author: PICKETT, Judge. AMY, Judge., dissenting.

text:
    Elizabeth SOILEAU v. WAL-MART STORES, INC.
    18-284
    Court of Appeal of Louisiana, Third Circuit.
    December 6, 2018
    Michael B. Miller, Jacqueline K. Becker, Attorneys at Law, Post Office Drawer 1630, Crowley, LA 70527-1630, (337) 785-9500, COUNSEL FOR PLAINTIFF-APPELLANT, Elizabeth Soileau
    Keith J. Landry, Allen & Gooch, A Law Corporation, Post Office Box 81129, Lafayette, LA 70598-1129, (337) 291-1000, COUNSEL FOR DEFENDANT-APPELLEE, Wal-Mart Associates, Inc. and/or Wal-Mart Stores, Inc. D/B/A Wal-Mart Stores, Inc. and/or All Its Subsidiaries and Affilliates
    Court composed of Sylvia R. Cooks, John D. Saunders, Marc T. Amy, and Elizabeth A. Pickett, John E. Conery, Judges.
   PICKETT, Judge.

A workers' compensation claimant appeals a judgment that allows her employer to require her to use a pharmacy it owns and operates for all of her prescription needs. For the following reasons, we reverse the judgment.

FACTS

In June 2008, Elizabeth Soileau was injured in the course and scope of her employment with Wal-Mart Stores, Inc. In September 2016, Ms. Soileau obtained a judgment against Wal-Mart ordering that she "is entitled to prescriptions of Hydrocodone, Lyrica, Celebrex, and Voltaren gel." The following June, the supreme court decided Burgess v. Sewerage & Water Board of New Orleans , 16-2267 (La. 6/29/17), 225 So.3d 1020, in which it held that Louisiana workers' compensation laws do not allow an employee to choose the pharmacy she wants to use for her prescription needs. Two months later, Wal-Mart notified Ms. Soileau that she could no longer use the pharmacy she was using for her prescriptions and that she could only use "a Wal-Mart or Sam's Club Pharmacy" for her future prescriptions needs.

After Wal-Mart failed to fill two of the prescriptions that are the subject of the September 2016 judgment, Ms. Soileau filed a motion seeking to compel Wal-Mart to designate a pharmacy other than Wal-Mart or Sam's Club for her prescriptions. She acknowledged in her motion that the Burgess decision authorized Wal-Mart to require her to use a specific pharmacy but argued that Wal-Mart's requirement that she use only pharmacies it owns and operates exceeds the scope of Burgess for a number of reasons, e.g., it created a conflict of interest for pharmacy personnel between its employer and her.

Wal-Mart opposed Ms. Soileau's motion, arguing that Burgess does not restrict an employer's authority to designate a pharmacy, that any problems Ms. Soileau experiences with Wal-Mart or Sam's Club pharmacy services can be addressed under La.R.S. 23:1201(E), and that she previously used its pharmacy for her prescription needs. For reasons urged by Wal-Mart, the workers' compensation judge (WCJ) denied Ms. Soileau's motion.

Ms. Soileau filed a writ application with this court, seeking reversal of the WCJ's judgment. This court denied the writ application, finding the judgment "addresse[d] the merits of the only remaining matters" pending before the workers' compensation court and instructed Ms. Soileau to comply with the rules applicable to appeals. Ms. Soileau then appealed the WCJ's judgment.

ASSIGNMENTS OF ERROR

In her sole assignment of error, Ms. Soileau urges that "[t]he [WCJ] erred in expanding the application of Burgess v. Sewerage & Water [Board] of New Orleans , 16-2267 (La. 6/29/2017), 225 So.3d 1020, to allow an employer to force its employee in a workers' compensation case to receive pharmaceutical treatment at its own facility."

DISCUSSION

Is a Claim at Issue?

Wal-Mart argues that Ms. Soileau does not present a claim that needs to be decided. This argument is based on the fact that she testified at trial that two prescriptions she sought to have filled at Wal-Mart's pharmacy were not filled; however, she does not seek an order that the prescriptions be filled and that she be awarded penalties and attorney fees.

In Abbott v. Parker , 259 La. 279, 308, 249 So.2d 908, 918 (1971), the supreme court explained that a justiciable controversy exists, when "an existing actual and substantial dispute, as distinguished from one that is merely hypothetical or abstract, and a dispute which involves the legal relation of the parties who have real adverse interests." Ms. Soileau presents an actual dispute-whether Wal-Mart has the right to require that she obtain her prescriptions from its pharmacy, and she seeks relief in the form of a judgment ordering Wal-Mart to designate a pharmacy other than one that it owns to handle her prescription needs. Therefore, her claim presents a justiciable issue.

Conflict of Interest

In Burgess , the supreme court determined that the legislature granted workers' compensation claimants the right to choose their treating physician, La.R.S. 23:1121(B), but not the right to choose their pharmacy. The court considered the split among the appellate courts on this issue and adopted the reasoning set forth by this court in Sigler v. Rand , 04-1138 (La.App. 3 Cir. 12/29/04), 896 So.2d 189. Distinguishing a claimant's right to choose her physician from the right to choose her pharmacy, the supreme court observed:

Reliance on jurisprudence concerning choice of physician is misguided. Unlike La. R.S. 23:1121(B) governing choice of physician, the legislature has not afforded the employee an absolute right to select a pharmacy under La. R.S. 23:1203(A) . This distinction is logical considering the importance of the doctor-patient relationship. Unlike a patient's personal relationship with his doctor, there is no meaningful difference relative to which pharmacy is used to dispense a prescription drug that would mandate employee choice under the LWCA.

Burgess , 225 So.3d at 1027 (emphasis added). The court further observed that regardless of what pharmacy the employee used, the medication was whatever her physician ordered.

In reaching this conclusion, the supreme court examined the following directives outlined by the legislature as to how workers' compensation laws are to be construed:

(1) The provisions of this Chapter are based on the mutual renunciation of legal rights and defenses by employers and employees alike; therefore, it is the specific intent of the legislature that workers' compensation cases shall be decided on their merits.
(2) Disputes concerning the facts in workers' compensation cases shall not be given a broad, liberal construction in favor of either employees or employers; the laws pertaining to workers' compensation shall be construed in accordance with the basic principles of statutory construction and not in favor of either employer or employee .
3) According to Article III, Section 1 of the Constitution of Louisiana, the legislative powers of the state are vested solely in the legislature; therefore, when the workers' compensation statutes of this state are to be amended, the legislature acknowledges its responsibility to do so. If the workers' compensation statutes are to be liberalized, broadened, or narrowed, such actions shall be the exclusive purview of the legislature .
La. R.S. 23:1020.1(D) (Emphasis added). To extend the legislatively-granted employee choice of treating physician to include the choice of pharmacy can only be accomplished by giving an impermissibly expansive reading to the provisions of La.R.S. 23:1203(A) and La. R.S. 23:1121, thus broadening the employee's rights in contravention of La.R.S. 23:1020.1(D).
Thus, while the injured employee is entitled to choose his treating physician under the LWCA, we hold the law does not provide the employee a right to choose a specific pharmaceutical provider....
It is important to recognize that the LWCA gives the employee protections to ensure the employer satisfies its obligations under La. R.S. 23:1023. If an injured employee experiences any delays or other discernable deficiencies in filling his prescriptions through the employer-chosen pharmacy, constituting a violation of the employer's duty under La. R.S. 23:1203(A), the employee has a remedy for penalties pursuant to La. R.S. 23:1201(E).

Id. at 1028.

Contrary to Wal-Mart's claim, the issue before us is not the issue decided in Burgess . Ms. Soileau does not seek to choose her own pharmacy-she seeks to have Wal-Mart choose a pharmacy that it does not own and operate. Ms. Soileau contends that Wal-Mart's designation of itself as her pharmacy created a conflict of interest. We agree. The conflict is between Wal-Mart's duty to Ms. Soileau and its own self-interest. A Wal-Mart pharmacist is a healthcare provider, La.R.S. 23:1021(6) ; consequently, Wal-Mart designated itself as Ms. Soileau's healthcare provider. As discussed in Burgess , Wal-Mart's pharmacist will fill her prescriptions with the same medication any other pharmacist would, yet authorization of the prescription is in Wal-Mart's discretion. Thus, a concurrent conflict of interest exists here with the pharmacy staff, including the pharmacist, having conflicting obligations and loyalties to their employer and their customer.

The conflict of interest herein also restrains Ms. Soileau's attorneys' ability to obtain information from Wal-Mart's designated pharmacy when Wal-Mart does not authorize the pharmacy to fill a prescription. See Rules of Prof.Conduct, Rule 4.2, which prohibits an attorney from communicating with persons known to be represented by counsel about the subject of the representation and without the consent of their counsel. Ms. Soileau's attorneys urge that this prohibition prejudices her ability to determine why prescriptions are not filled and whether she has a claim for penalties and attorney fees against Wal-Mart, as well as her ability to prove such a claim. The attorneys can no longer talk directly to pharmacy personnel to inquire why a prescription was not authorized, and, even if they could, there is a real concern they could not get an accurate answer from Wal-Mart's own employees.

In Burgess , the supreme court determined that the workers' compensation laws do not grant the claimant the right to choose the pharmacy. In doing so, the court did not determine that an employer can designate itself as a workers' compensation claimant's pharmacy. Indeed, the legislature has not given the employer "an absolute right to select a pharmacy," just as it "has not afforded the employee" that right. Burgess , 225 So.3d at 1027.

The supreme court pointed out that our workers' compensation laws are not to be construed "in favor of either employer or employee." Id. Nonetheless, that is exactly what Wal-Mart seeks to do here because, undoubtedly, it will derive financial gain by requiring its workers' compensation claimants to fill all their prescriptions in its pharmacies. Though the supreme court found the distinction between "the importance of the doctor-patient relationship" and the pharmacist-patient relationship to be logical, stating "there is no meaningful difference relative to which pharmacy is used to dispense a prescription drug that would mandate employee choice under the LWCA," it did not consider specifically the issues presented when an employer designates itself as a workers' compensation claimant's pharmacy. Id. at 1027. For these reasons, we hold that Wal-Mart's conflict of interest between its self-interest and its duty to Ms. Soileau prohibits it from designating itself or Sam's Club as the only pharmacy Ms. Soileau can use for her prescription needs.

