author: SAUNDERS, Judge.

text:
    STATE of Louisiana v. Joe LEWIS, Jr.
    18-504
    Court of Appeal of Louisiana, Third Circuit.
    December 6, 2018
    J. Phillip Terrell, Jr. District Attorney, Ninth Judicial District Court, Catherine L. Davidson, Brian Mosley, Assistant District Attorneys, P.O. Drawer 1472, Alexandria, La 71309, (318) 473-6650, COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana
    Paula C. Marx, Louisiana Appellate Project, P.O. Box 82389, Lafayette, LA 70598-2389, (337) 991-9757, COUNSEL FOR DEFENDANT/APPELLANT: Joe Lewis, Jr.
    Court composed of John D. Saunders, Billy Howard Ezell, and Candyce G. Perret, Judges.
   SAUNDERS, Judge.

On January 23, 2017, Defendant, Joe Lewis, Jr., was charged by bill of information with one count of possession of CDS I (heroin), in violation of La.R.S. 40:966(C) ; and one count of possession of CDS II (cocaine), in violation of La.R.S. 40:967(C). On Monday, October 16, 2017, Defendant appeared before Judge Thomas Yeager with trial scheduled for that week on the instant case and Defendant's trial court docket number 331,649. At that time, Judge Yeager revoked Defendant's bond on an unrelated booking, referred to as DA number 116-4820, for multiple drug-related charges. Judge Yeager also noted Defendant was scheduled for trial the following day.

On October 17, 2017, the trial court transferred Defendant's case out of Judge Yeager's division so that Judge Beard could hold a dangers and disadvantages conference and then proceed to trial if warranted. Judge Beard, now in charge of the case, invited Defendant and the State to resume plea negotiations. At the end of the hearing, the State informed Judge Beard that "[p]er our agreement, we are going to write up a plea form." Judge Beard responded "[o]kay." Judge Beard then set the case for Judge Doggett to take the plea after lunch.

Still on October 17, 2017, Defendant appeared before Judge Mary Doggett, at which time the State presented the court with a "Plea of Guilty and Waiver of Rights" form, signed by Defendant and Defendant's trial counsel. Per the plea form, Defendant was pleading guilty to all charges in trial court docket numbers 331, 649 and 331,931, in exchange for a four-year Department of Corrections sentence on each count with said sentences to run concurrently with each other, credit for time served, and the State agreed not to file a habitual offender bill of information and to dismiss DA number 116-4820, which contained multiple distribution and possession with intent to distribute charges. After properly Boykinizing Defendant, Judge Doggett signed the plea form and accepted Defendant's plea of guilty to all charges. At that time, Judge Doggett stated:

Okay. Well, um, I hope he's not changing it. Mr. Lewis, for Possession of CDS I, I am giving you, ordering you to serve 4 years with the Department of Corrections at hard labor and same sentence on each count of the Possessions of CDS II. Okay? I'm running them concurrent with each other. No? Maybe I'm not.
BY THE LAW CLERK: He said he could plead in the dark and he would sentence him. (Inaudible)
BY THE COURT: Okay. He said no. He said you - he could only plead in the dark. See, I knew he would have a problem with me taking the plea for him. Well, he's basically telling me I can't take his plea. (Inaudible) Oh, well that's bad.

Subsequently, it was ordered that Defendant be brought before Judge Yeager the following morning. At that time, Judge Yeager stated:

Mr. Joe Lewis. 331,931. Your attorney is not here, Mr. Lewis, and it's my understanding they tried to go behind my back to take a guilty plea yesterday. The only person you can plead guilty in -- from is in front of me, and they can not change the sentence, sir. So I'm gonna set -- I'm gonna reset you for trial. Unless your attorney is here and you want to plead guilty in front of me (interrupted).

At that time, Judge Yeager vehemently insisted that if someone in his division chose not to plead guilty on Monday of trial, they could not get an agreed-upon sentence and would have to plead in the dark before him and specifically stated "He had a trial [date] to plead guilty. I'm not gonna call a jury in here on Tuesday and spend twenty-five hundred dollars on a jury for him to enter a plea of guilty that he could have taken months ago."

On November 22, 2017, Defendant filed a "Motion to Enforce Plea Agreement and Memorandum of Law" seeking specific performance of the plea agreement entered into by Defendant and the State and accepted by Judge Doggett in writing and in open court on October 17, 2017. A hearing was held on November 27, 2017, at which time Judge Yeager again accused Defendant's trial counsel of engineering a plea deal behind his back and reiterated that he would not allow a defendant to get a set sentence plea after the Monday of a trial week. Judge Yeager at no point denied that the case had been transferred to Judge Beard for a dangers and disadvantages hearing or for trial if Defendant wished to proceed thereafter. Finally, Judge Yeager stated "In this case, there's not a completed agreement. He's not been sentenced. There is nothing to his detriment, uh, that's been done at this time. So your request to enforce the plea agreement is denied[ ]." Defendant sought review of that ruling with this court, but his writ application was deficient and was denied on the showing made. See State v. Lewis , 18-80 (La.App. 3 Cir. 3/13/18) (unpublished opinion).

On November 28, 2017, Defendant proceeded to trial by jury in the instant case, and on November 29, 2017, the jury found Defendant guilty as charged on both counts. On December 4, 2017, Defendant was sentenced to ten years at hard labor for possession of CDS I and five years at hard labor for possession of CDS II, both maximum sentences. The trial court further ordered the sentences be run consecutively to each other and consecutively to any other sentence. Defendant now appeals his convictions and sentences. For the following reasons, we find that Defendant is entitled to specific performance of his plea agreement, accepted by Judge Doggett in writing and in open court on October 17, 2017. Accordingly, Defendant's convictions are affirmed but his sentences are vacated. The case is remanded to the lower court for resentencing in accordance with the plea agreement.

FACTS:

On November 12, 2016, law enforcement officers on a proactive patrol for narcotics came into contact with Defendant after arresting an individual who came out of a house in front of which Defendant had been parked, partially on the street. Officers searched Defendant's vehicle following his arrest for an active arrest warrant and found heroin inside the console of Defendant's vehicle as well as a cigarette box containing crack cocaine.

ASSIGNMENT OF ERROR NUMBER ONE:

Defendant's first assignment of error, both in this case and Defendant's companion docket number 18-353, is that the trial court erred in denying his motion to enforce the guilty plea. Defendant contends that he and the State entered into a plea agreement and that he is entitled to specific performance of said plea agreement since Judge Doggett accepted his plea in writing and open court, even going so far as to begin sentencing him. The State contends that:

Judge Doggett did not accept the plea and in fact questions taking the plea at all. At that time, Judge Yeager's order related to the plea agreement indicated the Defendant could plea in the dark: meaning a plea agreement could not restrict Judge Yeager's sentencing authority. The trial court is under no duty to accept a plea bargain that restricts its sentencing authority. State v. Collins , 359 So.2d 174 (La.1978).

The State's contention that "Judge Doggett did not accept the plea" is not accurate. The transcript clearly shows that Judge Doggett found Defendant's "plea of [g]uilty [was] free and voluntary and I'll take his plea at [that] time." Furthermore, the written plea agreement, drawn up by the State and executed by both Defendant and his trial counsel, was signed by Judge Doggett. Additionally, the State's reliance on Collins is misplaced. In Collins , the defendant had gone to trial and the jury was in deliberations when the State and the defendant reached a plea agreement. However, the trial court stated it would not accept the plea as agreed upon and the jury returned a verdict before the plea was ever accepted, either orally or in writing. Thus, the supreme court would not make the court accept the plea when the jury returned a verdict before the plea was accepted. That is not the case before this court.

The relevant portion of Rule 3.1 of the Rules for the Ninth Judicial District Court stated, at the time of Defendant's plea, the following :

Criminal trials will normally be tried in courtroom # 5 and # 6. Courtroom # 5 will primarily be used for the drug court. In the event the Judge in either courtroom completes the docket assigned to that courtroom, that Judge shall be transferred the next available criminal trial on the trial docket of the other courtroom for that week.
In the event that a Judge sitting in courtroom # 3 or # 4 finishes the civil docket for that week, the Judge shall then be available to handle criminal cases if multiple criminal cases are ready for trial in courtroom # 5 or # 6. The Judge in courtroom # 3 shall take the next available criminal case on the trial docket from courtroom # 6. The next available criminal case will be assigned to the Judge in courtroom # 4. If the Judge in courtroom # 3 is not available due to the civil docket or otherwise, then the next available criminal case on the docket in courtroom # 6 will be transferred to the Judge in courtroom # 4.
These transfers are designed to facilitate the orderly disposition of criminal cases set for trial and prevent congestion of the criminal docket. The transfers of criminal cases will be coordinated by the Court Administrator.

The State's remaining argument that a judge who is uninvolved in plea negotiations has the right to refuse to restrict his sentencing authority is likewise misplaced. The State cites State v. Williams , 341 So.2d 370 (La.1976) ; Collins , 359 So.2d 174 ; and State v. Robbins , 471 So.2d 912 (La.App. 2 Cir.1985) all involved cases where the trial court did not accept a plea agreement between the State and the defendants. Furthermore, the State cites State v. Nall , 379 So.2d 731 (La.1980), wherein the issue was whether the State was bound to a plea agreement when its agreement was based on false premises presented by the defendant. None of these cases provide guidance in the instant case where Defendant's plea agreement with the State was actually accepted without reservation in open court.

