author: GENOVESE, Judge.

text:
    STATE of Louisiana v. Marcus Allen MAZE.
    No. 09-1298.
    Court of Appeal of Louisiana, Third Circuit.
    May 5, 2010.

      Don M. Burkett, District Attorney— Eleventh Judicial District, Ronald D. Brandon, Assistant District Attorney, Many, LA, for Appellee: State of Louisiana.
    James E. Beal, Louisiana Appellate Project, Jonesboro, LA, for Defendant/Appellant: Marcus Allen Maze.
    Court composed of OSWALD A. DECUIR, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   GENOVESE, Judge.

|]In this criminal case, the Defendant, Marcus Allen Maze, appeals his sentence pursuant to conviction for attempted manslaughter. On April 24, 2008, the Defendant was charged by an amended bill of information with one count of attempted second degree murder, violations of La. R.S. 14:27 and La. R.S. 14:30.1, one count of attempted second degree murder under the domestic violence act, violations of La. R.S. 14:27, La. R.S. 14:30.1, and La. R.S. 46:2131 through La. R.S. 46:2151, and one count of possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1. The Defendant pled guilty on June 22, 2009, to one count of attempted manslaughter, a violation of La. R.S. 14:27 and La. R.S. 14:31, and to one count of possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1.

The trial court ordered a presentence investigation report. On August 31, 2009, the Defendant was sentenced to twenty years imprisonment at hard labor on his conviction for attempted manslaughter and ten years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence on his conviction of possession of a firearm by a convicted felon. His sentences were ordered to run concurrently. The Defendant filed a Motion to Reconsider Sentence which was denied without a hearing on September 4, 2009.

The Defendant perfected a timely appeal wherein he asserts that the maximum sentence of twenty years for attempted manslaughter is excessive under the circumstances of his case. He does not appeal his sentence for his conviction of possession of a firearm by a convicted felon. For the following reasons, we find that the trial court did not abuse its vast discretion when it sentenced the Defendant to a total of twenty years imprisonment for his conviction of attempted manslaughter.

| .FACTS

The facts which supported the Defendant’s guilty plea were as follows:

[0]n or about January 17, 2008, Marcus Maze did commit the offense of attempted manslaughter by shooting the victim Lavan Carter[,] and also with a firearm, Mr. Maze was found convicted [sic] in this court on September 15, 2003, of distribution of schedule two.

ASSIGNMENT OF ERROR

The Defendant argues that his maximum sentence of twenty years is constitutionally excessive. The Defendant pled guilty to attempted manslaughter. Louisiana Revised Statutes 14:31(B) provides for a range of punishment for the offense of manslaughter of not more than forty years at hard labor. The Louisiana attempt statute, in pertinent part, provides that the offender “shall be fined or imprisoned or both, in the same manner as for the offense attempted; such fine or imprisonment shall not exceed one-half of the largest fine, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both.” La. R.S. 14:27(D)(3). Accordingly, the maximum sentence of incarceration the Defendant could have received in this case was twenty years for the crime of attempted manslaughter, which was the sentence imposed upon him.

The Defendant was also convicted of possession of a firearm by a convicted felon which provides for a range of punishment of not less than ten years nor more than fifteen years at hard labor. See La. R.S. 14:95.1(B). The Defendant received a ten-year sentence; however, he does not contest his sentence for his conviction for possession of a firearm by a convicted felon on appeal.

In discussing maximum sentences, this court stated in State v. Bailey, 07-130, p. 3 (La.App. 3 Cir. 10/3/07), 968 So.2d 247, 250:

A sentence which falls within the statutory limits Istnay be excessive under certain circumstances. To constitute an excessive sentence, this Court must find that the penalty is so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no reasonable contribution to acceptable penal goals and[J therefore, is nothing more than the needless imposition of pain and suffering. The trial judge has broad discretion, and a reviewing court may not set sentences aside absent a manifest abuse of discretion.
State v. Guzman, 99-1753, 99-1528, p. 15 (La.5/16/00), 769 So.2d 1158, 1167 (citations omitted).
In State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061 (citations omitted), this court discussed the factors it would consider in order to determine whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals:
In deciding whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals, an appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.”
“Generally, maximum sentences are reserved for those cases that involve the most serious violations of the offense charged and the worst type of offender.” State v. Jones, 05-735, p. 6 (La.App. 5 Cir. 2/27/06), 924 So.2d 1113, 1116.

The Defendant, in brief, argues that he is not one of the most serious offenders warranting a maximum sentence and that the sentence “is grossly disproportionate to the severity of the crime, and serves no useful purpose.” He lists several mitigating factors wherein he asserts the trial court should have considered pursuant to |4La.Code Crim.P. art. 894.1(B)(22) through La.Code Crim.P. art. 894.1(B)(32), as follows:

(22) The defendant’s criminal conduct neither caused nor threatened serious harm.
(23) The defendant did not contemplate that his criminal conduct would cause or threaten serious harm.
(24) The defendant acted under strong provocation.
(25) There were substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense.
(26) The victim of the defendant’s criminal conduct induced or facilitated its commission.
(27) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained.
(28) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime.
(29) The defendant’s criminal conduct was the result of circumstances unlikely to recur.
(30) The defendant is particularly likely to respond affirmatively to probationary treatment.
(31) The imprisonment of the defendant would entail excessive hardship to himself or his dependents.
(32) The defendant has voluntarily participated in a pretrial drug testing program.

At the sentencing hearing, the trial court stated:

Mr. Maze, you appeared in this court and pled to attempted manslaughter and possession of a firearm by a convicted felon. I note that you are in fact a fourth felonfy] offender. I had ordered a pre-sentence investigation. It’s been returned to me. I’ve made it available to your attorney[,] Mr. Kendrick[,] to review. I’ve noted the sentencing guidelines. I’ve noted the aggravating and mitigating circumstances.

Only a few of the above mitigating factors may fit the circumstances of the |fiinstant case. According to the pre-sen-tence investigation report, the facts of which were not disputed, the Defendant, armed with a shotgun, broke out the window of the motel room of his former wife and her current boyfriend and fired twice, hitting the boyfriend in the chest. The second shot went through the motel room wall, seriously injuring a man in the adjacent room. As noted by the trial court, the Defendant had three prior felony convictions. His arrest record started in 1989 and is lengthy. He had three prior felony convictions wherein he received prison time, and, in each case, either his parole or his probation was revoked for violations of the conditions thereof.

The Defendant argues that the trial court failed to take into consideration that he was suffering from depression and was on medication for his depression at the time of the incident. However, we note that the trial court was fully aware of the Defendant’s mental health issues. The trial court had ordered a sanity commission report and had held an evidentiary hearing concerning the results of the commission’s findings.

Finally, the offenses to which the Defendant pled guilty did not adequately describe the entire course of his conduct, and the plea bargain resulted in a significant reduction in his potential exposure to imprisonment. The Defendant received a considerable benefit when he was allowed to plead to a lesser offense which may be considered when determining whether the sentence is excessive. See State v. Hicks, 07-726 (La.App. 3 Cir. 12/5/07), 977 So.2d 1008.

We note that in the instant case, the trial court took cognizance of the requirements of La.Code Crim.P. art. 894.1. The trial court is not required to list every aggravating or mitigating circumstance as long as the record reflects adequate compliance. See State v. Hutcherson, 34,540 (La.App. 2 Cir. 4/4/01), 785 So.2d 140.

|fiIn comparing the Defendant to other similarly situated defendants, the following cases are pertinent. In State v. Holmes, 99-631 (La.App. 1 Cir. 2/18/00), 754 So.2d 1132, writ denied, 00-1020 (La.3/30/01), 788 So.2d 440, in a similar factual scenario, the first circuit did not find the maximum sentence imposed on a conviction for attempted manslaughter to be excessive. The defendant in that case, charged with second degree murder and attempted second degree murder, was found guilty of manslaughter and attempted manslaughter. He was sentenced to forty years and twenty years, respectively, to be served concurrently. The defendant had crawled into his former wife’s bedroom window, shot and killed her lover, then wounded her in the face. Likewise, in State v. Stanton, 05-812 (La.App. 4 Cir. 3/8/06), 929 So.2d 137, writ denied, 06-1381 (La.1/26/07), 948 So.2d 161, the defendant, charged with attempted second degree murder, was convicted of attempted manslaughter and sentenced to the maximum sentence of twenty years imprisonment. During an armed robbery attempt, the defendant aimed the gun at the victim and fired twice, but the gun misfired both times. The fourth circuit did not find the sentence excessive, noting that the defendant had an extensive criminal record and that he had “committed very serious crimes without regard for human life[.]” Id. at 141.

Considering the above jurisprudence and the facts of the current case, we cannot say that the maximum sentence of twenty years is so shocking that it disturbs this court’s sense of justice. The Defendant has three prior felony convictions with revocations in each case. This was a serious offense committed without regard for human life, which resulted in serious injury to the victims. Accordingly, the trial court did not abuse its vast discretion when it senténced the Defendant to the maximum sentence of twenty years for the offense of attempted manslaughter.

1 DISPOSITION

We affirm the Defendant’s twenty-year sentence pursuant to his conviction for attempted manslaughter.

AFFIRMED.


source: Caselaw Access Project

author: GREMILLION, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Moses BUCHANAN.
    No. 09-1288.
    Court of Appeal of Louisiana, Third Circuit.
    May 5, 2010.

