author: | JAMES L. CANNELLA, Judge.

text:
    Glenn J. FARRELL v. Christopher PIERRE and First American Insurance Company.
    No. 02-CA-1136.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 8, 2003.

      Kenneth E. Pickering, Pickering & Co-togno, New Orleans, LA, for Appellant.

      Andrew A. Lemmon, Lemmon Law Firm, LLC, Hahnville, LA, for Appellee.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY and SUSAN M. CHEHARDY.
   | JAMES L. CANNELLA, Judge.

In an automobile accident case, the Defendant, Christopher Pierre, appeals from a judgment in favor of the Plaintiff, Glenn Farrell. We affirm.

On October 27, 2000, the Plaintiff was traveling in the eastbound lane of Highway 631 on his way to a local business. When he reached his destination, he used his turn signal and stopped prior to executing the turn, .because of construction on the roadway which narrowed the entryway. He also saw a car that he thought was coming out of the parking lot. The Defendant, in his car behind the Plaintiff, failed to see the Plaintiff stop and struck the Plaintiffs van. He continued around the Plaintiffs car before stopping. After the collision, the Defendant repeatedly drove forward and back, as though he was attempting to get away. The Plaintiff got out of his car to talk to him before he could flee. As he stepped on the running board of the van, the Defendant’s car backed up striking the Plaintiffs driver’s side door knocking the Plaintiff down. The Plaintiff fell on his left knee. The Defendant shouted that his brakes were not working right, jumped out of his car and ran away. The police found him later in nearby Boutte, Louisiana. His statement of the events was noted in the accident report.

laThe Plaintiff filed suit against the Defendant and his insurer, First American Insurance Company (First American) on June 20, 2001. A bench trial was held on May 28, 2002. The Defendant did not appear at trial. No reason was given by counsel who was representing him and First American. Prior to calling the first witness, the parties agreed to take Dr. Earl J. Rozas’ deposition at the end of the testimony, in lieu of live testimony, even though the doctor was available to testify that day. The case was held open for that purpose. The trial judge gave the Plaintiff 60 days to submit the deposition to him.

Dr. Rozas’ deposition testimony was taken June 17, 2002 and received by the trial judge on July 19, 2002. He rendered a decision on July 24, 2002 in favor of the Plaintiff in the amount of $55,000 in damages plus $750 for Dr. Rozas’ expert witness fee. The trial judge allocated $46,115 for general damages, $1,035 for past medical expenses and $7,850 for future surgery. First American satisfied its policy limits of liability of $10,000 of the judgment, plus interest and costs.

The Defendant appeals the judgment. He first contends that the Plaintiff failed to prove causation of the injury because Dr. Rozas’ deposition testimony was submitted untimely and/or was not introduced into evidence. Next, he asserts that the trial judge should have applied a negative inference against the Plaintiff for failing to call the passenger in his van who was an eyewitness. Third, the Defendant asserts that the Plaintiff failed in his burden of proof. Fourth, he argues that the trial judge erred in his credibility determination. Last, the Defendant contends that the award is excessive.

MEDICAL PROOF — TIMELINESS OF DEPOSITION

The Defendant claims that the Plaintiff failed to prove his injury and its causation because the trial judge erred in considering Dr. Rozas’ deposition, filed 52 days after the trial. He asserts that the deposition was filed untimely and/or was |4not introduced into evidence. Pierre asserts that the deposition was filed untimely because it was submitted longer than 7 to 10 days after the live testimony concluded. He cites the discussion at the beginning of the trial during which the parties agreed to depose the doctor after the trial in lieu of his live testimony. During that discussion, the Plaintiff stated that he would obtain the deposition within 7 to 10 days. However, at the conclusion of the trial, the trial judge gave the Plaintiff 60 days to submit the deposition, during which time he would consider the case continued. This was reflected in the minutes. Counsel for Defendant did not object.

The Defendant also argues that the case was deemed “submitted” fifteen days after the trial under La.Sup.Ct.R.G. § 2, Rule 13:4207.1 and that under La.R.S. 13:4207, the trial judge was mandated to render a judgment within 30 days from the time that the trial was concluded or the matter “submitted.” According to these legal requirements, the deposition had to be submitted by June 12, 2002 and the judgment rendered by July 12, 2002. Thus, the Defendant concludes that the trial judge erred in considering the deposition because the ease had been automatically deemed submitted on the fifteenth day after the trial ended.

R.S. 13:4207 states that “in all cases taken under advisement” a judge shall render judgment within 30 days from the time the cases are submitted for their decision. La.Sup.Ct.R.G. § 2, Rule 13:4207.1 states:

(a) When Submitted. A case or other matter shall be considered as fully submitted for decision to the trial judge, and should be decided, immediately upon the conclusion of trial or hearing, and judgment signed expeditiously thereafter.
In an exceptional case when the record has been left open upon the conclusion of trial or hearing for the filing of testimony by deposition and/or documents, such depositions and/or documents shall be filed within fifteen days and the case or matter shall be considered as fully submitted, and should be decided, immediately after such filing or the lapse of fifteen days, whichever occurs sooner.

| ¡/Under the Supreme Court rules and R.S. 13:4207, the trial judge should have required the deposition to be filed ■within 15 days of the trial, and should have rendered the decision within 30 days. However, in Dragon v. Schultz, 97-664, p. 4 (La.App. 5th Cir.1/14/98), 707 So.2d 1274, 1276, we held that, although La.R.S. 13:4207 requires a trial judge to render a judgment in a case taken under advisement within 30 days of submission of the case, it does not provide that a judgment rendered later than that is invalid. “Rather, La.R.S. 13:4210 provides the penalty for violating La.R.S. 13:4207 and it is solely a penalty to the judge and not invalidity of the judgment.” Id. The events here are analogous. We decline to punish the Plaintiff in this case for the trial judge’s violation of a rule that is designed, inter aha, to 'prevent hardship to the litigants that may result when the rendition of a judgment is unjustifiably delayed. That would be a particularly unfair result when counsel for the Defendant acquiesced in the matter. Here, no one was prejudiced by the delays set by the trial judge and the trial judge rendered a judgment within five days of receiving the deposition. Counsel for the Defendant did not object at trial when the trial judge gave the Plaintiff a longer period than permitted by the Supreme Court rule, or at any other time, although he had ample opportunity to do so. Furthermore, the Defendant participated in the deposition without demurrer. We find that the Defendant waived any objection to the delay. We further find that the parties agreed that the deposition would be accepted into evidence when the trial judge received it. Thus, we find that the deposition was properly considered by the trial judge.

NEGATIVE INFERENCE

The Defendant argues that the trial judge should have drawn an adverse inference against the Plaintiff when the Plaintiff failed to call his passenger as a witness at trial.- The Defendant also contends that an adverse presumption from his absence does not apply when the Plaintiff fails to make a prima facie case.

| fiWe explained the adverse presumption rule in Dennis v. Allstate Ins. Co., 94-305, p. 5 (La.App. 5th Cir.10/25/94), 645 So.2d 763, 765, as follows:

When a defendant in a civil case can by his own testimony throw light upon matters at issue which are necessary to his defense and peculiarly within his own knowledge, and he fads to go upon the witness stand, the presumption is raised, and will be given effect, that the facts as he would have then do not exist.

In Taylor v. Entergy Corp., 01-0805, p. 15 (La.App. 4th Cir.4/17/02), 816 So.2d 933, 941, the court explained:

The “uncalled witness” rule has been defined as an adverse presumption that arises when “a party has the power to produce witnesses whose testimony would elucidate the transaction or occurrence” and fails to call such witnesses. 19 Frank L. Maraist, Louisiana Civil Law Treatise: Evidence and Proof, § 4.3 (1999). A party’s failure to call such witnesses gives rise to the presumption that “the witnesses’ testimony would be unfavorable to him.” Id. Although the advent of modern, liberal discovery rules has been recognized to limit this rule, it “remains viable.” Id. Indeed, this court has recognized this rule applies when, as in this case, witnesses with peculiar knowledge of material facts pertinent to the case are not called. We have also noted that “[t]he court may consider this presumption as it would any other relevant evidence in the case.” [Citations omitted]

In this case, the Plaintiff testified to the facts of the accident. The Defendant did not appear at trial to contradict his testimony, nor were there any other witnesses that disputed the Plaintiffs version. The Plaintiff was not required to produce the passenger to support his contention that he fell when the car door struck him causing him to injure his knee. His testimony was uncontradicted by the evidence. Thus, the adverse presumption rule does not apply in this case.