In State v. Hamilton , 96-807 (La.App. 4 Cir. 6/7/96), 677 So.2d 539, the fourth circuit found that where a plea agreement setting out a specific sentence to be received was made between the State and the defendant, and the trial court accepted the agreement in writing, the court could not deviate from the agreement it had accepted. The court specifically stated:

In the instant case there was a specific and unambiguous plea struck by the State, the defendant and the court, as evidenced from the signed forms mentioned above. The defendant knew at all times that she had bargained to be charged as a twice instead of a thrice convicted felon in exchange for a 30 months sentence. Here the State did not renege, but the trial judge decided ex parte to impose a sentence of his choosing without regard to the contract confected by all the parties, including the trial judge, when he imposed a lesser sentence than agreed upon. Although in this case a specific agreement had clearly been reached, and the State and the defendant had fully and substantially performed on the State's side of the bargain, the State was aggrieved by the failure of the court to perform a promise upon which the State had relied to its tangible detriment. The consent of all parties was one of the requisites for a valid agreement, and the contract created obligations on all the parties to perform the contract in good faith. La.C.C. arts. 1823 - 1824. In the particular agreement here, the "cause" for the State's agreement was a guilty plea in return for the diminished culpability of the defendant under the habitual offender law along with a 2½ year sentence.
When the trial court was requested to remedy this breach, the trial court failed to give the appropriate remedy, specific performance or recision of the contract, and denied the State's motion for reconsideration of sentence.
CONCLUSION
Properly administered pleas of guilty benefit all concerned; the guilty plea and the often concomitant plea bargain are important components of this country's criminal justice system. The defendant avoids extended pretrial incarceration and the anxieties and uncertainties of a trial, gains a speedy disposition of her case, gets a chance to acknowledge her guilt and a prompt start in realizing whatever potential there may be for rehabilitation. Judges and prosecutors conserve vital and scarce resources. The public is protected from the risks posed by those charged with criminal offenses who are at large on bail while awaiting completion of criminal proceedings. These advantages can be secured, however, only if dispositions by guilty plea are accorded a great measure of finality. Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977).

Hamilton , 677 So.2d at 543.

Furthermore, the fourth circuit reviewed when a plea agreement becomes enforceable in State v. Anthony , 99-107 (La.App. 4 Cir. 4/7/99), 735 So.2d 746, writ denied , 99-1360 (La. 6/25/99), 746 So.2d 606. In Anthony , the State and the defendant reached a plea agreement, which was presented to the trial court. After consulting with the victims' families, the trial court refused to accept the agreed-upon sentence. The trial judge eventually recused himself and upon appointment a new judge granted a motion to enforce the rejected plea agreement. In reversing said grant, the fourth circuit noted:

In State v. Hamilton, 96-0807 (La.App. 4 Cir. 6/7/96), 677 So.2d 539, this court found that the trial court was bound to the plea agreement where the trial court had signed both the guilty plea forms on the underlying felony and the multiple bill, and the plea forms contained a specific sentence rather than a sentencing range. In the present case the trial court did not sign the guilty plea form, and therefore, the plea agreement as a compromise was not reduced to writing where all the parties were bound.
In a criminal case, the trial court shall not accept a plea of guilty or nolo contendere, without first addressing the defendant personally in open court. La.C.Cr.P. art. 556.1. This article indicates that the final phase of the negotiations of a plea agreement is the acceptance by the trial judge. In some cases prior to a final plea agreement, the trial judge may declare that he will only take the State's negotiations for sentencing as a recommendation. State v. Landry, 97-1460 (La.App. 3 Cir. 5/6/98), 711 So.2d 853.
In the present case it is apparent that the trial judge thought that upon completion of plea negotiations, he still would have the right to determine whether he would approve or accept the plea agreement when it was presented to him. The trial judge was not committed until he reviewed the plea agreement upon the completion of the plea negotiations. He would be the last party to accept the last negotiations.

Anthony , 735 So.2d at 750-51.

As recognized by the fourth circuit, a plea agreement is not enforceable until it has been accepted by the trial court. In the instant case, Judge Doggett accepted the plea agreement in writing and in open court.

Finally, in State v. Cheatham , 44,247 (La.App. 2 Cir. 5/13/09), 12 So.3d 1047, the trial court accepted a guilty plea from a defendant which included a Pre-Sentence Investigation and a sentencing range, but specifically noted the sentences were to run concurrent with each other and any other sentences she might have. At sentencing, however, the trial court ordered her sentences to run consecutively to any other sentences she might have outstanding. The second circuit held it was a breach of the plea bargain and "remanded to the trial court for resentencing in accordance with the plea bargain agreement." Cheatham , 12 So.3d at 1052.

Here, the trial court transferred Defendant's case out of Judge Yeager's division so that Judge Beard could hold a dangers and disadvantages conference and then proceed to trial if warranted. Judge Beard, now in charge of the case, invited Defendant and the State to resume plea negotiations. The State and Defendant reached a plea agreement and Judge Beard set the case for Judge Doggett to take the plea after lunch. Judge Doggett accepted the plea agreement, both in writing and in open court. She then pronounced the sentence before deciding to stop and send the matter back to Judge Yeager after learning he was upset about the plea agreement. The local Rules of Court specifically allowed for criminal cases to be transferred for the purposes of trial and Defendant was accordingly properly before Judge Beard, who initiated the plea bargain and set the matter for Judge Doggett to accept the plea. Judge Doggett's verbal and written acceptance of the plea made the plea enforceable. Judge Yeager's refusal to accept the plea, after it had already been properly accepted by Judge Doggett, was a violation of the plea agreement.

"When a plea bargain is breached, the defendant has the option of specific performance or to withdraw the guilty plea." Cheatham , 12 So.3d at 1052. Defendant sought specific performance of the plea prior to his trial, and Judge Yeager refused to consider honoring the plea. Defendant again seeks specific performance of the plea, relief to which the law clearly states he is entitled. Accordingly, Defendant's sentences are vacated, and the case is remanded to the trial court for resentencing in accordance with the plea agreement accepted by Judge Doggett on October 17, 2017.

ASSIGNMENT OF ERROR NUMBERS TWO AND THREE:

This court enforces the plea agreement accepted by Judge Doggett on October 17, 2017. As such, Defendant's remaining assignments of error concerning his sentences are moot. Accordingly, we will not address them.

ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by the court for errors patent on the face of the record. After reviewing the record, we find that there are two errors patent involving the sentences imposed and one possible error patent. However, due to our finding in ASSIGNMENT OF ERROR NUMBER ONE, the two errors patent are rendered moot, and, therefore, will not be addressed.

DECREE:

Defendant's convictions are affirmed. Defendant's sentences are vacated, and the case remanded to the trial court for resentencing in accordance with the plea agreement accepted by Judge Doggett on October 17, 2017. At resentencing, the trial court should instruct Defendant as to the correct prescriptive period for filing post-conviction relief as set forth in La.Code Crim.P. art. 930.8.

CONVICTIONS AFFIRMED; SENTENCE VACATED AND REMANDED FOR RESENTENCING.

      Defendant's conviction and sentence on trial court docket number 331,649, will be addressed in his companion appeal under docket number 18-353. The transcript of Defendant's October 17, 2017 plea appears only in the record for docket number 18-353.

      Prior to taking Defendant's plea, Judge Doggett sent a law clerk to let Judge Yeager know that she was accepting Defendant's plea.

      We note that Rule 3.1 has since been amended to specifically state that "Any judge of the court may accept a plea in any felony or misdemeanor case though not allotted to the division of the judge accepting the plea. However, the case will remain with the division of the judge to which it was allotted no matter which judge accepted the plea." (See District Court Appendices.)


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Joe LEWIS, Jr.
    18-353
    Court of Appeal of Louisiana, Third Circuit.
    December 6, 2018
    J. Phillip Terrell, Jr., District Attorney, Ninth Judicial District Court, Catherine L. Davidson, Brian Mosley, Assistant District Attorneys, P. O. Drawer 1472, Alexandria, La 71309, (318) 473-6650, COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana
    Paula C. Marx, Louisiana Appellate Project, P. O. Box 82389, Lafayette, LA 70598-2389, (337) 991-9757, COUNSEL FOR DEFENDANT/APPELLANT: Joe Lewis, Jr.
    Court composed of John D. Saunders, Billy Howard Ezell, and Candyce G. Perret, Judges.
   SAUNDERS, Judge.

On December 6, 2016, Defendant, Joe Lewis, Jr., was charged by bill of information with three counts of possession of CDS II, in violation of La.R.S. 40:967(C). On Monday, October 16, 2017, Defendant appeared before Judge Thomas Yeager with trial scheduled for that week on the instant case and Defendant's trial court docket number 331,931. At that time, Judge Yeager revoked Defendant's bond on an unrelated booking, referred to as DA number 116-4820, for multiple drug-related charges. Judge Yeager also noted Defendant was scheduled for trial the following day.

On October 17, 2017, the trial court transferred Defendant's case out of Judge Yeager's division so that Judge Beard could hold a dangers and disadvantages conference and then proceed to trial if warranted. Judge Beard, now in charge of the case, invited Defendant and the State to resume plea negotiations. At the end of the hearing, the State informed Judge Beard that "[p]er our agreement, we are going to write up a plea form." Judge Beard responded "[o]kay." Judge Beard then set the case for Judge Doggett to take the plea after lunch.

Still on October 17, 2017, Defendant appeared before Judge Mary Doggett, at which time the State presented the court with a "Plea of Guilty and Waiver of Rights" form, signed by Defendant and Defendant's trial counsel. Per the plea form, Defendant was pleading guilty to all charges in trial court docket numbers 331,649 and 331,931, in exchange for a four-year Department of Corrections sentence on each count with said sentences to run concurrently with each other, credit for time served, and the State agreed not to file a habitual offender bill of information and to dismiss DA number 116-4820, which contained multiple distribution and possession with intent to distribute charges. After properly Boykinizing Defendant, Judge Doggett signed the plea form and accepted Defendant's plea of guilty to all charges. At that time, Judge Doggett stated:

Okay. Well, um, I hope he's not changing it. Mr. Lewis, for Possession of CDS I, I am giving you, ordering you to serve 4 years with the Department of Corrections at hard labor and same sentence on each count of the Possessions of CDS II. Okay? I'm running them concurrent with each other. No? Maybe I'm not.
BY THE LAW CLERK: He said he could plead in the dark and he would sentence him. (Inaudible)
BY THE COURT: Okay. He said no. He said you - he could only plead in the dark. See, I knew he would have a problem with me taking the plea for him. Well, he's basically telling me I can't take his plea. (Inaudible) Oh, well that's bad.

