author: JjPETERS, J.

text:
    Annette RICHARD, d/b/a Cloude Nine v. CENTURY SURETY COMPANY.
    No. 04-0736.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 2004.
    Elbert Lee Gullory, Attorney at Law, Opelousas, LA, for Plaintiff/Appellee, Annette Richard, d/b/a Cloude Nine.
    David I. Bordelon, Matthew J. Ungari-no, Metairie, LA, for Defendant/Appellant, Century Surety Company.
    Court composed of JIMMIE C. PETERS, MICHAEL G. SULLIVAN, and JOHN B. SCOFIELD, Judges.

       John B. Scofield participated in this decision by appointment of the Louisiana Supreme Court as judge pro tempore.

   JjPETERS, J.

Century Surety Company appeals an $88,126.00 default judgment rendered against it and in favor of Annette Richard. For the following reasons, we reverse the judgment and remand this matter to the trial court for further proceedings.

DISCUSSION OF THE RECORD

On December 30, 2002, Annette Richard, d/b/a Cloude Nine, filed suit against Century Surety Company (Century), seeking to recover for property damages she allegedly sustained when Hurricane Lili struck South Louisiana on October 3, 2002. In her petition, Ms. Richard asserted that Century had issued her a policy of insurance covering the building housing her business on Highway 90 West in New Iberia, Louisiana, and that the storm had damaged the building.

Century did not answer the petition, and, on August 8, 2003, Ms. Richard requested and obtained a preliminary default from the trial court. At a hearing held on February 26, 2004, Ms. Richard presented evidence to confirm the preliminary default, and, upon completion of the evidence, the trial court orally rendered judgment in favor of Ms. Richard and against Century in the total amount of $88,126.00. This judgment was reduced to writing and signed by the trial court on March 11, 2004. After being served with the written judgment, Century perfected this appeal. In its appeal, Century’s sole assignment of error asserts a number of issues as follows:

The trial court erred in rendering a default judgment against Century Surety Company, where the record does not contain evidence of service of the petition on defendant; where no evidence of ownership of the building or the plaintiffs capacity to bring suit for damages to the building was offered, and where no evidence was offered into the record that the building was insured for property damage.

OPINION

Sufficiency of Service Issue

|2Louisiana Code of Civil Procedure Article 1201(A) provides that “[cjitation and service thereof are essential in all civil actions except summary and executory proceedings, divorce actions under Civil Code Article 102, and proceedings under the Children’s Code. Without them all proceedings are absolutely null.” (Emphasis added.) Additionally, “[ajbsolute nullities may be attacked collaterally, at any time, by rule, or any other method.” Rivet v. Regions Bank, 02-1813, p. 6 (La.2/25/03), 838 So.2d 1290, 1293.

The record contains evidence that, on January 29, 2003, the East Baton Rouge Parish Sheriffs Office served the citation and a copy of the petition on the Louisiana Secretary of State as Century’s agent for service of process. Relying on La.R.S. 22:985, Ms. Richard argues that this constitutes sufficient service. That statute provides in part:

Every foreign or alien insurer shall appoint the secretary of state to be its true and lawful attorney in this state upon whom, or some other person in his office during his absence he may designate, all lawful process in any action or proceeding against such insurer may be served, which shall constitute service on such insurer.

(Emphasis added.)

As explained in Corte v. Cash Technologies, Inc., 02-0846, p. 7 (La.App. 1 Cir. 4/2/03), 843 So.2d 1162, 1166:

Generally, the question of sufficiency of service on a non-resident defendant may not be raised for the first time on appeal but rather should be raised in a suit to annul the judgment. The justification for requiring a separate suit is so that a hearing can be held to ascertain facts regarding whether defendants were properly served.

(Citations omitted.)

The rationale of Corte is applicable to this case, as there is insufficient evidence to resolve this issue. The problem arises because Ms. Richard’s petition | describes Century as “a domestic insurance company,” and not a foreign or alien insurer. (Emphasis added.) “Service of citation or other process on a domestic ... corporation is made by personal service on any one of its agents for service of process.” La.Code Civ.P. art. 1261(A) (emphasis added).

If the corporation has failed to designate an agent for service of process, if there is no registered agent by reason of death, resignation, or removal, or if the person attempting to make service certifies that he is unable, after due diligence, to serve the designated agent, service of the citation or other process may be made by any of the following methods:
(1) By personal service on any officer, or director, or on any person named as such in the last report filed with the secretary of state.
(2) By personal service on any employee of suitable age and discretion at any place where the business of the corporation is regularly conducted.
(3) By service of process under the provisions of R.S. 13:3204, if the corporation is subject to the provisions of R.S. 13:3201.

La.Code CivJP. art. 1261(B).

Only after diligent effort to serve a domestic corporation pursuant to La.Code Civ.P. art. 1261 has failed can a plaintiff avail himself of service on the secretary of state. La.Code Civ.P. art. 1262.

In this matter, the record contains no evidence of compliance with La.Code Civ.P. art. 1261 prior to effecting service on the secretary of state. Additionally, one of the pages of the purported insurance policy introduced in support of the default judgment contains the following printed notation:

Service of Suit (if form CCP 20 10 is attached) may be made upon:
Southern General Agency, Inc.
3838 Independence Drive, Alexandria, LA 71303

The record contains no evidence of any effort to serve Century through this entity.

Given the status of the record before us, we can conclude only that it does not contain sufficient information to resolve the service issue and that the trial court did |4not have the opportunity to address this issue, as it was not challenged until this appeal. Accordingly, we are precluded from addressing this issue, as we are unable to receive evidence on the issue.

Sufficiency of Evidence Issue

“A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case.” La.Code Civ.P. art. 1702.

A prima facie case sufficient to confirm a default judgment is established only when the party proves with competent evidence the essential allegations of his petition as fully as if each of the allegations were specifically denied.

Beevers, PLC v. Burmaster, 00-1951, p. 6 (La.App.5 Cir. 4/11/01), 787 So.2d 381, 384.

We find that the evidence presented in support of the default judgment was not sufficient to establish a prima facie case for recovery. Neither the pleadings, the exhibits, nor the testimony established the relationship of the damaged building to Ms. Richard. In her pleadings, Ms. Richard merely asserted that she operated a business known as Cloude Nine on Highway 90 West in New Iberia, Louisiana. She then asserted that her “place of business was struck with the heavy winds and rain brought on by Hurricane Lillie [sic] lifting the roof completely off of the building.” At trial, she was equally vague in her testimony concerning her ownership interest. When asked about her relationship to “the premises at 4712 West Highway 90,” she stated, “It’s my business. I own it. It’s a lounge, Gentlemen’s Club.”

Ms. Richard did introduce an act of sale through which she claimed ownership of the business, but this document provides no assistance to the trier of fact in determining the true ownership interest.- That act of sale purports to transfer the stock in the Rolls Royal Corporation to Ms. Richard and makes no mention of the |,^immovable property, the building, or Cloude Nine. In another exhibit purporting to be excerpts from the Century insurance policy, Ms. Richard is described as renting the Highway 90 property. In even another exhibit, the Federal Emergency Management Agency (FEMA) property damage estimate, she is initially listed as the lessee or tenant of the property. However, that appears to have been corrected to reflect that she is the owner of the property. A further explanation in this estimate suggests that she had purchased the business “as lease purchase to own contract.” Finally, the ownership interest issue is made more complicated by the testimony of Timothy Paul Stoute, who described himself as Ms. Richard’s partner in the Cloude Nine business. He is not a party to the litigation, and there is no explanation for his absence as a partner.

The proof presented by Ms. Richard concerning the damage sustained is also conflicting. Richard Pratt, a New Iberia contractor, testified that the building was a total loss and that it would cost $126,000.00 to replace the building with a new building. However, the FEMA estimate introduced by Ms. Richard set the pre-hurricane value of the building at only $20,000.00 and included the comment that the “structure appears stable & sound — Therefore repairable.”

Finally, the introduced excerpts from the Century policy were not sufficient to establish coverage. They constituted a cover page which appeared to reflect only liability coverage; a single page relating to service of any suit; an endorsement page relative to the calculation of premiums; one page describing common policy provisions; a two-page endorsement related to the nuclear energy liability exclusion; a single page describing the commercial and general liability coverage limits; a one-page listing of various forms and endorsements which had apparently been made a I ¿part of the policy; and a change order endorsement relative to the value of the building. Without the entire policy, it is impossible to establish the coverage or lack of coverage under this policy.

DISPOSITION

For the foregoing reasons, we reverse the trial court judgment and remand the matter to the trial court for further proceedings consistent with this opinion. We assess all costs of this appeal to Annette Richard.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: | JOHN B. SCOFIELD, Judge Pro Tern.

license: Public Domain

text:
    W & R FARMING PARTNERSHIP v. OLD SOUTH PROPERTIES, INC.
    No. 04-737.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 2004.

      Mark L. Roberts, Natchitoches, LA, for Plaintiff-Appellant W & R Farming Partnership.
    James Rex Fair, Jr., Natchitoches, LA, for Defendant-Appellee Old South Properties, Inc.
    Court composed of JIMMIE C. PETERS, MICHAEL G. SULLIVAN, and JOHN B. SCOFIELD, Judges.
   | JOHN B. SCOFIELD, Judge Pro Tern.

W & R Farming Partnership (W & R) appeals the trial court’s judgment dismissing its action to nullify a default judgment rendered in favor of Old South Properties, Inc. (Old South).

FACTUAL AND PROCEDURAL BACKGROUND

The Plaintiff, W & R, is a partnership consisting of three corporate partners, LCW Farms, Inc., GDW Farms, Inc., and MBR Farms, Inc. W & R leased property known as Glory Plantation from Henry Cook Taylor at a rental of $12,000.00 per year. The lease was signed by Lauren C. Wilson over the designation “Agent: Lauren C. Wilson, Partner.” The lease term began December 27, 1999 and ended. December 31, 2000, with an option to renew the lease for the next year. W & R apparently exercised its option and renewed the lease, although there is no direct evidence of this of record. The property was sold, subject to the lease, by Taylor to Old South on March 13, 2001. On April 1, 2002, Old South made demand on W & R for payment of the rent for the -year 2001. There being no payment made, Old South filed a Petition for Past Due Rents. It is undisputed that the petition was served on Lauren Wilson. No responsive pleading having been filed, Old South obtained a default judgment against W & R.

