author: STEWART, J.

text:
    STATE of Louisiana, Appellee, v. Leon G. ANGEL, Appellant.
    Nos. 44,924-KA, 44,925-KA, 44,926-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 27, 2010.
    Louisiana Appellate Project by Jane L. Beebe, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Assistant District Attorney, for Appellee.
    Before STEWART, GASKINS and MOORE, JJ.
   STEWART, J.

|,In these consolidated cases, the defendant, Leon G. Angel, was charged with possession of Schedule II CDS, namely Methamphetamine, in violation of La. R.S. 40:967, possession of Schedule II CDS, namely Amphetamine, in violation of La. R.S. 40:967, and the creation of a clandestine laboratory in violation of La. R.S. 40:98s. After the denial of his motion to suppress evidence obtained during the search of his home and property, Angel entered a Crosby plea and was sentenced to three years’ imprisonment at hard labor for each count of possession of Schedule II CDS. On the remaining count, he was sentenced to ten years’ imprisonment at hard labor with five years suspended and the remaining five years to be served without the benefit of probation, parole, or suspension of sentence. Angel now appeals the denial of his motion to suppress. Finding no reversible error, we affirm the trial coui't’s denial of the motion to suppress and the defendant’s convictions.

FACTS

On February 19, 2008, a hearing on the motion to suppress the evidence was held. Angel had been previously convicted in Caddo Parish of possession of Schedule II CDS, Methamphetamine. He was on probation and under the supervision of probation officer Randy Rabb.

Rabb stated that on June 7, 2006, he administered a drug test in which Angel tested positive for methamphetamine. Rabb stated he did not move for an arrest on the failed drug test and, instead, referred Angel to “substance abuse.” On June 20, 2006, Rabb was notified by Officer Allen | .¿Dupree, Rabb’s coworker, that Judge Crichton wanted Angel arrested because of the failed drug test. Rabb testified he did not remember having any communication with someone working for the Office of Community Services about a confidential drug report. He also testified that he did not know who relayed information about the failed drug test to Judge Crichton. However, he stated that his supervisor, Larry Peka, was apparently the person who communicated with Judge Crichton about arresting Angel. Rabb stated he drafted the warrant for the arrest on June 21, 2008, the day after Angel’s arrest because he was acting under an oral order to arrest Angel and did not have time to draft a written warrant.

Officer Rabb testified that he, along with Officer Wayne Hornsby and Officer Dupree of Louisiana Probation and Parole, and several Bossier Parish Deputies went to Angel’s residence. Rabb stated that suspected methamphetamine residue, several beakers, flasks, and other types of drug paraphernalia used in the manufacture of methamphetamine, were seized from a boat house located about 100 yards behind the defendant’s residence.

Probation Officer Wade Hornsby testified that upon entering the defendant’s property, the group saw a young woman in front of the home and, when asked, she informed the officers that Angel was in a travel trailer located to the left of the home. As the officers approached, Angel stepped out of the trailer and was arrested for probation violations. Hornsby stated 13the probation officers entered the trailer and saw scales, syringes, and a vial with residue which the officers suspected to be narcotics. Hornsby stated that he did not communicate with Judge Crichton, and did not know how he found out about the failed drug test.

Probation Officer Alan Dupree testified that he was in the office when his supervisor, Larry Peka, advised him that he received a phone call from Judge Crichton ordering the arrest of Angel. On the way to arrest Angel, Dupree stated Rabb told him he had been informed that Angel may be manufacturing methamphetamine, but did not disclose the source of the information. Dupree stated that after the arrest, he searched the boathouse while another officer went to search the pool house. The door to the boathouse was locked and the officers attempted to use Angel’s keys to open the door; however, none of them worked. Officer Dupree stated he then looked through a window, saw a rifle scope sitting on a table and then entered the boathouse through the window. Various tubes and canisters were discovered inside the boathouse. Based on their experience, the probation officers determined that these things were likely instruments used in the production of methamphetamine and informed the deputies who, at that point, decided to get a search warrant for the property.

Bossier Parish narcotics agent Shawn Phillips stated he obtained the search warrant for the property. He stated that he observed syringes containing apparent methamphetamine solutions in them, components used in the manufacture of methamphetamine, acids, solvents, lithium batteries, pills, digital scales, and marijuana. Phillips stated that he was the affiant in |4the search warrant. He stated that the probable cause was based on his observations the day of the arrest. He stated that absent the prior search, and statements Angel gave after his arrest, there was no probable cause to get the search warrant.

Based on the results of the search, the defendant was charged with possession of a Schedule II CDS, namely Methamphetamine, in violation of La. R.S. 40:967, possession of Schedule II CDS, namely Amphetamine, in violation of La. R.S. 40:967, and the creation of a clandestine laboratory, in violation of La. R.S. 40:983. Angel was also charged with possession of marijuana and possession of drug paraphernalia. However, pursuant to a plea agreement these charges were dropped. The defendant filed a motion to suppress, which the trial court denied. The defendant then accepted a plea offer and pled guilty pursuant to the provisions of State v. Crosby, 338 So.2d 584 (La.1976), which reserves the defendant’s right to appeal the trial court’s decision to deny his motion to suppress.

Angel was sentenced to three years’ imprisonment at hard labor for each count of Possession of a Schedule II CDS. He was sentenced to ten years’ imprisonment at hard labor with five years suspended and the remaining five to be served without the benefit of probation, parole, or suspension of sentence for the creation of a clandestine laboratory charge. Upon release, the defendant is to serve three years of active supervised probation and pay a $3,000 fine and court costs. All three sentences imposed are to be served concurrently with credit for time served. A motion to reconsider the sentence was filed and denied. The instant appeal ensued.

LAW AND DISCUSSION

In the defendant’s sole assignment of error, he argues that the trial court erred in failing to grant his motion to suppress the evidence because the evidence was illegally retrieved. The defendant argues that the probation officers exceeded their authority when they began searching the property.

When a trial court rules on a defendant’s motion to suppress, the appellate court must look at the totality of the evidence presented at the hearing on the motion to suppress. The appellate court should not overturn a trial court’s ruling unless the trial court’s conclusions are not supported by the evidence, or there exists an internal inconsistency in the testimony of the witnesses, or there was a palpable or obvious abuse of discretion. State v. Robertson, 2006-167 (La.App. 3 Cir. 7/16/08), 988 So.2d 294; State v. Gaspard, 96-1279 (La.App. 3 Cir. 2/11/98), 709 So.2d 213.

U.S. Const. Amend. IV states in pertinent part:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.

La. Const. Art. I, § 5 specifies a right to privacy:

Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy.
La. C. Cr. P. Art. 899(B) states:
B. If a probation officer has reasonable cause to believe that a defendant has violated or is about to violate a condition of his probation or that an emergency exists so that awaiting an order of the court would create an undue risk to the public or to the probationer, the probation officer may arrest the defendant without a warrant, or may authorize a peace officer to do so. | f,The authorization may be in writing or oral, but if not written, shall be subsequently confirmed by a written statement. The written authorization or subsequent confirmation delivered with the defendant to the official in charge of a parish jail or other place of detention shall be sufficient authority for the detention of the defendant. The probation officer shall immediately notify the proper court of the arrest and shall submit a written report showing in what manner the defendant violated, or was about to violate, a condition of his probation.

While a warrantless search is generally unreasonable, a person on parole or probation has a reduced expectation of privacy under the Fourth Amendment of the U.S. Constitution and under Article I, § 5 of the Louisiana Constitution.