Subsequently, it was ordered that Defendant be brought before Judge Yeager the following morning. At that time, Judge Yeager stated:

Mr. Joe Lewis. 331,931. Your attorney is not here, Mr. Lewis, and it's my understanding they tried to go behind my back to take a guilty plea yesterday. The only person you can plead guilty in -- from is in front of me, and they can not change the sentence, sir. So I'm gonna set -- I'm gonna reset you for trial. Unless your attorney is here and you want to plead guilty in front of me (interrupted)

At that time, Judge Yeager vehemently insisted that if someone in his division chose not to plead guilty on Monday of trial, they could not get an agreed-upon sentence and would have to plead in the dark before him and specifically stated "He had a trial to plead guilty. I'm not gonna call a jury in here on Tuesday and spend twenty-five hundred dollars on a jury for him to enter a plea of guilty that he could have taken months ago."

On November 22, 2017, Defendant filed a "Motion to Enforce Plea Agreement and Memorandum of Law" seeking specific performance of the plea agreement entered into by Defendant and the State and accepted by Judge Doggett in writing and in open court on October 17, 2017. A hearing was held, at which time Judge Yeager again accused Defendant's trial counsel of engineering a plea deal behind his back and reiterated that he would not allow a defendant to get a set sentence plea after the Monday of a trial week. Judge Yeager at no point denied that the case had been transferred to Judge Beard for a dangers and disadvantages hearing or for trial if Defendant wished to proceed thereafter. Finally, Judge Yeager stated "In this case, there's not a completed agreement. He's not been sentenced. There is nothing to his detriment, uh, that's been done at this time. So your request to enforce the plea agreement is denied[ ]." Defendant sought review of that ruling with this court, but his writ application was deficient and was denied on the showing made. See State v. Lewis , 18-80 (La.App. 3 Cir. 3/13/18) (unpublished opinion).

Defendant ultimately went to trial on the instant case on January 9, 2018, and was found guilty as charged on all three counts of possession of CDS II. On February 28, 2018, Defendant was sentenced to serve five years at hard labor on each conviction with the sentences run concurrently to each other but run consecutively with trial court docket number 331,931. Defendant now appeals his convictions and sentences. For the following reasons, we find that Defendant is entitled to specific performance of his plea agreement, accepted by Judge Doggett in writing and in open court on October 17, 2017. Accordingly, Defendant's convictions are affirmed, but his sentences are vacated and remanded to the lower court for resentencing in accordance with the plea agreement.

FACTS:

On May 19, 2016, Defendant was pulled over by Corporal Adam Dupuy and Officer Thomas Rodney of the Alexandria Police Department after they noticed Defendant's vehicle had no license plate lights and a temporary tag dated five months out, when the limit is sixty days. While retrieving Defendant's insurance paperwork from the glove compartment of the vehicle, Corporal Dupuy noticed a white pill on the floorboard of the driver's side and multiple white pills in a baggy on the passenger seat. It was ultimately determined Defendant had hydrocodone, oxycodone, and methadone in the vehicle, all Schedule II Controlled Dangerous Substances under La.R.S. 40:964.

ERRORS PATENT:

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

ASSIGNMENT OF ERROR NUMBER ONE:

Defendant's first assignment of error, both in this case and Defendant's companion docket number 18-504, is that the trial court erred in denying his motion to enforce the guilty plea. Defendant contends that he and the State entered into a plea agreement and that he is entitled to specific performance of said plea agreement since Judge Doggett accepted his plea in writing and open court, even going so far as to begin sentencing him. The State disagrees, contending that:

Judge Doggett did not accept the plea and in fact questions taking the plea at all. At that time, Judge Yeager's order related to the plea agreement indicated the Defendant could plea in the dark: meaning a plea agreement could not restrict Judge Yeager's sentencing authority. The trial court is under no duty to accept a plea bargain that restricts its sentencing authority. State v. Collins , 359 So.2d 174 (La.1978).

We find that the State's contention that "Judge Doggett did not accept the plea" is not accurate. The transcript clearly shows that Judge Doggett found Defendant's "plea of [g]uilty [was] free and voluntary and I'll take his plea at [that] time." Furthermore, the written plea agreement, drawn up by the State and executed by both Defendant and his trial counsel, was signed by Judge Doggett. Additionally, the State's reliance on Collins is misplaced. In Collins , the defendant had gone to trial and the jury was in deliberations when the State and the defendant reached a plea agreement. However, the trial court stated it would not accept the plea as agreed upon and the jury returned a verdict before the plea was ever accepted, either orally or in writing. Thus, the supreme court would not make the court accept the plea when the jury returned a verdict before the plea was accepted. That is not the case before this court.

The relevant portion of Rule 3.1 of the Rules for the Ninth Judicial District Court stated, at the time of Defendant's plea, the following :

Criminal trials will normally be tried in courtroom # 5 and # 6. Courtroom #5 will primarily be used for the drug court. In the event the Judge in either courtroom completes the docket assigned to that courtroom, that Judge shall be transferred the next available criminal trial on the trial docket of the other courtroom for that week.
In the event that a Judge sitting in courtroom # 3 or # 4 finishes the civil docket for that week, the Judge shall then be available to handle criminal cases if multiple criminal cases are ready for trial in courtroom # 5 or # 6. The Judge in courtroom # 3 shall take the next available criminal case on the trial docket from courtroom # 6. The next available criminal case will be assigned to the Judge in courtroom # 4. If the Judge in courtroom # 3 is not available due to the civil docket or otherwise, then the next available criminal case on the docket in courtroom # 6 will be transferred to the Judge in courtroom # 4.
These transfers are designed to facilitate the orderly disposition of criminal cases set for trial and prevent congestion of the criminal docket. The transfers of criminal cases will be coordinated by the Court Administrator.

The State's remaining argument that a judge who is uninvolved in plea negotiations has the right to refuse to restrict his sentencing authority is likewise misplaced. The State cites State v. Williams , 341 So.2d 370 (La.1976) ; Collins, 359 So.2d 174 ; and State v. Robbins , 471 So.2d 912 (La.App. 2 Cir.1985). These all involved cases where the trial court did not accept a plea agreement between the State and the defendants. Furthermore, the State cites State v. Nall , 379 So.2d 731 (La.1980), wherein the issue was whether the State was bound to a plea agreement when its agreement was based on false premises presented by the defendant. Thus, none of these cases provide guidance in the instant case, where Defendant's plea agreement with the State was actually accepted without reservation in open court.

In State v. Hamilton , 96-807 (La.App. 4 Cir. 6/7/96), 677 So.2d 539, the fourth circuit found that where a plea agreement setting out a specific sentence to be received was made between the State and the defendant, and the trial court accepted the agreement in writing, the court could not deviate from the agreement it had accepted. The court specifically stated:

In the instant case there was a specific and unambiguous plea struck by the State, the defendant and the court, as evidenced from the signed forms mentioned above. The defendant knew at all times that she had bargained to be charged as a twice instead of a thrice convicted felon in exchange for a 30 months sentence. Here the State did not renege, but the trial judge decided ex parte to impose a sentence of his choosing without regard to the contract confected by all the parties, including the trial judge, when he imposed a lesser sentence than agreed upon. Although in this case a specific agreement had clearly been reached, and the State and the defendant had fully and substantially performed on the State's side of the bargain, the State was aggrieved by the failure of the court to perform a promise upon which the State had relied to its tangible detriment. The consent of all parties was one of the requisites for a valid agreement, and the contract created obligations on all the parties to perform the contract in good faith. La.C.C. arts. 1823 - 1824. In the particular agreement here, the "cause" for the State's agreement was a guilty plea in return for the diminished culpability of the defendant under the habitual offender law along with a 2 ½ year sentence.
When the trial court was requested to remedy this breach, the trial court failed to give the appropriate remedy, specific performance or recision of the contract, and denied the State's motion for reconsideration of sentence.

CONCLUSION

Properly administered pleas of guilty benefit all concerned; the guilty plea and the often concomitant plea bargain are important components of this country's criminal justice system. The defendant avoids extended pretrial incarceration and the anxieties and uncertainties of a trial, gains a speedy disposition of her case, gets a chance to acknowledge her guilt and a prompt start in realizing whatever potential there may be for rehabilitation. Judges and prosecutors conserve vital and scarce resources. The public is protected from the risks posed by those charged with criminal offenses who are at large on bail while awaiting completion of criminal proceedings. These advantages can be secured, however, only if dispositions by guilty plea are accorded a great measure of finality. Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977).

Hamilton , 677 So.2d at 543.

Furthermore, the fourth circuit reviewed when a plea agreement becomes enforceable in State v. Anthony , 99-107 (La.App. 4 Cir. 4/7/99), 735 So.2d 746, writ denied , 99-1360 (La. 6/25/99), 746 So.2d 606. In Anthony , the State and the defendant reached a plea agreement, which was presented to the trial court. After consulting with the victims' families, the trial court refused to accept the agreed-upon sentence. The trial judge eventually recused himself and upon appointment a new judge granted a motion to enforce the rejected plea agreement. In reversing said grant, the fourth circuit noted:

In State v. Hamilton, 96-0807 (La.App. 4 Cir. 6/7/96), 677 So.2d 539, this court found that the trial court was bound to the plea agreement where the trial court had signed both the guilty plea forms on the underlying felony and the multiple bill, and the plea forms contained a specific sentence rather than a sentencing range. In the present case the trial court did not sign the guilty plea form, and therefore, the plea agreement as a compromise was not reduced to writing where all the parties were bound.
In a criminal case, the trial court shall not accept a plea of guilty or nolo contendere, without first addressing the defendant personally in open court. La.C.Cr.P. art. 556.1. This article indicates that the final phase of the negotiations of a plea agreement is the acceptance by the trial judge. In some cases prior to a final plea agreement, the trial judge may declare that he will only take the State's negotiations for sentencing as a recommendation. State v. Landry, 97-1460 (La.App. 3 Cir. 5/6/98), 711 So.2d 853.
In the present case it is apparent that the trial judge thought that upon completion of plea negotiations, he still would have the right to determine whether he would approve or accept the plea agreement when it was presented to him. The trial judge was not committed until he reviewed the plea agreement upon the completion of the plea negotiations. He would be the last party to accept the last negotiations.

Anthony , 735 So.2d at 750-51.

As recognized by the fourth circuit, a plea agreement is not enforceable until it has been accepted by the trial court. In the instant case, Judge Doggett accepted the plea agreement in writing and in open court.

