author: WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana v. Ronald J. MORGAN.
    No. 09-KA-694.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 23, 2010.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Andrea F. Long, Assistant District Attorneys, Gret-na, Louisiana, for Plaintiff/Appellee.
    Gwendolyn K. Brown, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS.
   WALTER J. ROTHSCHILD, Judge.

|2This is defendant’s fourth appeal. The procedural history of this case is taken from this Court’s most recent opinion in State v. Morgan, 08-1299 (La.App. 5 Cir. 5/26/09), 15 So.3d 1026 as follows:

In defendant’s first appeal, this Court affirmed defendant’s convictions for forcible rape and aggravated incest and the finding that defendant was a third felony offender. State v. Morgan, 06-529 (La.App. 5 Cir. 12/12/06), 948 So.2d 199. This Court vacated defendant’s sentences and remanded the case to the trial court for a ruling on defendant’s outstanding counseled motion for new trial. Id., 06-529 at 25, 948 So.2d at 206-07, 215.
On remand, the trial judge resen-tenced defendant on Count 1, forcible rape, to imprisonment at hard labor for 20 years, and on Count 2, aggravated incest, to imprisonment at hard labor for 10 years, with both sentences to run concurrently. State v. Morgan, 07-943, p. 2 (La.App. 5 Cir. 3/11/08), 982 So.2d 172, 173. Three months later, the trial judge, Judge Robert Burns, denied defendant’s pro se motion for new trial after a hearing. One week later, Judge Burns vacated the original sentences and resentenced defendant as a third felony offender to a term of 40 years to be served without benefit of parole, probation, or suspension of sentence on both counts to run concurrently. State v. Morgan, 07-943 at 2-3, 982 So.2d at 173.
In the second appeal, this Court again vacated defendant’s sentences and remanded for a ruling on the outstanding counseled motion for new trial, since the trial court erroneously ruled on defendant’s pro se motion for new trial, which had already been denied, instead of his outstanding counseled motion for new trial three months after sentencing. State v. Morgan, 07-943 at 3, 982 So.2d at 173. This Court stated that, if the trial judge denied the motion and subsequently resentenced defendant, it reserved defendant’s right to appeal an adverse judgment with respect to his sentencing. Id.
On remand, the trial judge, Judge Donald Rowan, denied defendant’s motion for new trial after a hearing on October 3, 2008. Afterwards, the trial judge resentenced defendant on Count 1, forcible rape, to imprisonment at hard labor for 20 years, with “at least two” years to be served without benefit of parole, probation, or suspension of sentence, and on Count 2, aggravated incest, to imprisonment at hard labor for ten years, with Count 1 to run consecutively with Count 2. The trial judge then vacated the original sentence and resen-tenced defendant as a third felony offender on Count 1 to imprisonment at hard labor for 40 years without benefit of parole or suspension of sentence and on Count 2 to imprisonment at hard labor for 10 years “without benefits,” with the sentences on both counts to run consecutively. Defendant filed a motion to reconsider sentence that was denied. State v. Morgan, 08-1299 at 2-4, 15 So.3d at 1027-28.

|4In his third appeal, defendant appealed his sentence and the trial court’s ruling on his motion to reconsider sentence. He argued that the trial court erred by increasing his sentence without justification following his successful appeal. He contended that vindictiveness must reasonably be inferred from the record. This Court stated that it was possible, based on the record that the trial judge may not have had a personal animus against defendant, but rather he may have thought concurrent sentences were too lenient considering the disturbing facts of this case, that defendant raped his own biological daughter numerous times over a period of years. Since the trial court did not provide reasons for the increased sentence on remand after appeal, this Court vacated defendant’s enhanced sentence and remanded the matter to the trial court for resentenc-ing with orders that the trial court provide reasons for the sentence imposed. State v. Morgan, 08-1299 at 10, 15 So.3d at 1031-32.

Additionally, this Court vacated the trial court’s order denying defendant’s motion to reconsider sentence and remanded this matter to the trial court. State v. Morgan, 08-1299 at 13, 15 So.3d at 1033. This Court also found that the ten-year enhanced sentence on Count 2 was illegally lenient because it was below the mandatory minimum of 13.3 years. As such, this Court instructed the trial court to take note of this error when resentencing on remand. Id., 08-1299 at 14, 15 So.3d at 1034.

On July 10, 2009, on remand, the trial judge resentenced defendant on Count 1, forcible rape, to imprisonment at hard labor for 20 years, with the first two years to be served without benefit of probation, parole, or suspension of sentence, and on Count 2, aggravated incest, to imprisonment at hard labor for ten years, with the sentences to run consecutively to each other. The trial judge then vacated the original sentence on Count 1, forcible rape, and resentenced defendant as a third |5felony offender to imprisonment at hard labor for 40 years without benefit of probation or suspension of sentence. He also resen-tenced defendant as a third felony offender on Count 2, aggravated incest, to imprisonment at hard labor for 15 years without benefit of probation or suspension of sentence, with the sentences on Counts 1 and 2 to run consecutively with each other. Defendant filed a timely motion for appeal that was granted.

FACTS

The underlying facts are found in this Court’s opinion in State v. Morgan, 06-529 (La.App. 5 Cir. 12/12/06), 948 So.2d 199, 202-06, and will not be repeated herein.

DISCUSSION

By this appeal, defendant first argues that the sentencing judge erred by increasing his sentence following his successful appeal without justification. He contends that the sentencing judge’s explanations of his increased sentence are insufficient to pass constitutional muster. He further contends that the increase in harshness was motivated by vindictiveness. The State responds that the sentences imposed were not the result of defendant’s actions in appealing his case, but rather his egregious criminal conduct and the resulting consequences of his acts. The State further responds that there was nothing in the record to suggest that the sentencing judge had any animosity or ill-will towards defendant.

On remand, the judge resentenced defendant, providing reasons for judgment as ordered by this Court:

Alright, Mr. Morgan, they have asked me to — to re-sentence you again.
Alright, I am going to state my reasons for why I did that. I wasn’t the trier of fact for this case. It was Judge Cusimano. But I did look into this, and the Court finds that, other than murder, in my opinion, this is the most serious offense, rape. Also when it includes a | f,child, who happens to be your biological child, and this person is raped over a period of time, that’s probably the worse [sic] thing that could ever happen to an individual, because at that point, the individual then, being an authority figure, Mr. Morgan, that person loses trust in everyone and everything, winds up going down his own path, the loss of a child’s innocence, the loss of respect, winds up becoming a problem for everybody in society.
I find the rape of a child to be practically the most heinous thing that I’ve every seen including my eighteen and a half years as an Assistant District Attorney.

The trial judge then resentenced defendant as previously discussed. Defense counsel told the judge that both allegations were on the same bill of information and stemmed from the same pattern. The judge responded, “But I think they were different acts.” He also added, “I find them to be independent of each other, and I sentence him to consecutive time based on my reasons.” Defense counsel objected and said he would file an appeal.

The judge then resentenced defendant as a third felony offender. During that sentencing, the judge stated,

“[A]nd that’s based on my earlier reasons based on this particular rape of a child, a biological child, in which the trauma of the psychological and physical trauma to this child is imaginable [sic]. I can’t even fathom what the child is going through, I can’t even fathom what she was thinking at that particular moment when her biological parent did this to her. It’s very traumatic. It betrays all sense of one’s respect and authority in a parent. That’s my basis for it being consecutive.”

Defense counsel noted his objection to the excessiveness of the sentence and stated that the judge did not hear the case. The judge replied, “No, but I reviewed the facts of it.”

The first issue presented is whether the sentencing judge increased defendant’s sentences.

A brief summary of the sentencing in the instant case is as follows: Judge Cusi-mano originally sentenced defendant to 20 years on the forcible rape 17conviction and 10 years on the aggravated incest conviction to run concurrently. He vacated the original sentences on both counts and re-sentenced defendant as a third felony offender to serve 40 years on both counts to run concurrently. On remand, Judge Cu-simano resentenced defendant to 20 years on the forcible rape conviction and 10 years on the aggravated incest conviction to run concurrently. Judge Burns vacated the original sentences and resentenced defendant as a third felony offender to 40 years on both counts to run concurrently.

On remand, Judge Rowan resentenced defendant to 20 years on the forcible rape conviction and 10 years on the aggravated incest conviction to run consecutively. He resentenced defendant as a third felony offender to 40 years on the forcible rape conviction and to 10 years on the aggravated incest conviction with the sentences to run consecutively. On remand, Judge Rowan resentenced defendant to 20 years on the forcible rape conviction and 10 years on the aggravated incest conviction, with the sentences to run consecutively. He resentenced defendant as a third felony offender to 40 years on the forcible rape conviction and 15 years on the aggravated incest conviction, to run consecutively.

Defendant’s first and second sentences imposed by Judges Cusimano and Burns, respectively, totaled 40 years each. Defendant’s third sentence totaled 50 years, because it was ordered to run consecutively, rather than concurrently. His fourth sentence totaled 55 years, because the judge increased the sentence on the aggravated incest conviction from 10 to 15 years, based on this Court’s conclusion that the 10-year enhanced sentence was illegally lenient.

Thus, the judge increased the total sentence by 15 years from the original sentence. We will next consider whether the judge was motivated by vindictiveness when he increased the sentences.

|sThe judge who resentenced defendant the third and fourth times (Judge Rowan) was not the same judge who presided over defendant’s trial and imposed sentence and who subsequently resentenced him the first time (Judge Cusimano), nor was it the same judge who resentenced defendant a second time (Judge Burns).

We will next consider whether defendant has met his burden of proving that the judge was vindictive when he increased the sentences. Defendant contends that vindictiveness can be inferred from the record because the judge ordered the sentences to run consecutively, rather than concurrently, like the trial judge originally imposed, and because the judge’s reasons for the increase were inadequate.

Regarding the imposition of consecutive sentences, LSA-C.Cr.P. art. 883 provides, in pertinent part, as follows:

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently.

We find that the instant offenses constituted parts of a common scheme or plan and, therefore, there was a presumption in favor of concurrent sentences under the article. State v. Puckett, 02-997, p. 13 (La.App. 5 Cir. 1/28/03), 839 So.2d 226, 234, writ denied, 03-0891 (La.12/12/03), 860 So.2d 1148. Although the imposition of consecutive sentences requires particular justification when the crimes arise from a single course of conduct, consecutive sentences are not necessarily excessive. Such sentences are justified when the offender poses an unusual risk to public safety. Id.

