text:
    STATE of Louisiana v. Frederick THOMAS
    KA 17-620
    Court of Appeal of Louisiana, Third Circuit.
    December 6, 2017
    Phillip Terrell, Jr., Ninth Judicial District Court District Attorney, P.O. Box 1472, Alexandria, La 71309, (318) 473-6650, COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana
    Annette Fuller Roach, Louisiana Appellate Project, P. O. Box 1747, Lake Charles, LA 70602-1747, (337) 436-2900, COUNSEL FOR DEFENDANT/APPELLANT: Frederick Thomas
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell, and John E. Conery, Judges.
   EZELL, Judge.

Defendant Frederick Thomas, then seventeen years old, pled guilty to second degree murder in 1974 and received a sentence of life imprisonment without benefit of probation, parole, or suspension of sentence for the first twenty years. A subsequent change in the law ended his parole eligibility.

In 2012, the Supreme Court ruled in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), that a juvenile convicted for homicide cannot be sentenced to life imprisonment without parole unless mitigating factors are considered. On June 18, 2013, Defendant filed a motion to correct an illegal sentence, arguing that Miller rendered his sentence improper. In that motion, he sought to have his sentence vacated and to receive a new sentencing hearing. He filed a second motion on July 10, 2013, seeking to be resentenced pursuant to the next lesser offense. These motions were ultimately dismissed; at the time Louisiana courts did not consider the Miller holding to be retroactive.

Defendant filed a third motion to correct an illegal sentence on March 3, 2016, in light of the Supreme Court's holding in Montgomery v. Louisiana , 84 U.S. 4063, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), that Miller applies retroactively. He also filed a Motion for Appointment of Sociologist and Psychologist and a Motion for Appointment of Competent Counsel for Re-Sentencing Hearing. After various hearing dates were re-set or continued, and Defendant filed two memoranda in support of his claims, the district court held a hearing on March 27, 2017. Defendant appeared with counsel; the hearing included his co-defendant Roderick Thomas, who is also his brother and other defendants from unrelated cases seeking to advance Miller claims. Ultimately, the district court re-sentenced him to life imprisonment with the possibility of parole pursuant to Montgomery .

FACTS

The underlying facts of the case have no bearing on the current appeal. As already stated, Defendant pled guilty to second degree murder in 1974.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find there are no possible errors patent regarding the legality of Defendant's sentence as raised and discussed in Assignment of Error Number One.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, Defendant argues the district court erred by failing to consider and rule upon issues he presented in his pro se motion to correct an illegal sentence, which relied upon the Miller ruling.

Although Defendant's original 1974 sentence included the possibility of parole after twenty years, a subsequent change in Louisiana law applied retroactively and ended his parole eligibility. The situation was explained in the following colloquy from the resentencing hearing:

BY MRS. AUGUSTINE:
Okay. Well, let's call him first. Frederick Thomas, Docket Number 131,695 .
(THE DEFENDANT WAS PERSONALLY PRESENT, TOGETHER WITH HIS ATTORNEY, MR. J. MARC LAMPERT.)
BY MRS. AUGUSTINE:
Mr. Thomas, after speaking to the Department of Corrections, you were sentenced, in 1974, to life with the possibility of parole up to twenty years. That sentence, as it now stands, though, is life without the possibility of parole. The law changed in 1976. So, based on your motion, you'd be here, today, to be granted parole eligibility.
BY THE DEFENDANT:
That's what my motion['s] about, for probably, you know, [to] correct a[n] illegal sentence.
BY MRS. AUGUSTINE:
Uh-huh.
BY THE DEFENDANT:
Uh-huh.
BY MRS. AUGUSTINE:
And that would be correcting the sentence of life without the possibility of parole. Okay.
BY THE DEFENDANT:
So I would like to object to that.
BY THE COURT:
Uh-huh. Mr. Lampert, you want to make an appearance?
BY MR. LAMPERT:
I've already discussed it with him. I think the, the relief that he wants is available to him today, though. I mean the best he can get is parole eligibility. I'm sure-
BY THE DEFENDANT:
It's not gonna get it the [sic] next verdict, huh, that response verdict? Your Honor, I, I filed for correct [sic] the (unintelligible) the next, next, next verdict.
BY MR. LAMPERT:
Okay. Sir, you don't have to accept-well, maybe you do have to accept. Do you want to decline this relief? If you want to decline this relief, on the record, after the Judge has offered you parole eligibility, do that. I don't know what else to tell you, sir.

Ultimately, the resentencing proceeded as follows:

BY THE COURT:
What was the offense, he said. What was your charge? That's what he's asking.
BY THE DEFENDANT:
Oh. Second degree murder. See, the motion I filed to correct illegal, you know, illegal-
BY THE COURT:
I know. And that's what I'm-that's what I'm here to do. But you're saying-
BY THE DEFENDANT:
Uh-huh.
BY THE COURT:
-now that you don't want it.
BY THE DEFENDANT:
Uh-huh.
BY THE COURT:
You filed the motion, but now you're saying you don't want the Court to grant you the relief that you asked for. So do you want it, or not? As it-
BY THE DEFENDANT:
(Unintelligible.)
BY THE COURT:
As it stands, you have life-
BY THE DEFENDANT:
Uh-huh.
BY THE COURT:
-with no possibility of parole.
BY THE DEFENDANT:
And what-
BY THE COURT:
That's what your sentence is, as of right now.
BY THE DEFENDANT:
I'll, I'll take parole. But I['d] just still like to put on I [sic] object to it. I'll take it, though.
BY THE COURT:
Okay, you objected to it. The State note-I mean, your, uh, the State notes the objection.
BY THE DEFENDANT:
What it is.
BY THE COURT:
The Court notes the objection, and the Court's going to correct your sentence. And you're going to waive the delay for sentencing?
BY MR. LAMPERT:
Yes, ma'am.
BY THE COURT:
Okay.
RE-SENTENCING
BY THE COURT:
The Court is going to sentence you to life, with the possibility of parole. Okay, thank you, sir. You can get-

Defendant complains that the court did not rule on his request to be sentenced to the next lesser offense, manslaughter, pursuant to jurisprudence that has not been overruled. Defendant notes that in State v. Craig , 340 So.2d 191, 193-194 (La.1976), the Louisiana Supreme Court responded to the United States Supreme Court's declaration that the mandatory death penalty was unconstitutional:

While we affirm Craig's conviction, we must remand for resentencing. In Roberts v. Louisiana , 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), the United States Supreme Court declared Louisiana's mandatory death penalty for first degree murder unconstitutional, because the jury is given no chance to consider aggravating or mitigating circumstances:
"The constitutional vice of mandatory death sentence statutes-lack of focus on the circumstances of the particular offense and the character and propensities of the offender-is not resolved by Louisiana's limitation of first-degree murder to various categories of killings. The diversity of circumstances presented in cases falling within the single category of killings during the commission of a specified felony, as well as the variety of possible offenders involved in such crimes, underscores the rigidity of Louisiana's enactment and its similarity to the North Carolina statute. Even the other more narrowly drawn categories of first-degree degree murder in the Louisiana law afford no meaningful opportunity for consideration of mitigating factors presented by the circumstances of the particular crime or by the attributes of the individual offender."
428 U.S. 325, at page 333, 96 S.Ct. 3001, at page 3006.
Louisiana's mandatory death penalty for aggravated rape suffers the same constitutional infirmities. The jury is given no opportunity to consider mitigating or aggravating circumstances. Therefore, the death penalty for aggravated rape is unconstitutional under Roberts v. Louisiana , supra.
The defendant has thus been convicted of a crime whose penalty has been declared unconstitutional. This problem is not a new one, however. After the United States Supreme Court decision in Furman v. Georgia , 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), which declared the death penalty as then applied unconstitutional, this court remanded murder and rape cases where death had been imposed for resentencing to life imprisonment. See e.g. State v. Franklin , 263 La. 344, 268 So.2d 249 (1972), a murder case; State v. Singleton , 263 La. 267, 268 So.2d 220 (1972), an aggravated rape case. The precedent for such action had been established in State v. Shaffer , 260 La. 605, 257 So.2d 121 (1971), where the problems were discussed, and State v. Duplessis , 260 La. 644, 257 So.2d 135 (1971), following the reversal by the United States Supreme Court of our judgment 'insofar as it imposes the death sentence' for a 'Witherspoon' violation. Duplessis v. Louisiana , 403 U.S. 946, 91 S.Ct. 2282, 29 L.Ed.2d 856 (1971).
However, a different situation exists now than at the time of Franklin and Singleton, supra . At the time those cases were decided, C.Cr.P. 814 provided for a responsive verdict of "guilty without capital punishment" for murder and aggravated rape. C.Cr.P. 817, at that time, also authorized the "qualified" verdict of "guilty without capital punishment," in which case the sentence would be life imprisonment. Thus, reasoning that the responsive verdict of guilty without capital punishment was the next authorized verdict for the crime, we remanded for resentencing as if that verdict has been returned, and, under C.Cr.P. 817, life imprisonment was called for.
The situation has changed. In an attempt to overcome Furman's objections to the death penalty, the legislature amended the murder statute to provide for first and second degree murder, making death mandatory for first degree murder. Likewise, the death penalty for aggravated rape was mandatory. To accomplish this, the legislature amended C.Cr.P. 814 to do away with the responsive verdict of "guilty without capital punishment" for first degree murder and aggravated rape. Thus, at the time this crime was committed, November 26, 1974, the only responsive verdicts to a charge of aggravated rape were guilty; guilty of attempted aggravated rape; guilty of simple rape; not guilty. Additionally, C.Cr.P. 817 was amended to delete the provision authorizing the qualifying verdict "guilty without capital punishment." Thus there is no longer any authority for us to remand an aggravated rape case for resentencing to life.
At the time (November 26, 1974) this crime was committed, attempted aggravated rape was punishable by imprisonment for not more than twenty years. R.S. 14:27 D(1). Simple rape carried a penalty of one to twenty years. R.S. 14:43. Thus, following the reasoning of Franklin and Singleton , supra, we remand this case for resentencing of defendant to the most serious penalty for the next lesser included offense. The legislature obviously intended to impose the most serious penalty available under the law. In this case, although there is a range of from one to twenty years, the most serious penalty is twenty years at hard labor.

Although he indicates that Craig has not been overruled, Defendant acknowledges the more recent supreme court ruling in State v. Shaffer , 11-1756 (La. 11/23/11), 77 So.3d 939, 941-42 (footnote omitted) , which rejected a similar request for relief:

In light of these commutation provisos, and the difficulty of obtaining commutation of sentence in this state, ... relators argue that even those life sentences which by express terms do not preclude parole eligibility for inmates who committed non-homicide crimes when they were juveniles are directly governed by Graham [v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) ]. Drawing on prior jurisprudence of this Court, they further argue that the appropriate remedy is to resentence them according to the penalties provided for the next lesser and included responsive verdict of attempted aggravated rape.
We agree with relators that Louisiana must comply with the Graham decision but reject their proposed solution.
....
We therefore amend the sentence of relator Dyer to delete the restriction on parole eligibility.