      Paula Corley Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Moses Buchanan.
    Earl B. Taylor, District Attorney, Jennifer Ardoin, Assistant District Attorney, Opelousas, LA, for Appellee, State of Louisiana.
    Court composed of OSWALD A. DECUIR, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

|¶ Following a jury trial, Defendant, Moses Buchanan, was convicted of armed robbery, a violation of La. R.S. 14:64. He was sentenced to serve forty years at hard labor. Defendant is now before this court on appeal, challenging both his conviction and sentence. We affirm.

FACTS

On the evening of August 26, 2006, a man entered Kiki’s Drive-Thru Daiquiri Shop in Opelousas, Louisiana, holding his crotch, and requesting to use the restroom. Wanda Robin was working behind the bar and her son, Ryan Robin, her niece, Lindsey Johnson, and Justin Fontenot were sitting at the bar having drinks. The man was directed to the restroom and departed the bar soon thereafter. About fifteen to twenty minutes later, the man returned to the bar with a shotgun, pointed the gun at everyone, and yelled at them to get down. He then pointed the gun at Wanda and instructed her to open the register. After Wanda handed over the cash from the register, the robber instructed everyone not to move or they would die, and he fled the bar. Following a brief investigation, Defendant was arrested on August 29, 2006, and charged with armed robbery.

SUFFICIENCY OF THE EVIDENCE

The analysis for a claim of insufficient evidence is well settled:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibilities of the witnesses, and therefore, the appellate court should not second guess the credibility determinations 12of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See Graffagnino, 436 So.2d at 563, citing State v. Richardson, 425 So.2d 1228 (La.1983). To obtain a conviction, the elements of the crime must be proven beyond a reasonable doubt.

State v. Freeman, 01-997, pp. 2-3 (La.App. 3 Cir. 12/12/01), 801 So.2d 578, 580.

Defendant was found guilty of armed robbery, which is defined in La. R.S. 14:64 as “[t]he taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.” On appeal, Defendant contends that the State did not connect him with the crime or identify him as the perpetrator beyond a reasonable doubt. Further, Defendant asserts that the State was required to negate any reasonable probability of misidentification, citing State v. Draughn, 05-1825 (La.1/17/07), 950 So.2d 583, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007). Lastly, Defendant also maintains that the totality of the circumstances must be considered pursuant to Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) and Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). Considering same, Defendant contends that the State failed to negate the reasonable probability of misidentification. A review of the record does not support Defendant’s contentions. First, three of the four eyewitnesses present during the robbery identified the perpetrator from a photo line-up. Wanda, Ryan, and Justin all identified the man in photograph number two, Defendant, to be the person who robbed the bar. At trial, all three individuals identified Defendant as the person who committed the offense. Lindsey, the remaining eyewitness, testified that she was not able to identify the robber in the photo line-up, but was certain of her identification of Defendant in open court to be the person who robbed the bar.

| ⅜Defendant maintains, nonetheless, that several facts exist which led to his misidentification as the perpetrator. First, Defendant maintains that the atmosphere was very charged during the robbery, and, in turn, affected the reliability of the witnesses’ identifications. Specifically, Defendant asserts that Wanda was hysterical during the robbery, that Lindsey passed out after the robbery, and that Justin was in shock.

The record reflects little doubt that the atmosphere during the robbery was highly charged. The perpetrator pointed a shotgun at everyone in the bar and threatened to harm them if they did not comply with his demands. The record indicates that Wanda was very emotional during and after the offense. According to Wanda, the perpetrator pointed the gun at her and said, “Bitch, I’m gonna kill you.” At that moment, Wanda attempted to run away, but was stopped by the robber. When her son, Ryan, urged her to give the man the money, she removed the money from the register after having difficulty opening the register and handed the money to the robber.

Ryan testified that Wanda was “hysterical.” According to Ryan, the perpetrator pointed the gun at everyone and screamed at them to get down. He then pointed the gun at Wanda, who was tending bar and instructed her to open the register. According to Ryan, Wanda panicked and tried to run away. Ryan then instructed Wanda to listen to what the man said and give him the money. After Wanda complied with his demand, the robber told everyone not to move or they would die.

Lindsey testified that when the perpetrator returned to the bar, he was holding a shotgun and cursing. He instructed them to get on the floor, and Lindsey complied. Lindsey admitted that she was frightened and stated that the man pointed the gun at |4her. Before the man left, he instructed them not to get up. Lindsey testified that after he left, she stayed on the floor and crawled to the bathroom to call 911. On cross-examination, Lindsey’s testimony indicates that she “passed out” some time after calling 911, not during the offense.

Lastly, Justin’s testimony regarding the facts surrounding the offense was similar to that of Wanda, Ryan, and Lindsey. When asked if he was frightened, Justin responded, “Not at the time because I was really just in shock, I guess, but later on after he had left, yes, later on I was.”

Although the record supports Defendant’s contention that the atmosphere during the offense was highly-charged, we find the likelihood of misiden-tification is unlikely.

[R]eliability is the linchpin in determining the admissibility of identification testimony. ... The factors to be considered ... include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.

Brathwaite, 432 U.S. at 114, 97 S.Ct. at 2253 (citation omitted).

Considering the Brathwaite factors, the record indicates that the three eyewitnesses, Ryan, Lindsey, and Justin, had two opportunities to view Defendant, while Wanda had one opportunity. Ryan, Lindsey, and Justin first saw Defendant when he entered the bar prior to the offense, holding his crotch and asking to use the restroom. All four witnesses saw Defendant the second time he entered the bar, about fifteen to twenty minutes later.

With regard to the witnesses’ degree of attention, Defendant’s behavior, holding his crotch, captured the attention of Ryan, Lindsey, and Justin when he first entered the bar. Additionally, Ryan and Justin both testified that there was a bell on | sthe door of the bar that would ring when a patron entered the bar, drawing one’s attention to the person entering the bar. When Defendant entered the bar the second time, Ryan and Justin stated that the bell rang, and they all turned to the door to see who it was. To their surprise, Defendant had returned with a shotgun and commanded the attention of Ryan, Lindsey, and Justin by pointing the gun in their direction. According to Ryan, Defendant cursed and pointed the gun at them to get their attention. Wanda was working the drive-through window when Defendant first arrived, but was soon confronted by Defendant when she returned to the register at the bar. At that time, Defendant pointed the gun at her and said, “Bitch, I’m gonna kill you.” Considering these facts, we find that the fact finder could reasonably conclude that the witnesses were paying attention to Defendant.

With regard to the accuracy of the witnesses’ prior descriptions of Defendant, the record reflects that all four witnesses gave a statement to police when they arrived at the scene, each providing a description of the perpetrator. These statements, however, were not admitted into evidence, and thus, the only details in the statements discussed at trial are available on review.

At trial, Ryan recalled the description of the perpetrator he gave to officers on the night of the offense. Ryan described the perpetrator as a male, about twenty-five to thirty-five years old, five feet eight inches tall, with dark skin and shaved or closely cropped hair. Ryan also recalled that the robber wore wire-rimmed glasses. The men portrayed in the photo line-up all had dark skin, closely cropped hair, and wire-rimmed glasses. As such, the description given by Ryan prior to the photo line-up was an accurate description of Defendant.

leWanda, Ryan, and Justin were all certain about their identification of Defendant in the photo line-up. All four witnesses were certain about their identification of Defendant in open court. Considering same, the level of certainty demonstrated at the time of the photo line-up was significant. Additionally, only four days elapsed from the time of the crime and the time of the photo line-up, increasing the likelihood that the identification of Defendant was reliable pursuant to the Mamón decision.

In addition to the consideration of the Manson factors, although Lindsey may have passed out at some time after the offense, she had the wherewithal to crawl to the bathroom and call 911. Further, Justin’s testimony that he was in shock referred to his state of mind at the time of the offense. Justin indicated that he was more surprised by Defendant’s actions than frightened. Without any other facts to support Defendant’s claim that the ability of the eyewitnesses to identify Defendant as the perpetrator was compromised and therefore, unreliable, Defendant’s argument lacks merit.

Defendant also complains that the fact that the robber was wearing glasses was not present in the statements of Wanda, Lindsey, and Ryan. At trial, Wanda testified that at the time of the offense, Defendant was wearing wire-frame glasses. With regard to her written statement taken right after the offense, Wanda stated that she did not write the statement herself, but recited it while someone else wrote it on her behalf. Wanda then signed the statement. Wanda confirmed that the statement did not say anything about Defendant wearing glasses. She maintained, however, that in fact, she did notice Defendant’s glasses, but did not mention the detail in her statement.

pLindsey testified that the man was wearing a hunter green shirt and blue jeans. She could not recall if he was wearing glasses. On cross-examination, Lindsey indicated that she did not get a good look at Defendant when he first entered the bar to see whether or not he was wearing glasses. When he entered the second time, Lindsey testified that she was staring down a shotgun barrel and did not notice if he had glasses on his face. Lastly, Lindsey confirmed that her written statement did not indicate that Defendant was wearing glasses.

Ryan testified that at the time of the offense, Defendant wore wire-rimmed glasses, a green shirt, and pants. At trial, Ryan noted that Defendant was not wearing the same glasses at trial that he was wearing the night of the offense. On cross-examination, Ryan identified his written statement given to police after the offense and testified that he did not see anywhere in his statement that the perpetrator was wearing glasses. Ryan testified that it was a detail that must have slipped his mind when he was writing the statement. Ryan indicated that he was nervous about writing the statement and that he was focused more on the incident. Ryan maintained that it was a detail, however, that he never forgot.

