text:
    Michael ANTLEY, Plaintiff-Appellee v. Latoya RODGERS, Marcus Coleman and Go Auto Insurance Company, Defendants-Appellants
    No. 52,168-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered June 27, 2018
    NEAL LAW FIRM, By: Mark J. Neal, Monroe, Counsel for Appellants, Marcus Coleman and Go Auto Insurance Company
    GUERRIERO & GUERRIERO, By: Jeffrey D. Guerriero, Shonda D. LeGrande, Monroe, Counsel for Appellee
    Before WILLIAMS, STONE, and McCALLUM, JJ.
   WILLIAMS, J.

The defendants, Marcus Coleman and the insurer, Go Auto Insurance Company, appeal a trial court's judgment in favor of the plaintiff, Michael Antley, finding that Coleman was at fault in causing an automobile accident. The defendants also appeal the trial court's award of damages to the plaintiff in the amount of $23,429.43. For the following reasons, we affirm.

FACTS

On February 13, 2014, at approximately 7:00 a.m., the plaintiff, Michael Antley, was operating a 2004 Chevrolet Avalanche pickup truck and was traveling eastbound on Interstate 20 ("I-20") in Monroe, Louisiana. The defendant, Marcus Coleman, was the permissive driver of a 2008 Chevrolet Equinox owned by Latoya Rodgers and insured by Go Auto Insurance Company ("Go Auto"). Coleman was also traveling eastbound on I-20.

Due to freezing temperatures the previous night, ice had accumulated on the three-lane Interstate. The plaintiff was driving in the far left lane at a speed of approximately 62-63 miles per hour ("mph"); Coleman was traveling in the center lane at approximately 40-50 mph.

It is undisputed that at some point, Coleman hit a patch of ice in the roadway and momentarily lost control of his vehicle. However, the plaintiff's version of the events that followed vastly differed from Coleman's version. The plaintiff testified that when Coleman began to swerve, he (Coleman) veered into his (the plaintiff's) lane of travel and struck the right front end of his truck. The plaintiff also asserted that when Coleman failed to stop after the collision, he pursued Coleman, flashing his lights and honking his horn. However, Coleman refused to stop. While pursuing Coleman, the plaintiff called the Monroe Police Department ("MPD") to report the accident. The plaintiff provided the police dispatch operator with Coleman's license plate number. The operator advised the plaintiff to discontinue his pursuit of Coleman, pull over his vehicle and wait for the arrival of a police officer. The plaintiff and Coleman exited I-20 and merged onto Highway 165-North. The plaintiff pulled into the parking lot of a hotel and waited for a police officer to arrive. He maintains that he never lost sight of Coleman's vehicle from the time of the collision and when he pulled into the parking lot of the hotel.

Conversely, Coleman testified that his vehicle "swayed," but he did not swerve into the plaintiff's lane of travel. He insisted that his vehicle did not make contact with the plaintiff's vehicle. Coleman maintained that he did not feel an impact, he did not see anyone flashing their lights, and he did not hear anyone honking their horn on the morning of February 13, 2014. Coleman stated that he arrived at his job per his usual routine, and he did not learn of the alleged accident until later that morning.

Following the incident, the plaintiff was met by Officer Rodrick Banks of the MPD, who prepared a report of the incident. The plaintiff informed the officer that he did not feel injured, and he proceeded to his job, where he worked a full day as a plumbing apprentice. He later stated that he began experiencing pain in his neck, shoulders and back later that day.

During the investigation of the accident, Officer Banks learned that the license plate number provided by the plaintiff belonged to a Chevrolet Equinox owned by Rodgers. Officer Banks contacted Rodgers by telephone; she confirmed that she was the owner of the vehicle and identified Coleman as the driver of her vehicle that morning. Thereafter, Rodgers called Coleman and informed him that she had been contacted by Officer Banks regarding an automobile accident. Rodgers and Coleman went to the police department and met with Officer Banks. The officer inspected the rear bumper of Rodgers' vehicle but did not see anything that he would consider "fresh damage." Officer Banks was unable to determine whether Rodgers' vehicle had been involved in a collision.

Subsequently, the plaintiff filed a lawsuit naming Coleman, Rodgers and Go Auto as defendants. He alleged that he sustained personal injuries and property damage as a result of the automobile accident. The defendants answered the lawsuit, denying the plaintiff's allegations.

During a bench trial, the parties stipulated to the authenticity and the admissibility of the plaintiff's medical records. The parties further stipulated as follows: the medical services provided by Dr. Dan Holt, the plaintiff's treating chiropractor, were reasonable and necessary; the medical care provided by Dr. Holt resulted from the February 13, 2014, automobile accident; the medical expenses charged by Dr. Holt amounted to $5,825; the plaintiff suffered lost wages in the amount of $648; and the plaintiff's property damage amounted to $706.43.

The plaintiff testified that he was driving in the far left lane when he first noticed Coleman's vehicle as it was merging onto the Interstate. He stated that the collision occurred near the Jackson/Hall Street exit when Coleman encountered a patch of ice on the roadway. The plaintiff also testified that Coleman "clipped" the front passenger side of his vehicle when he (Coleman) attempted to change lanes.

Coleman testified that he was driving Rodgers' vehicle on the morning of the accident and that he saw the plaintiff's vehicle in his rearview mirror. Coleman admitted that he "hit a patch of ice" and momentarily lost control of the vehicle; however, he insisted that he did not strike the plaintiff's vehicle. As stated above, Coleman testified that he did not feel an impact, he did not see any flashing lights and he did not hear the plaintiff's horn. Further, Coleman stated that the only vehicles traveling on the Interstate that morning were the one he was driving, the plaintiff's vehicle and a "green Ford" that was traveling some distance ahead of him.

Rodgers testified that there was no damage to her vehicle prior to the day of the accident, other than some minor scratches. She stated that her Go Auto insurance adjuster informed her that the large scratch on the rear bumper of her vehicle "most likely" occurred when someone backed into her vehicle while it was parked in a parking lot.

After hearing the testimony and reviewing the evidence, the trial court found that an accident occurred and the accident was solely caused by Coleman. The court stated:

* * *
[A]ll of the testimony tends to indicate that it was Mr. Coleman's vehicle and Mr. Coleman's vehicle only that was involved in this accident and caused the collision between his vehicle and that of the vehicle being driven by [the plaintiff]. So the court is clear that while Mr. Coleman emphatically has indicated that he was not involved in this collision, it is clear to the court by a preponderance of the evidence and the totality of all of the evidence in this record Mr. Coleman did veer out of his lane and caused a collision between his vehicle and * * * the vehicle being driven by [the plaintiff.]
* * *
[T]he court finds that [the plaintiff] suffered both general and special damages in this case, mental and physical pain and suffering as a result of the accident, as well as special damages[.]
* * *

The court awarded to the plaintiff a total of $23,429.43, as follows: general damages in the amount of $16,250, and special damages in the amount of $7,179.43 (medical expenses: $5,825, lost wages: $648, and property damages: $706.43). Additionally, the court awarded court costs and legal interest from the date of judicial demand.

The defendants appeal.

DISCUSSION

The defendants contend the trial court was clearly wrong in finding that a collision occurred between the two vehicles. They argue that the plaintiff failed to prove that Coleman breached a duty of care or that Coleman's actions caused his injuries. According to the defendants, the trial court erroneously relied upon the plaintiff's self-serving testimony, rather than that of Officer Banks, a 19-year veteran of the MPD. Further, the defendants maintain that the evidence established that there was virtually no damage to the Coleman vehicle (a minor scratch on the bumper), while the damage to the plaintiff's vehicle was more substantial (major scuffs, scratches and a broken and detached light).

A motorist has a duty to keep his vehicle under control and to maintain a proper lookout for hazards. Harrell v. City of Shreveport , 47,011 (La. App. 2 Cir. 5/23/12), 92 So.3d 1180, writ denied , 2012-1443 (La. 10/8/12), 98 So.3d 860 ; Williams v. Travelers Indem. Co. , 49,961 (La. App. 2 Cir. 7/22/15), 171 So.3d 436. A motorist must use such diligence and care in the operation of his vehicle as is commensurate with the circumstances. Edwards v. Horstman , 96-1403 (La. 2/25/97), 687 So.2d 1007 ; Harrell v. City of Shreveport , supra .

