author: THIBODEAUX, Chief Judge.

text:
    AVANTI EXPLORATION, LLC v. Kimberly ROBINSON, Secretary, Louisiana Department of Revenue
    18-750
    Court of Appeal of Louisiana, Third Circuit.
    April 17, 2019
    Eulis Simien, Jr., Roy Bergeron, Jr., Simien & Simien, L.L.C., 7908 Wrenwood Boulevard, Baton Rouge, LA 70809, Telephone: (225) 932-9221, COUNSEL FOR: Defendant/Appellant - Kimberly Robinson, Secretary, Louisiana Department of Revenue
    James C. Exnicios, Cheryl Mollere Kornick, Randy J. Marse, Jr., Liskow & Lewis, APLC, 701 Poydras Street - 50th Floor, New Orleans, LA 70139, Telephone: (504) 581-7979, COUNSEL FOR: Plaintiff/Appellee - Avanti Exploration, LLC
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell, and John E. Conery, Judges.
   THIBODEAUX, Chief Judge.

In this tax case, the plaintiff taxpayer, Avanti Exploration, LLC (Avanti), disputes additional severance taxes assessed against it by the defendant, Kimberly Robinson, Secretary, Louisiana Department of Revenue (Department). Avanti filed a petition with the Board of Tax Appeals (Board). Both Avanti and the Department filed motions for summary judgment, and the Board found in favor of Avanti. The Department now appeals the Board's judgment granting summary judgment to Avanti. Following our de novo review, we find no issue of material fact and find that Avanti is entitled to summary judgment as a matter of law. We affirm the judgment of the trial court.

I.

ISSUE

We must decide whether the Board erred in applying La.R.S. 47:633(7)(a) and applicable law in granting summary judgment to Avanti.

II.

FACTS AND PROCEDURAL HISTORY

Avanti is engaged in the oil & gas production business in Louisiana, operating various wells and producing oil from mineral leases in Beauregard Parish. As a producer who severed the natural resource from the ground, Avanti was subject to the Louisiana oil severance tax levied under La.R.S. 47:633(7). The statute bases the tax on the value of the oil at the time and place of severance on the lease in the field. The severance tax is calculated on the producer's gross receipts on sales or by the posted field price, whichever is higher. However, if a producer incurs transportation costs in getting his product to market, to a point of sale off the lease, he can subtract the transportation costs from his gross receipts and calculate the severance tax on the reduced amount.

Avanti sold the oil produced from the leases pursuant to contracts with buyers. The contracts obligated the initial buyer, the "first purchaser," to take title and delivery of the oil at the lease where production occurred. Therefore, Avanti did not have to transport its oil to market, or to a point of sale off the lease, and its severance tax payments should have been based upon its gross receipts, without any reduction/deduction for transportation costs.

At issue in this case are Avanti's contracts with two of its first purchasers, Phillips 66 Company (Phillips), and Cokinos Energy Corporation (Cokinos). Each contract contained a negotiated price formula to establish the sales price to be paid to Avanti for the oil it conveyed to the buyer at the lease each month during the term of the contract. The price formulas in Avanti's contracts with its buyers began with published, oil market center prices for the month of production and made various positive and negative adjustments to arrive at a lower price to be paid for the crude oil being sold at the lease.

Pursuant to the contracts and La.R.S. 47:638, the buyer was required to calculate, deduct, and withhold from Avanti's gross proceeds, the appropriate amount of severance tax due under La.R.S. 47:633 before remitting payment to Avanti, but the ultimate tax liability remained with Avanti under La.R.S. 47:637. After withholding the severance tax, the buyer would then file the necessary severance tax returns and remit the taxes to the Department. Following the payment of taxes on Avanti's behalf by its purchasers, Phillips and Cokinos, the Department performed an audit of Avanti's records and found that Avanti had impermissibly reduced its gross receipts, and its tax computation, by subtracting transportation costs that were not allowed in its case since it sold its oil on the lease.

The Department issued a notice of assessment to Avanti for additional severance taxes for the tax period of January 1, 2012, through December 31, 2014. The total assessment was $ 119,463.67, which included taxes in the amount of $ 79,783.73, together with interest in the amount of $ 10,567.65 and penalties in the amount of $ 29,112.29. Except for specific amounts that Avanti admitted to owing because of well-classification errors and unfiled reports, Avanti disputed the additional severance tax and filed a petition for redetermination of the assessment. Subsequently, Avanti and the Department filed motions for summary judgment.

Following a hearing, the Board found in favor of Avanti, granting its motion for summary judgment while denying the Department's motion for summary judgment. The Department brought this appeal. For the following reasons, we affirm summary judgment in favor of Avanti.

III.

STANDARD OF REVIEW

Summary judgments are reviewed de novo on appeal, with the reviewing court using the same criteria that govern the trial court's determination of whether summary judgment is appropriate; whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. La.Code Civ.P. art. 966.

Smith v. Robinson , 18-728, p. 5 (La. 12/5/18), --- So.3d ----.

IV.

LAW AND DISCUSSION

Applicable Law

Louisiana imposes a severance tax on oil and other natural resources as they are severed from the ground or water. Louisiana Constitution Article 7, § 4 (B) (emphasis added) provides in pertinent part:

Severance Tax. Taxes may be levied on natural resources severed from the soil or water, to be paid proportionately by the owners thereof at the time of severance. Natural resources may be classified for the purpose of taxation. Such taxes may be predicated upon either the quantity or value of the products at the time and place of severance .

Accordingly, the Legislature enacted La.R.S. 47:631, which states:

Taxes as authorized by Article VII, Section 4 of the Constitution of Louisiana are hereby levied upon all natural resources severed from the soil or water, including all forms of timber, including pulp woods, turpentine, and other forest products; minerals such as oil, gas, natural gasoline, distillate, condensate, casinghead gasoline, sulphur, salt, coal, lignite, and ores; marble, stone, sand, shells, and other natural deposits; and the salt content in brine.

The severance tax on oil is based upon the value of the oil at the time and place of severance , which means on the mineral lease in the field. However, if the producer has to take the oil to market to perfect a sale, he can subtract that transport cost from the higher sales price he receives there in the distant market, and pay severance tax on the reduced amount. Louisiana Revised Statutes 47:633 (emphasis added) provides in pertinent part:

The taxes on natural resources severed from the soil or water levied by R.S. 47:631 shall be predicated on the quantity or value of the products or resources severed and shall be paid at the following rates:
....
(7)(a) On oil twelve and one-half percentum of its value at the time and place of severance. Such value shall be the higher of (1) the gross receipts received from the first purchaser, less charges for trucking , barging and pipeline fees, or (2) the posted field price . In the absence of an arms length transaction or a posted field price, the value shall be the severer's gross income from the property as determined by R.S. 47:158(C).

Pursuant to authority granted to it by La.R.S. 47:1511, the Department defines value and other terms from the statute in its own regulations:

Value-with respect to oil and/or condensate, the value shall be the higher of the gross receipts received from the first purchaser by the producer or the posted field price.
a. Gross Receipts -the total amount of payment:
i. received from the first purchaser in an arm's length transaction[.]
b. Posted Field Price -a statement of crude oil prices circulated among buyers and sellers of crude petroleum and is generally known by buyers and sellers within the field as being the posted price. The posted field price is the actual price of crude petroleum advertised for a field. The area price is a statement of crude oil prices circulated among buyers and sellers of crude petroleum listing prices for different areas of the state, usually listed as north Louisiana and south Louisiana, and generally known among buyers and sellers within the area as the posted price. This area price is the beginning price for crude petroleum of an area before adjustments for kind and quality (including, but not limited to, gravity adjustments) of the crude petroleum. When no actual posted field price is advertised or issued by a purchaser, the area price less adjustments for kind or quality (including, but not limited to, gravity adjustments) becomes the posted field price.
c. Arm's Length Transaction -a contract or agreement that has been arrived at in the open market place between independent and nonaffiliated parties with opposing economic interests.
....
e. Value in Arm's Length Transaction -in an arm's length transaction, the value shall be the gross receipts of all things of value received directly or indirectly by the producer.
....
h. Transportation Costs -there shall be deducted from the value determined under the foregoing provisions the charges for trucking, barging, and pipeline fees actually charged the producer. In the event the producer transports the oil and/or condensate by his own facilities, $ 0.25 per barrel shall be deemed to be a reasonable charge for transportation and may be deducted from the value computed under the foregoing provisions. The producer can deduct either the $ 0.25 per barrel or actual transportation charges billed by third parties but not both. Should it become apparent the $ 0.25 per barrel charge is inequitable or unreasonable, the secretary may prospectively redetermine the transportation charge to be allowed when the producer transports the oil and/or condensate in his own facilities.

La.Admin.Code 61:1.2903(A)--Definitions.

In the present case, there was no traditional posted price in the field, which is apparently a practice that has been in disuse for many years. The Department did not enter evidence of a posted field price and asserts that it unquestionably did not use posted field price in calculating the tax deficiency. There was, however, an arm's length transaction, which is merely a contract "arrived at in the open market place between independent and nonaffiliated parties with opposing economic interests" instead of a contract between affiliated entities such as parent and subsidiary. See La.Admin.Code 61:I.2903(A). Thus, the Board found that Avanti's gross receipts, or the total amount of payments received pursuant to the contracts, determined the taxable value of the oil in the present case. La.R.S. 47:633(7)(a) ; La.Admin.Code 61:I.2903(A).