Although the fact that Defendant was wearing glasses was absent from the eyewitnesses’ statements, both Wanda and Ryan recalled that he was wearing wire-frame glasses. Wanda testified that she was shaken up after the offense and was in a hurry to get the statement written so she could leave the bar. According to Wanda, she “just wanted to get out of there.” As such, it is plausible that Wanda would leave out details such as Defendant’s glasses at the time her statement was taken. Likewise, Ryan testified that he was focused more on the offense at the time he was writing his ^statement. Ryan stated that he was certain, however, of his recall and the fact that Defendant was wearing glasses at the time of the offense.

Next, Defendant complains that Lindsey was unable to identify him in a photo lineup, yet she was able to make an in-court identification. At trial, Lindsey testified that she was not able to identify the perpetrator in a photograph lineup following the offense. She was, however, able to identify Defendant in open court to be the man who robbed the bar. Lindsey stated that she was certain that Defendant was the perpetrator because she remembered him. When asked about the difference between her ability to identify Defendant in a photo line-up and her ability to make an in-court identification, she explained that she could identify him in person but not in a picture.

Although Defendant questions the reliability of Lindsey’s identification of Defendant, the fact remains that the three remaining eyewitnesses, Ryan, Wanda, and Justin, were able to identify Defendant in both a photo line-up and in court. As such, even if the fact finder could reasonably conclude that Lindsey’s identification of Defendant was unreliable, the record still supports the identity of Defendant as the perpetrator.

Lastly, Defendant complains that there was no physical evidence linking him to the crime. Defendant asserts, first, that no money was ever recovered. The Defendant also maintains that there was insufficient proof that the gun introduced at trial was the gun used during the robbery. Although Defendant’s assertions are correct, physical evidence is not required for a finding of guilt. In State v. Neal, 00-674, p. 11 (La.6/29/01), 796 So.2d 649, 658, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002), the supreme court stated:

As a general matter, when the key issue is the defendant’s identity as the perpetrator, rather than whether the crime was committed, the |9state is required to negate any reasonable probability of misidentification. State v. Smith, 430 So.2d 31, 45 (La.1983); State v. Brady, 414 So.2d 364, 365 (La.1982); State v. Long, 408 So.2d 1221, 1227 (La.1982). However, positive identification by only one witness is sufficient to support a conviction. See State v. Mussall, 523 So.2d 1305, 1311 (La.1988) (generally, one witness’s positive identification is sufficient to support the conviction); State v. Ford, 28,724 (La.App.2d Cir.10/30/96), 682 So.2d 847, 849-50, writ denied, 99-0210 (La.5/14/99), 745 So.2d 12.

Although no money was found and a shotgun belonging to Defendant was not positively linked to the offense, the fact remains that Defendant was identified as the perpetrator by not one, but four eyewitnesses. In addition to the testimony of these eyewitnesses, the corroborating testimony of Richard Griffin placed Defendant at the scene. Richard testified that he gave Defendant and a male companion a ride to the bar around 10:00 p.m. on the evening in question. Richard stated that he parked on the side of the bar for about ten minutes until the two men returned to the vehicle. Richard also identified Defendant in court to be the man he had taken to the bar that evening.

Considering the totality of the evidence at trial, the State adequately negated the probability of misidentification in the instant case. Accordingly, the evidence was sufficient for a finding of guilt, and the jury’s verdict should not be disturbed on appeal.

OBJECTIONS NOT MADE AT THE TIME OF THE OCCURRENCE

By assignment of error number one, Defendant argues that the trial court erred in allowing the State to effectively use his decision to exercise his right to remain silent against him in an attempt to rehabilitate Officer Roylis Gallow. By assignment of error number two, Defendant argues that his right to confrontation was denied when statements of a confidential informant or cooperative individual (Cl) as to his | ^description and identity were admitted. Defendant argues it was error for the trial court to instruct the jury that an investigator need not reveal the identity of a Cl and consequently deny him the opportunity to cross-examine the Cl at trial. However, Defendant did not object to the State’s question or Officer’s Gallow’s testimony. He objected neither when the statements of the Cl were admitted nor when the trial court instructed the jury.

Pursuant to La.Code Crim.P. art. 841(A), “An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.” Without a contemporaneous objection to (1) Officer Gallow’s statement at trial; (2) the admittance of the Cl’s statement; and (8) the trial court’s jury instruction regarding the Cl, Defendant is barred from raising these issues for the first time on appeal. These issues are not properly before this court and thus, the merits of these alleged errors are not considered herein.

EXCESSIVENESS OF SENTENCE

In his final assignment of error, Defendant argues that his forty-year sentence is excessive, considering his personal history and the mitigating factors of the case. This court has set forth the following standard to be used in reviewing excessive sentence claims:

La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is |, |whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331.

To decide whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, this court has held:

[A]n appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00), 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061.

Defendant was convicted of armed robbery. The sentencing range for armed robbery is ten to ninety-nine years at hard labor, without benefit of parole, probation, or suspension of sentence. La. R.S. 14:64(B). As such, Defendant’s forty-year sentence is less than half of the maximum possible sentence.

At sentencing, the trial court stated:

The court has before it Moses Buchanan, a 42-year-old male, found guilty by a jury of the crime of armed robbery. The defendant has a history of being abandoned by both mother and father as an infant and became a ward of the State of Alabama until placed in a suitable family environment at the age of nine. He graduated from high school in Montgomery, Alabama, in 1982, and moved to New Orleans to live with a brother. From '86 to '88, the defendant was in the United States Air Force but was discharged due to disciplinary problems. He moved back 112to New Orleans in 1988 and began using drugs and started his life of crime. His criminal record indicates at least twenty-eight arrests dating back to 1988. He has had one previous period of supervised probation and three periods of parole supervision, two of which were completed, but the third ended in revocation on November 22, 2006. The defendant is classified as a fifth felony offender and is not eligible for probation nor a suspended a[sic] sentence. He is also not eligible for the impact program because he’s been convicted of a crime of violence as set forth in Revised Statute 14, Section 2. The defendant has little employment history.
The court has considered the guidelines of sentencing set forth in Code of Criminal Procedure Article 894.1, and considering the crime of armed robbery for which he was found guilty and his extensive criminal history, the three factors of paragraph A of Article 894.1 are applicable. The court finds that there is an undue risk that during the period of a suspended or probated sentence the defendant would commit another crime; two, the defendant is need of correctional treatment; and three, a lesser sentence than incarceration would deprecate the seriousness of this defendants’s crime.
This court has also considered the provisions of Code of Criminal Procedure Article 894.1(B), and find the following grounds pertinent in setting the defendant’s sentence: Number 5, the offender knowingly created a risk of death or great bodily harm to more than one person; number 9, the offense resulted in a significant economic loss to the victim. Approximately $1,175 was stolen from the business that was robbed with little or no hope of ever being repaid. The court finds that this was a significant amount of money for a small business and the victim in this crime. Number 10, the offender used a dangerous weapon in the commission of the offense; and Number 19, the offender used a firearm or other dangerous weapon while committing or attempting to commit an offense which has as an element the use, attempted use or threatened use of physical force against the person or property of another and which, by its very nature, involves a substantial risk that physical force may be used in the course of committing the offense.

At the hearing on Defendant’s motion to reconsider sentence, Defense counsel stressed that, although he is a fifth felony offender, the offenses were relatively old, with his first felony committed approximately twenty years ago. Although defense counsel conceded that Defendant’s record looked “terrible” with the number of arrests and convictions, he stated that they involved “relatively minor thefts.” Defense counsel added that there were no crimes of violence or crimes against persons. With [isregard to the instant offense, he asserted that no one was physically harmed other than being “scared to death.” Lastly, Defense counsel argued that Defendant was a thief with a drug problem and that the instant offense was his first crime of violence.

Next, Defendant addressed the court, stating that he had a drug problem his entire adult life, and that it was never his intention to hurt anyone. He testified that he had stolen and shoplifted to support his habit. Defendant added that he never received any kind of help following his arrests, only jail time and probation. He did, however, state that he was placed in Blue Waters in New Orleans for thirty days. He testified that he “begged” his parole officer to give him ninety days of treatment, but that he was only given thirty days. Defendant then apologized to the victims for what he had done, reiterating that he never intended to physically hurt anyone. During his incarceration at Angola, Defendant stated that he was participating in an anger management class, was signed up for a drug class and was in “vo-tech.” Defendant maintained that he was attempting to take steps to become a better person. In reconsidering Defendant’s sentence, the trial court referred to the Defendant’s ten-page Presentence Investigation Report which was considered at the original sentencing. The trial court noted that Defendant had a very unstable early childhood until he was placed into a suitable residence at the age of nine. Beginning in 1988, after he was dishonorably discharged from the United States Air Force, Defendant was arrested at least twenty-eight times. The trial court conceded that many of Defendant’s arrests were related to his drug problem and were a means for supporting his drug problem. The court noted, however, that one of the goals of sentencing was to protect the public and that the instant offense appeared to be a first step taken by Defendant toward harming the public. As such, the trial court indicated that it was |14concerned about the possibility of harm to the public. Additionally, because of Defendant’s extensive record and the numerous past opportunities to better himself, the trial court denied Defendant’s motion.

On appeal, Defendant stresses that he expressed remorse for the offense and was taking steps to become a better person. He also refers to his unstable early childhood, being abandoned by both parents and becoming a ward of the state. Defendant also asserts that he is not a violent offender and reiterates that his prior offenses, many of which he characterizes as old and minor, date back twenty years and include theft and possession of stolen things to support his drug habit. Considering the mitigating factors and the facts of this case, Defendant maintains that his sentence serves no useful purpose and that a shorter sentence with a focus on rehabilitation and treatment would meet societal goals.