An appellate court may not set aside a trial court's finding of fact in the absence of manifest error or unless it is clearly wrong. Where two permissible views of the evidence exist, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Cole v. State Dept. of Public Safety & Corr. , 2001-2123 (La. 9/4/02), 825 So.2d 1134 ; Stobart v. State through Dep't. of Transp. & Dev. , 617 So.2d 880 (La. 1993) ; Jewitt v. Alvarez , 50,083 (La. App. 2 Cir. 9/30/15), 179 So.3d 645. Our jurisprudence summarizes the manifest error/clearly wrong standard of review as follows:

To reverse a factfinder's determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. Stobart , supra ; Jewitt , supra .
Even if an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Cole , supra ; Rosell v. ESCO , 549 So.2d 840 (La. 1989). Moreover, where the factfinder's conclusions are based on determinations regarding credibility of the witnesses, the manifest error standard demands great deference to the trier of fact because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Rosell , supra ; Wilhite v. Thompson , 42,395 (La. App. 2 Cir. 8/15/07), 962 So.2d 493.

In the instant case, the trial court found that the evidence was sufficient to establish that Coleman caused an accident between his vehicle and that of the plaintiff. During the trial, the plaintiff testified that he saw the Coleman vehicle start to "sway" and cross into his lane of travel. He stated that he attempted to apply his brakes; however, the Coleman vehicle crossed into his lane and "clipped" the front end of his truck. Officer Banks inspected the plaintiff's vehicle and noted damage on the front passenger side.

Coleman testified that he encountered a "patch of area where that ice was real heavy" and he "ventured into that far left lane[.]" However, he denied being involved in an automobile collision. He also testified that he saw "a white Chevrolet truck in my rearview mirror," but he stated that he did not come close to the vehicle. On cross-examination, Coleman admitted that he hit a small patch of ice, which resulted in his vehicle having a "wobble effect." According to Coleman, he saw the Chevrolet truck before he left the center lane and moved into the far left lane. However, when confronted with his prior deposition testimony, Coleman admitted that he saw the truck "when [he] ventured from the center lane to the left lane[.]"

Officer Banks did not witness the accident. However, he inspected both vehicles on the day of the accident. Officer Banks observed a "scuff mark" on the right front fender of the plaintiff's vehicle that seemed to corroborate the plaintiff's description of the accident. He testified that during his inspection of the Rodgers/Coleman vehicle, he did not see "anything that looked like fresh damage." However, he admitted that he only looked at the rear bumper of the vehicle and did not inspect the side quarter panels.

The trial court had the opportunity to observe the tone and demeanor of the witnesses; the court clearly believed the plaintiff's testimony that Coleman's vehicle entered his lane of travel and collided with his vehicle. As stated above, the trial court's factual and credibility determinations are entitled to great weight on appeal. Therefore, we find that the trial court did not err in concluding that the plaintiff met his burden of proving that an automobile collision occurred and that Coleman was solely at fault in causing the accident. This assignment lacks merit.

The defendants also contend the trial court abused its discretion in awarding $23,429.43 in damages. They argue that the amount is excessive and far exceeds the amount awarded in factually similar cases. According to the defendants, based upon the minor impact between the vehicles and the small amount of damage to the vehicles, the plaintiff was entitled to zero to nominal damages.

One injured through the fault of another is entitled to full indemnification for damages caused thereby. Wainwright v. Fontenot , 2000-0492 (La. 10/17/00), 774 So.2d 70 ; Smith v. Escalon , 48,129 (La. App. 2 Cir. 6/26/13), 117 So.3d 576 ; Caskey v. Merrick Const. Co., Inc. , 46,886 (La. App. 2 Cir. 3/14/12), 86 So.3d 186, writ denied , 2012-0847 (La. 6/1/12), 90 So.3d 442. General damages are those which may not be fixed with pecuniary exactitude; instead, they involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or lifestyle which cannot be definitely measured in monetary terms. Duncan v. Kansas City S. Ry. Co. , 2000-0066 (La. 10/30/00), 773 So.2d 670, cert. dism. , 532 U.S. 992, 121 S.Ct. 1651, 149 L.Ed.2d 508 (2001) ; Smith , supra ; Caskey , supra .

Pain and suffering, both physical and mental, refers to the pain, discomfort, inconvenience, anguish, and emotional trauma that accompany an injury. McGee v. A C & S, Inc. , 2005-1036 (La. 7/10/06), 933 So.2d 770 ; Smith , supra ; Caskey , supra . The elements of physical pain and suffering and associated mental anguish are conceptually related and, to a large extent, overlapping; therefore, they are difficult to precisely distinguish. Smith , supra ; Caskey , supra . Also included in general damages can be an award for loss of enjoyment or quality of life. Miller v. Lammico , 2007-1352 (La. 1/16/08), 973 So.2d 693 ; Smith , supra ; Caskey , supra . These damages refer to the detrimental alterations of a person's ability to participate in the activities or pleasures of life that were formerly enjoyed. McGee , supra ; Smith , supra ; Caskey , supra .

"Special damages" are those which must be specially pled or have a ready market value, that is, the amount of the damages supposedly can be determined with relative certainty. Smith , supra ; Dotie v. Safeway Ins. Co. of La. , 46,840 (La. App. 2 Cir. 3/14/12), 87 So.3d 942. Some special damages, such as medical and related expenses, cost to repair or replace damaged property, loss of wages, etc., are easily measured. Id. A plaintiff is required to prove special damages by a preponderance of the evidence, and the district court's findings in this respect are subject to a manifest error standard of review. Id.

The trial court has vast discretion in awarding general damages and its determination should rarely be disturbed. La. C.C. art. 2324.1 ; Youn v. Maritime Overseas Corp. , 623 So.2d 1257 (La. 1993) ; Smith , supra . On appellate review, the initial inquiry is whether the trier of fact abused its vast discretion in assessing damages. If it is determined that the trial court abused its discretion, then the appellate court may review prior awards to determine the highest or lowest point which is reasonably within the trial court's discretion. Smith , supra ; Moody v. AIG Ins. Cos. , 43,946 (La. App. 2 Cir. 1/14/09), 999 So.2d 1207. The appellate court should increase or reduce an award only when the award is beyond that which a reasonable trier of fact could assess for the particular injury, to the particular plaintiff, under the particular circumstances of the case. Youn , supra ; Smith , supra .

In the instant case, prior to trial, the parties entered into a joint stipulation "with regards to the special damages relating to Dr. Holt that the bill that Dr. Holt submitted as a result of any treatment that he provided to the plaintiff in this case came to a total of [$5,825] and that the services that he performed for the plaintiff, Mr. Antley, were reasonable and necessary[.]" The parties also stipulated "as to the authenticity and admissibility of the [plaintiff's] wage record" that he missed six days of work after the accident and that "Dr. Holt took [the plaintiff] off work for a week." Additionally, the parties entered into a stipulation that the plaintiff suffered property damage that was determined by Go Auto to be a total of $706.43.

Further, the plaintiff testified at trial with regard to the injuries he sustained as a result of the accident. He testified as follows: he did not feel any pain immediately following the accident because his "adrenaline was running high"; he went to work after the accident and his boss told him to "take it easy" that day; later that evening, he began to feel "a little pain" in his lower back and shoulders; two years prior to the accident, he strained a muscle in his back; he had recovered from that prior injury at the time of the instant accident; he was not feeling any back or shoulder pain prior to the accident at issue; he went to Dr. Holt for medical treatment for his back and shoulder pain the day after the accident; he treated with Dr. Holt from February 14, 2014, until October 8, 2014; he missed six days from work because "Dr. Holt did not want me to do anything strenuous as far as my job that I do ... and he did not want me to strain any-any muscle or anything in my back or my shoulders"; his injuries affected his performance as a plumbing apprentice because he was unable to lift heavy equipment such as water heaters; his attempt to turn pliers to tighten objects caused pain in his shoulders; his injuries affected his ability to play with his children, who were two and four years old at the time of the accident; he was unable to mow his lawn or do laundry; he began to feel better after approximately three weeks of treatment, but he continued his treatment as prescribed; by October, his pain was "a lot better" but he was still unable to perform certain tasks, such as lifting a jack hammer; and he continued to experience "a little bit of pain in [his] lower back," but the pain in his shoulders had resolved.

