author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. Mark E. RICHIE, Appellant
    No. 44,783-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 28, 2009.

      Carey J. Ellis, III, for Appellant.
    Jerry L. Jones, Distinct Attorney, Shirley M. Davis, John T. Pham, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, CARAWAY and MOORE, JJ.
   WILLIAMS, J.

|tThe defendant, Mark Richie, was charged by amended bill of information with three counts of armed robbery, violations of LSA-R.S. 14:64, and two counts of attempted armed robbery, violations of LSA-R.S. 14:64 and 14:27. After a jury trial, defendant was found guilty of three counts of armed robbery and one count of attempted armed robbery. He was sentenced to 45 years’ imprisonment at hard labor without the benefit of parole, probation or suspension of sentence for each conviction, with all of the sentences to be served concurrently. The defendant appeals. For the following reasons, we affirm defendant’s convictions and sentences.

FACTS

On November 2, 2005, the defendant was arrested by officers responding to a complaint about a suspicious person in the vicinity of Haskell’s Donut Shop in Monroe, Louisiana. At the time of his arrest, the defendant had been driving a gray Pontiac Grand Am from which deputies recovered a black trench coat, a Halloween mask and a black and silver butterfly knife. A subsequent search of the vehicle yielded a .177 caliber semi-automatic pellet (BB) pistol.

After his arrest, the defendant was taken to the Investigative Division of the Oua-chita Parish Sheriffs Office, where he was read and subsequently waived his Miranda rights. Defendant gave a statement that he had gone to Haskell’s Donut Shop that morning with the intent to commit a robbery, but had changed his mind and was returning home when he was apprehended by sheriffs deputies.

On November 16, 2005, the defendant gave a series of recorded 12statements after making a written request to speak to investigators. The defendant was advised of his Miranda rights and signed a separate rights waiver form before giving each statement. During these recorded statements, the defendant confessed to his participation in two separate robberies of employees in a novelty shop named The Red Door, his attempted robbery of a man at the spillway near West Monroe, and his presence at Haskell’s Donut Shop on November 2, 2005.

Specifically, defendant stated that on the evening of October 27, 2005, at the urging of his wife, he robbed an employee of The Red Door while his wife waited in their vehicle parked at the Lakeshore Lounge located nearby. Defendant said that when all the customers had gone, he put on a mask, pulled out a BB gun, walked inside the store and approached the female employee at the counter. Frightened at the sight of the masked defendant carrying a gun, she complied when ordered to open the cash register. The defendant took approximately $670 out of the register, grabbed a cordless phone from the counter and ran out of the store. He discarded the telephone in the bushes, jumped the fence at B & L Marine, an adjacent business, and ran across the lot to his vehicle.

Defendant also admitted that on October 28, 2005, he tried to rob a man who was unloading his boat from a trailer near the spillway in West Monroe. The defendant used the same Halloween mask, BB gun and trench coat as in the previous robbery. He approached the man from behind and startled him. When the defendant demanded that the man turn over his wallet, the man refused and struck the defendant in the head. Faced with the |sman’s persistent refusal to give up his wallet, the defendant returned to his car where his wife was waiting and they fled the scene.

Defendant also confessed that several days after the first armed robbery of The Red Door employee, he returned to commit another robbery at the establishment with his wife and a third individual called “Red.” The defendant stated that after waiting for the customers to leave, he and Red entered the store. The defendant was again armed with the BB gun and wore the same black trench coat and mask he had used in the two previous robberies. The defendant went to the register while Red covered the door. This time there were two female employees in the store, one of whom was the same woman who had been working there during the first robbery. The defendant pointed the gun at the clerk behind the counter and told her to open the register. He took approximately $250 out of the register and picked up a white cordless phone as he left. He and Red then returned to the vehicle where the defendant’s wife was waiting with the car running.

In his last statement, the defendant recounted that on November 2, 2005, he was “fed up” with his wife’s constant coaxing to engage in criminal conduct and he told her he would commit a robbery at the donut shop. The defendant went to Haskell’s Donut Shop, approached the window and ordered some kolaches. While ordering, defendant saw that a customer approached the drive-thru window and then drove away. He told the attendant that he had left his money in the car and would be right back. Instead of returning, he drove away from the shop. A short time later, the defendant was stopped and arrested by police responding to a suspicious | ^person complaint.

The defendant was charged with three counts of armed robbery, one count for the first robbery at The Red Door when one store employee was present and two counts for the second robbery at The Red Door when two employees were present. He was also charged with the attempted armed robberies of Grover Smith at the spillway in West Monroe on October 28, 2005, and of a worker at Haskell’s Donut Shop on November 2, 2005.

After a jury trial, the defendant was found guilty of three counts of armed robbery and one count of attempted armed robbery of Grover Smith. The defendant was found not guilty of attempted armed robbery at the donut shop. The trial court sentenced defendant to serve 45 years at hard labor without benefit of parole, probation or suspension of sentence for each conviction, with the sentences to run concurrently. This appeal followed.

DISCUSSION

The defendant contends the trial court erred in allowing an in-court identification by a witness. The defendant argues that he was denied a fair trial by the unreliable and suggestive identification by Linda Hust, who had not given a prior description of the defendant and who had been drinking. The defendant also complains that Jenene Streeter was allowed to give character evidence when she testified that she sensed “an evil presence” when she saw the defendant at Haskell’s Donut Shop on the morning of November 2, 2005.

In examining a record for sufficiency of evidence, the appellate court standard of review is whether, after viewing the evidence in the light most |fifavorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir.1/9/08), 974 So.2d 181, writ denied, 2008-0499 (La.11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in LSA-C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747. A defendant’s confession is direct evidence, for it is an acknowledgment of guilt for which no inference need be drawn. LSA-R.S. 15:449; State v. McNeal, 34,593 (La.App.2d Cir.4/4/01), 785 So.2d 957; State v. Jones, 451 So.2d 35 (La.App. 2d Cir.), writ denied, 456 So.2d 171 (La.1984).

When the key issue is the defendant’s identity as the perpetrator, rather than whether the crime was committed, the state is required to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Hughes, 2005-0992 (La.11/29/06), 943 So.2d 1047; State v. Powell, 27,959 (La.App.2d Cir.4/12/96), 677 So.2d 1008, writ denied, 96-1807 (La.2/21/97), 688 So.2d 520. A witness’s failure to identify the suspect at a pretrial lineup does not constitute grounds to bar an in-court identification, but, rather, goes to the weight of that witness’s testimony; evidence may be introduced to explain any discrepancy. State v. Long, 408 So.2d 1221 (La.1982); State v. Ford, 26,422 (La.App.2d Cir.9/21/94), 643 So.2d 293.

At trial, the state introduced the testimony of Linda Hust, who stated that on the evening of October 29, 2005, she and a friend were at the Lakeside Lounge drinking beer when she witnessed the defendant coming through a fence at B & L Marine. On cross-examination, Hust testified that she did not see a trench coat, a mask, a gun or another male accompanying the defendant. Another witness called by the state was Jenene Streeter, who testified that on November 2, 2005, she had stopped at the Haskell’s Donut Shop drive-thru when she witnessed the defendant walk up to the store. Feeling uneasy, she drove away without placing an order and with the intent to call for help.

