author: KEATY, Judge.

text:
    STATE of Louisiana v. Albert ABSHIRE
    18-717
    Court of Appeal of Louisiana, Third Circuit.
    March 13, 2019
    Charles A. Riddle, III, District Attorney, Post Office Box 1200, Marksville, Louisiana 71351, (318) 253-6587, Counsel for Appellee: State of Louisiana.
    Anthony F. Salario, Assistant District Attorney, Post Office Box 503, Marksville, Louisiana 71351, (318) 240-7123, Counsel for Appellee: State of Louisiana.
    Annette Fuller Roach, Louisiana Appellate Project, Post Office Box 1747, Lake Charles, Louisiana 70602-1747, (337) 436-2900, Counsel for Defendant/Appellant: Albert Abshire.
    Court composed of John D. Saunders, Phyllis M. Keaty, and John E. Conery, Judges.
   KEATY, Judge.

On July 25, 2017, Defendant, Albert Abshire, was charged by bill of information with hit-and-run driving, a violation of La.R.S. 14:100. On November 13, 2017, Defendant withdrew his initial plea of not guilty and entered a plea of guilty to the charged offense. The trial court ordered a pre-sentence investigation report (PSI), which was filed into the record at the December 14, 2017 sentencing hearing. The trial court sentenced Defendant in open court to ten years of imprisonment at hard labor under the provisions of La.R.S. 14:100(C)(2). Defendant timely filed a motion to reconsider sentence. The trial court denied the motion and set a hearing for Defendant to proffer the evidence he would have offered in support of the motion to reconsider.

Defendant now appeals his sentence, alleging that: (1) the sentence imposed "is nothing more than cruel and unusual punishment and, thus, excessive" under U.S. Const. amend. VIII and La.Const. art. 1, § 20 ; and (2) the trial court "erred in making improper and unsubstantiated assumptions in arriving at the proper sentence" and in giving "undue weight and consideration to Appellant's prior record of arrests," in violation of the Due Process Clause of U.S. Const. amend. V.

FACTS

Defendant's appellant brief contains the following facts which the trial court recited at the sentencing hearing:

The evidence is undisputed that on April 29, 2017 Steven Lee was struck by a vehicle operated by Albert Abshire. Steven Lee died as a result of the impact from the vehicle. The evidence is further clear that Albert Abshire knew that he had hit something, whether an individual or something else, stopped his vehicle and noticed the damage; but did not return to the scene. Instead of returning to the scene and giving his identity and attempting to render aid, Abshire drove to his home in Rapides Parish, more than thirty (30) miles away, and attempted to hide his vehicle. The evidence is clear that Abshire was leaving the Paragon Casino at the time that the accident occurred. When contacted by the police Abshire admitted that he "hit something leaving the casino," but claimed that he did not know what he hit. Evidence has been submitted confirming that Abshire stopped at the Chevron Station and looked at the damage to his vehicle, which damage was serious, however, Abshire did not return to the scene and instead drove home.

The PSI contained additional information which is pertinent to this appeal. A woman who witnessed an accident near the Paragon Casino in Avoyelles Parish called 911 to request an ambulance. That woman told a detective from the Marksville Police Department (the MPD) that she saw the victim step into the road from a sidewalk where he was struck by an older model white Chevrolet pickup truck being driven by a white male. According to the woman, the victim was thrown into the air and parts of the truck fell onto the roadway, but the driver of the truck did not stop.

After receiving a phone call indicating that Abshire may have been involved in the accident, Major Eric Jacobs with the MPD reviewed video surveillance from the casino that showed a white truck leaving the casino in the direction of the accident around the time of the accident. The license plate belonged to Abshire. Officers went to Abshire's home where they found a white truck in a locked shed that appeared to be in the process of being repaired. After being fully advised of his Miranda rights, Abshire admitted to knowing that he "hit something," but he did not go back to see what had been struck with his vehicle. Based on that information, Abshire was arrested.

Approximately four days after the accident, a second woman advised the MPD that when she was at a Chevron station on the night of April 28, 2017, she saw a white male inspecting damage to the passenger side of a white Chevrolet or GMC truck. She recognized Abshire's picture as the man she saw at the gas station.

DISCUSSION

Assignment of Error Number Two

In his second assignment of error, Defendant argues that he should be resentenced because the "trial court erred in making improper and unsubstantiated assumptions in arriving at the proper sentence to impose" and in giving "undue weight and consideration to [his] prior record of arrests," in violation of his right to due process. We will discuss this assigned error first, because, if it has merit, Defendant's sentence will be vacated, and this case will be remanded to the trial court for resentencing, thus making Defendant's remaining assigned error moot.

In his motion to reconsider sentence, Defendant asserted that his sentence was "excessive, especially for the following reasons:"

1. The lack of a felony conviction;
2. The victim of the defendant's criminal conduct induced or facilitated its commission;
3. The defendant has at least partially compensated the victim of his criminal conduct for the damage or injury he sustained;
4. The defendant had no knowledge that he struck a person when he was driving in his lane of travel at night.

The evidence proffered at the hearing on Defendant's motion to reconsider sentence consisted of brief argument by defense counsel and a brief statement by Defendant. Our examination of that evidence reveals that the arguments presented were limited to the grounds asserted in Defendant's motion to reconsider.

In contrast, Defendant now argues on appeal that the trial court made assumptions based on Defendant's "incomplete arrest record." More specifically, Defendant claims that the trial court improperly assumed that Defendant "had received help from someone in making the charges go away." Defendant further posits that the trial court considered Defendant's "unadjudicated criminal conduct at face value without being provided a full factual basis for the conduct from which the judge could closely evaluate and carefully examine the weight of the evidence."

Under La.Code Crim.P. art. 881.1(E), the failure to make or timely file a motion to reconsider sentence or to include a specific ground for reconsideration precludes a defendant from raising an objection to the sentence or urging any ground not raised in the motion on appeal. See State v. Barling, 00-1241, 01-1591 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, writ denied , 01-838 (La. 2/1/02), 808 So.2d 331. In State v. Mims , 619 So.2d 1059, 1059-60 (La. 1993), the supreme court explained:

If the defendant does not allege any specific ground for excessiveness or present any argument or evidence not previously considered by the court at original sentencing, then the defendant does not lose the right to appeal the sentence; the defendant is simply relegated to having the appellate court consider the bare claim of excessiveness. Article 881.1 only precludes the defendant from presenting arguments to the court of appeal which were not presented to the trial court at a point in the proceedings when the trial court was in a position to correct the deficiency.

Given Defendant's failure to raise, in either his motion to reconsider or in the proffer he offered at the hearing on that motion, the issue of whether the trial court made improper and unsubstantiated assumptions in fashioning Defendant's sentence, we conclude that Defendant is barred from making those arguments on appeal. Nevertheless, we will consider Defendant's claim that his ten-year sentence is excessive in our discussion of his first assigned error.

Assignment of Error Number One

Defendant asserts that his ten-year sentence, which is the maximum penalty under La.R.S. 14:100(C)(2), is excessive as it amounts to "nothing more than cruel and unusual punishment." As previously noted, the failure to "include a specific ground upon which a motion to reconsider sentence may be based, ... shall preclude [ ] the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal." La.Code Crim.P. art. 881.1(E) ; see also Barling , 779 So.2d 1035. Accordingly, we will only review the issues raised in Defendants' appeal that can reasonably be viewed as being encompassed in his motion to reconsider sentence.

Both the United States and Louisiana constitutions guarantee that no person shall be subject to cruel and unusual punishment. U.S. Const. amend. VIII ; La. Const. art. I, § 20. A sentence is excessive when a reviewing court finds 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 measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering." State v. Barling , 00-1241, 00-1591, [01-1591] p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042, writ denied , 01-838 (La. 2/1/02), 808 So.2d 331. The trial court has broad sentencing discretion, and a sentence within statutory limits will not be set aside absent a manifest abuse of that discretion. State v. Etienne , 99-192 (La.App. 3 Cir. 10/13/99), 746 So.2d 124, writ denied , 00-165 (La.6/30/00), 765 So.2d 1067. However, sentences within the statutory sentencing range can be reviewed for constitutional excessiveness. State v. Sepulvado , 367 So.2d 762 (La. 1979).
In reviewing the defendant's sentences, the appellate court should consider the nature of the crime, the nature and background of the offender, and the sentences imposed for similar crimes. State v. Lisotta , 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57 (citing State v. Telsee , 425 So.2d 1251 (La. 1983) ), writ denied , 99-433 (La.6/25/99), 745 So.2d 1183. In State v. Smith , 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied , 03-562 (La. 5/30/03), 845 So.2d 1061, a panel of this court observed that:
While a comparison of sentences imposed for similar crimes may provide some insight, "it is well settled that sentences must be individualized to the particular offender and to the particular offense committed." State v. Batiste , 594 So.2d 1 (La.App. 1 Cir. 1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge "remains in the best position to assess the aggravating and mitigating circumstances presented by each case." State v. Cook , 95-2784 (La. 5/31/96), 674 So.2d 957, 958.

State v. Soileau , 13-772, pp. 3-4 (La.App. 3 Cir. 2/12/14), 153 So.3d 1008, 1011, writ denied , 14-452 (La. 9/26/14), 149 So.3d 261.

Louisiana Revised Statutes 14:100, the "Hit-and-Run driving," statute, sets out multiple penalty ranges based upon the facts and circumstances surrounding the offense. It provides:

C. (1)(a) Whoever commits the crime of hit-and-run driving where there is no death or serious bodily injury shall be fined not more than five hundred dollars or imprisoned for not more than six months, or both.
(b) Whoever commits the crime of hit-and-run driving where there is no death or serious bodily injury shall be fined not more than five hundred dollars, imprisoned for not less than ten days nor more than six months, or both when: (i) there is evidence that the vehicle operator consumed alcohol or used drugs or a controlled dangerous substance prior to the accident; (ii) the consumption of the alcohol, drugs, or a controlled dangerous substance contributed to the accident; and (iii) the driver failed to stop, give his identity, or render aid with the knowledge that his actions could affect an actual or potential present, past, or future criminal investigation or proceeding.
(2) Whoever commits the crime of hit-and-run driving, when death or serious bodily injury is a direct result of the accident and when the driver knew or should have known that death or serious bodily injury has occurred, shall be fined not more than five thousand dollars or imprisoned with or without hard labor for not more than ten years, or both.
(3) Whoever commits the crime of hit-and-run driving where all of the following conditions are met shall be imprisoned, with or without hard labor, for not less than five years nor more than twenty years:
(a) Death or serious bodily injury is a direct result of the accident.
(b) The driver knew or must have known that the vehicle he was operating was involved in an accident or that his operation of the vehicle was the direct cause of an accident.
(c) The driver had been previously convicted of any of the following:
(i) A violation of R.S. 14:98, or a law or an ordinance of any state or political subdivision prohibiting operation of any vehicle or means of transportation or conveyance while intoxicated, impaired, or while under the influence of alcohol, drugs, or any controlled dangerous substance on two or more occasions within ten years of this offense.
(ii) A violation of R.S. 14:32.1 -vehicular homicide.
(iii) A violation of R.S. 14:39.1 -vehicular negligent injuring.
(iv) A violation of R.S. 14:39.2 -first degree vehicular negligent injuring.

