text:
    STATE of Louisiana v. Castadel RUFFIN.
    No. 02-KA-798.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2002.

      Paul Connick, Jr., District Attorney, Terry Boudreaux, Assistant District Attorney, Gretna Courthouse, Gretna, LA, for Appellee.
    Bruce G. Whittaker, New Orleans, LA, Castadel Ruffin, pro se, Angola, LA, for Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY and WALTER J. ROTHSCHILD.
   | .MARION F. EDWARDS, Judge.

Defendant, Castadel Ruffin, appeals his conviction and sentence for distribution of cocaine within 1000 feet of St. Christopher Elementary School, a violation of LSA-R.S. 40:981.3. We affirm.

The incident was alleged in the bill of information to have occurred on or about August 21, 2000.

Following a plea of not guilty, Ruffin filed numerous pre-trial motions, including a motion to suppress confession, evidence, and identification. Although the Motion to Suppress Identification was denied after closing arguments and prior to the guilty verdict, there was no ruling on the Motion to Suppress Evidence and/or Confession. On May 10, 2001, Ruffin waived a jury trial, and the case was tried before the judge who found him guilty as charged. On May 30, 2001, the trial court sentenced Ruffin to imprisonment at hard labor for 20 years. The trial court also recommended the Blue Walters drug treatment program during the period of Ruffin’s incarceration.

|aThe state filed a multiple offender bill of information alleging Ruffin to be a third felony offender. Ruffin denied the allegations of the multiple bill, and following hearing, the trial court found him to be a second felony offender. The court vacated the original sentence, and sentenced Ruf-fin under LSA-R.S. 15:529.1 to imprisonment at hard labor for 60 years. Ruffin filed a Motion to Reconsider Sentence on April 8, 2002, and on that same date, he also filed a Motion for Appeal that was granted. Again, there was no ruling on the Motion to Reconsider Sentence.

Megan Carter (the pseudonym of an undercover officer), testified that she was employed by the Jefferson Parish Sheriffs Office, and that she conducted an investigation into illegal drug trafficking on Manson Street in Metairie in Jefferson Parish. On August 21, 2000, Officer Carter met a white female in the Auto Zone parking lot at the corner of Airline Drive and Manson Street. They had a conversation regarding the purchase of “two twenties” of crack cocaine. The female told Officer Carter to meet her in the La Village Hotel parking lot. The female left but returned with a black male, later identified as Ruffin. After the female told Ruffin what Officer Carter wanted, Ruffin gave Officer Carter cocaine. Officer Carter gave Ruffin forty dollars, and she gave the female two dollars.

Officer Carter testified that the location of the drug transaction was approximately one block away from St. Christopher’s School and Church. Officer Carter had video and audio equipment in her vehicle to monitor the transaction. She identified State’s Exhibit 1 as a videotape of the transaction, which videotape was played for the judge. Still photographs taken from that videotape were also identified and admitted into evidence. Officer Carter testified that Ruffin’s eye was disfigured. She further identified State’s Exhibit 3 as the two rocks of crack cocaine she purchased from Ruffin, testifying that she did not know Ruffin’s name when she purchased the drugs from him. She gave a description of Ruffin to 1 ¿Officer Robert Gerdes the night of the purchase. Officer Billy Matranga subsequently presented Officer Carter with a photographic lineup, State’s Exhibit 4. Officer Matranga did not tell her whom to pick out in the lineup. Officer Carter recognized photograph number 3, Ruffin, as the man who sold drugs to her, and identified State’s Exhibit 5 as a photograph of the area where the drug transaction occurred.

Officer Robert Gerdes, who was called as a witness by the state, testified that he became involved in a narcotics investigation in August of 2000. He testified that, on August 21, 2000, he spoke with Officer Carter, who informed him that she had made a crack cocaine purchase from a black male at the La Village Motel which was located at 100 Manson Avenue off of Airline Drive in Metairie. Officer Carter provided Officer Gerdes with a physical description of the individual: a black male, 5'9" or 5'10", medium build and that he appeared to be blind or scarred in the right eye. Based on that description, Officer Gerdes and some other officers proceeded to the La Village Motel in an attempt to find the individual who sold drugs to Officer Carter.

When they pulled into the motel parking lot, Officer Gerdes observed the black male that Officer Carter had described. Officer Gerdes and the other officers detained the black male, later identified as Ruffin, for identification purposes. Officer Gerdes completed a standard Jefferson Parish Sheriffs Office field interview card, marked as State’s Exhibit 6. The card listed Ruffin’s name, date of birth and physical description. On the back of the card, Officer Gerdes noted that Ruffin was blind in his right eye, and that he had a small tattoo of an “R” on his right hand. Officer Gerdes gave Officer Billy Matran-ga the field interview card and informed him that he and Sergeant Bruce Harrison had arrested Ruffin that night for an outstanding attachment.

|sBiIly Matranga, who was called as a witness by the state, testified that he was employed by the Jefferson Parish Sheriffs Office in the narcotics division. Officer Matranga testified that he had received information regarding a suspect’s description from Officer Gerdes. Based on this description, Officer Matranga compiled a photographic lineup using a photograph of Ruffin on August 23, 2000. He identified State’s Exhibit 4 as the photographic lineup he compiled. Officer Matranga showed the lineup to Officer Garter on August 23, 2000, and she was able to positively identify Ruffin, photograph number 3, as the individual who sold her drugs. Officer Matranga testified he did not offer her anything to pick Ruffin, nor did he suggest to her in any way that she should pick him. Officer Matranga was on the scene during the drug transaction, and although he did not witness it, he heard it on a transmitter.

The state and Ruffin agreed to the following stipulation: that if the state called Charles Kron, a forensic scientist, he would be accepted as an expert in the field of forensic chemistry; that Mr. Kron received two pieces of off-white objects at the crime lab on August 23, 2000 in connection with this case; that he analyzed the two objects; and that the two objects were found to contain cocaine.

Sergeant Joe Williams, who was called as a witness by the state, testified that he took measurements in connection with this case, and that the distance between the property line of St. Christopher’s School and the property line of the La Village Motel was 98.3 feet. He identified State’s Exhibit 5 as a photograph of the area where he took the measurements. Sergeant Williams explained that he positioned police cars to assist him in taking the measurements. Agent Fleming’s car was next to the property line of St. Christopher’s School, and his car was next to the property line of the La Village Motel. Sergeant Williams testified that, in looking at State’s Exhibit 5, it appeared to him that the distance from the place where the drug transaction occurred to his car was the same as the distance from | Jais car to Agent Fleming’s car. He did not measure the distance between the property line of St. Christopher’s School and the actual location of the drug transaction.

Bert Carlisle, who was called as a witness by the state, testified that he was the assistant principal at St. Christopher’s School. Using State’s Exhibit 5, he identified the building which housed children in kindergarten through eighth grade, the church, and the pre-school for three and four-year-old children. Mr. Carlisle also identified a playground for the three and four-year-old children located next to Manson Street and across the street from the La Village Motel. He testified that the school was in operation on August 21, 2000, that St. Christopher was a drug free zone, and that there were signs posted around the school stating that St. Christopher was a drug free zone.

The defense did not call any witnesses.

