author: | .MARION F. EDWARDS, Judge.

text:
    STATE of Louisiana v. Curtis ALLEN.
    No. 03-KA-1205.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 23, 2004.

      John M. Crum, Jr., District Attorney, 40th Judicial District, Rodney A. Brignac, Assistant District Attorney, Laplace, LA, for Appellee.
    Frederick Kroenke, Baton Rouge, LA, for Appellant.
    Panel composed of Judges SOL GOTHARD, MARION F. EDWARDS and CLARENCE E. McMANUS.
   | .MARION F. EDWARDS, Judge.

Defendant, Curtis Allen, was charged in a bill of information with six counts of carnal knowledge of a juvenile under the age of seventeen in violation of LSA-R.S. 14:80. Allen initially pled not guilty but later changed his plea to guilty as charged on all six counts in accordance with a plea agreement. The plea agreement did not contain an agreed-upon sentence and only indicated he would be sentenced, with no sentencing cap, after a pre-sentence investigation report (PSI). Allen was subsequently sentenced to ten years at hard labor on each of the six counts with each sentence to run concurrently. It is this sentence that he appeals.

Because Allen pled guilty, the known facts and circumstances surrounding the offenses are limited. According to the bill of information, Allen, age 22, had sexual intercourse with one female under the age of seventeen on six occasions from February or March 2002 through April 12, 2002. During his plea colloquy, he admitted he had sexual intercourse with a female under the age of seventeen.

Allen avers on appeal that the sentences imposed are unconstitutionally excessive, that the failure of trial counsel to file a motion to reconsider the sentence | ¡¡should not preclude this court considering the constitutionality of the sentence, and, in that the event that it does, then the failure of trial counsel constitutes ineffective assistance of counsel. Since no specific sentence was agreed upon in the plea agreement and no sentencing cap was set, Allen is not precluded from seeking review of his sentence under LSA-C.Cr.P. art. 881.2(A)(2).

Allen argues his concurrent ten-year sentences are constitutionally excessive. He claims he entered into a sincere relationship with the victim and did not know her age, contending that these mitigating factors make his sentences excessive. Allen acknowledges that his trial counsel did not file a motion to reconsider his sentences but notes that his counsel objected to the sentences as being excessive. He asserts that, in the event this court finds he is precluded from raising the constitutionality of his sentences due to his trial counsel’s failure to file a motion to reconsider, then he received ineffective assistance of counsel.

As Allen notes, his trial counsel did not file a motion to reconsider his sentences pursuant to LSA-C.Cr.P. art. 881.1. LSA-C.Cr.P. art. 881.1 requires a motion to reconsider sentence be made orally at the time of sentencing or in writing within thirty days of sentencing and that it set forth the specific grounds on which the motion is based. The failure to state the specific grounds on which the motion is based precludes the defendant from raising issues relating to statutory errors or deficiencies in sentencing on appeal, not constitutional excessiveness. The failure to file a motion to reconsider sentence does not preclude review of a sentence for constitutional excessiveness. Further, the mere failure to file a motion to reconsider sentence does not in and of itself constitute ineffective assistance of counsel. A basis for ineffective assistance of counsel may only be | ¿found if a defendant can “show a reasonable probability that but for counsel’s error, his sentence would have been different.” Because Allen seeks a review of his sentences solely for constitutional excessiveness, his trial counsel’s failure to move for reconsideration of sentences is inconsequential and, therefore, his alternative claim for ineffective assistance of counsel has no merit.

Both the United States and the Louisiana Constitution prohibit the imposition of excessive or cruel punishment. U.S. Const, amend. VIII; La. Const, of 1974, art. I, § 20. A sentence is constitutionally excessive, even if it is within the statutory limits, if it is grossly disproportionate to the severity of the offense or' is nothing-more than the needless and purposeless imposition of pain and suffering. Trial judges are granted great discretion in imposing sentences and a sentence will not be set aside as excessive absent clear abuse of that broad discretion.

In reviewing a sentence for ex-cessiveness, this Court must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock our sense of justice, recognizing at the same time the wide discretion afforded the trial judge in determining and imposing sentence. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. In reviewing a trial court’s sentencing discretion, three factors are considered: 1) the nature of the crime, 2) the nature and background of the offender, and 3) the sentence imposed for similar crimes by the same court and other courts.

|fiIn the present case, Allen was convicted of six counts of felony carnal knowledge of a juvenile. The offense carries a sentence of imprisonment, with or without hard labor, of “not more than ten years” and a possible fine of not more than $5,000. LSA-R.S. 14:80(D). Allen received the maximum ten-year sentence at hard labor on each count to run concurrently but no fine.

In imposing the maximum sentence, the trial court considered the police investigative record and the pre-sentence investigative (PSI) report. The PSI reveals the victim was thirteen years old at the time of the offenses. The PSI further reveals Allen was on still on probation for a previous conviction for carnal knowledge of a juvenile when he committed the present offenses. Other information in the PSI contains alleged threats against the victim. At the age of 22, defendant had over 20 adult arrests ranging from simple robbery and simple assault to attempted armed robbery. Prior criminal activity, which is not limited to convictions, may be considered by the trial judge in sentencing a defendant.

In sentencing Allen, the trial court took note of Allen’s claim that he was unaware of the victim’s age. It was further noted that the victim’s mother had previously testified and asked for the most severe sentence. However, the court noted that the mother’s testimony, that the offenses took place in the presence of her other children, was not supported by the record.

Nevertheless, by Allen’s own admission, he had sexual intercourse with a thirteen-year-old victim on six separate occasions over a two-month period. Allen had a previous conviction for carnal knowledge of a juvenile and was on probation for the same offense at the time he committed the present six offenses. As part of the plea agreement, the State agreed not to multiple-bill Allen as a second felony offender, which would have exposed him to a sentencing range of five to twenty years. LSA-R.S. 15:529.1(A)(1)(a). Such a substantial advantage obtained by [ ¿means of a plea bargain is a legitimate consideration in sentencing. Further, he had multiple previous arrests for past criminal activities. Considering all the circumstances, we do not find an abuse of discretion in the imposition of the 10-year sentence.

This assignment of error is without merit.

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920. On review, we note a discrepancy between the transcript and the minute entry. In sentencing Allen, the trial court initially imposed the sentence without the benefit of parole, probation or suspension of sentence. The trial court later recognized that the applicable statute, LSA-R.S. 14:80, did not allow for the restriction of benefits and deleted the imposition of restrictions from Allen’s sentence. Nonetheless, the minute entry reflects Allen’s sentence is to be served without the benefit of parole or probation. Where there is a discrepancy between the transcript and a minute entry, the transcript prevails. Therefore, we remand the case and order the trial court to correct the minute entry to conform to the transcript.

Second, the record does not show that the trial court gave Allen notice of the registration requirements for sex offenders as required by LSA-R.S. 15:543(A). LSA-R.S. 15:542 requires that all persons convicted of a sex offense must register with the sheriff of the parish where the person resides. LSA-R.S. 15:543(A) requires the trial court to provide written notification of the registration requirements to the defendant upon judgment and sentencing. Therefore, we remand this matter and order the trial court to inform Allen of the registration requirements of LSA-R.S. 15:542 by sending written notification to him within ten |7days of this opinion, and to file written proof in the record that Allen received such notice.

For the foregoing reasons, Allen’s sentence is affirmed. The matter is remanded to the trial court for the limited purposes stated above.

AFFIRMED.

      . See, State v. Bolton, 02-1034 (La.App. 5 Cir. 3/11/03), 844 So.2d 135, 142, writ denied, 03-1159 (La. 11/14/03), 858 So.2d 417.

      . State v. Wickem, 99-1261 (La.App. 5 Cir.4/12/00), 759 So.2d 961, 967, writ denied, 00-1371 (La.2/16/01), 785 So.2d 839.

      . State v. Hester, 99-426 (La.App. 5 Cir. 9/28/99), 746 So.2d 95, 103, writ denied by State v. Patterson, 99-3217 (La.4/20/00), 760 So.2d 342.

      . State v. Pendelton, 96-367 (La.App. 5 Cir. 5/28/97), 696 So.2d 144, 159, writ denied, 97-1714 (La. 12/19/97), 706 So.2d 450.

      . State v. Wickem, supra.

      . State v. Bacuzzi, 97-573 (La.App. 5 Cir. 1/27/98), 708 So.2d 1065, 1068-1069.

      . State v. Brown, 99-172 (La.App. 5 Cir. 9/28/99), 742 So.2d 1051, 1056, writ denied, 99-3148 (La.4/20/00), 760 So.2d 340.

      . State v. Watts, 99-311 (La.App. 5 Cir. 8/31/99), 746 So.2d 58, 64, writ denied, 99-2733 (La.3/24/00), 758 So.2d 145.

      . Id.

      . State v. Fletcher, 03-60 (La.App. 5 Cir.4/29/03), 845 So.2d 1213, 1218.

      . See, State v. Hunter, 33,542 (La.App. 2 Cir.6/21/00), 765 So.2d 478, 479.

      . See e.g. State v. Lewis, 97-1549 (La.App. 4th Cir.2/3/99), 727 So.2d 1274, writ denied 1999-0567 (La.6/18/99), 745 So.2d 21: State v. Blackwell 34,126 (La.App. 2nd Cir.12/22/00), 774 So.2d 1209, writ denied 01-244(La.l2/7/01) 803 So.2d 24.

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

      . State v. Lynch, 441 So.2d 732, 734 (La.1983).


source: Caselaw Access Project

author: LSOL GOTHARD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Danny LATHERS, Jr.
    No. 03-KA-941.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 23, 2004.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, R. Christopher Cox, Assistant District Attorneys, 24th Judicial District, State of Louisiana, Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.
    Holli Herrle-Castillo, Louisiana Appellate Project, Marrero, LA, for Defendant/Appellant.
    Panel composed of Judges SOL GOTHARD, MARION F. EDWARDS and SUSAN M. CHEHARDY.
   LSOL GOTHARD, Judge.