DISPOSITION

For the reasons discussed above, the judgment of the WCJ is reversed, and Wal-Mart Stores, Inc. is ordered to designate a pharmacy other than a Wal-Mart Stores, Inc. or Sam's Club Pharmacy to handle Elizabeth Soileau's prescription needs. All costs are assessed to Wal-Mart Stores, Inc.

REVERSED.

Amy, J., dissents and assigns reasons.

Conery, J., dissents for reasons assigned by Judge Amy and for additional reasons assigned.

AMY, Judge., dissenting.

I respectfully dissent from the majority opinion as I find that an affirmation is required. Simply, I find that the direct language employed by the supreme court in Burgess v. Sewerage & Water Bd. of New Orleans , 16-2267 (La. 6/29/17), 225 So.3d 1020 is controlling. In its consideration of divergent circuit opinions, the supreme court explained that: "[W]e hold the Third and Fifth Circuits have correctly determined the employer has the right to choose the pharmacy to furnish necessary prescription drugs to an injured employee in a workers' compensation case." Id. at 1026. I do not find that the employer's choice of its own pharmacy to be of such a nature so as to require deviation from that broad principle.

Conery, J., dissents for the reasons assigned by Judge Amy and for the following additional reasons.

This matter came before the Worker's Compensation Judge on a Motion To Compel. The WCJ summarized the relief sought by the plaintiff in oral reasons and stated, "The plaintiff in this matter seeks an order from this Court ordering Walmart to approve her work-related prescriptions at a pharmacy rather than Walmart Stores, Incorporated, and within close proximity to her home [and] Dr. Blanda's office."

In denying the relief sought, the WCJ cited the supreme court case of Burgess v. Sewerage & Water Bd. Of New Orleans , 16-2267, (La. 6/29/17), 225 So.3d 1020, which held that the employer has the choice of pharmacy in a worker's compensation case.

The WCJ noted that if "Miss Soileau experiences any delays or deficiencies in filling her prescriptions, Miss Soileau has a remedy under Louisiana Revised Statute[s] 23:1201(E), which requires that all, "[M]edical benefits payable under this Chapter shall be paid within sixty days." In order to obtain relief, Miss Soileau would be required to file a Disputed Claim For Compensation (LWC-WC-1008) form pursuant to La.R.S. 23:1310.3(A) and La. R.S. 23:1203.1(J). No such claim was filed in this case.

A panel of this circuit in Fru-Con Const. Corp. v. Moore , 11-528 (La.App. 3 Cir. 12/14/11), 81 So.3d 202 was faced with a similar situation in connection with a petition for a declaratory judgment, and applied La.R.S. 23:1310.3(A). That statute provides in pertinent part: "A claim for benefits, the controversion of entitlement to benefits, or other relief under the Worker's Compensation Act shall be initiated by the filing of the appropriate form with the office of worker's compensation administration."

The Fru-Con panel then discussed the application of La.R.S. 23:1314, which provides in pertinent part:

A. The presentation and filing of the petition under R.S. 23:
1310.3 shall be premature unless it is alleged in the petition that:
....
(2) The employee has not been furnished the proper medical attention, or the employer or insurer has not paid for medical attention furnished; ...
....
C. The worker's compensation judge shall determine the petition is premature and must be dismissed before proceeding with the hearing of the other issues involved with the claim.

In this case, there has been no LWC-WC-1008 form filed by Miss Soileau in connection with her "motion to compel". Therefore, I would find that the "motion to compel" filed by Miss Soileau was without reasonable cause and was premature, pursuant to La.R.S. 23:1314. Furthermore, it was also improperly before the WCJ as Miss Soileau's motion to compel was not filed in conjunction with the required LWC-WC-1008 form as mandated by La.R.S. 23:1310.3(A).


source: Caselaw Access Project

author: AMY, Judge.

license: Public Domain

text:
    Nolton DALCOURT v. Thomas MOYER, et al.
    18-412
    Court of Appeal of Louisiana, Third Circuit.
    December 6, 2018
    Mark M. Bonura, 7733 Maple Street, New Orleans, LA 70118, (504) 598-3018, COUNSEL FOR DEFENDANTS/APPELLEES: Thomas Moyer, Sherry Craig Moyer
    John W. Tilly, Keaty & Tilly, LLC, 2701 Johnston Street, Suite 303, Lafayette, LA 70503, (337) 347-8995, COUNSEL FOR PLAINTIFF/APPELLANT: Nolton Dalcourt
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Marc T. Amy, Judges.
   AMY, Judge.

This matter involves a failed purchase agreement for the sale of a residence. The seller and the buyers each sought relief under the terms of the agreement, alleging that the opposing party was responsible for the failure of the transaction. The trial court found numerous deficiencies in the seller's performance, awarding the return of the deposit as well as attorney fees and costs to the buyers. By the resulting judgment, the trial court ordered the buyers to submit an itemization of their attorney fees and costs for review. The trial court further ordered that, in the event the parties cannot agree to the quantum of such an award, the buyers are to file a rule to show cause for such a determination. The seller appeals. Finding that this appeal was not taken from a final appealable judgment, however, we dismiss the appeal and remand for further proceedings.

Factual and Procedural Background

By a June 1, 2015 Louisiana Residential Agreement to Buy or Sell, the plaintiff, Nolton Dalcourt, agreed to sell his St. Martin Parish home to the defendants, Thomas Moyer and Sherry Craig. The agreement set forth a $455,000.00 purchase price and required the buyers to provide a $4,000.00 deposit. The parties further agreed to a fourteen-day inspection and due diligence period. They designated a June 30, 2015 closing date.

According to Mr. Moyer's testimony at trial, following the close of the inspection and due diligence period, he began to have concerns regarding the boundary lines of the property. He further became aware of a utility servitude burdening the property which, he contended, was not previously disclosed. The Moyers thereafter forwarded a June 27, 2015 addendum to Mr. Dalcourt, apprising him that: "Buyer elects to make contract void with return of four thousand ($4,000.00) deposit." The record indicates that Mr. Dalcourt did not sign that addendum and, as evidenced by the present proceeding, the sale was not completed. Upon the parties' competing claims for the deposit, the broker jointly representing the parties in the subject transaction disbursed the deposit to Mr. Dalcourt.

Mr. Dalcourt instituted this matter in January 2016, naming the Moyers as defendants and alleging that they were in default by refusing to purchase the residence. Referencing the purchase agreement's provision for stipulated damages, Mr. Dalcourt asserted that he elected to "terminate the agreement and recover an amount equal to ten (10%) of the Sale Price." He further sought attorney fees and penalties under the terms of the agreement as well as lease payments that he asserted were incurred as a result of the failed agreement.

By their answer, the Moyers denied their liability for the failed transaction. They further alleged that Mr. Dalcourt was in breach of the purchase agreement due to alleged misrepresentations as to the size of the property and purported encroachments. The Moyers further cited difficulties allegedly encountered in the inspection process and in an attempt to have the property surveyed. The Moyers sought judgment in their favor.

Following a trial, the trial court ruled in favor of the Moyers upon a finding of various deficiencies in Mr. Dalcourt's performance. The trial court ordered the return of the deposit to the Moyers and awarded them attorney fees and costs. By the resulting judgment, the trial court ordered the buyers to submit an itemization of their attorney fees and costs for review. The trial court further ordered that, in the event the parties cannot agree as to the quantum of such an award, the buyers are to file a rule to show cause for such a determination.

Mr. Dalcourt appeals. However, we do not reach the merits of the appeal. We instead find that there is no jurisdictional basis on which to do so.

Discussion

Subject Matter Jurisdiction

Notably, an appellate court's jurisdiction is not properly invoked absent a valid final judgment. See La.Code Civ.P. art. 2083. See also Brown v. Breaux Bridge Ventures, LLC , 16-662 (La.App. 3 Cir. 12/7/16), 207 So.3d 1083 (quoting Input/Output Marine Sys., Inc. v. Wilson Greatbatch Tech., Inc. , 10-477 (La.App. 5 Cir. 10/29/10), 52 So.3d 909 ). While the parties have not addressed whether the underlying judgment is final in nature, "it is the duty of a court to examine subject matter jurisdiction sua sponte , even when the issue is not raised by the litigants." Boudreaux v. State, Dep't of Transp. & Dev. , 01-1329, p. 8 (La. 2/26/02), 815 So.2d 7, 13.

Louisiana Code of Civil Procedure Article 1841 provides that "[a] judgment that determines the merits in whole or in part is a final judgment." And, La.Code Civ.P. art. 1918 provides that: "A final judgment shall be identified as such by appropriate language." Also, a valid judgment must be precise, definite, and certain. Input/Output Marine Sys. , 52 So.3d 909. In the event that a purported final judgment is rendered upon a money demand, as here, the judgment must indicate the amount of recovery with certainty and precision. Kimsey v. Nat'l Auto. Ins. Co. , 13-856 (La.App. 3 Cir. 2/12/14), 153 So.3d 1035 (citing Elston v. Montgomery , 46,262 (La.App. 2 Cir. 5/18/11), 70 So.3d 824, writ denied , 11-1292 (La. 9/23/11), 69 So.3d 1165 ). "Importantly, if the amount must be determined by a future contingency or ascertained by extrinsic reference (or is otherwise indefinite and uncertain), it is not a proper judgment." Id. at 1038.

