cause existed. State v. Lee, 976 So.2d at 122.

In the present case, under the totality of the circumstances, we find that there was a substantial basis for concluding that probable cause to issue the search warrant existed. Detective Gibbs met with the confidential informant, who had provided him with valuable and reliable information in the past. The informant told Detective Gibbs that a black male named Joseph Dee was currently residing in room 20 of the Oasis Motel and was in possession of and distributing quantities of heroin. Detective Gibbs obtained a color photograph of defendant, and the confidential informant positively identified defendant as the subject currently distributing heroin.

Thereafter, Detective Gibbs checked the confidential informant for money or contraband and then supplied the informant with pre-recorded funds to facilitate a pur-chase of heroin. Detective Gibbs conducted continuous surveillance of the C.I. as he met defendant outside of room 20. After a brief conversation, defendant went inside the motel room and then returned a few seconds later. Detective Gibbs then observed a hand-to-hand transaction between defendant and the confidential informant. While under constant surveillance, the confidential informant went to a pre-arranged meeting place and gave Detective Gibbs four foil packets containing a brown powder substance. A preliminary field test revealed that the substance was |T ¿heroin. Detective Gibbs conducted a registration check of room 20 with the manager and learned that room 20 was registered to defendant.

We find that these facts and circumstances were sufficient to support the reasonable belief that defendant was staying at the motel and was distributing narcotics from that location, and that evidence of that offense or contraband might be found there. As such, the trial judge properly concluded that there was probable cause for issuing the search warrant.

Although defendant appears to challenge the reliability of the confidential informant because Detective Gibbs could not recall specific details, including how many convictions resulted from the informant’s tips, this case involved more than a tip from a confidential informant in determining probable cause. In the instant matter, Detective Gibbs personally observed a hand-to-hand transaction between defendant and the confidential informant. Further, although defendant complains that the affidavit was based on Detective Gibbs’ misrepresentations, defendant has failed to prove that the representations made in the affidavit are false. Based on the foregoing discussion, we find that the trial court did not abuse its discretion by denying the motion to suppress evidence obtained from the execution of the search warrant.

Motion to Suppress Statement

Defendant argues that the trial court erred in failing to suppress his inculpatory statements because he was not advised of his Miranda rights prior to the detective asking him questions. He also contends he did not answer these questions as stated by Detective Gibbs. The statements he challenges are that he resided in room 20 of the Oasis Motel and that he could not account for the $497 discovered on his person.

| ^Before an inculpatory statement is introduced at trial, the State must prove that the declarant was advised of his or her Miranda rights prior to custodial interrogation. Custodial interrogation means questioning initiated by law enforcement officers after a person has been deprived of his freedom of action in any significant way. Spontaneous and voluntary statements, not given as a result of police interrogation or compelling influence, are admissible in evidence without Miranda warnings even where a defendant is in custody. State v. Castillo, 389 So.2d 1307, 1310 (La.1980), cert. denied, 453 U.S. 922, 101 S.Ct. 3159, 69 L.Ed.2d 1004 (1981); State v. Pardon, 97-248 (La.App. 5 Cir. 10/15/97), 703 So.2d 50, 62, writ denied, 97-2892 (La.3/20/98), 715 So.2d 1207. The warnings required by Miranda apply only when a person is questioned by law enforcement after he has been taken into custody or otherwise deprived of his freedom of action in any significant way. State v. Charles, 09-0433 (La.9/4/09), 16 So.3d 1166, 1168.

In the present case, defendant was not subjected to custodial interrogation or its equivalent when Deputy Gibbs merely approached defendant, who was seated in his vehicle at a convenience store, identified himself as a police officer, and asked defendant where he was staying. There is nothing in the record to indicate that Detective Gibbs asserted any type of authority over defendant before defendant responded to his questions. The record does not show that he had his weapon drawn, that any police unit’s lights had been activated, that he physically contacted defendant, or even ordered defendant to stop. Defendant was not arrested or deprived of his freedom of action in any significant way at the time he admitted to staying in room 20 of the Oasis Motel; therefore, there was no error in the trial court’s admission of this statement despite the fact that Miranda warnings had not yet been given. At the time of the second statement, in which defendant | ucould not explain a source of currency found on his person, defendant had been arrested and advised of his Miranda rights. Therefore, there was no error in the admission of this second statement by the trial judge.

