author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Jamarcus M. BATES, Appellant
    No. 51,890-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered February 28, 2018.
    LOUISIANA APPELLATE PROJECT, By: Douglas Lee Harville, Counsel for Appellant
    JAMES E. STEWART, JR., District Attorney, HOLLY Y. McGINNESS, TOMMY J. JOHNSON, Assistant District Attorneys, Counsel for Appellee
    Before WILLIAMS, MOORE, and GASKINS (Ad Hoc ), JJ.
   MOORE, J.

The defendant, Jamarcus M. Bates, was charged with possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1. After the trial court denied his motion to suppress, Bates entered a Crosby plea agreement with the state in which he agreed to plead guilty to the responsive charge of attempted possession of a firearm by a convicted felon in exchange for a sentence of seven years at hard labor to run concurrently with a separate seven-year sentence on an unrelated conviction. Bates also received credit for time served and reserved the right to seek review of the trial court's denial of his motion to suppress, which is the subject of the instant appeal. Finding no error in the court's ruling on the motion to suppress, we affirm Bates's conviction and sentence.

FACTS

On September 15, 2016, several Shreveport Police Department ("SPD") officers were dispatched to the McDonald's at 7000 West 70th Street, Shreveport, Louisiana, in response to a reported shooting. Upon their arrival, the officers encountered Jeremy Brooks carrying a sword in a sheath. Brooks claimed that two men, Ladamion Davis and Lakendrick Scroggins, pulled a gun on him when he tried to collect his belongings from a house at 2761 Rosemont Street. He said that he fled to the McDonald's and was pursued in a white Mustang driven by Scroggins. Scroggins shot at Brooks at the intersection of West 70th Street and Mansfield Road, but did not follow him into the McDonald's. The manager of the McDonald's confirmed that shots were fired outside the restaurant, and he, as well as Brooks, had called the police. According to the police report, Brooks said that the white Mustang was at the Rosemont address.

While questioning Brooks, the officers received a second call from dispatch, reporting a stabbing at 2761 Rosemont. The officers proceeded there, where they found Ladamion Davis standing in the driveway holding a towel over 2 stab wounds, at least one of which completely penetrated his chest through his left pectoral muscle.

The officers entered the home in order to secure the crime scene. They found blood on the kitchen floor leading to the carport door. Inside the house they found several people, including four black females, two toddlers, and two black males, including Scroggins. The occupants were moved outside, but not allowed to leave. Police continued searching the house and found another black male, Bates, wrapped in a comforter and asleep on a large ottoman in the living room. As an officer pulled back the comforter, they observed Bates in a fetal position with a semi-automatic pistol in his lap. One officer secured the gun while another officer arrested Bates. Bates was informed of his Miranda rights and said he understood them.

Scroggins, the alleged shooter, was also arrested as he attempted to walk down Rosemont away from the outside area of the house. He told police that Brooks had initiated the fracas by attempting to take clothing items or shoes that were not his. When the dispute erupted between Davis and Brooks, the latter attacked Davis with the sword, stabbing him. Brooks was also arrested and later charged with aggravated battery.

Bates was charged by bill of information with possession of a firearm or carrying a concealed weapon by a convicted felon. He entered a not guilty plea at his arraignment.

A joint preliminary examination was held for both Bates and Brooks. Detective Kelly Coffey of the SPD testified that she was dispatched to 2761 Rosemont shortly after the house was searched by SPD officers and Bates arrested. Det. Coffey was advised by officers on the scene that they had conducted a warrantless search of the home for officer safety reasons. She further testified that later that day she obtained the consent of Jacqueline Scroggins, the owner of the house, to conduct additional searches. On cross-examination, Det. Coffey referred to the detailed report of Corporal Susan Mendels, one of the initial responding officers. Relying on this report, she stated that Brooks led officers to believe to believe that the man who fired the shots at him was within the 2761 Rosemont residence.

Following the preliminary examination, counsel for Bates indicated that he would file a motion to suppress on grounds that the discovery provided by the state and Det. Coffey's preliminary examination testimony were insufficient to support a warrantless search of the residence. Counsel further argued that while it was unclear exactly when the owner's consent was obtained, it was after the initial search resulting in his arrest.

The state opposed the motion on grounds that a warrantless entry of the residence at 2761 Rosemont was justified due to exigent circumstances, and that the homeowner consented to the search.

Argument on the motion was heard by the court on May 10, 2017. No additional evidence or testimony was adduced. Instead, the parties agreed to submit the matter based on the testimony given by Det. Coffey at the preliminary examination.

Following argument, the trial court denied the motion to suppress, and later that same day, Bates pled guilty to the responsive charge of attempted possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1 and La. R.S. 14:27. Pursuant to the plea agreement, Bates was sentenced to seven years at hard labor, which would run concurrently with an unrelated seven-year sentence. Bates also received credit for time served and reserved the right to seek review of the trial court's denial of his motion to suppress.

The instant appeal followed.

DISCUSSION

In his sole assignment of error, Bates argues that the trial court erred when it denied the motion to suppress. The gun found in his possession, he argues, was obtained pursuant to an illegal search of the residence at 2761 Rosemont. More specifically, Bates argues that Det. Coffey's testimony regarding the need for a warrantless search of the residence is unclear. He submits that the warrantless entry into the home was not justified on the basis of "officer safety" because the stabbing victim, Davis, and the alleged shooter, Scroggins, were outside the house when the officers searched it. Bates further argues that it is also unclear from Det. Coffey's testimony exactly when the residence's owner consented to a police search, i.e., before or after the search that resulted in Bates's arrest.

The state maintains that both exigent circumstances and the owner's consent justified the warrantless search of the Rosemont house.

The right of every person to be secure in his person, house, papers and effects, against unreasonable searches and seizures, is guaranteed by the Fourth Amendment to the U.S. Constitution and Article I, § 5, of the 1974 Louisiana Constitution. It is well settled that a search and seizure conducted without a warrant issued on probable cause is per se unreasonable unless the warrantless search and seizure can be justified by one of the narrowly drawn exceptions to the warrant requirement. State v. Thompson , 02-0333 (La. 4/9/03), 842 So.2d 330 ; State v. Tatum , 466 So.2d 29 (La. 1985) ; State v. Howard, 49,965 (La. App. 2 Cir. 6/24/15), 169 So.3d 777, aff'd , 2015-1404 (La. 5/3/17), 226 So.3d 419 ; State v. Ledford , 40,318 (La. App. 2 Cir. 10/28/05), 914 So.2d 1168. To claim the protection of the Fourth Amendment, the claimant must have a legitimate expectation of privacy in the place of intrusion and the expectation must be one that society is prepared to recognize as reasonable. Minnesota v. Olson , 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990) ; State v. Howard, supra . An overnight guest has an expectation of privacy in the home that society is prepared to recognize as reasonable. Id.

La. C. Cr. P. art. 703 states that a defendant may move to suppress any evidence from use at the trial on the merits on the ground that it was unconstitutionally obtained. When the constitutionality of a warrantless search or seizure is placed at issue by a motion to suppress the evidence, the state bears the burden of proving that the search and seizure were justified pursuant to one of the exceptions to the warrant requirement. La. C. Cr. P. art. 703(D) ; State v. Johnson , 32,384 (La. App. 2 Cir. 9/22/99), 748 So.2d 31.

In reviewing a trial court's pretrial ruling on a motion to suppress, the appellate court must look at the totality of the evidence presented at the hearing on the motion to suppress and may review the entire record, including testimony at trial. State v. Howard, supra ; State v. Monroe , 49,365 (La. App. 2 Cir. 11/19/14), 152 So.3d 1011. When the defendant files a motion to suppress evidence that was obtained without a warrant, the state has the burden of proving that the evidence was lawfully seized. La. C. Cr. P. art. 703(D).