Ruffin has raised issues on appeal regarding sufficiency of the evidence, erroneous admission of evidence, excessive sentence, and failure to knowingly and intelligently waive his right to a jury trial. Ruffin argues that trial counsel was ineffective for failing to timely file a Motion for Post Verdict Judgment of Acquittal because the evidence was insufficient to support a conviction. Specifically, he contends the state failed to prove that he knowingly or intentionally distributed cocaine. He further argues that the state failed to prove that he knew the two rocks sold to Officer Carter contained cocaine or that he sold the two rocks with the intent to sell cocaine. When the issues on appeal relate to both the sufficiency of evidence and one or more trial errors, such as the erroneous admission of evidence, the reviewing court should first determine the sufficiency [ 7of the evidence by considering all of the evidence, including evidence the trial court may have erroneously admitted.

The record does not indicate that defendant filed a Motion For Post Verdict Judgment. However, this failure does not preclude appellate review of the sufficiency of the evidence. If the appellate court determines that the evidence was insufficient, then the defendant is entitled to an acquittal, and no further inquiry as to trial errors is necessary. However, if the appellate court finds that the totality of the evidence was sufficient to support the defendant’s conviction, it must then determine whether the trial court erred in admitting the questioned evidence and, if so, whether the trial court’s error requires a reversal of the conviction or was harmless.

The constitutional standard for testing the sufficiency of the evidence, enunciated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. In applying this standard, the reviewing court will not assess credibility or re-weigh the evidence. The trier of fact shall evaluate credibility and when faced with a conflict in testimony, is free to accept or reject, in whole or in part, the testimony of any witness. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual finding.

| sRuffín was charged with and convicted of distribution of cocaine within 1000 feet of a school in violation of LSA-R.S. 40:981.3 which provides in pertinent part:

Sec. 981.3. Violation of Uniform Controlled Dangerous Substances Law
A. (1) Any person who violates a felony provision of R.S. 40:966 through 970 of the Uniform Controlled Dangerous Substances Law while on any property used for school purposes by any school, within one thousand feet of any such property, or while on a school bus, shall, upon conviction, be punished in accordance with Subsection E.

In this case, Ruffin violated LSA-R.S. 40:967 which provides in pertinent part:

Sec. 967 Prohibited acts — Schedule II, penalties
A. Manufacture; distribution. Except as authorized by this Part or by Part VII-B of Chapter 5 of Title 40 of the Louisiana Revised Statutes of 1950, it shall be unlawful for any person knowingly or intentionally: (1) To produce, manufacture, distribute, or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance classified in Schedule II.

Cocaine is a Schedule II drug pursuant to LSA-R.S. 40:964. The elements of distribution of cocaine are knowingly or intentionally distributing a controlled dangerous substance classified in Schedule II.

A defendant is guilty of distribution of cocaine when he transfers possession or control of cocaine to his intended recipient. State v. Smith, 97-222, p. 6 (La.App. 4 Cir. 4/7/99), 734 So.2d 826, 831. Only general intent is required. State v. Chapman[Chatman], 599 So.2d 335 (La.App. 1 Cir.1992). Such intent is established by mere proof of voluntary distribution. Id. The state must show (1) delivery or physical transfer; (2) guilty knowledge of the controlled dangerous substance at the time of transfer; 13 and (3) the exact identity of the controlled dangerous substance. Id.

Ruffin argues that the state failed to prove he knowingly or intentionally distributed cocaine. However, the state produced the testimony of Officer Carter summarized above, which proves that Ruffin voluntarily delivered or physically transferred the cocaine when he handed the drugs to Officer Carter. Guilty knowledge of the cocaine at the time of transfer was shown when Officer Carter testified she had a conversation with a female regarding the purchase of two twenties of crack cocaine, the female returned to the parking lot with Ruffin, the female told Ruffin what Officer Carter wanted, and he handed two crack cocaine rocks to Officer Carter. The exact identity of the cocaine was stipulated to when then the prosecutor and defense counsel agreed that if Mr. Kron were called to testify, he would have testified that the two rock-like objects sold to Officer Carter were found to contain cocaine.

The drug transaction was videotaped and played for the judge. Officer Carter identified defendant in a photographic lineup. Officer Carter further testified that the drug transaction occurred approximately one block away from St. Christo-phers School. Sergeant Williams uncon-tradicted testimony was that the distance between the property line of St. Christo-phers School and the property line of the La Village Motel was 98.3 feet and further, that the distance from the location of the drug transaction to the property line of the La Village Motel was 98.3 feet.

When the testimony and the other evidence introduced at trial is viewed in the light most favorable to the prosecution, a rational trier of fact could have found that the state proved beyond a reasonable doubt that defendant knowingly or intentionally distributed cocaine within 1000 feet of a school.

As part of this assignment of error, Ruffin argues that he was denied the right to have the state prove that the two rocks sold to Officer Carter contained cocaine, because his counsel stipulated that the two rocks contained cocaine. This alleged error relates to trial strategy. Ineffectiveness of counsel, relating to trial strategy, cannot be determined by review of the record on appeal. Such a claim must be asserted by application for post-conviction relief where the issue can be fleshed out through an evidentiary hearing, if necessary, to determine, among other things, the defense strategy and whether the defendant was himself aware of the strategy and acquiesced in it. Therefore, Ruffins claim regarding his counsels trial strategy with respect to the stipulation should be asserted by application for post-conviction relief.

This assignment is without merit.

Ruffin also urges that the trial court erred when it failed to consider the sentencing guidelines and abused its discretion, sentencing him to an unconstitutionally excessive sentence both on original imposition and again at the multiple offender proceedings. It is further urged that the court erred in basing Ruffins multiple offender sentence on the erroneous premise that he had been originally sentenced to thirty years instead of the actual twenty years.

Ruffin did not file a timely Motion To Reconsider Sentence after his original sentencing. However, because the sentence was vacated at the multiple offender proceedings, this claim is moot. Ruffin did timely file the proper Motion To Reconsider Sentence after the multiple bill hearing. However, the record does not indicate that this motion has been ruled upon, and thus the allegations regarding excessiveness are premature. We remand the case to the district court for a ruling Inon this motion. If the motion to reconsider sentence is granted and Ruffin is resentenced, he may appeal the new sentence. If the motion is denied, or if it already has been ruled on, he must move to relodge this appeal within 60 days of the date of the ruling on the motion to reconsider sentence or the date of this opinion, whichever is later.

Ruffin, in his pro se brief, argues that he knowingly, but not intelligently, waived his right to a jury trial. He claims he was unaware of, and that the trial court failed to advise him, that in cases where punishment is necessarily confinement at hard labor, as in his case, a jury of twelve shall determine the verdict by a vote of ten of the twelve concurring, and that if the vote is less than ten, a mistrial shall be ordered. In support of his position, Ruffin cites the case of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), as well as LSA-C.Cr.P. art. 780 (right to waive trial by jury), art. 782 (number of jurors required for concurrence), art. 775 (grounds for mistrial), and art. 812 (jury polling).

