text:
    STATE of Louisiana, Appellee v. Paul A. BAKER, Appellant
    No. 51,933-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered April 11, 2018
    LOUISIANA APPELLATE PROJECT, By: Douglas Lee Harville, Counsel for Appellant
    PAUL A. BAKER, Pro Se
    JAMES EDWARD STEWART, SR., District Attorney, MEKISHA S. CREAL, ERICA JEFFERSON, Assistant District Attorneys, Counsel for Appellee
    Before WILLIAMS, PITMAN, and COX, JJ.
   COX, J.

This criminal appeal arises from the First Judicial District Court, Caddo Parish. Paul A. Baker ("Baker") was convicted of one count of pornography involving juveniles. He was sentenced to 15 years at hard labor, without benefit of parole, probation, or suspension of sentence. Baker filed a timely motion to reconsider sentence, which was denied. Baker now appeals. For the following reasons, Baker's conviction and sentence are affirmed. The case is remanded for the limited purpose of providing Baker with the appropriate written notice of the sex offender registration requirements.

FACTS

On March 3, 2014, Baker was charged by bill of information with pornography involving juveniles in violation of La. R.S. 14:81.1. Baker waived arraignment and pled not guilty.

On June 20, 2014 and March 23, 2015, Baker's attorney filed motions to suppress physical evidence found on Baker's computer hard drive. Following a hearing, the motions were denied. On April 14, 2016, Baker filed a pro se motion to suppress post-Miranda statements made by him to investigating officers. Following a free and voluntary hearing on September 27, 2016, the motion to suppress was denied and the statements were deemed admissible.

Baker's trial was held on February 15, 2017. Agent Alex Harris, who was with the High Crimes Unit of the Louisiana Attorney General's Office at the time of this offense, testified that he initiated an undercover peer-to-peer investigation in August 2013. Agent Harris stated that the investigation focused on identifying pornographic material being shared among computers with the use of special software. Agent Harris explained that he was able to identify several files indicative of child pornography associated with IP address 162.193.63.13. According to the testimony of Agent Harris, the files that he downloaded from that IP address included sexually explicit images, including rape and abuse, of children between the ages of 3 and 10. He then sent a subpoena to AT & T, the service provider for that IP address, to obtain subscriber information. The subscriber was Jakari Greer at 1330 Summer Street in Shreveport. Agent Harris transferred the investigation to Agent Lisa Koprowski Maher, with the Louisiana Department of Justice, Office of the Attorney General.

Agent Maher testified that she obtained and executed a search warrant at Baker's home, 1330 Summer Street, on January 9, 2014. Baker and his wife were present in the home when the warrant was executed. Agent Maher testified that Baker was read his Miranda rights and verbally acknowledged that he understood his rights. Baker also executed a waiver of rights form. Agent Maher stated that Baker admitted to downloading child pornography.

A desktop computer and tablet were found during the search of the home. Agent Maher testified that Baker stated both devices belonged to him. Baker told investigators that "Dad" was the username for the computer and provided the password as well. Agent Maher testified that a forensic search of the hard drive revealed videos and images of children between the ages of 2 and 14 in sexually explicit poses and activities.

Agent Maher was questioned about the five-month delay between the initial investigation revealing the images and the issuance of the search warrant. She testified that obtaining information from service providers can take time. Agent Maher further testified that it is common for the name of the subscriber on record with the service provider to be different from the person who resides in the house. She explained that the subscriber information is used to determine the municipal address. She further explained that interviews and forensic searches of devices are used to determine who is downloading the pornography. According to Agent Maher, Baker claimed sole ownership and use of the user account "Dad," which is the only location on the hard drive that contained child pornography.

Agent David Ferris, Special Agent with the Cyber Crimes Unit of the Attorney General's Office, testified that he assisted in the execution of the search warrant at Baker's residence. Agent Ferris was accepted by the trial court as an expert in peer-to-peer investigations. Agent Ferris conducted a post-Miranda recorded interview with Baker, which was admitted into evidence as State's Exhibit 5 during the agent's testimony. On the audio recording, Baker admits that he downloaded child pornography and explains how he searched for the images/videos and that he sometimes masturbated while looking at the images. Agent Ferris testified that Baker stated he is the only user of the computer.

Detective Jeff Allday, of the Shreveport Police Departments's Sex Crimes Division, testified that he is a member of the Internet Crimes Against Children (ICAC) task force, which strives to catch internet predators. Detective Allday assisted in the execution of the search warrant and testified that he secured the home while Agents Maher and Ferris began previewing the devices. Detective Allday testified that he observed the preview and that he saw approximately 40 images and 10 videos containing child pornography. In Detective Allday's opinion, the children depicted were between the ages of 2 and 5 and the images were of vaginal, oral, and anal intercourse. Detective Allday placed Baker under arrest.

Thomas Ferguson, a forensic examiner with the Attorney General's Office, was accepted as an expert in the field of computer forensics analysis. Agent Ferguson explained his procedure for making a forensic copy of the devices and stated that, while examining Baker's hard drive, he found files containing child pornography, specifically, 226 videos, 1,330 pictures, and 1,856 duplicated files. Agent Ferguson found 147 "unique" files associated with child pornography. For trial purposes, the state selected a small sample of the images/videos. Agent Ferguson identified 10 images and 1 video, which were admitted into evidence and published to the jury. His testimony revealed that these 11 files were all of a sexual nature involving infants, toddlers, and small children.

At the conclusion of Agent Ferguson's testimony, both the state and the defense rested. On February 15, 2017, a unanimous jury found Baker guilty as charged. Baker's motion for post-verdict judgment of acquittal and motion for new trial were both denied. On March 6, 2017, Baker was sentenced to 15 years at hard labor without benefits. Baker's motion to reconsider sentence was timely filed and denied by the trial court. This appeal followed.

DISCUSSION

Excessive Sentence

Baker, through his appellate counsel, argues his 15-year sentence without benefits is excessive. He argues the sentence is effectively a life sentence because he is 65 years old. Baker states the sentence is constitutionally excessive because of his limited criminal history, comprised of "some misdemeanors from the '80s", and his age-related medical issues. Baker argues the sentence serves no purpose and violates his constitutional rights. In his motion to reconsider sentence before the trial court, Baker only argued constitutional excessiveness.

La. C. Cr. P. art. 881.1(E) precludes a defendant from presenting sentencing arguments to the court of appeal which were not presented to the trial court.

In reviewing a sentence for excessiveness, an appellate court uses a two-step process. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects that it adequately considered the guidelines of the article. The important elements to be considered are the defendant's personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense, and the likelihood of rehabilitation. State v. Washington , 50,337 (La. App. 2 Cir. 1/13/16), 185 So.3d 852, writ denied , 16-0224 (La. 2/3/17), 215 So.3d 688. There is no requirement that specific matters be given any particular weight at sentencing. State v. Brown , 51,352 (La. App. 2 Cir. 5/2/17), 223 So.3d 88.

Second, the court must determine whether the sentence is constitutionally excessive. Id. Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense, or shocking to the sense of justice. A sentence violates La. Const. art. I, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than the purposeless infliction of pain and suffering. A sentence is grossly disproportionate if, when the crime and punishment are viewed in light of the harm to society, it shocks the sense of justice.

State v. Scott , 50,920 (La. App. 2 Cir. 11/16/16), 209 So.3d 248, writ denied , 17-0353 (La. 11/13/17), 229 So.3d 478.

The trial court has wide discretion in the imposition of sentences within the statutory limits, and sentences should not be set aside as excessive in the absence of a manifest abuse of discretion. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. Brown, supra .

La. R.S. 14:81.1(E)(1)(a) provides that a person convicted of pornography involving juveniles shall be fined not more than $50,000 and imprisoned at hard labor for not less than 5 years, nor more than 20 years at hard labor, without the benefit of parole, probation, or suspension of sentence. La. R.S. 14:81.1(E)(5)(a) provides that when the victim is under 13 years of age and the offender is seventeen years of age or older, the offender shall be punished by imprisonment at hard labor for not less than one-half the longest term nor more than twice the longest term of imprisonment set out in 14:81(E)(1)(a), without the benefit of parole, probation, or suspension of sentence.

A defendant who intentionally possesses child pornography can be charged on a separate count, and sentenced separately for each count upon which the defendant is convicted, for each child in each sexual performance captured within photographs, films, videotapes, and/or other visual reproductions that comprise the defendant's collection of child pornography. State v. Jack , 51,428 (La. App. 2 Cir. 6/21/17), 224 So.3d 492.

The trial judge did not abuse his discretion by imposing a 15-year sentence. Since Baker's motion to reconsider was limited to constitutional excessiveness, he is relegated to such review on appeal. Nevertheless, the record shows that the trial judge adequately complied with La. C. Cr. P. art. 894.1, and considered the appropriate factors in determining Baker's sentence.

While no pre-sentence investigation report was ordered, the trial judge expressly enumerated his considerations of Article 894.1, first delineating aggravating factors. The trial judge indicated that there is a risk of Baker committing other crimes if given a suspended sentence or probation and that a lesser sentence would deprecate the seriousness of the offense. As an aggravating factor, the trial judge found that the downloading and use of child pornography re-victimizes children and encourages and facilitates a market for the abuse. The victims of the child pornography are incapable of resistance due to their extreme youth.

The trial judge noted that every child is re-victimized with each download and use of the image(s) depicting that child. The trial judge emphasized that in this case there were multiple victims and incidents for which Baker could have been separately charged and that the state showed mercy in only charging Baker with one count. The trial judge stated that this was the "most disturbing" child pornography he had ever viewed as a judge and that "no one should ever have to see that, and no child should ever [be] subjected to that." Finally, he noted that Baker was not provoked into this deviant behavior and Baker has not compensated the victims.