The Contractual Pricing Formula

The Department asserts that, instead of paying severance tax on its gross receipts, Avanti first reduced its receipts by the producer's transportation deduction in La.R.S. 47:633(7)(a) and La.Admin.Code 61:I.2903(A) and paid tax on the reduced amount. In support, the Department points to the price provisions in Avanti's buyer-seller contracts with Phillips and Cokinos.

The 2014 Phillips Contract provides (emphasis added):

3. PRICE
Phillips 66's West Texas Intermediate sweet crude, oil posted price deemed 40 degrees API gravity for pricing purposes, for the month of delivery plus the mean of the daily average of Platt's posting plus WTI prices quoted in Platt's Oilgram from the 26th of the month two months prior to the month of delivery through the 25th of the month one month prior to delivery (excluding weekends and holidays) plus/minus the mean of the Platt's daily average WTI Cushing versus Platt's daily average LLS differential for the same trading period (-) $ 2.25 per barrel transportation differential.

Similarly, the 2012 Cokinos contract appends a pricing exhibit that explains the above information in footnotes, stating that an average of three indices was used to determine price, minus a per barrel cost that is not defined. Under the heading of "Price Basis," the Cokinos contract provides (emphasis added) (footnotes omitted): "Phillips 66 WTI Posting plus Platts P.Plus plus Platts LLS less $ 2.60/BBL ."

The Department contends that the per barrel price reduction in each contract is, in effect, the transportation costs referenced in La.R.S. 47:633(7)(a) and La.Admin.Code 61:I.2903(h). The Department further asserts that such a "deduction" for transportation costs can only be taken by Avanti for costs it actually incurred in transporting the oil to a point of sale and delivery off of the lease , but that Avanti did not incur such costs.

Title and Delivery

In support, the Department points to Avanti's arms-length contract provisions on title and delivery. Those provisions in essence state that the purchaser takes ownership of the oil on the lease in the field before the oil is transported away by the purchaser . The 2014 Phillips contract provides (emphasis added):

9. DELIVERY
Title to all Production sold and delivered to Buyer shall pass from Seller to Buyer as such Production passes the outlet flange of Seller's tankage on the lease or leases from which such Production is being purchased. Buyer agrees to promptly take delivery of the Production upon availability from the Seller's tanks or through a pipeline. If Buyer takes delivery by a third party common carrier, Buyer shall immediately notify Seller of the carrier's name and address.

The 2012 Cokinos contract provides (emphasis added): "Delivery: Title and risk of loss shall pass from Seller to Buyer as the crude oil exits the tankage of the respective lease and enters the trucks designated by Cokinos ."

While both contracts indicate that the oil is to be moved off the lease by the purchaser , the Department found that Avanti took the producer's transportation deduction by hiding it in the pricing formula. Thus, the Department asserts that, where Avanti incurred no transportation costs in order to sell its oil, which it sold right out of the tank on the lease, per the contracts, Avanti's taxable gross receipts cannot be reduced by the $ 2.25 and $ 2.60 per barrel shown in the respective contracts in order to pay lower taxes.

Evidence of Gross Receipts

Pursuant to our de novo review, the record reveals that Avanti paid severance taxes on the full amount of the funds it received, according to statute, and did not take a transportation deduction from these amounts before doing so. While the differential in the pricing formula and in various e-mails between Avanti and its purchasers is referred to as a "transportation differential," or a "truck deduct," there is no evidence that Avanti took the deduction allowed under La.R.S. 47:633(7)(a) and La.Admin.Code 61:I.2903(h) when the producer actually does incur transportation costs in getting his oil to market. To the extent that a purchaser incurred a trucking expense and this became an element of the negotiated price of the oil in an arm's length transaction, that amount appears as just another fluctuating overhead expense in the cost of doing business. The question is whether the producer , Avanti, took the deduction, and the record shows that it did not.

More specifically, the record contains check stubs showing payments from Phillips to Avanti, and from Cokinos to Avanti. In both instances, the purchasers withheld the severance taxes before remitting the remainder to Avanti, and the math indicates that the correct amount was withheld and remitted. For example, the December 19, 2013 check stub for the payment to Avanti in the total amount of $ 165,284.92 indicates that Avanti had a working interest ownership (coded "WI") in each of the eight property leases listed, and that the tax withheld was a severance tax (coded "SV"; there are a total of eighteen tax codes listed in the legend). The price per barrel was $ 94.02 that month, for all eight of the listed leases, and the number of barrels and owner's gross value (gross sale) was shown for each lease. For example, on one of the leases, Avanti's gross sale was $ 40,920.55 (for production of 435 plus barrels of oil). From that amount, Cokinos withheld $ 5,115.06 in severance taxes. Since 12.5% of $ 40,920.55 is $ 5,115.06, the severance tax was calculated on the full and actual amount received by Avanti for the sale of its oil on that lease on that date.

The severance tax withheld on five of the eight leases was calculated at less than 12.5% (e.g., .031% or .062% or .082%) of the gross sale of oil from a particular lease, due to the well's classification and the statutorily reduced rate associated with that classification. For example, La.R.S. 47:633(7)(c)(iv) taxes formerly inactive or orphaned wells at ¼ or ½ of the 12.5% rate shown in Paragraph (7)(a). Likewise, the statute provides numerous other reductions or exemptions that may have resulted in lower severance tax rates on some of the listed leases. To the extent that any rates used were incorrect because of well-classification errors, Avanti agreed to pay those amounts early on in the litigation.

As to the gross receipts in the record, however, there is only evidence that severance taxes were paid on the full amount actually received for the oil, without any reduction or deduction for transportation costs. The Cokinos check stubs, with their extensive legends, have sixteen "Deduct Codes" for items such as "compression," "processing," "fuel," "upstream," "midstream," "gathering," "marketing," and two separate codes for "transportation." None of those codes were used to signal deductions, either before or after the severance tax was calculated on the full amount of the sale from the lease. We note that one deduct code, "OR," was used, signaling a small oilfield site restoration fee which amounted to $ 31.19 in total for all eight leases, all of which were subtracted from Avanti's payment only after the severance tax was calculated on the full amount of the sale.

Here, the Department essentially contends that Avanti and its purchasers conspired to manipulate Avanti's tax liability by taking a producer's transportation deduction and hiding it in the pricing formula. The evidence it placed in the record consists of selected statements made by John McIntyre, President of Avanti which, when considered in total, show confusion about why the Department disallowed a transportation deduction that the statutes appeared to allow. This confusion is understandable; the statutes, regulations, and contracts at issue are not exactly light reading and are quite soporific.

The Department also asserts that a Cokinos e-mail statement regarding a necessary increase in the "truck deduct" because of increased fuel, labor, and insurance costs, shows that a transportation cost was deducted by Avanti . However, the record in total indicates that this and other terms like "marketing adjustment" were all used to describe the elements of the pricing between Avanti and its purchasers. Whatever expenses the purchaser and its designated trucking company had, once they took possession of the oil and transported it to another point of sale down the road, do not affect the value of the oil when it was first severed from the ground, when that value was derived through arms-length transactions in the open market, and there is no posted field price.

In a very similar case, the first circuit in Robinson v. Mantle Oil & Gas, LLC , 17-894 (La.App. 1 Cir. 3/29/10), 247 So.3d 738, writ denied , 18-852 (La. 9/28/18), 252 So.3d 922, found that the $ 1.80 per-barrel amount in the purchase agreement was not a post-sale deduction as asserted by the Department, and it could be used in the pricing formula to reduce the price of the oil:

We find that the statute is clear and unambiguous, and it was properly applied in the manner that Mantle paid its tax. Mantle computed its severance taxes on the actual amounts it received from Central, i.e., "the gross receipts received from the first purchaser." See LSA-R.S. 47:633(7)(a). The $ 1.80 per barrel amount in the purchase agreement is not a post-sale "deduction" as asserted by the Department. Rather, the contract price paid by Central to Mantle was a negotiated price between seller and purchaser, and, according to the price formula, the $ 1.80 per barrel amount is included in the calculations to determine the payment price due Mantle. Mantle sold its oil in the field at the well, and the cost of transportation was borne by Central. Mantle, as the seller, did not take any transportation deduction in the computation of its severance tax, as it did not transport the oil to the purchaser.
Mantle properly computed its severance taxes on the actual amounts that it received from Central, i.e., "the gross receipts received from the first purchaser." Further, there is nothing to indicate that this was not an arms-length transaction. Accordingly, we find no genuine issue of material fact, and, under the plain language of the severance tax statute, the gross receipts received from Central equaled the amount actually paid pursuant to the purchase agreement. Mantle paid oil severance taxes based on the payments received from Central, and the Department's arguments regarding the Dugas & LeBlanc Well are without merit.

Id. at 744-45 (footnote omitted).

Here, the Department has not entered a single piece of evidence to show how it arrived at the figures upon which the Department valued the oil, except that it added back the per-barrel pricing differential that each contract had subtracted to arrive at a negotiated price. Its attenuated argument that this add-on was proper because under its regulations, the pricing differential was a thing of value received by Avanti, is not supported or even logical, since Avanti suffered a price reduction pursuant to the differential. Avanti asserted that the Department used the large market center indices to calculate the severance tax, and this is a price that Avanti never received. The Department's response was only, no, that is not what it used. But it entered no evidence of any of its calculations into the record. If the Department added back the pricing differential to the market center indices that Avanti used in its contracts, which the Department admits, then the logical conclusion is that the Department did use the large market center indices to calculate the severance tax owed.