The exchange at trial regarding the jury trial waiver is as follows:

THE COURT:
All right. I understand your client is waiving his right to a jury trial and has elected to proceed with a judge trial, is that correct, Ms. Davis?
MS. DAVIS: (Defense counsel)
That is correct, Your Honor, and you can do the colloquy for the record.
THE COURT:
Lets swear Mr. Ruffin in.
|,,BY THE COURT:
Q. All right, Mr. Ruffin, I understand at this time that you have indicated to your attorney you wish to waive your rights to a jury trial, and you wish to be tried by the Court alone in a judge trial; is that correct?
A. Yes.
Q. All right. And your attorney has explained to you that you have in fact a right to be tried by a jury of your peers. Do you understand that?
A. Yes, sir.
Q. And you are electing to proceed with a judge trial?
A. Yes, sir.
THE COURT:
I’m satisfied that the defendant is making a knowing, intelligent waiver of his rights to a jury trial, and we will proceed with a judge trial.

A defendant may waive his right to a jury trial and elect to be tried by the judge. LSA-C.Cr.P. art. 780. The trial judge may accept a waiver of a jury trial at any time prior to the commencement of trial. LSA-C.Cr.P. art. 780(B). A waiver of trial by jury is valid only if the defendant acted voluntarily and knowingly. The waiver must be express and is never presumed. The record must show a knowing and intelligent waiver. Although it is preferred for the trial judge to advise the defendant personally on the record of his right to a jury trial and have the defendant waive the right personally on the record, the Louisiana Supreme Court has refused to mandate this method as an absolute rule.

In the instant case, the trial judge stated that defense counsel had advised him that Ruffin wished to waive his right to a jury trial. Ruffin was then sworn in. |13 The trial judge personally asked him, on the record, whether he had indicated to his attorney that he wished to waive his right to a jury trial and to be tried in a judge trial, whether his attorney had explained to him that he had a right to be tried by a jury of his peers, whether he understood that, and whether he was electing to proceed with a judge trial. Ruffin responded affirmatively to all inquiries. In addition to this express waiver, the record indicates that Ruffin had previous experience as an accused in two criminal proceedings, both times pleading guilty. We find that these factors show he understood the proceedings.

Ruffin claims he was unaware of, and that the trial court failed to advise him, that in cases where punishment is necessarily confinement at hard labor, as in his case, a jury of twelve shall determine the verdict by a vote of ten of the twelve concurring, and that if the vote is less than ten, a mistrial shall be ordered. Ruffin cites no cases in his pro se brief to support this contention. Neither the statutes nor the jurisprudence requires the trial judge to inform a defendant of the details involving the number of jurors and the votes necessary for a conviction, only that the waiver be knowing and intelligent.

Ruffin cites Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), to support his position that the waiver was not intelligently made. Boy-kin involves the rights that must be given to a defendant when he pleads guilty to the crime with which he has been charged, and is inapplicable to this case where Ruf-fin did not plead guilty, but rather elected to proceed with a jury trial. Furthermore, while the trial judge must determine if the defendant’s jury trial waiver is knowing and intelligent, that determination does not require a Boykin-like colloquy. Therefore, considering the colloquy between Ruffin and |14the trial judge, we find that Ruffin knowingly and intelligently waived his right to a jury trial. This assignment of error is without merit.

Ruffin argues in his pro se brief that his trial counsel was ineffective for failing to ensure that a hearing on the motion to suppress identification, evidence, and confession was held prior to trial and that rulings on the motions were made prior to the introduction of evidence at trial.

On January 9, 2001, prior to trial, defense counsel filed several pre-trial motions, including a Motion To Suppress Confession, Evidence, and Identification. A pre-trial suppression hearing was not held. After Officers Carter, Gerdes, and Matran-ga testified, the state offered the stipulation relative to Mr. Kron’s testimony. The following exchange then occurred:

MS. DAVIS: (Defense counsel)
Your Honor, the stipulation is accepted. Judge, we filed a motion last week, a motion to suppress the I.D. and the evidence in this case. I think we forgot to do them.
Can we use the trial as the same as the^—
THE COURT: Yes.
MS. DAVIS: Okay. I just wanted that on the record.
MR. AMSTUTZ: Okay. That’s all right.
MS. DAVIS: Thank you, Judge.

After closing arguments, the trial judge stated:

As it regards the motions to suppress— the motions to suppress identification are denied. The video tape [sic], which was played and admitted into evidence, showed that after initially making contact with a white female, the officer drove into the parking lot of the motel and she was approached, while seated in her vehicle, by the white female, and the defendant, Castadel Ruffin.
Although the video tape [sic] does not show anything being handed by Mr. Ruffin to the undercover officer, it was her testimony that it was in fact Mr. Ruffin who took the money, and who handed her the drugs.
|1RI don’t think there is any question as to the identity of the individual depicted in that video tape [sic]. So, therefore, the State [sic] is convinced that it was in fact the defendant who engaged in the sale of the rock cocaine to the undercover officer.
As to the location and distances from the school yard, the testimony of Sergeant Williams was that he measured from property to property line, which was approximately ninety-eight feet.
It was his estimation that it was approximately the same distance to the area within the parking lot of the motel, and although it was merely an estimation, it’s clearly obvious that if you add ninety-eight feet to another ninety-eight feet, it is not going to exceed one thousand feet.
At most, if he was wrong by a couple of hundred feet, it is, nevertheless, within a thousand feet of the school yard.
So, as a result of that testimony, this Court is convinced beyond a reasonable doubt that the sale did in fact take place within a thousand feet of a school, in accordance with the statute, and, therefore, I find the defendant guilty as charged.
We will set sentencing for May 30th.
MS. DAVIS: Thank you, Your Honor.

When the trial judge denied the Motion To Suppress Identification, defense counsel did not remark on the court’s failure to rule on the Motion To Suppress Evidence. Additionally, during closing arguments, defense counsel did not argue that the motions to suppress should be granted. In the interest of judicial economy, a claim of ineffective assistance of counsel may be addressed on appeal when the record contains sufficient evidence to decide the issue and the issue is properly raised by assignment of error.

A defendant is entitled to effective assistance of counsel under the Sixth Amendment of the United States Constitution and Article I, Section 13 of the Louisiana Constitution. When a defendant seeks reversal of a conviction based on ineffective assistance of counsel he |1fimust satisfy both parts of the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), rehearing denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984). First, defendant must show that counsel “committed errors so serious that he or she was not functioning as the ‘counsel’ guaranteed a defendant by the Sixth Amendment.” Strickland, supra at 466 U.S. at 687, 104 S.Ct. at 2064. The key question must be whether counsel’s performance was reasonable considering all the circumstances.
Secondly, the defendant must show that the deficiency was so great as to prejudice the defense. This requires a showing that counsel’s errors were “so serious as to deprive the defendant of a fair trial, one with a reliable result.” Id. Effective assistance of counsel does not mean errorless counsel, or counsel who may be judged ineffective on mere hindsight. State ex rel. Graffagnino v. King, 436 So.2d 559, 564 (La.1983).

There is no evidence in the record that the trial court ruled on Ruffin’s pretrial Motions To Suppress Confession and Evidence prior to trial. Rather, the record shows that Ruffin proceeded to trial without objecting to the trial court’s failure to rule on these motions. If a defendant does not object to the trial court’s failure to rule on a motion prior to trial, the motion is considered waived.