At the sentencing hearing, the trial court stated the following before imposing Defendant's sentence:

It is interesting to note that pursuant to R.S. 14:100C(3) a potential sentence of not less than five (5) years nor more than twenty (20) years is applicable when three (3) factors exist, those being that death or serious bodily injury is a direct result of the accident which occurred here; the driver knew or must have known that the vehicle he was operating was involved in an accident or that his operation of the vehicle was the direct cause of an accident which occurred here; and that the driver had been previously convicted of a violation of R.S. 14:98, that being DWI or certain other potential violations. However, in this case the Bill of Information did not so charge because the last DWI conviction was more than ten years ago.
However it was [ ] very close, it wasn't that far off. In preparation for this sentencing Mr. Abshire, this Court has reviewed the entire record of this proceeding, including the description of the incident that you gave during the Boykin Examination. I've reviewed the Pre-Sentence Investigation Report, a letter from the family of the victim; and this Court has performed an independent review of applicable law and jurisprudence.
....
... The evidence submitted in the Pre-Sentence Investigation Report confirms that Abshire is a skilled mechanic and auto body repair man having been self-employed for thirty-five (35) years. It is also interesting to note that when the police appeared at his home, the truck was located in a locked shed and appeared as though it was in the process of being repaired. This information was provided by Officer Brent Bordelon with the Alexandria Police Department.
Evidence has been submitted that since the date of the event, Abshire has not contacted the family and/or expressed any remorse. However, in his statement to the Department of Probation and Parole for the Pre-Sentence Investigation Report, Abshire stated, "I didn't know I hit anybody. My biggest mistake was I should have went back when I realized I hit something. I never would have dreamed I hit someone. Nobody prays for him more than I do. I would give anything in the world to change it, but I can't change it. I replay it over and over to try to figure out what happened. [ ]If given a prison sentence, would the Court consider work release so that I can send my mother some money."
It is also interesting to note that all parties involved in the Criminal Justice System, that being the Office of the District Attorney, the Sheriff's Office, and the Marksville Police Department believe that Abshire should be incarcerated, with most indicating that the incarceration should be for the maximum sentence. This request has also been made by the family of the victim. Knowing that maximum sentences are reserved for the worst offenders, this Court performed additional research in an effort to ascertain whether or not Abshire deserves a maximum sentence. Abshire certainly deserves a sentence of imprisonment.
In reviewing the criminal history of Albert Abshire attached to the Department of Probation and Parole Pre-Sentence Investigation Report, there are thirty (39) [sic] entries in the criminal history between the dates of 1985 and 2017. Five (5) of these entries are arrest for Driving While Intoxicated, two (2) in 1988, two (2) in 1998 and one (1) in 2008. Abshire pled guilty to DWI on three (3) separate occasions, once in 1988 and twice in 1998, however, all were treated as Misdemeanors. The other two DWI arrests reflect no disposition indicating that they simply went away. In fact, of the thirty-nine (39) entries[,] ten (10) reflect no disposition available and eleven (11) were dismissed. In other words, twenty-one (21) of the thirty-nine (39) entries indicate that no action was taken. This indicates to this Court that Abshire has some sort of influence somewhere.
The criminal history further reflects that Abshire was convicted in Los Angeles, California in 1996 of the crime of Infliction of Corporal Injury on Spouse or Co-Habitant and received a suspended sentence. Seven (7) other charges in California that came about at that time were dismissed.
Abshire also pled guilty in the Ninth Judicial District Court, Parish of Rapides, in 1999 to Criminal Damage to Property; was charged with a felony of Attempted Unauthorized Entry of an Inhabited Dwelling in 2012 but this was reduced to the misdemeanor offense of trespass where he pled guilty in October of 2013. Some of the charges dismissed were for allegations of Simple Assault; Telephone Harassment; Unauthorized Entry, which was reduced to Trespass; violation of Protective Order; Criminal Damage to Property; Remaining After Being Forbidden; and a few traffic offenses.
Presently pending against Abshire are charges of Disturbing the Peace by Intoxication and two (2) counts of Aggravated Assault with Trial scheduled in Rapides Parish on January 22, 2018; and also charges of Disturbing the Peace, Telephone Harassment, and Violation of a Protective Order scheduled for arraignment on January 22, 2018. Therefore, Abshire has a very substantial criminal history.
Also, the records of the Rapides Parish Clerk of Court Civil Department reflect several instances wherein women have filed and received Protective Orders with the most recent apparently being requested by a friend of Abshire's significant other with some very disturbing allegations. These filings - - - along with the mention of violation of Protective Orders against Abshire in his criminal history - - - clearly reflect a violent tendency.
In further preparation for this sentencing, this Court has reviewed the Sentencing Guidelines outlined in Article 894.1 of the Code of Criminal Procedure and after this review it is clear that during any period of a suspended sentence of probation Albert Abshire would commit another crime. Albert Abshire is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution. And any lessor sentence will deprecate the seriousness of his crime. Specifically, this Court finds that the following aggravating factors are present:
1) Albert Abshire's conduct during the commission of the offense ended up reflecting cruelty to the victim.
2) There was actual violence in the commission of the offense caused by the striking of Mr. Lee with the vehicle.
3) The offense committed potentially facilitated or concealed the commission of another offense when he attempted to hide the vehicle.
4) The offense resulted in significant loss, that being death to the victim.
5) Albert Abshire has persistently been involved in criminal activity.
In considering mitigating circumstances outlined in Code of Criminal Procedure Article 894.1 this Court finds none to be applicable.
....
Under the Hit and Run Statute, an individual's involvement in an accident does not give rise to the criminal charge. The criminal culpability of Albert Abshire is based on his individual actions or inactions after the accident. Based on Abshire's activities of that night, and based on his extensive criminal history it is clear that a maximum sentence is not grossly out of proportion to the severity of the crime and should not shock anyone's sense of justice.

Thereafter, Defendant was sentenced to ten years imprisonment at hard labor with credit for time served.

After allowing Defendant to proffer evidence at the hearing on his motion to reconsider sentence, the trial court remarked:

The Motion for Reconsideration has already been denied and must be denied.
Mr. Abshire, I will tell you that when I did my research to sentence you, when I started I had no intention of giving you a maximum sentence. But based on all of the information that was provided to me in the pre-sentence investigation report with your history and your past and the things that you had gotten out of, and what clearly appeared to me to be an indication that you hit something, knew you hit something and tried to hide from it.
....
... But there is nothing that's been shown to me that will make me change my mind at this point. ...

On appeal, Defendant argues that the trial court erred in failing to consider as mitigating factors, such as his attempts to facilitate insurance payments to the victim's family and his status as a first felony offender, when it sentenced him. Defendant insists that the victim's actions in causing the accident should have been considered as a mitigating factor, especially since cruelty to the victim and the pain and suffering of the victim were considered as aggravating factors. Defendant also stresses that he has repeatedly and consistently denied seeing the victim or knowing that he hit someone before the officer came to his home. Defendant makes particular reference to the proffer he made at the hearing on his motion to reconsider sentence, wherein he stated that he did not see the victim and would have stopped had he known that he had struck someone.

At sentencing, the trial court stated that no mitigating circumstances under La.Code Crim.P. art. 894.1 were applicable. The trial court also stated that one of the aggravating factors was that Defendant's conduct during the commission of the offense reflected cruelty to the victim. At the proffer hearing on the motion to reconsider, counsel for Defendant noted that Defendant partially compensated the victim's family for the criminal conduct by voluntarily admitting that he was at fault and by giving the insurance proceeds to the victim's family. In our estimation, the trial court's statement that no mitigating factors were present indicates that it did not take into account any compensation that Defendant may have given to the victim's family. Importantly, however, we note that the record lacks evidence of any such compensation having been provided by Defendant.

At sentencing, the trial court read from Defendant's statement contained in the PSI wherein he stated that he "didn't know [he] hit anybody." Nevertheless, its having found no mitigating factors indicates to this court that the trial court did not believe Defendant was unaware of having struck someone. The PSI

contains evidence that contradicts Defendant's claim. "A determination of credibility lies within the sound discretion of the trial court, and like all questions of fact, is entitled to great weight and will not be disturbed unless clearly contrary to the evidence." State v. Williams , 03-3514, p. 7 (La. 12/13/04), 893 So.2d 7, 12. Given the circumstances, we cannot say that the trial court abused its broad discretion in not giving credence to Defendant's assertion.

At sentencing, the trial court focused at length on Defendant's criminal history, which indeed does not include any felony convictions. Moreover, the trial court stated that the maximum sentence was warranted based on Defendant's activities of the night of the accident and his extensive criminal history. Standing alone, the trial court's failure to consider the aforementioned circumstances in mitigation is not dispositive of whether Defendant's sentence is excessive. Therefore, we will perform an excessive sentence analysis.

The first factor of Lisotta requires consideration of the nature of the offense. Louisiana Revised Statutes 14:100(C)(2) provides a penalty range of a fine of not more than five thousand dollars or ten years of imprisonment with or without hard labor or both for the crime of hit-and-run driving when death or serious bodily injury is a direct result of the accident and when the driver knew or should have known that death or serious bodily injury has occurred. The fact that the hit-and-run driving statute provides a harsher penalty range for hit-and-run offenses when death or serious bodily injury is a direct result of the accident and when the driver knew or should have known that death or serious bodily injury has occurred demonstrates the serious nature of the offense. In the instant case, a death did occur.