Linda Hust’s identification of the defendant as the man she saw|7coming through a fence between the store where an armed robbery had occurred and the Lakeshore Lounge is circumstantial evidence as to his participation in one of the armed robberies at The Red Door. Absent any other evidence, this identification would be insufficient to convict the defendant even when viewed in the light most favorable to the prosecution. However, the record contains direct evidence supporting defendant’s convictions in the form of his recorded confessions to two armed robberies at The Red Door. Furthermore, in one recorded confession the defendant expressly stated that after robbing The Red Door worker, he had jumped the fence at B & L Marine, where Linda Hust testified that she had seen him.

In weighing the credibility of Hust’s testimony, the jury was able to consider the circumstances leading to her identification of defendant, such as whether she was intoxicated the night of the crime or whether she had viewed any pre-trial lineups involving the defendant. The jury could reasonably have found Hust’s identification unreliable, while accepting the defendant’s confession to committing the armed robberies at The Red Door.

Regarding Streeter’s testimony about her sense of unease at the sight of defendant at Haskell’s Donut Shop, defendant contends that this was inadmissible bad character evidence. However, Streeter never gave any indication that she knew the defendant in any manner that would lead the jury to believe she could testify as to his character. Additionally, the defendant was found not guilty of the attempted armed robbery at the donut shop, indicating that the jury gave little or no weight to Streeter’s testimony as to her perceptions of the defendant’s intent on that day. Thus, any error |sm the admission of that testimony was harmless. The assignment of error lacks merit.

Sentencing

The defendant contends the trial court erred in imposing an excessive sentence. Defendant argues that a less harsh sentence would be appropriate in light of the evidence suggesting that defendant did not intend to harm the victims and the mitigating factors present in the record.

LSA-C.Cr.P. art. 881.1 precludes the defendant from presenting sentencing arguments to the court of appeal that were not presented to the trial court. Here, the defendant did not file a motion to reconsider sentence. In such a circumstance, the defendant is simply relegated to having the appellate court consider the bare claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Masters, 37,967 (La.App.2d Cir.12/17/03), 862 So.2d 1121; State v. Duncan, 30,453 (La.App.2d Cir.2/25/98), 707 So.2d 164.

A sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Robinson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

|9The sentencing range for armed robbery is imprisonment “at hard labor for not less than ten years and for not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence.” LSA-R.S. 14:64(B). The maximum sentence defendant could receive for attempted armed robbery was imprisonment at hard labor for not more than 49½ years, without benefit of parole, probation, or suspension of sentence. LSA-R.S. 14:64(B) and 14:27(D)(3).

At sentencing, the trial court reviewed the defendant’s social and criminal history as reflected in the presentence investigation report, including the defendant’s prior felony convictions for simple burglary and attempted simple burglary. The court thoroughly discussed the circumstances surrounding the defendant’s crimes and the applicable aggravating and mitigating circumstances. The court emphasized the risk of violence or great bodily hai-m which his use of a weapon presented, the fact that his victims suffered a significant economic loss of approximately $1,200 and the likelihood that defendant would commit another offense. The trial court found that removal of the defendant as a role model for his four minor children would not constitute an excessive hardship to their welfare. The court noted that the defendant appeared to have been a follower in the context of his criminal activity insofar as his wife seemed to have been the primary moving force behind their felonious lifestyle.

Defendant contends the trial court should have given more weight to the evidence that he did not intend to harm the victims of his crimes. However, as the trial court pointed out, the defendant placed the safety of | ^others in jeopardy when he pointed a pellet gun at his victims, who testified that they felt threatened by the defendant’s acts. In addition, the court expressly considered the sentencing factors raised by defendant, including his age, his four children and his work as an electrician.

The record demonstrates that the trial court provided ample reasons for the imposition of these concurrent sentences, which are neither grossly disproportionate to the severity of the offenses committed nor shocking to the sense of justice. There is no showing that the district court abused its discretion in sentencing this defendant. Thus, we cannot say the sentences imposed are constitutionally excessive. The assignment of error lacks merit.

We have examined the record for error patent and found none.

CONCLUSION

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

AFFIRMED.


source: Caselaw Access Project

author: BROWN, Chief Judge.

license: Public Domain

text:
    Larry B. WHITE, Plaintiff-Appellee v. Annie W. WHITE, Defendant-Appellant.
    No. 44,778-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 28, 2009.

      Tonya Courson, for Plaintiff-Appellee, Larry White and Individually as Second Appellant.
    Richard L. Fewell, Jr., for Defendant-First Appellant, Annie White.
    Before BROWN, MOORE, and LOLLEY, JJ.
   BROWN, Chief Judge.

1 lAnnie W. White filed a Rule for Contempt of Court, Attorney Fees and Costs against her former husband, Larry B. White. The rule was filed to enforce a judgment partitioning the community property. The trial court denied the motion and Mrs. White appealed. Larry White also appealed. In brief, Larry White’s attorney, Tonya Courson, objected “individually” to the trial court’s judgment holding her personally responsible for court costs including the cost of a private process server. We affirm.

Facts

In a judgment on June 17, 2005, all community property issues between the parties were resolved. The judgment specifically stated that Larry White owed Annie White $6,752.16 as an equalizing payment but allowed Mr. White to liquidate this debt by making a $3,000 payment within 30 days, or monthly installment payments of $50 for 60 months. He chose to make the monthly installments. The judgment also contained a provision that would make the entire $6,752.16 due and payable if any of the installments were not timely paid.

On November 16, 2007, Annie White filed a Rule for Contempt of Court, Attorney Fees and Costs of Court. The rule called for the enforcement of the acceleration provision. Specifically the motion states:

That (Larry White) sent a check in the amount of $1,900.00, on March 6, 2007, with intent as his final payment of $3,000.00, which was return (sic) to him. Since (Mr. White) was late in the months of June, October, and December of 2006, with his $50.00 payments, at that point the Judgment revert (sic) back to the entire amount with (sic) is $6,752.16 less the $1,100.00 already paid bringing his balance due to $5,652.16.

|2A contradictory hearing was not held until August 28, 2008. Mrs. White testified that although installments of $50 were made, Mr. White’s payments were late for the months of June, October, and December of 2006. We note that no explanation was given as to why she waited until November 2007 to file her rule; however, on cross-examination, it was disclosed that Mr. White’s checks were sent to Mrs. White’s attorney, who would then forward them to her. Mrs. White further testified that she did not know when the checks were received by her attorney. She confirmed that Mr. White attempted to make a lump sum final payment of $1,900 in March of 2007. This payment represented the remainder of the $3,000 owed to Mrs. White. Because Mrs. White already considered that Mr. White had been late in previous payments, she refused this payment and requested that her attorney return the check. At this time, Tonya Cour-son had written to Mrs. White’s attorney stating that she had been retained as Mr. White’s attorney. The $1,900 check was then returned to Attorney Courson who did not notify Mr. White. It was Mr. White’s testimony that he had no knowledge that the check was returned (although he was aware that it did not clear his bank account) and believed that his obligation was extinguished.