Next, the trial judge noted the following factors in mitigation: Baker has no prior criminal history, except for past misdemeanor incidents in the 1980s, is not a repeat sex offender, and he is 65 years old.

The trial judge thoughtfully stated that this is one of the worst offenses covered by the statute, but not by one of the worst offenders because Baker "does not have a substantial history of personally victimizing children, that is, upon their persons directly." Thus, balancing the considerations, the trial judge stated he would "mitigate away from the very maximum sentence" and imposed 15 years at hard labor, which is without benefits by statute.

Baker's sentence is not constitutionally excessive. Baker intentionally searched for and viewed images of toddlers in sexually graphic positions and images in which the victims were clearly in physical and emotional distress. Baker admitted to gaining sexual gratification from viewing these images. Baker received an enormous benefit from the State by only being charged with one count when he could have been charged with at least 147 counts, based on what was actually located on his computer. Given Baker's deplorable conduct, the 15-year sentence imposed by the trial judge in no way shocks the sense of justice and is not excessive. This assignment of error is without merit.

Pro Se Issue

Baker filed a pro se document with this Court complaining "on appeal" of the denial of his motion to suppress physical evidence obtained off of his hard drive.

On June 20, 2014 and March 23, 2015, Baker filed identical motions to suppress the evidence seized off of his computer hard drive. Baker asserted that the warrant had become stale after the passage of five months from the time the authorities discovered that Baker allegedly had items of child pornography on his computer in August 2013, to the time the warrant was obtained and executed on January 9, 2014.

The matter was heard on July 6, 2015, with the sole issue being the legal determination of the concept of staleness. Baker's counsel argued that the fact that the images found during execution of the warrant were not the same images that provided the probable cause for obtaining the warrant five months earlier was fatally defective to the warrant. Counsel argued that it is not enough that contraband is found during the search, but it must be the same contraband that provided probable cause for the search. Following the arguments of counsel, the trial judge denied the motion to suppress stating that he found no legal support for concluding that five months would render a warrant stale when it concerned non-perishable, non-consumable items that would be expected to remain in the alleged offender's possession for an indeterminate period of time. Baker sought supervisory review with this Court, which denied the writ on the showing made.

On appeal, Baker's pro se argument is that the images of child pornography are consumables subject to being deleted by the user at any time. He presents a somewhat technical argument concerning the over writing of, and storing of, files on a computer hard drive in support of his argument that such images are transferred and/or deleted often and are subject to the doctrine of consumability such that a five-month delay in the execution of a warrant renders it stale.

The appellate court reviews the trial court's ruling on a motion to suppress under the manifest error standard for factual determinations, as well as credibility and weight determinations, while applying a de novo review to its findings of law. State v. Jordan , 50,002 (La. App. 2 Cir. 8/12/15), 174 So.3d 1259, writ denied , 15-1703 (La. 10/10/16), 207 So.3d 408.

The defendant bears the burden of proving the inadmissibility of evidence seized with a warrant. La. C. Cr. P. art. 703(D).

The U.S. Const. Amend. IV states in pertinent part, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."

La. Const. art. I, § 5 states in pertinent part, "Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy."

A search warrant will withstand an attack of "staleness" if the facts contained in the affidavit have not become so attenuated with the passage of time so as to render those supporting facts nonexistent. Stated another way, "the proof (of probable cause) must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time." State v. Williams , 46,842 (La. App. 2 Cir. 3/14/12), 87 So.3d 949, quoting State v. Thompson , 354 So.2d 513 (La. 1978). A warrant may become stale if facts and circumstances at the time of its execution show that probable cause no longer exists. Thus, staleness is only an issue when the passage of time makes it doubtful that the object sought in the warrant will be at the place where it was observed. State v. Williams, supra , citing State v. Casey , 99-0023 (La. 1/26/00), 775 So.2d 1022, cert. denied , 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).

The determination of whether the passage of time rendered the facts supporting probable cause to be so attenuated as to defeat the inference that the objects sought may still be found on the premises, depends on the facts and circumstances of each case. Whether an object from its nature can be expected to be retained on the premises and whether the evidence indicates that the course of conduct is continuing are important factors to consider. State v. Ogden , 391 So.2d 434 (La. 1980).

In State v. Friday , 10-2309 (La. App. 1 Cir. 6/17/11), 73 So.3d 913, 922, writ denied , 11-1456 (La. 4/20/12), 85 So.3d 1258, the defendant entered a Crosby plea to 300 counts of child pornography and was convicted by jury of aggravated and attempted forcible rape of juvenile victims. The defendant moved to suppress the evidence seized based on the staleness doctrine. He argued probable cause for the search warrant did not exist because the information was from a former live-in girlfriend, who defendant had not lived with for three years. The trial court found that the information was not stale and the 1st Circuit affirmed, noting that:

[T]here is nothing revelatory about the notion that a collector of child pornography will maintain his collection for years. This idea is arguably part of the field of common knowledge. Courts over the years have consistently found that collectors of child pornography do not quickly dispose of their cache and, in fact, rarely if ever dispose of such material. As such, even a substantial delay between the distribution of child pornography and the issuance of a search warrant does not render the underlying information stale. This is so because the possession of child pornography is a crime that is ongoing and continuing in nature.

In Friday , the items sought in the warrant were non-consumable images of child pornography. The same type of item was sought in the instant case. The authorities discovered Baker's possession of several images and videos of child pornography, and, five months later when the warrant was obtained and executed, more than 40 items were seized. This is not the same situation as a drug warrant or search for stolen items, which one would expect to be moved from the location over time. These items were of the type that the offender would retain for personal use and which would remain on the premises. In addition, the items are of the nature that would indicate the offender would continue to use them. On these facts, there is no support for the argument of staleness. The trial judge did not err in denying the motion to suppress.

Errors Patent

A review of the record reveals that the trial judge did not properly inform Baker of the mandatory sex offender registration and notification requirements set forth in La. R.S. 15:540, et seq. Pornography involving juveniles is defined as a sex offense under La. R.S. 15:541. La R.S. 15:543 requires that the trial judge notify a defendant convicted of a sex offense, in writing (see La. R.S. 15:543.1 ), of the registration and notification requirements and that an entry be made in the court minutes stating that the written notification was provided to the defendant.

The record does not indicate that Baker was provided with oral or written notification of the sex offender requirements. Accordingly, this matter should be remanded to the trial court for the sole purpose of providing the appropriate written notice to Baker of the sex offender registration requirements and for the filing of written proof of such notice into the record of the proceedings.

The trial judge failed to impose the mandatory fine of not more than $50,000, pursuant to La. R.S. 14:81.1(E)(1)(a). La. C. Cr. P. art. 882(A) provides that an illegally lenient sentence may be corrected at any time by an appellate court on review. However, this Court is not required to take such action. State v. Wesley , 49,438 (La. App. 2 Cir. 2/26/15), 161 So.3d 1039, writ not considered , 15-1096 (La. 3/14/16), 188 So.3d 1065. Since this Court is not required to take action and Baker is not prejudiced in any way by the failure to impose the mandatory fine, we decline to impose the fine.

CONCLUSION

For the foregoing reasons, Baker's conviction and sentence are affirmed. This case is remanded to the trial court for the limited purpose of providing Baker with the appropriate written notice of the sex offender registration requirements and filing written proof thereof in the record.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

      Peer-to-peer refers to a sharing of files among individual computers via special software that allows individuals to download files from "peer" computers and allow files to be downloaded from their computers.

      Investigators later learned from Baker that Jakari Greer is his middle son.

      Agent Ferguson's testimony described each image and video presented at trial. Because Agent Ferguson's testimony revealed these images and video to be extremely disturbing and the sufficiency of the evidence is not at issue, this panel declined to view the images and video presented at trial. As the trial judge noted, "There were numerous children in profoundly disturbing and heinous acts in this case."

      Baker expressly waived the 24-hour sentencing delay under La. C. Cr. P. art. 873. The trial judge properly advised Baker as to the time within which he could seek post-conviction relief.

      The record indicates the trial judge sentenced Baker under La. R.S. 14:81.1(E)(1)(a), and both sides agreed this was the correct sentencing statute. However, Baker falls within paragraph (5)(a) because he is well over 17 years old and, according to the trial transcript, the children were under the age of 13. Under paragraph (5)(a), Baker has a possible sentence of 10-40 years imprisonment, without benefits. The trial judge's sentence of 15 years is within the appropriate sentencing range.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    SOUTHERN FARM BUREAU LIFE INSURANCE COMPANY, Plaintiff-Respondent v. Ruby S. COX, et al., Defendants-Respondents
    No. 51,930-CW
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered April 11, 2018.
    E. MICHAEL MAHAFFEY, TRACY W. HOUCK, Counsel for Applicant, Connie Gonzales Cox Shaffer
    WOODARD & CLEMENT, By: Russell Alan Woodard, Monique Babin Clement, Counsel for Respondents, Ruby Sanders Cox and Debra Cox Diffey
    COTTON, BOLTON, HOYCHICK, ET AL, By: John Hoychick, Jr., Counsel for Respondent, Southern Farm Bureau Life Insurance Company
    Before BROWN, MOORE, PITMAN, GARRETT, and COX, JJ.
   MOORE, J.

Connie Gonzalez Cox Shaffer seeks supervisory review of a judgment that denied her motion for summary judgment seeking to obtain the life insurance proceeds of a policy covering her ex-husband, Hillie Patrick Cox Jr. For the reasons expressed, we grant the writ, make it peremptory, and render summary judgment in favor of Connie Shaffer.