See also State v. Leason , 11-1757 (La. 11/23/11), 77 So.3d 933. As the State points out, Defendant acknowledges in his sixth footnote that a number of appellate courts have also rejected the type of argument set forth by Defendant.

Defendant in the present case alternatively argues that he should be released on probation. However, he acknowledges the La.Code Crim.P. art. 893 does not allow for suspension of a sentence after a defendant has begun to serve it. Also, he recognizes an analogous supreme court case that did not allow probation to the defendant. State v. Thomas , 07-634 (La. 1/11/08), 972 So.2d 323. Defendant relies on the dissent in Thomas .

The State ultimately argues that Defendant's assertions are ineffectual because the sole relief necessary to comply with Miller is the availability of parole. In support, the State cites a discussion by this court:

The Attorney General also argues that the argument raised by Defendant-the mere possibility of parole is not sufficient to satisfy Miller - has already been rejected in principle by the Louisiana Supreme Court. In State v. Shaffer , 11-1756 (La.11/23/11), 77 So.3d 939, the supreme court addressed the United States Supreme Court case of Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), in which the Supreme Court held that a juvenile who commits a non-homicide offense cannot be sentenced to life without parole. After the Graham decision, Louisiana defendants who had been convicted of aggravated rapes committed when they were under the age of eighteen sought to have their life sentences set aside and to be resentenced. Shaffer , 77 So.3d 939. Rather than remand for resentencing, the Louisiana Supreme Court simply amended the life sentences to delete the restriction on parole eligibility. Id. The supreme court clarified its holding as follows:
We reiterate that this Court is not ordering relators released on parole. The determination of whether relators may be released on parole falls within the exclusive purview of the Board of Parole, charged with the duty of ordering parole "only for the best interest of society, not as an award of clemency." La. R.S. 15:574.4.1(B). Access to the Board's consideration will satisfy the mandate of Graham .
Id. at 943.
In his brief, the Attorney General argues that he fails to see how life with the possibility of parole is a permissible alternative for juveniles who have committed non-homicide offenses but is not a permissible alternative for juveniles who have committed homicide offenses. We agree. Under Graham , a juvenile who commits a offense punishable by life imprisonment must be eligible for parole. Graham , 560 U.S. 48, 130 S.Ct. 2011. However, as the Louisiana Supreme Court held in Shaffer , the juvenile may not be released on parole unless the Board of Parole decides to release him. Shaffer , 77 So.3d 939. Thus, in reality, a juvenile who commits a non-homicide offense punishable by life in Louisiana is only promised the possibility of being released on parole. It stands to reason that a juvenile who commits a homicide offense punishable by life imprisonment should be granted no greater relief. As the Attorney General points out, if the mere possibility of being released on parole is sufficient to satisfy the mandatory parole eligibility established in Graham for juvenile non-homicide offenders, the mere possibility of being released on parole is more than sufficient to satisfy the chance of parole eligibility after a hearing established in Miller for juvenile homicide offenders. As the Louisiana Supreme Court held in Shaffer regarding Graham , the mere access to the Board of Parole's consideration satisfies the mandates of Miller .

State v. Doise , 15-713, pp. 9-10 (La.App. 3 Cir. 2/24/16), 185 So.3d 335, 342, writ denied , 16-546 (La. 3/13/17), 216 So.3d 808 ; State v. Sumler , 51,324 (La.App. 2 Cir. 5/2/17), 219 So.3d 503.

The State is correct in asserting that access to parole satisfies the dictates of Miller . Defendant relies on Craig , an older case that is not specific to Miller -related jurisprudence, the dissent in Thomas , and a federal appellate case, United States v. Under Seal , 819 F.3d 715 (4th Cir. 2016), while acknowledging that Louisiana jurisprudence discussing Miller is not in his favor.

We further note that La.Code Crim.P. art. 878.1 was amended by 2017 La. Acts No. 277, § 1, and provides in pertinent part:

B....
(2) If an offender was indicted prior to August 1, 2017, for the crime of first degree murder ( R.S. 14:30 ) or second degree murder ( R.S. 14:30.1 ) where the offender was under the age of eighteen years at the time of the commission of the offense and a hearing was held pursuant to this Article prior to August 1, 2017, the following shall apply:
(a) If the court determined at the hearing that was held prior to August 1, 2017, that the offender's sentence shall be imposed with parole eligibility, the offender shall be eligible for parole pursuant to R.S. 15:574.4(G).
....
D. The sole purpose of the hearing is to determine whether the sentence shall be imposed with or without parole eligibility. The court shall state for the record the considerations taken into account and the factual basis for its determination. Sentences imposed without parole eligibility and determinations that an offender is not entitled to parole eligibility should normally be reserved for the worst offenders and the worst cases.

Louisiana Revised Statutes 15:574.4 was also amended by 2017 La. Acts No. 277, § 2, and provides in pertinent part:

G. (1) Notwithstanding any provision of law to the contrary, any person serving a sentence of life imprisonment for a conviction of first degree murder ( R.S. 14:30 ) or second degree murder ( R.S. 14:30.1 ) who was under the age of eighteen years at the time of the commission of the offense and whose indictment for the offense was prior to August 1, 2017, shall be eligible for parole consideration pursuant to the provisions of this Subsection if a judicial determination has been made that the person is entitled to parole eligibility pursuant to Code of Criminal Procedure Article 878.1(B) and all of the following conditions have been met[.]

The 2017 amendments to La.Code Crim.P. art. 878.1 and La.R.S. 15:574.4 by the Louisiana Legislature effectively ratified the decision of the district court in the present case.

For the reasons discussed, Defendant's assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, Defendant goes into more detail regarding the merits of the claims discussed in the first assignment and also argues that the district court should have conducted a hearing on his resentencing claims in light of Miller . The State responds that there is no need for a Miller -related hearing, as the State does not contest that he is entitled to parole. Further, Defendant has access to parole and as just discussed in the first assignment, such access satisfies the dictates of Miller . The States engages in further discussion of the issue, but we find it is not necessary. In view of the principle just stated and the jurisprudence discussed in the previous assignment of error, we find that this assignment lacks merit.

CONCLUSION

Defendant's sentence is affirmed.

AFFIRMED.

      Some portions of Shaffer have been modified by amendments to La.R.S. 15:574.4. However, the conclusion that parole eligibility satisfies Graham is intact. State v. Hedgespeth , 47,523 (La.App. 2 Cir. 11/14/12), 107 So.3d 743, writ denied , 12-2594 (La. 5/3/13), 113 So.3d 210.


source: Caselaw Access Project

author: KEATY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Fahim A. SHAIKH
    15-687
    Court of Appeal of Louisiana, Third Circuit.
    December 6, 2017
    Annette Fuller Roach, Louisiana Appellate Project, Post Office Box 1747, Lake Charles, Louisiana 70602-1747, (337) 436-2900, Counsel for Defendant/Appellant: Fahim A. Shaikh
    James R. Lestage, District Attorney, Richard A. Morton, First Assistant District Attorney, Thirty-Sixth Judicial District, Post Office Box 99, DeRidder, Louisiana 70634, (337) 463-5578, Counsel for Appellee: State of Louisiana
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.
   KEATY, Judge.

As a result of the remand from the supreme court in State v. Shaikh , 16-750 (La. 10/18/17), 236 So.3d 1206, 2017 WL 4681359, we consider Defendant's pretermitted claim regarding his allegedly excessive sentence arising from his conviction for indecent behavior with a juvenile. For the following reasons, Defendant's sentence for indecent behavior with a juvenile is vacated, and the case is remanded to the trial court for resentencing.

FACTS AND PROCEDURAL BACKGROUND

This court is familiar with the factual background in this case in light of State v. Shaikh , 15-687 (La.App. 3 Cir. 3/23/16), 188 So.3d 409. As the facts have not materially changed since that opinion, we adopt the facts set forth therein by reference as though set forth in full herein:

In this criminal matter, the thirteen-year-old victim, A.G.,1 was at her house on the morning of April 17, 2014, when her mother, Mitzi Gormanous, left with her older daughter and grandson to go shopping. A.G. did not go shopping because she was punished for inappropriate behavior. When they returned approximately an hour and a half later, A.G. was gone. This was the second time that A.G. had run away according to her mother, and following a brief search, Gormanous called the sheriff's office and reported A.G. as a runaway. A.G. was found later that day when she went to the sheriff's station with Mrs. Judith Knox.
Mrs. Knox was the grandmother of her friend, Alexis Knox, and with whom Alexis lived. A.G.'s trial testimony indicates that on the morning in question, she planned on running away to Alexis's house. As such, she packed a bag with her clothes and began walking towards her destination. As she was walking, Shaikh, who was driving his car, stopped and asked A.G. if she needed a ride. A.G. obliged and asked to be taken to Alexis's house. Since Alexis was not going to be home until later that day, Shaikh and A.G. went to the Dairy Queen drive-through to get food, went to Shaikh's friend's apartment, ran other errands, and finally ended up at Alexis's house. A.G. alleged that during this time, Shaikh kissed her cheek, tickled her, slapped her butt, and professed his love for her.
As a result, Shaikh was charged on June 12, 2014 with one count of simple kidnapping, a violation of La.R.S. 14:45, and one count of indecent behavior with a juvenile, a violation of La.R.S. 14:81. Following a three-day jury trial which began on February 23, 2014, Shaikh was convicted as charged. Shaikh subsequently filed a Motion for New Trial and a Motion for Post-Verdict Judgment of Acquittal Pursuant to Code of Criminal Procedure Article 821, which the trial court summarily denied on April 2, 2014.
On April 13, 2014, Shaikh was sentenced to five years, with two years suspended, on the simple kidnapping conviction. As to the indecent behavior with a juvenile conviction, he was sentenced to seven years with three years suspended. Both sentences were ordered to be served concurrently with Shaikh receiving credit for time served, for a total of four years of incarceration and five years of supervised probation upon release. He was also ordered to pay a fine of $2,500 on each count, plus court costs. The general conditions of probation were ordered, along with $500 to be paid to the Criminal Court Fund, $300 for cost of prosecution, and $300 to the Public Defender's Fund. The fines, fees, and costs were ordered by the trial court to be paid on a twenty-four month payment plan. Shaikh subsequently filed a Motion to Reconsider Sentence which was denied by the trial court on May 4, 2015.
1 The victim's initials are used to protect the victim's identity as required by La.R.S. 46:1844(W).

State v. Shaikh , 188 So.3d at 412.

