author: I «SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Kendrick TURNER.
    No. 03-KA-325.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 19, 2003.

      Margaret Smith Sollars, Louisiana Appellate Project, Thibodaux, LA, for Appellant, Kendrick Turner.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long Bradley R. Burget, Thomas S. Block, Assistant District Attorneys, Gretna, LA, for Appellee, State of Louisiana.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS and SUSAN M. chehardy:
   I «SUSAN M. CHEHARDY, Judge.

On September 27, 2000, the Jefferson Parish District Attorney filed a bill of information charging defendant, Kendrick Turner, with armed robbery and possession of a firearm by a convicted felon. Willie Cotton was charged as a co-defendant on the armed robbery charge only. Defendant was arraigned on September 28, 2000, and pled not guilty.

On May 23, 2001, trial against defendant commenced. After a two-day trial, the 12-person jury returned a verdict of guilty as charged on both counts. On May 29, 2001, the trial court sentenced defendant to 50 years at hard labor for armed robbery and 15 years at hard labor for possession of firearm by a convicted felon. The court ordered both sentences to be served without benefit of parole, probation or suspension of sentence and to run concurrently. Defendant made an oral motion for appeal, which the court granted.

Immediately following sentencing, the State filed a habitual offender bill of information, alleging that defendant was a second felony offender. Defendant was apprised of the allegations, which he denied, After the habitual offender hearing, the trial court found that defendant was a second felony offender. The court thereafter vacated defendant’s original sentence for armed robbery and imposed an I «enhanced sentence of 100 years at hard labor without benefit of parole, probation or suspension of sentence. The court instructed that the sentence be served concurrently with the sentence for possession of a firearm by a convicted felon and consecutively with any other sentence defendant was serving. Defendant made an oral motion for appeal of the habitual offender ruling and sentence, which the trial court granted.

Facts

On August 16, 2000, Willie Cotton picked up his cousin, Kendrick Turner, at his house about 3:30 p.m. and the two had drinks together and visited their girlfriends in Algiers. At about 9:00 p.m. that evening, Cotton and Turner stopped at the E-Z Serve in Westwego in Cotton’s truck so that Cotton could get change to use the pay phone. After making a phone call, Cotton left his truck parked near the E-Z Serve and walked to a nearby apartment complex to deliver a package for an associate.

On August 16, 2000, Anika Murth was working the evening shift at the E-Z Serve Convenience Store at 1200 West-bank Expressway in Westwego, Louisiana. At trial, Ms. Murth testified that, at about 9:30 p.m. that night, a black man, who was about 21 years of age, between 5 § 9 and 6 § tall, and between 180-190 pounds, entered the store, pulled a semi-automatic handgun from his waistband, and demanded money. Ms. Murth gave him the cash from the store’s cash register. Once the gunman left the store, Ms. Murth locked the doors, called police, and hid in the bathroom until officers arrived.

When she was interviewed by the police, Ms. Murth indicated that the gunman was wearing a white t-shirt and blue or black shorts. The gunman covered the lower part of his face with a white shirt so Ms. Murth was only able to see his eyes, which she described as bloodshot.

14At that same time, Rodney Long and his wife, Michelle, were in their truck at the corner of Central Avenue and West-bank Expressway, waiting at a red traffic light. They were about 300 feet from the entrance of the E-Z Serve. Mr. Long saw a black man, who was about 6 § tall, approximately 200 pounds, and wearing a white t-shirt and dark-colored shorts, quickly exit the E-Z Serve, walk to the Central Avenue side of the building, then jog south on Central toward Lapalco. When he saw the store’s clerk run to the front door and lock it, Rodney Long thought that a robbery had occurred.

About this time, Cotton returned to the truck and found defendant was not there. Cotton started the truck and began to drive away slowly. Defendant ran from the direction of the E-Z Serve and jumped into the passenger seat of Cotton’s truck. According to Cotton, defendant was carrying a bag.

After the defendant got into the passenger side of the truck waiting at the corner of Central Avenue and Hickory, the Longs decided to follow the truck, which sped away. The Longs followed the truck, which they described as blue with primer spots and body damage, for some time attempting to ascertain the vehicle’s license plate number, which they eventually did. Soon after the Longs got the truck’s license plate number, the subject leaned out of the truck’s passenger window and fired two shots at the Longs. The Longs ended their pursuit immediately and reported the truck’s license plate number and description to the police.

After the chase, the Longs headed back toward the E-Z Serve. While en route, they flagged down Sergeant Warren Martin of the Westwego Police Department, gave him a description of the truck, and told him in which direction the suspect was traveling. Although Sergeant Martin canvassed the area for the truck, he did not find it. He ran the license plate number on the police computer system and found that the truck was registered to Willie Cotton.

| ¡While on his way to the address at which the truck was registered, Sergeant Martin received information from the dispatcher that a truck matching the description of the one leaving the E-Z Serve robbery was in a parking lot in the 1500 block of Westwood. When Sergeant Martin arrived at that location, he found the truck and learned that Willie Cotton’s mother had informed the Jefferson Parish Sheriffs Office that he was at this location. Cotton was arrested. Sergeant Martin transported him to the Westwego Police Department headquarters, where Cotton consented to a search of his truck. Sergeant Martin recovered a live .380 caliber bullet on the seat of Cotton’s truck and a bag.

After arriving at Westwego Police headquarters, Sergeant Martin conducted a tape-recorded interview with Cotton. According to Cotton, defendant told Cotton he had robbed the E-Z Serve. Cotton also saw a truck following them when they left the area. Cotton thought they were being followed because of the robbery. Cotton realized that defendant had a gun when defendant fired shots at their pursuers as Cotton attempted to elude them. After they eluded the Longs, Cotton and defendant went to Keisha Heard’s apartment. The two men went upstairs, where defendant gave Cotton approximately $40.00 in cash, some of which was in a brown E-Z Serve bag.

After interviewing Cotton, Sergeant Martin went to Keisha Heard’s apartment, which was located at 1500 West-wood, the street where Willie Cotton had been apprehended. Sergeant Martin then interviewed Ms. Heard at police headquarters. In her statement; Ms. Heard told Sergeant Martin that Cotton and defendant arrived at her apartment between 9:45 and 10:00 p.m. the night of August 16, 2000. She also stated that the men were acting strangely because every time a visitor knocked on her door, the two ran upstairs to hide. She recounted that | swhen she asked defendant and Cotton why they were acting suspiciously, they told her there had been a shootout.

She also remembered that defendant and Cotton left her apartment, but returned later that evening while she was away. When Ms. Heard returned, she saw defendant standing suspiciously in the doorway of her downstairs closet. Later, after defendant left her apartment, Ms. Heard searched the closet where defendant was standing and found a handgun. Ms. Heard wrapped the gun in a towel and took it to the nearby apartment of her cousin, Petra Broome. Ms. Heard did not tell Ms. Broome about the robbery.

After Sergeant Martin learned from Ms. Heard that the gun allegedly used in the robbery was in Ms. Broome’s apartment, he accompanied Ms. Heard to Ms. Broome’s apartment. Ms. Broome gave her consent to a search of her apartment and directed Sergeant Martin to the gun, which she had hidden in a cabinet above her refrigerator. Sergeant Martin recovered a .9 mm handgun. Neither Ms. Broome nor Ms. Heard was charged with a crime.

Based-on the information he gathered from the various witnesses, Sergeant Martin obtained á warrant for defendant’s arrest. Martin did not execute the warrant because defendant turned himself over to police.

After hearing the testimony of these witnesses and reviewing the evidence, the twelve-person jury found the defendant guilty as charged of armed robbery and possession of a firearm by a convicted felon. Defendant appeals his conviction and sentence.

On appeal, defendant argues that the verdict was contrary to the law and evidence presented at trial. He specifically contends that the State failed to prove beyond a reasonable doubt that he was guilty of armed robbery, as it did not offer 17sufficient evidence as to identity. While defendant does not dispute that an armed robbery occurred at the E-Z Serve store, he maintains that he is not the person who committed the offense.

■ ’ The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. State v. Ortiz, 96-1609, p. 12 (La.10/21/97), 701 So.2d 922, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. Williams, 99-223, p. 6 (La.App. 5 Cir. 6/30/99), 742 So.2d 604, 607.

Evidence may be either direct or circumstantial. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Williams, 99-223 at p. 8, 742 So.2d at 608. When circumstantial evidence is used to prove a case, the trial judge must instruct the jury that, “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” La. R.S. 15:438.

In State v. Mitchell, 99-3342, p. 7 (La.10/17/00), 772 So.2d 78, 83, the Louisiana Supreme Court commented:

On appeal, the reviewing court “does not determine whether another possible hypothesis suggested by a defendant could afford an exculpatory explanation of the events.” State v. Davis, 92-1623 (La.5/23/94), 637 So.2d 1012, 1020. Rather, the court must evaluate the evidence in a light most favorable to the state and determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt.. Id.

Ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Captville, 448 So.2d 676, 678 (La.1984); State v. Qutoum, 02-780, p. 4 (La.App. 5 Cir. 1/28/03), 839 So.2d 323, 326.