Defendant did not refer to any jurisprudence to support his excessive sentence claim. A sentencing range of thirty-five to fifty years is considered acceptable by the supreme court for first-time offenders convicted of armed robbery. State v. Smith, 01-2574 (La.1/14/03), 889 So.2d 1. Although Defendant is far from being a first felony offender, his sentence,- nonetheless, falls within the appropriate range for first felony offenders. Considering Defendant’s criminal history, his sentence in the instant case reflects leniency on behalf of the trial court after a thorough consideration of the mitigating and aggravating factors in this case. Accordingly, this assignment of error lacks merit and Defendant’s sentence is affirmed.

DEFENDANT’S CONVICTION AND SENTENCE ARE AFFIRMED.


text:
    STATE of LOUISIANA v. Jimmy Joe CHANDLER.
    No. 09-1286.
    Court of Appeal of Louisiana, Third Circuit.
    May 5, 2010.
    Asa A. Skinner, District Attorney-Thirtieth Judicial District, Terry W. Lam-bright, Assistant District Attorney, Lees-ville, LA, for Appellee State of Louisiana.
    Carey J. Ellis, III, Louisiana Appellate Project, Rayville, LA, for Defendant/Appellant Jimmy Joe Chandler.
    Court composed of OSWALD A. DECUIR, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   GENOVESE, Judge.

|,In this criminal case, the Defendant, Jimmy Joe Chandler, appeals his seven-year sentence pursuant to his guilty plea for the offense of attempted possession of a firearm by a convicted felon. He claims that his sentence is excessive.

The Defendant was charged by bill of information filed on January 16, 2009, with failure to abide by commission rules with deer harvest record requirements, in violation of La. R.S. 56:115, and possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1. The Defendant entered a plea of not guilty on January 20, 2009. On March 9, 2009, the bill of information was orally amended to reflect the charge of attempted possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1 and La. R.S. 14:27. On that date, the Defendant, as part of a plea agreement, waived arraignment and entered a plea of guilty to the amended charge of attempted possession of a firearm by a convicted felon. As a result of the Defendant’s plea, the State dismissed the remaining charge of failure to abide by commission rules with deer harvest requirements and agreed not to pursue Defendant as a habitual offender.

The Defendant was sentenced on August 18, 2009, to serve seven years at hard labor and to pay a fine of $1,500.00 and costs of court. A Motion to Reconsider Sentence was filed on August 20, 2009, and subsequently denied. A Motion for Appeal and Designation of Record was filed on August 28, 2009, and was subsequently granted.

The Defendant is before this court asserting one assignment of error. He contends that his sentence of seven years at hard labor imposed for his guilty plea to attempted possession of a firearm by a convicted felon is excessive. The Defendant does not assert on appeal that his $1,500.00 fine is excessive; therefore, that part of |2the Defendant’s sentence is not before this court and is not considered. For the following reasons, we affirm the Defendant’s sentence.

FACTS

At the time the Defendant entered his guilty plea, the following factual basis was given:

The State contends that on or about October 25th, 2008, the defendant was found by Wildlife and Fisheries agents hunting in the Little Red Banks Road, Clear Creek Wild Management area, which is within Vernon Parish, and he was there armed with a seven millimeter Remington bolt action rifle. This was seized at the time as it was suspected he was a convicted felon[,] and there was a determination made that in fact he was guilty of and convicted of the manufacture, growth [sic] of marijuana in Desoto Parish by his guilty plea on November 18th, 1991, full release from the sentence imposed in that case was March 1 of 2001[,] and in Quachita [sic] Parish of the offense of simple robbery. The plea having been entered 5/29/96 and full release from the penalty assessed in the sentence on that case was 3/1, 2001[sic].

ERRORS PATENT & PROCEDURAL ISSUE

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we note that there is one error patent.

There is a misjoinder of offenses in the bill of information. The bill of information, as amended, charged the Defendant with the following: (1) failure to abide by commission rules with deer harvest record requirements, a violation of La. R.S. 56:115; and (2) attempted possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1.

Louisiana Code of Criminal Procedure Article 493 provides for the joinder of offenses in a single bill under limited circumstances if the offenses joined are triable by the same mode of trial. The charge of failure to abide by commission rules with lijdeer harvest record requirements is a misdemeanor and is triable by a judge without a jury. See La.Code Crim.P. art. 779. The charge of attempted possession of a firearm by a convicted felon is a felony and is triable by a jury of twelve in which ten must concur to render a verdict. See La.Code Crim.P. art. 782. Therefore, these offenses were improperly joined. However, the Defendant did not file a motion to quash the bill of information on the basis of misjoinder of offenses, as required by statute. See La.Code Crim.P. art. 495. Additionally, by entering an unqualified guilty plea, the Defendant waived review of this non-jurisdictional pre-plea defect. See State v. Crosby, 338 So.2d 584 (La.1976). Thus, this error patent need not be reviewed or considered in this appeal.

We also note that because the misdemeanor offense was not triable by jury, the proper mode of appellate review for that offense would have been an application for writ of review, rather than an appeal. La. Code Crim.P. art. 912.1. However, because that charge was dismissed, that procedural issue was rendered moot.

ASSIGNMENT OF ERROR

In his only assignment of error, the Defendant contends that his sentence of seven years at hard labor imposed for his guilty plea to attempted possession of a firearm by a convicted felon constitutes an excessive sentence.

The Defendant was convicted of attempted possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1(B), which states:

Whoever is found guilty of violating the provisions of this Section shall be imprisoned at hard labor for not less than ten nor more than fifteen years without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars.

The Defendant was convicted of an attempt crime. Louisiana Revised Statutes |414:27(D)(3) sets forth the appropriate penalty for the attempt to possess a firearm by a convicted felon as follows:

In all other cases he shall be fined or imprisoned or both, in the same manner as for the offense attempted; such fine or imprisonment shall not exceed one-half of the largest fine, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both.

“[T]he language of La. R.S. 14:27(D)(3) (the attempt statute) does not require a minimum penalty even though one is required for the completed offense.” State v. Everett, 05-214, p. 2 (La.App. 3 Cir. 11/2/05), 916 So.2d 1210, 1212. Further, the sentence must be served without benefit of probation, parole, or suspension of sentence. Id.

The Defendant specifically argues that his sentence is excessive. This court discussed the standard of review applicable to claims of excessiveness in State v. Bailey, 07-130, p. 3 (La.App. 3 Cir. 10/3/07), 968 So.2d 247, 250, as follows:

A sentence which falls within the statutory limits may be excessive under certain circumstances. To constitute an excessive sentence, this Court must find that the penalty is so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no reasonable contribution to acceptable penal goals and[,] therefore, is nothing more than the needless imposition of pain and suffering. The trial judge has broad discretion, and a reviewing court may not set sentences aside absent a manifest abuse of discretion.
State v. Guzman, 99-1753, 99-1528, p. 15 (La.5/16/00), 769 So.2d 1158, 1167 (citations omitted).
In State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061 (citations omitted), this court discussed the factors it would consider in order to determine whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals:
Ifiln deciding whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals, an appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.”

The Defendant that asserts he received a sentence that was six months less than the maximum sentence. He further asserts that his sentence is excessive for possessing a deer rifle for hunting, which he did not understand he could not do. The Defendant additionally asserts that after his guilty plea, he gave away his handguns, which he contends demonstrates that he did not realize that he could not hunt and, thus, it was not his intention to violate the law.

The Defendant also asserts that the trial court did not have the benefit of his social history in the pre-sentence investigation report and that nothing was mentioned as to his family ties, marital status, employment status, or other factors in compliance with La.Code Crim.P. art. 894.1. The Defendant also contends that his age at the time of his prior offenses should have been considered in formulating his sentence.

The Defendant further asserts that he has a serious lung condition, in addition to other health problems, of which the trial court was aware. The Defendant contends that the trial court did not adequately take into consideration the mitigating factors set forth herein. Additionally, he contends that his sentence was imposed without benefit of diminution of sentence for good time.

Finally, the Defendant asserts that the State did not desire a harsh sentence, as |fithe State did not object to suspension of sentence, probation, or a much lesser sentence than that which was imposed.

At the sentencing hearing, the Defendant informed the trial court that he had been having respiratory problems. The trial court informed the Defendant that it was aware that he had had surgery. The trial court then stated the following:

All right. The [cjourt considered the factors of Article 894.1 of the Code of Criminal Procedure and found that the following were applicable. First, there are no substantial grounds which would tend to excuse his criminal conduct. He did not act under strong provocation, and, by that, I mean he knew he was a convicted felon[,] and he knew he was not suppose[d] to be in possession of a firearm[,] and nobody made him go. Nobody enticed him to do it. He’s forty years of age. I didn’t have any social history in the report because he was not able to — or, did not report to the probation office prior to the pre-sentence being completed, but I do have his criminal record[,] and it reflects that he’s a third felony offender. The report indicated that on November the 18th, 1991[,] in the Eleventh JDC[,] he was convicted of cultivation of marijuana and possession with intent to distribute marijuana and was given [a] four years [sic] Department of Corrections sentence. On May 29th, 1996, in the Fourth JDC[,] he was convicted of simple robbery and given [a] one year Department of Corrections [sentence,] and that was to run consecutive to any other sentence. On June 18th, 2003, in the Fifteenth JDC in Crowley, he pled guilty to illegal carrying of a weapon, [a] misdemeanor, reduced from the charge of possession of a firearm by a convicted felon[,] and he was given a six-month sentence that was suspended[,] and he was placed on one year of unsupervised probation. So, he has some history of a prior charge of this kind[,] and he has a robbery charge and then some drug charges. He’s— he’s somewhat covered the range of charges here from drugs, to robbery, to guns. I don’t know if you’ve learned your lesson or not. I know at the time you were arrested on this you hadn’t learned your lesson.