Defendant perfected a timely appeal, following which this court vacated his conviction and sentence for indecent behavior with a juvenile, finding that there lacked sufficient evidence. State v. Shaikh , 188 So.3d 409. We further held that Defendant's sentence arising from his conviction for simple kidnapping was constitutionally excessive and, as such, vacated the sentence and remanded the matter to the trial court for resentencing. Id. The supreme court subsequently reinstated Defendant's conviction for indecent behavior with a juvenile as well as reinstated his sentence for simple kidnapping, as originally imposed. State v. Shaikh , 236 So.3d 1206. It remanded the matter to this court to address Defendant's pretermitted claim that the maximum sentence imposed on his conviction for indecent behavior with a juvenile is constitutionally excessive. Id. We now address the pretermitted claim.

DISCUSSION

Defendant contends that the maximum sentence imposed on his conviction for indecent behavior with a juvenile is excessive considering the circumstances of the case and because he is a first-time felony offender. He argues that maximum sentences, even if imposed concurrently, are reserved for the most serious of offenses and the worst offenders.

In this case, Defendant was convicted of indecent behavior with a juvenile, a violation of La.R.S. 14:81, which provides for a sentencing range of imprisonment of not more than seven years, with or without hard labor. La.R.S. 14:81(H)(1). He was also convicted of simple kidnapping, a violation of La.R.S. 14:45, which provides for a range of imprisonment of not more than five years, with or without hard labor. La.R.S. 14:45(B). Defendant received the maximum sentence for each offense.

With regard to the maximum sentence imposed on the conviction for indecent behavior with a juvenile, the trial court noted at the sentencing hearing that Defendant had no criminal history. It further discussed the range of punishment for the offenses of which Defendant was convicted, as follows:

Well, let me dispel that situation. I do not find the evidence-I do not find that that version of events is what happened on this occasion. I heard all of the evidence, and I do not feel that Mr. Shaikh thought that this was a traveling salesperson. I believe that more likely the situation that was described is that Mr. Shaikh saw this young girl walking down the side of the road and made an intentional decision to turn around.
And, thankfully for this young lady, Mr. Shaikh is a very meek and mild-mannered person who only took this as far as the young victim allowed it to go. And my belief is that it would have gone, on the other hand, as far as-Mr. Shaikh would have taken this as far as the young victim would have allowed it to go.
Now, I'm not going to sentence Mr. Shaikh based upon what he might have done or what he could have done. He was convicted of these two charges based upon the evidence that was presented; and so I'm going to sentence him based upon what he did do, not what he might have done. And I do not believe that that merits the maximum penalty of two maximum sentences run consecutive. It certainly deserves punishment, lengthy prison sentences, to make sure that it doesn't happen again and that Mr. Shaikh understands that this kind of conduct is unacceptable.

The trial court imposed the maximum sentence of seven years' imprisonment at hard labor, with three years of Defendant's sentence suspended, on his conviction for indecent behavior with a juvenile.

While discussing a maximum sentence imposed on a conviction for indecent behavior with a juvenile, this court in State v. Whatley , 06-316, pp. 4-5 (La.App. 3 Cir. 11/2/06), 943 So.2d 601, 605, writ denied , 06-2826 (La. 8/31/07), 962 So.2d 424, noted:

The initial seven-year sentence was the maximum incarceration sentence that could be imposed for the offense of indecent behavior with a juvenile. La.R.S. 14:81(C). In vacating that sentence in [State v. ] Whatley I , [03-1275 (La.App. 3 Cir. 3/3/04), 867 So.2d 955 ], we set out the standard of appellate review of a claim for excessive sentence as follows:
The Eighth Amendment to the United States Constitution and La. Const. art. I, § 20 prohibit the imposition of cruel or excessive punishment. " '[T]he excessiveness of a sentence becomes a question of law reviewable under the appellate jurisdiction of this court.' " State v. Dorthey , 623 So.2d 1276, 1280 (La.1993) (quoting State v. Sepulvado , 367 So.2d 762, 764 (La.1979) ). Still, the trial court is given wide discretion in imposing a sentence, and, absent a manifest abuse of that discretion, we will not deem as excessive a sentence imposed within statutory limits.
State v. Pyke , 95-919 (La.App. 3 Cir. 3/6/96), 670 So.2d 713. However, "[m]aximum sentences are reserved for the most serious violations and the worst offenders." State v. Farhood , 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225. The only relevant question for us to consider on review is not whether another sentence would be more appropriate, but whether the trial court abused its broad discretion in sentencing a defendant. State v. Cook , 95-2784 (La. 5/31/96), 674 So.2d 957, cert. denied , 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
The fifth circuit, in [State v .] Lisotta , [98-648 (La.App. 5 Cir. 12/16/98),] 726 So.2d [57] at 58, [writ denied , 99-433 (La. 6/25/99), 745 So.2d 1183,] stated that the reviewing court should consider three factors in reviewing the trial court's sentencing discretion:
1. The nature of the crime,
2. The nature and background of the offender, and
3. The sentence imposed for similar crimes by the same court and other courts.

Whatley , 867 So.2d at 958-59 (first two alterations in original).

In Whatley I , 867 So.2d 955, this court vacated the defendant's maximum seven-year sentence based upon its finding that it was excessive. On remand, the trial court sentenced the defendant to five years' imprisonment at hard labor, with eighteen months suspended. State v. Whatley , 943 So.2d 601. In subsequent appeals, the defendant claimed the sentence was excessive. Id. ; State v. Whatley , 04-724 (La.App. 3 Cir. 12/8/04), 888 So.2d 1166 (unpublished opinion) (" Whatley II "); State v. Whatley , 05-221 (La.App. 3 Cir. 12/30/05), 918 So.2d 1218 (unpublished opinion) (" Whatley III "). The matter was remanded back to the trial court on technical errors without getting to the merits of whether the sentence was excessive. State v. Whatley , 943 So.2d 601. In Whatley , 943 So.2d 601, this court finally addressed the merits of whether the imposition of a five-year sentence with eighteen months suspended was excessive. This court, discussing the Lisotta factors, stated:

The offense of indecent behavior with a juvenile is a heinous crime. It involves the use of innocent children to satisfy the sexual desires of an adult and requires the commission of a "lewd or lascivious act" upon, or in the presence of the child. La.R.S. 14:81. In this case, the defendant fondled the victim's breasts and buttocks. Clearly, society finds such activity inexcusable. Still, the legislature has seen fit to limit the incarceration penalty to a maximum of seven years at hard labor, and as previously stated, the maximum penalty is reserved for the worst offenders. Farhood , 844 So.2d 217.
The Defendant was fifty-three years old at the time of the offense and apparently had led a crime-free life. While the evidence indicates that he did use some physical restraint of the victim, the offense entailed no physical violence. Additionally, despite the clear opportunity to do so, the defendant did not attempt to press his physical and timing advantage on his victim. Instead, after she rebuffed his advances, he left. The nature of the Defendant's touching, although inexcusable, is not compatible with the degree of touching associated with those cases in which the courts have chosen to render a maximum sentence.
In this case, the trial court "considered deeply the psychological impact" the defendant's actions had on the victim. However, the record reflects that the victim admitted that she was already "somewhat depressed" at the time of the incident because of the recent deaths of her great-grandmother, uncle, and a close family friend. In fact, the victim had seen a physician in April of 2002, or two months before the offense, for "depressive behavior."
Id. at 959.
In concluding that the Defendant's offense did not warrant a maximum sentence, we considered a number of decisions upholding maximum or near-maximum sentences imposed on an individual convicted of indecent behavior with a juvenile and concluded that the acts justifying those sentences were far more severe than the acts supporting the Defendant's conviction.
We supplemented this list in Whatley II with cases involving sex crimes against a child wherein the sentences ranged from five years at hard labor to one and one-half years at hard labor. All of these cases also included acts far more severe than those supporting the Defendant's conviction. Additionally, we made the following comment concerning the trial court's obligation in resentencing the defendant:
Because we vacate the sentence in its entirety, the trial court is not bound to merely correct the restitution error and resentence the defendant to the same five-year sentence. Instead, the trial court is free to formulate a sentence that is consistent with the prior instructions of this court.... If the trial court concludes that an incarceration sentence is applicable, it should consider the factual situations in the cases cited in Whatley , 867 So.2d 955, and compare the sentences imposed in those matters to the undisputed facts of this litigation.
Whatley , 05-0221, p. 3 (La.App. 3 Cir. 12/30/05), 918 So.2d 1218.

Whatley , 943 So.2d at 605-07 (footnotes omitted).

In Whatley I , 867 So.2d at 958, this court set out cases where the maximum sentences were imposed on convictions for indecent behavior with a juvenile, as follows:

A review of the jurisprudence of this state establishes that numerous decisions have been rendered upholding maximum or near-maximum sentences imposed on individuals convicted of a single count of indecent behavior with a juvenile. However, each of these cases contain factual elements significantly different from the matter before us. See State v. Delgado , 03-46 (La.App. 3 Cir. 4/30/03), 845 So.2d 581 (upholding a near-maximum sentence where a twenty-one-year-old second felony offender was found naked in bed with a thirteen-year-old victim); State v. Kirsch , 02-0993 (La.App. 1 Cir. 12/20/02), 836 So.2d 390 (upholding a maximum sentence where a neighbor and close family friend exposed the eight-year-old victim to sexually explicit material and comments, removed her clothes and viewed her "private parts," and touched her vaginal area through her clothing), writ denied , 03-0238 (La. 9/5/03), 852 So.2d 1024 ; State v. Jordan , 98-101 (La.App. 3 Cir. 6/3/98), 716 So.2d 36 (upholding a maximum sentence where a sixty-nine-year-old wheelchair bound man originally charged with aggravated oral sexual battery and aggravated crimes against nature of a three-year-old neighbor benefitted from a plea bargain); State v. Lisotta , 98-646 [98-648] (La.App. 5 Cir. 12/16/98), 726 So.2d 57 (upholding a near maximum sentence where a teacher played pornographic movies for his sixteen-year-old-victim and, on one occasion, removed her clothing, inserted his fingers in her vagina, and told her he was going to have sex with her), writ denied , 99-0433 (La. 6/25/99), 745 So.2d 1183 ; State v. Armstrong , 29,942 (La.App. 2 Cir. 10/29/97), 701 So.2d 1350(upholding a maximum sentence where a step-grandfather fondled a nine-year-old victim on two separate occasions as she visited in his home).

In this case, there was no evidence that Defendant had a criminal history during the fifteen years he resided in the United States, nor was there testimony that he used any physical restraint or made any attempt to press his physical advantage on the victim. Although there was touching, a pat on the buttocks, a kiss on the cheek, and tickling, the degree of touching was not comparable with the touching in the above cited cases wherein the courts imposed a maximum sentence. Furthermore, there was no testimony indicating that the victim suffered any great psychological injury. In the hour-long videotaped statement given by the victim, she briefly told the interviewer about her afternoon with Defendant. She spent the remainder of the interview discussing her boyfriend. As such, we find that the trial court abused its discretion when it imposed the maximum sentence regarding Defendant's conviction for indecent behavior with a juvenile. We remand the matter to the trial court to render a sentence on the conviction for indecent behavior with a juvenile in conjunction with the Lisotta factors set out above.

