author: LILJEBERG, J.

text:
    STATE of Louisiana v. Kendall E. TURNER
    NO. 18-KA-409
    Court of Appeal of Louisiana, Fifth Circuit.
    December 12, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna
    COUNSEL FOR DEFENDANT/APPELLANT, KENDALL E. TURNER, Cynthia K. Meyer
    Panel composed of Judges Stephen J. Windhorst, Hans J. Liljeberg, and John J. Molaison, Jr.
   LILJEBERG, J.

Defendant appeals his conviction and sentence for one count of simple burglary. For the following reasons, we affirm. We also grant appellate counsel's motion to withdraw as counsel of record.

PROCEDURAL HISTORY

Defendant, Kendall Turner, was charged by bill of information with one count of simple burglary of a 2013 Chevrolet Silverado, in violation of La. R.S. 14:62. He initially pleaded not guilty. Thereafter, defendant withdrew his not guilty plea, and after being advised of his Boykin rights, pleaded guilty as charged. In accordance with the plea agreement, defendant was sentenced to eight years imprisonment in the Department of Corrections, a five hundred dollar fine, court costs, and two hundred ninety-two dollars in restitution. The court suspended the fine, ordered defendant's sentence to run concurrently with his parole revocation, and recommended defendant for drug treatment and any self-help programs available in the Department of Corrections.

FACTS

Because defendant's conviction was the result of a guilty plea, the facts underlying the crime of conviction are not fully developed in the record. Thus, the facts were gleaned from the bill of information which alleged that on April 26, 2017, defendant violated La. R.S. 14:62"in that he did commit simple burglary of a 2013 Chevrolet Silverado belonging to Dane Goodwin," in Jefferson Parish.

ANDERS BRIEF

Pursuant to the procedure adopted by this Court in State v. Bradford , 95-929, pp. 3-4 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, appointed appellate counsel has filed a brief asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, under Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles , 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam), appointed counsel requests permission to withdraw as counsel of record.

In Anders , supra , the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if she finds her case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by " 'a brief referring to anything in the record that might arguably support the appeal' " so as to provide the reviewing court "with a basis for determining whether appointed counsel have fully performed their duty to support their clients' appeals to the best of their ability" and to assist the reviewing court "in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw." McCoy v. Court of Appeals of Wisconsin, Dist. 1 , 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

In Jyles , 96-2669, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The supreme court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel "has cast an advocate's eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration." Id.

When conducting a review for compliance with Anders , an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. Bradford , 95-929, 676 So.2d at 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel's motion to withdraw and affirm the defendant's conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellate counsel. Id.

DISCUSSION

Defendant's appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. She submits there were no pre-trial rulings which could arguably support an appeal nor did defendant reserve his right to appellate review of the denial of any such motions. Appellate counsel further avers that defendant entered an unqualified guilty plea to the charged offense after being advised of his constitutional rights. She indicates that defendant understood his rights and knowingly, intelligently, and voluntarily waived them. Appellate counsel avers that defendant was sentenced pursuant to the plea agreement, precluding him from challenging his sentence on appeal.

Appellate counsel has filed a motion to withdraw as attorney of record, in which she states that after a conscientious review of the trial court record, she can find no non-frivolous issues to raise on appeal. She indicates that defendant has been notified regarding the filing of her motion to withdraw, as well as his right to file a pro se brief in this appeal. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until September 1, 2018, to file a pro se supplemental brief. Defendant has not filed a pro se supplemental brief in this matter.

An independent review of the record supports appellate counsel's assertion that there are no non-frivolous issues to be raised on appeal.

The bill of information properly charged defendant and plainly and concisely stated the essential facts constituting the charged offense. It also sufficiently identified defendant and the crime charged. See La. C.Cr.P. arts. 464 - 466. The record also shows that there are no appealable issues surrounding defendant's presence. The minute entries reflect that defendant appeared at each stage of the proceedings against him, including his arraignment, guilty plea proceeding, and sentencing. Moreover, there were no pre-trial rulings on any motions in this case. Thus, no rulings were preserved for appeal under the holding in State v. Crosby , 338 So.2d 584 (La. 1976).

Defendant pleaded guilty as charged to the bill of information. If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea and precludes review of such defects either by appeal or post-conviction relief. State v. Turner , 09-1079 (La. App. 5 Cir. 7/27/10), 47 So.3d 455, 459. Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. State v. McCoil , 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. Id.

A review of the record reveals no constitutional infirmity or any irregularity in defendant's guilty plea that would render it invalid. The record shows that defendant was aware he was pleading guilty to one count of simple burglary in violation of La. R.S. 14:62. On the waiver of rights form and during the guilty plea colloquy defendant was advised of his right to a judge or jury trial, his right to confrontation, and his privilege against self-incrimination, as required by Boykin , supra. Defendant was also informed of his right to an attorney and to have an attorney appointed if he could not afford one. Defendant placed his initials next to these rights and placed his signature at the end of the waiver of rights form indicating that he understood he was waiving these rights. He also affirmatively stated to the trial court during the colloquy that he understood that by pleading guilty he was waiving these rights.

Additionally, defendant was informed that his guilty plea could be used to enhance a penalty for any future conviction. Defendant indicated that he understood the possible legal consequences of pleading guilty and confirmed that he had not been forced, coerced, or intimidated into entering his guilty plea. Further, defendant was informed during the colloquy of the nature of the offense and the sentencing range for the offense. Defendant acknowledged that he was pleading guilty because he was guilty of the crime charged. After his colloquy with defendant, the trial judge accepted defendant's guilty plea as knowingly, intelligently, freely and voluntarily made.

Lastly, defendant's sentence of eight years imprisonment in the Department of Corrections is within the sentencing range prescribed by La. R.S. 14:62. Further, defendant's sentence was imposed pursuant to, and in conformity with, the plea agreement. La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of his sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea. State v. Moore , 06-875 (La. App. 5 Cir. 4/11/07), 958 So.2d 36, 46 ; State v. Washington , 05-211 (La. App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173.

Appellate counsel's brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal, and an independent review of the record supports counsel's assertion. Accordingly, we affirm defendant's conviction and sentence, and we grant appellate counsel's motion to withdraw as attorney of record.

ERRORS PATENT

Defendant requests an error patent review. However, this Court routinely reviews the record for errors patent in accordance with La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; and State v. Weiland , 556 So.2d 175 (La. App. 5 Cir. 1990) regardless of whether defendant makes such a request. In this case, our review revealed no errors requiring corrective action.

DECREE

For the foregoing reasons, we affirm defendant's conviction and sentence. We also grant appellate counsel's motion to withdraw as counsel of record.

CONVICTION AND SENTENCE AFFIRMED; MOTION TO WITHDRAW GRANTED

      Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      Defendant also pleaded guilty to the misdemeanor charge of resisting arrest in violation of La. R.S. 14:108, which is not before this Court on appeal.

      In Bradford , supra , this Court adopted the procedures outlined in State v. Benjamin , 573 So.2d 528, 530 (La. App. 4 Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton , 95-0981 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam).

      The United States Supreme Court reiterated Anders in Smith v. Robbins , 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

      In his pro se motion for appeal, defendant states that he was "aggrieved by the of [sic] his pre-trial Motion(s) to Suppress and finding of probable cause" and thus requested an order of appeal to this Court. However, the record does not indicate that a motion to suppress was ever filed and/or ruled upon, nor does it reflect that a probable cause hearing was requested and/or conducted.

      La. R.S. 14:62 provides for a term of imprisonment, with or without hard labor, for not more than twelve years, a fine of not more than two thousand dollars, or both. Thus, defendant's sentence of eight years with the Department of Corrections and a suspended five hundred dollar fine was within the sentencing range prescribed by La. R.S. 14:62.


source: Caselaw Access Project

author: WICKER, J.

license: Public Domain

text:
    STATE of Louisiana v. Lawrence CHIRLOW
    NO. 18-KA-359
    Court of Appeal of Louisiana, Fifth Circuit.
    December 12, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux
    COUNSEL FOR DEFENDANT/APPELLANT, LAWRENCE CHIRLOW, Jane L. Beebe
    Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Marc E. Johnson
   WICKER, J.

Defendant, Lawrence Chirlow, appeals his conviction for possession of cocaine in excess of 28 to 200 grams, in violation of La. R.S. 40:967(F) and possession with intent to distribute marijuana in violation of La. R.S. 40:966(A). Appointed counsel for Defendant has filed an appellate brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and State v. Jyles , 96-2669 (La. 12/12/97), 704 So.2d 241, 242 (per curiam ), seeking to withdraw as counsel of record for Defendant asserting that after thoroughly reviewing the district court record, she could find no non-frivolous issues to raise on appeal.

For the following reasons, we affirm Defendant's convictions and sentences, remand the case for correction of errors patent, and grant appellate counsel's motion to withdraw as counsel of record.

PROCEDURAL HISTORY

On July 1, 2015, the Jefferson Parish District Attorney filed a bill of information charging Defendant with possession of cocaine in excess of 28 to 200 grams, in violation of La. R.S. 40:967(F) (count one), and with possession with intent to distribute marijuana, in violation of La. R.S. 40:966(A) (count two). At his June 6, 2015 arraignment, Defendant pled not guilty as to both counts.