Finally, in State v. Cheatham , 44,247 (La.App. 2 Cir. 5/13/09), 12 So.3d 1047, the trial court accepted a guilty plea from a defendant which included a Pre-Sentence Investigation and a sentencing range, but specifically noted the sentences were to run concurrent with each other and any other sentences she might have. At sentencing, however, the trial court ordered her sentences to run consecutively to any other sentences she might have outstanding. The second circuit held it was a breach of the plea bargain and "remanded to the trial court for resentencing in accordance with the plea bargain agreement." Cheatham , 12 So.3d at 1052.

Here, the trial court transferred Defendant's case out of Judge Yeager's division so that Judge Beard could hold a dangers and disadvantages conference and then proceed to trial if warranted. Judge Beard, now in charge of the case, invited Defendant and the State to resume plea negotiations. The State and Defendant reached a plea agreement, and Judge Beard set the case for Judge Doggett to take the plea after lunch. Judge Doggett accepted the plea agreement, both in writing and in open court. She then pronounced the sentence before deciding to stop and send the matter back to Judge Yeager after learning he was upset about the plea agreement. The local Rules of Court specifically allowed for criminal cases to be transferred for the purposes of trial, and Defendant was accordingly properly before Judge Beard, who initiated the plea bargain and set the matter for Judge Doggett to accept the plea. Judge Doggett's verbal and written acceptance of the plea made the plea enforceable. Judge Yeager's refusal to accept the plea, after it had already been properly accepted by Judge Doggett, was a violation of the plea agreement.

"When a plea bargain is breached, the defendant has the option of specific performance or to withdraw the guilty plea." Cheatham , 12 So.3d at 1052. Defendant sought specific performance of the plea prior to his trial and Judge Yeager refused to consider honoring the plea. Defendant again seeks specific performance of the plea, relief to which we find that the law clearly states he is entitled. Accordingly, Defendant's sentences are vacated and the case is remanded to the trial court for resentencing in accordance with the plea agreement accepted by Judge Doggett on October 17, 2017.

ASSIGNMENT OF ERROR NUMBER TWO:

In his second assignment of error, Defendant argues there is insufficient evidence to support his three possession convictions in the instant case. We recognize that typically, this court reviews sufficiency claims first, due to the possibility of an acquittal should there indeed be insufficient evidence. See State v. Hearold , 603 So.2d 731 (La.1992). However, due to the highly unusual circumstances surrounding this case, we will not address the merits of Defendant's sufficiency claim.

ASSIGNMENT OF ERROR NUMBERS THREE AND FOUR:

Due to our finding that the plea agreement accepted by Judge Doggett on October 17, 2017, need be enforced, Defendant's remaining assignments of error concerning his sentences are moot. Accordingly, we will not address them.

DECREE:

Defendant's convictions are affirmed. Defendant's sentences are vacated, and the case is remanded to the trial court for resentencing in accordance with the plea agreement accepted by Judge Doggett on October 17, 2017.

CONVICTIONS AFFIRMED; SENTENCE VACATED AND REMANDED FOR RESENTENCING.

      Although all three counts are possession of CDS II, each involves a different drug: oxycodone, methadone, and hydrocodone, respectively.

      Defendant's conviction and sentence on trial court docket number 331,931, will be addressed in his companion appeal under docket number 18-504.

      Prior to taking Defendant's plea, Judge Doggett sent a law clerk to let Judge Yeager know that she was accepting Defendant's plea.

      We note that Rule 3.1 has since been amended to specifically state that "Any judge of the court may accept a plea in any felony or misdemeanor case though not allotted to the division of the judge accepting the plea. However, the case will remain with the division of the judge to which it was allotted no matter which judge accepted the plea." (See District Court Appendices.)


author: PERRET, Judge.

text:
    STATE of Louisiana v. Marlin L. MAYFIELD a/k/a Marlin Mayfield
    18-420
    Court of Appeal of Louisiana, Third Circuit.
    December 6, 2018
    Hon. Keith A. Stutes, Lafayette Parish District Attorney, P. O. Box 3306, Lafayette, LA 70502-3306, (337) 232-5170, COUNSEL FOR PLAINTIFF-APPELLEE: State of Louisiana.
    Jack Edward Nickel, Assistant District Attorney, P. O. Box 288, Crowley, LA 70527, (337) 788-8831, COUNSEL FOR PLAINTIFF-APPELLEE: State of Louisiana.
    David Rubin, 15th Judicial District Public Defender, 516 SE Court Circle, Crowley, LA 70526, (337) 889-5672, COUNSEL FOR DEFENDANT-APPELLANT: Marlin L. Mayfield.
    Court composed of John D. Saunders, Billy Howard Ezell, and Candyce G. Perret, Judges.
   PERRET, Judge.

Defendant, Marlin L. Mayfield, entered a plea of guilty to one count of manslaughter, a violation of La.R.S. 14:31, and one count of aggravated assault with a firearm, a violation of La.R.S. 14:37, in connection with the June 23, 2013, shooting of his wife. Defendant appeals his manslaughter sentence as excessive. For the following reasons, we amend, and as amended, affirm.

Factual and Procedural Background:

On June 23, 2013, Teresa Mayfield, Defendant's wife, arrived at Defendant's home to pick up their children and an argument ensued. During the argument, Defendant took Mrs. Mayfield from her vehicle and into his home where he shot her in the back of the head. Defendant then drove to his brother's house, called 911, and reported that he shot his wife. Defendant handed over the gun to his brother and asked his brother to pick up his daughters from his home. Defendant, having told the 911 dispatcher where he could be located, was arrested and brought to the Crowley Police Department.

Defendant, Marlin L. Mayfield, was charged by indictment on September 20, 2013, with one count of first-degree murder of Teresa Mayfield, a violation of La.R.S. 14:30, and one count of second-degree kidnapping, a violation of La.R.S. 14:44.1. On October 16, 2013, Defendant entered a plea of not guilty to all of the charges.

At the July 20, 2017 Boykinization hearing, Defendant entered a plea of guilty to one count of manslaughter, a violation of La.R.S. 14:31, and one count of aggravated assault with a firearm, a violation of La.R.S. 14:37.4. The trial court ordered a pre-sentence investigation (PSI) report in preparation for the sentencing hearing. Additionally, while the plea agreement permitted the trial court to sentence Defendant up to the maximum of forty years, the sentence for aggravated assault with a firearm was capped at seven years, to run consecutively with the manslaughter sentence.

On October 12, 2017, Defendant was sentenced to forty years without the benefit of probation, parole, or suspension of sentence for manslaughter and seven years at hard labor for aggravated assault with a firearm, the sentences to run consecutively. Defendant filed a motion to reconsider sentence arguing that the sentences were unconstitutionally excessive, and the trial court failed to properly consider the mitigating factors. The trial court denied the motion without comment. Defendant now appeals and assigns a single error: the manslaughter sentence is excessive.

Errors Patent:

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

First, the trial court erred in ordering that Defendant's manslaughter sentence be served without the benefit of parole. For manslaughter, Defendant was sentenced to forty years without the benefit of parole, probation, or suspension of sentence. Louisiana Revised Statutes 14:31 provides:

B. Whoever commits manslaughter shall be imprisoned at hard labor for not more than forty years. However, if the victim killed was under the age of ten years, the offender shall be imprisoned at hard labor, without benefit of probation or suspension of sentence, for not less than ten years nor more than forty years.

Thus, the above penalty provision does not prohibit parole, probation, or suspension of sentence in this case. However, at the time the offense was committed, La.Code Crim.P. art. 893(A) prohibited a suspended sentence for an offense designated as a crime of violence in La.R.S. 14:2(B), which included the crime of manslaughter.

Therefore, the trial court properly imposed Defendant's manslaughter sentence without the benefit of probation or suspension of sentence. But, because La.Code Crim.P. art. 893 did not authorize the restriction of parole, the trial court erred in ordering Defendant's manslaughter sentence to be served without the benefit of parole. Accordingly, this court amends Defendant's manslaughter sentence to delete the denial of parole eligibility and instructs the district court to make an entry in the minutes reflecting this change. State v. Batiste , 09-521 (La.App. 3 Cir. 12/9/09), 25 So.3d 981.

Second, though the minutes indicate the manslaughter sentence is to be served at hard labor, the trial court at the sentencing hearing failed to impose the sentence at hard labor as required by La.R.S. 14:31, rendering the sentence illegally lenient. State v. Perkins , 13-245 (La.App. 3 Cir. 11/6/13), 124 So.3d 605. Although the authority is granted and discretionary under La.Code Crim.P. art. 882, this court will not consider an illegally lenient sentence unless it is an error raised on appeal. Id. See also State v. Jacobs , 08-1068 (La.App. 3 Cir. 3/4/09), 6 So.3d 315, writ denied , 09-755 (La. 12/18/09), 23 So.3d 931.

Discussion:

In his sole assignment of error, Defendant alleges that the trial court erred when it ordered a forty-four-year-old veteran to the maximum sentence for manslaughter of forty years imprisonment without considering mitigating factors, including his documented mental health history, military service, and lack of a criminal history. Defendant objected to the sentence at the hearing and filed a motion to reconsider sentence. He separates this assignment of error into two parts: the trial court erred in failing to properly consider the many mitigating factors; and the forty-year maximum sentence for the manslaughter conviction was excessive.

This court previously explained the standard of review to be applied in assessing excessive sentence claims:

[Louisiana Constitution Article] I, [§] 20 guarantees that, "[n]o law shall subject any person to cruel or unusual punishment." To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. The trial court has wide discretion in the imposition of [a] sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.
State v. Barling , 00-1241, 00-1591, 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 (citations omitted).
Even though a penalty falls within the statutory sentencing range, it may still be unconstitutionally excessive:
In deciding whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals, an appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. While a comparison of sentences imposed for similar crimes may provide some insight, "it is well settled that sentences must be individualized to the particular offender and to the particular offense committed." Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge "remains in the best position to assess the aggravating and mitigating circumstances presented by each case."
State v. Smith , 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied , 03-562 (La. 5/30/03), 845 So.2d 1061 (citations omitted). "[T]he trial judge need not articulate every aggravating and mitigating circumstance outlined in [La.Code Crim.P.] art. 894.1 [;] the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant." State v. Smith , 433 So.2d 688, 698 (La.1983) (citing State v. Ray , 423 So.2d 1116 (La.1982) ; State v. Keeney , 422 So.2d 1144 (La.1982) ; State v. Duncan , 420 So.2d 1105 (La.1982) ). "The appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed." La.Code Crim.P. art. 881.4(D).