W & R filed a Petition to Annul Judgment and for Injunction, asserting that Old South failed to serve its petition on the appropriate party as provided by La.Code Civ.P. art. 1263 in that Lauren Wilson was not a partner of W & R and was not the Lament for service of process for W & R or any of the corporate partners. A temporary restraining order was issued prohibiting Old South from enforcing the default judgment, pending a hearing on the annulment action.

At the trial court hearing, it was stipulated that Lauren Wilson was served with the original suit and that she is not a partner in W & R Farming Partnership, nor an agent for service of process of any of the corporate partners of W & R. Old South introduced into evidence the record in the suit for past due rent, the partnership articles for W & R, and the Articles of Incorporation of the three partner corporations in W & R. This evidence shows that Lauren Wilson is an officer in, and incorporator of, two of the partner corporations, MBR Farms, Inc. and LOW Farm, Inc.

The trial court rendered judgment denying the petition to annul, and recalling the Temporary Restraining Order, and issued a written ruling finding that:

The service in this case on Lauren C. Wilson, who is listed in the lease which is the basis of this lawsuit, as “agent: Lauren C. Wilson, partner” (of the W & R Farming Partnership) was sufficient to put W & R Farming Partnership on notice that suit had been filed. The failure of W & R Farming Partnership to respond to the lawsuit is imputed to the partnership itself.

W & R timely filed an appeal to this court. For the reasons set forth hereinafter, we reverse.

DISCUSSION

The issue before the court is whether the service of the original suit on Lauren Wilson was sufficient to subject W & R to the jurisdiction of the trial court. “Citation and service thereof are essential in all civil actions except summary and exeeuto-ry | proceedings, divorce actions under Civil Code Article 102, and proceedings under the Children’s Code. Without them all proceedings are absolutely null.” La. Code Civ.P. art. 1201(A).

It is well established that “proper citation is the foundation of all actions.” Johnson v. Brown, 03-0679, p. 9 (La.App. 4 Cir. 6/25/03), 851 So.2d 319, 325, citing Naquin v. Titan Indemnity Co., 00-1585 (La.2/21/01), 779 So.2d 704; Kimball v. Kimball, 93-1364, p. 3 (La.App. 1 Cir. 5/20/94), 637 So.2d 779, 781. Even the defendant’s actual knowledge of an action or actual notice of a suit, “no matter how clearly brought home to [the defendant],” cannot substitute for proper citation and service. Kimball, 637 So.2d 779; Johnson, 851 So.2d 319; Strong’s Plumbing, Inc. v. All Seasons Roofing & Sheet Metal, Inc., 32,783 (La.App. 2 Cir. 3/1/00),754 So.2d 336; Scullin v. Prudential Ins. Co. of Am., 421 So.2d 470 (La.App. 4 Cir.1982). Citation and service must comply strictly with the law to support a valid judgment. Kimball, 637 So.2d 779; Scullin, 421 So.2d 470. Without valid citation and service of process, “the court does not have jurisdiction over the person of the defendant.” In re Justice of Peace Landry, 01-0657, p. 9 (La.6/29/01), 789 So.2d 1271, 1277. Any judgment rendered against a party not cited and served as provided by law is absolutely null. Id. See also La.Code Civ. P. art. 2002.

Under La.Code Civ.P. art. 1263, service on a partnership must be made on a partner. If service in this manner cannot be accomplished in spite of “diligent effort,” service may be accomplished by making “personal service on any employee of suitable age and discretion at any place where the business of the partnership ... is regularly conducted.” To accomplish service on W & R, citation should have been 14made on one of the partner corporations through its registered agent. Louisiana Code of Civil Procedure article 1261(A) provides that: “Service of citation or other process on a domestic or foreign corporation is made by personal service on any one of its agents for service of process.” An examination of the corporate and partnership records introduced by Old South shows that Lauren Wilson was neither a partner of W & R nor an agent for service in any of its partner corporations. Consequently, service on Lauren Wilson did not fulfill the requirements of La.Code Civ.P. art. 1263 for service on W & R. In the absence of valid citation and service of the petition for past due rent on W & R, the default judgment rendered against it is null.

As a result, the judgment of the trial court is reversed. Judgment is rendered annulling the default judgment rendered by the trial court in favor of Old South. Costs of this appeal are assessed to the Appellee, Old South.

REVERSED AND RENDERED.

       The Honorable John B. Scofield participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

      . La.Code Civ.P. art. 1263 provides that:
      Service of citation or other process on a partnership is made by personal service on a partner. Service of citation or other process on a partnership in commendam is made by personal service on a general partner. When the officer certifies that he is unable, after diligent effort, to make service in this manner, he may make personal service on any employee of suitable age and discretion at any place where the business of the partnership or partnership in com-mendam is regularly conducted.

      . There is nothing in the record or the allegations of the parties, suggesting that efforts to serve a partner failed in spite of a diligent effort to do so.


author: | LAUNDERS, J.

text:
    STATE of Louisiana v. John M. BENEDICT.
    No. KA 04-742.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 2004.

      Karen G. Arena, Louisiana Appellate Project, Metairie, LA, for Defendant/Appellant John M. Benedict.
    James D. White Jr., Assistant District Attorney, Monroe, LA, James Patrick Lemoine Assistant District Attorney, 35th Judicial Dist., Colfax, LA, for PlaintiffiAp-pellee State of Louisiana.
    John M. Benedict, Rapides Detention Ctr. F-Dorm, Alexandria, LA.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and OSWALD A. DECUIR, Judges.
   | LAUNDERS, J.

On March 26, 2003, the Grant Parish District Attorney’s Office filed a bill of information charging Defendant John Benedict with four separate charges related to the manufacture and distribution of methamphetamine, a violation of La.R.S. 40:967 and 40:964 (Schedule II). There was also a fifth charge related to the possession of hydrocodone, a violation of La.R.S. 40:968 and 40:964 (Schedule III). However, on August 25, 2003, the State filed an amended bill containing a total of four charges:

1. Manufacture of Methamphetamine, a violation of La.R.S. 40:967(A)(1) and 40:964 (Schedule II);
2. Conspiracy to Manufacture Methamphetamine, a violation of La. R.S. 14:26, 40:967, and 40:964 (Schedule II);
3. Possession with Intent to Distribute Methamphetamine, a violation of La.R.S. 40:967(A)(1) and 40:964 (Schedule II);
4. Possession of Dihydrocodeinone (Hydrocodone), a violation of La.R.S. 40:968(C) and 40:964 (Schedule III).

Subsequently, Defendant rejected a plea offer and jury selection began on August 26, 2003. On August 28, the jury found Defendant guilty of all charges. Thereafter, on September 18, 2003, the State filed a “Habitual Offender Bill of Information” alleging Defendant to be a second habitual offender. On December 4, the lower court conducted a hearing on the matter, adjudicated Defendant as a habitual offender and imposed sentences on all counts.

FACTS:

On the night of January 22, 2003, law enforcement officers raided two trailers in Grant Parish. Initially, officers observed one man standing in front of one of the trailers and Defendant running toward a shed. Officers located and arrested Defendant inside the shed at which time he became cooperative and confessed to | ^manufacturing methamphetamine. He had two small bags of the drug and a hydrocodone pill in his pocket. As officers searched the scene, they found equipment and various utensils consistent with the manufacture of methamphetamine and recovered a total of fourteen grams of the drug. Police also arrested the first man observed at the scene, Ray Evans, who later pled guilty and appeared as a State witness at Defendant’s trial.

ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find several errors patent involving' the sentences imposed. One of the errors has been raised and is discussed in Assignment of Errors Numbers 2 and 3. That error requires that the habitual offender adjudication and sentences imposed on all four counts be vacated. Thus, the remaining errors patent, also involving the sentences imposed, are rendered moot. We will, however, briefly discuss the remaining errors patent.

First, it appears the trial court ordered all sentences to be served without benefit of parole, probation or suspension of sentence. Although Section G of the habitual offender statute requires all enhanced sentences to be imposed without benefit of probation or suspension of sentence, it does not authorize the trial court to impose enhanced sentences without benefit of parole. La.R.S. 15:529.1(G). Furthermore, the penalty provisions for counts three (possession with the intent to distribute methamphetamine) and four (possession of dihydrocodeinone) do not authorize the trial court to impose any portion of the sentence without benefit of parole. La. R.S. 40:967(B)(1) and La.R.S. 40:968(C). Thus, the trial court improperly denied parole | ¡¡eligibility on those counts. It should refer to the “reference statutes” themselves to determine whether parole may be restricted.

Additionally, we find that the trial court improperly denied good time eligibility. According to the supreme court, “a trial judge lacks authority under La.R.S. 15:571.3(C) to deny a defendant eligibility for good time credits against his sentence, because that statute is ‘directed to the Department of Corrections exclusively.’ ” State v. Narcisse, 97-3161, p. 1 (La.6/26/98), 714 So.2d 698, 699, citing State ex rel. Simmons v. Stalder, 93-1852 (La.1/6/96), 666 So.2d 661.

ASSIGNMENTS OF ERROR:

1. The evidence is insufficient to sustain the verdict as to possession with intent to distribute methamphetamine.

2. The multiple bill of information and the adjudication are null and void because neither specify the offense for which Mr. Benedict is to be adjudicated.

3. The trial court erred in failing to consider Mr. Benedict’s motion to reconsider sentence, which was timely filed.

PRO SE ASSIGNMENT OF ERRORS

1. Was the defense counsel ineffective in not introducing facts and evidence that would have exculpated the defendant, specifically the fact that the defendant had sustained a gunshot wound to his hand the day prior to the arrest?

2. Was the jury selection process tainted?

3. Was the testimony of the State’s witness Ray Evans credible/Was the defense counsel’s representation of Ray Evans a conflict of interest?

