author: UWALTER J. ROTHSCHILD, Judge.

text:
    METAIRIE COUNTRY CLUB v. LOUISIANA TAX COMMISSION, Lawrence J. Chehardy, In his Capacity as Assessor of Ad Valorem Taxes for Jefferson Parish, State of Louisiana and Harry Lee, Sheriff of Jefferson Parish, In his Capacity of Ex-Officio Tax Collector for Jefferson Parish.
    No. 03-CA-538.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 28, 2003.

      Thomas P. Anzelmo, Mark E. Hanna, Catherine M. Williams, McCranie, Sis-trunk, Anzelmo, Hardy, Maxwell & McDaniel, Metairie, LA, for Metairie Country Club, Plaintiff-Appellee.
    Paul Damian Rees, Weiler & Rees, LLC, New Orleans, LA, for Metairie Country Club, Plaintiff-Appellee.
    Peter J. Butler, Peter J. Butler, Jr., Richard G. Passler, Sarah Ney, Breazeale, Sachse & Wilson, LLP, New Orleans, LA, for Lawrence E. Chehardy In his Capacity as Assessor for the Parish of Jefferson, D efendant-Appellant.
    Robert D. Hoffman, Jr., Burk & Mayer, PLC, New Orleans, LA, for Louisiana Tax Commission, Defendant-Appellee-2nd Appellant.
    Panel composed of Judges THOMAS F. DALEY, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   UWALTER J. ROTHSCHILD, Judge.

Lawrence E. Chehardy, in his capacity as Assessor of the Parish of Jefferson, appeals from a judgment of the trial court declaring that the property of Metairie Country Club (MCC) is exempt from ad valorem taxation. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On December 28, 2000, Metairie Country Club (MCC) filed the instant petition for recovery of taxes paid under protest, naming as defendants the Louisiana Tax Commission, Lawrence J. Chehardy in his capacity as assessor, and Harry Lee in his capacity as ex-officio tax collector for Jefferson Parish and as the party to whom the taxes in this matter were paid under protest. In this petition, MCC contended that the ad valorem property taxes assessed for the year 2000 were in violation of the laws and constitution of the State of Louisiana, and the MCC sought recovery of the payment of taxes.

l4In response to this petition, defendant Chehardy brought exceptions of vagueness and failure to state a cause of action on the basis that a refund of taxes could only be obtained from defendant Harry Lee, the party to whom the taxes were paid. The trial court granted in part defendant’s exceptions, ordered plaintiff to amend the petition and dismissed plaintiffs claims against Lawrence Chehardy for repayment of taxes. Plaintiff subsequently amended the original petition seeking a declaratory judgment that the ad valorem tax assessed against it by the assessor was in violation of the laws and constitution of the state of Louisiana.

Thereafter, both Metairie Country Club and Lawrence Chehardy filed opposing motions for summary judgment in this matter with supporting evidence and affidavits. By judgment rendered May 15, 2002, the trial court denied both of the motions and the matter proceeded to a bench trial on September 4, 2002.

At trial, the parties did not introduce additional evidence, but stipulated to the evidence previously submitted at the motions for summary judgment, including reports and depositions of witnesses and the articles of incorporation and by-laws of Metairie Country Club. The trial court further heard oral arguments from counsel for both parties and took the matter under advisement. By judgment rendered on September 18, 2002, the trial court declared that the property owned by Metair-ie Country Club was exempt from ad valo-rem taxation. The court further ordered that Harry Lee, as sheriff and ex-officio tax collector for Jefferson Parish, refund to Metairie Country Club the property taxes collected for the years 2000 and 2001.

Lawrence Chehardy now appeals from this judgment of the trial court on the basis that MCC failed to satisfy the constitutional requirements of an exemption to ad valorem tax assessment. Specifically, the assessor argues |Rthat the trial court erred in failing to find that the net earnings of the Club inure to the benefit of its shareholders/members, thereby precluding the tax exemption according to state law.

LAW AND DISCUSSION

Metairie Country Club claims exemption of its facilities from ad valorem taxation under the 1974 Louisiana Constitution, Art. VII, Section 21(B)(1)(a), which provides in pertinent part as follows:

Section 21. In addition to the homestead exemption provided for in Section 20 of this Article, the following property and no other shall be exempt from ad valorem taxation:
(B)(1)(a) Property owned by a nonprofit corporation or association organized and operated exclusively for religious, dedicated places of burial, charitable, health, welfare, fraternal, or educational purposes, no part of the net earnings of which inure to the benefit of any private shareholder or member thereof and which is declared to be exempt from federal or state income tax;

The jurisprudence of this state has consistently held that constitutional and statutory grants of exemption from taxation must be strictly construed in favor of the taxing body and against the taxpayer desiring the exemption. Any possible doubt is fatal to the exemption. Thus, an exemption, being an exceptional privilege, must be clearly, unequivocally and affirmatively established. Zapata Haynie Corp. v. Larpenter, 583 So.2d 867 (La.App. 1st Cir.1991), writ denied, 589 So.2d 1071 (La.1991).

Our resolution of this matter hinges on the interpretation of a constitutional provision, and is therefore a question of law. Constitutional provisions are to be construed and interpreted by the same rules as are other laws. When a constitutional provision is plain and unambiguous, its language must be given effect. Aguillard v. Treen, 440 So.2d 704, 707 (La.1983). The standard of review |fion a question of law is to determine whether the lower court’s decision is legally correct or incorrect. Huddleston v. Farmers-Merchants Bank & Trust Co., 00-640 (La.App. 3 Cir. 11/2/00), 772 So.2d 356, 358.

At the trial of this matter, the parties stipulated to the evidence which was presented at the motion for summary judgment hearing in this matter. Evidence in the record consists of the corporate charter of MCC, its articles of incorporation and by-laws, corporate tax returns for the year 1999, and depositions of the president of MCC and its financial auditor.