The second factor of Lisotta requires an analysis of the nature of the offender. At the time of the offense, Defendant was approximately fifty-four years old, he was divorced and has two children, and he had been self-employed as a skilled mechanic and automobile body repairman for thirty-five years. As noted above, at sentencing, the trial court reviewed Defendant's extensive criminal history. The conviction at issue is his first felony conviction, although unadjudicated criminal conduct indicates thirty-nine past arrests, several for DWI. At sentencing, the trial court noted that, when speaking with authorities regarding the accident, Defendant did not express remorse. Additionally, in the victim's family's letter to the trial judge, the family stated that, "[w]hile leaving the courtroom on November 13, 2017 [the Defendant] made comments toward the family that 'it was coming soon, it just so happened that it was me who killed him.' This showed a total[ ] lack of respect and arrogance on his part." However, in the "Offender's Statement" portion of the PSI, Defendant indicated that he was remorseful.

Sentences imposed for similar crimes are analyzed under the third factor of Lisotta . Before addressing this factor, we are mindful that "[m]aximum sentences are reserved for the most serious violations and the worst offenders." State v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225. At sentencing, the trial court referenced State v. Davenport , 07-254 (La.App. 3 Cir. 10/3/07), 967 So.2d 563 ; Williams , 893 So.2d 7 ; and State v. Raffray , 01-88 (La.App. 3 Cir. 6/6/01), 787 So.2d 606.

In Davenport , 967 So.2d 563, this court affirmed a sentence of five years of imprisonment at hard labor for the crime of hit-and-run driving after the defendant, a first-felony offender, struck and killed a pedestrian during foggy conditions. We noted that the sentencing court considered the fact that defendant searched for the victim after the accident but abandoned his efforts when he could not locate the victim, and thereafter failed to report the accident. We further noted that, hours later, the defendant turned himself in to the authorities after seeing a television segment about the accident.

In Williams , 893 So.2d 7, the supreme court held that a sentence of seven years of imprisonment at hard labor for hit-and-run driving was not constitutionally excessive. In that case, the defendant knew that he had caused a serious accident; one of the victims died as a result of the accident; the defendant had prior arrests for DWI, reckless driving, and driving at an excessive speed; the defendant expressed no remorse; and the probation and parole officer who prepared the PSI opposed any sentence less than the maximum allowed by law.

In Raffray , 787 So.2d 606, the defendant was a first-felony offender. In that case, the trial court gave lengthy reasons for sentencing; "there was abundant evidence for the court to consider alcohol consumption to be a factor"; "the record support[ed] the trial court's consideration that the defendant may have committed this offense in order to conceal the commission of another"; the defendant had an "extensive record of prior offenses that included multiple convictions for driving while intoxicated and a prior hit-and-run driving conviction"; four victims sustained serious injuries, including one who would never walk again; and "the defendant significantly benefitted from the plea agreement[.]" Id. at 610.

On appeal, Defendant directs this court's attention to State v. Fontenot , 51,072 (La.App. 2 Cir. 1/11/17), 211 So.3d 1236 ; State v. Wallace, 602 So.2d 296 (La.App. 2 Cir. 1992) ; and State v. Bowers , 42,390 (La.App. 2 Cir. 9/19/07), 965 So.2d 959, writ denied , 07-2055 (La. 3/14/08), 977 So.2d 929, arguing that lesser sentences have been imposed upon defendants with a prior misdemeanor record.

In Fontenot , 211 So.3d 1236, 1238, the second circuit held that a nine-year sentence at hard labor for hit-and-run driving was not constitutionally excessive in the following context:

[T]he state filed a bill of information charging Defendant with hit-and-run driving in that, on September 13, 2013, he operated a motor vehicle involved in or causing an accident, when a death was a direct result of the accident. The state alleged that Defendant knew or should have known that death or serious bodily injury had occurred and that he intentionally failed to stop his vehicle at the scene of the accident, to give his identity and to render reasonable aid. On January 15, 2014, Defendant pled guilty to the charge, and the state agreed that it would not file a bill charging him as a habitual offender. On February 10, 2015, the trial court sentenced Defendant to nine years at hard labor and to 30 days in lieu of paying court costs and stated that the sentences were to run concurrently. Defendant appealed, arguing that the sentence was excessive.
On appeal, this court determined that the trial court failed to consider any mitigating and/or contributory factors when determining Defendant's sentence and, therefore, did not comply with La. C. Cr. P. art. 894.1. State v. Fontenot , 49,835 (La. App. 2d Cir. 5/27/15), 166 So.3d 1215. Accordingly, this court vacated Defendant's sentence, ordered the trial court to conduct a presentence investigation ("PSI") and remanded for resentencing.

Thereafter, "[t]he trial court again sentenced Defendant to nine years at hard labor and to 30 days in parish jail in lieu of paying court costs," and the defendant again appealed, "arguing that his sentence [was] excessive." Id. The second circuit "amend[ed] Defendant's sentence to vacate the portion ordering jail time in default of payment of court costs and affirm[ed] his sentence as amended. Id.

In deciding to vacate the defendant's original sentence, the second circuit noted that because "no presentence investigation was done and the trial court's recitation of the facts and circumstances surrounding the accident are replete with speculation and conjecture." Fontenot , 166 So.3d at 1218. Upon affirming the nine-year sentence imposed by the trial court on remand, the second circuit observed that the PSI report upon which the trial court now relied "detail[ed] Defendant's extensive criminal history including charges of simple battery, domestic abuse battery, theft, possession of marijuana and a Schedule II CDS and various driving offenses." Fontenot , 211 So.3d at 1240.

In Wallace , 602 So.2d at 300, the second circuit affirmed a sentence of five years of imprisonment at hard labor for the crime of hit-and-run driving, the maximum penalty provided for by the statute in effect at that time, considering the defendant's lack of remorse, his "prior record, his use of alcohol, and the loss of life." In Bowers , 965 So.2d 959, the second circuit affirmed concurrent sentences of forty-seven years of imprisonment at hard labor for the offense of manslaughter and five years of imprisonment at hard labor for the offense of hit-and-run driving. The defendant was also a fourth-felony offender. The appellate court affirmed both sentences, but review was seemingly limited to the sentence for manslaughter.

After a thorough review of the Lisotta factors, we find no manifest abuse of the trial court's broad sentencing discretion in this case. Given Defendant's extensive criminal arrest history and the fact that someone died as a direct result of the subject accident, we conclude that Defendant's ten-year sentence is not excessive.

DECREE

For the foregoing reasons, Defendant's sentence is affirmed.

AFFIRMED.

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

      We note that the general comment to La.R.S. 14:100 cites Stalling v. State , 90 Tex.Cr.App. 310, 234 S.W. 914 (1921), for the proposition that "[t]he question as to whether or not a driver knew that he had struck a person, where the evidence is conflicting, is for the jury." We conclude that, in the instant matter, the issue of whether Defendant knew his truck had struck someone was a question of fact for the trial court, as factfinder, to decide.

      See La.R.S. 14:100(C)(2) (1989), which was subsequently amended by 1997 La. Acts No. 561, § 1.


source: Caselaw Access Project

author: PERRY, Judge.

license: Public Domain

text:
    Gerald R. WHITE, et ux. v. LOUISIANA DEPARTMENT OF TRANSPORTATION & DEVELOPMENT, et al.
    18-741
    Court of Appeal of Louisiana, Third Circuit.
    March 13, 2019
    Fred A. Pharis, Pharis Law Offices, 831 DeSoto Street, Alexandria, Louisiana 71301, COUNSEL FOR PLAINTIFFS/APPELLANTS: Gerald R. White and Charlotte White.
    Jerold Edward Knoll, The Knoll Law Firm, LLC, Post Office Box 426, Marksville, Louisiana 71351, COUNSEL FOR PLAINTIFFS/APPELLANTS: Gerald R. White and Charlotte White.
    Jeff Landry, Attorney General, Paula E. Miles, Assistant Attorney General, Louisiana Department of Justice, 900 Murray Street, Suite B-100B, Alexandria, Louisiana 71301, COUNSEL FOR DEFENDANT/APPELLEE: State of Louisiana, Through the Department of Transportation and Development.
    Court composed of Elizabeth A. Pickett, D. Kent Savoie, and Jonathan W. Perry, Judges.
   PERRY, Judge.

Plaintiffs, Gerald and Charlotte White, appeal the judgment of the trial court granting the motion for summary judgment filed by Defendant, State of Louisiana, Through the Department of Transportation and Development (DOTD), and dismissing Plaintiffs' claims with prejudice. For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

This case was previously before this court on an appeal from a summary judgment as White v. Louisiana Department of Transportation & Development , 17-629, pp. 2-3 (La.App. 3 Cir. 12/6/17), 258 So.3d 11, 13, wherein this court summarized the facts and procedural history to that point, as follows:

On August 24, 2014, [Plaintiff, Gerald] White was driving in the eastbound lane of Highway 496 in Alexandria, Louisiana during a violent thunderstorm. As Mr. White passed the [home of Garold and Mickey Mangun], a pecan tree located in the right-of-way across the street and maintained by DOTD, fell on Mr. White's truck, pinning him inside the truck. Mr. White had to be extracted from the truck, and he sustained injuries.
Mr. White brought suit for general and special damages, including physical pain and suffering, mental anguish and distress, permanent injuries, medical expenses, lost wages, and any other damages incurred from the accident. Mr. White's wife, Charlotte White, brought a claim for loss of consortium. Mr. and Mrs. White (hereafter "the Whites") filed suit against the City of Alexandria (hereafter "the City"), DOTD, the Manguns and their insurers, Church Mutual and Safeco, alleging negligence for failure to maintain, inspect, and remove the damaged pecan tree.
The City filed an answer to the petition, pleading the affirmative defense of comparative fault. The Manguns answered that they had no actual or constructive notice of the defective tree because they "rarely, if ever" went onto the property where the tree was located. Furthermore, the defect on the tree was only visible from the side facing opposite of the roadway and away from the Manguns' home.
The City filed a motion for summary judgment asserting that DOTD is responsible for maintaining the right-of-ways on State highways and that the City had no notice of the defective pecan tree. The trial court granted the City's motion for summary judgment.
The Manguns and Church Mutual filed a motion for summary judgment. Thereafter, Safeco also filed a motion for summary judgment. The Manguns asserted that they had no knowledge of the tree's defect because they neither maintained the tree nor did they mow the right-of-way. During his deposition, DOTD's expert arborist, Mr. Malcolm Guidry, described the tree's canopy as healthy. The Whites' expert arborist, Mr. Robert Thibodeaux, testified that he saw signs of the tree's failure through bark twists and discoloration, as well as a co-dominant trunk visible on pre-accident photographs of the tree. However, Mr. Thibodeaux noted that these signs were not signs that he would expect a layperson to recognize as signs of the tree's failure. DOTD opposed the summary judgment, arguing that the Manguns did not exercise reasonable care through their failure to maintain, inspect, and remedy the defective tree. The trial court granted summary judgment in favor of the Manguns, Church Mutual, and Safeco. The Whites did not appeal the summary judgment. DOTD [appealed], contending that there [was] a genuine issue of material fact as to whether the Manguns had notice of the defective tree.