In Puckett, supra, defendant was convicted of aggravated rape and aggravated oral sexual battery and sentenced to life imprisonment and 15 years | ¡imprisonment, respectively, to run consecutively. This Court found that the record supported the sentences, even though the crimes arose from a single course of conduct and the trial judge failed to articulate reasons for the sentences imposed. This Court noted that defendant had a significant criminal history, harassed the victim prior to the incident, the incident was cruel and humiliating, and he attacked a victim with a compromised mental capacity. Id., 02-997 at 13, 839 So.2d at 234.

This Court in State v. Morgan, supra, discussed a case similar to the instant one, U.S. v. Anderson, 440 F.3d 1013 (8th Cir.2006) as follows:

In U.S. v. Anderson, 440 F.3d 1013 (8th Cir.2006), cited by the State in its brief, the federal appellate court concluded that vindictiveness had not been established. In Anderson, the defendant was convicted of 49 counts of mail fraud and money laundering, among other things, and sentenced. The appellate court affirmed the convictions but remanded for resentencing. Defendant was subsequently resentenced by a different judge to an increased sentence. On appeal, defendant argued that the higher sentence was an impermissible, vindictive sentence intended to punish him for having exercised his right to appeal. The appellate court did not recognize a presumption of vindictiveness since there were dififerent sentencers, and it found that defendant bore the burden of proving actual vindictiveness. The appellate court stated that, because defendant relied on no evidence other than the fact of the longer sentence to prove vindictiveness, his argument failed. The appellate court found that the higher sentence on remand was easily explained by the district court’s views unrelated to the prior appeal. Id., 440 F.3d at 1013-17.

State v. Morgan, 08-1299 at 9, 15 So.3d at 1031.

In U.S. v. Anderson, the appellate court upheld the higher sentence, noting that the district court had placed reasons for the higher sentence unrelated to the prior appeal on the record. In that case, the transcript indicated that the district court viewed defendant’s offense as particularly underhanded and the defendant as manipulative and unremorseful. Id., 440 F.3d at 1017.

In the instant case, we find, as this Court did in Puckett, supra, that the record supports consecutive sentences, even though the offenses appear to have | inbeen part of defendant’s common scheme or plan to rape his daughter. The sentencing judge reviewed the facts of the case prior to sentencing and gave his reasons for imposing consecutive sentences. Additionally, as in U.S. v. Anderson, supra, the sentencing judge in the instant case placed reasons for the higher sentence unrelated to the prior appeal in the record. He stated that he viewed the rape of a child as “practically the most heinous thing” he had ever seen and the “wors[t] thing that could happen to an individual.” He was particularly concerned with the trauma the child suffered as a result of defendant, her biological father, raping her over a period of years. The judge said that those were the reasons for the consecutive sentences. In light of the foregoing, we find that the increased sentence is based on the sentencing judge’s strong view of defendant’s offenses and his concern for the child victim, and not on defendant’s successful appeals.

On appeal, defendant challenges, not only the consecutive nature of the sentences, but the increased enhanced sentence on Count 2. He contends that the increased sentence was also based on the judge’s vindictiveness.

With respect to Count 2, the aggravated incest conviction, this Court found that the 10-year enhanced sentence on that count was below the mandatory minimum of 13.3 years and, therefore, was illegally lenient. As such, this Court instructed the trial court to take note of this error when resentencing on remand. On remand, the sentencing judge increased the sentence from 10 to 15 years, not because he was being vindictive, but because this Court found that the mandatory minimum sentence was 13.3 years and that the 10-year sentence was illegally lenient.

In light of the foregoing, we find that the sentencing judge did not err by imposing consecutive sentences (which increased the total number of years) or by increasing the enhanced sentence on Count 2.

InDefendant next argues that the trial court should not have enhanced both of his convictions because they were obtained on the same date. The State responds that defendant’s position is both factually and legally unsupported and, therefore, his argument should be rejected.

The legislature enacted 2005 La. Acts 218, amending LSA-R.S. 15:529.1(B) to provide that “[m]ultiple convictions obtained on the same day prior to October 19, 2004, shall be counted as one conviction for the purpose of this Section.” State v. Shaw, 06-2467, p. 19 (La.11/27/07), 969 So.2d 1233, 1244-45. However, since defendant in the instant case was convicted of forcible rape and aggravated incest on January 25, 2005, which was after October 19, 2004, the above-cited amendment to LSA-R.S. 15:529.1(B) is inapplicable.

Additionally, in Shaw, supra, the Louisiana Supreme Court held that the language of LSA-R.S. 15:529.1 contained no prohibition against enhancing multiple sentences obtained on the same date arising out of a single criminal act or episode. The supreme court stated that there is no statutory bar to applying the habitual offender law in sentencing for more than one conviction obtained on the same date, whether the convictions result from separate felonies committed at separate times or arise out of a single criminal act or episode, overruling State ex rel. Porter v. Butler, 573 So.2d 1106 (La.1991). Therefore, based on Shaw, the trial court did not err by enhancing both of defendant’s convictions that were obtained on the same date, even though they appear to have arisen out of a single criminal episode. State v. Shaw, 06-2467 at 20, 969 So.2d at 1245.

TERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals errors patent, one of which requires remand for resentencing.

Parole restriction

We find that the enhanced sentence on Count 1, forcible rape, must be vacated and the case remanded for resentencing on that count only, because the judge did not order that at least two years of the sentence be served without benefit of parole.

In State v. Tapps, 02-0547 (La.App. 5 Cir. 10/29/02), 832 So.2d 995, writ denied, 02-2921 (La.4/21/03), 841 So.2d 789, in an error patent review, this Court noted that the trial judge failed to restrict at least two years of defendant’s sentence for forcible rape from benefit of parole, probation or suspension of sentence, as required by LSA-R.S. 14:42.1(B). This Court found that the language of the sentencing provision gave the trial judge discretion in determining the exact length of time that benefits were to be withheld, and for that reason, this Court remanded the case for resentencing in compliance with LSA-R.S. 14:42.1. State v. Tapps, 02-0547 at 13-14, 832 So.2d at 1004.

Likewise, in State v. Alexander, 08-580 (La.App. 5 Cir. 2/25/09), 8 So.3d 732, writ denied, 09-717 (La.12/11/09), 23 So.3d 912, in an error patent review, this Court noted that, as to Count 1, the trial court ordered that the entire habitual offender sentence be served without benefit of probation, or suspension of sentence for the entire term, as was required under LSA-R.S. 15:529.1 G, but that the underlying sentencing provision, LSA-R.S. 40:966 B(l), additionally required that “at least five years” of the sentence be served without parole. Since the trial court |isdid not restrict parole in any way in imposing the enhanced sentence, and the statute required an exercise of the trial court’s sentencing discretion in limiting parole eligibility, this Court vacated the defendant’s sentence and remanded this case for resentencing in accordance with the underlying statute, citing State v. Tapps, supra. See also State v. Smith, 09-100, p. 15 (La.App. 5 Cir. 8/25/09), 20 So.3d 501, 509.

In the instant case, the judge vacated the original sentence on Count 1, forcible rape, and resentenced defendant as a third felony offender to imprisonment at hard labor for 40 years without benefit of probation or suspension of sentence. LSA-R.S. 15:529.1 G provides that the enhanced sentence shall be without benefit of probation or suspension of sentence; however, LSA-R.S. 14:42.1 B, the underlying felony, provides that at least two years of the sentence imposed shall be without benefit of probation, parole, or suspension of sentence. The judge erred by failing to order at least two years of the sentence be served without benefit of parole. Defendant noted this error in his brief; however, he said that the error was in his favor and, since he alleged that the case should be remanded for resentencing, he did not address it.

Because the underlying offense carried a parole restriction, the habitual offender sentence is to likewise be imposed without parole. State v. Smith, supra, citing State v. Bruins, 407 So.2d 685, 687 (La.1981). Since the judge did not restrict parole in any way in imposing the enhanced sentence, and the statute requires an exercise of the trial court’s sentencing discretion in limiting parole eligibility, we vacate defendant’s sentence on Count 1 and remand this case for resentencing on that count only in accordance with the underlying statute. State v. Smith, supra, citing State v. Alexander, 08-580, p. 11 (La.App. 5 Cir. 2/25/09), 8 So.3d 732, 739, citing State v. Tapps, 02-0547, pp. 13-14 (La.App. 5 Cir. 10/29/02), 832 So.2d 995, 1004, writ denied, 02-2921 (La.4/21/03), 841 So.2d 789.

Vacating of original sentence

The transcript reflects that the judge failed to vacate the original sentence on Count 2 before imposing the enhanced sentence; however, the commitment shows that the original sentence on Count 2 was vacated. However, we find that no corrective action is necessary, although we hereby instruct the judge to take note of this error on remand. See, State v. Mayer, 99-3124 (La.3/31/00), 760 So.2d 309.

DECREE

Accordingly, for the reasons assigned herein, defendant’s sentence on Count 2 is hereby affirmed. However, the sentence imposed on Count 1 is vacated and the matter is remanded for resentencing in accordance with this opinion.

SENTENCE ON COUNT ONE VACATED AND REMANDED FOR RE-SENTENCING; SENTENCE ON COUNT TWO AFFIRMED.

      . Judge Charles Cusimano originally sentenced defendant to imprisonment at hard labor for 20 years on the forcible rape conviction and 10 years on the aggravated incest conviction to run concurrently. Morgan, 06-529 at 3, 948 So.2d at 202. After Judge Cusimano found defendant to be a third felony offender, he vacated the original sentences on both counts and resentenced him to imprisonment at hard labor for 40 years on both counts to run concurrently. Id. [footnote as found in original]

      . It is noted that Shaw involved post-10/19/04 convictions. State v. Shaw, 06-2467 (La.11/27/07), 969 So.2d 1233.


source: Caselaw Access Project

author: MARION F. EDWARDS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Jermaine LOEB.
    No. 09-KA-341.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 23, 2010.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Kenneth Bordelon, Michael Smith, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Kevin V. Boshea, Attorney at Law, Me-tairie, Louisiana, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and CLARENCE E. McMANUS.
   MARION F. EDWARDS, Judge.