Defendant, Danny Lathers, Jr., was charged with possession of marijuana, third offense, in violation of LSA-R.S. 40:966(C). Thereafter, the bill of information was amended to add a second count of possession of marijuana, third offense. Count two only was tried on January 23, 2003 before a six-person jury which found defendant guilty as charged, and the trial court sentenced defendant on count two to imprisonment at hard labor for one year and six months. On January 29, 2003, the date of sentencing, defendant withdrew his not guilty plea and entered a plea of guilty on count one. The trial court sentenced defendant on count one to imprisonment at hard labor for one year and six months, with the sentences on counts one and two to run concurrently, and it recommended the Impact Program. Defendant’s untimely motion to reconsider sentence was denied by the trial court.

In this appeal, defendant challenges only the January 23, 2003 jury verdict, as is evidenced by defendant’s notice of intent to appeal and his brief. For the reasons that follow, we affirm the defendant’s conviction and sentence.

At trial, the state’s witness Kenner Police Department Detective Ray Suarez, testified that his office received complaints regarding drug activity at 3904 Delaware Avenue, Apartment A, in Kenner. The officers conducted surveillance and noticed that there were a lot of people coming and going from the apartment and only staying for a few minutes.

| oOn March 18, 2002, Det. Suarez monitored an undercover agent making a controlled purchase of marijuana from that location. Det. Suarez then obtained a search warrant. On March 28, 2002, Det. Suarez and several other officers arrived at the location, and executed the search warrant. Defendant and his girlfriend, later identified as Keshia Jenkins, were present during the search. Ms. Jenkins told Det. Suarez that she and her boyfriend, defendant, lived there.

As a result of the search, the officers discovered marijuana inside of a purple Crown Royal bag on the bed and a gun and some ammunition under the bed inside of a safe. They also located a cable guide magazine with defendant’s name and address on it. The officers arrested defendant and Ms. Jenkins for possession of marijuana, took them to Kenner lockup, and read them their rights again.

The state and the defense stipulated to defendant’s prior convictions for possession of marijuana. (State’s Exhibits 1, 2, and 3: certified copies of the convictions in case numbers 99-1978, 98-4826, and 95-4100, respectively).

The state and the defense also stipulated to the lab report, State’s Exhibit 4, which indicates that specimen number 1 was a clear plastic bag containing marijuana with a gross weight of 4.89 grams and that specimen number 2 was one purple Crown Royal bag containing a plastic bag filled with marijuana with a gross weight of 48.4 grams.

At trial, Ms. Jenkins, testified that she and defendant lived together with their child and her two children. She explained that, on March 28, 2002, she left work, stopped to buy $50 worth of marijuana, and went home. When she got home she went straight to her room, put her purse and the marijuana on the side of the bed, put her night clothes on, and went to sleep. Everyone else was sleeping at the time. She was awakened during the night by knocks on the door. The officers entered the residence, searched the apartment, and found the marijuana. She was arrested for possession of marijuana and pled guilty. Ms. Jenkins testified that she | ¿did not ordinarily share her marijuana with defendant, and that defendant never smoked or possessed marijuana in her presence. She explained that defendant knew about the safe under the bed, but that he did not keep anything in there. She further testified that when she purchased the marijuana it was in a small Ziploc bag, but that when the officers found it, “the whole thing” was in a Crown Royal bag.

Defendant testified that, on March 28, 2002, he got off work and went home at approximately 4:00 p.m. He went to sleep because he was tired. He was later awakened by Ms. Jenkins who told him that someone was banging on the door. They both got up and looked to see where the knocking was coming from. The officers subsequently pointed their weapons at them and told them to get down. They handcuffed him and Ms. Jenkins and started searching the house.

Defendant explained that he never saw the bag of marijuana before the day of trial, and that he did not see it on the night in question. He testified that he knew Ms. Jenkins used marijuana occasionally, and that he did not know if she brought marijuana into the apartment. Defendant further testified that he had used marijuana a long time ago, but that he had made a decision to change his life because he had nine children to raise.

After hearing the evidence, the jury found defendant guilty as charged.

In this appeal, defendant argues that the evidence was legally insufficient to support his conviction for possession of marijuana, third offense. He contends that the state failed to prove that he knowingly or intentionally possessed the marijuana. He points out that Keshia Jenkins, his girlfriend, pled guilty to possessing that same marijuana in a different case. Defendant claims that there was no evidence that he knew the marijuana was in his apartment, that he knew Ms. Jenkins had brought the marijuana into the apartment, or that he had recently used drugs. He further claims that there was no evidence to contradict the testimony of Ms. 1RJenkins that she obtained the marijuana on her own, left it on the bed on her own, and went to sleep without defendant knowing about it. He states that he was nowhere near the drugs when the police found it, and that he was not behaving like someone who knew he had illegal contraband in his home, i.e., he did not try to dispose of the drug when he heard someone breaking down the door.

Defendant does not dispute that he had two prior convictions for possession of marijuana and, in fact, notes that he stipulated to those prior convictions and admitted to them during his testimony. He also does not dispute that the marijuana was found in the apartment he shared with Ms. Jenkins.

The standard for appellate review of the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). When circumstantial evidence is used to prove the commission of the offense, LSA-R.S. 15:438 mandates that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypotheses of innocence.” The requirement of LSA-R.S. 15:438 does not establish a standard separate from the Jackson standard, but rather provides a helpful methodology for determining the existence of reasonable doubt. Ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Guccione, 96-1049 (La.App. 5 Cir. 4/29/97), 694 So.2d 1060, 1067, writ denied, 97-2151 (La.3/13/98), 712 So.2d 869.

To support a conviction for possession of marijuana, third offense, the state must prove that defendant was in possession of marijuana, that he knowingly possessed it, and that he had two prior convictions for possession of marijuana. LSA-R.S. 40:966(0; LSA-R.S. 40:966(E)(3). The state, however, need only 1 fiestablish constructive possession of a controlled dangerous substance, rather than actual possession, to support a conviction. State v. Kempton, 01-572 (La.App. 5 Cir. 12/12/01), 806 So.2d 718, 723. A person may be in constructive possession of a drug even though it is not in his physical custody, if it is subject to his dominion and control. Id.

A subject can have constructive possession if he jointly possesses drugs with a companion and if he willfully and knowingly shares with his companion the right to control of the drugs. State v. Marshall, 02-1067 (La.App. 5 Cir. 2/25/03), 841 So.2d 881, 888, writ denied, 03-909 (La.9/26/03), 854 So.2d 345.

Guilty knowledge is an essential element of the crime of possession of contraband, and such knowledge may be inferred from the circumstances. State v. Gentras, 98-1095 (La.App. 5 Cir. 3/30/99), 733 So.2d 113, 117, writ denied, 99-1302 (La.10/15/99), 748 So.2d 464. Proximity to the drug, or association with the possessor, may establish a prima facie case of possession when colored by other evidence. State v. Johnson 404 So.2d 239, 245 (La.1981), cert. denied, 456 U.S. 925, 102 S.Ct. 1970, 72 L.Ed.2d 440 (1982). However, the mere presence of the defendant in the area where a controlled dangerous substance is found, or mere association with a person in possession of the substance, is insufficient to constitute constructive possession. State v. Cann, 319 So.2d 396, 397 (La.1975).

Several factors may be considered in determining whether the defendant exercised dominion and control sufficient to constitute constructive possession. They are (1) the defendant’s knowledge that illegal drugs were in the area; (2) his relations with the person found to be in actual possession; (3) the defendant’s access to the area where the drugs were found; (4) evidence of recent drug use by the defendant; (5) the existence of paraphernalia; and (6) evidence that the area was frequented by drug users. State v. Williams, 98-1006 (La.App. 5 Cir. 3/30/99), 735 So.2d 62, 69, writ denied, 99-1077 (La.9/24/99), 747 So.2d 1118, citing State v. Appacrombie, 616 So.2d 285, 288 (La.App. 2 Cir.1993), writ denied, 623 So.2d 1302 (La.1993).

In this case, we find that the evidence supports the finding that defendant exercised dominion and control over the marijuana sufficient to constitute constructive possession. Although defendant claimed that he knew nothing about the drugs, his guilty knowledge can be inferred from the circumstances. First of all, a cable guide addressed to defendant was found in the apartment, indicating that defendant resided there. Secondly, the evidence indicated that there was drug activity occurring in defendant’s apartment, in that Det. Suarez testified that he received narcotics complaints regarding defendant’s residence, and that surveillance showed a lot of people going in and out of the apartment, staying for short periods of time, and then leaving. Thirdly, there was evidence that the black male who resided at 3904 Delaware Avenue, Apartment A, sold marijuana to an undercover agent eight days before the search warrant was executed. Finally, the marijuana in the Crown Royal bag was found in defendant’s apartment on top of the bed in which he had just recently been sleeping, and that he shared with Ms. Jenkins.

The jury apparently found the testimony of the state’s witness to be more credible and rejected the testimony of defendant and Ms. Jenkins that the drugs did not belong to defendant and that he had no knowledge of them or how they got into his apartment. The credibility of the witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. The credibility of witnesses will not be reweighed on appeal. State v. Rowan, 97-21 (La.App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056.

Based on our review of the record, we find that the state sufficiently proved beyond a reasonable doubt that defendant was guilty of possession of marijuana, | sthird offense. In accord, see State v. Booth, 98-2065 (La.App. 4 Cir. 10/20/99), 745 So.2d 737, 741-743.

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). This review was limited to defendant’s appeal from the jury verdict and sentence on count 2, the only matters before this Court on appellate review. The review reveals no errors patent in this case.