Probationers and parolees occupy essentially the same status. Both, it is well recognized, have a reduced expectation of privacy which allows reasonable warrantless searches of their person and residence by them probation or parole officer, even though less than probable cause may be shown. State v. Malone, 403 So.2d 1234 (La.1981); State v. Vailes, 564 So.2d 778 (La.App. 2 Cir. 6/20/90). That reduced expectation of privacy evolves from a probationer’s conviction and agreement to allow a probation officer to investigate his activities in order to confirm compliance with the provisions of his probation. It is an appropriate function of a probation officer to conduct unannounced, random checks on probationers. A probationer agrees to submit to such unannounced visits from his parole officer as a condition of parole. State v. Robertson, 2006-167 (La.App. 3 Cir. 7/16/08), 988 So.2d 294.

An individual on probation does not have the same freedom from governmental intrusion into his affairs as does the ordinary citizen. United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001); State v. Drane, 36,230 (La.App. 2 Cir. 9/18/02), 828 So.2d 107. A probationer’s or parolee’s reduced expectation of privacy occurs as a result of his prior conviction and the circumstance of his agreement to allow a probation or parole officer to investigate his activities in order to confirm compliance'with the conditions of his probation or parole. State v. Drane, supra. As a probationer, Angel has a reduced expectation of privacy.

However, a probationer is not subject to the unrestrained power of the authorities. Even though warrantless searches by a probation or parole officer are allowed, a search to which a probationer is subjected may not serve as a subterfuge for a police investigation. Instead, it is to be conducted when the probation officer believes such a search is necessary in the performance of his duties, and must be reasonable in light of the total atmosphere in which it takes place. State v. Robertson, supra; State v. Vailes, supra.

In Malone, the Louisiana Supreme Court adopted the factors from Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447, 481 (1979), to determine if a warrantless search of a probationer’s home violated the probationer’s Constitutional rights. The factors include: (1) the scope of the particular intrusion, (2) the manner in which it was conducted, (3) the justification for initiating it, and (4) the place in which it was conducted.

In Malone, the court stated in that case the search was not a subterfuge for a police investigation because the police were not the ones |Rwho initiated the search. Rather, it was the parole officer who called the police.

Rabb’s duty as a probation officer demanded that he assure Angel’s compliance with the terms of probation. Angel’s reduced expectation of privacy, in turn, allows for an intrusion on his person and residence by his probation officer.

When applying the reasonableness factors adopted in Malone, we find that the officers did not exceed their authority and did act reasonably when conducting this search. In regards to the first factor, the scope of the particular intrusion was appropriate because the officers were validly on the premises to arrest Angel pursuant to a bench warrant issued by Judge Crichton who sentenced Angel to probation. As stated above, this bench warrant was issued pursuant to Angel’s failed drug test.

After examining the second factor, the manner in which the search was conducted, we agree that the officers acted appropriately. Since the officers were on the property pursuant to an arrest warrant, their presence was not intrusive.

The officers clearly met the third factor, which is the justification for initiating the search. When the officers arrived at Angel’s trailer to arrest him, they observed narcotics, drug paraphernalia, and the scope of a rifle in plain view. Considering the surrounding circumstances, including the facts that drugs and drug paraphernalia were already discovered in the trailer, that Angel was not allowed to have firearms and that a rifle scope was in plain view, we agree with the trial court that the manner in which the officers entered the boathouse was proper. Additionally, the officers initially |nattempted to get keys from Angel and did not destroy property when entering the trailer. These factors combined justify initiating the search on Angel’s property.

Addressing the fourth and final factor, we definitely agree that the officers acted appropriately in searching Angel’s home. While the home is a sacred venue for people, as previously stated, a warrantless search of the home of a probationer by a probation officer is permissible if the officer has a reasonable suspicion that criminal activity is occurring. State v. Drane, supra; State v. Malone, supra. The officers in this matter had a valid arrest warrant for Angel who was placed on probation for possession of CDS and subsequently failed a drug test. One of the officers in the case was also informed that Angel was manufacturing drugs. Inspecting the trailer was within the bounds of reason. After discovering the illicit items in the trailer and viewing the rifle scope, the ensuing search in the boathouse was justified as well.

The defense points to Officer Phillips’ testimony to persuade the court that probable cause did not exist. The existence of probable cause is of little importance as the jurisprudence is clear that something less than probable cause is enough to justify a search of a probationer.

While a probationer still has a right to privacy, it is clearly a diminished right. Therefore, this assignment of error has no merit.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s denial of the motion to suppress and the defendant’s convictions.

AFFIRMED.

      . Since the entire record for all three cases is in No. 44,924-KA, and they are the same procedurally, no distinction between the cases will be made hereinafter.

      . Judge Crichton sentenced Angel in his first conviction for possession of Methamphetamine.

      .In ils brief, the defense states it was unable to call Agent Peka and chose not to call a sitting judge.


source: Caselaw Access Project

author: BROWN, Chief Judge.

license: Public Domain

text:
    Nyle Anthony POLITZ, Plaintiff-Appellee, v. Alice Catherine Bordelon POLITZ, Defendant-Appellant.
    No. 44,885-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 27, 2010.

      David C. Hesser, Steven L. Prejean, Alexandria, for Appellant.
    Gary A. Bowers, for Appellee.
    Before BROWN, WILLIAMS, DREW, MOORE, and BODDIE (Ad Hoc), JJ.
   BROWN, Chief Judge.

|defendant, Alice Catherine Bordelon Politz, appeals the judgment of the trial court granting an exception of res judicata filed by plaintiff, Nyle Anthony Politz. For the following reasons, we reverse and remand.

Facts and Procedural Background

Catherine Politz filed for final periodic spousal support on February 28, 2003. In response, Nyle Politz filed a petition for rule nisi to deny final spousal support on July 19, 2004. The trial court signed a judgment on April 26, 2005, awarding “final periodic spousal support in the amount of $658.00 monthly ... until the mortgage debt on the house and lot previously owned by the community in which Catherine Politz resides is paid in full.” Catherine appealed the judgment of the trial court, and the matter was heard by the First Circuit Court of Appeal.

During the pendency of the appeal, Nyle Politz filed a rule and obtained an order terminating Catherine’s exclusive use of the former matrimonial domicile and authorizing him to market and sell the property. On August 30, 2006, while the property was still on the market and the appeal pending, Catherine filed for an increase in final periodic spousal support. On December 14, 2006, the former matrimonial domicile in which Catherine had been living was sold for the sum of $290,000, and the mortgage indebtedness was extinguished. On December 15, 2006, the trial court ordered that from the net sale proceeds Ms. Politz would receive an advance in the amount of $15,000. The judgment further deemed Ms. Politz’s request for an increase in final periodic support to be moot and 12dismissed it without prejudice; however, it reserved the parties’ rights to “a determination as to the amount of final periodic spousal support (if any) and any other issue conceivably germane to a determination of final periodic spousal support.”

The ruling of the First Circuit Court of Appeal was handed down on August 1, 2007. In its ruling, the court affirmed the trial court's finding of entitlement to final periodic support, but amended the trial court’s award of $658 a month to $1,300, “due and payable monthly until such time as the mortgage debt on the house and lot previously owned by the community, in which Mrs. Politz resides, is paid in full.” Ms. Politz’s subsequent writ to the Louisiana Supreme Court was denied on January 7, 2008.

On October 24, 2007, Ms. Politz filed a rule to show cause why spousal support should not be increased, which was later supplemented and amended to include, in the alternative, a rule to show cause why spousal support should not be awarded. In response, Mr. Politz filed a peremptory exception of res judicata, which the trial court granted in a signed judgment on January 15, 2009. From this judgment, Ms. Politz appeals.