4. Was the testimony of the State’s expert witnesses credible?

5. Was the defense counsel ineffective for not filing a motion to hire expert witnesses?

6. Was the 'defense counsel ineffective for not making an opening statement?

7. Was the defense counsel ineffective for not making a case in defense?

148. Was the defendant prejudiced by being sentenced by a different judge than the one who presided over the trial?

9. Was the chain of evidence regarding the alleged methamphetamine seized from the defendant incomplete?

10. Was the sentence that the defendant received constitutionally excessive?

ASSIGNMENT OF ERROR NO. 1:

In his first assignment, Defendant argues the evidence was insufficient to support his conviction for possession of methamphetamine with intent to distribute. While he acknowledges the police found items consistent with manufacturing methamphetamine, he argues they found none “consistent with individual packaging.” As the State points out in its brief, this is the only one of four convictions that Defendant challenges on appeal.

This court has explained the basic analysis for challenges to the sufficiency of trial evidence:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court 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 proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La. 1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981).

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

Defendant was convicted pursuant to La.R.S. 40:967, which states in pertinent part:

A. Manufacture; distribution.... [I]t shall be unlawful for any person knowingly or intentionally:
!,;(!) To produce, manufacture, distribute, or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance or controlled substance analogue classified in Schedule II;

Both parties acknowledge that the particular question of proof of intent to distribute is analyzed by way of the so-called “House factors,” as set forth in the jurisprudence. This court has explained:

Defendant argues that the State failed to present any evidence of an offense other than possession of cocaine. Defendant relies upon factors outlined in State v. House, 325 So.2d 222 (La.1975) to draw this conclusion. In House, the supreme court found that the State had not proven the defendant’s intent to distribute marijuana because it had not offered evidence:
(1) that the defendant ever distributed or attempted to distribute any marijuana; (2) that the marijuana was in a form usually associated with marijuana possessed for distribution to others; (3) that the amount was such as to create a presumption of intent to distribute; (4) of expert or other testimony that such an amount as found on the defendant is inconsistent with personal use only; and (5) of any paraphernalia, such as baggies or scales, evidencing an intent to distribute.

Id. at 225. State v. Wells, 99-628, p. 3 (La.App. 3 Cir. 12/22/99), 755 So.2d 963, 966, writ denied, 00-181 (La.9/15/00), 767 So.2d 39. The State relies on four major factors in support of its case.

First, Ray Evans testified that, a short time before police arrived, Defendant gave him some methamphetamine “kind of’ in exchange for letting Defendant use the property for his methamphetamine operation. This testimony indicates a “distribution” within the language of La.R.S. 40:961(14). Second, Sergeant Timothy Le-det of the Louisiana State Police, accepted as an expert, testified that users normally possess one or two grams at a time. He also testified that the street value | r,of one gram of methamphetamine is one-hundred dollars. Third, testimony from Michael Nugent, a state police narcotics officer, and from Alex King, a drug analyst, demonstrated that police seized at least fourteen grams of methamphetamine at the scene. Besides this seizure, King testified that substances contained in two vials tested positive for methamphetamine. While he did not testify regarding the weight or volume of the methamphetamine in the vials, it appears they contained amounts in addition to the fourteen grams already identified. Fourth, as already noted, six grams of the methamphetamine seized were contained in two plastic bags found on Defendant’s person.

A review of relevant jurisprudence reveals that courts treat an incident of actual distribution as indicative- of an intent to distribute. In State v. Hunt, 568 So.2d 1104 (La.App. 2 Cir.1990), writ denied, 580 So.2d 914 (La.1991), one of the convictions at issue was for possession of methamphetamine with intent to distribute. The court discussed the House factors and observed that a witness testified the defendant had given her some methamphetamine and paraphernalia on the date of the offense. The court treated this testimony as direct evidence of both distribution and the intent to distribute. Id.

Thus, the State in the present case showed an instance of actual distribution and that Defendant had, on his person, an amount of methamphetamine inconsistent with personal use. Given the testimony regarding the price of methamphetamine, Defendant had six hundred dollars worth of the drug on his person and a total of at least fourteen hundred dollars worth was found at the scene. Comparing the evidence adduced to the House factors and viewing the evidence in the light most favorable to 17the prosecution, we find that the jury was not unreasonable in finding that Defendant had the intent to distribute methamphetamine. For the reasons discussed, this assignment lacks merit.

ASSIGNMENTS OF ERROR NUMBERS 2 AND 3 :

In these assignments, Defendant complains that, in the habitual offender bill, the State failed to designate which one of the convictions the habitual offender adjudication was applied to. In cases such as this, where several convictions arise out of a single episode, the failure to designate which of the sentences is being enhanced renders the sentences indeterminate. State v. Small, 37,134, pp. 11-12 (La.App. 2 Cir. 6/27/03), 850 So.2d 1019, 1026, writ denied, 03-2202 (La.1/30/04), 865 So.2d 75. Pursuant to Small and State v. Freeman, 00-238, p. 12 (La.App. 3 Cir. 10/11/00), 770 So.2d 482, 490, writ denied, 00-3101 (La.10/5/01), 798 So.2d 963, the appropriate remedy is to vacate the habitual adjudications and sentences and remand for further proceedings. See also State ex rel. Porter v. Butler, 573 So.2d 1106 (La.1991). Therefore, Defendant’s remaining assignment, which concerns the denial of his motion to reconsider sentence, is moot.

PRO SE ASSIGNMENT OF ERRORS NOS. 1, 5, 6 & 7:

Defendant’s first, fifth, sixth and seventh assignments of error all allege that his trial counsel was ineffective. Each of these assignments makes assertions related to trial strategy and the interaction, or lack thereof, between Defendant and trial counsel. We find the current record to be insufficient to support these assignments. These issues would be better addressed in the post-conviction process. On |sappIication for post-conviction relief, the record can be more fully developed regarding the issues Defendant seeks to raise. These assignments lack merit.

PRO SE ASSIGNMENT OF ERROR NO. 2:

In this assignment, Defendant alleges the jury selection process was tainted, due to the use of an unsealed box. In the proceedings below, trial counsel cited La.Code Crim.P. art. 408, which states, in pertinent part:

After the jury commission has selected the general venire, it shall lock and seal the general venire box and deliver it to the clerk of court, as the custodian thereof. Alternatively, the list of persons so selected may be retained in a form suitable for use by a properly programmed electronic device commonly known as a computer.

We also note La.Code Crim.P. art. 419, which may be more dispositive of the current assignment.- It states, in pertinent part:

A. A general venire, grand jury veni-re, or petit jury venire shall not be set aside for any reason unless fraud has been practiced, some great wrong committed that would work irreparable injury to the defendant, or unless persons were systematically excluded from the venires solely upon the basis of race.

When jury selection began, it quickly became apparent there was a defect in the proceedings. The grand jury venire and petit jury venire lists were accidentally mixed up. A short hearing was held to determine if the lists were tampered with in any manner whatsoever. The testimony at that hearing indicated that the lists remained in a sealed envelope.

Furthermore, Defendant does not allege that the venire was tampered with, but argues he was prejudiced by the use of “an unsealed envelope and an unsealed box.” Considering article 419, the lack of any allegation of tampering, and the testimony 19that the petit jury envelope was sealed, Defendant has failed to demonstrate any prejudice or reversible error.

For the reasons discussed, this assign; ment lacks merit.

PRO SE ASSIGNMENT OF ERROR NO. 3: ■

In his third pro sé assignment, Defendant alleges his trial counsel had a conflict of interest because he also represented alleged co-conspirator Ray Evans, who eventually confected a plea agreement with the State and testified against Defendant at trial. The current record, however, does not indicate that -Defense counsel also represented Ray Evans, nor does it illustrate that he did not. Further, the charging instruments in the current record indicate Defendant was billed alone and the minutes do not address the proceedings against Evans. Thus, the State apparently proceeded against Evans separately and any details of his case would be outside the current record. Therefore, based on the record before us, we see nothing indicating that this assignment has merit. This issue may be addressed in the post-conviction process, where a record containing the relevant information can be developed.

PRO SE ASSIGNMENT OF ERROR NO. 4:

In this assignment, Defendant complains the State’s experts were not credible; however, much of his argument concerns trial counsel’s alleged failure to attack the credibility of each of the two experts. This portion of the assignment is an ineffective assistance of counsel claim and, like his other ineffectiveness claims, is not supported by the record before us. This issue may be addressed in the post-conviction process.

Another part of the assignment is Defendant’s claim that one of the experts should not have been qualified as such because he was not formally trained regarding [inthe “Nazi,” or “Birch,” method of methamphetamine manufacturing that was at issue in this case. Defendant does not name the expert witness he is referring to, but the context of his argument and related record page citation indicate that he is referring to Sergeant Timothy Ledet of the Louisiana State Police.

Ledet testified that the bulk of his formal- training addressed manufacturing methods other than the Nazi method. However, he indicated that he had practical experience with the latter method and was familiar with it. Ledet testified that he felt more familiar with the Nazi method than with “Red P,” a method he was formally schooled in. His testimony indicated the Nazi method is seen more in the field than the Red P method is. Further, Le-det conducted informal classes on the Nazi method for a state police troop.

It is well-settled that the decision to qualify an expert is within the discretion of the trial court. Further, practical experience forms a sufficient basis to qualify a witness as an expert, even in the absence of a formal, academic education. State v. Wells, 99-628, (La.App. 3 Cir. 12/22/99), 755 So.2d 963, writ denied, 00-181(La.9/15/00), 767 So.2d 39. In light of Wells, the trial court in the present case did not abuse its discretion in accepting Ledet as an expert.