FACTS

Hillie Patrick Cox took out a whole-life insurance policy with Southern Farm Bureau, for the face amount of $12,000, in 1989. His insurance application, dated March 27, 1989, listed the primary beneficiary as "Ruby G. Cox (Mother)." On August 21, 1992, he executed a change of beneficiary form to list the beneficiary as "Connie Gonzales Cox (wife)." Hillie and Connie obtained a judgment of divorce on August 23, 1999, in the Third JDC; however, according to Southern Farm Bureau, Hillie never executed another change of beneficiary form. Hillie died on September 22, 2013.

PROCEDURAL HISTORY

Southern Farm Bureau filed this petition for concursus, in the Second JDC, in April 2014. In addition to the facts outlined above, it alleged that a judgment of possession in the Second JDC had awarded Ruby Cox, Hillie's mother, usufruct over the entire estate and recognized his sister, Debra Cox Diffey, as the sole surviving heir. As a result of this judgment, Ruby and Debra had presented claims for the insurance proceeds, while Connie, the named beneficiary, had made "demands" for the proceeds.

Ruby and Debra answered admitting all the basic allegations but asserting that after Hillie and Connie's divorce, in 1999, their "relations were openly hostile." In fact, it was "obvious to any and all who knew" the couple that Hillie did not intend for Connie to remain on the policy as beneficiary; in fact, they alleged, he "thought" that Connie was not the beneficiary. They demanded that the proceeds go to Hillie's estate.

Connie, who has moved to Texas, initially filed a pro se answer asserting that she was the beneficiary and thus entitled to the proceeds.

After hiring counsel, Connie filed a motion for summary judgment, in May 2017, asserting that as the named beneficiary, she was entitled to the proceeds, under La. R.S. 22:912 A(1). She disagreed with the assertion in Southern Farm Bureau's petition that the judgment of possession gave Ruby usufruct over the policy: life insurance proceeds are nonprobate, and not part of the decedent's estate, as recognized in American Health & Life Ins. Co. v. Binford , 511 So.2d 1250 (La. App. 2 Cir. 1987). In support, Connie attached a copy of the policy, with the application and 1992 change of beneficiary form, and a copy of the petition.

Ruby and Debra opposed the motion. They asserted that after the divorce, Hillie told Ruby (and many other people) that the insurance proceeds would be paid to her (Ruby); and to give Connie the proceeds would be an "absurd result." They disputed Southern Farm Bureau's allegation that Hillie never executed another change of beneficiary form (however, they did not produce one). They argued that when a policy names a "wife" as beneficiary, the court must look to the intent of the insured to determine the beneficiary, Continental Bank & Trust Co. v. Sovereign Camp, W.O.W. , 169 La. 989, 126 So. 502 (1930). In support, they attached copies of the divorce judgment and judgment of possession, and the affidavits of Debra, Ruby, and of a cousin, Rita Ledbetter. The affidavits, which are essentially identical, all state that there were "bad feelings" between Hillie and Connie after the divorce, they had no further association with each other, Hillie said Connie was talking to people about getting him killed, and Hillie told them (the affiants) that the proceeds were going to Ruby, to cover his funeral expenses.

ACTION OF THE DISTRICT COURT

After a hearing in July 2017, the district court stated that the 14-year gap between the divorce and the insured's death "concerned" the court; despite the "clear words" of the contract, awarding the proceeds to Connie could "possibly lead to an absurd result." The court denied the motion for summary judgment.

Connie took the instant writ application. Pursuant to La. Const. Art. V, § 8 (B), the matter was referred to a five-judge panel, and pursuant to La. C. C. P. art. 966 H, it was placed on this court's argument docket.

APPLICABLE LAW

The motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Bank of New York Mellon v. Smith , 2015-0530 (La. 10/14/15), 180 So.3d 1238, and citations therein; Chanler v. Jamestown Ins. Co. , 51,320 (La. App. 2 Cir. 5/17/17), 223 So.3d 614, writ denied , 2017-01251 (La. 10/27/17), 228 So.3d 1230. A motion for summary judgment will be granted "if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law." La. C. C. P. art. 966 A(3). Appellate courts review motions for summary judgment de novo, using the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Larson v. XYZ Ins. Co. , 2016-0745 (La. 5/3/17), 226 So.3d 412, and citations therein.

The interpretation of an insurance policy ordinarily involves a legal question that can be properly resolved on motion for summary judgment. Bernard v. Ellis , 2011-2377 (La. 7/2/12), 111 So.3d 995, and citations therein; Bilyeu v. National Union Fire Ins. Co. , 50,049 (La. App. 2 Cir. 9/30/15), 184 So.3d 69, 60 Employee Ben. Cas. 2977, writ denied , 2015-2277 (La. 2/19/16), 187 So.3d 462. An insurance policy is a contract between the parties and should be construed using the general rules of interpretation of contracts set out in the Civil Code. Arceneaux v. Amstar Corp. , 2015-0588 (La. 9/7/16), 200 So.3d 277, and citations therein. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent. La. C.C. art. 2046 ; Arceneaux v. Amstar Corp. , supra . Only if the policy cannot be construed simply, based on its language, because of an ambiguity, will the court look to extrinsic evidence to determine the parties' intent. Doerr v. Mobil Oil Corp. , 2000-0947 (La. 12/19/00), 774 So.2d 119 ; Bilyeu v. National Union , supra .

The lawful beneficiary of a life insurance policy "shall be entitled to the proceeds and avails of the policy against the creditors and representatives of the insured[.]" La. R.S. 22:912 A(1). When the insured names a beneficiary, the proceeds of the policy do not form any part of the insured's estate at his death. Fowler v. Fowler , 2003-0590 (La. 12/12/03), 861 So.2d 181, and citations therein; Norsworthy v. Succession of Norsworthy , 30,010 (La. App. 2 Cir. 12/12/97), 704 So.2d 953. When the policy unambiguously names a beneficiary, the court may not inquire into whether the insured "desired" to change the beneficiary. Fowler v. Fowler , supra ; Standard Life Ins. Co. of S. v. Franks , 278 So.2d 112 (La. 1973). The inclusion of the word "wife" after the beneficiary's name designates that person's relationship at the time of the execution of the policy. American Health & Life Ins. Co. v. Binford , supra ; Sieferman v. State Farm Mut. Auto. Ins. Co. , 2001-0439 (La. App. 3 Cir. 10/3/01), 796 So.2d 833.

DISCUSSION

By her sole assignment of error, Connie urges the district court erred in denying her motion for summary judgment. She contends that the Southern Farm Bureau policy clearly designated her as the beneficiary; under R.S. 22:912 A(1), the lawful beneficiary is entitled to the proceeds of the policy; and the opponents, Ruby and Debra, produced no summary judgment evidence to show that anybody else was the lawful beneficiary. She submits that American Health & Life Ins. Co. v. Binford , supra , is factually and legally apposite, and mandates the grant of summary judgment in her favor. This argument has merit.

We have closely examined the policy. It states, in § 9.1, "The Primary and Contingent Beneficiary are as named in the application, unless changed by the Owner." Further, in § 9.3, "If the right to change the Beneficiary has been reserved, the Owner may change the Beneficiary during the Insured's lifetime by filing written notice to the Company." The application, dated March 27, 1989, contains a line, "Primary Beneficiary," after which is handwritten, "Ruby B. Cox (Mother)." A change of beneficiary form, dated August 21, 1992, instructs Southern Farm Bureau to "change the beneficiary of said policy as follows," after which is handwritten, "Connie Gonzales Cox (wife)." Nobody has offered any evidence that Hillie executed a subsequent change of beneficiary form. These documents, taken together, satisfy the threshold showing that Connie is the lawful beneficiary and entitled to the proceeds of the policy, under R.S. 22:912 A(1).

Of course, if the policy contains an ambiguity, the court may look to extrinsic evidence to determine the parties' intent. Ruby and Debra contend that the change of beneficiary form is ambiguous because it names "Connie Gonzales Cox" when, in fact, Connie's full name is Connie Gonzales Cox Shaffer . The record clearly shows that Connie answered the petition as "Connie Shaffer," moved for summary judgment as "Connie Gonzalez Cox Shaffer," and identified herself as Hillie's former wife. There is no confusion as to her identity, no summary judgment evidence that she went by the name Shaffer in 1992, when Hillie executed the change of beneficiary form, and no suggestion that anybody other than Connie was designated as beneficiary. There is no ambiguity in Hillie's failure to include his then-wife's later-acquired married name.

They also urge that Hillie's inclusion of "(wife)" after Connie's name "does cause one to stop and think." In support, they cite Continental Bank & Trust Co. v. Sovereign Camp , supra , in which the insured, named E.L. Harper Jr., listed as the beneficiary of a mutual benefit certificate, "Mrs. E.L. Harper, Jr., bearing relation to him of wife." The Supreme Court held that this referred to Harper's surviving spouse, and not to his wife at the time he executed the certificate, who predeceased him. We agree that designating merely "Mrs." or "wife" as beneficiary is ambiguous, but not when accompanied by the person's full name, as happened here. The qualifier "wife" after the beneficiary's full name gives no hint of any intent to make one other than the named person the beneficiary. American Health & Life Ins. Co. v. Binford , supra ; Sieferman v. State Farm , supra . The use of "wife" on the change of beneficiary form did not create ambiguity.