Discussion

An award of periodic spousal support may be modified, waived, or ended if the circumstances of either party materially change. La. C.C. art. 114; La. C.C. art. 116; Mizell v. Mizell, 41,487 (La.App.2d Cir.11/03/06), 942 So.2d 1191, 'unit denied, 06-2884 (La.03/09/07), 949 So.2d 440. The ability to modify a periodic award includes the ability to have a fixed-duration award extended. La. C.C. art. 114, Revision Comment (b). The party seeking the modification of support carries the burden of proving that circumstances have changed since the original award. Gibbs v. Gibbs, 33,169 (La.App.2d Cir.06/21/00), 764 So.2d 261.

On appeal, Ms. Politz contends that the trial court erred in granting Mr. Politz’s exception of res judicata because a support award is always subject to modification and the basis for the modification sought in the present case has never been litigated. Mr. Politz argues, however, that the issue of duration has been adjudicated, decided by the trial court and affirmed by the First Circuit Court of Appeal. Thus, Mr. Politz asserts, the trial court was correct to find that Ms. Politz was barred by the exception of res judicata from trying to relitigate the issue again.

The doctrine of res judicata is to be strictly construed, and any doubt as to its applicability is to be resolved in favor of maintaining plaintiffs action. Thurston v. Thurston, 31,895 (La.App.2d Cir.08/20/99), 740 So.2d 268. Res judicata basically performs two functions: (1) it bars relitigating matters that have never been litigated but should have been advanced in an earlier suit, and (2) it bars relitigating matters that have been previously litigated and decided. La. R.S. 13:4231; La. C.C.P. art. 425; Stelly v. Stelly, 07-640 (La.App. 3d Cir.11/07/07), 969 So.2d 1283. Res | judicata, however, has only limited application in divorce actions and matters incidental to divorce. La. R.S. 13:4232(B); La. C.C.P. art. 425(B); Gilbreath v. Gilbreath, 32,292 (La.App.2d Cir.09/22/99), 743 So.2d 300.

In the case sub judice, Ms. Politz first filed for an increase in support on August 30, 2006. At that time the former matrimonial domicile had not yet been sold and the appeal on the original support judgment was still pending. Then on December 14, 2006, the house was sold and the mortgage was satisfied. The following day a hearing was held on Ms. Politz’s rule for an increase in support, as well as Mr. Politz’s demand for reimbursement from the sale proceeds. During the hearing the trial court made the determination to reimburse Mr. Politz for certain expenses, as well as advance to Ms. Politz $15,000 from the sale proceeds. As a result of its advancing Ms. Politz $15,000, the trial court further determined that the rule to modify support was moot. More specifically, the trial court stated:

In view of the court’s ruling on these matters, that is that there will be a relatively immediate payment to Ms. Politz of fifteen thousand dollars ... that a hearing on the rule to modify that periodic support will be moot, at least for the immediate future. Now by immediate future I mean for the next thirty days. (Emphasis added).

The subsequent judgment of the trial court restated its finding of mootness and dismissed Ms. Politz’s demand for modification without prejudice. The judgment ordered “that any issue regarding the demand for further final periodic spousal support shall be reserved to both [Ms. Politz and Mr. Politz], including, but certainly not limited to, her entitlement to final periodic spousal support.... ”

Ms. Politz filed another rule to increase support on October 24, 2007, which was later supplemented and amended to include, in the alternative, a rule to show cause why spousal support should not be awarded. Mr. Politz filed an exception of res judicata. The trial court granted Mr. Politz’s exception of res judicata on the basis that the argument made by Ms. Politz “should have been mentioned at the time of the final judgment with reserving her right to bring that.... ” In other words, the trial court found that Ms. Politz’s action to have her support award modified, and/or re-awarded, should have been advanced at the December 15, 2006, hearing.

Although failing to litigate a matter that should have been advanced in an earlier action will often prevent a party from being able to litigate that matter in a subsequent action, there are exceptions. La. R.S. 13:4232 provides the following exceptions to the general rule of res judicata:

A. A judgment does not bar another action by the plaintiff:
(1) When exceptional circumstances justify relief from the res judicata effect of the judgment;
(2) When the judgment dismissed the first action without prejudice; or,
(3) When the judgment reserved the right of the plaintiff to bring another action.
B. In an action for divorce under Civil Code Article 102 or 103, in an action for determination of incidental matters under Civil Code Article 105, in an action for contributions to a spouse’s education or training under Civil Code Article 121, and in an action for partition of community property and settlement of claims between spouses under R.S. 9:2801, the judgment has the effect of res judicata onlg as to causes of action actuallg adjudicated. (Emphasis added).

Based upon the aforementioned, the trial court erred in granting Mr. Politz’s exception of res judicata due to Ms. Politz’s failure to argue at the 16earlier hearing on December 15, 2006, that support should be awarded after the mortgage indebtedness of the former community home was paid. In fact, the trial court’s error was threefold. First, the December 15 judgment dismissed the request without prejudice. Second, that judgment explicitly reserved to Ms. Politz the right to seek further final periodic spousal support. And lastly, Ms. Politz’s rule to modify periodic support was not actually adjudicated, as was shown by the trial court’s statement “that a hearing on the rule to modify that periodic support will be moot, at least for the immediate future.”

Mr. Politz next urges that Ms. Politz’s request for spousal support is res judicata because the original support judgment (April 26, 2005), and the subsequent First Circuit affirmation, held that he was only required to pay support until the mortgage indebtedness on the community house and lot were paid in full. If we agreed with this argument we would, in essence, be saying that a trial court judgment that sets the duration of spousal support, and is affirmed on appeal, is not subject to modification. Not only would this deprive a necessitous party with a change in circumstances from being able to seek modification of the original support award’s fixed duration, it would also go against the legislature’s intent. Revision Comment (c) of La. C.C. art. 112 provides:

Other factors may also form the basis of a fixed-duration award, but it is contemplated that such awards will ordinarily be based upon the assumption that certain facts (such as employment of the recipient) will occur within the term fixed in the judgment awarding support. If those facts have not occurred at or after the expiration of the specified term, the recipient may seek modification of the judgment upon proof that circumstances have changed since the awards were 17made; i.e., that the facts that the court assumed would occur did not. (Emphasis added).

See also La. C.C. art. 114, Revision Comment (b), supra.

A review of the original support judgment of April 2005 does not reveal what facts, if any, the trial court may have assumed would occur during the term fixed. An argument could be made that the trial court, as well as the court of appeal, assumed that in the event the home had to be sold, the equity from the sale of the house would be sufficient to sustain Ms. Politz, who like Nyle, is an attorney. On the other hand, the courts could have assumed that the mortgage on the house would have been paid off, and Ms. Politz would have been able to reside there without having to pay a monthly mortgage. Regardless of the assumption, we note that a finding of a change in circumstances does not axiomatically result in a modification or termination of support. Such a finding does, however, shift the burden to the party opposing modification or termination of support to prove need, or lack thereof, and the relevant factors set forth in La. C.C. art. 112. Gilbreath, supra.

Conclusion

For the foregoing reasons, the judgment of the trial court granting Nyle Anthony Politz’s peremptory exception of res judi-cata is reversed, and the matter is remanded for further proceedings. Costs of this appeal are assessed to plaintiff, Nyle Anthony Politz.

      . This court entered an en banc recusal order on October 26, 2005, due to Ms. Politz being employed with the court as a law clerk at the time.

        . See Politz v. Politz, 05-2568 (La.App. 1st Cir.08/01/07), 2007 WL 2193547, writ denied, 07-2137 (La.01/07/08), 973 So.2d 728.

      . The Honorable John Joyce granted the exception of res judicata. All previous matters, however, were presided over by the Honorable Charles Scott.

      .La. C.C. art. 114, Revision Comment (b) states: "The recipient of a rehabilitative or other fixed-duration periodic award may also seek to have it modified or extended under this Article."