Defendant also complains that a second State expert was not credible, but he does not name the expert and does not state why he was not credible. The other expert qualified in this case was Alex King of the North Louisiana Criminalistics Laboratory. The record, however, reveals that trial counsel stipulated to King’s expertise. Thus, the issue was not preserved for review on appeal. Defendant also complains that the police officers who testified at trial relied upon their memories Inwithout referring to any recorded material to refresh their memories of the arrest, which occurred approximately a year before the trial. We note that it is common for witnesses to rely upon their memories of events. In State v. Mitchell, 94-521(La.App. 3 Cir. 11/2/94), 649 So.2d 569, the defendant challenged an officer’s recollections and identification of him as the offender. This court noted that credibility assessments are squarely within the province of the fact-finder and affirmed the conviction. Similarly, we reject Defendant’s argument here.

PRO SE ASSIGNMENT OF ERROR NO. 8

In this assignment, Defendant argues it was improper for him to be sentenced by a judge other than the one who presided over his trial. While we have already decided to remand, we note that it is not improper for the sentencing judge and the trial judge in a case to be two different people. As a practical matter, retirement, death, or an election loss may sometimes necessitate such a situation. La.R.S. 13:4209, State v. Allo, 525 So.2d 664 (La.App. 5 Cir.), writ denied, 527 So.2d 976 (La.1988). Therefore, this assignment lacks merit.

PRO SE ASSIGNMENT OF ERROR NO. 9:

In this assignment, Defendant initially argues the chain of custody was not complete for physical evidence that the State introduced at trial. He concedes, however, that a continuous chain of custody is not essential, provided the evidence as a whole demonstrates that the exhibit at issue was the same item originally seized by authorities. Further, he concedes the evidence in the present case demonstrated that the evidence originally seized was, more probably than not, the same evidence presented at trial. He also acknowledges that a defect in the chain of custody goes to l1gweight rather than admissibility. He argues, however, that the jury should have been instructed regarding the “importance of the chain of custody for identification procedures.”

Defendant cites no jurisprudence to support this proposition and our research has revealed none. Further, during jury instructions, when the trial court explained the use of exhibits, Defense counsel raised no objection and did not request the sort of instruction that Defendant now seems to request. The lack of a contemporaneous objection precludes Defendant from raising this issue on appeal. La.Code Crim.P. art. 841.

Defendant also claims that some of the photographs introduced at trial were provided to Defense counsel only a day or two before trial; thus, counsel did riot have an opportunity to determine whether they had been retouched. At trial, Defense counsel made essentially .the same argument when objecting to a group of digital photographs. We note, however, that a photograph is admissible when a witness, who has personal knowledge of the item depicted, identifies it. State v. Leggett, 363 So.2d 434 (La.1978). In the present case, the items depicted in the contested photographs were identified by Nugent. This assignment lacks merit.

PRO SE ASSIGNMENT OF ERROR NO. 10:

In this assignment, Defendant claims his sentence is excessive. However, as discussed earlier, under the .counsel-filed assignments, Defendant’s sentence is vacated and remanded due to other errors. Thus, the current assignment is moot.

{^CONCLUSION:

Defendant’s convictions are affirmed. His habitual offender adjudications and sentences, however, are vacated and the case is remanded for proceedings in accordance with this opinion. ,

AFFIRMED IN PART, REVERSED IN PART, REMANDED.


author: It SULLIVAN, Judge.

text:
    STATE of Louisiana v. Michael D. WEST.
    No. 04-793.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 2004.

      William E. Tilley, District Attorney, Leesville, LA, for State of Louisiana.
    Edward K. Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Michael D. West.
    Court composed of JIMMIE C. PETERS, MICHAEL G. SULLIVAN, and JOHN B. SCOFIELD, Judges.

       John B. Scofield participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   It SULLIVAN, Judge.

Defendant, Michael D. West, was charged by bill of information with two counts of attempted second degree murder, one count of aggravated battery, and four counts of aggravated assault with a firearm. On April 8, 2004, he pled guilty to the reduced charges of aggravated battery and second degree battery. As part of a plea agreement, the State agreed to dismiss the remaining charges and agreed not to initiate habitual offender proceedings. On May 5, 2004, Defendant was sentenced to eight years at hard labor for aggravated battery and five years at hard labor for second degree battery, with two years of the five-year sentence to run consecutively to the eight-year sentence. Defendant was ordered to pay restitution in the amount of $102,512.97 to Brandon Walker and $1,500.00 to Kevin Veneralla at the rate of $200.00 a month.

Facts

The factual basis provided by the State for the two offenses to which Defendant pled indicates that on October 4, 2003, Defendant entered a hunting camp near the Pitkin/Cravens community, where he shot one victim and hit another victim in the head with the butt of the shotgun.

Errors Patent

In accordance with La.Code Crim.P. art. 920, this court reviews all appeals for errors patent on the face of the record. Our review of the record reveals one error patent.

As part of his sentences, Defendant was ordered to pay restitution to Brandon Walker in the amount of $102,512.97 and to Kevin Veneralla in the amount of $1,500.00 “at the sum of $200.00 a month.” We find the portion of the sentence setting monthly payments in the amount of $200.00 per month to be illegal. Added Rby 1999 La.Acts No. 783, effective January 1, 2000, La.Code Crim.P. art. 883.2 provides:

In all cases in which the court finds an actual pecuniary loss to a victim, or in any case where the court finds that costs have been incurred by the victim in connection with a criminal prosecution, the trial court shall order the defendant to provide restitution to the victim as a part of any sentence that the court shall impose.

Although monthly installments are permitted when restitution is imposed as a condition of probation pursuant to La.Code Crim.P. art. 895.1(A)(1), we are not aware of any authority allowing for monthly installment payments of restitution imposed pursuant to Article 883.2. Further, we note that Act 783 also amended La.Code Crim.P. art. 886 to provide for the collection of restitution to the victim by civil process. Thus, we vacate that portion of the sentence requiring monthly payments of $200.00 as illegal. The trial court is instructed to amend the commitment entry and the sentencing minutes to reflect this change.

Motion to Withdraw

Defense counsel has filed a motion to withdraw as counsel of record, alleging that he can find no errors on appeal that would support reversal of Defendant’s conviction.

In State v. Benjamin, 573 So.2d 528, 531 (La.App. 4 Cir.1990), the fourth circuit set forth the appropriate procedures for an appellate court to analyze a brief filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967):

When appointed counsel has filed a brief indicating that no non-frivolous issues and no ruling arguably supporting an appeal were found after a conscientious review of the record, Anders requires that counsel move to withdraw. This motion will not be acted on until this court performs a thorough independent review of the record after providing the appellant an opportunity to file a brief in his or her own behalf. This court’s review of the record will consist of (1) a review of the bill of information or indictment to insure the defendant was properly charged; |3(2) a review of all minute entries to insure the defendant was present at all crucial stages of the proceedings, the jury composition and verdict were correct and the sentence is legal; (3) a review of all pleadings in the record; (4) a review of the jury sheets; and (5) a review of all transcripts to determine if any ruling provides an arguable basis for appeal.

This court has performed an independent review of the record, finding that Defendant was properly charged by a signed bill of information, was present and represented by counsel at all crucial stages of the proceedings, and entered a free and voluntary guilty plea after being properly advised of his rights in accordance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Additionally, Defendant received legal sentences, other than the monthly payment for restitution discussed above. After reviewing the record, we find no issues that would arguably support an assignment of error on appeal.

Decree

Defendant’s convictions are affirmed. That portion of Defendant’s sentences requiring monthly payments of $200.00 in restitution is vacated, and the case is remanded with instructions that the trial court amend the commitment entry and sentencing minutes to reflect this change. Defendant’s sentences are affirmed, as amended. Counsel’s motion to withdraw is granted.

CONVICTIONS AFFIRMED; SENTENCES AFFIRMED AS AMENDED; AND REMANDED WITH INSTRUCTIONS.

MOTION TO WITHDRAW GRANTED.

It ORDER

After consideration of defense counsel’s request to withdraw as counsel and the appeal presently pending in the above-captioned matter,

IT IS HEREBY ORDERED that appellate counsel’s motion to withdraw is granted.

/s/ Jimmie C. Peters Judge Jimmie C. Peters

/s/ Michael G. Sullivan Judge Michael G. Sullivan

/s/ John B. Scofield Judge John B. Scofield


author: _JjPICKETT, J.

text:
    STATE of Louisiana v. Mickel BRISCO.
    No. 04-797.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 2004.

      J. Phillip Haney, District Attorney, New Iberia, LA, for PlaintiffiAppellee State of Louisiana.
    Walter James Senette, Jr., Assistant District Attorney, Sixteenth Judicial District Court, Franklin, LA, for PlaintiffiAp-pellee State of Louisiana.
    Richard Allen Spears, Attorney At Law, New Iberia, LA, for Defendant/Appellant Mickel Brisco.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.
   _JjPICKETT, J.

FACTS

Nedra Brisco was married to Mickel Brisco. They separated on November 26, 2000. On December 26, 2000, Mr. Brisco fired approximately four shots into the home where Ms. Brisco and her children were staying. Bullets recovered from the crime scene were matched to a handgun owned by Mr. Brisco.

Mr. Brisco was charged by bill of information on May 18, 2001, with assault by drive-by shooting, a violation of La. R.S.14:37.1. The defendant entered a plea of not guilty on May 29, 2001. On October 16, 2002, the State filed a Motion to Invoke Firearm Sentencing Provisions. The trial in this matter began on September 16, 2003 and the jury returned a verdict of guilty of assault by drive-by shooting on September 17, 2003. On October 22, 2003, the defendant filed a Motion to Quash Firearm Sentencing Enhancements. On December 16, 2003, the trial court denied the defendant’s motion and sentenced him to five years at hard labor without benefit of probation, parole, or suspension of sentence. An oral motion to reconsider was made by defense counsel, but was denied by the trial court. An oral motion for appeal was made and granted at the sentencing hearing and a written Motion for Appeal was filed on December 22, 2003.

ASSIGNMENT OF ERROR

In his sole assignment of error, the defendant argues that the trial court erroneously held that the firearm sentencing enhancements could be used to enhance his conviction for assault by drive-by shooting.

| ^DISCUSSION

The defendant alleges that he is being punished doubly for possessing a handgun. He argues as follows:

Because the statute requires possession of a handgun (or use), it is clear that the legislature set forth the penalty for the use of a handgun during the commission [sic] of the crime. Laws on the same subject matter must be interpreted in referenced to each other. La.C.C. art. 13.
Why would the legislature pass a law stating that if one shoots a handgun from a moving vehicle that he be given a sentence from one to five years for that act, while another statute reads that you must get the maximum sentence for the same crime.