Ruby and Debra also contend the policy itself is ambiguous because § 9.1 says merely that the beneficiary may be "changed by the Owner," while § 9.3 specifies doing so "by filing written notice to the Company." They submit that this apparent contradiction may have led a reasonable person to think any expression of change would be adequate. However, the fact that Hillie executed a written change of beneficiary form, in 1992, refutes any suggestion that he was confused by the policy. Besides, the phrasing of 9.1 and 9.3 is not ambiguous. The mere fact that an insurance policy states general provisions, and then states special provisions that deviate from the general, does not make the policy ambiguous. Bilyeu v. National Union Fire Ins. , supra , and citations therein.

Finally, Ruby and Debra urge that applying the policy as written would lead to an absurd consequence, contrary to La. C.C. art. 2046, and defeat the principle of equity, La. C.C. art. 9. Citing the affidavits, they show that after the divorce, Hillie had nothing more to do with Connie; for the final 14 years of his life, he lived next door to, or with, his mother, who cared for him constantly through his final illness; and he told several people that the insurance would be paid to his mother. The Civil Code does not define the concept "absurd consequences," but the jurisprudence makes clear that just because a contract is a bad deal for someone is not grounds for undermining its terms. Gibbs Const. Co. v. Thomas , 500 So.2d 764 (La. 1987) ; Stroope v. Smith , 51,685 (La. App. 2 Cir. 5/18/16), 199 So.3d 612, 2016 IER Cas. 157,700. We perceive nothing inherently absurd about leaving a former spouse on an insurance policy. Despite the district court's reservations, the fact that Hillie went 14 years without changing the beneficiary could equally well prove that he intended to leave Connie on the policy. Ruby and Debra's argument lacks merit.

In essence, this case is apposite with American Health & Life Ins. Co. v. Binford , supra , and Sieferman v. State Farm , supra . The insured named his wife as beneficiary of an insurance policy; the couple later divorced; and the insured took no action to change beneficiary. The policy, application, and change of beneficiary form are free of ambiguity. The extrinsic evidence is simply irrelevant. There is no genuine issue of material fact, and Connie is entitled to the proceeds as a matter of law.

CONCLUSION

For the reasons expressed, the writ is granted and made peremptory. The district court's ruling is reversed, and summary judgment is entered in favor of Connie Gonzalez Cox Shaffer, awarding her the proceeds of the Southern Farm Bureau policy. All costs are to be paid by the respondents, Ruby Sanders Cox and Debra Cox Diffey.

WRIT GRANTED AND MADE PEREMPTORY; SUMMARY JUDGMENT RENDERED IN FAVOR OF THE APPLICANT, CONNIE GONZALEZ COX SHAFFER.

BROWN, C.J., dissents.

I respectfully disagree with the majority opinion. The ex-wife moved for summary judgment in the trial court. The trial court stated, "[f]ourteen years (the period from divorce to death) concerns the Court enough that this may possibly lead to an absurd result ..." The trial court found that defendants have presented sufficient facts for the court to conclude that, "at least for summary dismissal the motion should not be granted, and we need to have this tried fully on that issue." I agree with the common sense approach of the trial court and its cogent understanding of the applicable law.

La. C.C. art 2046 provides, "When the words of a contract are clear and explicit and lead to no absurd consequences , no further interpretation may be made in search of the parties' intent. La. C.C. art. 9 states, "When a law is clear and unambiguous and its application does not lead to absurd consequences , the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. (Emphasis added).

It is well-settled that a statute may not be construed so broadly that it defeats the purpose for which it was enacted or lead to absurd consequences. Shelton v. Pavon , 16-0758 (La. App. 4 Cir. 2/15/17), 212 So.3d 603, writ granted , 17-0482 (La. 4/24/17), 219 So.3d 328, affirmed , 17-0482 (La. 10/18/17), 236 So.3d 1233. In McLane Southern, Inc. v. Bridges , 11-1141 (La. 1/24/12), 84 So.3d 479, 484-5, the supreme court observed:

Other fundamental rules of statutory construction lead to the same result. ... In order for a court to find a literal application results in "absurd consequences," "there must be a determination by the court that the specific application at issue arising from the literal wording would, if judicially enforced, produce a factual result so inappropriate as to be deemed outside the 'purpose' of the law." P. Raymond Lamonica and Jerry G. Jones, 20 Louisiana Civil Law Treatise: Legislative Law and Procedure , § 7.4 (2011 ed.). (Emphasis added).

The majority opinion states that that the affidavits filed in opposition to the Motion for Summary Judgment "show that after the divorce, Hillie had nothing more to do with Connie (his ex-wife); for the final 14 years of his life, he lived next door to, or with, his mother, who cared for him constantly through his final illness; and, he told several people that the insurance would be paid to his mother."

The two cases cited by the majority in support for its opinion, American Health & Life Ins. Co ., supra, and Sieferman , supra, are factually different from the present case, and, significantly, involved trials, not summary judgments.

Further, the majority opinion states that "the fact that Hillie went 14 years without changing the beneficiary, could equally well prove that he intended to leave (the ex-wife) on the policy." Clearly, a question of fact exists that can only be resolved at trial not by summary judgment.

      In the change of beneficiary form and in most of the pleadings, Connie's maiden name is spelled Gonzales , but in her own pleadings it is spelled Gonzalez .

      Citing a special provision of the policy, however, the court split the proceeds between Harper's surviving (second) wife and the children of his first marriage, to the predeceased first wife.


text:
    STATE of Louisiana, Appellee v. Robert J. BUTLER, Jr., Appellant
    No. 51,922-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered April 11, 2018.
    LOUISIANA APPELLATE PROJECT, By: Peggy J. Sullivan, Counsel for Appellant
    BRIAN E. FRAZIER, District Attorney, Counsel for Appellee
    CHARLES L. COOK, Assistant District Attorney
    Before BROWN, MOORE, and STONE, JJ.
   MOORE, J.

The defendant pled guilty to four counts of illegal possession of stolen things valued at over $1,500 (Counts 1-4), each a violation of La. R.S. 14:69(B)(1), and three counts of illegal drug possession, including one count of possession of a Schedule II controlled dangerous substance, Hydrocodone (Count 6), a violation of La. R.S. 40:967(C), and two counts of possession of Schedule IV controlled dangerous substances, Alprazolam and Barbital (Counts 7 & 8), each a violation of La. R.S. 40:969(C). In exchange for his guilty plea, the state agreed to dismiss the charge in Count 5, possession of methamphetamine, and it also agreed not to file a habitual offender bill. Despite the defendant's record of several felony arrests and convictions, he is classified as a second felony offender.

The trial court imposed consecutive three-year sentences at hard labor for each of Counts 1-4, illegal possession of stolen things, and concurrent sentences of two, four and two years at hard labor respectively for Counts 6, 7 and 8, the drug possession offenses. The court ordered the concurrent sentences imposed for Counts 6, 7 and 8 to be served consecutive to the sentences imposed for Counts 1-4. Accordingly, the total sentence initially imposed was 16 years.

Following this sentencing proceeding, the defendant filed a motion to reconsider sentence. Subsequently, the trial court amended the defendant's sentence solely with regard to Count 3, making that three-year consecutive sentence a three-year sentence running concurrent with the other illegal possession charges. In all other respects, the sentences remained as they were originally imposed. The court specifically noted that Counts 6, 7 and 8 were to be served consecutively to the three consecutive sentences for Counts 1, 2, and 4, of which the three-year sentence for Count 3 would run concurrently. As such, the court noted that the total sentence imposed was now 13 years. The court gave Butler credit for time served, and also amended the original sentence by ordering that Butler undertake substance abuse treatment while incarcerated.

The defendant now appeals his sentence, alleging it is constitutionally excessive. For the following reasons, we affirm Butler's convictions and sentences.

FACTS

The state provided the following factual basis for Butler's guilty pleas:

On May 25, 2016, law enforcement received a complaint from someone named Mabel Butler that Butler was putting items on her property without her consent. Investigating officers found Butler staying in the mobile home on the property. With Mabel Butler's consent, the property was searched. Officers found four pieces of equipment, all reported stolen: a Big Tex trailer, belonging to River Run Dirt Service, reported stolen on May 25, 2016; a John Deere mini excavator, reported stolen on May 19, 2016; a white, enclosed utility trailer, reported stolen on April 7, 2016; and a Kubota mini excavator, reported stolen and already resold to a third party by Butler.

Officers also found, during a search of the mobile home and vehicle on the premises, methamphetamine, hydrocodone, alprazolam and barbital. There were two doses of alprazolam in a total of 66½ tablets.

Butler agreed with the state's recitation of facts and said he was guilty of each of the offenses. The court found a sufficient factual basis for each of the guilty pleas and accepted Butler's guilty pleas to Counts 1, 2, 3, 4, 6, 7 and 8. Count 5 was dismissed. The court ordered a presentence investigation ("PSI").

At the sentencing hearing on July 11, 2017, the court noted that it reviewed the PSI and a letter provided by Butler's attorney, on Butler's behalf, asking the court to consider running all sentences concurrently since none of the offenses were crimes of violence and the drug offenses were for possession, not distribution. Additionally, the defense argued the victim impact was minimal because items were returned to the victims who reported only minimal financial loss. One victim reported he had to replace some lights on his trailer, and the owner of the Kubota excavator reported a loss of potential revenue because the equipment was unavailable for rent.

The state argued that concurrent sentences would be improper under La. C. Cr. P. art. 883, because the items were stolen at separate times and from separate locations; thus, Butler did not possess the items in one act or as part of one scheme or plan. The state further objected to concurrent sentences in light of Butler's extensive criminal history. Additionally, it pointed out that Butler had resold the stolen Kubota excavator to a third party who never recovered several thousand dollars he gave to Butler as a down payment.

The court reviewed Butler's personal, family, and educational history. Butler, age 36 (at the time of sentencing), was educated through the 11th grade, and had held jobs in a music store, a surveying business and the pipeline industry. Butler reported that he was separated from his wife and that he had three children, ages 11, 10, and 5. Butler admitted that he used marijuana and pain killers, but denied having an addiction.