Reference to the judgment under review indicates that it is lacking the hallmarks of a final judgment. In particular, the final paragraph reflects the indefinite nature of judgment as it provides:

IT IS ORDERED, ADJUDGED AND DECREED that NOLTON DALCOURT was in default of the Louisiana Real Estate Buy and Sell Agreement signed by Nolton Dalcourt, as Seller, and Thomas Moyer and Sherry Craig, as Buyer, on June 1, 2015.
IT IS ORDERED, ADJUDGED AND DECREED that THOMAS MOYER AND SHERRY CRAIG MOYER are entitled to their deposit of Four Thousand and no/100 ($4,000.00) Dollars and are awarded the sum of FOUR THOUSAND AND NO/100 ($4,000.00) DOLLARS representing the deposit amount, along with legal interest.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that THOMAS MOYER AND SHERRY CRAIG MOYER are awarded attorney's fees and costs. The Defendants are to submit an itemization of attorney's fees and costs to the Plaintiff and the Court for review. If the parties cannot reach an agreement as to these attorney's fees and costs, then the Defendants are to file a Rule to Show Cause for determination of the amount of attorney's fees and costs.

Thus, by its wording, the judgment is not final. In fact, the judgment not only anticipates a future contingency and extrinsic evidence, it includes an order for such an occurrence. See , e.g., Lobell v. Rosenberg , 17-0111, p. 5 (La.App. 4 Cir. 10/4/17), 228 So.3d 1241, 1245 (wherein the fourth circuit dismissed an appeal upon recognizing a want of appellate jurisdiction on review of a judgment awarding attorney fees but in which the amount of such fees had "not been adjudicated by the district court" and which "issue between the parties remain[ed] to be resolved."). Accordingly, we find it necessary to dismiss this appeal due to lack of subject matter jurisdiction. We below remand this matter for future proceedings.

Finally, we recognize that an appellate court has discretion to convert an appeal to an application for supervisory writ. See Stelluto v. Stelluto , 05-0074 (La. 6/29/05), 914 So.2d 34. In this situation, however, we find that an exercise of such discretion is inappropriate as "an appellate court will generally refrain from the exercise of its supervisory jurisdiction when an adequate remedy exists by appeal." Kimsey , 153 So.3d at 1040 (citing Thomas v. Lafayette Par. Sch. Sys. , 13-91 (La.App. 3 Cir. 3/6/13), 128 So.3d 1055 ). Here, the trial court ordered the parties to take further actions. Upon the occurrence of such proceedings, and upon the entry of a precise, definite, and certain judgment, an adequate remedy by appeal will exist at that time. See also Conrad v. McGowan Working Partners, Inc. , 08-1251, p. 3 (La.App. 3 Cir. 11/12/08), 997 So.2d 872, 875 (wherein a panel of this court observed that permitting an appeal to proceed on a partial judgment that awarded attorney fees but did not set the amount of those fees constituted "could result in a piecemeal appeal of this litigation.").

DECREE

For the foregoing reasons, the appeal of the plaintiff/appellant, Nolton Dalcourt, is dismissed. This matter is remanded for further proceedings. Costs of this proceeding are assessed to Mr. Dalcourt.

APPEAL DISMISSED. REMANDED.

      Mr. Moyer testified at trial that he and Ms. Craig have since married. We refer to the buyers as "the Moyers."

      As a result of certain deficiencies identified through the general home inspection process, the parties ultimately agreed to a lesser purchase price by addendum.

      Mr. Dalcourt assigned the following as error:
      [1.] The Trial Court erred when it did not apply the clear and unambiguous language of the contract entered into between the parties when it found the Defendants did not breach the contract by terminating the agreement after the deadline to do so had already passed.
      [2.] The Trial Court erred when it found the Plaintiff owed obligations to disclose information and to allow access to the property, when no such language in the contract obligated him to do so.

      Titled "Judgments appealable[,]" La.Code Civ.P. art. 2083 provides, in pertinent part, that:
      A. A final judgment is appealable in all causes in which appeals are given by law, whether rendered after hearing, by default, or by reformation under Article 1814.
      ....
      C. An interlocutory judgment is appealable only when expressly provided by law.

      Louisiana Code of Civil Procedure Article 1841 further indicates that an interlocutory judgment is one "that does not determine the merits but only preliminary matters in the course of the action[.]"


text:
    STATE of Louisiana v. Jeffery Dale KADING, Jr.
    18-341
    Court of Appeal of Louisiana, Third Circuit.
    December 12, 2018
   Keith A. Stutes, District Attorney - 15th Judicial District, Emilia Salas Pardo, Assistant District Attorney - 15th Judicial District, P.O. Box 3306, Lafayette, LA 70502-3306, Telephone: (337) 232-5170, COUNSEL FOR: Plaintiff/Appellee - State of Louisiana

Robert Leyton Odinet, Mahtook & LaFleur, LLC, P.O. Box 3089, Lafayette, LA 70502-3089, Telephone: (337) 266-2189, COUNSEL FOR: Plaintiff/Appellee - State of Louisiana

Aaron Adams, Assistant Public Defender, P.O. Box 3622, Lafayette, LA 70502, Telephone: (337) 232-9345, COUNSEL FOR: Defendant/Appellee - Jeffery Dale Kading, Jr.

Morris M. Haik, III, 511 W. St. Peters Street, New Iberia, LA 70560, Telephone: (337) 560-4357, COUNSEL FOR: Other Appellants - Accredited Surety & CasualtyCompany, Inc. and Mike Mullen L.L.C. dba Mike's Bail Bonding Service

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Marc T. Amy, Judges.

THIBODEAUX, Chief Judge.

In this bond forfeiture case, Mike Mullen L.L.C. D/B/A Mike's Bail Bonding Service (Agent) and Accredited Surety and Casualty Company, Inc. (Surety) appeal the trial court's judgment denying them relief on their motion to acknowledge surrender of the criminal defendant, Jeffery Dale Kading, Jr. Finding no error in the trial court's judgment under the applicable statutes, we affirm.

I.

ISSUES

We must decide whether the trial court erred in its application of the pertinent articles of the Louisiana Code of Criminal Procedure in denying the Agent and Surety's motion to surrender.

II.

FACTS AND PROCEDURAL HISTORY

A fugitive warrant was issued for Mr. Kading when he failed to appear for a criminal arraignment, and a Bond Forfeiture Judgment was ordered. The Bond Forfeiture Judgment was signed on January 5 and mailed on January 17, 2017. On January 25, 2017, the Agent paid the Sheriff's office $25 to list Mr. Kading on the National Crime Information Registry (NCIR). Mr. Kading was arrested in New Mexico on March 15, 2017. The Agent tried unsuccessfully to obtain an amount from the Sheriff for the transportation costs on having Mr. Kading returned to Lafayette. On March 21, 2017, Mr. Kading was released in New Mexico. When the Agent apprehended the defendant in December of 2017, he surrendered Mr. Kading to the Sheriff in Lafayette. The Agent and Surety now want the judgment of bond forfeiture set aside.

III.

STANDARD OF REVIEW

Questions of law, such as the proper interpretation of statutes, are reviewed by the appellate court under the de novo standard of review. Land v. Vidrine , 10-1342 (La. 3/15/11), 62 So.3d 36 (citations omitted).

IV.

LAW AND DISCUSSION

The Agent and Surety contend that the trial court erred in failing to find that it was the Sheriff's refusal to provide transportation costs that prevented the Agent and Surety's timely surrender of the defendant; and that this refusal created a fortuitous event that prevented them from getting the bond forfeiture set aside. We disagree.

Before its repeal, La.Code Crim.P. art. 349.8 provided the time frame allowed for a bond forfeiture to be set aside, calculated from the mailing of the notice of the signing of the judgment. The statute stated in pertinent part:

A. (1) For bonds that have a face value under fifty thousand dollars, a judgment forfeiting the appearance bond shall at any time, within one hundred eighty days after the date of mailing the notice of the signing of the judgment of bond forfeiture, be fully satisfied and set aside upon the surrender of the defendant or the appearance of the defendant. The surrender of the defendant also relieves the surety of all obligations under the bond and the judgment.
(2) A judgment forfeiting the appearance bond rendered according to this Title shall at any time, within ten days of the one-hundred-eighty-day period provided to surrender the defendant, be satisfied by the payment of the amount of the bail obligation without incurring any interest, costs, or fees.

Here, the bail was $5,000.00. Thus, the Agent/Surety had 180 days from the mailing of the Bond Forfeiture Judgment on January 17, or until July 16, 2017, to surrender the defendant and have the judgment set aside. At the relevant time prior to its repeal, La.Code Crim.P. art. 345 (emphasis added) provided the procedure for the surrender of a defendant who had posted bond with a Surety, failed to appear for arraignment, and was subsequently incarcerated in a foreign jurisdiction:

A. A surety may surrender the defendant or the defendant may surrender himself, in open court or to the officer charged with his detention, at any time prior to forfeiture or within the time allowed by law for setting aside a judgment of forfeiture of the bail bond . For the purpose of surrendering the defendant, the surety may arrest him. Upon surrender of the defendant, the officer shall detain the defendant in his custody as upon the original commitment and shall acknowledge the surrender by a certificate signed by him and delivered to the surety. The officer shall retain and forward a copy of the certificate to the court. After compliance with the provisions of Paragraph F of this Article, the surety shall be fully and finally discharged and relieved, as provided for in Paragraphs C and D of this Article, of all obligations under the bond.
....
D. If during the period allowed for the surrender of the defendant, the defendant is found to be incarcerated in another parish of the state of Louisiana or a foreign jurisdiction , the judgment of bond forfeiture is deemed satisfied if all of the following conditions are met:
(1) The defendant or his sureties file a motion within the period allowed for the surrender of the defendant. The motion shall be heard summarily.
(2) The sureties of the defendant provide the court adequate proof of incarceration of the defendant, or the officer originally charged with his detention verifies his incarceration. A letter of incarceration issued pursuant to this Article verifying that the defendant was incarcerated within the period allowed for the surrender of the defendant at the time the defendant or the surety files the motion , shall be deemed adequate proof of the incarceration of the defendant.
(3) The defendant's sureties pay the officer originally charged with the defendant's detention, the reasonable cost of returning the defendant to the officer originally charged with the defendant's detention prior to the defendant's return .