This court dismissed DOTD's appeal, finding the trial court's summary judgment became final when the adverse judgment was not appealed by Plaintiffs.

DOTD filed a motion for summary judgment on May 16, 2018, from which stems the issue presently before this court. In the motion, DOTD asserted there is no genuine issue of material fact, that Plaintiffs will be unable to meet their burden of proof at trial of this matter, and DOTD is entitled to judgment as a matter of law. DOTD argued it cannot be held liable because it did not have actual or constructive notice of the defective pecan tree. In support of its motion, DOTD submitted: (1) the affidavit of its expert arborist, Malcolm Guidry, stating the open rot cavity in the tree that fell on Mr. White's vehicle was a hidden defect not visible from the highway; (2) the affidavit of Kerry Lemoine, a DOTD Maintenance Supervisor for Rapides Parish, denying he observed any problems with the tree while performing bi-weekly inspections along Louisiana Highway 496; and (3) excerpts from the deposition of Plaintiffs' expert arborist, Robert Thibodeaux. DOTD characterized Mr. Thibodeaux's testimony as being that the healthy side of the tree faced the road and, even if the tree showed signs of defect facing the road, it would not be something you would expect a lay person to recognize. DOTD also cited case law for the proposition that it owed no duty to motorists traveling on state highways to check all sides of trees and check for damage. See Caskey v. Merrick Const. Co., Inc. , 41,662 (La.App. 2 Cir. 1/24/07), 949 So.2d 560, writ denied , 07-576 (La. 5/4/07), 956 So.2d 619. DOTD supplemented and amended its motion, asserting an additional affidavit of Donald J. Gauthier, Second Assistant Fire Chief (Retired) of the Alexandria Fire Department, declaring on the day of the accident the tree appeared to be a live tree with thick green foliage.

In opposition to DOTD's motion, Plaintiffs submitted: (1) the affidavit of Mr. White, stating he was driving less than the speed limit and within his normal lane of travel when the tree fell; (2) excerpts from the deposition of its expert arborist, Robert Thibodeaux; and (3) the curriculum vitae of and photographs taken or used by Mr. Thibodeaux in forming his opinions relating to the defective tree. Plaintiffs characterize Mr. Thibodeaux's testimony as being the tree exhibited signs of disease visible to the road which DOTD should have seen as early as June 2013, and DOTD should have removed the tree before it fell, injuring Mr. White.

The matter proceeded to hearing on June 18, 2018. Following argument, the trial court ruled as follows:

Based on the argument today, DOTD's duty is to do a windshield inspection, and the facts indicate that a windshield inspection were [sic] done biweekly by DOTD. The Plaintiff[s'] expert testimony is that the tree on the side that would face traveling, the traffic, was basically the healthy side of the tree. Apparently the defect, if there was any, was on the opposite side which would not be in the sight-line of DOTD.
So the Motion for Summary Judgment is granted.

Plaintiffs appeal, contending the trial court erred when it granted DOTD's motion for summary judgment. Plaintiffs urge there is a genuine issue of material fact relating to whether DOTD knew or should have known of the defective tree before it fell, injuring Mr. White, and, thus, summary judgment was improper. We agree.

DISCUSSION

Appellate courts review summary judgments de novo using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate, i.e., whether there is any genuine issue of material fact and whether the movant is entitled to judgment as a matter of law. Samaha v. Rau , 07-1726 (La. 2/26/08), 977 So.2d 880. On a motion for summary judgment, the mover bears the burden of proof; however, if the mover will not bear the burden of proof at trial on the issue before the court on the motion for summary judgment, the mover's burden on the motion does not require that all essential elements of the adverse party's claim, action, or defense, be negated. Instead, the mover must point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La.Code Civ.P. art. 966(D)(1).

In order to reverse the trial court's decision, this court would have to find on de novo review that the record reveals a genuine issue of material fact which precludes summary judgment as a matter of law. A fact, for summary judgment purposes, "is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute." Hines v. Garrett , 04-806, p. 1 (La. 6/25/04), 876 So.2d 764, 765 (per curiam). An issue, for summary judgment purposes, is genuine if "reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate." Id. at 765-66.

To recover damages from DOTD, Plaintiffs must prove: (1) the tree was in the care, custody, and control of DOTD; (2) the tree was defective in that it posed an unreasonable risk of harm; (3) DOTD had actual or constructive notice of the defect and failed to remedy the defect within a reasonable time; and (4) causation. Sudduth v. State, Dep't Trans. & Dev. , 619 So.2d 618 (La.App. 3 Cir.), writ denied , 629 So.2d 349 (La.1993).

In the present case, DOTD does not dispute the tree was in its custody. It does dispute it had actual or constructive notice the tree was defective.

"Constructive notice" is defined as "the existence of facts which infer actual knowledge." La.R.S. 9:2800(D). Constructive notice may be shown by facts demonstrating that the defective condition existed for such a period of time that it would have been discovered and remedied had the public body exercised reasonable care. Laird v. City of Oakdale , 04-767 (La.App. 3 Cir. 11/10/04), 886 So.2d 1262.

Our review of the record in this matter reveals Mr. Thibodeaux testified in his deposition that the tree, as shown by Google Earth Street View photographs taken of the right-of-way, dated June 2013, shows deterioration by way of dead limbs, discolored and twisted bark, and other obvious signs. According to Mr. Thibodeaux, that deterioration would have been exacerbated in the thirteen months between the time of the Google Earth photos, June 2013, and the time of the accident, August 2014. It is his expert opinion that a DOTD inspector should have seen the signs of deterioration and DOTD should have removed the defective tree prior to Mr. White's accident.

The trial court's oral reasons indicate it accepted DOTD's characterization of Mr. Thibodeaux's testimony-the healthy side of the tree faced the road-over that of Plaintiffs-the tree exhibited signs of disease visible to the road. However, "the judge's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. All doubts should be resolved in the non-moving party's favor." Hines , 876 So.2d at 765.

The expert arborists, Mr. Guidry for DOTD and Mr. Thibodeaux for Plaintiffs, disagree regarding whether DOTD knew or should have known the tree was defective, the resolution of which requires the fact-finder to weigh evidence. As there is clearly conflicting expert evidence, a genuine issue of material fact exists in this case as to the issue of notice, and summary judgment was inappropriate. This must go to the trier of fact and must not be disposed of via summary judgment.

DISPOSITION

The judgment of the trial court is reversed, and the matter is remanded for further proceedings. Costs of this appeal are assessed to Defendant, State of Louisiana, Through the Department of Transportation and Development, in accordance with La.R.S. 13:5112(A), said appellate costs amounting to $ 1,889.50.

REVERSED AND REMANDED.

      In addition, this court ruled DOTD shall not reference the Manguns in any allocation of fault at trial, in conformity with La.Code Civ.P. art. 966(G).


text:
    Tasha Tolar CARRIERE and Daniel Bihm Marcantel, et al. v. UNION PACIFIC RAILROAD COMPANY, et al.
    18-914
    Court of Appeal of Louisiana, Third Circuit.
    March 13, 2019
   William H. Howard, III, Alissa A. Allison, Laura E. Carlisle, Kathlyn G. Perez, Baker Donelson Bearman Caldwell & Berkowitz, P.C., 201 St. Charles Avenue, Suite 3600, New Orleans, LA 70170, (504) 566-5200, COUNSEL FOR DEFENDANT/APPLICANT: Union Pacific Railroad Company

H. Alston Johnson, III, Steven J. Levine, Paul LeBlanc, John B. Shortess, Phelps Dunbar LLP, II City Plaza, 400 Convention Street, Suite 1100, Baton Rouge, LA 70821, (225) 346-0285, COUNSEL FOR DEFENDANT/APPLICANT: Union Pacific Railroad Company

Antonio M. Clayton, Clayton, Fruge & Ward, 3741 LA Highway 1 South, Port Allen, LA 70767, (225) 344-7000, COUNSEL FOR DEFENDANT APPLICANT: Union Pacific Railroad Company

Elena A. Pecoraro, Grant F. Freeman, Anna M. Grand, Pecoraro Law, 95 Woods Crossing, Suite 100, Lafayette, LA 70508, (337) 266-2233, COUNSEL FOR DEFENDANT/APPLICANT: Union Pacific Railroad Company

Charles T. Cravins, Frank P. Trosclair, Jr., Cravins Trosclair, P. O. Drawer 1149, Opelousas, LA 70571, (337) 948-3007, COUNSEL FOR PLAINTIFFS/RESPONDENTS: John Vallian, et al., Jody White, et al.

David Wilson, Mark Sparks, Provost Umphrey Law Firm, L.L.P., P. O. Box 4905, Beaumont, TX 77704, (409) 203-5030, COUNSEL FOR PLAINTIFF/RESPONDENT: Melvin Portier, et al.

James Gates, Morrow, Gates & Morrow, LLC, P. O. Drawer 219, Opelousas, LA 70571, (337) 942-6529, COUNSEL FOR PLAINTIFFS/RESPONDENTS: Lucille Brown, et al., James Brown

D. Blayne Honeycutt, Colt J. Fore, Fayard & Honeycutt, 519 Florida Boulevard SW, Denham Springs, LA 70726, (225) 664-0304, COUNSEL FOR PLAINTIFFS/RESPONDENTS: Daniel Bihm Marcantel, et al., David Andrus, et al., Andree Nicole Shakesnider, et al., John Clifton Goodwin, Sr., Elsie Goodwin, Ronald Goodwin, Tasha Tolar Carriere, et al., Constance Jones, et al., Ivy Thibodeaux, Jr., Joshua Adams, et al., Mary Ann Goodwin, Joseph Goodwin, III, Sherry N. Fruge, et al., Wilfred Charles

Travis J. Turner, Turner Law Firm, 413 West Main Street, Gonzales, LA 70737, (225) 644-2229, COUNSEL FOR PLAINTIFFS/RESPONDENTS: Sherry N. Fruge, et al., Constance Jones, et al., Joshua Adams, et al., Andree Nicole Shakesnider, et al., Allen Guillory, Sr., et al.

