author: SOL GOTHARD, Judge.

text:
    STATE of Louisiana v. Daniel PERRILLOUX.
    No. 03-KA-0917.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2003.

      Harry J. Morel, Jr., District Attorney, Earn K. McElwee, Hahnville, LA, for Plaintiff/Appellee.
    Frank Sloan, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY and CLARENCE E. McMANUS.
   SOL GOTHARD, Judge.

Defendant, Daniel Perrilloux, appeals his conviction and sentence on charges of armed robbery and attempted second degree murder. For reasons that follow, we affirm.

Perrilloux was originally charged in a two-count bill of indictment with the second degree murder of Luan Nguyen and the attempted first degree murder of Wendy Owens. He was arraigned and entered a plea of not guilty on both counts. The indictment was subsequently amended twice to charge armed robbery of Luan Nguyen and attempted second degree murder of Wendy Owens. The defendant was re-arraigned after each amendment and ultimately entered pleas of not guilty by reason of insanity to both charges.

After a four-day trial, a jury found defendant guilty as charged on the armed robbery charge and guilty of the lesser and included crime of attempted manslaughter on the attempted second degree murder charge. In due course defendant was sentenced to ninety years of imprisonment at hard labor without benefit of parole, probation or suspension of sentence on the armed robbery conviction, and to a concurrent twenty year sentence on the attempted manslaughter conviction. A timely appeal was filed and granted.

FACTS

On July 22, 2000, Daniel Perrilloux parked his silver Chrysler vehicle on the side of Harry’s One Stop convenience store located at Highway 628 and Hollywood Park Road in Montz, Louisiana. He entered the store armed with a tire wrench and a knife, stood at the counter and demanded money. According to 13Perrilloux’s testimony he intended to rob the store to get money to purchase cocaine. The owner of the store, Luan Nguyen, opened the cash register and gave some money to Perrilloux. In the course of the robbery, Mr. Nguyen produced a gun which Perrilloux and Mr. Nguyen wrestled over. During the struggle Mr. Nguyen was shot in the head and killed. As defendant ran from the store, he was seen by the second victim, Ms. Wendy Owens, a customer of the store. According to Perrilloux’s testimony, he believed that Ms. Owens was trying to make a note of the license plate on his car. To avoid this, Perrilloux shot several times at Ms. Owens. The shots missed Ms. Owens, but entered the back window of her vehicle. Perrilloux fled the scene.

As this crime was being investigated, officers received notice of an attempted armed robbery of the KarWN-Karry convenience store in LaPlace. During this attempted robbery, the perpetrator was armed with a tire tool. The description matched that of the robber in the crime being investigated. Perrilloux was subsequently arrested by police.

LAW

On appeal defendant assigns two errors for our review. In the first, he argues the trial court abused its • discretion in failing to sustain a Batson challenge. In particular, he reasons that the State’s explanation for striking potential juror Deloyd Dabney was a “concocted pretext,” and it should not have been accepted as a “race-neutral” explanation that satisfied the State’s burden under Batson.

The State replies that the defendant did not satisfy his burden of establishing a prima facie case of purposeful discrimination by the State in its use of peremptory strikes. Additionally, the State adds that the trial court judge correctly found the State’s exclusion of Deloyd Dabney was for race-neutral reasons, not because of its intent to exclude a juror on the basis of race.

|4It is well settled that the use of peremptory challenges based solely on a juror’s race is prohibited. Batson v. Kentucky, supra. The Batson decision is codified in our law in La.C.Cr.P. art. 795(C). In Batson, the United States Supreme Court established a three-step analysis to determine whether a peremptory challenge has been used in violation of the Equal Protection Clause.

First, a defendant must establish a prima facie case of discrimination by showing facts and relevant circumstances that raise an inference that the prosecutor used his or her peremptory challenges to exclude potential jurors on the basis of race. Batson, 476 U.S. at 94, 106 S.Ct. at 1722, 90 L.Ed.2d at 86; State v. Harris, 01-408 (La.6/24/02), 820 So.2d 471, 473. In order to establish a prima facie case, the defendant may offer any facts relevant to the question of the prosecutor’s discriminatory intent to satisfy this burden. Such facts include, but are not limited to, a pattern of strikes by a prosecutor against members of a suspect class, statements or actions of the prosecutor which support an inference that the exercise of peremptory strikes was motivated by impermissible considerations, the composition of the venire and of the jury finally impaneled, and any other disparate impact upon the suspect class which is alleged to be the victim of purposeful discrimination. State v. Green, 94-887 (La.5/22/95), 655 So.2d 272, 288. It is not enough that a discriminatory result be evidenced but rather that result must be traced to a discriminatory purpose. The sole focus of the inquiry is upon the intent of the prosecutor at the time he exercised his peremptory strikes. Id. If the defendant fails to make a prima facie case, then the challenge fails.

Second, if a prima facie case is established, the burden shifts to the State to come forward with a race-neutral explanation for its peremptory challenges. Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834, 839 (1995); Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991); State v. Harris, supra, 820 So.2d at 473. The race-neutral explanation | Smust be one that is clear, reasonably specific, legitimate and related to the case at bar. State v. Dunn, 01-1635 (La.11/1/02), 831 So.2d 862, 869. This is a burden of production, not one of persuasion. State v. Harris, supra. Unless the discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race-neutral. Purkett, supra, 514 U.S. at 768, 115 S.Ct. at 1771, 131 L.Ed.2d at 839; State v. Duplessy, 853 So.2d 77 (La.App. 5 Cir. 7/29/03).

Third, if a race-neutral explanation is tendered, then the trial court must determine whether the defendant has established purposeful discrimination. Purkett, supra; Batson, supra; Harris, supra. The question is “whether the defendant’s proof, when weighed against the prosecutor’s proffered ‘race-neutral’ reasons, is strong enough to persuade the trier-of-faet that such discriminatory intent is present.” State v. Green, supra, 655 So.2d at 290.

In State v. Duncan, 99-2615 (La.10/16/01), 802 So.2d 533, 549, the Louisiana Supreme Court observed the following regarding the selection of a token number of persons from the cognizable racial group:

Although we agree with defendant that the mere presence of some African-Americans on the jury is no bar to find a prima facie case, we also recognize, as the state contends, that it is appropriate to consider the fact that the state did not eliminate all African Americans when deciding whether or not there exists a prima facie case of discrimination.

A trial court’s ruling on a Batson challenge is afforded great discretion. In State v. Dunn, supra, 831 So.2d at 872, the Louisiana Supreme Court also stated:

Because it is difficult to detect intent from a cold transcription of the record, the reviewing court should give great deference to the trial judge’s findings since those findings largely turn on an evaluation of credibility.

A single instance of race discrimination during the jury selection process, which is not identified and corrected by the trial court, constitutes reversible error. Batson, supra, 476 U.S. at 95-96, 106 S.Ct. at 1722-1723; State v. Lewis, 01-155 (La.App. 5 Cir. 8/28/01), 795 So.2d 468, 471, writ denied, 01-2682 (La.8/30/02), 823 So.2d 939.

The defendant in this case is an African-American and the victims are not. The racial composition of the general venire is unknown from the record. Likewise, the record does not clearly establish the racial composition of the petit jury in this case, but it appears to indicate the presence of one African-American female juror on the main jury panel, and one alternate African-American female juror. In the selection of the twelve-member jury panel in this case, the record shows the State exercised four of six peremptory challenges against potential jurors who were African-American: Leotha Alexander, Rachelle Thomas, Edward Givens, and Deloyd Dab-ney. There were two jury panels who were questioned in this case, and the twelve-member jury was selected from the first panel, while the two alternate jurors were selected from the second jury panel.

Following the voir dire of the first jury panel, the State’s first peremptory challenge was exercised against Ms. Leotha Alexander, an African-American female. The State mentioned that the reason for striking this potential juror was because the juror had stated that she would prefer to see the weapon used to commit the crime and because she had family members who had been arrested for drug violations. The State’s second peremptory challenge was exercised against Ms. Rachelle Thomas, an African-American female. The reason stated by the prosecution for exclusion was that Ms. Thomas indicated that she formerly had a social connection to the defendant, when Ms. Thomas and defendant were students. Ms. Thomas stated that the defendant was a football player and she was on the dance team in school.

The defense lodged a Batson challenge and indicated that both Alexander and Thomas were African-American females. The defense also stated that Ms. Thomas had stated that she did not really know the defendant, to which the 17prosecution disagreed. The trial judge stated that he found the prosecution’s reasons to be race-neutral and the judge also stated that he did not find the defendant had established a discriminatory basis for exclusion.