In accordance with the foregoing, the defendant’s conviction and sentence is affirmed.

AFFIRMED.


author: J^SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Michael L. HARRIS.
    No. 03-KA-710.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 23, 2004.

      Holli-Herrle Castillo, Louisiana Appellate Project, Marrero, LA, for Appellant, Michael L. Harris.
    Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Juliet Clark — Appellate Counsel, Nancy Miller, Donald Rowan — Trial Counsel, Assistant District Attorneys, Gretna, LA, for Appel-lee, State of Louisiana.
    Panel composed of Judges SOL GOTHARD, MARION F. EDWARDS and SUSAN M. CHEHARDY.
   J^SUSAN M. CHEHARDY, Judge.

On January 6, 2000, the Jefferson Parish District Attorney’s Office filed a bill of information charging defendant, Michael L. Harris, with five counts of distribution of cocaine, in violation of La. R.S. 40:967(A). On January 10, 2000, defendant was arraigned and entered a plea of not guilty to all five counts.

On October 18, 2001, defendant filed a motion to sever the counts against him. On October 31, 2001, defendant’s motion was heard and denied. Immediately thereafter, trial commenced. After the one-day trial, the twelve-member jury found defendant guilty as charged on all counts.

On November 13, 2001, the trial judge sentence defendant to thirty years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence on each count to run concurrently. That same day, the State filed a multiple offender bill of information alleging that defendant was a third felony offender. Defendant denied the allegations of the multiple offender bill of information. On November 14, 2001, defendant filed a motion to reconsider his sentences on the five distribution counts, which was denied by the trial court.

On December 13, 2002, the trial court held a hearing on the multiple offender bill of information and found that the State had presented sufficient | ^.evidence to prove that defendant was a second felony offender. On December 18, 2002, the trial court vacated defendant’s underlying sentence on count one of the distribution of cocaine charges and imposed an enhanced sentence of forty years imprisonment at hard labor to run concurrently with the thirty-year sentences imposed on counts two through five of the underlying bill of information. Defendant immediately filed a motion to reconsider sentence, which was denied. Thereafter, defendant filed a timely motion for appeal challenging his convictions and sentences.

FACTS

Deputy David Randall of the Jefferson Parish Sheriffs Office testified that, between June 28, 1999 and August 6, 1999, he was working as an undercover detective with the Narcotics Bureau. On June 28, 1999, Deputy Randall was instructed by his supervising officer to attempt an undercover narcotics purchase at or near 541 Wilson Street in Marrero because there had been complaints of illegal narcotics sales in that area. At approximately 2:00 p.m. that day, Deputy Randall proceeded to the area in an unmarked police van that was specially equipped with hidden video and audio recording capabilities.

Still in his van, Deputy Randall approached a black man that he observed walking down the street and asked the man for “two twenties.” The black man placed two rocks in Deputy Randall’s hand and Deputy Randall gave the man, later identified as defendant, $40.00 in cash. Deputy Randall then proceeded to a prearranged location and gave the backup agents working with him the narcotics and the videotape of the drug transaction.

On July 8, 1999 and July 12, 1999, Deputy Randall returned to the 400 and 500 blocks of Wilson Street in another attempt to perform an undercover narcotics purchase. Deputy Randall drove the same unmarked van equipped with video and Raudio recording capabilities to the area and again purchased crack cocaine from defendant. On both occasions, the narcotics transactions were videotaped.

During the July 12, 1999 transaction, defendant told Deputy Randall that, if Deputy Randall did not see him outside, Deputy Randall should sound his horn and defendant would come outside. Deputy Randall informed defendant that his vehicle’s horn did not work so Deputy Randall would “holler” for him.

The next day, which was July 13, 1999, Deputy Randall again drove to defendant’s home at 541 Wilson Street. Deputy Randall did not see defendant outside but observed the door of the house ajar and yelled to get defendant’s attention. When defendant did not respond, Deputy Randall exited his vehicle and knocked on the door of the residence. After defendant invited Deputy Randall inside of his home, Deputy Randall informed defendant that he wanted to purchase two pieces of crack cocaine. Defendant responded that he did not have any but that he could bring Deputy Randall to a location where he could get some.

Deputy Randall returned to his van and followed defendant as he walked down Wilson Street. Defendant then entered the residence at 470 Wilson Street and returned with crack cocaine, which he sold to Deputy Randall.

Deputy Kim Blanche of the Jefferson Parish Sheriffs Office testified that she was working as an undercover narcotics agent on August 6, 1999. On that date, Deputy Blanche was instructed to go into the Wilson Street and Magnolia Drive area of Marrero to attempt an undercover narcotics purchase. Deputy Blanche, driving a van owned by the Jefferson Parish Sheriffs Office and equipped with audio and video transmitters, purchased two twenty-dollar rocks, which tested positive for crack cocaine, from an individual, who was later identified as defendant. The transaction was videotaped.

During Deputy Randall’s testimony, videotaped recordings of the June 28,1999, July 8, 1999, and July 12, 1999 narcotics transactions were shown to the |¡jury. During Deputy Blanche’s testimony, the videotaped recording of the August 6, 1999 narcotics transaction was shown to the jury.

Sergeant Joe Williams of the Jefferson Parish Sheriffs Office Narcotics Division, testified that from June 28, 1999 through August 6, 1999, he was supervisor of the undercover narcotics group, which was investigating complaints of distribution of crack cocaine from 541 Wilson Street and in the 500 block of Magnolia Drive. Sergeant Williams viewed the video recordings of the undercover narcotics transactions at the Detective Bureau and, as a result of previous encounters with the defendant, was able to identify the individual who sold narcotics to Deputy Randall and Deputy Blanche as defendant, Michael Harris. At his instruction, another officer compiled a photographic lineup, which contained defendant’s photograph, and showed the lineup separately to Deputy Randall and Deputy Blanche. Both deputies positively identified defendant as the person that had sold them crack cocaine.

After hearing testimony and reviewing the evidence, the twelve-member jury voted unanimously that defendant was guilty of counts one, two, three, and five of distribution of cocaine. The jury found by a vote of eleven to one that defendant was guilty of the fourth count of distribution of cocaine.

In his first assignment of error, defendant argues that the trial court erred in failing to grant the defense’s challenges for cause during voir dire of prospective jurors, Ms. Freese and Ms. Guthrie. Defendant specifically argues that the trial judge erred in denying his challenge for Ms. Freese because she indicated that she should not sit on the case due to her former Mend’s problem with drugs. Defendant specifically argues that the trial judge erred in denying his challenge for Ms. Guthrie because her voir dire responses indicated that she had been the victim of a purse snatching and defense counsel, Mr. Nolting, defended the alleged [ ^perpetrator of the purse snatching. The State responds that the trial court did not abuse its discretion in denying either challenge for cause.

Prejudice is presumed when a trial court erroneously denies a challenge for cause and the defendant ultimately exhausts his peremptory challenges. State v. Robertson, 92-2660 (La.1/14/94), 630 So.2d 1278, 1280. An erroneous ruling depriving an accused of a peremptory challenge violates his substantial rights and constitutes reversible error: State v. Cross, 93-1189 (La.6/30/95), 658 So.2d 683, 686. To prove error warranting reversal of both the conviction and sentence, a defendant need only show that he exhausted all of his peremptory challenges and that the trial judge erroneously denied a challenge for cause. State v. Connolly, 96-1680 (La.7/1/97), 700 So.2d 810; State v. Richthofen, 01-500 (La.App. 5 Cir. 11/27/01), 803 So.2d 171, 190, writ denied, 02-0206 (La.1/31/03), 836 So.2d 57.

In the instant case, the record reflects defendant exhausted all twelve of his peremptory challenges. Therefore, the issue is whether the trial judge erroneously denied defendant’s challenge for cause of Ms. Freese and Ms. Guthrie. La.C.Cr.P. art. 797 provides, in pertinent part, as follows:

The state or the defendant may challenge a juror for cause on the ground that:
* * *
(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;
(3) The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict!.]

|7Pefendant argues that prospective juror Freese should have been excused for cause based upon her responses during voir dire that she would be upset by sitting on a drug case because she had a former friend who had a drug problem. While Ms. Freese stated during voir dire that she had an “ex-Mend” that was “into crack cocaine,” she told the prosecutor that she thought she could be fair and impartial. She also stated that she would “try ... my best” to put the past experiences behind her. When questioned further by the prosecutor, Ms. Freese indicated that, if the State failed to prove that defendant distributed cocaine, she would be able to find him not guilty. She also stated that she would be able to follow the law as instructed by the trial judge.

Upon questioning by defense counsel, Ms. Freese stated that she had not seen her former friend in approximately six years because of her former Mend’s drug problem. Ms. Freese additionally stated that she did not like people that did drugs and that the situation with her friend upset her. When defense counsel asked, “So you really don’t think you should sit in this case ...Ms. Freese responded, “No, sir.”

Our examination of the record reveals that Ms. Freese indicated she could follow the law as instructed by the trial judge and that she could find defendant not guilty if the State failed to prove its case. Although Ms. Freese indicated she did not like individuals who used drugs and didn’t think she should sit as a juror in the case, none of her responses indicated that she could not be an impartial juror. Accordingly, it does not appear the trial court abused its discretion in denying defendant’s challenge for cause of Ms. Freese.

Defendant also contends that the trial court erred in denying his challenge for cause of prospective juror Guthrie. During voir dire, Ms. Guthrie indicated that she had been the victim of two previous crimes: armed robbery and purse snatching. While questioning Ms. Guthrie, defense counsel informed her that he | shad represented the individual who was accused of snatching her purse. When defense counsel asked if Ms. Guthrie remembered him, she responded that she did not. Ms. Guthrie later stated, “If I would have known it was you I would have stood up if I knew anybody.”