Great weight is given to the trial court's ruling on a motion to suppress in regard to the finding of facts because it had the opportunity to observe the witnesses and weigh the credibility of their testimony. State v. Crews , 28,153 (La. App. 2 Cir. 5/8/96), 674 So.2d 1082. Accordingly, this court reviews the district court's ruling on a motion to suppress under the manifest error standard for factual determinations, while applying a de novo review to its findings of law. State v. Hemphill , 41,526 (La. App. 2 Cir. 11/17/06), 942 So.2d 1263, writ denied , 06-2976 (La. 3/9/07), 949 So.2d 441.

Exceptions to the search warrant rule

In general, the Fourth Amendment prohibits the police from entering a private residence without a warrant. However, the existence of exigent circumstances is among the recognized exceptions to the general warrant requirement under the Fourth Amendment; thus, a warrant is not required for a search under the Fourth Amendment when exigent circumstances exist. Payton v. New York , 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) ; State v. Hemphill, supra . Absent exigent circumstances, a warrantless entry into a home to search for weapons or contraband is unconstitutional even when a felony has been committed and there is probable cause to believe that incriminating evidence will be found within. Groh v. Ramirez , 540 U.S. 551, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004). On the other hand, exigent circumstances justify a warrantless entry, search, or seizure when "police officers, acting on probable cause and in good faith, reasonably believe from the totality of the circumstances that (a) evidence or contraband will imminently be destroyed or (b) the nature of the crime or character of the suspect(s) pose a risk of danger to the arresting officers or third persons." State v. Warren, 2005-2248 (La. 2/22/07), 949 So.2d 1215 ; United States v. Kunkler , 679 F.2d 187 (9th Cir.1982).

Whether exigent circumstances exist is largely a factual question; thus, our review of a district court's finding of exigent circumstances based on specific findings of fact is subject to the manifest error standard of review. When reviewing the trial court's ruling on a motion to suppress, the appellate court may review the entire record, including testimony at trial. State v. Howard , supra ; State v. Monroe , supra .

Hearsay rules do not apply in hearings on motions to suppress evidence. La. C.E. 1101(B)(4) ; State v. Shirley , 08-2106 (La. 5/5/09), 10 So.3d 224. In State v. Shirley , the defendant driver ran a stop sign and flipped her vehicle, resulting in the death of a passenger. The driver was charged with vehicular homicide. Prior to trial the defendant filed a motion to suppress, seeking to exclude statements she made to the officer attending the accident scene which indicated she was driving while intoxicated. However, at the hearing on the motion, the state did not call the officer who heard the defendant's inculpatory statements. Rather, it called the chief of police, who testified based on his knowledge of the report written by the non-testifying officer who heard the defendant's statements. After hearing the testimony, the trial court granted the defendant's motion to suppress, noting that the state failed to produce testimony from the officer who actually heard the statements of the defendant and wrote the report. The Louisiana Supreme Court granted the state's writ application in part, stating:

[W]e find the trial court erred when it failed to consider [the testifying officer's] testimony which was drawn, at least in part, from [another, non-testifying, officer's] written accident report. When the trial court considered whether the defendant was under arrest or detained when she made her statement to [the non-testifying officer] and whether her statement that she consumed alcoholic beverages was admissible, it should have taken into consideration [the testifying officer's] testimony, including the portion drawn from the [non-testifying officer's] police report, when it ruled on the defendant's motion to suppress.

Id. at 229.

It is also well settled that a warrantless search conducted pursuant to a valid consent is permitted by the Louisiana and U.S. Constitutions. Schneckloth v. Bustamonte , 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) ; State v. Raheem , 464 So.2d 293 (La. 1985). To be valid, consent must be (1) free and voluntary, in circumstances that indicate the consent was not the product of coercion, threat, promise, pressure, or duress that would negate the voluntariness; and (2) given by someone with apparent authority to grant consent, such that the police officer reasonably believes the person has the authority to grant and consent to the search. United States v. Matlock , 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) ; State v. Howard , supra .

Additionally, a valid consent rehabilitates a prior warrantless search. State v. Bennett , 383 So.2d 1236 (La. 1979) ; State v. Williams , 353 So.2d 1299, 1304 (La. 1977), cert. denied , 437 U.S. 907, 98 S.Ct. 3098, 57 L.Ed.2d 1138 ; State v. Taylor , 550 So.2d 712, 718 (La. App. 2 Cir. 1989), writ denied , 556 So.2d 54 (La. 1990). But if consent was obtained after an illegal detention, intrusion or entry, the consent is valid only if it was the product of a free will and not the result of an exploitation of the previous illegality. Among the factors to consider in determining whether the consent was sufficiently attenuated from the unlawful conduct to be a product of a free will are whether the police officers adequately informed the individual that he need not comply with the request, the temporal proximity of the illegality and the consent, the presence of intervening circumstances and, particularly, the purpose and flagrancy of the official misconduct. State v. Taylor , supra ; State v. Summers , 440 So.2d 911 (La. App. 2 Cir. 1983).

Exclusionary Rule

If evidence is derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from trial. State v. Benjamin , 97-3065 (La. 12/1/98), 722 So.2d 988. In State v. Brock , 47,005 (La. App. 2 Cir. 3/7/12), 91 So.3d 1003, writ denied , 12-0784 (La. 9/28/12), 98 So.3d 826, this court stated that the exclusionary rule is designed to safeguard Fourth Amendment rights generally through its deterrent effect, citing Herring v. United States , 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009).

After review, we conclude that this record demonstrates that sufficient probable cause and exigent circumstances existed to justify the Shreveport Police Department's warrantless entry of the house at 2761 Rosemont. As previously stated, the only evidence the state offered at the motion to suppress hearing was Det. Coffey's preliminary examination testimony. Although she did not arrive on the scene until after the house was searched and Bates was arrested, Det. Coffey based her testimony on the reports written by her fellow officers at the scene to establish the facts of the case, noting that Cpl. Mendels wrote a lengthy report on the incident. Det. Coffey testified that Brooks's statement to those officers reasonably led them to believe that there was an active shooter at 2761 Rosemont and a warrantless search was necessary to prevent a violent confrontation that may endanger the lives of the officers and any civilians within the residence. Further, upon arriving at 2761 Rosemont, the officers immediately encountered a severely injured Davis, giving rise to the officers' belief that there may be additional injured parties in the house or a risk of further violence. Based on the information available to the officers at the time, we conclude that both probable cause and exigent circumstances existed to justify a warrantless entry and search of 2761 Rosemont.

No testimony was adduced at the hearing on the motion to suppress, and both sides agreed to rely on the testimony at the preliminary examination, which was taken up before the motion to suppress was filed. This somewhat explains why the state did not subpoena the officers who first arrived at the scene and conducted the initial warrantless search of the residence under exigent circumstances. Under State v. Shirley, supra , Det. Coffey's hearsay testimony regarding the exigent circumstances that existed at the time of the search was admissible since it was based on details from the officers' reports. The trial court properly relied on Det. Coffey's testimony in addition to the sections of the report referred to by Det. Coffey when it ruled on Bates's motion to suppress.

We also reject Bates's argument that, because Scroggins was outside when the search uncovered Bates, there were no extant exigent circumstances to continue a warrantless search of the house. In fact, Scroggins and Bates were in the house when police made the warrantless entry and began to secure the premises. Scroggins was one of the persons in the group that police eventually moved outside to the driveway and who were detained by Officer Baurichter of the SPD. Scroggins was subsequently arrested when he attempted to walk away from the house. Meanwhile, as police continued to search and secure the premises, Bates was discovered wrapped up in the comforter on an ottoman. This occurred after Scroggins and the others had moved outside.

Given the totality of the circumstances, we find no merit in Bates's argument. Considering that one person was severely injured on the premises and there were reportedly guns in the home, one of which was allegedly used in the shooting, it would be unreasonable to expect the police to discontinue their search of the house for any stragglers who might pose a danger to them.