The State’s third peremptory exception was exercised against Mr. Edward Givens, an African-American male. The defense again urged a Batson challenge. The State noted its reasons for exclusion as being the fact that Mr. Givens had not been forthcoming about his son’s mental illness and Mr. Givens’ possible sympathy for the defendant, because of Givens’s son’s condition of mental illness. Thereafter, the trial court judge stated that he was not convinced the defendant had presented a prima fade case of discrimination, but he noted that three African-Americans had been struck by the State. The State responded that it would have struck Mr. Gros, who was a Caucasian nineteen-year-old male, but the defense exercised their challenge against him.

The State exercised its fourth peremptory challenge against Mr. Brad Caillouet, a Caucasian male, because he had alcohol and drug problems. The State’s fifth peremptory challenge was exercised against Deloyd Dabney, a nineteen-year-old African-American male. The defense raised a Batson challenge and noted that four of the State’s five challenges were exercised against African-Americans. The State responded that it would have eliminated Mr. Gros for the same reason she chose to eliminate Mr. Dabney. Thereafter, the trial judge stated for the record that four African-Americans had been struck by the State and the trial judge found the defendant had established a prima fade inference that the State’s preemptory challenges were being used to exclude a certain class of jurors (i.e., African-Americans), and he noted the State now had the burden to refute this.

The State responded that Mr. Dabney was too young and did not have the necessary life experiences to handle the complex issues this case involved. In particular, the following explanation was given:

I «PROSECUTOR:
That’s it. He’s young. He’s 19 years old. I wouldn’t be keeping anybody else that’s that young.
THE COURT:
I’m sorry?
PROSECUTOR:
I wouldn’t keep anybody else who’s that young.
DEFENSE:
Is there a reason that young people are not fair and impartial?
PROSECUTOR:
I think in this case, Judge, that the legal concepts are going to be a little more complicated and require a little more living to have been done to understand what is coming forward.

Thereafter, the judge called Mr. Dabney to the bench and he was questioned by the court. Mr. Dabney indicated that he was a nineteen-year-old graduate of Destrehan High School and he worked for the Grand News Group as a stock person. He also stated that he had not gone to vo-tech school nor to college, but while in high school, he earned grades of “B” and “C.” He also stated that he could understand the concepts and he was sure he could follow the law. Mr. Dabney indicated he did not think his age would be a problem.

Following the questioning of Mr. Dab-ney, the prosecutor added an additional basis for exclusion, namely, that she had observed that Mr. Dabney had a gold and diamond earring in his ear. The prosecutor was of the opinion that this indicated this potential juror could be involved in drugs and also that he did not have a good perception of himself. Thereafter, the court accepted the State’s reasons as being race-neutral and reasonable. The court also found that a pattern of discrimination had not been established and the judge granted the peremptory challenge of Mr. Dabney.

Thereafter, both the State and the defense accepted Ms. Lori Davis, an African-American female. The State’s sixth and final peremptory challenge |9exercised before the twelve-member panel was selected from the first jury panel was against Mr. Charles Moore, a Caucasian male.

During the voir dire of the second jury panel, the State exercised one peremptory challenge to exclude Mr. Brad Palmer. Following the selection of the two alternate jurors from this panel, the State noted that it had agreed to the selection of Ms. Stephanie Williams, an African-American female from this panel to serve as an alternate juror.

Defendant, on appeal, complains that Mr. Dabney’s exclusion from the jury was racially motivated. He alleges that the “earring explanation” given by the State was a concocted pretext. In this regard he points to the fact that this explanation was only given after the prosecution’s first explanation for exclusion (i.e., youth and inexperience) failed, after being rebutted by Dabney during questioning by the court.

A juror’s age has been found to be an acceptable race-neutral reason for the State to exercise a peremptory challenge. See, State v. Thompson, 516 So.2d 349, 354 (La.1987), cert. denied, 488 U.S. 871, 109 S.Ct. 180, 102 L.Ed.2d 149 (1988), reh’g denied, 488 U.S. 976, 109 S.Ct. 517, 102 L.Ed.2d 551 (1988).

A potential juror’s appearance, when considered with other factors, has also been held to constitute a race-neutral basis for challenge under Batson. See, Purkett v. Elem, 514 U.S. at 769, 115 S.Ct. at 1771(long, unkempt hair and beard); State v. Johnson, 00-1552 (La.App. 5 Cir. 3/28/01), 783 So.2d 520, 526, writ denied, 01-1190 (La.3/22/02), 811 So.2d 921 (earrings, holes in jeans and was tardy); State v. Banks, 96-652 (La.App. 5 Cir. 1/15/97), 694 So.2d 401, 408 (gold jewelry and T-shirt and alleged he was disabled); State v. Jones, 98-842 (La.App. 5 Cir. 12/10/99), 729 So.2d 57, 61 (purple hair and indecisive).

In Purkett v. Elem, supra, 514 U.S. at 769, 115 S.Ct. 1769, the United States Supreme Court found that the prosecutor’s proffered explanation that he struck a juror because of Imlong, unkempt hair, a mustache, and a beard is a race-neutral reason. The Supreme Court stated the following rationale (quoting in part from EEOC v. Greyhound Lines, Inc., 635 F.2d 188, 190, n. 3 (C.A.3, 1980)):

‘The wearing of beards is not a characteristic that is peculiar to any race.’ And neither is the growing of long, unkempt hair.

Additionally, perceived sympathy with the defendant has been held to be a race-neutral challenge under Batson. See, State v. Thompson, supra, 516 So.2d at 354; State v. Nieves, supra, 653 So.2d at 685.

In this case, the first basis for exclusion mentioned by the State was the fact that this potential juror was young and had not had sufficient life experiences, and this gave the prosecutor concern that he would be unable to assimilate the legal concepts involved in this case. In this case, it was more than mere age that was the basis for exclusion. As explained by the prosecutor, it was the juror’s lack of life experiences. Although the answers elicited regarding the defendant’s age and educational background may have negated the objection that the defendant was young, they did not appear to overcome the objection on the basis that the juror lacked life experiences that would enable him to deal with the technical defenses presented by this case. Also persuasive in this regard was the fact that the prosecutor stated on the record that, but for the defense’s strike, the prosecutor would have excluded Mr. Gros, a white male, on the same basis.

After Dabney was questioned by the court concerning his age, education and ability to understand, but before the judge ruled on the challenge, the prosecutor mentioned that his appearance was a second basis for her exclusion. In particular, she noted that he was wearing a gold and diamond earring which indicated to her involvement with drugs. The prosecutor also noted that this reflected upon how Dabney perceived himself. Appearance, and its significance, has also been found to be race-neutral basis for juror exclusion.

InThe trial judge found the State’s explanations to be race-neutral. He concluded that the defendant had not established a discriminatory basis for exclusion. The determination as to whether the prosecutor has enunciated race-neutral reasons for using peremptory challenges to excuse African-American jurors is a factual one made by the trial judge, who has the benefit of hearing the voir dire questions and the answers of prospective jurors. Thus, the trial court’s determination on a Batson claim is entitled to great deference on appellate review, and will not be disturbed unless the record indicates that any reasonable trial court must reach the conclusion that the prosecutor exercised peremptory challenges on the basis of a juror’s race alone. State v. Nieves, supra, 653 So.2d at 685.

A review of the record as a whole and in particular the questions and responses during voir dire, indicates the trial judge did not abuse his considerable flexibility and broad discretion in finding that the defendant did not establish a prima facie case of discriminatory selection of jurors. Disproportionate strikes alone are not unconstitutional; proof of discriminatory intent or purpose is required. Hernandez v. New York, 500 U.S. 352, 360, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395. A prosecutor’s explanation of his peremptory strikes will be deemed neutral unless a discriminatory intent is inherent therein. State v. Williams, 610 So.2d 991, 1002 (La.App. 1 Cir.1992). A review of the entire record fails to disclose any statements, questions or comments by the prosecutor that would establish any race-based exercise of peremptory challenges by the State. Additionally, defendant does not cite any such instances.

Furthermore, a review of the voir dire of the remaining excluded African-American jurors stricken by the State indicates specific, objective and trial-related reasons for their exclusion. The exclusions were directly related to the potential jurors’ responses during voir dire. Ms. Alexander was excluded because she preferred to see a weapon and she had family members arrested for drug violations. \v¿ Ms. Thomas had a previous social relationship with the defendant. Mr. Givens had not been forthright about his son’s mental problems. In addition, the record reveals the State’s selection and exclusion of both Caucasians and African-Americans.

We find no merit in this assignment of error.

In the second assignment, defendant contends that sentences of ninety years of imprisonment for armed robbery and twenty years for attempted manslaughter are excessive. He reasons that these crimes were committed during a “drug induced/influenced binge.” He also argues that he was otherwise a decent man who was employed and had a wife and children. The same claims were raised in defendant’s written motion for reconsideration of sentence and were argued at the hearing on the motion to reconsider sentence. Following the hearing on the motion to reconsider sentence, the trial judge denied the motion.