The trial court denied the motion for contempt but ordered Mr. White to again send the $1,900 to Mrs. White and assessed court costs to Mr. White’s attorney, Tonya Courson. Mrs. White instituted this appeal, and Attorney Courson filed an appeal for Mr. White apparently concerning the assessment of court costs personally against her.

| ^Discussion

The standard of review to be applied to factual findings in a civil matter is the manifest error standard. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Under this standard, the reviewing court does not substitute its own judgment for that of the factfinder, but determines whether its findings were reasonable. Hubbard v. Allied Building Stores, Inc., 41,534 (La.App.2d Cir.11/01/06), 942 So.2d 639. Thus, where there are two permissible outcomes, neither choice can ever be manifestly erroneous. Id. Therefore, the court of appeal may not reverse the decision if the factfinder’s conclusions are reasonable in light of the record, even if the appellate court would have reached the opposite conclusion as factfinder. Id.

In the matter sub judice, a partition judgment was rendered on June 17, 2005. This judgment set forth the payment options for Mr. White. There was also an acceleration clause. It is uncontested that defendant made regular monthly payments of $50 totaling $1,100, and then attempted to make a final payment of $1,900. It is also uncontested that this final payment would have extinguished defendant’s obligation to his ex-wife. The critical issue is whether defendant was late in making three payments in 2006 so that the acceleration clause of the judgment would be applicable.

Mrs. White testified that defendant sent payments to her attorney, who would then forward those payments to her. On cross-examination, Mrs. White was presented with copies of the cancelled checks. She acknowledged that there was a lag time between the date the checks were |4issued and the date they were processed at her bank. She also admitted that she rejected the $1,900 check because she wanted the full $6,752.

Mrs. White’s evidence was insufficient to show that defendant was late in making his payments. We cannot therefore conclude that the trial court’s ruling on this issue was manifestly erroneous, and we affirm the trial court’s ruling in this respect.

As to the imposition of costs against attorney Tonya Courson, we note that La. C.C.P. art. 863 states, in pertinent part:

... the court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, including a reasonable attorney’s fee.

In Parker v. Progressive Ins. Co., 31,147 (La.App.2d Cir.10/28/98), 720 So.2d 408, this court stated:

We conclude that the sanction in the present case is not demeaning and pointless for an attorney who is an officer of the court. White has a duty before filing suit to conduct a reasonable inquiry into the allegations made by his client and, in the present case, he failed to fulfill his duty. Monetary sanctions were proper in this case.

In a letter dated March 6, 2007, Larry White sent a $1,900 check to Richard Fe-well, who was Mrs. White’s attorney. Written on the check were the words, “final payment.” In response, on March 13, 2007, Mr. Fewell wrote to Larry White that the balance owed was $5,702.16 plus court costs.

On March 28, 2007, Tonya Courson wrote to Mr. Fewell that she had been retained by Larry White and stated that “should Mrs. White not wish for the $1,900 to be a final payment please return the check to my mailing address and Mr. White will resume the $50 payment each month until thej^full $3,000 is satisfied.” On May 8, 2007, the check was returned to Attorney Courson by Mr. Fewell. Attorney Courson did not notify Mr. White.

On November 20, 2007, the present rule was filed and a hearing date of January 14, 2008, was set. Service was made on Tonya Courson as the attorney of record for Larry White. Attorney Courson filed a pleading requesting a continuance of the hearing set for January 14, 2008, because she was not enrolled as counsel of record and service on her was ineffective. The matter was reset for June 2, 2008. Because previous attempts to serve Mr. White had been unsuccessful, Mrs. White’s attorney filed a motion to appoint a process server. The motion was granted, and Mr. White was served on May 29, 2008.

On June 2, Attorney Courson appeared and again moved for a continuance, claiming that her client was served three days earlier and that she was not adequately prepared. The court set a new hearing date of August 26, 2008. On August 26, neither Mr. White nor Attorney Courson appeared. The court then found Mr. White in contempt, assigned costs and attorney’s fees and issued warrants for the appearance of both Mr. White and Attorney Courson in court on August 28, 2008, to explain their absence.

At this hearing on August 28, it was determined that Mr. White was not aware that his payment of $1,900 in March 2007 had been refused. Attorney Courson had neither forwarded the returned $1,900 check nor contacted him. Mr. White testified that although he had sent the $1,900 check in March 2007, he did not know until May 2008, a full year later, that |fithis check had been returned to his attorney. Attorney Courson elicited self-serving testimony from Mr. White that he had only hired her to write a letter and not to represent him in this matter. This contradicts not only her correspondence with opposing counsel, but also her appearances and filings in court. Thus, we cannot find the trial court’s assessment of sanctions to attorney Tonya Courson pursuant to La. C.C.P. art. 863 to be an abuse of his discretion.

Conclusion

For the foregoing reasons, we hereby AFFIRM in all respects the trial court’s judgment.


author: GASKINS, J.

text:
    Sandra DOWLES, Plaintiff-Appellee v. CONAGRA, INC., Defendant-Appellant.
    No. 44,772-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 28, 2009.

      Hayes, Harkey, Smith & Cascio, by John B. Saye, for Defendant-Appellant ConAgra, Inc.
    Dumas & Associates Law Firm, LLC, by Walter C. Dumas, for Defendant-Appellant Johnnie A. Jones.
    O’Neal Law Offices, by F. Hodge O’Neal, III, Laura L. Folk, for Plaintiff-Appellee, Sandra Dowles.
    Before WILLIAMS, GASKINS and LOLLEY, JJ.
   GASKINS, J.

| ]This matter arises from an attorney fee dispute following a judgment granting damages of $20,000 and attorney fees of $5,000 to the plaintiff, Sandra Dowles, in her suit for wrongful discharge against ConAgra, Inc. (now Pilgrim’s Pride Corporation). The plaintiff had a contingent fee contract with her former attorney, Johnnie A. Jones, Sr., for 40 percent of her recovery. The present dispute arose when Mr. Jones sought to keep the $5,000 attorney fee award as well as 40 percent of the plaintiffs damages. To resolve the dispute, the trial court added the attorney fee award to the damage award and ruled that Mr. Jones was entitled to 40 percent of that amount. Mr. Jones appealed and Ms. Dowles answered the appeal. For the following reasons, we reverse the trial court judgment.

FACTS

Ms. Dowles sued ConAgra for wrongful discharge, claiming that she was fired for exercising her rights under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq. Ms. Dowles had been employed with ConAgra since 1997. She had a son with asthma and frequently took time off under the FMLA to care for him. On February 6 or 7, 2002, Ms. Dowles submitted an excuse from the child’s doctor stating that the child had the flu and Ms. Dowles needed to be off work to care for him from February 1 to February 7, 2008.

According to ConAgra, the excuse was altered to extend the excused absence period by one day to February 8, 2002. Ms. Dowles denied altering the excuse and produced a copy of the unaltered excuse. She claimed that she made the copy at work during the course of submitting the excuse to |2ConAgra. According to ConAgra officials, the alteration on the excuse was observed only after Ms. Dowles made the copy. The doctor’s office was contacted and personnel there denied altering the excuse. However, they confirmed that the child was sick on February 8 and stated that an excuse had been written covering the disputed day.

The matter was tried before a jury which rendered a verdict in favor of Ms. Dowles. She was awarded $10,000 in lost wages, benefits, and interest. ConAgra appealed and Ms. Dowles answered the appeal seeking additional damages and reinstatement to her job at ConAgra.

On appeal, this court affirmed the jury’s finding that ConAgra wrongfully discharged Ms. Dowles for exercising her rights under the FMLA. We found that, because ConAgra did not act in good faith in discharging Ms. Dowles, she was entitled to “liquidated” or double damages under 29 U.S.C. § 2617. We increased the award to $20,000. We also found that, “Under 29 U.S.C. § 2617(a)(3), the successful plaintiff is entitled to a reasonable attorney fee. Accordingly, we render judgment awarding attorney fees of $5,000.”