Defense counsel subsequently challenged Ms. Guthrie for cause, stating the following:

I remembered her and I’m surprised that she didn’t remember me because we had a discussion together at that time, and I do remember her extreme concern over the situation and how unhappy she was about the sentence that my client had. And I think in this particular case, the fact that she knows me and the fact that she didn’t say that she knew me, I- — I can’t help but ask that she be challenged for cause because I think she was being evasive in things and she obviously has a problem with handling these types of cases.

In denying defendant’s challenge for cause, the trial judge noted that Ms. Guthrie appeared to have no recollection that defense counsel had represented the alleged perpetrator of the purse snatching in which she was a victim. The trial judge further added that he found Ms. Guthrie to be unbiased.

On appeal, defendant argues that the trial court erred in denying his challenge for cause of Ms. Guthrie because of the nature of her relationship with defense counsel. La.C.Cr.P. art. 797(3) provides that the State or defendant may challenge a juror for cause based on a relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defense counsel if it is reasonable to conclude that the relationship would influence the juror in arriving at a verdict. In the instant case, the record reflects that Ms. Guthrie did not remember defense counsel until defense counsel informed her of his involvement in the prior case. Furthermore, even if such a relationship existed, the record does not reflect that the relationship would have influenced Ms. Guthrie in arriving at a verdict. Therefore, we do not find that the trial court abused its discretion in ¡qdenying defendant’s challenge for cause of Ms. Guthrie. Based on the foregoing, we conclude that defendant’s first assignment of error lacks merit.

In assignment of error number two, defendant argues that the trial court erred in denying the defense’s motion to sever. Specifically, defendant contends that the trial court erred in denying his motion to sever because the jury could not segregate the various counts and evidence. Defendant also argues that trying the various counts together caused the jury to infer his bad character, which ultimately led to his conviction. The State responds that the joinder was not prejudicial because the evidence was presented in a logical, compartmentalized manner without confusion of the incidents.

La.C.Cr.P. art. 493 provides:

Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.

In the instant case, defendant was charged with five counts of distribution of cocaine, in violation of La. R.S. 40:967(A). Although the five offenses occurred on different dates within a six-week period, they involved defendant selling crack cocaine to undercover officers, they occurred in the same general area, four of the five counts involved the sale of narcotics to the same undercover officer, and the counts were triable by the same mode of trial. Consequently, the counts appear to be of the same or similar character as contemplated by La.C.Cr.P. art. 493 and were, therefore, properly charged in the same bill of information.

Further, La.C.Cr.P. art. 495.1 provides for severance of joined offenses, and states:

If it appears that a defendant or the state is prejudiced by a joinder of offenses in an indictment or bill of information or by such joinder for trial together, the court may order separate trials, grant a 11flseverance of offenses, or provide whatever other relief justice requires.

A defendant has a substantial burden of proof when he alleges prejudicial joinder of offenses. State v. Machon, 410 So.2d 1065 (La.1982); State v. Every, 96-185 (La.App. 5 Cir. 7/30/96), 678 So.2d 952, 958. Motions to sever under La. C.Cr.P. art. 495.1 are left to the sound discretion of the trial court and should not be disturbed on appeal in the absence of an abuse of discretion. State v. Celestine, 452 So.2d 676 (La.1984).

In determining whether prejudice may result from a joinder of offenses, a trial court should consider whether the jury would be confused by the various counts, whether the jury would be able to segregate the various charges and evidence, whether the defendant would be confounded in presenting his various defenses, whether the crimes charged would be used by the jury to infer a criminal disposition, and whether, especially considering the nature of the charges, the charging of several crimes would make the jury hostile. State v. Washington, 386 So.2d 1368 (La.1980).

In the present case, defendant argues that the jury was unable to segregate the evidence of each individual charge and that the joinder of the. various counts caused the jury to infer a criminal disposition. Our review of the record shows the facts of each offense were simple and uncomplicated and the evidence of each offense was presented chronologically. The applicable law was the same for each count and the jury’s only task was to separate the evidence of each alleged act. This task was simplified by the State’s witnesses, especially Deputy Randall, who carefully divided their testimony between the specific counts.

Additionally, videotaped recordings of the June 28, 1999, July 8, 1999, July 12, 1999 and August 6, 1999 narcotics transactions were introduced into evidence and played for the jury as Deputy Randall and Deputy Blanche, respectively, | ^testified to the corresponding offenses. Finally, given the nature of the evidence it does not appear that the jury inferred a criminal disposition or became hostile toward the defendant. Accordingly, we cannot conclude that defendant has met his heavy burden of proving that he was prejudiced by the denial of his motion to sever. Based on the foregoing, defendant’s second assignment of error lacks merit.

In his third assignment of error, defendant argues that the trial court erred in imposing excessive sentences. Defendant argues the trial judge failed to consider the criteria set forth in La.C.Cr.P. art. 894.1 and provide reasons for the sentences pursuant to that article. The State responds that the record does not reveal that the trial court abused its discretion in imposing the sentences.

In the instant case, although defendant filed two separate motions to reconsider alleging both his original and enhanced sentences were excessive, we note that defendant failed to state in his motions that the trial court erred in failing to specify reasons for the sentences pursuant to La.C.Cr.P. art. 894.1. Importantly, La. C.Cr.P. art. 881.1 provides that a defendant may file a motion to reconsider sentence within thirty days of sentencing, but requires the motion, which can be made orally at the time of sentencing, or in writing, to set forth the specific grounds on which the motion is based. The failure to file a motion to reconsider sentence, or to state the specific grounds on which the motion is based, precludes a defendant from raising those grounds on appeal. State v. Mims, 619 So.2d 1059 (La.1993); State v. Decay, 01-192 (La.App. 5 Cir. 9/13/01), 798 So.2d 1057, 1075, writ denied, 01-2724 (La.8/30/02), 823 So.2d 939, reconsideration denied, 01-2724 (La.12/17/02), 833 So.2d 325. Since the sole issue raised in defendant’s motions to reconsider was the excessiveness of the sentences, this Court will review for constitutional exces-siveness. See, State v. Wilkinson, 00-339 (La.App. 5 Cir. 10/18/00), 772 So.2d 758, 771, writ denied, 00-3161 (La.10/12/01), 799 So.2d 494.

haBoth the United States and Louisiana Constitutions prohibit the imposition of excessive or cruel punishment. U.S. Const. amend. VIII; La. Const, of 1974, art. I, 20 A sentence is constitutionally excessive, even if it is within the statutory limits, if it is grossly disproportionate to the severity of the offense or is nothing more than the needless and purposeless imposition of pain and suffering. State v. Wickem, 99-1261 (La.App. 5 Cir. 4/12/00), 759 So.2d 961, 968, writ denied, 00-1371 (La.2/16/01), 785 So.2d 839. Trial judges are granted great discretion in imposing sentences and sentences will not be set aside as excessive absent clear abuse of that broad discretion. State v. Bacuzzi, 97-573 (La.App. 5 Cir. 1/27/98), 708 So.2d 1065, 1068-1069.

In reviewing a sentence for ex-cessiveness, this Court must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock our sense of justice, recognizing at the same time the wide discretion afforded the trial judge in determining and imposing sentence. State v. Brown, 99-172 (La.App. 5 Cir. 9/28/99), 742 So.2d 1051, 1056, writ denied, 99-3148 (La.4/20/00), 760 So.2d 340. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. Watts, 99-311 (La.App. 5 Cir. 8/31/99), 746 So.2d 58, 64, writ denied, 99-2733 (La.3/24/00), 758 So.2d 145. In reviewing a trial court’s sentencing discretion, three factors are considered: 1) the nature of the crime, 2) the nature and background of the offender, and 3) the sentence imposed for similar crimes by the same court and other courts. Id.

Defendant was convicted of five counts of distribution of cocaine and sentenced to 5 concurrent thirty-year prison terms. When the offenses were committed, La. R.S. 40:967(B)(4)(b) specified the penalty for distribution of cocaine as imprisonment at hard labor for not less than five years nor more than thirty years, with the first five years of said sentence being without benefit of |13parole, probation, or suspension of sentence, and a possible fine of not more than fifty thousand dollars.

In the instant case, although the trial court failed to provide detailed reasons for sentencing, the trial court, in imposing the thirty-year sentences, stated the following:

Not only did the jury, but I saw you selling Cocaine, all right. You did this as an enterprize [sic], it was your business. You are a Cocaine salemen [sic]. You are not fooling anybody by your statement now. This is an enterprize [sic] that you have chosen to undertke [sic]. You were caught on camera five times. That’s not to say how many other times you might have done it. This is not your first offense either....

Further, defendant’s prior convictions include aggravated battery, a crime of violence under La.C.Cr.P. art. 14:2(13)(e), and forgery. Additionally, at the time of trial, defendant faced two pending counts of possession of cocaine. Finally, a review of the jurisprudence reveals that courts have affirmed thirty-year sentences for distribution of cocaine convictions. See, State v. Snow, 36,826 (La.App. 2 Cir. 3/5/03), 839 So.2d 988, unit denied, 03-1188 (La.11/14/03), 858 So.2d 418 and State v. George, 34,621 (La.App. 2 Cir. 4/4/01), 785 So.2d 975. Based on the foregoing review of the nature of these crimes, defendant’s criminal record including pending criminal charges, and sentences received for the same types of crime, we find that the trial court did not abuse its discretion in sentencing defendant to four concurrent thirty-year sentences.

Defendant also challenges his enhanced sentence of forty years imprisonment as excessive. As a second-felony offender, defendant was subject, under La. R.S. 15:529.1(A)(l)(a), to a minimum of fifteen years and a maximum of not more than sixty years of imprisonment. See, La. R.S. 40:967(B)(4)(b), West 1999. Here, defendant received a sentence that was two-thirds of the maximum |14sentence. As noted above, defendant had one previous conviction for a crime of violence and has a history of other criminal conduct. We do not find that the trial court abused its discretion in imposing an enhanced sentence of forty years of imprisonment. Based on the foregoing, we find that defendants third assignment of error lacks merit.