In support of them position that the country club is exempt from ad valorem taxation, Metairie Country Club presented the deposition testimony and affidavit of Eric F. Fullmer, a certified public accountant who supervises the annual financial audit of the organization. Mr. Fullmer stated in his affidavit that MCC is a nonprofit organization that is exempt from income tax under the U.S. Internal Revenue Code, and that no part of the net earnings of the club inure to the benefit of any member thereof.

In support of its position that the exemption is not applicable to this organization, the assessor relies on the affidavit and report of John Marcus, a certified public accountant who was engaged by the assessor to review documentation to determine MCC’s tax exempt status. In his report issued in April of 2002, Mr. Marcus stated that he reviewed the corporate tax returns, the annual reports the deposition testimony and various letters to MCC membership which discuss the need for dues increases.

In the opinion of Mr. Marcus, the net earnings of Metairie Country Club inure to the benefit of the shareholders and members of the club. Mr. Marcus specifically noted that the costs of membership in the club in the form of dues and assessments are related to the operating results of the club and the net earnings (positive or negative). Mr. Marcus also noted that special assessments or dues 17increases are necessary when there is a deficit, but unnecessary when the results of operations generate positive net earnings. The report concluded that because the membership is required to contribute extra money to make up any deficiencies resulting from the club’s operations, a benefit is received by those members when the net earnings of the club do not require funding of a deficit.

In its reasons for judgment, the trial court stated as follows:

Defendants argue that if Metairie Country Club has net earnings, those earnings inure to the members’ benefit by relieving them or lessening a dues obligation or the payment of an assessment to acquire improvements to the club. Basically, the argument is that if a member has less of a detriment, i.e., has to pay less or no dues, fees or assessments, then that is a benefit.
This argument fails when contrasted with the undisputed facts of the operation of Metairie Country Club as a fraternal non-profit organization. The record amply confirms that no member or shareholder receives a monetary benefit should Metairie Country Club realize a net income in any year. It is undisputed that the value of the stock does not increase while it is held by any member. There are no dividends paid, nor is interest accrued on the value of the stock, no matter the value of the assets of the club or net income realized. It is also undisputed that, notwithstanding the assumed existence of net earnings, each member of the club must still pay dues on a monthly basis, pay charges for services provided by the Club, and pay all assessments, whether special or not, in order to retain the membership.
Based on the evidence submitted, this Court concludes that Metairie Country Club is entitled to be declared exempt from ad valorem taxes in accordance with the 1974 Constitution of the State of Louisiana.

On appeal, Assessor Chehardy concedes that MCC satisfies all of the constitutional requirements for an ad valorem tax exemption, except one: the net earnings of the club inure to the benefit of its shareholders/members. Moreover, the assessor contends that although the trial court correctly held that MCC had no profit or positive net earnings, the trial court manifestly erred in failing to consider that MCC’s negative net earnings inure to the members’ benefit, and thus the requirements of the tax exemption are not satisfied. Assessor Chehardy contends |sthat there is a direct relationship between net earnings and dues and assessments paid by members in that by not taking money away from the members by dues or assessments, the members receive a benefit. Finally, the assessor contends that the club’s articles of incorporation provide that, upon dissolution of the organization, the club’s assets may be distributed to its members. Assessor Chehardy argues that this provision further supports the claim that net earnings of the club inure to the benefit of its members, i.e., the assets of the club may be distributed to the members upon dissolution.

Thus, the primary issue presented by this appeal is whether the trial court erred in interpreting the constitutional provision in light of the facts of the present case to conclude that no net earnings (either positive or negative) of the MCC inure to the benefit of any of its members. We have carefully reviewed the entire record in this matter, as well as the applicable law and jurisprudence, and we find the record supports the trial court’s finding that no net earnings of the MCC inure to the benefit of its members.

The MCC produced competent evidence that its financial statements are audited on an annual basis by an independent certified public accountant, Eric Fullmer. Mr. Fullmer unequivocally stated that the organization posted a deficit in the years 2000 and 2001 due in part to the assessment of property taxes and that special assessments were imposed on the members to cover the deficit. In his affidavit contained in the record, Mr. Fullmer stated that MCC is a non-profit organization, that the value of the stock in the corporation does not increase over time, and that no part of the net earnings of MCC inure to the benefit of any member of the club. In his deposition, Mr. Fullmer explained the term “net earnings” as the excess or deficit of revenues over expenses shown on the annual financial statements.

[ aAlthough the assessor presented the report of another CPA, John Marcus, who opined that a benefit is received by the club members when the net earnings of the club do not require the funding of a deficit, the trial court chose to accept the opinion of Mr. Fullmer over that of Mr. Marcus. In choosing to accept the testimony of one expert over that of another, the trial court did not misinterpret the clear terms of the constitutional provisions. The provision of the constitution specifically provides that in order for the exemption to apply, no net earnings shall inure to the benefit of a private shareholder or member. At the trial of this matter, there was conflicting testimony as to whether this was the case.

Although there is no dispute in this case as to the definition of “net earnings,” there is no controlling jurisprudence in this state as to what constitutes a benefit to shareholders from net earnings. Absent such a rule of law, the trial court was required to make a factual finding as to whether the provisions of the constitutional exemption apply in this case.

A trial court evaluates expert testimony using the same principles that apply to other witnesses and has great discretion to accept or reject expert or lay opinions. Orea v. Scallan, 32,622 (La.App.2d Cir.1/26/00), 750 So.2d 483. Where experts differ in their testimony, it is the trial court’s responsibility to decide which is most credible. Theriot v. Lasseigne, 93-2661 (La.7/5/94), 640 So.2d 1305; Young v. Turnipseed, 33,602 (La.App.2d Cir.6/21/00), 764 So.2d 1172.

Obviously, the trial court carefully considered all of the evidence and found Mr. Fullmer’s statement to be financially sound and more persuasive than the opinion advanced by the expert retained by the assessor. Further, although the assessor argues that the net earnings of the club will inure to the MCC members on dissolution, the articles of incorporation actually provide that the assets will be distributed by appointed Commissioners. There is no provision that the members Imwill necessarily benefit upon dissolution, and nothing will preclude taxation of the members at that point should the assets be distributed as suggested by the assessor.