ConAgra tendered to Mr. Jones two checks, one for $27,237.31, reflecting the damage award plus interest, and one payable only to Mr. Jones for $8,637.70, reflecting the $5,000 attorney fee award, plus interest and costs.

Following the judgment of this court, a dispute arose between Ms. Dowles and Mr. Jones regarding the amount of the attorney fee. Mr. Jones ^cashed the attorney fee check and also sought to recover 40 percent of the $27,237.31 damage award. Ms. Dowles did not think that Mr. Jones was entitled to 40 percent of her damage award as well as the full attorney fee award of $5,000, plus interest. She refused to endorse the damage award check, the proposed settlement statement and ConAgra’s release. On August 11, 2008, Ms. Dowles filed, in proper person, a motion for a hearing seeking “clarity, certification, and request for assistance against past attorney Johnnie A. Jones, Sr. for misconduct.” This motion was denied by the trial court due to the form in which it was submitted.

Mr. Jones filed a motion to recover attorney fees and for leave of court to deposit the $27,237.31 damage award into the registry of the court. Mr. Jones then claimed that the issue was whether he was entitled to both the attorney fee awarded by this court and the amount that Ms. Dowles agreed to in the contingent fee contract.

ConAgra filed a rule to show cause why Ms. Dowles and Mr. Jones should not be required to execute a satisfaction of judgment, accepting the money tendered. Ms. Dowles filed a memorandum in opposition to Mr. Jones’ motion to recover attorney fees.

Ms. Dowles suggested that either the statutory attorney fee award was the sole amount to be recovered by Mr. Jones or that a setoff was the proper remedy. Under the setoff calculation, she argued that 40 percent of $27,237.31 is $10,894.92. Mr. Jones received $5,000 in attorney fees with $1,803.16 in interest for a total of $6,803.16. Ms. Dowles asserted that this ^amount should be subtracted from $10,894.92, leaving her owing Mr. Jones $4,091.96.

A hearing was held on this matter on January 8, 2009. The trial court ruled that the attorney fee award was an element of damages awarded to the plaintiff. He added the statutory attorney fee award to the damage award, plus interest on both, and ruled that Mr. Jones was entitled to 40 percent of that amount. A judgment to that effect was signed by the trial court on January 22, 2009. Mr. Jones appealed and Ms. Dowles answered the appeal.

ATTORNEY FEES

Mr. Jones essentially argues on appeal that the trial court inappropriately modified this court’s judgment by adding the $5,000, plus interest, in statutory attorney fees to the damage award and then granting him 40 percent of that amount. He contends that, under the contingent fee contract, Ms. Dowles agreed to pay a 40 percent contingent fee and agreed that any award of attorney fees is the sole property of the lawyer, exclusive of any award of the client. He claims that, according to the terms of the contract, he is entitled to the 40 percent contingent fee on Ms. Dowles’ award, as well as the $5,000 plus interest awarded as a statutory attorney fee by this court. Mr. Jones also suggests in his brief that this court should award an additional $2,500 in attorney fees along with costs and travel expenses for having to pursue this matter on appeal.

In her answer to the appeal, Ms. Dowles contends it would be an unreasonable attorney fee if Mr. Jones collected 54.5 percent of his client’s | r,total award by contracting for 40 percent of “any recovery obtained,” and characterizing the client’s attorney fee award as “property of the attorney, exclusive of any award to the client.” She maintains that if Mr. Jones is allowed to keep the $8,637.70 attorney fees and costs, plus 40 percent of the $27,237.31 damage award and interest, he would recover an attorney fee of $19,532.63 out of a total award of $35,875.01.

She argues in the alternative that this court’s award of a “reasonable attorney fee” was fully satisfied by the $8,637.70 received from ConAgra and that she does not owe any additional attorney fees.

Federal Statutory and Jurisprudential Authority

The issue presented is whether the attorney may recover both the 40 percent contingent fee amount and the statutory attorney fee. Based upon federal authority construing federal statutes which allow for the award of attorney fees by a court, we find that Mr. Jones is entitled to recover both the statutory fee and the contingent fee amount.

The plaintiff in the present case brought an action for wrongful discharge under the FMLA. The statute under which attorney fees were awarded in this case is 29 U.S.C. § 2617(a)(3) which provides:

(3) Fees and costs
The court in such an action shall, in addition to any judgment awarded to the plaintiff, allow a reasonable attorney’s fee, reasonable expert witness fees, and other costs of the action to be paid by the defendant.

The legislative history of this statute provides that, with the exception of the allowance of expert witness fees, this provision is modeled after 29 U.S.C. § 216(b) of the Fair Labor Standards Act (FLSA), and therefore |,¡should be interpreted in the same way as the FLSA. The legislative history further provides that, according to the federal courts, the award of attorney fees under the FLSA is mandatory and unconditional. A court has no discretion to deny fees to a prevailing plaintiff; its discretion extends only to the amount allowed. H.R. Rep. 103-8(1) P.L. 103-3 Family and Medical Leave Act of 1993.

There is some authority indicating that, under the federal statutory scheme, an attorney may contract with his client to receive both the contingent fee amount and the statutory attorney fee award provided in 29 U.S.C. § 2617. In Award of Attorney’s Fees and Other Litigation Costs Under Fee-Shifting Provision of Family and Medical Leave Act, 29 U.S.C.A. sec. 2617(a)(3), 197 A.L.R. Fed. 229, it was noted that:

There is some authority suggesting that although a contingency fee agreement does not affect calculation of what constitutes a reasonable lodestar rate, a court may require the plaintiff to pay a contingent fee over and above the amount of statutory fees awarded and assessed against the defendant. This was the case in Quint v. A.E. Staley Mfg. Co., 84 Fed.Appx. 101 (1st Cir. 2003), a case actually awarding fees under the Americans with Disabilities Act (ADA) (42 U.S.C.A. §§ 12101 to 12212), but noting that similar fees ivould have been awarded had the court chosen to make the award under 29 U.S.C.A. § 2617(a)(3) due to the similar language of the FMLA, in which the court found that the plaintiff’s attorney was entitled to the fee specified in the parties’ contingent fee agreement, consisting of 25% of the plaintiff’s recovery, plus assignment of the statutory fee award. The court noted that the parties had reached this agreement voluntarily, with the attorney specifically agreeing to a lower percentage, rather than his usual 40% of recovery, in exchange for the assignment of statutory fees. The court also held that a second attorney, hired to represent the plaintiff on appeal, was entitled to enforce his fee agreement, calling for 15% of the recovery, plus assignment of the statutory fee award, since the plaintiff had specifically been advised when she terminated her original counsel and hired the second attorney that this would increase the total contingency award 17imposed on her settlement to 40%, and thereby decrease her net recovery. [Emphasis supplied.]

Other federal statutes allowing for the award of attorney fees include 42 U.S.C. § 1988 for a claim of violation of civil rights under 42 U.S.C. § 1983 and 42 U.S.C. § 2000e-5(k) for employment discrimination. These statutes allow for the discretionary rather than mandatory imposition of attorney fees.