At the time of this offense, the sentencing range for armed robbery was ten to ninety-nine years of imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. La. R.S. 14:64(B). The sentencing range for attempted manslaughter at the time of this offense was imprisonment at hard labor for not more than twenty years. La. R.S. 14:27; 14:31. In this case, the defendant received a sentence of ninety years at hard labor without benefit of parole, probation, or suspension on the armed robbery conviction, and twenty years at hard labor on the attempted manslaughter conviction. The sentences were ordered to be served concurrently.

A sentence within statutory limits may nonetheless be constitutionally excessive. U.S. Const, amend. VIII; La. Const. of 1974, art. I, § 20. See, State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1, 4, reh’g denied, 01-2574 (La.3/21/03), 2003 La. LEXIS 735, citing State v. Sepulvado, 367 So.2d 762, 767 (La.1979). A sentence is constitutionally excessive when it imposes punishment grossly disproportionate to the severity of the offense or constitutes nothing more |13than a needless infliction of pain and suffering. See, State v. Smith, supra; State v. Weaver, 01-467 (La.1/15/02), 805 So.2d 166, 174.

In determining whether a sentence is excessive, the test imposed on the reviewing court is two-pronged. First, the record must show that the trial court took cognizance of the sentencing guidelines set forth in La.C.Cr.P. art. 894.1. State v. Lobato, 603 So.2d 739, 751 (La.1992); State v. Woodward, 02-1017 (La.App. 5 Cir. 3/25/03), 844 So.2d 236, 239-240. The trial judge “shall state for the record the considerations taken into account and the factual basis therefore in imposing sentence.” La.C.Cr.P. art. 894.1(C); State v. Woodward, supra, 844 So.2d at 240. However, when the trial judge fails to articulate every circumstance listed in the sentencing guidelines, a remand is not necessary if there is an adequate factual basis for the sentence contained in the record. Id.

Important elements that should be considered are the defendant’s personal history, prior criminal record, seriousness of the offense and the likelihood of rehabilitation. State v. Smith, 99-606 (La.7/6/00), 766 So.2d 501, 515, reh’g denied, 99-2015 (La.8/31/00), 766 So.2d 501. Past criminal behavior that does not result in conviction is also a proper consideration at sentencing. State v. Marshall, 02-1067 (La.App. 5 Cir. 2/25/03), 841 So.2d 881, 893, writ denied, 03-909 (La.9/26/03), 854 So.2d 345.

After determining whether the provisions of La.C.Cr.P. art. 894.1 have been complied with by the trial court, the reviewing court must then determine whether the sentence imposed is too severe given the circumstances of the case and the background of the defendant. State v. Lobato, supra.

The sentencing court is given wide discretion in imposing a sentence within the statutory limits and such a sentence will not be set aside as excessive in the absence of a manifest abuse of discretion by the sentencing court. State v. Richmond, 98-1015 (La.App. 5 Cir. 3/10/99), 734 So.2d 33, 38. On appellate 114review of sentence, the only relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Smith, 839 So.2d at 4.

Before sentencing the defendant, the trial judge reviewed a number of factors that he was taking into consideration in sentencing the defendant. Prior to sentencing the defendant, the trial judge indicated he thought imprisonment was required for three reasons: (1) the defendant committed another crime; (2) defendant needed correctional treatment; and, (3) a lesser punishment would deprecate the seriousness of the offense.

The trial judge listed the following “aggravating circumstances” involved in these crimes as: (1) the defendant fired a semiautomatic weapon outside the store after the robbery; (2) deliberate cruelty was shown to the victim; (3) the defendant could have left the scene but chose not to do so and there was a struggle, and the victim was shot in the, head; (4) the defendant received something of value for the crime (i.e., money); (5) defendant knowingly created a risk of harm by using a firearm and a tire tool to commit the crimes; .(8) .threats and violence were utilized in the commission of the. offenses; (9) the passerby was shot at, according to the judge, because that person could have been a potential witness;' and, (10) the armed robbery caused significant physical and economic injury in that the store’s owner was shot in the head and a family was left without a “bread winner.” He also noted that the victim did not have to die and defendant could have merely left the scene.

The trial judge also enumerated mitigating factors. The judge stated for the record that he considered the character letters written on defendant’s behalf which indicated he had never committed a crime. He also took into consideration that the defendant was a good father to his five children. Finally, the judge noted that the defendant had no prior serious felonies on his ' record. He only had two 11Rmisdemeanors (one which was an arrest only and the other a conviction for disturbing the peace).

It is apparent from the record that the trial judge considered both mitigating and aggravating circumstances as required by the sentencing guidelines set forth in La.C.Cr.P. art. 894.1. Although defendant urges his lack of criminal history and his personal history as a responsible husband and father as mitigation, it is clegr from the record that these factors were taken into account during the sentencing. Additionally, although not specifically mentioned prior to sentence being imposed, it is apparent from the record that this judge, who also presided over the trial, was aware of defendant’s claim that he committed the crimes because he was under the influence of drugs at the time of the offenses. However, it is also recognized that the jury in convicting the defendant apparently repudiated this defense. The trial judge complied with the first prong of the two-prong sentencing test.

Having satisfied the first prong of the test, it must now be determined if the sentence is too severe given the circumstances of the case and the background of the offender. In the instant case, the armed robbery resulted in the death of the store owner. Additionally, this armed robbery was one of three committed during a thirteen-hour crime spree. We believe the sentence is not excessive given these facts.

The defendant was given the maximum sentence of twenty years for his conviction for attempted manslaughter. Maximum sentences are appropriately imposed only for the most serious violation of the described offense and for the worst kind of offender. State v. Jones, 398 So.2d 1049 (La.1981); State v. Farhood, 02-490 (La.App. 5 Cir. 03/25/03), 844 So.2d 217.

Perrilloux was charged with attempted second degree murder and the jury returned a responsive verdict of attempted manslaughter. The record reveals that the attempted manslaughter was one in a series of felonies defendant committed in | [(¡a thirteen-hour time frame. Moreover, the record also indicates this felony occurred when defendant fired three shots from a semi-automatic weapon at mid-morning in the convenience store parking lot while aiming at a bystander. The bystander was a potential witness and was attempting to aid law enforcement in defendant’s apprehension, by copying down defendant’s license plate number. The maximum sentence of twenty years for attempted manslaughter is not excessive under the facts of this case.

Considering the facts of this case and the extensive reasons for sentence recited by the trial judge, these sentences do not constitute an abuse of the trial judge’s sentencing discretion.

We have reviewed the record for errors patent in accordance with La.C.Cr.P. art. 920 and found that the trial court’s advisory to the defendant concerning the prescriptive period for post-conviction relief under La.C.Cr.P. art. 930.8 is incorrect in that the trial court informed defendant that the commencement date of the prescriptive period ran from the day the sentence became final, rather than from the day the conviction and sentence became final. Accordingly, we instruct the trial court to send appropriate written notice to defendant of the exact statement of law regarding the prescriptive period for post conviction relief and to file proof in the record that defendant receive the notice. State v. Stelly, 98-578 (La.App. 5 Cir.12/16/98), 725 So.2d 562.

The defendant’s convictions and sentences are affirmed and the matter is remanded to the trial court.

AFFIRMED AND REMANDED

      . Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).


source: Caselaw Access Project

author: CLARENCE E. McMANUS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. George BRUCE.
    No. 03-KA-918.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2003.

      Paul D. Connick, Jr., District Attorney, Andrea F. Long, Terry M. Boudreaux, Robert Malbrough, Assistant District Attorneys, Gretna, LA, Counsel for State.
    Prentice L. White, Baton Rouge, LA, Counsel for defendant-appellant.
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY and CLARENCE E. McMANUS.
   CLARENCE E. McMANUS, Judge.

Defendant, George Bruce, was charged in a bill of information on March 15, 2002 with possession of cocaine in violation of LSA-R.S. 40:967(C). At approximately 2:30 p.m. on February 26, 2002, Officer Harold Bourgeois and Deputy Philip DeS-alvo were on patrol in the 8000 block of Airline Drive, also known as Bunche Village, in Metairie when they saw defendant and a black female standing on the corner of Ivy and Elm Street conversing with each other.

Officer Bourgeois knew the area to be a high drug area and believed a hand-to-hand drug transaction had occurred between defendant and the female. As the officers approached the pair in an unmarked vehicle, the pair split up and started walking in different directions.

Both Officer Bourgeois and Deputy DeSalvo then observed defendant take something out of his mouth and drop an object on the ground. Officer Bourgeois, who was only five yards away from defendant, exited his vehicle and picked up the object which was a clear cellophane wrapper containing three off-white rocks that later tested positive for cocaine. Defendant was subsequently arrested.

|3He pled not guilty and the Indigent Defender Board (IDB) was appointed to represent him. Defendant subsequently sought to represent himself and, on June 17, 2002, the trial court granted his request. Thereafter, defendant filed pro se pretrial motions consisting of a motion for a bill of particulars and a motion for discovery and inspection of exculpatory evidence. The State filed written responses to defendant’s request for a bill of particulars. Defendant also requested a few subpoenas duces tecum which were granted in part.