The court noted that Butler had an extensive list of arrests and convictions. He had not changed his behavior as a result of incarceration, and violated probation. Butler has been a career criminal since attaining the age of majority and had demonstrated a propensity to commit crimes, an unwillingness to learn from his mistakes, a failure to comply with probation, and a disregard for others, their property, and the law.

Butler's criminal history included a November 1999 conviction for possession of cocaine and marijuana, for which he received suspended sentences and probation; his probation was revoked in 2000. In December 1999, he pled guilty to two counts of distribution of cocaine and received a five-year hard labor sentence, with three years suspended. In 2010, he pled guilty to aggravated flight from an officer and possession of marijuana, and was sentenced to 30 days in jail and six months of probation. In 2016, he pled guilty to possession with intent to distribute a Schedule IV controlled dangerous substance and was sentenced to three years at hard labor. In 2011, he pled guilty to resisting an officer by use of force or violence and was sentenced to three years at hard labor with all but six months suspended and three years of probation; probation was revoked in 2012. He also had charges pending for two counts of aggravated criminal damage to property, aggravated assault with a firearm, and possession of a firearm by a convicted felon.

As the court noted, there were some mitigating factors: none of the instant charges were for violent offenses and all of the property had been returned with minimal damage. On the other hand, the court noted that, given his criminal history, there was an undue risk Butler would commit another crime if given probation, and that Butler needed correctional treatment in a custodial environment.

The court sentenced Butler to two years at hard labor for Count 6, possession of hydrocodone, four years at hard labor for Count 7, possession of alprazolam, and two years at hard labor for Count 8, possession of barbital. It ordered these three sentences were to run concurrently.

The court then sentenced Butler to three years at hard labor for each count (Counts 1-4) of illegal possession of stolen things, with those sentences to be served consecutively to each other and consecutively to the other three sentences for the drug-related offenses. The court stated that any lesser sentence would deprecate the seriousness of the offenses. Butler was given credit for time served and advised that he had two years from the date the convictions and sentences became final to seek post-conviction relief.

Butler filed a motion to reconsider sentence. At a hearing on August 15, 2017, he argued that his sentences were constitutionally excessive, in that the sentences for illegal possession of stolen goods were imposed to run consecutively. He urged that the sentences for Counts 1 through 4 should run concurrently because he possessed the stolen items at one time, in one act or occurrence, as part of one common scheme to buy and sell items. He also argued that two of the stolen items were of a much lesser value than the excavators and that the equipment was returned. In opposition, the state again argued that the sentences imposed were correct.

The court said it was unimpressed that Butler was committing these offenses while raising his children, when Butler knew the criminal justice system and the consequences of committing these crimes. It noted that Butler knew he could not commit these crimes and have his children around and that he could not support his children financially by committing crimes.

Again reviewing Butler's record and PSI, the court found that its reasons for imposing the original sentences remained valid. However, it ordered that the sentence on Count 3 to run concurrently to the other sentences for illegal possession of stolen things, Counts 1, 2 and 4, but consecutively to the sentences in Counts 6, 7 and 8. Additionally, because Butler now admitted to the court that he did have a problem with drug use, the court ordered Butler to receive substance abuse treatment while incarcerated.

Butler filed the instant appeal alleging that his sentences are excessive.

DISCUSSION

On appeal, Butler argues that consecutive sentences for three of the four illegal possession of stolen things convictions were unconstitutionally harsh and excessive. Although he avoided an habitual offender bill by pleading guilty to the charges, the court sentenced him to three-year sentences at hard labor for each stolen item in his possession at the same time and ordered three of the four sentences to be served consecutively despite the fact this incident was one occurrence or transaction, i.e., the four convictions for illegal possession of stolen things constituted a single course of conduct or common scheme.

The state argues that because the items were stolen at separate times, from separate locations and from separate owners, Butler obtained possession of the stolen items at separate times. The trial court only briefly addressed that issue, finding that Butler's possession of the stolen goods was separate and distinct for each offense, thereby warranting consecutive sentences.

In reviewing a sentence for excessiveness, an appellate court first determines whether the trial court considered the sentencing guidelines, and aggravating and mitigating factors, all set forth in La. C. Cr. P. art. 894.1. State v. Nixon , 51,319 (La. App. 2 Cir. 5/19/17), 222 So.3d 123. The court is not required to list every aggravating or mitigating factor present in the case, but the record should reflect the factors that the court considered. Id.

Constitutional review turns on whether the sentence is illegal or grossly disproportionate to the severity of the offense. State v. Scott , 50,920 (La. App. 2 Cir. 11/16/16), 209 So.3d 248, writ denied , 17-0353 (La. 11/13/17), 229 So.3d 478 ; State v. Davis , 50,149 (La. App. 2 Cir. 11/18/15), 181 So.3d 200. A sentence is grossly disproportionate if, when the crime and punishment are viewed in light of the harm to society, it shocks the sense of justice. Id.

The trial court has wide discretion to impose a sentence within the statutory limits, and the sentence imposed will not be set aside as excessive absent a manifest abuse of that discretion. State v. Williams , 03-3514 (La. 12/13/04), 893 So.2d 7 ; State v. Diaz , 46,750 (La. App. 2 Cir. 12/14/11), 81 So.3d 228. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. Williams , supra ; State v. Free , 46,894 (La. App. 2 Cir. 1/25/12), 86 So.3d 29.

La. C. Cr. P. art. 883 provides:

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently. In the case of the concurrent sentence, the judge shall specify, and the court minutes shall reflect, the date from which the sentences are to run concurrently.

Although La. C. Cr. P. art. 883 favors imposition of concurrent sentences for crimes committed as part of the same transaction or series of transactions, the trial court has discretion to impose consecutive sentences where the defendant's criminal history and other circumstances indicate that the defendant is a grave risk to the community. State v. Nixon, supra ; State v. Simpson , 50,334 (La. App. 2 Cir. 1/13/16), 186 So.3d 195. However, concurrent sentences arising out of a single course of conduct are not mandatory, and consecutive sentences under those circumstances are not necessarily excessive. State v. Hebert , 50,163 (La. App. 2 Cir. 11/18/15), 181 So.3d 795 ; State v. Robinson , 49,677 (La. App. 2 Cir. 4/15/15), 163 So.3d 829, writ denied , 15-0924 (La. 4/15/16), 191 So.3d 1034.

The imposition of consecutive sentences for multiple offenses arising from a single act or scheme must be justified by the evidence of record and the trial court must state what factors were considered in reaching the determination to impose consecutive terms. State v. Scott , 50,920 (La. App. 2 Cir. 11/16/16), 209 So.3d 248, writ denied , 17-0353 (La. 11/13/17), 229 So.3d 478 ; State v. Nixon , supra . The trial court should consider the danger and vicious nature of the offenses, the impact on the victims, the defendant's history of criminal acts, the risk the defendant poses to the public, the potential for the defendant's rehabilitation, and the benefit derived from any plea bargain. State v. Simpson , supra . If the record reflects adequate compliance with the sentencing guidelines, the reviewing court must determine whether the sentence imposed is too severe in light of this particular defendant and the circumstances of his or her case, keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged. State v. Simpson , supra ; State v. Washington , 46,568 (La. App. 2 Cir. 9/21/11), 73 So.3d 440, writ denied , 11-2305 (La. 4/27/12), 86 So.3d 625.

Failure to articulate specific reasons for consecutive sentences does not require remand if the record provides an adequate factual basis to support consecutive sentences. State v. Robinson , supra .

In State v. Simpson, supra , the trial court sentenced Simpson to six years at hard labor for each of 10 counts of second degree cruelty to her infant, imposed to run consecutively, for a total of 60 years. This court held that the trial court failed to provide adequate reasons to justify the 60-year sentence for an 18-year-old first-time offender, who pled guilty as charged without benefit of a plea bargain, who no longer had custody of her twin children and was no longer a danger to them upon release. This court found that the consecutive sentences were disproportionate and vacated the sentences and remanded the case with instructions to run the 10 sentences concurrently.

In State v. Nixon , supra , the defendant was convicted of two counts of distribution of marijuana and one count of distribution of cocaine, after two sales worth a total of $200. This court concluded that the imposition of three 20-year sentences to run consecutively was unconstitutionally excessive because the resulting 60-year sentence was grossly disproportionate to the harm caused by the offenses committed. Id.

In State v. Jones , 50,815 (La. App. 2 Cir. 8/24/16), 201 So.3d 997, writs denied , 16-1746, (La. 6/16/17), 220 So.3d 755, and 16-1775 (La. 9/16/17), 224 So.3d 981, the trial court sentenced Jones to the maximum of 10 years at hard labor on each of two counts of forging checks, stolen from the same victim and cashed at the same location, on the same day. The panel in Jones concluded, however, that the trial court erred by ordering the sentences to be served consecutively, inasmuch as both convictions arose from a single course of conduct, there was minimum harm to the victim who recovered her money, the offenses were nonviolent, and the defendant had no prior felony convictions.

At the time of these offenses, in 2016, La. R.S. 14:69 provided, in pertinent part:

Illegal possession of stolen things is the intentional possessing, procuring, receiving, or concealing of anything of value which has been the subject of any robbery or theft, under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses. Whoever commits the crime of illegal possession of stolen things, when the value of the thing is one thousand five hundred dollars or more, shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than three thousand dollars, or both.