The record reflects that, although defense counsel made some attempt to bring the motions to the trial judge’s attention during trial, she did not state which motion (suppression of confession or of evidence) she wanted the trial judge to consider other than identification, or postulate any argument on behalf of any outstanding motions.

The transcript indicates that, although the Motion To Suppress Identification was denied prior to the verdict, the trial court did not rule on the Motion To Suppress Evidence. This is corroborated by the minute entry dated May 10, 2001 which states, “Motion to Suppress Identification denied by the Court.” Additionally, there is no ruling on Ruffin’s motion to suppress confession; however, the record does not indicate that Ruffin made a confession, nor does he 117argue in his brief or at trial that a confession was improperly admitted. This cannot therefore be a basis for ineffectiveness of counsel.

When the trial judge denied the motion to suppress identification, defense counsel did comment on the court’s failure to rule on the Motion To Suppress Evidence. Additionally, during closing arguments, defense counsel did not argue why the motions to suppress should be granted, and it is unclear on appeal exactly what evidence defense counsel was attempting to exclude.

We note, however, that the Motion as filed states:

The physical evidence intended for use against the defendant in this case was seized unlawfully and must be suppressed because:
1. A warrant was issued without probable cause, or the evidence was seized without a valid warrant, and/or
2. The evidence was seized without a valid exception to the warrant requirement and without probable cause to either arrest the defendant or to search the premises, persons, vehicles or areas searched.

The trial of this matter reveals that the physical evidence consisted of the cocaine sold to Officer Carter, the videotape of the transaction, photos, and a photo lineup, none of which evidence was seized. No evidence was introduced which might have been the subject of a motion to suppress. There was no need for the court to rule on these motions, and thus Ruffin’s complaints of his counsel’s performance do not amount to ineffective assistance of counsel.

The record was reviewed for errors patent. We note that the trial judge did not advise the Ruffin of his multiple offender rights, as required by LSA-R.S. 15:529.1. La. R.S. 15:529.1(D)(1)(a) requires that a defendant be advised of the specific allegations contained in the habitual offender bill and his right to a formal hearing at which the State must prove its case for the habitual offender status. |1S Implicit in this requirement is the additional requirement that defendant be advised of his constitutional right to remain silent. The trial judge also failed to inform Ruffin of this right. This Court has held that the failure of the trial court to advise a defendant of his right to a trial and to remain silent was harmless error where the multiple offender status was established by competent evidence offered by the State at the hearing, rather than by the admission of the defendant. In the instant case, Ruffin did not testify at the hearing. On that same date, the State presented evidence at the multiple offender hearing to establish the defendant’s multiple offender status.

To prove that a defendant is a multiple offender, the State must establish by competent evidence, that there is a prior felony conviction and that the defendant is the same person who was convicted of the prior felony. When a predicate conviction was obtained pursuant to a plea of guilty, the State must meet the burden of proof outlined by the Louisiana Supreme Court in State v. Shelton, 621 So.2d 769 (La.1993).
Under Shelton, if a defendant denies the allegations of the multiple bill of information, the State’s initial burden is to show the existence of a guilty plea and that the defendant was represented by counsel when the plea was entered. Once the State meets this burden, defendant must produce some affirmative evidence of an infringement of his rights or of a procedural irregularity in the taking of the guilty plea. Id. at 779.

Lt. Patricia Adams of the Jefferson Parish Sheriffs Office testified that she took Ruffin’s fingerprints in court, and that his fingerprints matched those of Castadel Ruffin in “Parish of Jefferson versus Cas-tadel Ruffin”, cases # 90-5609 and # 90-348. In both cases, Ruffin pled guilty and was represented by counsel. At the hearing, Ruffin objected to the triple bill and urged that the conviction in case # 90-348 was incompetent as a predicate conviction. The court subsequently adjudicated Ruffin a double offender. On review, we find that the state proved [ iaRuffin’s adjudication as such with competent evidence. Therefore, the trial court’s failure to advise the defendant of the specific allegations against him and of his right to be tried and to remain silent was harmless error.

Finally, the trial court failed to advise Ruffin of the two-year prescriptive period for applying for post-conviction relief, as required by LSA-C.Cr.P. art. 930.8, either at the initial, or at the enhanced, sentencing. Accordingly, we remand the matter with instructions to the trial court to send the appropriate written notice to Ruffin regarding the prescriptive period for post-conviction relief and to file written proof in the record that he received the notice.

For the foregoing reasons, Ruffin’s convictions on the instant charge and as a double multiple offender are affirmed. The matter is remanded in accordance with our instructions.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . State v. Hearold, 603 So.2d 731, 734 (La.1992); State v. Mayeux, 94-105 (La.App. 5 Cir. 6/28/94), 639 So.2d 828, 834.

      . State v. Bush, 02-247 (La.App. 5 Cir. 6/26/02), 822 So.2d 859, 863 (relying on State v. Washington, 421 So.2d 887, 889 (La.1982)).

      . State v. Alexis, 98-1145 (La.App. 5 Cir. 6/1/99), 738 So.2d 57, 64, writ denied, 99-1937 (La.10/13/00), 770 So.2d 339.

      . State v. Rosiere, 488 So.2d 965, 968 (La.1986).

      . State v. Silman, 95-0154 (La.11/27/95), 663 So.2d 27, 35.

      . State v. Stec, 99-633 (La.App. 5 Cir. 11/30/99), 749 So.2d 784, 787.

      . State v. Alexander, 98-1377 (La.App. 4 Cir. 2/16/00), 753 So.2d 933, 936, writ denied, 2000-1101 (La.4/12/01), 790 So.2d 2 (citing State v. Brumfield, 93-2087 (La.App. 4 Cir. 6/30/94), 639 So.2d 1196).

      . State v. Johnson, 2001-1455, 2001-1457, p. 7 (La.App. 4 Cir. 5/29/02), 825 So.2d 1230, 1233.

      . State v. Washington, 00-1312, p. 18 (La.App. 5 Cir. 5/16/01), 788 So.2d 596, 607, writ denied, 2001-11718 (La.5/3/02), 815 So.2d 94.

      . See State v. Winfrey, 97-427 (La.App. 5 Cir. 10/28/97), 703 So.2d 63, 81, writ denied, 98-0264 (La.6/19/09), 719 So.2d 481; State v. Simmons, 00-1037 (La.App. 5 Cir. 2/28/01), 781 So.2d 821, 826.

      . See, State v. Winfrey, supra.

      . State v. Kahey, 436 So.2d 475, 486 (La.1983); State v. Quest, 00-205 (La.App. 5th Cir. 10/18/2000), 772 So.2d 772, writ denied 2000-3137 (La. 11/2/01), 800 So.2d 866.

      . State v. Kahey, supra, at 486; State v. Herrera, 98-677 (La.App. 5 Cir. 2/10/99), 729 So.2d 75, 80.

      . State v. Quest, supra; State v. Herrera, supra.

      . State v. Kahey, supra; State v. Quest, supra.

      . See State v. Quest, supra.

      . State v. Williams, 99-223 (La.App. 5th Cir. 6/30/99), 742 So.2d 604.