The Defendant then informed the trial court that he had gotten rid of “everything,” including his hunting clothes. He further explained that he misinterpreted the law.

Based on the trial court’s remarks and those of the Defendant, we find that the trial court was aware that the Defendant was hunting at the time of the offense, that he gave away his guns, and that he had serious health problems. Further, the Defendant had an opportunity to speak at the sentencing hearing and failed to provide |7the trial court with information regarding his family ties, marital and employment status, and any other information that he felt was pertinent to the determination of the sentence to be imposed.

In State v. Scott, 44,509 (La.App. 2 Cir. 8/19/09), 17 So.3d 1058, the defendant was charged with illegal possession of a firearm by a convicted felon. He pled guilty to the amended charge of attempted possession of a firearm by a convicted felon and was sentenced to seven and one-half years at hard labor. On appeal, he argued that his maximum term of incarceration was excessive. In denying his claim, the court stated the following:

The defendant, who has two prior convictions for drug-related felonies, was actually in possession of a loaded weapon when he was stopped by a law enforcement officer. The defendant received a substantial benefit as a result of the plea bargain agreement whereby he was allowed to plead guilty to the lesser charge of attempted possession of a firearm by a convicted felon. The sentence imposed is not grossly disproportionate to the severity of the offense. Because the defendant pled guilty to an offense that did not adequately describe his conduct, we find that the trial court did not abuse its discretion by imposing the maximum sentence in this case.

Id. at 1061.

Based on the Defendant’s criminal history, which included a prior charge for possession of a firearm by a convicted felon, the State’s agreement not to seek enhancement of the sentence under the habitual offender statute, La. R.S. 15:529.1, and the fact that he pled guilty to an offense that did not adequately describe his conduct, we find that the Defendant’s sentence is not excessive.

We have not considered the Defendant’s claim that the trial court failed to comply with the mandates of La.Code Crim.P. art. 894.1, as this issue was not raised in the Motion to Reconsider Sentence. See State v. Massey, 08-839 (La.App. 3 Cir. 12/10/08), 999 So.2d 343.

| ^Further, in State v. Narcisse, 97-3161, p. 1 (La.6/26/98), 714 So.2d 698, 699, the court held in pertinent part:

[A] trial judge lacks authority under La.R.S. 15:57[1].3(C) to deny a defendant eligibility for good time credits against his sentence, because that statute is “directed to the Department of Corrections exclusively.” State ex rel. Simmons v. Stalder, 93-1852 (La.1/26/96), 666 So.2d 661.... When the sentencing court is of the opinion that a denial of diminution of sentence is warranted under the specific circumstances of the case, the trial judge’s discretion should be exercised under La. C.Cr.P. 890.1(B).

In this case, the trial court merely advised the defendant that, pursuant to La. Code Crim.P. art. 894.1, he was not eligible for diminution of sentence. Whether the advisement was correct has no effect on his sentence, since the statute governing such credit, La. R.S. 15:571.3, is directed exclusively to the Department of Corrections. Id.

DISPOSITION

For the reasons set forth herein, we affirm the Defendant’s sentence in all respects.

AFFIRMED.

      . We note that as part of the plea agreement, the parties agreed that the sentence would be subject to probation, parole, or suspension of sentence.


author: THIBODEAUX, Chief Judge.

text:
    STATE of Louisiana v. Andrae Rashun ALLEN.
    No. 09-1281.
    Court of Appeal of Louisiana, Third Circuit.
    May 5, 2010.

      Paula Corley Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant-Andrae Rashun Allen.
    Asa Allen Skinner, District Attorney, Thirtieth Judicial District Court, Terry W. Lambright, Assistant District Attorney, Thirtieth Judicial District Court, Leesville, LA, for Plaintiff/Appellee-State of Louisiana.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and ELIZABETH A. PICKETT, Judges.
   THIBODEAUX, Chief Judge.

Lin 2009, Defendant, Andrae Rashun Allen (Allen), was charged with the offenses: (Count 1) simple robbery, a violation of La. R.S. 14:65; (Count 2) aggravated assault, a violation of La. R.S. 14:37; (Count 3) simple battery, a violation of La. R.S. 14:35; (Count 4) faulty exhaust system, a violation of La. R.S. 32:352; (Count 5) expired license plate, a violation of La. R.S. 47:508; and, (Count 6) possession with intent to distribute cocaine, a violation of La. R.S. 40:967(A). Allen pled guilty to the reduced charge of misdemeanor theft, to aggravated assault, to simple battery, and to the reduced charge of possession of cocaine. The remaining charges were dismissed.

The trial court sentenced Allen to the following concurrent sentences with credit for the time served: Count 1 — six months in jail, pay court costs, and make restitution to the victim in the amount of $489.00; Count 2 — one hundred twenty days in jail and pay court costs; Count 3 — six months in jail and pay court costs; and Count 6— five years at hard labor and pay a $2,000.00 fine and court costs. Allen filed a motion to reconsider sentence that the trial court summarily denied.

Allen appealed, asserting that his sentence for possession of cocaine is excessive. For the following reasons, we affirm.

ISSUES

We shall consider whether:

(1) the sentence of five years at hard labor was excessive where a twenty-nine-year-old Defendant was charged with possession with intent to distribute cocaine but pled guilty to a reduced charge of possession of cocaine and was a fourth-felony offender with a history of parole revocations;
(2) in addition to the five-year sentence referenced above, the imposition of a fine of two thousand ^dollars, less than half of the maximum possible, was excessive.

FACTS

At the time of Allen’s guilty plea, the State established that on November 5, 2008, Allen was stopped in the parking lot of Shop Rite in Vernon Parish and was in possession of cocaine.

At sentencing, the trial court observed that in drug cases such as this one, there is a significant economic impact on society. The trial court noted that there were no substantial grounds to excuse Allen’s behavior even though Allen denied knowledge of the presence of drugs in the vehicle. The trial court considered Allen’s age, his high-school education, his good physical health, and that he was single and without children. The trial court then focused on Allen’s criminal history, noting Allen’s use of marijuana since the age of twelve without receiving any treatment. The trial court observed that Allen was a fourth felony offender previously convicted of: (1) as a juvenile, theft of property and possession of marijuana in 1996; (2) as an adult, theft and burglary in 1997; (3) illegal use of a weapon in 1998; and, (4) simple burglary of an inhabited dwelling and theft, felony grade, in 1999. Finally, the trial court noted Allen’s history of parole revocations.

LAW AND DISCUSSION

Excessiveness of Sentence

Allen argues that his five-year sentence for possession of cocaine was excessive and that the trial court failed to comply with La.Code Crim.P. art. 894.1 in fashioning the sentence.

“No law shall subject any person ... to cruel, excessive, or unusual punishment.” La. Const, art. 1, § 20.

| oTo constitute an excessive sentence, this Court must find that the penalty is so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no reasonable contribution to acceptable penal goals and[,] therefore, is nothing more than the needless imposition of pain and suffering. The trial judge has broad discretion, and a reviewing court may not set sentences aside absent a manifest abuse of discretion.

State v. Guzman, 99-1528, p. 15 (La.5/16/00), 769 So.2d 1158, 1167 (citations omitted). The following factors are applied when determining whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals: “the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment[,] and a comparison of the sentences imposed for similar crimes.” State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061 (citing State v. Smith, 99-606, 99-2015, 99-2019, 99-2094 (La.7/6/00), 766 So.2d 501). Although a comparison of sentences imposed for similar crimes can be helpful, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” Id. (quoting State v. Batiste, 594 So.2d 1, 3 (La.App. 1 Cir.1991)). Because the trial court is in the best position to evaluate the aggravating and mitigating factors of a particular case, “it is within the purview of the trial court to particularize the sentence.” Id. Finally» “Ms a general rule, maximum sentences are appropriate in cases involving the most serious violation of the offense and the worst type of offender.” State v. Hall, 35,151, p. 4 (La.App. 2 Cir. 9/26/01), 796 So.2d 164, 169 (citing State v. Grissom, 29,718 (La.App. 2 Cir. 8/20/97), 700 So.2d 541; State v. Walker, 573 So.2d 631 (La.App. 2 Cir.1991)).

Possession of cocaine is punishable by imprisonment, with or without hard labor, for not more than five years, or a fine of not more than $5,000.00, or both. |4La. R.S. 40:967(C). Thus, Allen’s five-year sentence was the maximum possible, but his $2,000.00 fine was less than one-half of the maximum possible. Allen received a significant benefit from his plea agreement. In addition to the reduction of two charges, two charges were dismissed, significantly diminishing his sentencing exposure.

On appeal, Allen concedes that the trial court examined his personal and criminal history at sentencing. Yet, he maintains that the trial court’s personal feelings about drug cases overshadowed its duty to particularize the sentence. Therefore, Allen argues, the trial court did not demonstrate compliance with the purpose of La. Code Crim.P. art. 894.1 to insure that the sentence was individualized.