DECREE

The sentence imposed on Defendant, Fahim A. Shaikh, for his conviction of indecent behavior with a juvenile is constitutionally excessive. We vacate his sentence and remand the matter to the trial court for resentencing in accordance with this opinion.

VACATED AND REMANDED.


author: PERRET, Judge.

text:
    Calvin Paul WILLIAMS v. Vincent ALEXANDER
    CA 17-436, CA 17-437
    Court of Appeal of Louisiana, Third Circuit.
    December 6, 2017
    Randy M. Guidry, Durio, McGoffin, Stagg & Ackermann, P.O. Box 51308, Lafayette, LA 70505, (337) 233-0300, COUNSEL FOR APPELLANT: Vincent Alexander
    Calvin Paul Williams, 417 Martin St., Breaux Bridge, LA 70517, (404) 823-7348, APPELLEE, In Proper Person
    Court composed of Elizabeth A. Pickett, John E. Conery, and Candyce G. Perret, Judges.
   PERRET, Judge.

This appeal involves two consolidated cases regarding a construction contract. The contractor, Calvin Paul Williams (Mr. Williams), filed a Statement of Claims asserting he is owed money by Vincent Alexander (Mr. Alexander) for work he performed under a construction contract. Mr. Alexander denied any money was owed and, instead, filed suit seeking money damages for breach of contract. The trial court rendered judgment in favor of Mr. Williams for $1,125.00 with legal interest from date of judicial demand plus all costs of the proceedings, and dismissed the suit filed by Mr. Alexander. Mr. Alexander now appeals. Mr. Williams did not answer the appeal. Finding no manifest error, we affirm.

ISSUE FOR REVIEW

This court must decide whether the trial court erred in finding that Mr. Williams performed the construction contract in a good, workmanlike manner, free from defects in either materials or workmanship and thus was entitled to payment per the contract.

FACTUAL AND PROCEDURAL HISTORY

Appellant, Mr. Alexander, entered into a contract with appellee, Mr. Williams on June 13, 2016, to perform certain repairs to a building located at 360 Cannery Road, Breaux Bridge, Louisiana. The construction contract included carpentry, electrical, and plumbing work. The agreed upon price for the work was $2,750.00. Mr. Alexander partially paid Mr. Williams in advance for the work.

Subsequently, Mr. Williams contends that he completed the work pursuant to the agreement. However, Mr. Alexander alleges that Mr. Williams' work was sub-par and incomplete.

After becoming dissatisfied with the work, Mr. Alexander consulted and hired other contractors to repair the defects. At the time, Mr. Alexander had partially paid Mr. Williams up front for the job, but stopped payment on the final check for the amount of $1,150.00 when he became dissatisfied with Mr. Williams's work.

Mr. Williams thereafter filed a Statement of Claim and Citation alleging the work for which he was hired was completed, yet full payment had not been made. Mr. Williams asserts that he was hired to provide installation and electrical work for Mr. Alexander. Mr. Williams states that, after completing the work requested, Mr. Alexander checked the work and wrote him a check for the remainder of the amount owed under the contract. However, a stop payment was later issued on this check by Mr. Alexander. In support of his claim, Mr. Williams attached the purchase order for the work.

Likewise, Mr. Alexander also filed suit seeking money damages for breach of contract. Mr. Alexander alleges that Mr. Williams's workmanship was faulty, requiring him to hire other contractors to finish and fix the work Mr. Williams was originally hired to do. Consequently, Mr. Alexander claims he incurred additional costs to repair the problems caused by Mr. Williams's faulty work.

Mr. Alexander requested and the court agreed to consolidate both suits.

At the trial, both parties presented their claims pro se. There is no dispute that Mr. Williams and Mr. Alexander entered into a contract for contractor work. The testimony evidenced an agreement between the parties for certain work to be performed for the amount of $2,750.00. The work agreed upon was detailed in a purchase order and included: the installation of a three compartment sink, relocation of a washer and dryer hook up, installation of an electric hook up for a stove, installation of a long neck hood for a stove, installation of a receptacle for a stove, installation of a small sink and wash tub, relocation of the hot water tank, closure of a door, relocation of a door, and closure of the previous door opening.

Mr. Williams testified all the appliances were provided by Mr. Alexander, including the stove hood. Mr. Williams agreed to install a long neck hood, however, Mr. Alexander provided him with a hood that is installed under a cabinet. Mr. Williams testified the long neck hood was necessary because cabinet doors would not open due to a beam that was in the way. Mr. Williams also testified he did not place the receptacle box for the hot water heater up top where Mr. Alexander wanted it because he could not do so safely. Instead, he put the receptacle box lower, where it would not be near a sink, causing a safety hazard. Mr. Williams testified he completed all the tasks required of him in the contract. Mr. Williams introduced the purchase orders he and Mr. Alexander agreed on, as well as blueprints showing the location of the washer and dryer, the sink, and the type of stove hood to be installed.

Mr. Alexander presented testimony from Larry Carmouche, a contractor he hired after Mr. Williams. Mr. Carmouche testified he refinished sheetrock work, screwed a three compartment sink into the wall so it would be sturdier, and closed a hole or window opening with vinyl sheeting for Mr. Alexander. Although Mr. Alexander alleges Mr. Williams failed to install the three compartment sink, Mr. Carmouche testified the three compartment sink was already installed when he arrived. Mr. Carmouche further testified he did not see any leakage from the sink. Mr. Carmouche did testify that the cabinets above the stove hood would not open because of a beam. Therefore, Mr. Carmouche lowered the cabinets so the doors would open. Mr. Carmouche also testified the door installed by Mr. Williams was operable, it would open and close, but it appeared to be leaning slightly. Mr. Carmouche was not asked to fix the door.

Mr. Alexander also presented Ozer Alexander, an electrician who worked on the property after Mr. Williams. Mr. Ozer testified the water heater plug was too low and, with the tank was against the wall, the receptacle box could not be reached where it was currently located. Mr. Ozer also testified the stove required a four-wire plug but only a three-wire plug was installed. The four prong receptacle for the stove was acceptable, but the wire, a three prong wire, was not acceptable. Mr. Ozer also testified the dryer could not be plugged in because the vent dryer duct was in the way. The hole for that duct was also larger than the duct.

Mr. Alexander next presented Francis Alexander, a plumber. Mr. Francis testified the work Mr. Williams completed would have worked, but that there were leaks from the sink faucet. Mr. Francis also testified the drain was not properly connected; therefore, the water would drain on the floor. Mr. Francis estimated the fix would be twenty-five dollars ($25.00).

On October 10, 2016, the trial court ultimately ruled in favor of Mr. Williams in open court, finding Mr. Williams completed the work required of him by the contract in an operational manner, although the work may not have been performed to a high standard, comparing Mr. Williams's work to a "Volkswagen" rather than a "Cadillac." The trial court pointed out that there were no conditions or standards specified in the contract other than the work was to be performed. The trial court also deducted $25.00 from Mr. Williams's contract price for the cost of fixing the improperly installed drain. The trial court's judgment was reduced to writing and signed on October 24, 2016. Mr. Alexander now appeals.

STANDARD OF REVIEW

On appeal, the trial court's factual findings in a breach of contract claim are reviewed under the manifest error or clearly wrong standard of review. See Maxwell v. Cayse , 10-680 (La.App. 3 Cir. 12/8/10), 54 So.3d 118. Under the manifest error standard, the trial court's factual findings should not be set aside unless they are clearly wrong or manifestly erroneous. Rosell v. ESCO , 549 So.2d 840 (La.1989) ; McCorvey v. McCorvey , 05-889 (La.App. 3 Cir. 2/1/06), 922 So.2d 694, writ denied , 06-435 (La. 4/28/06), 927 So.2d 295 ; Maxwell , 54 So.3d 118. Therefore the appellate court must only consider whether the fact finder's conclusion was reasonable. Maxwell , 54 So.3d 118.

LAW AND DISCUSSION

A contract involving work to be done on the owner's premises is a building contract within the definition of Louisiana Civil Code Article 2756. Martin v. AAA Brick Co., Inc. , 386 So.2d 987 (La.App. 3 Cir. 1980). "It is implied in every building contract that the work of the builder be performed in a good workmanlike manner, free from defect either in material or workmanship." Martin , 386 So.2d at 990 (quoting Neel v. O'Quinn , 313 So.2d 286, 289 (La.App. 3 Cir.), writ denied , 319 So.2d 440 (La.1975) ). A contractor is liable for damages to an owner only if he fails to do the work he contracted to do, or if he fails to execute the work in the manner and at the time he agreed to perform it. La.Civ.Code art. 2769. This provision has been interpreted to mean that, "when a contractor has 'substantially performed' a building contract, even though certain defects are present, he is entitled to recover the contract price, and the owner is relegated to having the price reduced by the amount necessary to perfect or complete the work, i.e., damages attributable to the breach." Martin , 386 So.2d at 990 (quoting Neel , 313 So.2d at 290 ). This court has defined substantial performance as meaning "the construction is fit for the purposes intended despite the deficiencies; this is a question of fact for the trial judge." Maxwell , 54 So.3d at 121.

The burden of proving the defects, and that the defects are due to faulty materials or workmanship, is on the owner. Maxwell , 54 So.3d 118. If the owner successfully carries his burden of proof, the owner is entitled to the cost of repairs necessary to remedy the defect. Id. "The remedy is to reduce the contract price in an amount necessary to complete the work or to correct the defective work according to the terms of the contract." Id. at 121.

In Maxwell , this court found no error in the trial court's finding that the contractor was entitled to the amounts already received for installing cabinets. Although there were cosmetic issues with the cabinets, this court explained, "The trial court found that the cabinets were fit for their intended use, despite their defects, based on the fact that Mr. Cayse is currently using them ...." Id. at 122. Therefore, despite the faults, this court could not justify giving the owner the cabinets for free. Although this court reviewed expert testimony that the cabinets could not be saved and would fall off the walls with dishware, this court noted the photographs entered into evidence showed the cabinets holding dishware. This court summarized the remainder of the testimony: "The remainder of Mr. Cayse's witnesses and experts testified only that the work Mr. Maxwell performed was not to his usual degree of quality, or that the work was not up to their own high standards." Id. Therefore, this court could not say the trial court was manifestly erroneous in concluding the owner failed to prove the cabinets were so defective they should be demolished.

In the case at bar, the trial court heard Mr. Williams testify that he completed all tasks he was contracted to do, noting two deviations were made; one due to Mr. Alexander purchasing a different type of oven hood than agreed on, and the other, placing a receptacle in a lower location, due to what Mr. Williams perceived as a safety hazard.

While Mr. Alexander alleged Mr. Williams was required to put the oven vent through the roof, his own witness, Larry Carmouche testified he has seen an oven vented both ways, through the roof or into the attic. Mr. Alexander further asserted Mr. Williams failed to install a three compartment sink. However, his own witness, Mr. Carmouche, contradicted that allegation and testified the sink was installed when he arrived. Mr. Carmouche did testify the cabinet above the oven had to be lowered because a beam interfered with its opening, but Mr. Williams testified he specifically agreed to install a long neck vent for that reason. Mr. Alexander failed to provide a long neck vent for Mr. Williams to install.