Although Butler does not argue that the concurrent sentences imposed the drug possession offenses in this case are excessive, we note that the sentencing range for possession of hydrocodone, R.S. 40:967(C), is not more than five years at hard labor and a fine of not more than $5,000; the sentencing range for alprazolam and barbital, R.S. 40:969(C), not more than five years with or without hard labor and a possible fine up to $5,000.

On appeal, Butler concedes that the trial reviewed the aggravating and mitigating factors of Art. 894.1. The court noted that Butler was no longer under supervised probation, and the property was returned in good shape with minimal damage, with the exception of lost rental on the equipment asserted by one of the owners. He argues that the court should consider the financial hardship to his three children ages, 11, 10 and 5.

He suggests that the court considered his criminal history as the principal aggravating factor, even though he is classified as only a second felony offender. His main argument, however, is that the four charges of illegal possession of stolen things constituted a single transaction, and therefore the sentences should run concurrently. He also notes that the crimes were not dangerous and the monetary loss to the victims was not substantial.

After review, we conclude that the record shows that the trial court adequately complied with La. C. Cr. P. art. 894.1, and considered the appropriate factors in determining Butler's sentences. The court adequately particularized the sentences it imposed in light of Butler's history and the offenses involved. The court thoroughly reviewed his personal, educational, work and family information, noting that Butler was 36 years old, had attended school through the 11th grade, had held various jobs, had three small children, and was separated from his wife. Butler admitted he used marijuana and pain killers, and he later admitted an addiction problem for which the court ordered treatment.

The trial court reviewed Butler's PSI, as well as his attorney's letter arguing that concurrent sentences would be appropriate. The court reviewed Butler's prior criminal history, which included convictions for aggravated flight from an officer and resisting an officer by use of force or violence. Additionally, Butler had five prior felony convictions for possession and distribution of controlled dangerous substances. As the court observed, Butler is a career criminal whose record demonstrates disrespect of the law and other people's property, and that he is unwilling to learn from his mistakes or be rehabilitated. Other than the decision to plead guilty, Butler did not demonstrate any remorse or regret. He asked the trial court for leniency in sentencing, in light of his young children; however, the trial court emphasized the seven instant offenses showed his lack of concern for his children's well-being.

The sentences imposed fall within the statutory guidelines. None of the sentences imposed for illegal possession of stolen things were at or near the maximum, and in fact, were substantially less than half the maximum. In fact, with the exception of the four-year sentence in Count 7, possession of alprazolam, all of the sentences were less than half of the maximum available under all the applicable statutes. Additionally, Butler received the benefit of having one offense dismissed and the state's agreement not to file a habitual offender bill. Butler has a history of convictions for possession of controlled dangerous substances, which comprise three of the seven instant offenses, and has twice violated his probation in prior convictions. Butler's record demonstrates his disrespect for the law, his refusal to learn from his mistakes, and his refusal to be rehabilitated. The instant illegal possession offenses are just the latest demonstration of Butler's criminal activities. Under these circumstances, the individual sentences imposed for these seven convictions are not disproportionate to the offenses, do not shock the sentence of justice, and are not constitutionally excessive.

While the trial court did not provide a comprehensive explanation regarding the specific factors considered in ordering the sentence to run consecutively, it did provide a record that sufficiently supports that conclusion. Butler's instant convictions are not crimes of violence, but he has an extensive history of criminal offenses and convictions which include two convictions for crimes of violence involving law enforcement. The stolen items were returned with minimal damage; however, the items were of significant value, ranging from $1,500 to $5,000 to $27,000, and one victim suffered a loss in revenue, while a third party lost thousands in a down payment that he never recovered. Additionally, there was minimal financial loss in this case only because Butler got caught, so to claim credit for this fact is disingenuous.

While Butler may not fall within the group of defendants who are considered a grave danger to the public, none of the sentences were for the maximum allowed by the applicable statutes, and all but one was for less than half the potential sentence.

Also, the three drug convictions plus one conviction for possessing stolen things were imposed to run concurrently. The imposition of concurrent and consecutive sentences resulting in a total of 13 years imprisonment for these seven convictions is not disproportionate to the crimes.

Also, considering Butler's prior convictions for crimes of violence involving law enforcement; the significant value of the items which he knew were stolen; his propensity for illegally possessing controlled dangerous substances, and the benefit he derived from the plea bargain, the imposition of consecutive and concurrent sentences for these seven convictions does not shock the sense of justice. Accordingly, we conclude that the sentences imposed are not constitutionally excessive.

We have reviewed the entire record and found nothing we consider to be error patent. La. C. Cr. P. art. 920 (2).

CONCLUSION

For the foregoing reasons, we affirm Butler's convictions and sentences.

CONVICTIONS AND SENTENCES AFFIRMED.

      Butler's relation, if any, to the complainant was not disclosed.

      At sentencing the court noted that the trailer was valued at $5,000.

      At sentencing the court noted that the excavator was valued at $27,000.

      The state reported that the owner said the actual value of this item is $1,700. Butler agreed that the value was greater than $1,500.00.

      The record indicates that the purchaser made a $6,000 down payment toward the purchase of the mini-excavator, but apparently had not taken possession.


author: STONE, J.

text:
    In the MATTER OF the SUCCESSION OF Wenona Nix ADAMS
    No. 51,914-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered April 11, 2018
    BARRY W. DOWD, Monroe, Counsel for Appellants
    RHETT ROBERT RYLAND, CARMEN ELYSE RYLAND, Baton Rouge, Counsel for Appellee
    Before BROWN, MOORE, and STONE, JJ.
   STONE, J.

Appellant, Bette Adams Griffing, appeals the trial court judgment overruling her dilatory exception of improper use of summary proceedings. Appellant also appeals the trial court judgment ordering that the $58,994.05 returned to the estate of Wenona Nix Adams be evenly distributed among five heirs. For the following reasons, we amend the trial court judgment to vacate the distribution of the estate, and as amended, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On November 5, 2015, Wenona Nix Adams ("Adams") died intestate at a nursing home in Winnsboro, Louisiana. She is survived by five adult children. On August 22, 2016, Adams' daughter Beverly Adams Deumite ("Deumite") was appointed administrator of Adams' succession. The estate mainly consists of a joint checking account ("joint account") between Adams and her daughter Bette Adams Griffing ("Griffing") whom Adams granted a power of attorney prior to her death. After being appointed administrator, Deumite noticed multiple withdrawals from the joint account made by Griffing during the year and a half preceding Adams' death.

On October 4, 2016, Deumite filed a rule to show cause ("petition") requesting Griffing and her husband, John Griffing, Jr., be ordered to appear and show cause why certain funds withdrawn from the joint account should not be returned to Adams' estate pending a determination of the estate's assets and liabilities. On November 4, 2016, Griffing filed a dilatory exception of unauthorized use of summary proceedings alleging that since Deumite wanted the trial court to conclude who owned the monies from the joint account, summary proceedings were improper. Both the petition and the exception were set for a hearing on December 12, 2017. The trial court denied Griffing's exception and found portions of the funds withdrawn by Griffing from the joint account belonged to Adams' estate. The trial court stated it is "obvious [Griffing] used assets of the Estate of Ms. Adams for her personal expenses, and that [Griffing] had converted assets of Ms. Adams to her personal use and possession." The trial court ordered Griffing to return $58,994.05 to Deumite for inclusion in Adams' estate. Griffing now appeals.

DISCUSSION

Griffing first contends the trial court failed to rule on her dilatory exception of unauthorized use of summary proceedings. Alternatively, Griffing argues if the trial court did deny the exception, the ruling is incorrect because summary proceedings are not allowed unless specifically provided for in La. C. C. P. art. 2592, and determination of ownership of funds is not encompassed.

A dilatory exception is a procedural device to delay the progress of the action, not defeat it. La. C.C.P. art. 923. All objections that may be raised through the dilatory exception are waived unless pleaded therein. La. C. C. P. art. 926. See also Boyd v. Boyd , 499 So.2d 164 (La. App. 2 Cir. 1986). The exception must be tried before the trial of the case. La. C. C. P. art. 929(A). Even if he files a dilatory exception, the defendant must insist upon a hearing and ruling; failure to do so, or to object to going forward on the day of trial, is deemed a waiver of the exception. Steed v. St. Paul's United Methodist Church , 31,521 (La. App. 2 Cir. 02/24/99), 728 So.2d 931, and citations therein .

The record reveals the trial court, after apparently discussing the matter with counsel in chambers, overruled Griffing's exception in open court prior to the hearing on Deumite's rule to show cause. No hearing was held on the merits of Griffing's exception. Griffing neither insisted the trial court conduct a hearing on the exception prior to trial nor did she object to the trial court's overruling the exception. The exception is, therefore, deemed waived, and we shall not disturb the trial court's ruling on appeal. Steed , supra .

Next, Griffing contends the trial court abused its discretion and was clearly wrong when it mandated the monies transferred into the estate be equally distributed to Adams' 5 heirs. Griffing asserts Deumite's petition only requested the transfer "pending a determination of assets and liabilities of the estate," and the trial court's ruling to distribute the monies went beyond the pleadings.

Under the manifest error standard, the trial court's factual findings can be reversed only if the appellate court finds, based on the entire record, no reasonable factual basis for the factual finding and the trial court is clearly wrong. Baker v. PHC-Minden L.P. , 2014-2243 (La. 05/05/15), 167 So.3d 528. When findings are based on determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the trial court's findings. Robinson v. Board of Supervisors , 2016-2145 (La. 06/29/17), 225 So.3d 424, 347 Ed. L. Rep. 1273. Where documents or objective evidence so contradict the witness' story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness' story, then the court of appeal may find manifest error or plain wrongness even in a finding based on credibility. But where such factors are not present, and the trial court's finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Id. ; Rosell v. ESCO , 549 So.2d 840 (La. 1989).