La. R.S. 14:64 defines armed robbery as “the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.” In addition to proving the statutory elements- of the charged offense at trial, the State is required to prove the identity of the perpetrator. When identity is an issue, the State must negate any reasonable probability of misidentification. State v. Robinson, 02-530, p. 4 (La.App. 5 Cir. 10/29/02), 831 So.2d 460, 464. The trier of fact shall evaluate the witnesses’ credibility, and when faced with a conflict in testimony, is free to accept or reject, in whole or in part, the testimony of any witness. State v. Rivers, 01-1251, p. 6 (La.App. 5 Cir. 4/10/02), 817 So.2d 216, 219, writ denied, 02-1156 (La.11/22/02), 829 So.2d 1035. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’ testimony, if believed by the trier of fact, is sufficient support for the requisite factual findings. State v. Rivers, 01-1251 at pp. 6-7, 817 So.2d at 219.

Ms. Murth and the Longs all testified that the robber was a black man wearing dark colored shorts and a white shirt. Willie Cotton and Keisha Heard testified that defendant wore dark shorts and a white shirt on the night of August 16, 2000. The recording made by the store’s surveillance camera at the time of the offense supports that clothing description. State’s Exhibit 1, a still photograph taken from the surveillance tape, shows a black man wearing a white shirt and dark shorts, who appears to be pulling something from his waistband. Ms. Murth and Mrs. Long both testified that State’s Exhibit 1 depicts the perpetrator. Cotton testified that the clothing worn by the man pictured in State’s Exhibit 1 and other photographs taken by the surveillance camera is the clothing defendant wore on the night of the robbery. Although none of the witnesses testified that they saw the | jobber’s face, their testimony regarding his clothing, height, and weight, although circumstantial, supports the jury’s conclusion that defendant was the perpetrator.

Defendant argues that the evidence points to Willie Cotton as the perpetrator. Cotton admitted that he was in the E-Z Serve on the night of August 16, 2000, but testified that he was there only to get change to use the payphone. He identified State’s Exhibit 7 as a surveillance photograph of himself in the store obtaining change. In that photograph, he is wearing ,a maroon-colored shirt. Further, a police photograph of Cotton taken after his arrest on the night of the robbery shows he was wearing a maroon-colored shirt. Moreover, Sergeant Martin testified that, according to police records, Cotton is 5 § 8 tall and about 165 pounds. The gunman, as pictured in the store’s surveillance photographs, is taller and stockier than Cotton.

Defendant argues that Willie Cotton’s testimony was wholly unreliable in that it was based on self-interest and was full of contradictions. Cotton disclosed that he had agreed to testify truthfully at defendant’s trial and, in exchange, the district attorney’s office would allow him to plead guilty to simple robbery. Cotton entered into the deal despite the fact that defendant is his cousin, and the two grew up together. Further, on the night of the robbery, Cotton cooperated with police by consenting to a search of his truck. Finally, Cotton’s trial testimony was corroborated by other evidence at trial, including the surveillance film from the E-Z Serve, and the testimony of the Longs and Ms. Heard.

Defendant complains that Keisha Heard’s testimony was untruthful, and that she too acted out of self-interest in testifying against him. Defendant asserts that Keisha’s involvement in the robbery was greater than she acknowledged, and that her testimony was calculated to protect her from criminal charges. The record does not support defendant’s assertion. Ms. Heard testified that she ■ found | mdefendant’s gun in her closet after he left it there. Ms. Heard testified she gave the gun to Ms. Broome after Cotton and defendant left the apartment. Sergeant-Martin testified that when he questioned Ms. Heard, he advised her of her Miranda rights, and told her he was investigating an armed robbery. Ms. Heard testified that she had never been convicted of a crime, and that she did not have a reason to lie to police.

Here, the twelve-person jury apparently found Willie Cotton and Keisha Heard to be credible witnesses. It is not the function of the appellate court to reweigh the jury’s credibility determination. State v. Cassard, 01-931, p. 11 (La.App. 5 Cir. 2/26/02), 811 So.2d 1071, 1077. Based on the foregoing, we conclude that the State sufficiently proved the element of identity under the Jackson standard.

In this second assignment of error, defendant argues that the trial court erred by imposing an excessively harsh sentence. Specifically, defendant maintains that his habitual offender sentence of 100 years was excessive, arguing primarily that the trial court failed to consider the sentencing factors set forth in La.C.Cr.P. art. 894.1.

Defendant failed to timely file a written motion to reconsider sentence following either his original sentencing or his habitual offender sentencing. Defense counsel, however, did object to the length of defendant’s sentence following the habitual offender sentencing. While La.C.Cr.P. art. 881.1 allows for oral motions to reconsider sentence, part A(2) of that article requires that the motion “set forth the specific grounds on which the motion is 'based.” A complaint that a sentence is “excessive” does not fulfill the article’s specificity requirement. See, State v. Freeman, 97-1115, p. 8 (La.App. 5 Cir. 12/29/98), 727 So.2d 630, 635.

In Generally, the failure to comply with the provisions of Article 881.1 precludes review of a sentence on appeal. See, State v. Ewens, 99-1096, p. 10 (La.App. 5 Cir. 3/30/99), 735 So.2d 89, 96, unit denied, 99-1218 (La.10/8/99), 750 So.2d 179. However, this Court has routinely reviewed sentences for constitutional ex-cessiveness, even without a proper motion to reconsider sentence. State v. Anderson, 01-789, p. 8 (La.App. 5 Cir. 1/15/02), 807 So.2d 956, 961, writ denied, 02-0569 (La.1/24/03), 836 So.2d 42.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit imposition of excessive punishment. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Lobato, 603 So.2d 739, 751 (La.1992); State v. Munoz, 575 So.2d 848, 851 (La.App. 5 Cir.1991), writ denied, 577 So.2d 1009 (La.1991). The trial judge is given wide discretion in determining sentence, and if the record supports the sentence imposed, the court of appeal will not set it.aside on grounds of excessiveness. La.C.Cr.P. art. 881.4(D); State v. Richmond, 98-1015, p. 8 (La.App. 5 Cir. 3/10/99), 734 So.2d 33, 38.

As a second felony offender, defendant was subject to a sentencing range of 49% years to 198 years. La. R.S. 14:64; La. R.S. 15:529.1 A(l)(a). Defendant argues that the court’s sentence was not tailored to the offense or to him as the offender. While the trial judge did not give reasons for the enhanced sentence, he did express his opinions at the time of the original sentencing:

Okay. All right, Mr. Turner. You were convict [sic] by a jury of one count of armed robbery and one count of a felon carrying a weapon. We had negotiated, there had been negotiations with you for a long period of time, and I told you and your attorney that any sentence that I was offering before the trial didn’t take into account anything that I may hear at the trial.
All right. At the trial it came out that you had a past record. You had been convicted of army [sic] robbery in the past. Or you have a past army robbery. You have a past armed robbery conviction.
hi-At the trial it came out that you had this young lady, that you put a gun in her face. Two citizens who were following your truck were shot at. That changes a lot of things. Now, you put other people at risk for death. Armed robbery is a very serious charge. You’ve done it before. You’ve done time for it. I believe that a sentence, that no other sentence or a lesser sentence other than the one I’m going to give you will deprecate the seriousness of the crime.
* * *
After hearing the trial, I have no doubt that you are in fact the person who committed that armed robbery. None. Before the trial there is always doubt. After the trial I have no doubt.

In this case, the sentence imposed on the defendant is in the middle of the statutory sentencing range. Defendant has a history of violent offenses. The instant offense was aggravated by the fact that he endangered the lives of the Longs by firing on them. Although the State was only authorized to use one prior offense as a predicate felony for possession of firearm by a convicted felon, the certified record of defendant’s prior armed robbery conviction shows that defendant was actually convicted of six counts of armed robbery in 1997. Defendant’s imprisonment for those offenses did not deter him from committing the instant offense. Compare, State v. Milton, 32,735 (La.App. 2 Cir. 2/1/00), 751 So.2d 440(100-year habitual offender sentence for armed robbery was not excessive, where the defendant shot the victim at least three times, there was no provocation, and the trial court found that it was likely the defendant would commit other crimes if not imprisoned). Based on the foregoing, we do not find that the trial court abused its wide discretion in imposing a 100-year habitual offender sentence.

Finally, the record was reviewed for errors patent pursuant to La.C.Cr.P. art. 920. We note that defendant’s sentence for possession of a firearm by a convicted felon is illegally lenient because the trial court failed to impose a mandatory fine. La. R.S. 14:95.1(B) provides:

| ^Whoever is found guilty of violating the provisions of this Section shall be imprisoned at hard labor for not less than ten nor more than fifteen years without benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars. (Emphasis supplied).

Neither the State nor defendant raised the illegal sentence issue in the district court or on appeal. According to State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, and La.C.Cr.P. art. 882, this Court has the authority to correct an illegally lenient sentence despite the failure of either party to raise the issue in the district court or on appeal. State v. Clemons, 01-1032, p. 2 (La.App.2/26/02), 811 So.2d 1047, 1049, writ denied, 02-866, 02-918 (La.11/22/02), 834 So.2d 972, petition for certiorari filed, April 1, 2003 (No. 02-9975). This authority is, however, permissive rather than mandatory. State v. Jordan, 02-820 (La.App. 5 Cir. 12/20/02), 836 So.2d 609. In this case, we will refrain from taking action on our own motion.

CONVICTION AND ENHANCED SENTENCE AFFIRMED.

      . Keisha Heard is Willie Cotton’s first cousin and defendant's second cousin.