The federal Fifth Circuit has considered the exact question presented here, whether an attorney may recover both the amount due under the contingent fee contract and the attorney fee awarded pursuant to a federal statute. In Gobert v. Williams, 323 F.3d 1099 (5th Cir.2003), the plaintiff filed a Title VII suit against her employer, the United States Department of the Interior, alleging job discrimination. She had a contingent fee contract with her attorney entitling him to 35 percent of any amount recovered, excluding court-awarded attorney fees. The agreement also contained a provision similar to the contract in the case sub judice which provided that, “[i]t is specifically understood that all court awarded attorneys [sic] fees are and shall remain the property of the attorney.”

The plaintiff ultimately received a judgment of $49,769.11, along with a promotion and attorney fees totaling $36,690 pursuant to 42 U.S.C.Js§ 2000e-5(k). The plaintiff terminated her attorney, who then intervened to enforce the retainer agreement. The district court found that the fee agreement was enforceable and that, in addition to the statutory attorney fee awarded, the attorney was also entitled to $17,419.19, representing 35 percent of the $49,769.11 judgment.

The plaintiff appealed, contending that the attorney was only entitled to the statutory attorney fee. The Fifth Circuit ruled in favor of the attorney, stating that there is nothing in § 2000e-5(k) to regulate what plaintiffs may or may not promise to pay their attorneys if they lose or if they win.

The reasoning in Gobert was based in part upon Venegas v. Mitchell, 495 U.S. 82, 110 S.Ct. 1679, 109 L.Ed.2d 74 (1990). In Venegas, the United States Supreme Court granted certiorari to consider whether 42 U.S.C. § 1988, which allows a court discretion to award a reasonable attorney fee to the prevailing party in a civil rights case, invalidates | gcontingent fee contracts that would require a prevailing civil rights plaintiff to pay his attorney more than the statutory award against the defendant.

The plaintiff in Venegas signed a contingent fee agreement with his attorney providing that the attorney would represent him for a fee of 40 percent of the gross amount of any recovery. The contract also provided that any fee awarded by the court would be applied, dollar for dollar, to offset the contingent fee. The plaintiff was awarded damages for violation of his civil rights under 42 U.S.C. § 1983. The attorney then filed to recover attorney fees under § 1988 and the court complied. The plaintiff argued that the attorney was entitled to only the attorney fee award made under § 1988.

The Supreme Court affirmed a ruling that § 1988 does not prevent a lawyer from collecting a reasonable fee provided for in a contingent fee contract even if it exceeds the statutory amount. It rejected the argument that § 1988 requires the trial court to invalidate a contingent fee agreement arrived at privately between attorney and client, saying that it had never held that § 1988 constrains the freedom of the civil rights plaintiff to |inbecome contractually and personally bound to pay an attorney a percentage of the recovery, if any, even though such a fee is larger than the statutory fee that the defendant must pay to the plaintiff. The Supreme Court stated:

In sum, § 1988 controls what the losing defendant must pay, not what the prevailing plaintiff must pay his lawyer. What a plaintiff may be bound to pay and what an attorney is free to collect under a fee agreement are not necessarily measured by the “reasonable attorney’s fee” that a defendant must pay pursuant to a court order. Section 1988 itself does not interfere with the enforceability of a contingent-fee contract.

In Venegas, because the contingent fee contract provided that, under the terms of the contingent fee contract, the statutory attorney fee award would be offset against the contingent fee amount, the court did not reach the issue as to whether an attorney could receive both the statutory award and the contingent fee amount.

In deciding Venegas, the Supreme Court relied in part on the reasoning in Blanchard v. Bergeron, 489 U.S. 87, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989). In Blanchard, the plaintiff successfully prosecuted a claim for violation of his rights under § 1983 arising from being beaten by a St. Martin Parish sheriffs deputy. The plaintiff received a damage award totaling $10,000 and an attorney fee award under § 1988 for $7,500. On appeal, the attorney fee award was lowered to $4,000 because the plaintiff had a contingent fee contract with his attorney for 40 percent of any damages awarded. The United States Supreme Court reversed that decision, holding that an attorney fee provided for in a contingent fee agreement is not a ceiling on the fees recoverable under § 1988.

|nMs. Dowles argues that McCarroll v. Airport Shuttle, Inc., 2000-1123 (La.11/28/00), 773 So.2d 694, provides authority prohibiting the recovery of both the contingent fee contract amount and the statutory fee award. In McCarroll, the Louisiana Supreme Court considered the issue of whether an attorney in a state workers’ compensation case is entitled to both the attorney fees awarded to his successful client under La. R.S. 23:1201(F) and the fees that the employee had agreed to pay the attorney for services under the contingent fee contract. The supreme court concluded that the statutory attorney fees, awarded to the employee in cases of arbitrary behavior of the employer or the insurer, were intended to benefit the employee, who would otherwise have to pay the contractual attorney fees out of his or her benefits recovered in the litigation, and were not intended to provide additional fees to the employee’s attorney, who received the amount of the statutory attorney fees as full compensation for legal services in the litigation. The court noted that contingent fees are limited in workers’ compensation cases by La. R.S. 23:1141(B) because the employee’s recovery is low. The court reasoned that the amount of attorney fees awarded is intended to provide full recovery, without statutory limitation, for attorney’s services and expenses in connection with the litigation. According to the court, if the attorney were allowed to collect the contractual attorney fees in addition toJjjthe full compensation awarded by the statutory attorney fees, the attorney would get double recovery (to the extent of the limited contractual fee) for his services, at the expense of his client.

In contrast to McCarroll, the federal statute at issue in this case does not limit contingent fee contracts. Further, it does not specify that a statutory attorney fee award extinguishes all or part of the agreement between attorney and client. Therefore, the ruling of McCarroll is not controlling here to preclude recovery of both the contingent fee amount and the statutory fee award. In this case, the parties entered into a contingent fee contract similar to that in Gobert. Under federal case authority construing federal statutes governing the award of attorney fees, we find that, under the contingent fee contract in this case, Mr. Jones is entitled to both the contingent fee amount of 40 percent of Ms. Dowles’ damage award, as well as the statutory attorney fee award.

Contingent Fee Contract

The parties in this case had a contingent fee contract regarding the amount of attorney fees due to Mr. Jones. Interpretation of that contract is pertinent to the decision of this case. When Ms. Dowles employed Mr. Jones, they entered into an Attorney-Client Agreement which specified in pertinent part:

In consideration for services rendered and to be rendered client agree(s) to pay attorney(s) a sum equal to thirty-five[sic] (35%) of any negotiated settlement providing there is no appeal; or judicial judgment providing no appeal is taken; or forty percent (40%) of any recovery obtained in said action if [sic] Judgment if there is an appeal to a higher court, for legal services rendered on the client’s behalf. Any award of attorney’s fees [ 1BshaIl be the sole property of attorney, exclusive of any award of client.

