author: WILLIAM H. BYRNES, III, Chief Judge.

text:
    STATE of Louisiana v. Lloyd DAVIS.
    No. 2002-KA-0565.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 11, 2002.

      Harry F. Connick, District Attorney, Juliet Clark, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Laura Pavy, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge WILLIAM H. BYRNES, III, Judge TERRI F. LOVE, and Judge MAX N. TOBIAS, JR.).
   WILLIAM H. BYRNES, III, Chief Judge.

Lloyd Davis appeals his conviction and sentence for attempted possession of heroin as a quadruple offender. We affirm the conviction of attempted possession of heroin but vacate the multiple bill sentence and remand.

Facts

On October 10, 2000, Detective Raymond Veit of the Sixth District narcotics squad conducted a surveillance of the 1800 block of St. Thomas Street. He positioned himself in an empty apartment on the third floor of a building in the housing development and viewed the courtyard with the aid of binoculars. Davis, who matched the. description of the targeted subject, was playing horseshoes. As Detective Veit continued to watch, he observed Davis engage in what he believed to be two narcotics transactions. In the first, an unidentified female approached Davis and gave him currency. Davis walked onto the porch at 1809 St. Thomas Street, climbed onto the railing, reached up to the ledge on the top of one of the poles, and retrieved a bag from which he removed an object. Davis replaced the bag, then returned to the female and gave her the object. The female left the area. Considering | ¿that she was on foot, Detective Veit elected not to have his back-up officers stop her because of his concern that the surveillance would be compromised.

Instead, the detective continued to watch Davis. A short time later, a red pick-up truck occupied by two white males drove into the area and stopped. Davis approached the truck and was handed currency by the driver. When Davis motioned, the truck drove on. Again, Davis went to the porch at 1809 St. Thomas Street, climbed up, retrieved the bag, and removed an object. Meanwhile, the truck returned to the area, and Davis passed an object to the occupants. The truck left the area.

Detective Veit decided to terminate his surveillance. He radioed to his back-up teams to stop the truck and detain Davis. Although the truck was not located, Detective Waite and his partner detained Davis based on the description provided by Detective Veit. When Detective Veit arrived, he confirmed that Davis was the person whom he saw who engaged in the apparent transactions, and then retrieved the bag from the top of the porch. Inside the pouch, Detective Veit found ten pieces of folded aluminum foil that contained powder that appeared to be heroin. Davis was arrested.

Subsequent testing of the powder by Officer Harry O’Neal, an expert in the testing and identification of controlled dangerous substances, confirmed that the substance was heroin.

At trial, Davis presented the testimony of three witnesses. Trudy Connelly testified that she worked for the St. Thomas Resident Council and Beautification Team. Her duties involved cleaning the housing development courtyard that Detective Veit had placed into surveillance. Ms. Connelly stated that on October 10, 2000, she was working in the courtyard and saw 13Pavis. He was there around 1:00 or 2:00 p.m., left, and then returned approximately thirty minutes later. Davis was in the courtyard for a few minutes when the police arrived and took him into custody. Ms. Connelly further testified that she had seen Davis playing horseshoes with three other men. Finally, she stated that Davis was riding his bicycle when he returned to the courtyard. By that time, Ms. Connelly had finished her workday, which ended at 2:00 p.m., and was sitting on a porch with her coworkers.

Jerry McDaniel testified that he lived in the St. Thomas Housing Development on October 10, 2000. He and Davis were planning to go to the Volunteers of America that day so that Davis could look at a car with McDaniel, who had some experience as a mechanic. At approximately 2:15 p.m., Davis arrived and called out to McDaniel who was on his porch at 935 St. Andrews Street. By the time McDaniel got downstairs, the police had detained Davis, who was on his bicycle. Mr. McDaniel confirmed that Davis had been in the courtyard earlier that morning playing horseshoes.

Nicole Sullivan testified that Davis was her boyfriend and was with her at her home at 2339 Laurel Street off and on throughout the day of his arrest. He initially left the residence at around 8:30 a.m., returned at around 1:30 p.m., then left again at 2:15 p.m. on his bicycle. Ms. Sullivan was able to pinpoint the latter times by the soap operas she was watching on television.

All of the witnesses identified various photographs that had been taken by investigators with the District Attorney’s office and the Orleans Parish Indigent Defender’s office. Also, the trial judge acknowledged that |4he had accompanied the parties to the apartment from which Detective Veit conducted the surveillance.

Procedural History

Davis was arraigned and entered a not guilty plea to possession of heroin in violation of La. R.S. 40:966 on December 11, 2000, and the trial court denied Davis’s motion to suppress evidence on January 10, 2001. On April 2, 2001, after being advised of his right to trial by jury, Davis elected to waive the jury and proceed with a bench trial. The trial court found Davis guilty of attempted possession of heroin. Davis was sentenced as a quadruple offender to twenty years at hard labor without the benefit of probation, parole, or suspension of sentence following a multiple bill hearing held on January 11, 2002. Davis’s appeal followed.

Revieiu on Appeal

Errors Patent

The record shows that the trial court imposed a sentence below the statutory minimum required by La. R.S. 15:529.1 as written at the time of the defendant’s offense. The State did not object at sentencing, did not file a motion to reconsider sentence, did not seek supervisory writs, and did not raise the issue in its brief. Pursuant to La.C.Cr.P. art. 882A, an illegally lenient sentence can be noticed or recognized by the appellate court sua sponte without the issue being raised by the State in the trial court or on appeal. State v. Williams, 2000-1725 (La.11/29/01), 800 So.2d 790. In reference to La. R.S. 15:301.1, the Louisiana Supreme Court stated that: “When an illegal sentence is corrected, even though the corrected sentence is more onerous, there is no violation of the defendant’s constitutional rights.” Id., 2000-1725, pp. 9-10, 800 So.2d at 798.

State v. Williams

In Williams, supra, 2001-1725, p. 12, 800 So.2d at 799-800, the Louisiana Supreme Court held:

Viewing these statutory provisions in light of the defendant’s due process rights and his recognized right in Louisiana to seek appellate review of his conviction, we find no impediment to the Legislature’s statement that LA.REV. STAT. ANN. § 15:301.1 was enacted to change the law in State v. Jackson [452 So.2d 682 (La.1984) ] and its progeny. No portion of LA.REV.STAT. ANN. § 15:301.1 conflicts with a constitutional principle to which the legislative enactment must yield. Paragraphs A, B, and C of LA.REV.STAT. ANN. § 15:301.1 simply provide for the correction of illegally lenient sentences and neither increase a defendant’s sentencing exposure nor increase a legal sentence. Accordingly, we find that the provisions of this legislative enactment do not impede the defendant’s constitutional right to appeal. [Emphasis added.]

liiFinding that La. R.S. 15:301.1 does not conflict with constitutional principles, the Louisiana Supreme Court addressed the 180-day time limit provided in Section D. The Supreme Court noted that:

After reviewing the committee minutes, it is apparent from' the few comments that the concern for a time limit was directed to the district rather than the appellate courts. [Emphasis added.]

Id., 2000-1725, p. 14, 800 So.2d at 800. The Supreme Court asserted that:

... because of the complete failure of the sentencing court to abide by any of the sentencing requirements of LA. REV.STAT. ANN. § 14:98(D)(1) and because an element of sentencing discretion existed as regards the length of sentence served without benefit of parole, probation, or suspension of sentence, it was necessary for the appellate court to remand the matter to the trial court for re-sentencing. [Emphasis added.]

Id., 2000-1725, p. 15, 800 So.2d at 801.

The Supreme Court found that the La. R.S. 15:301.1(D) 180-day time period did not apply to the procedural facts of the case. Paragraph D does not apply to Section A because the sentence is self-activated as the sentence “is recognized as having existed statutorily without pronouncement being necessary.” Id. 2000-1725, p. 14, 800 So.2d at 801. The Supreme Court held that those errors recognized potentially in Paragraph B “were not raised either by the sentencing court or the district attorney, the method authorized in La. R.S. 15:301.1(B). Accordingly, whatever time limitation provided in Paragraph D was inapplicable to the appellate court” [ (Emphasis added.) Id., 2000-1725, p. 16, 800 So.2d at 802] under the procedural facts in Williams. The time limit in Paragraph D does not apply to Paragraph B unless “the provisions are activated by the .sentencing court or the district attorney.” Id. Instead, the Supreme Court applied LajC.Cr.P.7 art. 882 “which allows an illegal sentence to be corrected at ‘any time’ ” by the appellate court on review. Id., 2000-1725 p. 12, 800 So.2d at 800.

Discretionary Sentence

In Williams, the trial court sentenced the defendant to three years at hard labor, suspended, and placed him on three years active probation specially conditioned on three years of home incarceration under La.C.Cr.P. art. 894.2. The sentence was contrary to the penalties (such as a mandatory minimum $2,000 fine) required by La. R.S. 14:98(D) and was not authorized by the home incarceration article.

Part of the sentence should have been served without the benefit of parole, probation or suspension of sentence (collectively “without benefits”). The Louisiana Supreme Court found that the sentence involved' sentencing discretion regarding the length of sentence served “without benefits.” Therefore, “because of the complete failure of the sentencing court to abide by any of the sentencing requirements [not just the portion “without benefits” but including a mandatory minimum $2,000 fine] ... and because an element of sentencing discretion existed” regarding the length of the sentence to be served “without benefits,” “it was necessary for the appellate court to remand the matter to the trial court for resentencing.” Id. 2000-1725, p. 15, 800 So.2d at 801. The Louisiana Supreme Court stated that: |R “Those appellate court decisions inconsistent with the views expressed in this opinion are overruled.” Id. 2000-1725, p. 16, 800 So.2d at 802.

State v. Jackson

In State v. Jackson, 2001-1062 (La.App. 4 Cir. 2/13/02), 812 So.2d 139, the trial court sentenced the defendant to two years. In an errors patent review, this Court recognized that the trial court erred in failing to sentence the defendant to life as a third felony offender without benefit of parole, probation, or suspension of sentence. This Court stated that: “Williams retroactively overrules State v. Jackson 452 So.2d 682 (La.1984) and its progeny, including State v. Fraser, 484 So.2d 122 (La.1986).” 2001-1062, p. 8, 812 So.2d at 145. Because the element of discretion existed as to the amount of the fine, and because the trial court did not give reasons for sentencing the defendant below the minimum sentence, this Court remanded the case to comply with the requirements of LA.C.Cr.P. art. 894.1 or to impose the mandatory minimum sentence. The defendant would be allowed to withdraw his guilty plea because the minimum sentence was not within the sentencing range acknowledged that the defendant would receive if he pleaded guilty to the multiple bill.