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee, v. W.D. WALLACE, Appellant.
    No. 44,880-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 27, 2010.

      Peggy J. Sullivan, Monroe, for Appellant.
    Robert W. Levy, District Attorney, Carey T. Brown, Samuel A. Shealy, Clifford R. Strider, III, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, GASKINS and PEATROSS, JJ.
   WILLIAMS, J.

_JjThe defendant, W.D. Wallace, was charged by amended bill of information with two counts of accessory after the fact to armed robbery, violations of LSA-R.S. 14:25. After a jury trial, the defendant was found guilty as charged. He was sentenced to 5 years’ imprisonment at hard labor for each count, with the sentences to be served consecutively. Defendant appeals his sentences as excessive. For the following reasons, we affirm.

FACTS

In August 2003, the defendant drove two individuals to the Community Trust Bank in Ruston, Louisiana. Those two individuals entered the bank brandishing pellet (BB) pistols, ordered the employees to the floor at gunpoint and removed money from the teller drawers. The robbers then fled the bank, ran across a busy road and entered the defendant’s vehicle. Defendant drove westbound on Interstate 20 until he was stopped by police in Minden, Louisiana. As a result of a search of the vehicle pursuant to a warrant, the police recovered a pellet gun from the space beside the driver’s seat, along with a bag which contained more than $25,000 and two additional pellet guns. Subsequently, the defendant was charged with two counts of accessory after the fact to armed robbery.

After a jury trial, the defendant was found guilty as charged. The trial court sentenced defendant to serve 5 years at hard labor for each count, with the sentences to run consecutively. The defense objected in open court to the imposition of consecutive sentences, but did not file a motion to reconsider sentence.

^DISCUSSION

The defendant contends the district court erred in imposing an excessive sentence. Defendant argues that since both counts resulted from his commission of a single act and he did not have any prior criminal convictions, then the sentences should run concurrently and not consecutively.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in LSA-C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of Article 894.1, not rigid or mechanical compliance with its provisions. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App.2d Cir.8/13/08), 989 So.2d 267. A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, this court will not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App.2d Cir.5/12/04), 873 So.2d 939.

Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a|spurposeless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993). A 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, 2001-0467 (La.1/15/02), 805 So.2d 166. The penalty for conviction as an accessory after the fact is a fíne of not more than $500 or imprisonment, with or without hard labor, for not more than 5 years, or both. LSA-R.S. 14:25.

Prior to imposing sentence, the district court reviewed a presentence investigation (PSI) report, which included the facts of the offense and indicated that defendant had been previously arrested for robbery and theft in California. The court considered the sentencing guidelines of Article 894.1, specifically finding there was an undue risk that defendant would commit another offense if not incarcerated, that the defendant was in need of correctional treatment or a custodial environment which could be most effectively provided by his commitment to an institution, and that a lesser sentence would deprecate the seriousness of the crime. As mitigating factors, the court observed that the defendant was a first time felony offender who was 23 years old at the time of sentencing.

In his brief, defendant asserts that because he was a first felony offender with convictions arising from the same course of conduct, the sentences should be served concurrently. LSA-C.Cr.P. art. 883 provides that if the defendant is convicted of two offenses based on the same act, the terms of imprisonment shall be served concurrently unless the court |4expressly directs that some or all be served consecutively.

Concurrent sentences arising out of a single course of conduct are not mandatory and it is within a trial court’s discretion to order sentences to run consecutively rather than concurrently. State v. Boudreaux, 41,660 (La.App.2d Cir.12/13/06), 945 So.2d 898. When consecutive sentences are imposed, the court shall state the factors considered and its reasons for the consecutive terms. State v. Harris, 42,376 (La.App.2d Cir.9/26/07), 966 So.2d 773. Among the factors to be considered are the defendant’s criminal history, the gravity or dangerousness of the offense and the harm done to the victims. State v. Harris, supra.

Here, the trial court expressly directed that the sentences be served consecutively, noting that defendant’s cooperation with the armed robbers, who used threats of violence, created a risk of death or great bodily harm to multiple persons. Although defendant did not have a prior conviction, the court pointed out that defendant had previously been arrested in connection with robberies. In addition, the court emphasized that the offense resulted in significant emotional injury to the victims, who the court described as “severely traumatized.”

The record demonstrates that the district court was cognizant of the appropriate factors in sentencing this defendant. The trial court articulated adequate reasons for the imposition of the consecutive 5-year sentences, which are neither grossly disproportionate to the severity of the offenses committed nor an abuse of the court’s discretion. Thus, we cannot say the sentences are constitutionally excessive. The assignment of error lacks 1 r,merit. We have examined the record for error patent and found none.

CONCLUSION

For the foregoing reasons, the defendant’s convictions and sentences are affirmed.

AFFIRMED.


text:
    STATE of Louisiana, Appellee, v. Montie MONTGOMERY, Appellant.
    No. 44,877-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 27, 2010.

      H. Melissa Sugar, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, John W. Montgomery, C. Sherburne Sentell, III, Assistant District Attorneys, for Appellee.
    Before BROWN, STEWART, and CARAWAY, JJ.
   BROWN, Chief Judge.

| defendant, Montie Montgomery, was charged in a two-count bill of information which stated that on November 25, 2006, he possessed a Schedule II Controlled Dangerous Substance (CDS), namely crack cocaine, in excess of 28 grams, and conspired to distribute a Schedule II CDS, namely crack cocaine. On March 14, 2007, a jury found defendant guilty on both counts. On May 21, 2007, defendant was given concurrent hard labor terms of 28 and 14 years. A pro se motion to reconsider sentence was denied on August 27, 2007. Defendant appealed the convictions and sentences and this court affirmed. State v. Montgomery, 42,835 (La.App.2d Cir.01/09/08), 974 So.2d 110.

On August 24, 2007, while the appeal was pending, the prosecutor filed a bill of information charging Montgomery as a three-time habitual offender. La. R.S. 15:529.1. On February 25, 2008, a motion for new trial based on newly discovered evidence was filed. We note that the jury’s guilty verdicts were rendered on March 14, 2007, and the appellate decision was rendered on January 9, 2008. See La. C. Cr. P. art. 853.

Following an evidentiary hearing, the trial court denied the motion for new trial on February 25, 2009. Having found defendant to be a second felony offender, the court sentenced him to concurrent terms of 55 years on the first count (possession of crack cocaine in excess of 28 grams) and 25 years on the second count (conspiracy to distribute). A motion to |2reconsider the sentence was filed and denied. An appeal was filed urging that the trial court erred in denying the motion for a new trial based on newly discovered evidence; that defendant was incorrectly adjudicated a second felony offender; and that his sentence is excessive. We affirm.