Defendant proceeded to trial on August 26, 2002. At trial, defendant admitted being at the corner of Ivy and Elm on February 26, 2002 with a female when the police approached but denied that he possessed cocaine on that date. After a three-day trial, a unanimous six-person jury found defendant guilty as charged. Defendant was sentenced to two years at hard labor.

The State then filed a multiple offender bill of information alleging defendant to be a third felony offender based on two prior convictions for possession of cocaine and armed robbery. Defendant stipulated to the allegations contained in the multiple bill and was resentenced as a multiple offender to five years without probation or suspension of sentence.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant’s sole argument on appeal is that the trial court erred in allowing him to represent himself without ascertaining that he knowingly and intelligently waived his right to counsel. Defendant contends the trial court did not inquire into his understanding of the proceedings or advise him of the dangers and disadvantages of self-representation. As a result, defendant claims the record shows he inadequately represented himself in that his questions of witnesses were irrelevant, he failed to lodge any objections during the State’s case, and he did not oppose any of the State’s evidence. Defendant maintains the trial court committed reversible error in allowing him to represent himself.

pThe Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution give a defendant the right to counsel as well as the right to defend himself. A defendant may represent himself only if he makes an unequivocal request to represent himself and knowingly and intelligently waives his right to counsel. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); State v. Bridgewater, 00-1529 (La.1/15/02), 823 So.2d 877, 893, cert. denied, 537 U.S. 1227, 123 S.Ct. 1266, 154 L.Ed.2d 1089 (2003).

Once a defendant has clearly requested to represent himself, the trial court must determine whether the defendant is competent to waive counsel and is “voluntarily exercising his informed free will.” State v. Santos, 99-1897 (La.9/15/00), 770 So.2d 319, 321, quoting Faretta, 422 U.S. at 835, 95 S.Ct. 2525. The competency at issue is a defendant’s competence to waive the right to counsel and not his competence to represent himself. State v. Santos, supra at 321.

In accepting a waiver of counsel, the trial court should advise the defendant of the nature of the charges, the penalty range for the charges and of the dangers and disadvantages of self-representation such as the failure to recognize objections to inadmissible evidence and the inability to adhere to technical rules governing trials. State v. Strain, 585 So.2d 540, 542-543 (La.1991). Additionally, the trial court should inquire into the defendant’s age, education and mental condition and should determine according to the totality of circumstances whether the accused understands the significance of the waiver. State v. Strain, supra at 542. In order to sufficiently establish on the record that defendant is making an intelligent and knowing waiver, the inquiry should involve more than an interchange of “yes” or “no” responses from the defendant. Id.

There is no inflexible criteria or magic word formula for determining the validity of a defendant’s waiver of the right counsel. Rather, the validity of the | ¿waiver must take into account the totality of the circumstances in each case. State v. Stevison, 97-3122 (La.10/30/98), 721 So.2d 843, 845.

The failure of the trial court to secure a valid waiver of counsel constitutes reversible error. State v. Price, 96-680 (La.App. 5 Cir. 2/25/97), 690 So.2d 191, 196.

Defendant cites State v. Drumgole, 31,294 (La.App. 2 Cir. 10/28/98), 721 So.2d 956, in support of his position that the trial court did not adequately ascertain whether he knowingly and intelligently waived his right to counsel. In Drumgole, the court determined defendant’s waiver of counsel was invalid. The only questions the trial court asked defendant was whether he wanted to represent himself and whether defendant thought he was competent to handle his case. The trial court then accepted defendant’s affirmation without further inquiry.

To the contrary, the record in the present case shows a detailed inquiry into the understanding of defendant in waiving his right to counsel. On June 17, 2002, defendant appeared in open court and unequivocally stated his desire to represent himself. Prior to reviewing the waiver of right to an attorney form, the trial court cautioned defendant against self-representation by explaining several times that defendant was facing a life sentence as a multiple offender if convicted on the underlying charge. The trial court also reviewed the current plea offer by the State which was five years as a multiple offender. The trial court expressed its opinion that self-representation places defendant at a tremendous disadvantage because the State will use an experienced prosecutor to attempt to convict defendant. While acknowledging defendant’s right to self-representation, the trial court stringently discouraged it.

The trial court further advised defendant that it could give only limited help in making sure defendant took advantage of the procedural laws available to him and even discussed defendant’s option under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The trial court reminded defendant that appointed counsel could remain on the ease as an adviser to help defendant with procedural matters. The trial court expressed concern that defendant was making a decision out of anger or frustration and took a break in the proceedings to allow defendant an opportunity to think about his decision. Defendant assured the trial court he was not choosing self-representation out of anger or frustration.

After the break, defendant again stated he wanted to defend himself. The trial court then reviewed with the defendant in open court the waiver of right to an attorney form which defendant had executed. The form indicated defendant could read and write. It advised defendant that an attorney is experienced and may know of certain defenses available or procedures which may result in defendant’s case being dismissed or the charges being reduced that may not be known to defendant. Defendant was further advised that he would have to file his own motions, make his own objections, cross-examine witnesses at trial and prepare his own defense.

Defendant was also told of his right to have an attorney appointed to assist him. Defendant questioned this right by inquiring whether the attorney appointed to assist him would be different than his original appointed IDB attorney. The trial court advised it would be the original appointed IDB attorney. Defendant again stated he did not want that attorney to assist him.

Defendant indicated he would accept another attorney but not his original IDB attorney. Defendant had earlier expressed his dissatisfaction with his appointed attorney claiming his attorney exhibited “poor performance.” Defendant ultimately stated he understood everything the trial court had reviewed and the trial court granted defendant’s request to represent himself.

We find that defendant knowingly and intelligently waived his right to counsel. Defendant was advised several times of the severity of charges and the fact he faced a possible life sentence if convicted. The trial court strongly 17discouraged defendant from self-representation and cautioned him about the dangers of self-representation. After engaging defendant in a lengthy discussion, the trial court determined defendant understood his right to counsel and made a knowing and intelligent waiver of that right.

Furthermore, the trial court was aware of defendant’s prior convictions. By noting defendant faced a life sentence as a multiple offender, the trial court knew defendant had at least two prior convictions. In State v. Norman, 99-600 (La.App. 5 Cir. 2/16/00), 756 So.2d 525, 529, writ denied, 00-971 (La.3/23/01), 787 So.2d 1007, this Court stated that a defendant’s prior experience with the judicial process and criminal justice system from previous convictions could be considered in determining whether a defendant made a knowing and intelligent waiver of his right to counsel. In Norman, defendant had two prior felony convictions. This Court determined that defendant was aware of the dangers of self-representation and had knowledge of the judicial process because of his past experiences. See also, State v. Luna, 00-858 (La.App. 5 Cir. 10/31/00), 772 So.2d 249, 258, writ denied, 00-3244 (La.10/12/01), 799 So.2d 495, where this Court determined the defendant’s past experience with the criminal justice system helped support a finding that the defendant understood the waiver of counsel.

Additionally, although defendant indicated a willingness to accept another attorney to assist him, an indigent defendant does not have the right to have a particular attorney appointed to represent him. State v. Harper, 381 So.2d 468, 470 (La.1980).

The record more than adequately shows the trial court assessed the defendant’s competency, understanding and volition. Accordingly, we find the district court did not err in permitting the defendant to act as his own attorney and represent himself.

| ¿ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). One error patent is presented for review.

The trial court ordered defendant’s enhanced five-year sentence to be served concurrently “with any parole or probation revocation that he may be facing in any other court.” At the beginning of the multiple bill hearing, the prosecutor represented that defendant’s parole had been revoked and that the enhanced sentence could run concurrently with the parole revocation. While there is no prohibition against a trial court ordering a sentence to run concurrent with a parole revocation, LSA-C.Cr.P. art. 901(C)(2) states that only the judge who revokes the probation can order the sentence on a probation revocation to run either concurrent or consecutively with the sentence on the later conviction. State v. Perrilloux, 99-1314 (La.App. 5 Cir. 5/17/00), 762 So.2d 198, 205-206.

The record indicates defendant’s parole was revoked. There was no mention of a probation revocation. It appears the trial court simply erred in including the words “probation revocation” in its imposition of a concurrent sentence. Nonetheless, the trial court lacked authority to order defendant’s five-year enhanced sentence to be served concurrently with any sentence defendant received in a probation revocation proceeding.