State v. Frazier , 14-1132, pp. 14-15 (La.App. 3 Cir. 3/4/15), 157 So.3d 1266, 1275-76, writ denied , 15-657 (La. 2/26/16), 187 So.3d 467. Additionally, "maximum sentences are generally reserved for the worst offenders and the worst offenses." State v. Fallon , 15-1116, p. 6 (La.App. 3 Cir. 4/6/16), 189 So.3d 605, 609.

Prior to the sentencing hearing, Defendant submitted a sentencing memorandum which the trial court admitted it reviewed prior to the hearing. The memorandum included a discussion of Defendant's personal history and mitigating factors. Attached to the memorandum were Defendant's service records for the United States Army and Louisiana National Guard, a letter from a psychologist who reviewed Defendant's hospital records and examined him at the request of defense counsel, records from the Department of Health and Hospitals and Acadia Vermillion Hospital, seventeen letters on his behalf from community members, and a letter of remorse from Defendant. These exhibits were admitted into evidence at the hearing.

The sentencing memorandum and exhibits reveal that, in an incident relatively six weeks before the crime at issue, Defendant pulled a gun on Mrs. Mayfield during an argument. Thereafter, Defendant admitted himself to Acadia Vermillion Hospital for a mental evaluation and observation. He was diagnosed with severe depression and was described as "severely agitated and psychotic." While he was in the hospital, Mrs. Mayfield indicated she was leaving him and obtained a protection order against Defendant.

The defense also presented two witnesses at the sentencing hearing, Terrance Martin and Chris Mayfield, Sr. Terrance Martin testified that he grew up with Defendant and that his uncle was Defendant's stepfather. Mr. Martin testified that Defendant was a fun, active, well-behaved child who went on to graduate high school and join the military despite being a gifted football player. He further testified that because he and Defendant were both combat veterans, they often talked to each other about their time in the military. According to Mr. Martin, he and Defendant supported each other as they tried to process their experiences from serving in the military. Mr. Martin testified that he was shocked to hear that Defendant had killed his wife. He has also visited Defendant since his incarceration and learned that Defendant was trying to mentor some of the younger inmates. According to Mr. Martin, Defendant expressed his remorse for his actions, and Mr. Martin asked the court for leniency in sentencing Defendant. On cross-examination, Mr. Martin testified that Defendant left the mental health hospital on his own accord to return to work to provide for his family and that Defendant did not complete the treatment.

Chris Mayfield, Sr., Defendant's brother, testified that he and Defendant had a close relationship since they were children, and they remained close. Chris Mayfield testified that Defendant was proud of his eight years of military service and Defendant told him many stories about his time serving. He testified that Defendant was a great father and worked hard to take care of his family. In 2011, Chris Mayfield and his wife lost two of their children within a little over a month's time. He testified that Defendant was devastated about losing his nephews, who he had spoiled like they were his own children. Chris Mayfield testified that he was aware of the incident when Defendant pulled a gun on his wife prior to seeking mental health treatment. Additionally, he testified that following the current incident, Defendant came to his house and said that he had killed his wife. Chris Mayfield's testimony revealed that Defendant expressed remorse for what he did. On cross-examination he testified that Defendant's wife was not violent and that he was aware that Mrs. Mayfield obtained the restraining order against Defendant based on allegations that Defendant beat his daughter. According to Chris Mayfield, Defendant's children were not allowed to see Defendant since his incarceration and had only very limited time with Defendant's side of the family. He further testified that, to his knowledge, at least one of Defendant's children was at the residence when Defendant killed his wife.

The State called Mrs. Mayfield's sister, Tameka Minix, to read a statement on behalf of her family regarding the impact that Mrs. Mayfield's death has had on the family. Following the victim impact statement, the State argued that Defendant was receiving leniency by pleading guilty to manslaughter after initially being charged with first-degree murder. The State requested that Defendant be sentenced to the maximum term given the nature of the crime and given that Defendant held his wife down and shot her in the back of the head while their children were present in the residence.

In response, defense counsel explained that Defendant accepted responsibility for his actions and, via a lengthy statement, addressed all of the mitigating factors present, including Defendant's lack of a criminal history, Defendant's medical history and the mental health facility's treatment of his mental conditions through a number of medications, Defendant's potential to respond well to treatment, and Defendant's decorated military service. In all, the trial court listened to nearly three transcript pages worth of mitigating factors presented by defense counsel in addition to the prior testimony by the defense's witnesses, the exhibits entered into evidence supporting the mitigating factors, Defendant's previously filed sentencing memorandum with numerous community support letters, and the PSI ordered by the trial court.

The record clearly indicates that the trial court was made aware of potentially mitigating factors concerning Defendant. These facts address the "circumstances of the offender" pursuant to the factors this court outlined in Frazier , 157 So.3d 1266.

The trial court also addressed the "nature of the offense" factor in the Frazier analysis. The trial court noted that it believed the facts "clearly" supported "a minimum of [a] second-degree" murder conviction, "which carries a life sentence[,]" that the acts committed by Defendant were heinous, that the plea was a reduction from what Defendant may have been sentenced to under the initial charge of first-degree murder, and that the imprisonment of Defendant prevents another tragedy of this nature at his hands.

On appeal, Defendant attempts to distinguish his conduct from other cases in which the defendant received the maximum manslaughter sentence by suggesting that he did not demonstrate the deliberate cruelty found in the other cases.

In State v. Plauche , 09-400 (La.App. 3 Cir. 1/6/10), 32 So.3d 852, writ denied , 10-302 (La. 9/24/10), 45 So.3d 1070, this court upheld a forty-year maximum sentence for manslaughter where the defendant shot his wife in the neck, without provocation, two weeks after learning that she was having an affair. He did not try to help his wife after shooting her and he did not call the police. The trial court noted the defendant's lack of criminal history, the fact that the events were unlikely to occur again, and that the defendant's imprisonment would be an excessive hardship to his children. However, the trial court believed that the conduct by the defendant rose to second-degree murder, which was the defendant's original charge. The trial court sentenced the defendant to the maximum sentence for manslaughter and this court found no abuse of discretion in that sentence.

Additionally, Defendant argues that State v. Soriano , 15-1006 (La.App. 3 Cir. 6/1/16), 192 So.3d 899, writ denied , 16-1523 (La. 6/5/17), 219 So.3d 1111, exemplifies facts typical of "the worst" kind of manslaughter offense for which a maximum sentence is generally reserved. In that case, this court found that the imposition of a maximum sentence for manslaughter was not excessive where the defendant, a first-time felony offender, stabbed the victim once, then chased the victim down and stabbed him again after the victim had retreated. The trial court rejected the defendant's self-defense claim because it found no explanation as to why the defendant did not retreat rather than chasing the victim and stabbing him a second time.

In State v. Duhon , 17-19 (La.App. 3 Cir. 6/13/17), 224 So.3d 1, writ denied , 17-1278 (La. 4/27/18), 239 So.3d 835, this court found that the imposition of a maximum sentence for manslaughter was not excessive. The defendant emptied his clip by shooting three of his wife's relatives, called 911, returned home to get his son, then surrendered his son to his brother. The defendant then got in his vehicle, allegedly tried to ask a woman for directions, and then fled when the woman locked her doors and called the Lafayette Police Department believing the defendant was trying to steal her car. The defendant was later apprehended. The defendant "told the investigating officer he would have emptied another clip if he had had it." Id. at 12. The defendant was ultimately charged with two counts of attempted first-degree murder and one count of first-degree murder. After a plea agreement, the defendant entered a plea of guilty to one count of manslaughter and two counts of attempted manslaughter. At the sentencing hearing the defendant's mother-in-law testified that "she was not surprised by the shootings" and that the defendant had been violent towards her daughter during a "few fights between them where she had to intervene." Id. at 9. The defendant's wife also testified that following the incident he strangled her and that she did not believe that he was in his right mind; that defendant was a veteran, dishonorably discharged for his use of drugs, who would often have flashbacks. Additionally, two of three experts "concluded that the defendant was capable of distinguishing right from wrong at the time of the shootings." Id. at 13. This court affirmed the maximum sentence.

However, in Frazier , 157 So.3d 1266, this court affirmed the mid-range sentence of twenty years at hard labor, with credit for time served, for the fatal stabbing of a man following an altercation over parking. The court considered the defendant's remorse, desire to set-up a trust fund for the victim's son, positive character witnesses, the defendant's short criminal history, and the defendant's anger leading up to the stabbing.

Also, this court in State v. Osborn , 13-697 (La.App. 3 Cir. 12/11/13), 127 So.3d 1087, affirmed a sentence of thirty years at hard labor when the defendant pled guilty to a reduced charge of manslaughter. The defendant was engaged with several others in an altercation after leaving a bar when his girlfriend, who was trying to break up the dispute, was shot. The defendant intentionally retrieved a gun and fired it, resulting in the victim's death. The trial court considered the defendant's age, his criminal history, the assertions that his actions were unlikely to recur, the provocation in the situation, and the defendant's belated apology to the family. On appeal, and after a comparison to other cases, this court affirmed the sentence.

On the contrary, the facts in this case are more egregious. As previously mentioned in this case, Defendant took his wife from her vehicle and into his home where he then shot her in the back of the head while at least one of their children was present in the home. Additionally, Defendant pulled a gun on his wife several weeks prior to this incident. The State notes that the restraining order obtained by his wife indicates he beat his child and Mr. Chris Mayfield testified he understood the restraining order was based on allegations that Defendant beat his child. Although Defendant called 911 and turned himself in to the police, and has also expressed remorse on several occasions, the trial court noted that it believed Defendant's conduct, at the very least, amounted to second-degree murder. Without the plea agreement reducing the charge from first-degree murder to manslaughter, Defendant faced a life sentence. Defendant's plea of guilty to manslaughter provided him with a substantial benefit.