Discussion

New Trial Motion

The present case arose out of events which took place on November 25, 2005. Defendant argues that the trial court erred in denying the motion for new trial. He claims to have discovered new and material evidence that would probably have changed the guilty verdict. The facts developed at the trial are set forth in this court’s original opinion as follows:

Lieutenant Dan Weaver was qualified as an expert in narcotics investigation and packaging. Lieutenant Weaver testified that on November 25, 2005, he met with Adams, a confidential informant, and talked to him about purchasing illegal drugs from Montgomery. Adams made contact with Montgomery by phone. In the phone conversation, Adams and Montgomery agreed to meet at a home in Minden, Louisiana, to complete the drug transaction. Adams was given $1,000 to make the purchase of crack cocaine from the defendant. Lieutenant Weaver testified that $1,000 worth of crack cocaine would not be for personal use.
Prior to the drug buy, Adams’s person and vehicle were searched to ensure that he had no illegal crack cocaine or money. Thereafter, Adams was fitted with video and audio and was given $1,000 to buy crack cocaine from the defendant. Lieutenant Weaver further testified that he followed Adams to a house in Minden where the drug transaction between Adams and the defendant occurred. Lieutenant Weaver stated that afterward, Adams left the residence and returned directly to Lieutenant Weaver at a pre-arranged location. Adams handed Lieutenant Weaver a bag that had $1,000 worth of cocaine and another bag with eight additional rocks of crack cocaine. Lieutenant Weaver testified that Adams informed him that the defendant had given him eight additional rocks of crack cocaine with instructions to sell the cocaine for partying and drinking money. At lotrial Lieutenant Weaver was able to identify both Montgomery and the drugs that were purchased from him. He testified that the crime lab determined the weight of the cocaine without the bag to be 29.28 grams
During Lieutenant Weaver’s testimony, a video of the transaction was played to the jury. Based upon his expertise and observation of the video, Lieutenant Weaver was able to point out references to money being transferred and the amount of cocaine being sold.
Adams corroborated Lieutenant Weaver’s testimony that he and his vehicle were searched by Lieutenant Weaver prior to the transaction. He further testified that he was equipped with an undercover camera attached to a button on his shirt. Adams stated that he called Montgomery and arranged to purchase an ounce of cocaine from him. Montgomery instructed Adams to meet him at the residence belonging to Sheppard. When Adams arrived at the residence, Sheppard, her child and Montgomery were the only individuals present.
Adams testified that while he was inside the residence, he purchased $1,000 worth of cocaine from Montgomery. Montgomery put the crack on a “digital,” and it weighed about thirty grams. Adams also testified that as he was about to get into his vehicle to leave the residence, Montgomery gave him eight additional rocks of cocaine and told him to sell it so that they would have money to buy drinks that night. Adams testified that after he left the residence, he returned directly to Lieutenant Weaver and turned over the cocaine. Adams was shown and identified the video of the transaction. Adams also testified that the conversation on the video included his telling Montgomery that he had $1,000. He identified that portion of the video where he counted the money and put it on the table. Adams also identified that portion of the video where he told Montgomery “I got it,” referring to the additional eight rocks given to him by Montgomery. Adams identified the face on the video as Montgomery and also identified the photograph of the individual taken from the video as Montgomery.
Sheppard testified that she had known Montgomery for over ten years and that he had a key to her residence and came and went as he pleased. On November 25, 2005, Adams came to her home. Montgomery was also at her residence that day. On the day in question, Sheppard testified that there were no other males present at her residence while Adams and the defendant were there. Sheppard identified Montgomery in court and in the photographs taken from the video of the drug transaction. Sheppard viewed a portion of the video. She identified both Adams’s and Montgomery’s voices from the video, and she testified that the house depicted was her home.
^Lieutenant Marvin Garrett of the narcotics division of the Minden Police Department also testified. He testified that Adams first approached the Minden Police to assist them with purchasing cocaine from Montgomery. Lieutenant Garrett and Lieutenant Weaver rode together and maintained visual contact with Adams as he traveled to and from the buy location. He did not observe Adams make any stops either en route to or on the way back from the buy. The jury was allowed to view the video recording of the transaction during trial and deliberation. The video also shows Montgomery’s interaction with Adams. Adams’s explanation to the officers regarding his receipt of the extra cocaine is also heard during the video. Montgomery presented no evidence and did not testify on his own behalf.
State v. Montgomery, 974 So.2d at 117-118.

A man named Preston Key was defendant’s witness at the new trial motion. According to Key, Darren Adams asked him to set up Montgomery. Key claims that one night, around August or September of 2005, Adams showed him a Cadillac and asked him to put drugs underneath the vehicle. Key did not remember the model or year of the car or where it was located but claims that something about the car stood out to him. After defendant’s conviction and while in jail with defendant, Key saw a photograph sent to defendant by defendant’s family. He claims that the Cadillac shown in the photograph looked like the Cadillac that Adams asked him to plant drugs in. It was then that he realized that Adams had attempted to get him to frame defendant.

The defense claims that Montgomery was only convicted because of the testimony of the confidential informant, Darren Adams. The defense argued to the jury that Adams, as well as his mother and brother, had pending charges. According to the defense, Adams set up Montgomery so | she and his family could “work off their pending charges.” The defense states that prior to testifying Adams had a significant sentence, but after testifying against Montgomery, only received a sentence of ten years with five of those years suspended. Further, the defense claims that the video of the drug deal does not corroborate Adams’ testimony.

La. C. Cr. P. art. 851 states in part:

The court, on motion of the defendant, shall grant a new trial whenever:
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty.

Key’s alleged evidence was discovered after defendant’s trial; however, the evidence must be material to the issues at trial and of such a nature that it would probably produce a different verdict in the event of retrial. State v. Brisban, 00-3437 (La.02/26/02), 809 So.2d 923.

The trial court is required to determine whether or not the evidence is material and whether or not the evidence would cause the jury to reach a different verdict. A trial judge’s decision on a motion for new trial will not be disturbed absent a showing that the judge abused his discretion. State v. Fuller, 414 So.2d 306 (La.1982).

Defendant argues that Adams lied and without Adams’ testimony, there would be no other evidence to convict Montgomery due to the poor quality of the video of the transaction. This argument is without merit. On the previous appeal (from the trial), this same argument was made under the color of an insufficiency of the evidence claim. This court found that the|fievidence was sufficient and that the video did show the transaction between Montgomery and Adams and that the audio also corroborated Adams’ testimony. In addition there was a third party present, Ms. Sheppard, who also testified as to the transaction inside the house. State v. Montgomery, supra.

The trial court properly evaluated Key’s latent “jailhouse” memory and found that this information would not have produced a different verdict. We agree and find that the court did not abuse its discretion by denying the motion for new trial. Key’s sudden jailhouse moment of revelation is suspect. Even so, the alleged solicitation to plant evidence in an automobile two months earlier was never consummated. Adams did not show up nor did he pay Key the money to have it done. In the present case, the informant (Adams) went to a house under police surveillance and once inside, bought drugs from defendant. This transaction was recorded and the recording shown to the jury. A third person, who was inside the house, also testified as to what occurred. There is little significance to Key’s revelation.

Second Felony Offender

In a previous conviction for attempted possession of cocaine, defendant was adjudicated a second felony offender predicated on an obstruction of justice conviction in 1999, and his sentence at that time was enhanced from two and one-half years to five years. Defendant appealed that conviction and sentence, and this court affirmed. State v. Montgomery, 42,432 (La.App.2d Cir.09/19/07), 966 So.2d 127.

|7In the case sub judice, defendant was found to be a second felony offender again using the 1999 obstruction of justice conviction. According to the defense, a second enhancement cannot be imposed using the 1999 obstruction of justice conviction.

The State did not address this issue in its brief.

La. R.S. 16:529.1 (A)(1)(a) pertinently states:
A. (1) Any person who, after having been convicted within this state of a felony ... or who, after having been convicted under the laws of any other state or of the United States, or any foreign government of a crime which, if committed in this state would be a felony, thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:
a) If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction.

The supreme court in State v. Shaw, 06-2467 (La.11/27/07), 969 So.2d 1233, held that a previous conviction could be used as a predicate offense to again enhance a defendant’s sentence as a second felony offender. In that case, Shaw was convicted of five felonies resulting from a single set of circumstances. Shaw had two previous felony convictions and the sentences on all five of the instant convictions were enhanced based on these prior felony convictions. After a lengthy discussion of La. R.S. 15:529.1 and the rules of statutory interpretation, the court held that the Isdefendant’s prior convictions could be used to enhance all five of the instant convictions. The rationale was that using “clear and unambiguous terms, the statute exposes a person who has previously been convicted of a felony to enhanced penalties for any felony committed after the date of the prior felony conviction.” State v. Shaw, 969 So.2d at 1245. The court stated that “[t]he goal is to deter and punish recidivism by punishing more harshly those who commit the most crimes.” State v. Shaw, 969 So.2d at 1244; State v. Johnson, 97-1906, (La.03/04/98), 709 So.2d 672.