State v. Barnes

In State v. Barnes, 2001-2318, pp. 3-4 (La.App. 4 Cir. 3/27/02), 816 So.2d 881, 883-884, this Court stated:

... In Williams the Supreme Court also held that the retroactive application of the 180 day time period announced in paragraph D of La. R.S. 15:301.1 to sentences imposed prior to August 15, 1999, is procedural and does not violate the prohibition against ex post facto laws; additionally, the Court ruled that the 180 day time period defined in paragraph D is applicable only to paragraph B of the statute, and not paragraph A under which this defendant’s sentence falls. [Emphasis added.]

Paragraph B of La. R.S. 15:301.1 refers to sentences other than those “without benefits” such as the amount of a fine. This Court notes that in Williams, supra, the Louisiana Supreme Court found that the 180-day time period in Paragraph D does not apply to Paragraph B unless “the provisions are activated by the sentencing court or the district attorney.” Id., 2000-1725, p. 16, 800 So.2d at 802. Therefore, the time limitation provided | inin Paragraph D was inapplicable to the appellate court where the sentencing court or district attorney did not raise any sentencing errors under the facts of the case. In Williams, the Louisiana Supreme applied La.C.Cr.P. art. 882 that allows an illegal sentence to be corrected at “any time” by the appellate court on review. Id., 2000-1725, p. 12, 800 So.2d at 800.

State v. Major

In State v. Major, 2002-0133 (La.App. 4 Cir. 10/2/02), 829 So.2d 625, this Court stated:

Complying with La.C.Cr.P. art. 920, we have conducted a patent error review of the record on appeal and found a sentencing error. Mr. Major was convicted of possession of cocaine in an amount of twenty-eight grams or more, but less than two hundred grams, a violation of La. R.S. 40:967 C. Pursuant to La. R.S. 40:967 F(l)(a), the applicable sentence for that offense is imprisonment at hard labor for not less than ten years, nor more than sixty years, and a fine of not less than fifty thousand dollars, nor more than one hundred thousand dollars. La. R.S. 40:967(G) requires that the adjudication of guilt or imposition of a sentence under La. R.S. 40:967(F) “shall not be suspended, deferred, or withheld, nor shall such person be eligible for probation or parole prior to serving the minimum sentences provided by Subsection F.” By failing to impose a fine on Mr. Major, the trial court imposed an illegally lenient sentence. We, however, decline to remand for correction of that patent sentencing error.
Although we recognize that State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, arguably calls into question the jurisprudential rule against correcting a patent sentencing error favorable to the defendant when the state fails to appeal, we read the holding in Williams as applying only to sentencing errors subject to automatic correction under La. R.S. 15:301.1(A). Our holding is consistent with that espoused by the dissent in State v. Paoli 2001-1733, p. 1 (La.App. 1 Cir. 4/11/02), 818 So.2d 795, 800-01(Guidry, J., dissenting); as Judge Guidry, joined by Judge Pettigrew, aptly stated:
Although State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, arguably cast some doubt upon the reasoning in State v. Fraser, 484 So.2d 122 (La.1986), it does not overrule Fraser and I do not interpret Williams as applicable to sentencing errors of a type different than those subject to automatic correction under La. R.S. 15:301.1.
In this case, the patent sentencing error — a mandatory fine — falls under La. R.S. 15:301.1(B). See Williams, 2000-1725, pp. 10-11, 800 So.2d at 799 (citing, by way of example, failure to impose mandatory fine). La. R.S. 15:301.1(B) provides that an amendment of a sentence to conform with an applicable statutory provision may be made on the trial court’s own motion or if the district attorney seeks such an amendment; however, La. R.S. 15:301.1(D) provides that such action must be taken within one hundred and eighty days of the initial sentencing. Construing those provisions together, the appellate court in State v. Esteen, 2001-879 (La.App. 5 Cir. 5/15/02), 821 So.2d 60, declined to remand to correct an illegally lenient sentence resulting from failure to impose a mandatory fine given the state’s failure to object before La. R.S. 15:301.1(D)’s one-hundred eighty day period elapsed. We likewise conclude, that given the state’s failure to seek relief in either the trial court or this court, it is inappropriate to remand for correction of the illegally lenient sentence resulting from the failure to impose a fine.

Major, supra, quoted the dissent in State v. Paoli, 2001-1733 (La.App. 1 Cir. 4/11/02), 818 So.2d 795. The majority opinion in Paoli is comparable to this Court’s opinion in Jackson. The First Circuit stated:

PATENT ERROR
La.Code Crim. P. art. 920, entitled “Scope of appellate review”, provides that “The following matters and no others shall be considered on appeal: ... (2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” (Emphasis added.) La. Code Crim. P. art. 5, entitled “Mandatory and permissive language”, provides, in pertinent part, that “The word ‘shall’ is mandatory .... ” (Emphasis added.) This language is clear and unambiguous. Its application is not limited to errors favorable or unfavorable to either the state or a criminal defendant. La. Civ. Code art. 9 states the basic rule for the interpretation of laws and provides, in pertinent part, that “When a law is clear and unambiguous ... the law shall be applied as written.... ”
As mandated by Article 920, a patent error review has been made of the record on appeal and patent sentencing errors have been found.
L/The defendant was convicted of driving while intoxicated (DWI), fourth offense, a violation of La. R.S. 14:98. He subsequently was sentenced to ten years at hard labor with two years to be served without benefit of parole, probation, or suspension of sentence. However, according to the sentencing transcript, the trial court failed to impose the mandatory fine for a conviction of fourth offense DWI and failed to order the defendant to participate in a court-approved substance abuse program and a court-approved driver improvement program. See La. R.S. 14:98(E) (prior to its amendment by 2001 La. Acts, No. 1163, § 2, eff. August 15, 2001). These omissions are patent sentencing errors.
La.Code Crim. P. art. 882(A) provides that “An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review.” (Emphasis added.) This language is clear and unambiguous and this “law shall be applied as written Article 882(A) does not limit its application to sentencing errors favorable or unfavorable to either the state or a criminal defendant. Pursuant to this language, all sentencing errors are subject to correction, unless there is a legal reason not to make the correction. The Official Revision Comment to Article 882 states, in pertinent part: “The first sentence, taken from Fed. Rule 35, states the almost self-evident authority of the court to correct an illegal sentence at any time, for an illegal sentence is, in the contemplation of the law, no sentence at all. State v. Johnson, 220 La. 64, 55 So.2d 782 (1951).” (Emphasis added.)
In State v. Williams, 99-1840 (La.App. 1 Cir. 5/12/00) (unpublished), this court found patent sentencing errors that were not covered by La. R.S. 15:301.1(A), vacated the sentence and remanded the matter to the trial court for re-sentencing. The Louisiana Supreme Court reviewed this case and held that this court “properly noticed the numerous sentencing errors” and affirmed our judgment. State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790. The court also stated that “... it is nonetheless well established that a defendant in a criminal case does not have a constitutional or statutory right to an illegal sentence.” (Emphasis added.) Williams, 800 So.2d at 797. In Williams, 2000-1725 at pp. 9-10, 800 So.2d at 798, the court also stated:
It is readily apparent that a significant distinction may be drawn between vindictiveness which, after appeal, increases a defendant’s sentencing exposure or increases a legal sentence, and the pro forma correction of an illegal sentence. When an illegal sentence is corrected, even though the corrected sentence is more onerous, there is no violation of the defendant’s constitutional rights. [Citations omitted.] Simply stated, when a court | ^complies with a non-discretionary sentencing requirement, i.e., a mandatory minimum term or special parole provision(s), no due process violation is implicated because neither actual retaliation nor vindictiveness exists.
Thus, Williams represents a clear departure by the Louisiana Supreme Court from the prohibition against an appellate court taking steps to correct an illegally lenient sentence noted as patent sentencing error. See State v. Fraser, 484 So.2d 122 (La.1986). [Emphasis added.]
The sentencing errors in this case are not provided for in La. R.S. 15:301.1(A), and they pertain to mandatory sentencing requirements. Accordingly, we will take the same action herein as we did in Williams. This same approach was followed by this court in State v. Gordon, 01-0236 (La.App. 1 Cir. 2/15/02), 809 So.2d 549. To the extent that State v. Holmes, 01-0955 (La.App. 1 Cir. 2/15/02), 811 So.2d 955, and State v. Holmes, 01-0956 (La.App. 1 Cir. 2/15/02), 811 So.2d 960, are inconsistent with this opinion, they are overruled.
DECREE
For the foregoing reasons, the conviction is affirmed; the sentence is vacated and this matter is remanded to the trial court for re-sentencing in accordance with the law and views expressed herein. La.Code Crim. P. art. 881.4(A).
Paoli, supra, 2001-1733, p. 6-8, 818 So.2d at 799-800.

In the present case, we conclude that where the trial court does not impose a mandatory minimum sentence without the benefits of parole, probation, or suspension of sentence, the sentence should not be amended but should be recognized under State v. Williams, supra. The 180-day time period in Paragraph D of La. R.S. 15:301.1 does not apply to Paragraph A. The 180-day time limit in Paragraph D does not apply to Paragraph B where the errors were not raised by the sentencing court or the State in the trial court or on appeal. We find that where there is any discretion in a sentence that is illegally lenient, the sentence should be remanded to the trial court for resentencing or for the trial court to comply with the requirements of La.C.Cr.P. art. 894.1, by stating sufficient reasons for imposing a sentence below the mandatory minimum sentence. If the new sentence is not within |uthe range set out in a plea bargain agreement, the defendant would be allowed to withdraw his guilty plea.

In the present case, another error patent, pertaining to the multiple offender adjudication, necessitates that we vacate the defendant’s adjudication and sentence as a fourth offender and remand for a new multiple offender proceeding.

Multiple Offender Status

One of Davis’s three prior convictions named in the multiple bill of information arose from case number 351-061 and was for violation of La. R.S. 14:95.1, specifically having possessed a firearm and having previously been convicted of possession of cocaine in case number 325-885 on the docket of the Criminal District Court for the Parish of Orleans. The State also used the conviction in case number 325-885 as one of the other prior felonies to prove that Davis was a quadruple offender.