12Defendant/appellant, Jermaine Loeb (“Loeb”), appeals his conviction and sentence on a charge of possession with intent to distribute heroin in violation of La. R.S. 40:966(A). For reasons that follow, we affirm both the conviction and the enhanced sentence.

The Jefferson Parish District Attorney’s Office filed a bill of information on February 7, 2008 charging Loeb with the drug charge at issue herein. He pled not guilty and filed several pre-trial motions, including motions to suppress the evidence and his statement, which were denied after a hearing. After a two-day trial, a unanimous twelve-person jury found Loeb guilty as charged. He was sentenced to thirty years at hard labor with the first five years being served without the benefit of parole, probation, or suspension of sentence.

Subsequently, the State filed a multiple offender bill of information alleging that Loeb was a fourth felony offender based on a 1994 conviction for ^manslaughter and two convictions for possession of cocaine in 1998 and 2001. Loeb denied the allegations contained in the multiple bill. The State amended the multiple bill to allege that Loeb was a third felony offender. At the hearing on the multiple bill of information, Loeb stipulated to his status as a third felony offender. The trial court vacated Loeb’s original sentence and imposed an enhanced sentence of thirty-five years at hard labor without the benefit of probation or suspension of sentence.

This timely appeal followed.

FACTS

At approximately 12:45 p.m. on December 11, 2007, several officers of the Jefferson Parish Sheriffs Office were patrolling the Alex Korman area of the Woodmere Subdivision as part of Project Safe Neighborhood (“PSN”). Detective Kenneth Lat-our (“Detective Latour”) and Sergeant Curtis Matthews (“Sergeant Matthews”), who were wearing black raid vests with “Sheriff’ indicated in yellow, parked their unit and proceeded on foot patrol into a courtyard in the middle of an apartment complex that was known for drug trafficking. The officers’ purpose of walking through the courtyard was to see if there was any activity.

Upon the officers’ entry into the courtyard, they observed five male subjects talking in a group. Two of the subjects looked at the officers and immediately fled in opposite directions. The three other subjects remained at the scene. Detective Latour and Sergeant Matthews pursued the fleeing subjects, one of whom was Loeb. Sergeant Matthews was unable to catch up with Loeb and radioed for help. Detective Latour, who had lost the subject he was pursuing, along with Detective Alvin Módica (“Detective Módica”), and Sergeant Todd Vignes (“Sergeant Vignes”), who were in the area and part of the team working PSN, responded to Sergeant Matthews’ request for assistance. Detective Módica, who was between |4two buildings in the area where Loeb was fleeing, heard Sergeant Matthews’ radio call for help and then saw Loeb run past. Detective Módi-ca chased Loeb, who was running in a full sprint, for a half block during which time Loeb looked back at Detective Módica several times. Detective Módica observed that Loeb had a red bandanna in one hand and some sort of plastic bag protruding from the other hand. When Detective Mó-dica caught up with Loeb, Loeb dropped the bandanna and discarded the plastic bag. A fight ensued, and Detective Módi-ca was forced to pepper spray Loeb in order to subdue and handcuff him.

Sergeant Vignes, who was behind Detective Módica during the chase, observed Loeb throw down a bandanna and a small object when Detective Módica caught up to him. Sergeant Vignes retrieved the discarded bandanna and object, which turned out to be a clear plastic bag that had twenty-seven individual packets of tin foil. He conducted a field test of the contents, which was positive for heroin. Loeb was then placed under arrest. A search of his person incident to arrest yielded $2,510 cash from Loeb’s back pocket.

Loeb underwent a decontamination process for the pepper spray which involved facing him into the wind, rinsing his eyes with water, and being attended to by Emergency Medical Services. After the decontamination process, Sergeant Matthews advised Loeb of his rights, and he was transported to the detective bureau to be interviewed. Loeb participated in a pre-interview but refused to give a taped statement. According to Sergeant Matthews and Detective Módica, Loeb admitted during the pre-interview that he sold heroin in the location where he was apprehended on a daily basis to make money. He also admitted that the police had caught him and he would “take his charge.”

Loeb did not testify at trial but presented the testimony of a close Mend, Iona Wallace, who testified she gave Loeb $2,500 in cash the morning he was | r,arrested. She explained the money was to purchase a car for herself and she gave Loeb the money to hold while she ran errands. She denied giving Loeb any drugs.

LAW AND ANALYSIS

On appeal, Loeb assigns five errors for our review. Two of those errors relate to the original sentence, which was vacated by the trial court after Loeb’s admission to the multiple offender charge. Therefore, those issues are moot and will not be considered by this Court in this opinion.

The remaining three assignments of error concern the denial of the motion to suppress the evidence, the denial of the motion to suppress the statement, and the sufficiency of evidence used to support the conviction.

SUPPRESSION OF EVIDENCE

Loeb’s argument that the trial court erred in denying his motion to suppress is based on the contention that officers had no reasonable suspicion to conduct an investigatory stop because they did not observe Loeb engage in suspicious activity or a crime. Loeb asserts that flight alone is insufficient to provide reasonable suspicion for an investigatory stop. Thus, Loeb reasons the discarded heroin should be suppressed as the fruit of an illegal stop.

The State responds that Loeb’s unprovoked flight in a high-crime area upon the approach of the police provides reasonable suspicion for an investigatory stop. The State maintains Loeb abandoned the evidence upon the legal stop and, therefore, the evidence was legally seized.

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. If | ^evidence is derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from trial.

In a hearing on a motion to suppress, the State bears the burden of proof in establishing the admissibility of evidence seized without a warrant. The trial court’s decision to deny a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression.

It is well-established that a police officer may conduct a brief investigatory stop when the officer has a reasonable articulable suspicion of criminal activity. The Terry standard, as codified in La. C'.Cr.P. art. 215.1, authorizes police officers to stop a person in a public place whom they reasonably suspect is committing, has committed, or is about to commit an offense and demand that the person identify himself and explain his actions.

In determining whether the police possessed the requisite minimal level of objective justification for an investigatory stop based on reasonable suspicion of criminal activity, reviewing courts must look at the totality of the circumstances of each case, a process which allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person. Police do not have to observe what they know to be criminal behavior before ^investigating; the requirement is that the officers have a reasonable suspicion of criminal activity.

An officer’s mere unparticular-ized suspicion or “hunch” of criminal activity is insufficient to establish reasonable grounds to stop a person. Factors that may support reasonable suspicion for an investigatory stop include an officer’s experience, his knowledge of recent criminal patterns, and his knowledge of an area’s frequent incidents of crime. Nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. While an individual’s mere presence in a high-crime area, standing alone, is insufficient to justify an investigatory stop, his presence in a high-crime area, coupled with nervousness, startled behavior, flight or suspicious actions upon the approach of the officers, gives rise to reasonable suspicion for an investigatory stop.

In Illinois v. Wardlow, the United States Supreme Court held that an individual’s unprovoked flight through a high-crime area in response to the approach of the police provides reasonable suspicion to justify an investigatory stop. In Wardlow, police officers were in a four-car caravan converging on an area known for heavy narcotics trafficking- in order to investigate drug transactions. The two officers in the last car observed the defendant standing next to a building holding an opaque bag. The defendant looked in the direction of the officers and then fled. The officers pursued the defendant and eventually stopped him. A protective pat down search revealed the defendant was carrying a gun.

The United States Supreme Court found that it was the defendant’s unprovoked flight upon noticing the police that aroused the officers’ suspicion and [snot the defendant’s mere presence in a high-crime area. The Supreme Court stated, “[h]eadlong flight — wherever it occurs — is the consummate act of evasion; It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.” Noting that an individual has a right to ignore the police and go about his business, the United States Supreme Court stated that unprovoked flight is not a mere refusal to cooperate. It further stated that “[f]light, by its very nature, is not ‘going about one’s business’; in fact, it is just the opposite.”

In State v. Johnson, the Louisiana Supreme Court found that police officers had reasonable suspicion to conduct an investigatory stop when the defendant and his companion “significantly picked up their pace” and headed in a direction away from the officers. In Johnson, the police officers were patrolling an area known for high narcotics activity. The officers approached the defendant and his companion in a marked unit. The two men picked up their pace and headed toward a crossover that led to another courtyard. The men were “nearly running” and repeatedly looked over their shoulders at the officers. The officers stopped the men before they reached the crossover and ordered them to place their hands on the hood of the patrol car. Prior to the pat down search, the defendant removed his hand from the hood of the patrol car and dropped a glass crack cocaine pipe to the ground.

In upholding the validity of the investigatory stop, the Johnson Court concluded that, in the context of the circumstances known to the officer, such as “the lateness of the hour, the high-crime character of the area, and the nervous demeanor of the two men reflected in their repeated glances over their shoulders, 19[the defendant’s] evasive conduct provided the minimal objective justification for an investigatory stop.”

Additionally, in State v. Burns, supra, this Court determined that the defendant’s unprovoked flight from the officers in a high-crime area provided the requisite reasonable suspicion to justify the investigatory stop. In Bums, the police officer was patrolling a high-crime area at night when he observed the defendant standing in the middle of the street. When the defendant noticed the unmarked unit as “police presence,” he started to walk away toward a nearby residence. The defendant kept looking back toward the officer as he was walking away. When the officer exited his vehicle, the defendant began to run.

In support of his assertion that the stop was unreasonable, Loeb cites State v. Alvarez. Using Alvarez, Loeb argues that his presence in a high-crime area and subsequent flight from the police did not provide the police with reasonable suspicion to conduct an investigatory stop.

In Alvarez, police officers were on patrol in a high-crime area when they conducted a traffic stop. The officers noticed the defendant standing between two apartment complexes watching the officers conduct the traffic stop. One officer explained that, every time he made eye contact with the defendant, the defendant would “back off.” The officer also noted the defendant was fidgety. The officer decided to interview the defendant to find out what the defendant was doing and why he was walking around in a nervous manner. The officer asked the defendant to come over to talk to him and the defendant responded, “[M]e.” When the officer repeated the request, the defendant replied, “[H]uh.” Thereafter, three officers 17 (¡approached the defendant from different directions at which time the defendant turned and fled.

The officers pursued the defendant during which time the defendant discarded a gun from his waistband. He ran into an apartment and slammed the door. The officers kicked down the door, entered the apartment, handcuffed the defendant, and informed him he was under arrest. The officers searched the defendant and discovered a small bag of cocaine. The Alvarez court concluded the police did not have reasonable suspicion to stop the defendant.