Allen adds that his personal history should be considered, including not only his age, but also that he had smoked marijuana since he was twelve and had not received any treatment. Allen also stresses that his only prior drug offense was as a juvenile. Further, Allen points to his high school education and asserts that he has worked in hospitals, stripping, waxing, and buffing floors, and thus, with rehabilitation and treatment, has the potential to reenter society as a contributing member.

Finally, Allen maintains that he is not the worst type of offender and the offense was not the most serious of offenses. He asserts that no one was injured in the crime and that the effect on society, in general, should not be a factor in justifying a maximum sentence. Allen does not refer to any jurisprudence upon which he relies in making this argument.

The record reflects that the trial court considered Allen’s Presentence Investigation Report which contained a plethora of information, including his personal, employment, social, and criminal history. The trial court then referred to [ ¡^several of the facts contained in the report at sentencing. Most notable is that Allen is a fourth felony offender.

This court affirmed a $1,500.00 fine and the maximum five-year sentence for possession of cocaine in a case in which the defendant had two previous drug convictions, was originally charged with possession of cocaine with intent to distribute, and in which the State refrained from billing the defendant as a habitual offender. State v. Williams, 07-490 (La.App. 3 Cir. 10/31/07), 969 So.2d 744.

A five-year sentence for possession of cocaine was also affirmed in a case in which the trial court imposed no fine on a defendant who had a criminal history indicating that he was a career criminal with no prior convictions. State v. McCorkle, 97-966 (La.App. 5 Cir. 2/25/98), 708 So.2d 1212.

Finally, this court affirmed a sentence of five years at hard labor in a case in which the twenty-six-year-old defendant, originally charged with possession with intent to distribute cocaine, was a third-time felony drug offender with a history of probation and parole revocations. State v. Thomas, 08-1358 (La.App. 3 Cir. 5/6/09), 18 So.3d 127.

The mitigating and aggravating facts in this case are similar to those in the above-referenced cases. Considering the trial court’s reasons for sentencing, in addition to the jurisprudence supporting the maximum sentence for similarly situated defendants, this court concludes that the five-year imprisonment imposed on Allen is not excessive.

Indigence and Imposition of Fine

Allen argues that he is indigent, and, thus, the imposition of a $2,000.00 fine was not appropriate. In support, Allen refers to State v. Perry, 472 So.2d 344 (La.App. 3 Cir.1985). There, a defendant who pled guilty to attempted distribution | (¡of a counterfeit schedule II controlled dangerous substance was found indigent by the trial court and was appointed counsel for his defense. In addition to four years of imprisonment at hard labor, an upper-range sentence, the trial court imposed a $5,000.00 fine and court costs, or, in default of paying the fine, imposed an additional year of imprisonment. This court found that sentence excessive.

Relying on State v. Mims, 550 So.2d 760 (La.App. 2 Cir.1989), the State argues that consideration of Allen’s ability to pay the fine is premature. In Mims, the court discussed the consideration of default jail time before a defendant is required to pay a fine and concluded that such consideration was premature.

The issue in Perry and in Mims regarding fines was the default jail time, not that the indigent defendant was ordered to pay a fine. Further, in Perry, the jail time and fine were both excessive because the trial judge failed to state for the record the considerations and facts upon which the sentence was based.

This court was unable to find any jurisprudence which prohibits or limits the trial court’s imposition of a fine on an indigent defendant. Moreover, although the ruling in Mims is distinguishable from this case, it does suggest that considering a defendant’s indigence prior to the time he is called upon to pay the fine is premature.

As noted above, Allen’s $2,000.00 fine was less than one-half of the maximum possible fine. Also, the trial court clearly stated for the record the facts it considered in determining Allen’s sentence. Finally, the trial court did not order default time in the event Allen did not pay his fine. For these reasons, Allen’s fine is not excessive.

ERRORS PATENT

After reviewing the record, there are two errors patent and a procedural issue worth noting. The bill of information provides the wrong citation for possession of cocaine with intent to distribute. The bill lists it as a violation of La. R.S. 40:966(A), whereas the proper citation is La. R.S. 40:967(A). The erroneous citation of a statute in the charging instrument is harmless error as long as the error does not mislead Defendant to his prejudice. La.Code Crim.P. art. 464.

Here, Allen does not allege any prejudice because of the erroneous citation; thus, any error is harmless. Additionally, by entering an unqualified plea, Allen waived review of this non-jurisdictional pre-plea defect. See State v. Crosby, 338 So.2d 584 (La.1976). Accordingly, this court finds this error harmless and/or waived.

There is a misjoinder of offenses in the bill of information. Offenses may be joined in a single bill of information only if the offenses are triable by the same mode of trial. La.Code Crim.P. art. 493. Here, Allen’s amended charges in counts one through five (theft under $300.00, aggravated assault, simple battery, a faulty exhaust system, and expired license plate) are misdemeanors, triable by a judge without a jury. La.Code Crim.P. art. 779. Count six, possession of cocaine with intent to distribute, is a felony triable by a jury composed of twelve jurors, ten of whom must concur to render a verdict. La.Code Crim.P. art. 782. Consequently, count six was improperly joined with the misdemeanors.

Nevertheless, Allen did not file a motion to quash the bill of information on the basis of misjoinder of offenses as required by statute. See La.Code Crim.P. art. 495. Additionally, by entering an unqualified guilty plea, Allen waived review of this non-jurisdictional pre-plea defect. See Crosby, 338 So.2d 584.

IsFinally, we note that the proper mode of review for the misdemeanor offenses is an application for writ of review, rather than an appeal. La.Code Crim.P. art. 912.1. In State v. Turner, 04-1250 (La.App. 3 Cir. 3/2/05), 896 So.2d 286, writ denied, 05-871 (La. 12/12/05), 917 So.2d 1084, the defendant appealed his convictions for two felonies and one misdemean- or, but made no specific arguments regarding his misdemeanor conviction. Thus, this court severed the misdemeanor conviction from the defendant’s appeal of the two felony convictions. The court ordered the defendant to file a writ of review regarding the misdemeanor conviction in compliance with the Rules of Court. Id. There, if the defendant desired to seek review of the misdemeanor conviction, we considered the notice of appeal as a notice to file a writ of review within thirty days of the court’s opinion.

As in Turner, Allen has not assigned any error regarding his misdemeanor convictions. Additionally, Allen concedes that there is a misjoinder and requests that he be allowed to seek supervisory review of the misdemeanors once the appeal is completed. Therefore, this court severs the misdemeanor convictions from the appeal and orders Allen to file a writ of review in compliance with the Uniform Rules of Court, if he so desires.

CONCLUSION

Andrae Rashun Allen’s sentence is affirmed.

AFFIRMED.

      . The maximum sentence and fine were five years at hard labor and $7,500.00.


author: PICKETT, Judge.

text:
    SUCCESSION OF Marcel August FUSELIER.
    No. 09-1262.
    Court of Appeal of Louisiana, Third Circuit.
    May 5, 2010.

      Allan L. Durand, Attorney at Law, Lafayette, LA, for Appellee, Joann Fuselier.
    Bruce A. Gaudin, Attorney at Law, Opelousas, LA, for Appellants, Daniel Fuselier, Steve Fuselier, Byron Fuselier, Arlene Fuselier Guillot, Christine Fuselier Bourque.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and ELIZABETH A. PICKETT, Judges.
   PICKETT, Judge.

l,The heirs of Marcel August Fuselier appeal a judgement of the trial court awarding a credit to Jo Ann Fuselier, the decedent’s surviving spouse, for federal income taxes on undistributed income from separate stock in a subchapter S corporation paid with community funds.

STATEMENT OF THE CASE

Marcel Fuselier died on January 8, 2008. In his last will and testament, he named his five children from his first marriage, Daniel Fusilier, Steve Fusilier, Byron Fusilier, Arlene Fuselier Guillot, and Christine Fuselier Bourque, as his universal legatees subject to a usufruct in favor of his second wife, Jo Ann. Marcel and Jo Ann were married for over thirty years. In the succession proceeding, the heirs and Jo Ann were able to reach an agreement on all issues except for one, which is the subject of this appeal.

At the time of his death, Marcel owned 20,609 shares of St. Martin Bancshares, Inc. (SMBI), stock. SMBI is a subchapter S corporation that owns St. Martin Bank. The trial court determined that 5,986 shares were the separate property of Mar-eel and 14,623 shares were the community property of Marcel and Jo Ann. That factual finding has not been appealed.

Beginning in 2008, SMBI reported profits on a per share basis. A portion of these earnings was distributed to the shareholders, and a portion was retained by the bank. The shareholders were required to pay federal income taxes on the full amount of the earnings per share, but they only had to pay state income taxes on the distributed earnings. For example, in 2003, the bank declared profits of $13.52 per share. The bank distributed $9.00 to each shareholder, and retained $4.52 as Jjundistributed income. Marcel and Jo Ann received a check from the bank for $185,481.00 ($9.00 per share for 20,609 shares) representing the distributed income. The federal income tax liability earnings however, was based on total earnings, distributed and undistributed, of $278,688.68 ($13.52 per share for 20,609 shares).

Neither the heirs nor Jo Ann dispute the classification of the distributed earnings as community property. Louisiana Civil Code Article 2339 states that the civil fruits of separate property are community property. The issue raised in this appeal is whether the undistributed earnings are community property or separate property. In an interlocutory judgment dated May 8, 2009, the trial court determined that the undistributed earnings were separate property. The trial court found that, based on this classification, Jo Ann was entitled to a reimbursement from the succession for the federal income taxes paid on the undistributed earnings attributable to the 5,986 shares of stock that were Marcel’s separate property. This reimbursement claim was equal to half of the community funds used to pay federal taxes on Marcel’s separate property. The parties stipulated in the consent judgment that the total amount of this reimbursement claim from 2003 through 2007 was $28,881.00.