As noted in State v. Fletcher, 01-0809, p. 5 (La.App. 5 Cir. 2/26/02), 811 So.2d 1010, 1013, referring to State v. Bailey, 97-493, pp. 9-10 (La.App. 5 Cir.11/12/97), 703 So.2d 1325, 1331, the Fifth Circuit in an error patent review held that, “[i]f a felon in possession of a firearm conviction is used to enhance a subsequent conviction, the underlying felony used as an element of the firearm conviction may not be used in the multiple bill, as this constitutes double enhancement.” The Fifth Circuit relied on two previous Fourth Circuit cases that held that the use of both a violation of La. R.S. 14:95.1 and its underlying felony was not permitted in one multiple offender adjudication. See State v. Moten, 619 So.2d 683, 685 (La.App. 4 Cir.1993) |1K(“[a] felon in possession of a firearm conviction may be used to enhance the penalty for a subsequent conviction only if the underlying felony used as an element of the firearm conviction is not also used in the same multiple bill”); and State v. Hymes, 513 So.2d 371, 373 (La.App. 4 Cir.1987) (“a 14:95.1 conviction may be used to enhance the penalty for a subsequent conviction only if the underlying felony used as an element of the firearm conviction is not also used in the same multiple bill.”)

In the present case, the trial court erred in adjudicating the defendant as a quadruple offender based on both the defendant’s convictions in case numbers 325-885 and 351-061. The multiple offender adjudication and sentence must be vacated.

Additional Multiple Offender Claims

The assignments of error raised by Davis through his counsel and in a pro se brief pertain to the multiple offender proceedings. Counsel argues that the attorney who represented the defendant at the sentencing was ineffective because she allegedly failed to oppose the multiple offender adjudication, specifically not insisting that the defendant be arraigned, faffing to file a written opposition or requesting time in which to do so, failing to cross-examine the witness at the multiple bill hearing, and correcting the trial court when it noted that one of the predicate convictions was the result of a guilty plea when in fact it was the result of a jury verdict. Because the matter must be remanded for a new hearing, these claims are not addressed.

In his pro se supplemental brief, Davis argues that the trial court erred in not formally arraigning him on the multiple bill of information and did notj^advise him of his rights as required by La. R.S. 15:529.1D(l)(a). This issue is moot because the multiple offender adjudication must be vacated.

Double Jeopardy Claim

Davis also avers that if his multiple offender sentence is vacated, any resen-tencing as a multiple offender should be barred by double jeopardy. However, it is well-settled that double jeopardy does not apply to a multiple offender proceeding because “[s]uch a proceeding is merely a part of sentencing.” State v. Langendorfer, 389 So.2d 1271, 1277 (La.1980). See also State v. Picot, 98-2194 (La.App. 4 Cir. 11/10/98), 724 So.2d 236, and State v. Bennett, 544 So.2d 661 (La.App. 3 Cir.1989). There is no bar to a second multiple offender adjudication and sentencing.

Accordingly, the defendant’s conviction for attempted possession of heroin is affirmed. The multiple offender adjudication and sentence are vacated and the matter is remanded for a new multiple offender hearing and sentencing proceedings consistent with this opinion.

ATTEMPTED POSSESSION OF HEROIN CONVICTION AFFIRMED; MULTIPLE OFFENDER SENTENCE VACATED; AND REMANDED.

      . Davis's present offense was committed in October 2000, prior to the 2001 non-retroactive amendment to La. R.S. 15:529.1, which reduced the mandatory minimum sentence for a quadruple offender with one crime of violence from life imprisonment to a range of twenty years to life. One of Davis's predicate convictions was for violating La. R.S. 14:95.1, possession of a firearm having previously having been convicted of a felony, which is designated as a crime of violence under La. R.S. 14:2(13)(ee).

      . § 301.1 provides:
      Sentences without benefit or probation, parole, or suspension of sentence; correction A.When a criminal statute requires that all or a portion of a sentence imposed for a violation of that statute be served without benefit of probation, parole, or suspension of sentence, each sentence which is imposed under the provisions of that statute shall be deemed to contain the provisions relating to the service of that sentence without benefit of probation, parole, or suspension of sentence. The failure of a sentencing court to specifically state that all or a portion of the sentence is to be served without benefit of probation, parole, or suspension of sentence shall not in any way affect the statutory requirement that all or a portion of the sentence be served without benefit of probation, parole, or suspension of sentence.
      B. If a sentence is inconsistent with statutory provisions, upon the court's own motion or motion of the district attorney, the sentencing court shall amend the sentence to conform to the applicable statutory provisions. The district attorney shall have standing to seek appellate or supervisory relief for the purpose of amending the sentence as provided in this Section.
      C. The provisions of this Section shall apply to each provision of law which requires all or a portion of a criminal sentence to be served without benefit of probation, parole, or suspension of sentence, or of any one of them, any combination thereof, or any substantially similar provision or combination of substantially similar provisions.
      D. Any amendment to any criminal sentence as authorized by the provisions of this Section shall be completed within one hundred eighty days of the initial sentencing.

      .In State v. Jackson, 452 So.2d 682 (La.1984), and State v. Fraser, 484 So.2d 122 (La.1986), the Louisiana Supreme Court did not permit a minimum sentence to be recognized on appeal where the State did not object in the trial court or on appeal.
      A review of Williams, supra, 2000-1725, pp. 7-8, 800 So.2d at 796-797, shows that the Louisiana Supreme Court did not specifically overrule Jackson and Fraser but stated:
      ... Fraser built upon Jackson and the rule developed in this State that when a defendant alone appealed and the record contained a patent error favorable to him, an appellate court should ignore it unless “the prosecution, having properly raised the issue in the trial court, has [also] sought appellate review." Jackson, 452 So.2d at 684.
      In Section 2 of 1999 LA. ACTS 94, the genesis of LA.REV.STAT. ANN. § 15:301.1, the Legislature stated:
      The provisions of Section 1 of this Act shall legislatively overrule (FN5) the cases of State v. Jackson, 83-2360 (La.6/25/84), 452 So.2d 682, [State ex rel.] Pierre v. Maggio, 83-0806 (La.1/27/84), 445 So.2d 425, and any other case which is contrary to the provisions of this Act. (FN6 omitted) [Emphasis added.]
      Neither State v. Jackson, 452 So.2d 682 (La.1984) nor State v. Fraser, 484 So.2d 122 (La.1986), specifically addressed the constitutional issue of whether a correction of sentence on appellate review (which imposes a more onerous sentence on the defendant/sole appellant) violates the due process rights of a defendant by its chilling effect on the exercise of the right of appeal. See Fraser, 484 So.2d n. 6 at 124. [Emphasis added.]
      In Footnote 5, Williams, supra, 2000-1725, p. 9, 800 So.2d at 797, the Supreme Court noted:
      (FN5.) Although the Legislature used the word "overrule," the correct terminology should have been the Legislature "changed the law” as the Legislature does not act as a court and has no authority to "overrule” a case.
      The Supreme Court asserted that Jackson, supra, and Fraser, supra, did not address the constitutional issue of whether the sentence correction has a chilling effect on the defendant's right to appeal. In that respect, Williams did not overrule Jackson and Fraser. However, La. R.S. 15:301.1 changed the law with respect to those cases.

      . The Louisiana Supreme Court opinion in State v. Jackson 452 So.2d 682 (La.1984), should not be confused with State v. Jackson, 2001-1062 (La.App. 4 Cir. 2/13/02), 812 So.2d 139. The Supreme Court case, Jaclcson, provides the view expressed in Fraser and predates La. R.S. 15:301.1. The later Fourth Circuit case, Jackson, post-dates La. R.S. 15:301.1, and reviews the Louisiana Supreme Court case, State v. Williams, supra.

      . In addition, it is noted that La. R.S. 15:574.22 provides for the Louisiana Risk Review Panel that has the authority to evaluate the risk of danger to society if a person were released where that person was convicted of a certain crime not defined or enumerated as a crime of violence under La. R.S. 14:2(13). Upon review, the Risk Review Panel may recommend that a person may be considered for clemency by the Board of Pardons or the panel may recommend that the person be considered for parole by the Board of Parole. This statute was effective on June 15, 2001, and has prospective effect.


source: Caselaw Access Project

author: | MOAN BERNARD ARMSTRONG, Judge.

license: Public Domain

text:
    Denise LEWIS, Individually and on Behalf of Her Minor Child, Bryan Joseph Lewis; Joanna Jones, Individually and on Behalf of Her Minor Children, Brinton Jones, and Britney Jones; Avona Dorsey, Individually and on Behalf of Her Minor Children, et al. v. TRANSOCEAN TERMINAL OPERATORS, INC.
    No. 2002-CA-0152.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 11, 2002.

      David W. Bernberg, New Orleans, LA, for Plaintiffs/Appellants.
    Kent B. Ryan, Lemle & Kelleher, L.L.P., New Orleans, LA, for Defendants/Appellees, Memco Barge Line, Inc., et al.
    Brien J. Fricke, Daniel E. Knowles, III, Burke & Mayer, New Orleans, LA, for Defendant/Appellee, Channel Shipyard of New Orleans, Inc.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge STEVEN R. PLOTKIN and Judge MAX N. TOBIAS, Jr.).
   | MOAN BERNARD ARMSTRONG, Judge.

This is a wrongful death and survival action. The claims of the appellants, who are illegitimate children of the deceased, were dismissed upon exceptions of no right of action. For the reasons given below, we will reverse and remand for further proceedings.

Plaintiffs’ decedent, Brian Walker, was a longshoreman. He drowned in a work-related accident on January 15, 2000. The plaintiffs-appellants, who are seven illegitimate minor children of Brian Walker, filed a wrongful death and survival action on January 21, 2000. A succession of Brian Walker was opened by the filing of a peti-. tion for appointment of provisional administrator, affidavit of death and heirship and detailed descriptive list of assets and liabilities on April 12, 2000. The affidavit states that Brian Walker had seven minor children and lists the same seven minor children who were named as plaintiffs in the present wrongful death and survival action.

Neither the petition which initiated the present wrongful death and survival action, nor the original petition, affidavit and descriptive list which initiated the I?,succession proceedings, explicitly prayed for filiation of the seven minor children to Brian Walker. However, on March 19, 2002, an amended and supplemental petition, explicitly seeking filiation of the seven minor children to Brian Walker, was filed in the succession proceeding. A hearing was held in the succession proceeding on March 28, 2002 and a judgment filiating the seven minor children to Brian Walker was rendered that same date.

In order to have a right of action for wrongful death and survivorship, the seven illegitimate minor children must have been filiated to Brian Walker. E.g., Thomas v. Sister of Charity of the Incarnate Word, 97-1443 (La.07/08/98), 713 So.2d 466. A filiation proceeding must be brought within certain time limits and, for purposes of the present case, the applicable time limit is one year from the death of the alleged parent, Brian Walker. La. Civ.Code art. 209; Thomas, supra.