      . Defendant does not challenge the sufficiency of the evidence as to his conviction for convicted felon in possession of a firearm. At trial, the parties stipulated that defendant was previously convicted of armed robbery in case number 96-0239.

      . Cotton testified that he is 5', 11" tall, and weighs 165 pounds.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


source: Caselaw Access Project

author: 1 .MARION F. EDWARDS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Alexander SHEPARD.
    No. 03-KA-268.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 19, 2003.

      Paul D. Connick, Jr., District Attorney, Andrea F. Long, Terry M. Boudreaux, Vincent Paciera, Jr., Assistant District Attorneys Gretna, LA, for Appellee.
    Prentice L. White, Baton Rouge, LA, for Appellant.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS and SUSAN M. CHEHARDY.
   1 .MARION F. EDWARDS, Judge.

Defendant/appellant Alexander Shepard appeals his conviction for armed robbery and attempted armed robbery. We affirm.

The Jefferson Parish District Attorney’s Office filed a bill of information charging Shepard with one count of attempted armed robbery in violation of LSA-R.S. 14:27:64 and one count of armed robbery in violation of LSA-R.S. 14:64. Following his arraignment on the charges, Shepard entered a plea of not guilty to both counts. On May 9, 2001, his motion to suppress identification was heard and denied, and subsequently, he waived his right to a jury and proceeded to trial.

After a one-day judge trial, Shepard was found guilty and was sentenced to 30 years at hard labor without benefit of parole, probation, or suspension of sentence. A multiple offender bill of information was later filed alleging that Shepard had previously been convicted of five felonies.. Following the multiple offender hearing Shepard was found to be a three time violent felony offender. | .After waiving all delays, he was sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence. This appeal followed.

The testimony at the hearing on the motion to suppress and at trial reflects that, in the early morning hours of February 10, 2001, Mark Guidry and Jimmy Rodrigue arrived at the Country Club Lounge near Garden Road and the West-bank Expressway. The parking lot was brightly lit. After parking their car, Gui-dry and Rodrigue exited the vehicle and observed an individual walk from behind their car and up alongside the passenger side of the vehicle. Guidry testified that he made eye contact with the man as he walked around the car. When the individual reached the front of the car, he raised his shirt, pulled out a chrome pistol, and demanded Guidry’s wallet and jewelry. The gunman then pointed the weapon at Rodrigue and ordered him to place his hands on the hood of the car. At that time, Guidry reached up and grabbed the gun with both hands holding the hammer down to prevent the gun from being fired. Their faces were inches apart. Guidry and the gunman fought over the pistol until eventually, the gunman wrested it from Guidry’s hands. Guidry then jumped in front of his vehicle and made his way inside the Country Club Lounge where he asked for someone to call 911. After Gui-dry escaped, the gunman ordered Ro-drigue to lie on the ground and proceeded to take money out of his pockets. Approximately $40 to $45 was stolen from Ro-drigue. The police arrived within minutes.

Detective Scott Guillory testified that he responded to the armed robbery call and was able to interview the victims and obtain a description of the perpetrator as being a 6' to 6'2" black male wearing a blue flannel shirt, a blue bandana, and a “bebop” style hat. (At trial, Guidry had also added that the suspect was wearing tennis shoes.) Detective Craig Bonnette testified that, after hearing the broadcast-ed description of the armed robbery suspect, he was able to apprehend two individuals, one who matched the description of the suspect. Guillory then |4escorted the victims to the location where the two suspects had been stopped. Guidry testified that when they arrived at the location, he exited the vehicle and waited for the officers to remove a suspect from the car. Guidry testified that the man the police showed him was not the gunman and as he turned to get back into the car, the police informed him that they had someone else for him to see. When the second individual exited the vehicle, Guidry made a positive identification of Shepard as being the gunman. Guidry testified that when he viewed Shepard at the police vehicle, Shepard had the same physical features as the gunman and was also wearing the same type of clothing except for the bandana and cap. Guidry then pointed out to the investigating officers that the gunman was wearing a blue bandana at the time of the robbery. Subsequently, Rodrigue exited the police vehicle and made an identification of defendant as being the perpetrator. Afterwards, Shepard was handcuffed and Detective Guillory performed a pat down search of defendant, discovering a blue bandana and a hat.

At trial, Shepard denied any involvement in the incident. He testified that he had gotten off work at a Shell station, where he was a rigger, at about 2:00 in the afternoon, and went to a second job selling tennis shoes. He was wearing jeans, work boots, a gray T-shirt, a flannel shirt and his welding cap. This is common attire, to protect the hair and face. He was walking with his cousin from the Happy Hour (lounge) toward the Shell station. His was the only defense testimony.

On appeal, Shepard contends that the identification procedure was overly suggestive in that there was only one suspect shown to the victims that matched their description of the assailant’s height, weight, and clothing. Additionally he alleges that the victims’ description was too general, and that one of the victims admitted that the robbery only lasted for a couple of minutes and conceded that he was greatly distracted by the perpetrator’s gun to his head.

IbA defendant who seeks to suppress an identification must prove both that the identification itself was suggestive and that there was a likelihood of misiden-tification as a result of the identification procedure. Fairness is the standard of review for identification procedures, and reliability is the linchpin in determining the admissibility of identification testimony. Even if the identification could be considered suggestive, it is the likelihood of misidentification which violates due process, not merely the suggestive identification procedure.

There are five factors to consider in determining if an identification is reliable: 1) the opportunity of the witness to view the criminal at the time of the crime; 2) the witness’ degree of attention; 3) the accuracy of the prior description of the criminal; 4) the level of certainty demonstrated at the confrontation; and, 5) the time between the crime and the confrontation. In evaluating the defendant’s argument, the reviewing court may consider all pertinent evidence adduced at the trial, as well as at the hearing on the motion to suppress the identification. A trial court’s determination of the admissibility of an identification should be accorded great weight and will not be disturbed on appeal unless the evidence reveals an abuse of discretion.

One-on-one identifications are not favored; however, under certain circumstances, they are admissible at trial. Such identifications have been found to be admissible when the identification occurred in close proximity to the time of |Bthe offense and the suspect is presented for immediate identification. Such a process assures reliability and fosters prompt release of innocent suspects. Although there was a certain degree of focus on the suspect here, the testimony of Guidry, Ro-drigue and Detective Bonnette reveals that nothing was done by the officers to force or coerce victims into identifying Shepard as the perpetrator. Additionally, both victims were separated at the time of the identification thereby lessening the suggestiveness of the identification procedure in the instant case. However, even if the identification procedure were considered suggestive, by applying the appropriate factors we do not find there was a substantial likelihood of misidentification.

Guidry testified that he was able to view Shepard for a period of two to three minutes in a well-lighted area. During that period, he maintained eye contact with Shepard and, at the point that defendant brandished a gun and demanded his wallet and jewelry, he stood face-to-face with Shepard at a distance of approximately six inches. Guidry also testified that, during the ensuing struggle for the gun, he was looking at Shepard’s face the entire time.

As to his degree of attention and the accuracy of the description, Guidry testified at trial that the description of the perpetrator that he gave to investigating officers was that of a 6'1" to 6'2", 170-180 pound black male, wearing a blue flannel shirt, jeans, tennis shoes, a blue bandana, and a “bebop” style hat. Shepard is a 6'1", 180 pound black male and, at the time of his apprehension, was wearing a blue flannel shirt, blue jeans, and lace up work boots, but was not wearing a “bebop” style hat or a blue bandana. However, a subsequent pat down search revealed that Shepard had a blue bandana and cap in his pocket.

We note that there were some discrepancies in Rodrigue’s testimony on relative to identification. For example, at the motion hearing he described the 17perpetratól-as having worn a white-checkered shirt. Further, at trial Rodrigue testified that the light was shining in his eyes, and that his eyes were bad. However, in arriving at its verdict, the trial court found as a matter of fact that the same person robbed Mr. Guidry and Mr. Rodrigue. The Court stated:

In this case there were two eyewitnesses. Mr. Rodrigue, the defense successfully impeached Mr. Rodrigue. Mr. Rodrigue ... was definitely robbed.... Mr. Rodrigue testified that he — and it was sort of obvious from the witness stand, he has bad eyes. The light was in his eyes, he didn’t get a good look, and while the Court pretty much believes that in his prior testimony he meant to say blue flannel shirt and white shirt (sic) that’s not how it all played out and so the court is going to discount Mr. Rodrigue’s testimony in deciding this case.

The court emphasized Guidry’s close contact with Shepard, and the clarity and conviction of his identification. The time between the confrontation and offenses occurred within a relatively short period of time, approximately 15 to 20 minutes. After separately viewing both suspects, Gui-dry made a positive identification of Shepard as being the perpetrator, identifying him by both his facial features and clothing. When Officer Guillory was asked how sure the victims seemed about the identification, the detective answered, “Very, very positive.”

Considering all the factors present her, we do not find there was a substantial likelihood of misidentification in the instant procedure. Consequently, the trial court did not err in denying the Motion to Suppress.

We have reviewed the record for errors patent and note that the trial court failed to advise Shepard of the prescriptive period for filing post-conviction relief as required by LSA-C.Cr.P. art. 930.8. Thus, we will remand the case with an order for the trial judge to send written notice to Shepard that his application for post-conviction relief must be filed no more than 2 years after the judgment of conviction and sentence has become final. The trial judge is to send this | «notification within ten days of the rendering of this opinion, then file written proof in the record that Shepard received the notice.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . State v. Prudholm, 446 So.2d 729, 738 (La.1984); State v. Payne, 00-1171 (La.App. 5 Cir. 12/13/00), 777 So.2d 555, 558-559, writ denied, 01-118 (La.11/21/01), 802 So.2d 626.

      . Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977).

        . State v. Thibodeaux, 98-1673 (La.9/8/99), 750 So.2d 916, 932, cert. denied, 99-8224 (La.5/15/00), 529 U.S. 1112, 120 S.Ct. 1969, 146 L.Ed.2d 800 (2000).

      . Manson v. Brathwaite, supra; State v. Higgins, 01-368 (La.App. 5 Cir. 10/17/01), 800 So.2d 918; State v. Clennon, 98-1370 (La.App. 5 Cir. 6/30/99), 738 So.2d 161, 164.

      . State v. Clennon, supra.

      . State v. Jackson, 96-661 (La.App. 5 Cir. 4/9/97), 694 So.2d 440, 447, writs denied, 97-1050 (La.10/13/97), 703 So.2d 609 and 97-1255 (La.10/13/97), 703 So.2d 612.

      . State v. Robinson, 404 So.2d 907, 909-910 (La.1981).

      . Id.

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

      . See State v. Pierre, 02-838 La.App. 5 Cir. 12/30/02, 834 So.2d 1229.


author: I,MARIONF. EDWARDS, Judge.

text:
    Robert E. POOLE v. TERRELL MUSGROVE SIDING AND GUTTER and Louisiana Workers’ Compensation Corporation.
    No. 03-CA-139.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 19, 2003.

      Joel P. Loeffelholz, New Orleans, LA, for Appellant.
    Charles C. Holbrook, Baton Rouge, LA, for Appellee.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY and CLARENCE E. McMANUS. -
   I,MARIONF. EDWARDS, Judge.

In this worker’s compensation case, Appellant, Robert E. Poole, Sr., appeals the trial court’s ruling that he was not totally and permanently disabled. For the following reasons, the judgment of the trial court is affirmed.

FACTS AND PROCEDURAL HISTORY

On June 9, 1997, Plaintiff, Robert Poole, Sr. (“Poole”), was employed by Defendant/Appellee, Terrell Musgrove Siding And Gutter (“Musgrove”), working to remove siding from a home. On that date, Poole was injured in the course and scope of his employment after a “walk board” that he was standing on collapsed, resulting in injuries to his left foot.

On June 17, 1999, Poole filed a Disputed Claim For Compensation with the Office of Worker’s Compensation against Terrell, and its insurer, Louisiana Workers’ Compensation Corporation (“LWCC”), on the basis that his wage benefits had been terminated or reduced on July 1, 1999. |3 Following a trial on October 16, 2000, the trial court determined that Poole had, in fact, been injured in the course of his job but that he was not totally and permanently disabled. The trial court further determined that Poole was entitled to supplemental earnings benefits, as well as the payment of medical expenses, and that he could return to work in a sedentary capacity. Musgrove was ordered to assist Poole in retraining and identifying jobs that were suitable in accordance with Poole’s restrictions.

Poole filed a Motion For A New Trial that was granted by the trial court on August 17, 2001. On February 7, 2001, the trial court reversed its original judgment,’ and found Poole to be totally and permanently disabled. Terrell took an appeal from the December 20, 2001 judgment to this Court. We vacated and remanded the December 20, 2001 judgment in an unpublished opinion, thereby reinstating the trial court’s original finding that Poole was not totally and permanently disabled. On’remand, on February 9, 2001, the trial court reinstated it original judgment as a final and appealable decision. It is from the February 9, 2001 judgment that Poole now appeals.

LAW AND ANALYSIS

In his lone assignment of error, Poole asserts that the trial court erred in finding that he was not totally and permanently disabled as a result of the June 9, 1997 accident.

In claiming a total disability, whether temporary or permanent, the plaintiff must prove his inability to engage in any gainful occupation, Lwhether or not the same or similar to that customarily engaged in at the time of injury. The plaintiff may rely on medical and lay testimony. Once the trial court has made factual findings as to disability and the length thereof, those determinations are entitled to .great weight and are not to be disturbed except upon a showing of manifest error.

We first note that Musgrove and the LWCC do not dispute that Poole was injured in the course and scope of his employment with Terrell. We therefore next consider the evidence presented to the trial, court regarding the extent of Poole’s injury, and to what degree Poole has sustained permanent disability. The case was submitted to the trial court on the basis of depositions, as well as evidence pertaining to Poole’s medical treatment and vocational evaluations.

After the accident, Poole treated with Dr. Kenneth Adatto, a specialist in orthopedic surgery. Dr. Adatto testified in his deposition that he first saw Poole in August 1998, in regard to a fractured ankle and heel in Poole’s left foot. By the time of the initial consultation, Poole had already had screws surgically implanted into his foot to facilitate repair of the fracture. Dr. Adatto testified that Poole basically wanted a second opinion about whether anything else could be done to enhance his recovery. Dr. Adatto noted that at the time of the consultation, Poole’s fracture had healed.

After referring Poole tó Dr. Rodriguez, Dr. Adatto concluded that “another surgery would not make [Poole] any better,” and that Poole “would always have problems.” Dr. Adatto said that he informed Poole Rthat he recommended no further surgery, but that his office continued to follow through with Poole until April of 1999, monitoring Poole for bone infection, and trying him on pain management.

Dr. Adatto testified that on January 14, 1999, he advised Poole that Poole should “find a lighter job which did not require walking or standing.” Specifically Dr. Adatto noted that Poole could “do a desk job where he does not have to stand or walk all day long.”

Dr. Adatto was questioned about his office visit notes for Poole and the phrase he had written, “Permanent total disability.” Dr. Adatto clarified:

Permanent total disability of that foot and ankle. He [Poole] has about twenty to twenty-five percent anatomical disability because of that foot and ankle, and then he cannot stoop, walk, climb, or stand for any prolonged periods. He has a disability of the foot and ankle. It prevents him from doing some other things. I mean, the least little thing, no matter who you are, you have a ten percent disability.

Dr. Adatto further testified that Poole was not totally disabled from all employment.

Poole’s deposition was also entered into evidence. In his deposition, Poole testified that he had a fifth grade education and could read, write, and to a certain extent, count money. Poole stated that following the accident, he underwent foot surgery with Dr. Donatto, after which he sought treatment with Dr. Adatto.

Poole further testified that he met with vocational consultant, Jeffrey Carlisle, who identified several jobs for Poole to pursue. Poole indicated that out of three possible job openings listed in the first letter he received from Carlisle, he applied for two of the positions. From a second letter from Carlisle that Poole received, Poole indicated that he applied for sixj^ut of seven positions listed. Upon further examination, however, Poole admitted that he had only applied for one of the positions. The record contains letters from several different potential employers that Poole was sent to, each indicating that the position Poole had inquired about had already been filled. Poole testified that he did not think that he could do a majority of the jobs that Carlisle recommended. In response to a question about whether Poole would want a job where he could sit as needed, he responded affirmatively.

LSA-R.S. 23:1221(2)(c), pertaining to worker’s compensation disability benefits provides:

(c) For purposes of .Subparagraph (2)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subpar-agraph (2)(b) of this Paragraph, compensation for permanent total disability shall be awarded only if the employee proves by. clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including, but not limited to, any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such- employment or self-employment.

On appeal, Poole, who was 48 at the time of trial, asserts that the trial court erred in failing to find him permanently disabled, arguing that prior to his injury he was only able to work at manual, labor jobs, and that he is presently “too old to be retrained educationally to be able to handle jobs requiring reading, writing, simple mathematics, etc.” In support of this contention, Poole cites to the case of Comeaux v. City of Crowley.

| yin Comeaux, the Louisiana Supreme found that, considering the plaintiffs physical deficiencies and his age, work experience, and educational inadequacies, it was not an error to consider him to be permanently disabled, after an attempt at a successful rehabilitation failed. In that case, the plaintiff, Comeaux, was a fifty year old male with an eighth or ninth grade education, and the vocational expert assigned to his case was of the opinion that Co-meaux was vocationally unemployable in any occupation.

The Supreme Court reasoned:

[Wjhile lack of education alone is not sufficient to establish permanently, totally disabled, lack of education combined with lack of ability to be educated should not serve as a bar to permanently, totally disabled status. Anthony v. Georgia Pacific Corp., 589 So.2d 47 (La.App. 1st Cir.1991), writ denied, 594 So.2d 895 (La.1992)(rejecting argument that it was error to consider employee’s lack of education and low intellectual capacity coupled with physical limitations resulting from back injury in determining permanently, totally disabled status).

We find the facts in the present case to be distinguishable from those in Comeaux, however. Although Poole reportedly only attended school through the fifth grade, there is nothing in the record to support a finding that he has unsuccessfully undergone rehabilitation, or that he is otherwise unable to undergo retraining because of other factors such as his age or prior education.

After a review of the record, we cannot say that the trial court’s finding that Poole was hot totally and permanently disabled was manifestly erroneous. Poole’s own treating physician, Dr. Adatto, testified that Poole could work at jobs that do not require walking or standing for long periods of time. Dr. Adatto also testified unequivocally that Poole was not totally | ^disabled from all employment. This medical testimony was unrefuted at trial. Further, Poole himself admitted that, if he could find a job where he could sit as needed, he could conceivably find employment.