The state contends that the issue is whether the Louisiana legislature intended to authorize cumulative punishment under both La.R.S. 14:37.1 and La.Code Crim.P. art. 893.3. The state cites Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), and State v. Street, 480 So.2d 309 (La.1985), in support of this argument.

In Street, the defendant was convicted of illegal use of a weapon. The defendant was sentenced to two years imprisonment at hard labor, with credit for time served. The unserved portion of the sentence was suspended and the defendant was placed on two years supervised probation. The state objected to the suspension of sentence on the ground that the trial court’s action conflicted with La.Code Crim.P. art. 893.1. The state brought a supervisory writ and the first circuit remanded the matter for resentencing in compliance with La.Code Crim.P. art. 893.1. Therefore, the trial court resentenced the defendant to two years at hard labor without benefit of probation, parole, or suspension of sentence. The supreme court granted writs. Ultimately, the court concluded that La. Code Crim.P. art. 893.1 was not applicable where the felony was illegal use of a weapon. In reaching that conclusion, the court noted:

|3The Louisiana Legislature could have clearly expressed its intent, if that were the case, to make Art. 893.1 (use of a firearm in a commission of a felony) applicable to R.S. 14:94, illegal use of a weapon. The counterpart Idaho statute did so, for the Idaho Legislature clearly expressed that “this section shall apply even in those cases where the use of a firearm is an element of the offense.” The Louisiana Legislature did not do so. At best the legislative intent is unclear. On the one hand we could presume that the Legislature meant to specify in one statute harsher punishment for the commission of all felonies where a firearm is used. On the other hand it is just as reasonable to presume that the Legislature did not specifically consider whether Art. 893.1 should be used with R.S. 14:94, or that having considered, they opted not to make it applicable to R.S. 14:94. Id., 480 So.2d at 311 (footnote omitted).

The court went on to find that “since the Legislature in passing R.S. 14:94 has in that very statute prescribed a punishment for use of a weapon, ... we presume that it must not have intended that the identical conduct ... should trigger a more harsh punishment than that prescribed for the same act.” Id. at 312.

At the time Street was decided, La.Code Crim.P. art. 893.1 provided as follows:

When the court makes a finding that a firearm was used in the commission of a felony and when suspension of sentence is not otherwise prohibited, the court shall impose a sentence which is not less than:
(1) The maximum sentence provided by law, in the same manner as provided in the offense, if the maximum sentence is less than five years, or
(2) Five years, in the same manner as provided in the offense, if the maximum sentence is five years or more.
Imposition or execution of sentence shall not be suspended and the offender shall not be eligible for probation or parole.

Louisiana Code of Criminal Procedure Articles 893.2 and 893.3 did not exist at that time. They were subsequently enacted in 1988, at which time, Article 893.1 was amended. All three articles were amended in 1999.

At the time of the commission of the offense at issue, La.Code Crim.P. art. L893.1 provided that:

A. If the district attorney intends to move for imposition of sentence under the provisions of Article 893.3, he shall file a motion within a reasonable period of time prior to commencement of trial of the felony or specifically enumerated misdemeanor in which the firearm was used.
B. The motion shall contain a plain, concise, and definite written statement of the essential facts constituting the basis for the motion and shall specify the provisions of this Chapter under which the district attorney intends to proceed.

Louisiana Code of Criminal Procedure article 893.2 provided, in pertinent part:

A. If a motion was filed by the state in compliance with Article 893.1, the court may conduct a contradictory hearing following conviction to determine whether a firearm was discharged, or used during the commission of the felony or specifically enumerated misdemeanor, or actually possessed during the commission of a felony which is a crime of violence as defined by R.S. 14:2(13), felony theft, production, manufacturing, distribution, dispensing, or possession with intent to ... distribute, or dispense a controlled dangerous substance in violation of the Uniform Controlled Dangerous Substances Law, or specifically enumerated misdemeanor and whether the mandatory minimum sentencing provisions of Article 893.3 have been shown to be applicable.
D. If at any time during or at the completion of the trial, the court finds by clear and convincing evidence that the state has established that a firearm was discharged or used during the eom-mission of the felony or specifically enumerated misdemeanor ... and that the mandatory minimum sentencing provisions of Article 893.3 have been shown to be applicable, the court may dispense with the hearing provided for in Paragraph A of this Article.

The state filed a timely motion as required by Article 893.1, moving for imposition of sentence under the provisions 'of Article 893.3. ■ It was established by clear and convincing evidence at trial that a firearm was actually discharged during the commission of the felony at issue. The issue to be determined, therefore, is whether the mandatory minimum sentencing provisions of Article 893.3 are applicable.

| ^Louisiana Code of Criminal Procedure Article 893.3, in pertinent part, provides as follows:

C.If the court finds by clear and convincing evidence that the offender actually discharged a firearm in the commission of the felony or specifically enumerated misdemeanor for which he was convicted, the court shall impose a term of imprisonment of ten years; however, if the maximum sentence for the underlying offense is less than ten years, the court shall impose the maximum sentence.
E.(2) A sentence imposed under this Paragraph shall be without benefit of parole, probation or suspension of sentence.

There is no indication that the legislature intended to overrule Street. As noted by our supreme court in Street, the legislature could have included language that the sentencing enhancements of Article 893.3 are to apply even in those cases were the use of a firearm is an element of the offense. There is no such language in Article 893.3.

Louisiana Code of Criminal Procedure Article 893.2 does include language pertaining to “the commission of a felony which is a crime of violence as defined by R.S. 14:2(13).” Assault by drive-by shooting is listed as a crime of violence in La.R.S. 14:2(13). However, Article 893.2 limits the applicability of the portion of the article regarding crimes of violence to only those instances where the state alleges, and the court finds, that the defendant possessed the firearm during the commission of a crime of violence. Louisiana Code of Criminal Procedure Article 893.2 is not the sentencing article but, instead, is the article which sets forth the procedure for determining whether the sentencing provisions of Article 893.3 are applicable.

Louisiana Code of Criminal Procedure Article 893.3(C), under which the defendant was sentenced, contains no language which would make the enhanced | ^sentencing provisions applicable to crimes of violence as set forth in La.R.S. 14:2.

We find the supreme court’s reasoning in Street is applicable to the instant case. Because assault by drive-by shooting is defined as an “assault committed with a firearm,” and possession of a firearm is an element of the offense, for the reasons set forth in Street, the firearm enhancements set out in La.Code Crim.P. art. 893.1, et seq. do not apply in this case. The trial court was not required to impose the maximum sentence as mandated by Article 893.3(C). The sentence is, therefore, vacated and set aside. This matter is remanded to the trial court for re-sentencing.

ERRORS PATENT

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

DECREE

The sentence is vacated and this matter is remanded to the trial court for re-sentencing.

SENTENCE VACATED; REMANDED FOR RESENTENCING.


author: hAMY, Judge.

text:
    STATE of Louisiana v. Timothy VOLLM, Jr.
    No. 04-837.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 2004.

      Charles C. Foti, Jr., Attorney General, Kristi D. Hagood, Assistant Attorney General, Julie E. Cullen, Assistant Attorney General, Baton Rouge, LA, for Appellee, State of Louisiana.
    G. Paul Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Timothy Vollm, Jr.
    Timothy Vollm, Jr., Keithville, LA, pro se.
    Court composed of BILLIE COLOMBARO WOODARD, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   hAMY, Judge.

The defendant pled guilty to charges of obstruction of justice, aggravated burglary and theft in excess of five hundred dollars and two charges of attempted first degree murder. He was sentenced to thirty-two years for each of the attempted first degree murder charges; the sentences were ordered to be served consecutively. He was also sentenced to five years for obstruction of justice and fifteen years for aggravated burglary; these sentences were imposed concurrently with the attempted first degree murder charges. The defendant appeals, asserting that his sentence was unconstitutionally excessive. For the following reasons, we affirm in part, amend in part and remand with instructions.

Factual and Procedural Background

According to the factual basis presented by the State at the guilty plea hearing, during the early morning hours of April 10, 2003, the Grant Parish Sheriffs Office received a complaint regarding a suspicious truck near a construction site. While on patrol between midnight and 1:00 a.m., Grant Parish Deputies Kenny Chandler and Danny Hebert stopped a truck in the area carrying a load of lumber. The truck was driven by the defendant, Timothy Vollm, Jr. During the course of the stop, the defendant pulled out a gun and began shooting at the officers. Deputy Chandler was shot twice, one bullet missing his aorta by an eighth of an inch. The State’s presentation of facts indicates that the defendant then turned and began chasing Deputy Hebert as Deputy Chandler crawled to the cover of a tree line near the road. Deputy Hebert, who had sustained a gunshot to the right arm at very close range, also retreated to the woods as the defendant followed and continued shooting at him. As the defendant fled the scene through the woods, Deputy Hebert called for help.

| ¡.The defendant then broke into the residence of Shandon Ferrier, which is where police found him hiding in a closet. Police also found a gun, which was later determined to have been used in the shooting, as well as a bottle of prescription pills bearing the name of the defendant’s mother on the top shelf of the same closet.

The defendant was charged on June 5, 2003 by bill of information with two counts of attempted first degree murder, violations of La.R.S. 14:27 and La.R.S. 14:30; one count of obstruction of justice, a violation of La.R.S. 14:130.1; one count of theft in excess of five-hundred dollars, a violation of La.R.S. 14:67; and one count of simple burglary of an inhabited dwelling, a violation of La.R.S. 14:62.2. On July 10, 2003, the defendant pled not guilty to all charges. On September 11, 2003, the simple burglary charge was amended to aggravated burglary, a violation of La.R.S. 14:60. The defendant was not arraigned on the aggravated burglary charge. On January 20, 2004, the defendant entered a plea of guilty on all charges without a specific plea agreement.