Lastly, in his fourth assignment of error, defendant argues that the trial court erred in denying him the benefits of probation, parole, or suspension of sentence for the entirety of his thirty-year sentences on counts one through five. Defendant argues that La. R.S 40:967 specifies that only the first two years of a defendant’s sentence are to be without benefit of parole, probation, or suspension of sentence.

While the State concedes that the trial court erred in imposing all of defendant’s thirty-year sentences without benefits, the State also points out that, at the time of the commission of defendant’s offenses, La. R.S. 40:967(B)(4)(b) provided that the first five years of the sentence were to be served without benefit of parole, probation, or suspension of sentence. In this case, imposition of the entire sentence without benefit of parole, probation, or suspension of sentences was illegal. See, State v. Morris, 01-179 (La.App. 5 Cir. 8/28/01), 798 So.2d 1004, 1011.

An illegal sentence, however, may be corrected at any time by the court that imposed the sentence or by an appellate court on review. La.C.Cr.P. art. 882; La. R.S. 15:301.1(C). Accordingly, we amend the sentence to reflect that only the first five years of defendant’s thirty-year sentences on counts two through five are to be served without benefit of parole, probation, or suspension of sentence.

Finally, we have reviewed the record for errors patent, according to La.C.Cr.P. art. 920. On appeal, the State notes that defendant received an illegally lenient enhanced sentence because the trial judge did not impose the enhanced sentence without “benefit of probation or suspension of sentence” or without 11 ¡^benefit of parole for the first five years of the sentence. La. R.S. 15:529.1(G); La. R.S. 40:967(B)(4)(b), West 1999.

When a defendant is sentenced as a multiple offender, “the penalty increase is computed by reference to the sentencing provisions of the underlying offense. Similarly, the conditions imposed on the sentence are those called for in the reference statute.” State v. Taylor, 99-385 (La.App. 5 Cir. 8/31/99), 743 So.2d 749, 754. We agree with the State’s contention and note that, under La. R.S. 15:301.1(A), as interpreted by State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, 799, these restrictions are imposed by operation by law. See, State v. Segura, 02-280 (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 required on appeal.

CONVICTIONS AFFIRMED; SENTENCES AMENDED AND AFFIRMED.

      . Deputy Randall testified at trial that “two twenties” is street slang for two $20.00 pieces of crack cocaine.

      . " '[T]he law in effect at the time of the commission of the offense is determinative of the penalty which the accused must suffer.' ” State v. Cook, 02-104 (La.App. 5 Cir. 5/29/02), 820 So.2d 1144, 1145 (quoting State v. Wright, 384 So.2d 399, 401 (La.1980)).


author: J¿CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Linroy DOUGLAS.
    No. 03-KA-1266.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 23, 2004.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for plaintiff-appel-lee.
    Jane L. Beebe, Gretna, LA, for defendant-appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and CLARENCE E. McMANUS.
   J¿CLARENCE E. McMANUS, Judge.

In this case, defendant, Linroy Douglas, appeals his enhanced sentence of twenty years at hard labor for possession with intent to distribute marijuana following adjudication as a multiple offender. For the following reasons, we affirm his conviction and sentence.

FACTS AND PROCEDURAL HISTORY

On December 1, 2000, Jefferson Parish Sheriffs Office Sergeant Jason Renton received information from a confidential informant that a subject identified as “Black” was distributing narcotics from a residence located at 2800 Mount Kennedy Boulevard, Building 16, Apartment 1604 (defendant’s residence). Thereafter, Sgt. Renton and the informant went to the residence so that the informant could make a controlled narcotics purchase. Sgt. Renton testified that he observed the informant enter and exit the residence and walk straight back to Sgt. Renton’s vehicle.

The informant subsequently gave the narcotics he purchased to Sgt. Renton. The sergeant then conducted a field test on the substance which tested positive for the presence of marijuana. Sgt. Renton left the residence, prepared a search warrant, and had it signed. Detective Jeff Heggelund conducted surveillance on the residence in Sgt. Renton’s absence.

When Sgt. Renton arrived back at the residence, he and other officers entered with a key they obtained from Joseph Douglas, who was previously at the residence. Defendant and two small children were inside. A canine and his handler, Agent Dawn Gentner, searched the residence. While Agent Gentner led the dog through the residence, Sgt. Renton sat at the kitchen table with defendant and logged in the evidence as it was brought to him.

IsSgt. Renton advised defendant of his constitutional rights. When Agent Gent-ner located 87 bags containing marijuana, Sgt. Renton again advised defendant of his constitutional rights and asked him who owned the marijuana. Defendant responded that he did not know the marijuana was in the residence. However, once Sgt. Bruce Harrison brought over a larger Ziploc bag containing marijuana, defendant said, “Y’all can stop tearing up my house, I don’t have anything else, you got it all.”

While Sgt. Renton was transporting defendant to the detective bureau, defendant admitted the marijuana belonged to him. Sgt. Renton asked defendant to identify his supplier. Defendant replied that he wanted to negotiate a deal. Sgt. Renton told defendant that he could not authorize a deal, and that he would have to contact the District Attorney’s office. Defendant told Sgt. Renton that he was obtaining three to four pounds of marijuana, and that he was purchasing the marijuana for $600.00 a pound. In addition to the marijuana, the officers found a pistol with an ammunition magazine and a large amount of cash during the search of defendant’s residence.

The Jefferson Parish District Attorney filed a bill of information charging defendant, Linroy Douglas, with Count 1: being a felon in possession of a firearm in violation of LSA-R.S. 14:95.1; and Count 2: possession with intent to distribute marijuana in violation of LSA-R.S. 40:966(A). Defendant was arraigned and pled not guilty.

Defendant waived his right to a jury trial and the matter was tried by the trial judge. Following conclusion of the trial, defendant was found guilty as charged. The trial judge sentenced defendant to imprisonment at hard labor for fifteen years on Count 1 and twenty years on Count 2, with the sentences to run concurrently. The trial judge also ordered the sentence on Count 1 to be served without benefit of Rparole, probation, or suspension of sentence. Defendant filed a motion to reconsider sentence which was denied.

Following sentencing, the state filed a multiple bill alleging defendant to be a third felony offender. Defendant denied the allegations of the multiple bill and filed objections to the multiple bill. On October 3, 2003, the trial judge found defendant to be a third felony offender, vacated the original sentence on Count 2, and sentenced defendant to imprisonment at hard labor for twenty years without benefit of probation or suspension of sentence, to run concurrently with the original sentence on Count 1. Defendant’s motion for appeal was granted. This appeal followed.

DISCUSSION

Defendant argues that his twenty-year multiple offender sentence is constitutionally excessive, even though it was the mandatory minimum sentence prescribed. He contends that a pre-sentence investigation was not ordered. Defendant asserts that the trial court failed to articulate reasons for his severe sentence, other than the fact that the sentence was legislatively mandated and that a loaded gun was found in the house with children. He claims that the trial court did not consider any mitigating factors, such as his relatively young age, the absence of prior convictions for crimes of violence, or the fact that he was trying to support his family. The state responds that the sentence was not constitutionally excessive.

Our review of the record demonstrates that defendant did not file a written motion to reconsider the multiple offender sentence under the provisions of La-C.Cr.P. art. 881.1. Additionally, defendant did not make an oral objection to the enhanced sentence at the time of sentencing. The failure to file a motion to reconsider sentence, or to state specific grounds upon which the motion is based, limits a defendant to a review of the sentence for constitutional excessiveness. State v. Hester, 99-426 (La.App. 5 Cir. 9/28/99), 746 So.2d 95, 103, writ denied, 99—3217 (La.4/20/00), 760 So.2d 342. Accordingly, we now examine defendant’s sentence to determine if it is constitutionally excessive based on the following criteria.

A sentence is constitutionally excessive, even if it is within the statutory limits, if it is grossly disproportionate to the severity of the offense or is nothing more than the needless and purposeless imposition of pain and suffering. State v. Wickem, 99-1261 (La.App. 5 Cir. 4/12/00), 759 So.2d 961, 968, writ denied, 00-1371 (La.2/16/01), 785 So.2d 839. Trial judges are granted great discretion in imposing sentences and sentences will not be set aside as excessive absent clear abuse of that broad discretion. State v. Bacuzzi, 97-573 (La.App. 5 Cir. 1/27/98), 708 So.2d 1065, 1068-1069. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. Watts, 99-311 (La.App. 5 Cir. 8/31/99), 746 So.2d 58, 64, writ denied, 99-2733 (La.3/24/00), 758 So.2d 145.

The Louisiana Supreme Court has recognized that a mandatory minimum sentence under the Habitual Offender Law may still be reviewed for constitutional excessiveness. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Cushinello, 01-109 (La.App. 5 Cir. 7/30/01), 792 So.2d 926, 929, writ denied, 01-2505 (La.9/20/02), 825 So.2d 1159.

When a trial court determines that the minimum sentence mandated by LSA-R.S. 15:529.1 makes no “measurable contribution to acceptable goals of punishment,” or that the sentence amounts to nothing more than “the purposeful imposition of pain and suffering” and is “grossly out of proportion to the severity of the crime,” the trial judge must reduce the sentence to one that would not be constitutionally excessive. State v. Dorthey, 623 So.2d at 1280; State v. Ventress, 01-1165 (La.App. 5 Cir. 4/30/02), 817 So.2d 377, 383. However, it is presumed that the mandatory minimum sentence under the Habitual Offender Law is constitutional. State v. Johnson, 709 So.2d at 676; State v. Harbor, 01-1261 (La.App. 5 Cir. 4/10/02), 817 So.2d 223, 226, writ denied, 02-1489 (La.5/9/03), 843 So.2d 388.