Finally, Poole also asserts that the trial court erred in failing to award penalties and attorney’s fees, arguing that Musgrove and LWCC’s unreasonable actions have placed him on supplemental earning benefits without cause. In light of our previous holding that Poole is not permanently disabled, we find this assignment to be without merit.

Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . Poole v. Terrell Musgrove Siding & Gutter, 02-489 (La.App. 5 Cir. 10/29/02), 829 So.2d 675.

      . LSA-R.S. 23:1221(1).

      . Simpson v. S.S. Kresge Co., 389 So.2d 65 (La.1980).

      . Tassin v. Cigna Ins. Co., 583 So.2d 1222, 1225 (La.App. 3rd Cir.1991).

      . 2001-0032 (La.7/3/01), 793 So.2d 1215.


author: I ¿THOMAS F. DALEY, Judge.

text:
    Robert Allen DERRICK v. YAMAHA POWER SPORTS OF NEW ORLEANS.
    No. 03-CA-184.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 19, 2003.

      Clarence McDonald Leland, Brandon, MS, for PlaintiffiAppellant.
    J. Thaddeus Westholz, Hulse & Wanek, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and SUSAN M. CHEHARDY.
   I ¿THOMAS F. DALEY, Judge.

Claimant, Robert Derrick, appeals the trial court’s denial of his workers’ compensation claim. The trial court made specific findings that claimant was not a credible witness, that no second accident occurred, and that his claim was prescribed. Accordingly, the trial court dismissed Derrick’s disputed claim for workers’ compensation with prejudice. This appeal followed.

In his First Assignment of Error, Derrick claims that the trial court erred in finding that his claim for permanent partial disability benefits had prescribed. Second, he argues that the trial court erred in finding that there was no second injury. Third, he argues that the court erred in not awarding supplemental earnings benefits. After a thorough review of the record, we affirm the trial court’s judgment.

Derrick was employed at Yahama Power Sports of New Orleans on February 11, 1999, in the finance and insurance department, which involved arranging financing for customers. He was working at the store 'after hours when he was shot in the right hand by an unknown assailant. He had surgery that placed hpins in the hand to set a broken bone. The pins were removed in April of 1999. Yamaha paid Derrick’s medical expenses and weekly benefits until March 18,1999, when he was released by his surgeon, Dr. Juan Escobar, to return to light duty work. He did not return to work at Yamaha, but instead moved to Mississippi to his parents’ home and then worked for Southland Mazda in Natchez, Mississippi.

Derrick filed a Form 1008 Disputed Claim for Compensation on March 31, 2000. Therein, he alleged permanent partial disability of his hand, due to the gunshot wound of February 12, 1999. The matter was ultimately set for trial. On November 9, 2001, Yamaha filed a Peremptory Exception of Prescription, alleging that the matter was prescribed under LSA-R.S. 23:1209, because the Form 1008 was filed more than one year after the last payment of benefits.

On December 26, 2001, Derrick filed an Amended Disputed Claim for Compensation, alleging that he had been unable to earn 90% of his pre-injury wages and thus was entitled to Supplemental Earnings Benefits. He also alleged that the surgery to fuse the bones in his hand had failed and that Ms condition had degenerated to the point that he was unable to find employment due to his total disability. He alleged that he was totally disabled due to the condition of his hand combined with a pre-existing disability to his arm from a previous injury.

On March 12, 2002, Yamaha filed a Motion for Summary Judgment, incorporating the Exception of Prescription and expanding the matter to allege that claimant had violated LSA-R.S. 28:1208 by making willful misrepresentations concerning the development, or lack thereof, of his injury in order to obtain the benefits sought in his untimely-filed 1008 Petition. The misrepresentations were made, Yamaha argued, in an affidavit by Derrick dated January 12, 2002, and in deposition testimony two weeks later, alleging for the first time a second injury to his hand in May, 1999. This alleged second injury took place at Derrick’s home |4when he struck his hand on a kitchen counter while trying to kill a spider. Allegedly this accident caused a nonunion of the bones in his hand, causing him great pain and swelling.

The Exception of Prescription was de-med and the matter proceeded to trial on June 26, 2002. Defendant reurged the exception of prescription. The trial court accepted post-trial memoranda from the parties. Judgment in favor of defendant, finding Derrick’s claim prescribed, was entered on August 2, 2002. Claimant thereafter moved for a devolutive appeal, which was granted.

The appellate court’s standard of review in a workers’ compensation case is governed by the manifest error or clearly wrong standard. This standard precludes setting aside a trial court’s or a jury’s finding of fact in absence of manifest error or unless it is clearly wrong. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. The reviewing court is compelled to review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. Wise v. H.B. Zachary Co., 00-3 (La.App. 5 Cir. 4/25/00), 760 So.2d 500.

In this case, the following evidence was presented at trial:

Derrick sustained a gunshot wound while in the course and scope of his employment with Yamaha on February 11, 1999 and was paid disability benefits through March 18, 1999. Derrick filed a Disputed Claim on March 31, 2000, seeking permanent partial disability payments.

LSA-R.S. 23:1209(A) provides:

A. In case of personal injury, including death resulting therefrom, all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed as provided in Subsection B of this Section and in this Chapter. Where such payments have been made in any case, the \ñlimitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of benefits payable pursuant to R.S. 23:1221(3) this limitation shall not take effect until three years from the time of making the last payment of benefits pursuant to R.S. 23:1221(1), (2), (3), or (4). Also, when the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident. [Emphasis added].

Though it appears that Derrick’s claim has prescribed on its face, Derrick, citing Roy v. Ruth’s Chris Steak House, Inc., 525 So.2d 630 (La.App. 3 Cir.1988), first argues that because he did not receive a packet of information from the Office of Worker’s Compensation (“OWC”), he was ignorant of his rights. Derrick concludes that pursuant to the doctrine of contra non valentum, prescription of his claim should have been suspended. At trial, the parties stipulated that the Louisiana Department of Labor, OWC, did not possess the original or copies of the First Report of Injury for the accident at issue, and therefore, no informational materials were sent to Derrick by the OWC. Conversely, Yamaha argues that there is no statutory requirement that would bar an employer from asserting a prescription defense amid allegations that it did not forward a First Report of Injury to the OWC.

In Spruiell v. Ludwig, this Court recounted the law on the doctrine of contra non valentem agere nulla currit praes-criptio:

A judicially created exception to the running of liberative prescription is afforded by the doctrine of contra non va-lentem agere nulla currit praescriptio, (prescription does not run against one who is unable to act). The four recognized situations where the doctrine applies to prevent the running of prescription are:
(1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action;
|r(2) where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting;
(3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action;
(4) where the cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant.

The fourth category, commonly known as the discovery rule, provides that prescription commences on the date the injured party discovers or should have discovered the facts upon which his cause of action is based. Hence, prescription does not accrue. It does not run against one who is ignorant of the facts upon which his cause of action is based, as long as such ignorance is not willful, negligent, and unreasonable. The plaintiff further bears the burden of showing why prescription has not run when the face of the petition reveals that the action is prescribed.

Derrick argues that Yamaha, in allegedly not sending a First Report of Injury to the OWC, constructively prevented him from knowing about his cause of action. Derrick further argues that, to him, his cause of action was not known or reasonably knowable. Yamaha asserts, however, that such an assertion is unreasonable in light of the fact that Derrick consulted with one attorney four months prior to the one-year anniversary date of the shooting, and a second attorney the month of the one-year anniversary date.

Louisiana courts have held in regard to contra non valentem that a cause of action becomes reasonably knowable to a plaintiff at the time that legal counsel is sought. Accordingly, in this case, we find no merit in the Derrick’s assertion that the cause of action was not knowable within the one year prescription date.

In his Second Assignment of Error, Derrick argues that thé trial court erred in failing to find his petition was timely because it was filed within one year of a |7second alleged injury to his hand. Citing LSA-R.S. 23:1209 and the case of Stewart v. Hospitals Affiliates International, Inc. of Baton Rouge, 404 So.2d 944 (La.1981), Derrick asserts that the second accident should be regarded as a development of the initial injury, and that suit was properly filed within two years of the initial injury.

Derrick asserts that in May of 1999, while living in Natchez, Mississippi, he hit and re-injured his hand on the edge of a counter top while trying to brush aside a spider. Derrick concedes that he never sought medical attention after the incident, claiming that he did not know that he could obtain workers’ compensation for the injury, and did not think that his insurance would cover treatment. On November, 11, 2000, however, Derrick did see Dr. Howard Clark, a general practitioner in Mississippi. Dr. Clark’s report makes no mention of second injury to Derrick’s hand, though he did diagnose a “non-union fracture of the right fourth metacarpal.” Dr. Clark concluded his letter by assigning a 75% disability to the Derrick’s right hand. In his deposition, however, Dr. Clark admitted that he had not reviewed the new AMA guidelines regarding impairment ratings, and that if he had, his rating would likely be lower. It is also clear from the deposition testimony that the purpose of this visit was for disability evaluation, not treatment of an injury.