Additionally, the after-the-fact consent granted by the homeowner, the validity of which is not challenged by Bates, rehabilitates any prior unlawful searches. At the preliminary examination, Det. Coffey stated that she obtained the homeowner's consent to search the residence, which is corroborated by a written consent form that informed the owner of her right to refuse and stop the search at any point and that items may be seized as a result of the search. Therefore, even if this court were to find that the warrantless search was not based on exigent circumstances and probable cause, suppression of the gun found in Bates's possession as he slept in the residence is unnecessary due to the homeowner's subsequent free and voluntary consent.

Accordingly, we find no error or abuse of discretion by the trial court denying Bates's motion to suppress. This assignment is without merit.

Error Patent Review

Review of the record reveals that Bates's sentence is illegally lenient because the trial court did not impose the mandatory fine of $500-$2,500, as required by La. R.S. 14:95.1(B). The statute provides:

Notwithstanding the provisions of La. R.S. 14:27, whoever is found guilty of attempting to violate the provisions of this Section shall be imprisoned at hard labor for not more than seven and one-half years and fined not less than five hundred dollars nor more than two thousand five hundred dollars.

The trial court sentenced Bates pursuant to the plea agreement, which failed to include the mandatory fine. Neither Bates nor the state raised the illegal lenience of the sentence and Bates is not prejudiced in any way by the failure to impose the mandatory fine.

Although 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, this court is not required to take such action. State v. Young , 46,575 (La. App. 2 Cir. 9/21/11), 73 So.3d 473, writ denied , 11-2304 (La. 3/9/12), 84 So.3d 550 ;

State v. Jamerson , 43,822 (La. App. 2 Cir. 1/14/09), 1 So.3d 827 ; State v. Griffin , 41,946 (La. App. 2 Cir. 5/2/07), 956 So.2d 199.

Considering Bates's indigent status and that he was sentenced in accordance with his plea agreement, we decline to impose such a fine at this time and affirm the sentence imposed.

CONCLUSION

For the foregoing reasons, we affirm Bates's conviction and sentence.

AFFIRMED.


source: Caselaw Access Project

author: BROWN, C.J.

license: Public Domain

text:
    Rebecca JOHNSON, Plaintiff-Appellee v. NORTHWEST LOUISIANA WAR VETERANS HOME, Defendant-Appellant
    No. 51,875-WCA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered February 28, 2018
    WORKERS' COMPENSATION, LLC By: Gregory S. Unger, Metairie, Counsel for Appellant
    LOUISIANA DEPARTMENT OF JUSTICE LITIGATION DIVISION By: E. David Gilmer, Assistant Attorney General, Shreveport, Counsel for Appellee
    Before BROWN, WILLIAMS, and GARRETT, JJ.
   BROWN, C.J.

This is a workers' compensation case. Defendant, the Northwest Louisiana War Veterans Home, has appealed from a judgment awarding claimant, Rebecca Johnson, Supplemental Earnings Benefits ("SEB") for three and one-half months, together with attorney fees and a penalty. Claimant answered the appeal, seeking an additional attorney's fee for work performed in conjunction with this appeal. For the reasons set forth below, we amend the judgment of the workers' compensation judge ("WCJ") to award an additional attorney's fee, and, as amended, affirm the judgment.

FACTS/PROCEDURAL HISTORY

Claimant, Rebecca Johnson, was employed as a psych aide supervisor at the Northwest Louisiana War Veterans Home in Bossier City, Louisiana. On June 19, 2013, she sustained a compression injury to her right hand and right middle and ring fingers when a metal bed side rail collapsed. The claim was accepted as compensable by defendant.

On June 18, 2014, Ms. Johnson's treating orthopedic surgeon, Ellis Cooper, performed a right middle finger A1 pulley release. Claimant was paid Total Temporary Disability ("TTD") benefits at the weekly rate of $320.21 from June 17, 2014, through November 4, 2014. Ms. Johnson thereafter returned to work in a modified capacity and eventually returned to work in her pre-accident capacity.

On January 25, 2016, which was more than one year after Ms. Johnson received her last TTD benefit payment, Dr. Cooper performed a right ring finger A1 pulley release on claimant. On February 5, 2016, Ms. Johnson saw Dr. Cooper, whose notes indicate that her pain was adequately controlled, although swelling and stiffness were still present. Dr. Cooper also noted, "[H]ealed surgical site, no evidence of infection, minimal swelling and mildly limited IP and MP motion. No triggering is present. Sensation is intact in all nerve distributions." He further directed that "[t]he patient will continue to limit activity with the affected hand for 2 weeks and advance activities as tolerated after that. Begin soft tissue massage as directed. An occupational therapy consult [has] been generated."

On January 13, 2016, approximately two weeks before Ms. Johnson's second surgery, her attorney sent a letter to Elaine Clark, defendant's workers' compensation claims manager, notifying her of claimant's upcoming surgery and of their plan that claimant would be able to work, with restrictions, following this procedure. Ms. Johnson's counsel asked for confirmation that defendant would accommodate any work restrictions and/or that SEB would be paid. Thereafter, upon receipt of the information contained in the February 5, 2016, post-surgery report, defendant's workers' compensation claims manager sent Dr. Cooper a request for more specific information about claimant's work restrictions, but did not follow up when no response was forthcoming.

In the meantime, defendant sent Ms. Johnson a packet with several documents related to the Family and Medical Leave Act ("FMLA"), including instructions to have her treating physician fill them out and return them by March 28, 2016. Claimant did so, then requested that SEB

be initiated retroactive to January 25, 2016, the date of her second surgery. However, defendant refused to pay SEB, relying upon the recommendation of its claims examiner, whose determination to deny SEB to claimant was based solely upon one of Dr. Cooper's responses in the FMLA form. Specifically, skipping over Dr. Cooper's enumerated list of job functions claimant would be unable to perform-"no pushing, pulling, lifting, flexing, extending, or repetitive use of the right hand"-the claims examiner concluded that Ms. Johnson was totally, temporarily disabled by Dr. Cooper's indication that claimant would be "incapacitated for a single continuous period of time due to his/her medical condition, including any time for treatment and recovery" from "01/25/16 to 04/18/16 approximately."

Ms. Johnson filed a Disputed Claim for Compensation (LDOL-1008) on April 5, 2016. Trial was held on December 5, 2016. Claimant testified that after her follow-up visit to Dr. Cooper on February 5, 2016, she began occupational therapy on her right hand and was capable of performing some type of modified work from February to April 2016, as she had done previously following her first surgery.

After hearing the testimony and considering the evidence, the WCJ found that the medical records were ambiguous as to Ms. Johnson's ability to work and that the claimant was credible in her testimony that she could have performed modified work after February 5, 2016. The WCJ awarded claimant SEB at a weekly rate of $320.21 for the period of February 5, 2016, to April 25, 2016. The WCJ further found that as of February 5, 2016, defendant was aware of medical records indicating that Ms. Johnson could do some type of work and that when Dr. Cooper did not respond to defendant's written request regarding restrictions, the insurer should have followed up by contacting either Dr. Cooper or claimant to find out what type of work, if any, Ms. Johnson was capable of doing. The WCJ awarded claimant a $2,000 penalty and an attorney's fee of $3,200. It is from this adverse judgment that defendant has appealed.

DISCUSSION

On appeal, defendant urges first that the WCJ improperly awarded Ms. Johnson SEB. According to defendant, claimant was temporarily and totally disabled after her January 25, 2016, surgery, and unable to work at all. Because this was more than one year since she had last received TTD benefits, pursuant to La. R.S. 23:1209(A)(1), her claim was prescribed. However, we note that claimant's SEB claim would not prescribe until three years after the last TTD payment. See La. R.S. 23:1209(A)(2).