After a careful review of the record, we find that the trial court’s determination is supported by the record and is legally correct, and it will not be disturbed. We agree with the determination of the trial court that Metairie Country Club met its burden of proving its entitlement to a tax exemption pursuant to the provisions of La. Const. Art. VII, Section 21(B)(1)(a).

Accordingly, for the reasons assigned herein, the judgment of the trial court declaring that the Metairie Country Club is exempt from ad valorem property taxation and ordering a refund of the taxes paid under protest is affirmed. Appellant shall bear all costs of this appeal.

AFFIRMED.


source: Caselaw Access Project

author: | .WALTER J. ROTHSCHILD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Craig S. PARENT.
    No. 03-KA-653.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 28, 2003.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Alan D. Alario, II, Assistant District Attorneys, Gretna, LA, for the State of Louisiana, Plaintiff-Appel-lee.
    Craig Parent, Louisiana State Prison, Angola, LA, pro se.
    Panel composed of Judges EDWARD A. DUFRESNE, THOMAS F. DALEY and WALTER J. ROTHSCHILD.
   | .WALTER J. ROTHSCHILD, Judge.

This is Craig Parent’s second appeal in this matter. The Jefferson Parish District Attorney charged defendant by bill of information with three counts of intimidating a witness (Counts 1, 4 and 7); unauthorized entry of an inhabited dwelling (Count 2); unauthorized use of a motor vehicle (Count 3); simple burglary (Count 5); and extortion (Count 6). Defendant was tried by a 12-person jury on June 12, 13, 14, 15, 18, 19, 20 and 21, 2001. At the conclusion of trial, the jury returned verdicts of guilty as charged as to all counts. The judge subsequently denied defense motions for new trial and post-verdict judgment of acquittal.

On July 25, 2001, the trial court sentenced defendant to five years at hard labor on each of Counts 1, 4 and 7. As to Count 2, the court sentenced defendant to six years at hard labor. The court sentenced defendant to ten years at hard labor on Count 3. As to Count 5, the court sentenced defendant to 12 years at hard labor. The court sentenced defendant to 15 years at hard labor on Count 6. The court further ordered that the sentences all be served consecutively to each other. The Iscourt directed that, pursuant to LSA-C.Cr.P. art. 890.1, defendant would be denied diminution of sentence on Count 6. The State filed a habitual offender bill of information on July 25, 2001, alleging defendant to be a third felony offender. Defendant was arraigned that day, and he denied the allegations in the habitual offender bill. In the meantime, defendant appealed his convictions and sentences to this Court.

The habitual offender bill came on for hearing on September 19, 2001. The State submitted the matter on documentary evidence, and did not offer testimony. The trial court found defendant to be a third felony offender. On that day, the trial court vacated the sentence as to Count 6 of the bill of information, and imposed an enhanced sentence of 30 years at hard labor. The court ordered that the sentence run consecutively to the sentences previously imposed, and that it was to be served without benefit of probation or suspension of sentence.

On October 2, 2001, the State filed a motion to correct illegal sentence as to Count 6, arguing the trial court erred in sentencing defendant in conformity with new revisions to the Habitual Offender Law, when the law required that he be sentenced according to the version of LSA-R.S. 15:529.1 in place at the time of the underlying offenses.

On November 9, 2001, defendant filed a pro se Motion for Reconsideration of Sentence. On November 15, 2001, the trial court issued an Order denying the motion on grounds that defendant had a pending appeal, and that the trial court no longer had jurisdiction.

On October 10, 2002, after the appellate record was lodged in this Court, the trial court granted the State’s motion to correct illegal sentence, finding that the applicable habitual offender sentencing provisions were those in effect at the time defendant committed the underlying offense. On that day, the trial court re-sentenced defendant to life imprisonment at hard labor, without benefit of parole, 1 ¿probation or suspension of sentence. Defendant made an oral motion for appeal and an oral motion to reconsider sentence with respect to the amended habitual offender sentence. Defendant followed with pro se written motions for appeal and for reconsideration of sentence. The trial court granted defendant’s motion for appeal. The court denied defendant’s motion to reconsider sentence.

This Court issued an opinion affirming defendant’s convictions and his original sentences. State v. Parent, 02-835 (La.App. 5 Cir. 12/30/02), 836 So.2d 494. The habitual offender sentence was not at issue in the first appeal. The instant appeal concerns only the legality of the amended habitual offender sentence imposed on Count 6. Defendant now represents himself.

FACTS

The circumstances leading to defendant’s arrest and convictions are contained in this Court’s original opinion. See, State v. Parent, 02-835 (La.App. 5 Cir. 12/30/02), 836 So.2d 494.

ASSIGNMENTS ONE AND TWO

By his first two assignments, defendant complains that the trial court erred in granting the State’s motion to correct illegal sentence, and thereafter re-sentencing him under the provisions of the Habitual Offender Law in effect at the time of the commission of the underlying offense. Defendant argues that the court should have applied the version of the law in effect when the court found him to be a third felony offender.

The bill of information alleges that the enhanced offense, extortion (LSA-R.S. 14:66) occurred on or about March 18, 2000. Defendant was found to be a third felony offender and sentenced as such on September 19, 2001. The predicate felonies alleged in the habitual offender bill of information were issuing worthless checks valued at over $100 (LSA-R.S. 14:71) and attempted armed robbery (LSA-R.S. 14:27:64).

Is At the time of the underlying offense, LSA-R.S. 15:529.1 A(l)(b)(ii) provided:

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.

(Emphasis supplied).

In 2001 La. Acts, No. 403, effective June 15, 2001, the State legislature amended the sentencing provisions in several statutes. The revised version of LSA-R.S. 15:529.1(A)(l)(b)(ii) states:

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.

(Emphasis supplied).

Defendant’s underlying offense of extortion is punishable by more than 12 years, and attempted armed robbery is a crime of violence. However, the issuing of worthless checks valued at over $100 is not classified as a violent crime, nor is it punishable by more than 12 years’ imprisonment. Under the earlier version of LSA-R.S. 15:529.1, either the instant conviction or the attempted armed robbery conviction was sufficient to make defendant eligible for a mandatory life sentence. Under the amended version, however, defendant would not be subject to a mandatory life sentence. Rather, he would be sentenced under LSA-R.S. 15:529.1 A(l)(b)(i), with a sentencing range of ten to 30 years.