On September 10, 2015, defense counsel filed a Motion to Appoint a Sanity Commission to Determine Defendant's Competence to Stand Trial. A competency hearing was held on May 4, 2016, at which counsel for both parties requested that the forensic psychiatrist and forensic psychologist who initially evaluated Defendant be allowed to re-assess his mental capacity.

During a subsequent hearing on July 20, 2016, the district court found Defendant competent to stand trial. At the same proceeding, Defendant withdrew his not guilty plea and entered a plea of guilty as charged to counts one and two. Defendant was then sentenced in accordance with the plea agreement to serve "[eighteen] years in the Department of Corrections as to each count, to run concurrently." The district court further ordered Defendant to comply with the schedule of fines, fees, sentencing provisions, and probation requirements, and afforded him credit for time served, "to run concurrently with district court case number15-4259, as well as any other time imposed." Finally, the district court recommended that Defendant participate in "any and all self-help or substance abuse programs that may be available" in the Department of Corrections.

After this initial sentence, the State filed a Multiple Offender Bill of Information alleging Defendant was a second time felony offender as to count one, possession of cocaine in excess of 28 to 200 grams. Defendant pled guilty and the district court vacated Defendant's original sentence as to count one and imposed a sentence of eighteen years hard labor, to run concurrent with count two and "any or all other time imposed." Defendant received credit for time served and was ordered to comply with the schedule of fines, fees, sentencing provisions, and probation requirements and recommended any substance abuse and self-help treatments available through the Department of Corrections.

On February 26, 2018, Defendant filed an application for post-conviction relief in the district court. The district court dismissed his application without prejudice on March 2, 2018. Defendant filed a writ with this Court on April 4, 2018, seeking review of the district court's denial and was granted leave to seek an out-of-time appeal on May 22, 2018. The Louisiana Appellate Project was appointed as defense counsel on June 8, 2018. Defense counsel has filed an Anders brief requesting an errors patent review and a motion to withdraw as counsel of record for appellant.

FACTS

On July 20, 2016, Defendant pled guilty without proceeding to trial. As a result of Defendant's guilty plea, the underlying facts regarding the crime of conviction were not fully developed in the record. However, during Defendant's plea colloquy, the State provided the following factual basis:

Your Honor, as to case 15-3900, if that matter were to go to trial, the state would be able to prove beyond a reasonable doubt that on or about May the 28th of 2015, as to count one and two, the defendant violated Revised Statute 40:967 [F]; that he did knowingly or intentionally possess cocaine, between 28 and 200 grams; and as to count two on that same date, that he violated Revised Statute 966[A] in that he did knowingly or intentionally possess with the intent to distribute marijuana.

ANDERS BRIEF

Defendant's appointed counsel has filed a brief pursuant to Anders v. California , supra , and State v. Jyles , supra , asserting that she has thoroughly reviewed the district court record and could find no non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests to withdraw as counsel of record.

In Anders , supra , the United States Supreme Court held that appointed counsel may seek to withdraw from representation if counsel finds the case to be wholly frivolous after a conscientious examination of the record. In State v. Smith , infra , this Court further held that the request must be accompanied by "a brief referring to anything in the record that might arguably support the appeal" so as to provide the reviewing court "with a basis for determining whether appointed counsel have fully performed their duty to support their clients' appeals to the best of their ability" and to assist the reviewing court "in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw." 18-142 (La. App. 5 Cir. 8/29/18), 253 So.3d 1314, 1318 ; citing McCoy v. Court of Appeals of Wisconsin, Dist. 1 , 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

In Jyles , supra , the Louisiana Supreme Court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel "has cast an advocate's eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration." See Id. at 241. The court further held that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. Id.

To comply with Anders , an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. State v. Bradford , 95-929 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110. Thus, "when counsel files an Anders brief, an appellate court reviews several items: a) the Bill of Information to ensure the charge is proper, b) all minute entries to ensure that defendant was present at all crucial states of the prosecution, c) all pleadings in the record, and d) all transcripts to determine whether any ruling of the trial court provides a basis for appeal." State v. Dufrene , 07-823 (La. App. 5 Cir. 2/19/08), 980 So.2d 31, 33. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, the court may grant counsel's motion to withdraw and affirm the defendant's conviction and sentence. However, if the court finds a legal point arguable on the merits, it may either deny the motion and order the court-appointed counsel to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellate counsel. Id.

ANALYSIS

Appellate counsel indicates that she has prepared a brief in accordance with Anders , supra , and Jyles , supra , and after a conscientious and thorough review of the record, she could find no non-frivolous issues to raise on appeal nor could she find a ruling of the district court which arguably supports an appeal. The State agrees with appellate counsel, and urges this Court to grant appointed counsel's motion to withdraw as counsel of record. On July 6, 2018, this Court notified Defendant, via certified mail, that an Anders brief had been filed on his behalf and that he had until August 5, 2018 to file a pro se supplemental brief. As of the date of this case's submission for decision, Defendant had not filed a brief with this Court.

This Court's independent review of the record supports appellate counsel's assertion that there are no non-frivolous issues to raise on appeal. First, the bill of information properly charged Defendant and clearly, concisely and definitely stated the essential facts constituting the offenses charged and sufficiently identified Defendant and the crimes charged. See La. C.Cr.P. arts. 463 - 466. The bill charges Defendant with one count of possession of a controlled dangerous substance, cocaine (28 to 200 grams), in violation of La. R.S. 40:967(F), and a second count of possession with intent to distribute a controlled dangerous substance, marijuana, in violation of La. R.S. 40:966(A). Second, the minute entries in the record reflect that Defendant, and his counsel, appeared at each stage of the prosecution against him, including his arraignment, guilty plea proceeding, and sentencing. Therefore, his presence does not present any issues supporting an appeal. See State v. Benjamin , 573 So.2d 528, 530 (La. App. 4th Cir. 1990).

Third, Defendant entered a guilty plea to the charges filed against him. If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea and precludes review of such defects either by appeal or post-conviction relief. State v. Wingerter , 05-697 (La. App. 5 Cir. 3/14/06), 926 So.2d 662, 664 ; State v. Turner , 09-1079 (La. App. 5 Cir. 7/27/10), 47 So.3d 455, 459. Only guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. State v. McCoil , 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when the defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. Id. In such a case, the defendant has been denied due process of law in that the plea was not given freely and knowingly. State v. Goff , 13-866 (La. App. 5 Cir. 4/9/14), 140 So.3d 146, 150-51.

In his initial plea agreement, Defendant entered a guilty plea essentially waiving all non-jurisdictional defects. No rulings were preserved for appeal under the holding in State v. Crosby , 338 So.2d 584 (La. 1976). Also, prior to Defendant's guilty plea, the district court found him competent to stand trial. Defendant's guilty plea waived his right to challenge his competency on appeal. See State v. Lyons , 13-180 (La. App. 5 Cir. 10/09/13), 128 So.3d 407, 415 ; State v. Marenco , 17-418 (La App. 5 Cir. 12/27/17), 236 So.3d 784, 789.

A review of the record in the present case reflects that Defendant was aware he was pleading guilty to the crime of possession of cocaine in excess of 28 to 200 grams and possession with intent to distribute marijuana. During the plea colloquy with the district court on July 20, 2016, Defendant was advised of his right to trial by judge or jury, his right to confrontation, and the privilege against self-incrimination as required under Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Defendant verbally attested to the district court his understanding that, by pleading guilty, he was waiving the aforementioned rights and provided his initials and signature on the Acknowledgment of Constitutional Rights and Waiver of Rights on Entry of a Plea of Guilty-Felony Boykin form as further evidence of his understanding that he was waiving said rights by pleading guilty. Therefore, Defendant's guilty plea presents no means by which it would be considered constitutionally infirm.

During Defendant's guilty plea colloquy, he implied that he felt in some way forced to plead guilty, at which point defense counsel requested to speak with Defendant. After consulting Defendant, defense counsel clarified Defendant's statement and informed the court that Defendant was referring to his feeling that his drug addiction was controlling his actions, not that a specific individual was forcing him to enter a guilty plea. Defendant attested that this is what he meant by his statement. Based on his attestation, the district court found that Defendant had not been forced or coerced into entering into a guilty plea.

Despite informing Defendant that a guilty plea would allow the court to impose the maximum sentence allowable under the law, the district court failed to inform Defendant of the sentencing range or maximum fine for violation of La. R.S. 40:967(F) and 40:966(A) . Although the waiver of constitutional rights form signed and initialed by Defendant states the maximum sentence imposed for count one, it failed to provide the maximum sentence amount or the sentencing range for count two, possession with intent to distribute marijuana. This Court has held that prior to accepting a guilty plea, the court must personally inform the defendant of the nature of the charge to which the plea is offered, any mandatory minimum penalty, and the maximum possible penalty. See La. C.Cr.P. art. 556.1(A)(1) ; State v. Kent , 15-323 (La. App. 5 Cir. 10/28/15), 178 So.3d 219, 229, writ denied 15-2119 (La. 12/16/16), 211 So.3d 1165. However, the district court informed Defendant of the actual sentence he would receive if the court accepted his plea. Subsection "E" of La. C.Cr.P. art. 566.1 states "any variance from the procedures required by this Article which does not affect substantial rights of the accused shall not invalidate the plea." Furthermore, this Court has held that an advisement of the agreed upon sentence is sufficient for compliance with La. C.Cr.P. art. 556.1. State v. Faggard , 15-585 (La. App. 5 Cir. 1/13/16), 184 So.3d 837, 847, writ denied , 16-338 (La. 2/10/17), 215 So.3d 701 ; State v. Craig , 10-854 (La. App. 5 Cir. 5/24/11), 66 So.3d 60, 64. Thus, the district court's failure to inform Defendant of the sentencing range would not invalidate his guilty plea since Defendant was informed of his actual sentence should he plead guilty.