We find Alvarez clearly distinguishable from the facts of the matter before us in this appeal. Unlike Alvarez, the police officers in the present case did not approach the defendant from different directions so that an actual stop was imminent prior to defendant’s flight. Rather, the officers simply walked into the courtyard at which time defendant immediately fled. Additionally, unlike Alvarez, there was no interaction between the police officers and defendant before defendant fled.

Based on the jurisprudence, Loeb’s unprovoked flight at the sight of two police officers in a high-crime area gave the police officers reasonable suspicion to conduct an investigatory stop. As such, the discarded bag containing the packets of heroin was properly seized as abandoned property. When property is abandoned prior to any unlawful intrusion into a citizen’s right to be free from governmental interference, the property may be lawfully seized. It is only when a defendant is stopped without reasonable cause that the “right to be left alone” is violated, |nthereby rendering the seizure of any abandoned property unlawful. Therefore, the trial court properly denied defendant’s motion to suppress the evidence.

SUPPRESSION OF STATEMENT

Loeb asserts the trial court erred in denying his motion to suppress the statement because it was the fruit of an illegal arrest and it was coerced. He maintains that, for reasons asserted in assignment of error number one, his arrest was illegal and, therefore, the pre-interview statement given after his arrest was inadmissible as the fruit of a poisonous tree. Loeb further asserts that his statement was not knowing and voluntary. He contends it was coerced because the police had just pepper sprayed him. He maintains he was still suffering from the effects of the pepper spray when he waived his rights without fully understanding his rights.

As discussed above, the investigatory stop of Loeb was justified; therefore, Loeb’s statement is not the fruit of a poisonous tree. The next issue for our consideration is whether Loeb’s statement was voluntary.

Before an inculpatory statement made during a custodial interrogation may be introduced into evidence, the State must prove, beyond a reasonable doubt, that the defendant was first advised of his Miranda rights, that he voluntarily and intelligently waived his Miranda rights, and that the statement was made freely and voluntarily and not under the influence of fear, intimidation, menaces, threats, inducements, or promises. Whether a defendant’s purported waiver of Miranda rights was voluntary is determined by the totality of the circumstances. The | ^critical factor in a knowing and intelligent waiver is whether the defendant was able to understand the rights explained to him and voluntarily gave the statement.

A trial court’s determination on the admissibility and its conclusion on the credibility and weight of the testimony relating to the voluntariness of the statement are entitled to great weight and will not be overturned unless unsupported by the evidence. An appellate court is not limited to the evidence adduced at the hearing on the motion in determining whether the trial court’s ruling on a motion to suppress is correct but may also consider pertinent evidence presented at the trial.

The statement at issue is one that was made by Loeb during the pre-interview, after he was arrested and transported to the detective bureau. According to Sergeant Matthews and Detective Módica, Loeb stated he sold heroin in the area where he was arrested to make money. Loeb subsequently declined to give a formal taped statement.

The thrust of Loeb’s argument is that he was in need of emergency medical care due to the effects of the pepper spray and was given his Miranda rights during that procedure rather than at the detective bureau. Loeb contends that, under these circumstances, he was not properly advised of his Miranda rights. Accordingly, Loeb asserts that the statement should have been suppressed.

The testimony contradicts Loeb’s argument. The testimony of officers is that Loeb was informed of his Miranda rights after he had sufficiently recovered from the effects of the pepper spray. It was estimated that Loeb was advised of these rights about fifteen or twenty minutes after he was pepper sprayed.

| |SAccor ding to testimony, Loeb appeared to be in his right mind and seemed capable of understanding his rights. At the time Miranda rights were explained to Loeb, only a drizzle of mucous was coming from his nose and his eyes were wide open and he was not breathing heavily. Loeb answered affirmatively when asked if he understood his rights. The officers’ testimony shows that, after Loeb was pepper sprayed, he went through the decontamination process, which consisted of facing the wind and having water applied.

Nothing in the record indicates the effects of the pepper spray affected Loeb’s ability to understand and voluntarily waive his rights. Further, no evidence was presented at the suppression hearing or at trial that suggested Loeb’s statement was involuntary. He was advised of his rights after going through the decontamination process for pepper spray and after the effects of the pepper spray had dissipated. Loeb affirmatively acknowledged that he understood his rights and was transported to the detective bureau where he participated in a pre-interview and was cordial.

Based on the foregoing, we find that Loeb’s statement was voluntarily given and, therefore, the trial court did not err in denying the motion to suppress the statement.

SUFFICIENCY OF EVIDENCE

In his final assignment of error, Loeb argues that, should this Court find the motion to suppress the evidence and statement should have been granted, as asserted in assignments of error numbers one and two, then the evidence, without the heroin and statement, is insufficient to support a conviction.

Loeb does not make any argument that any of the elements of the crime charged were not proven. Further, as the State points out to this Court, Loeb does 114not suggest that the requirements of Jackson v. Virginia, which provides that evidence is sufficient when a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt after viewing the evidence in the light most favorable to the State, were not met.

Because we have found that the statement and the evidence were admissible, we find no merit in this argument.

ERROR PATENT DISCUSSION

This Court has reviewed for errors patent and found the following: Although the commitment indicates defendant was advised of the two-year prescriptive period for filing an application for post-conviction relief in accordance with La.C.Cr.P. art. 930.8, the sentencing transcript does not so reflect. When there is an inconsistency between the minute entry and the transcript, the transcript prevails. Accordingly, by way of the opinion, this Court advises Loeb that he has two years from the date his conviction and sentence become final to seek post-conviction relief.

We hereby affirm the conviction and enhanced sentence of Loeb and inform him that he has two years from the date his conviction and sentence become final to seek post-conviction relief.

AFFIRMED.

      . State v. Duckett, 99-314 (La.App. 5 Cir. 7/27/99), 740 So.2d 227, 230.

      . La.C.Cr.P. art. 703(D).

      . State v. Ayche, 07-753 (La.App. 5 Cir. 3/11/08), 978 So.2d 1143, 1148, writ denied, 08-2291 (La.1/30/09), 999 So.2d 752, and writ denied, 08-1115 (La.2/13/09), 999 So.2d 1140. There are two writ denials related to this case, 08-2291 (La.1/30/99), 999 So.2d 752, and 08-1115 (La.2/13/09), 999 So.2d 1140. However, they both relate to applications for post-conviction relief.

      . La.C.Cr.P. art. 215.1; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984).

      . State v. Ayche, 978 So.2d at 1148.

      . State v. Boyer, 07-476 (La.10/16/07), 967 So.2d 458, 469 (quotations omitted; citations to quoted material omitted).

      . State v. Benjamin, 97-3065 (La.12/1/98), 722 So.2d 988, 989.

      . State v. Burns, 04-175 (La.App. 5 Cir. 6/29/04), 877 So.2d 1073, 1076.

      . State v. Ayche, 978 So.2d at 1149.

      . Id.

      . State v. Burns, 877 So.2d at 1076.

      . 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000).

      . 528 U.S. at 121-22, 120 S.Ct. at 674-75.

      . Illinois v. Wardlow, 528 U.S. at 124, 120 S.Ct. at 676.

      . Id.

      . Id. at 528 U.S. at 127, 120 S.Ct. at 676.

      . 01-2081 (La.4/26/02), 815 So.2d 809, 810 (per curiam).

      . Id.

      . Id. at 810-11.

      . State v. Johnson, 815 So.2d at 811.

      . State v. Burns, 877 So.2d at 1077.

      . Id.

      . 08-558 (La.App. 5 Cir. 1/13/09), 8 So.3d 50.

      . Id. at 52.

      . State v. Alvarez, 8 So.3d at 52.

      . Id. at 53.

      . State v. Ayche, 978 So.2d at 1149.

      . State v. Ayche, 978 So.2d at 1149.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . La. R.S. 15:451; State v. Franklin, 03-287 (La.App. 5 Cir. 9/16/03), 858 So.2d 68, 70, writ denied, 03-3062 (La.3/12/04), 869 So.2d 817.

      . State v. Batiste, 06-824 (La.App. 5 Cir. 3/13/07), 956 So.2d 626, 633, writ denied, 07-892 (La.1/25/08), 973 So.2d 751.

      . State v. Batiste, 956 So.2d at 634.

      . Id.

        .Id.

      . 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

      . See, La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990).

      . State v. Lynch, 441 So.2d 732, 734 (La.1983).

      . La.C.Cr.P. art. 930.8.


author: MARC E. JOHNSON, Judge.

text:
    Lorraine Zenobia WILLIAMS, on behalf of the Interdict, Floyd WILLIAMS v. Sheriff Wayne L. JONES, St. John The Baptist Parish Sheriff's Office, St. John The Baptist Parish Correctional Center, Warden Philip Hebert and ABC Insurance Companies.
    No. 09-CA-839.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 23, 2010.

      Kenneth H. Hooks, III, Richard J. Dodson, H. Price Mounger, III, Attorneys at Law, Baton Rouge, LA, Philip F. Cossich, Jr., Belle Chasse, LA, for Plaintiff/Appellant.
    Lloyd F. Schroeder, II, Craig E. Frosch, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

12Plaintiff/appellant, Lorraine Zenobia Williams, on behalf of interdict Floyd Williams, appeals the trial court’s judgment in favor of defendants/appellees, Sheriff Wayne Jones, St. John the Baptist Sheriffs Office, St. John the Baptist Correctional Center, Warden Philip Hebert, and St. Paul Fire and Marine Insurance Company, dismissing her tort suit. For reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff filed suit against the above-named defendants alleging her son, Floyd Williams, was injured when he fell from the top bunk of his bed at the St. John the Baptist Correctional Center (SJCC) while he was in the custody of the St. John the Baptist Sheriffs Office. Plaintiff asserted that as a result of his fall, Mr. Williams suffered a serious spinal cord injury and sustained brain damage. After a bench trial, the trial court concluded the plaintiff failed to meet her burden of |8proving that defendants were liable for the incident under either negligence or strict liability.