In State v. Pearson, 03-652 (La.App. 5th Cir.12/09/03), 861 So.2d 283, the defendant was convicted of possession of cocaine in 1990 and was convicted of theft in 1995. In 2000, the defendant pled guilty to possession of cocaine. A habitual offender bill was then filed charging Pearson with being a third felony offender. Pearson stipulated to the bill at the time but on appeal he urged that he was improperly adjudicated a third felony offender. Pearson claimed that the 1990 conviction had been used to adjudicate him a second felony offender and enhance his penalty after the 1995 conviction. Therefore, he argued it was “double enhancement” to use the 1990 conviction as a predicate for adjudicating him a third felony offender. The court held that there was no prohibition against using the same conviction multiple times in separate multiple offender hearings to sequentially establish the offender’s status.

lain the instant case, the issue is whether or not a predicate felony can be used to enhance a felony that has been subsequently committed if it has already been used to enhance another, unrelated crime. In State v. Shaw, supra, the Louisiana Supreme Court held that one predicate felony could be used to enhance five different felony convictions. The line of logic set forth by the court in State v. Shaw is consistent with La. R.S. 15:529.1’s purpose, which is to punish recidivist criminals. This reasoning is applicable to the present case. Montgomery is clearly a recidivist; therefore he falls within the parameters of the statute.

Excessive Sentence

The defense argues that the sentence in this case is excessive, even though it is not the maximum.

Defendant was sentenced as a second felony offender to concurrent sentences of 55 years imprisonment for possession of Schedule II CDS (in excess of 28 grams) and 25 years imprisonment for conspiracy to distribute a Schedule II CDS. Applying the enhancement provisions of La. R.S. 15:529.1 to La. R.S. 40:967 and La. R.S. 14:26, the judge could have sentenced the defendant for up to 60 years imprisonment for the possession charge and up to 30 years for conspiracy charge. The trial judge took cognizance of La. C. Cr. P. art. 894.1, and found that a lesser sentence would take away from the seriousness of the crime. Further, the judge considered the criminal history, as well as the family and social history, of 110defendant to determine that he has an established pattern of criminal behavior. Specifically, defendant has committed three other felonies. Sentencing this defendant to less than the maximum allowable sentence does not shock the sense of justice. State v. Weaver, 01-0467 (La.01/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir.01/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App.2d Cir.04/02/97), 691 So.2d 864.

Conclusion

Defendant’s convictions and sentences are affirmed.

      . Defendant was charged with and found guilty of possession of a Schedule II CDS, namely crack cocaine, in excess of 28 grams, and conspiring to distribute crack cocaine. The sentences were enhanced after defendant was adjudicated a second felony offender. At sentencing, the trial court referred to count one as distribution rather than possession in excess of 28 grams. Clearly, this was a slip of the tongue. However, according to La. R.S. 40:967(B)(4)(b) and La. R.S. 40:967(F)(l)(a), the maximum term for either is 30 years.

      . The other alleged prior crimes charged in the habitual offender bill were a Texas conviction for possession of cocaine in which defendant was placed on deferred adjudication and the attempted possession of cocaine conviction. The trial court's rejection of these offenses was not objected to or appealed by the state.

      . The defense relies on State v. Cass, 44,411 (La.App.2d Cir.08/19/09), 17 So.3d 486. In that case, a defendant had been convicted of armed robbery in 1977 and attempted aggravated rape in 1979; however, both of these convictions arose out of the same incident which occurred in 1974. Cass was convicted of another felony in 2008 and the State filed a third offense habitual offender bill of information. The defense in that case filed a motion to quash the bill arguing that two separate convictions from the same incident cannot be used as separate felonies for purposes of sentence enhancement. The trial court agreed and the issue was appealed. This court found that State v. Shaw, supra, was clearly distinguishable and affirmed the trial court’s decision.


text:
    Kendall Blake GASWAY, Plaintiff-Appellee, v. CELLXION, INC., Defendant-Appellant.
    Nos. 44,637-WCA, 44,638-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 27, 2010.

      The Smith Law Office by Linda L. Smith, for Appellants The Gray Ins. Co. and Cellxion, Inc.
    Fischer & Associates by Mark K. Man-no, Shreveport, for Appellee Kendall Blake Gasway.
    Before STEWART, GASKINS and LOLLEY, JJ.
   STEWART, J.

| , Defendants/Appellants, Cellxion, Inc. and the Gray Insurance Company (referred to jointly as “Cellxion”), are appealing a judgment rendered in favor of Plain-tifl/Appellee, Kendall Blake Gasway. Gasway has filed an answer requesting additional attorney’s fees for this appeal. For the reasons set forth below, we affirm the lower court’s judgment as amended and award an additional attorney’s fee.

FACTS

On April 24, 2004, Gasway was injured while working for Cellxion as a mechanical technician. On July 23, 2004, Dr. Marco Ramos, who is Gaswa/s employee’s physician of choice, performed lumbar disc surgery on him.

A Functional Capacity Evaluation (“FCE”) was performed on December 28, 2005, which revealed that Gasway could work at medium duty. Dr. Ramos agreed with these findings.

Cellxion hired Alice Rogers Bond, a vocational rehabilitation counselor, to identify suitable jobs for Gasway. In January of 2006, Ms. Bond identified three suitable jobs: (1) Caddo Parish Code Enforcement Inspector, (2) Allied Waste Customer Service Representative, and an (3) Alexandria X-Ray position. She also met with Dr. Ramos at a rehabilitation conference on March 21, 2006, where he approved four suitable jobs for Gasway: (1) Shreveport Housing Inspector, (2) Shreveport Warehouse Supervisor, (3) Manpower Shipping and Receiving Manager, and (4) Time Warner Dispatcher. Neither Gasway nor his counsel attended the 12conierence. Ms. Bond mailed Gasway a notice for these jobs, which he received via certified mail on March 24, 2006.

In April of 2006, Bond identified an additional suitable job as a City of Shreveport Code Enforcement Inspector. Gas-way interviewed for the Shreveport Code Enforcement position. Unfortunately, Gasway never received a response from the City of Shreveport.

In May of 2006, Ms. Bond identified a suitable job at Adesa Auto Auction. When Ms. Bond informed Gasway of the job at Adesa, he expressed concern because of his personal relationships with some of its employees. Ms. Bond testified that she was unsure of whether Gasway applied for that position.

On April 9, 2007, another rehabilitation conference was held. At this conference, Dr. Ramos restricted Gasway from working pending the results of an MRI. On May 3, 2007, Dr. Ramos reviewed the MRI results and noted that the MRI showed some improvement with the scar tissue. He did not comment on Gasway’s work status.

Dr. Ramos and Dr. Carl Goodman, who is the doctor selected by Cellxion to provide the second medical opinion, recommended pain management for Gasway. Based on these recommendations, Gasway submitted a request for pain management to the insurance adjuster in February of 2008. At the time of trial in August of 2008, the adjuster still had not approved pain management.

Prior to May 23, 2006, wage benefits were paid to Gasway at the rate of $375.84, based on an average weekly wage of $563.75. The insurance ^adjuster reduced the benefits based upon certain jobs identified by Bond. Accordingly, wage benefits were reduced and paid at the rate of $342.80 per month, from May 23, 2006 to date. Cellxion asserted that there was an overpayment of supplemental earnings benefits from February 14, 2006 to May 23, 2006, for which it is entitled to a reduction and/or credit against any benefits that might be owed.