Peter F. Caviness, Falgoust, Caviness and Bienvenu, LLP, 505 South Court Street, Opelousas, LA 70571, (337) 942-5812, COUNSEL FOR PLAINTIFFS/RESPONDENTS: Chad A. Latiolais, et al., Leon Keith Latiolais, et ux.

James Benton, III, Attorney at Law, 10124 Jefferson Highway, Baton Rouge, LA 70809, (337) 302-2402, COUNSEL FOR PLAINTIFF/RESPONDENT: John Richard, Jr., et al.

Stephanie E. Robin, Moore, Thompson & Lee, 6513 Perkins Road, Baton Rouge, LA 70808, (225) 766-1100, COUNSEL FOR PLAINTIFFS/RESPONDENT: Ronald Goowdin, Joseph Goodwin, III

Alfred P. Boudreaux, Pavy & Bouderaux, 116 West Bellevue Street, Opelousas, La 70570, (337) 942-3466, COUNSEL FOR PLAINTIFFS/RESPONDENTS: Karen Agnes Frank West, et al., Steven West, Jr., Ralph Courville, et al.

Walter Clayton Dumas, Dumas & Associates Law Corporation, P. O. Box 1366, Baton Rouge, LA 70821-1366, (225) 383-4701, COUNSEL FOR PLAINTIFFS/RESPONDENTS: Constance Jones, et al., Sherry N. Fruge, et al., Allen Guillory, Sr., et al., Andree Nicole Shakesnider, et al., Joshua Adams, et al.

Donald L. Mayeux, Attorney at Law, P.O. Drawer 1460, Eunice, LA 70535, (337) 457-9610, COUNSEL FOR PLAINTIFF/RESPONDENT: Laura Colomb, et al.

Vyrona Marie Wiltz, Attorney at Law, P. O. Box 216, Krotz Springs, LA 70750-0000, (337) 566-3447, COUNSEL FOR PLAINTIFF/RESPONDENT: Joseph Papillion

Anna C. Simmons, Diane Mayo, Attorney at Law, 943 N. Court Street, Opelousas, LA 70570, (337) 942-3141, COUNSEL FOR PLAINTIFF/RESPONDENT: Ervin Savoy, et al.

LaDonte A. Murphy, 1728 Oak Leaf Boulevard, Opelousas, LA 70570, (337) 942-7070, COUNSEL FOR PLAINTIFFS/RESPONDENTS: Jawill Murphy, et al., Wallace Frank, Jr., et al.

Chad P. Pitre, Attorney at Law, 111 North Court Street, Opelousas, LA 70570, (337) 942-8587, COUNSEL FOR PLAINTIFF/RESPONDENT: Southwest Fee and Farm Supply, Inc.

John M. Morrow, Jr., Jim Gates, Morow, Gates & Morrow, LLC, P. O. Drawer 219, Opelousas, LA 70571, (337) 942-6529, COUNSEL FOR PLAINTIFFS/RESPONDENTS: Lucille Brown, et al., James Brown

Michael J. Vallan, Attorney at Law, 6090 De Anne Marie Drive, Zachary, LA 70791, (225) 326-6000, COUNSEL FOR PLAINTIFF/RESPONDENT: Robert Lee Davis, et al.

Timmy J. Fontenot, Attorney at Law, P. O. Box 68, Mamou, LA 70554, (337) 468-4444, COUNSEL FOR PLAINTIFFS/RESPONDENTS: David Andrus, et al., Tasha Tolar Carriere, et al., Daniel Bihm Marcantel, et al.

Edmond D. Jordan, Jordan Law Group, 385 South 11th Street, Baton Rouge, LA 70802, (225) 590-5957, COUNSEL FOR PLAINTIFF/RESPONDENT: Anna Guillory, et al.

Court composed of, Sylvia R. Cooks, Shannon J. Gremillion, and D. Kent Savoie, Judges.

GREMILLION, Judge.

Defendant/Applicant, Union Pacific Railroad Company (Union Pacific), seeks supervisory writs from a Per Curiam Order signed October 10, 2018, by the judges of the four divisions of the Twenty-Seventh Judicial District Court, Parish of St. Landry. The Per Curiam Order required Union Pacific to deposit an additional $ 300,000.00 with the court for the payment of outstanding Special Master fees and costs. For the following reasons, we deny the writ.

FACTUAL AND PROCEDURAL BACKGROUND

This case has been before this court on three prior writ applications in docket numbers 16-616, 17-1048, and 18-272. We have previously summarized the pertinent facts:

This case arose out of a train derailment which occurred near the town of Lawtell, Louisiana, on August 4, 2013. The derailed train spilled hazardous chemicals into the area and the governor subsequently declared the area a disaster area. As a result of the accident, thirty-one separate lawsuits were filed against Relator in all four of the divisions of the Twenty-Seventh Judicial District Court, and some of the lawsuits include hundreds of individual Plaintiffs. There are slightly more than 1000 Plaintiffs involved in the litigation, and they all allege that the train derailment caused them some degree of physical or emotional harm and inconvenience. The cases were removed to federal court, but they were later remanded to state court based on the stipulation that no individual plaintiff's claim is worth $ 50,000.00.
After the cases were remanded, the parties agreed to bifurcate the matter into a liability phase and a causation/damages phase. The cases were consolidated for the liability phase of the litigation, and Relator stipulated to liability. However, Relator contests the issues of causation and damages, and no consolidation has occurred in the causation/damages phase of the litigation. Instead, via the informal consent of the parties, each individual plaintiff's claim has been severed for the purposes of trial. Since June 2016, dozens of separate trials have been held to address causation and damages issues. These individual trials have been conducted by a court-appointed special master, Kenneth W. DeJean, who prepares a report and recommendation regarding the claims of each individual plaintiff.

This writ application involves thirty of the lawsuits. On May 18, 2017, the four judges of the Twenty-Seventh Judicial District Court issued a Per Curiam Order which stated that effective May 1, 2017, all Special Master fees were to be paid by Union Pacific. On May 18, 2017, a second Per Curiam Order was issued which stated, among other things, that "the trial costs of the court reporter or other court personnel" would "be borne equally by the parties until such time as there has been a judgment adopting or modifying the Report and Recommendation of the Special Master on costs by the District Judge of the particular case."

Union Pacific filed a motion to vacate those two Per Curiam Orders. As a result of that motion, the court amended the Per Curiam Order on June 13, 2017. The amended order stated that:

Effective June 1, 2017, the Court orders that Union Pacific Railroad is to advance the Special Master costs and fees with an initial deposit of $ 30,000.00 due on or before June 30, 2017, and further, additional deposits are to be made as requested by the Court with the allocation of final costs and fees of the Special Master to be decided in the Reports and Recommendations of the Special Master and subject to review by the Court or on appeal or finality of judgment.

On September 11, 2017, the four judges signed a Per Curiam Order requiring Union Pacific to deposit an additional $ 40,000.00. On March 5, 2018, another Per Curiam Order issued requiring Union Pacific to deposit another $ 40,000.00. In 18-272, Union Pacific filed a writ application with regard to the March 5, 2018 order. This court did not reach the merits of that writ application and denied it, finding that the errors alleged therein were not properly before the court since they were not first presented to the trial court. Carriere v. Union Pacific Railroad Company , 18-272 (La.App. 3 Cir. 4/30/18) (unpublished writ decision), writ denied , 18-895 (La. 9/28/18), 252 So.3d 934.

On October 10, 2018, a Per Curiam Order was signed that stated:

In connection with the above captioned matters, the 27th Judicial District Court issued a Per Curiam on the 18th day of May, 2017 ordering that all Special Master fees and costs were to be paid by the defendant, Union Pacific Railroad Company.
Presently, the Court has on deposit in the Lawtell Special Master Fund the sum of $ 5,014.29. The Court has substantial expenses to pay, including court reporter fees of $ 10,084.60 as well as the Special Master invoices incurred for July, 2017 through September, 2018 in the sum of $ 219,783.52. Additionally, trials are ongoing and the additional deposit is required to complete this calendar year; therefor, considering the outstanding deficiency;
IT IS HEREBY ORDERED that the defendant, Union Pacific Railroad Company, deposit an additional $ 300,000.00 with the Court for the payment of the outstanding Special Master fees and costs.

Union Pacific filed an ex parte motion to vacate that order. The motion was denied by order signed on November 5, 2018. That same day, Union Pacific filed its notice of intent to apply for supervisory writs, and the trial court set a return date of November 15, 2018.

Union Pacific then filed this writ application in accordance with the trial court's return date. We have received two separate oppositions. One was filed on behalf of the Plaintiffs in trial court docket numbers 14-D-3470-Div. D (the Jody White set of Plaintiffs), 14-D-3472-Div. A (the Melvin Portier set of Plaintiffs), and 14-C-3366-Div. D (the Leroy Brown set of Plaintiffs) (hereinafter collectively referred to as the White, Portier, and Brown Plaintiffs). The second opposition was filed on behalf of the following sets of plaintiffs: Tasha Carriere; David Andrus; Joshua L. Adams; Sherry N. Fruge; Constance Jones; Andree Nicole Shakesnider; Allen Guillory, Sr.; Wilfred Goodwin; Elsie Goodwin; John Clifford Goodwin; Joseph Goodwin, III; Mary Ann Goodwin; Ronald Goodwin; and Ivy Thibodeaux, Jr. (hereinafter referred to as the Carriere Plaintiffs).

The individual trials conducted by the Special Master began on June 26, 2017, and continued through October 26, 2018. The weekly schedule of trials "will continue generally into the foreseeable future, until each of the more than 1,000 individual plaintiffs' claims are tried." The first six appeals have recently been lodged in this court under docket numbers 18-901, 18-902, 18-903, 18-904, 18-905, and 18-906. In those six cases, the trial court has approved the recommendations of the Special Master awarding damages to particular plaintiffs.