At trial, it was established that Floyd Williams was arrested on October 1, 2006 for littering and trespassing and was booked into SJCC. He spent two days in a holding cell before being processed and transferred to the general population of the SJCC. Prior to being transferred to the general population, a medical intake was conducted and no unusual behavior or significant medical problem relating to Mr. Williams was noted. Accordingly, Mr. Williams was placed in general population and assigned to a top bunk bed, which was not equipped with a guardrail. Approximately two weeks later, on October 17, 2006, Mr. Williams fell from the top bunk onto the concrete floor and suffered a serious cervical spinal cord injury resulting in quadriplegia.

The parties entered into several stipulations at trial. They stipulated that the bunk bed at issue was purchased under the authority of Sheriff Wayne Jones by his employees, who chose the style, make and model of the bed. They also stipulated Sheriff Jones had ownership, custody and control of the bed at issue.

In concluding the plaintiff failed to carry her burden of proving liability under the theory of negligence, the trial court found the defendants did not breach their basic duty to protect Mr. Williams from harm. The trial court noted that prison authorities have a duty to exercise reasonable care to protect inmates from harm, but stated the duty only applies to prevent harm the prison authorities have reasonable cause to anticipate. The trial court reasoned the basic duty of care did not include the prevention of a fall from a prison bed if the prison officials were not aware of a particular inmate’s tendency to fall. The trial court determined there was no evidence suggesting that either the Sheriff or any of his ranking officers or deputies were aware of any problems with respect to Mr. Williams that would |4provide them with reasonable cause to anticipate that he would fall from his top bunk. As such, the trial court concluded the risk of falling was beyond the scope of the jailer’s basic duty to protect an inmate from harm.

Additionally, the trial court concluded the bunk bed was not unreasonably dangerous for purposes of strict liability because the potential for danger was obvious and a person exercising reasonable care would not sustain similar injuries. The trial court also found defendants did not have actual or constructive notice of any vice or defect in the bed. The trial court noted there were no significant prior occurrences of an incident that suggested the need for a guardrail on the top bunk and there were no regulatory guidelines requiring a guardrail or warning on prison bunk beds that would give prison officials notice of an unreasonably dangerous condition.

ISSUES

The plaintiff raises four issues on appeal, two relating to negligence and two relating to strict liability. First, she claims the trial court erred in finding the prison authorities did not owe a duty to protect Mr. Williams from the foreseeable harm associated with the bunk bed. Second, she contends the trial court improperly applied the duty-risk analysis by focusing on the victim rather than the bunk bed that caused the injury. Third, the plaintiff maintains the trial court erred in finding the bunk bed did not present an unreasonable risk of harm. And, fourth, she asserts the trial court erred in concluding the defendants did not have notice of the defect in the bunk bed.

LAW AND ANALYSIS

Plaintiffs claims fall under either a theory of negligence pursuant to La.C.C. art. 2315 or strict liability pursuant to La.C.C. art. 2317. The trial court 15specifically addressed both theories of liability and found no liability under either theory.

Negligence

To determine whether liability exists under a negligence theory the courts apply a duty-risk analysis. Under this analysis, the plaintiff must prove (1) the conduct in question was the cause-in-fact of the resulting harm; (2) the defendant owed a duty of care to the plaintiff; (3) the requisite duty was breached by the defendant; and (4) the risk of harm was within the scope of protection afforded by the duty breached, Lazard v. Foti, 02-2888, p. 3 (La.10/21/03), 859 So.2d 656, 659. A negative answer to any of the elements of the duty/risk analysis requires a no-liability determination. Id.

The question of whether a defendant owes a duty to the plaintiff is a question of law. Lazard v. Foti, supra. The Louisiana Supreme Court has stated that penal authorities have a duty to use reasonable care in preventing harm after they have reasonable cause to anticipate it. State ex rel. Jackson v. Phelps, 95-2294, p. 3 (La.4/8/96), 672 So.2d 665, 667. Thus, the inquiry is whether the prison authorities at SJCC had reasonable cause to anticipate harm to Mr. Williams; in other words, whether the duty to protect inmates from harm includes within its scope of protection the risk that inmates will fall from the top bunk of their beds.

A risk is not within the scope of a duty where the circumstances of that injury to the plaintiff could not reasonably be foreseen or anticipated, because there was no ease of association between the risk of that injury and the legal duty, Lazard v. Foti, 02-2888 at 6, 859 So.2d at 661. The supreme court has explained:

All rules of conduct, irrespective of whether they are ... part of the fabric of the court-made law of negligence, exist for a purpose. They are designed to protect some persons under some circumstances |fiagainst some risks. Seldom does a rule protect every victim against every risk that may befall him, merely because it is shown that the violation of the rule played a part in producing the injury. The task of defining the proper reach or thrust of a rule in its policy aspects is one that must be undertaken by the court in each case as it arises.

Lazard v. Foti, 02-2888 at 6, 859 So.2d at 661, quoting Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620, 622 (1972).

The present record shows that the prison authorities at SJCC had no reasonable cause to anticipate Mr. Williams would fall from his bed and harm himself. Mr. Williams had slept on the top bunk without incident for two weeks prior to the incident. Additionally, a medical intake evaluation did not reveal any medical conditions or other problems Mr. Williams had that would indicate Mr. Williams was unable to safely sleep on a top bunk. Furthermore, the record shows Mr. Williams had been jailed numerous times in the past and had there was no indication he had fallen out of bed during any of his prior incarcerations. Although there was evidence that one other inmate had previously fallen out of a bed at the SJCC, the inmate had fallen from a lower bunk and there was no evidence regarding the inmate’s medical history or his state or actions at the time he fell. Thus, we find no error in the trial court’s conclusion that the risk an inmate, who had no known medical condition or problems, would fall from the top bunk of his bed was not within the scope of protection afforded by prison authorities’ duty to use reasonable care to protect an inmate from harm.

Strict Liability

In determining defendants were not liable under strict liability, the trial court found that the top bunk of the bed was not unreasonably dangerous and that defendants had no notice of any alleged defect.

La.C.C. art. 2317.1 provides in pertinent part:

|7The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

This article effectively turns strict liability into negligence claims. Butkiewicz v. Evans, 06-236, p. 5 (La.App. 5 Cir. 9/26/06), 943 So.2d 509, 512.

To prevail on a claim against a public entity under La.C.C. art. 2317.1, a plaintiff must establish: (1) the entity’s custody or ownership of the defective thing; (2) the defect created an unreasonable risk of harm; (3) the entity’s actual or constructive notice of the defect; and (4) causation. Id., 06-236 at 5, 943 So.2d at 513.

In the present case, the parties stipulated that Sheriff Jones owned the bunk bed at issue. Thus, the issue is whether the lack of a guardrail on the top bunk created an unreasonable risk of harm.

There is no fixed rule for determining whether the thing at issue presents an unreasonable risk of harm. In determining whether a defect creates an unreasonable risk of harm, the courts use a risk-utility balancing test in which the gravity and risk of harm is balanced against the individual and societal rights and obligations, the social utility, and the cost and feasibility of repair. Butkiewicz v. Evans, 06-236 at 6, 943 So.2d at 513. In other words, the trier of fact must decide whether the social value and utility of the hazard outweigh its potential harm to others. Reed v. Wal-Mart Stores, Inc., 97-1174, p. 5 (La.3/4/98), 708 So.2d 362, 365.

The Louisiana Supreme Court has explained,

The unreasonable risk of harm criterion entails a myriad of considerations and cannot be applied mechanically... .The concept, |swhich requires a balancing of the risk and utility of the condition, is not a simple rule of law which can be applied-mechanically to the facts of the case.... Because of the plethora of factual questions and other considerations involved, the issue necessarily must be resolved on a case-by-case basis. [Citations omitted.]

Reed v. Wal-Mart Stores, Inc., 97-1174 at 4, 708 So.2d at 364.

The manifest error standard of review applies to the trial court’s finding of whether a defect creates an unreasonable risk of harm. Trice v. Isaac, 99-839, p. 6 (La.App. 5 Cir. 2/16/00), 759 So.2d 843, 846, writ denied, 00-1113 (La.6/2/00), 763 So.2d 600.

The fact an accident occurred because of a defect does not elevate the condition of the thing to that of an unreasonably dangerous defect. The defect must be of such a nature as to constitute a dangerous condition that would be reasonably expected to cause injury to a prudent person using ordinary care under the circumstances. Lasyone v. Kansas City Southern R.R., 00-2628, pp. 14-15 (La.4/3/01), 786 So.2d 682, 694.

In the present case, plaintiff presented the testimony of George Widas, who was qualified as a safety expert and engineer. Mr. Widas testified that the bunk bed at issue did not meet the standard safety criteria because it did not contain a guardrail or any warnings of the fall hazard it presented. He explained his opinion was based on various references including the Consumer Product Safety Commission (CPSC), which states any bunk bed over 30 inches high presents a fall hazard of significant risk. On cross-examination, Mr. Widas admitted the safety standards set forth by the CPSC specifically excludes prisons. Mr. Widas further admitted that he knew of no national, state, local, or city standard for the manufacturing of prison bunk beds.

The evidence showed the bunk bed at issue was manufactured by Prison Enterprises, who was dismissed as a party-defendant before trial. Todd Labatut, |flthe deputy director of Prison Enterprises, testified that the standard bunk bed Prison Enterprises manufactured did not come with a top guardrail unless the customer specifically requested it. He stated that of the 8,500 bunk beds Prison Enterprises sold in Louisiana, only 276 had top rails on them. Mr. Labatut also stated he knew of no standards or requirements that mandated Prison Enterprises to build bunk beds with a top guardrail. He further testified he was unaware of any person who had been injured from falling from a bunk bed.

Lieutenant James Oubre, Chief of Security for the St. John Parish Sheriffs Office (SJSO), testified that SJCC has had the same type of beds for the 25 years he has been employed by SJSO. He stated he was aware of only one person, other than Mr. Williams, who had ever fallen out of a bed at SJCC.

While this accident was tragic, we cannot say the trial court erred in finding the lack of a guardrail on the top bunk did not constitute an unreasonably dangerous condition. Based on the evidence, a person would not reasonably expect the lack of a guardrail on the top bunk bed at a prison to cause injury under ordinary circumstances. Over the years, many prisoners have slept on the bunk beds on a daily basis, yet Mr. Williams was the only one who has fallen from the top bunk and suffered a serious injury. The evidence does not show that the probability and magnitude of the risk of an inmate falling out of the top bunk outweighs the utility of a standard bunk bed in prison.