Rln cases involving the issue of habitual offender sentencing following the effective date of Act 403, this Court has held that the applicable sentencing provisions are those in effect when the underlying offense is committed. State v. Harris, 02-873, pp. 3 4 (La.App. 5 Cir. 1/28/03), 839 So.2d 291, 292-293; State v. Ventress, 01-1165, p. 8 (La.App. 5 Cir. 4/30/02), 817 So.2d 377, 383; State v. Flagg, 01-965, pp. 4-8 (La.App. 5 Cir. 3/26/02), 815 So.2d 208, 209-212. In State v. Sugasti, 01-3407, p. 7 (La.6/21/02), 820 So.2d 518, 521-522, the Louisiana Supreme Court commented on the effect of Act 403 on the sentencing of a defendant charged with possession of heroin:

There is a strong presumption against retroactivity of statutes. Louisiana law dictates that “no Section of the Revised Statutes is retroactive unless it is expressly so stated.” LSA-R.S. 1:2. The legislature plainly stated an intention that the sentencing changes apply prospectively only.
Everyone is presumed to know the law, including the penalty provisions that apply. As such, those who engage in criminal activity must face the consequences of their actions, including the penalty provisions that apply as of the date of the offense.

Defendant contends that the holding in Sugasti is inapplicable to the instant case because Sugasti involved revised sentencing provisions for possession of heroin, and not the Habitual Offender Law. The supreme court, however, addressed this point in State v. Barnes, 02-2059 (La.4/4/03), 845 So.2d 354. The court stated, “Under the rule set out in Louisiana jurisprudence, the changes mandated by 2001 La. Acts 403 do not apply to sentences imposed for crimes committed before the act’s effective date. Operation of this rule extends to habitual offender sentences imposed pursuant to 15:529.1.” (Citations omitted).

Considering the foregoing, the trial court did not err in re-sentencing defendant according to the statutory provisions in effect at the time he committed the underlying offense. This assignment of error merits no consideration.

\ .ERROR PATENT DISCUSSION

By his third assignment, defendant requests a review of the record for errors patent. Defendant received a full errors patent review on his first appeal. He is entitled only to a review of the record on re-sentencing. State v. Gassenberger, 02-658, p. 5 (La.App. 5 Cir. 12/11/02), 836 So.2d 271, 274. No patent errors were found in the instant record.

Accordingly, for the reasons assigned herein, the sentence of defendant, Craig S. Parent, is affirmed.

AFFIRMED.

      . The record pertaining to defendant’s original appeal is numbered 02 KA 835, and is included in the instant record as an exhibit.


text:
    STATE of Louisiana v. Anthony STAGGERS.
    No. 03-KA-655.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 28, 2003.

      John M. Crum, District Attorney, Rodney A. Brignac, Assistant District Attorney, Laplace, LA, for Plaintiff-Appellee.
    Prentice L. White, Louisiana Appellate Project, Baton Rouge, LA, for Defendant-Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY and WALTER J. ROTHSCHILD.
   | .EDWARD A. DUFRESNE, JR., Chief Judge.

On January 14, 1998, the grand jury for St. John the Baptist Parish returned an indictment charging defendant, Anthony Staggers, with six counts of distribution of cocaine in violation of LSA-R.S. 40:967(A). At the arraignment, defendant pled not guilty. Thereafter, the state amended the indictment to allege defendant was a principal to the distribution of cocaine on counts one, two, four, five and six. Count three of the original indictment was not amended. Defendant was rearraigned on the amended charges and again pled not guilty. The matter proceeded to trial on December 8, 1999. After considering the evidence presented, the twelve-person jury found him guilty as charged on counts one, two, four, five and six and not guilty on count three.

The state subsequently filed a multiple offender bill of information on December 14, 1999, on each of the five counts, alleging defendant to be a second felony offender based on a 1992 conviction for distribution of cocaine. Defendant filed an objection to the multiple bill challenging the validity of the predicate plea. The objection was argued on November 15, 2000, at which time defendant admitted to his identity as being the same person who committed the predicate offense but maintained the Boykin was defective. The trial court took the matter |3under advisement and subsequently denied defendant’s objection to the multiple bill on November 27, 2000.

On December 13, 2000, the trial judge sentenced defendant as a second felony offender to fifteen years to run concurrently on each of the five counts. Defendant now appeals.

FACTS

In November and December 1997, Agent Kelly Gonzales worked undercover with informant, Carol Ougel, in a narcotics investigation of Alice Bailey and defendant. Agent Gonzales conducted five drug transactions with Bailey during which she purchased crack cocaine from Bailey in $40 and $50 amounts. The drug transactions were recorded with audio and video equipment in Agent Gonzales’ vehicle.

The first drug buy was November 14, 1997. Agent Gonzales, accompanied by Ougel, approached Bailey and gave her $50 for the purchase of crack cocaine. Bailey was unable to provide the cocaine immediately so Agent Gonzales parked the car and waited. Agent Gonzales and Ougel saw a red Suzuki pull into Bailey’s driveway driven by a black male, later identified as defendant. Ougel testified she saw a drug transaction between Bailey and defendant after which defendant left the premises. Bailey then brought three rocks of crack cocaine to Agent Gonzales.

The second drug buy occurred on November 25, 1997. Agent Gonzales and Ougel again went to Bailey’s residence. Agent Gonzales gave Bailey $40 for cocaine. Bailey did not have the cocaine and had to make a phone call to “Big Man,” which was an alias for defendant. Agent Gonzales parked her car by the neighbor’s house to wait. Thereafter, defendant arrived at Bailey’s home in a maroon Grand Prix. Ougel again saw a hand-to-hand transaction between Bailey |4and defendant. Defendant left the property after which Bailey gave Agent Gonzales the cocaine.