Mr. Alexander's second witness, Ozer Alexander, testified the water heater and dryer plugs were simply hard to get to, not that they were improperly installed or did not work. Additionally, there was testimony presented regarding whether the stove receptacle should be a four or three wire prong, but that testimony was contradicted by Mr. Williams. The trial court's factual findings should not be set aside unless they are clearly wrong or manifestly erroneous. Rosell , 549 So.2d 840.

Finally, Mr. Alexander presented Francis Alexander as a plumber. Mr. Francis testified Mr. William's work was operational, with the exception of the drain that leaked onto the floor. Mr. Francis testified it would cost $25.00 to fix the leaking drain. The trial court deducted the cost of the $25.00 repair from Mr. William's contract.

The trial court recognized that while Mr. Alexander may be dissatisfied with Mr. Williams's work, the testimony and evidence presented proved only that Mr. Williams's work may not have been performed to the witnesses' high standards, referring to Mr. Williams's work as a "Volkswagen" not a "Cadillac." The evidence and testimony support the trial court's finding that Mr. Williams completed the work the parties agreed upon and that the work was operational. Furthermore, the trial court properly deducted the costs required to repair work that was deficient, i.e., the leaking drain, as Mr. Alexander is entitled to have the price reduced by the amount necessary to perfect or complete the work.

CONCLUSION

Based on the testimony presented and for the above reasons, this court cannot say the trial court was manifestly erroneous in its conclusions. The judgment is affirmed. Costs of this appeal are assessed to Appellant, Mr. Alexander.

AFFIRMED. This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules-Courts of Appeal, Rule 2-16.3.


author: SAUNDERS, Judge.

text:
    Heather DUPUIS v. AVOYELLES PARISH CORRECTIONAL CENTER
    WCA 17-999
    Court of Appeal of Louisiana, Third Circuit.
    December 13, 2017
    Randall C. Joy, The Joy Law Firm, 1070-B West Causeway Approach, Mandeville, Louisiana 70471, (985) 246-3197, COUNSEL FOR PLAINTIFF/APPELLEE: Heather Dupuis
    Donald Guidry, Jr., Assistant Attorney General, Louisiana Department of Justice, Post Office Box 1710, Alexandria, Louisiana 71309, (318) 487-5944, COUNSEL FOR DEFENDANT/APPELLANT: State of Louisiana through the Avoyelles Parish Correctional Center
    Court composed of John D. Saunders, Marc T. Amy, and Candyce G. Perret, Judges.
   SAUNDERS, Judge.

This court issued, sua sponte , a rule ordering the Defendant-Appellant, the State of Louisiana through the Avoyelles Parish Correctional Center, to show cause, by brief only, why the appeal in this case should not be dismissed for having been taken from a non-appealable, interlocutory judgment. For the reasons assigned, we hereby dismiss the appeal, but convert the appeal into an application for supervisory writ and consolidate this matter with the pending writ application bearing this court's docket number 17-1079.

This case involves a workers' compensation action which was filed by Plaintiff, Heather Dupuis. During the course and scope of her employment with Avoyelles Correctional Center, Plaintiff was allegedly verbally abused and physically threated by the warden, Nate Cain, on September 10, 2015. As a result of that incident, Plaintiff allegedly suffered anxiety, depression and increased blood pressure problems. Plaintiff began treating with her primary care physician, Dr. Lawrence Schneider, who diagnosed her with post-traumatic stress disorder on September 19, 2016.

On May 11, 2017, Plaintiff filed a Disputed Claim for Compensation Form LDOL-WC 1008 in the workers' compensation court. Defendant filed an exception of prescription asserting that Plaintiff's claim is prescribed under La.R.S. 23:1209(A)(1) because it was filed more than a year after the work-related incident. In opposition to the exception of prescription, Plaintiff argues that pursuant to La.R.S. 23:1209(A)(3), her workers' compensation claim was timely-filed because it was filed within one year of her initial diagnosis of a post-traumatic stress disorder and less than three years after the work-related incident.

Following a hearing held on August 21, 2017, the workers' compensation court denied Defendant's exception of prescription. A judgment to that effect was signed on September 11, 2017, and the notice of judgment was mailed on that same date. On September 13, 2017, Defendant filed a motion for appeal, and the order of appeal was signed on that same date. The instant appeal record was lodged in this court on October 26, 2017.

The September 11, 2017 judgment which is at issue in the instant appeal denies an exception of prescription. Because the judgment does not decide the merits of this case, it is interlocutory. La.Code Civ.P. art. 1841. On November 20, 2017, Defendant filed a response to this court's rule to show cause why the appeal should not be dismissed for having been taken from a non-appealable, interlocutory judgment. We note that Defendant does not dispute the fact that the September 11, 2017 judgment is an interlocutory judgment. Rather, Defendant moves to have this court convert the instant appeal to an application for supervisory writ.

However, we note that on November 21, 2017, Defendant filed with this court an application for supervisory writs, which was assigned this court's docket number 17-1079. By that writ application, Defendant seeks review of the same judgment that is at issue in the instant appeal. Thus, although we must dismiss the instant appeal, in the interest of justice, we deem motion and order for appeal in this matter to be timely request for the setting of a return date for the filing of a writ application. Therefore, we convert the instant matter into an application for supervisory writ and order this matter consolidated with this court's docket number 17-1079. Additionally, we note that Plaintiff has filed an answer to the appeal wherein she raises the sole issue of her entitlement to attorney's fees for work performed in connection with the appeal. However, as stated above, the judgment at issue will be reviewed via an application for supervisory writ, rather than via an appeal. Therefore, we hereby defer Plaintiff's request for attorney's fees to the merits of the writ application filed under this court's docket number 17-1079.

For the foregoing reasons, the instant appeal is hereby dismissed, converted into an application for supervisory writ, and consolidated with this court's docket number 17-1079.

APPEAL DISMISSED.

MOTION TO CONVERT APPEAL TO A WRIT GRANTED AND WRIT CONSOLIDATED WITH DOCKET NUMBER 17-1079. PLAINTIFF'S REQUEST FOR ATTORNEY'S FEES DEFERRED.


author: SAVOIE, Judge.

text:
    Linda M. SNAVELY, et al. v. ACE PAIN MANAGEMENT, LLC, et al.
    17-237
    Court of Appeal of Louisiana, Third Circuit.
    December 13, 2017
    Alan K. Breaud, Timothy W. Basden, Breaud & Meyers, 600 Jefferson Street, Suite 1101, Lafayette, LA 70502, (337) 266-2200, COUNSEL FOR DEFENDANTS/APPELLANTS: Ace Pain Management, LLC, Rice Medical Management, LLC, Margaret Rice, M.D., APMLLC, Margaret A. Rice, M.D., Stacey E. Singleton
    Joseph Lomax Jordan, Jr., Max Jordan, Lawyer, 1817 W. University Ave., Lafayette, LA 70506, (337) 233-9984, COUNSEL FOR PLAINTIFF/APPELLEE: Linda M. Snavely
    James H. Gibson, Charles M. Kreamer, Michael O. Adley, Allen & Gooch, 2000 Kaliste Saloom Rd, Ste. 400 (70508), P. O. Drawer 81129, Lafayette, LA 70598-1129, (337) 291-1000, COUNSEL FOR DEFENDANT/APPELLEE: J. Lomax Jordan, Jr.
    Court composed of Elizabeth A. Pickett, D. Kent Savoie, and Van H. Kyzar, Judges.
   SAVOIE, Judge.

Defendants appeal the trial court's order consolidating three motions for sanctions filed in three separate actions, as well as the trial court's denial on the merits of those actions. Plaintiff and her attorney assert an exception of prescription. For the following reasons, we grant the exception and dismiss Defendants' motions.

FACTUAL AND PROCEDURAL BACKGROUND

The parties herein have an extensive litigation history arising out of a 2010 motorcycle accident involving Brian Snavely and Brian's subsequent death on August 18, 2012.

Following the motorcycle accident, Brian initiated an action in the Fifteenth Judicial District Court for Lafayette Parish ("the Fifteenth JDC") against the parents of the minor driver of another vehicle involved in the accident, as well as the parents' insurer. This action was assigned to Division C before Judge Rubin and given docket number 11-0381 ("the motorcycle action").

Both prior to, and following the accident, Brian received pain management treatment from Dr. Margaret Rice. Approximately two years after Brian's death, Brian's mother, Linda Snavely, initiated three separate actions alleging that medical treatment provided by Dr. Rice and/or various related medical entities caused or contributed to Brian's death.

First, on June 26, 2014, Ms. Snavely sought to convene a medical review panel against Dr. Rice, Mr. Stacey Singleton, who was an accountant, as well as the following entities: Margaret A. Rice, APMLLC; Rice Medical Management, LLC; and Ace Pain Management, LLC ("the Rice Entities"). However, according to the Patient's Compensation Fund ("PCF"), only Dr. Rice was a qualified healthcare provider entitled to a medical review panel. Defendants sought a docket number from the Fifteenth JDC, and the matter was assigned to Division K before Judge Michot and given docket number 14-3917 (hereinafter "the PCF action"). On September 10, 2014, Dr. Rice filed an exception of prescription, and on October 27, 2014, the trial court granted the exception and dismissed the PCF action against Dr. Rice. This court affirmed that judgment. In Re: Professional Liability Claim of Snavely , 15-207 (La.App. 3 Cir. 11/4/15), 178 So.3d 614.

On October 21, 2014, Ms. Snavely sought and obtained leave to file an amended petition in the motorcycle action (docket no. 11-0381). Therein, she asserted medical malpractice and wrongful death claims against the Rice Entities and Mr. Singleton. Shortly after, the pending claims against the minor driver and the insurer were dismissed following a settlement. On February 9, 2015, Defendants asserted an exception of prescription, which the trial court granted on March 10, 2015, dismissing the medical malpractice and wrongful death claims. This court affirmed. Snavely v. Ace Pain Management, LLC , 15-684, 15-903 (La.App. 3 Cir. 2/3/16), 184 So.3d 871, writ denied , 16-425 (La. 4/22/16), 191 So.3d 1049.

Ms. Snavely separately filed a third action on October 21, 2014, also in the Fifteenth JDC, asserting medical malpractice claims against the Rice Entities, as well as Rice Urgent Care (hereinafter "the medical malpractice action"). The medical malpractice action was assigned to Division A before Judge Trahan and given docket number 14-5373. Defendants filed a prescription exception on January 30, 2015, and the trial court dismissed the action on prescription grounds on March 18, 2015. This court affirmed. Snavely , 184 So.3d 871.