CAUSATION

The Defendant contends that the trial judge committed manifest error in concluding that the Plaintiffs injury was caused by the accident. He argues that the trial judge erred in crediting the testimony of the Plaintiff and Dr. Rozas.

On appellate review, the court’s function is to determine whether the findings of the trier of fact were clearly wrong or manifestly erroneous. Matta v. Snow, 01-760, p. 7 (La.App. 5th Cir.1/15/02),807 So.2d 934, 938; Brown v. Seimers, 98-694, p. 6 (La.App. 5th Cir.1/13/99), 726 So.2d 1018, 1021, writ denied, 99-0430 (La.4/1/99), 742 So.2d 556; Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Matta, 01-760 at p. 7, 807 So.2d at 938; Brown, 98-694 at p. 6, 726 So.2d 1018 at 1021; Rosell, 649 So.2d at 844. The issue to be resolved by the reviewing court is not whether the factfin-der was right or wrong, but whether its conclusion was a reasonable one. Matta, 01-760 at p. 7, 807 So.2d at 938; Brown, 98-694 at p. 6, 726 So.2d 1018 at 1021; Stobart v. State, Through DOTD, 617 So.2d 880, 882 (La.1993).

In Calcagno v. Kuebel, Fuchs Partnership, 01-691, p. 11 (La.App. 5th Cir.11/14/01), 802 So.2d 746, 752, we stated:

A plaintiff in a personal injury lawsuit must prove causation by a preponderance of the evidence. Dabog v. Deris, 625 So.2d 492 (La.1993). The plaintiff is aided in this endeavor by the legal presumption that a medical condition producing a disability resulted from a preceding accident if: 1) the injured person was in good health prior to the accident; 2) the disabling condition manifested itself shortly after the accident; and, 3) medical evidence indicates that there is a reasonable possibility of a causal connection between the accident and the disabling condition. Id at 494, citing Housley v. Cerise, 579 So.2d 973, 980 (La.1991).

According to the Plaintiff, after the collision, the Defendant drove back and forth in an effort to get away. The Plaintiff was worried that he would flee before he could get the Defendant’s license number. As the Plaintiff exited the van, he stepped on the running board. At that moment, the Defendant backed up his car, striking the driver’s side door. Although the Defendant contends that the Plaintiffs testimony was inconsistent, the Plaintiff stated in variou s portions of his |stestimony that he fell. He also stated that he “twisted” his knee “on the running board.” The Plaintiffs testimony was not inconsistent or contradictory.

The Plaintiff further testified that his knee was problematic, but he did not report it to his family doctor, Dr. David Vial, until his scheduled visit for his high blood pressure on November 11, 2000. He waited to seek medical help because he thought the knee pain would get better. The doctor’s reports show that the Plaintiff reported injuring the right knee in an accident and that the knee was swollen when he examined it. Dr. Vial x-rayed the knee, prescribed medications and placed the knee in a brace. At the next visit in December of 2000, the knee had not improved and Dr. Vial recommended injections if it did not get better. Rather than continue treatment with Dr. Vial the Plaintiff decided to consult Dr. Rozas, an orthopedic surgeon, who had treated him in the past for other conditions. However, because of his poor financial condition, he did not see Dr. Rozas until April of 2001. The Plaintiff explained that he is disabled, fives on social security disability income and does not have health insurance. In January of 2001, the Plaintiffs car was struck by a truck that pushed his car onto the shoulder of the road as it attempted to turn. The Plaintiff denied any injuries from that accident.

Dr. Rozas diagnosed a complex tear to the medial meniscus. He stated that this type of injury is caused by a twisting motion and that it was more probable than not that the October 27, 2000 accident described to him by the Plaintiff caused the injury. Dr. Rozas has treated the Plaintiff for many years for other orthopedic problems. He supported the Plaintiffs claim that the Plaintiff did not have a history of left knee injury prior to the accident. Although the Plaintiff delayed seeking treatment from both doctors, he explained that he waited to report the injury to Dr. Vial when he went for his blood pressure checkup because he thought the injury would heal without medical treatment. He waited to see Dr. Rozas until several months later because of his poor financial condition. His explanations |swere plausible. In addition, his symptoms were consistent with a complex tear and they manifested shortly after the accident.

The evidence on causation was not conflicting and the testimony in this regard was credible. In addition to the absence of contrary evidence, the presumption of causation applies in this case and the Defendant did not rebut the presumption. Thus, we find that the trial judge did not err in finding that the accident herein caused the injury to the Plaintiffs knee.

AMOUNT OF DAMAGES

The Defendant contends that the damage award is excessive and that the trial judge abused his discretion in assessing court costs against him. The standard for the review of damage awards is whether, after an articulated analysis of the facts, the appellate court finds that the trial judge abused his great discretion. Matta, 01-760 at p. 8, 807 So.2d at 989; Theriot v. Allstate Ins. Co., 625 So.2d 1387, 1340 (La.1993). This determination is made with consideration to the individual circumstances of the injured plaintiff. Matta, 01-760 at p. 9, 807 So.2d at 939; Theriot, 625 So.2d at 1340. After an analysis of the facts and circumstances peculiar to the particular case and the particular plaintiff, an appellate court may conclude that the award is inadequate (or excessive). Matta, 01-760 at p. 9, 807 So.2d at 939; Theriot, 625 So.2d at 1340. Only then does the appellate court resort to prior awards, and then only for the purpose of determining the highest or lowest point which is reasonably within that discretion. Matta, 01-760 at p. 9, 807 So.2d at 939; Theriot, 625 So.2d at 1340.

Dr. Rozas testified that the accident caused a complex tear to the medial meniscus of Plaintiffs left knee. The injury involved “multiple tears of the entire posterior and posterior lateral aspect of the medial meniscus.” The doctor recommends arthroscopic surgery to repair the damage. The surgery is generally successful and the recovery period for this surgery is not long. The Plaintiff will | inhave a 5% disability to the left leg after the surgery. The Plaintiff testified that his leg has been painful since the accident and that he was unable to afford the surgery prior to trial.

The Plaintiff suffered a complex injury to the left knee necessitating surgery. He has suffered pain and swelling from October of 2000 to the date of trial, a period of 19 months, and he will continue to have pain until he has the surgery. Based on the evidence, we find no abuse of discretion in the amount of damages awarded for the Plaintiffs injury. We further find no abuse of the trial judge’s discretion in the assessment of trial costs.

Accordingly, the judgment of the trial court is hereby affirmed. Costs of this appeal are to be paid by the Defendant.

AFFIRMED.

      . The Defendant is represented by counsel for First American.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Emile PIERCE.
    No. 02-KA-1267.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 8, 2003.

      Jane L. Beebe, Gretna, LA, for Appellant.
    Paul D. Connick, Jr., District Attorney, Terry Boudreaux, Assistant District Attorney, Gretna, LA, for Appellee.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY and CLARENCE E. McMANUS.
   | JAMES L. CANNELLA, Judge.

Defendant, Emile Pierce, appeals from his conviction of armed robbery and his enhanced sentence, as a third offender, to life in prison at hard labor, without benefit of parole, probation or suspension of sentence. For the reasons which follow, the conviction, finding as a third felony offender and enhanced sentence are affirmed and the case is remanded.