Gasway subsequently filed a Disputed Claim Form 1008, asserting that the reduction in benefits was improper. He sought to recover additional supplemental earnings benefits as a result of a miscalculation or underpayment of indemnity benefits from May 23, 2006 to date, temporary total disability benefits from April 9, 2007 through May 3, 2007, attorney’s fees, and court costs. He also asserted that he was entitled to penalties for the underpayment, for the failure to pay TTD during April, and for the failure to approve the therapy without a second opinion.

The worker’s compensation judge (WCJ) found that Gasway’s Average Weekly Wage (AWW) was $563.76 with a corresponding monthly wage of $2,442.92. He also found that Gasway could not return to his pre-accident job because of his injuries and that the job at Adesa Auto Auction was the only suitable job for the purpose of reducing benefits. The WCJ determined that Cellxion failed to properly determine the Supplemental Earnings Benefits (SEB) rate and declared the SEB to be $704.17 per month based on the Adesa Auto Auction job which pays $8.00 per hour. Therefore, the monthly SEB should be $704.17, a difference of $361.37 per month from the $342.80 actually paid. Gasway was entitled to the ^underpayment of $361.37 per month since May 23, 2006, and legal interest on this amount from the date of judicial demand.

Gasway was also awarded medical treatment in the form of pain management. Dr. Ramos, who is Gasway’s treating physician, restricted him from work pending the outcome of an MRI. The WCJ determined that Gasway was entitled to temporary total disability (TTD) benefits in the amount of $900.06 for April and May 2007.

After finding that Cellxion was arbitrary, capricious, and unreasonable in its underpayment of benefits, its refusal to approve pain management, and its failure to pay TTD benefits, the WCJ awarded Gasway $8,000.00 in penalties. The WCJ also awarded Gasway $12,500.00 in attorney’s fees and $544.75 in court costs. Cellxion filed the instant appeal, urging six assignments of error.

LAW AND DISCUSSION

Supplemental Earnings Beneftts (SEB)

In the first assignment of error, Cellxion contends that Gasway was not entitled to additional SEB benefits because it proved that Gasway was able to earn at least 90% of his pre-accident wages. In the second assignment, Cellxion argues that it is entitled to an award for the overpayment of SEB benefits from February 14, 2006 to date. These assignments are discussed together due to their similarity.

Factual findings in worker’s compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Id. Where there are two permissible views of evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Thus, if the factfinder’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106 (La.1990).

The purpose of SEBs is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident. Banks, supra. Under the provisions of La. R.S. 23:1221(3)(a), an employee is entitled to receive SEBs if he sustains a work-related injury that results in his inability to earn 90 percent or more of her average pre-injury wage. La. R.S. 23:1221(3)(a); Frye v. Olan Mills, 44,192 (La.App. 2 Cir. 4/8/09), 7 So.3d 201; Smith v. Bossier Parish School Board, 39,590 (La.App. 2 Cir. 4/6/05), 899 So.2d 747, unit denied, 2005-1199 (La.11/28/05), 916 So.2d 147. Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. Id. Once the employee’s burden is met, the burden shifts to the employer who, in order to defeat the employee’s claim for SEBs or establish the employee’s earning capacity, must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the |fiemployee or that the job was available to the employee in his community or reasonable geographic region. Lee v. Heritage Manor of Bossier City, 41,858 (La.App. 2 Cir. 3/14/07), 954 So.2d 276; Banks, supra; Daigle v. Sherwin-Williams Co., 545 So.2d 1005 (La.1989). Actual job placement is not required. Banks, supra.

The method of determining the amount of an award of SEBs is provided in La. R.S. 23:1221(3)(a):

For injury resulting in the employee’s inability to earn wages equal to ninety percent or more of wages at the time of injury, supplemental earnings benefits equal to sixty-six and two-thirds percent of the difference between the average monthly wages at time of the injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment, whether or not the same or similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee at the time of the injury was particularly fitted by reason of education, training, and experience, such comparison to be made on a monthly basis. Average monthly wages shall be computed by multiplying his wages by fifty-two and then dividing the quotient by twelve.

As stated above, the WCJ found that Gasway established his inability to earn 90% of his pre-accident wages. Even though the WCJ determined that Cellxion proved that Gasway could perform the duties required for the Adesa Auto Auction job, he found that the other jobs submitted failed to meet the criteria required by Banks, supra.

Gasway testified that has trouble sitting or standing for long periods of time. He also stated that he suffers from “sharp pains, jerks, and jolts to his nervous system.” He also feels radiating pain pi'imar-ily in his right leg and occasionally in his left leg. Gaswa/s testimony is supported by |7medical records. We agree with the WCJ’s finding that Gasway was credible. Gasway clearly established his inability to earn 90% of his pre-accident wages.

The Caddo Parish Code Enforcement Inspector position required a bachelor’s degree in construction technology and/or a minimum of five years of experience directly related to construction inspection. The record does not indicate that he met either of those requirements. Mr. Gas-way’s educational background includes a high school diploma and approximately two years of college. His resumé failed to indicate the requisite five years of experience directly related to construction inspection.

The position at Alexandria X-Ray had already been filled, and a representative at Allied Waste informed Ms. Bond that although the company had not filled the position yet, she felt that Gasway was overqualified for the position. However, she indicated that she would consider hiring him.

The Shreveport Housing Inspector position, the Shreveport Warehouse Supervisor position, and the Time Warner Dispatcher position, which were all approved by Dr. Ramos at the rehabilitation conference on March 21, 2006, were not available. Gasway received written notice for these jobs via certified mail on March 24, 2006, which is the same day that the hiring period for these jobs closed. Bond submitted Gaswa/s resumé to the final job approved at the March 21, 2006 rehabilitation conference, which was the Manpower Shipping and Receiving Manager, but she never received any communication from the company.

| ¡¡When Gasway applied for the fifth suitable job as a City of Shreveport Code Enforcement Inspector, he never received a response from the City of Shreveport. In May of 2006, Ms. Bond identified a suitable job at Adesa Auto Auction. Even though Gasway expressed concern about this job because of his personal relationships with some of its employees, that does not deem the job unsuitable. Therefore, Cellxion adequately proved this job availability.

It was Cellxion’s burden to show that the proposed jobs were available. The record shows that when Gasway was made aware of the proposed jobs, either the application time had expired, the application time was to expire that day, or Gas-way was not qualified for the position. The only proposed job that was available and suitable was the Adesa Auto Auction job.

Based on the evidence presented, we conclude that the WCJ did not err in finding that the correct SEB rate for Gas-way was $704.14, which was based on the Adesa Auto Auction job. Gasway is entitled to the underpayment of $361.37 per month since May 23, 2006, and legal interest on this amount from the date of judicial demand.

Cellxion was unable to prove that Gas-way was able to earn at least 90% of his pre-accident wages. Therefore, Cellxion is not entitled to an award for the overpayment of SEB benefits from February 14, 2006 to date. The award of additional SEB benefits is affirmed.

Temporary Total Disability (TTD) Benefits

Cellxion asserts in the third assignment that Gasway was erroneously awarded TTD benefits in the amount of $900.06 from April 9, 2007 to May 133, 2007 because he did not adequately establish his entitlement to those benefits by clear and convincing evidence. Cellxion contends that it showed that Gasway had wage-earning capacity.