Derrick did not seek any medical treatment following the alleged second accident, until the time he saw Dr. Clark in November of 2000. Thereafter, he did not seek any medical treatment until he underwent an independent medical examination by Dr. Eric R. George on April 5, 2001. Derrick explained that he did not think his new insurance would cover a preexisting condition, he did not know that it might be covered under workers’ compensation, and that given that his main complaint was pain, which would be treated with pain medication that Derrick did not believe in, he didn’t see a doctor for his hand.

lain the history recorded by Dr. George, there is no mention of a second injury to Derrick’s hand. At trial Dr. George testified that, other than the initial gunshot wound, Derrick never provided information about a subsequent injury to his hand. Dr. George testified it was possible that Derrick could have informed him about a subsequent injury to the hand at the time of examination, but that it would have been unusual for such information not to have made it into the report.

Dr. George also noted that Dr. Clark’s diagnosis of non-union of the bones was made by pushing on Derrick’s hand, not by x-ray or other similar diagnostic tool. Dr. George did not believe that such manual manipulation alone was enough criteria to make a diagnosis of non-union. He also testified that it was extremely rare for a non-union of bone to heal without treatment. At the time of his examination of claimant, Dr. George found that the fracture was healed.

The existence of a second injury to his hand was not disclosed by Derrick in his petition, nor was it revealed in Derrick’s discovery responses. The record shows that the issue of a possible second injury was not revealed until after Yamaha had filed its Exception of Prescription. Derrick argued that he had not asserted the defense of prescription until late in the lawsuit because he “did not know the exact date when his benefits terminated” and that “there was no reason for him to mention the second injury in the first pleading.”

In its August 2, 2002 judgment, the trial court made a specific finding that Derrick was “not a credible witness” and that “there was no second injury to [Derrick’s] right hand.” As we noted in Smith v. Radisson Suite Hotel New Orleans, 650 So.2d 333 (La.App. 5 Cir.1995):

The trial court’s determinations as to whether the worker’s testimony is credible and whether the worker has discharged his or her burden of proof are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error. Bruno v. Harbert International, Inc., et al., 593 So.2d 357 (La.1992).
|aIn our determinations of this case, we are bound by the following principles:
When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a fact finder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989). (Citations omitted).

In this case, after a review of the record, we cannot say that the trial court’s assessment of Derrick’s credibility and the resulting determination that a second accident did not occur is manifestly erroneous. Accordingly, we find Derrick’s First and Second Assignments of Error to be without merit.

Finally, Derrick argues that the trial court erred in finding that he was not entitled to Supplemental Earning Benefits (SEBs). LSA-R.S. 23:1221(3) provides that SEBs shall be paid “for injury resulting in the employee’s inability to earn wages equal to ninety percent or more of wages at time of injury.”

Claimant bears the initial burden of proving by a preponderance of the evidence that a work related injury prevents him from earning ninety percent or more of his pre-injury wages. Where the claimant has been released to light duty work and refuses his employer’s offer of light duty work at the same wage and hours, he is not entitled to SEB. Fusilier v. Slick Const. Co., 94-11 (La.App. 3 Cir. 6/1/94), 640 So.2d 788 (cites omitted).

In this case, Yamaha offered evidence that Derrick’s treating physician, Dr. Juan Escobar, informed Derrick on March 12, 1999, that Derrick was able to return 110to light duty as of that date. On March 16, 1999, Yamaha sent registered letters to two addresses for Derrick informing him that he could return to work on light duty on March 22, 1999. The return receipt for both letters indicated that they had been received at the respective addresses, one of which was his parents’ address in Mississippi, though Derrick opined that the signature was not his mother’s.

At trial, Derrick testified that he did not return to work at Yamaha because he was afraid to stay in New Orleans after the shooting because he was fearful that the shooter would believe Derrick could identify him. He testified that he explained this to his boss, Mr. Beier, in a telephone call, when he resigned. He denied ever receiving the certified letter from Yamaha, offering him light duty, that was mailed to his parents’ home, though he testified that he did receive flowers from Yamaha at his parents’ home while he was recovering.

Mr. Karl Beier, co-owner of Yamaha Sports, testified that they sent Derrick two certified letters offering him light duty, on March 16, 1999. He said that it was always his impression that Derrick was coming back to work, until Derrick informed Beier’s brother (another co-owner) that he was not.

Immediately after the shooting, Derrick moved to Mississippi, where he got a job at Southland Mazda in Natchez. He worked there for over a year, when he again moved to be closer to his parents, he attested in a sworn affidavit, because his mother was very ill. At the time of trial, he was employed as the general manager of a Toyota dealership in Mississippi.

We conclude that the trial court was correct in denying SEBs. The record shows that Derrick was offered a light duty position at Yamaha, but he refused to return to work for personal reasons.

The record additionally shows that Derrick was able to earn at least 90% of his earned income at Yamaha at his next job, which was at Southland Mazda in Natchez. Derrick’s W-2s from 1998 and 1999 were introduced, as was a 1099 l^from 1999. Mr. Karl Beier explained that Derrick earned money on a commission basis, but was paid on a draw basis, which meant that he was advanced money on draw that he later paid back via commissions on financing he arranged for purchasers. Mr. Beier testified that the 1999 1099 form included advances on commissions that Yamaha had made to Derrick on draw, that Derrick never paid back with new sales, thereby having the effect of paying. ■Derrick money he had not yet earned.for sales that he had not yet made. When the adjusted figures are compared to the amounts Derrick earned at his successive jobs, the evidence shows that Derrick was able to earn 90% or more of his income at Yamaha and thus is not entitled to SEBs. Though the evidence suggests that Derrick did not earn this much at jobs he took after the one at Southland, his reasons for leaving each job were not related to his hand injury.

Accordingly, we affirm the trial court’s judgment.

AFFIRMED

      . 568 So.2d 133 (La.App. 5 Cir.1990).


author: | .MARION F. EDWARDS, Judge.

text:
    Francis J. CARROLL and his Wife Yvonne M. Carroll v. SEQUA CORPORATION, Sabine Towing & Transportation Co., Inc., Retirement Sea-Going Employees Licensed & Unlicensed and the Prudential Ins. Com. of America.
    No. 03-CA-273.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 19, 2003.

      Pat M. Franz, Michael Baham, Metairie, LA, for Appellants.
    Edward F. Harold, Keith M. Pyburn, Jr., Lawrence J. Sorohan, New Orleans, LA, for Appellee, Sequa Corporation, et al.
    Harry S. Hardin, III, Corinne G. Hufft, New Orleans, LA, for Appellee, The Prudential Ins. Com. of America.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS and SUSAN M. CHEHARDY.
   | .MARION F. EDWARDS, Judge.

Plaintiff-appellants Francis J. Carroll and Yvonne M. Carroll appeal a judgment sustaining exceptions of lack of subject matter jurisdiction. ' For the reasons to follow, we reverse and remand the matter for further proceedings.

In 1984, Sabine Towing Corporation began the process of terminating one of its pension plans. It utilized the assets of that plan to purchase individual life annuities, from Prudential Life Insurance Company, for all participants in order to fund their benefits on an individual basis. Francis Carroll was a participant in Sabine’s retirement plan in 1984, and took a disability early retirement effective January 1, 1985. At that time, Carroll elected to designate his wife, Yvonne, as his beneficiary should she survive him. Sabine was acquired by Chromalloy American Corporation, which was in turn acquired by defendant/appellee Sequa Corporation. The Sabine/Chromalloy pension plan was ultimately terminated in October, and Mr. Carroll received his first payment from the Prudential annuity in April 1986. Prudential subsequently asked Mr. Carroll to execute another beneficiary designation, which he did.

lain 1992, Mr. Carroll alleged that he received a letter from Prudential that there might be no survivor annuity. At that time, he began to inquire whether such a survivor spouse benefit existed, and according to his petition, has repeatedly sought to obtain any document wherein he may have elected a single life annuity. He additionally sought written confirmation that Mrs. Carroll was entitled to a monthly benefit after his death. Unable to receive a satisfactory response from the insurers, Mr. Carroll filed, in the Twenty-Fourth Judicial District Court, a Petition For Declaratory Judgment To Clarify Future Rights Under Retirement Plan. The petition prayed that the court declare that Mrs. Carroll is entitled, under the terms of the Plan, to a monthly benefit following the death of her husband. Reasonable attorney fees and costs were also requested.

Prudential filed Exceptions of No Cause of Action and Prescription, as well as a Motion for Summary Judgment. Sequa filed Exceptions of Lack of Subject Matter Jurisdiction and Prescription. Following a hearing, the court maintained the exception of lack of subject matter jurisdiction and dismissed the case. It did not reach the other issues. It is from this judgment that the Carrolls appeal.

The Carrolls contend that subject matter jurisdiction is conferred by 29 U.S.C. § 1132, which reads in pertinent part:

(a) Persons empowered to bring a civil action. A civil action may be brought—
(1) by a participant or beneficiary—
(A) for the relief provided for in subsection (c) of this section, or
(B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan ...
(e) Jurisdiction.
(1) Except for actions under subsection (a)(1)(B) of this section, the district courts of the United States shall have exclusive jurisdiction of civil actions under this title brought by the Secretary or by a participant, beneficiary, fiduciary, or any person referred to in section 101(f)(1) [29 USCS § 1021(f)(1)]. State courts of competent jurisdiction and district courts of the United States shall have concurrent jurisdiction of actions under paragraphs (1)(B) and (7) of subsection (a) of this section.

|4It is the Carrolls’ position that ERISA grants concurrent jurisdiction with the federal courts for their action. Prudential and Sequa aver that the claims arise solely out of another ERISA provision that provides for exclusive federal jurisdiction. Specifically, 29 U.S.C. § 1370 reads in part:

§ 1370. Enforcement authority relating to terminations- of single-employer plans
(a) In general. Any person who is with respect to a single-employer plan a fiduciary, contributing sponsor, member of a contributing sponsor’s controlled group, participant, or beneficiary, and is adversely affected by an act or practice of any party (other than the corporation) in violation of any provision of section 4041, 4042, 4062, 4063, 4064, or 4069 [29 USCS §§ 1341,1342,1362,1363,1364,1369], or who is an employee organization representing such a participant or beneficiary so adversely affected for purposes of collective bargaining with respect to such plan, may bring an action—
(1) to enjoin such act or practice, or
(2) to obtain other appropriate equitable relief (A) to redress such violation or (B) to enforce such provision.