        . State v. Roberts, 2001-0154 (La.App. 3 Cir. 10/3/01), 796 So.2d 779, 788, writ denied, 2001-2974 (La.9/20/02), 825 So.2d 1163 (citing State v. Frank, 549 So.2d 401 (La.App. 3 Cir.1989)).

      . State v. McIntyre, 97-876 (La.App. 5 Cir. 1/27/98), 708 So.2d 1071, 1075, writ denied, 98-1032 (La.9/18/98), 724 So.2d 753 (citing State v. Peart, 621 So.2d 780, 787 (La.1993)).

      . State v. Franklin 94-409 (La.App. 5 Cir. 12/14/94), 648 So.2d 962.

      . State v. Gordon, 00-1013 (La.App. 5 Cir. 11/27/01), 803 So.2d 131, 149 (citing State v. Post, 98-869, p. 9 (La.App. 5 Cir. 2/10/99), 729 So.2d 38, 42).

      . See State v. Franklin 94-409, supra.

      . State v. Franklin, supra.

      . C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

      . State v. Walker 01-348 (La.App. 5 Cir. 8/28/01), 795 So.2d 459.

      . State v. Walker, supra.

      . State v. Davis, 02-387 (La.App. 5 Cir. 9/30/02), 829 So.2d 554.

      . See, State v. Haywood, 00-1584 (La.App. 5 Cir. 3/28/01), 783 So.2d 568, 583.


source: Caselaw Access Project

author: | ¡¡THOMAS F. DALEY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Dwan STORKS.
    No. 02-KA-754.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2002.
    Frederick Kroenke, Baton Rouge, LA, for Defendant/Appellant.

      Harry J. Morel, District Attorney, Juan A. Byrd, Assistant District Attorney, Hahnville, LA, for PlaintiffAppellee.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY, and CLARENCE E. McMANUS.
   | ¡¡THOMAS F. DALEY, Judge.

Defendant Dwan Storks appeals his conviction of attempted felon in possession of a firearm. On appeal, he argues that the evidence was insufficient to prove attempted possession of firearm by a person convicted of a felony. We affirm.

On September 25, 2001, the St. Charles Parish District Attorney’s Office charged defendant by Bill of Information with possession of a firearm by a person convicted of a felony in violation of LSA-R.S. 14:95.1. Defendant pled not guilty on November 8, 2001 and filed various pre-trial motions, all of which were satisfied before trial. Defendant then proceeded to trial by jury on January 29, 2002.

After a one-day trial, a 12-person jury found the defendant guilty of attempted possession of a firearm by a person convicted of a felony, a responsive verdict under LSA-R.S. 14:95.1. Defendant filed a Motion for New Trial or alternatively a Motion for Post-Judgment Verdict of Acquittal, which was heard Land denied on March 7, 2002. On March 21, 2002, the defendant was sentenced to five years at hard labor to run concurrently with his sentence of three years in Jefferson Parish with credit for all time served. Defendant made a timely oral Motion for Appeal, which was followed by a written motion.

FACTS

Deputy Kenneth Norris of the St. Charles Parish Sheriffs Office testified that on September 11, 2001, he was assisting Corporal Walker, who had made an investigatory stop of a Ford Expedition on Airline Highway in St. Charles Parish. The driver and owner of the Ford Expedition, Clifton White, was ordered out of the vehicle by Corporal Walker. Deputy Norris testified that he was informed by Corporal Walker that there was a gun in the vehicle, at which time the three passengers were ordered out of the vehicle one at a time. Deputy Norris’s testimony indicates that the first passenger to exit the vehicle was Floyd White, who had been seated in the front passenger seat. After Floyd White exited the vehicle, the passenger seated in the middle seat on the driver’s side, Travis White, exited. The last occupant to exit the vehicle was Dwan Storks, who was seated in the middle seat, on the passenger side of the vehicle.

After the vehicle’s occupants had exited, Deputy Norris testified that he approached the vehicle and observed open alcoholic beverage containers and, in plain view, a Lorcin 9 mm handgun in the middle of the seat between where the passengers, Travis White and Dwan Storks, had been seated. Deputy Norris also testified that the gun was loaded at the time of its discovery. Dwan Storks was determined to be a convicted felon and thereafter arrested and charged with possession of a firearm by a convicted felon.

I ASSIGNMENT OF ERROR NUMBER ONE

The evidence was insufficient to support the conviction for attempted possession of a firearm by a person convicted of a felony.

DISCUSSION

Defendant argues that the evidence was insufficient to find him guilty of attempted possession of a firearm by a convicted felon. More specifically, defendant contends that the evidence of specific intent was insufficient, as was the evidence of constructive possession. Alternatively, defendant argues that “even if constructive possession had been proven, it is insufficient to prove the specific intent required by the crime of attempted possession which the defendant was found guilty of.”

The standard for appellate review of the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560. When circumstantial evidence is used to prove the commission of the offense, LSA-R.S. 15:438 mandates that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypotheses of innocence.” The requirement of LSA-R.S. 15:438 does not establish a standard separate from the Jackson standard, but rather provides a helpful methodology for determining the existence of reasonable doubt. Ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Guccione, 96-1049 (La.App. 5 Cir. 4/29/97), 694 So.2d 1060, writ denied, 97-2151 (La.3/13/98), 712 So.2d 869.

s To convict a defendant of illegal possession of a firearm by a convicted felon, the State must prove the following beyond a reasonable doub't: (1) possession of a firearm; (2) conviction of an enumerated felony; (3) absence of the ten-year statutory period of limitation; and (4) general intent to commit the offense. LSA-R.S. 14:95.1; State v. Husband, 437 So.2d 269, 271 (La.1983); State v. Ware, 01-194 (La.App. 5 Cir. 8/28/01), 795 So.2d 495, 499. Actual possession of a firearm is not necessary to satisfy the possession element of LSA-R.S. 14:95.1; constructive possession is sufficient to satisfy the element of possession. State v. Francis, 95-194 (La.App. 5 Cir. 11/28/95), 665 So.2d 596; State v. Webber, 99-23 (La.App. 5 Cir. 7/27/99), 742 So.2d 952, 955. A person is in constructive possession of a thing if it is subject to his dominion and control. Id. A person’s dominion over a weapon constitutes constructive possession even if it is only temporary in nature and even if control is shared. State v. Jackson, 97-1246 (La.App. 5 Cir. 4/13/98), 712 So.2d 934, writ denied, 98-1454 (La.10/16/98), 726 So.2d 37; State v. Webber, supra at 955. In addition, our jurisprudence has added an aspect of awareness to the offense of LSA-R.S. 14:95.1. State v. LaMothe, 97-1113 (La.App. 5 Cir. 6/30/98), 715 So.2d 708, writ granted in part, 98-2056 (La.11/25/98), 722 So.2d 987. Therefore, the State must also prove that the offender was aware that a firearm was in his presence and that the offender had the general criminal intent to possess the weapon. State v. Webber, supra; State v. Blount, 01-844 (La.App. 5 Cir. 12/26/01), 806 So.2d 773, 775.

The charged offense in the present case is a general intent crime. To sustain a conviction for attempted possession of a firearm by a convicted felon, however, the State is required to prove that defendant had the specific intent to possess the weapon and that he committed an overt act towards, the completion of that offense. LSA-R.S. 14:27. Specific intent is the state of mind that exists when the |(;eircumstances indicate that the offender actively desired the prescribed consequences to follow his act or failure to act. LSA-R.S. 14:10(1).