After a thorough colloquy with defendant, the district court accepted Defendant's guilty plea as knowingly and voluntarily made. Defendant was sentenced to 18 years in the Department of Corrections as to count one (possession of cocaine in excess of 28-200 grams) and 18 years in the Department of Corrections as to count two (possession with intent to distribute marijuana), to run concurrent with each other, case 15-4259, and "any other time imposed." Although the district court's commitment of Defendant to the Department of Corrections appears contrary to La. R.S. 40:967(F) and 40:966(A), which requires the violator be sentenced to hard labor, this Court has held that imprisonment in the Department of Corrections is imprisonment at hard labor. See State v. Baptiste , 16-316 (La. App. 5 Cir. 12/14/16), 209 So.3d 321. Defendant was also ordered to comply with the schedule of fines, fees, sentencing provisions, and probation requirements and was recommended for substance abuse and self-help programs offered by the Department of Corrections.

Immediately following this initial sentencing, the state filed a Multiple Offender Bill of Information against Defendant. Defendant acknowledged reviewing the bill of information with his attorney, that he was informed of the rights he would forfeit and maintain in pleading guilty, and was informed that as a multiple offender, his sentence could range between 15 and 60 years under La. R.S. 15:529.1. The district court then informed Defendant that his sentence would be eight years hard labor, concurrent with count two, with credit for time served and with all other time imposed. However, the district court, upon accepting Defendant's guilty plea and finding that it was knowingly, intelligently, freely, and voluntarily made, sentenced Defendant to 18 years hard labor, to run concurrently with count two and any or all other time imposed. The court further granted Defendant credit for time served, recommended him for substance abuse and self-help treatments available through the Department of Corrections, and ordered him to comply with the schedule of fines, fees, sentencing provisions and probation requirements.

There is a noted discrepancy between the potential and actual detainment period stated by the district court during the plea colloquy and subsequent sentencing. Although the court initially informed Defendant he would receive eight years hard labor prior to accepting his plea, the court subsequently sentenced Defendant to eighteen-years hard labor. However, the record reflects that Defendant was fully aware of the eighteen year sentence he was to receive prior to pleading guilty. During the plea colloquy, he was correctly informed by the court that his sentence as a habitual offender under La. R.S. 15:529.1 would fall between 15 and 60 years, which is above the eight years mentioned by the court. Defendant initialed and provided his signature on the waiver of rights form that clearly states that, as a second offender, Defendant would be sentenced to 18 years hard labor to run concurrent with count two and credit for time served. Furthermore, Defendant failed to raise any objections to his sentence during the proceedings. It is clear that Defendant was aware that he would be sentenced to eighteen years at hard labor and not eight years at hard labor.

This Court has consistently interpreted La. C.Cr.P. art. 881.2 as precluding defendants from seeking review of an enhanced sentences to which the defendant agreed and sentences imposed in conformity with a plea agreement set forth in the record at the time of the plea. See State v. Williams , 12-299 (La. App. 5 Cir. 12/11/12), 106 So.3d 1068, 1075, writ denied , 13-109 (La. 6/21/13), 118 So.3d 406 ; State v. Washington , 05-211 (La. App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. Since Defendant's sentence is within the sentencing range set forth in the statutes, and is beneficial to him we find that the district court's statement is not a reversible error for appeal.

Upon a review of the record, we find no non-frivolous issues for appeal. Defendant's appointed counsel has adequately shown review and analysis of the record in this case. Our independent review of the record confirms counsel's assertions set forth in the Anders brief. Accordingly, counsel's request to withdraw as counsel of record is granted.

ERRORS PATENT

Defendant requests an errors patent review of his convictions and sentences. This Court routinely reviews an appellate record for errors patent in accordance with La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; and State v. Weiland , 556 So.2d 175 (La. App. 5th Cir. 1990), regardless of whether a defendant requests an errors patent review. Upon review, the following errors patent were identified.

A discrepancy exists between the minute entry, the Uniform Committee Order ("U.C.O."), and the transcript involving the concurrent nature of Defendant's sentences. When there is a discrepancy between the minute entry and the transcript, the transcript generally prevails. State v. Lynch , 441 So.2d 732, 734 (La. 1983). The transcript provides that Defendant's sentences are to run "concurrently with the other case (15-4259) as well as any other time imposed;" however, the U.C.O. and the minute entry provide that Defendant's sentences are to run concurrently with "any and all other sentences Defendant may be currently serving." Thus, the transcript provides ambiguity regarding the consecutive nature of Defendant's sentences, in that the term "imposed" in the transcript may be interpreted in a manner broader than what the district court intended. Specifically, the use of "imposed" may be construed to mean that each of Defendant's sentences are to run concurrent with the other imposed during that specific proceeding or it may provide an interpretation similar to that of the minute entry and U.C.O. in allowing Defendant's sentences to run concurrent with any sentence Defendant is currently serving. Therefore, we remand the matter to the 24th Judicial District Court and order the trial court to clarify the Defendant's commitment as to the concurrent nature of Defendant's sentences.

Furthermore, under the initial plea agreement, Defendant should have been charged under La. R.S. 40:966(B) with a fine of not more than fifty thousand dollars and under La. R.S. 40:967(F)(1)(A) with a fine of not less than fifty thousand dollars, nor more than one hundred fifty thousand dollars; however, the court imposed only a $500 dollar fine pursuant to the schedule of fines and fees. The district court further failed to distinguish to which violation the fine was being applied. We point out that the Schedule of Fines, Fees, Sentencing Provisions & Probation Requirement charges Defendant with a $500 dollar fine in relation to La. R.S. 40:967(F), possession of cocaine in excess of 28 to 200 grams. However, this sentence was later vacated by the district court and Defendant was sentenced under the Habitual Offender statute which does not impose fines on offenders. If this fine is to apply to La. R.S. 40:966(A), there is nothing in the record that indicates that this fine was in connection with Defendant's pleading guilty to that crime. Therefore, there is nothing in the record that provides clarity as to how the district court applied the $500 dollar fine imposed on the defendant.

This ambiguity existed under the initial sentencing agreement, in that the fine imposed not only failed to meet the sentencing guidelines established under the law but was also ambiguous as to which crime it applied; therefore, the district court either failed to apply a mandatory fine against one violation or imposed an illegally lenient sentence in another. Since the original sentence as to count one was vacated, and La. C.Cr.P. art. 15:529.1 does not provide for the imposition of a fine on resentencing, we conclude that the district court's imposition of the $500 dollar fine was imposed on count two (possession with intent to distribute marijuana). Our conclusion is further supported by the fact Defendant was not informed during the multiple offender colloquy or on the multiple offender waiver of rights form that he would have to comply with the schedule of fines and fees.

Under La. C.Cr.P. art. 882, this court has the authority to correct an illegally lenient sentence. However, this authority is permissive rather than mandatory. State v. Jordan , 02-820 (La. App. 5 Cir. 12/30/02), 836 So.2d 609, 614. Where the defendant is indigent this Court has often declined to exercise our authority to correct illegally lenient sentences agreed upon as part of a plea bargain. See State v. Campbell , 08-1226 (La. App. 5 Cir. 5/26/09), 15 So.3d 1076. See also State v. Grant , 04-341 (La. App. 5 Cir. 10/26/04), 887 So.2d 596, 598 ; State v. Shelby , 16-634 (La. App. 5 Cir. 3/15/17), 215 So.3d 944.

In the present case, it appears Defendant is indigent. He is represented by the Louisiana Appellate Project, which provides appellate services for indigent criminal defendants in non-capital felony cases. Additionally, Defendant's sentence is a result of a guilty plea. La. C.Cr.P. art. 890.1(A)(1) states:

(A) Notwithstanding any other provision of law to the contrary, if a felony or misdemeanor offense specifies a sentence with a minimum term of confinement or a minimum fine, or that the sentence shall be served without benefit of parole, probation, or suspension of sentence, the court, upon conviction, in sentencing the offender shall impose the sentence as provided in the penalty provisions for that offense, unless one of the following occurs:
(1) The defendant pled guilty pursuant to a negotiated plea agreement with the prosecution and the court, which specifies that the sentence shall be served with benefit of parole, probation, or suspension of sentence or specifies a reduced fine or term of confinement.

Since the fee imposed on Defendant appears to be in connection with his plea agreement and the Defendant is indigent, we refrain from exercising our authority in this matter.