The Jefferson Parish District Attorney filed a bill of information charging the Defendant with armed robbery, a violation of La. R.S. 14:64. The Defendant pled not guilty at arraignment, but later withdrew the plea and entered a plea of not guilty and not guilty by reason of insanity. The Defendant also requested the appointment of a sanity commission in connection with his plea. The trial judge granted the request. The Defendant also filed a motion to represent himself, which the trial judge granted, and an attorney was appointed as co-counsel to assist him. After hearing, the trial judge denied the Defendant’s motions to suppress the evidence and statement. Because the State withdrew the identification, the motion to suppress the identification became moot.

LBefore trial on October 16, 2001, the State moved to strike any reference to an insanity defense and the Defendant agreed, based on the physician’s report. The case proceeded to trial.

At trial, the following facts came out. At approximately 8:00 a.m. on July 21, 1999, the Defendant robbed Joan Hargis in the parking lot near the New Horizons Computer Center on Veterans Boulevard. She testified that she was going to a morning class at the computer center and was standing next to her car gathering her belongings, when the Defendant approached her. The Defendant addressed Ms. Hargis, but she did not hear what he said. Ms. Hargis said, “Excuse me?” to which the Defendant replied, “Give me your purse.” Ms. Hargis testified that she thought the Defendant was kidding, but then she saw that he had a knife in his hand. The Defendant thrust the knife toward her and said, “Don’t do anything crazy, lady, give me your purse.” While still holding the knife, the Defendant grabbed Ms. Hargis’ purse and ran toward a grey car. As the Defendant fled, Ms. Hargis yelled for the Defendant to “at least leave [her] license.” The Defendant leaped into the passenger’s side of the car and someone else drove the car away. The police were called and Deputy Louis Munsch of the Jefferson Parish Sheriffs Office (JPSO) responded. Ms. Hargis gave Deputy Munsch the license plate number of the get-away-car and provided a description of the robber.

There were two other witnesses in the parking lot, Anita Hamilton and Fred Jensen, who both testified at trial. Ms. Hamilton testified that she saw the Defendant approach Ms. Hargis as she exited her car. She initially believed that the Defendant and Ms. Hargis were engaged in a domestic disturbance, because they were “arguing.” However, Ms. Hamilton then saw the Defendant “rip” the purse from Ms. Hargis and get into a car. Ms. Hamilton said that she saw “something” in the Defendant’s hand, but she was not sure what the object was.

|4Mr. Jensen, called as a defense witness, testified that he did not see a weapon, that Ms. Hargis was scared and did not want to release her purse. According to Mr. Jensen, the Defendant “was holding something up to her” and was “threatening her,” but he did not see what the object was.

Through a computer check, Deputy Munsch learned that the get-away car was registered to Emile and Tonya Pierce. About an hour after the robbery, Detective Willie Jones of the JPSO arrived and Deputy Munsch informed him of the morning’s events. Detective Jones testified that he went to several of the Defendant’s last known addresses, but failed to locate the Defendant. In the early morning hours of the next day, July 22, 1999, the police ultimately tracked the Defendant to a motel in West Baton Rouge Parish. Before traveling to Baton Rouge, Detective Jones had obtained a warrant for the Defendant’s arrest. After the Defendant was advised of his rights, he consented to a search of his motel room and car, which was parked at the motel. Nothing was recovered from the car. A purse matching the description of Ms. Hargis’ purse was found in the hotel room.

The Defendant was interviewed at the West Baton Rouge Parish Sheriffs Office where he gave a statement to Detective Jones. In the statement, which was recorded and transcribed, the Defendant acknowledged that he had been advised of his rights and that he wished to waive those rights. The Defendant told Detective Jones that he had robbed Ms. Hargis, but denied that he was armed with a knife. The Defendant said that the driver of the car was not his wife, but a woman whom he had met a few hours before the robbery. Both the transcript of the statement and the tape were admitted into evidence at trial and the recorded statement was played for the jury.

At trial, the Defendant testified that on February 2, 1999 he was paroled from Angola State Penitentiary (Angola) after serving nine years for an armed robbery conviction. The Defendant admitted that he had robbed Ms. Hargis |Ron July 21, 1999, but said that he was not armed. Further, he said that he had committed the robbery under the influence of cocaine. According to the Defendant, he was out all night preceding the robbery and he had spent all of his money. The Defendant said that he did not threaten Ms. Hargis or even touch her, but just grabbed her purse. After the robbery, he dropped off his female companion and bought gas with one of Ms. Hargis’ credit cards. Later that day, he told his wife he had done “something stupid” and he went to obtain more drugs.

At trial, Defendant acknowledged making the statement and said that he honestly answered the questions. The Defendant admitted that, on April 17, 1990, he pled guilty to two counts of armed robbery and one count of attempted armed robbery. The Defendant also admitted that he pled guilty to simple escape from prison. However, the Defendant testified that he developed a conscience after spending time at Angola and was a “changed man” when he was released from Angola.

Part of the Defendant’s theory of the case was that the district attorney’s office had inflated the charge to armed robbery because of his past criminal history. To this end, the Defendant called Peter Post, an inmate at Angola, who said that he had been classified as a “Code Six” career criminal when he was 17 years old even though he had no prior convictions. After Mr. Post’s cross-examination, the State introduced certified copies of his prior convictions for simple burglary and armed robbery. Mr. Post stated, however, that he did not believe he had any prior convictions since appeals were pending.

In rebuttal, the State presented the testimony of Lieutenant Bruce Sanders of the JPSO who explained that an offender is considered to be a career criminal after five felony arrests and/or two felony convictions.

Following trial, the jury found the Defendant guilty as charged. Prior to sentencing, the Defendant filed motions for a new trial and for post-verdict | ^judgment of acquittal, which the trial judge denied. Thereafter, the trial judge sentenced the Defendant to imprisonment at hard labor for 50 years. The Defendant made an oral motion to reconsider sentence, which the trial judge denied. Immediately thereafter, the Defendant filed a motion for appeal, which the trial judge granted.

The same day, the State filed a habitual offender bill of information against the Defendant, alleging that he was a third felony offender, which the Defendant denied. The Defendant filed a motion to quash which was denied. After the hearing on May 14, 2002, the trial judge found the Defendant to be a third felony offender, as alleged. On May 28, 2002, the trial judge vacated the original sentence and sentenced the Defendant to life imprisonment at hard labor without benefit of probation, parole or suspension of sentence. It is from this conviction and enhanced sentence that the Defendant appeals. On appeal, the Defendant assigns only one error.

In his sole assignment of error, the Defendant argues that the evidence was insufficient to support his conviction for the offense of armed robbery. More particularly, the Defendant argues that the evidence was insufficient, by the victim’s testimony alone, to prove that he was armed with a dangerous weapon, to wit, a knife. We disagree.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 448 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. Juluke, 98-0341 (La.1/8/99), 725 So.2d 1291; State v. Williams, 99-223 (La.App. 5th Cir.6/30/99), 742 So.2d 604.

17The Defendant was convicted of one count of armed robbery, which is defined in La. R.S. 14:64(A) as follows:

Armed robbery is 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.

This Court has recognized that the production of a weapon is not necessary in an armed robbery prosecution where the State’s witnesses can establish, through their observations at the crime scene, all the elements of the offense beyond a reasonable doubt, including the existence and use of a dangerous weapon. See, State v. Cotton, 94-384 (La.App. 5th Cir.11/16/94) 646 So.2d 1144, 1146.

At trial, Ms. Hargis testified that the Defendant held a knife when he demanded that she surrender her purse to him. Further Ms. Hargis acknowledged that she believed that the Defendant used force or intimidation when he took her purse. According to Ms. Hargis, the Defendant “pushed the knife out” with his left hand and “snatched” her purse with his right hand. Ms. Hargis specifically testified that she saw the blade of the knife and that she was scared.

Ms. Hamilton’s testimony corroborates Ms. Hargis’ testimony with regard to the manner in which the Defendant took the purse, although she testified that the Defendant had something in his left hand, but that she could not see what it was. Further, Ms. Hamilton testified that the Defendant clutched the purse in his right hand while he ran to the car with the purse. Even Mr. Jensen, called as a defense witness, testified that he thought he saw a knife, but he was not sure. However, Mr. Jensen saw the Defendant’s hand “sticking out” and the victim appeared to be “threatened.”