Section (c) grants exclusive jurisdiction of these actions to the federal courts.

Section 1370 involves an action by a participant who is adversely affected by an act in- violation of certain ERISA provisions. • In the petition filed herein, the Carrolls, seek to clarify, via a declaratory judgment, whether or not Mrs. Carroll is entitled to benefits should her husband predecease her. Such finding requires an examination and construction of the policies and/or annuities, together with any applicable waivers or other related documents. As we understand the action, the Carrolls suggest that upon a possible finding that no such spousal benefits exist in favor of Mrs. Carroll, they would be adversely affected. At that time, an action under 29 U.S.C. § 1370 becomes viable. Until that time, the matter appears to be one of contract interpretation.

The present action falls more properly under 29 U.S.C. § 1132(a)(1)(B), and according to that statute, there is concurrent jurisdiction with the state courts. Therefore we find that the trial court erred in granting the exception of lack of 15subject matter jurisdiction. We reverse and remand for further proceedings. Costs are assessed to appellees.

REVERSED AND REMANDED.


author: J^SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Kinley ROGERS.
    No. 03-KA-276.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 19, 2003.

      Margaret Smith Sollars, Louisiana Appellate Project, Thibodaux, LA, for Appellant, Kinley Rogers.
    Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District Court, Parish of Jefferson, Terry M. Boudreaux, Alan D. Alario, II, Assistant District Attorneys, Gretna, LA, for Appellee, State of Louisiana.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS and SUSAN M. CHEHARDY.
   J^SUSAN M. CHEHARDY, Judge.

On April 23, 2002, the Jefferson Parish District Attorney’s Office filed a bill of information charging the defendant, Kinley Rogers, with distribution of cocaine, a violation of La. R.S. 40:967(A). The defendant pled not guilty at arraignment. After a one-day trial, a 12-person jury found the defendant guilty as charged on August 27, 2002.

On September 19, 2002, the trial judge sentenced the defendant to 10 years of imprisonment at hard labor. Immediately thereafter, the State filed a multiple offender bill of information alleging defendant is a third felony offender with prior convictions for distribution of cocaine and possession of cocaine. After being advised of his rights, defendant admitted the allegations of the multiple bill. Thereafter, the trial judge vacated the original sentence and sentenced defendant to 20 years at hard labor in conformity with the agreement between the State and the defendant. That same day, defendant filed a motion for appeal, which the trial judge granted. On October 7, 2002, defendant filed a motion to reconsider sentence, which the trial judge subsequently denied.

| ¡Facts

On February 22, 2001, Detective William Sandino of the Kenner Police Department was working undercover attempting to purchase narcotics in areas of Kenner about which the police department had received complaints. Detective Sandino was driving a vehicle equipped with audio and video recording devices.

Detective Sandino was driving west on 31st Street when he saw the defendant walking along the street. Detective Sandi-no stopped his vehicle near the defendant, rolled down the window, and asked defendant where he could get “two twenties.” According to Detective Sandino, “two twenties” is street slang for two $20.00 rocks of crack cocaine. Defendant instructed Detective Sandino to drive around the corner. After Detective Sandino rounded the corner, defendant entered the passenger’s side of Detective Sandino’s vehicle and gave Detective Sandino directions to a house on Lexington Avenue.

After the defendant told the detective to pull over, the detective gave him $40 to buy crack cocaine. Defendant gave Detective Sandino a crack pipe to hold as “collateral.” The defendant then exited the car and told Detective Sandino to drive around the block. After Detective Sandino returned, the defendant approached the driver’s side of the car, leaned in and spit two off-white rock-like objects into the detective’s car. The videotaped and audiotaped recordings of these events were entered into evidence and were played for the jury at trial.

After the transaction, Detective Sandino met with his sergeant and turned over the off-white rock-like objects, the tapes and the crack pipe. Detective Sandino testified that he field-tested the off-white rock-like objects, which tested positive for cocaine. According to Charles Krone of the Jefferson Parish Crime Lab, who was accepted as an expert forensic scientist at trial, the off-white rock^ike4 objects, which tested positive for the presence of cocaine, weighed .3 grams in total weight.

Detective Sandino testified that he prepared a warrant for defendant’s arrest, and defendant was subsequently arrested on the outstanding warrant by another police officer. At trial, Detective Sandino positively identified defendant as the person who sold him crack cocaine.

At trial, defendant testified that he was a crack addict and that he had convictions for distribution of cocaine and possession of cocaine. On direct examination, defendant stated that he sold Detective Sandino the cocaine because he wanted a “hit” of crack. On cross-examination, however, he denied that he sold any drugs to Detective Sandino.

Defendant admitted that he told the officer to drive around the corner after Detective Sandino approached him and that he rode in his car. Defendant testified that he did not sell drugs. He said that he ultimately kept Detective Sandino’s money, threw his own crack pipe into Sandino’s vehicle, and told Sandino to “get out [his-jface.”

Defendant explained that he knew that Detective Sandino was a police officer because they had attended school together. Defendant did not know, however, know that Sandino was working undercover that day. Defendant further stated that the police officers in the neighborhood frequently harassed him. According to the defendant, the police had been trying to “throw [him] away” for some time.

After hearing the testimony and reviewing the evidence, the jury found defendant guilty as charged of distribution of cocaine. This appeal follows.

In his first assignment of error, defendant argues that the evidence was insufficient to support his conviction “when the defendant showed by a preponderance of the evidence that he was entrapped into participating in this | ^alleged drug transaction, and proof beyond a reasonable doubt was not established.” Defendant contends the evidence was insufficient because Detective Sandino’s testimony contained contradictions and inconsistencies. He further contends that “there was no credible proof that a distribution involving Mr. Rogers even occurred.” Finally, he contends that his conviction is wrongful because he established an entrapment defense. The State responds that the evidence was sufficient to support defendant’s conviction and that defendant failed to meet his burden of proving entrapment.

The constitutional standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) requires that a conviction be based on proof sufficient for any rational trier of fact, viewing all of the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. See, State v. Bishop, 01-2548, p. 4 (La.1/14/03), 835 So.2d 434, 437.

The defendant was convicted of violating LSA-R.S. 40:967(A), distribution of cocaine. Pursuant to that statute, the State was' required to prove that defendant knowingly or intentionally distributed cocaine. See, State v. Raines, 00-1941, p. 7 (La.App. 5 Cir. 5/30/01), 788 So.2d 635, 640, unit denied, 01-1906 (La.5/10/02), 815 So.2d 833.

In support of his contention that Detective Sandino’s testimony was unreliable, defendant points to discrepancies between the officer’s testimony, the police report and the arrest warrant affidavit prepared by the officer. At trial, Detective Sandino acknowledged that the police report stated that defendant gave him one off-white object when he testified that defendant gave him two objects. Additionally, Detective Sandino admitted that he stated in the affidavit that the ^defendant flagged him down, although Sandino testified he pulled up next to the defendant as he walked down the street.

Detective Sandino acknowledged that there were errors in the documents. Detective Sandino explained that he handled over 300 narcotics cases annually and stated that “cut and paste” errors sometimes occur in the documents. Detective Sandi-no testified that he would never intentionally mislead a judge by placing false information in an affidavit.

The jury also heard the defendant’s account of the events. His testimony internally conflicted in that he initially admitted on direct examination to selling crack cocaine to Detective Sandino, but, on cross examination, denied that he did so. On cross-examination, defendant insisted that he only handed the officer a crack pipe, not crack cocaine, when the officer returned from driving around the block.

In addition to contradictions within his testimony, the taped recordings of the events contradict defendant’s version of the events. Even though the sound on the audio and video tapes is somewhat distorted, the recordings reflect that Detective Sandino asked the defendant, in street jargon, whether he had two rocks of crack cocaine. Shortly thereafter, defendant entered the passenger’s side of the officer’s car and directed the officer to drive to a specific location. A few minutes later, defendant told the officer to pull over, and defendant exited the car. The defendant then told the officer to drive around the bock. As Sandino drove away, the audio tape reflects that he remarked that the defendant had left his crack pipe as “collateral.”

|7When Detective Sandino returned to where he had dropped off the defendant, the defendant approached the driver’s side of the officer’s car. The audio tape reflects that the defendant told the officer to “open [his] hand.” Once the transaction was concluded, Detective Sandino drove away. Detective Sandino states on the audiotape that the defendant took crack cocaine from his mouth and gave it to Detective Sandino. Further, defendant let him keep the crack pipe.