Our last finding of error patent involves the district court's failure to inform Defendant of the ten-year prohibition on seeking probation or suspension of sentence if he were found to have violated La R.S. 40:966(A). Defendant pled guilty under La. R. S. 40:966(A). However, subsection (B)(1) states that a violation of subsection A requires at least ten years of a defendant's sentence be served without the benefit of probation or suspension of sentence. The district court failed to apply this portion of the law to Defendant's sentence. Although the district court vacated Defendant's sentence as to count one and sentenced him under the Habitual Offender statute, it preserved his sentence as to count two. Therefore, Defendant should have been notified that a conviction under La. R.S. 40:966(A) required at least a ten-year period during which Defendant would not have the benefit of probation or suspension of sentence.

Under La. C.Cr.P. art 890.1, a defendant is provided a means via the plea agreement by which he or she may seek a waiver of a mandatory sentence which prohibits probation or a suspension of sentence; however, the law provides that this benefit afforded to the defendant must be specified. The record does not reflect that Defendant pled guilty under La. C.Cr.P. art. 890.1, thereby waiving the minimum mandatory sentence of ten-years without the benefit of probation or suspension of sentence upon a conviction of violating La. R.S. 40:966(A). Furthermore, at no point was Defendant informed that under the plea agreement he would receive the benefit of probation or a suspension of his sentence. Therefore, we find that the restrictive provision of La. R.S. 40:966(B) is self-activating thus making corrective action unnecessary. See La. R.S. 15:301.1(A) ; State v. Williams , 00-1725 (La. 11/28/01), 800 So.2d 790, 799 ; and State v. McKenzie , 09-893 (La. App. 5 Cir. 2/15/11), 61 So.3d 54, 61.

DECREE

For the aforementioned reasons, we affirm Defendant's convictions and sentences, remand the case for correction of the record in accordance with our findings on errors patent review, and grant appellate counsel's motion to withdraw as counsel of record.

CONVICTIONS AND SENTENCES AFFIRMED; REMANDED FOR CORRECTION OF THE UNIFORM COMMITMENT ORDER; MOTION TO WITHDRAW GRANTED;

      During the May 4, 2016, competency hearing, Dr. Richard Richoux, a forensic psychiatrist, was questioned about the results of his and Dr. Rafael Salcedo's competency evaluation of Defendant on October 21, 2015. Dr. Richoux noted that although Defendant mentioned some issues with substance abuse, neither Dr. Richoux nor Dr. Salcedo found any active symptoms which would prevent Defendant from assisting his counsel or understanding the proceedings. However, Dr. Richoux noted that his examination of Defendant was, at that time, six months old and had no bearing on Defendant's current mental state or competency.

      The parties stipulated that the examining psychiatrist and psychologist were experts, would testify that they examined Defendant to determine whether or not he was competent to proceed to trial, and that their recommendation to the court was that Defendant be found competent to proceed.

      Defendant was to pay $1,417.50.

      The district court cited prematurity Defendant's ability to seek an out-of-time appeal under La. C.Cr.P. 930.8(A).

      On May 16, 2018, this Court granted Defendant's writ application for the limited purpose of remanding the matter to the district court with instructions to consider Defendant's APCR as a request for an out-of-time appeal.

      La. R.S. 40:967(F)(1)(A) provides:
      Any person who knowingly or intentionally possesses twenty-eight grams or more, but less than two hundred grams, of cocaine or of a mixture or substance containing a detectable amount of cocaine or of its analogues as provided in Schedule II (A)(4) of R.S. 40: 964, shall be sentenced to serve a term of imprisonment at hard labor of not less than five years, nor more than thirty years, and to pay a fine of not less than fifty thousand dollars, nor more than one hundred fifty thousand dollars. (Emphasis added).

      La. R.S. 40:966(B) provides:
      A person who violates Subsection A of this Section with respect to:
      (1) Except as otherwise provided in Paragraph (4) of this Subsection, a substance classified in Schedule I that is a narcotic drug (all substances in Schedule I preceded by an asterisk "*"), upon conviction shall be sentenced to imprisonment at hard labor for not less than ten nor more than fifty years, at least ten years of which shall be served without benefit of probation or suspension of sentence, and may, in addition, be required to pay a fine of not more than fifty thousand dollars. (Emphasis added).

      La. C.Cr.P. art. 556.1(A)(1) provides that a court must, prior to accepting a plea of guilty or nolo contendere, inform the defendant of "the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law."

      This misstatement will be discussed later under errors patent.

      Though the trial judge sentenced Defendant to imprisonment in the Department of Corrections, rather than to imprisonment at hard labor as required by the pertinent penalty statutes, this Court deems such a sentence necessarily at hard labor. See State v. Baptiste , supra .

      State v. McGee , 09-102 (La. App. 5 Cir. 9/29/09), 24 So.3d 235, 242.

      The imposed fine of $1417.50 is below the maximum 50,000 dollars imposable.


author: MOLAISON, J.

text:
    James M. SONIAT v. CROWN BUICK & RISK MANAGEMENT SERVICES
    NO. 18-CA-257
    Court of Appeal of Louisiana, Fifth Circuit.
    December 12, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, JAMES M. SONIAT, Anthony J. Milazzo, Jr., Metairie
    COUNSEL FOR DEFENDANT/APPELLEE, CROWN BUICK & RISK MANAGEMENT SERVICES, Wade A. Langlois, III, Brittany A. Cooper, Gretna
    Panel composed of Judges Susan M. Chehardy, Robert A. Chaisson, and John J. Molaison, Jr.
   MOLAISON, J.

In this worker's compensation case, Claimant, James Soniat, appeals the trial court's judgment denying him reinstatement of previously awarded indemnity benefits. For the reasons that follow, we affirm.

As we noted in Claimant's prior appeal in this matter, it is undisputed that he suffered a work-related back injury on February 16, 2012, while employed as an auto technician for Crown Buick Pontiac GMC Truck ("Crown Buick"). On August 3, 2017, in a Disputed Claim For Compensation filed by Claimant in Louisiana Worker's Compensation Court, District 7, Claimant asserted that he attempted to return to a light duty job at Crown Buick on April 13, 2017, but the continuing pain he experienced since his accident prevented him from performing the work. Claimant stated that his weekly benefits were terminated on April 13, 2017, in connection with the job opening at Crown Buick, and that when he requested the reinstatement of his weekly benefits because of his inability to meet the requirements of the light duty job, Crown Buick refused to do so. In addition to the reinstatement of his benefits, Claimant also asked the court to impose sanctions and award attorney's fees.

The matter came for trial on January 3, 2018. At that time, Claimant testified about his initial injury sustained at Crown Buick, his subsequent medical treatment, and the consistent pain he experienced throughout his treatment that was exacerbated by certain movements. Claimant said that the cause of his pain could not be determined, but Dr. Waguespack, his treating physician, offered treatment in the form of steroid injections, which worked to a limited extent. He also tried physical therapy, which he quit because it was too painful. Dr. Waguespack had recommended two different types of surgery to treat Claimant's pain, but Claimant had declined both. Claimant testified that his daily activities since the accident consisted mainly of housework, such as cooking or cleaning clothes.

With regard to his attempt to return to work at Crown Buick, Claimant stated that Dr. Waguespack signed a job analysis for him which said that she thought Claimant could perform a light duty job at Crown Buick that involved sitting continuously, with certain restrictions. Claimant testified that, while at the new job, he was in constant pain when he sat. He also walked and stood occasionally, but not without pain. Claimant explained that he was unable to drive continuously to Crown Buick, and needed to stop, get out of his car and stretch on the way there. His extended commute sometimes took two hours, and he would arrive at the dealership in pain. At times, his leg would get so numb during the day that he would become unsure of whether he could drive home.

Upon returning to work, claimant's supervisor at Crown Buick was Cheryl Wright. Every day, Claimant reported to Wright that his pain got to a point where he could not take it anymore and had to leave. Claimant stated that he was never able to complete an eight-hour work day, and was never able to work two days in a row. He said summarily that he could not perform the light duty job at Crown Buick. Claimant continued to treat with Dr. Waguespack on a monthly basis, and was aware that Dr. Waguespack still believed that he could do the light duty job, despite his complaints about pain.

Claimant testified that his supervisors at Crown Buick made every effort to accommodate him. They switched out his office chair on request, and also had no problem with him standing, moving, walking and sitting as needed. Claimant's job was to call people on the phone who had some service done at the dealership and check on whether the customer was satisfied with the service. He did not take extra medication to perform the job.

Elier Diaz was accepted by the court, without objection, as a licensed Louisiana Vocational Rehabilitation Counselor who had worked with Claimant to find him a job. Diaz obtained Claimant's medical information from Dr. Waguespack and contacted Crown Buick, which expressed an interest in exploring the possibility of letting Claimant work in a new position. Diaz obtained the list of physical work restrictions, and a position was created for Claimant which was within the "sedentary level." The job itself was to assist with a customer satisfaction index, and would allow Claimant latitude to be able to alternate sitting and standing and walking. Before anything else was done, a conference was conducted with Claimant's treating doctor, Dr. Waguespack, who verbally confirmed why she felt the physical aspects of a job were appropriate for Claimant.