Although defendant claims statements were made, Detective Gibbs testified that these statements were made. no A determination of credibility lies within the sound discretion of the trial court and should not be disturbed unless clearly contrary to the evidence. State v. Vessell, 450 So.2d 938, 943 (La.1984).

Based on the foregoing discussion, the trial court did not abuse its discretion in denying defendant’s motion to suppress the statements. Accordingly, the arguments raised by defendant in this assigned error are without merit.

PRO SE ASSIGNMENT OF ERROR NUMBER TWO

Defendant argues he was illegally arrested in violation of his Fourth Amendment rights. Specifically, he argues that his detention at the convenience store, his placement in the police unit, and the transportation to the motel amounted to an illegal arrest.

We first note that defendant did not challenge the arrest as illegal in the trial court, and further, there is no indication in the record that the legality of defendant’s arrest was ever made a part of defendant’s motion to suppress. Defendant is apparently raising this issue for the first time on appeal. As such, this issue has not been properly preserved for appellate review. LSA-C.Cr.P. art. 841. Moreover, even if the issue had been properly preserved for appellate review, we find it to be without merit.

A warrant to search premises for contraband, founded on probable cause, implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted. Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981). Further, the controlled buy witnessed by Detective Gibbs between the confidential informant and defendant on the previous day also provided the police with sufficient probable cause to arrest defendant even though no arrest warrant was obtained. See State v. Brown, 09-0657 (La.App. 4 Cir. 10/14/09), 23 So.3d 989.

In the present case, defendant was not arrested until the heroin was found in the motel room. Defendant admitted that he was residing in the room at the motel, and he was seen entering and exiting the room during surveillance of the room. In addition, defendant’s name was on the registration card for the motel room, receipts were found in the room with defendant’s name, and defendant had keys that opened the door to the room and to the safe that was found inside of the room. After the heroin was discovered and a field test determined it was indeed heroin, defendant was properly arrested, especially considering the evidence that tied him to the room. Accordingly, this alleged error is likewise without merit.

PRO SE ASSIGNMENT OF ERROR NUMBER THREE

In this assigned error, defendant argues that he was prejudiced when the State brought attention to a previous alleged investigation without following the procedure set forth in LSA-C.E. art. 404(B)(1). He contends that the investigation was based on distribution of narcotics and that the jury was led to believe he was a drug dealer. Defendant is apparently arguing that this line of questioning improperly allowed the introduction of other crimes evidence.

During direct examination of Detective Gibbs, the prosecutor asked Detective Gibbs the following question regarding the investigation: “Now, back in January, particularly January 22nd, 2008, were you participating with the major drug task force in a narcotics investigation at that motel?” After Detective Gibbs responded affirmatively, the prosecuting attorney asked the detective who was the target of his investigation. Detective Gibbs responded that defendant was the |ifitarget. At this time, defense counsel objected to the reference to defendant being the target of the investigation. Also during the examination, the prosecutor questioned Detective Gibbs about John Holmes, whose name was also on the registration card of the motel. The prosecutor asked Detective Gibbs if he had “any information regarding John Holmes being involved in the distribution or illegal trafficking of narcotics, particularly heroin?” Detective Gibbs responded, “No.” The prosecutor then confirmed that the sole purpose for Detective Gibbs being at the motel was because of defendant. Defendant claims that he was prejudiced by this improper admission of other crimes evidence because it led the jury to believe that he was a career drug dealer.

This testimony challenged by defendant is not other crimes evidence, nor does it imply that defendant committed any crimes in the past. Rather it simply describes information regarding the matter defendant was currently on trial for. Defendant has shown no prejudice by this testimony. Accordingly, this assigned error is without merit.

PRO SE ASSIGNMENT OF ERROR NUMBER FOUR

In this assigned error, defendant argues that he cannot file an adequate appeal brief due to incomplete transcripts. Specifically, defendant contends that the opening statements and closing arguments are omitted from the transcripts.