The defendant was sentenced on March 18, 2004 as follows: 1) attempted first degree murder — thirty-two years at hard labor, on each count, without the benefit of probation, parole, suspension of sentence, or good time eligibility, to run consecutively; 2) obstruction of justice — five years at hard labor; 3) aggravated burglary — fifteen years at hard labor. The sentences for obstruction of justice and aggravated burglary were ordered to run concurrent with the sentences for attempted murder. A Motion to Reconsider Sentence was filed on March 26, 2004. The motion was denied on April 2, 2004. A Motion for Appeal was granted on April 7, 2004.

^Discussion

Errors Patent

In accordance with La.Code Crim.P. art. 920, the court reviews all appeals for errors patent on the face of the record. After reviewing the record, we find there are three errors requiring correction.

First, the trial court failed to impose a sentence for the defendant’s conviction of theft of a thing valued in excess of $500.00. The defendant was formally charged with that offense and entered a guilty plea as charged. Our review of the record does not reveal that this charge has ever been withdrawn. Therefore, we remand this case to the trial court for imposition of a sentence on the defendant’s conviction of theft in excess of five hundred dollars.

Additionally, the trial court failed to state that the sentences on the convictions of obstruction of justice and aggravated burglary were to be served at hard labor. Although the minutes of the sentencing hearing indicate that the trial court did state that the sentence was to be served at hard labor, the trial court simply imposed sentences of five years for obstruction of justice and fifteen years for aggravated burglary.

The penalty provision for aggravated battery, La.R.S. 14:60, requires that the sentence be imposed at hard labor. Furthermore, section (B)(2) of La.R.S. 14:130.1, the applicable penalty provision for obstruction of justice in this case also requires that the sentence be imposed at hard labor. Therefore, because the trial court did not | indicate that the sentence was to be served at hard labor, they are illegally lenient. Louisiana Code of Criminal Procedure Article 882(A) states in relevant part: “An illegal sentence may be corrected ... by an appellate court on review.” Under the authority of Article 882, we amend the sentence imposed by the trial court to indicate that the sentences for the convictions of aggravated burglary and obstruction of justice be served at hard labor.

Finally, our review reveals the minutes of the sentencing hearing-require correction. The minutes of the sentencing hearing indicate that all sentences were imposed without the benefit of probation, parole or suspension of sentence., Additionally, they indicate that all sentences were, imposed without good time eligibility. The transcript of the sentencing hearing, however, indicates that the trial court imposed only the attempted first degree murder sentences without benefits and denied good time eligibility solely on those offenses as well. When the minutes conflict with the transcript, the transcript prevails. State v. Wommack, 00-137 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, unit denied, 00-2051 (La.9/21/01), 797 So.2d 62. Consequently, we remand this matter with instructions to the trial court to amend the minutes of the sentencing hearing to reflect that the attempted first degree murder sentences are to be served without the benefit of probation, parole or suspension of sentence and without good time eligibility; the other sentences were not imposed with the prohibition of those benefits.

Excessive Sentence

In his sole assignment of error, the defendant contends that the trial court erred in that it imposed consecutive sentences although the crime was a single incident or | ..¡course of conduct, resulting in a constitutionally excessive sentence for this first felony offender.

Pursuant to La.Code Crim.P. art. 881.1(E), in order to raise a claim of exces-siveness on appeal, a defendant must include the specific grounds upon which a motion to reconsider is based.

However, in order to preserve a claim of constitutional excessiveness, the defendant need not allege any more specific ground than that the sentence is excessive. If the defendant does not allege any specific ground for excessiveness or present any argument or evidence not previously considered by the court at original sentencing, then the defendant does not' lose the right to appeal the sentence; the defendant is simply relegated to having the appellate court consider the bare claim of excessiveness.

State v. Mims, 619 So.2d 1059, 1059-60 (La.1993). The defendant did not present the issue of the consecutive nature of his sentences in his Motion to Reconsider, which only generally alleged that his sentence was excessive. Therefore, on review, the defendant is relegated to a bare claim of constitutional excessiveness. Id.

A sentence is unconstitutionally excessive if it is so grossly disproportionate to the severity of the offense that it shocks one’s sense of justice or amounts to no more than a purposeless and needless infliction of pain and suffering. State v. Day, 02-1039 (La.App. 3 Cir. 2/5/03), 838 So.2d, 74. A sentence that is within the | ^statutory limits may only be set aside if there has been a manifest abuse of discretion by the sentencing judge. State v. Willis, 36,198 (La.App. 2 Cir. 8/14/02), 823 So.2d 1072, writ denied, 03-919 (La.4/8/04), 870 So.2d 262. “On appellate review of sentence, the relevant question is not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion.” State v. Walker, 00-3200, p. 2 (La.10/12/01), 799 So.2d 461, 462.

Louisiana Code of Criminal Procedure Article 883 states in relevant part: “If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively.” (Emphasis added.) The Louisiana Supreme Court has recognized that although concurrent sentencing is favored, it is within the trial judge’s discretion to impose sentences consecutively based on factors including the defendant’s criminal record, the severity or violent nature of the crimes, or the danger the defendant poses to the public. State v. Thomas, 98-1144 (La.10/9/98), 719 So.2d 49.

Where the trial court does impose consecutive penalties, it “must articulate particular justification for such a sentence beyond a mere articulation of the standard sentencing guidelines set forth in La. C.Cr.P. art. 894.1” State v. Merritt, 03-946, p. 28 (La.App. 3 Cir. 3/17/04), 875 So.2d 80, 97 (quoting State v. Dempsey, 02-1867, p. 5 (La.App. 4 Cir. 4/2/03), 844 So.2d 1037, 1040, writ denied, 03-1917(La.6/25/04), 876 So.2d 823). At the sentencing hearing, the trial court stated for the record:

Mr. Vollm, Article 894.1 of the Code of Criminal Procedure ... is ... provides the sentencing guidelines. One of the chief things that is |7going on in this court’s opinion is that number (3) ... it’s A ... Section A(3), a lesser sentence will deprecate the seriousness of the defendant’s crime. Sir ... is ... I listened to heartfelt statements from the two officers involved. Is ... the court will note that an attack on a police officer is a blow at the very fabric of our society. It is a blow against the established border of all that stands between us and anarchy. Is ... you shot and attempted to kill and came very close to murdering two police officers who were doing nothing more than their job, and, in fact, trying to be nice to you. Is ... you rewarded their efforts by shooting them. One, shot him in the back. The other one, you almost nearly killed Deputy Chandler. Is .... accordingly, I am taking into consideration the fact that you used a weapon, a violent offense, the seriousness of the offense. I am also taking into account your record, which has no serious convictions on it. If you had a previous felony conviction, Mr. Vollm, I would be sentencing you to a total of, I believe it’s 135 years that you could be, that you could be serving. However, for each charge of attempted murder in the first degree, I sentence you to 32 years at hard labor without benefit of probation, parole or suspension of sentence and no good time. Those sentences are consecutive.

The trial judge articulated a consideration of the factors set forth in Thomas, stating a clear justification for his exercise of his discretion to impose consecutive penalties. The trial judge also clearly designated that the sentences be served consecutively, as required by La.Code Crim.P. art. 883. Thus, the imposition of consecutive sentences by the trial court was not an abuse of its sentencing discretion.

Furthermore, the penalty for attempted first degree murder of a peace officer is a minimum of twenty and a maximum of fifty years to be served at hard labor and without the benefit of parole, probation or suspension of sentence. La.R.S. 14:27(D)(1)(b). The sentences of thirty-two years per charge do not shock our senses, nor do they seem disproportionate to the severity of the offense. The record reflects that the defendant shot two police officers, one while he was attempting to flee, after committing theft, a crime of which he had been convicted of on two prior occasions and arrested for a total of six times. Therefore, we conclude the imposition of consecutive sentences in the amount of thirty-two years per crime was not an abuse | «of the trial court’s discretion and did not create an unconstitutionally excessive sentence.

DECREE

For the foregoing reasons, the consecutive thirty-two-year sentences of the defendant, Timothy Vollm, Jr., for attempted first degree murder are affirmed. The conviction of the defendant is remanded to the district court for sentencing on the charge of theft of a thing valued in excess of $500.00. Furthermore, we affirm the five-year sentence for the obstruction of justice conviction and the fifteen-year sentence for the aggravated burglary conviction, but we amend each sentence to reflect that the term is to be served at hard labor. We also remand to the trial court with an order to amend the minutes of sentencing to reflect that only the attempted first degree murder sentences were imposed without the benefit of probation, parole or suspension of sentence and without good time eligibility; the sentences imposed for the obstruction of justice conviction and the aggravated burglary conviction did not contain a prohibition on these benefits.

AFFIRMED IN PART, AMENDED IN PART, AND REMANDED WITH INSTRUCTIONS.

      . Louisiana Revised Statutes 14:60 states in relevant part: "Whoever commits the crime of aggravated burglary shall be imprisoned at hard labor for not less than one nor more than thirty years.” (Emphasis added.)

      . Louisiana Revised Statutes 14:130.1(B)(2) states: "When the obstruction of justice involves a criminal proceeding in which a sentence of imprisonment necessarily at hard labor for any period less than a life sentence may be imposed, the offender may be fined not more than fifty thousand dollars, or imprisoned for not more than twenty years at hard labor, or both.” (Emphasis added.)

      . La.Code Crim.P. art. 881.1(E) states: "Failure to ... include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the-defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.”

      . The defendant alleged the following in his Motion to Reconsider:
      Petitioner contends to [sic] that the sentence is excessive under LSA-C.CR.P. Article 894.1. The purpose of LSA-C.CR.P. Article 894.1 is to prevent the imposition of excessive punishment. The incident that occurred was the result of circumstance[s] unlikely to reoccur again. This was the only offense wherein defendant committed a violent crime. The defendant is deeply remorseful for the acts he committed. The sentence he received in all probability will result in life in prison.


author: LEZELL, Judge.

text:
    STATE of Louisiana v. Lamar Pierce PHILLIPS.
    No. KA 04-827.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 2004.