The court in Mantle , which also addressed a second well, the Roberts well, whose product was sold to a different purchaser, held that a market center price for a field 130 miles away could not be used as a posted field price, as asserted by the Department in that case, even though there was no written arms-length contract for the Roberts well. Id. There, again, the court held that, where there was no posted field price, Mantle's calculation of severance taxes based upon its gross receipts from the first purchaser pursuant to La.R.S. 47:633(7)(a) was correct. Id.

Here, the Department argues that the Board should have stricken all of Avanti's references to market center prices, index prices, or posted field price because the Department did not use any of those prices in its calculations. We must disagree. As stated, the Department admits that it added back the differential to the pricing formula, and the only other elements in Avanti's pricing formula were the market center indices. We find that Avanti's analysis of La.R.S.47:633(7)(a) with its discussion of "posted field price" was also an intertwined and integral part of its legal argument in its motion for summary judgment. This is because La.R.S. 47:633(7)(a) requires that the higher of either gross receipts or posted field price be used to calculate the severance tax. The Department states that it did not use a posted field price in this case, and the record reveals that there was no posted field price. Thus, Avanti's gross receipts are determinative of the severance tax.

Accordingly, Avanti has shown that it paid severance tax on the full amount of its gross receipts in sales to Cokinos and Phillips, and there are no material issues of fact or law preventing summary judgment in this case.

V.

CONCLUSION

Based upon the foregoing, the judgment of the Board of Tax Appeals is affirmed. Costs in the amount of $ 2,143.00 are assessed against the defendant, Kimberly Robinson, Secretary, Louisiana Department of Revenue.

AFFIRMED.

      The Department's legal support is its own 2008 Revenue Information Bulletin (RIB) 08-815, which defines "transportation" as a "substantial movement of oil by truck, barge or pipeline to a point of sale or delivery off the lease." The RIB defines "transportation costs" as "reasonable, actual costs incurred for moving the oil ... to a point of sale or delivery off the lease[.]" By its own terms, the RIB does not have the force and effect of law and is not binding on the public or the Department.

      Louisiana Revised Statutes 30:87 imposes an oilfield site restoration fee on each barrel of oil produced in this state, ranging from 1.5 cents to 4.5 cents per barrel, to be deposited into the Oilfield Site Restoration Fund and used by the program for oilfield site restoration projects.

      As to the Roberts well in Mantle , in the absence of a contract and a posted field price, the Department calculated a posted field price, pursuant to its definition in La.Admin.Code 61:I.2903(A), allegedly using an area price. The Department's area price was actually a market center index price from Louisiana's St. James Terminal. In rejecting the Department's calculations, the court articulated:
      The Department further argues that, even when there is adequate documentation of the price, the severance tax shall be calculated based on the higher of gross receipts or the posted field price. See LSA-R.S. 47:633(7)(a). It contends that since there was no specific field price for this field, the area price became the posted field price. In its audit, the Department identified Platts US Crude Wire-Oil index at LLS Oil Spot at St. James Terminal as the posted field price applicable to the Roberts Well and adjusted the reported value of the oil from the Roberts Well.
      Upon our review of the evidence in support of and in opposition to the motion for summary judgment, it is clear that there was no posted field price in the LeBlanc Field in Allen Parish where the Roberts well is located. However, rather than relying on the second option under LSA-R.S. 47:633(7)(a) for gross receipts ... the Department chose instead to select another field approximately 130 miles from where the well was located to use as a posted field price, but only for those months that the St. James Field posted price was higher than the gross receipts. Although the Department acknowledges that the field price in St. James Parish is not an actual posted price in the LeBlanc Field, it argues instead that it is an "area price" that includes the LeBlanc Field and therefore became the "posted field price."
      Mantle , 247 So.3d at 745.
      After quoting the Department's definition of posted field price and area price in its regulation at La.Admin.Code 61:I.2903(A), the Mantle court found:
      The Department offered no evidence to show that any adjustments "for kind or quality (including, but not limited to, gravity adjustments)" were made to the area price to establish a posted field price. Further, according to the regulation, "the area price is the beginning price for crude petroleum of an area before adjustments ... of the crude petroleum." We find that the Department failed to establish the area field price less adjustments and, accordingly, failed to establish that the field price in St. James Parish was the actual posted price for the LeBlanc Field. Because there was no posted field price, Mantle calculated the value of the oil based on the "gross receipts received from the first purchaser" pursuant to LSA-R.S. 47:633(7)(a). We find no error in this determination.
      There being no genuine issues of material fact, the trial court correctly granted summary judgment in favor of Mantle. Mantle is entitled to a refund of the severance taxes paid under protest in the amount of $ 73,461.31.
      Id. at 746 (alteration in original) (footnote omitted).
      Conversely, in the present case, the Department has not admitted to using or calculating a posted field price but tries to create an issue of fact around what it might have been under La.Admin.Code 61:I.2903(A). We disagree. Where there was no evidence of a posted field price and the Department denies that it calculated one, we find no issue of material fact based upon the record.


source: Caselaw Access Project

author: SAVOIE, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Joshua D. SANT
    18-752
    Court of Appeal of Louisiana, Third Circuit.
    April 17, 2019
    J. Reed Walters, District Attorney, 28th Judicial District Court, Post Office Box 1940, Jena, Louisiana 71342, (318) 992-8282, COUNSEL FOR APPELLEE: State of Louisiana
    Chad M. Ikerd, Louisiana Appellate Project, Post Office Box 2125, Lafayette, Louisiana 70502, (225) 806-2930, COUNSEL FOR DEFENDANT/APPELLANT: Joshua D. Sant
    Court composed of Elizabeth A. Pickett, D. Kent Savoie, and Jonathan W. Perry, Judges.
   SAVOIE, Judge.

On June 22, 2016, Defendant, Joshua D. Sant, was charged by bill of indictment with one count of second degree murder, in violation of La.R.S. 14:30.1 ; one count of conspiracy to commit second degree murder, in violation of La.R.S. 14:26 and 14:30.1 ; and one count of hate crimes, in violation of La.R.S. 14:107.2. On April 23, 2018, Defendant proceeded to trial on the second degree murder and conspiracy to commit second degree murder charges. On April 25, 2018, a unanimous jury found Defendant guilty as charged on both counts.

On June 12, 2018, Defendant was sentenced to mandatory life imprisonment at hard labor for the murder of Chelsey Copling. In addition, he was sentenced to mandatory thirty years at hard labor for conspiracy to commit said murder with the sentences to run consecutively to each other. Defendant also received an additional thirty days for contempt of court after telling the trial court "y'all can go get fucked for all I care man."

On July 2, 2018, Defendant filed a pro se "Motion for Reconsideration of Sentence," asking the trial court for a lesser sentence based on his status as a first offender and being sole provider for his family. On July 10, 2018, counsel filed a "Motion to Reconsider Sentence" on Defendant's behalf, alleging that running Defendant's sentences consecutively is excessive and requesting they be run concurrently as they arise out of a single course of action. During a hearing on the two motions on August 7, 2018, Defendant abandoned his pro se motion and joined in counsel's motion. The trial court denied the motion for reconsideration.

Defendant now appeals his convictions and sentences, alleging insufficient evidence to support his convictions and arguing that the trial court's decision to run his sentences consecutively is excessive because they arose out of a single course of action.

DISCUSSION

During the testimony of Detective Tracy Clark of the LaSalle Parish Sheriff's Office, the State introduced Defendant's April 26, 2016 videotaped confession to Detective Clark and Chief Deputy Jimmy Arbogast, as well as a transcript of said confession, as State's Exhibits 4 and 5, respectively.

APRIL 26, 2016 CONFESSION

After being informed of his Miranda rights, Defendant agreed to talk with Detective Clark and Deputy Arbogast about the day two people, Demond Carter and Chelsey Copling, went missing. Defendant stated that he went to Thomas Aubrey's house to eat some shrimp for Chelsey's birthday. He said he did not know Chelsey or Demond very well but he knew "you call him D and her Chelsey." Defendant said the couple complained about not having fun since they had arrived in the area, so Defendant invited them to come to his house to "play some beer pong and some Uno." He stated that Austin Dyess, his co-defendant, was at his house along with a few other people named Rose, Nathan, and Defendant's uncle, Bobby Sant.

According to Defendant, Demond told him they left Texas to get clean and get away from dope, but then Chelsey started trying to smoke marijuana, which Defendant took away and gave back to Demond. Around 11:15 p.m., Defendant stated that they decided to head home and that Defendant was going to give them a ride because they were drunk. Defendant also stated that his wife, Katy, stayed inside because she did not really like the couple. Defendant claimed that Austin informed him Chelsey had thrown her purse in Defendant's truck and then they left the house on foot. Defendant stated he looked for the couple, but he could not find them. Defendant acknowledged he was a little drunk as they had consumed "a thirty pack [of beer] and another case," as well as some whiskey.

Defendant stated he had brought his Uncle Bobby to Defendant's parents' home in Winn Parish earlier in the day but stated he did not go to their house the night of the shootings. He claimed to have no idea about what had happened to the couple after they left his home. When Detective Clark asked Defendant why he had buried a plastic box in his back yard, Defendant stated he gave the box, which contained bullets and shell casings, to Austin a few weeks prior, and Austin buried it in his back yard because he "got scared of everything that's going on."