City of Lafayette v. Tyler , 14-663 (La.App. 3 Cir. 12/10/14), 153 So.3d 1276, held that all three conditions of La.Code Crim.P. art. 345(D) --filing of the motion, proof and verification of incarceration, and payment of transportation costs--must be met before the defendant is released for transport back to the original arresting officer. Citing State v. International Fidelity Insurance Co ., 32,837 (La.App. 2 Cir. 3/1/00), 756 So.2d 565, the third circuit emphasized the fact that La.Code Crim.P. art. 345(D)(3) was amended in 1999 to add the last five words, prior to the defendant's return . Thus, the cost must be paid while the defendant is still incarcerated in the foreign jurisdiction so that the original detaining officer can immediately act to regain custody. Id. We applied the same reasoning and emphasis in State v. Tabb , 15-1129 (La.App. 3 Cir. 8/3/16), 200 So.3d 841, writ denied , 16-1695 (La. 11/29/16), 210 So.3d 805.

In this case, the timeline reveals the following:

01/20/15 Defendant's original arrest in Lafayette 11/29/16 Failure to appear for arraignment 01/05/17 Bond Forfeiture Judgment issued by court 01/17/17 Notice of Judgment mailed 01/25/17 Agent paid Sheriff $25.00 to list defendant on NCIR 03/15/17 Defendant arrested in New Mexico 03/16/17 Agent asked Sheriff daily for a week for transport cost 03/20/17 Agent offered proof of incarceration to Sheriff 03/21/17 Defendant was released in New Mexico 08/18/17 Agent filed motion with the court 12/10/17 Agent apprehended and surrendered Defendant

A review of the above timeline indicates that, as to La.Code Crim.P. art. 345(D)(1), the Surety failed to file the requisite motion with the court by July 16, 2017 , the time period allowed for surrender of the defendant. Here, the Surety did not file the motion with the court until August 18, 2017. Regarding La.Code Crim.P. art. 345(D)(2), the Surety failed to provide the court with a letter of incarceration or verification that the defendant was incarcerated within the 180-day period allowed for the surrender. Finally, regarding La.Code Crim.P. art. 345(D)(3), the Surety did not pay the transportation costs to have the defendant returned to Lafayette before the defendant was released. Thus, none of the criteria of La.Code Crim.P. art. 345(D) were satisfied in this case.

The Agent and Surety assert that it was the Sheriff's failure to provide the cost of transportation that prevented them from surrendering the defendant during the 180-day period. However, we stated in Tabb that "there is no indication in La.Code Crim.P. art. 345(D) that a surety's obligation to pay transportation costs is dependent on the State seeking extradition or notifying the surety of the amount of costs."

The trial court, after quoting La.Code Crim.P. art. 345(D) in its "Judgment on Motion to Acknowledge Surrender" stated (emphasis added):

The Surety failed to file a motion prior to July 16, 2017 , within the time period allowed for surrender of the defendant. Mere notification to the Sheriff of the Defendant's arrest in another jurisdiction does not satisfy the requirements . Had the Surety timely filed a Motion and complied with the requirement of furnishing the Court with adequate proof of incarceration and paid reasonable transportation costs (which could have been set by the Court), a proper surrender would have been made.

We find no error in the trial court's application of La.Code Crim.P. art. 345(D).

As to the issue of a "fortuitous event," La.Code Crim.P. art. 345(I) provides:

In addition to and notwithstanding any other provision of law, a surety may seek an extension of time to surrender a defendant, or have the judgment of bond forfeiture set aside by filing a motion in the criminal court of record and after contradictory hearing with the district attorney and with proof satisfactory to the court that a fortuitous event has occurred and that the event has made it impossible to perform as required under the contract . A motion seeking relief pursuant to this Paragraph must be filed within three hundred sixty-six days from the date of the fortuitous event, excluding legal delays. The court in its discretion may do any of the following:
(1) Set aside the forfeiture or grant the nullity.
(2) Grant an extension of up to three hundred sixty-six days from the expiration of the initial time period allowed for the surrender of the defendant from the date of the mailing of proper notice of bond forfeiture. If the court grants that extension, judicial interest shall be suspended during that additional time period.
(3) Deny the relief.

In Tabb , 200 So.3d at 845 (emphasis added), we stated:

Moreover, while La.Code Crim.P. art. 345(I) allows a judgment of bond forfeiture to be set aside "with proof satisfactory to the court that a fortuitous event has occurred and that the event has made it impossible [for the surety] to perform as required under the contract[,]" we do not find any such "fortuitous event" in this matter. A "fortuitous event" is statutorily defined as "one that, at the time the contract was made, could not have been reasonably foreseen by the surety." La.R.S. 15:83(C)(2). See also State v. De La Rosa, 43,696, 43,697 (La.App. 2 Cir. 10/22/08), 997 So.2d 165. We do not find that the State's failure to obtain an extradition warrant for Ms. Tabb after she refused to waive extradition, and prior to her release on bond, was unforeseeable, or otherwise a "fortuitous event" contemplated by La.Code Crim.P. art. 345(I).

While not exclusive, fortuitous events that warrant setting aside bail bond forfeitures generally include the declaration of a disaster which qualifies for federal emergency relief and assistance. De La Rosa, 997 So.2d 165. But a surety still must present evidence explaining how the disaster made it impossible to perform as required under the contract. See State v. Hepworth , 17-1061 (La.App. 1 Cir. 4/18/18), 253 So.3d 804 (no proof explaining how flooding prevented performance). Here, the trial court did not directly address the issue in its judgment, which indicates that the trial court rejected the argument. However, the trial court did clearly state that a trial court itself could have supplied the reasonable transportation costs, had the motion been timely filed. Moreover, as stated in Tabb , the statutes do not require that the cost of reasonable transportation must be provided by the State. Under the facts of this case, we find that the Sheriff's failure to provide transportation costs is not a "fortuitous event" as contemplated by the applicable statutes discussed above.

V.

CONCLUSION

Based upon the foregoing, the judgment of the trial court is affirmed. The costs of this appeal are assessed to Mike Mullen L.L.C. D/B/A Mike's Bail Bonding Service and Accredited Surety and Casualty Company, Inc.

AFFIRMED.

      The repeal of La.Code Crim.P. art. 349.8 was effective on January 1, 2017, but the Bond Forfeiture Judgment in this case was ordered prior to the repeal of the statute.

      "A surety is, however, liable for his failure to perform when he has assumed the risk of such a fortuitous event." La.R.S. 15:83(C)(1). Fortuitous events that warrant setting aside bail bond forfeitures include the declaration of a disaster which qualifies for federal emergency relief and assistance. State v. De La Rosa, 43,696, 43,697 (La.App. 2 Cir. 10/22/08), 997 So.2d 165.


author: STONE, J.

text:
    STATE of Louisiana, Appellee v. Quindarius ALLEN, Appellant
    No. 52,318-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered November 14, 2018
    LOUSIANA APPELLATE PROJECT, By: Douglas Lee Harville Counsel, for Appellant
    JAMES E. STEWART, SR., District Attorney, WILLIAM JACOB EDWARDS, RICHARD SOL FEINBERG, BRITNEY A. GREEN, Assistant District Attorneys, Counsel for Appellee
    Before WILLIAMS, GARRETT, and STONE, JJ.
   STONE, J.

The defendant, Quindarius Allen, was charged with second degree murder and attempted second degree murder. Following a jury trial, Allen was found guilty as charged of second degree murder and sentenced to life imprisonment at hard labor, without benefit of probation, parole, or suspension of sentence. On the second count, Allen was found guilty of the responsive verdict of attempted manslaughter and sentenced to serve 20 years at hard labor. Allen now challenges the constitutionality of his sentences. For the following reasons, Allen's convictions and sentences are affirmed.

FACTS AND PROCEDURAL HISTORY

On October 13, 2014, at 10:02 p.m., the Shreveport Police Department received a 911 call of shots fired at the Cajun Inn motel in Shreveport. Shreveport Police Officers Larry McCloskey ("Officer McCloskey") and Jason Allgrun ("Officer Allgrun") responded and found the door to room 205 ajar but observed no damage to the door or door frame. Upon entry into the room, the officers discovered the body of a black male on the floor in a pool of blood just behind the door. The male victim was deceased from what appeared to be a large gunshot wound to the face and neck. Officers McCloskey and Allgrun also observed blood, flesh, and pieces of the victim's beard all over the door, ceiling, and floor. The deceased man was later identified as Gregory Morris ("Morris"), the occupant of the room. A black female, identified as Shreetha Haskins ("Haskins"), was sliding along the floor on her stomach toward the officers, screaming for help. The officers could see that both of Haskins' legs had large wounds that appeared to be made by a shotgun, and half of one leg appeared to be missing. The absence of damage to Morris' motel room door and frame indicated there was no forced entry into the room, and Morris likely knew the shooter.

During the course of investigation, Quindarius Allen ("Allen") was arrested and indicted by a grand jury on charges of second degree murder, in violation of La. R.S. 14:30.1, and attempted second degree murder, in violation of La. R.S. 14:30.1 and La. R.S. 14:27. The jury trial began November 16, 2017.

During trial, Lead Detective David Bonillas ("Detective Bonillas") testified that surveillance video from the motel showed that several hours before the shootings, a burgundy Grand Marquis entered the motel parking lot and a black male wearing dark pants, a jacket with a football emblem, a hoodie, and white shoes, exited the vehicle and walked upstairs to Morris' room, before returning to the Grand Marquis.

At the time of the shootings, the surveillance video from a nearby business and the motel showed the same driver, again, get out of a burgundy Grand Marquis down the street from the motel and walk into the motel from the west. The person walked with a limp this time and gestured to one side. The suspect again went upstairs to Morris' room, and was later seen running through and away from the motel with something in his hands. The officers released a clip of the motel video of the suspect to the media.