After reviewing this record, we are unable to say that the trial court abused its vast discretion in awarding the plaintiff $16,250 in general damages, and $7,179.43 in special damages. As stated above, the plaintiff provided uncontroverted testimony regarding the extent of his injuries, and his medical records were introduced into evidence. Additionally, the defendants stipulated that the treatment provided to the plaintiff by Dr. Holt was a result of the accident that occurred February 13, 2014, and that the treatment was reasonable and necessary. Further, the record reveals that the plaintiff also provided uncontroverted testimony that the six days he missed from work in February 2014 were due to injuries he sustained in the accident. Further, the defendant, Go Auto, provided the estimate of the plaintiff's property damage. The parties stipulated that the estimated costs represented the amount of damage to the plaintiff's vehicle as a result of the accident. This assignment lacks merit.

CONCLUSION

For the foregoing reasons, we affirm the trial court's judgment. Costs of this appeal are assessed to the defendants, Marcus Coleman and Go Auto Insurance Company.

AFFIRMED.

      The posted speed limit on I-20 within the city limits is 60 mph.

      The plaintiff began treating with a local chiropractor, who ordered him to refrain from work February 14-17, 2014. The plaintiff was treated by the chiropractor until October 8, 2014.

      Coleman was cited for driving without a driver's license.

      Rodgers was later dismissed from the lawsuit with prejudice.

      The trial court inexplicably awarded $15,706.43 of the judgment against Coleman and Go Auto jointly and in solido , and $7,723 against Coleman individually. The plaintiff did not appeal this portion of the judgment.


source: Caselaw Access Project

author: McCALLUM, J.

license: Public Domain

text:
    Alex TURNER, Plaintiff-Appellee v. CHICAGO BRIDGE AND IRON COMPANY, Defendant-Appellant
    No. 52,167-WCA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered June 27, 2018
    RABALAIS UNLAND, By: John J. Rabalais, Mandeville, Matthew D. Crumhorn, Covington, Megan C. Gladner, Counsel for Appellant
    JONES & ODOM, L.L.P., By: John S. Odom, Jr., Shreveport, TRAMMELL PIAZZA LAW FIRM, PLLC, By: M. Chad Trammell, Counsel for Appellee
    Before MOORE, GARRETT, and McCALLUM, JJ.
   McCALLUM, J.

In this workers' compensation case, the employee-appellee is Alex Turner ("Turner"). The employer-appellant is Chicago Bridge & Iron Co. ("Chicago"). Turner was working as a carpenter's helper for Chicago when he injured his lower back. The workers' compensation judge ("WCJ") determined that Turner was entitled to Supplemental Earnings Benefits ("SEB"), physical therapy, a $6,000 penalty, and $14,500 in attorney fees. The WCJ also denied Chicago's fraud claims under to La. R.S. 23:1208 and 23:1208.1 ("Section 1208" and "Section 1208.1").

Chicago appeals the judgment on the grounds that the WCJ committed manifest error in finding: (1) Turner is entitled to SEB; (2) Chicago failed to prove fraud under Section 1208; and (3) Chicago failed to prove fraud under Section 1208.1.

Turner answered the appeal asking for an increase in the amount of attorney fees and the penalty assessed against Chicago. For the following reasons, we increase Turner's attorney fee award to $17,500, and affirm the WCJ's judgment in all other respects.

FACTS

Chicago hired Turner as a carpenter's helper at a construction site near Hackberry, Louisiana, on August 19, 2016. After being hired, but before commencing work, Turner completed the LA OWCA Second Injury Board Knowledge Questionnaire ("questionnaire").

On September 29, 2016, Turner suffered a lower back injury while working as a carpenter's helper, and immediately reported the injury to his supervisor. Immediately after the accident, he was taken to Prime Occupational Medicine ("Prime"), the onsite medical facility. An X-ray of Turner's back, taken by Dr. Henry Vreeland, revealed findings of mild degenerative disc disease and facet degenerative joint disease. Turner was also diagnosed with an acute lumbar strain. He was released to return to work for full regular duty with no restrictions. Turner was directed to take Motrin for pain, do physical therapy, and apply ice and heat to his back.

However, Turner testified that he did not return to work as a carpenter's helper. Instead, he was required to be at the onsite medical facility from 6:00 a.m. to 6:00 p.m. each working day, sitting around with 20 other injured employees. On occasion, they were required to sit in classes regarding trades other than those for which they had been hired. These classes included courses for electricians and heavy equipment operators. Predominantly, he and the others just sat around all day.

On October 4, 2016, Turner was reevaluated at Prime after complaining of back pain. He was again released to return to assigned duties, and was directed to use heat packs three times a day. On October 10, 2016, Turner had another followup visit at Prime, where he again reported significant pain. He was again cleared to return to work with restrictions until after the scheduled MRI, which was taken October 14, 2016.

Dr. Victor McCoy, the interpreting radiologist, summarized his findings from the October 14, 2016, MRI as follows:

Impression: there are disc bulges and facet arthropathy along the lumbar spine with broad posterior disc herniations at the L3-L4, L4-L5, and L5-S1. The changes at L3-L4 cause mild spinal canal narrowing. The changes at L4-L5 cause severe narrowing of the lateral aspects of the spinal canal where I suspect there is some impingement upon the traversing L5 nerve roots bilaterally. The changes at L5-S1 cause severe narrowing of the left lateral aspect of the spinal canal where I suspect there is impingement upon the traversing left S1 nerve root. There are levels of mild-to-moderate foraminal narrowing but no apparent compromise of the existing nerve roots.

These findings were included in Turner's medical records at Prime.

On October 17, 2016, Turner had another followup visit with Prime, where he again reported back pain. He was again cleared to work with this same restrictions.

On October 24, 2016, Turner was evaluated by Dr. Collins, an orthopedist, who cleared Turner for sedentary work only. He prescribed Mobic and Norco for pain, and Robaxin, a muscle relaxer. He instructed Turner not to drive while on muscle relaxers or narcotic pain medication. Dr. Collins also prescribed physical therapy three times a week for four weeks.

Turner testified that Joel Dennison, a Chicago employee, advised him that he was subject to random drug screens at any time, and if he was found to have narcotic pain medications in his system while on the plant site, he would be immediately terminated.

Turner was reassigned to light-duty work, specifically, sorting "I CARE" cards. However, Turner complained that the new work also hurt his back as he had to lean over a table when sorting the cards. Accordingly, he refused to continue sorting the cards. On November 4, 2016, Chicago fired Turner for the stated reason of insubordination, as Turner refused to do the sedentary work that had been assigned to him.

STANDARD OF REVIEW

Factual findings of an OWC judge are subject to the manifest error standard of review on the OWC's findings of fact; therefore, in order for a reviewing court to reverse an OWC judge's factual findings, it must find that a reasonable factual basis does not exist and the record establishes that the factual findings are clearly wrong. Lafayette Bone & Joint Clinic v. Louisiana United Bus. SIF, 2015-2037 (La. 6/29/16), 194 So.3d 1112 ; Dean v. Southmark Construction, 2003-1051, p. 7 (La. 7/6/04), 879 So.2d 112, 117.

Ultimately, the issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder's conclusion was a reasonable one. If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Stobart v. State, supra ; Dombrowski v. Patterson-UTI Drilling Co., supra.

The manifest error standard of review is based upon the trial court's observation of live testimony, as contrasted from an appellate court's access only to a cold record, and also "upon the proper allocation of trial and appellate functions between the respective courts." Henderson v. Nissan Motor Corp. , 2003-606 (La. 2/6/04), 869 So.2d 62, 69, citing Stobart v. State through Dep't of Transp. & Dev. , 617 So.2d 880, 883 (La. 1993). Accordingly, where two permissible views of the evidence exist, the fact-finder's choice between them cannot be manifestly erroneous or clearly wrong. Id.