At that point, Detective Clark told Defendant:

Did you see those stars as I was putting them? Nope, nope, nope, nope, nope. Those things I can prove wrong. So listen to me, listen to me. Before you get mad and aggravated and you're looking at me like that, ok, just know that I already know a lot of stuff, ok. We had to double bag those bodies, because they stunk, and they're falling to pieces. Ok, it's pretty sad, but that's what we had to do today. When you called me on the phone, I was looking for them, and I found them, ok. But I hadn't found them yet, when I talked to you on the phone. I still wanted to talk to you, because I didn't know if they were alive, or dead. They put you in handcuffs when you drove up, because at that point, I knew they were dead.

Defendant then told Detective Clark the following story, placing all of the blame on Austin Dyess:

Ok. We rode down to the pond about 10:30, 11:00 and we got out and we was [sic] looking around because they hadn't been to no pond or anything around here. Him and Austin got into an argument and the next thing I know, he used my 44 that was laying in the seat, and shot both of them. And it scared me, it's [sic] really scared me. And I ... I don't want to loose [sic] my family over this and that's why I tried to be quiet because I don't know what's going on and I don't know what he is capable of. And I'm telling you the truth.

Defendant then stated that Austin threw the 44 into the pond where the bodies had been dumped. When asked where the second gun was, Defendant stated, "If there's two guns, I don't know about two guns. I had two pistols in the truck." He subsequently stated "I didn't kill them, I didn't kill nobody. You can put me on a lie detector test." He stated he kept a 44, a 22 Taurus, and a 12-gauge shotgun in his truck at all times but noted only the 12-gauge was currently in the vehicle. Defendant again claimed Austin threw the guns in the water. Claiming he never left the vehicle, Defendant told Detective Clark the following version of what happened between Austin and the couple:

I know he had one [gun] in one hand. I know that for a fact, and then they started arguing and I heard two shots, then I heard three. And I told him I said let's get out of here, please. And I went to the house and I called Thomas.

Defendant told Detective Clark that after Austin killed the couple, he threw their bodies into the pond on his own, then came back to the truck, and they left. After some discussion of Defendant's story not matching up with what Detective Clark already knew, Defendant gave the following version of what happened at the pond:

Well I want to tell you the truth 100%. I always have my 22 in my pocket at all times and I guess he got that 44 out of the truck for some stupid reason, I don't know. We went over there and we was looking around and him and that boy got in an argument and that boy had actually taken, started trying to take the pistol away from Austing [sic] and all I seen was Austin getting shot by somebody that he doesn't know, and I shot him.

Defendant claimed Austin then shot the girl, and they threw the pistols in the water before leaving. Defendant again stated that he shot Demond with the 22 and that Austin shot Chelsey in the head with the 44. Defendant claimed he yelled at Demond multiple times to let go of Austin when they were struggling, claiming "I was just trying to scare him at first and then it turned into something more." Defendant stated "I did what I had to do. And we was gonna leave and Austin shot her, why I don't know why he would do that."

Defendant admitted that his Uncle Bobby was never at his house on the night of the shooting and that he asked Nathan and Rose Palmer to tell law enforcement they were at the house to boost his alibi. Defendant then acknowledged that Austin was the one with the 22 who shot Demond and that he helped Austin throw the bodies in the pond. Defendant stated he had the 44 in the back of his pants when they got out of the truck and claimed he did not know Austin had the 22, which was on the front seat of the truck. Defendant maintained that Austin and Demond got into a drunken argument, Austin pulled the 22 and Demond tried to take it from him, at which point Austin shot Demond. Then Defendant claimed "I fucked up, she come [sic] running and screaming and I didn't know what else to do," noting that "I killed her and I regret it everyday." Defendant then stated after Austin shot Demond two more times that they threw the bodies and guns in the water then left. Defendant later claimed that he is in trouble "[b]ecause somebody was stupid, and I panicked." He also stated "I let a fucking retard get me in trouble, I'm loosing [sic] everything that I've worked so hard for."

Detective Clark testified that when Defendant was booked into the jail on April 29, 2016, they still had not located the murder weapons, despite help from dive teams from the Rapides Parish Sheriff's Office and the United States Marshal's Office. The State then played a video of Defendant being booked into jail, during which Defendant admitted the guns were never thrown into the pond but that he had brought the guns to his father, who was still in possession of them. Defendant's parents agreed to bring the weapons to law enforcement.

Defendant took the stand at trial and testified that he and Katy went to Mr. Thomas' house to boil shrimp for Chelsey's birthday, noting they met Chelsey and Demond for the first time that day. He testified they spent most of the day at Mr. Thomas' house, with Defendant, Chelsey, Demond, and Katy leaving around dark when Mr. Thomas got into an argument with his wife. Defendant testified that he and Katy began playing beer pong against Chelsey and Demond once they got home, until Austin arrived and took Katy's spot. He stated Katy had separated herself from the others and was ignoring everyone. Once they began running low on alcohol, Defendant testified that they went inside to put on shoes and a shirt and grabbed a rifle and shotgun from inside the house so that all five of them could go to "the oilfield to go shoot some cans and ride around." Defendant testified that "the only disagreement that come [sic] up that night, it was them smoking Mojo. And I told them we do not smoke drugs at the house."

Defendant testified that once they reached the pond, Demond and Chelsey were getting the cans for targets from the truck, Katy and Austin got the pistols out of the truck, and Defendant was looking for shells for his shotgun when he heard a gunshot followed ten or fifteen seconds later by two more gunshots, then screaming. He testified Austin was screaming at Chelsey to shut up, Chelsey wanted to be released, then Austin pushed Chelsey down and shot her twice. Defendant testified he and Austin had a conversation which resulted in Defendant fearing for his life, so he helped Austin dump the bodies in the water. He testified he took the pistols to his parents' house because he "had the intentions [sic] of giving them to the police."

After dumping the guns with his parents, Defendant testified that he, Katy, and Austin returned to his house and had a conversation in the kitchen, which left him in fear for the safety of himself and his family. He testified that the following morning he informed an unknown police officer that Chelsey and Demond were missing, not telling him what happened out of fear. Defendant stated that Austin and Katy were sitting outside when he got home that day and that they had a conversation that made him feel "that [his] son's life was in danger and [he] felt that [his] mother and father's life was [sic] in danger."

The next day, Tuesday, Defendant testified that after work he, Katy, and Austin were across the street from the house helping a neighbor work on his truck when he and Austin were picked up and gave their initial statements to police. Defendant testified that he lied to police because he did not "feel like the police could have protected [him] or [his] family."

On cross-examination, the State introduced a letter Defendant had previously sent to Katy, telling her a new story about "what really happened" at the pond; the State had Defendant read the letter aloud. The story in the letter was that he, Austin, Chelsey, and Demond were getting ready to leave the pond when Austin said something to Demond, pulled out a gun, and shot Demond when he tried to take the gun. Defendant was standing between Austin and Chelsey when Austin shoved him to the ground, tried to kill Chelsey but the gun jammed, so he pulled out the second gun and murdered her before threatening Katy and Defendant's unborn son while holding a gun to Defendant's head. Defendant then claimed he was scared of Austin because "[h]e said he was some kind of nations and [had] brothers everywhere."

Defendant continued to stick to his story that he lied to the police multiple times because he was scared of Austin Dyess. Defendant claimed that he confessed to murder because it was what Detective Clark wanted to hear. He also testified that he never mailed the letter to Katy, although he claimed she requested that he write the letter.

ERRORS PATENT

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

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, Defendant contends that there was insufficient evidence to support his convictions for second degree murder and conspiracy to commit second degree murder.

The analysis for a sufficiency claim is well settled:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court 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 proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied , 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979), State ex rel. Graffagnino v. King , 436 So.2d 559 (La.1983) ; State v. Duncan , 420 So.2d 1105 (La.1982) ; State v. Moody , 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino , 436 So.2d 559 (citing State v. Richardson , 425 So.2d 1228 (La.1983) ). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson , 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

SECOND DEGREE MURDER

Under La.R.S. 14:30.1, second degree murder is relevantly defined as the killing of a human being "when the offender has a specific intent to kill or to inflict great bodily harm." As the fourth circuit recently noted in State v. White , 14-397, p. 17 (La.App. 4 Cir. 7/29/15), 174 So.3d 177, 189, writ denied , 15-1577 (La. 10/10/16), 207 So.3d 408, "to prove second degree murder the state must prove the killing of a human being either with specific intent or when the offender is engaged in one of the listed crimes."

Defendant's argument that there was insufficient evidence to convict him of second degree murder can be summed up by his claim that he "testified at trial that he did not shoot either of the two victims. No other witness testified from personal knowledge that Joshua shot either victim."

Although Defendant argues that the State relied solely on circumstantial evidence, the argument is factually inaccurate. Although "no other witness testified from personal knowledge" that Defendant killed Chelsey Copling, the State did produce direct evidence that Defendant shot Chelsey, namely, State's Exhibit 8, Defendant's confession. Defendant's conviction rests on the jury's determination that Defendant was telling the truth when he confessed to murdering Chelsey Copling rather than when he took the stand and claimed Austin Dyess used two separate guns, both of which belonged to Defendant, to murder both Demond and Chelsey.

As this court has previously noted with regard to an eyewitness who gave different statements at different times:

Clearly, the jury was made aware of the witness's lies but still found him credible regarding the offense. As the jurisprudence makes clear, a jury's credibility assessment is not to be second-guessed on appeal. This court has only a cold record to analyze, while the jury was able to view the witness's demeanor and hear the inflections in his voice.