Timar Clark ("Clark") testified Allen was a friend and former roommate, and on multiple occasions, he and Allen went together to Morris' room at the Cajun Inn to buy marijuana from Morris. Clark testified that on the night of the shootings, sometime between 7:00 and 7:30 p.m., he and Allen went to Morris' room to buy marijuana, before Allen returned Clark to Clark's mother's house. Clark testified Allen told him he was going to rob Morris one day and take all the marijuana Morris had. Clark testified he had seen Allen with two handguns and a shotgun, but did not know if he owned them. Clark testified that later that same night, between 11:00 p.m. and midnight, Allen came by Clark's mother's house and told Clark that Morris had been shot and killed. Clark later saw the video the police posted online, recognized Allen as the suspect in the video, and called Allen's mother.

Allen's mother, Consuela Smith ("Smith"), confirmed Clark called her about the shooting and the online video. Smith testified she recognized her son in the video, and saw he was wearing a jacket she purchased for him. Smith gave police a Facebook picture of Allen, taken several years earlier when he was a student at Huntington High School, and in which he was wearing the same jacket with the distinguishable football emblem. Smith testified she gave the officers the address where Allen was staying and told them he drove a burgundy Grand Marquis.

Detective Bonillas testified Allen was found at the location Smith provided along with the burgundy Grand Marquis. Detective Bonillas stated Allen refused to come out of the house, so the officers were forced to send in a K-9 unit to apprehend him. Detective Bonillas testified the officers arrested Allen, seized his phone and the car, and subsequently obtained search warrants for the car, the phone, and Allen's DNA. Allen admitted he was at the motel that night and that he was the person seen in the motel surveillance video, but insisted he was merely walking around looking for his cell phone. He denied shooting Morris and Haskins.

Travis Thomas ("Thomas") testified that on the night of the shootings, he and his brother Richard went with Allen to the Cajun Inn sometime between 7:00 p.m. and 8:00 p.m. to buy drugs. Thomas testified he and his brother remained in the car while Allen went upstairs and later returned with marijuana and cocaine. Afterwards, they all went to Thomas' house for Richard's birthday party. Thomas testified that sometime around 10:00 p.m. Allen and his friend "B.J." left the party in Allen's car.

Haskins attested that her boyfriend, Morris, sold drugs from the motel room at the Cajun Inn, and she was staying with him on October 13, 2014. Haskins stated she was in bed asleep when she was awakened by the sound of a gun blast. As she sat up, she saw Morris on the floor behind the door and a black male in a jacket and hoodie standing there with a gun. Haskins indicated she yelled out, and the gunman turned and raised the gun toward her. Haskins said she raised her legs up to protect herself as the gunman fired. Haskins was struck in both legs with the shotgun, which broke both of her legs, tearing the flesh from them, and leaving gaping wounds that exposed her leg bone. Photographs of the motel room taken that night show her blood and pieces of her flesh covering the bed and floor. Photographs taken of Haskins in the hospital that night confirm the extensive nature of these severe injuries.

Haskins testified that she was in the hospital for two weeks. Her right leg was broken in three places. She had rods inserted into both legs, had a leg skin graft, and had to learn to walk again. At the time of trial, Haskins had already undergone 21 surgeries, and the 22nd surgery was scheduled.

Haskins testified she believed the shooter had been in the motel room that night, not long before the shooting, to buy drugs. Haskins stated she recognized Allen because he had been to the motel room on several prior occasions to buy drugs from Morris. Haskins identified Allen as one of several people who came up to Morris' room that night to purchase drugs from Morris.

Sgt. Eric Farquhar ("Sgt. Farquhar") testified he collected evidence from the motel that night and recovered a live 12-gauge Winchester shotgun shell from the landing of the stairwell leading to Morris' room and a fired 12-gauge shotgun shell from inside Morris' room. He recalled taking pictures of the crime scene that showed blood and pieces of the victims' flesh all over the carpet, wall, door, and ceiling where Morris was shot, and on the carpet and bed where Haskins was shot.

Sgt. Farquhar testified that a live 12-gauge Winchester shotgun shell was recovered from the backseat of Allen's vehicle during inspection. The live shotgun shells recovered from the stairwell and Allen's vehicle, along with the fired shotgun shell recovered from Morris' motel room, were all sent for testing at the North Louisiana Crime Lab. Carla White ("White"), with the North Louisiana Crime Lab, was accepted as an expert in firearms identification. White stated she examined all three shotgun shells and determined that, based on the markings made on the shells as they were ejected from the shotgun, both the live shotgun shells and the fired shotgun shells were all cycled and ejected from the same shotgun.

Audra Williams ("Williams"), also with the North Louisiana Crime Lab, was accepted as an expert in DNA analysis. Williams testified that DNA testing of swabs from the shotgun shells did not produce results sufficient to provide a valid DNA profile. Williams testified that DNA testing of a blood-stained section of the seatbelt from Allen's vehicle excluded Morris and Haskins as a major contributor but could not exclude Allen. Williams testified that there was too low a concentration to obtain a valid DNA profile of the minor contributor.

James Traylor, M.D. ("Dr. Traylor"), an expert in forensic pathology, performed an autopsy on Morris. Dr. Traylor determined Morris' cause of death was a shotgun blast to the left side of the face and neck, resulting in soft tissue, vascular, and bony injury. Dr. Traylor stated the appearance of the wound indicated the shotgun blast was made at close range to the victim, probably only three or four feet away, and left a wound several inches wide.

The jury found Allen guilty as charged of second degree murder and of the responsive verdict of attempted manslaughter. Allen filed a motion for new trial and a motion for post-verdict judgment of acquittal, and both motions were denied on December 18, 2017, and the trial court sentenced Allen.

The trial court noted that a conviction for second degree murder under La. R.S. 14:30.1 carries an automatic life sentence. As to count one, the conviction for second degree murder, the trial court sentenced Allen to life imprisonment at hard labor, without benefit of probation, parole or suspension of sentence. As to count two, the conviction for the responsive verdict of attempted manslaughter, trial court stated, "based upon the facts established at trial, injuries to the victim, the court will sentence you to 20 years hard labor consecutive to the life sentence, credit for time served." No presentence investigation report was ordered.

The trial court advised Allen of the time delays to seek an appeal and post-conviction relief. The defense objected to the sentence, specifically to the 20-year sentence imposed for attempted manslaughter and the consecutive nature of the sentences

On January 19, 2018, Allen filed a motion to reconsider sentence, arguing that the sentences were constitutionally excessive and that the sentences should be imposed to run concurrently. The motion was denied on January 22, 2018. This appeal followed.

DISCUSSION

On appeal, Allen argues that his sentences of life and 20 years, imposed to run consecutively, are constitutionally excessive because "a sentence more than life is merely punitive." Allen asserts that his sentences should have been imposed to run concurrently to one another.

Allen was found guilty as charged of second degree murder, which La. R.S. 14:30.1 defines, in pertinent part, as the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm; or, when the offender is engaged in the perpetration or attempted perpetration of one of the enumerated felonies in La. R.S. 14:30.1(A)(2). Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. La. R.S. 14:30.1(B).

Allen was also charged with attempted second degree murder. La. R.S. 14:27 provides that any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended. Had Allen been convicted as charged of attempted second degree murder, he would have faced a potential sentence of 10-50 years at hard labor, without benefit of parole, probation, or suspension of sentence. La. R.S. 14:27(D)(1) ; La. R.S. 14:30.1.

Instead, Allen was convicted of the responsive verdict of attempted manslaughter. Manslaughter is a homicide which would be first degree murder or second degree murder, but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection; or a homicide committed, without any intent to cause death or great bodily harm, when the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Article 30 or 30.1, or of any intentional misdemeanor directly affecting the person; or when the offender is resisting lawful arrest in a manner not inherently dangerous and the circumstances do not constitute first or second degree murder. La. R.S. 14:31.

For his conviction for attempted manslaughter, Allen faced a potential sentence of no more than one-half the longest term of imprisonment as prescribed for the offense so attempted, manslaughter. The range for a conviction of manslaughter was 0-40 years at hard labor; therefore Allen's potential sentencing range for attempted manslaughter was 0-20.

An excessive sentence is reviewed by examining whether the trial court adequately considered the guidelines established in La. C. Cr. P. art. 894.1, and whether the sentence is constitutionally excessive. State v. Wing , 51,857 (La. App. 2 Cir. 2/28/18), 246 So.3d 711 ; State v. Gardner , 46,688 (La. App. 2 Cir. 11/2/11), 77 So.3d 1052.

A review of the sentencing guidelines does not require a listing of every aggravating or mitigating circumstance. State v. Boehm , 51,229 (La. App. 2 Cir. 4/5/17), 217 So.3d 596 ; State v. Cunningham , 46,664 (La. App. 2 Cir. 11/2/11), 77 So.3d 477. However, the court must state for the record the consideration taken into account and the factual basis for the sentence imposed. La. C. Cr. P. art. 894.1(C). The court must consider the defendant's personal history, the defendant's criminal record, the seriousness of the offense, and the likelihood of rehabilitation. State v. Boehm , supra . There is no requirement that specific matters be given any particular weight at sentencing. Id. All convictions and all prior criminal activity may be considered as well as other evidence normally excluded from the trial. State v. Platt , 43,708 (La. App. 2 Cir. 12/3/08), 998 So.2d 864, writ denied , 09-0265 (La. 11/6/09), 21 So.3d 305.

Maximum sentences are generally reserved for the worst offenses and offenders. State v. Taylor , 41,898 (La. App. 2 Cir. 4/4/07), 954 So.2d 804. However, where a defendant convicted of a crime of violence has obtained a significant reduction in the potential sentence exposure, the trial court has great discretion in imposing the maximum sentence. State v. Black, 28,100 (La. App. 2 Cir. 2/28/96), 669 So.2d 667, writ denied , 96-0836 (La. 9/20/96), 679 So.2d 430.