The trial court signed a consent judgment on May 21, 2009. The heirs reserved the right to appeal that portion of the judgment of May 8, 2009 that found that Jo Ann was entitled to a reimbursement for income taxes paid by the community on the undistributed earnings attributable to Marcel’s separate property.

ASSIGNMENTS OF ERROR

In their only assignment of error, the heirs argue that the trial court erred in finding that the estate of Marcel Fuselier owed a reimbursement to Jo Ann for the Isfederal income taxes paid by the community on the undistributed income from Marcel’s separately-owned shares of stock.

DISCUSSION

“[A] trial court’s findings regarding the nature of the property as community or separate is a factual determination subject to manifest error review.” Ross v. Ross, 02-2984 (La.10/21/03), 857 So.2d 384, 395.

“The natural and civil fruits of the separate property of a spouse ... are community property.” La.Civ.Code art. 2339. In the case before us, the question presented is whether income derived from shares of a subchapter S corporation that is not distributed to the shareholder is a civil fruit. Article 551 of the Civil Code defines civil fruits:

Fruits are things that are produced by or derived from another thing without dimunition of its substance.
Civil fruits are revenues derived from a thing by operation of law or by reason of a juridical act, such as rentals, interest, and certain corporate distributions.

The Civil Code contemplates that some corporate distributions are civil fruits, but others are not. See La.Civ.Code art. 552 and the comments thereto. For example, cash dividends are considered civil fruits, but liquidation payments and stock dividends are not civil fruits. The Revision Comments make it clear that whether the distributions are taxed as income for federal tax purposes is not determinative of the classification as a civil fruit.

We find that the trial court did not err in classifying the undistributed income from Marcel’s separate shares as separate property. This finding is supported by the evidence in the record that the undistributed income is re-invested in the corporation |4and increases the value of the corporation and each share of stock. Thus, we affirm the trial court’s determination that Jo Ann is entitled to a reimbursement from the estate for one half of the taxes paid on the undistributed income derived from Marcel’s 5,986 shares of SMBI.

We note that the first circuit has held that the undistributed income from a separately held subchapter S corporation is not a civil fruit. McKneely v. McKneely, 98-2472 (La.App. 1 Cir. 6/14/00), 764 So.2d 1157. In McKneely, the court held that until the funds are disbursed to the individual shareholder, they are neither the property nor a fruit of the individual. We concur in that court’s analysis.

CONCLUSION

The judgment of the trial court is affirmed. Costs of this appeal are assessed to the appellants.

AFFIRMED.


text:
    Lynda K. BREAUX v. NORTHWESTERN STATE UNIVERSITY.
    No. 09-1162.
    Court of Appeal of Louisiana, Third Circuit.
    May 5, 2010.

      Edward M. Campbell, Special Assistant Attorney General, Natchitoches, LA, for Defendant/Appellee, Northwestern State University.
    Robert L. Beck, III, Alexandria, LA, for Plaintiff/Appellant, Lynda K. Breaux.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and ELIZABETH A. PICKETT, Judges.
   THIBODEAUX, Chief Judge.

| ,In this workers’ compensation case, both the plaintiff and the defendant appeal the judgment of the Office of Workers’ Compensation (OWC). During the course of her employment with Northwestern State University, Lynda K. Breaux experienced three workplace accidents and suffered injuries from each. Ms. Breaux underwent numerous tests and treatments, but the parties disagreed about the extent of Ms. Breaux’s injuries and Northwestern’s obligations to her under the workers’ compensation laws. The workers’ compensation judge (WCJ) found that Ms. Breaux suffered three separate workplace accidents and that those accidents resulted in injuries to her right shoulder and left knee. The WCJ refused to award Ms. Breaux compensation for alleged injuries to her cervical or lumbar spine. He did, however, hold that Ms. Breaux’s injury to her right shoulder entitled her to weekly indemnity benefits. The WCJ also penalized Northwestern for its failure to timely approve medical treatment related to Ms. Breaux’s right shoulder injury and to pay Ms. Breaux disability benefits for the period she was disabled as a result thereof.

On appeal, Ms. Breaux contends that the WCJ erred in finding that she did not sustain injury to her cervical or lumber spine. Northwestern asserts a fraud claim under La. R.S. 23:1208 and challenges the WCJ’s findings (a) that an accident occurred that injured Ms. Breaux’s right' shoulder; (b) that Ms. Breaux was entitled to disability benefits for injuries to her right shoulder; and, (c) that Northwestern was subject to penalties and attorney fees for injuries suffered by Ms. Breaux to her right shoulder.

We affirm the judgment of the OWC.

JÍ-

ISSUES

We must decide whether:

(1) the OWC manifestly erred in refusing to impose sanctions on Ms. Breaux for submitting a false claim;
(2) the OWC manifestly erred by finding that Ms. Breaux sustained an accident and resulting injuries in July 2007;
(3) the OWC manifestly erred by finding that Ms. Breaux was entitled to disability benefits for injuries to her right shoulder;
(4) the OWC manifestly erred by imposing penalties and fees on Northwestern for Ms. Breaux’s shoulder injury; and,
(5) the OWC manifestly erred in finding that Ms. Breaux did not sustain injuries to her lumbar or cervical spine.

II.

FACTS AND PROCEDURAL HISTORY

Ms. Breaux worked as an athletic grounds keeper for the Northwestern Athletic Department. Her job was labor-intensive and involved mowing the grass, preparing athletic fields for sporting events, trimming trees and bushes, and maintaining the lawn equipment. Ms. Breaux’s supervisor characterized her as a “good worker,” but her employment at Northwestern was not without its issues. Specifically, Ms. Breaux suffered three major accidents while employed by Northwestern.

Ms. Breaux suffered her first workplace accident on September 25, 2006. Ms. Breaux sustained injury to her back while picking up fallen tree limbs on campus. Ms. Breaux immediately reported the accident to several Northwestern personnel, and |aone of the individuals completed an accident report. Ms. Breaux’s family practitioner, Dr. Warren Founds, prescribed a one-month regimen of physical therapy. Following the physical therapy treatments, Dr. Founds released Ms. Breaux to work with the restriction that she not lift more than ten pounds.

Ms. Breaux’s second accident at Northwestern occurred on March 5, 2007, while Ms. Breaux attempted to mow the track and field complex at Northwestern. While detaching a chain that secured a gate to an adjacent fence, the gate fell and knocked Ms. Breaux to the ground, injuring her fingers, left knee, and right shoulder. Ms. Breaux reported the accident to Northwestern personnel, and Northwestern filed an accident report. When Ms. Breaux’s knee pain did not abate, she sought treatment from Dr. Geoffrey Collins. She reported to Dr. Collins that she experienced pain in both her left knee and right shoulder, but Dr. Collins informed her that he was only authorized to treat her left knee. With regard to the knee, Dr. Collins diagnosed a probable medial meniscus tear. Dr. Collins subsequently performed arthroscopic surgery on Ms. Breaux’s knee and determined that she suffered from “an un-dersurface mid-body tear and posterior horn tear of the medial meniscus which was debrieded.” Though surgery alleviated some of Ms. Breaux’s knee pain, the knee continued to swell intermittently. Ms. Breaux returned to work.

Ms. Breaux’s third accident occurred on July 13, 2007 while Ms. Breaux mowed the grass around Northwestern’s softball field. While mowing the grass, a roller tool fell and struck Ms. Breaux across the knees. Ms. Breaux suffered intense pain and immediately contacted her supervisors at Northwestern to report the accident. Northwestern, however, failed to investí-gate the accident until three days later.

pFollowing the third accident, Ms. Breaux visited Dr. Collins where she complained of pain in her knees and numbness and tingling extending down her legs. Two weeks following that visit, Ms. Breaux began experiencing low back pain, and she contacted Dr. Collins about that pain. Dr. Collins ordered a lumbar MRI, which was completed, and he recommended lumbar epidural steroid injections for therapeutic and diagnostic reasons. Northwestern never authorized the steroid injections or any other treatment with regard to Ms. Breaux’s lower back.

At the same time that Ms. Breaux was experiencing lower back pain, allegedly from the July 13, 2007 accident, Ms. Breaux was still experiencing right shoulder pain as a result of the March 5, 2007 accident. Ms. Breaux made formal demand on Northwestern to approve Dr. Collins’ treatment of her right shoulder. Northwestern initially refused to approve treatment to Ms. Breaux’s right shoulder, and no treatment for the right shoulder was approved until seven months after the March 2007 accident.

In early 2008, Ms. Breaux underwent an MRI on her right shoulder, and following the test, Dr. Collins diagnosed a tear in the shoulder, but he could not adequately diagnose Ms. Breaux’s condition without arthroscopic surgery on the shoulder. Dr. Terry Texada, Northwestern’s doctor of choice, concurred with Dr. Collins’ assessment. Dr. Riad Haj Murad, a neurologist, also examined Ms. Breaux’s shoulder, and he opined that Ms. Breaux suffered from double crush syndrome.