La. Const. Art. 1, § 2, provides that no person shall be deprived of life, liberty, or property except by due process of law. The essentials of "due process of law" are notice and an opportunity to be heard and to defend in an orderly proceeding rules and principles established in our system adapted to the nature of the case. Havener v. Havener, 29,785 (La. App. 2 Cir. 08/20/97), 700 So.2d 533.

La. C. C. P. art. 862 grants the trial court authority to render a final judgment granting the relief to which the party in whose favor it is rendered is entitled. A court may not decide a controversy which the litigants have not regularly brought before it. Dupree v. Dupree, 41,572 (La. App. 2 Cir. 12/20/06), 948 So.2d 254 ; Havener, supra . The court may only grant relief warranted by the arguments contained in the pleading and the evidence. Dupree, supra. If the evidence is admissible on the issues properly pleaded, the pleadings are not enlarged by its admission. Havener, supra. A judgment rendered beyond the pleadings is a nullity. La. C.C.P art. 1154.

The petition filed by Deumite on October 4, 2016, requested the following relief:

* * * * * *
2) That Bette Adams Griffing and John Griffing, Jr. show cause why they should not be ordered to return all money to the succession pending a determination of assets and liabilities.

Deumite never amended her petition, either in writing or verbally in open court, to reflect that she wanted the court to determine what portions of the funds withdrawn from the joint account belonged to the estate and what portions belonged solely to Griffing. Griffing was only placed on notice that Deumite wanted the funds transferred into the estate pending a determination of ownership. Additionally, there was no evidence was presented at trial which expanded the petition to allow for a determination of who owned which portion of the funds. In fact, there is a paucity of evidence relating to where all the funds came from, what the expenditures were for, and how the money was spent. However, we note that, although Griffing does not raise the issue on appeal, the evidence does establish a reasonable basis for the money to be returned to Adams' estate until a proper accounting can be done to determine how the funds should be lawfully distributed. It appears the trial court, in a commendable effort to get the small succession concluded and the estate monies distributed to the five heirs, conflated the return of succession funds with the ultimate factual issue of how much Griffing spent out of the account in tending to Adams before her death. Since the trial court granted recovery not requested in the pleadings nor argued at trial, that portion of the judgment is a nullity and we amend the judgment to delete any reference to distribution of Adams' estate. La. C. C. P. art. 1154.

CONCLUSION

For the reasons stated above, we affirm the trial court's judgment overruling Griffing's dilatory exception of unauthorized use of summary proceedings. We affirm the trial court's judgment ordering the sum of $58,994.05 to be transferred to the estate of Wenona Nix Adams; however, we amend the judgment to vacate the portion ordering the administrator, Beverly Adams Deumite, to equitably distribute the net assets of the estate to its heirs. Costs are assessed equally between the parties.

AFFIRMED IN PART, AMENDED, AND AS AMENDED, AFFIRMED.


author: McCALLUM, J.

text:
    STATE of Louisiana, Appellee v. Billy R. MEADOWS, Jr., Appellant
    No. 51,980-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered April 11, 2018.
    LOUISIANA APPELLATE PROJECT, By: Carey J. Ellis, III, Counsel for Appellant
    JOHN McINTOSH LANCASTER, District Attorney, Counsel for Appellee
    AMANDA MICHELE WILKINS, WILL R. BARHAM, Assistant District Attorneys
    Before MOORE, PITMAN, and McCALLUM, JJ.
   McCALLUM, J.

On January 10, 2017, Billy R. Meadows pled guilty to second degree cruelty to a juvenile, and was subsequently adjudicated a fourth felony offender pursuant to La. R.S. 15:529.1. As a result of the habitual offender adjudication, Meadows' sentence was enhanced from 40 years of imprisonment at hard labor to imprisonment for the rest of his natural life. Meadows urges the following assignments of error: (1) the State's evidence was insufficient to prove that the 10-year "cleansing period" of La. R.S. 15:529.1(C) had not expired; (2) the evidence was insufficient to prove Meadows' identity as the person convicted of the predicate offenses; and (3) his sentence was constitutionally excessive pursuant to La. Const. art. I, § 20.

It bears mention that Meadows' current offense was particularly horrific. However, because the evidence was insufficient to prove that the cleansing period did not expire, we are constrained by law to reverse Meadows' adjudication as a habitual offender, vacate his sentence, and remand for further proceedings, where the deficiencies may yet be remedied.

FACTS AND PROCEDURAL HISTORY

On August 10, 2015, a grand jury indicted Meadows with second degree murder of a child. On January 10, 2017, Meadows pled guilty to the reduced charge of second degree cruelty to juveniles. The trial court accepted the plea, and ordered a presentence investigation report.

On March 15, 2017, the State filed a habitual offender bill of information against Meadows, alleging the following seven felony convictions:

• September 27, 2000, 2000-427F, Fifth JDC, Franklin Parish, Louisiana: Simple Burglary;
• September 27, 2000, 2000-426F, Fifth JDC, Franklin Parish, Louisiana: Unauthorized Use of a Motor Vehicle;
• November 3, 2000, 2000-540F, Fifth JDC, Franklin Parish, Louisiana: Simple Burglary;
• November 30, 2001, 2001-79F, Fifth JDC, Franklin Parish, Louisiana: Simple Burglary;
• November 30, 2001, 2001-801F, Fifth JDC, Franklin Parish, Louisiana: Possession of Firearm by a Convicted Felon;
• January 29, 2013, 2012-591F, Fifth JDC, Franklin Parish, Louisiana: Attempted Possession of a Firearm by a Convicted Felon; and
• January 10, 2017, 2015-402F, Fifth JDC, Franklin Parish, Louisiana: Second Degree Cruelty to a Juvenile.

On May 9, 2017, Meadows pled not guilty to the habitual offender charges. On July 6, 2017, he filed a "Response and Objection to Habitual Offender Bill of Information," making the following objections: (1) the pair of convictions obtained on September 27, 2000, unauthorized use of a motor vehicle and simple burglary, should be counted as one conviction for purposes of the habitual offender statute; and (2) the pair of convictions obtained on November 30, 2001, simple burglary and possession of a firearm by a convicted felon, should likewise be treated as one. The trial court overruled these objections.

At the adjudication hearing, the State called former prosecutor Johnny Boothe as its sole witness. As to each of the predicate felonies, Boothe testified that he remembered being the prosecutor in the case and convicting Meadows. He specifically identified Meadows as the person he convicted on each charge listed in the habitual offender bill of information. On cross-examination, Boothe maintained that he could have identified Meadows "as the same person who was convicted," but admitted that, without the exhibits, he "would not have recalled the [specific] convictions or the dates ... [of] ... the specific criminal charges." On redirect, Boothe stated that he has "no doubt in his mind" that Meadows was the person convicted of the predicate felonies.

The State used Boothe's testimony to introduce five exhibits, each of which consisted of a bill of information and guilty plea transcript relating to the respective predicate convictions. The state's exhibits are as follows:

• S-1, Docket No. 2000-426F, simple burglary committed on July 6, 2000;
• S-2, Docket No. 2000-427F, unauthorized use of a motor vehicle committed on July 6, 2000;
• S-3, Docket No. 2000-540F, simple burglary committed on August 23, 2000;
• S-4, 2001-79F & 2001-81F, simple burglary and convicted felon possessing firearm committed on November 27, 2000; and
• S-6, 2012-591F, attempted possession of a firearm by convicted felon committed on May 31, 2012.

The transcripts in each of these exhibits reflect that Meadows was represented by counsel and was properly Boykinized. In S-1, S-3, and S-4, Meadows testified that his birthday is March 30, 1982. In S-6, Meadows testified that his birthday is "the third, the third, 82," apparently a reference to March 3, 1982.

Based on the evidence, the trial court found Meadows to have been convicted of six prior felonies, and that none of those convictions had been cleansed. Pursuant to La. R. S. 15:529.1(A)(4)(b), as it was in effect on July 21, 2015, the trial court sentenced Meadows to life imprisonment "without benefit of probation, or suspension of sentence."

DISCUSSION

Sufficiency of the Evidence

In a habitual offender proceeding, the State has the burden of proof beyond a reasonable doubt on any issue of fact, except as to issues of fact raised by the defendant's response to the habitual offender bill of information. La. R.S. 15:529.1(D)(1)(b).

When the defendant challenges the sufficiency of the evidence, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Lynch, 436 So.2d 567 (La. 1983). This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State in Interest of D.R. , 50,594 (La. App. 2 Cir. 2/24/16), 188 So.3d 1116, 1120. Furthermore, the appellate court does not assess the credibility of witnesses or reweigh evidence. Id. ; State v. Smith , 94-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court must accord great deference to the fact-finder's decision to accept or reject the testimony of a witness in whole or in part. State v. Eason , 43,788 (La. App. 2 Cir. 2/25/09), 3 So.3d 685, writ denied , 09-0725 (La. 12/11/09), 23 So.3d 913.

Identity. "To meet its burden under the Habitual Offender Act, the State must establish both the prior felony conviction and the defendant's identity as the same person who committed that prior felony." State v. White , 2013-1525 (La. 11/8/13), 130 So.3d 298, 300. The habitual offender statute does not require the State to use a specific type of evidence; rather, "[p]rior convictions may be proved by any competent evidence." Id.

The testimony of only one witness, if believed by the trier of fact, may be sufficient support for a requisite factual conclusion, provided it does not bear internal contradiction or irreconcilably conflict with physical evidence. State in Interest of D.R. , supra at 1120.