Factual findings in workers' compensation cases are subject to the manifest error standard of review. Lafayette Bone & Joint Clinic v. Louisiana United Business SIF , 15-2137 (La. 06/29/16), 194 So.3d 1112. Under this standard, the reviewing court does not decide whether the WCJ was right or wrong, but only whether the Compensation Judge's findings are reasonable. Buxton v. Iowa Police Dept. , 09-0520 (La. 10/20/09), 23 So.3d 275 ; Crawford v. Town of Grambling , 51,090 (La. App. 2 Cir. 01/11/17), 211 So.3d 660, writ denied , 17-0284 (La. 04/07/17), 218 So.3d 110.

The purpose of SEB is to compensate the injured employee for the wage-earning capacity she has lost as a result of her accident. Banks v. Industrial Roofing & Sheet Metal Works, Inc. , 96-2840 (La. 07/01/97), 696 So.2d 551 ; McCoy v. W.A. Kendall & Co., Inc. , 50,187 (La. App. 2 Cir. 11/25/15), 181 So.3d 817. A workers' compensation claimant seeking SEB bears the burden of proving by a preponderance of the evidence that the injury caused her inability to earn 90% or more of her average pre-injury wage. La. R.S. 23:1221(3)(a)(i). Once claimant meets this burden, the burden shifts to the employer who, in order to defeat a claim for SEB, must prove by a preponderance of the evidence that claimant is physically able to perform a certain job and that such a job was offered to claimant or was available in her or her employer's reasonable geographic region. La. R.S. 23:1221(3)(c)(i).

Because Ms. Johnson's claim for TTD benefits was prescribed, defendant took the position that claimant was temporarily and totally disabled after her January 25, 2016, surgery. In support of this position, defendant relied upon a portion of an FMLA form completed by Dr. Cooper mid-March 2016 that indicated that claimant was expected to be "incapacitated" from approximately January 25, 2016, to April 18, 2016. Defendant did not speak to either Dr. Cooper or claimant before concluding that claimant was unable to work following surgery, in spite of having received notice from her attorney before she even had surgery indicating Ms. Johnson's desire to either return to work post-surgery with restrictions or, if not feasible, to receive SEB.

In her oral reasons for judgment, the WCJ noted that there was no testimony from Dr. Cooper, and there was some ambiguity created by the medical records and other documentary evidence as to claimant's physical condition following surgery on January 25, 2016. Therefore, the best (but not only) evidence on the issue of claimant's entitlement to SEB was the testimony of Ms. Johnson herself, whom the WCJ found to be credible. Claimant stated that she was better after the surgery than she was before, when she was working full-time, and there was no reason that she could not have done her job afterwards, since she had actually improved. According to Ms. Johnson, as of her first post-operative visit, February 5, 2016, the pain was better, she was capable of using her hand, and she could have done some type of work. We cannot say that the WCJ committed manifest error in awarding SEB based upon her finding that claimant's injury prevented her from earning 90% of her pre-injury income from February 5, 2016, to April 25, 2016.

Defendant's second assignment of error is that penalties and attorney fees were not appropriate in this case. According to defendant, it reasonably controverted Ms. Johnson's request for SEB and, therefore, the WCJ's award of penalties and attorney fees must be set aside.

Louisiana Revised Statute 23:1201(F) governs the assessment of penalties and award of attorney fees for an employer's failure to pay benefits or authorize medical treatment. La. R.S. 23:1201(F)(2) provides that Subsection (F) is inapplicable if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer had no control. Smith v. Graphic Packaging, Inc. , 51,590 (La. App. 2 Cir. 09/27/17), 244 So.3d 755, 2017 WL 4273701, writ denied , 17-1806 (La. 12/15/17), 231 So.3d 640 ; Arrant v. Wayne Acree PLS, Inc. , 51,238 (La. App. 2 Cir. 05/02/17), 218 So.3d 737. In order to reasonably controvert a claim, the defendant must have some valid reason or evidence upon which to base the denial of benefits. Id. ; Davenport v. Foster Farms, L.L.C. , 46,430 (La. App. 2 Cir. 07/13/11), 69 So.3d 1263, writ denied , 11-1781 (La. 10/14/11), 74 So.3d 213 ; Howard v. Holyfield Construction, Inc. , 38,728 (La. App. 2 Cir. 07/14/04), 878 So.2d 875, writ denied , 04-2303 (La. 01/07/05), 891 So.2d 684. Reasonably controverting a claim means that the employer has sufficient factual and medical information to reasonably counter that provided by the claimant. Smith, supra ; Arrant, supra ; Maxwell v. Care Solutions, Inc. , 50,088 (La. App. 2 Cir. 09/30/15), 179 So.3d 650, writ denied , 15-1954 (La. 11/30/15), 184 So.3d 36. The crucial inquiry in determining whether to impose penalties and attorney fees is whether the payor had an articulable and objective reason to deny payment at the time it took action. Lafayette Bone & Joint Clinic, supra ; Authement v. Shappert Engineering , 02-1631 (La. 02/25/03), 840 So.2d 1181 ; Smith, supra ; Henderson v. Graphic Packaging, Inc. , 48,491 (La. App. 2 Cir. 11/20/13), 128 So.3d 599.

Awards of penalties and attorney fees in workers' compensation cases are essentially penal in nature and are intended to deter indifference and undesirable conduct by employers and insurers toward injured employees. Iberia Medical Center v. Ward , 09-2705 (La. 11/30/10), 53 So.3d 421 ; Smith, supra . The WCJ's grant or denial of penalties and attorney fees in a workers' compensation case is subject to manifest error review. Thomas v. Browning-Ferris Inc. , 04-1584 (La. 02/25/05), 894 So.2d 1091 ; Smith, supra ; Tingle v. Page Boiler, Inc. , 50,373 (La. App. 2 Cir. 01/13/16), 186 So.3d 220.

The WCJ based her award of penalties and attorney fees upon defendant's failure to controvert Ms. Johnson's claim after February 5, 2016. According to the WCJ, the only action taken by defendant to do so was the February 18, 2016, letter sent to claimant's treating physician. The WCJ further noted that once this initial communication was not answered by Dr. Cooper, it was incumbent upon defendant to follow up with a phone call to Dr. Cooper and/or obtain a statement from claimant herself regarding her physical abilities and any modifications required for her to return to work. We find no manifest error in the WCJ's award of penalties and attorney fees based upon her determination that defendant failed to reasonably controvert Ms. Johnson's claim.

In accordance with La. C.C.P. art. 2133, claimant has answered the appeal, requesting an increase in attorney fees for legal work performed in connection with this appeal. We award claimant's counsel an additional fee of $750 for his defense of the employer's unsuccessful appeal. See Frith v. Riverwood, Inc. , 04-1086 (La. 01/19/05), 892 So.2d 7 ; Smith, supra ; Maxwell, supra.

CONCLUSION

For the reasons set forth above, the judgment of the workers' compensation judge is amended to award an additional attorney's fee of $750. The judgment, as AMENDED, is AFFIRMED. Costs of this appeal are assessed, as allowed by law, against defendant, the Northwest Louisiana War Veterans Home.

      See Claimant's Trial Exhibit A.

      The record does not show that there was any confirmation or response to claimant's counsel's notification.


author: PITMAN, J.

text:
    William Alan PESNELL and Christopher Holder, Plaintiffs-Appellants v. Jill SESSIONS, Clerk of Court, et al., Defendants-Appellees
    No. 51,871-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered February 28, 2018 Rehearing Denied April 5, 2018
    THE PESNELL LAW FIRM By: Billy R. Pesnell, J. Whitney Pesnell, W. Alan Pesnell, Shreveport, Counsel for Appellant, Christopher Wayne Holder
    WILLIAM ALAN PESNELL, Shreveport, In Proper Person
    JEFF LANDRY, Attorney General, Baton Rouge, Counsel for Appellees, Judges of the 26th Judicial District Court
    LOUISIANA DEPARTMENT OF JUSTICE, By: David G. Sanders, Assistant Attorney General, Baton Rouge, LOUISIANA DEPARTMENT OF JUSTICE, By: Emily G. Andrews, Assistant Attorney General, Counsel for Appellee, The State of Louisiana
    PATRICK R. JACKSON, Bossier Parish Attorney, Counsel for Appellee, Jennifer Bolden, Certified Digital Reporter
    JAMES D. SOUTHERLAND, Benton, Counsel for Jill Sessions, Clerk of Court, 26th Judicial District Court
    Before BROWN, PITMAN, and STEPHENS, JJ.
   PITMAN, J.