La. R.S. 37:218, regarding contingent fee contracts, provides:

A. By written contract signed by his client, an attorney at law may acquire as his fee an interest in the subject matter of a suit, proposed suit, or claim in the assertion, prosecution, or defense of which he is employed, whether the claim or suit be for money or for property. Such interest shall be a special privilege to take rank as a first privilege thereon, superior to all other privileges and security interests under Chapter 9 of the Louisiana Commercial laws. In such contract, it may be stipulated that neither the attorney nor the client may, without the written consent of the other, settle, compromise, release, discontinue, or otherwise dispose of the suit or claim. Either party to the contract may, at any time, file and record it with the clerk of court in the parish in which the suit is pending or is to be brought or with the clerk of court in the parish of the client’s domicile. After such filing, any settlement, compromise, discontinuance, or other disposition made of the suit or claim by either the attorney or the client, without the written consent of the other, is null and void and the suit or claim shall be proceeded with as if no such settlement, compromise, discontinuance, or other disposition has been made.
B. The term “fee”, as used in this Section, means the agreed upon fee, whether fixed or contingent, and any and all other amounts advanced by the attorney to or on behalf of the client, as permitted by the Rules of Professional Conduct of the Louisiana State Bar Association.

Interpretation of contracts is governed by La. C.C. arts. 2045 et seq. Interpretation of a contract is the determination of the common intent of the parties. La. C.C. art. 2045. When the words of a contract are clear and | ^explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art. 2046. The words of a contract must be given their generally prevailing meaning. La. C.C. art. 2047. Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. La. C.C. art. 2050. Although a contract is worded in general terms, it must be interpreted to cover only those things it appears the parties intended to include. La. C.C. art. 2051. A doubtful provision must be interpreted in light of the nature of the contract, equity, usages, the conduct of the parties before and after the formation of the contract, and of other contracts of a like nature between the same parties. La. C.C. art. 2053. In case of doubt that cannot be otherwise resolved, a provision in a contract must be interpreted against the party who furnished its text. A contract executed in a standard form of one party must be interpreted, in case of doubt, in favor of the other party. La. C.C. art. 2056.

The parties in this case were free to enter into a contingent fee contract regarding Mr. Jones’ representation of Ms. Dowles. The contingent fee contract between the parties is valid and provides for a 40 percent attorney fee based upon any recovery obtained and specifies that any award of attorney fees is the attorney’s property, exclusive of any award to the client. Terming the statutory attorney fee as an element of Ms. Dowles’ damage award, as was done by the trial court, is contrary to the clear terms of the contract which provides that any attorney fee award is the sole property of the attorney, exclusive of any award to the client. Under |1Bthe terms of the agreement, the trial court erred in treating the attorney fee as an element of damages awarded to the plaintiff, adding that amount to the damage award, and then computing the contingency fee award on the total. Accordingly, we reverse the trial court judgment allocating fees in this manner.

Reasonable Attorney Fee

Finding that there is no prohibition to allowing the attorney to recover both the contingent fee amount and the statutory attorney fee award, we must examine the award to determine if it is reasonable. In Blanchard v. Bergeron, supra, the Supreme Court found that 42 U.S.C. § 1988 provides that the court, in its discretion, may allow a reasonable attorney fee to a successful litigant, but the section does not define “reasonable attorney fee.” The Court noted that the factors usually considered in determining a reasonable fee are: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitation imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. The Court went on to say that the initial estimate of a reasonable attorney fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a | ^reasonable hourly rate. This result is generally known as the “lodestar” amount.

The Supreme Court in Blanchard found that a contingent fee contract was simply one factor to be considered in arriving at a reasonable fee and did not place a cap on the amount of the fee. The Court reasoned that 42 U.S.C. § 1988’s provision for allowing a “reasonable attorney fee” contemplates reasonable compensation, in light of all the circumstances, for the time and effort expended by the attorney for the prevailing plaintiff, no more and no less. The Supreme Court stated, “Should a fee arrangement provide less than a reasonable fee calculated in this manner, the defendant should nevertheless be required to pay the higher amount. The defendant is not, however, required to pay the amount called for in a contingent-fee contract if it is more than a reasonable fee calculated in the usual way.”

The Louisiana State Bar Articles of Incorporation, Art. 16, Rules of Professional Conduct, Rule 1.5, regarding reasonable attorney fees, also requires consideration of the factors set forth in Blanchard v. Bergeron, supra. Rule 1.5 provides in pertinent part:

(a)A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
117(3) the fee customarily charged in the locality for similar legal services;
(4)the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.
(b) The scope of the representation and the basis or rate of the fee and expenses for which £he client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.
(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by Paragraph (d) or other law. A contingent fee agreement shall be in a writing signed by the client. A copy or duplicate original of the executed agreement shall be given to the client at the time of execution of the agreement. The contingency fee agreement shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; the litigation and other expenses that are to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.

|18We find that, limited to the facts of this case, the statutory attorney fee award and the contingent fee amount together constitute a reasonable attorney fee. This case concerned complex litigation under federal law and involved a jury trial which lasted several days. The matter obviously required a significant amount of time on the part of Mr. Jones. After receiving a favorable jury verdict, Mr. Jones defended the verdict on appeal on Ms. Dowles’ behalf and was successful in having the jury verdict doubled, as well as securing the statutorily mandated attorney fee award. Given these facts, an attorney fee award of $13,000, plus interest, is reasonable. The record contains nothing to indicate otherwise. Under these circumstances, the award of the amount due under the contingent fee contract as well as the statutory attorney fee award was reasonable.

CONCLUSION

For the reasons stated above, we reverse the trial court judgment which determined the mandatory attorney fee awarded under federal statute 42 U.S.C. § 2617 to be an element of Ms. Dowles’ damage award, adding that amount to the damage award, and granting the attorney fee under the contingent fee contract on 40 percent of that amount. We find that, under the contingent fee contract between Ms. Dowles and Mr. Jones, and under the federal statute requiring an award of attorney fees, Mr. Jones is entitled | i9to recover both amounts. We render judgment ordering Ms. Dowles to pay Mr. Jones 40 percent of her damage award which is due under the contingent fee contract. We reject Mr. Jones’ claim for additional attorney fees on appeal. Costs in this court are assessed to Sandra Dowles.

REVERSED AND RENDERED.

      . Dowles v. ConAgra, Inc., 43,074 (La.App.2d Cir.3/26/08), 980 So.2d 180.

      . Shortly thereafter, Pilgrim's Pride, the successor company of ConAgra, filed for bankruptcy under Chapter 11.

      . Quint v. A.E. Staley Mfg. Co., supra, is not designated for publication in the Federal Reporter.

      . 42 U.S.C. § 2000e-5(k) provides, in pertinent part:
      (k) Attorney's fee; liability of Commission and United States for costs
      In any action or proceeding under this sub-chapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney's fee (including expert fees) as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person.

      . As stated above, the attorney fee statute at issue here, 29 U.S.C. § 2617 is based upon the FLSA and its attorney fee statute. We are aware of Harrington v. Empire Construction Company, (4th Cir.1948), 167 F.2d 389, decided under the FLSA, which provides that when a statutory attorney fee is awarded, the contingent fee between the plaintiff and his attorney is abrogated. However, the later Supreme Court case of Venegas v. Mitchell, infra, suggests that this view is erroneous.

      . For violations of civil rights, 42 U.S.C. § 1988 provides in pertinent part:
      (b) Attorney’s fees
      In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318 [20 U.S.C.A. § 1681 et seq.], the Religious Freedom Restoration Act of 1993 [42 U.S.C.A. § 2000bb et seq.], the Religious Land Use and Institutionalized Persons Act of 2000 [42 U.S.C.A. § 2000cc et seq.], title VI of the Civil Rights Act of 1964 L42 U.S.C.A. § 2000d et seq.], or section 13981 of this title, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity such officer shall not be held liable for any costs, including attorney's fees, unless such action was clearly in excess of such officer's jurisdiction.