In State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, the Louisiana Supreme Court effectively held that the appellate court has the authority to recognize and correct an illegally lenient sentence. In State v. Clemons, 01-1032 (La.App. 5 Cir. 2/26/02), 811 So.2d 1047, writ denied by State v. Phillips, 02-866 (La.11/22/02), 834 So.2d 972, cert. denied by Clemons v. Louisiana, — U.S. -, 123 S.Ct. 2228, 155 L.Ed.2d 1117 (2003), this Court remanded the case for the correction of defendant’s illegally lenient sentence | (¡where the trial court failed to impose a fine of “not more than ten thousand dollars” and failed to specify that the defendant’s sentence would be “without benefit of probation, parole, or suspension of sentence” as required by statute.

Therefore, we remand this matter to the trial court for resentencing in accordance with the above.

Accordingly, we affirm the trial court’s ruling allowing defendant to represent himself and remand this matter for resen-tencing.

AFFIRMED; REMANDED FOR RE-SENTENCING.


author: WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana v. Frank J. ROBERTS.
    No. 03-KA-933.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2003.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet Clark, Thomas Block, Assistant District Attorneys, Gret-na, LA, Counsel for the State of Louisiana, Plaintiff/Appellee.
    Martin E. Regan, Jr., Kris A. Moe, Re-gan & Associates, P.L.C., New Orleans, LA, Counsel for Frank Roberts, Defendant/Appellant.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

This is defendant’s second appeal. His first appeal was dismissed as untimely because it was filed more than five days after the ruling he sought to appeal. The matter was remanded to allow defendant an opportunity to seek reinstatement of his appeal rights through an application for post-conviction relief under State v. Counterman, 475 So.2d 336 (La.1985). See, State v. Roberts, 02-KA-538 (La.App. 5 Cir. 11/26/02), 836 So.2d 710, an unpublished opinion. In accordance with this Court’s opinion, defendant filed two applications for post-conviction relief and was ultimately granted an out-of-time appeal on July 11, 2003.

As stated in this Court’s previous opinion, defendant, Frank Roberts, along with several co-defendants, was charged in mul-ti-count bill of information on July 3, 2001 with two counts of theft over $1,000 in violation of LSA-R.S. 14:67, and one count of simple burglary of an inhabited dwelling in violation of LSA-R.S. 14:62.2. The bill of information was amended on October 15, 2001 to reduce the | ¡¡charge of simple burglary of an inhabited dwelling to possession of stolen property valued over $500 in violation of LSA-R.S. 14:69(A).

Pursuant to a plea agreement, defendant pled guilty to all three charges, as amended, and was sentenced to ten years on each of the three counts to run concurrently. The sentence was suspended and defendant was placed on five years of active probation.

Thereafter, on October 22, 2001, defendant filed a motion to withdraw his guilty pleas claiming his attorney had a conflict of interest in representing multiple co-defendants with opposing interests. His motion was denied after a hearing on March 13, 2002. On the same day, defendant’s probation was revoked for violating the conditions of his probation and his original ten-year sentence was reinstated.

FACTS

Defendant pled guilty so the facts are limited to the information ascertained during the plea colloquy. Regarding the illegal possession of stolen property charge, defendant stated that he purchased a television set which he had good reason to believe was stolen and had it at his residence. As for the theft charges, defendant stated he sold a stolen four-wheeler and received $1,000 from the person he sold it to. He denied stealing the four-wheeler. The State indicated it would prove defendant stole the four-wheeler, valued at $1,000, from Wal-Mart on August 11, 2000 and, then, subsequently sold the four-wheeler to Angie Abadie, who paid defendant over $1,000 cash, on February 14, 2001.

ASSIGNMENT OF ERROR NUMBER ONE

The trial court erred in failing to inquire about the joint representation of Frank Roberts and his codefendants to advise each of their right to separate representation pursuant to La.C.Cr.P. art. 517.

| ASSIGNMENT OF ERROR NUMBER TWO

The court abused its discretion in denying Roberts’ motion to withdraw his guilty plea, when it was disclosed that a conflict existed between jointly represented code-fendants Roberts and Barrios. DISCUSSION

These two assignments of error raise overlapping issues and, thus, are considered together. Defendant first argues the trial court erred in failing to advise him of his right to conflict-free representation before accepting his guilty pleas as required by LSA-C.Cr.P. art. 517. He maintains the failure of the trial court to issue this mandatory advice constitutes reversible error. Defendant also argues he received ineffective assistance of counsel because his counsel jointly represented him and his co-defendants despite a conflict of interest. As such, he claims the trial court erred in denying his motion to withdraw his guilty pleas.

The State responds that the failure of the trial court to advise defendant of conflict-free representation pursuant to LSA-C.Cr.P. art. 517 is harmless error. The State further contends defendant failed to prove he suffered any prejudice due to the joint representation and, therefore, was not denied effective assistance of counsel.

LSA-C.Cr.P. art. 517(A) provides:

Whenever two or more defendants have been jointly charged in a single indictment or have moved to consolidate their indictments for a joint trial, and are represented by the same retained or appointed counsel or by retained or appointed counsel who are associated in the practice of law, the court shall inquire with respect to such joint representation and shall advise each defendant on the record of his right to separate representation.

(Emphasis added.)

| sIn the present case, the trial court did not advise defendant of his right to separate representation as required by LSA-C.Cr.P. art. 517 prior to accepting his guilty plea. Thus, the issue is whether the trial court’s failure to comply with Article 517 renders defendant’s guilty plea invalid.

Joint representation of co-defendants by the same counsel “is not per se violative of the constitutional guarantees of effective assistance of counsel” unless it gives rise to a conflict of interest. State v. Smith, 98-2078 (La.10/29/99), 748 So.2d 1139, 1142, quoting Holloway v. Arkansas, 435 U.S. 475, 482, 98 S.Ct. 1173, 1178, 55 L.Ed.2d 426 (1978); State v. Kahey, 436 So.2d 475, 484 (La.1983). Prior to the enactment of Article 517 in 1997, the burden was on a defendant to notify the court that a possible conflict existed unless the circumstances were such that the court knew or should have known that a particular conflict existed. Absent those special circumstances, a defendant who raised no objection prior to or during trial had the burden of showing post-verdict that an actual conflict existed which adversely affected counsel’s performance in order to establish a violation of the Sixth Amendment right to effective counsel. State v. Smith, supra at 1142, citing Cuyler v. Sullivan, 446 U.S. 335, 347, 100 S.Ct. 1708, 1717, 64 L.Ed.2d 333 (1980). Only if the trial court knew or reasonably should have known that a conflict existed did it have to initiate an inquiry into the joint representation.

With the enactment of Article 517, an affirmative duty was placed on the trial court in cases of joint representation “to advise the defendant of his right to conflict-free representation.” Comment (b) to Article 517. Neither the article nor the comments set forth or discuss the repercussions for a trial court’s failure to advise a defendant of his right to separate counsel.

In State v. Miller, 00-0218 (La.App. 4 Cir. 7/25/01), 792 So.2d 104, 113-115, writ denied, 01-2420 (La.6/21/02), 818 So.2d 791, the Fourth Circuit was | ¿faced with the issue of a defendant who proceeded to trial with joint representation without being advised of his right to separate representation pursuant to LSA-C.Cr.P. art. 517. The Fourth Circuit concluded that the failure of the trial court to inquire into the joint representation on the record did not rise to the level of a denial of a defendant’s constitutional right and was subject to a harmless error analysis.

In reaching its conclusion, the Fourth Circuit relied on federal jurisprudence interpreting F.R.Cr.P. 44(c), upon which Article 517 is based. Citing United States v. Holley, 826 F.2d 331 (5th Cir.1987), cert. denied, 485 U.S. 960, 108 S.Ct. 1222, 99 L.Ed.2d 422 and United States v. Benavidez, 664 F.2d 1255, 1258 (5th Cir.1982), cert. denied, 457 U.S. 1135, 102 S.Ct. 2963, 73 L.Ed.2d 1352, the court in Miller found that Rule 44(c) was “strictly [a] procedural vehicle to lessen the possibility that after conviction a jointly represented defendant will assert a claim that his counsel was not conflict-free and thus was ineffective” State v. Miller, 792 So.2d at 114. The court concluded that Rule 44(c) did not give a defendant any new constitutional rights and, thus, by analogy, neither did Article 517.

The court in Miller ultimately concluded the record showed no actual conflict by counsel and noted the defendant failed to suggest any alternative defense he might have employed with separate counsel.

Recently, in United States v. Salado, 339 F.3d 285 (5th Cir.2003), the United States Fifth Circuit addressed the issue of whether a district court’s failure to comply with Rule 44(c) warranted reversal of defendant’s conviction. The federal appellate court stated that the trial court’s failure to comply with Rule 44(e) did not, by itself, entitle a defendant to relief. The court explained that a defendant must still demonstrate an actual conflict of interest before his conviction would be reversed. The court further stated that where a defendant did not object to the possible conflict of interest before or during trial, he must also prove the actual conflict adversely affected his counsel’s performance.