The Defendant admitted that he took Ms. Hargis’ purse, but denied that he threatened her or that he was armed with a knife. Also, the Defendant said that he grabbed Ms. Hargis’ purse with both hands.

Isln this case, the jury was presented with conflicting testimony regarding whether the Defendant was armed with a knife. After considering all of the testimony and evaluating the credibility of the witnesses, the jury chose to believe the testimony of Ms. Hargis that the Defendant had a knife when he took her purse. In the absence of internal contradiction or irreconcilable conflicts with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient to support a conviction. State v. Johnson, 00-1552 (La.App. 5th Cir.3/28/01) 783 So.2d 520, 527, writ denied, 01-1190 (La.3/22/02), 811 So.2d 921. “The trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness.” State v. Deruise, 98-0541 (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). It is not the function of the appellate court to assess credibility or reweigh the evidence. State v. Hotoph, 99-243 (La.App. 5th 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 robbed Ms. Har-gis while he was armed with a knife. This assignment of error has no merit.

The record was reviewed for errors patent. La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5th Cir. 1990).

The transcript of the enhanced sentencing reflects that the trial judge failed to completely advise the Defendant of the prescriptive period for filing post-conviction relief, in accord with La.C.Cr.P. art. 930.8, as required. In cases such as this, we remand the case to the district court with instructions to send appropriate written notice to the Defendant of the correct statement of the law | ^regarding the prescriptive period for post conviction relief and to file written proof in the record that the Defendant received the notice. State v. Hines, 02-397 (La.App. 5th Cir.9/30/02), 829 So.2d 530, 540.

We found no other errors.

Accordingly, for the reasons set out above, the Defendant’s conviction for armed robbery, the finding that he is a third felony offender and his enhanced sentence to life in prison at hard labor, without benefit of parole, probation or suspension of sentence, are affirmed. The case is remanded to the district court to provide proof in the record of the Defendant’s receipt of appropriate notice of the prescriptive period for post conviction relief, under La.C.Cr.P. art. 930.8.

CONVICTION, FINDING AS A THIRD FELONY OFFENDER AND SENTENCE AFFIRMED; CASE REMANDED.


author: |,SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. David HEBERT.
    No. 02-KA-1252.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 8, 2003.

      Bruce G. Whittaker, Louisiana Appellate Project, New Orleans, LA, for Defendants Appellant, David Hebert.
    Paul D. Connick, Jr., District Attorney, 24th Judicial District Parish of Jefferson, State of Louisiana, Thomas J. Butler, Terry M. Boudreaux, Assistant District Attorneys/Appellate Counsel, Donald A. Rowan, Jr., Frank A. Brindisi, Assistant District Attorneys/Trial Counsel, Gretna, LA, for Plaintiff-Appellant, The State of Louisiana.

      Panel composed of Judges SOL GOTHARD, MARION F. EDWARDS and SUSAN M. CHEHARDY.
   |,SUSAN M. CHEHARDY, Judge.

David Hebert was convicted of distribution of hydrocodone and distribution of alprazolam on pleas of nolo contendere. He appeals his convictions under State v. Crosby, 338 So.2d 584 (La.1976), challenging the validity of the basis for the search of his home that disclosed the narcotics. We affirm.

On March 23, 2002 the defendant was charged in a bill of information with violation of La.R.S. 40:967(A) by distribution of hydrocodone and violation of La.R.S. 40:969(A) by distribution of alprazolam. He entered a plea of not guilty and filed several pretrial motions, including a motion to suppress his statement and a motion to suppress the physical evidence.

The trial commenced on October 30, 2002 with selection of a twelve-member jury. Outside the jury’s presence, the court heard and denied the motion to dismiss. The trial then proceeded and the State made its opening statement. The defense then orally moved to reopen the motions to suppress and the court granted a second hearing on suppression. The defendant presented additional testimony, but the trial court again denied the motions to suppress.

1 The defendant then withdrew his not guilty plea and entered a plea of nolo contendere, reserving his right under State v. Crosby, 338 So.2d 584 (La.1976), to appeal the trial court’s ruling on the motions. The trial court conducted a plea colloquy and accepted the defendant’s nolo plea. The defendant subsequently was sentenced to two years on home incarceration, to be served concurrently.

FACTS

At the hearing on the motions to suppress, Sergeant Jason Renton testified that on March 23, 2002 he conducted surveillance of 628 Terrace Street as the result of complaints from neighbors regarding possible narcotic activity. He observed that cars would come to the residence and leave after staying a short time. Sergeant Renton believed this activity was related to narcotics trafficking and he requested assistance from Sergeant Bruce Harrison.

When Sergeant Harrison arrived, he and Sergeant Renton decided to conduct a knock-and-talk investigation. Renton knocked on the door of the residence and David Hebert answered. Sergeant Renton advised Hebert that he was conducting a narcotics investigation and Hebert let him inside. Once inside, Renton advised Hebert of his rights and Hebert executed a Rights of Arrestee or Suspects form. Renton explained about the complaints of activity coming and going from the residence and asked to search the house. Renton testified that Hebert appeared startled and told Renton he had a small amount of marijuana. Hebert gave Ren-ton a film canister that had a residual amount of marijuana.

Hebert then signed a consent search form. Sergeant Renton searched the home and found valid prescription pill bottles of Vicodin (hydrocodone) and Xanax (alprazolam). The prescriptions were for the defendant’s wife and had been filled that day. Renton noted, however, that numerous pills were missing from each bottle. He questioned Hebert about the missing pills and Hebert told him he was selling the pills to get through a difficult time. Sergeant Renton then arrested ¿¿Hebert. Hebert subsequently gave a recorded statement, in which he admitted selling his wife’s prescription narcotic drugs.

ASSIGNMENT OF ERROR NUMBER ONE

The trial court’s ruling on the motion in limine was in error.

The defendant argues the trial court erred in denying his motion in limine, in which he sought to exclude all hearsay testimony from the police regarding the reason the police conducted surveillance of the defendant’s home. Specifically, he sought to exclude testimony that the police had received complaints from neighbors regarding narcotics-related activity.

The State claims the defendant did not preserve this issue for appeal because he did not specifically reserve his right to appeal the denial of his motion in limine.

After the denial of the defendant’s motions to suppress the evidence and his statement, the defendant made an oral motion in limine to exclude as hearsay any testimony “from the police officer as to receiving information from an anonymous or confidential ... informant.” The trial court denied the motion in limine.

There followed some discussion about evidence referencing the defendant’s past marijuana arrest. The trial court warned that if such evidence were presented to the jury, it would be grounds for a mistrial. The prosecutor agreed and stated he would not refer to any such evidence. At the end of the discussion, defense counsel was asked by the clerk to clarify what exactly his motion in limine was. Defense counsel responded, “I didn’t want them to make any reference to hearsay evidence as to why the cop was there.”

Trial commenced with the charges being read and the State giving its opening statement'. Prior to giving his opening statement, however, defense counsel advised the court he wished to reopen the motion to suppress to present | ^testimony from the defendant and his wife as to what happened. The jury was removed and the defendant was allowed to present additional evidence on the motions to suppress.

The trial court again denied the motions to suppress. The defendant then withdrew his not guilty pleas and tendered an oral plea of nolo contendere to the charges under Crosby “to allow [the defendant] to appeal his motions today.”

A plea of nolo contendere is equivalent to an admission of guilt and, with the exception of its being inadmissible in a civil trial, is treated as a guilty plea. La.C.Cr.P. art. 552(4); State v. Villarreal, 99-827, p. 4 (La.App. 5 Cir. 2/16/00), 759 So.2d 126, 129, writ denied, 00-1175 (La.3/16/01), 786 So.2d 745. An unqualified guilty plea waives all non-jurisdictional defects in the proceedings prior thereto and precludes review thereof either by appeal or post-conviction relief. State v. Crosby, 338 So.2d 584, 588 (La.1976). A defendant may be allowed appellate review if at the time he enters a guilty plea, he expressly reserves his right to appeal a specific adverse ruling in the case. State v. Cox, 02-0333, p. 5 (La.App. 5 Cir. 9/30/02), 829 So.2d 521, 523-524.