On June 23, 2016, the Rice Entities and Mr. Singleton filed a motion in the motorcycle action (docket no. 11-0381) seeking the assessment of attorney fees as sanctions against Ms. Snavely and/or her attorney, J. Lomax Jordan, arguing that Ms. Snavely's attorney violated duties imposed by La.Code Civ.P. art. 863 by signing and filing multiple petitions alleging the same prescribed claim. Also on June 23, 2016, the Rice Entities and Rice Urgent Care filed a motion to assess attorney fees as sanctions in the medical malpractice action (docket no. 14-5373). Similarly, Dr. Rice filed a motion to assess attorney fees as sanctions in the PCF action (docket number 14-3917) on June 27, 2016, and a hearing was set for August 15, 2016.

On July 25, 2016, in the motorcycle action (docket no. 11-0381), Ms. Snavely filed a prescription exception, and other exceptions, arguing that the sanctions motions were untimely as they were filed after a final judgment had been rendered. She also filed a motion seeking to consolidate the motorcycle action with the PCF action and the medical malpractice action. Ms. Snavely's motion to consolidate was heard August 29, 2016. Following the hearing, the trial court granted the motion and signed an order consolidating the three matters. The order also denied the sanctions motions filed in the motorcycle action, the PCF action, and the medical malpractice action, stating that there was no violation of La.Code Civ.P. art. 863.

Defendants Dr. Rice, the Rice Entities, Rice Urgent Care, and Mr. Singleton have filed appeals in connection with each of the three trial court docket numbers, assigning as error the trial court's consolidation and dismissal of the three motions for sanctions. Those appeals have been consolidated in this court. Ms. Snavely has asserted a prescription exception in this court.

ANALYSIS

We first address the issue of whether Defendants' motions seeking attorney fees as sanctions under La.Code Civ.P. art. 863 were timely. Ms. Snavely has asserted a prescription exception in this court, which we may consider pursuant to La.Code Civ.P. art. 2163.

Louisiana Code of Civil Procedure article 863, which was derived from Fed.R.Civ.P. 11 and provides for sanctions for improper pleadings, "does not create a private cause of action, but is rather a remedial tool available to the court." Montalvo v. Sondes, 93-2813 (La. 5/23/94), n.6, 637 So.2d 127. In determining the timeliness of such motions, "we subscribe to the federal jurisprudence requiring that the motion be filed within a 'reasonable time frame,' one that affords the offending attorney an opportunity to defend his conduct and the court an opportunity to rectify it ". Frazer v. Bruscato , 34,021, p. 5 (La.App. 2 Cir. 11/1/00), 772 So.2d 293, 297. A sanctions motion under La.Code Civ.P. art. 863 is not the same as an action for malicious prosecution, and therefore, the requirement that the underlying litigation be complete prior to the filing of a malicious prosecution action is inapplicable to a sanctions motion. See Frazer, 772 So.2d 293 ; and In re Interdiction of Thomson , 602 So.2d 300 (La.App. 3 Cir.1992).

Frazer addressed the same issue that is currently before us; that is, whether a motion seeking sanctions under La.Code Civ.P. art. 863 was timely, when it was filed after the underlying action in which the allegedly offending pleading was filed had been dismissed, and after the dismissal was affirmed on appeal. The Frazer court affirmed the trial court's dismissal of the motion for sanctions pursuant to an exception of prescription, quoting favorably the trial court's reasoning, which we find persuasive:

In Mellon Bank Corp. v. First Union Real Est. Equity & Mortgage Inv. , 951 F.2d 1399 (3 Cir.1991), the court found that a [Fed.R.Civ.P.] 11 motion for sanctions filed nearly 2 ½ years after a suit was filed in federal court was untimely. The court also found that the motion was not filed in the trial court before the entry of a final judgment as required by supervisory rule of the U.S. Court of Appeals, 3d Circuit. In the instant suit there is no such court rule but the wisdom and purpose of the rule seems eviden[t] to this court. A motion to sanction filed in the trial court following completion of the trial and the appeal process raises at least two problematic issues. First, what authority does the trial court have to act after the jurisdiction of the trial court is divested by appeal? And secondly, and more relevant to the instant exception, can the purposes of Article 863 be effectively served after the underlying litigation is over?[ ]
The imposition of sanctions usually serves two main purposes: deterrence and compensation; encompassed within those objectives are the related subsidiary goals of punishing litigation abuse and facilitating case management. Navarro-Ayala v. Nunez , 968 F.2d 1421 (1st Cir.1992).

Id. , at 296.

We also find persuasive the following reasoning in Port Drum Co. v. Umphrey, 852 F.2d 148, 150 (5th Cir. 1988), wherein the federal court rejected an action seeking monetary damages under Fed.R.Civ.P. 11 for allegedly offending pleadings filed in a separate action:

[Federal Rule Civil Procedure] 11 is designed to regulate proceedings among parties already before the court in a particular case. And even as to such parties, the rule's primary purpose is to discourage groundless proceedings rather than to compensate wronged parties by means of affirmative relief. In expressing the unanimous view of this circuit, we have noted that " 'the imposition of sanctions pursuant to [Fed.R.Civ.P.] 11 is meant to deter attorneys from violating the rule. ' " Thomas v. Capital Sec. Services, Inc., 836 F.2d 866, 877 (5th Cir.1988) (en banc) (quoting Donaldson v. Clark, 819 F.2d 1551, 1556 (11th Cir.1987) (en banc)) (emphasis in this court's original). Thus, "the least severe sanction adequate to serve the purpose," rather than a sanction necessarily designed to compensate the wronged party fully, "should be imposed." [ Thomas, ] 836 F.2d at 878.
In this regard, Thomas suggests that the "least severe sanction" may often fall short of monetary compensation:
... What is 'appropriate' may be a warm friendly discussion on the record, a hard-nosed reprimand in open court, compulsory legal education, monetary sanctions, or other measures appropriate to the circumstances.
Id. Port Drum, however, seeks only monetary reward. It would be incongruous with Thomas and with the scheme of Rule 11 for the district court to entertain an independent lawsuit in which the only relief being considered is cash compensation. Nor would it really make sense for the court, assuming jurisdiction were present, to impose an alternative, lessor sanction (such as a reprimand) when no such relief is even requested (or, presumably, desired) by plaintiff Port Drum.

As discussed in Thomas , 836 F.2d at 879-881, a party seeking sanctions under Fed.R.Civ.P. 11 must give prompt notice to the court of his intent to do so:

[A]n attorney may not remain idle after a "motion, pleading, or other paper" filed in violation of Rule 11 by his opponent has come to his attention. The advisory committee notes stress that "[a] party seeking sanctions should give notice to the court and the offending party promptly upon discovering a basis for doing so." Fed.R.Civ.P. 11 advisory committee notes (emphasis added). In the same manner that a failure to mitigate expenses may result in a corresponding reduction in the amount of attorney's fees and costs awarded, so also may a failure to provide prompt notice of an alleged violation to the court and the offending party reduce the ultimate award. Donaldson [v. Clark ], 819 F.2d [1551 (11th Cir. 1987) ]. Prompt notice of Rule 11 violations conserves judicial time and energy, as well as monetary resources, while at the same time deterring future violations.
....
[T]his Court [has] implicitly condemned using Rule 11 to challenge generally all papers filed in a lawsuit at the termination of a proceeding.... Parties should not be allowed to "run up" exorbitant fees and expenses when responding to papers filed in violation of Rule 11 ; nor should litigants or courts remain idle in the face of possible violations. To allow such behavior would effectively transform Rule 11 from a shield to a sword, whereby guileful practitioners could profit from the misfortunes and mistakes of fellow professionals.
....
[I]t is precept that sanctions must be imposed within a time frame that has a nexus to the behavior sought to be deterred.... Sanctions assessed by courts should not amount to an "accumulation of all perceived misconduct, from filing through trial," resulting in a "single post-judgment retribution in the form of a massive sanctions award." In re Yagman , 796 F.2d 1165, 1183 (9th Cir.1986), cert. denied , 484 U.S. 963, 108 S.Ct. 450, 98 L.Ed.2d 390 (1987).
The most obvious defect in this procedure is that it flies in the face of the primary purpose of sanctions, which is to deter subsequent abuses. This policy is not well served by tolerating abuses during the course of an action and then punishing the offender after the trial is at an end. A proper sanction assessed at the time of a transgression will ordinarily have some measure of deterrent effect on subsequent abuses and resultant sanctions. Such "prompt action helps enhance the credibility of the rule and, by deterring further abuse, achieve its therapeutic purpose."
Id. (citations omitted).

In the instant matter, Defendants' Motions To Assess Attorney Fees as Sanctions were essentially identical, and each asserted the following:

In the present case, and in two related cases, Ms. Snavely and her attorney, Max Jord[a]n, filed claims which were obviously prescribed. However, rather than merely filing a prescribed claim in one proceeding, Ms. Snavely and Max Jord[a]n filed three separate actions, all against the same Defendants, and all asserting the same prescribed claim. The repeated filing of the same prescribed claim in multiple separate proceedings showed a clear pattern of filing frivolous claims, needlessly increasing the cost of litigation, and harassment. None of the cases filed by Ms. Snavely and her attorney, Max Jordan, had merit. All were obviously prescribed. The result was that Defendant[s] were required to litigate three separate cases to conclusion.... This is the kind of abuse of litigation that Article 863 protects against.
....
Wherefore, premises considered, Defendants .... respectfully request that ... this honorable Court grant the present Motion to Assess Attorney Fees as Sanctions and assess all attorney fees and expenses incurred in the defense of this matter, and the related matters ... under Louisiana Code of Civil Procedure Article 863.

The motions were filed twenty months after all three of the separate, allegedly offending petitions had been filed in each case, over sixteen months after all prescription exceptions had been filed, and after the trial courts' dismissals of the underlying claims had become final. Not once, prior to the conclusion and finality of the three separate matters, did Defendants suggest to the trial court that Ms. Snavely's and/or her attorney's filing of three separate actions was sanctionable under La.Code Civ.P. art. 863.

We find that under the unequivocal facts established by the record, Defendants' motions, which seek sanctions only in the form of compensation, were not timely as they were not filed in a reasonable time frame following Ms. Snavely's multiple filings or otherwise within a timeframe that had a nexus to the behavior that was sought to be deterred, which according to Defendants was "[t]he repeated filing of the same prescribed claim in multiple separate proceedings." Defendants were clearly aware of the perceived problems with Ms. Snavely's multiple filings, as reflected by their own prescription exceptions filed in each of the three cases, over sixteen months prior to the first sanctions motion. Waiting until after Ms. Snavely's claims were dismissed on prescription grounds to file motions seeking monetary sanctions based upon the repeated prescribed claims is contrary to the primary purpose of La.Code Civ.P. art. 863.

Defendants rely on Keaty v. Raspanti, 00-221 (La.App. 4 Cir. 2/7/01), 781 So.2d 607 and urge us to find that their motions were timely because, as in Keaty , they were filed within a year of the finality of the trial court's dismissal of the underlying case wherein the allegedly offending pleadings were filed.