Attempted possession of a firearm by a convicted felon is a legislatively responsive verdict to the charged offense in this case. LSA-C.Cr.P. art. 815; LSA-R.S. 14:27; State v. Williams, 470 So.2d 356, 358 (La.App. 5 Cir.1985). When a defendant fails to object to a legislatively responsive verdict, the defendant’s conviction will not be reversed, whether or not that verdict is supported by the evidence, as long as the evidence is sufficient to support the offense charged. State v. Wilkinson, 00-339 (La.App. 5 Cir. 10/19/00), 772 So.2d 758, 765, writ denied, 00-3161 (La.10/12/01), 799 So.2d 494; State v. Harrell, 01-841 (La.App. 5 Cir. 2/26/02), 811 So.2d 1015, 1017. In State v. Harrell, supra, at 1017-1018,

The Louisiana Supreme Court explained:
It would be unfair to permit the defendant to have the advantage of the possibility that a lesser “compromise” verdict will be returned (as opposed to being convicted of the offense charged) and then to raise the complaint for the first time on appeal, that the evidence did not support the responsive verdict to which he failed to object. State ex rel. Elaire v. Blackburn, 424 So.2d 246, 251-252 (La.1982), cert. denied, 461 U.S. 959, 103 S.Ct. 2432, 77 L.Ed.2d 1318 (1983).

The record reflects a discussion of the responsive verdicts and jury charges at which time the defendant did not object to the responsive verdict of attempted possession of a firearm by a convicted felon. Thereafter, the trial court charged the jury. Those charges included a charge for the responsive verdict of attempted possession of a firearm by a convicted felon. Defendant also failed to object at the reading of the verdict. Because the defendant failed to object, he is entitled to a reversal of his conviction for the lesser offense only if the evidence is insufficient to support a conviction of the charged offense, possession of a firearm by a convicted felon. State v. Harrell, supra at 1018.

In the present case, defendant stipulated to the fact that he was a convicted felon and that his conviction was within the ten-year period. Thus, the State only |Tneeded to prove possession and general intent at trial. In order to prove possession, the State must establish that the defendant was aware that a firearm was in his presence and that defendant had constructive or actual possession of the firearm.

Defendant claims that the State did not prove that he had possession or the requisite intent and cites one case that has held the evidence was insufficient to prove the defendant was a convicted felon in possession of a firearm. In State v. Heacox, 543 So.2d 101 (La.App. 3 Cir.1989), writ denied, 99-0822 (La.9/3/99), 747 So.2d 534, the Third Circuit held that the evidence was insufficient to find that a gun was subject to the defendant’s dominion and control. In Heacox, a gun was partially covered by a holster and lying equidistant between defendant and the driver of the vehicle. The gun belonged to the mother of the driver. In reversing defendant’s conviction, the Third Circuit reasoned that there was no evidence that the defendant was aware of the presence of the gun, or even if he was aware of the gun’s presence, there was no evidence that the defendant’s intent amounted to an intent to possess rather than mere acquiescence to the fact that a gun was in the vehicle.

In State v. Bonnet, 98-1014 (La.App. 5 Cir. 2/23/99), 731 So.2d 368, this Court held that the evidence was sufficient to establish constructive possession and general intent in a case involving LSA-R.S. 40:1785, possession of an unregistered or illegally transferred weapon. In Bonnet, a police officer observed defendant exit a vehicle parked in a gas station parking lot. Thinking that a drug transaction was about to occur, the officer drove next to the tar and approached it. The officer Isobserved a large handgun on the seat. This Court in finding sufficient evidence to support the conviction noted that the officer observed the handgun between the driver and passenger side of the seat in plain view by looking through the driver’s side window. This Court further stated that the gun was within the dominion and control of the defendant, who was previously sitting in the passenger seat of the car and, therefore, the jury could have concluded that the defendant was in constructive possession of an unregistered gun.

Also, in State v. Blount, 01-844 (La.App. 5 Cir. 12/26/01), 806 So.2d 773, police stopped a car for having no license plate and because there were about eight passengers in the ear, none who were wearing seat belts. As the police officer was approaching the car, he saw the right rear passenger make a sudden forward movement. For his safety, the officer ordered everyone out of the vehicle. The officer, upon patting down the occupants, found a loaded gun clip in defendant’s rear pocket. The officer subsequently searched the vehicle and found a loaded .380 caliber handgun under the driver’s seat toward the rear of the seat. Defendant was thereafter arrested for being a convicted felon in possession of a firearm. This Court, in holding that the evidence was sufficient to support the conviction, noted that the gun was found under the driver’s seat toward the back, was slightly visible, and was accessible to the defendant.

In the present ease, Deputy Norris testified that when he approached the vehicle he observed open alcoholic beverage containers and, in plain view, a Lorcin 9 mm handgun in the middle of the second rear seat between where the passengers, Travis and Dwan, were seated. Deputy Norris also testified that the lights in the Expedition illuminate the cabin space very well and that he did not have to use a flashlight when looking into the car. The deputy’s testimony indicated that Dwan Storks, being seated right next to the gun, would have noticed the gun or hit it with his hand. Based on the testimony of Deputy Norris and the Lease law, it is clear that the jury had sufficient evidence to conclude that Dwan Storks was aware of the gun and that the gun was under his dominion and control at the time the vehicle was stopped. Like the cases of Bonnet and Blount, the jury concluded that defendant was aware of the gun. The jury’s conclusion is supported by the fact that the gun was visible to the defendant and was within his reach and easily accessible. Such dominion and control is sufficient to constitute constructive possession. Therefore, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found beyond a reasonable doubt that the defendant was in constructive possession of a firearm as a convicted felon and that he had the general intent to possess the weapon.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). No patent errors were found.

CONVICTION AND SENTENCE AFFIRMED.

      . Defendant's probation for the charge of simple burglary was revoked in Jefferson Parish and defendant received a three-year sentence.

      . Deputy Norris testified that the vehicle had three rows of seats and that the passengers were in the front and middle seats of the vehicle. Dwan Storks was in the middle seat.

      . Defendant also cites State v. Brooks, 99-478 (La.App. 3 Cir. 12/8/99), 756 So.2d 336, writ

        denied, 00-1492 (La.5/25/01), 792 So.2d 750, for the proposition that guilty knowledge is an essential element in proving constructive possession. However, a closer reading of those cases cited by Brooks for the above principle indicates that a more accurate recitation of the law is that guilty knowledge is an essential element of the crime of possession, not an essential element in proving constructive possession. State v. Edwards, 354 So.2d 1322 (La.1978); State v. Converse, 529 So.2d 459 (La.App. 1 Cir.1988), writ denied, 533 So.2d 355 (La.1988).

      . For other cases holding that constructive possession was established, see State v. Ware, 01-194 (La.App. 5 Cir. 8/28/01), 795 So.2d 495; State v. Curtis, 99-45 (La.App. 5 Cir. 7/27/99), 739 So.2d 931.


author: J¿THOMAS F. DALEY, Judge.

text:
    Randall GUNN, Sr., Individually and on Behalf of his Minor Children Rachell Gunn, Renee Gunn, and Randall Gunn, Jr., and His Wife Lisa Gunn v. James M. ROBERTSON and State Farm Mutual Automobile Insurance Company.
    No. 02-CA-831.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2002.