In this suit brought under the Public Records Law, Plaintiffs William Alan Pesnell ("Pesnell") and Christopher Holder ("Christopher") appeal the ruling of the trial court which sustained exceptions of no cause of action filed by Jill Sessions, Clerk of Court of the 26th Judicial District Court; Jennifer Bolden, Court Reporter; and Judges Michael O. Craig, Jeff R. Thompson, Jeff Cox, E. Charles Jacobs, Michael Nerren, and Parker O. Self (collectively, "the Judges"), finding they were not custodians of records sought in this case. Plaintiffs also appeal the ruling of the trial court which sustained exceptions of no cause of action and lack of subject matter jurisdiction filed by the State of Louisiana through the Office of the Attorney General in response to their challenge to the constitutionality of the Public Records Law. For the following reasons, the judgment of the trial court is affirmed in part, reversed in part and remanded.

FACTS

Christopher was found guilty of the second degree murder of his mother, Donna Green Holder. After the verdict was rendered, his uncle (Donna Holder's brother) opened the intestate succession of his sister, the victim, and asked that Christopher be declared unworthy and excluded from any inheritance, life insurance benefits or any other benefits to which he would have been entitled had he not caused his mother's death. The Pesnell Law Firm represented Christopher in the succession proceedings; Christopher was found unworthy to inherit.

Both the criminal verdict and the civil judgment were appealed to this court and were affirmed. See State v. Holder , 50,171 (La. App. 2 Cir. 12/9/15), 181 So.3d 918, writ denied , 16-0092 (La. 12/16/16), 211 So.3d 1166, and 16-0056 (La. 12/16/16), 212 So.3d 1176 ; and Succession of Holder , 50,824 (La. App. 2 Cir. 8/10/16), 200 So.3d 878, writ denied , 16-1694, (La. 12/16/16), 212 So.3d 1169. These judgments are now final.

Pesnell was hired by Christopher's father, Gary Holder, to review the criminal record on Christopher's behalf, allegedly to aid him in his defense in both the criminal and civil appeals. Pesnell claims that while the cases were pending on appeal, "it came to the attention of undersigned counsel that certain persons who were present at that trial (the criminal trial) ... believed that the transcript of that trial, which was presented to this Court, was not correct." Specifically, he has an affidavit from Gary Holder (the "Holder affidavit"), which states that due to his son's debilitating mental illness, he has attempted to aid his son's defense. Gary Holder claimed to have been present for each phase of the trial from beginning to end. In his affidavit, he avers that during the closing arguments of his son's murder trial, he was present in open court and heard the district attorney making incendiary remarks to the jury about Christopher's mental state, the fact that Christopher may be released in the future if found not guilty by reason of insanity and that Christopher's father would take whatever steps to get Christopher released early by pulling strings with officials and/or physicians in order to have him released from any facility to which he may be sent for psychiatric treatment or observation. Gary Holder also stated in the affidavit that Rick Fayard, Christopher's attorney in the criminal matter, vehemently objected and described the remarks as the most unethical move that he had seen in all his years of practicing law. The Holder affidavit states that he thought this colloquy and objection to be very important in the matter and ordered a transcript of the proceedings. He also stated that when he received that transcript, he was shocked to find that the objection was not in the transcript and, further, that the language used by the district attorney had been changed from what he had heard in the courtroom.

The Holder affidavit also stated that, in his capacity as Christopher's curator, and pursuant to having his power of attorney, Gary Holder hired Pesnell to file a civil appeal in the succession proceeding of Christopher's mother and to help obtain information and facts concerning matters related to post-conviction relief efforts. In an effort to investigate Gary Holder's claims concerning the absence from the transcript of the language used by the district attorney, Pesnell began trying to acquire the recording of the criminal trial so that he could compare the transcript with the recording.

Pesnell attempted to get the recordings from the trial court by various methods, including a letter to Sessions, Clerk of Court of the 26th Judicial District Court, requesting a copy of the data file in the criminal case. Sessions responded, designating the court reporter, Jennifer Bolden, as the custodian of the record. Pesnell then sent a letter to Bolden requesting the data file. That letter was apparently referred to the 26th Judicial District Court Judges' office, and he received a response from Melissa Fox, Court Administrator and Senior Staff Attorney, stating that La. R.S. 44:4(47) excluded the record from being public. Ms. Fox also referred Pesnell to a local court policy, which stated that no one was allowed to listen to courtroom recordings since, at times, an attorney speaking to his client might be picked up by the microphone. The policy exists so that attorney-client privilege is protected. The policy stated that exceptions could be made at the discretion of the trial court. However, in this case, Pesnell's request for the alleged public record was denied.

Pesnell sent a letter to Chief Judge of the 26th Judicial District Court Parker O. Self and to Judge Michael Nerren (trial judge who presided over the criminal action) requesting access under the local policy. Ms. Fox responded again, denying his request and informing him that any problem with the record should be submitted to the court of appeal.

Because they had been unsuccessful in their attempt to acquire the recording from which the transcript was made, on September 22, 2016, while the criminal matter was pending appeal to the Louisiana Supreme Court, Plaintiffs filed a petition against Defendants under the Public Records Law, La. R.S. 44:1, et seq. , seeking recordings "for inspection and testing" from the criminal trial at which Christopher had been found guilty. They subsequently amended their petition and added the State of Louisiana as a defendant and sought a declaration that a provision of the Public Records Law was unconstitutional in substance and as applied.

The Judges filed an exception of no cause of action seeking a declaration that the recordings were not subject to the Public Records Law and cited La. R.S. 44:4(47), the constitutionality of which was eventually challenged by Plaintiffs. Sessions filed an exception of no cause of action, alleging that under the Public Records Law, the clerk of court is not the custodian of the records sought. Bolden also filed an exception of no cause of action, alleging that she is not the custodian of the records sought and raised other claims set forth in the Judges' exception.

The state filed an exception of lack of subject matter jurisdiction and no cause of action, claiming that it was not the custodian of the document sought and that it was improper for it to be named by itself on a claim that a statute was unconstitutional.

The trial court bifurcated the issues pertaining to Sessions, Bolden and the Judges on the exceptions of no cause of action from those of the claims brought against the state and ordered briefing on the issue of the proper defendant in a claim that the statute was unconstitutional. It found that Sessions and Bolden were not custodians of the records sought, but that the Judges were and that Plaintiffs had no cause of action against them as custodians since the records sought were excluded from coverage under the Public Records Law pursuant to La. R.S. 44:4(47). It sustained the exceptions of no cause of action filed by Sessions, Bolden and the Judges, and Plaintiffs' case was dismissed as to them. However, the judgment reserved for a later date Plaintiffs' claims that La. R.S. 44:4(47) and the local rule of the 26th Judicial District Court are unconstitutional on their face or as applied and ordered the Judges, the state and Plaintiffs to brief the issue of the identity of the proper defendant in the lawsuit.

Plaintiffs filed a motion for new trial, which was set for hearing on the same date as the state's exceptions. In March 2017, the trial court reconvened and denied the motion for new trial. It also heard the state's exceptions of lack of subject matter jurisdiction and no cause of action. The state's brief asserted that the dismissal of the public records claim mooted the constitutional issue and that it had no obligation to Plaintiffs with regard to the production of the recording. The Judges adopted that argument, and the trial court sustained the state's objections of no cause of action and lack of subject matter jurisdiction.