The State asserts that the defendant failed to preserve his right to appeal the ruling on the motion in limine, citing this Courts recent decision in State v. Joseph, 02-717 (La.App. 5 Cir. 1/14/03), 889 So.2d 103. In Joseph, the defendant filed a motion to suppress evidence that was denied. He then filed a motion to exclude expert testimony, which also was denied. The defendant then moved for a continuance and that was denied. All these motions were heard and denied over a two-week period.

1,/rhe day after his motion in limine and motion for a continuance were denied, the Joseph defendant pleaded guilty under Crosby. He executed a Waiver of Constitutional Rights form that stated he was pleading guilty under Crosby; during the plea colloquy, the trial judge noted that the plea was tendered under Crosby. However, at no time during the proceedings did the defendant mention which adverse rulings he sought to reserve for appeal under Crosby. On appeal, the defendant challenged the denial of his continuance or, alternatively, the denial of his motion in limine. This Court concluded that, although the defendant had objected to the rulings on the motion to suppress, the motion in limine and the motion for continuance, the defendant failed to preserve his right to appeal these issues because there was no indication in the record as to which of the rulings, if any, he wanted to appeal under Crosby.

The case before us is distinguishable, however. Here, the trial court ruled on the defendants motions to suppress statement and evidence and motion in limine on the same day. The Waiver of Constitutional Rights form broadly states that the defendant reserves his right to appeal all motions in this case. Further, at the time he entered his Crosby plea the defendant expressly stated he reserved his right to appeal “his motions today.” The record shows that the motions heard on that day were the motions to suppress statement and evidence and motion in limine. Thus, the defendant made known those adverse rulings he wished to appeal, despite failing to identify the motions and rulings specifically. Therefore, we find the defendant preserved his right to appeal the ruling on the motion in limine.

The defendant’s oral motion in limine sought to exclude testimony from the police officers regarding the reason they conducted surveillance on the defendant’s residence, on the grounds it was hearsay.

17Hearsay is an oral or written assertion, other than the one made by the declarant while testifying at the present trial, offered in evidence to prove the truth of the matter asserted. La.C.E. art. 801(A)(1) and (C). Hearsay evidence is not admissible except as otherwise provided by the Louisiana Code of Evidence or other legislation. La.C.E. art. 802; State v. Dyer, 00-1866, p. 14 (La.App. 5 Cir. 4/25/01), 794 So.2d 1, 12.

The testimony of a police officer may include information provided by another individual without constituting hearsay, if offered to explain the course of a police investigation and the steps leading to the defendant’s arrest. State v. Cho, 02-274, pp. 17-18 (La.App. 5 Cir. 10/29/02), 831 So.2d 433, 447. However, the Louisiana Supreme Court has cautioned, “[T]he fact that an officer acted on information obtained during the investigation may not be used as an indirect method of bringing before the jury the substance of the out-of-court assertions of the defendant’s guilt that would otherwise be barred by the hearsay rule.” State v. Broadway, 96-2659 (La.10/19/99), 753 So.2d 801, 809, cert. denied, 529 U.S. 1056, 120 S.Ct. 1562, 146 L.Ed.2d 466 (2000).

In State v. Young, 99-1264, p. 9 (La. App. 1 Cir. 3/31/00), 764 So.2d 998, 1005, the police officer testified that he had received numerous complaints from citizens in the neighborhood that there had been a lot of narcotic traffic on a certain road. On appeal the defendant challenged the testimony as inadmissible hearsay. The court of appeal determined the testimony was not hearsay because the testimony was used to explain the course of the police investigation and why the officer specifically went to the area.

On the other hand, in State v. Thompson, 98-988, p. 6 (La.App. 4 Cir. 1/26/00), 752 So.2d 293, 297, the Fourth Circuit concluded the police officer’s testimony regarding an informant’s tip was inadmissible hearsay. In Thompson, the officer testified that he initiated a narcotics surveillance of the location based Ron information that he had received. The officer then testified that he had been given a first name and a description from the informant and that he confirmed the information given to him. The court of appeal found the officer had gone beyond simply explaining that he had received a tip concerning illegal activity at a certain location which led him to conduct surveillance at that location, when he stated that had he confirmed the first name and description given to him. The court explained that, although the officer did not go into detail concerning the information he had received by telling the jury the name and description, the jury could nevertheless have inferred that the defendant was the person whose first name and description were confirmed by the officer. The court ultimately determined, however, that the erroneous admission of the hearsay was harmless error. Id.

In the present case, Sergeant Jason Renton testified at the motion to suppress hearing that he “received complaints from the neighbors about activity coming — going and coming from the residence, which they believed were narcotics-related.” Sergeant Renton explained that this information led him to conduct surveillance of the residence. This testimony is more similar to the testimony in Young than in Thompson because here the officer’s testimony did not identify the defendant in any way as the person involved in the suspected narcotics trafficking. Rather, Sergeant Renton’s testimony merely explained the course of his investigation and why he went to 628 Terrace Street.

Therefore, Sergeant Renton’s testimony does not constitute impermissible hearsay and the trial court did not err in denying the defendant’s motion in limine to exclude the testimony.

ASSIGNMENT OF ERROR NUMBER TWO

Assigned as error are all errors patent.

As requested by the defendant and following our usual procedure, we reviewed the record for patent errors. 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). We found patent errors that require no correction. However, we shall discuss them for the sake of completeness.

1. Imposition of Single Sentence for Two Convictions

Although the defendant was convicted of two charges, the trial court imposed only one two-year sentence. The trial court must impose a separate sentence for each separate count on which a defendant is convicted. State v. Narcisse, 01-49, p. 9 (La.App. 5 Cir. 6/27/01), 791 So.2d 149, 155, writ denied, 01-2231 (La.6/14/02), 817 So.2d 1152. Although the failure to impose a sentence for each count is considered a patent sentencing error, there is an exception to this general rule:

When the sentences for a conviction on each count would more appropriately be concurrent rather than consecutive, and the term of imprisonment is a reasonable sentence under the circumstances, the single sentence will not affect the substantial rights of the defendant and remand for clarification or resentencing is not necessary.

State v. Batiste, 517 So.2d 371, 373 (La.App. 5 Cir.1987).

If the defendant is convicted of two or more offenses based on the same transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently, unless the court expressly directs that some or all be served consecutively. La.C.Cr.P. art. 883.

In Batiste, supra, the defendant and an accomplice robbed two bank tellers at gunpoint. The defendant pleaded guilty to two counts of armed robbery, but the trial judge imposed a single sentence of 15 years. In upholding the defendants single sentence, this Court obviously determined that the sentences on each count would more appropriately be served concurrently-

ImHowever, in State v. Joseph, 96-187, p. 20 (La.App. 5 Cir. 11/14/96), 685 So.2d 237, 248-249, writ granted in part and remanded for resentencing, 96-2998 (La.5/9/97), 693 So.2d 782, this Court declined to uphold the defendant’s single sentence for his convictions on multiple counts of distribution of cocaine. Instead, we vacated the defendant’s sentence and remanded the matter for resentencing. We found the three offenses involved three separate distinct drug transactions that were not part of a common plan. We concluded the sentences should be served consecutively and each sentence must be imposed separately.

In the present case, the facts presented at the motion hearing indicate the distribution of hydrocodone and of alprazolam were part of a common plan or scheme. Accordingly, the presumption in favor of concurrent sentences arises. The sentencing range for the distribution of hydroco-done is between two and thirty years and the sentencing range for the distribution of alprazolam is not more than ten years. The defendant’s two-year sentence, while light, does not appear unreasonable in light of the facts of the case. Based on the rationale of State v. Batiste, supra, there is no need to remand the matter for clarification or resentencing despite the failure of the trial court to impose separate sentences on the two separate counts for which the defendant was convicted.