      David E. Stone, Attorney At Law, Alexandria, LA, for Defendant/Appellant' Lamar Pierce Phillips.
    James D. White, Jr., Assistant District Attorney, Monroe, LA, James Patrick Lemoine, Assistant District Attorney, 35th Judicial District Court, Colfax, LA, for Plaintiff/Appellee State of Louisiana.
    Court composed of BILLIE COLOMBARO WOODARD, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   LEZELL, Judge.

The Defendant, Lamar Pierce Phillips, was charged with possession of cocaine in violation of La.R.S. 40:967(F), illegal carrying of a weapon in violation of La.R.S. 14:95(E), and obstruction of justice in violation of La.R.S. 14:130.1. He filed a motion to suppress that was denied following a hearing on March 4, 2004. Thereafter, the Defendant pled guilty, reserving his right pursuant to State v. Crosby, 338 So.2d 584 (La.1976), to contest the trial court’s denial of his motion to suppress. On April 20, 2004, the Defendant was sentenced to twelve years at hard labor, the first five years without benefit of probation, parole, or suspension of sentence, for possession of cocaine; five years at hard labor without benefit of probation, parole, or suspension of sentence for illegal carrying of a weapon; and five years at hard labor for obstruction of justice. All sentences were to run concurrently. Immediately following sentencing, the Defendant’s motion to reconsider sentence was denied.

On appeal, the Defendant seeks review of the trial.court’s denial of his motion to suppress and urges his sentence is excessive.

ERRORS PATENT

In accordance with 1 La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, the court recognizes there is one error patent.

The Defendant did not receive a fine although one is mandated by the penalty provision of La.R.S. 40:967(F)(l)(a). That provision mandates a fine of not less than $50,000.00 nor more than $150,000.00. Thus, the Defendant received an illegally lenient sentence for the possession of twenty-eight grams but less than two hundred grams of cocaine. Both statutory law and jurisprudence allow an appellate court to ^recognize an illegally lenient sentence on its own. La.Code Crim.P. art. 882 and State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790. This court has recognized the trial court’s failure to impose a mandatory fine as an error patent and has, in its previous cases, remanded the cases for resentencing. State v. August, 03-1478 (La.App. 3 Cir. 4/7/04), 870 So.2d 553, State v. Figueroa, 03-1390 (La.App. 3 Cir. 3/31/04), 869 So.2d 957,- and State v. Cedars, 02-861 (La.App. 3 Cir. 12/11/02), 832 So.2d 1191. Thus, the Defendant’s sentence for possession of twenty-eight to two hundred grams of cocaine is remanded for resentencing since the trial court has discretion as to the amount of the fine to be imposed. See State v. Gregrich, 99-178 (La.App. 3 Cir. 10/13/99), 745 So.2d 694.

ASSIGNMENT OF ERROR NUMBER ONE

The Defendant contends the trial court erred in denying his Motion to Suppress alleging an illegal search and seizure.

At the hearing, Grant Parish Sheriff Deputy Bradley C. Sudduth stated that on the night of April 15, 2003, a victim arrived at the police station and filed a complaint against the Defendant for aggravated battery. Deputy Sudduth testified the victim was severely beaten and told him he had gotten into a fight with the Defendant who had hit him repeatedly with a board. A witness corroborated the victim’s complaint. Colfax City Police Detective Bobby Hines obtained an arrest warrant for the Defendant for aggravated second degree battery.

Deputy Sudduth explained what happened later that night around midnight:

A At that point, we were going out to look for Mr. Phillips, and Detective Hines and myself and Deputies Hollis Tassin and Caleb Martin went out to try to apprehend Mr. Phillips.
Q Okay. And do you recall where you ... first of all, do you know where Mr., where Mr. Phillips lives, to your own knowledge, do you know where he lives? Where he ... I guess where he lists his residence at?
|3A I know where he lists his residence at.
Q Okay. Can you describe for me what you recall that to be?
A It’s on Lake Street in Colfax.
Q Okay. And is that, in fact, where you know Mr. Lamar Phillips to stay or to be during the day and during the night when you’re on your routine patrols?
A That’s not where I see him.
Q Where, where do you see him from time to time?
A Well, I see him, I see him at various places, but the majority of the time it’s at HUD Loop ...
Q Okay.
A ... in Colfax, Loop.
Q And did Officer Hines have a location to go, and did he tell you a place where he thought Mr. Phillips might be after the search warrant was ... I mean, the arrest warrant was secured?
A Yes, sir ...
BY MR. STONE: Objection, hearsay.
BY THE COURT: Continue. Overruled.
Q After you ... what did he tell you ... or where did he tell you you could go and look ... to look for Mr., Mr. Phillips?
A Detective Hines told me that Lamar Phillips was probably at his girlfriend’s residence located at 137 HUD Loop, Colfax, Louisiana.
Q And was that consistent with the location that you have noticed Mr. Phillips to be present prior ,to this particular date in question ...
A Yes, it is.
Q And have you observed him there or known him to be present there on more than one occasion?
A Oh, yes, sir. I’ve seen Mr. Phillips many times on HUD Loop ...
Q Okay.
|4A ... is the reason I looked.

Deputy Sudduth testified that when they arrived at the girlfriend’s residence he and Detective Hines went to the front door, while two other officers covered the back of the apartment. He explained the Defendant had a habit of running before the police could approach him. Deputy Sud-duth testified that he has known the Defendant to carry a weapon, run, and fight if he is caught. He stated that he knocked on the front door and a male voice asked who was there. Deputy Sudduth identified himself and asked the occupant(s) to come to the door. A few seconds later the Defendant’s girlfriend, Darnetta Williams, answered the door. Deputy Sudduth asked Williams if the Defendant was there and she said yes. He testified he asked Williams if he could come in and speak with her and she stepped back and said yes. Deputy Sudduth stated he stepped inside the living room and again asked if the Defendant was there. Williams told him he was in the bedroom and pointed to the bedroom door. Deputy Sudduth later testified that he told her he had a felony arrest warrant for the Defendant but left the warrant in the car.

Deputy Sudduth testified that he heard someone moving around in the bedroom. He explained that he was concerned because he thought the Defendant was going to get out of a window, get a weapon, or destroy evidence. Deputy Sudduth stated that he told Williams that he was going in the bedroom. He found the Defendant completely naked sitting on the toilet with the bathroom door open. Deputy Sudduth told the Defendant he was under arrest for aggravated battery, told him to stand up, and told him not to flush the toilet. He explained that based on his experience he felt the Defendant might be trying to destroy some evidence. Deputy Sudduth testified the Defendant did not obey his order and immediately tried to flush the toilet. He stated he grabbed the Defendant by the arm and pulled him off of the | ^toilet. The Defendant was prevented from flushing the toilet. Deputy Sudduth and Detective Hines wrestled the Defendant to the bed where he was handcuffed. Deputy Sudduth testified he looked inside the toilet bowl and saw a plastic wrap laying on the bottom that contained a “cookie” of suspected crack cocaine. After retrieving the bag, Deputy Sudduth arrested the Defendant for possession of cocaine with intent to distribute, and advised him of his Miranda rights.

While the Defendant was being dressed, Deputy Sudduth noticed a box of .380 bullets and a small amount of suspected crack cocaine on the bedroom dresser. He testified that Williams denied owning a gun or the crack cocaine. Deputy Sudduth stated that the Defendant admitted that the crack cocaine was his and Williams did not have anything to do with it. Deputy Sudduth testified Williams gave him consent to search for a gun. A .380 automatic was found in the top dresser drawer.

Deputy Sudduth stated that Williams was very cooperative and at no time withdrew her consent for him to be in her apartment. He testified that he did not threaten Williams or promise her anything in order to obtain her consent.

Deputy Sudduth testified that they did not obtain a search warrant for the Defendant because he did not think they “had enough for that.” He admitted that he and the other officers could have waited outside Williams’ apartment for the Defendant to leave and then arrested him. Deputy Sudduth stated that he did not have any belief that the Defendant had any evidence in his possession related to the battery that could have been destroyed while a search warrant was obtained. He also stated that he had “intelligence” information that drugs would be involved in the arrest. Deputy Sudduth testified that they went to Williams’ house because they had a felony warrant and knew that the Defendant had to be “boxed in” to be caught.

Darnetta Williams testified that the Defendant was her boyfriend, but that he [shad not stayed at her house on a regular basis. She stated she had only lived at 137 Hud Loop for about one month before the Defendant’s arrest. Williams testified that Detective Hines had previously parked in front of her house and watched for the Defendant. Williams testified that on the night in question she let the Defendant in and then went back to bed. Later that evening, someone knocked on her door, and she asked who it was. An officer called out Grant Parish Sheriffs Department, and she opened her door and asked if she could help the officers. When she answered the door, the Defendant was in the bathroom. Williams testified that three to five officers, including her cousin Bobby Hines, were standing at her door. She stated one of the officers had walked from around her house.

Williams testified as follows:

A So then Bobby said, was Lamar there, I said no, because of the tone of voice that he was talking to me. So then he say ... Brad said, was he here. I said, no, he’s not. Bobby said, yes, he is, because this is where he be. And so after he said that, I was standing in my door. They moved me out of the door and moved in my house. After that, I asked them, I said, well, do you have a search warrant. They said ... Brad said, by this being a government authority, we do not have to have a search warrant to search your house. And that’s when they began to search my house. After that, they moved in my room. When they moved in my room, they found bullets on my dresser. It was some other police officer, and I don’t know his name. He said, well, do you have a gun, and I say, no I do not. I said, but why are you searching my house if you don’t have a search warrant. This is a government authority, and by us finding bullets in your house, that gives us all the consent to search your house. And that’s that.
Q Did you at anytime ... do you at anytime remember Detective Sud-duth or Detective Hines asking you for consent to search your house?
A No, they did not.
Q Do you remember at anytime you giving consent to search your house or, or to come into your house?
A No, I didn’t.
|7Q And to the best of your recollection, you specifically asked them when they came in if they had a search warrant?
A Yes, I did.
Q And you were advised they didn’t have one?
A They didn’t have one with them.
Q And that they didn’t need one?
A Because it was a government authority.
Q And what does, what does that mean? I ...
A As far as me being on housing.