In order to rebut the presumption of constitutionality, the defendant must clearly and convincingly show that he is “exceptional, which ... means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense and the circumstances of the case.” State v. Harbor, 817 So.2d at 227. When evaluating whether the defendant has met his burden, the trial court must be mindful of the goals of the Habitual Offender Law, which are to deter and punish recidivism.

Further, if the trial court finds clear and convincing evidence that justifies reducing the mandatory minimum sentence, the court cannot impose whatever sentence it may feel is appropriate. Rather, the trial court must impose the longest sentence that is not constitutionally excessive with specific reasons to explain why that sentence is the longest sentence that is not constitutionally excessive. Johnson emphasized that a downward departure from the minimum sentence mandated by LSA-R.S. 15:529.1 should only occur in “rare situations.” State v. Johnson, 709 So.2d at 677.

In the instant case,, the trial judge found defendant to be a third felony offender, vacated the sentence on Count 2 (possession with intent to distribute marijuana), and sentenced defendant under LSA-R.S. 15:529.1 to imprisonment at hard labor for twenty years without benefit of probation or suspension of sentence, to run concurrently with the sentence on Count 1.

At the time that the offense was committed on December 1, 2000, LSA-R.S. 15:529.1(A)(1) provided in pertinent part:

(b) If the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life then:
\i- • • •
(i) The person shall be sentenced to imprisonment for a determinate term not less than two-thirds of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction; or
(ii) If the third felony or either of the two prior felonies is a felony defined as a crime of violence under R.S. 14:2(13) or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for more than five years or any other crime punishable by imprisonment for more than twelve years, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

La-R.S. 15:529.1(A)(l)(b)(ii) was amended by Acts 2001, No. 403 § 2, effective June 15, 2001, to read as follows:

If the third felony and the two prior felonies are felonies defined as a crime of violence under R.S. 14:2(13), a sex offense as defined in R.S. 15:540 et seq. when the victim is under the age of eighteen at the time of commission of the offense, or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or any other crimes punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

The changes mandated by 2001 La. Acts 403 do not apply to sentences imposed for crimes committed before the Act’s effective date. State v. Barnes, 02-2059 (La.4/4/03), 845 So.2d 354. Operation of this rule extends to habitual offender sentences imposed pursuant to LSA-R.S. 15:529.1. Id.

At the time of the offense in this case, possession with intent to distribute marijuana (the underlying offense) was punishable by imprisonment at hard labor for not less than five years nor more than thirty years and a fine of not more than fifty thousand dollars. La-R.S. 40:966(B)(2). La-R.S. 15:529.1(A)(l)(b)(ii) then provided for the imposition of a life sentence without benefit of parole, probation, or suspension of sentence. At the habitual offender hearing, the state proved that defendant was previously convicted of possession of cocaine in 1993 and possession with intent to distribute cocaine in 1991.

| ^Defendant's underlying offense and the 1991 predicate are violations of the Uniform Controlled Dangerous Substances Law punishable by more than five years imprisonment. LSA-R.S. 40:966(B)(2) and R.S. 40:967(B)(4)(b). Therefore, under the habitual offender statute as it existed at the time of the commission of this offense (December 1, 2000), defendant was subject to an enhanced mandatory minimum sentence of life imprisonment at hard labor without benefit of parole,, probation, or suspension of sentence. We note that defendant’s twenty-year enhanced sentence is illegally lenient. However, neither the state nor defendant raised that issue below or on appeal.

Pursuant to State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, and LaC.Cr.P. art. 882, this Court has the authority to correct an illegally lenient sentence despite the fact that neither party raised the issue in the district court or on appeal. State v. Clemons, 01-1032 (La.App. 5 Cir. 2/26/02), 811 So.2d 1047, 1049, writ denied, 02-866, 02-918 (La.11/22/02), 834 So.2d 972, cert. denied, — U.S.-, 123 S.Ct. 2228, 155 L.Ed.2d 1117 (2003). This authority is permissive rather than mandatory. State v. Jordan, 02-820 (La.App. 5 Cir. 12/20/02), 836 So.2d 609.

In State v. Williams, 02-1016 (La.App. 5 Cir. 2/25/03), 841 So.2d 936, 944-947, defendant argued that his thirty-year sentence for possession of cocaine as a fourth felony offender was constitutionally excessive. Before addressing the merits of defendant’s assignment, this Court addressed the leniency of his sentence. We declined to exercise our authority under the facts presented in that case. We then analyzed the merits of defendant’s excessive sentence argument, but concluded that the thirty-year sentence was not constitutionally excessive. State v. Williams, 841 So.2d at 947.

In the instant case, prior to the multiple offender sentencing hearing, the trial judge stated:

| ¡¡One of — a couple of things troubled me about this. There were lots and lots and lots of drugs. — small amounts, big amounts, the whole schmear [sic]. That troubled me. But I guess what troubled me even more is that there was a gun in the room with two small children. Why anybody would do that is absolutely beyond me. We can all be very grateful that those children are still alive and well, and — because the chances of them not being are just too good. I mean, we read every day in the newspaper about people who — who—children who are playing with guns, that shoot each other, they don’t mean to, and that’s just about as bad as it gets, in my opinion.

The trial judge did not give oral reasons prior to sentencing defendant under the multiple offender bill of information.

After reviewing the record in this case, including the certified copies of defendant’s two predicate convictions, we find that the twenty year sentence for a third felony offense is not constitutionally excessive. Under the amended habitual offender statute, the sentencing range for defendant is twenty to sixty years. La-R.S. 15:529.1(A)(l)(b)(i). The trial court sentenced defendant to twenty years, which is the mandatory minimum. Moreover, under the pre-amendment version of La-R.S. 15:529.1, the mandatory minimum sentence for a defendant with two drug felonies was life imprisonment without benefit of parole, probation, or suspension of sentence. Thus, we find no merit to defendant’s argument that his twenty-year sentence is excessive.

ERROR PATENT DISCUSSION

We reviewed the record for errors patent, pursuant to La-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975) and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990), and note that there are no errors patent that required correction in this case.

DECREE

Based on the foregoing, defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: I ¡..SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Wesley TUMBLIN.
    No. 03-KA-1193.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 23, 2004.

      John H. Musser, IV, Don Almerico, St. Rose, LA, for Appellant, Sheriff Greg Champagne.
    Panel composed of Judges SOL GOTHARD, MARION F. EDWARDS, and SUSAN M. CHEHARDY.
   I ¡..SUSAN M. CHEHARDY, Judge.

On June 30, 1994, Wesley Tumblin was arrested and charged with attempted second degree murder, possession of stolen property, contributing to the delinquency of a minor, and resisting arrest. Pursuant to a plea agreement, the St. Charles Parish District Attorney filed a bill of information on September 13, 1994, charging defendant with attempted aggravated battery with a handgun, in violation of La. R.S. 14:27 and La. R.S. 14:34. That same day, Tumblin, who was represented by counsel, pleaded guilty to the reduced charge.

During his guilty plea colloquy that day, Tumblin acknowledged that he entered his plea with the understanding that he would be sentenced to “a five year term with the Louisiana Department of Corrections,” which would be suspended, and that he would be placed on three years of active probation to be followed by two years of inactive probation. Defendant waived statutory sentencing delays and the trial judge imposed a five-year suspended sentence at hard labor and placed Tumblin on active probation for three years to be followed by inactive probation for two years with special conditions of probation.

In the trial court record on Tumblin’s attempted aggravated battery 13conviction, a minute entry dated January 21, 1998 reads, “Case satisfied. Probation terminated.” On June 15, 1998, the Probation and Parole Division of the Louisiana Department of Public Safety notified Wesley Tumblin that, after successfully completing his sentence, he had been fully pardoned for attempted aggravated battery effective January 21, 1998. Further, this automatic first offender pardon restored all rights of citizenship, except the right to receive, possess, or transport a firearm.

On July 23, 2003, Tumblin filed a Motion to Expunge Criminal Record. Both the St. Charles Parish District Attorney and the St. Charles Parish Sheriff objected to Tumblin’s Motion to Expunge. On August 13, 2003, the trial judge held a contradictory hearing on Tumblin’s motion and took the matter under advisement. On August 18, 2003, the trial judge ordered that the criminal record in question “is hereby expunged.” He further ordered that records from “all law enforcement agencies [including St. Charles Parish Sheriff, Federal Bureau of Investigation, and Louisiana State Police] are hereby ordered to be sealed, destroyed, erased and/or take whatever action is needed to expunge the criminal record of the aforesaid, all in accordance with law.” On September 5, 2003, St. Charles Parish Sheriff Greg Champagne filed a motion for appeal, which was granted.

On appeal, Sheriff Champagne asserts three assignments of error: the trial judge erred in granting expungement where prosecution was instituted and a conviction was obtained; the trial judge erred in ordering expungement of a criminal record where the plea was not tendered pursuant to La.C.Cr.P. art. 893; and the trial judge erred in expunging defendant’s criminal record over the objections of the St. Charles District Attorney and St. Charles Parish Sheriffs Office. Mr. Tumblin has not answered Sheriff Champagne’s appeal.