Union Pacific asks this court to set aside the October 10, 2018 Order as premature because it taxes costs before rendition of a final judgment and because it is in violation of La.R.S. 13:4165 and La.R.S. 13:961. Union Pacific also asks that this court issue an order to the district court and/or the Special Master to refund the $ 300,000.00.

Union Pacific asks for expedited consideration of this writ application, alleging that such consideration is warranted "because of the significant prejudice the challenged provisions of the October 10, 2018 Order impose upon Union Pacific, along with its patent illegality when measured against the plain language of Louisiana statutory law." We note that Union Pacific has not complied with Uniform Rules-Courts of Appeal, Rules 4-4(B) and 4-5(C)(12), which require that requests for expedited consideration be specially marked on the cover sheet and that the application contain a specific statement of the grounds setting forth the justification for the request as well as a specific date by which a ruling is sought. Nonetheless, we find that expedited consideration is warranted given the number of cases involved, the trials that are occurring or will soon occur, and the pending appeals.

SUPERVISORY RELIEF

The denial of a motion to vacate is an interlocutory order. Donnie Derouen Electric Service v. McKay , 406 So.2d 734 (La.App. 3 Cir. 1981). "Ordinarily, an application for supervisory writ is the appropriate vehicle for the review of an interlocutory judgment." McGinn v. Crescent City Connection Bridge Auth. , 15-165, p. 4 (La.App. 4 Cir. 7/22/15), 174 So.3d 145, 148.

The Plaintiffs contend that this writ application is untimely since the order that Union Pacific is really contesting is the one issued on June 13, 2017. The Plaintiffs contend that the motion to vacate filed by Union Pacific with regard to the October 10, 2018 Order "does nothing to cure the fact that Union Pacific failed to timely raise the issues of which it complains in June 2017, when the true ruling at issue was rendered."

We find the writ application timely. The October 10, 2018 Order differs from the prior orders because it includes the fees of the court reporter in the amount to be paid by Union Pacific, even though prior orders stated that the costs of the court reporter and other court personal would be borne equally by the parties until there was a judgment adopting or modifying the recommendation of the special master. The court reporters are working with the Special Master when the individual trials are conducted. The May 18, 2017 Order provided that the court reporters' fees would be borne equally by the parties until a final judgment was issued. But that order was amended, and the amended order did not address the fees of the court reporters. Thereafter, the first order specifically to address the court reporters' fees was the October 10, 2018 Order. We find that, much like in Lafferty v. Allstate Insurance Co. , 36,119, 36,155, p. 3 (La.App. 2 Cir. 2/28/02), 806 So.2d 1000, 1003, writ denied , 02-718 (La. 3/22/02), 811 So.2d 938, the October 10 Order "effectively supplanted" the previous order so that this writ is timely.

Furthermore, this court stated that it did not reach the merits of the prior writ application because Union Pacific did not first raise the issues in the trial court. Union Pacific has now raised the issues in the trial court in the motion to vacate.

An order granting a motion for security for costs is an interlocutory judgment. Johnson v. Kerry Brown, LLC , 06-925 (La.App. 5 Cir. 3/13/07), 956 So.2d 3. The per curiam orders in this case are similar to an order requiring security for costs and are interlocutory because they do not address the merits of the claims. La.Code Civ.P. art. 1841. An interlocutory ruling is "subject to change or revision at any time prior to final judgment on the matter." Kilber v. PNK (Lake Charles), LLC , 16-173, p. 6 (La.App. 3 Cir. 9/28/16), 201 So.3d 943, 947. In this instance, the trial court did change the substance of the prior per curiam orders. Union Pacific's failure to seek supervisory relief from the first ruling is of no moment because it has been changed, and a new order has been issued. See Regions Bank v. Weber , 10-1169 (La.App. 4 Cir. 12/15/10), 53 So.3d 1284.

COURT COSTS

"The discretion of the trial court to assess court costs is vast[,] and is not subject to reversal unless there is an abuse of discretion." Farrar v. Whaley , 16-790, p. 19 (La.App. 3 Cir. 2/1/17), 211 So.3d 449, 461, writ denied , 17-409 (La. 4/13/17), 218 So.3d 626. Union Pacific argues that it is entitled to a de novo review because it is alleging errors of law in the trial court's application of the relevant statutes. Alexander v. Menard , 15-910 (La.App. 3 Cir. 9/28/15), 215 So.3d 766. If the trial court incorrectly applies an applicable statute, it is a legal error. Platinum City, L.L.C. v. Boudreaux , 11-559 (La.App. 3 Cir. 11/23/11), 81 So.3d 780. "Errors of law are reviewed de novo." Fontenot v. Town of Mamou , 18-301, p. 3 (La.App. 3 Cir. 12/19/18), 262 So.3d 904.

The Special Master was initially appointed to oversee the liability phase of this litigation. When that phase was concluded by Union Pacific's stipulation that it was solely liable for the train derailment, the trial court re-appointed the Special Master. In the liability phase, the Plaintiffs and Union Pacific paid the Special Master in advance of the judgment, with each side bearing fifty percent of the fees. But when the damages phase began, the trial court ordered Union Pacific to pay one hundred percent of the Special Master's compensation and issued a series of Per Curiam Orders requiring Union Pacific to deposit money with the court to pay the Special Master.

Louisiana Revised Statutes 13:4165 provides for the appointment, duties, and compensation of special masters. According to the statute, the compensation "shall be reasonable, fixed by the court as limited by Subsection A ..., and taxed as costs of court." La.R.S. 13:4165(D). Louisiana Code of Civil Procedure Article 1920 states that "[u]nless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause. Except as otherwise provided by law, the court may render any judgment for costs, or any part thereof, against any party, as it may consider equitable."

"The default rule is that the party cast in judgment is liable for all costs." Davis v. State ex rel. DOTD , 11-1386, p. 2 (La.App. 3 Cir. 4/11/12), 87 So.3d 396, 397. The jurisprudence recognizes that " 'in the absence of some reason in equity or otherwise to control, costs generally follow the final judgment in favor of the prevailing party.' " Johnson v. Marshall , 202 So.2d 465, 469 (La.App. 1 Cir.), writ refused , 251 La. 217, 203 So.2d 555 (La.1967), quoting Connolly v. Commercial National Bank in Shreveport , 89 F.Supp. 976, 978 (W.D.La. 1950). This court has also held that "[t]he fixing of costs should not be determined prior to final adjudication of the suit." Savoy v. Doe , 315 So.2d 875, 876 (La.App. 3 Cir. 1975).

Louisiana Revised Statutes 13:4522 (footnote added) states, in part, that "[t]he defendant before pleading in all cases may by motion demand and require the plaintiff or intervenor to give security for the cost in such case[.]" In McGlynn & Glisson v. Donahue , 17-183 (La.App. 1 Cir. 5/18/17), 2017 WL 2189806 (unpublished writ decision), the court recognized that neither La.R.S. 13:1215 nor La.R.S. 13:4522 requires the defendant to post security for costs, reversed the trial court's ruling, and denied the plaintiff's ex parte motion seeking to have the defendant post security for costs. Based on this, Union Pacific argues that the Twenty-Seventh Judicial District Court Judges had no authority to order it, as a non-consenting defendant, to pay the compensation of the Special Master before final judgments taxing that as costs have been rendered.

The Carriere Plaintiffs argue that because Union Pacific has been held to be solely at fault in causing this accident, it is solely responsible for the costs. Union Pacific counters that the stipulation was to liability only with a reservation of its right to contest the existence of any damages caused by the derailment. Accordingly, Union Pacific argues that if there are no damages, it should not have to pay costs.

In Donavan v. Jones , 26,883 (La.App. 2 Cir. 6/21/95), 658 So.2d 755, writs denied , 95-1786, 95-1891 (La. 11/3/95), 661 So.2d 1379, the trial court allocated forty percent of fault to one defendant, ten percent to the second defendant, twenty-five percent to the third defendant, and twenty-five percent to the plaintiff. It then assessed fifty percent of the costs to the first defendant and fifty percent to the second defendant. The second circuit upheld the allocation of fault but reversed the trial court's assessment of costs and re-assessed the costs in the same division as the allocation of fault. The second circuit found that since the trial court provided no explanation for the assessment of fault, there was "no reason to deviate from the usual allocation of costs." Id. at 768, citing Broussard v. Delchamps, Inc. , 571 So.2d 855 (La.App. 3 Cir. 1990), writ denied , 575 So.2d 370 (La.1991).

But, in Davis , 87 So.3d 396, a panel of this court found that the trial court acted within its discretion when it assessed one hundred percent of the costs to the DOTD even though the DOTD had been found to be only twenty-five percent at fault in the accident. There were three consolidated suits arising out of the accident, and the driver-plaintiff was killed in the accident. The parents of the guest passenger filed a motion to have one hundred percent of the costs assessed to the DOTD, but the DOTD argued that it should only be assessed with twenty-five percent of the costs. The trial court, in assessing one hundred percent of the costs to the DOTD, reasoned that no percentage of fault could have been apportioned to the guest passenger and that the trial court declined to assess costs to the surviving children of the driver. That ruling was affirmed by this court, which noted that "[t]he trial court gave a reasoned explanation for its deviation from the default apportionment." Id. at 399.

In Davis , this court discussed Donavan and another case from the second circuit, Starr v. State ex rel. DOTD , 46,226, 46,227 (La.App. 2 Cir. 6/17/11), 70 So.3d 128, writs denied , 11-1835 (La. 10/21/11), 73 So.3d 386, 11-1952 (La. 10/21/11), 73 So.3d 387, 11-1625 (La. 10/21/11), 73 So.3d 388. In Starr , where the DOTD was the only defendant, the second circuit affirmed the assessment of one hundred percent of the costs to the DOTD even though it had been found to be only twenty-four percent at fault. The driver in Starr , one of several plaintiffs, was the only plaintiff to be apportioned any fault.

Union Pacific asserts that there has been no record concerning what services have been rendered and paid for and that by the time a final judgment is rendered, Union Pacific will have paid all of the costs even where the plaintiff may not recover any damages. In that case, Union Pacific argues that it will have no avenue to recover the funds except to bring a suit against the Special Master and individual official court reporters. Union Pacific asserts that this not a viable remedy.