The trial court clearly was presented with any potential mitigating factors to consider prior to deciding Defendant's sentence. Defendant's conduct was heinous and cannot be distinguished as less serious or severe than the conduct detailed in the cases above in which the maximum sentence for manslaughter was given. After a review of the record, we find that the trial court did not abuse its discretion in imposing a forty-year maximum sentence for manslaughter in the present case, however, we amend Defendant's manslaughter sentence to delete the denial of parole eligibility and instruct the district court to make an entry in the minutes reflecting this change.

AFFIRMED AS AMENDED.

      The facts in this case have been obtained from the sentencing memorandum and pre-sentence investigation report because the factual recitations at the plea and sentencing hearings were minimal.

      We note that when the trial court imposed Defendant's seven-year sentence it did not state that the seven-year sentence was for the crime of aggravated assault with a firearm. The trial court simply stated, "And consecutive to that [the manslaughter sentence] I am going to give you the seven (7) years hard labor to run consecutive with the forty (40) years." Nonetheless, it is clear from the transcript that the seven-year sentence was for aggravated assault with a firearm. Immediately before imposing the sentences, the trial court acknowledged that Defendant pled guilty to La.R.S. 14:37.4, and that, in this case, the sentence was capped on that statute to seven (7) years. Accordingly, no error is recognized.

      Louisiana Code of Criminal Procedure article 893 has been amended several times. Since none of these amendments state otherwise, the applicable version is that which was in effect on the day Defendant committed the offense. State v. Mayeux , 01-3408 (La. 6/21/02), 820 So.2d 524. Additionally, even though the amendments broadened the availability of probation for certain offenses, Defendant would still not be eligible for probation or suspension of sentence under the current version of La.Code Crim.P. art. 893(A)(2).

      Because the State filed a Notice of Intent Not to Seek the Death Penalty on November 18, 2013, Defendant was only facing life imprisonment on the first-degree murder charge.


author: GREMILLION, Judge.

text:
    Shirley STELLY, et al. v. CITY CLUB AT RIVER RANCH, LLC, et al.
    18-560
    Court of Appeal of Louisiana, Third Circuit.
    December 12, 2018
    Chuck David Granger, John Davis, Granger Law Firm, P. O. Drawer 1849, Opelousas, LA 70571-1849, (337) 948-5000, COUNSEL FOR PLAINTIFFS/APPELLANTS: Shirley Stelly, Dudley Stelly
    Kristen B. Guidry, Law Offices of Robert D. Ford, 111 Veterans Blvd., Suite 1670, Metairie, LA 70005, (337) 504-6366, COUNSEL FOR DEFENDANTS/APPELLEES: Hanover Insurance Company, City Club at River Ranch, LLC, CCRR Properties, LLC
    Court composed of Elizabeth A. Pickett, Shannon J. Gremillion, and John E. Conery, Judges.
   GREMILLION, Judge.

Appellants, Shirley Stelly and her husband, Dudley Stelly, appeal the trial court's summary judgment granted in favor of City Club at River Ranch, LLC, CCRR Properties, LLC, and their insurer, Hanover Insurance Company, which dismissed the Stellys' petition alleging that Mrs. Stelly was injured when she fell in or around the parking lot of the City Club at River Ranch (CCRR) in Lafayette, Louisiana.

On appeal, summary judgments are reviewed de novo. Magnon v. Collins, 98-2822 (La. 7/7/99), 739 So.2d 191. Thus, the appellate court asks the same questions the trial court asks to determine whether summary judgment is appropriate. Id. This inquiry seeks to determine whether any genuine issues of material fact exist and whether the movant is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B) and (C). This means that judgment must be rendered in favor of the movant if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show a lack of factual support for an essential element of the opposing party's claim. Id. If the opposing party cannot produce any evidence to suggest that he will be able to meet his evidentiary burden at trial, no genuine issues of material fact exist. Id.
Material facts are those that determine the outcome of the legal dispute. Soileau v. D & J Tire, Inc., 97-318 (La.App. 3 Cir. 10/8/97), 702 So.2d 818, writ denied, 97-2737 (La. 1/16/98), 706 So.2d 979. In deciding whether facts are material to an action, we look to the applicable substantive law. Id. Finally, summary judgment procedure is favored and designed to secure the just, speedy, and inexpensive determination of every action. La.Code Civ.P. art. 966(A)(2).

Am. Zurich Ins. Co. v. Caterpillar, Inc. , 12-270, pp. 4-5 (La.App. 3 Cir. 10/3/12), 99 So.3d 739, 742-43.

With these principles in mind, we will examine the documentation submitted by the Appellees supporting their motion to determine whether they establish an absence of factual support for one or more essential elements of the Stelly's claims. Then we will examine the documentation opposing the motion to determine whether they suggest that the Stellys will be able to meet their evidentiary burden at trial.

In support of their motion, Appellees attached the Stelly's petition and Mrs. Stelly's deposition. The petition alleged the basic facts of the suit: Mrs. Stelly was at the CCRR on June 22, 2015, "when she tripped and fell on a raised area of cement." This fall allegedly injured Mrs. Stelly, and her husband suffered a loss of consortium because of her injuries.

Mrs. Stelly's deposition testimony is summarized as follows: On the date in question, Mrs. Stelly arrived at the CCRR to get a facial and massage at the River Spa. Mrs. Stelly had been to the spa many times. She drove her car into the parking lot and parked at the second-to-last space along the building before which she parked. The building was separated from the parking spaces by a sidewalk. She removed some packages from her car and set them on the sidewalk. Mrs. Stelly testified that nothing obstructed her view of the sidewalk. She then attempted to mount the sidewalk when her foot slipped on the edge of the curb. Mrs. Stelly fell forward and stretched forth her arms to arrest her fall. Her head hit the sidewalk, and her arm was broken. In her affidavit, Mrs. Stelly testified that she was not aware that the curb was "higher than a normal sidewalk edge."

Appellees contend that the sidewalk represents an open and obvious condition that does not pose an unreasonable risk of harm. Based upon the foregoing, we conclude that the motion was properly supported; therefore, the burden shifted to the Stellys to produce evidence that would suggest that they will be able to meet their burden of proof at trial.

The Stellys presented the same deposition excerpt of Mrs. Stelly, an affidavit from her, and an affidavit of Mr. William J. Moran, II, a civil engineer who inspected the scene.

Mr. Moran attested that he inspected the scene of Mrs. Stelly's accident. He found that the sidewalk presents an 8 ½? to 9? elevation change. According to ASTM F1637, entitled, "Standard Practices for Safe Walking Surfaces," so-called "short flight stairs (three or fewer risers)" should be avoided whenever possible, and where avoiding them is unfeasible, they should be delineated by visual cues such as lighting, signage, contrasting paint, or similar attention-drawing means. Mr. Moran's analysis drew him to conclude that the lack of visual cues, coupled with the height of the elevation change, represented an unreasonable risk of harm.

The trial court examined the evidence presented in support and opposition of the motion and concluded that the sidewalk elevation was open and obvious; thus, CCRR was not required to correct or warn of any hazard it posed. The Stellys appealed and assert that the trial court erred in granting summary judgment because Mr. Moran's opinions controvert that the sidewalk presented an open and obvious hazard.

In Pryor v. Iberia Parish School Board , 10-1683, pp.3-4 (La. 3/15/11), 60 So.3d 594, 596 (citations omitted), the Louisiana Supreme Court discussed the issue of the obligations of a property owner to protect those on its property:

The general rule is that the owner or custodian of property has a duty to keep the property in a reasonably safe condition. The owner or custodian must discover any unreasonably dangerous condition on the premises, and either correct the condition or warn potential victims of its existence. Smith v. The Runnels Schools, Inc., 04-1329 (La.App. 1 Cir. 3/24/05), 907 So.2d 109, 112. Nonetheless, we have recognized that defendants generally have no duty to protect against an open and obvious hazard. If the facts of a particular case show that the complained-of condition should be obvious to all, the condition may not be unreasonably dangerous, and the defendant may owe no duty to the plaintiff.

The duty-risk analysis determines tort liability in Louisiana. Bufkin v. Felipe's Louisiana, LLC , 14-288 (La. 10/15/14), 171 So.3d 851. This requires the plaintiffs to prove five elements: the defendant owed them a duty to conduct itself to a specific standard of care; the defendant breached the standard of care; the breach of the standard of care was a legal cause of their injuries; and they sustained actual damages. Id. "[W]hether a duty is owed is a question of law." Id. at 855. However, the supreme court also stated in Bufkin , at 856 (citations omitted):

When evaluating the duty owed relative to a sidewalk condition, the facts and surrounding circumstances of each case control and the test applied requires the consideration of whether the sidewalk was maintained in a reasonably safe condition for persons exercising ordinary care and prudence. Courts have adopted a risk-utility balancing test to determine whether such a condition is unreasonably dangerous, wherein the trier of fact balances the gravity and the risk of harm against the individual and societal utility and the cost and feasibility of repair.
This court has synthesized the risk-utility balancing test to a consideration of four pertinent factors: (1) the utility of the complained-of condition; (2) the likelihood and magnitude of harm, including the obviousness and apparentness of the condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiff's activities in terms of social utility or whether the activities were dangerous by nature.

An elevated sidewalk possesses high utility; it provides a means of transiting the parking lot without having one's passage impeded by vehicles parked too close to the building; it prevents water puddling; and it creates a barrier to vehicles accidentally hitting the building. The likelihood and magnitude of harm represents the factor that subsumes whether the condition is open and obvious. Id.

In this case, assessing the risk and magnitude of harm would be greatly assisted were we provided information about when the sidewalk was installed and whether accidents similar to Mrs. Stelly's have occurred. On the other hand, Mrs. Stelly had been to the facility many times before with no difficulty. Further, nothing obscured her ability to observe the curb in question, and, indeed, she had placed packages upon the curb before she attempted to mount it. But, the elevated sidewalk is of the same color as the parking lot it abuts.

Mr. Moran's opinion is that the elevation change was excessive and should have been differentiated by a visual contrasting paint or lighting or signage presents a genuine issue of material fact we are unable to ignore. Further, we were not assisted in our inquiry by the omission of any information regarding what cost would be incurred in installing contrasting paint, lighting, signage, or other means of drawing a pedestrian's attention to the elevation change.

For these reasons, the judgment of the trial court is reversed. All costs of this appeal are taxed to Defendants/Appellees, City Club at River Ranch, LLC, CCRR Properties, LLC, and Hanover Insurance Company.