TURNER'S ENTITLEMENT TO SUPPLEMENTAL EARNINGS BENEFITS

La. R.S. 23:1221(3)(a)(i) provides for the payment of SEB:

For injury resulting in the employee's inability to earn wages equal to ninety percent or more of wages at time of injury, supplemental earnings benefits , payable monthly, equal to sixty-six and two-thirds percent of the difference between the average monthly wages at time of 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 a 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 product by twelve.

(Emphasis added.)

Section 1221(3)(c)(i) allows the employer to defeat an employee's otherwise valid claim for SEB, as follows:

[F]or purposes of Subparagraph (a) of this Paragraph, if the employee is not engaged in any employment or self-employment...the amount determined to be the wages the employee is able to earn in any month shall in no case be less than the sum the employee would have earned in any employment or self-employment...which he was physically able to perform , and (1) which he was offered or tendered by the employer or any other employer, or (2) which is proven available to the employee in the employee's or employer's community or reasonable geographic region.

(Emphasis added.)

In Brown v. Offshore Energy Serv., Inc., 47, 392 (La. App. 2 Cir. 8/8/12), 104 So.3d 494, 502-3, we explained the relationship between the two above provisions found in Section 1221:

Initially, [under Section 1221(3)(a)(i),] the employee bears the burden of proving by a preponderance of the evidence that the injury resulted in his inability to earn...[at least 90% of his pre-accident income]... under the facts and circumstances of the individual case. Poissenot v. St. Bernard Parish Sheriff's Ofc., supra [2009-2793 (La. 1/9/11), 56 So.3d 170]. Only when the employee makes this initial showing does the burden shift to the employer to prove that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer's community or reasonable geographic area.
La. R.S. 23:1221(3)(c)(i) ; Poissenot v. St. Bernard Parish Sheriff's Ofc., supra.

Chicago contends that, because it provided Turner with a sedentary job (sorting I CARE cards) which yielded him the same amount of income, Turner is precluded by Section 1221(3)(c)(i) from entitlement to SEB. Chicago further contends that Turner's termination did not render Section 1221(3)(c)(i) inapplicable because he was fired for insubordination. Thus, Chicago argues, his post-firing inability to earn at least 90% of his pre-accident wages was a result of that insubordination rather than the work accident. Turner argues that he was not physically able to sort the I CARE cards because doing so increased his back pain.

Turner further asserts that, by requiring him to be present at the job site in Hackberry from 6:00 a.m. to 6:00 p.m. every workday, Chicago in effect required him to forgo the medication and physical therapy Dr. Collins had prescribed. This is, he argues, because of Chicago's worksite drug policy. Indeed, despite his inability to return to work as a carpenter's helper, Turner never went to physical therapy while still employed by Chicago.

We find no manifest error in the WCJ's decision regarding Turner's entitlement to SEB.

FRAUD

Chicago raises affirmative defenses under two separate "fraud" statutes that would result in forfeiture of workers' compensation benefits. To trigger forfeiture under Section 1208, the employee must be proven to have committed intentional falsity and this intentional falsity must have been for the purpose of obtaining workers' compensation benefits. Conversely, Section 1208.1 does not explicitly require a dishonest intention. An untruthful response to the health history questionnaire regarding a condition which directly relates to the condition for which workers' compensation benefits are claimed is apparently sufficient to trigger forfeiture, provided the health history questionnaire is in proper form. There is jurisprudence suggesting dishonest intent may also be necessary. See infra .

Section 1208

La. R.S. 23:1208 provides, in relevant part:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
.....
E. Any employee violating this Section shall, upon determination by workers' compensation judge, forfeit any right to compensation benefits under this Chapter.

Because forfeiture of workers' compensation benefits is a harsh remedy, Section 1208 must be strictly construed. Green v. Allied Bldg. Stores, Inc., 50, 117 (La. App. 2 Cir. 1/22/16), 185 So.3d 164, 169, writ denied , 2016-0508 (La. 5/27/16), 192 So.3d 737.

Chicago's reconventional demand. Chicago filed a reconventional demand alleging that Alex Turner committed fraud in violation of Section 1208. In paragraphs IV through VII of the reconventional demand, Chicago alleges that Turner fraudulently testified during his discovery deposition that:

[P]rior to the work accident he had not been involved in any kind of accident, slip and fall, car wreck, or of any other nature[.]
[T]he only treatment to his back previously [sic] to the work accident when he was 16 years old and went to a chiropractor to pop his back once, maybe twice, and an MRI/x-ray taken approximately a year and a half before the work accident as a result of a motor vehicle accident[.]
[T]he only treatment to his back outside of a motor vehicle accident and the treatment when he was 16 years old was for the work accident[.]
[H]e had not, outside of the motor vehicle accident discussed above undergone a [sic] x-rays or MRI of his back[.]

Also, in paragraphs VIII through XI, Chicago made allegations concerning Turner's nondisclosure of prior medical conditions and incidents which had nothing to do with his preexisting lower back problems. Chicago, in full, argued:

Outside of the misrepresentations about his pre-existing lumbar condition, Turner was also not truthful in disclosing other preexisting conditions. Turner made at least 12 misrepresentations, by not admitting same in his deposition, about not undergoing regular treatment for anxiety or presenting to emergency room for various medical conditions... Even though not related to the work accident injury, this shows a pattern of Turner's failure to truthfully answer questions about his pre-existing conditions.

We find no manifest error in the WCJ's finding that the evidence associated with these allegations was insufficient to prove fraud under Section 1208.

Turner's deposition . In its brief, Chicago cites the following testimony in Turner's deposition as fraudulent:

Q: I also note in this report, the October 4 prime report, you said that you were involved in a motor vehicle accident approximately a year ago and had an x-ray of her cervical spine, lumbar spine, and T-spine. Do you recall that?
A: Yes, ma'am.
Q: Here they put that you never had any pain from that motor vehicle accident. Is that correct?
A: No, ma'am.
Q: Why is that not correct?
A: Well, I mean, I had a slight whiplash, is what it was. That's the reason I got the x-ray.
Q: So would it be fair to say the pain was in your neck? Or was it in your neck and back?
A: Yes, ma'am, I had pain in my neck. I was just stiff because I had whiplash from getting hit.
Q: And about how long did that last?
A: Maybe a week and a half.
Q: But you had no pain in your lower back as a result of that car accident?
A: No, ma'am.

(Exhibit D-4, pp.51, lines 4-24).

Q: Mr. Turner, prior to this work accident have you ever had treatment to your back outside of that motor vehicle accident we discussed earlier when you went to the ER?
A: I went to-I was probably 16, I believe. I went to-I was having-I don't remember what it was. It was something in my upper back and I went and got-I went to a chiropractor and he popped my back. Other than that, no, ma'am.
Q: You said that was in your upper back?
A: Yes, ma'am.
Q: Do you know where the chiropractor was?
A: Ashdown, Arkansas.
Q: Do you by chance recall his name?
A: No, ma'am, I don't.
Q: Did you see him more than once?
A: I think I seen him twice.
Q: And just to the best of your memory, it was just because it was bothering you?
A: Yes, ma'am.
Q: Not a result of any kind of accident, a slip and fall or a car wreck or anything of that sort?
A: No, ma'am.
Q: Prior to this work accident do you ever remember having any-not the one after the motor vehicle accident, but did you have any other x-rays or MRIs taken of your back?
A: No, ma'am.

(Exhibit D-4, pp.81-2). (Emphasis added).