2. Failure to Specify Conditions of Home Incarceration

La.C.Cr.P. art. 894.2(C) provides in pertinent part, “The court shall specify the conditions of home incarceration when it imposes such sentence upon the defendant.” The trial court in this case failed to specify the conditions of home incarceration at the time of sentencing. This Court has recognized the failure to comply with this requirement as a patent error and remanded the matter for a hearing regarding the conditions of home incarceration. See, State v. Parent, 01-50, p. 8 (La.App. 5 Cir. 5/30/01), 788 So.2d 685, 690; State v. Loupe, 00-165, p. 5 (La.App. 5 Cir. 8/29/00), 767 So.2d 884, 887.

l^ln this case, the record shows the defendant signed a form entitled Conditions of Watch Patrol Home Incarceration, which sets forth conditions of home incarceration. We conclude this sufficiently informs the defendant of the conditions of his home incarceration and a remand for a hearing regarding the conditions is unnecessary.

For the foregoing reasons, the convictions and sentences are affirmed.

AFFIRMED.

      . The defendant does not appeal the denial of his motions to suppress the evidence or his statement.

        . The defendant executed a waiver of rights form in connection with his plea that indicated the plea was “tendered under St. vs Crosby to allow appeal of all motions in this case.”

      . Writs in State v. Joseph were filed with the Louisiana Supreme Court on February 3, 2003.

      . The police received information from anonymous sources about activity coming and going from the residence.

      . State v. Soco, 94-1099 (La.App. 1 Cir. 6/23/95), 657 So.2d 603.

      . Article 894.2 also requires defendant receive a certificate of the conditions of home incarceration. In State v. Price, 583 So.2d 499 (La.App. 3 Cir.1990), writ denied, 589 So.2d 494 (La.1991), the Third Circuit held that the defendant failed to establish prejudice by not receiving the certificate of conditions because the trial judge had informed defendant of his conditions of home incarceration. The Price court noted that the purpose of a certificate of conditions for home incarceration is to assure that a defendant has adequate knowledge of a special or unusual condition, the violation of which may result in revocation. The same could be argued about the judge informing defendant of the conditions. If defendant signed a written copy of the conditions of home incarceration, he arguably has adequate knowledge of the conditions.


author: UCLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Hung T. VU.
    No. 02-KA-1243.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 8, 2003.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea S. Long, Richard P. Pickens, II, Assistant District Attorneys, Gretna, LA, for the State.
    Jane L. Beebe, Gretna, LA, for defendant-appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   UCLARENCE E. McMANUS, Judge.

Defendant appeals his adjudication and sentence as a fourth felony offender. For the following reasons, we vacate the sentence and remand for further proceedings.

STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

On March 6, 2001, defendant, Hung T. Vu, was charged in a bill of information with the November 30, 2000 operation of a motor vehicle while intoxicated in violation of La. R.S. 14:98(E). This was his fourth such offense. Defendant pled not guilty. Thereafter, he filed a motion to quash the bill of information. In the motion, defendant alleged that the predicate guilty pleas were not knowingly and voluntarily made because he was not aware that the three offenses which were three “first offenses” could be used as a first, second and third offense for the enhancement of the current DWI charge. He also alleged that, in pleading to a third offense DWI, he was not advised of his right to a jury trial and the pleas were made on the same day and therefore should count as one offense for enhancement purposes.

The bill of information specifies three predicate offenses:

Predicate No. 1:

A guilty plea entered on February 16, 2000, under Docket Number S66878, in Division B, Second Parish Court for Jefferson Parish, for an offense that occurred on January 27,1998.

|sPredicate No. 2:

A guilty plea entered on February 16, 2000, under Docket Number S665530, in Division B, Second Parish Court, for Jefferson Parish, for an offense that occurred on February 2, 1998.

Predicate No. 3:

A guilty plea entered on February 16, 2000, under Docket Number S724364, in Division B, Second Parish Court, for Jefferson Parish, for an offense that occurred August 1,1999.

The State offered State’s Exhibit No. 1, which contained the following. In support of the Predicate No. 1 (i.e., Doc. No. 668783), the State offered certified copies of the minute entry of the charges for DWI, first offense, and reckless operation; a copy of the citation; evidence of completion of community service work; a waiver of rights form and a minute entry of the guilty plea and sentence. In support of the Predicate No. 2 (i.e., Doc. No. 665530), the State offered certified copies of the minute entry of the charge for DWI, first offense, and failure to maintain control; a copy of the citation, evidence of completion of community service work and driver’s education, a waiver of rights form and a minute entry of the guilty plea and sentence. In support of the Predicate No. 3 (i.e., Doc. No. 724364), the State offered certified copies of the minute entry of the charges for DWI, first offense, reckless operation, driving with a suspended license and failure to wear a seatbelt; a copy of the citation; evidence of completion of community service work; a waiver of rights form and a minute entry of the guilty plea and sentence. State’s Exhibit No. 1, offered in support of the predicate convictions, also contained a copy of the transcript of the defendant’s guilty plea proceedings taken on February 16, 2000, in Second Parish Court for the Parish of Jefferson.

A review of the colloquy contained in the transcript for the three predicate guilty pleas reveals that the trial judge advised the defendant that he was pleading guilty to “three first offense” DWIs. This fact was thereafter verified by the State. The judge read the charges for each of the three cases to the defendant. The I ¿defendant, upon being questioned by the court, indicated that his attorney had reviewed with him the penalties for “first offense” DWI and also the enhanced penalties for subsequent offenses. The trial judge explained the elements of the offense of driving while intoxicated. He also informed the defendant of his relinquished rights pursuant to his pleading guilty, which included a “bench trial.” The defendant was told the minimum (ten days and $300 fine) and maximum (six months and $1,000 fine) penalties. The judge further explained that the plea could be used against him “as a second, third or greater offense.” Mr. Vu was also informed that the State could utilize offenses as far back as ten years for enhancement purposes and it would not matter if the other offenses occurred before or after any other offense. The trial judge also informed the defendant of the minimum and maximum sentencing exposure for a second offense, third offense and fourth offense. The judge advised the defendant that the State would reduce and dismiss all other charges. The judge questioned the defendant concerning the voluntary nature of the pleas and accepted the guilty pleas as knowing and voluntary. After defendant indicated he was ready for sentencing, the trial judge sentenced the defendant and imposed the following three consecutive sentences.

On Predicate No. 1, (Doc. No. 668785) defendant was sentenced to six months in parish prison, which sentence was suspended and he was placed on one year of active probation. He was also ordered to pay a $700 fine, court costs and to perform 50 hours of community service work. On Predicate No. 2, (Doc. No. 665530) defendant was also sentenced to six months in parish prison, which sentence was suspended and he was placed on one year of active probation. He was also ordered to pay a $400 fine and court costs. Additionally, he was ordered to perform 32 hours of community service work, attend a substance abuse program and driver’s education program. On Predicate No. 3, (Doc. No. 724364) defendant was also sentenced to six months in parish prison, which sentence was suspended (Band he was placed on one year of active probation. Additionally, he was ordered to pay a $700 fine, court costs, and to perform 50 hours of community service work.

In September, 2001, the defendant filed a “Motion to Invoke the New Sentencing Provisions Set forth in Act 1163.” The State filed a “Memorandum in Support of Applying the Sentencing Law in effect at the Time of the Offense.” Following a hearing and taking the matter under advisement, the trial judge denied the motion and advised him that he would be sentenced pursuant to La. R.S. 14:98, prior to its amendment by 2001 La. Acts No. 1163. Defendant objected to the ruling, sought supervisory writs and a stay of the proceedings. On November 2, 2001, this Court denied the writ application. On November 6, 2001, the date set for trial, the defendant entered a plea of guilty as charged to DWI, fourth offense, under State v. Crosby, 338 So.2d 584 (La.1976). His plea conformed with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Defendant reserved the right to appeal the pre-trial rulings on the Motion to Quash and the application of 2001 La. Acts 1163 to his sentencing.