In reaching the guilty verdict, the jury obviously credited the State’s evidence, including Detective Sandino’s testimony, instead of the defendant’s testimony. In State v. Deruise, 98-0541, p. 26 (La.4/3/01), 802 So.2d 1224, 1243, cert. denied, 534 U.S. 926, 122 S.Ct. 283, 151 L.Ed.2d 208 (2001), the Louisiana Supreme Court reiterated that “[t]he trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any ■witness.” It is not the function of the appellate court to assess credibility or reweigh the evidence. State v. Hotoph, 99-243, p. 12 (La.App. 5 Cir.11/10/99), 750 So.2d 1036, 1045, writs denied, 99-3477 (La.6/30/00), 765 So.2d 1062, and 00-0150 (La.6/30/00), 765 So.2d 1066. Under the circumstances, we find that a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt that the defendant was guilty of distribution of cocaine.

Defendant also contends that he was entrapped into committing the offense. Entrapment is a defense that arises when a law enforcement official or a person acting in cooperation with such an official for the purpose of obtaining evidence of a crime, originates the idea of the crime and then induces the person to engage in conduct constituting the offense when that person is not otherwise disposed to do so. State v. Brand, 520 So.2d 114, 117 (La.1988); State v. Petta, 98-745, pp. 7-8 (La.App. 5 Cir. 2/10/99), 729 So.2d 29, 32, writ denied, 99-0692 (La.9/3/99), 747 So.2d 533, cert. denied, 528 U.S. 1125, 120 S.Ct. 956, 145 L.Ed.2d 830 (2000).

|sThe entrapment defense is composed of two elements, which are (1) an inducement by a state agent to commit an offense, and (2) the lack of defendant’s predisposition to commit the offense. The defendant has the burden of proving by a preponderance of evidence that a state agent induced him to commit a crime. Once the defendant meets this burden, the State has the burden of proving beyond a reasonable doubt that the defendant was predisposed to commit the crime prior to government involvement. State v. Lewis, 01-1084, p. 6 (La.App. 5 Cir. 3/13/02), 815 So.2d 166, 171, writ denied, 02-1053 (La.11/15/02), 829 So.2d 424.

It is not entrapment, however, if the officers or agents have merely furnished a defendant who is predisposed to commit the crime the opportunities to do so. As stated by the Louisiana Supreme Court, “In entrapment cases, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal.” State v. Brand, 520 So.2d at 116; State v. Petta, supra.

On appeal, contentions of entrapment are reviewed according to the constitutional standard set out in Jackson v. Virginia, supra; State v. Petta, 729 So.2d at 32. The first inquiry is whether defendant proved by a preponderance of the evidence that he was induced to commit the crime. If so, the next inquiry is whether the State adduced evidence of the defendant’s predisposition to commit the crime such that a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have concluded that it was the defendant’s predisposition to commit the crime, rather than the State’s inducement that caused the defendant’s conduct. State v. Petta, supra.

In the present case, we find that the defendant failed to establish that Detective Sandino induced him to distribute cocaine. At trial, defendant testified that the reason he sold the cocaine was because Detective Sandino “laid there and came for me and I wanted me a hit.” Further, there is considerable evidence that the defendant was predisposed to sell cocaine. The defendant’s predisposition was Ralso demonstrated by the fact that defendant willingly entered the officer’s car, accepted the officer’s money, directed him to a specific location, and returned with crack cocaine shortly thereafter.

Defendant argues that his case is similar to Jacobson v. U.S., 503 U.S. 540, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992), in which the United States Supreme Court concluded that the defendant was entrapped into committing the charged offense. In Jacobson, the government made repeated efforts over a period of two and one-half years to explore the defendant’s willingness to order sexually explicit photographs of children through the mail. Jacobson, 503 U.S. at 544, 112 S.Ct. at 1538.

Ultimately, the defendant ordered a catalog depicting child pornography from a fictitious company created by a governmental agency. Since the prosecution conceded the defendant had been induced, the focus was on the defendant’s predisposition to commit the crime. The Jacobson court concluded that the prosecution had failed to prove beyond a reasonable doubt that the defendant was independently predisposed to commit the charged offense. Jacobson, 503 U.S. at 549-553, 112 S.Ct. at 1541-1543.

The Jacobson court commented on undercover narcotics operations:

Thus, an agent deployed to stop the traffic in illegal drugs may offer the opportunity to buy or sell drugs and, if the offer is accepted, make an arrest on the spot or later. In such a typical case, or in a more elaborate “sting” operation involving government-sponsored fencing where the defendant is simply provided with the opportunity to commit a crime, the entrapment defense is of little use because the ready commission of the criminal act amply demonstrates the defendant’s predisposition. See United States v. Sherman, 200 F.2d 880, 882 (1952).

U503 U.S. at 549-550, 112 S.Ct. at 1541.

We find that the Jacobson court’s comment accurately describes the situation at hand. Rather than inducing defendant, the evidence indicates that Detective San-dino furnished an opportunity for the defendant to distribute crack cocaine. In contrast to Jacobson, it appears that it was the defendant’s own predisposition caused him to readily commit the present offense. Further, defendant, not Detective Sandino, directed the sequence of the events leading up to the drug transaction, unlike Jacobson, who was repeatedly approached by the government..

Based on the foregoing, we conclude that a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt, that the defendant’s predisposition, independent of the State’s actions, caused him to distribute cocaine and, thus, rejected his defense of entrapment.

In his second assignment of error, defendant argues that the Trial Court erred by imposing an unconstitutionally excessive sentence. Defendant contends that his 20-year sentence as a third felony offender is excessive and was imposed with inadequate reasons. According to La. C.Cr.P. art. 881.2(A)(2), a “defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.” This Court has applied this provision when a defendant is sentenced pursuant to a sentencing agreement made in exchange for a stipulation to a multiple offender bill. See, State v. Miller, 02-729, p. 7 (La.App. 5 Cir. 12/30/02), 836 So.2d 614; State v. Steele, 01-1414, pp. 19-20 (La.App. 5 Cir. 9/30/02), 829 So.2d 541, 553; State v. Wilson, 00-1378, p. 7 (La.App. 5 Cir. 6/27/01), 789 So.2d 766, 769-789; State v. Stanley, 98-920, p. 10 (La.App. 5 Cir. 2/10/99), 729 So.2d 33, 37, writ denied, 99-0614 (La.6/25/99), 745 So.2d 1186; State v. Francis, 98-811, p. 8 (La.App. 5 Cir.1/26/99), 727 So.2d 1235, 1240, writ denied, 99-0671 (La.6/25/99), 746 So.2d 597.

In the present case, when the defendant stipulated to the habitual offender bill of information, he signed and initialed a form entitled “WAIVER OF RIGHTS-PLEA OF GUILTY MULTIPLE OFFENDER — LA R.S. 15:529.1.” This form provides the sentencing range defendant faced, 20 to 60 years of imprisonment at hard labor and specifies the sentence defendant would receive, 20 years imprisonment, if he “pled guilty” to the habitual offender bill. Furthermore, the colloquy before the stipulation between the trial judge and the defendant clearly indicates that the defendant knew that his stipulation would result in a sentence of 20 years. Defendant is precluded, therefore, from challenging the habitual offender sentence because this sentence was imposed in conformity with an agreement between the State and the defendant set forth in the record before he stipulated to the habitual offender bill.

Finally, the record was reviewed for errors patent according to La. C.Cr.P. art. 920. We note that the trial judge failed to completely advise the defendant of the prescriptive period for filing post-conviction relief in accordance with La.C.Cr.P. art. 930.8 because the judge failed to specify when the relevant period began to run. We remand, therefore, for the trial court to send appropriate written notice to defendant of prescriptive period for post-conviction relief, and to file written proof in the record that defendant received the notice within ten days of the rendering of the opinion. State v. Newman, 01-1066, p. 11 (La.App. 5 Cir. 4/10/02), 817 So.2d 180, 186.

Further, we note that the trial judge failed to stipulate that defendant’s enhanced sentence would be without benefit of probation or suspension of sentence |12as required by La. R.S. 15:529.1(G). Pursuant to La. R.S. 15:301.1, the sentence is deemed to contain these restrictions. See, State v. Segura, 02-280, pp. 11-12 (La.App. 5 Cir. 9/30/02), 829 So.2d 587, 592, writ denied, 02-2696 (La.3/28/03), 840 So.2d 569. Accordingly, no corrective action is needed.

AFFIRMED; REMANDED FOR COMPLIANCE WITH LA. C.CR.P. ART. 930.8.

      . In connection with the stipulation, defendant acknowledged that he understood that he would receive, as a third felony offender, a sentence of 20 years imprisonment.

      . The September 19, 2002 transcript reflects that the defendant also pled guilty to simple burglary, which was not related to this case.

      . In his brief, defendant addressed the issue of entrapment before addressing the sufficiency of the evidence. Because entrapment is an affirmative defense, we will address the sufficiency of the evidence before discussing the entrapment defense.

      . He testified that, because of the demands of his job, he frequently completed his paperwork late at night or early in the morning. Further, when asked to explain "cut and paste errors,” he testified that, in order to save time doing his paperwork on his computer, he frequently uses an "old” document as a template and fills in the information from the new case to create a new document.

      . Although the commitment/minute entry indicates that the trial judge accurately informed defendant of this time period, the transcript does not. Generally, when there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Parker, 01-0958, p. 8 (La.App. 5 Cir. 2/13/02), 812 So.2d 86, 91, writ denied, 02-1058 (La.2/21/03), 837 So.2d 624.