The third transaction occurred on November 26, 1997, and was similar to the first two. Agent Gonzales and Ougel arrived at Bailey’s residence to purchase cocaine. Agent Gonzales gave Bailey $40 for the cocaine and then rode around the block. She saw a maroon vehicle driven by defendant approach Bailey’s residence and then leave. Agent Gonzales subsequently went to Bailey’s residence at which time she received the cocaine.

The fourth and fifth drug buys were conducted solely by Agent Gonzales without Ougel. The fourth transaction was made on December 10, 1997. Agent Gonzales gave Bailey $50 for cocaine and then left the area entirely for approximately 20 minutes. She returned to Bailey’s residence and picked up three rocks of crack cocaine. Sergeant Troy Hidalgo was monitoring the transaction and stayed in the area after Agent Gonzales left. Between the time Agent Gonzales left the area and returned, Sergeant Hidalgo observed a maroon Grand Prix driven by defendant pull into Bailey’s driveway. He further saw Bailey run out to defendant’s car and purchase cocaine.

The fifth drug buy was made on December 17, 1997. Agent Gonzales gave Bailey $40 for cocaine and left the area. Upon her return, Agent Gonzales received cocaine from Bailey. On this fifth transaction, separate surveillance was set up on Bailey’s residence and defendant’s residence. Shortly after Agent Gonzales initially arrived at Bailey’s residence, defendant was seen leaving his residence. Defendant was then seen arriving at and departing from Bailey’s residence. Sergeant Hidalgo testified that Agent Gonzales purchased the cocaine from Bailey after defendant had left the area.

1 .¡Bailey testified as an unwilling witness at trial. She stated she was involved in several drug transactions with Agent Gonzales. She explained that she called defendant each time to bring her the cocaine and defendant complied.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assigned error, defendant challenges the sufficiency of the evidence used to convict him of five counts of distribution of cocaine. Defendant contends the state failed to present any evidence that he acted as a principal to the drug transactions between the undercover agent and Alice Bailey. He denies he was present at Bailey’s residence during the drug transactions and points out the undercover agent testified she had no dealings with defendant. Defendant additionally points out that he is not on the videotape of the drug transactions at issue.

The standard of review for the sufficiency of evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the state proved 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).

Distribution of cocaine is defined in LSA-R.S. 40:967(A)(1) which provides that it is unlawful for any person to knowingly or intentionally distribute a controlled dangerous substance classified in Schedule II. Cocaine is classified in Schedule II as a controlled substance. LSA-R.S. 40:964(A)(4). The term “distribute” is defined as “to deliver a controlled dangerous substance ... by physical delivery.” LSA-R.S. 40:961(14). “Delivery” has been jurisprudentially defined as transferring possession or control. State v. Harry, 01-2336 (La.App. 4 Cir. 6/26/02), 823 So.2d 987, 993, writs denied, 02-2029 (La.2/7/03), 836 So.2d 96 and 02-2299 (La.2/7/03), 836 So.2d 97.

|rA defendant may be guilty of distribution as a principal if he “aids and abets in the distribution or if he directly or indirectly counsels or procures another to distribute a controlled dangerous substance such as cocaine.” State v. Bartley, 00-1370 (La.App. 5 Cir. 2/14/01), 782 So.2d 29, 32-33, writ denied, 01-717 (La.2/22/02), 809 So.2d 981.

To support a defendant’s conviction as a principal, the state must show that the defendant had the requisite mental state for the crime. State v. Saylor, 01-451 (La.App. 5 Cir. 11/27/01), 802 So.2d 937, 941, writ denied, 01-3406 (La.10/4/02), 826 So.2d 1122. Distribution of cocaine is a general intent crime which can be established simply by proving voluntary distribution. State v. Banks, 307 So.2d 594, 597 (La.1975); State v. Harry, supra.

In challenging the sufficiency of the evidence, defendant relies on the fact that he is not seen on the videotape distributing drugs to Agent Gonzales. He contends the videotape only shows Bailey as the seller of the cocaine and Agent Gonzales as the buyer of the cocaine. Defendant argues his name was never mentioned on the videotape during any of the drug transactions. He further relies on Agent Gonzales’ testimony that she had no dealings with defendant while negotiating the cocaine purchases from Bailey.

Defendant is correct in his assertions that he was never captured on videotape and that Agent Gonzales readily admitted she had absolutely no dealings with defendant during any of the drug buys. However, defendant’s argument ignores all the other evidence presented.

Under the charge of a principal to distribution, the state had to show defendant aided and abetted in the distribution. Agent Gonzales testified that Bailey was unable to sell cocaine immediately on each of the drug buys explaining that she had to make a phone call. Agent Gonzales stated that, on each of the first three drug buys, on November 14, 25, and 26, 1997, a black male, later identified |7as “Big Man” or “Low Down,” appeared at Bailey’s residence after Bailey indicated she had to make a phone call. Agent Gonzales explained that the black male and Bailey had a transaction after which the black male left and Bailey gave Agent Gonzales the cocaine.

Informant Carol Ougel testified that, on the three occasions she accompanied Agent Gonzales on the drug buy, November 14, 25 and 26, 1997, she saw a drug transaction between defendant, also known as “Big Man,” and Bailey after which Bailey delivered the cocaine to Agent Gonzales.

On the fourth and fifth drug buys on December 10 and 17,1997, Agent Gonzales left the area and did not see what transpired at Bailey’s residence before Bailey actually gave her the cocaine. However, Sergeant Hidalgo monitored all the drug transactions.

On the first transaction of November 14, 1997, Sergeant Hidalgo testified that, through the audio equipment, he heard Bailey indicate she had to get the cocaine from “Big Man.” From his prior professional dealings, Sergeant Hidalgo was aware “Big Man” was an alias for defendant. Sergeant Hidalgo testified he saw defendant leaving the area in a car registered to defendant’s sister, who lives next door to defendant, after the transaction. Hidalgo also testified that, on November 25 and 26, 1997, he saw defendant arrive and leave the area during the time of the transaction between Bailey and Agent Gonzales.