Accordingly, we find no error in the trial court’s judgment finding defendants were not liable under negligence or strict liability to plaintiff for Mr. Williams’ injury.

AFFIRMED.


author: JAMES F. McKAY III, Judge. LOVE, J., BELSOME, J.

text:
    Robin L. Wegener, Wife of and Hildrith WEGENER III v. LAFAYETTE INSURANCE COMPANY.
    No. 2009-CA-0072.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 2010.

      Richard C. Trahant, Richard C. Tra-hant, Attorney at Law, John H. Denenea, Jr., Shearman-Denenea, L.L.C., New Orleans, Louisiana, Jack E. Morris, Jack E. Morris, Attorney at Law, Metairie, Louisiana, for Plaintiffs/Appellees.
    Stephen R. Barry, Kathleen C. Marks-bury, Barry & Piccione, APLC, New Orleans, Louisiana, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY III, Judge TERRI F. LOVE, Judge ROLAND L. BELSOME).
   JAMES F. McKAY III, Judge.

1This Hurricane Katrina litigation involves a dispute between a homeowner and their insurance company over coverage issues. For the following reasons, we affirm the judgment of the court below.

FACTS AND PROCEDURAL HISTORY

Hildreth Wegener III and Robin L. Wegener owned and resided in a waterfront home located in the Venetian Isles subdivision of New Orleans East. On August 29, 2005, Hurricane Katrina caused severe damage to the Wegeners’ home. Some of the damage was caused by storm surge and some was caused by wind and wind driven rain. At the time of Hurricane Katrina, the Wegeners’ home was insured by Lafayette Insurance Company.

On September 8, 2005, the Wegeners notified Lafayette of their loss. On October 15, 2005, Lafayette assigned the claim to Teresa Nelson, an adjuster with Cunningham Lindsey US, Inc. Ms. Nelson contacted the Wegeners and met them at their property for an inspection on October 19, 2005. On November 14, 2005, [2Ms. Nelson issued a report which found “significant water damage to the inside of the home” and “extensive damage to the shingles on all slopes” of the roof. However, Ms. Nelson recommended payment of only $24,979.90 for the damage to the Wegen-ers’ dwelling and contents and no payment for damage to other structures or for prohibited use, loss of use, or additional living expenses. Thereupon, Lafayette issued payments to the Wegeners in the sums of $23,888.48 for the covered damage to their dwelling and $1,091.42 for the covered damage to their personal property on November 23, 2005. On January 30, 2006, Lafayette paid the Wegeners an additional $658.66 for an awning and $1,039.20 for a wet mattress set.

The Wegeners were not satisfied with the amounts tendered by Lafayette and they retained a structural engineer, Roy Carruba, to inspect their property and prepare a report on its damage. Mr. Car-ruba’s report, dated March 15, 2006, found that in addition to severe water infiltration, excessive wind pressures had caused the house to move laterally on its foundation, loosened the primary framing member connections, and damaged the wooden structure. Mr. Carruba recommended that the Wegeners demolish the structure entirely down to the foundation. The Wegeners forwarded Mr. Carruba’s report to Lafayette on March 22, 2006.

Lafayette then retained Haag Engineering to inspect the issue of wind versus flood damage and prepare a report. Haag issued its report on June 12, 2006. The report stated that “Maximum sustained winds in this neighborhood during ^Hurricane Katrina were, according to the National Weather Service, on the order of 70 mph, less than hurricane force,” attributed almost all damage to the first floor and below to storm surge, and found no apparent storm damage to the frame or foundation of the home. Based on this report, Lafayette refused to make any further payments to the Wegeners.

Based on Mr. Carruba’s findings and the recommendations in his report, the Weg-eners had their house torn down. About six weeks after Hurricane Katrina, the Wegeners moved into a piece of property they owned in Mandeville and had previously rented out for $1,400 to $1,500 per month.

On May 31, 2007, the Wegeners filed suit against Lafayette for breach of contract, general damages and penalties pursuant to La. R.S. 22:658 and La. R.S. 22:1220. A jury trial was held from June 30, 2008 through July 3, 2008. The jury awarded the Wegeners $20,000.00 for the wind damage to the structure, $4,000.00 for wind damage to the contents of the property and $45,800.00 in additional living expenses. The Wegeners filed a motion for judgment notwithstanding the verdict or new trial (JNOV). A hearing was held on this motion on September 26, 2008, and on October 24, 2008, the trial court granted the JNOV, finding that as to the issues of penalties, pursuant to La. R.S. 22:1220, the facts and inferences pointed so strongly in favor of the plaintiffs that reasonable jurors could not arrive at a contrary verdict that the defendant’s failure to pay the plaintiffs for their additional living expenses within sixty (60) days after receipt of satisfactory proof of loss was arbitrary, capricious and without probable cause. Lafayette now appeals from the Injury’s verdict and the trial court’s judgment. The Wegeners have answered the appeal.

DISCUSSION

On appeal, Lafayette raises the following assignments of error: 1) the trial court erred in granting plaintiffs’ motion for judgment notwithstanding the verdict and awarding penalties pursuant to La. R.S. 22:1220; 2) the jury erred in awarding damages to the plaintiffs for additional living expenses that were not caused by a covered peril; 3) the jury erred in finding that Lafayette violated the provisions of La. R.S. 22:1220; and 4) the trial court erred by not allowing testimony or evidence of plaintiffs’ flood insurance proceeds. On cross-appeal, the Wegeners argue that the trial court erred in failing to grant a new trial on either peremptory or discretionary grounds.

We will first address the defendant’s second and third assignments of error. Lafayette contends that the jury erred in awarding damages to the plaintiffs for additional living expenses that were not caused by a covered peril and in finding that Lafayette “misrepresented pertinent facts or insurance policy provisions relating to any coverages at issue and/or arbitrarily, capriciously, or without probable cause failed to pay the amount due on Mr. and Mrs. Wegener’s homeowner’s claim within sixty days after it received satisfactory proofs of loss.”

The jury found that Lafayette owed the Wegeners their policy limits of $45,800.00 for additional living expenses (loss of use), including loss of rental income, incurred as a result of wind damage to their home. At trial, evidence was ^adduced that indicated that a great deal of the damage to the Wegeners’ property was caused by wind damage. Clearly, there was an evidentia-ry basis for the jury to determine that the Wegeners were entitled to their additional living expenses.

Under La. R.S. 22:1220(B)(1), an insurer breaches its duty of good faith and fair dealing owed to its insured by knowingly “[mjisrepresenting pertinent facts or insurance policy provisions relating to any coverages at issue.” A misrepresentation relating to a coverage issue would involve facts about the policy, “or exclusions from coverage.” Talton v. USAA Cas. Ins. Co., 2006-1513, pp. 19-20 (La.App. 4 Cir. 3/19/08), 981 So.2d 696, 709-710. In the instant case, when the adjuster retained by Lafayette inspected the loss on October 19, 2005, she told the Wegeners: “We both know what happened here, but if water touched it, we’re not paying for it.” The jury reasonably could have found that this was a misrepresentation regarding the policy.

Under La. R.S. 22:1220(B)(5), an insurer breaches its duty of good faith and fair dealing owed to its insured by knowingly “[flailing to pay the amount of any claim due any person insured by the contract within sixty days after receipt of satisfactory proof of loss from the claimant when such failure is arbitrary, capricious, or without probable cause.” To recover under the statute, an insured “has the burden of establishing three things: (i) that the insurer received a satisfactory proof of loss, (ii) that the insurer failed to pay the claim within the applicable statutory period, and (iii) that the insurer’s failure to pay was arbitrary and capricious.” Boudreaux v. State Farm Mut. Auto. Ins. Co., 2004-1339 (La.App. 4 Cir. 2/2/05), 896 So.2d 230, 233 (citing Sterling v. U.S. Agencies Casualty Co., 2001-2360 (La.App. 4 Cir. 5/15/02), 818 So.2d 1053, 1057. In this case, Lafayette received satisfactory proof of the Wegeners’ loss at the latest on October 19, 2005 when Ms. Nelson inspected the insured property and observed “significant water damage to the inside of the home” as a direct result of “extensive damage to the shingles on all slopes” of the roof. The damages to the Wegeners’ property included the roof, soffits, facia and siding as well as the electrical system on the third floor and ceilings and contents throughout the structure. An awning over the Wegeners’ dock was also blown away. Although Lafayette paid the Wegeners $24,979.90 for the insured dwelling and contents, the jury found that Lafayette violated La. R.S. 22:1220(B)(5). Based on the evidence before this Court, we cannot find that the jury’s conclusion was clearly wrong or manifestly erroneous.

We will now address the defendant’s first assignment of error. On appeal, an appellate court reviews a JNOV using the same criteria the trial court uses. Thus, the appellate court must determine whether the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict. If the appellate court determines that reasonable persons might reach a different conclusion, then the trial court erred in granting the motion and the jury verdict should be reinstated. Forbes v. Cockerham, 2008-0762, pp. 30-31 (La.1/21/09), 5 So.3d 839, 857-58. In the instant case, the trial court found that on the issue of penalties for bad faith claims |7adjusting, “the facts and inferences point so strongly and overwhelmingly in favor of plaintiffs on this issue that reasonable jurors could not arrive at a contrary verdict.” The jury found Lafayette to be in violation of the provisions of La. R.S. 22:1220 and therefore should have awarded penalties under La. R.S. 22:1220. This Court recently conducted a de novo review of a jury verdict finding that an insurance company “misrepresented policy provisions” and awarded penalties in a Katrina ease involving a commercial insurance policy. The Court awarded the plaintiff a penalty of “two times the damages sustained” under La. R.S. 22:1220(C). Neal Auction Co., Inc. v. Lafayette Insurnce Co., 2008-0574 (La.App. 4 Cir. 4/29/09), 13 So.3d 1135, writ denied, 2009-1499, 2009-1608 (La.11/6/09), 21 So.2d 313. That is the same approach employed by the trial court in this case. Accordingly, we find no error in the trial court’s granting a JNOV in this case.