A sentence violates La. Const. art. I, § 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. Dorthey , 623 So.2d 1276 (La. 1993) ; State v. Boehm , 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. Weaver , 01-0467 (La. 1/15/02), 805 So.2d 166 ; State v. Wing, supra .

In cases involving multiple offenses and sentences, the trial court has limited discretion to order that the multiple sentences are to be served concurrently or consecutively. State v. Nixon , 51,319 (La. App. 2 Cir. 5/19/17), 222 So.3d 123, writ denied , 17-0966 (La. 4/27/18), 239 So.3d 836. Regarding concurrent and consecutive sentences, La. C. Cr. P. art. 883 provides that:

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently. In the case of the concurrent sentence, the judge shall specify, and the court minutes shall reflect, the date from which the sentences are to run concurrently.

Concurrent sentences arising out of a single course of conduct are not mandatory, and consecutive sentences under those circumstances are not necessarily excessive. State v. Wing, supra ; State v. Lynn , 50,575 (La. App. 2 Cir. 5/18/16), 196 So.3d 607. It is within the court's discretion to make sentences consecutive rather than concurrent. State v. Nixon, supra ; State v. Robinson , 49,677 (La. App. 2 Cir. 4/15/15), 163 So.3d 829, writ denied , 15-0924 (La. 4/15/16), 191 So.3d 1034. For example, the sentencing court may impose consecutive sentences in cases where the offender's past criminality or other circumstances justify treating him as a grave risk to the safety of the community. State v. Walker , 00-3200 (La. 10/12/01), 799 So.2d 461. However, a judgment directing that sentences arising from a single course of conduct be served consecutively requires particular justification from the evidence of record. State v. Wing, supra .

When imposing consecutive sentences, the trial court must acknowledge the sentencing guidelines established in La. C. Cr. P. art. 894.1, recite factors for the sentences which were supported by the record, and show that consecutive sentences were warranted. State v. Wing, supra ; State v. Mitchell, 37,916 (La. App. 2 Cir. 3/3/04), 869 So.2d 276, writ denied , 04-0797 (La. 9/24/04), 882 So.2d 1168 ; State v. Burns , 44,937 (La. App. 2 Cir. 2/2/10), 32 So.3d 261. The imposition of consecutive sentences for multiple offenses arising from a single act or scheme must be justified by the evidence of record and the trial court must state what factors were considered in reaching the determination to impose consecutive terms. State v. Butler , 51,922 (La. App. 2 Cir. 4/11/18), 247 So.3d 1006, 1011 ; State v. Wing, supra.

Among the factors to be considered are the defendant's criminal history, the gravity or dangerousness of the offense, the viciousness of the crimes, the harm done to the victims, whether the defendant constitutes an unusual risk of danger to the public, the potential for the defendant's rehabilitation, and whether the defendant has received a benefit from a plea bargain. State v. Austin , 49,061 (La. App. 2 Cir. 7/16/14), 146 So.3d 716, writ denied , 14-2323 (La. 9/18/15), 178 So.3d 140 ; State v. Nelson , 44,762 (La. App. 2 Cir. 10/28/09), 25 So.3d 905. The failure to articulate specific reasons for consecutive sentences does not require remand if the record provides an adequate factual basis to support consecutive sentences. State v. Nelson, supra.

In State v. Wing, supra at 717, this Court vacated the sentences imposed and remanded the matter, holding that "the sparse record made at sentencing does not supply a sufficient factual basis to support the sentences. Due to the paucity of reasons for the sentences imposed, we are constrained to vacate the sentences and remand for resentencing."

The trial court has wide discretion in imposing sentence within minimum and maximum limits allowed by the statute; therefore, a sentence will not be set aside as excessive unless the defendant shows the trial court abused its discretion. State v. Hardy , 39,233 (La. App. 2 Cir. 1/26/05), 892 So.2d 710 ; State v. Young , 46,575 (La. App. 2 Cir. 9/21/11), 73 So.3d 473, writ denied , 2011-2304 (La. 3/9/12), 84 So.3d 550. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Zeigler , 42,661 (La. App. 2 Cir. 10/24/07), 968 So.2d 875. The reviewing court does not determine whether another sentence would have been more appropriate, but whether the trial court abused its discretion. State v. Esque , 46,515 (La. App. 2 Cir. 9/21/11), 73 So.3d 1021, writ denied , 11-2347 (La. 3/9/12), 84 So.3d 551.

A review of the record reveals the trial court did not order a presentence investigation report, did not reference or address the sentencing guidelines under La. C. Cr. P. art. 894.1 or any aggravating and mitigating factors, did not discuss the defendant's personal and criminal history, and did not articulate specific reasons to justify the order that the sentences were imposed to run consecutively. Accordingly, it is necessary to consider whether the record supports the imposition of consecutive sentences by the trial court.

As noted by the trial court, the sentence for second degree murder was mandatory. As for Allen's conviction for attempted manslaughter, the 20-year hard labor term, with no restriction of benefits, was within the statutory range of 0-20 years for attempted manslaughter. Accordingly, the sentences imposed were not statutorily excessive.

Moreover, the maximum 20-year sentence is not constitutionally excessive. Allen's actions demonstrate more than an intent to simply rob Morris and Haskins at gunpoint, or to disable Morris and Haskins in order to rob them. Allen's intent to brutally murder these two people was evident in his choice of weapon, which made death or severe bodily injury a certainty. The facts of this case show Allen's actions were heinous and cold-blooded. Allen was not acting in self-defense. He took advantage of the fact that Morris would voluntarily open the door to a known customer with whom he frequently transacted business. This was a brutal surprise assault on Morris. Allen shot and killed Morris at the door and then turned and shot Haskins, who was sleeping in the bed farthest from the door.

Allen refused to cooperate with officers attempting to arrest him, causing further danger to the public. He refused to take responsibility for his actions and persisted in denying his involvement, even after the physical and testimonial evidence firmly established his participation in these offenses. Allen showed no remorse for the severe pain and trauma he caused these victims and their families. Morris was brutally shot and killed with no chance to defend himself. Haskins was lying in bed, also defenseless, and the horrific injuries to her legs have caused her to endure severe pain, multiple operations, and extensive physical therapy.

The record discloses the following aggravating factors found in La. C. Cr. P. art. 894.1. Allen's actions manifested deliberate cruelty to the victim and he used a dangerous weapon, a firearm, in the commission of the offense. Allen created risk of danger, death, or great bodily harm to more than one person, and his offense resulted in a significant permanent injury or significant economic loss to the victim and the victim's family.

Furthermore, the facts of this case fully support attempted second degree murder. Allen pointed a shotgun at Haskins, who was lying in bed, and shot her. Allen obtained a significant reduction in his potential sentencing exposure when the jury returned the responsive verdict of attempted manslaughter. Instead of facing a potential sentence of 10-50 years, all without benefits, Allen faced a potential sentence of 0-20 years, all of them with benefit of probation, parole, or suspension of sentence.

Given the facts of this case, and the physical, mental, emotional, and economic impact on Haskins, the imposition of the maximum sentence is not disproportionate to the severity of Allen's actions. These same facts found in this record further support the trial court's order imposing these sentences to run consecutively. As the record amply demonstrates, Allen's behavior here created an unusual risk of danger to the public and the safety of the community. The imposition of consecutive sentences here reflects the extreme danger and gravity of Allen's offenses.

Allen's complaint that any sentence beyond life is excessive and without merit. Allen committed two crimes of violence against two people and has lawfully been sentenced for each crime. The fact that he received a life sentence for the brutal murder of Morris does not negate the necessity of sentencing him for the brutal attack that he made on Haskins.

Although the trial court failed to sufficiently articulate his reasons for imposing the 20-year maximum sentence and to justify the imposition of consecutive sentences, the record here sufficiently supports both the 20-year for attempted manslaughter and running the sentence consecutively to Allen's life sentence for second degree murder.

CONCLUSION

For the above reasons, Quindarius Allen's convictions and sentences are affirmed.

AFFIRMED.

      There is no express waiver of sentencing delay on record. The defendant makes no complaint regarding the absence of an express waiver on appeal. In State v. White , 404 So.2d 1202 (La. 1981), the court held that failure to expressly waive the sentencing delay in La. C. Cr. P. art. 873 is harmless if there was no prejudice to the defendant and the defendant does not raise any complaint about it.


author: BLEICH, J. (Pro Tempore )

text:
    STATE of Louisiana, Appellee v. Donald G. BROOKS, Appellant
    No. 52,334-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered November 14, 2018
    LOUISIANA APPELLATE PROJECT By: Douglas L. Harville, Counsel for Appellant
    DONALD G. BROOKS, Pro Se
    JAMES E. STEWART, SR., District Attorney, TOMMY J. JOHNSON, JASON W. WALTMAN, Assistant District Attorneys, Counsel for Appellee
    Before STONE, McCALLUM, and BLEICH (Pro Tempore ), JJ.
   BLEICH, J. (Pro Tempore )

Pursuant to Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and Montgomery v. Louisiana , --- U.S. ----, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), Donald G. Brooks was resentenced to life imprisonment with parole eligibility for a 1976 murder he committed when he was 17 years old. No motion to reconsider sentence was filed. Brooks' appellate counsel has filed a motion to withdraw, together with a brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), alleging that there are no non-frivolous issues upon which to base the appeal. This Court held the motion to withdraw in abeyance and allowed Brooks 30 days within which to file a pro se brief. Brooks filed his brief on September 24, 2018. For the following reasons, we grant appellate counsel's motion to withdraw and affirm Brooks' convictions and sentences.