State v. Kato , 12-1356, p. 6 (La.App. 3 Cir. 5/15/13), 157 So.3d 695, 700.

Although Kato involved a co-defendant whose story changed at trial, the principle is the same for Defendant. It was made clear that Defendant had lied about what happened on the night of the shooting. The jury heard multiple versions of what happened through the introduction of Defendant's prior statements, then heard a new version at trial which, unlike every prior version, placed the mother of Defendant's only child at the scene. As noted by the second circuit in State v. Hunter , 39,664, p. 13 (La.App. 2 Cir. 6/29/05), 907 So.2d 200, 209, writ denied , 05-2027 (La. 3/10/06), 925 So.2d 507, "A reviewing court accords great deference to a judge's or jury's decision to accept or reject the testimony of a witness in whole or in part." Finally, "[c]onfessions, unlike mere admissions, are direct evidence of guilt." Id . The jury, in returning a unanimous guilty verdict, clearly believed Defendant's confession on April 26, 2016, not his trial testimony.

Based on the foregoing, the evidence, when viewed in the light most favorable to the prosecution, supports Defendant's conviction for second degree murder.

CONSPIRACY TO COMMIT MURDER

Defendant, while acknowledging in a footnote that Austin Dyess made a statement that Defendant had intended to kill the couple because of racism before they left the house, argues "there was no evidence that prior to either person being shot, [Defendant] and Mr. Dyess had an agreement between themselves to kill the victims."

The elements of the crime of conspiracy are (1) an agreement or combination of two or more persons for the specific purpose of committing a crime, and (2) an act done in furtherance of the object of the agreement or combination. La.R.S. 14:26. An essential element of the crime of conspiracy is specific intent. State v. Guillory, 540 So.2d 1212, 1215 (La.App. 3 Cir.1989). Specific intent is defined as that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La.R.S. 14:10(1). Even though intent is a question of fact, it may be inferred from the circumstances of the transaction and the actions of the defendant. La.R.S. 15:445 ; Guillory, 540 So.2d at 1215. The existence of specific intent is an ultimate legal conclusion to be resolved by the trier of fact. Guillory, 540 So.2d at 1215 ; State v. Graham, 420 So.2d 1126 (La.1982).

State v. Valrie , 99-226, p. 5 (La.App. 3 Cir. 10/13/99), 749 So.2d 11, 14-15, writ denied , 99-3236 (La. 4/20/00), 760 So.2d 343.

Defendant's argument is that no evidence was presented to show that there was an agreement between Defendant and Austin to kill Chelsey prior to her death. However, the State counters that Defendant "is placing total reliance on the term 'agreement' in his argument to show that the elements of the crime of conspiracy have not been proven." Citing Valrie , the State focuses on the fact that "conspiracy may be completed by a combination of 2 or more persons along with the overt act." The State argues that the evidence clearly showed a conspiracy to commit the murder, noting Defendant and Austin Dyess together took the couple out to a remote location, both armed themselves with Defendant's guns, they put the bodies in the pond together after the shootings, and they then brought the weapons to Defendant's parents.

In Valrie , this court stated:

After reviewing the record, we conclude that a rational trier of fact could have inferred that the Defendant entered into an agreement with Counts to commit an armed robbery. The Defendant waited in a getaway car and then drove that vehicle so as to avoid capture. The Defendant's fingerprint was found on the magazine of the gun used in the robbery, which gun was then recovered from the wrecked vehicle driven by the Defendant. The actions of the Defendant during and after the armed robbery were sufficient to enable the trier of fact to infer the specific intent necessary to prove a conspiracy.

Id . at 15.

Valrie did not include a discussion of any verbal agreement between the parties to commit the bank robbery in question. Furthermore, in State v. Brown , 398 So.2d 1381, 1386 (La.1981), the supreme court stated:

These facts, circumstances and inferences from them, if unexplained, would establish that this defendant was told to commit the crime and acted upon this communication by taking the gun from Williams, sticking it out the window of the car, pointing it at the officer, and unsuccessfully attempting to fire it, and then firing it. The recited facts which were found in the testimony of defendant and the testimony of Gauthier provide a prima facie case that defendant and Tommy Williams by their words and actions agreed and combined to shoot the officer.

A rational finder of fact, when viewing the evidence presented at trial in the light most favorable to the prosecution, could have found Defendant guilty beyond a reasonable doubt of conspiracy to commit second degree murder. As noted above, both Defendant and Austin Dyess took the couple into a remote area of the woods, both men were armed with weapons belonging to Defendant, and both Austin and Defendant worked together to dump the bodies and hide the murder weapons. Accordingly, Defendant's argument regarding sufficiency of the evidence lacks merit and his convictions are affirmed.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, Defendant contends that the trial court's decision to run his sentences consecutively is excessive. Defendant does not contest the length of either sentence, simply the consecutive nature of their imposition. Louisiana Code of Criminal Procedure Article 881.1 provides the mechanism for preserving the review of a sentence on appeal:

A. (1) In felony cases, within thirty days following the imposition of sentence or within such longer period as the trial court may set at sentence, the state or the defendant may make or file a motion to reconsider sentence.
....
E. Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

Louisiana courts have laid out the following guidelines with regard to excessive sentence review:

Sentences within the statutory sentencing range can be reviewed for constitutional excessiveness. State v. Sepulvado , 367 So.2d 762 (La.1979). In State v. Barling , 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied , 01-838 (La. 2/1/02), 808 So.2d 331, a panel of this court discussed the review of excessive sentence claims, stating:
La. Const. art. I, § 20 guarantees that, "[n]o law shall subject any person to cruel or unusual punishment." To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell , 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne , 99-192 (La.App. 3 Cir. 10/13/99), 746 So.2d 124, writ denied , 00-0165 (La.6/30/00), 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook , 95-2784 (La. 5/31/96), 674 So.2d 957, cert. denied , 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
Further, in reviewing the defendant's sentences, the appellate court should consider the nature of the crime, the nature and background of the offender, and the sentences imposed for similar crimes. State v. Lisotta , 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57 (citing State v. Telsee , 425 So.2d 1251 (La.1983) ), writ denied , 99-433 (La. 6/25/99), 745 So.2d 1183. In State v. Smith , 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied , 03-562 (La. 5/30/03), 845 So.2d 1061, a panel of this court observed that:
While a comparison of sentences imposed for similar crimes may provide some insight, "it is well settled that sentences must be individualized to the particular offender and to the particular offense committed." State v. Batiste , 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge "remains in the best position to assess the aggravating and mitigating circumstances presented by each case." State v. Cook , 95-2784 (La. 5/31/96), 674 So.2d 957, 958.

State v. Soileau , 13-770, 13-771, pp. 4-5 (La.App. 3 Cir. 2/12/14), 153 So.3d 1002, 1005-06, writ denied , 14-452 (La. 9/26/14), 149 So.3d 261.

As noted above, both Defendant and his counsel filed motions to reconsider sentence in the trial court. A hearing was held on August 7, 2018, at which time Defendant abandoned his motion and joined in counsel's motion, which urged that the consecutive nature of Defendant's sentences made them excessive. Defense counsel cited La.Code Crim.P. art. 883 for the premise that sentences for crimes arising out of a single transaction or occurrence should be concurrent and also urged the court to consider Defendant's status as a first felony offender and his steady work history. The trial court subsequently denied the motion.

As previously stated, "The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion." Soileau , 153 So.3d at 1005. The penalty for second degree murder where the offender is not a juvenile is life without benefit of probation, parole, or suspension of sentence under La.R.S. 14:30.1. Likewise, the penalty for conspiracy to commit second degree murder is imprisonment at hard labor for not more than thirty years under La.R.S. 14:26(C). Although Defendant is correct that La.Code Crim.P. art. 883 suggests sentences for crimes arising out of one act or transaction should be concurrent, it contains the following caveat: "[U]nless the court expressly directs that some or all be served consecutively." As this court noted in State v. Richardson , 16-107, p. 30 (La.App. 3 Cir. 12/28/16), 210 So.3d 340, 360, "It is, however, within the trial court's discretion to impose consecutive sentences provided that the trial court articulates particular justification for doing so at sentencing."

At sentencing, the trial court stated "this case was one of the most disturbing cases that [it had] ever presided over[.]" Noting Ms. Copling lost her life unnecessarily, the trial court found Defendant "never even gave the victims the decency of owning up to [his] actions." Furthermore, the trial court expressed its belief that Defendant orchestrated the entire evening's events. Finally, there is no practical difference between running Defendant's sentences concurrently or consecutively. Defendant's thirty year sentence for conspiracy is consecutive to his mandatory life sentence, which he has not contested. As this court noted in State v. Dennard , 482 So.2d 1067, 1068 (La.App. 3 Cir. 1986), "Since [Defendant] has but one life to serve, it is difficult to see that a consecutive sentence would penalize him excessively." Therefore, we find that the trial court did not abuse its discretion in running Defendant's sentences consecutively.

DECREE

Defendant's convictions and sentences are affirmed.

AFFIRMED.