Diaz monitored Claimant at his job, and ensured that Crown Buick was meeting Claimant's requirements. When Claimant told Diaz that he was not able to physically accomplish the work, a second consultation with Dr. Waguespack was arranged at Diaz's request and Dr. Waguespack reiterated her opinion that Claimant could physically perform the job offered to him by Crown Buick. Diaz said that Crown Buick was willing to help Claimant to be successful and that the company was complimentary about the way Claimant performed his work for them.

Cheryl Wright testified that she held the position of the controller at Crown Buick. She worked with Diaz and Claimant to assist Claimant in his role as a customer service representative. Wright observed that Claimant did well as a customer service representative, and that the job was still available to Claimant as of the time of trial. Claimant last worked for Crown Buick in June of 2017.

At the conclusion of trial, the matter was taken under advisement. On February 20, 2018, the trial court rendered a final judgment in favor of Crown Buick, holding that Claimant "failed to prove by clear and convincing evidence that he is incapable of employment due to substantial pain" and, accordingly, "failed to prove that he is entitled to reinstatement of his indemnity benefits." Claimant's claim was dismissed with prejudice and each party was ordered to bear its own cost.

Claimant filed the instant appeal.

ASSIGNMENT OF ERROR

Claimant contends that the trial court erred in failing to reinstate his indemnity benefits and in further failing to award him penalties and attorney's fees.

LAW AND ANALYSIS

Factual findings in a worker's compensation case are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing and Sheet Metal , 96-2840 (La. 7/1/97), 696 So.2d 551, 556. The determinations by the worker's compensation judge as to whether the claimant's testimony is credible and whether the claimant has discharged his burden of proof are factual determinations and will not be disturbed upon review in the absence of manifest error or unless clearly wrong. Bruno v. Harbert Int'l, Inc ., 593 So.2d 357, 361 (La. 1992).

The reviewing court is compelled to review the record in its entirety to determine whether the trial court's finding was clearly wrong or manifestly erroneous. Wise v. H.B. Zachary Co. , 00-3 (La. App. 5 Cir. 4/25/00), 760 So.2d 500, 502. In applying the manifest error/clearly wrong standard, the appellate court does not determine whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Id. If the factual 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. Marange v. Custom Metal Fabricators, Inc. , 11-2678 (La. 7/2/12), 93 So.3d 1253, 1258-59 (citing Stobart v. State, DOTD , 617 So.2d 880, 882 (La. 1993) ).

Whether a claimant's pain is substantial enough to be disabling is a question of fact that must be determined according to the circumstances of each individual case. Camardelle v. K Mart Corp., 04-224 (La. App. 5 Cir. 7/27/04), 880 So.2d 90, 93. Moreover, the issue of the severity of pain by a claimant seeking compensation benefits is a question of fact to be resolved by the trier of fact on the basis of the preponderance of the medical and lay evidence. Pendleton v. Spartan Bldg. Const. , 432 So.2d 298, 300 (La. App. 5th Cir. 1983).

In Chaisson v. Cajun Bag & Supply Co. , 97-1225 (La. 3/4/98), 708 So.2d 375, 384, the Louisiana Supreme Court considered a similar issue of whether a worker's compensation claimant's complaint of pain in a light duty position was a sufficient basis upon which to find that she could not earn a certain percentage of her pre-injury wages. In that case, the claimant worked as a "finisher" for her employer, sewing fertilizer and sand bags while seated at a sewing table. The claimant was injured when she turned around to pick up a bag and felt something snap in her back. Subsequently, the employer offered to place the claimant "in a position that [she] could do"--namely, an accessory sewer position. The record demonstrated that the claimant's treating physician was of the opinion that the modified job was within the claimant's ability to physically perform, in spite of the claimant's assertion that her condition had worsened since the accident. Based on the record, the Court determined that the claimant had not met her burden of proving her entitlement to supplemental earnings benefits ("SEBs").

In Frazier v. Covenant Servs. Worldwide , 16-744 (La. App. 5 Cir. 5/31/17), 228 So.3d 1275, writ denied , 17-1125 (La. 10/27/17), 228 So.3d 1232, this Court relied, in part, on Chaisson, supra , when reviewing the denial of an injured worker's claim for SEBs. The claimant in that case worked as a security guard when she suffered a rotator cuff tear in her right shoulder in the course and scope of her employment. Eventually, the claimant's treating doctor found that she had reached maximum medical improvement, and the claimant was released to work with certain restrictions. The claimant's doctor also specifically approved a Security Officer position that the claimant's employer had offered her. The claimant reported for duty only once, and left her shift because of reported pain in her back and neck. The claimant did not report to work again. Thereafter, the claimant filed a disputed claim for compensation contending that the employer and its insurer had unlawfully terminated her wage benefits. The trial judge denied her claim upon finding that the claimant had voluntarily quit her job with the employer and, therefore, the employer did not owe SEBs.

In affirming the trial court's ruling on appeal, we reasoned:

Here, Ms. Frazier's treating physician felt that the position, which Covenant offered and Ms. Frazier accepted, was within her physical capabilities, which included driving. Further, the record reveals that the new job was "within the claimant's or employer's community or reasonable geographic region," and was actually closer than her previous job. See Banks , 696 So.2d at 559. Thus, Ms. Frazier did not carry her burden of proving that the injury resulted in her inability to earn 90% of her pre-injury wages.
However, under La. R.S. 23:1221(3)(C)(ii), "if the employee establishes by clear and convincing evidence, ..., that solely as a consequence of substantial pain, the employee cannot perform employment offered, tendered, or otherwise proven to be available to him, the employee shall be deemed incapable of performing such employment." Thus, if Ms. Frazier had presented clear and convincing evidence that her pain prevented her from performing her job she would be "deemed incapable of performing such employment."
After trial, however, the court found that "claimant did not meet her burden of proof by clear and convincing evidence to establish her job with Covenant ... was not acceptable due to pain." Here, Ms. Frazier testified that she was capable of doing the job, if she did not have pain. As part of her return to work, Covenant allowed Ms. Frazier to bring her medical pain-reducing equipment - the "ice machine" - to use during her shift, which she did successfully during her first shift. Jill Delatte testified that she did not see Ms. Frazier's "ice machine" on the second night.
Further, the medical records reveal that her treating orthopedist, Dr. Savoie, felt that Ms. Frazier would always have some shoulder pain but that she could return to work with restrictions. In light of the evidence presented in the record, we cannot say that the OWC judge's findings were manifestly erroneous or clearly wrong. We find no merit in this assignment of error.

228 So.3d at 1279-80

In the instant case, the record demonstrates that Claimant's treating physician, Dr. Waguespack, concluded that Claimant had reached maximum medical improvement from his injuries and, accordingly, he was released for a light duty position with certain restrictions. The position offered to Claimant by Crown Buick was a less strenuous sedentary position, and Crown Buick implemented all of the accommodations suggested by Dr. Waguespack. Claimant testified that the pain was too great to allow him to work at Crown Buick as a customer service representative; however, following a second consultation with Dr. Waguespack, she again found the position to be within Claimant's abilities. Under these facts, and in light of the holdings of Chaisson , supra , and Frazier , supra , we cannot say that the trial court's ruling that denied Claimant's claim for weekly benefits is manifestly erroneous. By extension, Claimant's prayer for attorney's fees and sanctions was properly denied by the trial court.

DECREE

Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED

      Soniat v. Crown Buick and Risk Management Services , 14-489 (La. App. 5 Cir. 12/16/14), 166 So.3d 278.

      In the prior appeal, we detailed that Claimant had been diagnosed by an orthopedic doctor with lumbar disc herniation.

      Claimant described his ongoing pain as "stabbing," "constant," and radiating from the middle of his back down to his ankle.

      At trial, Claimant's counsel introduced, without opposition, an exhibit containing Dr. Waguespack's records.

      Claimant stated that the commute to Crown Buick was normally a 15-20 minute drive from his home.

      Diaz testified that "sedentary" is the least physically demanding level, according to the U.S. Department of Labor.

      Included in the exhibit of Claimant's medical records is a letter dated July 28, 2015 from Nurse Case Manager, Sharon Campo, to Dr. Waguespack which requests verification of details from a rehabilitation conference that took place on July 24, 2015. The letter recounts that on May 21, 2015, Claimant was placed at the Maximum Medical Improvement (MMI) which could be made without surgery. Also, a Functional Capacity Evaluation (FCE) was recommended for Claimant to determine his physical capabilities. This was based on Claimant's representation at that meeting that his symptoms were not severe enough to warrant surgery. Another document in the exhibit indicates that Claimant refused to perform 13 of the 20 tests in the FCE on July 15, 2015.
      A verification letter dated August 14, 2015, from Diaz to Dr. Waguespack confirms Dr. Waguespack's opinion that Claimant "may return to work within the light level, as defined by the United States Department of Labor." Dr. Waguespack also confirmed that Claimant "should only engage in occasional bending, stooping, crouching, twisting, and crawling" and that he "may stand or sit for an entire workday provided he is allowed to alternate positions as needed."