Based on the above, we find that a defendant who challenges his conviction on the basis he was deprived of his constitutional right to conflict-free representation because the trial court failed to comply with Article 517 bears the same burden of proof post-verdict that he bore prior to the enactment of Article 517; specifically, he must show an actual conflict existed which adversely affected his counsel’s performance. Thus, the trial court’s failure to inquire into the joint representation and to advise defendant of his right to separate representation as required by Article 517 does not warrant an automatic reversal.

The remaining issue, whether defendant proved an actual conflict existed which adversely affected his counsel’s performance, is effectively defendant’s ineffective assistance of counsel claim. Generally, in order to show ineffective assistance of counsel, the defendant must demonstrate that 1) his attorney’s performance was deficient, and 2) he was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Soler, 93-1042 (La.App. 5 Cir. 4/26/94), 636 So.2d 1069, 1075, writ denied, 94-1361 (La.11/4/94), 644 So.2d 1055. Where the ineffective assistance of counsel claim is based on a conflict of interest claim and defendant proves an actual conflict, a denial of effective representation exists without a showing of specific prejudice. State v. Kahey, 436 So.2d at 485.

Generally, a claim of ineffective assistance of counsel is most appropriately addressed through an application for post-conviction where a full evidentiary hearing may be conducted. State v. McIntyre, 97-876 (La.App. 5 Cir. 1/27/98), 708 So.2d 1071, 1075, writ denied, 98-1032 (La.9/18/98), 724 So.2d 753. But, |swhen the record contains sufficient evidence to decide the issue and the issue is properly raised by assignment of error on appeal, it may be addressed in the interest of judicial economy. State v. Peart, 621 So.2d 780, 787 (La.1993); State v. McIntyre, supra. We find the record in the present case is sufficient to address the issue.

In the present case, defendant filed a motion to withdraw his guilty pleas after sentencing on the basis he did not receive conflict-free representation because his attorney represented three defendants with opposing interests. Defendant explained two attorneys from the same law firm represented him and co-defendants, Tera Barrios and Gary Klegin. He claimed he would not have pled guilty had he had separate counsel. As discussed above, because defendant did not object to the joint representation prior to entering his guilty plea, he had the burden of proving an actual conflict existed which adversely affected his counsel’s performance.

An actual conflict of interests exists “when the defendant proves that his attorney was placed in a situation inherently conducive to divided loyalties.” State v. Kahey, 436 So.2d at 484. “If a defense attorney owes duties to a party whose interests are adverse to those of the defendant, then an actual conflict exists. The interests of the other client and the defendant are sufficiently adverse if it is shown that the attorney owes a duty to the defendant to take some action that could be detrimental to his other client.” State v. Kahey, 436 So.2d at 484-485, quoting Zuck v. Alabama, 588 F.2d 436, 439 (5th Cir.1979), cert. denied, 444 U.S. 833, 100 S.Ct. 63, 62 L.Ed.2d 42 (1979).

The record fails to reveal an actual conflict of interest existed in defense counsel’s joint representation of defendant and co-defendants. The bill of | flinformation shows co-defendant, Tera Barrios, was initially charged with accessory-after-the-fact for concealing and aiding defendant after the commission of a burglary of an inhabited dwelling. The charge was reduced to possession of stolen property valued over $500. Defendant contends his attorney advised him to plead guilty to his detriment and to the benefit of Barrios. Specifically, defendant asserts he was told that Barrios, his fiancée, would not receive probation unless he pled guilty.

First, defendant failed to prove the allegation that he was induced to plead guilty to his detriment. No testimony was offered at the hearing on the motion to withdraw his guilty pleas to support the allegation that such a threat was made. Additionally, the transcript of his guilty plea shows he denied he was threatened or promised anything in exchange for his guilty plea.

Second, even assuming the assertion were true, it does not demonstrate an actual conflict of interest. Defense counsel’s representation of defendant and Barrios did not prevent him from negotiating a favorable plea bargain for defendant. Defense counsel was successful in obtaining a reduced charge for defendant that did not require mandatory jail time and successfully negotiated a sentence of probation for defendant. Furthermore, there was no allegation of antagonistic defenses between defendant and Barrios and, from the record, we find that their defenses would have been consistent and compatible with each other. Thus, defendant failed to show an actual conflict existed in his counsel’s joint representation of him and Barrios.

Regarding the joint representation of defendant and co-defendant, Gary Klegin, the bill of information shows Klegin was charged with simple burglary of an inhabited dwelling unrelated to the charges against defendant. Klegin’s burglary was alleged to have occurred with another co-defendant, on a separate day, and at a separate address than the burglary with which defendant was charged. [10 At the hearing on the motion to withdraw his guilty pleas, defendant claimed Klegin had a different version of facts as to what happened but never elaborated or demonstrated how the different version adversely affected his defense. Again, defendant failed to show antagonistic defenses between him and Klegin.

Thus, defendant failed to meet his burden of proof that an actual conflict existed which adversely affected his counsel’s performance. As such, we fail to find that defendant’s constitutional right to effective assistance of counsel was violated by the joint representation. Furthermore, defendant suffered no prejudice by the trial court’s failure to advise him of separate representation, as required by LSA-C.Cr.P. art. 517, prior to accepting .his guilty plea.

Defendant’s assignments of error are without merit.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). There are no errors patent which require corrective action.

DECREE

Accordingly, for the reasons assigned herein, the conviction and sentence of defendant Frank J. Roberts are affirmed.

AFFIRMED.

      . Defense counsel filed the first application for post-conviction relief on January 14, 2003 and defendant filed a pro se application for post-conviction relief on February 4, 2003.

      . The trial court initially denied defendant's two applications for post-conviction relief on the merits without addressing defendant’s right to an out-of-time appeal. Defendant subsequently filed a supervisory writ with this Court on May 16, 2003. On June 10, 2003, this Court granted defendant’s writ and ordered the trial court to consider defendant’s application for post-conviction relief as an application for an out-of-time appeal.

      .The basis for the revocation of defendant’s probation is not before the court at this time.

      . Comment (b) to Article 517 states that the article is based, almost verbatim, on Federal Rule of Criminal Procedure 44(c). Rule 44(c) provides in pertinent part: “Whenever two or more defendants have been jointly charged ... or have been joined for trial ... and are represented by the same retained or assigned counsel ..., the court shall promptly inquire with respect to such joint representation and shall personally advise each defendant of the right to the effective assistance of counsel, including separate representation.”

      . Despite the language of LSA-C.Cr.P. art. 559, which provides that a trial court may permit the withdrawal of a guilty plea at any time prior to sentencing, a trial court can properly vacate a guilty plea after sentence if it determines that the facts surrounding a guilty plea rendered it constitutionally deficient. State v. Lewis, 421 So.2d 224, 225 (La.1982).


author: SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Nathaniel GIBBS.
    No. 03-KA-967.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2003.

      Jane L. Beebe, Louisiana Appellate Project, Gretna, LA, for Appellant, Nathaniel Gibbs.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District Court, Parish of Jefferson, Terry M. Boudreaux, Juliet Clark, Appellate Counsel, Douglas Freese, Trial Counsel, Assistant District Attorneys, Gretna, LA, for Appellee, State of Louisiana.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY and CLARENCE E. McMANUS.
   SUSAN M. CHEHARDY, Judge.

On December 20, 2000, the Jefferson Parish District Attorney filed a bill of information charging defendant, Nathaniel Gibbs, with aggravated flight from an officer, a violation of La. R.S. 14:108.1. Defendant was arraigned on December 21, 2000 and pled not guilty. On May 24, 2001, the bill was amended to add one count of simple burglary, a violation of La. R.S. 14:62. On that same date, defendant was re-arraigned on the amended bill and pled not guilty.

On July 16 and 17, 2001, trial commenced before a twelve-person jury, which found defendant guilty as charged on both counts. On August 21, 2001, defendant filed a motion for new trial, which was denied. Also on that date, defendant waived sentencing delays, and the trial court sentenced him to two years at hard labor for aggravated flight from an officer and six years at hard labor for simple burglary, with the sentences to run concurrently.

On August 21, 2001, the State filed a multiple bill alleging that defendant was a fourth felony offender. Defendant filed a motion for appeal on August 22, |s2001, which was granted. On October 9, 2001, defendant denied the allegations of the habitual offender bill of information.

On May 16, 2002, after again denying the allegations of the habitual-offender bill, defendant orally moved to quash the bill because the State had taken more than ten months to convene a multiple bill hearing. On that same date, the trial court denied defendant’s motion to quash.

On March 13, 2003, defendant again orally moved to quash alleging incorrect information in the habitual-offender bill. The State amended and corrected the bill. For a third time, defendant denied the allegations of the amended bill but waived any statutory delays and proceeded with the hearing. That day, the trial court found defendant to be a fourth felony offender, vacated the defendant’s simple burglary sentence, and imposed an enhanced sentence of twenty years at hard labor without benefit of probation or suspension of sentence. On March 18, 2003, defendant filed a motion for appeal, which was granted.