In its fourth assignment of error, Lafayette contends that the trial court erred by not allowing testimony or evidence of the plaintiffs’ flood insurance proceeds. The Louisiana Fifth Circuit Court of Appeal has observed that wind insurance policies and flood insurance policies “are complimentary and do not cover the same types of losses” and do not create a situation of “double coverage.” Urrate v. Argonaut Great Central Ins. Co., 2004-0256 (La.App. 5 Cir. 8/31/04), 881 So.2d 787, 789. Therefore, the Wegener’s receipt of payments under a flood insurance policy is not relevant. Any probative value would be greatly outweighed by unfair prejudice and confusion of the issues. See La. C.E. art. 403. Accordingly, we find no merit in Lafayette’s fourth assignment of error.

|sOn cross-appeal, the Wegeners argue that the trial court erred in failing to grant a new trial on either peremptory or discretionary grounds. On appeal, a trial court’s granting or denial of a motion for new trial is reviewed for abuse of discretion. Davis v. Wal-Mart Stores, Inc., 2000-0445, p. 10 (La.11/28/00), 774 So.2d 84, 93. It is only when a verdict or judgment appears contrary to the law and evidence that a new trial should be granted. See La. C.C.P. art. 1972. In the instant case, the trial court carefully weighed the evidence before it and applied the law accordingly. We find no abuse of discretion in the trial court’s refusal to grant the Wegeners a new trial.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED.

LOVE, J., concurs and assigns reasons.

BELSOME, J., concurs with reasons.

LOVE, J.,

Concurs and Assigns Reasons.

hi respectfully concur in the results with the majority. However, I write separately to further address the evidence in the record regarding the jury’s $45,800 award for additional living expenses. Factual determinations are reviewed by appellate courts using the manifest error/clearly erroneous standard of review. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

Lafayette contends that the flood damage to the Wegeners’ home occurred first and rendered it uninhabitable. Lafayette’s expert, Stony Kirkpatrick, an engineer from HAAG Engineering, testified that flood waters caused the damage to the first floor of the Wegeners’ property prior to the occurrence of any wind damage and that any shifting of the structure was caused by water.

Roy Carruba, the Wegeners’ expert in civil and structural engineering and in construction, testified that roof, soffits, facia, and siding of the home were peeled off down to the plywood, studs, and beams in many places, and numerous windows had been broken and blown out. Thus, he concluded that the structure “had substantial wind damage before the flood waters came in.” Mr. Carruba stated that wind pressures damaged the Wegeners’ property to the extent that he recommended demolishing the structure.

After demolishing their home, the Weg-eners moved into a rental property |2they owned in Mandeville. The Mandeville rental property allegedly rented for $1,400 to $1,500 a month prior to Hurricane Katrina and the rental property located in their demolished home allegedly rented for $600 a month.

Given the juxtaposed evidence in the record, I do not find that the trial court erred by confirming the jury’s factual finding that the Wegeners’ incurred additional living expenses as a result of perils covered by Lafayette.

BELSOME, J.

Concurs with Reasons.

1,1 write separately to address Lafayette’s unprofessional conduct prior to and during trial of this matter. First, the record reflects that counsel for Lafayette failed to advise counsel for Appellees until the day before trial that Lafayette intended to use a cartoon animation from the Times-Picayune website entitled “The Inundation of New Orleans” at trial. Appel-lees objected to the- repeated use of this animation, as they were afforded no opportunity to authenticate the animation or challenge its data or methodology. Additionally, Lafayette’s structural engineering expert, Carroll Stone Kirkpatrick, testified that in his opinion, the animation comported with the theory that a wall of water destroyed Appellees’ home prior to the wind damage. Accordingly, Appellees submit that the animation was not only hearsay, but also a highly prejudicial misrepresentation upon which the jury could have relied as supporting Lafayette’s theory that a wall of water destroyed the Weg-eners’ home before being damaged by hurricane winds.

A review of the trial transcript also evidences that Lafayette did not disclose the identity of a key participant in an inspection of the Wegeners’ home until the trial was already in progress. Not until Mr. Kirkpatrick testified was it revealed that Freeman Risener, a licensed electrical engineer, accompanied Mr. Kirkpatrick during his inspection of Appellees’ home and participated in taking measurements | Pand photographs of the property. Upon learning of Mr. Risener’s existence at that moment, counsel for Appellees objected on the grounds that Mr. Risener had not been identified by Lafayette during the course of discovery and did not appear on any of Lafayette’s witness bsts; consequently, Appellees were denied the opportunity to depose or cross-examine Mr. Risener regarding his participation in the inspection of the Wegeners’ home with Mr. Kirkpatrick.

This writer is troubled by Lafayette’s aforementioned lack of professionalism and candor, which was not addressed by the majority. Although I may have decided the matter differently, I cannot say that the trial court’s denial of Appellees’ motion for new trial was an abuse of discretion. Therefore, I respectfully concur.

      . A review of the trial transcript reveals that counsel for Appellees brought to the trial court's attention that neither Mr. Kirkpatrick’s name nor Mr. Risener's name appeared on the inspection reports:
      Your Honor, I want to bring several things to the Court’s attention and to have this documented on the record because some of it we have gone on the record with, some of it we haven’t.
      One of the major issues that just came up in this witness’s testimony is that there was a technician who accompanied him to the Wegener property on the date of the inspection. That technician not only has not ever been identified, [sic] And I took David Teasedale's, who is the other engineer, deposition. There are two signatures on the report, David Teasedale and Mr. Kirkpatrick. The report consistently says "we”. The Court is now aware that in response to discovery as to who inspected the property, Mr. Teasedale, under sworn discovery responses, was identified. Ms. Gober [Lafayette property claims manager] in her deposition also identified David Teasedale as the individual who inspected the property.
      It wasn't until Mr. Teasedale's deposition that we found out it wasn't Mr. Teasedale. Mr. Teasedale never stepped foot on the property, but it was Mr. Kirkpatrick.
      Now I'm hearing that there was a third person. And so Judge, whoever took measurements and photographs — and I can represent to the Court that that person should have been identified and made available for deposition.

      . At trial, Mr. Kirkpatrick testified that although Mr. Risener was a registered electrical engineer, Mr. Risener did not inspect any electrical system in the Wegeners’ home. Ap-pellees submit that the complete omission of Freeman Risener's name by Lafayette is significant because Lafayette did not remit payment for the electrical system damage to the Wegeners' home; when asked whether he knew whether the Wegeners’ electrical system was damaged, Mr. Kirkpatrick responded, "Well, I would be assured that it was."


author: EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana in the Interest of J.G. and C.T.
    No. 2009-CA-1206.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 2010.
    Leon A. Cannizzaro, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, and Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

|,The State of Louisiana seeks reversal of the juvenile court judgment dismissing the petition against J.G. and C.T. After review of the record in light of the applicable law and arguments of the parties, we reverse the juvenile court judgment and remand the matter for further proceedings.

Relevant Facts and Procedural History

On April 30, 2009, the State charged J.G and C.T. with violating one count of simple burglary, relative to La.Rev.Stat. 14:62. Both juveniles were released into the custody of their parents.

J.G. appeared before the juvenile court on May -21, 2009, and answered the petition, denying the charged offense. C.T. appeared before the juvenile court on June 30, 2009, and answered the petition, denying the charged offense. The juvenile court set the adjudication hearing for July 23, 2009. On the day of the hearing, however, the State requested a continuance as the alleged victim was out of the country. The court denied the State’s motion for a continuance, and stated, “[m]y denial is a — what I think is a [La. Ch.Code. art.] 877 denial.”

Discussion

|2On appeal, the State argues that the juvenile court judge erred in dismissing the petition against the juvenile defendants when the time limitation for commencement of the adjudication hearing had not yet expired.

The time limitation for commencement of an adjudication hearing depends on whether or not the juvenile has been continued in custody. La. Ch.Code. art. 877 provides:

A.If the child is continued in custody pursuant to Chapter 5 of this Title, the adjudication hearing shall commence within thirty days of the appearance to answer the petition.
B. If the child is not continued in custody, the adjudication hearing shall commence within ninety days of the appearance to answer the petition.
C. If the hearing has not been commenced timely, upon motion of the child, the court shall release a child continued in custody and shall dismiss the petition.
D. For good cause, the court may extend such period.

In this instance, both J.G. and C.T. were released to the custody of their parents and were not in continued custody under La. Ch.Code. art. 877. Therefore, La. Ch. Code. art. 877 grants ninety days from J.G. and C.T.’s appearance to answer the petition to commence the adjudication hearing.

J.G. appeared and answered the petition on'May 21, 2009. C.T. appeared and answered the petition on June 30, 2009. Thus, in accordance with La. Ch.Code art. 877, on the July 23, 2009, the State possessed an additional twenty-seven days to commence the adjudication hearing against J.G. and sixty-seven days to commence the adjudication hearing against C.T.

The juvenile court judge stated that he would feel more comfortable granting the State’s continuance if he knew when the alleged victim would be returning. However, La. Ch.Code. art. 877 requires only that the adjudication hearing |acommence within ninety days of the juvenile’s appearance to answer the petition. As the time for commencement of the adjudication hearing had not expired, the trial court erred in dismissing the petition under La. Ch.Code. art. 877.

Conclusion

The judgment of the juvenile court dismissing the petition against J.G. and C.T. is reversed and the matter is remanded for further proceedings.

REVERSED; REMANDED.


author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    STATE of Louisiana v. Brice M. GEORGE. State of Louisiana v. Robert Stevenson. State of Louisiana v. Gregory Tobias. State of Louisiana v. Howard White. State of Louisiana v. Ivory Grace.
    Nos. 2008-KA-1193, 2008-KA-1338, 2009-KA-0561, 2009-KA-0630, 2009-KA-0867.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 11, 2010.

      Leon A. Cannizzaro, Jr., District Attorney, Graham L. Bosworth, Nisha Sandhu, Assistant District Attorneys, New Orleans, LA, for State of Louisiana.
    Joshua Perry, Orleans Public Defenders, New Orleans, LA, for Defendant/Appellant, Brice M. George.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendants/Appellants, Robert Stevenson, Gregory Tobias and Howard White.
    John Harvey Craft, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant, Ivory Grace.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MAX N. TOBIAS, JR., and Judge PAUL A. BONIN).
   JOAN BERNARD ARMSTRONG, Chief Judge.