The chiropractor Turner saw was a Dr. "Knight" in Ashdown Arkansas. Dr. Knight's medical records contains a document consisting of a picture of a person and a request for the patient to indicate the location of his pain by marking on that picture; the left hip and left lower back are marked as the locations of pain. The patient further indicated that the severity of this pain was an "8/10". Apparently, this document was completed on March 4, 2015. Dr. Knight's records also indicate that Turner had an MRI of his back on May 1, 2015. The report based on this MRI discussed the L3-L4, L4-L5, and L5-S1 levels of Turner's back, finding disc protrusions, mild degenerative conditions, mild spinal stenosis, and "lateral recess narrowing" in that section of the plaintiff's back. However, this report bears no indication that Turner had a herniated or ruptured disc. Dr. Knight's records indicate that Turner's "trauma history" includes riding "dirt bikes," and that Turner rode either a "bull" or "bulls." ' Ashdown Medical Clinic record states:

HPI: he rides bulls-and just over time his pain started-been hurting eight months-C/O left hip pain and radiates to left foot causing left foot to be numb. Then a few days ago his low back started hurting-and he states this hurt to his back is a lot worse than it was to his hip. He got adjusted by Dr. K[n]ight twice a week for 4 to 5 weeks then had a few additional visits also. He did order an MRI of his back.
Mr. Turner presents with low back pain. The discomfort is most prominent in the lower lumbar spine. It does not radiate. He characterizes it as constant. This is a chronic problem, with essentially constant pain. He states that the current episode of pain started 7 to 8 months ago. The event which precipitated this pain was bull riding.

Turner's deposition testimony that he did not remember having an MRI other than for the 2015 motor vehicle accident is contradicted by these medical records, which indicate that he had an MRI of his lumbar spine on May 1, 2015, some 18 months prior to the instant work accident. It is feasible, however, that Turner did not recall the May 1, 2015, MRI in the midst of his deposition.

Turner's testimony that Dr. Knight (the chiropractor) treated him for upper back pain is contradicted by Dr. Knight's records and Ashdown Medical Clinic's records.

Nonetheless, this testimony could have been Chicago's means of finding Turner's records from Dr. Knight and Ashdown Medical Clinic. Thus the WCJ could reasonably have concluded that Turner did not intend to conceal this part of his medical history from Chicago.

Turner's responses to request for admission . In its brief, Chicago makes further allegations of fraud. First, in response to Chicago's first set of requests for admission, numbers 18 and 19, Turner denied receiving medical treatment for his "lower back" prior to the instant work accident, and more specifically, denied receiving prior treatment for "the portion of his back injured on September 29, 2016," in the instant work accident. These responses would appear to contradict Turner's medical records from Dr. Knight and Ashdown Medical Clinic. Again, however, Turner's deposition testimony could have been what enabled Chicago to find these medical records. Therefore, the WCJ reasonably could have concluded that Turner had no intent to deceive Chicago.

Second, Chicago's second request for admissions, number 4, stated: "admit that you underwent treatment for low back pain and had radiating left pain [sic] in your left foot pain [sic] for approximately eight months prior to May 27, 2015." Turner responded: "plaintiff admits he was treated on May 27, 2015, but denies that such treatment was for low back pain and left foot pain for approximately eight months prior to May 27, 2015." This request for admission is rendered ambiguous by multiple typographical errors and imprecise language. We therefore cannot say that Turner's response is contradicted by the medical records.

Third, in response to Chicago's second request for admissions, number 5, Turner denied that the injury being treated was caused by bull riding. The Ashdown Medical Clinic records do state that bull riding "precipitated" the pain being treated. However, Turner and his mother both testified that he only rode a bull once, on his 17th birthday, which was several years before the instant work accident. We also note that, generally, whether bull riding caused the preexisting bulging and protruding discs in a claimant's back is not relevant to his entitlement to workers' compensation benefits. Here, the only relevance is that Chicago has used the bull riding matter to create a Section 1208 issue.

Turner's trial testimony. Finally, at trial, Turner was confronted with Dr. Dietze's opinion that the two MRIs did not reflect any changes to Turner's spine. These MRIs had been performed before and after the work injury, respectively. Dr. Dietze found that neither MRI reflected a herniated disc. (Exhibit P-8, pp. 9-10). Dr. Dietz's interpretation of the MRI taken after the instant work accident was similar to the MRI report outlined in connection with the May 1, 2015, MRI. Turner disagreed with that interpretation of the MRIs.

We note that Dr. Victor McCoy, the radiologist who initially interpreted Turner's October 14, 2017, MRI, diagnosed Turner with "broad posterior disc herniation" at the L3-L4, L4-L5, and L5-S1 joints. (Exhibit P-5, pp. 36). Dr. Collins echoed this finding of herniated discs in his records.

Accordingly, it would not have been manifest error for the WCJ to conclude that Turner and Dr. McCoy were correct and Dr. Dietze was incorrect and that therefore Turner's statement was not false. Alternatively, even if the WCJ credited Dr. Dietze's opinion over that of Dr. McCoy, it would not be manifestly erroneous to conclude that Turner's open disagreement with Dr. Dietze did not constitute fraud. This can be true when the situation is viewed in light of Dr. McCoy's opinion.

Conclusion regarding section 1208. Fraud under Section 1208 requires: (1) an intentionally false statement; (2) made for the purpose of obtaining workers' compensation benefits. The evidence, as outlined above, does suggest that Turner may possibly have intentionally made false statements. However, we are constrained to find no manifest error in the WCJ's conclusion that Chicago failed to prove that Turner made these potentially false statements for the purpose of obtaining workers' compensation benefits.

Section 1208.1

La. R.S. 23:1208.1 provides:

Nothing in this Title shall prohibit an employer from inquiring about previous injuries, disabilities, or other medical conditions and the employee shall answer truthfully; failure to answer truthfully shall result in the employee's forfeiture of benefits under this Chapter, provided said failure to answer directly relates to the medical condition for which a claim for benefits is made or affects the employer's ability to receive reimbursement from the second injury fund. This Section shall not be enforceable unless the written form on which the inquiries about previous medical conditions are made contains a notice advising the employee that his failure to answer truthfully may result in his forfeiture of worker's compensation benefits under R.S. 23:1208.1. Such notice shall be prominently displayed in bold faced block lettering of no less than ten point type.

(Emphasis added).

Forfeiture of workers' compensation benefits based on the claimant's failure to truthfully answer a medical questionnaire is a harsh remedy; therefore, Section 1208.1 is strictly construed. Roberts v. D & J Const. Co., 42, 510 (La. App. 2 Cir. 11/14/07), 969 So.2d 811, writ denied , 2007-2404 (La. 2/15/08), 976 So.2d 178. Ambiguous questionnaires are construed against the employer in determining whether an employee knowingly failed to answer the questionnaire truthfully. Wise v. J.E. Merit Constructors, Inc. , 1997-0684 (La. 1/21/98), 707 So.2d 1214 ; Dugas v. AutoZone, Inc. , 2012-727 (La. App. 3 Cir. 12/5/12), 103 So.3d 1271, writ denied , 2013-0045 (La. 2/22/13), 108 So.3d 775. The WCJ's determination regarding forfeiture of benefits under Section 1208.1 is subject to manifest error review. Id.

There is no dispute that Turner filled out the Section 1208.1 questionnaire prior to beginning work for Chicago, or that the questionnaire included the necessary warning. Thus, the only issues are: (1) whether Turner failed to answer truthfully, and (2) if so, whether this failure directly relates to the medical condition for which benefits are claimed, or affects Chicago's ability to receive reimbursement from the second injury fund.

Chicago does not allege or argue that Turner had a "herniated" or "ruptured" disc in his back prior to the instant work accident. Aside from mere conclusory allegations, Chicago's only allegation in its supplemental reconventional demand is that Turner's checking "no" in response to the question asking whether he had a "herniated" or "ruptured" disc in his back was untruthful in light of his prior diagnosis of "bulging" and "protruding" discs in his lower back.

Again, the questionnaire did not specifically ask whether Turner had "bulging" or "protruding" discs. Chicago treats the question about "herniated" or "ruptured" discs as requiring Turner's disclosure of his "bulging" and "protruding" discs. However, Chicago does not cite any evidence supporting the proposition that bulging/protruding discs are synonymous with herniated/ruptured discs. Furthermore, in brief, Chicago does not otherwise address this threshold issue of whether Turner made an untruthful response to a question on the form, except for the assertion that he "did not disclose his pre-existing back condition."