      The trial court in this matter referenced our holding in Frazier in its written reasons for judgment:
      In Frazier , the Fifth Circuit found that claimant did not "present clear and convincing evidence that her pain prevented her from performing her job." Supra [sic]. The facts are similar in this case. Claimant's treating physician, Dr. Waguespack, released him to light duty employment. Dr. Waguespack was aware of Claimant's complaints of numbness, weakness, and radiating pain. However, she indicated that he could work with restrictions. She indicated that he could sit continuously, walk occasionally, stand occasionally, and reach and handle items.

      Similarly, Claimant's medical records show that Dr. Najeeb Thomas of the Spinecare Medical Group, wrote a letter on May 30, 2016, to Adjuster Magdelon Blanchard of Risk Management Services, which provided a report of his "second opinion" following an examination of Claimant. In relevant part, Dr. Thomas found that Claimant's "MRI findings do not correlate to his pain" and, "[Claimant's] main problems are subjective complaints." Dr. Thomas agreed with Dr. Nutik that Claimant could do light duty work with limitations and concluded that Claimant likely reached MMI approximately six months after his accident.


text:
    Kailey KING v. NATIONAL GENERAL ASSURANCE COMPANY, Its Insured, Robert Mongrue, Ronald Hatcher, His Employer, Bon Temps Limo, LLC, and Their Insurer, National Liability & Fire Insurance Company
    NO. 18-CA-281
    Court of Appeal of Louisiana, Fifth Circuit.
    December 12, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, KAILEY KING, Sherry A. King
    COUNSEL FOR DEFENDANT/APPELLEE, NATIONAL GENERAL ASSURANCE COMPANY AND ROBERT MONGRUE, James L. Donovan, Jr., Metairie, P. M. Donovan
    Panel composed of Judges Susan M. Chehardy, Hans J. Liljeberg, and John J. Molaison, Jr.
   LILJEBERG, J.

In this personal injury case, plaintiff appeals the trial court's award of general and special damages, arguing that both are abusively low and should be increased. Defendants have answered the appeal, asserting that the damages awarded were excessive and should be reduced. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

This case arises from a motor vehicle accident that occurred on April 25, 2015, on westbound Interstate 10 in Kenner, Louisiana. Plaintiff, Kailey King, was riding as a guest passenger in a van, referred to as a "limo bus," on the way to her senior prom when the van was struck from behind by a vehicle driven by Robert Mongrue and insured by National General Assurance Company ("National"). On April 7, 2016, plaintiff filed suit against Mr. Mongrue, National, and others, asserting that she suffered personal injuries in the accident. In her petition, she sought damages for physical and mental pain and suffering, disability, medical expenses, loss of earning capacity, loss of consortium, and any other damages allowed by law.

On August 14, 2017, Ms. King filed a Motion for Partial Summary Judgment, seeking a determination that Mr. Mongrue was solely at fault for the accident. After a hearing on September 13, 2017, the trial court granted the motion, finding that the sole and legal cause of the accident sued upon was the actions of Robert Mongrue.

Liability having been determined, the matter came before the court on October 23, 2017, for trial on the issue of the damages, if any, caused by this accident. Ms. King acknowledged that she was injured in a prior accident just months before this accident, and she suffered injuries to her back which were not resolved at the time of this accident. However, she asserted that the second accident aggravated or exacerbated her prior back injuries, and she claimed that she suffered new injuries to her neck and right hand numbness.

At trial, Kailey King testified that on October 17, 2014, she was on a college tour of Louisiana State University when she was involved in an accident on campus ("the LSU accident"). According to Ms. King, she and her mother were in a golf cart during the tour when the driver hit a parked car. Ms. King testified that she was ejected from the golf cart and her body hit an "SUV," causing her to suffer injuries to her back and shoulder, broken ribs, and a scalp laceration. Ms. King was treated at a hospital and released.

According to Ms. King, she went to Children's Hospital a few days later, where it was determined that she had compression fractures in her thoracic spine. She was provided with a back brace that was molded to fit her body and told to wear it at all times for four weeks. She also attended ten weeks of physical therapy and was prescribed Lortab for pain. Ms. King testified that she had trouble focusing and concentrating after the LSU accident, and she could not regularly attend school. According to Ms. King, in April of 2015, she completed her physical therapy, started to feel better, and returned to school three days per week. However, she was not completely well and continued to take Lortab.

On April 25, 2015, the second accident occurred, which is the accident at issue in this litigation. Ms. King's mother arranged for a "limo bus" to take Ms. King and her friends to their senior prom that night. According to Ms. King, she took Lortab in order to feel well enough to go that night, because she was still in pain from the LSU accident. They went in the bus to a restaurant in Metairie, and then proceeded to go to the prom in Pontchatoula. While they were in Kenner on Interstate 10 westbound, they were struck from behind by Mr. Mongrue's vehicle. After this accident, Ms. King did not go to a hospital. She went to the prom and her mother brought her more Lortab.

Ms. King testified that her neck began hurting after this accident, her back pain increased, and she began experiencing numbness in her right hand. She acknowledged telling the police officer at the scene that she was not injured, but she believes she was unaware of her injuries due to the Lortab she had taken that night. Ms. King subsequently went back to Children's Hospital and was provided with a new back brace. Although she admitted that she was diagnosed with depression and anxiety prior to the second accident, Ms. King stated that she began taking medication for depression and anxiety after the second accident. Ms. King stated that she felt "horrible" about having to wear another back brace, her senior prom was ruined, and she had to miss senior activities due to the pain caused by the second accident.

Ms. King testified that she would like to have physical therapy again and "trigger point injections" in her back, but she cannot afford these treatments, as they are not covered by her health insurance. She also testified that she would like to have a job, but she cannot work due to her pain and cannot drive due to her pain medication.

On cross-examination, defendants' counsel elicited testimony about Ms. King's travels after the accidents. According to Ms. King, in February of 2015, after the LSU accident but before the second accident, she was in constant pain. However, she admitted that she was able to ride in a car to Tampa, Florida in December of 2014, and she was able to attend a school dance and ride to Disney World in a car in February of 2015. She stated that she was only able to travel because she was on Lortab. Although her physical therapy records indicate that she had increased pain from walking at Disney World, she testified that she used a wheelchair. She also went to Disney World after the second accident in May of 2015 and again in July of 2015. Although the pictures from Disney World did not show Ms. King in a wheelchair, she testified that she did not want to take pictures in a wheelchair because it was embarrassing. Ms. King also flew to Chicago in the summer of 2015 for a Taylor Swift concert, to New York during Mardi Gras vacation in 2016, and to St. Louis during the summer of 2016.

Ms. King testified that it was her dream to participate in the Disney college program and to pursue a career in marketing at Disney World. She went to Disney World to audition in October of 2016 and was accepted to the program. However, after three days "on the job," she had to quit because she could not fulfill the job responsibilities due to her pain. She stated that she would have been paid $10 per hour if she had been able to participate in the Disney program.

Ms. King was deposed on August 3, 2016, in connection with litigation pertaining to the LSU accident. In this deposition, she stated that her ribs and back were "instantly" hurt when the second accident occurred, but she did not mention any neck pain. She also stated that the anxiety and depression she suffered after the LSU accident was not worse after the second accident. However, at trial, she testified that her anxiety and depression had, in fact, increased after the second accident.

In her deposition, she testified that after the second accident, she had x-rays taken, was told that her prior injuries were "reaggravated," and received another back brace, which she wore for four weeks. However, at trial, she testified that she subsequently learned that her injuries were worse when she had an MRI in September of 2016.

Two days after the second accident, April 27, 2015, Ms. King saw her pediatrician, Dr. Nicholas Danna, for pain due to the accident and an ADHD consultation. Dr. Danna's deposition, which was taken on September 20, 2017, was admitted into evidence in lieu of live testimony. In his deposition, Dr. Danna stated that he examined Ms. King's neck at the April 27, 2015 visit, and there were no physical findings or abnormalities. She reported neck pain, but Dr. Danna agreed that he has to rely on a patient's truthfulness regarding subjective complaints. He also saw Ms. King on May 15, 2015, and she reported that she was having anxiety and that she feared riding in cars. He also saw Ms. King on June 10, 2015, but she did not complain of neck or back pain, just a sore throat.

Ms. King did not have any doctor visits for neck or back pain from May of 2015 until May 25, 2016. Ms. King explained that she did not see a doctor during this time because her mother had neck surgery and could not drive her, and she did not have health insurance from January 2016 to August of 2016.

On August 2, 2016, Ms. King saw Dr. Danna and complained of weakness and dizziness, and on September 15, 2016, she complained of sinus congestion and fluid in her ears. Ms. King saw Dr. Danna again on April 26, 2017, where she complained of neck and back pain, stated that she needed another MRI, and said that she was feeling weak and numb on her right side. This was the first time she complained to Dr. Danna of right side numbness.

At trial, Dr. James Dyess testified and was accepted as an expert in internal medicine. He saw Ms. King on August 6, 2017, and she told him about the accidents. Based on his evaluation of Ms. King and the medical records he reviewed, Dr. Dyess opined that as a result of the second accident, she suffered a "new cervical strain with positive C5-6 and C6-7 disc bulges," new positive L5-S1 disc herniation, and new positive T9-10 and T12-L1 disc herniations. He testified that Ms. King had an MRI of her spine in December of 2014, after the LSU accident but before the second accident, which did not indicate any abnormality in her cervical spine.