      . La. R.S. 23:1141(B) presently provides:
      B. The fees of an attorney who renders service for an employee coming under this Chapter shall not exceed twenty percent of the amount recovered.
      At the time McCatroll was decided, the statute provided:
      B. In no case shall the fees of an attorney who renders service for an employee coming under this Chapter exceed twenty percent of the first twenty thousand dollars and ten percent of the part of any award in excess of twenty thousand dollars.

      . We reject the argument of Ms. Dowles that the contingent fee contract was null and void because it constituted the purchase of a litigious right which is prohibited under La. C.C. art. 2477. That statute provides:
      Officers of a court, such as judges, attorneys, clerks, and law enforcement agents, cannot purchase litigious rights under contestation in the jurisdiction of that court. The purchase of a litigious right by such an officer is null and makes the purchaser liable for all costs, interest, and damages.
      However, an attorney may acquire as his fee an interest in the subject matter of a suit of which he is employed. La. R.S. 37:218; Watson v. Cook, 616 So.2d 803 (La.App. 2d Cir. 1993), writs denied, 619 So.2d 579 (La.1993).

      . Mr. Jones also requests additional attorney fees for prosecuting the appeal in this matter. He is not entitled to such recovery. Under Louisiana law, attorney fees are not allowed except where authorized by special statute or by contract. Shreveport Neon Signs, Inc. v. Williams, 44,079 (La.App.2d Cir.2/25/09), 5 So.3d 977. In the present case, Mr. Jones filed pleadings against his former client to recover fees due to him based upon the contingent fee contract. Nothing in the contract requires Ms. Dowles to pay additional attorney fees to Mr. Jones for suing to recover the amounts due under the contingent fee contract. Further, there is no statute granting Mr. Jones the right to recover additional fees. Therefore, his request is denied.


author: STEWART, J. CARAWAY, J.,

text:
    STATE of Louisiana, Appellee v. Donna Kay SEPULVADO, Appellant.
    Nos. 44,763-KA, 44,764-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 28, 2009.

      Louisiana Appellate Project by G. Paul Marx, for Appellant.
    Richard S. Johnson, Jr. District Attorney, Brian H. Barber, Ron C. Stamps, Assistant District Attorneys, for Appellee.
    Before STEWART, GASKINS and CARAWAY, JJ.
   STEWART, J.

b The defendant, Donna Kay Sepulvado, pled guilty to negligent homicide and distribution of a Schedule II controlled dangerous substance (“CDS”). She received concurrent sentences of five years at hard labor and ten years at hard labor, respectively. By this appeal, she argues that the homicide conviction must be set aside on the grounds of double jeopardy and that her sentence is excessive because it was based on improper victim impact testimony. Finding no error, we affirm.

FACTS

On February 5, 2006, the defendant sold methadone to Troy Holland, who died sometime that night or early the next day after ingesting the drug. Holland’s death certificate identified the primary cause of death as acute combined methadone and alprazolam intoxication due to self-administered drug abuse.

On February 23, 2006, the defendant was charged by grand jury indictment with second degree murder, a violation of La. R.S. 14:30.1, for unlawfully distributing or dispensing a Schedule II CDS which was the direct cause of Holland’s death. She pled not guilty.

On April 7, 2008, the defendant entered a plea agreement. She withdrew her plea of not guilty to second degree murder and entered an Alford plea, see North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to the charge of negligent homicide. Also, the state filed a new bill charging distribution of a Schedule II CDS, namely methadone, in violation of La. R.S. 40:967(A)(1). The defendant waived formal arraignment and pled guilty to the distribution charge.

|2The victim’s mother, Ann Bryant, testified at the sentencing hearing that she blamed the defendant for the deaths of both her son and her daughter, who had also died after allegedly ingesting drugs purchased from the defendant. Defense counsel objected to Bryant’s testimony about her daughter as beyond the scope of the sentencing hearing. William Keith Robbins, the defendant’s husband, testified on her behalf, stating that she had a drug problem and that she was on drugs the night Holland purchased the methadone. He also brought up the matter of Bryant’s daughter. The trial court judge continued the sentencing to review the PSI.

When the sentencing hearing resumed a month later, the victim impact statement and the PSI were entered into the record. Defense counsel objected to evidence regarding the death of Bryant’s daughter included in the victim impact statement. After reviewing the relevant factors, the trial court imposed concurrent sentences of five years at hard labor for negligent homicide and ten years at hard labor for distribution of a Schedule II CDS. The defendant was granted credit for time served.

Upon denial of a motion for reconsideration of the sentences, this appeal followed. Raising two assignments of error, the defendant argues that her sentences are excessive due to having been based on improper victim impact testimony and that her convictions violate the protection against double jeopardy.

^DISCUSSION

Double Jeopardy

Arguing that the same facts were relied on for both the negligent homicide and the distribution convictions, the defendant asserts a double jeopardy violation.

A guilty plea generally waives all non-jurisdictional defects and is reviewed to ensure that the plea was counseled and voluntary. State v. Arnold, 2001-1399 (La.4/12/02), 816 So.2d 289. Double jeopardy is an exception to this rule where the face of the record shows that the court had no power to enter the conviction or impose the sentence. State v. Arnold, 2001-1399 (La.4/12/02), 816 So.2d 289, citing United States v. Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989). Review of a double jeopardy claim in connection with a plea is limited to the charging documents and the plea colloquy. Arnold, supra; State v. Gobert, 2002-771 (La.App. 3d Cir.11/12/03), 865 So.2d 779, writ denied, 2003-3382 (La.12/10/04) 888 So.2d 829. There is also authority for finding a waiver of double jeopardy even where it is apparent on the face of the record. State v. Gobert, supra.

In Gobert, supra, the defendant was twice convicted of second degree murder and each conviction was overturned on appeal due to prosecutorial error. Shortly before the third trial commenced, the defendant pled guilty to one count of manslaughter and one count of attempted manslaughter. In an application for post conviction relief, the defendant asserted a double jeopardy claim, which the trial court denied. On appeal, the third circuit |4noted that the defendant had been charged by bill of indictment with second degree murder and that the state amended the bill to reflect the new charges. Reviewing the plea colloquy, the court found that the manslaughter and attempted manslaughter charges were agreed upon because they would guarantee a term of imprisonment that was amenable to the victim’s family and because they would allow the defendant to avoid a sentence of life imprisonment.

Upon citing the rule that a plea bargain does not preclude a double jeopardy claim when a violation is apparent on the face of the record, the third circuit noted an “important qualification” to that rule by the United States Supreme Court which stated in Broce, supra, “We do not hold that a double jeopardy claim may never be waived.” See Broce, 488 U.S. at 575, 109 S.Ct. at 765. Considering this qualification, the third circuit noted that Gobert alleged that counsel did not discuss double jeopardy considerations with him before entering the plea agreement. He argued that without having considered the possibility of raising a double jeopardy defense, he had not intentionally waived his right to claim double jeopardy. Rejecting this argument, the court cited Broce, supra, explaining that a conscious waiver is not required for each potential defense relinquished by a guilty plea, rather:

Relinquishment derives not from any inquiry into a defendant’s subjective understanding of the range of potential defenses, but from the admissions necessarily made upon entry of a voluntary plea of guilty. The trial court complied with Rule 11 in ensuring that respondents were advised that, in pleading guilty, they were admitting . guilt and waiving their right to a trial of any kind. A failure by counsel to provide advice may form the basis of a claim of ineffective assistance of counsel, but absent such a claim it cannot serve as the predicate for setting aside a valid plea.