The defendants-appellees argue that no filiation proceeding was brought timely because the supplemental and amending petition in the succession proceeding, which was the first pleading explicitly praying for filiation of the seven minor children to Brian Walker, was not filed until more than one year after the death of Brian Walker. The seven minor children plain-biffs in effect argue that their supplemental and amending petition in the succession proceeding relates back to the filing of the original petition initiating the succession proceeding which original petition was filed within one year of the death of Brian Walker.

Article 1153 of the Code of Civil Procedure provides:

When the action or defense asserted in the amended petition or answer arises out of the conduct, | ¡^transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.

Pursuant to this article, once an amendment to a petition is deemed to relate back to the filing of the original petition, prescription with regard to the amendment is interrupted as of the filing date of the original petition. E.g., Trentecosta v. Beck, 2000-0860 (La.App. 4 Cir. 05/02/01), 786 So.2d 885.

So long as comparison of the amended petition to the original petition shows that the original petition gave fair notice of the factual situation out of which the amended petition arises, the amended petition will relate back to the date of the filing of the original petition and it makes no difference that the amended petition seeks additional relief:

In Baker v. Conagra Broiler Co., 93-1230 (La.App. 3 Cir.1994), 640 So.2d 494, 497, our brethren in the Third Circuit held that LSA-C.C.P. art 1153 allow a party to amend his pleadings where the original pleading gives fair notice of the original fact situation out of which the amended claim arises. (Emphasis added). Further, the Third Circuit found that the statute would allow the amendments to relate back to the original filing even if the party added new plaintiffs, added new defendants, stated a different cause of action, or changed the relief prayed for. Id. Additionally, it is also well settled that prescriptive statutes, including LSA-C.C.P. art. 1153, are to be applied liberally and without undue restriction by technical rules. See Louisiana Health Service and Indem. Co. v. Tarver, 93-2449 (La.4/11/94), 635 So.2d 1090; see also Robinson v. Whitney Nat. Bank, 97-1778 (La.App. 4 Cir. 3/4/98) 709 So.2d 937, writ denied 98-1127 (La.6/5/98), 720 So.2d 688.

Battiste v. Jani King of New Orleans, 99-1395, p. 4 (La.App. 4 Cir. 02/16/00), 753 So.2d 952, 954.

In the present case, the petition and accompanying affidavit initiating the succession proceeding list the seven minor children by name and state that they are lathe minor children of Brian Walker. The supplemental and amending petition simply seeks additional relief, i.e. filiation to Brian Walker, for those same seven minor children. It is true that the original petition and accompanying affidavit do not expressly state that the seven minor children are illegitimate children of Brian Walker, but they do state that Brian Walker was not married and all of the seven minor children are listed with last names other than ‘Walker” (i.e., Lewis, James, Drosey and Smith). Anyone who read the original petition and accompanying affidavit initiating the succession proceeding would have fair notice of the factual situation out of which the supplemental and amended petition, explicitly seeking filiation, arises. Thus, the supplemental and amending petition explicitly seeking filiation relates back to the timely filing of the original petition and accompanying affidavit initiating the succession proceeding.

We have considered the Supreme Court’s decision in Thomas, supra, and find it to be not on point with the present case. In Thomas, a single illegitimate child of the decedent filed a timely wrongful death and survival action and filiation action. Later, more than a year after the decedent’s death, four other illegitimate children of the decedent filed a supplemental and amending petition for wrongful death and survivorship and filiation. The Thomas court found the four additional plaintiffs’ filiation action to be untimely. In the present case, the same seven minor children are named as the children of Brian Walker in both the original petition and accompanying affidavit initiating the succession proceeding and in the supplemental and amending petition explicitly seeking filiation. In Thomas, a timely-filed original petition by one illegitimate child would not give fair notice of the factual circumstances as to four other illegitimate children. A person reading the original, timely-filed petition by one illegitimate child would be subject to | ^surprise by the filing of a later, untimely petition by four other illegitimate children. In the Thomas case, the four illegitimate children who filed untimely were not named at all in any timely-filed petition. In the present case, the seven minor children were all named in timely-filed pleadings. In Thomas, completely new parties sought to initiate litigation untimely. In the present case, the seven minor children simply seek additional relief in the supplemental and amending petition.

We also have considered this court’s recent decision in In re: R.C. Bester, 2000-2208 c/w 2000-2209 c/w 2000-2210 (La.App. 4 Cir. 9/18/02) 828 So.2d 644. We find Bester to not be on point with the present case. In Bester, the alleged illegitimate child of the decedent never filed an amended petition to explicitly seek filiation. Thus, the Bester court had no occasion to consider relation back of an amended petition which properly sought filiation.

For the foregoing reasons, we reverse the judgment of the trial court and remand this case for further proceedings.

REVERSED AND REMANDED.


author: MICHAEL E. KIRBY, Judge.

text:
    STATE of Louisiana v. Anthony SYLVESTER.
    No. 2000-KA-1522.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 11, 2002.

      Harry F. Connick, District Attorney, Anne M. Dickerson, Assistant District Attorney, New Orleans, LA, for Plaintiff/Ap-pellee.
    Arthur J. O’Keefe, Metairie, LA, for Defendant/Appellant.
    (Court composed of Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge DAVID S. GORBATY).
   MICHAEL E. KIRBY, Judge.

STATEMENT OF CASE

In State v. Anthony Sylvester, 2000-1522 (La.App. 4 Cir. 2/7/2001), 781 So.2d 616, this Court reversed the defendant’s conviction finding the trial court erred in denying defendant’s motion to suppress evidence. This Court concluded that the police officers did not have reasonable cause to detain the defendant. The Louisiana Supreme Court granted the State’s writ application, reversing this Court’s ruling and remanding the case to this Court for consideration of the defendant’s other assignments of error. State v. Anthony Sylvester, 2001-0607 (La.9/20/2002), 826 So.2d 1106. The Supreme Court held that the police officers did have reasonable cause to detain the defendant and therefore, the trial court did not err when it denied the defendant’s motion to suppress evidence.

In the original appeal, the defendant assigned two additional assignments of error: the denial of his motion to suppress statement and insufficiency of evidence.

\ .DISCUSSION

ASSIGNMENT OF ERROR NUMBER TWO

Defendant, in his second assignment of error, argues that the trial court erred in denying his motion to suppress statement. The defendant contends that the State failed to prove that the statement was knowingly and voluntarily made.

The State has the burden of proving the admissibility of a purported statement at a motion to suppress hearing. La.C.Cr.P. art. 703(D); State v. Hohn, 95-2612, p. 3 (La.App. 4 Cir. 1/19/96), 668 So.2d 454, 456. Before a statement or confession can be admitted into evidence, it must be shown that it was made freely and voluntarily and not under the influence of fear, duress, intimidation, menace, threats, inducements or promises. La. R.S. 15:451. State v. Sepulvado, 93-2692, p. 4 (La.4/8/96), 672 So.2d 158, 163; State v. Hohn. “The testimony of police officers alone can be sufficient to prove the defen dant’s statements were freely and voluntarily given.” State v. Gibson, 93-0305, p. 7 (La.App. 4 Cir. 10/13/94), 644 So.2d 1093, 1097. In determining the voluntariness of a statement, the trial court must review the totality of the circumstances. State v. Sepulvado; State v. Dunn, 94-776, p. 15 (La.App. 5 Cir. 2/15/95), 651 So.2d 1378, 1387. A trial court’s determination as to the admissibility of a statement is within the discretion of the trial court and its decision will not be disturbed unless unsupported by the evidence. State v. Tart, 93-0772, p. 23 (La.2/9/96), 672 So.2d 116, 126; State v. Samuels, 94-1408, p. 7 (La.App. 4 Cir. 6/7/95), 657 So.2d 562, 566.

Police officers are not obliged to ignore spontaneous and unsolicited statements by someone in custody, as long as those statements do not result from police-initiated custodial interrogation or questioning “reasonably likely to elicit an incriminating response.” State v. Ross, 95-1798 (La.3/8/96), 669 So.2d 384, 386.

|3The statement in question was made by the defendant to Officer Nguyen as the officer was detaining the defendant. The defendant allegedly stated that they had just gotten off of work and wanted to get a little high. There is confusion over whether the officer had advised the defendant of his Miranda rights before the defendant made the statement. The officer testified on direct examination that the defendant made the statement while the officer was detaining defendant but prior to defendant’s arrest and advisement of his Miranda rights. On cross-examination, the officer stated that the defendant made the statement after he had been arrested and advised of his rights. Such a distinction is of no consequence in the present case. The statement was a spontaneous unsolicited statement. Officer Nguyen testified that he did not attempt to question the defendant. The defendant made the statement after Nguyen discovered the syringes in the automobile.

This assignment does not have merit.

ASSIGNMENT OF ERROR NUMBER 3

The defendant also suggests that the State failed produce sufficient evidence to support his conviction for attempted possession of heroin.

When assessing the sufficiency of evidence to support a conviction, the appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Jacobs, 504 So.2d 817 (La.1987).

In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from Rwhich the existence of the main fact maybe inferred according to reason and common experience. State v. Shapiro, 431 So.2d 872 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. La. R.S. 15:438 is not a separate test from Jackson v. Virginia, supra, but rather is an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, supra.

To prove attempted possession of heroin, the State must show that the defendant had the specific intent to possess cocaine and committed an act directly tending toward his intent to possess the drug. State v. Lavigne, 95-0204 (La.App. 4 Cir. 5/22/96), 675 So.2d 771, writ denied, 96-1738 (La.1/10/97), 685 So.2d 140. Possession may be actual or constructive. State v. Chambers, 563 So.2d 579, 580 (La.App. 4 Cir.1990). A person in the area of the contraband may be considered in constructive possession if the illegal substance is subject to his dominion and control and he has guilty knowledge. State v. Trahan, 425 So.2d 1222, 1226 (La.1983); State v. Cormier, 94-537, p. 5 (La.App. 3 Cir. 11/2/94), 649 So.2d 528, 531; Bujol v. Cain, 713 F.2d 112, 115 (5 Cir.1983), cert. denied, 464 U.S. 1049, 104 S.Ct. 726, 79 L.Ed.2d 187 (1984).

Factors relevant to a defendant’s dominion and control include, inter alia, the defendant’s knowledge that illegal drugs are in the area, his access to the area where the drugs are found and physical proximity to the drugs, evidence that the area was frequented by drug users, and evidence of recent drug use by the defendant. State v. Cormier, 649 So.2d at 531.

|sThe elements of knowledge and intent are states of mind and need not be proven as facts, but may be inferred from the circumstances. State v. Reaux, 539 So.2d 105 (La.App. 4 Cir.1989). The fact finder may draw reasonable inferences to support these contentions based upon the evidence presented at trial.