The WCJ concluded that: (1) Ms. Breaux proved by a preponderance of the evidence that she was involved in three separate work accidents at Northwestern; (2) Ms. Breaux proved by a preponderance of the evidence that the work accident on March 5, 2007, caused her to sustain injuries to her right shoulder and left knee; (3) Ms. Breaux proved by clear and convincing evidence that the injury to her right |fishoulder prevented her from performing her job duties at Northwestern, thereby entitling her to receive weekly indemnity benefits in the amount of $276.00 per week; (4) Ms. Breaux failed to prove by a preponderance of the evidence that she sustained injury to her cervical or lumbar spine; and, (5) as a result of Northwestern’s failure to timely approve medical treatment related to Ms. Breaux’s right shoulder injury and to pay disability benefits for the period she was disabled as a result thereof, Ms. Breaux was entitled to two separate statutory penalties in the amount of $2,000.00, together with reasonable attorney fees in the amount of $4,500.00.

On appeal, Ms. Breaux challenges the WCJ’s judgment regarding lack of injury to her cervical and lumbar spine. Northwestern asserts a Section 1208 fraud claim and challenges the WCJ’s findings (a) that an accident occurred that injured Ms. Breaux’s right shoulder; (b) that Ms. Breaux was entitled to disability benefits for injuries sustained to her right shoulder; and, (c) that Northwestern was subject to penalties and attorney fees for Ms. Breaux’s shoulder injury.

III.

LAW AND DISCUSSION

Standard of Review

The supreme court articulated the standard of review in workers’ compensation cases as follows:

In worker’s compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC’s findings of fact is the “manifest error-clearly wrong” standard. Brown v. Coastal Construction & Engineering, Inc., 96-2705 (La.App. 1 Cir. 11/7/97), 704 So.2d 8, 10, (citing Alexander v. Pellerin Marble & Granite, 98-1698, pp. 5-6 (La.1/14/94), 630 So.2d 706, 710). Accordingly, the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Alexander, 630 So.2d at 710. Where there is conflict in the | (¡testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Robinson v. North American Salt Co., 02-1869 (La.App. 1 Cir.2003), 865 So.2d 98, 105, writ denied, 03-2581 (La.11/26/03), 860 So.2d 1139.

Dean v. Southmark Const., 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117.

La. R.S. 23:1208 Sanctions

Northwestern asserts that the WCJ erred by not assessing sanctions against Ms. Breaux under La. R.S. 23:1208. Section 1208 provides sanctions against claimants for reporting false workers’ compensation claims. The preeminent case in Louisiana jurisprudence on this issue is Resweber v. Haroil Constr. Co., 94-2708 (La.9/5/96), 660 So.2d 7. Northwestern, however, mentions neither Re-sweber, nor any other case on the subject, in its brief. In fact, other than in its assignment of errors and in its conclusion, Northwestern never mentions La. R.S. 23:1208. Because we find that Northwestern failed to brief the issue of sanctions under La. R.S. 23:1208, we consider that claim abandoned on appeal.

Employment Related Injury in July 2007

Northwestern argues that the WCJ erred by finding that Ms. Breaux suffered injuries following the July 2007 accident on Northwestern’s campus. They argue that (1) the accident never happened; and (2) even if the July 2007 accident did occur, Ms. Breaux’s injuries do not relate to it.

With regard to the existence of the accident, Northwestern argues that the facts of the accident as alleged by Ms. Breaux create an impossibility. They also assert that the individuals who reported the accident are “biased” in favor of Ms. 17Breaux. Finally, Northwestern points to its own investigation which they claim supports a finding that no accident occurred.

We review the WCJ’s finding of an accident for manifest error. The WCJ considered the testimony of those individuals to whom Ms. Breaux reported the accident, and he considered the evidence Northwestern presented from its investigation. From that, he concluded that Ms. Breaux suffered an accident on Northwestern’s campus in July 2007. We find that his judgment was not erroneous.

Northwestern claims that even if an accident occurred, Ms. Breaux suffered no injuries related to the accident. In Bruno v. Guaranty Bank & Trust Co., 92-936, p. 5, 617 So.2d 1351, 1353-54 (La.App. 3 Cir. 5/5/93) (citations omitted), we articulated the standard for proving a claim of a work-related accident:

[T]he evidence is viewed in a light most favorable to claimant. By proving the occurrence of an accident and a subsequent disability, and where there is no proven intervening cause, the presumption is raised that the work-related accident caused the disability. Once [the plaintiff] has proven facts sufficient to give rise to the presumption, the burden switches to defendants to prove the absence of a causal connection between accident and injury.

Here, Ms. Breaux submitted sufficient evidence supporting her claim. Specifically, she personally testified about the accident, and she presented evidence of her injuries. The evidence presented raised the presumption that the work-related accident in July 2007 caused her injuries. The burden then shifted to Northwestern. Northwestern presented its investigatory findings to the WCJ. On appeal, it recounts those findings to the court in excruciating detail. Northwestern’s investigatory findings failed to sway the WCJ from the presumption created by Ms. Breaux, and we|sfind no error in his judgment that Ms. Breaux’s injuries were caused by the July 2007 accident.

Injury to Right Shoulder

On appeal, Northwestern asserts two assignments of error with regard to the WCJ’s findings about Ms. Breaux’s right shoulder. Northwestern alleges: (1) the WCJ erred in awarding Ms. Breaux benefits for a shoulder injury that occurred through a workplace accident; and, (2) the WCJ erred in awarding penalties and attorney fees for Ms. Breaux’s shoulder injury. We examine each contention in turn.

(1) Award of Benefits

The WCJ found that Ms. Breaux proved by a preponderance of the evidence that the accident on March 5, 2007, resulted an injury to her right shoulder. Thus, he determined that she was entitled to receive reasonable and necessary treatment for these injuries. We agree.

Ms. Breaux’s shoulder injury is well-documented and supported. Dr. Collins recognized an injury to her right shoulder and recommended a diagnostic surgery. Moreover, Dr. Texada agreed with Dr. Collins’ recommended course of treatment. Thus, we find that the WCJ was not manifestly erroneous in awarding workers’ compensation benefits to Ms. Breaux for injuries sustained to her right shoulder.

(2) Penalties and Fees

Northwestern argues that the WCJ improperly awarded penalties and fees to Ms. Breaux for her shoulder injuries because Northwestern possesses facts that dispute Ms. Breaux’s medical condition. Northwestern misses the point of the WCJ’s award. The WCJ did not, as Northwestern suggests, award penalties and fees to Ms. Breaux because of the mere fact that a claim existed. Instead, the WCJ awarded penalties and fees |9to Ms. Breaux because of two blatant errors by Northwestern: (a) Northwestern’s failure to authorize diagnostic surgery for Ms. Breaux’s right shoulder injury; and (b) Northwestern’s discontinuation of benefits to Ms. Breaux after the injury to her right shoulder rendered her disabled.

Northwestern’s actions in this matter were abominable. With regard to the diagnostic surgery recommended by Dr. Collins and Dr. Texada that would have shed more light on the source of her shoulder injury, Northwestern steadfastly refused to approve the surgery. Despite never speaking with Dr. Collins about the surgery, the adjuster assigned to Ms. Breaux’s case, Kayla Crowe, naively inferred from Dr. Collins’ deposition that he no longer wanted to perform the surgery. Without verifying this interpretation of Dr. Collins’ testimony, Ms. Crowe denied the surgery. The WCJ, therefore, properly awarded penalties and attorney fees to Ms. Breaux for Northwestern’s failure to authorize diagnostic surgery for her shoulder injury.

Similarly, Northwestern, through Ms. Crowe, apparently disregarded the medical evidence and independently determined that Ms. Breaux “recovered” from her shoulder injury. Northwestern then discontinued medical benefits. The WCJ rightly rejected Northwestern’s flawed decision and awarded penalties and reasonable attorney fees to Ms. Breaux. We find no error in the WCJ’s judgment on this issue.

Injuries to Lumbar and Cervical Spine

Ms. Breaux argues that the WCJ erred by finding that she did not sustain injury to her lumbar or cervical spine. We disagree. An injured worker must establish a causal connection between the injury and the resulting disability by a preponderance of the evidence. Champagne v. Roclan Systems, Inc., 06-1928 (La.App. 1 Cir. 2/20/08), 984 So.2d 808, writ denied, 08-1356 (La.9/26/08), 992 So.2d 989 citing West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979). A plaintiff may also meet her burden of causation by proving that the accident aggravated, accelerated, or combined with the pre-existing condition to produce an injury resulting in a compensable disability. Id.

Here, we agree with the WCJ that Ms. Breaux did not meet her burden. With regard to the lumbar spine, Dr. Murad examined Ms. Breaux and noted, “I cannot determine exactly if this is purely related or not but it could be the accident is aggravating her condition.” Dr. Murad was unable to determine the source of the injury or whether the accident definitively contributed to it. “Could be” does not reach the burden of preponderance of the evidence.

Similarly, Dr. Collins was unable to reach a conclusive diagnosis regarding Ms. Breaux’s cervical spine. After examining her, Dr. Collins stated that the spinal sten-osis that contributed to her neck pain “could be ” congenital, degenerative, or traumatic. Again, this inconclusive statement by Dr. Collins does not allow Ms. Breaux to reach her burden of preponderance of the evidence.

Thus, we affirm the judgment of the WCJ with regard to Ms. Breaux’s claims of lumbar and cervical spine injuries.

IV.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the OWC. Costs of this appeal are assessed to Northwestern State University.

AFFIRMED.

      . Northwestern failed to immediately investigate the accident. All evidence accumulated through their investigation was not gathered until three days following the accident.