At trial, Hudson Folse, the Lubricants Manager of Retif Oil Co., testified that, on November 27, 2000, shortly before noon, he was in the main warehouse counting inventory when he heard a noise coming from the end of the warehouse. When he investigated, he saw a small to medium-sized, dark green car parked outside of the warehouse with the driver’s side door open. As Folse approached, he saw a person reach out from the driver’s side, shut the door, quickly back out of Retif Oil’s yard, spin the car around, and head southbound on Bloomfield Street.

Folse ran after the car, which was approximately fifteen to twenty yards away. As the car exited the yard, Folse saw the car’s trunk door open. When the trunk opened, Folse saw a pressure washer, identical to the one his company had lJust purchased, in the trunk of the departing vehicle. He described the pressure washer as 30 inches wide, 24 to 30 inches long, 3$ feet high, weighing 35 to 40 pounds with a 5 inch by 8 inch plastic-encased price tag reading $499.00 hanging from the handle. Although Folse was unable to see the entire license plate number, he did see that the last number on the license plate was 8.

Folse testified that he could not tell whether the driver was male or female, but he saw that the driver was black. He also stated that there was another individual sitting in the passenger seat. He could not describe either individual in more detail. Mr. Folse identified the vehicle in a still photograph taken from Retif Oil’s video surveillance camera, which had been filming another area of the yard.

Edward Castelin, a construction superintendent for F.H. Meyers Construction, testified that, on November 27, 2000, shortly before noon, he was traveling on Bloomfield Street when a green car backed out of Retif Oil Company’s fueling yard across the traffic on Bloomfield Street in front of him. He observed four or five men running after the green vehicle and calling for someone to stop the vehicle.

According to Folse, Castelin yelled out, “Stolen?” then, after Folse responded affirmatively, began pursuing the vehicle. Castelin testified that he called 911 and told the operator that he was following a green car with license plate number A558458. For safety reasons, Castelin eventually stopped pursuing the vehicle.

At trial, Castelin described the driver as a “slightly moon faced black fellow.” He could not estimate the driver’s age because the glare on the car’s windshield limited visibility. Castelin described the passenger as a “fair, white-skinned black fellow,” slimmer than the driver, in his forties, and weighing 160 to 180 pounds. He explained that one of the men had something colorful on, like a scarf or bandanna.

| Jefferson Parish Deputy Curtis Matthews testified that, on November 27, 2000, he was proceeding northbound on Arnoult Road when he observed a vehicle traveling at a high rate of speed cross in front of him two blocks ahead. He also saw that the vehicle’s trunk was open and an object, which he later identified as a pressure washer with a price tag reading $499.00 on it, was hanging out of the trunk.

To further investigate, Deputy Matthews drove his police car to the corner of Burns and Shrewsbury. The vehicle that he perceived as suspicious proceeded toward him south on Shrewsbury Road. As the vehicle approached Deputy Matthews, he “fixed in on the driver.” Deputy Matthews explained that, as the vehicle was passing him, he observed the driver intently for one or two seconds, but not the passenger. After the vehicle passed him, Deputy Matthews followed south on Shrewsbury and attempted to stop the vehicle by activating his overhead lights and sirens, but the driver did not stop.

Deputy Matthews pursued the vehicle through Jefferson Parish into Orleans Parish. During the chase, which lasted about 12 minutes, he observed the driver disregard numerous stop signs, travel more than 25 miles per hour over the posted speed limit, proceed eastbound on Jefferson Highway in the westbound lanes, jump the median on Jefferson Highway, and force vehicles off of the road on Jefferson Highway. After the vehicle entered Orleans Parish, the driver eluded Deputy Matthews.

New Orleans Police Department Officer Cyril Evans testified that, on November 27, 2000, while returning from testifying in court, he heard a police broadcast that a green Camry was fleeing from Jefferson Parish authorities into Orleans Parish. After he parked his police cruiser in front of the police substation located on South Dorgenois Street and as he walked up the steps, Officer Evans saw a green Camry turn onto South Dorgenois and park directly across the street [ ¡-.from the substation. Officer Evans observed that the license plate number of the green Camry that had just parked matched the broad-casted plate number of the fleeing green Camry.

After assistance arrived, the officers approached defendant, who was the only individual in the vehicle. In response to an inquiry from Officer Evans, the driver stated that “he had had the car all day.” At that point, Officer Evans detained the driver and notified the Jefferson Parish Sheriffs Office of the detention.

When Deputy Matthews was advised that the New Orleans Police Department had stopped the vehicle on Dorgenois Street, he proceeded to that location, walked up to the police car and immediately identified the suspect sitting in the backseat of the police cruiser as the driver of the vehicle he had been pursuing. He testified that he recognized the man’s face. Further, he recognized the black hat and a green shirt that the man was wearing, which were just like those worn by the driver of the fleeing vehicle.

Deputy Matthews also did an inventory check of the vehicle and removed bolt cutters, a pry tool, and wire snaps from the trunk, which defendant stated belonged to him. Officer Evans observed the deputy remove wire snips, bolt cutters, and a crowbar from the trunk, and he testified that the trunk smelled like gasoline.

Melanie Goodyear, the loss control manager for Enterprise Rent-A-Car, testified that Nathaniel Gibbs rented a green Toyota Camry, license plate number A558458, from Enterprise. She testified that the rental contract began on November 16, 2000.

Defendant testified that he had been previously convicted of attempted armed robbery, distribution of heroin, and several counts of theft and forgery. He explained that he installed floors for a living, but, to earn extra money, he rented |7cars and leased them to people by the hour or by the day during events like the Bayou Classic.

Defendant testified that, in November of 2000, he rented a car from Enterprise and leased it to “Linda Smith or Smothers.” Defendant told “Linda” he would pick up the car in front of the barroom on Dorge-nois Street on November 27, 2000 at noon. Defendant testified that, on November 27, 2000, he rode with a guy from work to the barroom on Dorgenois Street. At 11:30 a.m., Linda came into the bar and brought him the keys to the car. When defendant walked outside the barroom, the police handcuffed him and put him in the back of a police car. Defendant saw the officers remove his metal. snips, a crowbar, and bolt cutters from the vehicle. He explained that he used those tools to install floors.

Defendant testified that he was not driving the Camry during the high speed chase from Metairie to New Orleans, that he was not a passenger in the car during the chase, and that he had never been to Retif Oil. He admitted that he had not attempted to contact “Linda” to appear as a witness at trial.

Cleveland Pate and Deputies Don Grossnickle, Gregory L. Duncan, and Jerry Rachel also testified for the defense. Cleveland Pate, who was incarcerated on unrelated charges at the time of trial, testified that he had prior felony convictions. He stated that he has known defendant all of his life because they had been raised in the same neighborhood. He explained that, on November 27, 2000, he and defendant and three or four other people walked out of Rose’s Tavern, a bar on Dorgenois Street, and nine or ten policemen went straight up to defendant and arrested him.

Deputy Grossnickle testified that he responded to a call regarding a car chase; however, he never saw the chase, nor did he receive any calls to assist people who were on the side of the road as a result of the chase. Deputy Duncan testified that he heard a call over the radio involving a deputy who was following a | .¡vehicle; however, he never came into contact with the suspect vehicle, nor did he encounter any cars on the side of the road that needed assistance.

Deputy Rachel testified that he arrived at Retif Oil at 12:35 p.m. to investigate the burglary. While preparing his report, he received a call regarding a fleeing vehicle. Deputy Rachel began pursuing the vehicle, but lost sight of it. He did not observe any injured people or vehicles off to the side of the road. During his investigation, Deputy Rachel learned from Mr. Folse that the suspect was a black male between the ages of 19 and 25, weighed 150 to 160 pounds, and was approximately 5'10" to 6' tall. After hearing the testimony, the jury found defendant guilty as charged.

In his sole assignment of error, defendant argues that the trial court erred in denying his motion for a new trial because there was insufficient evidence to support the conviction as to the identity of the perpetrator. The State responds that the evidence was sufficient to prove that defendant committed the instant offenses.

The standard for appellate review of the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560.

When circumstantial evidence is used to prove the commission of the offense, La. R.S. 15:438 mandates that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypotheses of innocence.” The requirement of La. R.S. 15:438 does not establish a standard separate from the Jackson standard, but rather provides a helpful 1¡^methodology for determining the existence of reasonable doubt. Ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a-reasonable doubt. State v. Guccione, 96-1049 (La.App. 5 Cir. 4/29/97), 694 So.2d 1060, 1067, writs denied, 97-2151 (La.3/13/98), 712 So.2d 869 and 01-2825 (La.8/16/02), 822 So.2d 613.