LSA-C.Cr.P. art. 914.1(A) states in pertinent part that “[t]he party making the motion for appeal shall, at the time the motion is made, request the transcript of that portion of the proceedings necessary, in light of the assignment of errors to be urged.” Portions of the transcript that do not relate to anticipated assignment of errors shall not be furnished to a party for purposes of the appeal. LSA-C.Cr.P. art. 914.1(B). Consequently, the party making the motion for appeal bears the burden of furnishing the appellate court with a record of the trial proceedings needed for |17review; and therefore, any inadequacy of the record is imputable to the appellant. State v. Shaw, 00-1051 (La.App. 5 Cir. 2/14/01), 785 So.2d 34, 42, writ denied, 01-0969 (La.2/8/02), 807 So.2d 861; State v. Ronquille, 09-81 (La.App. 5 Cir. 5/26/09), 16 So.3d 411, 416.

In the present case, the opening statements and closing arguments were apparently not requested because counsel did not anticipate nor include any arguments regarding opening statements or closing arguments on appeal. It is noted that the court reporter reflects in the transcript that there were no objections lodged regarding the opening statement of the State. Further, the court reporter reflects in the transcript that there were no objections to the State’s closing argument or argument in rebuttal. Defendant cannot demonstrate prejudice because no objections were made during opening statement and closing argument to preserve any such challenges. Absent a showing of prejudice based on the missing portion of the transcripts, a defendant will not be entitled to relief because of an incomplete record. State v. Castleberry, 98-1388 (La.4/13/99), 758 So.2d 749, 773, cert. denied, 528 U.S. 893, 120 S.Ct. 220, 145 L.Ed.2d 185 (1999). Accordingly, this assigned error lacks merit.

ERROR PATENT DISCUSSION

We have also conducted a review of the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review reveals that defendant received an illegal sentence.

LSA-R.S. 40:966(B)(1) provides that for possession with intent to distribute heroin a defendant is subject to “imprisonment for not less than five nor more than fifty years at hard labor at least five years of which shall be served without benefit of probation, or suspension of sentence, and may, in addition, be required to pay a |1Rfine of not more than fifty thousand dollars.” In the present case, defendant was sentenced to forty years at hard labor, with the first twenty years to be served without benefit of parole, probation, or suspension of sentence. The statute does not provide for the prohibition of parole. Pursuant to LSA-C.Cr.P. art. 882(A), we hereby amend defendant’s sentence to delete the prohibition on parole and remand the case to the trial court for correction of the commitment and the minute entry.

For the reasons set forth herein, defendant’s conviction is affirmed. His sentence is hereby amended as indicated above, and the matter is remanded to the trial court with instructions.

AFFIRMED AS AMENDED; REMANDED WITH INSTRUCTIONS.

      . Defendant also notes that the identification procedure used when showing the photograph of defendant to the confidential informant was unduly suggestive and that there was a substantial likelihood of misidentification. This argument is without merit. The identification of defendant made by the confidential informant was not admitted as evidence at trial. Moreover, the suppression hearing involved suppression of the evidence obtained from the search warrant and suppression of statements only.

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


author: MARION F. EDWARDS, Judge.

text:
    Jeffrey BELTON v. Ann R. BAEHR, Troy G. Broussard, Troy G. Broussard, J.D., a Professional Law Corporation, and Dr. Richard Bucci.
    No. 09-CA-342.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 23, 2010.

      Michael S. Fawer, Smith & Fawer, L.L.C., Covington, Louisiana, for Plaintiff'Appellant.
    Nancy J. Marshall, Deutsch, Kerrigan & Stiles, L.L.P., Marc D. Winsberg, Schone-kas, Winsberg, Evans & McGoey, L.L.C., New Orleans, Louisiana, for Defendants/Appellees.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and JUDE G. GRAVOIS.
   MARION F. EDWARDS, Judge.

| ¡Plaintiff/appellant, Jeffrey Belton, filed a petition for damages for legal malpractice and tortuous misrepresentations. The underlying claim is that Mr. Belton had an action for medical malpractice against several physicians and West Jefferson Medical Center (“WJMC”) for injuries resulting from treatment for a bite from a brown recluse spider Mr. Belton suffered while working on his job as a postal worker. Mr. Belton was bitten on the temple by the spider and sought medical treatment at WJMC. He alleges that a misdiagnosis resulted in neurological toxic damages to the facial and cranial nervous system.