      Leonard Cardenas III, Cardenas Law Firm, Baton Rouge, for Plaintiffs/Appellants.
    David P. Salley, Edward J. Rivera, Sessions, Fishman & Nathan, L.L.P., New Orleans, for Defendants/Appellees.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and SUSAN M. CHEHARDY.
   J¿THOMAS F. DALEY, Judge.

The plaintiffs have appealed the amount of the trial court’s assessment of costs. For the reasons that follow, we affirm.

PROCEDURAL HISTORY:

The trial in this matter was held in May 2000 and the jury returned a verdict in favor of plaintiffs. Defendants filed a Motion to Tax Costs pursuant to Code of Civil Procedure Article 970 . Plaintiffs opposed the motion and filed their own Motion to Tax Costs. The trial judge denied plaintiffs’ motion and granted the defendant’s Motion to Tax Costs. Plaintiffs appealed the trial court judgment, specifically assigning as error, among other things, the trial court’s failure to award costs to plaintiffs and taxing costs in favor of defendants. This Court affirmed the [¿judgment in favor of plaintiffs and increased plaintiffs’ award. Because the award was increased to greater than twenty five percent of the pretrial offer, this Court reversed the costs awarded to defendants and awarded costs to plaintiffs. Thereafter, the defendants filed with the trial court a Rule to Fix Costs and Expert Fees. Plaintiffs responded with Exceptions of Lack of Subject Matter Jurisdiction and Res Judicata. These exceptions were denied by the trial court and the court awarded $8,507.70 of the $25,955.80 costs requested by plaintiffs. Plaintiffs timely filed this appeal.

LAW AND DISCUSSION:

In their first Assignment of Error, the plaintiffs claim the trial court erred in denying their exceptions and further misinterpreted Code of Civil Procedure Article 2088. That article provides in pertinent part:

The jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the granting of the order of appeal ... Thereafter, the trial court has jurisdiction in the case only over those matters not reviewable under the appeal, including the right to
(10) Set and tax costs and expert witness fees.

Plaintiffs argue that the matter of costs was reviewable under the appeal, and therefore, the trial court had no jurisdiction to hear the matter of costs. Plaintiffs further argue that the matter of costs was res judicata because the opinion in this court stated “defendants are liable for all costs of trial.” We disagree with the plaintiffs’ arguments on both counts.

An appellate court does not have jurisdiction to set and/or fix costs and fees until after the trial court has done so. Dufour v. Gordon, 98-959 (La.App. 5 Cir. 2/10/99), 729 So.2d 51. When this case was before this Court in the first appeal, |4the trial court had not set the costs and fees as requested by plaintiff. Therefore, this Court could not set the costs and fees on appeal. Because this Court did not set the amount of costs, this Court’s judgment cannot be res judicata on the issue of the amount of costs and expert fees. Accordingly, the trial court correctly denied plaintiffs’ exceptions of jurisdiction and res ju-dicata.

In their second Assignment of Error, plaintiffs contend the trial court abused its discretion in awarding an inadequate amount of costs and expenses.

The trial court is afforded great discretion in awarding costs and an award of costs must be affirmed in the absence of an abuse of discretion. Edwards v. Daugherty, 98-635 (La.App. 3 Cir. 6/9/99), 736 So.2d 345, writ denied 99-2034 (La.9/17/99), 747 So.2d 568. Likewise, the fixing of expert fees is within the discretion of the trial court and that award will not be disturbed on appeal unless there is an abuse of discretion. Robinett v. Silvereagle Transport, Inc., 93-2491 (La.App. 4 Cir. 6/15/94), 639 So.2d 318.

In their memorandum to fix costs, plaintiffs itemized the expert fees and other trial related expenses. Plaintiffs prayed for $25,955.80 in costs and fees and the trial court awarded $8,507.70. The trial judge awarded the full amount of filing fees and the full amount of court reporter and videographer fees requested by plaintiffs except for the court reporter fee for Dr. Clarence Nicodemus. The trial court stated that this court reporter fee was not awarded because this deposition was not admitted into evidence. The trial judge then listed the expert witness fees charged by each expert, taking into account that expert’s specialty and the time of their testimony, and awarded a portion of the amount requested. Plaintiffs brief only specifically discusses the large discrepancy in the award for the testimony of Dr. Nicodemus. The doctor’s fee was $10,962.00 and the court awarded $3,000.00. In its Reasons for Judgment, the trial judge noted that Dr. Nicodemus is a professor and biomechanical engineer who gave a videotaped deposition | ¡¡lasting one hour and thirty-seven minutes, and that his testimony was relied on by this court to increase plaintiffs’ award. The court awarded $600.00 for the deposition (1/£ hours @ $400.00 per hour) and $2,400.00 for preparation (6 hours @ $400.00 per hour), but found the additional 20 hours at $400.00 per hour plus additional expenses to be excessive.

The Reasons for Judgment clearly indicate that the trial judge looked closely at all the costs involved in setting the amount of costs to be recovered. The court reporter’s fee for the transcript of Dr. Nicodemus was correctly not included in the costs, as this transcript was not introduced at trial. Morris & Dickson Co., Inc. v. Jones Brothers Co., Inc., 29,379 (La.App. 2 Cir. 4/11/97), 691 So.2d 882. The trial judge is vested with great discretion in setting expert witness fees. Robinett v. Silvereagle Transport, Inc., supra. We see no abuse of that discretion.

For the foregoing reasons the judgment of the trial court is affirmed.

AFFIRMED.

      . Article 970 provides in pertinent part:
      C. If the judgment obtained by the plaintiff-offeree is at least twenty-five percent less than the amount of the offer of judgment made by the defendant-offeror or if the final judgment obtained against the defendant-of-feree is at least twenty-five percent greater than the amount of the offer of judgment made by the plaintiff-offeror, the offeree must pay the offeror's costs, exclusive of attorney fees, incurred after the offer was made as fixed by the court.

      . Gunn v. Robertson, 01-347 (La.App. 5 Cir. 11/14/01), 801 So.2d 555.


author: 1,CLARENCE E. McMANUS, Judge.

text:
    Lynne BRODIE, et al. v. TELECORP COMMUNICATIONS INC., d/b/a Suncom.
    No. 02-CA-942.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2002.
    Peter N. Freiberg Jones, Verras & Frei-berg, New Orleans, LA, for plaintiffs-appellants.
    Joseph E. LeBlanc, Jr. King, LeBlanc & Bland, Houston, TX, Elizabeth S. Wheeler, Michael D. Roche, New Orleans, LA, for defendant-appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and CLARENCE E. McMANUS.
   1,CLARENCE E. McMANUS, Judge.