Guilty knowledge is an essential element of the crime of possession of heroin. State v. Goiner, 410 So.2d 1085, 1086-87 (La.1982). Although a conviction for possession of heroin can stand on the possession of the slightest amount of the drug, the amount of the substance will have some bearing on the defendant’s guilty knowledge. State v. Gaines, 96-1850, pp. 5-6, (La.App. 4 Cir. 1/29/97), 688 So.2d 679, 682-83, writ denied, 97-0510 (La.9/5/97), 700 So.2d 503; State v. Spates, 588 So.2d 398, 401 (La.App. 2 Cir.1991). In addition, the possession of drug paraphernalia is, by its peculiar nature, indicative of guilty knowledge. Gaines, p. 6, 688 So.2d at 683; Spates, 588 So.2d at 402.

This Court upheld the defendant’s conviction for attempted possession of cocaine in State v. Lavigne, supra. In Lavigne, the defendant was found to be in possession of a crack pipe which had a residue in it. The residue proved to be cocaine. The defendant alleged that he-found the pipe on the street and did not know it contained cocaine as he could not see the residue; he claimed his intent was to throw the pipe away when he got home. In affirming the defendant’s conviction, this court noted that the defendant’s guilty knowledge could be inferred from the defendant’s dominion and control over the pipe and the residue of cocaine found in the pipe. State v. Lavigne, 675 So.2d at 779.

Similarly, in State v. Taylor, 96-1843 (La.App. 4 Cir. 10/29/97), 701 So.2d 766, writ denied, 98-2233 (La.1/8/99), 734 So.2d 1224, where the defendant was ^convicted for possession of cocaine on the basis of a residue in a crack pipe, this Court held that a court could infer the defendant had guilty knowledge of the cocaine in the glass pipe and that the evidence was sufficient to sustain the conviction.

In State v. Guillard, 98-0504 (La.App. 4 Cir. 4/7/99), 736 So.2d 273, this court affirmed the defendant’s conviction for attempted possession of cocaine where a police officer testified that he retrieved a crack pipe from the defendant’s pants pocket and that the pipe appeared to contain cocaine residue. The court rejected the defendant’s argument that the State failed to prove that he knew there was cocaine in the pipe or that he attempted to possess cocaine. The court stated that the defendant’s possession of a crack pipe with visible cocaine residue in it allowed an inference that the defendant had the intent to attempt to possess cocaine.

In the present case, Officer Nguyen testified that the syringe containing heroin found on the driver’s side floorboard and the spoon containing heroin was found on the center console between the driver and passenger seats. The defendant was in the driver’s seat when the police officers approached the vehicle. The officers stated that the defendant and the passenger appeared nervous when they saw the officers and started fumbling with something on the floorboard of the vehicle. Officer Nguyen further testified that when the defendant exited vehicle, he had one hand clenched in a fist. The officer asked the defendant to open his hand, as the officer was concerned for his safety. When the defendant opened his hand, a red cap to a syringe fell to the ground. Such testimony, along with the defendant’s statement about wanting to get a little high, indicates that the defendant had knowledge of, and control over, the heroin found in the syringe and |7spoon. The evidence presented by the State was sufficient to prove that the defendant attempted to possess heroin.

This assignment of error is without merit.

CONCLUSION

For the above and foregoing reasons the defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: STEVEN R. PLOTKIN, Judge.

text:
    STATE of Louisiana v. Norman FOSTER.
    No. 2002-KA-0910.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 11, 2002.

      Harry F. Connick, District Attorney, Donna R. Andrieu, Assistant District Attorney, New Orleans, LA, for Plaintiff/Ap-pellee.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge WILLIAM H. BYRNES, III, Judge STEVEN R. PLOTKIN, Judge MIRIAM G. WALTZER).
   STEVEN R. PLOTKIN, Judge.

Defendant raises the following issues in this appeal. The first issue is whether the trial court erred in refusing to allow defendant to change his plea to not guilty and not guilty by reason of insanity. The second issue is whether the trial court erred in not adhering to the statutory twenty-four hour delay between the denial of the defendant’s motion for new trial and sentencing. The final issue is whether the sentence in this case is excessive. For the following reasons, we affirm the trial court’s denial of defendant’s motion to change his plea. However, we remand the case to the trial court for resentencing for failure to observe the mandatory twenty-four hour delay in sentencing provided by La. C. Cr. P. article 873; and we further note that the trial court did not properly take into account the defendant’s mental illness as a mitigating factor in the sentence.

FACTS AND PROCEDURAL HISTORY

Defendant Norman Foster was charged by bill of information on June 18, 2001 with one count of forcible rape, a violation of La. R.S. 14:42.1, and one count of aggravated incest, a violation of La. R.S. 14:78.1. Defendant pleaded not guilty at his October 24, 2001 arraignment. A competency hearing was conducted on October 30, 2001, after which the trial court ruled that defendant was competent to proceed. On November 13, 2001, after a sanity hearing, the trial court ruled that defendant was sane at the time of the offense. The trial court denied defendant’s motions to suppress the evidence, statements and identification on November 30, 2001.

On the morning of the first day of trial, January 17, 2002, -defendant moved to change his plea from not guilty to a dual plea of not guilty and not guilty by 12reason of insanity. The motion to change defendant’s plea was denied by the trial court. On January 22, 2002, after a two-day trial, defendant was found guilty as charged by a twelve-person jury. On January 31, 2002, the defendant filed motions for new trial, for post-verdict judgment of acquittal, and for arrest of judgment. On the very same day, the trial court denied defendant’s motions and sentenced defendant to twenty years at hard labor on the forcible rape count and twentyrone years at hard labor on the aggravated incest count, with the sentences to run concurrently.

ERRORS PATENT AND ASSIGNMENT OF ERROR NO. 2

A review of the record reveals one error patent that is also the subject of defendant’s second assignment of error. At the sentencing hearing the trial court denied defendant’s motion for new trial and motion in arrest of judgment, and immediately sentenced him.

La. C. Cr. P. article 873 states that if a motion for new trial or motion in arrest of judgment is filed, sentence shall not be imposed until at least twenty-four hours after the motion is denied, unless the defendant expressly waives the delay or pleads guilty. A defendant may implicitly waive the twenty-four hour delay by announcing his readiness for sentencing. State v. Pierre, 99-3156, p. 7 (La.App. 4 Cir. 7/25/01), 792 So.2d 899, 903, writs denied, 2001-2828 (La.8/16/02), 822 So.2d 614, 2001-2409 (La.9/13/02), 824 So.2d 1189 (implicit waiver where defense counsel responds in the affirmative when trial court inquires if he is ready for sentencing); State v. Robichaux, 2000-1234, p. 7 (La.App. 4 Cir. 3/14/01), 788 So.2d 458, 464-465, writ denied, 2001-1178 (La.3/15/02), 811 So.2d 897, cert. denied, — U.S. -, 123 S.Ct. 157, 154 L.Ed.2d 60 (2002) lii(defense counsel announcing to judge that prior to sentencing he wished to file a motion for new trial operated as implicit waiver of twenty-four hour delay). Where a defendant does not challenge his sentence on appeal or raise the failure to observe the 24-hour delay as error, any error is harmless. State v. Celestine, 2000-2713, p. 5 (La.App. 4 Cir. 2/13/02), 811 So.2d 44, 47.

Failure of the trial court to observe the mandatory twenty-four hour delay after, denial of a motion for new trial, where such delay is not waived, requires the sentence to be vacated and the case remanded for resentencing. State v. Augustine, 555 So.2d 1331, 1333 (La.1990), superseded, in part, by statute as stated in State v. Martin, 93-1915, pp. 2-3 (La.App. 4 Cir. 9/29/94), 643 So.2d 830, 832; State v. Brauner, 99-1954, p. 14 (La.App. 4 Cir. 1/21/01), 782 So.2d 52, 63, writ denied, 2001-1260 (La.3/22/02), 811 So.2d 920. Louisiana jurisprudence has recognized exceptions to this requirement in cases where the failure to observe, the delay is considered harmless. For example, the Louisiana Supreme Court in State v. Seals, 95-0305 (La.11/25/96), 684 So.2d 368, cert. denied, 520 U.S. 1199, 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997), held that the failure of the trial court to observe the mandatory twenty-four hour rule was harmless where the sentence imposed was mandatory in nature. Id. at p. 17, 684 So.2d at 380. Further, failure to observe the twenty-four hour period has been considered harmless where there is a sufficient delay between the date of conviction and the date of sentencing; there is no indication that the sentence is hurriedly imposed and; there is no argument or showing of actual prejudice by the failure to observe the twenty-four hour delay. State v. Sam, 1999-0300, p. 8 (La.App. 4 Cir. 4/19/00), 761 So.2d 72, 78, writ denied, 2000-1890 (La.9/14/01), 796 So.2d 672 (delay between conviction and sentencing just under one month); State v. Dickerson, 579 So.2d 472, 484 (La.App. 3 Cir.1991), unit granted in part, 584 So.2d 1140 (La.1991) (delay between conviction and sentencing over one month). But cf., State v. Brauner, 99-1954 at p. 14, 782 So.2d at 63 (requiring that sentence be vacated notwithstanding over six months between conviction and sentencing).

Prior to sentencing, defendant filed motions for new trial and in arrest of judgment. The defendant was sentenced on the very same day that those motions were denied. There is no indication in the instant case that defendant waived the twenty-four hour delay, either expressly or implicitly. Defendant has not only raised the issue of excessive sentence, he has also raised the trial court’s failure to observe the twenty-four hour delay as an assignment of error.

Furthermore, in this case, nine days elapsed between the date of conviction and the date of sentencing. Given our review of the jurisprudence as well as the circumstances of this case, we do not find that a sufficient delay transpired such that the failure of the trial court to observe the twenty-four hour delay mandated by La. C. Cr. P. article 873 constitutes harmless error. We therefore find that the failure of the trial court to observe the mandatory twenty-four hour delay requires that the sentence be vacated and the case remanded to the trial court for resentencing.

ASSIGNMENT OF ERROR NO. 1

In this assignment of error, defendant claims the trial court erred in refusing to permit him, on the morning of the first day of trial, to change his plea from not guilty to a dual plea of not guilty and not guilty by reason of insanity.

k La. C. Cr. P. article 561 provides that a defendant may withdraw a plea of not guilty and enter a plea of not guilty and not guilty by reason of insanity'within ten days after arraignment. Thereafter, the court may, for good cause shown, permit such a change of plea at any time before the commencement of trial.