Dr. Dyess testified that he would recommend epidural steroid injections, most likely at C5-6, and an epidural steroid injection and nerve blocks at L5-S1, which typically costs $2,500 to $3,000 per injection and can generally be given two or three times per year. Dr. Dyess testified that he would relate Ms. King's cervical spine pain entirely to the second accident, and her thoracic and lumbar pain as an exacerbation of the previous accident.

On cross-examination, Dr. Dyess admitted that while he reviewed Ms. King's medical reports, he did not read any of the doctors' depositions, look at any MRIs, or "compare films." He acknowledged that the May 5, 2015 report of Raven Lee, a physicians' assistant at Children's Hospital, indicated no evidence of fractures or alignment abnormalities of her cervical or thoracic spine. He also admitted that while his report indicates Ms. King suffered a "positive adjustment disorder with mixed anxiety and depressed mood with exacerbation of symptoms" due to the second accident, he based this finding on what he believed was in Dr. Vangeffen's notes and did not make an independent determination. He acknowledged that Dr. Vangeffen, a psychologist, stated in her deposition that while Ms. King reported high levels of anxiety and depression after the second accident, she could not say if it was due to the second accident or not. He stated that he would defer to Dr. Vangeffen on all psychological issues pertaining to anxiety and depression.

Dr. Dyess testified that his examination of Ms. King in August of 2017 showed limitation of movement, though the Children's Hospital records of May 6, 2015, shortly after the accident, indicated that she showed "full range of motion of the cervical spine, full flexion and extension, bilateral bending and rotation without significant pain." Dr. Dyess admitted that the accuracy of the information reported to him by the patient is important and could affect his opinion.

Dr. Andrew Todd testified for the defense and was accepted as an expert in orthopedic surgery. He saw Ms. King on December 19, 2016, and she reported that she had been in two accidents. She complained of neck pain and numbness in her right hand. She also stated that she had thoracic pain, which increased after the second accident, and lower back pain, which began after the second accident. Dr. Todd examined Ms. King and noted a full range of motion in her neck and lumbar spine, but subjective complaints of pain. He stated that she could move her neck to the right and left completely, with no tenderness or spasm.

After he examined Ms. King, Dr. Todd reviewed her medical records, though he did not review her MRI films or x-rays. He reviewed the reports pertaining to the May 6, 2015 x-rays and MRI, which noted that the cervical spine was "essentially within normal limits." A subsequent MRI taken on May 18, 2016 showed "there's nothing wrong." While a doctor noted "mild dessication at C-5-6 and C6-7" in the cervical MRI of May of 2016, Dr. Todd opined that this could be early degenerative disc disease.

Based on his examination of Ms. King, the MRI report of May 2016, and the medical records he reviewed, Dr. Todd opined that Ms. King suffered a soft tissue sprain/strain of the cervical spine due to the April 25, 2015 accident. Based on his clinical experience, this type of injury typically heals in eight to twelve weeks. He did not find anything to suggest that the injury to her neck involved a disc injury, and he could not account for why her right hand was numb or why she had long term chronic pain. He opined that depression can relate to development of a chronic pain situation. He believes that the second accident caused a very minimal increase in her symptoms regarding her thoracic spine. Dr. Todd does not believe that Ms. King is a candidate for interventional pain injections or surgery, and he does not believe that she is disabled in any way.

Medical records provided show that Ms. King saw Dr. Kelly Scrantz, a neurosurgeon, on August 30, 2017. In his report, Dr. Scrantz stated that based on the films, it is clear that Ms. King has ongoing neck, mid, and low back pain from the two accidents, but he agrees with Dr. Todd that it is a "nonsurgical issue." He also stated that he believes she could benefit from a pain evaluation and psychological treatment, considering her ongoing pain and continuing depression and anxiety. He believes that because she has had pain since 2014, she will likely continue to have pain in the future.

The deposition of Dr. Smita Prasad, who is board certified in family medicine, was admitted into evidence. She first saw Ms. King on September 29, 2016, where she complained of lower back, thoracic, and chest pain. Dr. Prasad does not believe Ms. King mentioned the second accident during this visit. Dr. Prasad saw her next on October 25, 2016, where she complained of weakness, dizziness, lumbar and thoracic back pain, and shoulder pain. She saw Ms. King again on November 29, 2016, where she reported an increase in the intensity of her symptoms and numbness in her right upper extremity. This was the first time Ms. King reported numbness to Dr. Prasad. On December 27, 2016, Dr. Prasad saw Ms. King, who reported that the intensity of her pain was stable. During a visit in February of 2017, she continued to complain of thoracic and lumbar pain, and she made a new complaint of neck pain, which she had not described to Dr. Prasad before.

Dr. Prasad noted that the MRI report from before the second accident did not note anything about a neck injury, but MRI reports from after the accident note disc dessication and bulges in her cervical spine. Based on the information she was provided, Dr. Prasad would relate the disc dessication and bulges to the second accident.

The deposition of Dr. Kim Vangeffen, a psychologist, was admitted into evidence. In her deposition, Dr. Vangeffen indicated that she first met with Ms. King on March 16, 2015, for an interview. At this first visit, Ms. King mentioned that she had anxiety when riding in cars. Dr. Vangeffen performed some testing at subsequent visits and then met with Ms. King again on April 14, 2015, to review the results. Dr. Vangeffen did not see Ms. King again until January 24, 2017, where she told her about the second accident and reported increased anxiety and depression.

When Dr. Vangeffen first saw Ms. King, which was before the second accident, she diagnosed her with an adjustment disorder due to her emotional symptoms. When she saw her again in January of 2017, well after the second accident, her diagnosis did not change but Ms. King reported more severe symptoms. Dr. Vangeffen indicated that she could not say whether or not the increased anxiety and depression were caused by the second accident.

At the conclusion of trial, the trial court allowed plaintiff additional time to submit a post-trial memorandum. Thereafter, on November 8, 2017, the trial court rendered a judgment, finding that as a result of the second accident, Ms. King suffered new injuries to her neck, as well as an exacerbation of her pre-existing back injuries. The court also found that these were soft tissue injuries that resolved approximately seven months after the accident. The trial court awarded special damages for medical expenses in the amount of $1,593.02, and general damages in the amount of $35,000.00.

LAW AND DISCUSSION

On appeal, Ms. King complains that the trial court abused its discretion when awarding general and special damages. She argues that the trial court erred by awarding only $35,000 in general damages and $1,593.02 for past medical expenses, with no damages for future medical expenses, pain, and suffering. She asserts that the damages awarded were abusively low considering that Ms. King suffered several injuries as a result of this accident, including: 1) cervical strain with C5-6 and C6-7 disc bulges and neck pain; 2) T12-L1 disc extrusion type herniation; 3) increased low back pain; 4) numbness and weakness in right hand; 5) anxiety and depression. She further claims that the trial court erred by failing to apply the Housley presumption with respect to Ms. King's cervical spine injuries, and by finding that she only suffered soft tissue injuries to her neck and back that resolved in less than a year. Finally, Ms. King asserts that the trial court erred by failing to award general damages from November 2015 through January of 2017, including lost wages, and past and future medical bills.

Mr. Mongrue and National respond that Ms. King was "overly compensated" for the minor injuries she allegedly sustained in the second accident. They note that the trial court reasoned that Ms. King was injured in the second accident based on the fact that she resumed filling a prescription for pain medication two days after the accident. They argue that Ms. King admitted at trial she was already taking pain medication before the second accident, including the night of the second accident. They further note that Ms. King informed the responding police officer that she was not injured, and they assert that Ms. King had numerous inconsistencies in her testimony. They note that the trial court found that Ms. King's anxiety significantly increased after the second accident, but Ms. King testified in her deposition that it did not increase, stating, "No. It's just been, like, constant." Defendants also contend the testimony was insufficient to support a finding that she sustained an increase in mental anguish after the second accident.

A reviewing court must give great weight to the factual conclusions of the trier of fact. Wainwright v. Fontenot , 00-492 (La. 10/17/00), 774 So.2d 70, 74. Although a reviewing court must review the record in its entirety to determine whether the trial court's finding was clearly wrong or manifestly erroneous, the issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was reasonable. Stobart v. State of LA, Department of Transportation and Development , 617 So.2d 880, 882 (La. 1993). Where two permissible views of the evidence exist, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Id. ; Rosell v. ESCO , 549 So.2d 840, 844 (La. 1989).

A plaintiff must prove by a preponderance of the evidence the existence of a causal relationship between an accident and the injuries claimed. Lee v. Huong Lu , 05-899 (La. App. 5 Cir. 4/11/06), 931 So.2d 365, 370. The trial judge's determination of whether the plaintiff has carried this burden is a finding of fact that will not be disturbed on appeal unless it is manifestly erroneous. Id. ; Prestenback v. Schwegmann Giant Supermarkets, Inc. , 96-793 (La. App. 5 Cir. 1/28/97), 688 So.2d 149, 155, writ denied , 97-0977 (La. 5/30/97), 694 So.2d 249. The test for determining the causal relationship between an accident and a subsequent injury is whether the plaintiff proved through medical or lay testimony that it is more probable than not that the subsequent injury was caused by the accident in question. Kliebert v. Breaud , 13-655 (La. App. 5 Cir. 1/31/14), 134 So.3d 23, 28. Causation of injuries is a fact-specific inquiry; great deference must be given to the trier of fact on the question of factual causation. Cormier v. Cushenberry , 14-70 (La. App. 5 Cir. 7/30/14), 147 So.3d 256, 261.