REVERSED.

      Any suggestion, however, that an 8 ½? elevation change represents a per se unreasonably dangerous condition, which the Stellys hinted during argument, is rejected. As Pryor , 60 So.3d 594, makes clear, the duty is to correct an unreasonably dangerous condition or warn of its existence.


author: THIBODEAUX, Chief Judge.

text:
    Terese LANDRY v. JOEY'S, INC. d/b/a Joey's Specialty Food
    18-441
    Court of Appeal of Louisiana, Third Circuit.
    December 12, 2018
    Richard Todd Musgrave, Sean P. Sullivan, Musgrave, McLachlan & Penn, L.L.C., 1515 Poydras Street - Suite # 2380, New Orleans, LA 70112, Telephone: (504) 799-4300, COUNSEL FOR: Defendant/Appellee - Joey's, Inc. d/b/a Joey's Specialty Food
    Dwazendra J. Smith, Doran & Cawthorne, P.L.L.C., 521 E. Landry Street, Opelousas, LA 70571, Telephone: (337) 948-8008, COUNSEL FOR: Plaintiff/Appellant - Terese Landry
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Marc T. Amy, Judges.
   THIBODEAUX, Chief Judge.

Plaintiff Terese Landry appeals the trial court's grant of summary judgment in favor of Defendant Joey's Inc. d/b/a Joey's Specialty Food. Plaintiff filed suit alleging that her consumption of a fried shrimp po-boy sandwich from Defendant's food store caused her to become ill with food poisoning. Defendant moved for summary judgment thereafter, contending that Plaintiff could not prove by a preponderance of the evidence that the food she allegedly consumed was deleterious, nor that its consumption was the direct cause of her illness. The trial court granted Defendant's Motion for Summary Judgment, finding that a reasonable juror could not conclude from the facts adduced that Plaintiff could sufficiently carry her burden of proof at trial. Because we find that Plaintiff has not presented evidence sufficient to create a genuine issue of material fact, we affirm the trial court's judgment dismissing Plaintiff's claims with prejudice.

I.

ISSUE

We must determine whether the trial court erred in granting Defendant's motion for summary judgment.

II.

FACTS AND PROCEDURAL HISTORY

On October 7, 2015, at approximately noon, Plaintiff Terese Landry ordered a fried shrimp po-boy sandwich from Joey's, a lunchtime food store owned and operated by Defendant Joey's Inc. d/b/a Joey's Specialty Food ("Joey's") in Lafayette, Louisiana. Because the food store was full of patrons at the time, Ms. Landry decided to eat the sandwich while sitting alone in her parked car. She testified that the sandwich she received, however, had no fried shrimp in it, but instead contained a mayonnaise-like mixture and a green, leafy vegetable. In addition to finding that her order was incorrect, Ms. Landry noted that her sandwich "just didn't taste right." In spite of these facts, Ms. Landry never sought to correct her order, and further proceeded to eat the entire sandwich.

At approximately 4:00 a.m. the following morning, an ambulance was called after Ms. Landry reported becoming extremely ill with severe nausea, vomiting, and diarrhea. Upon presentation to the emergency room, Ms. Landry stated to Dr. Edward Lyons that she had eaten a po-boy sandwich the day before, and that her symptoms began approximately six hours prior to calling the ambulance. She also stated she believed that her sandwich was cross-contaminated with fish and that she was suffering from a fish allergy, despite never having been medically diagnosed with any food allergies. Dr. Lyons diagnosed Ms. Landry with diverticulitis, pancreatitis, and enteritis. After a stool culture taken came back positive for the Campylobacter bacterium, Dr. Lyons related the enteritis to the presence of Campylobacter. Following her diagnosis, Ms. Landry was hospitalized for seven days.

In his deposition, Dr. Lyons stated that he believed that the Campylobacter was the "inciting agent" of Ms. Landry's illness. However, he also testified that he was not aware of that particular bacterium being transmitted from fish or seafood, though it is commonly found in poultry, swine, and sometimes cattle. He further testified that there was no way to test or determine what Ms. Landry had eaten the day before. Ultimately, Dr. Lyons was unable to determine the specific origin of the Campylobacter bacterium contracted by Ms. Landry, and thus could not state that her illness was more likely than not caused by her consumption of the Joey's po-boy sandwich.

Ms. Landry filed suit against Joey's, alleging that the shrimp po-boy sandwich she consumed was in a deleterious condition at the time it was purchased, and that her consumption of the sandwich caused her to become ill with food poisoning. Following its Answer, Joey's filed a Motion for Summary Judgment before the trial court, asserting that Ms. Landry failed to satisfy her burden of proving by a preponderance of the evidence either of the above elements. Joey's also produced the sworn affidavit of Joey Beyt, the food store's owner, attesting that he was first put on notice of the alleged food poisoning upon receiving Ms. Landry's Petition, that he had not been found in violation of any health code or standard, and that no other patron alleged to have contracted food poisoning from his location. After finding that she failed to present any evidence refuting the sole medical opinion on causation, the trial court granted the motion and dismissed Ms. Landry's claims with prejudice.

On appeal, Ms. Landry seeks a reversal of the trial court's granting of summary judgment by arguing that she "can adequately prove more probable than not that Appellee's po-boy was the cause of her severe food poisoning." She argues that genuine issues of material fact remain as to whether: (1) the shrimp po-boy she consumed from Joey's was deleterious, which was the cause of her illness; (2) the Campylobacter bacterium came from the shrimp po-boy; and (3) there were other similar food poisoning cases at the hospital at the time of her admission.

III.

STANDARD OF REVIEW

An appellate court reviews the grant of a motion for summary judgment de novo, "using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law." Supreme Serv. & Specialty Co., Inc. v. Sonny Greer , 06-1827, p. 4 (La. 5/22/07), 958 So.2d 634, 638. We shall consider the record and all reasonable inferences that may be drawn from it in the light most favorable to the non-moving party. Hines v. Garrett , 04-806 (La. 6/25/04), 876 So.2d 764.

If the mover will not bear the burden of proof at trial on the matter, then he must only present evidence pointing out the absence of factual support for one or more essential elements to the non-moving party's case. La.Code Civ.P. art. 966(D)(1). Once the mover properly supports his motion for summary judgment, the burden is on the non-moving party to produce factual support 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. Id. However, the failure of the non-moving party to set forth evidence of a material factual dispute mandates the granting of the motion. Babin v. Winn-Dixie Louisiana, Inc. , 00-78 (La. 6/30/00), 764 So.2d 37.

Where the threshold question in reviewing a trial court's grant of summary judgment is whether a genuine issue of material fact remains, such a determination must be viewed in light of the relevant substantive law. Romero v. Allstate Ins. Co. , 08-256 (La.App. 3 Cir. 5/13/09), 11 So.3d 579, writ denied , 09-1325 (La. 10/9/09), 18 So.3d 1283.

IV.

LAW AND DISCUSSION

On appeal, Ms. Landry contends that the trial court erred in granting Joey's motion for summary judgment. Ms. Landry argues that she can prove the requisite elements of deleteriousness and causation such that she is able to bear her burden of proof by a preponderance of the evidence. This court has applied the following standard in establishing liability for the consumption of deleterious food:

To meet his or her burden of proof in a food poisoning case, the plaintiff must prove that the deleterious condition existed in the product when it was purchased. The plaintiff must further prove the existence of a causal relationship between the illness or injury and the consumption of the food. In fulfilling this burden of proof, "it is not necessary for the consumer to negate every conceivable cause but he must show that it is more likely than not the food's condition caused the injury of which he complains."

Foster v. AFC Enterprises, Inc. , 04-1014, p. 3 (La.App. 3 Cir. 3/2/05), 896 So.2d 293, 296 (citations omitted) (quoting Griffin v. Schwegmann Bros. Giant Supermarkets, Inc. , 542 So.2d 710, 712 (La.App. 4 Cir. 1989) ).

Ms. Landry relies on the following language cited by the Foster ruling to argue that she can prove the deleteriousness of the po-boy sandwich she allegedly consumed:

"The courts have never compelled a plaintiff to produce an actual analysis of the food consumed in order to establish its unwholesome condition. Rather, the courts have been willing to infer the deleterious nature of the food consumed from the circumstances surrounding the illness. In all of the cases in which there has been successful recovery, the plaintiff has shown that the food was consumed by him, and that no other food which might reasonably be assumed to have caused the illness had been consumed within a number of hours before or after the consumption of the suspect product. The plaintiff has also had medical opinion to the effect that it was probable that his illness was caused by the consumption of the particular product involved. In addition, the successful plaintiffs in the above cases have been able to show some other independent circumstance, which tends to prove his case...."

Id. (quoting McCauley v. Manda Bros. Provisions Co. , 202 So.2d 492, 495 (La.App. 1 Cir.), writ granted , 251 La. 402, 204 So.2d 578 (1967), aff'd , 252 La. 528, 211 So.2d 637 (1968) ). In so relying, Ms. Landry asserts that this court should be willing to infer the deleteriousness of the po-boy sandwich she allegedly consumed from the circumstances surrounding her illness. Id. We disagree.

Ms. Landry testified that the sandwich was the only food she had eaten on the day before falling ill. However, while she need not produce an analysis of the suspect food, we find particularly troublesome the evidence offered by Ms. Landry regarding her actual consumption of the food. Beyond her own deposition testimony, no evidence has been presented to corroborate either the purchase or the consumption of the Joey's po-boy sandwich. Moreover, Ms. Landry could not identify the very food which she now alleges was in a deleterious condition at the time she purchased it from Joey's:

Q: In looking back and thinking about the sandwich, are you able to say definitively that it was fish?
A: All I can tell you, I asked for a shrimp sandwich. I thought I was getting a fried shrimp sandwich. And when I got it, it was like a mixture of - of something with the green leafy stuff inside. And I was real hungry, and I ate it all. And that's it. Which I'll regret it until - for the rest of my life.
....
Q: The shrimp itself, did it look like -
A: There was no shrimp in it.