United States v. Broce, 488 U.S. at 573-74, 109 S.Ct. 757, 102 L.Ed.2d 927; Gobert, 2002-771, p. 11, 865 So.2d at 785.

The third circuit found that Gobert, who voluntarily, knowingly and intelligently entered the plea agreement, was aware that the charges raised double jeopardy concerns even though the trial court never explicitly told him he was waiving his right to assert a double jeopardy violation. According to the third circuit, fundamental fairness dictated that Gobert could not attack the validity of his plea on grounds of double jeopardy.

While Gobert, supra, differs from this matter in that the defendant, Sepulvado, had not previously been tried and found guilty of the initial charge of second degree murder, Sepulvado like Gobert entered a plea agreement by which she avoided the possibility of a life sentence. The defendant was initially charged by bill of indictment with second degree murder in that she distributed or dispensed a Schedule II CDS which was the direct cause of Troy Holland’s death. See La. E..S. 14:30.1 (A)(3). As per a plea agreement, she entered guilty pleas to a reduced charge of negligent homicide and to a charge of distribution of a schedule II, CDS, for which the state filed a new bill. Essentially, the plea agreement divided the initial charge into separate charges thereby allowing the defendant to avoid facing a possible mandatory life sentence if convicted. The potential for a double jeopardy claim was evident at the time the plea was entered.

The defendant affirmed her understanding of the plea agreement and specifically affirmed her understanding that she was waiving any appeal rights by pleading guilty. The defendant admitted that she was pleading |figuilty to the distribution charge because she was in fact guilty of that offense, but she entered an Alford plea to the negligent homicide charge. Clearly, the plea was in her best interest considering the life sentence that awaits one convicted of second degree murder. However, the defendant told the court that she wanted “all of this over with” so that she could “get on with [her] life.” The trial court found and the plea colloquy shows that she entered the pleas knowingly, intelligently, and voluntarily.

Like in Gobert, supra, fundamental fairness as well as the unique facts of the case dictates a finding that the defendant’s attack on the validity of her plea on the basis of double jeopardy is unfounded.

Excessive Sentence

The defendant argues that the trial court erred in imposing a sentence based on hearsay testimony from the victim’s mother. The defendant asserts that Bryant’s statements alleging the defendant’s involvement in her daughter’s death are impermissible speculation and that the trial court erred in considering Bryant’s statements in its sentencing decision. The defendant cites State v. McCalvin, 438 So.2d 209 (La.1983), in which the defendant’s sentence of ten years at hard labor for distribution of marijuana was vacated because the trial court’s sentencing decision was based on an unsubstantiated criminal history. The defendant also relies on jurisprudence from capital cases which is not persuasive in this noncapital matter.

The trial judge has wide discretion in sentencing within statutory limits, and its sentence will not be set aside as excessive in the absence of a manifest abuse of that discretion. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7; State v. Hardy, 39,233 (La.App.2d Cir.1/26/05), 892 So.2d 710. Sources of information from which a sentencing court may draw in determining an appropriate sentence are extensive and are not subject to restrictions imposed on admissibility in the guilt phase of trial. State v. Clayborn, 27,821 (La.App.2d Cir.1/24/96), 666 So.2d 1258. Evidence of other crimes which have not been adjudicated are relevant and probative evidence of the defendant’s character and propensities. Id. Sources of information relied on by the sentencing court may include hearsay and arrests, as well as conviction records. State v. Myles, 94-0217 (La.6/3/94), 638 So.2d 218. These matters may be considered even in the absence of proof the defendant committed the other offenses. State v. Doyle, 43,438 (La.App.2d Cir.8/13/08), 989 So.2d 864.

La. R.S. 46:1844(K) provides for the right of the victim or designated family member to make an oral and written victim impact statement which may contain information related to the impact of the offense upon the victim or family and any other information the victim or family wishes to share regarding the overall effect of the crime on them. La. R.S. 46:1844(K)(2)(f) and (g).

Though the defendant relies on McCal-vin, supra, in support of her argument, it is distinguishable. The trial judge sentenced McCalvin without the benefit of a PSI and based on his misunderstanding of the defendant’s testimony about his criminal history. In the case sub judice, the trial court ordered and reviewed a PSI and, most importantly, made clear that the | ssentencing was not influenced by Ann Bryant’s opinion about the defendant’s alleged involvement in her daughter’s death.

The sentencing transcripts show that the trial court recognized the issue of relevance presented by Bryant’s statements about her daughter’s death and understood the defendant’s objection that such statements are not legitimate factors for consideration on sentencing. The defendant asserts that the trial court did consider Bryant’s statements about her daughter’s death when it referred to the “painful irony in this particular case.” However, the trial court made it clear that it was “endeavoring not to place any weight on the painful irony that has fallen on this particular family as it involves the other child” when it sentenced the defendant to five years at hard labor for the negligent homicide of Troy Holland. Similarly, when imposing the sentence of ten years at hard labor on the distribution charge, the trial court stated that it was “endeavoring not to be influenced on the sentence for that offense simply because of the death of Mr. Holland and certainly because of anything else because you have already been sentenced for the homicide charge.”

The trial court’s own words make it clear that it did not consider as a sentencing factor Bryant’s statements blaming the defendant for the death of her daughter. Nothing in the record shows that the sentence was based on any improper consideration. While the defendant received the maximum sentence for the negligent homicide charge, the concurrent sentence of ten years for distribution was much lower than the maximum of thirty years available for that charge. See La. R.S. 14:32(C)(1) and 40:967(B)(4)(a). I¡/The trial court had the benefit of a PSI to review before imposing the sentences and considered the guidelines provided by La. C. Cr. P. art. 894.1. The trial court noted that Holland died with drugs in his system that he had purchased from the defendant. The court also noted the defendant’s longtime drug abuse, the finding of other drugs and child pornography in her home at the time of her arrest, and the seizure of her home as a result of her selling drugs. The defendant’s criminal history revealed only two prior arrests and no convictions. In mitigation, the trial court noted that the defendant was under the influence of drugs at the time of the offense and that she had stopped using drugs since her arrest.

Having reviewed the record, we find no abuse of discretion by the trial court. The sentences are within the statutory limits, are neither grossly disproportionate to the seriousness of the offenses nor shocking to the sense of justice, and are supported by an adequate factual basis as shown in the record. This assignment of error lacks merit.

CONCLUSION

The defendant’s convictions and concurrent sentences are affirmed.

AFFIRMED.

CARAWAY, J.,

concurring.

Ill concur concerning the issue of double jeopardy. I believe that the defendant could be prosecuted for these two offenses which were based on the same transaction. The distribution charge is a specific intent crime with the aim of dispensing a controlled dangerous substance. The negligent homicide charge results from the defendant’s disregard of the interests of another person through conduct which amounts to a gross deviation below the expected standard of care. Therefore, I respectfully disagree with the majority’s implicit determination that the double jeopardy protection was violated in this case, and I further disagree with the finding that this defendant could understand the enigmatic legal concept of double jeopardy so as to effect a waiver of her rights.

CARAWAY, J., concurs with written reasons.