Courts of this state have held the testimony of an attorney involved in the prior case to be sufficient to prove the identity of the defendant as the person who was convicted of the predicate offense. The Louisiana Supreme Court, in State v. Lee , 364 So.2d 1024 (La. 1978), found that the evidence was sufficient to prove that the defendant was the same person who was convicted of the predicate offense, where the attorney who represented the defendant in connection with the predicate offense testified that the defendant was the same person whom he had represented and who had pled guilty to the charge. In State v. Jones, 516 So.2d 396 (La. App. 5 Cir. 1987), the Fifth Circuit held that a former prosecutor's testimony identifying the defendant as the same person who was convicted of the predicate felony was sufficient proof of the defendant's identity as such. In State v. Bennett , 524 So.2d 1297 (La. App. 3 Cir. 1988), the Third Circuit held that the evidence of the defendant's conviction of the predicate offenses was sufficient where the state introduced: (1) copies of a prior bill of information charging the defendant with the predicate offenses; (2) minutes of court reflecting defendant's guilty plea to those charges; and (3) the testimony of the former prosecutor identifying the defendant as the person who was convicted of the prior offenses.

We find the evidence sufficient to prove Meadows' identity as the person who was convicted of the predicate felonies. He was named "Billy Ray Meadows, Jr." in each bill of information, and in each Boykin colloquy, he stated his name identically. In every plea colloquy, except that reflected in S-6, he testified that his birthday is March 30, 1982. In the plea colloquy reflected in S-6, Meadows reportedly stated that his birthday is "the third, the third, 82." In every plea colloquy, however, Meadows stated that his address is either 662 "Riley" Road, Winnsboro, LA, or 662 "Raleigh" Road, Winnsboro, LA. Finally, Johnny Boothe, the former prosecutor, unequivocally testified that he remembered Meadows as the person he had convicted of the predicate felonies. We have no reservation in finding that a rational trier of fact could conclude that the evidence was sufficient to prove beyond a reasonable doubt that Billy Ray Meadows, Jr., the defendant in this case, is the same person who was convicted of the predicate offenses. In light of the evidence as a whole, the discrepancy in the court reporter's (or reporters') spelling of the name of the road on which Meadows resided, and the one guilty plea in which he reportedly stated that his birthday is on March 3 rather than March 30, do not render the evidence insufficient.

Cleansing periods. The habitual offender bill of information alleges, inter alia , that Meadows was convicted of two felonies on November 30, 2001; the next conviction alleged was based on an offense committed on May 31, 2012. The State offered no evidence showing the date of Meadows' discharge from custody on the November 30, 2001, convictions, or that he remained in custody until May 31, 2012. As explained below, this court must find that these omissions render the evidence insufficient to support Meadows' adjudication as a fourth felony offender. The state bears the burden of proving that the predicate convictions fall within the "cleansing period" provided by La. R.S. 15:529.1(C). State v. Boiteux , 11-191 (La. App. 5 Cir. 12/13/11), 81 So.3d 123, 127.

The cleansing period to be applied is the one in effect at the time the defendant committed the current offense. State v. Casaday , 51,330 (La. App. 2 Cir. 5/17/17), 223 So.3d 108, 112. At the time Meadows committed the current offense, La. 15:529.1(C) provided the following cleansing period:

The current offense shall not be counted as, respectively, a second, third, fourth, or higher offense if more than ten years have elapsed between the date of the commission of the current offense or offenses and the expiration of the maximum sentence or sentences of the previous conviction or convictions, or between the expiration of the maximum sentence or sentences of each preceding conviction or convictions alleged in the multiple offender bill and the date of the commission of the following offense or offenses. In computing the intervals of time as provided herein, any period of parole, probation, or incarceration by a person in a penal institution, within or without the state, shall not be included in the computation of any of said ten-year periods between the expiration of the maximum sentence or sentences and the next succeeding offense or offenses.

The Louisiana Supreme Court has long held that the actual discharge date is what activates the cleansing period:

A sentence expires when the prisoner is discharged from state custody and supervision, not when the theoretical date arrives on which the initial sentence would have terminated. Thus, when a convicted person is discharged earlier (as well as later) than the expiration date of the sentence initially ... [imposed]... then the actual maximum sentence is that determined by his date of legal discharge, whether extended through revocation of parole or shortened by law due to "good time" diminution of the initial sentence.

State v. Anderson , 349 So.2d 311, 314 (La. 1977). Accord State ex rel. Wilson v. Maggio, 422 So.2d 1121 (La. 1982) ; State v. Washington , 2005-1330 (La. 4/28/06), 927 So.2d 271.

Anderson recognized that a convict may be legally discharged before or after the expiration of the initial sentence because of "good time" (diminution of sentence) or parole revocation (extension of sentence). Although perhaps unlikely, we also note the potential for a convict's initial sentence to be reduced by at least one other mechanism: executive pardon.

According to the allegations and evidence in the record, Meadows was convicted of a pair of felonies on November 30, 2001, and given two concurrent 10-year sentences; he did not commit his next felony (resulting in conviction) until May 31, 2012. There was no evidence presented from which a trier of fact could deduce that the cleansing period had not expired. Such proof is required by La. R.S. 15:529.1(C). Accordingly, the evidence was insufficient to prove Meadows' status as a fourth felony offender.

For purposes of adjudication of habitual offender status, a convict "is not protected by principles of double jeopardy" and may be tried again. State v. Johnson , 432 So.2d 815 (La. 1983). The proper action for an appellate court faced with a habitual offender adjudication based on insufficient evidence is to reverse the habitual offender adjudication, vacate the sentence, and remand for resentencing. State v. Tate , 593 So.2d 864, 869 (La. App. 2 Cir. 1992) ; State v. Jones, 08-466 (La. App. 5 Cir. 10/28/08), 98 So.2d 178. Finally, "on remand in habitual offender proceedings, another habitual offender hearing presenting evidence to readjudicate is not necessarily required... A court may take judicial cognizance of any prior preceding which was a part of the same case it had previously tried." State v. Roland, 49,660 (La. App. 2 Cir. 2/27/15), 162 So.3d 558, 567.

Because we find the evidence insufficient to support Meadows' adjudication, we do not reach the question of whether his sentence was excessive. State v. Silvio , 623 So.2d 1345 (La. App. 2 Cir. 1993).

Errors patent

In the event this remand results in defendant being again adjudicated a habitual offender, we would point out two other errors in the proceeding. The record discloses two errors patent, both of which amount to "harmless error."

Consideration of exhibit not introduced into evidence. As described in note 3, supra , State's Exhibit 5 was not introduced into evidence. Therefore, it was improper for the trial court to consider it. However, as is true of all the state's exhibits in this case, S-5 is composed of a bill of information and a guilty plea transcript. The guilty plea transcript in S-5 is identical to that in S-4; only the bills of information differed between those two exhibits.

Noncompliance with La. R.S. 15:529.1(B). The last sentence of La. R.S. 15:529.1(B) states: "multiple convictions obtained on the same day prior to October 19, 2004, shall be counted as one conviction for the purpose of this Section." See also, State v. LeBlanc, 2014-0163 (La. 1/9/15), 156 So.3d 1168 (indicating that the last sentence of La. R.S. 15:529.1(B) simply applies as written). The trial court's finding that Meadows had six prior felony convictions contravenes this rule. The habitual offender bill of information did allege six predicate offenses; however, two of those offenses were obtained on September 27, 2000, and two others on November 30, 2001. Application of this rule reduces the number of predicate offenses, for purposes of the habitual offender law, to four. We note that the conviction for possession of a firearm by a convicted felon, which was obtained on November 30, 2001, is reflected in State's Exhibit 5, which is also addressed in the immediately preceding paragraph.

La. R.S. 15:529.1(A)(4)(b) provides a mandatory life sentence "without benefit of parole, probation, or suspension of sentence" for a fourth felony offender "if the fourth felony and two of the prior felonies are defined as a crime of violence under R.S. 14:2(B)... or [are] punishable by imprisonment for 12 years or more." Even after application of the last sentence of La. R. S. 15:529.1(B), Meadows still has five felony convictions. The current offense, second degree cruelty to a juvenile, constituted a "crime of violence" under La. R.S. 14:2(B). Simple burglary carried a maximum penalty of 12 years in the year 2000, when Meadows committed three of the simple burglaries for which he has been convicted; each of these convictions was obtained on a different date. Thus, the requirements of La. R.S. 15:529.1(A)(4)(b) are satisfied despite these errors patent.

CONCLUSION

For the foregoing reasons, we reverse Meadows' adjudication as a fourth felony offender, vacate his sentence, and remand for further proceedings in accordance with this opinion.

ADJUDICATION REVERSED, SENTENCE VACATED, AND REMANDED FOR FURTHER PROCEEDINGS.

      S-5 was not introduced into evidence. The prosecutor did not request that it be admitted, and the court made no statement to the effect that S-5 was admitted. It appears that S-5 was thus received by the court and marked as an exhibit without actually having been introduced. S-5 consists of: (1) a bill of information charging Meadows with possession of a firearm by a convicted felon; (2) a transcript of Meadows' guilty plea to that charge and to simple burglary; these charges arose from the same criminal episode. The transcripts in S-4 and S-5 are identical; only the bills of information differ between S-4 and S-5.

      Meadows was not asked to spell the name of the road on which he lives. Rather, that spelling was left to the court reporter's discretion.

      La. Const. art. IV, § 5 (E).

      The trial court relied on State v. Shaw , 2006-2467 (La. 11/27/07), 969 So.2d 1233. Shaw , however, was based on an offense committed on June 26, 2004, i.e., prior to the amendment which added the operative language to the statute. Thus, Shaw did not address the version of the statute applicable to this case.