On December 10 and 17,1997, additional surveillance was set up. Sergeant Hidalgo testified he again saw defendant at Bailey’s residence at the time of the undercover drug buy. On December 10, Hidalgo testified he saw Bailey come to defendant’s car and saw Bailey purchase cocaine from defendant. On December 17, several deputies testified they observed defendant leave his home, travel to Bailey’s residence, and return within fifteen to twenty minutes. Sergeant Hidalgo |sagain testified he saw defendant arrive at Bailey’s residence and saw the transaction between defendant and Bailey.

Additionally, Bailey herself testified that she was involved in drug transactions with Agent Gonzales. She testified that, on each of the drug transactions, she called defendant, whose alias was “Big Man” or “Low Down,” to bring her the drugs and defendant delivered the drugs to her.

In the present case, the evidence shows that for all five drug transactions Bailey called defendant at which time defendant came to her residence and delivered the drugs. Bailey then turned around and immediately gave the drugs to Agent Gonzales. This evidence clearly shows that defendant assisted in the transactions.

Based on the foregoing discussion, we find that the evidence was sufficient to support the jury’s determination that defendant was guilty as a principal to the five counts of distribution of cocaine. This assigned error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

By this assignment, defendant challenges the sentence imposed by the trial judge. He first contends, without any type of argument, that his fifteen-year sentence on each conviction is excessive considering the state’s evidence. In the present case, we have found a reversible error patent in the multiple offender proceedings requiring this court to vacate defendant’s enhanced sentences. Therefore, it is unnecessary to address defendant’s claim of excessiveness at this time.

In this assignment, defendant also argues that his sentence is invalid because the trial court failed to advise him of the time delays for appealing the conviction and sentence and the time delays for filing an application for post-conviction relief. While it is true defendant was not advised of the five-day time delay for filing an appeal under LSA-C.Cr.P. art. 914, he successfully obtained an out-of-time appeal 1 Band, therefore, the.error is moot. See, State v. Chess, 00-163 (La.App. 5 Cir. 6/27/00), 762 So.2d 1279,1284-1285. While it is likewise true defendant was not initially advised of the two-year prescriptive period for filing an application for post-conviction relief under LSA-C.Cr.P. art. 930.8, he timely filed an application for post-conviction relief. Thus, this alleged error is also moot. Additionally, in its judgment pertaining to defendant’s application for post-conviction relief, the trial court advised defendant of the appropriate prescriptive period under LSA-C.Cr.P. art. 930.8.

ERROR PATENT DISCUSSION

We have reviewed the record 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).

Our review reveals that defendant was not advised of his rights prior to stipulating to his identity with regards to the multiple offender bill of information as required by LSA-R.S. 15:529.1(D)(l)(a). LSA-R.S. 15:529.1 requires the trial court to advise defendant of the allegations contained in the information, his right to a hearing and his right to remain silent. State v. Dearmas, 606 So.2d 567, 569 (La.App. 5 Cir.1992), overruled on other grounds in State v. Davis, 01-123 (La.App. 5 Cir. 7/30/01), 792 So.2d 126, 131. The failure of the trial court to advise the defendant of his right to a trial and to remain silent is harmless error when the multiple offender status is established by competent evidence offered by the state at a hearing, rather than by the admission of the defendant. State v. Dearmas, supra.

In the present case, the state filed a multiple offender bill of information referring to all five of defendant’s December 8, 1999 convictions for distribution of cocaine. In the multiple bill, the state alleged defendant to be a second felony offender based on a prior 1992 conviction. Defendant filed an objection to the |inmultiple bill on the basis of an alleged defective Boykin involving the predicate plea. A hearing was held on November 15, 2000, at which time the parties argued defendant’s objection to the multiple bill.

During the multiple bill hearing, defense counsel stipulated to defendant’s identity as being the same person who committed the predicate offense. The record does not indicate that defendant was advised of his right to a hearing and right to remain silent in connection with the multiple bill as required by LSA-R.S. 15:529.1(D)(l)(a) prior to stipulating to his identity and the state offered no independent evidence of defendant’s identity.

In order for a defendant to be found a multiple offender, the state is required to prove the existence of a prior felony and that the defendant is the same person who was convicted of the prior felony. State v. Davis, 02-387 (La.App. 5 Cir. 9/30/02), 829 So.2d 554. Certified copies of court records evidencing prior convictions are sufficient to prove the prior conviction. However, independent proof is required to show that the defendant is the same person identified in the records. State v. Walker, 01-348 (La.App. 5 Cir. 8/28/01), 795 So.2d 459, 463, writ denied, 01-2788 (La.10/4/02), 826 So.2d 1115.

Since the state did not independently prove defendant’s identity, the failure of defendant to be advised of his right to remain silent at the multiple bill hearing is reversible error. State v. Walker, supra. As such, defendant’s adjudication as a second felony offender and the enhanced sentences imposed pursuant to that finding must be vacated.

^J^jFor the reasons set forth herein, we affirm defendant’s convictions of distribution of cocaine. However, we vacate defendant’s adjudication as a second felony offender and the enhanced sentences imposed pursuant to the multiple offender proceedings. The matter is remanded for further proceedings.

CONVICTION AFFIRMED, MULTIPLE OFFENDER SENTENCE VACATED, REMANDED FOR FURTHER PROCEEDINGS.


author: | JAMES L. CANNELLA, Judge.

text:
    STATE of Louisiana v. Jonathan JOHNSON.
    No. 03-KA-620.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 28, 2003.

      Bruce G. Whittaker, Louisiana Appellate Project, New Orleans, LA, for Appellant.
    Jonathan Johnson, Angola, LA, Defendant/Pro Se.
    Paul D. Connick, Jr., District Attorney, 24th Judicial District, Parish of Jefferson, State of Louisiana, Terry M. Boudreaux, Appellate Counsel, Thomas J. Butler, Counsel of Record on Appeal, Walter G. Amstutz, Trial Counsel, Assistant District Attorneys, Gretna, LA, for Appellee.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY and CLARENCE E. McMANUS.
   | JAMES L. CANNELLA, Judge.