      It should be noted that the record subsequently makes it clear that, while Defendant refers to her as his wife, he and Katy were never married. Katy was pregnant with Defendant's son at the time of the shootings.


author: SAUNDERS, Judge.

text:
    IN RE: Medical Review Panel of Julia Colar CASTLE
    18-881 18-894
    Court of Appeal of Louisiana, Third Circuit.
    April 17, 2019
    Marc W. Judice, James J. Hautot, Jr., Judice & Adley, P. O. Drawer 51769, Lafayette, LA 70505-1769, (337) 235-2405, COUNSEL FOR DEFENDANT/APPLICANT: Dr. Deirdre McCullough
    Nelson William Wagar, III, Sarah W. Hickman, Wagar Hickman, LLC, 3850 N. Causeway Blvd, # 900, Metairie, LA 70002, (504) 830-3838, COUNSEL FOR PLAINTIFF/RESPONDENT: Julia Colar Castle
    Ryan M. Goudelocke, Jessica R. Reaux, Durio, McGoffin, Stagg, & Ackerman, P. O. Box 51308, Lafayette, LA 70505-1308, (337) 233-0300, COUNSEL FOR DEFENDANTS/RESPONDENTS: Women's and Children's Hospital, Dr. Floyd T. Carey
    Court composed of John D. Saunders, Billy H. Ezell and Jonathan W. Perry, Judges.
   SAUNDERS, Judge.

Relators, Dr. Deidre McCullough; The Regional Health System of Acadiana, L.L.C. d/b/a Women's and Children's Hospital (Regional Health System of Acadiana); and Dr. Floyd Carey, seek supervisory writs from the judgment of the Fifteenth Judicial District Court, Parish of Lafayette, the Honorable David Michael Smith, presiding, which denied Relators' exceptions of prescription.

STATEMENT OF THE CASE

This case involves a medical malpractice action which is still pending at the medical review panel stage. On September 22, 2017, Plaintiff, Julia Colar, filed a Patient's Compensation Fund (PCF) complaint against Relators, Dr. Deidre McCullough and Dr. Floyd Carey, asserting claims of medical negligence in connection with an emergency c-section delivery that was performed on September 24, 2016, at Women's and Children's Hospital in Lafayette, Louisiana. On April 4, 2018, Plaintiff filed an amended PCF complaint asserting, for the first time, a claim on behalf of her minor daughter, Kyleigh Castle, who was born premature via the c-section delivery, and adding Relator, Regional Health System of Acadiana, as a party defendant. As is permitted by La.R.S. 40:1231.8(B)(2)(a), Relators filed two exceptions of prescription in the trial court while the case was still pending before the PCF. One exception was filed by Dr. McCullough, and one exception was filed by Regional Health System of Acadiana and Dr. Carey. In their exceptions of prescription, Relators assert that the claim of Plaintiff's daughter is prescribed on its face.

Following a hearing, the trial court denied the exceptions of prescription, and the parties have filed two separate writ applications seeking review of that ruling. The writ application filed by Dr. McCullough has been assigned this court's docket number 18-881, and the writ application filed by Regional Health System of Acadiana and Dr. Carey has been assigned this court's docket number 18-894. Although these two writ applications have not been consolidated by this court, they will both be discussed in this single opinion.

ON THE MERITS

Relators assert that the trial court erred when it denied their exceptions of prescription. Relators maintain that while Plaintiff's claim on behalf of herself was timely-filed, Plaintiff's claim on behalf of her minor daughter is prescribed. Relators note that pursuant La.R.S. 9:5628(A), medical malpractice actions must be filed within one year from the date of the alleged negligent act or within one year of the date of discovery of the alleged negligent act provided that the claims being filed within one year from the date of discovery must be filed within a period of three years from the date of the alleged negligent act in order to be considered timely. Relators also note that pursuant to La.R.S. 9:5628(B), the prescriptive period set forth in La.R.S. 9:5628(A) applies to minors also. Relators contend that because the claim of Plaintiff's minor child arises out of an alleged negligent delivery by c-section on September 24, 2016, the claim for Plaintiff's child needed to have been filed by September 24, 2017 to be timely. Relators note that the amended complaint which added a claim for Plaintiff's daughter was filed on April 4, 2018. Relators maintain that since the amended complaint was filed one-and-a-half years after the alleged negligent act, the claim for Plaintiff's daughter is prescribed on its face and that the burden shifts to Plaintiff to prove that prescription was interrupted or suspended.

Relators note that one of the cases on which Plaintiff relies in support of her position that her daughter's case is not prescribed is Truxillo v. Thomas, 16-0168 (La.App. 4 Cir. 8/31/16), 200 So.3d 972. In Truxillo , a deceased woman's daughter brought a medical malpractice claim against the decedent's doctor and hospital, and the decedent's son, who did not participate in the medical review process, was later added as a party plaintiff after the daughter's lawsuit was filed in district court. The defendant in that case sought to have the son's claim dismissed as prescribed. The trial court dismissed the son's claim as prescribed; however, that ruling was reversed on appeal. The Louisiana Fourth Circuit Court of Appeal stated the following:

There are no cases which address the specific issue with which we are presented; however, we find nothing in the Louisiana Medical Malpractice Act ("MMA") that requires that all parties who may potentially have a claim against a health care provider invoke a medical review panel proceeding. To the contrary, the purpose of the MMA, together with the MMA's express provisions and our jurisprudence interpreting it, leave no doubt that a medical review panel request need not be invoked by each and every person who may ultimately have a claim in medical malpractice. To hold otherwise would allow for the filing of multiple medical review panels by separate claimants for the same claims. This could result in numerous and varied medical review panel decisions, which, in turn, could result in more than one applicable prescriptive period for initiating suit, an untenable result. As discussed more fully herein, we find that the suspension of the time period for filing suit, triggered by the filing of a medical review panel request, accrues to the benefit of all persons who have claims arising out of the alleged medical malpractice, including those who did not participate in requesting the medical review panel.

Truxillo , 200 So.3d at 974.

In the instant case, Relators note that Plaintiff cites Truxillo , for the proposition that it was not necessary for a complaint to be filed with the PCF on behalf of Plaintiff's daughter and therefore, the amended PCF complaint which adds Plaintiff's daughter as a claimant is not untimely. However, Relators asserts that that proposition is not supported by the ruling in Truxillo . In that regard, Relators contend that the court in Truxillo relied on La.R.S. 40:1231.1(A)(4), which, in pertinent part, provides that "[a]ll persons claiming to have sustained damages as a result of injuries to or death of any one patient are considered a single claimant." Relators assert that unlike the Truxillo case, wherein both plaintiffs were seeking damages for injuries to "one patient," the instant case involves a situation in which damages are being sought by two separate patients, namely, Plaintiff and her daughter. In that regard, Relators maintain that by the amended complaint filed in the instant lawsuit, Plaintiff is not seeking to have her daughter recover for injuries to Plaintiff. Rather, Relators contend that via the amended complaint, Plaintiff is seeking recovery for the injuries to her daughter, who is a separate patient. Relators argue that the claim of Plaintiff's daughter is subject to its own prescriptive period and that Plaintiff failed to raise the claim within the prescriptive period.

Relators point out that Plaintiff also relies on Guffey v. Lexington House, L.L.C ., 18-475 (La.App. 3 Cir. 8/22/18), 254 So.3d 1, writ granted , 18-1568 (La. 1/8/19), --- So.3d ----, a case wherein this court held that a patient's granddaughter's request for a medical review panel suspended prescription of the claims of the patient's children. However, Relators assert that the Guffey case, which involved claims pertaining to a single patient, is also distinguishable from the instant case because the instant case involves claims pertaining to two patients rather than one.

Relators contend that because the injuries to Plaintiff's daughter allegedly occurred at the time of the child's birth on September 24, 2016, the claim for Plaintiff's daughter needed to have been filed either by September 24, 2017, or within one year of the date of discovery of the alleged negligent act. With regard to the discovery issue, Relators note that Plaintiff's daughter was born at thirty-one weeks gestation and that the newborn had to be placed in the neonatal intensive care unit until December 9, 2016. Relators also note that the numerous complications resulting from the preterm delivery of Plaintiff's daughter included intrauterine growth restriction, respiratory distress syndrome, upper airway obstruction, a distended abdomen, necrotizing enterocolitis, and risk of intraventricular hemorrhage. Relators maintain that the child's complications were evident to all and that those complications were specifically called to Plaintiff's attention on November 30, 2016, when she was shown a chart indicating the child's poor head circumference and given special diet instructions to reduce the child's risk of poor brain development. Relators argue that although the extensive postpartum problems experienced by Plaintiff's daughter should have put Plaintiff on notice of her daughter's claim, Plaintiff did not file her daughter's claims until April 3, 2018, which was one-and-a-half years after her daughter was delivered prematurely by c-section. Relators maintain that at the very latest, prescription started to run on November 30, 2016, at which time Plaintiff had discovered enough information to put a reasonable person on notice of the alleged malpractice claim for her daughter. Relators contend that Plaintiff's failure to file her daughter's claim within a year of that "discovery date" resulted in her daughter's claim becoming prescribed.

In her oppositions to the instant writ applications, Plaintiff takes the position that the trial court properly denied Relators' exceptions of prescription. Plaintiff contends that the various acts of malpractice that were performed on September 24, 2016, that caused injuries to Plaintiff are the exact acts of malpractice that caused injury to Plaintiff's daughter. Plaintiff notes that pursuant to La. Code Civ.P. art. 683, she, as the mother, is the proper party to bring suit on behalf of her daughter. Also, Plaintiff contends that La.R.S. 40:1231.1(A)(4) contemplates that exact scenario and thus, allows a single representative to file a claim on behalf of all potential plaintiffs. Thus, Plaintiff contends that filing a timely claim with the medical review panel on her own behalf was sufficient to suspend prescription for all malpractice claims arising out of her c-section. In fact, Plaintiff maintains that even if she had not filed the amended petition adding her daughter as a claimant in the medical review panel proceedings, her daughter's case still would not have prescribed. In that regard, Plaintiff asserts that pursuant to Truxillo , 200 So.3d 972, and Guffey , 254 So.3d 1, not each and every party who may ultimately file a medical malpractice lawsuit is required to file a request for a medical review panel.