In Keaty , a client's former attorneys filed suit against the current attorney seeking a portion of legal fees that were collected. Ultimately, the trial court dismissed the plaintiffs' claims pursuant to a motion for summary judgment, the court of appeal affirmed, and the supreme court denied writs. Three months after the appellate court's decision, but prior to the supreme court's writ denial, the defendants filed a motion for sanctions under La.Code Civ.P. art. 863. The trial court granted the plaintiffs' exception of prescription, finding the defendant's motion for sanctions untimely.

In reversing the trial court, the appellate court in Keaty agreed with the defendants that the claim for sanctions had not prescribed "because it was brought ... within less than a year after this [c]ourt rendered judgment affirming the dismissal of the [plaintiffs'] claims." Keaty , 781So.2d at 610. In so holding, the Keaty court found "no reason why sanctionable conduct should not be classified as an offense for prescription purposes," applied the one-year prescriptive period applicable to torts, and found that the one-year period began from the date of a final judgment as doing so "seems consistent with the concept of a continuing tort." Id. at 612. We disagree with the reasoning as sanctions motions are not separate causes of action and their timeliness is not determined by prescriptive periods applicable to tort actions. Frazer , 772 So.2d 293.

In rendering its opinion, the Keaty court also cited favorably to Connelly v. Lee , 96-1213 (La.App. 1 Cir. 5/9/97), 699 So.2d 411, writ denied, 97-2825 (La. 1/30/98), 709 So.2d 710. In Connelly , the plaintiff filed a legal malpractice claim against his wife's attorney on February 2, 1993. On September 1, 1993, the trial court granted the defendant's exception of no cause of action but allowed time for the plaintiff to amend his action. The plaintiff failed to do so, and on November 2, 1993, the trial court dismissed the plaintiff's action. A year later, on November 2, 1994, the defendant-attorney filed a motion for sanctions against the plaintiff, and the trial court denied the plaintiff's prescription exception. The court of appeal affirmed, stating :

[c]onsidering the facts in this case, we feel that the imposition of sanctions within a year after the plaintiff filed his objectionable petition serves the policy purpose of deterrence and is not so remote in time from the behavior sought to be deterred .... Moreover, a year from the filing of the plaintiff's petition is not inordinately long."

Connelly , 699 So.2d at 417 (emphasis added).

We note that the Connelly court's analysis focused on the date the objectionable petition was filed, even though the petition in that case was filed more than a year before the motion for sanctions. There is no analysis in Connelly pertaining to its apparent conclusion that the motion for sanctions, which was filed after the dismissal of the underlying claim, was timely. However, we disagree with both Connelly , and Keaty, to the extent they support a finding that a motion seeking monetary sanctions under La.Code Civ.P. art. 863 filed after the decision in the underlying action had become final is timely, especially when the moving party was aware of the behavior sought to be deterred by the sanctions motion [i.e. the repeated filing of prescribed claims in the instant matter] prior to the finality of the underlying action. We therefore grant the exception of prescription, and the issues asserted by Defendants on appeal are now moot.

CONCLUSION

For the foregoing reasons, the exception of prescription filed by Ms. Snavely and J. Lomax Jordan is granted. Defendants' motions seeking attorney fees as sanctions filed in each of the three consolidated matters are dismissed with prejudice. All costs of this appeal are assessed to Defendants.

PRESCRIPTION EXCEPTION GRANTED; DISMISSED WITH PREJUDICE.

      Ms. Snavely's appeals of the trial court's dismissal of her claims in both the motorcycle action and the medical malpractice action were consolidated.

      Louisiana Code of Civil Procedure article 2163 states: "The appellate court may consider the peremptory exception filed for the first time in that court, if pleaded prior to the submission of the case for a decision, and if proof of the ground of the exception appears in the record."

      Since La.Code Civ.P. art. 863"is derived from Rule 11, Federal Rules of Civil Procedure [,] [t]he federal decisions afford us guidance for our interpretation and application." Romero v. Chris Crusta Flying Service , 587 So.2d 803, 805 (La.App. 3 Cir. 1991).


text:
    STATE of Louisiana v. Samuel ANDERSON a/k/a Samuel Brent Anderson
    17-372
    Court of Appeal of Louisiana, Third Circuit.
    December 13, 2017
    Trent Brignac, District Attorney, Thirteenth Judicial District Court, Julhelene E. Jackson, Assistant District Attorney, Post Office Drawer 780, Ville Platte, Louisiana 70586, (337) 363-3438, COUNSEL FOR APPELLEE: State of Louisiana
    Douglas Lee Harville, Louisiana Appellate Project, 329 Southfield Road, Post Office Box 52988, Shreveport, Louisiana 71135, (318) 222-1700, COUNSEL FOR DEFENDANT/APPELLANT: Samuel Anderson a/k/a Samuel Brent Anderson Samuel Anderson Louisiana State Prison CBD 4/R 4 Angola, Louisiana 70712
    Court composed of Elizabeth A. Pickett, D. Kent Savoie, and Van H. Kyzar, Judges.
   SAVOIE, Judge.

On January 28, 2015, a grand jury indicted Defendant Samuel Brent Anderson for first degree murder, a violation of La.R.S.14:30, and armed robbery, a violation of La.R.S. 14:64. After various pretrial motions and hearings, the parties selected a jury on March 28, 2016. The jury heard evidence and argument on March 29 through April 1 and ultimately found Defendant guilty as charged on both counts. On July 28, the trial court sentenced Defendant to serve life in prison for the first degree murder conviction, with a consecutive fifty-year term for the armed robbery conviction.

Defendant now appeals his convictions and sentences, assigning three errors. For the foregoing reasons, we affirm Defendant's murder conviction and vacate his armed robbery conviction.

FACTS

On July 28, 2014, Defendant was armed with a gun when he entered a store in Evangeline Parish, seeking to commit an armed robbery. In the course of the robbery, he shot proprietor Ann Nguyen, killing her.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find no errors present.

ASSIGNMENT OF ERROR NUMBER THREE

We will first discuss assignment of error number three. Defendant argues that his convictions for both first degree murder and armed robbery violate the constitutional protection against double jeopardy, as the robbery was the act that elevated the homicide to first degree murder.

This court has stated:

A person cannot twice be placed in jeopardy for the same offense. U.S. Const. amend. V ; La. Const. art. I, § 15. The defendant argues, and the state acknowledges, that it is well-settled that convictions for both a felony murder and the underlying felony violate double jeopardy protections. See State v. Marshall , 81-3115, 94-461 (La.9/5/95), 660 So.2d 819.

State v. Lafleur , 12-1383, p. 2 (La.App. 3 Cir. 6/5/13), 114 So.3d 666, 668 (footnote omitted). As the Lafleur court noted, the remedy is vacation of the less severely punishable offense. Id.

In brief, the State acknowledges the violation and agrees with the remedy. Accordingly, the conviction and sentence for armed robbery is vacated.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, Defendant argues that the trial court erred by denying his motion to suppress his confession. He alleges that he was questioned after he invoked his right to counsel. An assertion of the right to counsel must be "clear and unequivocal." State v. Payne , 01-3196, p. 13 (La. 12/4/02), 833 So.2d 927, 937.

This court has explained in a previous case:

In brief, the defendant contends that during the interrogation he stated "unequivocally, 'I really would like, I mean I think I want a lawyer. Because, I mean this is not right.' "
In Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court held that the Fifth Amendment gives a suspect subject to custodial interrogation the right to consult with an attorney during questioning. State v. Payne , 01-3196 (La. 12/4/02), 833 So.2d 927, 934 ; Miranda v. Arizona , 384 U.S. at 469-473, 86 S.Ct. at 1625-1627. The police are required to explain this right to the suspect before the custodial interrogation, "initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way," begins. State v. Payne, supra at 934, citing Rhode Island v. Innis , 446 U.S. 291, 298, 100 S.Ct. 1682, 1688, 64 L.Ed.2d 297 (1980), quoting Miranda v. Arizona , 384 U.S. at 444, 86 S.Ct. at 1619. The safeguards regarding the Miranda right to counsel are triggered by both a custodial setting and official interrogation. State v. Payne, supra at 934.
After a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning a suspect unless or until he clearly requests an attorney. Davis v. United States , 512 U.S. 452, 461, 114 S.Ct. 2350, 2356, 129 L.Ed.2d 362 (1994). Whether the accused actually invoked his right to counsel is an objective inquiry. State v. Payne , 833 So.2d at 935, citing Davis v. United States , 512 U.S. at 458-459, 114 S.Ct. at 2355. In order to invoke his right to counsel, the suspect must articulate his desire to have counsel present with sufficient clarity to enable a reasonable police officer, in the circumstances, to understand his statement to be a request for an attorney. Id. See also , State v. Leger , 05-0011 (La. 7/10/06), 936 So.2d 108, 135. The invocation of the right to counsel during the custodial interrogation "requires, at minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney." State v. Payne , 833 So.2d at 935, quoting Davis v. United States , 512 U.S. at 459, 114 S.Ct. at 2355.
Once a suspect has asked to have an attorney present, he is not subject to any further interrogation by the authorities until counsel has been made available to him, unless the suspect initiates further communication, exchanges or conversations with the police. State v. Payne , 833 So.2d at 935, citing Edwards v. Arizona , 451 U.S. 477, 484-485, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981). A cessation of questioning is not required, if the suspect makes a reference to an attorney that is ambiguous or equivocal, which causes a reasonable police officer, in light of the circumstances, to understand only that the suspect might be invoking the right to counsel. State v. Payne , supra at 935, citing Davis v. United States , 512 U.S. at 458, 114 S.Ct. at 2355. (emphasis in original).
In analyzing whether there has been a direct, clear, unequivocal, and unambiguous request for counsel, courts must give a broad, rather than narrow, interpretation to the suspect's request. State v. Payne , 833 So.2d at 936, citing Michigan v. Jackson , 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986). The admissibility of a confession or statement is a determination for the trial court and the trial court's ruling will not be overturned unless the preponderance of the evidence clearly favors suppression. State v. Gant , 06-232 (La.App. 5 Cir. 9/26/06), 942 So.2d 1099, 1123.
State v. Allen , 06-778, pp. 4-6 (La.App. 5 Cir. 4/24/07), 955 So.2d 742, 747-48, writ denied , 08-2432 (La. 1/30/09), 999 So.2d 754 (footnote omitted).

State v. Broussard , 16-974, pp. 10-11 (La.App. 3 Cir. 6/13/17), 224 So.3d 23, 31-32.