The Defendant, Jonathan Johnson, appeals from his conviction of armed robbery and enhanced sentence, as a third felony offender, of 66 years at hard labor. We affirm.

On June 6, 2002 the Defendant was charged with armed robbery, a violation of La.R.S. 14:64, and pled not guilty at arraignment. On December 18, 2002, a 12 person jury found the Defendant guilty as charged. On January 23, 2003, he was sentenced to 41 years imprisonment at hard labor without benefit of parole, probation or suspension of sentence. On the same day, the State filed a Habitual Offender bill of information alleging the Defendant to be a third felony offender. The Defendant denied the allegations in the bill of information and on February 19, 2003 a hearing was conducted in which the trial judge found the Defendant to be a third felony offender. On February 25, 2003, the trial judge vacated the original sentence and sentenced the Defendant to 66 years 1 «imprisonment at hard labor without benefit of parole, probation or suspension of sentence.

On May 6, 2002, at approximately 9:00 a.m., two black men wearing bandanas over their faces entered the Eureka Homestead on Veterans Boulevard in Me-tairie, Louisiana. One of the men leaped over the counter and placed a gun to the head of a teller, Deanna Barrileaux (Barri-leaux), and demanded money. She handed the man approximately $600, all of the cash in her drawer. The other man entered the office of Margo McKee (McKee) where she and another teller, Monica Campos (Campos), were working on the computer. McKee testified that the man pointed a gun at her and told her to put her hands where he could see them. The man further instructed her not to push any buttons, or he would kill her. McKee told the man that there was no money in the office and yelled to Barrileaux to give the men whatever they wanted. Campos testified that she did not recall seeing a gun in the hand of the man in the office, but she assumed that he had one since he threatened her and McKee. A short while later, one of the men yelled, “Let’s go,” and the two fled on a red motorcycle.

That morning, Detective Sergeant Roth-erham of the Jefferson Parish Sheriffs Office (JPSO) was driving his unmarked police car east on 1-10 on his way to a funeral. He had just passed the Bonnabel Boulevard exit when he saw a small red motorcycle squeeze between his car and the car to his right. This caught his attention and he noticed that the motorcycle was occupied by two black men wearing dark clothing with bags slung over their shoulders. Detective Rotherham further observed that the passenger was wearing a bandana around his neck. All of these circumstances aroused Detective Rother-ham’s suspicions and, at approximately 9:15 a.m., he turned on his police radio. Shortly thereafter, Detective Rotherham heard that Eureka Homestead had been robbed and that two black men had fled on a red motorcycle toward the interstate. Detective |4Rotherham radioed headquarters that he had spotted two men on a red motorcycle and requested assistance from the New Orleans Police Department (NOPD) to intercept the motorcycle. Detective Rotherham continued to follow the men into New Orleans, trying not to alert them. When they exited the interstate at Carrollton Avenue, they sped up and he thought they had noticed his pursuit. He then activated his lights and siren. The pursuit continued until the motorcycle reached the intersection of South Dupre Street and Earhart Boulevard where either intentionally or accidentally, the bike fell over. Both men immediately fled, climbing over a nearby fence with barbed wire at the top that was overgrown with vines. Detective Rotherham was able to follow the men along the fence line in his car. The Detective kept both men in sight and at one point came face to face with them through the fence. He identified himself and told them to freeze, but they turned around and started running away from him. Detective Rotherham was able to continue to follow the men driving along the fence line. He only lost sight of them once for a few seconds. They eventually went in different directions, but Detective Rotherham saw the Defendant go into an area of apartments with overgrown weeds and broken concrete. The area provided cover for the fugitives and the Detective kept watch on the area while he waited for the NOPD officers and JPSO deputies to arrive. The other officers arrived shortly, surrounding the block, and a canine unit was brought in to search. The police dog discovered the Defendant, whom Detective Rotherham later identified as the driver of the motorcycle, at the top of a staircase at 4108 Clio Street. The Defendant surrendered when the Orleans Parish canine officer said he was releasing the dog. The other man, whom Detective Rotherham later identified as the passenger, emerged from his hiding place under some stairs at a warehouse when a Jefferson Parish helicopter hovered over the area.

| ..¿During the chase, the men discarded the bags that they were carrying. The police found the bags, but they were empty. The police did not find any guns or money during the search of the area.

When apprehended, the Defendant was wearing a T-shirt and grey shorts. However, Detective Rotherham testified that he found a pair of blue jeans in an alley near the location where the Defendant had been hiding. According to Detective Roth-erham, the Defendant was wearing these jeans, a button-down black and white shirt and black shoes during the pursuit.

Although none of the Eureka Homestead witnesses could identify either of the robbers because their faces were covered, Barrileaux and McKee positively identified photographs of the red motorcycle as the get-away motorcycle. Barrileaux identified the tennis shoes worn by the robber who leapt the counter. At trial, it was stipulated that a shoe print expert would have testified that the shoe prints left on the counter was similar to the prints made by the shoes offered by the State. Bonnie Dubourg, a DNA expert, testified that she had compared the Defendant’s DNA and DNA obtained from the jeans and linked the jeans to the Defendant.

Chambliss pled guilty before the Defendant’s trial and testified for the State that he went into the office at the bank, while the Defendant hopped the counter and robbed Barrileaux at gunpoint. He also claimed that he had no weapon and that the Defendant’s gun was a B.B. gun that resembled a .45 caliber weapon. Cham-bliss admitted that he made a statement to the police that the Defendant had committed the armed robbery, Chambliss also acknowledged that he had signed a handwritten affidavit rescinding the statement. However, Chambliss stated that he could not read and denied knowledge of the affidavit’s contents. Further, Chambliss testified that he had pled guilty and had received a sentence of ten years imprisonment at hard labor without benefits. Chambliss acknowledged that part of | fihis plea agreement was that he would receive a ten-year sentence if he cooperated with the State and a 12/& year-sentence if he did not.