Defendant was arraigned on October 24, 2001, at which time he pleaded not guilty. He sought to change his plea to not guilty and not guilty by reason of insanity on the morning of the first day of trial, January 17, 2002, more than ten days after arraignment. More importantly, the transcript from the first day of trial indicates that defendant sought to change his plea at some point after voir dire had begun, probably after it had concluded. The minute entry from the first day of trial reflects that defendant moved to change his plea after voir dire was completed and the jury sworn. La. C. Cr. P. article 761 states that “[a] jury trial commences when the first prospective juror is called for examination.” As La. C. Cr. P. article 561 authorizes the trial court to permit a change in the plea from not guilty to not guilty and not guilty by reason of insanity only “at any time before the commencement of the trial,” the court in the instant could not have permitted a change in the plea after trial had commenced. See State v. Ausentan, 607 So.2d 665, 670 (La.App. 5 Cir. 1992) (“defendant’s motion to change her plea was untimely because trial had already commenced with the calling of the first prospective jurors for examination”). Accordingly, the trial court properly denied defendant’s request.

Moreover, prior to trial, on November 13, 2001, a hearing was held on the issue of defendant’s sanity at the time of the offense. Dr. Raphael Salcedo, qualified by stipulation as an expert in the field of forensic psychiatry, testified that he had examined defendant, and that it appeared defendant had been able to distinguish right from wrong at the time of the offense. It was stipulated by the 1 fiState and defense that Dr. Richoux was an expert in the field of forensic psychiatry, and that if he were called to testify his testimony would be substantially the same as that of Dr. Salcedo. The defense presented no evidence. At the conclusion of the hearing, the trial court found that defendant had been sane at the time of the offense.

On the morning of trial, defense counsel, the same counsel who represented defendant at the pre-trial sanity hearing, argued to the court that he was making the motion to change the plea based on talking to defendant on the morning of trial. Defense counsel mentioned that defendant might have been uncooperative with the two psychiatrists who previously had examined him and pronounced him sane at the time of the offense. In State v. Jason, 99-2551 (La.App. 4 Cir. 12/6/00), 779 So.2d 865, writ denied, 2001-0037 (La.11/9/01), 801 So.2d 357, the defendant moved to change his plea to not guilty and not guilty by reason of insanity on the morning of trial. Id. at p. 13, 779 So.2d at 873. The trial court immediately held a sanity hearing, prior to commencement of trial. Id. As in the instant case, both experts testified that the defendant was sane at the time he committed the offense. Id. at p. 14, 779 So.2d at 873-74. The trial court denied the defendant’s request to change his plea and this court affirmed. Id. at pp. 14-15, 779 So.2d at 874.

Even assuming defendant in the instant case would have timely requested to change his plea, because the two experts had previously found defendant sane at the time of the offense, and defendant presented no new evidence of insanity, it could not be said that the trial court would have abused its discretion in denying the motion on the merits.

There is no merit to this assignment of error.

ASSIGNMENT OF ERROR NO. 3

In his final assignment of error, defendant claims that his sentences were excessive, but limits his argument to the claim that the trial court erred in failing to consider his mental illness as a mitigating factor when sentencing him. The trial court denied defendant’s motion to reconsider sentence. Although defendant’s sentences must be vacated because the trial court failed to observe the twenty-four hour delay required by La. C. Cr. P. article 873, we also note that defendant’s assignment as to the excessive nature of the sentence has merit, where, as here, the record does not reflect that the defendant’s mental illness was not considered as a mitigating factor in the sentencing.

Article I, section 20 of the Louisiana Constitution explicitly prohibits excessive sentences. State v. Baxley, 94-2982, p. 4, (La.5/22/95), 656 So.2d 973, 977. Although a sentence is within the statutory limits, the sentence may still violate a defendant’s constitutional right against excessive punishment. State v. Brady, 97-1095, p. 17 (La.App. 4 Cir. 2/3/99), 727 So.2d 1264, 1272; State v. Francis, 96-2389, p. 6 (La.App. 4 Cir. 4/15/98), 715 So.2d 457, 461, grant of post conviction relief on other grounds affirmed, 2001-1667 (La.App. 4 Cir. 2/6/02), 809 So.2d 1132. However, the penalties provided by the legislature reflect the degree to which the criminal conduct is an affront to society. Baxley, 94-2982 at p. 10, 656 So.2d at 979, citing State v. Ryans, 513 So.2d 386, 387 (La.App. 4 Cir.1987). A sentence is constitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, is nothing more than the purposeless imposition of pain and suffering, and is grossly out of proportion to the severity of the crime. State v. Johnson, 97-1906, pp. 6-7 (La.3/4/98), 709 So.2d 672, 677; State v. Webster, 98-0807, p. 3 (La.App. 4 Cir. 11/10/99), 746 So.2d 799, 801, reversed on other grounds sub nom. State v. Lindsey, 99-3302 (La.10/17/00), 770 So.2d 339. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. Baxley, 94-2982 at p. 9, 656 So.2d at 979; State v. Hills, 98-0507, p. 5 (La.App. 4 Cir. 1/20/99), 727 So.2d 1215, 1217.

In reviewing a claim that a sentence is excessive, an appellate court generally must determine whether the trial judge has adequately complied with statutory guidelines in La. C. Cr. P. article 894.1, and whether the sentence is warranted under the facts established by the record. State v. Trepagnier, 97-2427, p. 11 (La.App. 4 Cir. 9/15/99), 744 So.2d 181, 189; State v. Robinson, 98-1606, p. 12 (La.App. 4 Cir. 8/11/99), 744 So.2d 119, 127. If adequate compliance with La. C. Cr. P. article 894.1 is found, the reviewing court must determine whether the sentence imposed is too severe in light of the particular defendant and the circumstances of the case, keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged. State v. Ross, 98-0283, p. 8 (La.App. 4 Cir. 9/8/99), 743 So.2d 757, 762; State v. Bonicard, 98-0665, p. 3 (La.App. 4 Cir. 8/4/99), 752 So.2d 184, 185.

However, in State v. Major, 96-1214 (La.App. 4 Cir. 3/4/98), 708 So.2d 813, this court stated:

The articulation of the factual basis for a sentence is the goal of Art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, resentencing is unnecessary even when there has not been full compliance with Art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The reviewing court shall not set aside a sentence for 19excessiveness if the record supports the sentence imposed. La. C. Cr. P. art. 881.4(D).

96-1214 at p. 10, 708 So.2d at 819.

In State v. Soraparu, 97-1027 (La.10/13/97), 703 So.2d 608, the Louisiana Supreme Court stated:

On appellate review 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. Cook, 95-2784, p. 3 (La.5/31/96), 674 So.2d 957, 959 (quoting State v. Humphrey, 445 So.2d 1155, 1165 (La.1984)), cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). For legal sentences imposed within the range provided by the legislature, a trial court abuses its discretion only when it contravenes the prohibition of excessive punishment in La. Const, art. I, § 20, i.e., when it imposes “punishment disproportionate to the offense.” State v. Sepulvado, 367 So.2d 762, 767 (La.1979). In cases in which the trial court has left a less than fully articulated record indicating that it has considered not only aggravating circumstances but also factors militating for a less severe sentence, State v. Franks, 373 So.2d 1307, 1308 (La.1979), a remand for resentenc-ing is appropriate only when “there appear[s] to be a substantial possibility that the defendant’s complaints of an excessive sentence ha[ve] merit.” State v. Wimberly, 414 So.2d 666, 672 (La.1982).

Id.

In the instant case, defendant was sentenced to twenty-one years at hard labor on the forcible rape conviction, and twenty years at hard labor on the aggravated incest conviction, with both sentences to run concurrently. La. R.S. 14:42.1 provides for a sentence of not less than five nor more than forty years at hard labor for forcible rape. La. R.S. 14:78.1 provides for a sentence of not less than five nor more than twenty years at hard labor, and/or a fíne of up to fifty thousand dollars, for aggravated incest. Defendant received approximately one-half of the maximum sentence on the forcible rape conviction, and the maximum prison sentence on the aggravated incest conviction.

1 ipThe trial court gave no reasons for sentencing, nor indicated in any way that it had considered the sentencing factors in La. C. Cr. P. article 894.1. Defendant argues that his mental illness was a mitigating factor the trial court should have considered. In State v. Legendre, 522 So.2d 1249 (La.App. 4 Cir.1988), this court vacated the five-year maximum sentence for second degree battery imposed on a defendant with a long history of mental illness who had been diagnosed as a paranoid schizophrenic and treated with various medications which he continually resisted taking. This court found that the trial court should have considered the defendant’s mental illness as a mitigating factor, citing several Louisiana Supreme Court decisions for the proposition that “Louisiana caselaw does indicate that mental illness should be used as a mitigating circumstance.” 522 So.2d at 1252. This court stated that “[w]hen persons with recognized, diagnosed mental illnesses are convicted of crimes, that condition should be considered to mitigate the type and length of sentence imposed on the offender, even if he has been ruled legally sane.” 522 So.2d at 1253.

In State v. Taylor, 91-2496 (La.App. 4 Cir. 3/29/94), 635 So.2d 416, this court cited Legendre for the proposition that Louisiana jurisprudence indicates that mental illness should be used as a mitigating factor in sentencing. In Taylor, however, this court affirmed the defendant’s sentence, noting that the defendant failed to introduce evidence that he was suffering from depression at the time of the offense. Hospital records showed that the defendant was diagnosed as suffering from moderate depression one year before the crime. However, ludefendant did not exhibit any signs of depression when examined some six months after the crime by a psychiatrist appointed to a sanity commission.

In the instant case, Dr. Salcedo testified at the October 30, 2001 hearing on defendant’s competency to proceed that defendant reported a history including an alleged diagnosis of paranoid schizophrenia. Dr. Salcedo stated that defendant had apparently received outpatient treatment at a local mental health clinic, and also possibly some inpatient treatment. Dr. Salcedo admitted that neither he nor Dr. Riehoux, the other member of the sanity commission, had an occasion to review any of defendant’s medical records. However, Dr. Salcedo inferred that he believed defendant’s representations. Dr. Salcedo said defendant indicated that he had not been receiving psychiatric medications since he was arrested, but that before then he had been taking an anti-psychotic medication, Zyprexa. Dr. Salcedo said Zyprexa was an anti-psychotic medication prescribed to relieve psychotic symptoms such as hallucinations and delusions. Dr. Salce-do said defendant was not displaying either of those symptoms. Dr. Salcedo did not find that defendant was particularly depressed. He noted that defendant’s defense posture was a little bit out of touch with reality, but did not think that was necessarily a result of mental illness, but perhaps out of some incomplete understanding of the legal implications of his situation.