Mr. Belton enlisted the services of Troy B. Broussard, A Professional Law Corporation (“the Broussard Firm”) in pursuing his claim against WJMC and the attending physicians, as well as his workers’ compensation claim. Mr. Belton initially met with Mr. Broussard in March 2002, about one month after the incident. Mr. Broussard accepted the representation and assigned Ann R. Baehr, a new associate with the Broussard Firm, as lead counsel for Mr. Belton.

| sAccording to Mr. Belton’s petition, about one year later, Ms. Baehr advised Mr. Belton that the medical malpractice action had been filed and she was awaiting the expert physician’s report and would proceed with the matter when the report was obtained. However, in November 2003, Ms. Baehr advised Mr. Belton that no suit had been filed because the medical expert advised the firm that Mr. Belton did not have a cause of action in medical malpractice. Mr. Belton requested the return of his file from the Broussard Firm.

Subsequently, in December 2004, Mr. Belton discovered that the letter from the medical expert giving his medical opinion that there was no medical malpractice had been written and backdated about one year at the request of Ms. Baehr just before she returned the file to Mr. Belton. Mr. Belton filed this legal malpractice action in December 2005 naming Troy Broussard, Ann Baehr, and the Broussard Firm as defendants.

Mr. Belton also names Dr. Richard Buc-ci, a practicing physician in Mississippi, as a defendant in the lawsuit. According to the petition, Ms. Baehr induced Dr. Bucci, a long-time friend, to back date a letter to December 2002 in which Dr. Bucci opined that Mr. Belton had not suffered provable damages as a result of any medical malpractice by the treating physicians. This occurred in 2003 shortly before the prescriptive period on the legal malpractice claim ran out. Ms. Baehr then used that letter to convince Mr. Belton that he had no cause of action in medical malpractice.

Mr. Broussard, Ms. Baehr, and the Broussard Firm filed exceptions of prescription and peremption with their answer to the lawsuit. Dr. Bucci filed exceptions of prescription and no cause of action and a motion for summary judgment.

| ¿Subsequently, Mr. Broussard, Ms. Baehr, and the Broussard Firm filed a motion for summary judgment. The memorandum in support of that motion re-urged the exception of prescription and additionally asserted that there was no underlying claim for medical malpractice; therefore, there was no claim for legal malpractice. Dr. Bucci filed a second exception of prescription and motion for summary judgment adopting the motion, memorandum, statement of facts, and all exhibits submitted in connection with the motion for summary judgment of his co-defendants.

After a hearing, the trial court rendered a judgment granting the motion for summary judgment and dismissing Mr. Brous-sard, Ms. Baehr, the Broussard Firm, and Dr. Bucci from the action with prejudice. A timely appeal was taken from that judgment by Mr. Belton.

The undisputed facts are that the alleged malpractice cause of action arose in February 2002. Legal representation was accepted by Mr. Broussard, Ms. Baehr, and the Broussard Firm in March 2002. No lawsuit for medical malpractice was filed by the defendants, and the medical malpractice action prescribed in February 2003. Ms. Baehr sent a written formal notice of withdrawal from Mr. Belton’s case on October 28, 2003, which stated that “[w]e do not have a sufficient amount of information in order to proceed with your case. Please be advised that it is in your best interest to retain new counsel of record as soon as possible.” In November 2003, Mr. Belton requested and received a legal complaint form from the Louisiana Attorney Disciplinary Board. However, Mr. Belton used it as a threat to obtain his legal file and did not file a formal complaint. In December 2003, Mr. Belton received his legal records from the Brous-sard Firm that included |sa letter from Dr. Bucci of Pascagoula, Mississippi, dated December 2, 2002, stating that he reviewed the medical record and found no malpractice. The letter was actually written in November 2003 and backdated. Mr. Bel-ton discovered that the letter was backdated in December 2004. This legal malpractice suit was filed on December 1, 2005.