In a multiple accident situation, a tortfeasor is only liable for the direct and proximate results of his wrongful act, including aggravation of any pre-existing injuries. Id. ; Tompkins v. Savoie , 08-808 (La. App. 5 Cir. 3/24/09), 10 So.3d 294, 301. Although a tortfeasor takes his victim as he finds him, he cannot be liable for injuries not attributable to his wrongful act. Id.

The record shows that Ms. King was involved in the LSU accident in October of 2014, resulting in physical injuries including back and shoulder pain. Ms. King testified that she suffered anxiety and depression from that accident, and she had trouble focusing and concentrating. When the second accident occurred on April 25, 2015, Ms. King was still taking pain medication for the injuries suffered in the LSU accident.

The medical testimony differed as to the extent and duration of her injuries resulting from the second accident. At trial, Dr. Danna testified that he examined Ms. King two days after the second accident and did not note any neck abnormalities. Ms. King also saw a physician's assistant, Raven Lee, in May of 2015, who reported that there was no evidence that Ms. King suffered fractures or alignment abnormalities of her cervical or thoracic spine. Ms. King did not see any doctor for neck or back pain from May 15, 2015 until May of 2016.

Dr. Dyess testified that he saw Ms. King on August 6, 2017. Based on his examination and the records he reviewed, he opined that Ms. King suffered a cervical strain with disc bulges and herniations, as well as a positive adjustment disorder with mixed anxiety and depression as a result of the second accident. However, Dr. Dyess admitted that he did not make an independent determination of any psychological issues, and he would defer to the psychologist who evaluated Ms. King, Dr. Vangeffen. Further, Dr. Dyess testified that he did not review the MRIs or films, but rather just the reports.

Dr. Todd saw Ms. King on December 19, 2016, and he reviewed her medical records. Dr. Todd opined that Ms. King suffered a soft tissue sprain/strain of the cervical spine due to the second accident, and a minimal increase in symptoms regarding her thoracic spine. He did not find that she suffered a disc injury to her neck. Dr. Todd testified that the MRI report from May of 2015 indicated that her cervical spine was normal, and even though the MRI in May of 2016 showed "mild dessication at C5-6 and C6-7," this could simply be a sign of early degenerative disc disease.

A trial court is not bound by expert testimony; rather, expert testimony is to be weighed the same as any other evidence. Scott v. Byrd , 00-308 (La. App. 5 Cir. 8/29/00), 768 So.2d 214, 216. The trier of fact has the discretion to accept or reject, in whole or in part, the opinion expressed by an expert. Id. In the present case, it was within the trial court's discretion to reject Dr. Dyess' opinion that Ms. King suffered a herniated disc or disc bulges due to the second accident, and to rely on Dr. Todd's opinion that she suffered a soft tissue injury.

Ms. King also argues that the trial court erred by failing to apply the Housley presumption to her neck injuries. This presumption, as set forth in Housley v. Cerise , 579 So.2d 973 (La. 1991), is that a plaintiff's disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves, provided that the medical evidence shows there to be reasonable possibility of a causal connection between the accident and the disabling condition. Cormier , 147 So.3d at 262. The trial court considered that Ms. King did not have complaints of neck pain prior to the second accident and found that Ms. King did suffer neck injuries as a result of the second accident. However, noting that she did not seek medical treatment for this injury from May 15, 2015 until May 25, 2016, the court found that the neck pain she sustained as result of the second accident had resolved by November of 2015.

Considering all of the evidence presented, including the conflicting testimony of the medical experts, we find that the trial court was reasonable and did not manifestly err when it found that Ms. King suffered soft tissue injuries to her neck and an aggravation of her preexisting back injuries, and that these injuries resolved after seven months. Accordingly, we now consider the amount of damages awarded.

The trier of fact is accorded great discretion in its assessment of quantum for both general and special damages. Woods v. Hall , 15-1162 (La. App. 1 Cir. 4/20/16), 194 So.3d 689, 692. Special damages are those that must be specially pleaded or that can be determined with relative certainty, such as the medical expenses a plaintiff has incurred. Wainwright , 774 So.2d at 74. General damages are those damages that are inherently speculative in nature and cannot be fixed with mathematical certainty. Id. Such damages typically "involve physical and mental pain and suffering, inconvenience, loss of intellectual gratification or physical enjoyment, and other factors that affect the victim's life." Coleman v. Deno , 99-2998 (La. App. 4 Cir. 11/6/02), 832 So.2d 1016, 1021, writs denied , 03-166, 03-167, and 03-168 (La. 9/19/03), 853 So.2d 635.

In reviewing a general damage award, the appellate court must consider the particular facts of the plaintiff's injuries and the effects of those injuries on the particular plaintiff. Lee , 931 So.2d at 370-371. An appellate court may not overturn an award of general damages unless it is so out of proportion to the injury that it shocks the conscience. Id. Thus, this Court should rarely disturb an award of general damages. Id. Only after the appellate court has determined that the trier of fact abused its discretion is a resort to prior awards appropriate. LeMasters v. Boyd Gaming Corp. , 04-1054 (La. App. 5 Cir. 2/15/05), 898 So.2d 497, writ denied , 05-751 (La. 5/6/05), 901 So.2d 1103.

With regard to special damages, the trial court determined that Ms. King was only entitled to the medical expenses she incurred during the seven months following the accident, finding that the injuries due to the accident resolved by this time. Having found the trial court's determination of a seven-month soft tissue injury to be reasonable, we likewise find no abuse of discretion in the award of special damages. Thus, we affirm the special damages award of $1,593.02.

With regard to general damages, the trial court awarded Ms. King $35,000 for mental anguish, pain, and suffering due to the second accident. In support of this award, the trial court recognized that at the time of the second accident, Ms. King was in a weakened physical and mental state as a result of the LSU accident. The court found that because of her weakened state, the second accident significantly increased her anxiety and mental anguish. The trial court also indicated that in awarding general damages, it considered Ms. King's fragile state and the fact that the second accident negatively affected special lifetime events.

On appeal, Ms. King claims that the general damages award is too low, claiming that she continues to suffer from the injuries sustained in this accident. In their answer to appeal, Mr. Mongrue and National claim that the general damages award is too high.

Defendants argue that the trial court erred by finding that Ms. King suffered injuries in the second accident based on a finding that she "resumed" filling pain medication two days after the accident. Defendants are correct that Ms. King indicated she was taking pain medication up to and on the date of the second accident, and thus, she did not "resume" taking this medicine because of the accident. Nevertheless, there was sufficient evidence in the record to support the trial court's finding that Ms. King was injured to some degree in the second accident. Even defendant's expert, Dr. Todd, found that she suffered a soft tissue sprain/strain of the cervical spine and a minimal increase in her symptoms regarding her thoracic spine. Also, there was testimony regarding Ms. King's mental health issues, and the effects of having the second accident occur during her senior year of high school and before she had fully recovered from the LSU accident. The trial court found Ms. King's testimony that she suffered new and exacerbated pain after the accident was credible.

Reasonable persons frequently disagree about the measure of damages in a particular case. Youn v. Maritime Overseas Corp. , 623 So.2d 1257, 1261 (La. 1993). "It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award." Id.

Considering the testimony and evidence presented, we find no abuse of the trial court's discretion in awarding $35,000 in general damages for a seven-month soft tissue injury and mental anguish. This award is reasonable and certainly does not "shock the conscience," given the particular facts of this case. Neither Ms. King nor defendants have shown that the general damages award should be altered.

Ms. King also complains that the trial court erred by declining to award lost wages. However, the record shows that Ms. King was a student and was not employed prior to the accident. Ms. King testified that she had been accepted to the Disney college program and would have earned $10 per hour if she had not been limited in performing the job duties as a result of the second accident. In order to recover for actual wage loss, i.e., past lost wages, the plaintiff must prove that she would have been earning wages but for the accident in question. Boyette v. United Services Auto. Ass'n , 00-1918 (La. 4/3/01), 783 So.2d 1276, 1279.

Ms. King testified that she auditioned for the Disney college program in October of 2016, which was well after the time that the trial court found her injuries had resolved. Based on our review of the record, we find no abuse of the trial court's discretion in failing to award lost wages in this matter, as Ms. King failed to meet her burden of proof.

Finally, Ms. King argues that she is entitled to damages for future medical treatment, pain, and suffering. However, because the trial court found the injuries from this accident resolved in November of 2015 and because we have found that determination to be reasonable, this argument is without merit.

DECREE

For the foregoing reasons, we affirm the trial court's judgment.

AFFIRMED

      Plaintiff had previously filed a Motion for Partial Summary Judgment on October 21, 2016, seeking the same determination. That motion was denied on January 3, 2017.

      The trial court signed a written judgment to that effect on September 22, 2017.