Defendant was convicted of simple burglary and aggravated flight from an officer, violations of La. R.S. 14:62 and La. R.S. 14:108.1, respectively. La. R.S. 14:62 defines simple burglary as the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, or any cemetery, with the intent to commit a felony or any theft therein. La. R.S. 14:108.1 provides in pertinent part:

A. No driver of a motor vehicle shall intentionally refuse to bring a vehicle to a stop knowing that he has been given a visual and audible signal to stop by a police officer when the officer has reasonable grounds to believe that the driver has committed an offense. The signal shall be given by an emergency light and a siren on a vehicle marked as a police vehicle.
C. Aggravated flight from an officer is the intentional refusal of a driver to bring a vehicle to a stop, under circumstances wherein human life is endangered, knowing that he has been given a visual and audible signal to stop by a police officer when the officer has reasonable grounds to believe that the driver has committed an offense. The signal shall be given by an emergency light and a siren on a vehicle marked as a police vehicle.
D. Circumstances wherein human life is endangered shall be any situation where the operator of the fleeing vehicle commits at least two of the following acts:
(1) Leaves the roadway or forces another vehicle to leave the roadway.
(2) Collides with another vehicle.
(3) Exceeds the posted speed limit by at least twenty-five miles per hour.
|in(4) Travels against the flow of traffic.

Finally, La. R.S. 14:24 defines principals as all persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime.

In addition to proving the statutory elements of the charged offense at trial, the State is required to prove the identity of the perpetrator. Where the key issue is identification, the State is required to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Vasquez, 98-898 (La.App. 5 Cir. 2/10/99), 729 So.2d 65, 69.

On appeal, defendant does not argue that the State failed to establish any of the essential statutory elements of his convictions for simple burglary and aggravated flight from an officer. Rather, defendant contends that the State failed to prove beyond a reasonable doubt his identity as the offender.

Defendant contends that the evidence was insufficient to prove his identity because: (1) Deputy Matthews only viewed defendant for one or two seconds in the midday sun as the car sped past him; (2) Deputy Matthews did not broadcast a description of the driver; (3) the only evidence implicating defendant was Deputy Matthews’ suspect identification; (4) the identification was prejudicial, in that Deputy Matthews was told that officers had apprehended a suspect, and that he should come make an identification, and defendant was handcuffed in the back of the police car when he was identified; (5) defendant was 48 years old, over 6' tall, and weighed over 200 pounds at the time of the offense; however, Mr. Folse described the suspect as 19 to 25 years old, 5'10" to 6' tall, and 150 to 160 pounds; and (6) Deputy Matthews’ identification was suspect because he could not provide a description of the passenger who was nearer to him as the car sped by.

Inin his strongest argument, defendant asserts that the identification procedure was prejudicial because Deputy Matthews was told that officers had apprehended a suspect and that he should come make an identification. He further asserts that the identification procedure was prejudicial because he was handcuffed in the back of a police car when he was identified.

In Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), the United States Supreme Court set forth five factors to consider in determining if an identification is reliable: 1) the opportunity of the witness to view the criminal at the time of the crime; 2) the witness’ degree of attention; 3) the accuracy of the prior description of the criminal; 4) the level of certainty demonstrated at the confrontation; and, 5) the time between the crime and the confrontation.

One-on-one identifications, known as “show-up” identifications, are not favored; however, under certain circumstances, they are admissible at trial. State v. Jackson, 96-661 (La.App. 5 Cir. 4/9/97), 694 So.2d 440, 447, writs denied, 97-1050 (La.10/13/97), 703 So.2d 609 and 97-1255 (La.10/13/97), 703 So.2d 612. Such identifications have been found to be admissible when the identification occurred in close proximity to the time of the offense and the suspect is presented for immediate identification. State v. Robinson, 404 So.2d 907, 909-910 (La.1981). Such a process assures reliability and fosters prompt release of innocent suspects. Id.

In this case, defendant has failed to prove there was a substantial likelihood of misidentification as a result of the identification procedure even though the “show-up” identification did focus on defendant. The State negated the likelihood of mis-identification by presenting evidence that Deputy Matthews had the opportunity to get a good look at the suspect when the suspect drove past him immediately before the chase ensued. Deputy Matthews testified that, at that point, |iahe was watching and waiting for the vehicle that had been driving nearby at a high rate of speed. He specifically stated that he “focused in” on the driver to the extent that he virtually ignored the passenger. He also described the shirt and hat worn by the driver. Further, Deputy Matthews’ identification of defendant occurred only one hour and forty minutes after Deputy Matthews first viewed the suspect. Additionally, according to Officer Evans, Deputy Matthews unequivocally identified defendant as the suspect shortly after the crime occurred. Finally, Deputy Matthews unequivocally identified the defendant at trial. We find that the State’s evidence sufficiently satisfied the Manson factors. Based on the foregoing, we find that there was not a substantial likelihood of misidentification with regard to the one-on-one identification procedure.

Moreover, we find no merit in defendant’s remaining contentions regarding the evidence presented regarding his identity as the perpetrator. At trial, the State presented evidence that, on November 27, 2000, shortly before noon, Mr. Folse saw an unauthorized dark green, small to medium-sized ear outside of the Retif Oil warehouse on Bloomfield Street in Metairie. As Folse approached, the vehicle sped away from Retif Oil with a pressure washer in the trunk. Folse saw that the driver of the vehicle was black and that the last number on the vehicle’s license plate was 8.

The State also presented Mr. Castelin, who, on November 27, 2000, observed a green car driven by a black man backing out of Retif Oil’s yard into oncoming traffic. He saw men running after the car yelling that the occupants had stolen something so he pursued the car. At 11:55 a.m., Castelin called 911 and reported that he was following a green car with license plate number A558458.

The State further presented Deputy Matthews, who observed a dark green vehicle traveling at a high rate of speed with the trunk open and a pressure washer | ^hanging out of the trunk. He pursued the vehicle through Jefferson and Orleans Parishes, but eventually lost sight of it.

The State also presented testimony from Officer Evans, who heard a broadcast regarding a green Camry that was fleeing Jefferson Parish authorities and entering Orleans Parish. He subsequently saw a green Camry, with a license plate number matching that of the fleeing vehicle, turn onto South Dorgenois Street and park directly across the street from the substation.

Deputy Matthews positively identified defendant at the scene of his detention by New Orleans Police officers. He also retrieved metal snips, a crowbar, and bolt cutters from the trunk, which defendant stated belonged to him. Finally, Melanie Goodyear testified that defendant rented a green Camry with license plate number A558458 from Enterprise Ren1>-A-Car on November 16, 2000.

Although defendant testified that he neither burglarized Retif Oil nor drove the green Camry during the high speed chase, his testimony was contradicted by Officer Evans who testified that defendant told him that he was the operator of the car, and that he had had the car all day. After hearing all this testimony, the jury chose to accept the testimony of the State’s witnesses and reject defendant’s testimony.

The trier of fact shall evaluate the witnesses’ credibility, and when faced with a conflict in testimony, is free to accept or reject, in whole or in part, the testimony of any witness. State v. Rivers, 01-1251 (La.App. 5 Cir. 4/10/02), 817 So.2d 216, 219, writ denied, 02-1156 (La.11/22/02), 829 So.2d 1035. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’ testimony, if believed by the trier of fact, is sufficient support for the requisite factual findings. State v. Rivers, 817 So.2d at 219. It is the fact finder’s function to determine the weight of the evidence bearing on defendant’s | ^identification. It is not the appellate court’s function to reevaluate the credibility choices by the fact finder. State v. Spencer, 93-571 (La.App. 5 Cir. 1/25/94), 631 So.2d 1363, 1370, writ denied, 94-488 (La.2/3/95), 649 So.2d 400.

Consequently, after viewing the evidence in the light most favorable to the prosecution, we find that a rational trier of fact could have found, beyond a reasonable doubt, that defendant was the perpetrator of the crimes. Accordingly, we find defendant’s assignment of error lacks merit.

Finally, we have reviewed the record for errors patent pursuant to La.C.Cr.P. art. 920 and found none requiring remand. Based on the foregoing, we affirm defendant’s convictions and sentences.

AFFIRMED.

      . Defendant’s motion for appeal was premature when it was filed after conviction and sentence, but before the sentence as a multiple offender. However, this procedural de-feet was cured by the subsequent re-sentence. State v. Balser, 96-443 (La.App. 5 Cir. 11/14/96), 694 So.2d 351, 354.

      . On a motion for new trial, the trial court may assess only the weight of the evidence. The question of sufficiency of evidence should be raised by motion for post-verdict judgment of acquittal. La.C.Cr.P. art. 821; State v. Ellis, 95-1005 (La.App. 5 Cir. 3/26/96), 672 So.2d 1007, 1008 (citation omitted). Since the subject of this assignment of error is really sufficiency of the evidence, which is a constitutional issue, we will treat this assigned error as though it had been properly framed under La.C.Cr.P. art. 821. State v. Ellis, supra.