Plaintiff points out that the sole purpose of the medical review process is for the medical review panel to determine whether the health care providers violated the standard of care. As such, Plaintiff maintains that there is no focus whatsoever on the claimants during the medical review process. Thus, Plaintiff maintains that a medical malpractice lawsuit may be filed on behalf of a person who did not participate in the medical review process. Plaintiff asserts that when she filed her timely request for a medical review panel on September 22, 2017, which was within one year of the alleged malpractice, that interrupted the running of prescription on her daughter's claim.

Plaintiff makes the alternative argument that her daughter's claim filed on April 4, 2018, is not prescribed because it was made within one year of the discovery of the alleged malpractice. Plaintiff cites Campo v. Correa , 01-2707, pp. 11-12 (La. 6/21/02), 828 So.2d 502, 510-11 (citations omitted), wherein the Louisiana Supreme Court stated the following:

Prescription commences when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort. A prescriptive period will begin to run even if the injured party does not have actual knowledge of facts that would entitle him to bring a suit as long as there is constructive knowledge of same. Constructive knowledge is whatever notice is enough to excite attention and put the injured party on guard and call for inquiry. Such notice is tantamount to knowledge or notice of everything to which a reasonable inquiry may lead. Such information or knowledge as ought to reasonably put the alleged victim on inquiry is sufficient to start running of prescription. Nevertheless, a plaintiff's mere apprehension that something may be wrong is insufficient to commence the running of prescription unless the plaintiff knew or should have known through the exercise of reasonable diligence that his problem may have been caused by acts of malpractice. Even if a malpractice victim is aware that an undesirable condition has developed after the medical treatment, prescription will not run as long as it was reasonable for the plaintiff not to recognize that the condition might be treatment related. The ultimate issue is the reasonableness of the patient's action or inaction, in light of his education, intelligence, the severity of the symptoms, and the nature of the defendant's conduct.

In the instant case, Plaintiff contends that during the one-year period after her daughter's birth, the effects of the c-section were not apparent because her daughter was an infant. In fact, Plaintiff contends that it was not until her attorney had her case evaluated by a medical expert, James Tappan, in March 2018 that Plaintiff and her attorney realized that her c-section had been unnecessary and had caused damages of an unknown magnitude. Furthermore, Plaintiff maintains that her daughter's developmental delays were not fully appreciated until September 24, 2017. Plaintiff argues that even if some developmental delays were suspected before her daughter's first birthday, Plaintiff did not know that the developmental delays were caused by an unnecessary c-section until March 2018. Plaintiff contends that since her daughter's claim was filed within a year of that discovery date, the claim was timely filed.

We find that there is merit to Plaintiff's argument that her daughter's claim is timey under the discovery rule. The Louisiana Supreme Court has stated that "[t]he jurisprudence is well established that the mere fact that there is an injury during or following medical care or treatment is not an indication of substandard care that either the physician or hospital provided." Campo , 828 So.2d at 512 (citations and footnote omitted). In the instant case, although Plaintiff was aware of complications with her baby from the time of the child's premature birth by c-section in September 2016, it was not until March 2018 that Plaintiff allegedly discovered that the emergency c-section which caused her child's developmental problems had been performed unnecessarily. Because the claim for Plaintiff's daughter was filed within one year of the alleged discovery date, we find that the claim was filed within the prescriptive period set forth in La.R.S. 9:5628(A). Accordingly, the trial court did not err when it denied Relators' exceptions of prescription.

WRITS DENIED. We find no error in the trial court's ruling.


author: PETTIGREW, J.

text:
    STATE of Louisiana v. Avery HONEA
    NO. 2018 KA 0018
    Court of Appeal of Louisiana, First Circuit.
    Judgment rendered December 21, 2018
    HILLAR C. MOORE, III, DISTRICT ATTORNEY, DYLAN C. ALGE, ASSISTANT DISTRICT ATTORNEY, BATON ROUGE, LA, ATTORNEYS FOR STATE OF LOUISIANA
    LIEU T. VO CLARK, MANDEVILLE, LA, ATTORNEY FOR DEFENDANT-APPELLANT, AVERY HONEA
    BEFORE: PETTIGREW, WELCH, AND CHUTZ, JJ.
   PETTIGREW, J.

The defendant, Avery Honea, was charged by grand jury indictment with armed robbery with a firearm, a violation of La. R.S. 14:64, and use of a firearm in the commission of an armed robbery, a violation of La. R.S. 14:64.3. The defendant pled not guilty and, following a jury trial, was found guilty as charged (on both charges). For the armed robbery conviction, the defendant was sentenced to 45 years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence; for the additional penalty of use of a firearm in the commission of the armed robbery, the defendant was sentenced to 5 years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. The sentences were ordered to run consecutively. The defendant filed a motion to reconsider sentence, which was denied. The defendant now appeals, designating three assignments of error. We affirm the convictions and sentences.

FACTS

In the early morning hours of December 11, 2013, Ivan Graham and Bryton Montelaro went to the house of the defendant, who was Ivan's cousin. Demarcus James and Aaron Hargrove were also at the defendant's house. The men made plans to rob Jared Vincent, who sold marijuana from his apartment in Baton Rouge. Jared lived with his friend, Leonard Wyatt. Demarcus and Ivan texted Jared and set up deals to purchase marijuana. With Ivan driving a Dodge Ram truck, all five men went together to Jared's apartment. The defendant, Demarcus, and Aaron, who apparently were all armed, got out of the truck, while Ivan and Bryton stayed in the truck. A short time later, shots were fired inside Jared's apartment. Jared was killed, and Leonard was shot in the back, but survived. Demarcus had also been shot; he was dropped off that night at a hospital in Gonzales. It appears Leonard's gun was taken from the apartment that night.

The defendant did not testify at trial.

ASSIGNMENTS OF ERROR NOS. 1 AND 2

In these related assignments of error, the defendant argues, respectively, that the trial court erred in denying his motion to reconsider sentence and that his sentence is unconstitutionally excessive.

The Eighth Amendment to the United States Constitution and Article I, § 20, of the Louisiana Constitution prohibit the imposition of cruel or excessive punishment. Although a sentence falls within statutory limits, it may be excessive. State v. Sepulvado, 367 So.2d 762, 767 (La. 1979). A sentence is considered constitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Andrews, 94-0842 (La. App. 1 Cir. 5/5/95), 655 So.2d 448, 454. The trial court has great discretion in imposing a sentence within the statutory limits, and such a sentence will not be set aside as excessive in the absence of a manifest abuse of discretion. See State v. Holts, 525 So.2d 1241, 1245 (La. App. 1 Cir. 1988). Louisiana Code of Criminal Procedure article 894.1 sets forth the factors for the trial court to consider when imposing sentence. While the entire checklist of Article 894.1 need not be recited, the record must reflect the trial court adequately considered the criteria. State v. Brown, 2002-2231 (La. App. 1 Cir. 5/9/03), 849 So.2d 566, 569.

The articulation of the factual basis for a sentence is the goal of Article 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with Article 894.1. State v. Lanclos, 419 So.2d 475, 478 (La. 1982). The trial judge should review the defendant's personal history, his prior criminal record, the seriousness of the offense, the likelihood that he will commit another crime, and his potential for rehabilitation through correctional services other than confinement. See State v. Jones, 398 So.2d 1049, 1051-52 (La. 1981). Even when a trial court assigns no reasons, the sentence will be set aside on appeal and remanded for resentencing only if the record is either inadequate or clearly indicates that the sentence is excessive. See La. Code Crim. P. art. 881.4(D) ; State v. Knight, 2011-0366 (La. App. 1 Cir. 9/14/11), 77 So.3d 302, 304, writ denied, 2011-2240 (La. 2/17/12), 82 So.3d 283. On appellate review of a sentence, the relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Thomas, 98-1144 (La. 10/9/98), 719 So.2d 49, 50 (per curiam).

With a maximum sentencing exposure of 104 years imprisonment, the defendant was sentenced to fifty years at hard labor (45 years for the armed robbery conviction, plus 5 years to be served consecutively under the additional penalty provision of armed robbery with the use of a firearm) without the benefit of parole, probation, or suspension of sentence. See La. R.S. 14:64(B) and La. R.S. 14:64.3(A). The defendant argues in brief that his (cumulative) 50-year sentence is excessive because he was only 17 years old at the time of the offense, he was not the primary planner or major participant in the offense, and he will likely be confined for the remainder of his natural life.

Considering the nature of the crime, and the fact that the imposed (cumulative) sentence was 54 years less than the statutorily allowed maximum sentence(s), we find no abuse of discretion by the trial court. The sentence is not apparently severe and is supported by the record. The defendant engaged in a course of criminal conduct that resulted in one victim being shot (but who survived), and another victim being shot and killed. See Knight, 77 So.3d at 306. Under these facts, it appeared the defendant could have faced a charge for second degree murder (and a second charge for attempted second degree murder). The trial court noted as much when, in sentencing the defendant, it stated:

He was convicted by a jury of his peers for armed robbery; an armed robbery which he helped plan, which he participated in, and which ended up in a murder. And he could have just as easily, in my opinion, been charged with second-degree murder as he was with armed robbery.