In response, Turner points out that his response was truthful: the questionnaire did not ask whether he had a "bulging" or "protruding" disc. We are compelled to conclude that it was not manifest error for the WCJ to conclude that Chicago failed to prove Turner's above response was somehow untruthful.

At trial, Chicago also argued that the instructions on the form required Turner to list every medical condition he had that was not specifically addressed elsewhere on the form. Page 2 of the questionnaire requires the employee to check "yes" or "no" next to each disease, medical condition, and surgery listed thereon. It further instructs the employee, "[f]or all conditions that you check yes, write a brief explanation on the Explanation Page." Except for indicating that he had a surgical procedure on his collar bone in 2012, Turner checked "no" next to all items on page 2.

Page 3 of the questionnaire, the "Explanation Page," has instructions materially differing from those on page 2. Specifically, it directs the employee to "use the space below to explain the illnesses and/or conditions that you checked Yes (Y) or any other medical conditions that may not be listed on this form. " (Emphasis added).

Chicago argues that Turner's nondisclosure of his preexisting bulging and protruding discs, in light of this instruction, violated Section 1208.1. We disagree. The instruction for the employee to disclose and explain "any other medical conditions not listed on this form" is overbroad and places an excessive burden on the employee. It is the employer's responsibility to ask the questions it wants answered. For example, had Chicago's questionnaire asked if you "have ever had a back injury or been treated for back pain," Turner would have been prompted to think about and required to disclose his preexisting back condition and prior treatment. In contrast, Chicago's instruction quoted above does not prompt the employee to think about particular medical conditions he or she experienced in the past. Imposing such an expansive and open-ended disclosure obligation on employees, under penalty of forfeiture of workers' compensation benefits, is impermissible.

Answer to appeal: increase of attorney fees and penalties

Pursuant to La. R.S. 23:1201(F), the WCJ awarded Turner $14,500 in attorney fees and $6,000 as a penalty assessed against Chicago. Turner requests that the penalty be increased to the maximum of $8,000 and the award of attorney fees be increased to over $50,000.

We find no manifest error in the $14,500 attorney fee award or the $6,000 penalty. However, we increase the attorney fee award by $3,000 as compensation for the cost of defending against Chicago's appeal.

DECREE

With all costs of this appeal assigned to appellant, the judgment of the Workers' Compensation Court is affirmed. Turner's attorney fee award is increased to $17,500.

AFFIRMED, AS AMENDED.

      Restrictions included limited bending and twisting; no lifting, carrying, pushing or pulling more than 10 pounds.

      Chicago uses I CARE cards to gather information regarding health and safety risks at the job site. Employees who notice potentially hazardous conditions fill out a card reporting such and turn the card in to the I CARE department, which then organizes the cards into various categories.

      It does not explicitly require materiality of the false statement.

      The chiropractor's surname is alternatively spelled "Knight" and "Kight" throughout the record. For the purpose of consistency only, we spell it "Knight."

      It appears that first the word "bulls" was written, then the letter "s" on the end of that word was scratched through.

      Turner did not object to the introduction into evidence of these requests for admission. Accordingly, to the extent, if any, that these allegations are beyond the scope of the allegations made in Chicago's reconventional demand, the pleadings are thereby enlarged. La. C.C.P. art. 1154. This is so despite the requirement of La. C.C.P. art. 856 that fraud be pled with particularity. Durham v. Evans , 377 So.2d 423 (La. App. 2 Cir. 1979).

      The May 1, 2015, MRI results are summarized earlier in this opinion.

      Dr. McCoy's impression based on the October 14, 2016, MRI is block quoted in full on pages 619-20 of this opinion.

      Additionally, the Third Circuit has held that, to trigger forfeiture, the employee must have the intent to deceive the employer in making the false statement on the questionnaire. Hickman v. Jim Smith Logging, 2004-157 (La. App. 3 Cir. 9/29/04), 883 So.2d 1072. See Wise v. J.E. Merit Constructors, Inc. , 1997-0684 (La. 1/21/98), 707 So.2d 1214, 1219 ("ambiguous questionnaires are to be construed against the employer in determining whether the employee knowingly failed to answer the questionnaire truthfully").

      Chicago also does not cite any evidence that, if such is the case, Turner somehow should have known that bulging/protruding discs are synonymous with herniated/ruptured discs.


author: BROWN, C.J.

text:
    STATE of Louisiana, Appellee v. Amethyst Baird RATHORE, Appellant
    52,084-KA 52,085-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered June 27, 2018
    LOUISIANA APPELLATE PROJECT, By: Douglas L. Harville, Counsel for Appellant
    ROBERT STEPHEN TEW, District Attorney, HOLLY A. CHAMBERS-JONES, Assistant District Attorney, Counsel for Appellee
    Before BROWN, PITMAN, and STONE, JJ.
   BROWN, C.J.

Defendant, Amethyst Baird Rathore, pled guilty to illegal possession of stolen things, in violation of La. R.S. 14:69, and possession of methamphetamines, in violation of La. R.S. 40:967, and she was sentenced to ten years at hard labor as to each of the two charges, which were ordered to run consecutively. She has appealed from the trial court's sentencing enhancement under La. R.S. 40:982 as violating her plea agreement or, alternatively, as rendering her guilty plea involuntary. Defendant also challenges as excessive her sentences for both charges. Finding no error, we affirm.

FACTS

On April 28, 2016, law enforcement officers received a call regarding a burglary at a rental house. While checking the property, the owner encountered Defendant inside the house. Defendant fled the scene, but was identified by a witness and apprehended by officers at her residence. Officers obtained a search warrant for Defendant's house and discovered several items in Defendant's garage that had been stolen from the rental house. On August 4, 2016, she was charged by bill of information with illegal possession of stolen things, with a value exceeding $1,500, and criminal trespass in Trial Court Docket No. 16-F1111. At arraignment, Defendant pled not guilty and was later granted bail.

On November 4, 2016, while out on bail, Defendant was involved in a two-car collision on Louisville Avenue in Monroe, Louisiana. Defendant rear-ended the other person's vehicle and then fled the scene. According to Defendant, she drove into the adjacent Burger King parking lot to "get out of the road." Officers with the Monroe Police Department approached her. They reported that Defendant left her vehicle and approached another witness in the same parking lot, demanding to know who hit her car. Officers also reported that Defendant appeared disoriented, and her speech was slurred. During the booking process, officers discovered a white substance on a folded dollar bill found in Defendant's pocket; this substance later tested positive for methamphetamine. On December 2, 2016, Defendant was charged by bill of information with possession of methamphetamines, hit-and-run, and having no driver's license in her possession, in Trial Court Docket No. 16-F2934. Defendant also pled not guilty to these charges. Defendant was released on bond.

On January 7, 2017, Defendant was arrested in Morehouse Parish for attempted first degree murder of a Louisiana Department of Wildlife and Fisheries agent.

On March 2, 2017, the State amended the bill of information in both docket numbers in Ouachita. Defendant withdrew her previous pleas of not guilty under both docket numbers and pled guilty as charged to illegal possession of stolen things and possession of methamphetamines. In exchange, the State agreed to dismiss the remaining charges of criminal trespass, hit-and-run, and driving without a license. The State further noted that that a presentence investigation (PSI) would be ordered in both cases prior to Defendant's sentencing. During her guilty plea colloquy, the trial court informed Defendant of her Boykin rights as well as the possibility of being charged as a habitual offender in the future. Lastly, the trial court advised Defendant of the penalties for the crimes to which she was pleading guilty, noting that the trial court had the right to sentence Defendant to the maximum sentence the law would allow.

On August 23, 2017, the State filed a motion to invoke sentencing guidelines pursuant to La. R.S. 40:982(A), seeking to sentence Defendant for possession of methamphetamines, second offense. In its motion, the State argued that enhancement of Defendant's sentence was appropriate as she had previously been convicted of the same offense on December 3, 2007. A hearing on the motion was held on the same day. Defense counsel did not oppose this motion orally or in writing.