La. R.S. 44:9 governs the expungement of criminal records and, regarding records of felony convictions, reads in pertinent part:

E. (l)(a) No court shall order the destruction of any record of the arrest and prosecution of any person convicted of a felony, including a conviction dismissed pursuant to Article 893 of the Code of Criminal Procedure.
(b) After a contradictory hearing with the district attorney and the arresting law enforcement agency, the court may order expungement of the record of a felony conviction dismissed pursuant to Article 893 of the Code of Criminal Procedure. Upon the entry of such an order of expungement, all rights which were lost or suspended by virtue of the conviction shall be restored to the person against whom the conviction has been entered, and such person shall be treated in all respects as not having been arrested or convicted unless otherwise provided in this Section or otherwise provided in the Code of Criminal Procedure Articles 893 and 894.
% * *
G. “Expungement” means removal of a record from public access but does not mean destruction of the record. An expunged record is confidential, but remains available for use by law enforcement agencies, criminal justice agencies, the Louisiana State Board of Medical Examiners, the Louisiana State Board of Nursing, the Louisiana State Board of Dentistry or the Louisiana State Board of Examiners of Psychologists.

La. R.S. 14:34 defines aggravated battery as a battery committed with a dangerous weapon. Further, a defendant who is convicted of aggravated battery is subject to a fine of not more than five thousand dollars, imprisonment with or without hard labor for not more than ten years, or both.

According to La. R.S. 14:27(D)(3), which is the default punishment provision for attempted felonies, “In all other cases [a person convicted of attempt] shall be fined or imprisoned or both, in the same manner as for the offense attempted; such fine or imprisonment shall not exceed one-half of the largest fine, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both.” Consequently, attempted aggravated battery is punishable by a fine of $2,500.00, or imprisonment with or without hard labor for not more than | fifive years, or both.

La.C.Cr.P. art. 934 defines “convicted” as “adjudicated guilty after a plea or after trial on the merits.” In this case, defendant pled guilty to attempted aggravated battery, which is a felony. La. R.S. 14:2(4). Further, the trial judge accepted defendant’s guilty plea and adjudicated him guilty before imposing sentence on September 8,1994.

Under La. R.S. 44:9(E)(1)(a), the trial judge cannot order the destruction of any record of the arrest and prosecution of any person convicted of a felony. Therefore, we find that the trial judge’s order to destroy the record of defendant’s felony conviction was in error.

Next, we address whether the record can be expunged. According to La. R.S. 44:9(E)(l)(b), the court may order expungement of the record of a felony conviction dismissed pursuant to Article 893 of the Code of Criminal Procedure after a contradictory hearing with the district attorney and the arresting law enforcement agency. Initially, we note, as Sheriff Champagne correctly points out, that defendant did not plead guilty under La.C.Cr.P. art. 893.

Under the law in effect at the time of defendant’s 1994 guilty plea, La.C.Cr.P. art. 893 authorized that, for certain felony offenses, the trial judge could suspend the imposition or the execution of sentence and place a defendant on probation. It also gave the trial judge discretion to set aside and dismiss the prosecution of certain felony convictions, when the imposition of the sentence had been suspended. The dismissal operated as an acquittal subject to its use as a basis for enhancement of a habitual offender sentence. Again, the trial judge only has the authority to grant a judgment of dismissal or acquittal when the imposition of the sentence is deferred. Here, defendant’s sentence was imposed not deferred. As | fisuch, defendant was not eligible for the benefits afforded by La.C.Cr.P. art. 893, including dismissal. Further, according to La. R.S. 44:9(E)(l)(b), since the defendant’s conviction was not dismissed pursuant to La. C.Cr.P. art. 893, the record of defendant’s felony conviction may not be expunged.

Finally, because we find merit in his first and second assignments of error, we pretermit discussion of Sheriff Champagne’s third assignment of error. For the foregoing reasons, we vacate and set aside the trial court’s order granting ex-pungement and destruction of his 1994 attempted aggravated battery conviction and remand for further proceedings consistent with this opinion.

VACATED AND REMANDED.

      . See the 1996 Official Revision Comments to La.C.Cr.P. art. 893.

      . La.C.Cr.P. art. 893(D)(1)(a) and (2).


author: LSUSAN M. CHEHARDY, Judge.

text:
    REGENCY MOTORS OF METAIRIE, L.L.C. d/b/a Regency Ford, Troy J. Duhon, Allen Krake, Michael M. Seago and David R. Williams v. HIBERNIA-ROSENTHAL INSURANCE AGENCY, L.L.C. d/b/a Hibernia-Rosenthal Insurance Agency, Inc., Rosenthal Agency, Inc., Hibernia National Bank, Legion Insurance Company, Chubb Insurance Company, Lloyds of London, Inc. and Unionamerica Insurance Company, Ltd.
    No. 03-CA-1312.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 23, 2004.

      E. John Litchfield, Al M. Thompson, Jr., New Orleans, LA, and William W. Hall, Metairie, LA, for Appellant, Regency Motors of Metairie, L.L.C. d/b/a Regency Ford, et al.
    Joseph Maselli, Jr., S. Michael Cooper, New Orleans, LA, for Appellee, Federal Insurance Company.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD, and SUSAN M. CHEHARDY.
   LSUSAN M. CHEHARDY, Judge.

This appeal arises in a suit against various insurers for failure to defend and indemnify the insureds against liability in another lawsuit. The trial court granted summary judgment in favor of one of the defendants, Federal Insurance Company, and the plaintiffs appeal. We affirm.

The original lawsuit was a dispute among the owners of an automobile dealership in which two of the owners (Robert Weinmann and Cindy Weinmann) filed suit for dissolution of the company. See Weinmann v. Duhon, 01-1267 (La.App. 5 Cir. 3/26/02), 818 So.2d 206, writ denied, 02-2082 (La.11/1/02), 828 So.2d 574.

During the course of the suit, the owners who had been defendants (Troy J. Duhon, Michael M. Seago, and David R. Williams) and the company itself (Regency Motors of Metairie, LLC d/b/a Regency Ford) filed the instant suit against various insurers for breach of contract arising from those insurers’ refusal to defend and indemnify them in the Weinmann suit.

| aAmong the insurers was Federal Insurance Company. Federal issued umbrella coverage to Regency Motors that was excess to a $1 million comprehensive general liability policy issued by Legions Insurance Company. Federal raised affirmative defenses, among them coverage defenses.

Plaintiffs filed a motion for partial summary judgment, asserting that the claims in the Weinmann suit clearly were covered under the “wrongful eviction” provision in the policy definition of “personal injury,” so that plaintiffs were entitled to a defense of all the allegations and, thus, to partial summary judgment enforcing the duty to defend.

Federal filed a motion for summary judgment, asserting that the claims do not constitute a personal injury within the meaning of its insurance policy and that its obligation to defend cannot be triggered absent payment of the $1 million underlying limits. The trial court granted the motion and plaintiffs appealed.

On appeal plaintiffs contend the trial court erred in granting Federal’s motion for summary judgment, because the pleadings in the Weinmann lawsuit set forth factual allegations supporting claims for wrongful eviction and malicious prosecution that were covered under the Federal policy.

In opposition, Federal asserts, first, that the judgment granting its motion for summary judgment is not a final judgment for purposes of appeal, so that this court does not have jurisdiction over the appeal. Second, Federal contends the underlying corporate dissolution suit did not allege a covered offense that would trigger a duty to defend on the part of Federal.

| ¿APPEALABILITY OF JUDGMENT

First, we note that this matter is appeal-able under La.C.C.P. art. 1915(A)(3), which provides that a final judgment may be rendered, even though it may not grant the successful party all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court grants a motion for summary judgment as provided by Articles 966 through 969, but not including a summary judgment granted pursuant to Article 966(E).

Defendant asserts that this was a summary judgment granted pursuant to Article 966(E), which is a summary judgment “dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case.” We disagree; this summary judgment disposed of all the plaintiffs’ claims against Federal, by finding there is no coverage for the claims under Federal’s policy. Hence, it was not a partial summary judgment as to Federal.

We are not restricted by the cases cited by defendant to support its argument that this judgment is not appealable, because those cases were rendered prior to a 1999 amendment to Article 1915(B)(1). Prior to the 1999 amendment, a judgment that related to “as to one or more but less than all of the claims, demands, issues, theories, or parties [emphasis added]” could not constitute a final judgment unless designated as such by the court “after an express determination that there is no just reason for delay.”

Acts 1999, No. 1263, § 1, eliminated the term “parties” from (B)(1) to eliminate confusion with Article 1915(A). A partial final judgment under Article 1915(B) is appealable only if so designated by the court, while a final judgment | Bunder Article 1915(A) is appealable without being so designated, except for a partial summary judgment under Article 966(E). As mentioned above, Art. 966(E) is not applicable to the summary judgment in favor of Federal; thus, the judgment before us is ap-pealable.

COVERAGE

The policy states it provides coverage for legal liability of the insured for, among other things, personal injury during the policy period. The policy defines personal injury as follows, in pertinent part:

Personal injury means injury, other ■than bodily injury, arising out of one or more of the following offenses committed in the course of your business ...:
* * *
2. malicious prosecution;
3. the wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person or persons occupy, by or on behalf of its owner, landlord or lessor;....

The question is whether the allegations in the Weinmanns’ petition fit into any of those categories, so as to trigger a duty to defend.

The burden of proof is on the plaintiff to establish every fact essential to his claim and that his claim is within the insurance policy coverage. Gandy v. United Services Auto. Ass’n, 98 215 (La.App. 1 Cir. 10/14/98), 721 So.2d 34, 36, writ denied, 98-2836 (La.1/15/99), 786 So.2d 208.

“Every insurance contract shall be construed according to the entirety of its terms and conditions as set forth in the policy, and as amplified, extended, or modified by any rider, endorsement, or application attached to or made a part of the policy.” La.R.S. 22:654.

The original petition in Weinmann was titled Petition for Judicial Dissolution of Limited Liability Company and Alternatively for Declaratory Judgment. It set out the parties’ various ownership interests in the company as well has their written agreements regarding organization and operation of the company. It alleged that Duhon and Seago engaged in activities and executed documents that violated and conflicted with the Operating Agreement.