Dr. Salcedo’s October 30, 2001 letter to the court states that defendant “apparently suffers from Chronic Paranoid Schizophrenia,” which he said was consistent with defendant having been treated with the anti-psychotic medication Zyprexa for two years, “evidently” through the Veteran’s Administration Hospital.

liaPr. Salcedo testified at the November 13, 2001 hearing on defendant’s sanity at the time of the offense that defendant indicated that he had been taking the anti-psychotic medication Zyprexa for the last two years, and had been going to the VA hospital since 1998, as well as the local mental health clinic. Defendant reported that he had been treated with Stelazine in 1998, and that he had been discharged from the Marine Corps with a diagnosis of schizophrenia. Dr. Salcedo stated that he and Dr. Riehoux did not know whether defendant’s psychiatric history predated 1998. Dr. Salcedo noted that the doctors did not see any objective evidence that defendant was suffering from any psychosis when they examined him on October 30, 2001. He did recommend that as a preventative measure it would be a good idea for defendant to start taking Zyprexa so he did not decompensate during trial, and noted that defendant was trying to get on medication in jail.

The victim testified that when police came they asked her if defendant was on some kind of medication. Apparently, when confronted by police that day, defendant stated that he had a nervous condition, that what he did to the victim and his son could have been prevented, and that he always tried to get help. The victim stated on cross examination that she knew defendant took medication, but did not know for what reason.

Defendant’s sole argument as to his excessive sentence claim is that the trial court failed to consider his mental illness in sentencing him. The trial court failed to consider any mitigating or aggravating-factor for the record when sentencing defendant. As previously discussed, defendant’s sentences must be vacated because of the trial court’s failure to observe the 24-hour delay between denial of defendant’s motions for new trial and in arrest of judgment. Defendant did not Improve by any objective evidence that he suffered from mental illness at the time he perpetrated any of the offenses for which he was convicted. However, the record suggests that defendant may suffer from and/or may have suffered in the past from a serious mental illness, paranoid schizophrenia. Therefore, the trial court must consider whatever evidence there is of defendant’s mental illness as a factor when resentencing him.

CONCLUSION

For the foregoing reasons, the trial court’s denial of defendant’s motion to change his plea is affirmed and his conviction is likewise affirmed. However, defendant’s sentence is hereby vacated and the case is remanded to the trial court for resentencing. We further note, notwithstanding the trial court’s failure to observe the mandatory twenty-four hour delay in sentencing, that the mental illness of defendant should be considered as a mitigating factor in sentencing.

AFFIRMED IN PART AND REMANDED FOR RESENTENCING.

      . In State v. Martin, the court noted that Augustine is overruled to the extent that defendant fails to comply with La.Code of Crim. Proc. Ann. Article 881.1. Martin, 93-1915 at p. 2, 643 So.2d at 832. Specifically, Martin states that defendant must file a motion to reconsider sentence within 30 days of the imposition of sentence: failure to do so precludes defendant from challenging his sentence on appeal. Id.

      . Citing State v. Price, 403 So.2d 660 (La.1981) (defendant suffered from deranged mental condition which, while not absolving him of criminal responsibility, did tend to excuse or explain his behavior); State v. Hart, 397 So.2d 518 (La.1981) (fact that defendant diagnosed as schizophrenic should have served as a mitigating circumstance in sentencing).


author: h MIRIAM G. WALTZER, Judge.

text:
    STATE of Louisiana v. Travis S. EVERIDGE.
    No. 2002-KA-0309.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 11, 2002.

      Harry F. Connick, District Attorney, Scott Peebles, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Karen G. Arena, Louisiana Appellate Project, River Ridge, LA, for Defendant/Appellant.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge MIRIAM G. WALTZER, Judge MICHAEL E. KIRBY).
   h MIRIAM G. WALTZER, Judge.

STATEMENT OF THE CASE

Defendant Travis S. Everidge was charged by bill of information on 31 October 2000 with possession of cocaine in an amount twenty-eight grams or more, but less than two hundred grams, a violation of La. R.S. 40:967(C) & (F). Defendant pleaded not guilty at his 6 November 2000 arraignment. The trial court denied defendant’s motion to suppress the evidence on 15 November 2000. On 23 April 2001, the trial court declared a mistrial. Defendant was found guilty as charged on 19 July 2001, following a two day jury trial. The trial court denied defendant’s motion for new trial on 23 August 2001, and sentenced him to ten years at hard labor. The trial court denied defendant’s motion to reconsider sentence and granted defendant’s motion for appeal. On 15 October 2001, defendant was adjudicated a second-felony habitual offender. After defendant waived all legal delays, the trial court vacated his original sentence and re-sentenced him to thirty years at hard labor. Defendant filed a motion to reconsider sentence. The trial court held an eviden-tiary hearing on 9 November 2001, and the trial court denied the motion to reconsider on 7 December 2001.

| STATEMENT OF FACTS

New Orleans Police Detective Jeffrey Vappie and his partner Officer Corey Robinson arrested defendant on the evening of 14 October. They observed defendant standing approximately fifteen feet away from them, near a store at the corner of Sere and Gibson Streets. Defendant, who had his back to the officers, was engaged in a hand-to-hand transaction with another individual. When the officers turned onto Sere Street, the other individual ran toward St. Bernard Avenue, while defendant ran past the police cruiser into the St. Bernard Housing Development. Det. Vappie gave chase. Defendant clutched his side as he ran, leading Det. Vappie to believe that he was in possession of a firearm. Det. Vappie maintained sight of defendant at all times. He kept reporting his position to Officer Robinson, who was in the police cruiser. Defendant ran past the police cruiser again, and Officer Robinson drove behind him, finally exiting and apprehending him. Det. Vappie came up to find Officer Robinson attempting to handcuff defendant. Defendant was holding currency in his left hand. Officer Robinson was holding some narcotics.

Det. Vappie admitted on cross-examination that he never saw defendant in possession of cocaine. He was present when defendant was searched at Central Lockup, and said no cocaine or crack pipes were found on him. Det. Vappie confirmed that after defendant’s arrest his family members came to the scene and asked about defendant’s money. Det. Vappie said he did not recall previously stating that defendant put something in his front pocket when the officers first saw him. Det. Vappie was asked to read something to himself, and was then asked |3again by defense counsel whether he recalled saying something about defendant’s front pocket. Det. Vappie replied that he probably said it, that it was a long time ago. Det. Vappie replied in the negative when asked whether he saw defendant put his hands into his pockets during the chase.

New Orleans Police Officer Corey Robinson testified that he observed defendant hand a “rock” to the other individual, who gave defendant currency in exchange. Officer Robinson said that after tackling defendant, he retrieved a bag containing six rocks of a white substance from defendant’s right hand, which he identified as evidence. He said defendant also had $789 in currency in his left hand. After defendant was placed in the police car, his mother approached and inquired about defendant’s money. Defendant’s mother also came to the police station to inquire about the money. Officer Robinson confirmed on cross-examination that no gun was recovered in connection with the case.

Karen Lewis-Holmes was qualified by stipulation as an expert in the analysis and identification of controlled dangerous substances, and in the practices and procedures of the New Orleans Police Department Crime Laboratory. Ms. Lewis-Holmes testified that the contents of the white plastic bag weighed 34.6 grams. Her test results were positive for cocaine. Ms. Lewis-Holmes testified that the six rocks were contained in separate small plastic bags. She admitted that she did not break off any part of the rocks for testing, but did four tests of the crumbs or residue that were in the bags. She explained that the substances crumble and leave traces in the bags. She stated that the larger plastic bag was not submitted for fingerprint analysis.

Lisa Pierce, defendant’s mother, testified that she was visiting her mother in the St. Bernard Housing Development. Mrs. Pierce had taken a loan to pay her 14house note. She telephoned her brother to take defendant and her money home. Subsequently, some children told her that police were beating her son. Mrs. Pierce went to the scene, where she observed Det. Vappie with his foot on defendant’s back. She claimed that she went to ask what happened, and followed defendant and the officers to the police station. She asked for return of what she alleged was the money to pay her house note. Mrs. Pierce identified what she said were papers for her loan, which document defense counsel introduced in evidence. Mrs. Pierce said her loan took effect on 11 October 2000, but she did not pick up the money until the next day.

Mrs. Pierce testified on cross-examination that she was on St. Bernard Avenue when she gave the money to defendant to give to her brother so they could take it home. Mrs. Pierce stated on cross-examination that her house note was $477.00, but that if it was late it was $519.00. She claimed to have cashed the loan check at the bank, where she received $800 in twenty-dollar bills. The $789 recovered from defendant was in multiple denominations— $560 in twenty-dollar bills, $130 in ten-dollar bills, $90 in five-dollar bills, and $9 in one-dollar bills. Mrs. Pierce confirmed that she had spent $11 at the store. Mrs. Pierce was asked on cross-examination when the $800 in twenty-dollar bills had been broken down into the multiple denominations, and she replied that it had been done at the store.

Mrs. Willie Morris, defendant’s grandmother, testified that Lisa Pierce was with her in her apartment in the St. Bernard Housing Development when Lisa mentioned that she had taken out a loan to pay her house note. Mrs. Pierce allegedly mentioned that she had forgotten to leave the money at her residence. Mrs. Pierce asked defendant to go to the grocery store to ask Mrs. Pierce’s brother to take defendant to Ms. Pierce’s home to pay the money.

| sRenatta Robin, defendant’s girlfriend, testified that on the night defendant was arrested she was sitting on her grandmother’s porch in the St. Bernard Development. She observed two police officers cause defendant to fall, and then start beating him. She later saw Lisa Pierce come to the scene.

Defendant testified that he was on his way to the store to meet his uncle and take home his mother’s money. He fled from police because he had his mother’s money, and believed police would take it from him. He testified that he had seen this done before. The money was in his front right pocket. He said he first saw the bag of cocaine after he was apprehended, when the officers brought it from around the corner of the building. Defendant admitted a prior conviction for illegal use of a firearm. He pleaded guilty to that offense because he was guilty. Defendant admitted that he complained to EMS personnel only that he had facial pain from falling on the grass, and that he had not needed to go the hospital. He admitted that he did not have any bruises or signs of trauma.

Lisa Pierce was recalled as a witness. She testified that she went home after testifying earlier and retrieved a payment book containing coupons she mails off with her house payments. On cross-examination, the prosecutor confirmed that Ms. Pierce mailed the coupons, inferring that she also mailed her payments.

ERRORS PATENT

A review of the record reveals one error patent. When the trial court originally sentenced defendant, it sentenced him immediately after having denied his motion for new trial, and did not wait the requisite twenty-four hours as required by La.C.Cr.P. art. 873. There is no indication that defendant waived the delay. However, defendant was subsequently adjudicated a second-felony habitual | ^offender, his original sentence was vacated, and he was re-sentenced. In such a case the defendant is not prejudiced by the failure to observe the delay in connection with the original sentencing. State v. Sam, 99-0300, pp. 7-8 (La.App. 4 Cir. 4/19/00), 761 So.2d 72, 78.