The case at bar is different from all of these cases because damages were found in all the cited cases while no damages have yet been proven in these Union Pacific derailment cases. In Fair v. Empire Fire & Marine Insurance Company , 579 So.2d 1105 (La.App. 2 Cir. 1991), the second circuit found that the trial court did not abuse its discretion in assessing one hundred percent of the costs to the plaintiff where the jury found the defendant to be at fault in causing an accident but also found that the impact did not cause any damages. The court noted that under La.Code Civ.P. art. 1920, the trial court "may render judgment for costs, or any part thereof, against any party as it may consider equitable." Fair , 579 So.2d at 1108.

In the stipulation of liability signed by Union Pacific, Union Pacific agreed that it would "not at trial or on appeal urge a defense or present any evidence to prove that the derailment was the fault of any other party or entity or Act of God."

Union Pacific also argues that the fees of the Special Master are to be paid directly to the Special Master rather than into a private account from which the judges pay the Special Master. Union Pacific argues that the method utilized by the trial court takes away its right to argue that the fee is unreasonable and that the fee must be reasonable under La.R.S. 13:4165. However, there is nothing preventing Union Pacific from asking for an accounting from the court or from asking the court to see, or to be provided with copies of, the invoices submitted by the Special Master or from filing a rule to traverse the amounts claimed by the Special Master.

Louisiana Revised Statutes 13:4165(D) states that "[t]he master's compensation shall be reasonable, fixed by the court as limited by Subsection A of this Section, and taxed as costs of court." There are very few reported cases dealing with the fees of the special master. In Bezou v. Bezou , 15-1879, p. 10 (La.App. 1 Cir. 9/16/16), 203 So.3d 488, 496, writ denied , 16-1869 (La. 12/5/16), 210 So.3d 814 (emphasis in original), the first circuit interpreted La.R.S. 13:4165(D) as follows: "Section 4165(D) clearly states that the trial court shall reasonably fix the compensation of the special master and tax that compensation as costs of court." There is nothing in the statute which prevents the method employed by the trial court in this case.

Based on the above-cited cases and the stipulation, the trial court did not commit an error of law in its application of the relevant statutes to this case when it assessed one hundred percent of the Special Master's costs to Union Pacific or when it required that the fees be advanced through deposits to the special account.

COURT REPORTER FEES

Finally, Union Pacific argues that La.R.S. 13:961(E) and (F) provide that a court reporter's fee is to be paid out of either the general fund of the parish or by the parties as transcripts are requested and prepared. Union Pacific recognizes that there is an exception when the fee of the court reporter is part of the costs associated with a deposition taken for use at trial. In that case, the fee of the court reporter can be taxed as court costs. La.R.S. 13:4533.

The Plaintiffs explain that the Special Master's function is to conduct the individual trials and prepare a recommendation to the judge assigned to that case. As such, it is essential that there be an accurate record of the proceedings. But, while the individual trials are being conducted, the judges from the Twenty-Seventh Judicial District Court and their official reporters are required to carry on the regularly scheduled trials, motions, etc. That means that the Special Master must employ independent court reporters to work in the train derailment trials. According to the Plaintiffs, then, the costs of the independent court reporters are included within the fees of the special master and should not be subject to the restriction contained in La.R.S. 13:961(E) and (F). If they are considered fees of the Special Master in this case, then the court reporter's fees can be taxed as court costs since La.R.S. 13:4165 specifically states that the fees of the special master "shall" be "taxed as costs of court."

"Th[e] equitable power to allocate costs is limited to costs that positive law identifies as taxable." Certain St. Bernard Parish Government Computer Disks v. St. Bernard Parish Government ex rel. Ponstein , 13-1054, p. 3 (La.App. 4 Cir. 12/18/13), 130 So.3d 56, 59, writ denied , 16-1026 (La. 9/16/16), 201 So.3d 252.

Neither side points to any jurisprudential authority for its position. We have found no reported cases that were directly on point. However, La.R.S. 13:961 speaks to "official court reporters" who receive a monthly salary from the general fund of the parish or parishes which they serve. Therefore, as noted by Union Pacific, the fees of the court reporter are considered to be a "public cost." Independent court reporters are being employed by the Special Master in this case, and it is unknown whether the court reporters used in this case are the ones who are regularly employed in the Twenty-Seventh Judicial District Court. The fees of the court reporters in this case should not be considered as a public cost because they are being employed by the Special Master for the specific purpose of conducting the trials in this train derailment case where Union Pacific has admitted liability. Therefore, this portion of Union Pacific's writ application is denied since the trial court made no error in its refusal to apply La.R.S. 13:961.

CONCLUSION

We find no error in the trial court's ruling, which assesses one hundred percent of the Special Master's fees and costs, including the fees of the court reporters in conducting the individual trials, and which requires advance deposits by Union Pacific into a special account set up for payments to the Special Master by the Twenty-Seventh Judicial District Court. All costs of this appeal are assessed to the Defendant/Applicants, Union Pacific Railroad Company.

WRIT DENIED.

      This court found no abuse of discretion in the trial court's order which severed the claims involving United States Environmental Services, Inc., from the other consolidated cases. Carriere v. Union Pacific Railroad Company , 16-616 (La.App. 3 Cir. 10/14/16) (unpublished writ decision).

      This court found no error in the trial court's rulings that (1) any party seeking to object to the Special Master's report would be required to pay an additional filing fee to have that transcript of the Special Master's proceedings filed into the record; and (2) the individual judgments rendered by the Special Master would be certified final and immediately appealable. Carriere v. Union Pacific Railroad Company , 17-1048 (La.App. 3 Cir. 1/25/18) (unpublished writ decision), writ denied , 18-322 (La. 4/16/18), 247 So.3d 115.

      The caption notes that the order is issued in docket number 13-C-3656-C "and all other similar cases arising out of the Lawtell train derailment."

      This order is nearly identical to the March 5, 2018 order. The only differences are that the March 5 order did not specify how much was owed to the Special Master, did not mention court reporter's fees, reflected the amount on deposit at the time of the order, and required an additional deposit of $ 40,000.00 rather than $ 300,000.00.

      Orleans Parish has its own provision, La.R.S. 13:1215, dealing with security for costs, and La.R.S. 13:4165 is inapplicable in Orleans Parish. Louisiana Revised Statutes 13:1215 also states that the defendant may require "the plaintiff or party prosecuting the cause to post a bond or other security." There is no provision allowing the plaintiff to demand security.

      Starr , 70 So.3d 128, cited Davis v. State, DOTD , 94-308 (La.App. 3 Cir. 12/7/94), 647 So.2d 552, writ denied , 95-34 (La. 1/27/95), 649 So.2d 382, which is a completely different case than Davis , 87 So.3d 396. In Davis , 647 So.2d 552, this court upheld the trial court's assessment of all costs to the DOTD, which was apportioned only forty percent of the fault in a two-vehicle accident where the defendant driver settled before trial and was apportioned sixty percent of the fault at trial.

      Union Pacific contends that it has been given only an accounting from the court regarding checks issued from the Special Master Account but was not given the underlying invoices for any other explanation for the payments.


text:
    STATE of Louisiana v. David Alan BREAUX
    18-771
    Court of Appeal of Louisiana, Third Circuit.
    March 13, 2019
    Ms. Holli Herrle-Castillo, Attorney at Law, P.O. Box 2333, Marrero, LA 70073-2333, COUNSEL FOR APPELLANT: David Alan Breaux.
    Ms. Shelley A. DeVille, Ms. Karen C. McLellan, Assistant District Attorney, Mr. John F. DeRosier, District Attorney, Parish of Calcasieu, 901 Lakeshore Dr., Ste. 600, Lake Charles, LA 70601, COUNSEL FOR APPELLEE: State of Louisiana.
    Court composed of Elizabeth A. Pickett, D. Kent Savoie, and Jonathan W. Perry, Judges.
   PERRY, Judge.

Defendant, David Alan Breaux, appeals his jury convictions for attempted first degree murder (two counts), violations of La.R.S. 14:27 and 14:30.1 ; aggravated flight from an officer, a violation of La.R.S. 14:108.1 ; and possession of a firearm by a convicted felon, a violation of La.R.S. 14:95.1. Relying on an alleged improper denial of a challenge for cause, Defendant seeks to reverse his convictions. He further contends his sentences for attempted first degree murder (two counts) were constitutionally excessive. For the following reasons, we affirm Defendant's convictions, but vacate Defendant's sentences for attempted first degree murder and remand for resentencing, order the trial court to correct the Defendant's sentence for his conviction of aggravated flight from an officer, as reflected in this opinion, and remand this matter to the trial court to correctly advise Defendant of the provisions of La.Code Crim.P. art. 930.8.

FACTS

None of Defendant's assignments of error involve the facts which led to his convictions. Accordingly, we find it is only necessary to provide a thumbnail sketch of the facts that led to Defendant's arrest.

On June 24, 2016, Defendant and Kayla Demary ("Kayla") were romantically involved. At that time, Kayla was five months pregnant with Defendant's child. As Kayla and her father, Harry Bertrand ("Harry"), were driving from the grocery store, they noticed Defendant following them. While Kayla and Harry exited their vehicle, but before they were able to enter their home, Defendant arrived in the front yard armed with a hand gun and shouted that he was going to kill them. Defendant then fired three shots at Kayla and Harry; one shot wounded Kayla. When Harry attempted to go to Kayla's aid, Defendant pointed the hand gun at him, cautioned him not to move toward Kayla, and then told him that he would get him this time. When the neighbors saw what was happening and headed toward Kayla and Harry, Defendant sped away in his vehicle. Eventually, Kayla was airlifted to a Lafayette hospital and was treated for wounds to her chest and arm. After fleeing from police at speeds of greater than 100 miles per hour, the police captured Defendant and these criminal charges were brought against him.

After a unanimous jury convicted Defendant, the trial court sentenced him to forty-five years at hard labor for each of the attempted murder convictions to be served without benefit of probation, parole, or suspension for the first ten years and five years at hard labor for the aggravated flight from an officer conviction to run consecutively to the sentence imposed on each conviction of attempted first degree murder and further imposed a fine of $ 2,000.00. Lastly, for possession of a weapon by a convicted felon, he was sentenced to ten years at hard labor without benefit of probation, parole, or suspension of sentence, to run concurrently to the sentences imposed on each conviction of attempted first degree murder and aggravated flight from an officer.

ASSIGNMENTS OF ERROR

Defendant raises two assignments of error: (1) the trial court erred in denying the defense's challenge for cause as it relates to prospective juror Diana Mays ("Mays"); and (2) the trial court erred in imposing an excessive sentence for his attempted murder convictions.