Plaintiffs have filed this appeal seeking review of the trial court's sustaining the exceptions of no cause of action of all parties and the exception of lack of subject matter jurisdiction filed by the state and the dismissal of their case.

DISCUSSION

Plaintiffs argue that the trial court erred in bifurcating the issues and in sustaining the exceptions of no cause of action without ruling on the constitutionality of the statute before using that statute as a basis for sustaining the exceptions.

Plaintiffs argue it was error for the trial court to have sustained the exceptions of no cause of action and to bifurcate the constitutionality of the statute issue since, in doing so, it "left a naked constitutional claim unsupported by the underlying dispute." They further argue that the trial court dismissed the very part of the pleading that disclosed the controversy between the parties. They claim that Christopher is in the post-conviction relief period on a murder conviction and is entitled to due process, and that post-conviction relief is available to defendants if the conviction was obtained in violation of the Constitutions of the United States or the State of Louisiana.

Plaintiffs also argue that the trial court erred in sustaining the exception of no cause of action filed by Bolden since she is statutorily required to retain, indefinitely, all notes and tape recordings of a criminal case. They assert that if the record of the trial is fully transcribed, the court reporter must retain all notes and tape recordings which have been fully transcribed for a period of not less than two years after transcription is completed. La. R.S. 15:511(A). They contend that pursuant to this statute, Bolden became the "custodian" of the records as defined in the Public Records Law.

Sessions claims that the trial court correctly sustained the exception of no cause of action since La. R.S. 44:35 requires that the person seeking the right to inspect or reproduce an item must have been denied that right by the custodian of the data requested. She argues that Plaintiffs were clearly informed that she did not have custody or control of the information and that the court reporter is required to retain and maintain all notes and tape recordings, although the recordings shall remain the property of the court. For these reasons, she asserts that the trial court properly sustained the exception of no cause of action since the antecedent condition, i.e., that the record is held at the office of the official from whom the records are requested, cannot be met.

Bolden cites La. R.S. 15:511(B) and argues that it specifically states that the recordings shall be the property of the court in which the case was heard. She claims that under the statute, she had the duty only to retain and maintain such recordings, but was not the custodian. She also argues that she did not have the requested information in her possession and had no control over it. For these reasons, she claims the trial court correctly sustained the exception of no cause of action.

The Judges argue that Plaintiffs made a request for the recording from Bolden and that the judicial administrator of the 26th Judicial District Court declined the request since the records sought were not public records under the Public Records Law. La. R.S. 44:4(47). The judicial administrator referred Plaintiffs to the court's policy regarding audio recordings of court proceedings, which generally prohibit listening to any recording of any court proceeding, except under extraordinary circumstances and with court permission. The Judges assert that they are not the "custodian" of the records as defined in the law, which states the custodian is the public official or head of any public body having custody or control of public records, or a representative specifically authorized by him to respond to requests to inspect any such public record. They argue that while district court judges are public officials, they are not the head of any public body.

The Judges further argue that because the Public Records Law does not apply to the recording requested, Plaintiffs have no right to it. Access could be granted only under the local court rule, which requires permission from the court. Plaintiffs sought permission from the trial court to listen to the recordings, but it denied their request and further advised that any correction of the record should be pursued at the appellate court level under La. C.C.P. art. 2132, which states that a record on appeal which is incorrect or contains misstatements, irregularities or informalities, or which omits a material part of the trial record, may be corrected even after the record is transmitted to the appellate court, by the parties by stipulation, by the trial court or by the order of the appellate court. All other questions as to the content and form of the record are to be presented to the appellate court. In this case, the criminal case was pending in the appellate court at the time the requests for the recording was made. The Judges also claim that Plaintiffs should have sought relief from the appellate court. Therefore, they argue, the trial court correctly sustained the exception of no cause of action.

With regard to Plaintiffs' constitutional challenge of the designation of the recording under the Public Records Law as an exception to the law, the Judges argue that the constitutional challenge should not have been brought as a declaratory judgment claim in a separate lawsuit, but should have been brought up in the underlying criminal case. They assert that the sustaining of the exceptions of no cause of action rendered any further proceedings in this matter moot.

After the trial court sustained the exceptions of no cause of action of Sessions, Bolden and the Judges, it addressed the state's brief in support of the exceptions of no cause of action and lack of subject matter jurisdiction. The state's brief argued that once the trial court found Plaintiffs had no right to the recording requested under the public records action, the constitutional issue became moot and ceased to be a justiciable controversy in which to decide the constitutionality of the statute. It contended that when a case is moot, there is no subject matter on which the judgment can operate.

The state further argues that it was not a proper defendant in the case since Plaintiffs' petition makes no factual allegations against it, and it is not proper to make it a defendant solely on the basis that the constitutionality of a statute is being challenged. A constitutional challenge may be made by a party in a case where there is an adverse party and the existence of a controversy as envisioned by the Louisiana Supreme Court's definition of "justiciable controversy." There is no need to join a special party or defendant when one challenges the constitutionality of a statute. Absent an adverse party, there is no cause of action to simply challenge the constitutionality of a statute because a litigant believes the statute's constitutionality is doubtful. It contends that the proper party to sue under the Public Records Law is the custodian of the record, and it is not such a custodian in this case.

Public Records Law

La. R.S. 44:1 contains the definitions found in the Public Records Law and states in pertinent part as follows:

A(1) As used in this Chapter, the phrase "public body" means any branch, department, office, agency, board, commission, district, governing authority, political subdivision, or any committee, subcommittee, advisory board, or task force thereof, any other instrumentality of state, parish, or municipal government, including a public or quasi-public nonprofit corporation designated as an entity to perform a governmental or proprietary function, or an affiliate of a housing authority.
(2)(a) All books, records, writings, accounts, letters and letter books, maps, drawings, photographs, cards, tapes, recordings, memoranda, and papers, and all copies, duplicates, photographs, including microfilm, or other reproductions thereof, or any other documentary materials, regardless of physical form or characteristics, including information contained in electronic data processing equipment, having been used, being in use, or prepared, possessed, or retained for use in the conduct, transaction, or performance of any business, transaction, work, duty, or function which was conducted, transacted, or performed by or under the authority of the constitution or laws of this state, or by or under the authority of any ordinance, regulation, mandate, or order of any public body or concerning the receipt or payment of any money received or paid by or under the authority of the constitution or the laws of this state, are "public records", except as otherwise provided in this Chapter or the Constitution of Louisiana.
...
(3) As used in this Chapter, the word "custodian" means the public official or head of any public body having custody or control of a public record, or a representative specifically authorized by him to respond to requests to inspect any such public records.
(Emphasis added.)

La. R.S. 44:4(47) states:

This Chapter shall not apply:

...
(47)(a) To the physical medium or contents of any electronic storage device including any compact disc, digital video disc, jump drive, audio or video cassette tape, or any other type of electronic storage device, or to any shorthand or longhand notes or writings or stenotype paper tapes in the custody or under the control of a judge, clerk of court, official court reporter, deputy official court reporter, or certified electronic reporter and which are produced, made, or used by an official court reporter, deputy official court reporter, freelance reporter, or certified electronic reporter in any court of record of the state during any proceedings before that court to report the proceedings or for the purpose of transcribing into typewriting those portions of the proceedings required by law or by the court to be transcribed.

Exceptions of No Cause of Action

The peremptory exception of no cause of action tests the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the petition. Gipson v. Fortune , 45,021 (La. App. 2 Cir. 1/27/10), 30 So.3d 1076, writ denied , 10-0432 (La. 4/30/10), 34 So.3d 298. The exception is triable on the face of the petition; and, for the purpose of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. Fink v. Bryant , 01-0987 (La. 11/28/01), 801 So.2d 346 ; Johnson v. City of Coushatta , 46,914 (La. App. 2 Cir. 1/25/12), 86 So.3d 32. Louisiana recognizes a right to receive copies of public documents and records. La. Const. art. XII, § 3, provides, "No person shall be denied the right to ... examine public documents, except in cases established by law." Johnson , supra.