Accordingly, the 50-year (cumulative) sentence is not grossly disproportionate to the severity of the offense and, therefore, is not unconstitutionally excessive. The trial court did not abuse its discretion in denying the motion to reconsider sentence.

These assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 3

In his third assignment of error, the defendant argues that a 50-year sentence without parole eligibility for a juvenile offender convicted of a nonhomicide offense is illegal because it does not provide a meaningful opportunity for release.

According to the defendant, his 50-year sentence is "effectively a life sentence" without a meaningful opportunity for release. Thus, defendant argues, under Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), his sentence is illegal. The defendant relies on State ex rel. Morgan v. State, 2015-0100 (La. 10/19/16), 217 So.3d 266, 269-70, which found that the defendant's 99-year sentence for the conviction of a singular offense was impermissible under Graham because it was an effective life sentence. According to the Morgan court, as applied to the 17-year-old defendant, a 99-year sentence without the benefit of parole was illegal because it denied the defendant a meaningful opportunity for release based on demonstrated maturity and rehabilitation. Morgan, 217 So.3d at 271-72. Likewise, according to the defendant, he will have to serve the entirety of his 50-year sentence without any consideration for parole eligibility. Thus, the defendant avers, this court should vacate his sentence and remand for resentencing pursuant to the applicable parole provisions of La. R.S. 15:574.4(D).

In Graham, 560 U.S. at 82, 130 S.Ct. at 2034, the Supreme Court held that the Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide. In State v. Shaffer, 2011-1756 (La. 11/23/11), 77 So.3d 939, 942 (per curiam), our supreme court found that Graham required the defendants, and all other persons similarly situated, to have a meaningful opportunity to secure release as a regular part of the rehabilitative process. See State v. Graham, 2014-1769 (La. App. 1 Cir. 4/24/15), 171 So.3d 272, 279, writ denied, 2015-1028 (La. 4/8/16), 191 So.3d 583.

In Morgan, 217 So.3d at 267, the defendant, who was convicted of armed robbery committed when he was 17 years old, was sentenced to 99 years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. The Morgan court sought to determine whether a 99-year sentence without parole violated the categorical rule established in Graham. Morgan, 217 So.3d at 270. The Morgan court noted that in response to the Graham decision, the Louisiana legislature amended La. R.S. 15:574.4(D)(1), providing, in pertinent part:

Notwithstanding any provision of law to the contrary, any person serving a sentence of life imprisonment who was under the age of [18] years at the time of the commission of the offense, except for a person serving a life sentence for a conviction of first degree murder ( R.S. 14:30 ) or second degree murder ( R.S. 14:30.1 ), shall be eligible for parole consideration pursuant to the provisions of this Subsection if all of the following conditions have been met:
(a) The offender has served [30] years of the sentence imposed[ ][; and]
(b) The offender has not committed any major disciplinary offenses in the [12] consecutive months prior to the parole hearing date ....

Morgan, 217 So.3d at 271.

Our supreme court in Morgan noted that to date, State v. Brown, 2012-0872 (La. 5/7/13), 118 So.3d 332 had been the only case in which it had considered Graham's applicability to a sentence other than an actual life term. In Brown, a 16-year-old defendant had committed and was subsequently convicted of five nonhomicide offenses (aggravated kidnapping and four counts of armed robbery). The district court sentenced him to life imprisonment "without benefit" plus four consecutive 10-year terms, also "without benefit;" effectively a sentence of life plus 40 years without parole. Brown, 118 So.3d at 333-34. After the district court, pursuant to Graham , amended all his sentences to delete the parole eligibility restrictions, the Brown court found the issue was "whether, and to what extent" Graham applied in a case in which a juvenile offender had "committed multiple offenses resulting in cumulative sentences matching or exceeding his life expectancy without the opportunity [for] ... parole." Brown, 118 So.3d at 335. The Brown court found it dispositive that the defendant was sentenced for multiple convictions, and it decided that although he would be parole-eligible on his life sentence after 30 years, his consecutive terms of years would remain intact and he would in fact have to wait until age 86 to become parole-eligible. See Morgan , 217 So.3d at 271.

The Morgan court distinguished Brown , finding that the defendant's 99-year sentence (in Morgan ) was "an effective life sentence, illegal under Graham . " Morgan, 217 So.3d at 271. The Morgan court noted that the defendant had been convicted of a single offense and sentenced to a single term, whereas the defendant in Brown had received lengthy term-of-year sentences because he had committed five offenses. Morgan, 217 So.3d at 271-72.

The Morgan court noted that the defendant would not become parole-eligible until 2082, after reaching the age of 101. Morgan, 217 So.3d at 274. If this sentence were permissible under Graham , the Morgan court posited, the defendant would remain incarcerated for the duration of his life, even as fellow inmates convicted of more serious offenses became parole-eligible after serving 30 years. Morgan, 217 So.3d at 274. In finding no practical difference, in terms of actual length of imprisonment, between a life sentence and the 99-year sentence at issue, and noting that nothing in Graham was offense-specific, aside from the homicide/nonhomicide distinction, the Morgan court held that a 99-year sentence was "the functional equivalent of life without parole," and therefore illegal under Graham . Morgan , 217 So.3d at 274-76.

The Morgan court then, in addressing the applicability of La. R.S. 15:574.4(D) to the defendant, opined:

Thus, considerations of equity and consistency require that La. R.S. 15:574.4(D) be construed as applicable not just to those juvenile offenders serving a sentence of life for a nonhomicide offense, but also to those, like the defendant, serving an effective life sentence for a single nonhomicide offense which the legislature deems not so serious as to warrant an automatic life sentence. To conclude otherwise would be to sanction the harsher punishment of those deemed less culpable by the legislature than of those now indisputably entitled to parole-eligibility under present law.

Morgan, 217 So.3d at 275-76.

Accordingly, the Morgan court ordered the deletion of the defendant's parole ineligibility and ordered that he be designated as parole-eligible in accordance with La. R.S. 15:574.4(D). Morgan, 217 So.3d at 277.

In the instant matter, we do not find that the defendant's sentence is illegal under Graham , as interpreted by Morgan . Morgan specifically found that a 99-year sentence was the functional equivalent of a life sentence and, therefore, illegal under Graham . And it was because such a sentence was tantamount to a life sentence that the Morgan court applied La. R.S. 15:574.4(D) to the defendant. Here, the defendant was sentenced to (a total of) 50 years imprisonment at hard labor without the benefit of parole. We do not find that a 50-year sentence is an effective life sentence. Moreover, the defendant may be eligible for actual release after 30 to 40 years of custody (depending on "good time" earned and other factors). See La. R.S. 15:571.3(B)(2)(a). It is noteworthy that both prior and subsequent to the newest amendment to La. R.S. 15:574.4, the legislature has specifically carved out an exception to parole eligibility consideration regarding the crime of armed robbery. Louisiana Revised Statutes 15:574.4(B)(1) provides, in pertinent part: "No person shall be eligible for parole consideration who has been convicted of armed robbery and denied parole eligibility under the provisions of R.S. 14:64." Accordingly, unlike the defendant in Morgan, we do not find La. R.S. 15:574.4(D) to be applicable to the defendant herein, since the defendant's current sentence already provides, under Graham and Morgan , some realistic opportunity to obtain release before the end of his term.

This assignment of error is without merit.

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

CONVICTIONS AND SENTENCES AFFIRMED.

      There were six co-defendants, including the defendant, listed in the grand jury indictment. Under Count 1, the defendant, Aaron Hargrove, Demarcus James, Bryton Montelaro, and Ivan Graham were charged with second degree murder of Jared Vincent, a violation of La. R.S. 14:30.1. Under Count 2, Aaron Hargrove was charged with attempted second degree murder of Leonard Wyatt, a violation of La. R.S. 14:30.1 and 14:27. Under Count 3, Patrick Anderson was charged with obstruction of justice by tampering with evidence, a violation of La. R.S. 14:130.1(B)(1). The indictment was subsequently amended to charge the defendant with only armed robbery with a firearm.

      Demarcus James was convicted of the second degree murder of Jared Vincent. His sentence and conviction were affirmed by this court on February 27, 2018. See State v. James, 2017-1253 (La. App. 1 Cir. 2/27/18), 243 So.3d 717.

      The latest amendment to this provision provides that the offender serve twenty-five years of the sentence imposed. See La. R.S. 15:574.4(D)(l)(a) (as amended by 2017 La. Acts 277, § 1 (effective August 1, 2017) ).

      In the instant matter, the State in brief suggests that because the defendant received two sentences to run consecutively (45 years plus 5 years), his case is governed by Brown ; that is, the defendant cannot aggregate his sentences in support of a Graham claim. Such an argument, the State avers, is foreclosed by Brown 's principle that the aggregation of multiple sentences cannot create an effective life sentence. We do not agree. We do not think that the Brown court had in mind, nor do we consider, that the 5-year "additional penalty" sentence under La. R.S. 14:64.3 is anything like the multiple, aggregated sentences (5 total) that were at issue in Brown . This extra 5-year sentence in the instant case is simply a mandatory additional penalty and is more in the nature of a sentencing enhancement (to La. R.S. 14:64 ) rather than an aggregation of sentences.

      An offender convicted of a crime of violence, without a prior conviction of a crime of violence or a sex offense, shall earn diminution of sentence at a rate of one day for every three days in actual custody held on the imposed sentence. See La. R.S. 15:571.3(B)(2)(a).