LAW AND DISCUSSION

While all parties argue the merits of prescription and the cause of action in medical malpractice, we find that only the issue of prescription is before this Court. Although the judgment states that it is a grant of a motion for summary judgment, it is limited to prescription. We find the judgment on appeal, despite its language, is a grant of an exception of prescription. It appears the trial court found Mr. Bel-ton’s actions against all defendants had prescribed and, therefore, did not consider or rule on the motion for summary judgment on the issue of whether there is an underlying action for medical malpractice.

Louisiana jurisprudence provides that, to establish a claim for legal malpractice, a plaintiff must prove: 1) the existence of an attorney-client relationship; 2) negligent representation by the attorney; and 3) loss caused by that negligence. Louisiana law sets forth two peremptive limits within which to bring a legal malpractice action, namely one year from the date of the alleged act or one year from the date of discovery with a three-year limitation from the date of the alleged act, omission, or neglect to bring such claims.

Therefore, a legal malpractice is not prescribed if it was brought within one year of the date of discovery and the record shows that the claimant was | ^reasonably unaware of malpractice prior to the date of discovery and the delay in filing suit was not due to willful, negligent, or unreasonable action of the client.

As the Louisiana Supreme Court explained:

The discovery rule, which our jurisprudence delineates as the fourth category of contra non valentem, is an equitable pronouncement that statutes of limitation do not begin to run against a person whose cause of action is not reasonably known or discoverable by him, even though his ignorance is not induced by the defendant....

Mr. Belton acknowledges that he knew when his file was returned to him in 2003, after three requests and a threat to file a complaint with the disciplinary commission, that no suit had been filed on his behalf and that the letter from Dr. Bucci stated that no medical malpractice occurred. However, he asserts that, on December 18, 2004, Cynthia Leuba called to tell him that she had actually typed the letter for Dr. Bucci and that the letter was backdated at the request of Ms. Baehr to avoid a legal malpractice suit.

The record contains Ms. Leuba’s affidavit in which she states that she was formerly married to Dr. Richard Bucci. She stated that Ms. Baehr made “numerous calls” in the fall of 2003 requesting that Dr. Bucci review a case involving Jeffery Belton, who had been bitten by a brown recluse spider. Ms. Leuba further attested that

on at least one of these telephone calls, Ms. Baehr discussed with me her need to get a letter from my husband regarding her client, Jeffrey Belton, because Belton was threatening to file a complaint against her with the Bar Association for allowing his case to prescribe. She urged me to remind Richard to write the letter.

The affidavit also states that she typed the letter on November 28, 2003 but backdated it to December 3, 2002 on the specific instructions of Dr. Bucci. On the first week in December 2003, she and her husband traveled from their home in 17Pascagoula, Mississippi to the Beau Ri~ vage Casino in Biloxi, Mississippi where they met with “Ms. Baehr and her fiancee, Troy.” During that visit, Ms. Baehr and Dr. Bucci talked privately, and the letter was delivered at that time.

Under our law, the “date of discovery” from which prescription or peremption begins to run is defined as the date on which a reasonable man in the position of the plaintiff has, or should have, either actual or constructive knowledge of the damage, the delict, and the relationship between them sufficient to indicate to a reasonable person he is the victim of a tort and to state a cause of action against the defendant.

A claimant’s mere apprehension that something may be -wrong is insufficient to commence the running of peremption unless the claimant knew or should have known through the exercise of reasonable diligence that his problem may have been caused by acts of malpractice. Thus, our inquiry is the reasonableness of Mr. Belton’s inaction in not filing the legal malpractice suit until 2005, in light of his education and intelligence, and the nature of the defendant’s conduct.

Mr. Belton argues that he “discovered” the malpractice on December 18, 2004 when he learned that the opinion letter written by Dr. Bucci was backdated. Before this, he knew that the medical malpractice action had prescribed but, because he trusted his attorneys and Dr. Bucci, he believed they had a medical opinion a year before that opined he had no case in medical malpractice. It was not until he discovered that Dr. Bucci and Ms. Baehr had conspired against him that he realized he had an action in legal malpractice.