At issue in this appeal is whether plaintiffs claims are preempted by federal law. For the following reasons, we affirm the trial court’s finding that plaintiffs state law breach of contract claims are preempted by federal law.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Lynne Brodie, filed this class action petition for damages on behalf of herself and others similarly situated against Telecorp Communications, Inc., d/b/a SunCom. The petition alleges that Lynne Brodie contracted with SunCom for cellular telephone services. This contract allowed her to make and receive local and long distance calls within and outside a defined local coverage area. She contended that these local calls were not the type of calls that should have typically incurred traveling, roaming or long distance charges as long as she was physically located within the local coverage area. Plaintiff asserted that SunCom violated the contract by erroneously billing her (and other customers) traveling/roaming and long distance charges for calls she made or received while physically located in the local coverage area and accepted payment from plaintiff for those calls. Plaintiff argued that these charges were erroneously incurred because SunCom’s cellular towers were either “full” or located too far away to pick up the local calls at issue. | aIn any event, plaintiff maintained that SunCom did not alert its customers that another cellular provider’s tower was being used to broadcast the calls. Thus, the charges were incurred and added to her bill without her knowledge that these charges were not stipulated in the contract. She contended that SunCom’s literature and sales personnel did not inform her of this occurrence. Plaintiff brought this suit as a class action.

In response, SunCom filed a motion for summary judgment arguing that if there is a contractual basis to support plaintiffs claim, it is preempted by the Federal Communications Act 47 U.S.C. § 332(c)(3)(A), which provides, in part:

... [N]o State or local government shall have the authority to regulate the entry of or the rates charged by any commercial mobile service or any private mobile service, except that this paragraph shall not prohibit a State from regulating the other terms and conditions of commercial mobile services.

Thus, there are no issues of fact sufficient to preclude summary judgment in this case. Plaintiff opposed asserting the suit is not preempted because it is a breach of contract claim that challenges SunCom’s billing practices, not its rates. After a hearing, the trial judge granted SunCom’s motion for summary judgment finding its federal preemption argument persuasive:

We find that the relief sought by Plaintiff, a declaration that the billing practices of Defendant are unlawful as well as a determination that the Defendant’s cellular towers were full or improperly located or that the broadcast of signals by Defendant is improper and the request for damages relating thereto would all require the Court to order a remedy the essence of which would amount to an unlawful regulation of the mobile service industry.

Plaintiff filed this appeal.

DISCUSSION

Plaintiff argues that 47 U.S.C. § 332(c)(3)(A) does not preempt her state law breach of contract claim that SunCom improperly included long distance and roaming charges on her monthly bills. We disagree.

| ¿Preemption issues are statutory construction issues. Spradlin v. Acadia St. Landry Medical Foundation, 98-1977 (La.2/29/00), 758 So.2d 116. The starting point is thus the statute itself. The critical question when determining whether federal preemption exists is whether Congress intended that federal regulations supersede state law. U.S.C.A. Const. Art. 6, cl. 2.

In this case, 47 U.S.C. § 332(c)(3)(A), provides that “no State or local government shall have the authority to regulate the entry of or the rates charged by any commercial mobñe service or any private mobile service ...” [Emphasis ours]. Our reading of the statute convinces us that a State must give effect to Congress’ desire to give the FCC plenary authority over the rates charged by interstate commercial mobile service providers. Therefore, because plaintiffs action challenges the manner in which a mobile service carrier charges customers for its services, the action is preempted by federal law. Accordingly, the trial court’s judgment granting SunCom’s summary judgment is affirmed.

CONCLUSION

Based on the foregoing, the trial court’s judgment is affirmed.

AFFIRMED.


author: J^CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Alexander HYMES, Jr.
    No. 02-KA-836.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2002.
    Paul D. Connick, Jr., District Attorney, Terry Boudreaux, Andrea Long, Assistant District Attorneys, Gretna, LA, for State.
    Bruce G. Whittaker, New Orleans, LA, for defendant-appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and CLARENCE E. McMANUS.
   J^CLARENCE E. McMANUS, Judge.

On August 30, 2000, defendant, Alexander Hymes, Jr., was charged by bill of information with two counts of attempted first degree robbery and seven counts of first degree robbery while armed with a dangerous weapon. LSA-R.S.14:64.1. The defendant was arraigned on August 31, 2000 and entered a not guilty plea to all charges. On September 12, 2000, defendant filed Motions to Suppress the Confession, Identification and Physical Evidence. The Motions to Suppress Statements and Evidence were heard and denied on December 11, 2000. The hearing on the Motion to Suppress Identification was begun on February 1, 2001 and continued on April 4, 2001. Following the hearing on April 4, 2001, the motion was denied.

Trial on this case began on May 22, 2001 and ended May 24, 2001. The twelve-person jury found the defendant guilty of attempted simple robbery on count one; of attempted first degree robbery on count two; guilty of first degree robbery on counts three through six and eight through nine. On count seven, defendant was found guilty of simple robbery. The jury was polled and the verdicts were declared legal and ordered recorded.

lsOn May 30, 2001, defendant filed a Motion for New Trial. A hearing was held and the motion was denied on May 31, 2001. On May 31, 2001, the trial judge sentenced the defendant to three years at hard labor on Count 1, ten years at hard labor on Count 2, twenty years at hard labor on Counts 3 through 6 and Counts 8 and 9, and five years on Count 7. The trial judge also ordered that defendant receive credit for time served. Each count was ordered to. run consecutively, for a total imprisonment term of 138 years at hard labor. The defendant objected to the sentences as being excessive.

On May 31, 2001, the State also filed a multiple bill wherein it was alleged that defendant was a fourth felony offender. LSA-R.S. 15:529.1. Defendant denied the allegations of the multiple bill.

On June 20, 2001, defendant filed a timely Motion to Reconsider Sentence. The motion was originally set for hearing on June 25, 2001. On the date set for hearing, the matter was continued to July 19, 2001. The hearing was continued a second time until September 20, 2001.

On September 20, 2001, the date set for the hearing on the Motion to Reconsider Sentence, no mention was made of that motion; rather, on that date, the State notified the Court that it had decided to nolle prosque the multiple bill. Thereafter, defendant orally moved for an appeal. A written appeal motion was filed by defendant September 20, 2001 and granted by the trial judge on September 24, 2001. However, the appeal did not divest the trial court of its jurisdiction to consider the Motion to Reconsider Sentence. LSA-C.Cr.P. art. 916(3).

In this appeal, defendant solely seeks a review of his sentence for excessiveness and a review for errors patent on the face of the record. An error patent review reveals that this case is not properly before the Court and, therefore, we need not reach the substantive issue raised.

|4The record fails to indicate a disposition on the defendant’s Motion for Reconsideration of Sentence. Relying upon LSA-C.Cr.P. art. 881.4, this Court, has previously held that, in such situations where the record before the Court reflects no ruling, a remand is warranted. State v. Harris, 01-1243, pp. 3-4 (La.App. 5 Cir. 2/26/02), 811 So.2d 984, 985; State v. Smith, 96-285, p. 3 (La.App. 5 Cir. 10/1/96), 683 So.2d 826, 827. Therefore, we remand this matter to the trial court for supplementation of the record with the ruling on defendant’s Motion to Reconsider; and, if there has been no disposition of the motion to date, we order the trial court to rule on the motion within 30 days of this appellate opinion. We further ordered defendant to re-lodge his appeal within 60 days of the date of the ruling on the Motion to Reconsider or the date of its opinion, whichever is later.

REMAND WITH INSTRUCTIONS.