Conversely, Joey's cites to McCauley as the original source of the language quoted by Foster to emphasize several points. First, Joey's points out that Ms. Landry does not have "medical opinion to the effect that it was probable that [her] illness was caused by the consumption of a particular product involved." McCauley , 202 So.2d at 494-95. As examined in greater detail below, Dr. Lyons could not and did not state that it was more probable than not that Ms. Landry's food poisoning was caused by her alleged consumption of the po-boy sandwich.

Second, Joey's argues that Ms. Landry has not "been able to show some other independent circumstance, which tends to prove [her] case," unlike other successful plaintiffs. Id. at 496. As Joey's correctly notes, McCauley goes on to feature illustrative examples in the jurisprudence of what constitutes an "independent circumstance," which were not included in the language of Foster relied upon by Ms. Landry:

In the Doyle case, supra, for instance, it was shown that the plaintiff's companion, who ate in the same place at the same time of the same products also became ill. In the MacLehan case, supra, the plaintiff partook of the same pie on two different occasions, and got sick on each occasion. In the McAvin case, supra, the plaintiff noticed that the shrimp salad involved had a bad odor and taste and ate only a small portion of it. In Ogden v. Rosedale Inn, supra, only those persons who consumed the suspect salad became ill. In the cases of Love v. New Amsterdam Casualty Company, supra, and Gilbert v. John Gendusa Bakery, Inc., supra, foreign substances were found in the food consumed.

Id.

While Ms. Landry's brief correctly posits that she is not required to show that others have fallen ill from contaminated food per Foster , it goes on to suggest that her testimony describing two other separate cases of food poisoning begets a genuine issue of material fact with respect to her own illness. We find no merit in this assertion, given the lack of any material connexity established by the following testimony:

Q: Are you aware of anyone else that became sick from eating at Joey's Specialty Food?
A: There was [sic] two people at the hospital when I was there. I was told that by the workers.
Q: And what did the workers say, exactly?
A: All they said, there was [sic] two people with the same problem. That's all I know.
....
Q: So all they told you, or all that you knew is that two other people at that hospital, at that same time, were also having stomach issues?
A: Not the issues. They had gotten food poisoning, just like me.
Q: [T]hey didn't say where from or what they ate?
A: No, sir. They can't do that.

In fact, Ms. Landry has not offered any proof relative to the unwholesomeness of the po-boy sandwich beyond presenting her own version of events. See McCauley , 202 So.2d at 496.

Q: What did it taste like?
A: It didn't taste right, but I was very hungry, so I ate it all.
Q: Did it have an odor?
A: No. It just didn't have the right taste.
....
Q: So what was in it?
A: I thought I was getting a fried shrimp sandwich and I got -- you know, when you - you make a shrimp salad --
Q: Yes.
A: -- you got to crush everything? Well, that was not like that. It was more like, mayonnaise mixture.
Q: Okay.
A: But it didn't taste like it was mayonnaise either.
Q: Why didn't you go back in if they gave you the wrong sandwich?
A: I was in a hurry. Because I didn't want to go back in. I didn't have time. I wanted to run some errands, but I had went straight back to my house.

Though she testified about the taste not being "right," her testimony suggests that it was due to receiving the incorrect order, rather than attributing an impurity to the sandwich. She then decided to eat the entire sandwich with the understanding that it was not the sandwich she ordered. Though she "did not open the sandwich" to see its contents, she responded affirmatively that she "knew immediately it wasn't fried shrimp[.]" Despite remaining on the premises to eat the sandwich, she neither sought to correct her order, nor address the taste of the sandwich with the staff at Joey's. Further, it is undisputed that Ms. Landry never contacted Joey's regarding her alleged illness thereafter, as reflected in her own testimony and the sworn affidavit of Joey Beyt.

From our review of the record, Ms. Landry has not presented evidence of any independent circumstance tending to prove her case. In the absence of evidence demonstrating otherwise, Ms. Landry's unwillingness to correct her order and her consumption of the entire sandwich appear to directly contradict her efforts of proving the deleteriousness of the food consumed. Though she was able to provide testimony regarding the timing of her alleged consumption of the food in the hours before falling ill, we are not so inclined to infer the deleteriousness of the po-boy sandwich from the remaining facts adduced. Accordingly, we find that Ms. Landry has not presented facts creating a genuine issue of material fact with respect to whether the po-boy sandwich she allegedly consumed was in a deleterious condition at the time of purchase from Joey's food store.

Causation

Next, Ms. Landry asserts that the trial court erroneously granted summary judgment based upon a mischaracterization of Dr. Lyons's testimony regarding causation. While the trial court found that "Plaintiff presented no evidence that a fish product can cause the food-borne bacteria with which she was diagnosed," Ms. Landry alleges that Dr. Lyons's deposition testimony "establishes a clear causal link" between the food consumed and the injuries suffered. We reject Ms. Landry's argument, and likewise agree with the trial court's finding, for the following reasons.

Dr. Lyons provided the sole medical opinion in this case, as he was the only medical provider who treated Ms. Landry's illness. Coincidentally, Dr. Lyons was Ms. Landry's primary care physician at the time, and she visited him for a regular check-up just prior to having lunch at Joey's the day before. He testified that Ms. Landry has always suffered from a degree of gastrointestinal issues, including peptic ulcer disease, chronic gastritis, and non-celiac gluten sensitivity. However, he has never diagnosed Ms. Landry as having any food allergies.

Well, she told me ... that she had an allergy to fish. She told me she had had a po-boy, and she thinks it had been cross-contaminated with fish. I don't know why she thought that. She also told me a bit later during the hospital stay that she thought she had passed a worm. I had cultured her stool, and we identified Campylobacter. I'm not aware of Campylobacter being transmitted from fish. It's not uncommon in poultry or in swine, possibly, to a lesser extent, cattle.

Upon identifying the Campylobacter infection, Dr. Lyons testified that "[he] felt that the Campylobacter was the inciting agent" of her illness. We note here that while Ms. Landry insists the trial court erroneously mischaracterized Dr. Lyons's testimony, she in fact misstates the testimony herself as creating a causal link by repeatedly concluding, "Dr. Lyons pointed directly to the po-boy that Ms. Landry consumed as being the inciting agent for her food poisoning." In light of the actual facts and testimony presented, her contention is simply untenable.

Q: There wasn't any way to test anything she had eaten that day, was there?
A: There was not.
....
Q: And do you recall, just based on the conversation - because the only thing in the notes that she said is that she had the shrimp po-boy and thought it might have been --
A: I didn't even know what kind of po-boy it was, but she did tell me she had a po-boy.
Q: Okay. Other than that, was there anything that would lead you to be able to pinpoint where, more likely than not, this Campylobacter infection came from?
A: There was not, no. And I mean, that's typical. I mentioned to you a number of different infectious pathogens. In none of the cases could I actually determine ... I couldn't relate it to anything specifically, although I did look.

This court has held that, "[a]lthough a plaintiff need not scientifically identify the infection-producing organism to recover in a food poisoning case, [s]he must still prove causation by a preponderance of the evidence." Burnett v. Essex Ins.Co. , 00-809, p. 7 (La.App. 3 Cir. 11/2/00), 773 So.2d 786, 790. In the instant case, Dr. Lyons was not only able to identify the presence of Campylobacter, but also considered it to be the inciting agent of Ms. Landry's illness. However, the identification of the bacterium present in Ms. Landry's system alone cannot establish causation in the absence of more specific evidence suggesting that the Campylobacter bacterium originated from Ms. Landry's alleged consumption of the sandwich.

Contrary to Ms. Landry's assertion, Dr. Lyons's testimony introduces the unlikelihood that Ms. Landry's consumption of the sandwich caused her to contract the bacterium, and thus resulted in her illness. Although there was no way to determine what Ms. Landry had eaten the day before, Dr. Lyons stated that in cases of infectious diseases causing diarrhea such as this one, he calls the hospital's microbiologist to investigate whether there was an increased incidence of Campylobacter in the community. In Ms. Landry's case, it was determined that her illness was not part of a larger picture of infections. When asked about the potential sources of Campylobacter, Dr. Lyons relayed the following, ultimately concluding that "[i]n none of the cases could [he] actually determine" where the bacterium came from:

So I had [another patient] present with diarrhea that I worked up, and it also turned out to be Campylobacter. Same thing: There was not an increased incidence in the community, as best as I could tell, and I could never determine exactly where he got it.... That was kind of the same case as Ms. Landry.

Ms. Landry correctly asserts in her brief that while Dr. Lyons stated that he is unaware of the bacterium being transmitted from fish, he does not state that it is an impossibility. Beyond this statement, however, she has failed to present any evidence suggesting that fish or seafood can be a source of Campylobacter, or to otherwise refute the only medical opinion establishing the absence of a causal link. Though it remains uncontested and unfortunate that Ms. Landry contracted the Campylobacter bacterium, which we accept to have caused her illness, nothing in the record serves to provide an independent, causal link between her alleged consumption of the po-boy sandwich and the presence of the bacterium. While her own testimony suggests some correlation between the two events, the evidence presented, on balance, does not create a genuine issue of material fact with respect to establishing causation.

V.

CONCLUSION

We cannot say that Ms. Landry has presented sufficient evidence to create any genuine issue of material fact regarding the deleteriousness of the food allegedly purchased and consumed from Defendant's food store, which in turn caused her illness. Even if this court were so inclined to infer the deleteriousness of the po-boy sandwich allegedly purchased and consumed by Ms. Landry, we find the absence of evidence presented demonstrating any positive causal connection in her favor mandates the granting of summary judgment in Defendant's favor.

Based upon the foregoing, the judgment of the trial court is affirmed in all respects. Costs of this appeal are assessed to Terese Landry.

AFFIRMED.

      We also note that the decision in Foster was rendered from a procedural posture distinct from that of the instant case. While the court in Foster did not disturb the trial court's findings that the plaintiff had sufficiently met his burden of proof pursuant to a manifest error standard of review, this court is tasked with conducting its own independent, de novo review of the trial court's grant of summary judgment in favor of Defendant.

      Ms. Landry misapplies the standard regarding causation. Her brief states, "Appellant testified that a po-boy from Joey's was the only food item she had consumed the day she contracted her illness, making it reasonable to assume causation by a preponderance of the evidence with the lack of another inciting agent." As the most critical, and often most burdensome, element to be proven before imposing liability, causation must be established by a preponderance of the evidence rather than merely assumed based upon a reasonable belief.