The trial court granted the motion in a written ruling at the sentencing hearing on September 6, 2017. The State then recommended that Defendant be sentenced to the maximum sentences permissible under the law and that the sentences run consecutively. After reviewing the PSI, the trial court sentenced Defendant to serve ten years at hard labor for possession of methamphetamines and ten years at hard labor for illegal possession of stolen things; the sentences were ordered to run consecutively, with credit for time served. The trial court also ordered Defendant to pay restitution in the amount of $2,500 to the victim of the burglary. No restitution was awarded to the victim that Defendant hit with her vehicle because this victim has since filed a tort claim. Defendant filed a motion to reconsider sentence on October 2, 2017, which was denied.

The instant appeal followed. This Court consolidated both matters on its own motion because they share the same guilty plea and sentencing transcripts.

DISCUSSION

Guilty Plea

With her first assignment of error, Defendant contends that the trial court violated her plea agreement by sentencing her to serve ten years at hard labor for possession of methamphetamines as a second offender under La. R.S. 40:982. She asserts that she justifiably believed that upon pleading guilty to possession of methamphetamines, the maximum sentence that she would receive was five years' imprisonment as proscribed under La. R.S. 40:967. Accordingly, Defendant asserts that she is entitled to specific performance of the plea agreement, limiting her sentencing exposure to five years on her possession of methamphetamines conviction. Alternatively, Defendant asserts that she should be allowed to withdraw her guilty plea as it was not knowingly and voluntarily made.

The State contends that it did not agree to forgo sentencing enhancement under La. R.S. 40:982, and Defendant had notice that the State intended to use other crimes to enhance any sentence when the State filed the motion to invoke the sentencing guidelines on August 23, 2017. Furthermore, defense counsel failed to object to the State's motion to invoke La. R.S. 40:982.

A valid guilty plea must be a free and voluntary choice by the defendant. A guilty plea will not be considered free and voluntary unless, at the very least, the defendant was advised of his constitutional rights against self-incrimination, to a trial by jury, and to confront his accusers. Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed. 2d 274 (1969). An express and knowing waiver of those rights must appear on the record. Id. ; State v. Johnson , 51,430 (La. App. 2d Cir. 7/5/17), 224 So.3d 505.

Where the record establishes that an accused was informed of and waived her right to trial by jury, to confrontation, and against self-incrimination, then the burden shifts to the accused to prove that despite this record, her guilty plea was involuntary. State v. Wynne , 40,921 (La. App. 2d Cir. 4/12/06), 926 So.2d 789 ; State v. Johnson , supra .

In order to accept a plea of guilty, the trial court must "make sure [the defendant] has a full understanding of what the plea connotes and of its consequences." Boykin , supra . Louisiana codified this precept, in part, in La. C. Cr. P. art. 556.1.

A plea is constitutionally infirm when the defendant is induced to plead guilty by a plea agreement or by what the defendant reasonably believes is a plea agreement and the terms of the agreement are not satisfied. State v. Young , 50,072 (La. App. 2d Cir. 8/12/15), 174 So.3d 719, appeal after remand, 51,175 (La. App. 2d Cir. 2/15/17), 215 So.3d 906, writ denied , 17-0472 (La. 11/13/17), 230 So.3d 204 ; State v. Bouwell , 45,635 (La. App. 2d Cir. 9/22/10), 48 So.3d 335.

La. R.S. 40:982 grants the state the right to seek an enhanced sentence when a person is convicted of a drug-related offense if, prior to the commission of the present conviction, the offender had been convicted of any other drug-related offense. State v. Skipper , 04-2137 (La. 6/29/05), 906 So.2d 399, 403.

In the case sub judice , at the plea agreement hearing, the State advised the trial court that Defendant would plead guilty to illegal possession of stolen things, valued at greater than $1,500, and possession of methamphetamines, and the State would dismiss the additional charges of criminal trespass (Trial Court No. 16-F1111), hit-and-run, and driving without a license (Trial Court No. 16-F2934) upon sentencing. The State further informed the trial court that the PSI would be ordered, and Defendant would pay restitution to her victims, the amount of which would be determined by the PSI. At this point, the State ended its articulation of the plea terms with "that is the only agreement."

At the plea colloquy, the trial court repeatedly stated that, depending on the outcome of the PSI, Defendant could be sentenced "up to the maximum that the law allows." At no point was Defendant advised that, as a second drug offender under La. R.S. 40:982, she faced a potential sentence of a ten-year imprisonment. Rather, the trial court informed Defendant that the maximum sentence for possession of methamphetamines was five years with or without hard labor, and her conviction could be used in future habitual offender proceedings.

Although Defendant was not advised of potential sentencing enhancement under La. R.S. 40:982 at the plea agreement hearing, the trial court was not precluded from enhancing Defendant's sentence under this statute because there was no prior agreement as to sentencing. The dissenting judge in State v. Hayes, 423 So.2d 1111, 1115 (La. 1982), a case that Defendant relies upon, opined that "[t]he record must indicate that a bargain was made in reference to the multiple offender charge in order to come within the principles of Santobello v. New York , 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed. 2d 427 (1971) ; otherwise, there would be no bargain to enforce."

The record is devoid of any evidence of an agreed-upon sentence. No numerical sentence or range of sentence is found in the record. Thus, such an enhanced sentence does not violate Defendant's plea agreement or render it involuntary. Moreover, the trial court did inform Defendant a number of times that she would be sentenced to the maximum allowed "under the law," which necessarily includes potential sentencing enhancement under La. R.S. 40:982 ; she still agreed to the plea of guilty.

At the plea colloquy on March 2, 2017, the trial court Boykinized Defendant on her rights to counsel, against self-incrimination, to trial, to remain silent, to confront her accusers, and to call witnesses on her behalf. The trial court advised Defendant about her sentencing exposure in that the penalty for possession of methamphetamines was five years with or without hard labor, and a potential fine of not more than $5,000. When asked whether defense counsel informed her of the nature and the consequences of her plea deal, Defendant replied in the affirmative. This meets the statutory requirement that the trial court must determine whether Defendant understands the nature and consequences of pleading guilty under La. C. Cr. P. art. 556.1(A)(1). Defendant was also notified that the State may use these convictions to seek sentencing enhancement in the future under the habitual offender statute.

On August 23, 2017, the State filed a motion to invoke the sentencing enhancement provisions of La. R.S. 40:982, and a hearing was held. Notably, defense counsel failed to file an opposition to the State's motion or lodge an objection regarding the motion and the use of La. R.S. 40:982 at this hearing. At the conclusion of enhanced sentencing invoking proceedings, the defense attorney requested leave to review the sealed, expunged records. The trial court granted the defense's request and allowed both the State and defense to view Defendant's expunged records. The record is void of any showing that defense counsel lodged an objection after he reviewed the expunged records. As such, the State appropriately invoked La. R.S. 40:982 post-conviction pursuant to State v. Skipper , supra , relying upon a previously expunged conviction for the same offense committed in 2007. Defendant has not argued that counsel was ineffective and failed to inform her of the enhanced sentencing provision. By failing to object to the State's motion, Defendant failed to preserve the sentencing enhancement issue for appeal. Defendant cited and discussed State v. Hayes, supra , in support of her assertion that the State violated the plea agreement or made her plea involuntary by seeking sentencing enhancement after the plea agreement hearing. Hayes is distinguishable from the instant matter; in that case, the defense counsel opposed the application of La. R.S. 40:982 at the very time that the prosecution sought to use it to enhance sentencing.

In this case, defense counsel did not object or oppose the motion to invoke such enhanced sentencing. In fact, he acquiesced to the trial court. Also distinguishable from the instant matter is that in State v. Hayes, supra , the record shows that the defendant agreed to a four-year sentence without being multi-billed. The instant record shows an agreement to be sentenced to the maximum allowed under the law, which necessarily includes the enhanced sentencing under La. R.S. 40:982.