The defendant waived sentencing delays and was sentenced to ten years of imprisonment at hard labor with credit for time served. Five years of the sentence was suspended and the defendant was placed on five years of active probation. Two years of the sentence was ordered to be served without benefit of parole, probation or suspension of sentence. As a condition of probation, defendant was ordered to complete an in-patient treatment program upon his release from prison. He was also prohibited from driving during his probationary period and was ordered to pay a $5,000 fine and court costs.

Defendant filed a motion for appeal, a motion to reconsider sentence and a motion to correct sentence. The sentencing motions were denied. Defendant now appeals his conviction and sentence.

1 «DISCUSSION

Defendant contends that the trial court erred in failing to grant the motion to quash because the predicate pleas used to enhance his current DWI conviction were not knowing and voluntary. He alleges that he pleaded guilty to three “first-offense” DWIs with all pleas being entered on the same day. He argues that the present charge should be a second offense or at most a third offense. He reasons that one of the three charges was a third offense, which is a felony, and he was not advised of his right to a trial by jury during the guilty plea proceedings. The State argues that defendant was incorrect because it is the number of prior convictions (not the sequence thereof) which determines their use for enhancement purposes and that defendant was not entitled to a jury trial. Moreover, the charges were under separate case numbers and were not consolidated for trial purposes.

In Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) the United States Supreme Court emphasized three federal constitutional rights which are waived by a guilty plea: the privilege against self-incrimination, the right to a trial by jury, and the right to confront one’s accusers. Because a plea of guilty waives these fundamental rights of the accused, due process requires that the plea be voluntary and intelligent waiver of known rights in order to be valid. State v. Galliano, 396 So.2d 1288, 1290 (La.1981). Thus, the record of the plea must show that the defendant was informed of these three fundamental rights and knowingly and voluntarily waived the same. State v. Gardette, 00-38, p. 5 (La.App. 5 Cir. 5/17/00), 760 So.2d 1262, 1264 (citing State v. Galliano, supra).

Whenever a misdemeanor guilty plea will be used as a basis for actual imprisonment, enhancement of actual imprisonment or conversion of a subsequent misdemeanor into a felony, it is incumbent upon the trial judge to inform the defendant that by pleading guilty he waives these three enumerated federal constitutional rights. The trial judge must insure that the accused has a full ^understanding of what the plea connotes and of its consequences. State v. Guzman, 99-1528, p. 9 (La.5/16/00), 769 So.2d 1158, 1162, n. 1. While it is preferable for the trial judge to conduct a colloquy to ascertain the validity of the plea, such a colloquy may not be indispensable, as long as the record contains some other affirmative showing to support the plea. State v. Halsell, 403 So.2d 688, 690 (La.1981); State v. Gardette, 760 So.2d at 1264-1265.

A presumption of regularity attaches to prior convictions in multiple-offender DWI cases and the burden is on the defendant to show the prior plea is constitutionally deficient. State v. Carlos, 98-1366, p. 2 (La.7/7/99), 738 So.2d 556, 559. See also, Lackawanna County D.A. v. Goss, 532 U.S. 394, 403, 121 S.Ct. 1567, 1574, 149 L.Ed.2d 608 (2001) (presumption of regularity of final judgments).

The Louisiana Supreme Court, in State v. Carlos, supra, found that the burden shifting principles set forth in State v. Shelton, 621 So.2d 769 (La.1993) applied to the recidivist portion of the DWI statute. LSA-R.S. 14:98. Thus, under Carlos, when a defendant collaterally attacks a prior DWI guilty plea by a motion to quash, the State bears the initial burden of submitting sufficient evidence of the existence of the prior guilty plea and that the plea was counseled. State v. Carlos, 738 So.2d at 556, 559. If the State meets this burden, the defendant must then produce affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. State v. Carlos, supra. If the defendant is able to do this, then the burden of proving the constitutionality of the plea shifts to the State to prove the constitutionality of the plea. Id.

At the hearing on the Motion to Quash, the State offered State’s Exhibit No. 1 in globo, which contained a “perfect transcript” of the guilty plea proceeding for the three predicate offenses, as well as “pen-packs” for each offense. Thus, the IsState satisfied the initial burden under Carlos of showing the existence of the three guilty pleas and that the pleas were counseled. It also satisfied the burden of proving the constitutionality of the pleas. After the State satisfied its initial burden, the defendant failed to carry his burden under Carlos to affirmatively show an infringement of his rights or a procedural irregularity in the taking of the plea. Defendant first alleged the pleas were not knowing and voluntary, because he entered pleas to three “first offense” DWIs, on the same day, such that the guilty pleas should only be considered one offense for enhancement purposes. This argument is without merit.

In State v. Woods, 402 So.2d 680, 682 (La.1981), the defendant was originally charged with DWI, fourth offense and went to trial for DWI, third offense after the charges were reduced. The two predicate convictions resulted from two guilty pleas entered the same day and defendant argued that the two convictions should be treated as one conviction for enhancement purposes, such that the present DWI, third offense should be reduced to DWI, second offense. The Louisiana Supreme Court rejected the argument and considered the language of the DWI statute, particularly LSA-R.S. 14:98 D, which at the time provided as follows:

On a third conviction, regardless of whether the third offense occurred before or after an earlier conviction, the offender shall be imprisoned with or without hard labor for not less than one year nor more than five years, and may be fined not more than one thousand dollars.

Based upon this statutory language, which is essentially the same in the present case, the Louisiana Supreme Court concluded the following:

This language evidences a clear intent by the Legislature that all prior DWI convictions be considered in determining the applicable penalty, and further shows an intent to distinguish these enhancement proceedings from other multiple offender prosecutions. We conclude that the above [slanguage is clear and that it is the number of prior convictions, not their sequence, which determines the appropriate designation of a subsequent offense.

State v. Woods, 402 So.2d at 683 (emphasis added). See also, State v. Gardette, supra; State v. Conner, 02-363, p. 19, n. 7 (La.App. 5 Cir. 11/13/02), 833 So.2d 396.

Likewise, in the present case, the number of offenses, not the sequence, is determinative of the appropriate designation of the subsequent offense. In this case, since defendant had three prior DWI offenses, the current offense is appropriately designated DWI, fourth offense. Additionally, where the offenses occurred on three different dates, it is of no moment that the predicate convictions occurred on the same date nor does a defendant need to first be adjudicated a first, second, or third offender in order to be found to be a fourth offender. In State v. Benoit, 363 So.2d 656 (La.1978), the defendant was charged with DWI, fourth offense. For enhancement the State relied upon three “second offense” DWIs. Defendant argued that he had not been adjudicated a first, second and third DWI offender. The Louisiana Supreme Court stated the following:

... we find that the term ‘fourth conviction’ (in LSA-R.S. 14:98 E) means four DWI convictions. It is unnecessary that these convictions be consecutively numbered in graduating degrees of seriousness. The phrase ‘fourth conviction’ is unqualified. The Legislature did not impose the requirement that the convictions be successively numbered. It is the number of convictions that is critical and not their numerical progression. Applying this interpretation to the instant facts, we hold that the court properly sentenced the defendant as a fourth offender, although he was never adjudicated a third offender, since he had four DWI convictions.

State v. Benoit, 363 So.2d at 657 (emphasis added).

As such, the fact that the predicate offenses in the present case had been previously designated “first offense” did not preclude the current adjudication for DWI, fourth offense. Under these circumstances, defendant’s predicate guilty |inpleas were not constitutionally infirm because the three “first offense” convictions entered on the same day were used to enhance the current conviction to DWI, fourth offense. Additionally, the transcript of the predicate guilty pleas clearly indicates that the defendant was advised of the possibility of enhancement, wherein the pleas could be used against him “as a second, third, or greater offense.” He was also informed that the State could utilize offenses as far back as ten years for enhancement purposes, and it would not matter if the other offenses occurred before or after any other offense. Further, defendant was advised of enhanced penalties for subsequent offenses. While this advice may facilitate the taking of a voluntary guilty plea, it has never formed part of the core Boykin rights required for the entry of a presumptively valid guilty plea. State v. Guzman, 99-1158, pp. 16-17 (La.5/16/00), 769 So.2d 1158, 1164 (citing State v. Anderson, 98-2977 (La.3/19/99), 732 So.2d 517). Thus, we find the pleas were knowingly and voluntarily entered.