FACTS

On June 9, 1976, Donald G. Brooks and an accomplice grabbed 78-year-old street vendor Rosario Brocato by the arms as Brocato was making his morning rounds. When Brocato struggled, he was shot in the face. After Brocato fell to the ground, Brooks emptied Brocato's pockets and stole his money. Brocato subsequently died from the gunshot wound. Brooks was indicted for the second degree murder and armed robbery of Brocato, and a unanimous jury found Brooks guilty as charged. Brooks was sentenced to life imprisonment without benefit of parole, probation or suspension of sentence for 40 years on the second degree murder conviction and 10 years at hard labor on the armed robbery conviction. The sentences were ordered to run consecutively. Brooks' convictions and sentences were affirmed in State v. Brooks, 350 So.2d 1174 (La. 1977). The record shows that Brooks was 17 at the time he committed the offenses.

Following the decisions in Miller / Montgomery , Brooks was resentenced on August 15, 2016, to life imprisonment at hard labor, with parole eligibility. On May 8, 2017, Brooks filed a "Motion for Out of Time Appeal and Designation of Record," seeking to appeal the new sentence. In its May 11, 2017, "Ruling," the trial court denied Brooks' motion for appeal and vacated the August 15, 2016, sentence after concluding that Brooks had been sentenced without the assistance of counsel. The public defender was appointed to represent Brooks for resentencing.

On February 20, 2018, Brooks appeared with counsel for resentencing. The trial court reviewed the facts of the case as well as the procedural events noted above. A thorough review of the cases leading up to and following the Miller / Montgomery decisions was set forth on the record by the trial court as well as a discussion of the Miller / Montgomery cases. The trial court also reviewed the legislative enactments of La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4 in response to Miller / Montgomery . The trial court confirmed that the State did not oppose the resentencing of Brooks to life with the possibility of parole. Thereafter, Brooks was resentenced to life with parole eligibility. The trial court ordered the Department of Corrections to revise the prison master to expressly state that Brooks' sentence was imposed with parole eligibility and that Brooks' records reflect an eligibility date for consideration by the Board of Parole. The trial court also affirmed Brooks' armed robbery sentence and ordered that the sentences would remain consecutive. This appeal ensued.

DISCUSSION

On June 28, 2018, Brooks' appellate counsel filed a motion to withdraw and an Anders brief asserting that after a thorough review of the entire record, no non-frivolous issues remained for appeal. See Anders, supra ; State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 ; State v. Mouton, 95-0981 (La. 04/28/95), 653 So.2d 1176. The brief outlines the procedural history of the case, including Brooks' sentencing history. The brief also contains a detailed and reviewable assessment for both the defendant and this Court regarding whether the appeal is worth pursuing. Appellate counsel verified that he mailed copies of the motion to withdraw and the brief to Brooks. Brooks filed a pro se brief, in which he argued that his original trial counsel provided ineffective assistance of counsel by failing to file a motion to reconsider his sentence for second degree murder. According to Brooks, the sentence of life imprisonment without the benefit of parole, probation, or suspension of sentence for 40 years, is an indeterminate sentence and as such, is illegal. The State declined to file a brief.

We will first address Brooks' ineffective assistance of counsel claim. The mere failure to file a motion to reconsider sentence does not in and of itself constitute ineffective assistance of counsel. A basis for ineffective assistance of counsel may only be found if a defendant can show a reasonable probability that, but for counsel's error, his sentence would have been different. State v. Jones, 46,712 (La. App. 2d Cir. 11/02/11), 80 So.3d 500, writ denied , 12-0016 (La. 08/22/12), 97 So.3d 356 ; State v. Louis , 32,347 (La. App. 2d Cir. 10/27/99), 744 So.2d 694. See also State v. Allen , 03-1205 (La. App. 5th Cir. 02/23/04), 868 So.2d 877 ; State v. White , 03-1535 (La. App. 3d Cir. 04/28/04), 872 So.2d 588. Brooks' sentence, life imprisonment without the benefit of parole, probation, or suspension of sentence for 40 years, was not indeterminate, but was the mandatory penalty for the offense of conviction. Brooks has failed to allege how his youth at the time of the offense justified a deviation from the mandatory sentence. He likewise did not allege any particular facts regarding his family history or special circumstances that would support a deviation from the mandatory sentence provided in La. R.S. 14:30.1. Brooks has failed to show that he is exceptional or that the mandatory life sentence is not meaningfully tailored to his culpability, the gravity of the offense, and the circumstances of the case. See, State v. Collins , 09-1617 (La. App. 1st Cir. 02/12/10), 35 So.3d 1103, writ denied , 10-0606 (La. 10/08/10), 46 So.3d 1265. Because Brooks has failed to show that the motion to reconsider the sentence would have resulted in a different sentence, we cannot find that the failure of his trial counsel to file a motion to reconsider sentence constitutes ineffective assistance of counsel. See State v. Lee , 26,542 (La. App. 2d Cir. 05/12/94), 636 So.2d 634 ; State v. Texada , 98-1647 (La. App. 3d Cir. 05/05/99), 734 So.2d 854.

Furthermore, in the original appeal from Brooks' convictions and sentences, State v. Brooks , 350 So.2d at 1175-76, defendant's attorney assigned as error the trial court's denial of this motion to quash in which he attacked the constitutionality of Louisiana's second degree murder statute, La. R.S. 14:30.1. Defense counsel had argued in his pretrial motion that the mandatory imposition of a life sentence precluded consideration of all particular and mitigating factors, and therefore violated U.S. and Louisiana Constitutional guarantees against cruel and unusual punishment. The Supreme Court in State v. Brooks, supra , rejected this claim, noting that the mandatory penalty prescribed by La. R.S. 14:30.1, life imprisonment, has been upheld on constitutional grounds by both the U.S. and Louisiana Supreme Courts. See, Roberts v. Louisiana , 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976) ; State v. Cook , 345 So.2d 29 (1977) ; State v. Anderson , 315 So.2d 266 (La. 1975) ; State v. Lewis , 47,853 (La. App. 2d Cir. 02/27/13), 110 So.3d 644, writ denied , 13-0672 (La. 10/25/13), 124 So.3d 1092 ; State v. Thompson , 27,512 (La. App. 2d Cir. 12/06/95), 665 So.2d 643. This assignment of error is without merit.

A conviction for second degree murder carries a mandatory sentence of life at hard labor without benefit of parole, probation or suspension of sentence. La. R.S. 14:30.1. However, in Miller , 567 U.S. at 479, 132 S.Ct. at 2479, the United States Supreme Court held that "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." The Miller Court did not establish a categorical prohibition against life imprisonment without parole for juvenile homicide offenders; instead, the decision requires the sentencing court to consider an offender's youth and attendant characteristics as mitigating circumstances before deciding whether to impose the harshest penalty for juveniles convicted of a homicide offense. State v. Williams , 12-1766 (La. 03/08/13), 108 So.3d 1169.

The sole question to be answered in a Miller hearing is whether the defendant should be eligible for parole.

State v. Keith , 51,389 (La. App. 2d Cir. 06/21/17), 223 So.3d 767 ; State v. Sumler , 51,324 (La. App. 2d Cir. 05/02/17), 219 So.3d 503. Accordingly, there is no consideration of whether there should be a downward departure from the mandatory sentence of life imprisonment at hard labor. Instead, the trial court considers only whether the mandatory sentence should include parole eligibility. State v. Keith, supra ; State v. Jackson , 51,527 (La. App. 2d Cir. 08/09/17), 243 So.3d 1093, writ denied , 17-1540 (La. 05/25/18), 243 So.3d 565. Access to the parole board for consideration of parole meets the requirements of Miller . State v. Jackson, supra . Giving Miller retroactive effect does not require states to relitigate sentences in every case where a juvenile offender received mandatory life without parole. State v. Keith, supra .

In this case, Brooks received the mandatory minimum sentence available to him. His convictions are final and he was properly resentenced to life imprisonment with parole eligibility pursuant to Miller / Montgomery . Thus, a review of the record disclosed no non-frivolous issues and no ruling which arguably support an appeal. Lastly, the record has been reviewed for error patent. The trial court minutes incorrectly state that Brooks' sentence was to "run concurrently" with any other sentence. The sentencing transcript shows that the trial court imposed Brook's second degree murder and armed robbery sentences consecutively, as they were originally imposed. When the transcript and the court minutes conflict, the transcript prevails. State v. Lynch , 441 So.2d 732 (La. 1983). Accordingly, the trial court is instructed to correct this error in the minutes. State v. Bell , 51,312 (La. App. 2d Cir. 05/17/17), 222 So.3d 79 ; State v. Clark , 44,594 (La. App. 2d Cir. 08/19/09), 16 So.3d 1256, writ denied , 09-2106 (La. 08/18/10), 42 So.3d 400.

CONCLUSION

For the reasons set forth above, appellate counsel's motion to withdraw is granted and Brooks' convictions and sentences are affirmed.

AFFIRMED.

      The May 11, 2017, "Ruling" of the trial court confirms Brooks' age at the time of the offense. The state does not dispute this fact.

      Brooks' resentencing apparently occurred as the result of his February 29, 2016, filing of a "Motion for Appointment of Counsel," as well as a "Motion to Correct Illegal Sentence and Supporting Memorandum of Law and Facts."


author: PITMAN, J.

text:
    STATE of Louisiana, Appellee v. Antonio D. ROBINSON, Appellant
    No. 52,315-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered November 14, 2018
    LOUISIANA APPELLATE PROJECT, By: Carey J. Ellis, III, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, KODIE K. SMITH, JANET L. SILVIE, RICHARD S. FEINBERG, Assistant District Attorneys, Counsel for Appellee
    Before PITMAN, COX, and STEPHENS, JJ.
   PITMAN, J.

Defendant Antonio D. Robinson appeals as excessive his sentences for attempted possession of a Schedule II controlled dangerous substance in Counts One and Two and attempted possession of a firearm or carrying a concealed weapon by a convicted felon in Count Three. For the following reasons, Defendant's sentences for Counts One and Two are vacated and remanded for resentencing. The conviction and sentence for Count Three are reversed.