Custodian of the record

La. C.C.P. art. 251(A) states that the clerk of court is the legal custodian of all of its records and is responsible for their safekeeping and preservation. He may issue a copy of any of these records, certified by him under the seal of the court to be a correct copy of the original.

La. R.S. 15:511 concerns court reporters and the retention of notes and recordings in criminal cases and states in pertinent part as follows:

A. The court reporter shall retain indefinitely all notes and tape recordings of a criminal case. However, if the record of the trial or other criminal proceeding is fully transcribed, the court reporter shall retain all notes and tape recordings which have been fully transcribed for a period of not less than two years after transcription is completed [.]
B. The notes and tape recordings of any criminal case which are retained by a court reporter pursuant to the provisions of this Section shall be the property of the court in which the case was heard. The court reporter shall have the duty to retain and maintain all such notes and tape recordings pursuant to the provisions of this Section, although the notes and tape recordings shall remain the property of the court.

There is only one reported case interpreting La. R.S. 15:511, but it is not instructive on the issue of who might be the custodian of the recording of a criminal trial. In Marler v. 22nd Judicial Dist. Ct., Parish of Washington , 93-2394 (La. App. 1 Cir. 11/10/94), 645 So.2d 821, a defendant sought the tape recordings of his criminal trial for purposes of post-conviction relief and alleged that although he had been provided with a copy of the transcript of his trial, the tape recordings were crucial to his PCR, and the right to the tapes was protected by the Constitutions of the United States and the State of Louisiana. Although the 22nd Judicial District Court is named as a defendant in the suit, the Washington Parish DA appears as the defendant in the list of parties in the appellate opinion. In Marler , the appellate court determined that the defendant pursuing post-conviction relief was not entitled to a tape recording of his trial. He had been given a full transcript of his trial, and the period during which the court reporter was required to retain tape recording had expired.

Applying the rules pertaining to exceptions of no cause of action, this court must accept the well-pleaded facts of Plaintiffs' petition as true. Although it is unclear who is the custodian of the recordings sought, we find that Plaintiffs have stated a cause of action against the Clerk of Court, who is the legal custodian of the public records under La. C.C. P. art. 251 ; the court reporter, who has the duty to maintain the record under La. R. S. 15:511 ; and the court which owns the records pursuant to La. R. S. 15:511(B). Since the policy of the 26th Judicial District Court gives control over access to the recording sought to the Judges, we find the Plaintiffs have also stated a cause of action as to them. For the foregoing reasons, the assignments of error related to the trial court's sustaining of the exceptions of no cause of action of the Clerk of Court, the court reporter and the Judges, have merit and are hereby reversed.

Since the State of Louisiana is not the custodian of the public record sought by the Plaintiffs, we find the trial court correctly sustained the exception of no cause of action it filed. Further, the fact that Plaintiffs alleged that La. R.S. 44:4(47) is unconstitutional does not create any duty for the "State of Louisiana" to come forward and defend the validity of the statute. There must be a justiciable controversy for the state to be involved as a defendant; and when that is present in a lawsuit, the Attorney General of the State of Louisiana is given notice and is allowed to present a defense of the statute at its discretion. For the foregoing reasons, the judgment of the trial court sustaining the state's exception of no cause of action is affirmed.

Constitutionality of the Statute

Legislation is deemed a solemn expression of legislative will. La. C.C. art. 2. Statutes are presumed to be constitutional and their constitutionality will be preserved "when it is reasonable to do so." State v. Granger , 07-2285 (La. 5/21/08), 982 So.2d 779, quoting State v. Fleury , 01-0871 (La. 10/16/01), 799 So.2d 468. Since statutes are presumed to be constitutional, "the party challenging the validity of a statute generally has the burden of proving unconstitutionality." State v. Granger , supra , quoting Moore v. RLCC Techs., Inc. , 95-2621 (La. 2/28/96), 668 So.2d 1135. To satisfy this burden, the challenging party must cite the specific constitutional provision that prohibits the legislative action. State v. Granger , supra ; State v. Fleury , supra ; Rhone v. Ward , 45,008 (La. App. 2 Cir. 2/3/10), 31 So.3d 591, writ denied , 10-0474 (La. 4/30/10), 34 So.3d 291.

In the case at bar, we have found that Plaintiffs' petition stated a cause of action upon which some relief might be granted. Such relief is predicated upon a trial court's threshold decision concerning the constitutionality of the statute invoked by Plaintiffs for production of the recordings sought. It is now incumbent upon Plaintiffs to prove to the trial court that La. R.S. 44:4(47) is unconstitutional as it is applied to them and that they are entitled to the recording sought. For these reasons, the matter is remanded for a ruling on the constitutionality of the statute and for further relief if necessary.

CONCLUSION

The judgment of the trial court sustaining the exception of no cause of action filed by the State of Louisiana is affirmed. The judgment of the trial court sustaining the exceptions of no cause of action filed by Defendants Jill Sessions, Clerk of Court; Jennifer Bolden, Certified Digital Reporter; and the Judges of the 26th Judicial District Court, Michael O. Craig, Jeff R. Thompson, Jeff Cox, E. Charles Jacobs, Michael Nerren and Parker O. Self; is reversed. The petition states a cause of action upon which relief might be granted once the ruling on the constitutionality of the statute is rendered. The matter is remanded for further proceedings. Costs shall be assessed by the trial court at the issuance of a final judgment.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

APPLICATION FOR REHEARING

Before BROWN, PITMAN, STONE, STEPHENS and MCCALLUM.

Rehearing denied.


author: COX, J.

text:
    STATE of Louisiana, Appellee v. Ralph David TURNER, Jr., Appellant
    No. 51,888-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered February 28, 2018.
    LOUISIANA APPELLATE PROJECT By: Paula Corley Marx, Counsel for Appellant
    ROBERT STEPHEN TEW, District Attorney, MICHAEL J. FONTENOT, Assistant District Attorney, Counsel for Appellee
    Before GARRETT, STONE, and COX, JJ.
   COX, J.

The defendant, Ralph David Turner, Jr., pled guilty to second degree battery in exchange for the state's dismissal of two other charges. Turner was sentenced to five years at hard labor; all but the first two years were suspended. Turner is to be placed on active supervised probation for three years upon his release from incarceration. Turner was given credit for time served on this and any other offense for which he was incarcerated. He was ordered to participate in an anger management program and substance abuse program while incarcerated, and continue treatment in his probationary period if not completed. A motion to reconsider sentence was denied. Turner appeals his sentence as excessive.

FACTS

On October 13, 2016, Turner was charged by bill of information with the second degree battery of his mother, Nelwyn Turner, in violation of La. R.S. 14:34.1, which occurred on or about July 23, 2016. The initial bill incorrectly named the victim and, on December 19, 2016, was amended to change the victim's name to Ms. Turner. Also on December 19, 2016, pursuant to a plea agreement, Turner pled guilty to the second degree battery charge. In exchange for the guilty plea, the state agreed to dismiss charges of possession of a controlled dangerous substance, illegal possession of a stolen firearm, and two counts of possession of a controlled dangerous substance.

The factual basis for the plea was recited by the district attorney and agreed to by Turner:

Judge, this charge arises from an incident that happened on July 23, 2016, at 200 Leachman Street, which is the residence of, uh-of him and his mother at that time-at the time of his arrest the residence of him and his mother. Uh, on that date, at approximately 3:00 o'clock in the morning, he and his mother were talking in her bedroom when he began to attack her and struck her multiple times with his fist in the face, including the eye and jaw. She had to go to the hospital for injuries, uh, that she received in the incident. And, at the hospital, there was discovery that she had some bleeding on the brain and blood clots. She was transferred to Shreveport. So because of the nature of the number of times he hit her and the injuries she received, we believe second degree battery is the proper charge.