The following colloquy occurred at the hearing on Defendant's motion to suppress:

Q. I'm also going to direct your attention to page twenty one I believe it is. Can you start from the top of the page and read that for us.
A. I said why don't you let let's [sic] make this a little easier why don't you tell us what you do remember and Samuel said like um I said Detective Hall said you remember going into the store. It says Samuel says I'm just trying inaudible this is crazy man that's why I wish I wish [sic] I had a lawyer man you know what I'm saying somebody I cause I don't like I don't know what the [sic] and um that's not specifically asking for a defense attorney.
Q. What was your understanding of that?
A. I thought he wanted legal advice just to speak to someone that had knowledge a little more knowledge of the law.
Q. Did he actually request a defense attorney?
A. No he did not.
Q. Did he ask for the interview to be stopped?
A. No.
Q. Did y'all continue to ask him questions?
A. Yes.
Q. And did he voluntarily answer those questions?
A. Yes.
The Broussard court explained:
The case referred to ... by the trial court was Davis , 512 U.S. 452, 462, 114 S.Ct. 2350, 129 L.Ed.2d 362, wherein the defendant, during interrogation, stated that "[m]aybe I should talk to a lawyer." The United States Supreme Court did not find that the statement was an unequivocal and unambiguous statement such that would require the interrogating officers to terminate the interview. Similarly, in Allen , 955 So.2d 742, after the defendant was advised he had the right to counsel during interrogation, he told the officers that he might want to speak with an attorney but wanted to think about it. He was given a cigarette and a drink and left alone to ponder. When asked if he was ready to give a statement, the defendant stated he was. Again he was Mirandized before he confessed to the offense. The officer then asked him to make a recorded statement. Once again, the defendant said he needed to think about it and asked for food. He was given lunch, another cigarette break, and then he confessed on tape. After he was charged, the defendant filed a motion to suppress his statements claiming that he had twice asked for counsel but was ignored. The fifth circuit found that the trial court did not err when it denied the defendant's motion to suppress the statements. Citing a case from this court, the fifth circuit stated:
Additionally, in State v. Chesson , 03-606 (La.App. 3 Cir. 10/1/03), 856 So.2d 166, 173-175, writ denied , 03-2913 (La. 2/13/04), 867 So.2d 686, the Third Circuit upheld the trial court's denial of the defendant's motion to suppress his statement despite his statement to police officers while being transported that "he might-he felt like he should talk to an attorney." The Third Circuit concluded that "[t]he defendant's statement regarding his 'thinking' that he possibly 'should' speak with an attorney is not the type of unequivocal and unambiguous statement described above [in Davis ]."
Similar to State v. Chesson , supra , the defendant in the present case twice stated he was "thinking" he "might" want an attorney. According to Detective Becnel, who the trial court found credible, the defendant never unequivocally stated he wanted an attorney. Under Davis , the defendant's statements that he thought he might want to speak to an attorney were ambiguous and cessation of questioning was not required.
Id. at 749-50 (footnote omitted).
Finally, in State v. Leger , 05-11, pp. 31-32 (La. 7/10/06), 936 So.2d 108, 135, cert. denied , 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007), the supreme court did not find that the statement, "I know I need to see one [a lawyer]" amounted "to an unambiguous request for counsel that would indicate to a reasonable police officer that the defendant was asking for counsel at that time."
Considering, as noted above in Allen , 955 So.2d at 748 (citing Payne , 833 So.2d at 936, and Jackson , 475 U.S. 625, 106 S.Ct. 1404 (1986) ) that the "courts must give a broad, rather than narrow, interpretation to the suspect's request[,]" we cannot say that the trial court erred in the current case when it found that the defendant's statement that he thought he wanted a lawyer was an unequivocal indication such that required the detectives to terminate the interview. The trial court did not err when it denied the defendant's motion to suppress his videotaped statements.

Broussard , 224 So.3d at 34-35 (alterations in original).

Regarding the present case, the colloquy above indicates that the witness, Captain Billy Wolff of the Evangeline Parish Sheriff's Office, testified that he understood Defendant wanted some sort of legal help. This testimony may seem problematic in light of the issue at hand. However, at his own request, Defendant spoke separately to a prosecutor in the midst of the interrogation. This created an ambiguity regarding Defendant's stated "wish." Further, considering Broussard and the jurisprudence cited therein, we find Defendant's remark that he wished he had a lawyer was not an unequivocal request for counsel. For the reasons discussed, the trial court did not err by denying the motion to suppress. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, Defendant argues that the trial court erred by denying his Batson challenge to venire member Sheila Seria.

Defendant cites State v. Nelson , 10-1724, 10-1726, pp. 7-9 (La. 03/13/12), 85 So.3d 21, 27-29 (footnote omitted), which explained:

In Batson [v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) ], the United States Supreme Court held that the use of peremptory challenges to exclude persons from a jury based on their race violates the Equal Protection Clause. Batson , 476 U.S. at 96-98, 106 S.Ct. 1712. The holding in Batson was initially adopted by this Court in State v. Collier , 553 So.2d 815 (La.1989), and has been codified by the legislature in Louisiana Code of Criminal Procedure article 795(C) and (D)....
The Court in Batson outlined a three-step test for determining whether a peremptory challenge was based on race. Under Batson and its progeny, the opponent of a peremptory strike must first establish a prima facie case of purposeful discrimination. Second, if a prima facie showing is made, the burden shifts to the proponent of the strike to articulate a race-neutral explanation for the challenge. Third, the trial court then must determine if the opponent of the strike has carried the ultimate burden of proving purposeful discrimination. Batson , 476 U.S. at 94-98, 106 S.Ct. 1712. See also , Johnson v. California , 545 U.S. 162, 168, 125 S.Ct. 2410, 2416, 162 L.Ed.2d 129 (2005) ; State v. Sparks , 1988-0017 (La.5/11/11), 68 So.3d 435, 468 ; State v. Givens , 99-3518 (La.1/17/01), 776 So.2d 443, 448.
Regarding venire member Seria, the following colloquies occurred:
BY THE COURT:
Latonia Wilson is Juror number five. Sheila Seria?
BY THE STATE:
The State will strike and for the record she um she's living in Ville Platte, she's been here, she said she didn't know anything about the case but I find that hard to believe. I wish she would have said she known something it would have been more honest I think then what she gave.
BY MR. CHAPMAN:
She's African American I don't think there's been an articulated reason.
BY THE STATE MR. FONTENOT:
You (inaudible) challenge?
BY MR. CHAPMAN:
Yes.
BY THE STATE MR. FONTENOT:
All right. Your Honor for the record we used that would be our eighth challenges [sic] We used four on white and four on black. There's no...
BY THE STATE:
There's no pattern.
BY THE STATE MR. FONTENOT:
No pattern.
BY THE COURT:
Okay. Mr. Chapman.
BY MR. CHAPMAN:
I don't think they articulated any reasons on...
BY THE STATE MR. FONTENOT:
I don't think we have [to] articulate a reason.
BY THE COURT:
I think they have to articulate a race neutral reason.
BY THE STATE MR. FONTENOT:
There's no pattern.
BY THE COURT:
It doesn't have to be a good reason. I'm good with the reason you gave I don't believe that's a racial (inaudible).

We note that the trial court skipped the first step of the analysis. However, the supreme court in State v. Green , 94-887, pp. 24-25 (La. 5/22/95), 655 So.2d 272, 288, explained:

Regarding this first step of the Batson analysis, the trial court below did not expressly rule on whether the defendant had made out a prima facie case of purposeful discrimination; rather, he immediately moved to the second step and ordered the prosecutor to justify his use of peremptory strikes against black prospective jurors with race-neutral reasons. The court of appeal found this to be a tacit finding by the trial court that the defense had met its burden of going forward, since "there would have been no need for the prosecutor to explain his challenges if the trial judge had not found a prima facie case of discrimination." Green, supra, 634 So.2d at 509. We agree with the court of appeal that a trial judge's demand that a prosecutor justify his use of peremptory strikes is tantamount to a finding that the defense has produced enough evidence to support an inference of discriminatory purpose. In any case, "[o]nce a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot." Hernandez, supra, 500 U.S. at 359, 111 S.Ct. at 1866.

Thus, the first step of the analysis in the present case is moot. Regarding the second step, we find the State's reason to be race-neutral, as it focused on Seria's professed lack of knowledge regarding the case. However, Defendant argues that the State's articulated reason for the strike was factually incorrect, as Seria was never directly questioned regarding her knowledge of the case.

The second circuit has reasoned:

[The defendant] submits that the state offered weak factual reasons for its first two peremptory challenges, of Mr. Roggerson and Ms. Bass, a suspicious age-based reason for another, Ms. Nobles, and no reasons at all (a "gut feeling") for the other two, of Ms. Turner and Ms. Price. He concedes that the district court's evaluation of discriminatory intent is due great deference. Hernandez v. New York , 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). He nevertheless concludes that the state's reasons do not withstand Batson analysis and the case must be reversed.
....
The question is somewhat closer with Ms. Price. The cold record offers little guidance; at voir dire, in response to general questioning, she never volunteered an answer, and on four occasions when directly asked, she replied with a simple "yes" or "no." After observing the proceedings, the district court may well have felt that this translated to lack of attention or responsiveness, a valid race-neutral explanation. State v. Ellis , [05-1569 (La. 7/10/06), 936 So.2d 791]. The court stated for the record that both prosecutor and defense counsel were African Americans, and the prosecutor confirmed that she was under no instructions to assure that the jury had any specific racial or gender makeup. In the totality of the circumstances, we cannot say the court's decision to grant this peremptory challenge was an abuse of discretion.

State v. Benton , 42,121, pp. 6-11 (La.App. 2 Cir. 6/20/07), 960 So.2d 1192, 1196-1199, writ denied , 09-226 (La. 10/30/09), 21 So.3d 278. Further, the explanation given in the second step does not need to be persuasive or plausible. Rice v. Collins , 546 U.S. 333, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006). We find that the State's reason for its strike was most likely based on a simple factual mistake; as the reason did not implicate race, the trial court did not err in finding it to be race-neutral.

Proceeding to step three, the supreme court has stated:

In step three of the Batson analysis, the court must then determine whether the objecting party has carried his burden of proving purposeful discrimination. Miller-El v. Dretke , 545 U.S. 231, 125 S.Ct. 2317, 2331-32, 162 L.Ed.2d 196 (2005) ; Batson , 476 U.S. at 98, 106 S.Ct. 1712. This final step involves evaluating "the persuasiveness of the justification" proffered by the striking party, but "the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike." Purkett [v. Elem ], 514 U.S. [765,] 768, 115 S.Ct. 1769 [131 L.Ed.2d 834 (1995) ].

Nelson , 85 So.3d at 32.

In the present case, Defendant has not carried his burden of proving purposeful discrimination. Defendant made no attempt at the hearing, nor does he attempt in brief, to demonstrate any facts to show that the strike of venire member Seria was based upon her race. As noted in the colloquy above, the State asserted that of the eight challenges it had used up to that point, "We used four on white and four on black." Defendant did not and does not refute that assertion. For the reasons discussed, this assignment of error lacks merit.

CONCLUSION

Defendant's armed robbery conviction and sentence is vacated due to double jeopardy. His conviction and sentence for first degree murder is affirmed.

AFFIRMED IN PART AND VACATED IN PART.