FACTS

On April 5, 2017, Defendant was charged by bill of information with two counts of possession with intent to distribute a Schedule II controlled dangerous substance (cocaine and methadone) (Counts One and Two) and possession of a firearm or concealed weapon by a convicted felon (Count Three). The bill of information listed the date for all three offenses as March 3, 2017. On July 13, 2017, the state filed an amended bill of information, which altered the predicate offense used in Count Three from simple burglary of an inhabited dwelling committed on or about October 15, 2012 (Trial Docket No. 308,157), to simple burglary committed on or about August 26, 2003 (Trial Docket No. 229,735).

A jury trial was held and Peter Goeders, Probation and Parole Officer at the Minden District Office of the State of Louisiana, presented testimony regarding Defendant's guilty plea to simple burglary in Docket No. 229,735. Goeders confirmed that he was not the officer who supervised Defendant in 2004 and that the officer who did supervise Defendant was no longer employed there. He affirmed that Defendant had been under the supervision of the probation and parole office in 2003 and 2004. He stated that he had reviewed Defendant's parole case file and identified the Bill of Information in Docket No. 229,735 for simple burglary, which was introduced into evidence as Exhibit 12. He identified court minutes in the same docket number, which were introduced into evidence as Exhibit 13. He read aloud for the jury the minute entry for August 26, 2003, which reflected that Defendant waived arraignment and pled guilty to the charge of simple burglary.

The minutes, as read by Goeders, also stated as follows:

The Court informed the defendant of his constitutional rights per Boykin versus Alabama. Whereupon the defendant was sentenced to pay a fine of $300 and court costs, or in default thereof, serve 90 days-or-49 days in the parish jail, and in addition, be confined at labor for a period of four years and committed to the Louisiana Department of Corrections, subject to the conditions provided by law. The Court ordered the hard labor sentence suspended and placed the defendant on supervised probation for a period of two years with special conditions (see the special conditions sheet). The Court ordered the defendant given credit for time served and informed the defendant of his rights to post-conviction relief proceedings. Execution of sentence was deferred until October 31st, 2003.

On cross-examination, Defendant's attorney questioned Goeders about whether he had any other knowledge regarding Defendant's probation and parole history. Goeders replied that he did not, other than what was in the record that he had just read aloud. He briefly augmented that statement and added, "Well, he was also on parole out of the Minden District Office after the probation was revoked." He reiterated that he was not Defendant's parole officer. No time period for the termination of that probation revocation was elicited from the witness.

On July 13, 2017, following a jury trial, Defendant was convicted of the responsive verdicts of attempted possession of a Schedule II controlled dangerous substance on Counts One and Two and of attempted possession of a firearm or carrying a concealed weapon by a convicted felon on Count Three. On October 18, 2017, he was sentenced to 12 years at hard labor for Counts One and Two and to 5 years at hard labor for Count Three, to be served concurrently.

On November 17, 2017, Defendant filed a motion to reconsider sentence, which was denied by the trial court on February 5, 2018.

The instant appeal followed.

DISCUSSION and ERRORS PATENT

Defendant challenges the excessive nature of his sentences on appeal and contends that the trial court did not adequately consider the factors under La. C. Cr. P. art. 894.1. However, the error patent and other error discussed below render Defendant's arguments moot. Similarly, the state's arguments are also moot.

A review of the record reveals an error patent in that Defendant was convicted of the responsive verdicts of attempted possession of a Schedule II controlled dangerous substance as to Counts One and Two, but the trial court erroneously sentenced him for attempted possession of a Schedule II controlled dangerous substance with intent to distribute. La. R.S. 40:967(B)(4). The transcript from the trial clearly reflects that Defendant was convicted of two counts of attempted possession of a Schedule II controlled dangerous substance, which is an appropriate responsive verdict under La. C. Cr. P. art. 814. The convictions for both counts are corroborated by the jury's verdict form and the minutes. At sentencing, however, after reviewing the contents of Defendant's presentence investigation report, the trial court stated:

To me the breaks that you got on attempted possession with intent to distribute the cocaine and the methadone, because of the attempt that the jury found you convicted of that is only up to a 15-year maximum because the attempted takes the 30 years off the table and makes it 15 years. All right?
* * *
Based on my review of the [presentence investigation report] as well as my review of the facts particular to your case as well as the case that was heard by the jury back in-that I presided over back on July 13th of 2017 the Court sentences you on the attempted possession with intent to distribute Schedule II, cocaine, to twelve years at hard labor. On the attempted possession with intent to distribute Schedule II, methadone, the Court sentences you to twelve years of hard labor. On the attempted possession of a firearm by a convicted felon the Court sentences you to five years hard labor. I'm going to run all those sentences concurrent with one another [.]

A defendant convicted of attempted possession of a Schedule II controlled dangerous substance (cocaine and methadone) for an act which occurred in March 2017 could be sentenced to a maximum sentence of 2½ years with or without hard labor and, in addition, could be sentenced to pay a fine of not more than $2,500. La. R.S. 14:27 and 40:967(C)(2) ; State v. Daggs , 36,216 (La. App. 2 Cir. 8/14/02), 823 So.2d 1093.

Here, Defendant was improperly sentenced to serve 12 years at hard labor on Counts One and Two, exceeding the maximum possible sentence he could have received by almost 10 years. Neither party raised the error at sentencing or in their appellate briefs. Accordingly, Defendant's sentences on Counts One and Two are vacated and remanded for resentencing under La. R.S. 14:27 and 40:967(C)(2).

A further review of the record indicated a second error patent in that the trial court failed to impose the mandatory fine on Count Three as required under La. R.S 14:95.1(B). The review also revealed a more serious error concerning the conviction on Count Three, which negates the need to address the failure to impose a mandatory fine. The state failed to prove every essential element of the crime of attempted possession of a firearm by a convicted felon, i.e., proof that the ten-year cleansing period had not elapsed. Without this proof, the jury could not appropriately find Defendant guilty of the crime charged.

In State v. Williams , 438 So.2d 1286 (La. App. 3 Cir. 1983), the third circuit stated that while it did not hold that insufficiency of evidence was an error patent which should be checked in every case, if the error comes to the attention of the court, the court should recognize it because no one should be put in prison if he has been convicted on insufficient evidence. See also State ex rel. Womack v. Blackburn , 393 So.2d 1216 (La. 1981). The constitutional standard of review for the sufficiency of evidence to support a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Nealy , 450 So.2d 634 (La. 1984) ; State v. Morris , 521 So.2d 1214 (La. App. 2 Cir. 1988), writ denied , 530 So.2d 80 (La. 1988).

La. R.S. 14:95.1(C), which concerns possession of a firearm by a person convicted of certain felonies, stated in March 2017 as follows:

The provisions of this Section prohibiting the possession of firearms and carrying concealed weapons by persons who have been convicted of certain felonies shall not apply to any person who has not been convicted of any felony for a period of ten years from the date of completion of sentence, probation, parole, or suspension of sentence. (Emphasis added.)

In State v. Castor , 50,512 (La. App. 2 Cir. 4/13/16), 194 So.3d 668, this court stated that to support a conviction for possession of a firearm by a convicted felon, the state must prove: (1) the possession of a firearm; (2) a previous conviction of an enumerated felony; (3) absence of the 10-year statutory period of limitation; and (4) general intent to commit the offense. Citing State v. Law , 45,435 (La. App. 2 Cir. 8/11/10), 46 So.3d 764. This court also stated:

Absence of the 10-year prescriptive period is an essential element of the offense. State v. Williams , 366 So.2d 1369 (La. 1978), overruled on other grounds , State v. Landry , 588 So.2d 345 (La. 1991). A convicted felon who completed his sentence and supervision is not prohibited from possessing firearms. As such, the state has the burden of proving that the 10-year prescriptive period had not elapsed when charging a defendant under La. R.S. 14:95.1. Id. (Emphasis added.)
In proving every element of the offense, the state must prove not only the felony conviction, but the date of completion of the punishment. Evidence of the initial sentence imposed is not sufficient to establish the date of completion of punishment. State v. Miller , 499 So.2d 281 (La. App. 1st Cir. 1986). In other words, in order to prove that the 10-year cleansing period has not elapsed, the state must present evidence of the date (sic ) termination of sentence. State v. Harris , 444 So.2d 257 (La. App. 1st Cir. 1983), writ denied , 445 So.2d 1234 (La. 1984) ; State v. Knight , 99-138 (La. App. 5th Cir. 6/30/99), 738 So.2d 1179.

In State v. Raymo , 419 So.2d 858 (La. 1982), the Louisiana Supreme Court found that "[b]ecause the state's case was devoid of evidence of an essential element of the charged offense, ... defendant's conviction and sentence must be set aside, ... regardless of how the error is brought to the attention of the reviewing court." See also , State v. Williams , 13-1226 (La. 12/2/13), 131 So.3d 33.

In the case sub judice , the record reflects that the state failed to prove the essential element that the ten-year cleansing period had not elapsed between Defendant's conviction and eventual parole revocation in Docket No. 229,735 when he pled guilty to simple burglary on August 26, 2003, and the crimes for which he was being tried, which were committed in March 2017. Although Goeders testified that Defendant's parole was revoked in the 2003 simple burglary case, the state failed to present any evidence of the date of completion of sentence, probation, parole or suspension of sentence. The jury could not have reached a competent verdict of guilty of attempted possession of a firearm by a convicted felon without being presented with this information.

For the foregoing reason, the conviction on Count Three for attempted possession of a firearm by a convicted felon is hereby reversed.

CONCLUSION

For the foregoing reasons, Defendant Antonio D. Robinson's conviction and sentence on Count Three for attempted possession of a firearm or carrying of a concealed weapon by a convicted felon are reversed. The two convictions for attempted possession of a Schedule II controlled dangerous substance (Counts One and Two) are affirmed; however, due to the error patent, the sentences for these counts are vacated and the matters remanded for resentencing in accordance with La. R.S. 14:27 and 40:967(C)(2).

REVERSED IN PART, VACATED IN PART AND REMANDED.