In addition, the original petition related actions taken by the parties to make and enforce their plans against the opposing parties, and petitioned the court for judicial dissolution of the company on the ground it is no longer reasonably practicable to carry on business in conformity with the articles of organization and operating agreement. Alternatively, it sought a declaration of the Weinmanns’ rights and status as member/managers of the company.

In the First Supplemental and Amended Petition, the Weinmanns sought a temporary restraining order and preliminary injunction. They alleged that the defendants wrote to Robert Weinmann and informed him he would no longer have access to any of the LLC member/manager information or documents, including the books and accounts. They alleged further that the defendants signed a document that purported to expel the Weinmanns from the LLC. The “Expulsion Action” also threatened the Weinmanns with legal action “if they attempt to continue participating in, attending to or appearing on the property of the LLC:... ”

Plaintiffs assert that the Weinmanns’ allegations against them are subject to the “wrongful eviction” definition of personal injury. We disagree.

Black’s Law Dictionary (7th ed.1999) defines “eviction” as follows, in pertinent part:

The act or process of legally dispossessing a person of land or rental property....
Actual eviction. A physical expulsion of a person from land or rental property.
Constructive eviction. 1. A landlord’s act of making premises unfit for occupancy, often with the result that the tenant is compelled to leave. 2. The inability of a land |7purchaser to obtain possession because of paramount outstanding title.

The dictionary defines “wrongful” as, “[cjharacterized by unfairness or injustice .... [cjontrary to law; unlawful.” Black’s Law Dictionary (7th ed.1999)

The Weinmanns did not allege they were evicted from any premises they had a right to occupy. Rather, they alleged they were threatened with legal action if they continued to participate in, attend to, or appear on the property of Regency Ford. There was no actual impingement on any possessory rights they may have had.

Nor do we find merit to plaintiffs’ argument that there is coverage under the “malicious prosecution” aspect of the policy’s personal injury definition. “Malicious prosecution” is “[t]he institution of a criminal or civil proceeding for an improper purpose and without probable cause” or “[t]he cause of action resulting from the institution of such a proceeding.” Black’s Law Dictionary (7th ed.1999).

[T]he elements of a malicious prosecution action are: (1) the commencement or continuance of an original criminal or civil judicial proceeding; (2) its legal causation by the present defendant in the original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; and (6) damage conforming to legal standards resulting to plaintiff.

Jones v. Soileau, 448 So.2d 1268, 1271 (La.1984).

The Weinmanns did not allege that legal action was taken against them — rather, they were threatened with legal action. A mere threat does not equate to a prosecution. The acts the Weinmanns alleged against their co-owners clearly do not fit within the definition of malicious prosecution.

|sFor the foregoing reasons, we find no error in the trial court’s determination that Federal Insurance Company is entitled to summary judgment. The judgment is affirmed. Costs of this appeal are assessed against the appellants.

AFFIRMED.

      . Allen Krake, one of the owners, was named as a plaintiff in this suit, but filed a motion to strike his name from the petition and to amend the petition by having his name removed. The motion was granted, so Krake is not one of the plaintiffs in this case, despite the appearance of his name on the record.

      . Federal is misnamed Chubb Indemnity Insurance Company in the petition; Federal actually is a subsidiary of the Chubb Group of Insurance Companies.

      . Bleuler v. Isacks Const. Co., Inc., 99-294 (La.App. 5 Cir. 11/10/99), 748 So.2d 1182; Guimmo v. Albarado, 98-242 (La.App. 5 Cir. 9/29/98), 720 So.2d 90.


text:
    Jim S. HALL v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, James A. Williams, Lawrence G. Willie and Janet Willie.
    No. 03-CA-1333.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 23, 2004.

      Jim S. Hall, Jim S. Hall & Associates, LLC, Metairie, LA, for Plaintiff/Appellant.
    Nicole C. Palmisano, Law Offices of Mickey S. Delaup, Metairie, LA, for Defendant/Appellee (St. Paul Fire & Marine Insurance Company).
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and SUSAN M. CHEHARDY.
   LSOL GOTHARD, Judge.

In this appeal, plaintiff Jim Hall seeks review of a trial court ruling that granted a motion for summary judgment and dismissed all claims as to defendant St. Paul Fire and Marine Insurance Company (St. Paul). For reasons that follow, we affirm.

The facts are not in dispute. Jim Hall entered into an employment contract in conformance with La. R.S. 37:218 with Lawrence and Janet Willie for their legal representation in a tort suit against St. Paul. Mr. Hall represented the Willies from February 23, 1999 until May 5, 1999, when he was discharged. He did not record the contract in either Orleans Parish, where the suit was pending or in St. Tammany Parish, where the Willies are domiciled.

Subsequently, the Willies retained James Williams to represent them in the lawsuit. Mr. Williams filed suit in Orleans Parish and ultimately the claims were mediated and settled. Mr. Hall did not file an intervention for attorney fees due under the contract in that suit. On November 20, 2000, St. Paul issued two checks to satisfy the settlement. Neither check included Mr. Hall as a payee.

|sMr. Hall filed suit in connection with the settlement agreement on December 9, 2002 against St. Paul, the Willies and Mr. Williams. In due course St. Paul filed a motion for summary judgment arguing that pursuant to La. R.S. 37:218, recordation of the employment contract is mandatory for recovery against a defendant in the main demand who was not a party to the contingency fee contract.

Mr. Hall filed an opposition to the motion, in which he conceded he neither filed the contract into the public records, nor intervened in the pending lawsuit. However, Mr. Hall maintained that answers to request for admissions show that St. Paul had actual knowledge of the contingency contract and of Mr. Hall’s intent to enforce his lien.

After a hearing on the matter, the trial court found that St. Paul had actual knowledge of Mr. Hall’s contract with the Willies, but because Mr. Hall neither recorded the contract nor filed an intervention in the lawsuit in conformance with the provisions of La. R.S. 37:218, St. Paul did not have constructive knowledge of the contract. Based on those findings, the court found as a matter of law, St. Paul was entitled to summary judgment. It is from that judgment that Mr. Hall appeals.

Summary judgment is appropriate when there are no genuine issues of material fact remaining to be decided and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966. Here there are no factual issues remaining. The contingency contract was not recorded nor made the subject of an intervention in the underlying suit. Mr. Hall did, however, notify St. Paul by certified mail on May 5,1999 of his interest in the proceeds of any settlement. Thus, we must determine whether St. Paul is entitled to summary judgment as a matter of law.

La. R.S. 37:218 A provides as follows:

By written contract signed by his client, an attorney at law may acquire as his fee an interest in the subject matter of a suit, proposed suit, or claim in the assertion, prosecution, or defense of which he is employed, whether the claim or suit be for money or for property. Such interest shall be a special pi-ivilege to take rank as a first |4privilege thereon, superior to all other privileges and security interests under Chapter 9 of the Louisiana Commercial laws. In such contract, it may be stipulated that neither the attorney nor the client may, without the written consent of the other, settle, compromise, release, discontinue, or otherwise dispose of the suit or claim. Either party to the contract may, at any time, file and record it with the clerk of court in the parish in which the suit is pending or is to be brought or with the clerk of court in the parish of the client’s domicile. After such filing, any settlement, compromise, discontinuance, or other disposition made of the suit or claim by either the attorney or the client, without the written consent of the other, is null and void and the suit or claim shall be proceeded with as if no such settlement, compromise, discontinuance, or other disposition has been made.

We note that pursuant to the above cited statute an attorney may acquire an interest in a lawsuit of a client by contingency fee contract. That interest operates as a privilege on funds eventually obtained in the lawsuit. The interest is not an ownership interest in the lawsuit. Saucier v. Hayes Dairy Products, Inc. 373 So.2d 102, 117 (La.1978). Recordation under R.S. 37:218 A is not necessary for enforcement of a contingency contract between the attorney and the client. However to be effective against third parties, the contract must be recorded. Scott v. Kemper Insurance Company, 377 So.2d 66 (La.1979). As explained by the Supreme Court in Scott 377 So.2d at 70:

The obvious intent of R.S. 37:218 is to prevent a client’s discharging an attorney and thereby depriving the attorney of his earned fee. Therefore, if the attorney with a written contingency fee contract bearing the no consent stipulation “file(s) and records it with the clerk of court in the parish in which the suit is pending ... ”, then a defendant who disburses the settlement proceeds without ascertaining and paying the fee to which the attorney is due, will do so to his prejudice. The extinguishing effect of the settlement will therefore be suspended, as the Court of Appeal determined in this case, until recognition and payment of the fee to which the attorney is entitled, determined in accordance with the principles established in Saucier.
Unlike the situation in Calk, where recordation of the contingency fee contract is irrelevant in a contest between an attorney and the client’s creditor, imposition of an obligation upon the client’s obligor in the suit to retain settlement funds until determination of fee entitlement, is dependent upon the attorney’s full compliance with R.S. 37:218, including the recordation of the contract as stipulated therein.

|sMr. Hall acknowledges the law and jurisprudence require compliance with the terms of La. R.S. 37:218 to impose an obligation upon the client’s obligor. However, he urges this court to rule that noncompliance will bind the obligor where actual knowledge is shown. We find no justification for such an extension of the law. The statute is clear and the applicable jurisprudence is consistent. While recordation is not necessary for the attorney to maintain a privilege on any compromise or settlement funds, compliance with the re-cordation provision of the statute or an intervention in the underlying lawsuit is required for imposition of liability on a third party. See; Hawthorne v. National Union Fire Insurance Company, 562 So.2d 473 (La.App. 3 Cir.1990), writ denied, 567 So.2d 103 (La.1990), Ruiz v. Williams, 425 So.2d 929 (La.App. 4 Cir.1983). In this case, Mr. Hall neither recorded the contract in the public records nor intervened in the lawsuit when it was filed. Therefore, we find the trial court was correct in the grant of the summary judgment as to St. Paul.

AFFIRMED.