A claimant is entitled to TTD benefits if he proves by clear and convincing evidence, unaided by any presumption of disability, that he is physically unable to engage in any employment or self-employment, regardless of its nature, including employment while working in pain. La. R.S. 23:1221(1); Read v. Pel-State Oil Company, 44,218 (La.App. 2 Cir. 5/20/09), 13 So.3d 1191; Morrison v. First Baptist Church of West Monroe, 44,189 (La.App. 2 Cir. 4/8/09), 7 So.3d 873. A claimant who can perform light duty work is not entitled to TTD benefits. Holden v. International Paper Co., 31,104 (La.App.2d Cir.10/28/98), 720 So.2d 442, writ denied, 98-2956 (La.1/29/99), 736 So.2d 834.

To prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable, i.e., much more probable than its nonexistence. Id. A claimant may prove disability through medical and lay testimony. Read,, supra.

At the April 9, 2007, rehabilitation conference, Dr. Ramos restricted Gasway from working pending the results of an MRI. On May 3, 2007, Dr. Ramos reviewed the MRI results and noted that the MRI showed some improvement with the scar tissue. He did not comment on Gas-way’s work status.

Dr. Ramos restricted Gasway from work between April 9, 2007 and May 3, 2007, which was the date on which Dr. Ramos reviewed the MRI |10results. Gasway was not to work in any capacity. The record does not include any medical opinion to the contrary.

We agree with the WCJ’s determination that Gasway was entitled to TTD benefits in the amount of $900.06. Gasway should have been paid $375.84/week in TTD or $53.69/day, which comes to $1,127.49 over the 21 days. He was actually paid SEB of $324.80/month or $10.83/day, a credit of $227.43 over the 21-day period. The WCJ rightly awarded him the difference in the amount $900.06. The assignment of error is meritless.

Attorney’s Fee Award/Penalties

In the fourth assignment of error, Cellxion alleges that Gasway was not entitled to an award of attorney’s fees and penalties because it provided vocational rehabilitation services, it conducted a reasonable investigation, and it reasonably controverted this claim that resulted in their reduction of the SEBs. It further asserts that Gasway’s counsel has failed to set forth a sufficient basis to allow such an award, given the narrow scope of the issues raised herein and the challenges to Gasway’s wage-earning capacity through legitimate vocational rehabilitation services.

Penalties and attorney’s fees may be awarded for failure to provide payment of indemnity or medical benefits. La. R.S. 23:1201(F); Moore v. Transmissions, Inc., 41,472 (La.App. 2 Cir. 9/27/06), 940 So.2d 694. It is a well-established jurisprudential principle that the determination of whether an employer is to be assessed attorney’s fees and penalties is a question of fact and the WCJ’s findings shall not be disturbed absent | nmanifest error. Alford, v. Acadian Ambulance Service, 96-639 (La.App. 3 Cir. 11/6/96), 682 So.2d 942.

After finding the Celbdon was arbitrarious, capricious, and unreasonable in its underpayment of benefits, in its failure to approve pain management, and in its failure to pay TTD benefits, the WCJ found that Gasway was entitled to penalties in the amount of $4,000.00.

Cellxion erroneously based Gasway’s reduction of SEB benefits on jobs that either had an expired application time or that he was not qualified for. Cellxion failed to pay Gasway TTD benefits even though Dr. Ramos clearly restricted him from working in any capacity pending the results of an MRI. Cellxion even refused to approve pain management for Gasway even though two doctors recommended it. We agree with the WCJ in determining that Cellxion was indeed arbitrary and capricious in its behavior. Gasway is entitled to penalties in the amount of $4,000.00.

Gasway asserts that his counsel spent at least 74 hours preparing for trial. Considering the number of depositions taken and the discovery necessary to prepare this matter for trial, we cannot say that the WCJ erred in awarding Gasway $12,500.00 in attorney’s fees. This assignment of error is meritless.

Vocational Rehabilitation Records

In the fifth assignment, Cellxion asserts that Gasway is not entitled to recover costs for vocational rehabilitation records erroneously termed “medical records” and for deposition records, when the witnesses testified live at trial and the depositions were not introduced into evidence.

| |2WC.J erroneously awarded Gasway $574.75 in cost and expenses because said amount included items which are not recoverable under Louisiana law pursuant to La. C.C.P. art. 1920. La. C.C.P. art. 1920 reads:

Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause.
Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.

Gasway’s counsel submitted the following list of costs, with an attached affidavit, and copies of check stubs:

Filling fee $ 30.00
Copy of vocational rehabilitation records $ 75.00
Deposition of Alice Bond $267.75
Deposition of Brenda Guillot $172.00
$544.75

Due to a mathematical error, the WCJ erroneously awarded Gasway $574.75 in cost and expenses when the costs actually totaled $544.75. Additionally, during oral argument at this court, Gasway’s counsel conceded that the depositions of Alice Bond and Brenda Guillot were not submitted into evidence. Jurisprudence has established that copies of documents that are used privately by a party are not taxable as costs of the suit. Beattie v. Dimitry, 168 La. 81, 121 So. 581 (La.1929). Therefore, the costs of the two depositions, amounting to $439.75, must be reduced from Gasway’s award.

| isCellxion objects to the copies of vocational rehabilitation being recovered and misidentified as “medical records” because vocational rehabilitation services are not medical services and do not constitute medical records. The WCJ was not manifestly erroneous in determining that the vocational rehabilitation services constituted medical services.

Based on these findings, we order that the $574.75 awarded in costs and expenses be reduced to $105.00.

Reduction in Benefits

In the sixth and final assignment of error, Cellxion asserts that it is entitled to a 50% reduction of any benefits awarded because Gasway failed to cooperate with vocational rehabilitation services.

When an employee has suffered a work-related injury, he is entitled to prompt rehabilitation services. La. R.S. 23:1226(A). The employer is responsible for selecting a licensed professional vocational rehabilitation counselor to evaluate the claimant in job placement or vocational training. La. R.S. 23:1226(B)(3)(a). If the employer refuses to provide these services, the claimant may file a claim for review; such claim must be heard on an expedited basis, as provided by La. R.S. 23:1224(B). The claimant must also accept rehabilitation, as set forth in La. R.S. 23:1226(B)(3)(c).

A plain reading of this provision shows that the 50% reduction hinges on the refusal to accept rehabilitation as deemed necessary by the WCJ. Freeman v. Chase, 42,716 (La.App. 2 Cir. 12/5/07), 974 So.2d 25. An order of rehabilitation by the WCJ, perhaps by the expedited process of La. R.S. 23:1224(B), is obviously required. Id.

114Jurisprudence requires an “order of rehabilitation” from a WCJ before benefits can be reduced. There is no such order in the instant record. Therefore, this assignment of error is meritless.

Answer to Appeal

In his answer to the appeal, Gas-way is requesting an award of additional attorney’s fees for defending the appeal. He asserts that undersigned counsel has spent approximately 15 hours on this appeal and requests $3,000.00 in attorney’s fees.

A worker’s compensation claimant is entitled to an increase in additional attorney’s fees to reflect additional time incurred in defending the employer’s unsuccessful appeal. Frith v. Riverwood, Inc., 2004-1086 (La. 1/19/05), 892 So.2d 7. Taking into consideration the complexity of the case and the fact that the WCJ already awarded counsel a fee of $12,500.00 for its work at the trial level, we find an additional fee of $2,524.35 is warranted.

CONCLUSION

For these reasons, the judgment of the Office of Worker’s Compensation is affirmed as amended. Gasway’s award of $574.75 in costs and expenses is reduced to $105.00. The Judgment is further rendered in favor of Gasway for an additional attorney’s fee in the amount of $2,524.35.

AFFIRMED AS AMENDED. ADDITIONAL ATTORNEY’S FEE AWARDED.