Turner agreed to the factual basis and was advised of his rights and freely and voluntarily entered a plea of guilty. There was no agreement as to sentencing and the trial court ordered a PSI report. Before the conclusion of the plea, Turner requested that he be given some help in the way of "rehab or something." The trial judge stated that he would work that into sentencing. Sentencing was set for February 13, 2017. For reasons not clear in the record, the matter was reset twice and the sentencing hearing was held on May 31, 2017.

Prior to sentencing, on January 4, 2017 and February 6, 2017, Turner filed two pro se motions to withdraw his guilty plea on the sole basis that sentencing had not yet occurred. Both motions were denied. On March 2, 2017, Turner filed a pro se motion to clarify sentence which was denied as premature because he had not yet been sentenced.

Turner declined to make any comments at the sentencing hearing. Ms. Turner made the following statement:

I'm not scared of my son. That's the only time he's ever put a finger on me and if he doesn't get out pretty soon, he's going to lose his children and he got a place to stay and a job waiting on him.

The trial judge stated that he had reviewed the PSI report and the factors under La. C. Cr. P. art. 894.1. The trial judge noted that the police were called to the Turner home where Ms. Turner was found with injuries to her face and eye and her face was red and swollen. Although Ms. Turner advised officers that morning that her son had never before "put his hands on her in that manner," the trial judge noted that Ouachita Parish Sheriff's Office records indicated one previous complaint that Turner had struck his mother. The trial judge then took note of the injuries to Ms. Turner, which ultimately resulted in a brain bleed and clots and required hospitalization.

The trial judge further stated that Turner indicated on questioning that he did not remember the incident but that he knew he had caused his mother's injuries. Turner stated that he had been drinking on the night of the incident and had "blacked out." Turner told police that if he had been in a better state of mind, he would not have done this and he was sorry for his actions. Noting Ms. Turner's request for leniency, the trial judge also commented that Ms. Turner was not seeking restitution because Medicaid had paid all of her medical expenses.

The trial judge reviewed Turner's criminal history as outlined in the PSI report. While the instant offense is Turner's first felony conviction, the trial judge outlined Turner's past arrests and misdemeanor convictions, which are as follows:

• April 12, 2006-arrested for possession of marijuana and paraphernalia-dismissed.

• August 19, 2008-arrested for second degree battery and pled guilty to disturbing the peace.

• May 16, 2009-arrested for careless operation, hit and run, possession of marijuana and DWI and pled guilty to DWI and hit and run.

• July 7, 2010-arrested for resisting an officer-dismissed.

• April 18, 2011-arrested for crimes of flight from an officer and public intimidation and pled guilty (probation later revoked).

• January 19, 2012-arrested for unauthorized entry of an inhabited dwelling-no disposition found.

• December 10, 2013-arrested for an unknown charge in Indiana.

• January 14, 2014-failure to appear.

• February 16, 2014-arrested for taking contraband into a penal institution-dismissed.

• October 29, 2014-arrested for domestic abuse battery and pled guilty.

• January 24, 2015-arrested for violation of protective orders and pled guilty.

• June 10, 2015-arrested for cruelty to a juvenile, battery on a police officer and resisting an officer and pled guilty to a misdemeanor charge.

• September 22, 2015-arrested for possession of a firearm by a convicted felon, possession of marijuana, possession of schedule IV, illegal carrying of a weapon-all dismissed.

• January 30, 2016-arrested for possession of schedule IV and marijuana, child desertion, illegal use of controlled dangerous substance in the presence of persons under the age of 17, and appearing intoxicated-dismissed in the current matter.

The trial judge reviewed Turner's social history, noting that he completed the eighth grade and was expelled for marijuana use and troublemaking. He had no further education and held jobs doing carpentry work for 10 years. Turner was a maintenance man for a realty company when he was arrested on the instant offense. Turner admitted to having an alcohol and drug problem and requested help for those issues. The trial judge noted Turner did not pay child support, but claimed that he provided for his children.

Based on the foregoing considerations, the trial judge found that a suspended sentence was not appropriate due to the undue risk that Turner would commit another crime. Turner was found to be in need of correctional treatment. Finding that a lesser sentence would deprecate the seriousness of the instant offense, the trial judge imposed a sentence of five years at hard labor, three of which were suspended. Upon release, Turner would be placed on three years' active supervised probation. During incarceration, Turner was to enroll in anger management and substance abuse treatment, which was to continue into the probationary period if not completed.

Turner's motion to reconsider sentence was denied and this appeal of the sentence followed.

DISCUSSION

Turner's sole assignment of error challenges the alleged excessiveness of his sentence. Turner emphasizes that he has an alcohol problem and blacked out when the offense was committed. He argues that his mother is not afraid of him and that he would never have committed this offense had he been in his right mind. Turner argues that he needs treatment, not a five year sentence. He claims the upper-end sentence for a first-felony offender is unduly harsh.

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. State v. Smith , 433 So.2d 688 (La. 1983) ; State v. Brown , 51,352 (La. App. 2 Cir. 5/2/17), 223 So.3d 88, reh'g denied (June 15, 2017). The important elements which should be considered are the defendant's personal history (age, family ties, marital status, health, and employment record), prior criminal record, seriousness of offense, and the likelihood of rehabilitation. State v. Jones , 398 So.2d 1049 (La. 1981) ; Brown, supra ; State v. Ates , 43,327 (La. App. 2 Cir. 8/13/08), 989 So.2d 259, writ denied , 08-2341 (La. 5/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. Brown, supra .

Second, the court must determine whether the sentence is constitutionally excessive. A sentence violates La. Const. art. I, § 20, if it is grossly out of proportion to the severity of the crime or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey , 623 So.2d 1276 (La. 1993) ; Brown, supra . A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver , 01-0467 (La. 1/15/02), 805 So.2d 166 ; Brown, supra .

The trial court has wide discretion in the imposition of sentences within the statutory limits and such sentences should not be set aside as excessive in the absence of a manifest abuse of that discretion. State v. Williams , 03-3514 (La. 12/13/04), 893 So.2d 7 ; Brown, supra . 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. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. Brown, supra .

A substantial advantage obtained by means of a plea bargain is a legitimate consideration in sentencing. State v. Mendenhall , 48,028 (La. App. 2 Cir. 5/15/13), 115 So.3d 727. Accordingly, where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence for the pled offense. State v. Shelton , 50,318 (La.App. 2 Cir. 2/24/16), 188 So.3d 304.

The penalty for second degree battery is a fine of not more than $2,000 or imprisonment, with or without hard labor, for not more than eight years, or both. La. R.S. 14:34.1(C).

Turner's sentence is not excessive. The trial court complied with La. C. Cr. P. art. 894.1 and expressly addressed the relevant aggravating and mitigating factors. The trial judge outlined Turner's extensive history of arrests and misdemeanor pleas, including domestic battery charges. The trial judge emphasized the serious nature of the injuries suffered by the victim, Turner's mother, which resulted in a brain bleed and clotting.

For mitigating factors, the trial judge considered Ms. Turner's statement that her son had never hit her and properly weighed that statement against the previous report to the sheriff's office of Turner battering her on at least one prior occasion. The trial judge stated that he had carefully considered Turner's situation with his children possibly being taken into state custody.

Turner received great benefit from the plea bargain with the state's dismissal of other felony charges. Turner's characterization of his sentence as "upper-end" is misleading as three of the five years were suspended. The sentence imposed for Turner's beating his mother in the face with a closed fist to the point where she suffered a brain bleed does not shock the sense of justice and does not suggest purposeless and needless infliction of pain and suffering. The trial judge was within his discretion in imposing the sentence, which is not excessive.

CONCLUSION

Finding Turner's sentence is not excessive, we affirm the defendant's conviction and sentence.

AFFIRMED.