Defendant next argues that the predicate guilty pleas are constitutionally infirm, because he was not advised of his “right to a trial by jury.” Defendant’s argument is based upon the supposition that the three predicate convictions were graduated in severity (i.e., first, second, third) and a third offense DWI is a felony, thus requiring a jury trial. Defendant was not advised of his right to trial by jury. He was, however, advised of his right to a bench trial, which is all that is required.

The Louisiana Constitution, Article I, § 17 provides for jury trials in certain cases. In a case in which the punishment is more than six months of confinement, with or without hard labor, defendant is entitled to a jury trial. La.C.Cr.P. art. 779(A) provides that a jury trial is required when a defendant is charged with an offense whose statutory punishment exceeds $1,000 or six months of imprisonment. While at the time of the commission of the predicate offenses a third offense DWI carried a penalty exposure that qualified for a jury (i.e., one to Infive years, with or without hard labor), the record indicates defendant was never charged with DWI, third offense nor did he plead to such an offense. The charges were not graduated in severity (i.e., first, second, third). Rather, defendant was charged with and pled guilty to three “first offense” DWI. At the time of these predicate offenses, a first offense under La. R.S. 14:98(B) carried a penalty of ten days to six months imprisonment and a discretionary fine of $800 to $1,000. As such, the pleas were entered to three misdemeanor offenses, none of which individually required a jury trial.

We note that the three misdemeanor predicate charges were not consolidated for trial. Thus, the penalties need not be aggregated for purposes of determining the necessity of a jury trial. In those instances when more than one misdemeanor offense is charged by separate bills of information, but are consolidated for trial, the aggregate possible punishments are determinative of whether the defendant is entitled to a jury trial. State v. Homung, 620 So.2d 816, 817 (La.1993).

In this case defendant was charged by three separate citations, each case had a different docket number, separate minute entries and separate waiver forms were executed for each. Although there was one colloquy, defendant requested that there be one plea colloquy for the three offenses. It does not appear there was any intent by the State or the defendant to consolidate the three cases. As such, standing alone, none of the misdemeanor offenses to which defendant pled guilty carried a fine in excess of $1,000 or imprisonment in excess of six months. Accordingly, defendant was not entitled to a jury trial under the facts of this case. State v. Stewart, 02-196, pp. 6-7 (La.App. 3 Cir. 10/2/02), 827 So.2d 1277, 1279. Since defendant was not entitled to a jury trial, the trial judge correctly informed him during the colloquy that he was entitled to a “judge trial” and the predicate guilty pleas were not defective for enhancement purposes. This assignment of error is without merit.

112Pefendant next argues that the trial court erred in failing to apply the amended sentencing provisions and in later denying the motion to correct the sentence. He asserts that the trial court erred in sentencing him under La. R.S. 14:98, as it existed prior to its amendment by 2001 La. Acts 1163. He relies upon State v. Mayeux, 01-3195 (La.6/21/02), 820 So.2d 526. The State acknowledges that the defendant is entitled to the ameliorative effects afforded by this amendment. The record reveals that, prior to his conviction and sentence as a DWI fourth offender, defendant filed a sentencing motion entitled “Motion To Invoke New Sentencing Provisions Set forth in Act 1163.” The State filed an opposing motion wherein it sought a ruling that the defendant would be sentenced according to the law in effect at the time the offense was committed (i.e., prior to amendment of La. R.S. 14:98, by 2001 La. Acts 1163). The matter was heard and the trial judge denied the defendant’s motion, ruling that the defendant would be sentenced without the benefit of 2001 La. Acts 1163.

Following acceptance of the defendant’s guilty plea which reserved the right to appeal the current ruling, defendant was given a negotiated sentence predicated upon LSA-R.S. 14:98, prior to its amendment by 2001 La. Acts 1163. Defendant was sentenced to imprisonment for a period of ten years, five years of the sentence was suspended, and the defendant was placed on five years of active probation. He was given credit for time served. Of the five years of imprisonment, two years was ordered to be served without benefit of parole, probation or suspension of sentence. As conditions of probation, defendant was ordered to complete an in-patient alcohol treatment program upon his release from prison. He was prohibited from driving during the probationary period. He was also ordered to pay a $5,000 fine and court costs. Nine months after sentencing, defendant filed the motion to correct the sentence and relief was denied. The trial court denied him relief. We find this denial was erroneous.

| ^During the 2001 Regular Session of the legislature, Acts 1168 was passed and it amended La R.S. 14:98 E(l) and (8). The effective date was August 15, 2001. At the time of the commission of this offense, on November 30, 2000, the sentencing provision for DWI, fourth offense provided for imprisonment at hard labor for not less than ten nor more than 30 years and a $5,000 fine. La R.S. 14:98 E(l). It also provided for seizure and sale of the vehicle, under certain prescribed circumstances. La R.S. 14:98 E(2). At least two years of the sentence was to be imposed without benefits. If any portion of the sentence was imposed with benefits, completion of a court-approved substance abuse and court-approved driver’s improvement program were to be ordered. La R.S. 14:98 E(3). Further restrictions were placed on the time the sentence was subject to benefits, if the defendant had previously participated in either or both of such court-approved programs. If defendant had previously received benefits as a fourth offender, the sentence imposed was to be without benefits. Additionally, the current sentence was not to be imposed concurrently with any portion of a prior sentence. La. R.S. 14:98 E(3).

Under the amended version of the statute, the term of imprisonment and fine remained the same; however, all but 60 days of the sentence is to be suspended. The 60 days of imprisonment is to be served without benefits. Defendant is to be evaluated for substance abuse and take part in an in-patient substance abuse program. Upon completion of the program, defendant is to be confined to home incarceration for one to five years, with statutory restrictions set forth in subsection 3 of the statute. If the offender fails to complete the substance abuse treatment or violates the condition of home incarceration, he is to be imprisoned for the original term of the suspended sentence. La. R.S. 14:98 E(l). Home incarceration is to be supervised and subject to any conditions of probation. Defendant shall be ordered to obtain employment and participate in court-approved |udriver’s program. His activities are restricted to church, work and court-ordered substance abuse meetings and driver’s program. La. R.S.14:98 E(3).

Under State v. Mayeux, supra, Mayeux was arrested for DWI, fourth offense, on February 22, 2000 and pled guilty on September 27, 2001. As in the present case, defendant was sentenced according to La. R.S.14:98, prior to its amendment by 2001 La. Acts 1163. Mayeux appealed, urging that the trial court erred in failing to sentence him under the statute in effect at the time of his conviction. The Louisiana Supreme Court agreed finding that the statutory language and legislative purpose of the enactment indicated the applicable sentencing statute to be applied was the one in effect at the time of conviction, rather than at the time of the offense. State v. Mayeux, 01-3195, p. 2 (La.6/21/02), 820 So.2d 526. In Mayeux, 01-3195, at p. 7, 820 So.2d at 531, the court vacated the defendant’s sentence and remanded the case for resentencing.

In the present ease, the trial judge erred in refusing to apply the amended sentencing provision and in failing to grant the motion to correct sentence. The present case involved a negotiated sentence. Accordingly, we vacate defendant’s sentence and remand the matter, for further proceedings.

CONCLUSION

For the reasons stated herein, we vacate defendant’s sentence and remand this case to the district court for further proceedings.

SENTENCE VACATED; REMANDED FOR FURTHER PROCEEDINGS

      . A "perfect transcript” reflects a voluntary, informed and articulated waiver of the three Boykin rights. State v. Shelton, supra; State v. Carlos, 738 So.2d at 559, n. 4.