1In these consolidated appeals, each defendant-appellant was charged with a violation of La. R.S. 40:966 E, second or third offense possession of marijuana. Each appellant seeks review of the trial court’s denial of his motion to quash the charge against him based upon a claim that the enhancement of the charge was unconstitutional because it used at least one prior misdemeanor conviction for which a jury trial was not available. Although the trial court in each of these consolidated cases rejected this argument, a different section of Criminal District Court found that the argument had merit and ruled that La. R.S. 40:966 E was unconstitutional. The State appealed that ruling to the Louisiana Supreme Court. Because that case was pending in the Supreme Court, this court consolidated these cases and certified them to the Supreme Court. The Supreme Court subsequently reversed the ruling that La. R.S. 40:966 E was unconstitutional. State v. Jefferson, 08-KA-2204 (La.12/1/09), 26 So.3d 112. The Supreme Court later denied certification in the consolidated cases from this Court and remanded the cases for consideration in light of Jefferson. State v. George, 09-1977 (La.2/5/10), 27 So.3d 289. A summary of the chronology of each case follows.

2008-KA-1193, State v. Brice George

The State charged Brice George with a violation of La. R.S. 40:966 E(3), possession of marijuana, third offense, a charge to which he initially pled not guilty. On May 30, 2008, the court denied his motion to quash the bill of information. On June 30, 2008, the State amended the bill to charge George with possession of marijuana, second offense, and George withdrew his prior plea and pled guilty to the amended bill under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), reserving his right to appeal the trial court’s denial of his motion to quash as per State v. Crosby, 338 So.2d 584 (La.1976). George waived all delays, and the court sentenced him to two years at hard labor, suspended, and placed him on two years active probation. The court subsequently granted his motion for appeal.

2008-KA-1338, State v. Robert Stevenson

The State charged Robert Stevenson with possession of marijuana, third offense. There is no indication that the appellant was ever arraigned and initially pled not guilty, most likely because the case was realloted before he formally appeared. (See errors patent discussion, infra.) The court denied his motion to quash the bill of information on June 26, 2008. The same day, Stevenson pled guilty as charged, reserving his right under Crosby to appeal the trial court’s denial of his motion to quash. After Stevenson waived delays, the court sentenced him to two years at hard labor, suspended, and placed him on two years active probation. The court granted his motion for appeal on that date.

2009-KA-0561, State v. Gregory Tobias

The State charged Gregory Tobias with possession of marijuana, third offense, a charge to which he pled not guilty. The court heard and denied his motion to suppress the evidence on November 13, 2006. On January 13, 2009, Tobias filed a motion to quash the bill of information based upon the unconstitutionality of La. R.S. 40:966 E. The court denied the motion that date, and Tobias withdrew his prior plea of not guilty and pled nolo contendere as charged, reserving his right to appeal the court’s denial of his motion to quash. He waived delays, and the court sentenced him to two years at hard labor, suspended, and placed him on two years active probation. The court granted his motion for appeal on February 12, 2009.

2009-KA-0630, State v. Howard White

The State charged Howard White with possession of marijuana, second offense, a violation of La. R.S. 40:966 E(2). He subsequently pled not guilty to the charge. On February 18, 2009, the court denied White’s motion to quash the bill of information. That same day, White withdrew his prior plea and pled guilty as charged, reserving his right to appeal the court’s denial of his motion to quash. White waived delays, and the court sentenced him to one year at hard labor, suspended, and placed him on one year inactive probation. The court granted his motion for appeal on March 18, 2009.

2009-KA-0867, State v. Ivory Grace

The State charged Ivory Grace with possession of marijuana, third offense, a charge to which he pled not guilty. On January 29, 2009, the court heard and 14denied his motions to suppress the evidence and to quash the bill of information. On March 4, 2009, Grace withdrew his prior plea and pled guilty as charged, reserving his right to appeal the denial of his motion to quash. The court sentenced Grace on March 20, 2009, to serve one year at hard labor. The court also granted his motion for appeal.

FACTS

Because the appellants pled guilty in each of these cases, the facts of the cases are unknown. In any event, they are unnecessary to a resolution of claim raised in each appeal.

ERRORS PATENT

A review of the record in State v. Stevenson, 2008-KA-1338, reveals that there is no indication that the appellant was ever arraigned and initially pled not guilty, most likely because the case was realloted before he formally appeared. However, this error, if it did occur, is harmless. As per La.C.Cr.P. art. 555, the failure to arraign a defendant is waived if the defendant “enters upon trial without objecting thereto, and it shall be considered as if he had pleaded not guilty.” See State v. Foreman, 08-0902 (La.App. 4 Cir. 4/29/09), 10 So.3d 1238. Here, Stevenson did not go to trial; nonetheless, before pleading guilty, he specifically withdrew his prior plea of “not guilty” (6/28/08 tr. p. 3). Thus, all of the parties were under the impression that he had formerly pled not guilty. Therefore, any error that may have occurred by the court’s failure to arraign Stevenson was cured when he pled guilty to the bill of information.

IsThere are no other patent errors in Stevenson’s appeal, nor are there any patent errors in the appeals of the other four defendants.

Motion to Quash/Unconstitutionality of La. R.S. 40:966 E

By their sole assignment of error raised in each of these cases, the appellants assert that the trial court erred by denying their motions to quash the charges against them. They contend that the United State Supreme Court’s ruling in Apprendi v. .New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and the Louisiana Supreme Court’s ruling in State v. Brown, 03-2788 (La.07/06/04), 879 So.2d 1276, mandate a finding that La. R.S. 40:966 E is unconstitutional in that the statute allowed the State to increase the maximum sentence to which they were exposed based upon at least one prior misdemeanor conviction for which they were not entitled to a jury trial.

In Jefferson, the Court rejected these arguments. The Court held:

After reviewing the statute, the jurisprudence, and the constitutional provisions at issue, we find, contrary to the conclusion of the district court, that LSA-R.S. 40:966(E)(2) does not suffer from a constitutional infirmity. For the reasons set forth, we find that the Sixth and Fourteenth Amendments, as construed in Apprendi and Brown, do not preclude the sentence-enhancing use of a prior valid, fair, and reliable conviction of a misdemeanor, obtained against an adult, where the misdemeanor proceeding included all the constitutional protections applicable to such proceedings, even though these protections do not include the right to trial by jury. Accordingly, we reverse the judgment of the district court granting the defendant’s motion to quash and declaring LSA-R.S. 40:966(E)(2) unconstitutional, and remand for further proceedings.

Jefferson, 08-2204 at p. 1, 26 So.3d at 113. The Court acknowledged that in Ap-prendi, the U.S. Supreme Court held that “[ojther than the fact of a prior | (¡conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-2363. The Jefferson Court nonetheless refused to find that Appren-di’s “prior conviction” exception applied only to prior convictions for which a defendant was entitled to a jury trial. The Court noted that a defendant charged with a misdemeanor “is entitled to all the procedural protections available to a defendant in a felony prosecution, with the exception of the right to a jury trial, which the U.S. Supreme Court has determined is not essential to fair and reliable fact finding in a misdemeanor case involving a petty or non-serious crime. Duncan v. Louisiana, 391 U.S. 145, 158, 88 S.Ct. 1444, 1452, 20 L.Ed.2d 491 (1968) (‘[W]e hold no constitutional doubts about the practices, common in both federal and state courts, of accepting waivers of jury trial and prosecuting petty crimes without extending a right to jury trial.’).” Jefferson at p. 6, 26 So.3d at 119. The Court stated:

Our examination of the Apprendi line of cases convinces us that reliability, assured through proceedings that included all the procedural protections the Constitution requires for those proceedings, is the sine qua non for use of prior convictions to enhance a sentence under the “prior conviction” exception, and not the right to a jury trial. Indeed, it makes little sense to conclude, under Apprendi, that a judgment of criminality which the Sixth and Fourteenth Amendments deem fair and reliable enough, when rendered, to impose criminal penalties upon a defendant is nonetheless constitutionally inadequate for later use to establish the defendant’s recidivism.

Id. at p. 7, 26 So.3d at 120. The Court rejected the defense argument that a prior misdemeanor conviction is not entitled to the presumption of regularity that attaches to a final judgment of a felony conviction.

7The Court also rejected the defense argument that the Court’s ruling in Brown, that a juvenile adjudication for which a defendant is not entitled to a jury trial cannot be used to enhance a subsequent felony conviction, mandated that a misdemeanor adult conviction also cannot be used for the same purpose. The Court acknowledged that one of the factors it considered in Brown for exempting the use of juvenile adjudications in multiple bill proceedings was the lack of a jury trial. However, the Court emphasized that its holding in Brown was based upon the fundamental differences between a conviction from an adult criminal court and an adjudication of delinquency from a juvenile court, which “under the guise of parens patriae ... emphasize[s] treatment, supervision, and control rather than punishment.” Brown, 2003-2788 at 19, 879 So.2d at 1289. For this reason, the Jefferson Court refused to equate a misdemeanor adult conviction and a juvenile adjudication and found that its ruling in Brown did not preclude the use of an adult misdemeanor prior conviction for enhancement purposes. The Court concluded:

In the final analysis, we find that Louisiana’s statutory scheme of increased punishment for recidivist marijuana possession is in line with the constitutional principles of Apprendi and its progeny, and does not conflict with our, ruling in Brown, which is limited to juvenile adjudications and the unique nature of the juvenile justice system. More specifically, we find that the Sixth and Fourteenth Amendments, as construed in Ap-prendi and Brown, do not preclude the sentence-enhancing use, against an adult, of a prior valid, fair, and reliable conviction of a misdemeanor, obtained as an adult, where the misdemeanor proceeding included all the constitutional protections applicable to such proceedings, even though these protections do not include the right to trial by jury. Louisiana’s statutory scheme satisfies the requirement of due process because under the Sixth and Fourteenth Amendments, states are allowed the presumption that in petty crimes and offenses, trial judges are capable of reliable fact finding.
Jefferson at p. 11, 26 So.3d at 124.

8For the reasons set forth in Jefferson, the appellants’ claims here fail. The trial court did not err in denying the appellants’ motions to quash based upon their claims that La. R.S. 40:966 E is unconstitutional because of the use of at least one prior misdemeanor possession of marijuana conviction to enhance their present charges felonies.

Therefore, consistent with the Louisiana Supreme Court’s February 5, 2010 denial of certification of these consolidated based on its opinion in Jefferson, we hereby affirm the convictions and sentences of all defendants-appellants in these consolidated cases.

CONVICTIONS AND SENTENCES AFFIRMED.