Neither Ms. Baehr nor Mr. Broussard dispute the fact that the letter was backdated. Their argument is that the backdating of the letter is irrelevant because Ms. Baehr had actually gotten an oral opinion from Dr. Baehr the year before the | ¿letter was -written. They further argue that the opinion was confirmed by one of Mr. Belton’s own experts at the time of the hearing on the motions. We are not impressed by this argument. The merits of the medical malpractice action are not before this Court. Further, failure to file the medical malpractice action is not the only basis for Mr. Belton’s action in legal malpractice. Mr. Belton also points out that Ms. Baehr and Mr. Broussard may have breached a fiduciary duty they owed to him by misrepresenting Dr. Bucci’s letter and by failing to keep him reasonably informed.

In no other agency relationship is a greater duty of trust imposed than in that involving an attorney’s duty to his client. As our supreme court explained:

In no other agency relationship is a greater duty of trust imposed than in that involving an attorney’s duty to his client.... “Louisiana law recognizes that an attorney’s paramount duty is, and must be, to his client.” This fiduciary duty obligates the attorney to exercise at least that degree of care, skill, and diligence exercised by prudent attorneys practicing in his community of locality.... Though he is not required to exercise perfect judgment in every instance, his license to practice and his contract for employment hold out to his client that he possesses certain minimal skills, knowledge, and abilities.... It so follows that “any professional misconduct, unreasonable lack of skill or fidelity in professional or fiduciary duties” constitutes malpractice....
The law leaves no uncertainty in defining the character of duty which an attorney owes to his client. The relation of attorney and client is more than a contract. It superinduces a trust status of the highest order and devolves upon the attorney the imperative duty of dealing with the client only on the basis of the strictest fidelity and honor.

In the matter before us, Mr. Belton knew that his lawsuit for medical malpractice was not timely filed. However, the admitted deception and misrepresentation of Ms. Baehr, Mr. Broussard, and Dr. Bucci to Mr. Belton was a violation of the trust Mr. Belton placed in his attorneys. We find that the date of discovery for purposes of prescription was December 18, 2004, when Mr. Belton ^became aware of this deception. Accordingly, we find the legal malpractice action was not prescribed, and the trial court erred in so ruling.

We also find that the action against Dr. Richard Bucci is not prescribed. The action against Dr. Bucci sounds in tort and is subject to a one-year prescriptive period, which runs from the day injury or damage is sustained. Mr. Belton alleges fraud and misrepresentation claims against Dr. Bucci relative to his backdating of the opinion letter on the subject of medical malpractice. Because prescriptive statutes are strictly construed, our courts have recognized a jurisprudential exception to prescription. The doctrine of contra non valentem, which means that prescription does not run against a person who could not bring his suit, serves to soften the harshness of the strict prescriptive periods. There are four instances in which the doctrine of contra non valentem applies. Two of these instances are where the debtor himself had done some act effectually to prevent the creditor from availing himself of his cause of action and the discovery rule previously cited in this opinion. We believe the doctrine of contra non valentem applies in this instance. Given the circumstances of the case, we find that the action against Dr. Bucci is not prescribed.

For the foregoing reasons, we find the trial court erred in finding Mr. Belton’s actions against Ms. Baehr, Mr. Broussard, the Broussard Firm, and Dr. Bucci have prescribed. Accordingly, we reverse that judgment and remand the matter for further proceedings.

REVERSED AND REMANDED.

      . The pleading is entitled, “Motion for Summary Judgment.” However, it appears from the memorandum in support of the motion and the reasons argued in favor of summary judgment that Mr. Broussard et al. also intended to file an exception of prescription.

      . Costello v. Hardy, 03-1146 (La.1/21/04), 864 So.2d 129, 138.

      . La. R.S. 9:5605(A).

      . Teague v. St. Paul Fire and Marine Ins. Co., 07-1384 (La.2/1/08), 974 So.2d 1266, 1274.

      . Id. at 1274 (citations omitted) (emphasis as found in original).

      . Teague, 974 So.2d at 1275.

      . Campo v. Correa, 01-2707 (La.6/21/02), 828 So.2d 502, 511.

      . Rule 1.4 of the RPC.

      . Scheffler v. Adams and Reese, LLP, 06-1774 (La.2/22/07), 950 So.2d 641, 652.

      . Teague, 974 So.2d at 1271 (citations omitted).

      . La. C.C. art. 3492.

        . Harvey v. Dixie Graphics, Inc., 593 So.2d 351, 354 (La.1992).