Williams testified that Detective Hines snatched the Defendant off of the toilet and the Defendant fell against the tub, and then to the floor. Williams denied hearing any officer tell the Defendant not to flush the toilet.

On cross-examination, Williams admitted she initially lied to Detective Hines about whether the Defendant was at her house. She explained that she did not want the officers tearing up her place looking around and that her young child was home. On rebuttal, Pineville Police Officer Caleb Martin testified regarding the number and location of officers at the scene. He stated that he assisted Detective Hines, Officer Sudduth and another deputy in the arrest of the Defendant. He stated that there were only four officers on the scene. Officer Martin explained that he and Deputy Tassin went behind the Williams residence to cover the back door. When they heard talking inside the house, the two officers went to the front door and entered the residence. He stated the door was open and Detective Hines and Officer Sudduth were already inside. Officer

Martin testified that Williams was standing in the living room when the Defendant was being arrested.

During oral arguments, the trial court indicated that Williams’ testimony, that Detective Hines had been watching her house, provided the justification for the police |sexpecting to find the Defendant at that location. The trial court stated that the fact that Williams admitted that she had initially lied to the police indicated she had a credibility problem.

In denying the motion to suppress, the trial court stated:

BY THE COURT: Well ... is ... Ms. Williams’ testimony would require this court to, to buy the fact that the Grant Parish Sheriffs Office operates a ... “as cowboys,” something much similar that we’ve heard about from certain segments of the LAPD or certain sensationalized TV shows. I, I simply find that incredible, that the, that the, that the sheriffs office acts that way, has never acted that way, in, in, in my, in my experience. t
BY MR. WHITE: Well, Your Honor
BY THE COURT: Is ... I find the testimony ... I find Ms. Williams’ testimony to be largely incredible. I find
BY MR. WHITE: Thank you.
BY THE COURT: ... the ... it’s a credibility question on my part, Mr. Stone, and I find the, I find the credibility of Officer Sudduth is corroborated by Officer Martin to, to be the accurate version of the events as they happened on the night of April 15th of 2003. Is ... I will note that even Ms. Williams even admitted that she began this affair off by being untruthful with the police. Is ... simply, if they had an arrest warrant ... is ... if Ms. Williams did not want them in the house, she should simply have told Mr. Phillips to come to the door ... is ... the police are here for you. The police at that time would have had no reason to enter the house at all. Is ... however, what happened was, is that Mr. Phillips didn’t want to be arrested, which is understandable, and so at that, at that point, the police had a, had a reason to be in the house. They had reason to believe that Mr. Phillips was there. They had a valid arrest warrant. Is ... I find, I find Stigall and Wolf to be distinguishable from the case ... from the facts of our ... plus, I also find that the, that the officer obtained valid consent to enter the house as well. That’s my ruling, and the motion to suppress is denied. I’ll see y’all at trial.

The State bears the burden of showing that a voluntary consent was obtained prior to a warrantless search. In State v. Bargeman, 98-617, p. 5 (La.App. 3 Cir. 10/28/98), 721 So.2d 964, 967, writ denied, 99-33 (La.5/28/99), 743 So.2d 658, this court stated:

hWhen a trial court rules on a defendant’s motion to suppress, the appellate court must look at the totality of the evidence presented at the hearing on the motion to suppress. The appellate court should not overturn a trial court’s ruling, unless the trial court’s conclusions are not supported by the evidence, or there exists an internal inconsistency in the testimony of the witnesses, or there was a palpable or obvious abuse of discretion. State v. Burkhalter, 428 So.2d 449 (La.1983), and State v. Gaspard, 96-1279 (La.App. 3 Cir. 2/11/98); 709 So.2d 213. The admissibility of evidence seized without a warrant is a question for the trial court. Its conclusions on credibility and the weight of testimony regarding the voluntariness of a consent for admissibility purposes will not be overturned on appeal, unless the conclusions are unsupported by the evidence. State v. Gachot, 609 So.2d 269 (La.App. 3 Cir. 1992), writ denied, 617 So.2d 1180 (La.1993), cert. denied, 510 U.S. 980, 114 S.Ct. 478, 126 L.Ed.2d 429 (1993).

The State argues in its brief to this court that the Defendant may lack standing to contest the warrantless search of Williams’ residence that resulted in his arrest. However, we find that the resolution of this constitutional claim is unnecessary because a voluntary consent is an exception to the warrant requirement. If Williams consented to the search, then a search warrant for her residence was not required. Consequently, the discovery of the Defendant was proper and his arrest was made pursuant to a valid arrest warrant.

Based on the totality of the circumstances, review of the record before this court supports the trial court’s finding that Williams voluntarily allowed the officers to enter her residence and search for the Defendant. Officer Sudduth testified that Williams voluntarily gave consent to search, and that she never withdrew her consent to search. Williams denied giving consent and testified that she demanded a search warrant from the officers who told her they did not need one. The issue of consent in this case turns on the credibility of those testifying and the weight of the evidence. The trial court stated that it did not believe the testimony of Williams. It is not the role of this court to second-guess the determinations of the trial court. Therefore, this court cannot say the trial court abused its discretion in denying the motion to suppress, and this |inassignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

The Defendant contends his sentences are excessive. For possession of cocaine, in violation of La.R.S. 40:967(F), he received twelve years at hard labor, with the first five years without benefit of probation, parole, or suspension of sentence. For illegal carrying of a weapon, in violation of La.R.S. 14:95(E), he received five years at hard labor, without benefit of probation, parole, or suspension of sentence; and for obstruction of justice, in violation of La.R.S. 14:130.1, he received five years at hard labor.

In his brief to this court, the Defendant merely argues that his sentences created undue hardship and pain. The State maintains the sentences are not excessive, considering the Defendant’s extensive criminal history.

The trial court made the following comments at the sentencing hearing:

BY THE COURT: Mr. Phillips, would you please stand? Mr. Pierce Lamar Phillips, the court has reviewed the presentence investigation. Is ... you have a long and colorful history in this parish with crimes against the person, as well as, as well as drug offenses and a strong juvenile record. Is ... you were subsequently ... after your initial arrest for these charges, you were arrested again ... is ... at least one time for another, for another drug distribution charge. Is ... the ... and simply, I believe 53.7 grams of crystal ... of ... was it crystal meth, I believe ...
BY MR. WHITE: Crack cocaine, Your Honor ...
BY THE COURT: Cocaine ... crack cocaine. I’m sorry. Were in your possession. Is ... you attempted to, to dispose of that and obstruct justice. Is ... you were in possession of a firearm in close proximity to the, to the drugs involved. And given that and the serious nature of the offense ... is ... anything less than a significant period of imprisonment would be ... would deprecate the seriousness of the offenses you are charged with.

The Defendant could have received a sentence of up to thirty years at hard labor and a $150,000.00 fíne for possession of cocaine. Instead, he received twelve years, Na sentence near the minimum sentence of five years for this crime. The Defendant did not receive a fine although one is mandated by the penalty provision of La.R.S. 40:967(F)(l)(a). That provision mandates a fine of not less than $50,000.00 nor more than $150,000.00. Thus, the Defendant received an illegally lenient sentence as discussed in the error patent section above. On the weapons charge, the Defendant received only the minimum five-year sentence and did not receive any fine. For obstruction, the Defendant could have received up to twenty years at hard labor and a fine of up to $100,000.00. Again, the Defendant received a near-minimum sentence of five years with no fine.

The standard of review for Louisiana appellate courts in determining whether a sentence levied upon a particular defendant was excessive is the manifest-abuse-of-discretion standard. State v. Guzman, 99-1753 (La.5/16/00), 769 So.2d 1158. A trial judge has considerable latitude in imposing sentences within the constraints provided by law. State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330. However, in State v. Marshall, 94-0461, p. 24 (La.9/5/95), 660 So.2d 819, 829, the Louisiana Supreme Court held that “[a] sentence may violate a defendant’s constitutional right against excessive punishment even if it is within the statutory limit,” citing State v. Sepulvado, 367 So.2d 762 (La.1979). Furthermore, under both United States and Louisiana law, a sentence is unconstitutionally excessive if it “(1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime.” Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 2866, 53 L.Ed.2d 982 (1977); State v. Handy, 96-2505, p. 1 (La.1/6/97), 686 So.2d 36, 37, citing State v. Dorthey, 623 So.2d 1276 (La.1993). The Louisiana Supreme Court has provided a list of several factors that appellate courts are to consider in ascertaining whether a sentence, by its excessive duration or severity, is grossly disproportionate to the underlying offense. State v. Baxley, 94-2982 (La.5/22/95), 656 So.2d 973, citing State v. Telsee, 425 So.2d 1251, 1253 (La.1983). The appellate court’s analysis of the sentence is cumulative and centers on an amalgam of relevant factors. Id. Among these factors the supreme court notes, are “the nature of the offense and the offender, a comparison of the punishment with sentences imposed for similar crimes, the legislative purpose behind the punishment, and a comparison of the punishment provided for this crime in other jurisdictions.” Baxley, 656 So.2d at 980, citing Telsee, 425 So.2d at 1253-54.

State v. Wilturner, 03-719, pp. 5-6 (La. App. 3 Cir. 11/5/03), 858 So.2d 743, 746 11g(alteration in original).

Given the near-minimum sentences and the illegally lenient sentence the Defendant received, the court cannot say the trial court abused its discretion when imposing the Defendant’s sentences nor can it say that the sentences make no measurable contribution to acceptable penal goals. Accordingly, the court finds the Defendant’s sentences are not excessive and this assignment of error lacks merit.

CONCLUSION

The court recognizes the illegally lenient sentence imposed for possession of twenty-eight to two hundred grams of cocaine; the sentence imposed for that offense in regard to the fine imposed is vacated, and the case remanded for resentencing. All other sentences are affirmed.

AFFIRMED IN PART; VACATED IN PART AND REMANDED FOR RESEN-TENCING.