ASSIGNMENT OF ERROR: The evidence is insufficient to support defendant’s conviction.

This court set out the well-settled standard for reviewing convictions for sufficiency of the evidence in State v. Ragas, 98-0011 (La.App. 4 Cir. 7/28/99), 744 So.2d 99, as follows:

In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (La.App. 4 Cir.1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). The reviewing court must consider the record as a whole since that is what a rational trier of fact would do. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. The fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mus-sall; Green; supra. ... In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438.

98-0011 at pp. 13-14, 744 So.2d at 106-107, quoting State v. Egana, 97-0318, pp. 5-6 (La.App. 4 Cir. 12/3/97), 703 So.2d 223, 227-228.

7 Defendant was convicted of possession of cocaine in an amount twenty-eight grams or more, but less than two hundred grams, in violation of La. R.S. 40:967(C) & (F). To convict for possession of a controlled dangerous substance, the State must prove that the defendant knowingly possessed it. State v. Handy, 2000-0051, p. 4 (La.App. 4 Cir. 1/24/01), 779 So.2d 103, 104, writ denied, 2001-1896 (La.3/28/02), 812 So.2d 651. Guilty knowledge is an essential element of the offense of possession of a controlled dangerous substance. State v. Ricard, 98-2278 and 99-0424, p. 7 (La.App. 4 Cir. 1/19/00), 751 So.2d 393, 397. Knowledge need not be proven as fact, but may be inferred from the circumstances. State v. Porter, 98-2280, p. 3 (La.App. 4 Cir. 5/12/99), 740 So.2d 160, 162.

Defendant first argues that the evidence was insufficient as to the amount of cocaine allegedly in his possession. Defendant correctly notes that criminalist Karen Lewis-Holmes testified that she did not test any of the six rock-like substances found in defendant’s possession at the time of his arrest. Ms. Lewis-Holmes tested four samples of the crumbs that came from the individual bags that held the rocks. She weighed all of the cocaine to get a total weight of 34.6 grams, and presumably tested the crumbs or dust afterward. Defendant argues that it is “entirely possible” that the six rocks were “bunk,” meaning false or fake crack cocaine. However, we note that defendant offered no evidence that the substance was not cocaine to rebut the State’s evidence.

The record contains evidence that two police officers observed defendant, engage in a hand-to-hand transaction with another individual. One officer observed the other individual hand defendant currency, and defendant hand a white object to him. When the men saw the police, both fled. Det. Vappie engaged in an píntense foot chase of defendant through the St. Bernard Housing Development, but was unable to catch him. Officer Robinson eventually tackled defendant, who resisted being handcuffed. Defendant had $789 in one hand, and the cocaine in the other, according to Officer Robinson. All of the contraband seized, the six rocks and crumbs, weighed 34.6 grams. Four samples of the crumbs tested positive for cocaine. Ms. Lewis-Holmes pointed out that the plastic bag shown to her at trial had the rocks in it as well as crumbs, stating that the crumbs or pieces break off of the rocks. Defendant’s story that the money was for his mother’s house note was reasonably suspect. Defendant’s mother testified that she received $800 in twenty-dollar bills from a credit union or bank, yet defendant was in possession of only $560 in twenty-dollar bills, with the rest in ten, five and one-dollar denominations. It would not be unreasonable for a trier of fact to reject her explanation that she received the other denominations when she went to the store, where she spent only eleven dollars.

Viewing the entirety of the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that defendant was a seller of crack cocaine, and that all six of the individually wrapped white rock-like substances he possessed at the time of his arrest, and the crumbs or pieces in the individual bags, were in fact cocaine. Defendant’s hypothesis of innocence — that some of the white crumbs or pieces in the six individuál bags containing the rocks were cocaine, but that the rocks might have been fake crack cocaine — is not reasonable.

Defendant further suggests that Officer Robinson’s testimony is extremely suspicious as to the sequence and timing of the events surrounding the officer’s apprehension of him and recovery of the cocaine. Defendant submits that his story pthat Officer Robinson simply found some cocaine in the area and assumed it was defendant’s is more believable than the officer’s testimony. Again, viewing all of the evidence in a light most favorable to the prosecution, any rational trier of fact could have rejected defendant’s story and found beyond a reasonable doubt that defendant knowingly possessed the 34.6 grams of cocaine.

There is no merit to this assignment of error.

SUPPLEMENTAL ASSIGNMENT OF ERROR: Defendant’s sentence is constitutionally excessive.

Defendant was sentenced to thirty years at hard labor, the statutory minimum sentence as a second felony habitual offender convicted of possession of cocaine in an amount twenty-eight grams or more, but less than two hundred grams, based on the law in effect at the time of defendant’s arrest, conviction and sentencing. See La. R.S. 15:529.1(A)(1)(a) (not less than one-half the longest term provided); La R.S. 40:967(F)(l)(a) (possession of twenty-eight grams or more, but less than two hundred grams, a sentence of not more than sixty years).

Even though a sentence under the Habitual Offender Law is the minimum provided by that statute, the sentence may still be unconstitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, or is nothing more than the purposeful imposition of pain and suffering and is grossly out of proportion to the severity of the crime. State v. Johnson, 97-1906, pp. 6-7 (La.3/4/98), 709 So.2d 672, 677. However, the entire Habitual Offender Law has been held constitutional, and, thus, the minimum sentences it imposes upon habitual 110offenders are also presumed to be constitutional. Johnson, 97-1906 at pp. 5-6, 709 So.2d at 675. Defendant must present substantial evidence to rebut the presumption of constitutionality, showing by clear and convincing evidence that he is exceptional, which in this context means that because of unusual circumstances he is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. Johnson, 97-1906 at p. 8, 709 So.2d at 677. Departures downward from the minimum sentence under the Habitual Offender Law should occur only in rare situations. Johnson, 97-1906 at p. 9, 709 So.2d at 677.

The trial court held a hearing on defendant’s motion to reconsider' sentence at which defendant’s mother testified that defendant was a good child, and that she was a single parent until defendant was “older”. Defendant would do whatever he could for her, her sister, her brother and others. Defendant’s girlfriend bore his child when he was seventeen years old. Mrs. Pierce testified that defendant was supporting the child, and was a good father. Defendant was a Catholic who attended church. He left school in the eleventh grade to work to support his infant. Mrs. Pierce testified that her husband broke his hip and wrist at work, and that she needed defendant to help her.

Defendant’s grandmother testified that defendant was a good child and always willing to help the elderly with things around their homes or go to the store for them.

Renatta Robin, the mother of defendant’s child, testified that defendant was “there for her” and their child before and after she gave birth. Defendant never Indented paternity or failed to provide support for his child. She believed defendant dropped out of high school to help her with their child.

The trial court declined to reconsider defendant’s sentence, stating that nothing raised by defendant established the exceptional circumstances required by Johnson. The court rejected defendant’s argument that a 2001 amendment to La. R.S. 40:967(F)(l)(a), reducing the maximum sentence for possession of cocaine in an amount more than twenty-eight grams, but less than two hundred grams, from sixty years to thirty years, should be a consideration in defendant’s sentencing. Under the amended La. R.S. 40:967(F)(l)(a), defendant, sentenced as a second-felony habitual offender under La. R.S. 15:529.1(A)(l)(a), would have faced a minimum sentence of fifteen years, one-half of the minimum thirty-year sentence imposed by the trial court.

The amendments effected by Acts 2001, No. 403, § 4, eff. June 15, 2001, including the one to La. R.S. 40:967(F)(l)(a), are prospective only in application. Section 6 of Act 403 provides, “[T]he provision of this Act shall only have prospective effect.” The trial court cited three decisions by this court involving defendants sentenced under other drug laws that were amended by Act 403, with the amendments taking effect after the dates of their offenses. The three decisions reiterated the general principle that the statute in effect at the time of the commission of the offense governs. State v. Carter, 2001-1560 (La.App. 4 Cir. 10/3/01), 798 So.2d 1181; State v. Legendre, 2001-1483 (La.App. 4 Cir. 10/3/01), 798 So.2d 1179; State v. Serpas, 2001-1477 (La.App. 4 Cir. 10/3/01), 798 So.2d 1178.

ip. In the instant case, the trial court cited the above cases in rejecting defendant’s suggestion that Act 403’s amendment of La. R.S. 40:967(F)(1)(a) could be an equitable factor in assessing the reasonableness of the sentence under State v. Dorthey, 623 So.2d 1276 (La.1993). The court informed defendant that it regretted its decision denying his motion to reconsider sentence, but that it was required to follow the law. This was error insofar as the trial court believed it was barred by law from considering the dramatic reductions in sentences for drug offenses effected by Act 403 as a palliative factor when assessing the reasonableness of a defendant’s sentence under Dorthey. To the contrary, the legislature’s subsequent changes in criminal statutes are relevant sentencing considerations. State v. Jones, 99-2207, p. 6 (La.1/29/01), 778 So.2d 1131, 1134. In State v. Rice, 2001-0215 (La. 4 Cir. 1/16/02), 807 So.2d 350, writ denied, 2002-0513 (La.9/13/02), 824 So.2d 1186, this court held that it was error for a trial court to refuse to consider a Dorthey reduction of the statutory mandatory life sentence, stating that the enactment of Act 403 was a “signal that our legislature desired to revisit harsh sentencing in our state .... ” 2001-0215, p. 7, 807 So.2d at 354. In State v. Moore, 2001-2105 (La.App. 4 Cir. 2/13/02), 809 So.2d 520, this court rejected defendant’s argument that he should have been sentenced under a provision of the Habitual Offender Law amended by Act 403, but noted that it appeared the trial court had considered the ameliorative change in the law as one factor before imposing sentence.

There is merit to this assignment of error.

1 ^CONCLUSION AND DECREE

For the foregoing reasons, we affirm defendant’s conviction and adjudication as a second-felony habitual offender, vacate his sentence and remand the case for re-sentencing in accordance with the views expressed herein.

CONVICTIONS AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING.

ARMSTRONG, J., CONCURS.

      . No year was given. Defendant was charged with committing the crime on October 14, 2000. Trial was held in 2001.

      . The transcript incorrectly spells the name of Sere Street as “Sear.”

      . Defendant could have been fined from fifty thousand to one hundred thousand dollars under La. R.S. 40:967(F)(l)(a).

      . Acts 2001, No. 403, § 4, eff. June 15, 2001.