DENIAL OF CHALLENGE FOR CAUSE

Defendant contends the trial court erred when it failed to excuse Mays, a prospective juror, for cause. Defendant argues that Mays' responses showed she was unable to be attentive and she could not render a fair verdict. Defendant claims he should receive a new trial because he exhausted all his peremptory challenges and Mays should have been excused for cause.

In State v. Juniors , 03-2425, p. 7-8 (La. 6/29/05), 915 So.2d 291, 304-05, our supreme court stated:

Louisiana Constitution article I, § 17 guarantees to a defendant the right to full voir dire examination of prospective jurors and to challenge jurors peremptorily .... When a defendant uses all twelve of his peremptory challenges, an erroneous ruling of a trial court on a challenge for cause that results in depriving him of one of his peremptory challenges constitutes a substantial violation of his constitutional and statutory rights, requiring reversal of the conviction and sentence. See State v. Cross , 93-1189, p. 6 (La. 6/30/95), 658 So.2d 683, 686 ; State v. Bourque , 622 So.2d 198, 225 (La. 1993), overruled on other grounds by State v. Comeaux , 93-2729 (La. 7/1/97), 699 So.2d 16. Prejudice is presumed when a challenge for cause is erroneously denied by a trial court and a defendant has exhausted his peremptory challenges. State v. Robertson , 92-2660, [p. 3] (La. 1/14/94), 630 So.2d 1278, 1280 ; State v. Ross , 623 So.2d 643, 644 (La. 1993). Therefore, to establish reversible error warranting reversal of a conviction and sentence, defendant need only demonstrate (1) the erroneous denial of a challenge for cause; and (2) the use of all his peremptory challenges. Cross , 93-1189 at 6, 658 So.2d at 686 ; Bourque , 622 So.2d at 225.

Nonetheless, to preserve the issue for appellate review, the defendant must remove the prospective juror with a peremptory challenge. In State v. Campbell , 06-0286, p. 71 (La. 5/21/08), 983 So.2d 810, 856, cert. denied , 555 U.S. 1040, 129 S.Ct. 607, 172 L.Ed.2d 471 (2008), the supreme court further elaborated, as follows:

[A]s recent decisions of this court have emphasized, an erroneous ruling on a challenge for cause which does not deprive a defendant of one of his peremptory challenges does not provide grounds for reversing his conviction and sentence. A defendant thus must use one of his remaining peremptory challenges curatively to remove the juror or waive the complaint on appeal, even in a case in which he ultimately exhausts his peremptory challenges. See State v. Blank , 04-0204 p. 25 (La. 4/11/07), 955 So.2d 90, 113, cert. denied , 552 U.S. 994, 128 S.Ct. 494, 169 L.Ed.2d 346 (2007) ("In Louisiana, a defendant must use one of his peremptory challenges curatively to remove the juror, thus reducing his remaining peremptory challenges, or waive any complaint on appeal.")(citing State v. Connolly , 96-1680, p. 8 (La. 7/1/97), 700 So.2d 810, 818 ; State v. Bourque , 622 So.2d 198, 229-30 (La. 1993) ; State v. Fallon , 290 So.2d 273, 282 (La. 1974) ).

The record in the present case shows that initially Defendant challenged the prospective juror for cause; the State did not oppose that challenge. Nevertheless, the trial court denied Defendant's cause challenge. Ultimately, however, the record further establishes that it was the State, not Defendant, who exercised its fourth peremptory challenge to back-strike Mays. Accordingly, it is clear Defendant was not forced to use one of his peremptory challenges to remove this prospective juror. Therefore, we find Defendant waived the right to raise this issue on appeal.

ERRORS PATENT

In compliance with La.Code Crim.P. art. 920, we review all criminal appeals for errors patent on the face of the record. See State v. Oliveaux , 312 So.2d 337 (La. 1975). After carefully reviewing the record, we find three errors patent, as well as court minutes of sentencing that require correction.

Originally, the trial court sentenced Defendant to serve forty-five years at hard labor for each of his attempted first degree murder convictions, and it made no mention of the benefits restrictions prescribed in La.R.S. 14:27(D)(1)(a) and 14:30(C)(2). Later during sentencing, the State drew the trial court's attention to its failure to restrict Defendant's parole, probation, and suspension, and further advised the court that the statute required the first ten years be served without those benefits. Thereafter, the trial court "noted that the first ten years of both sentences shall be without benefit of parole or suspension of sentence." See note 2, supra .

Initially, we find that although the penalty provision for attempted first degree murder requires the entire sentence be served without benefit of parole, probation, or suspension of sentence, La.R.S. 14:27(D)(1)(a) and 14:30(C)(2), the trial court ordered only ten years of Defendant's two sentences for attempted first degree murder served without parole or suspension of sentence. Thus, both Defendant's sentences for attempted first degree murder are illegally lenient because they fail to include a probation restriction and further fail to extend for the entirety of sentence.

Ordinarily, this court has chosen not to recognize an illegally lenient sentence if the issue has not been raised as an error. See State v. Aguillard , 17-798 (La.App. 3 Cir. 4/11/18), 242 So.3d 765. Notwithstanding, in the present case the State has raised this issue on appeal and has requested that we remand this case for compliance with the benefits restrictions enunciated in La.R.S. 14:27(D)(1)(a) and 14:30(C)(2). Accordingly, we find this illegally lenient sentence is properly before us.

Because the State raised the issue of Defendant's illegally lenient sentence for his two attempted murder convictions, we vacate Defendant's sentences for the two convictions of attempted first degree murder and remand for resentencing in accordance with the sentencing provisions of La.R.S. 14:27(D)(1)(a) and La.R.S. 14:30(C)(2). Accordingly, we instruct the trial court that the entirety of Defendant's two sentences for attempted first degree murder must be served without benefit of parole, probation, or suspension of sentence.

Next, our errors patent review also shows the trial court incorrectly advised Defendant that he had a two-year time limitation for initiating an application for post-conviction relief and "that runs two years from today, the signing of the judgment, if you wish to do so." To the contrary, La.Code Crim.P. art. 930.8 provides that "[n]o application for post-conviction relief ... shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of Article 914 or 922." Rather than the date of sentencing in the trial court, the two-year time limitation commences either when the defendant fails to perfect an appeal, La.Code Crim.P. art. 914, or after a timely appeal has been perfected and a judgment has become final, La.Code Crim.P. art. 922. Therefore, we direct the trial court to correctly advise Defendant at resentencing of La.Code Crim.P. art. 930.8's prescriptive period.

Finally, our review of the sentencing transcript shows the trial court imposed a $ 2,000.00 fine for Defendant's conviction of aggravated flight from an officer. Notwithstanding, the court minutes incorrectly indicate the fine was imposed for Defendant's conviction of possession of a firearm by a convicted felon. "It is well established that where there is a conflict between the minutes and the transcript, the transcript shall prevail." State v. Edwards , 626 So.2d 501, 503 (La.App. 3 Cir. 1993), writ denied , 93-3125 (La. 2/3/95), 649 So.2d 400. Therefore, we direct the trial court to correct the sentencing minutes to reflect the $ 2,000.00 fine was imposed for Defendant's conviction of aggravated flight from an officer.

DISPOSITION

Defendant's convictions are affirmed. We vacate Defendant's two sentences for attempted first degree murder and remand to the trial court for resentencing. At resentencing, the trial court is directed to correctly advise Defendant of the provisions of La.Code Crim.P. art. 930.8 to specify the time limitation for filing an application for post-conviction relief. Furthermore, the trial court is instructed to correct the sentencing minutes to accurately reflect that the $ 2,000.00 fine was imposed for Defendant's conviction of aggravated flight from an officer.

CONVICTIONS AFFIRMED; SENTENCES VACATED, IN PART; REMANDED WITH INSTRUCTIONS.

      We note Defendant was convicted of and sentenced for multiple criminal offenses. Although Defendant broadly assigns as error the excessiveness of his sentence, he limits his discussion to only his sentences for two counts of attempted first degree murder. Accordingly, we find only those two sentences are before us.

      Our review of the sentencing colloquy shows the trial court acknowledged the State's observation that the first ten years of Defendant's sentences for attempted first degree murder be served without benefits. It stated, "Let the record reflect the same." Nevertheless, the trial court continued, "[I]t should be noted that the first ten years of both sentences shall be without benefit of parole or suspension of sentence." It made no mention of Defendant's restriction from probation. Notwithstanding, the sentencing minutes note that Defendant's two sentences for attempted first degree murder are "to be served at hard labor and without benefit of probation, parole or suspension of sentence for the first ten (10) years...." This recitation is provided for clarity only. Because we vacate Defendant's two sentences for attempted first degree murder for reasons more fully detailed herein and remand for resentencing, this error is immaterial.

      Defendant has urged us to consider his sentences for attempted first degree murder excessive. Because we vacate those sentences and remand this matter for resentencing, we pretermit Defendant's assignment of error as it relates to the excessiveness of those two sentences.

      Louisiana Revised Statutes 15:301.1(A) provides that when the trial court is silent as to the mandated term of parole ineligibility, there is no need for this court to remand the matter to the trial court. Nevertheless, this procedure is inapplicable when the trial court actually imposes an improper term of parole ineligibility. See State v. Rivers , 01-1251 (La.App. 5 Cir. 4/10/02), 817 So.2d 216, writ denied , 02-1156 (La. 11/22/02), 829 So.2d 1035. Thus, remand is required in the present case.

      Our errors patent review also shows that the trial court imposed an illegally lenient sentence for Defendant's possession of a firearm by a convicted felon. As the record reveals, the trial court sentenced Defendant to ten years at hard labor without benefit of probation, parole, or suspension of sentence. As provided in La.R.S. 14:95.1(B), the trial court was also mandated to impose a fine of not less than one thousand dollars nor more than five thousand dollars. It did not do so. Although we are cognizant of this error, the State, unlike its complaint about the lenient sentence Defendant received for his two attempted murder convictions, has not raised this error on appeal. Because the State has not raised this issue, we will not address it. See State v. Goodeaux , 17-441 (La.App. 3 Cir. 11/2/17), 231 So.3d 124, writ denied , 17-2143 (La. 9/14/18), 252 So.3d 488.

      Louisiana Code of Criminal Procedure Article 914 establishes the method and time of appeal. Louisiana Code of Criminal Procedure Article 922 describes the finality of a judgment on appeal.