A review of the transcript reveals that Defendant's guilty plea was knowingly and intelligently made even though the record shows that her counsel was not aware of the expunged, prior predicate offense conviction in 2007. Defendant knew or should have known that her prior expunged conviction would be used and should have disclosed her expunged conviction to her counsel. The record also reveals that the only agreement the prosecution made was to drop all three misdemeanor charges in exchange for the guilty plea to the two counts of possession of stolen things and possession of methamphetamines. There is not an agreed-upon sentence. The prosecution stated "that is the only agreement" after articulating the terms of the plea and requesting the court to order a PSI. The trial court thrice advised Defendant that she could be sentenced to the maximum allowed under the law. There is no evidence of any promise or agreement with Defendant by the State about sentencing enhancement. There is no indication in the record that the State agreed to forgo seeking the enhanced sentencing.

Excessive Sentence

With her second and last assignment of error, Defendant contends that the trial court erred by imposing an unconstitutionally harsh and excessive sentence, arguing that two ten-year consecutive sentences for nonviolent offenses are grossly disproportionate to the severity of the crimes and are, therefore, excessive. Defendant further asserts that the trial court erroneously relied on charges pending against her in Morehouse Parish, including an attempted first degree murder charge, during her sentencing hearing.

On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Jackson , 48,534 (La. App. 2d Cir. 1/15/14), 130 So.3d 993 ; State v. Darnell , 51,499 (La. App. 2d Cir. 08/09/17), 243 So. 3d 1162, 2017 WL 3401352, writ denied , 17-1526 La. 5/25/18, 242 So. 3d 1231, 2018 WL 2441211 ; State v. Billingsley , 13-11 (La. App. 3d Cir. 10/9/13), 123 So.3d 336. Thus, a trial court's sentence will not be set aside absent a manifest abuse or arbitrary exercise of discretion. State v. Cook , 32,110 (La. App. 2d Cir. 06/16/99), 742 So.2d 912, 919 ; State v. Bates , 29,252 (La. App. 2d Cir. 1/22/97), 711 So.2d 281, 286-87.

Maximum sentences are generally reserved for the worst offenses and offenders. State v. Washington , 50,337 (La. App. 2d Cir. 1/13/16), 185 So.3d 852, writ denied , 16-0224 (La. 2/3/17), 215 So.3d 688 ; State v. Smith , 48,196 (La. App. 2d Cir. 6/26/13), 117 So.3d 1273.

In this case, the two charges are not based on the same act or transaction or constitute parts of a common scheme or plan.

La. C. Cr. P. art. 883 states, in pertinent part:

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.

When consecutive sentences are imposed, the court shall state the factors considered and its reasons for the consecutive terms. State v. Johnson , 42,323 (La. App. 2d Cir. 8/15/07), 962 So.2d 1126 ; State v. Maxie , 30,877 (La. App. 2d Cir. 8/19/98), 719 So.2d 104. Among the factors to be considered are the defendant's criminal history, the gravity or dangerousness of the offense, the viciousness of the crimes, whether the defendant constitutes an unusual risk of danger to the public, the defendant's apparent disregard for the property of others, the potential for rehabilitation, and whether the defendant has received a benefit from a plea bargain. State v. Coleman , 32,906 (La. App. 2d Cir. 4/5/00), 756 So.2d 1218, writ denied , 00-1572 (La. 03/23/01), 787 So.2d 1010.

For the purposes of sentencing, a trial court is not limited to considering only a defendant's prior convictions. State v. Hampton , 50,561 (La. App. 2d Cir. 5/18/16), 195 So.3d 548, writ denied , 16-1181 (La. 5/26/17), 221 So.3d 854 ; State v. Bright , 39,003 (La. App. 2d Cir. 10/27/04), 886 So.2d 1183. The sources of information relied upon by the trial court are varied and may include information not normally admissible at trial, such as hearsay, prior arrests without disposition, and suspicions of criminal activity without actual proof the defendant committed the other offenses. State v. Hampton , supra at 561 ; State v. Platt , 43,708 (La. App. 2d Cir. 12/3/08), 998 So.2d 864, writ denied , 09-0265 (La. 11/06/09), 21 So. 3d 305 ; State v. Harris , 39,975 (La. App. 2d Cir. 9/21/05), 911 So.2d 361.

At Defendant's sentencing hearing on September 6, 2017, the trial court noted its consideration of the PSI as ordered in accordance with the plea agreement. It also advised Defendant that it found her previous drug felony conviction to be her second such offense, and that it would sentence her as a second offender pursuant to La. R.S. 40:982. Possession of methamphetamines is punishable with or without hard labor for not more than five years, and the defendant may be ordered to pay a fine of not more than $5,000. La. R.S. 40:967(C)(2). Additionally, La. R.S. 40:982(A) provides that "any person convicted of any offense under this part, if the offense is a subsequent offense, shall be sentenced to a term of imprisonment that is twice that otherwise authorized or to payment of a fine that is twice that authorized or both." Therefore, under this statute, a second conviction of possession of methamphetamines is punishable at ten years with or without hard labor, and, in addition, the trial court may order a fine of not more than $10,000. Specifically, the trial court relied upon Defendant's previous conviction from September 3, 2007, for which she received a deferred sentence under La. C. Cr. P. art. 893 and two years' supervised probation. The conviction was ultimately expunged upon successful completion of said probation; however, as noted by the trial court, an expunged conviction may be considered as a first offense for sentencing purposes under La. C. Cr. P. art. 893(E)(2).

The trial court stated in its sentencing deliberations that it examined the relevant provisions of La. C. Cr. P. art. 894.1. The trial court noted that Defendant's subsequent criminal history shows a series of misdemeanor arrests and/or convictions and a pattern of repeating the same offenses: three charges of careless operation, three charges of hit and run driving, three charges of operating a vehicle with a suspended license, and two firearms charges. The trial court also noted that those charges never resulted in jail time; instead, Defendant was either ordered to pay a fine or the charges were dismissed.

The trial court then re-examined the facts of the instant offenses to which Defendant had pled guilty and noted its consideration of the pending charges against Defendant in Morehouse Parish. On February 6, 2017, Defendant was indicted by a Morehouse grand jury for the attempted first degree murder of a commissioned wildlife enforcement agent, obstruction of justice, illegal possession of stolen things, and illegal possession of a firearm. The trial court stated that Defendant, while out on bond, allegedly shot the wildlife enforcement agent multiple times in the early morning hours of January 7, 2017, when Defendant and her boyfriend encountered the agent while driving a stolen vehicle. Though seriously wounded, the agent survived the shooting.

The trial court also considered Defendant's personal, educational, and work history and stated that, in its review of La. C. Cr. P. art. 894.1, it believed that there was an undue risk that Defendant would likely commit another crime should she receive a suspended sentence or probation. The trial court found Defendant needed correctional treatment, which would most effectively be provided by her commitment to an institution.

The trial court determined that none of the mitigating factors under La. C. Cr. P. art. 894.1 were applicable. The court added that it received several letters in support of Defendant from her family; however, the letter writers mistakenly believed that Defendant was being sentenced for her pending charges in Morehouse Parish. Despite this error, the trial court still considered the letters' content regarding Defendant's childhood and the belief that she is not a bad person.

The trial court further stated that it was cognizant that maximum sentences were reserved for the most serious violations of the statute but found that Defendant's crimes steadily increased in severity, and probated sentences had failed to deter her criminal conduct.

After reviewing the record in its entirety, we find that there is an adequate factual basis for the sentence imposed. We find that the trial court adequately considered the appropriate aggravating and mitigating factors set forth in La. C. Cr. P. art. 894.1. The sentence imposed, 20 years in total at hard labor, is neither grossly disproportionate to the seriousness of the offenses committed nor shocking to the sense of justice considering Defendant's criminal history and her pending criminal charges in Morehouse Parish at sentencing.

Thus, there is no showing that the trial court abused its discretion in sentencing this Defendant. Consequently, we cannot say that Defendant's sentence is constitutionally excessive.

CONCLUSION

For the foregoing reasons, Defendant's convictions and sentences are affirmed.

AFFIRMED .

      Apparently defense counsel and the State agreed to dismissal of these charges in exchange for payment of restitution. Defendant was also informed of her obligation to pay restitution during her guilty plea proceedings.

      This court has been informed that Defendant has pled guilty to all charges in Morehouse Parish.