The Defendant presented the testimony of three JPSO deputies who were at the scene during the search for the two men. Officer Gerald Pampin testified that he assisted the NOPD in setting up a perimeter. Crime Scene Technician Kevin Murphy testified that he secured the scene surrounding the fallen motorcycle. Detective John Carroll testified that when the dog discovered the Defendant’s scent, it went up the stairs where the Defendant was hiding and retrieved the jeans. Detective Carroll also stated that the Defendant surrendered and came down the stairs when the canine officer said he was sending up the dog. Detective Carroll also stated that Chambliss made a statement later that day in which he said that he was with a person named “Jonathan Evans” during the robbery, that Evans robbed the bank armed with a pellet gun that looked like a .45 caliber weapon, and that he, Chambliss, was unarmed when he went into the office where the two women were located. At trial, Chambliss acknowledged that he told the police that the Defendant’s last name was Evans, but he testified that the Defendant was the person that he was with on the day of the robbery.

On appeal, briefs were filed by both the Defendant and the Defendant’s appellate counsel. In both briefs, the Defendant alleges that the trial judge improperly denied his motion for a mistrial when two police officers subpoenaed by the defense failed to appear when called to testify, that his sentence is excessive, and requests a patent error review. In his pro se brief, he adds that the sentence was mistakenly imposed in light of the trial judge’s comments at the initial sentencing hearing, that the trial judge prejudiced the Defendant’s defense by making derogatory comments about the testimonial value of the defense witnesses, that the evidence related to the dog used by the canine unit was admitted |7without a proper foundation, and that he was denied effective assistance of counsel at the habitual offender hearing and sentencing because of double jeopardy.

MISTRIAL OR RECESS

The Defendant contends that the trial judge improperly denied his motion for a mistrial based on the absence of Officers Keith Lacasio and Mike Ocman, who were subpoenaed, but failed to appear for trial. The State responds that a mistrial is not the proper remedy for an absent witness. Rather, the State points out that the proper remedy is a motion for a recess, which the Defendant did not make. Additionally, even if he had made such a motion, the Defendant would not have been entitled to it.

The record reflects that the Defendant intended to call Officers Lacasio and Oe-man after the testimony of the other three JPSO employees. After it was determined that Officers Lacasio and Ocman had been subpoenaed but failed to appear, the trial judge issued an attachment for both officers. The Defendant made a motion for a mistrial based on his argument that the two officers’ testimony was important to establish the events leading up to the Defendant’s apprehension. Specifically, he asserted that the testimony elicited from the officers who had just testified was “helpful to the Defense [sic],” but that he did not “know what those two missing officers are going to say.” The trial judge denied the mistrial motion.

The Defendant recognizes that a witness’s absence is not listed in La.C.Cr.P. art. 775, but asserts that a witness’s absence nonetheless is within the purview of paragraphs 3 and 5 of La.C.Cr.P. art. 775(3) and (5). He also cites La.C.Cr.P. art. 709, which sets out the criteria for a recess.

La.C.Cr.P. art. 775 provides for a mistrial as follows:

|SA mistrial may be ordered, and in a jury case the jury dismissed, when:
(1) The defendant consents thereto;
(2) The jury is unable to agree upon a verdict;
(3) There is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law;
(4) The court finds that the defendant does not have the mental capacity to proceed;
(5) It is physically impossible to proceed with the trial in conformity with law; or
(6) False statements of a juror on voir dire prevent a fair trial.
Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.
A mistrial shall be ordered, and in a jury case the jury dismissed, when the state and the defendant jointly move for a mistrial.

A mistrial is a drastic remedy and, except in instances that a mistrial is mandatory, is warranted only when the defendant suffers substantial prejudice that deprived him of any reasonable expectation of a fair trial. State v. Harris, 00-3459, p. 9 (La.2/26/02), 812 So.2d 612, 617.

In State v. Bryant, 33,078, p. 6 (La.App. 2nd Cir.3/1/00), 754 So.2d 387, 391, the court rejected the defendant’s argument that the trial court should have granted his mistrial motion based on the absence of a witness. The court found that the defendant failed to show that there was any ground for a mistrial, noting that the absence of a witness is not one of the grounds for a mistrial listed in Article 775. The court further found that a recess was not warranted because the defendant failed to show that the witness would ever be found and thus no recess would aid the defense.

|t,We agree with Bryant to the extent that the mistrial statute does not apply to a missing witness under the particular facts of this case. The Defendant was unable to state specifically what the witnesses would testify that would assist the defense. Thus, the Defendant failed to show either “a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law ...or that, absent some specific reason for calling the officers, that it was “physically impossible to proceed with the trial in conformity with law ...” C.Cr.P. arts. 775(3) and 775(5).

La.C.Cr.P. art. 709 requires the trial judge to grant a continuance or recess when:

(1) Facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial;
(2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred; and
(3) Facts showing due diligence used in an effort to procure attendance of the witness.

While Defendant met the due diligence requirement of paragraph three, he failed to meet the first requirement. To the contrary, the Defendant specifically asserted that he did not know what the officers would say. Further, he did not establish that it was probable that the officers would be available in the future. In State v. Stevenson, 02-0079, pp. 4-5 (La.App. 5th Cir.4/30/02), 817 So.2d 343, 346, this Court found no abuse of the trial court’s discretion in denying a defendant’s motion for a continuance on the basis of absent witnesses when the defendant failed to meet two of the three requirements of La.C.Cr.P. art. 709. Here, the Defendant failed to meet the statutory requirements for a recess and thus, would not have been entitled to one had he filed a motion for one.

^TESTIMONY OF CO-DEFENDANT

In his pro se brief, the Defendant first asserts that the trial judge erred by entering into a plea bargain agreement with Robert Chambliss and coercing him to testify against the Defendant at the Defendant’s trial, “to a degree pleasing enough to the State that the District Attorney would request the judge to reduce Cham-bliss’ sentence from twelve and a half (12^) years to ten (10) years.”

The record reflects that the Defendant did not raise this objection at trial. In order to preserve the right to appellate review of an alleged trial court error, a party must state an objection contemporaneously with the occurrence of the alleged error, as well as the grounds for the objection. La.C.Cr.P. art. 841. Both this Court and the Louisiana Supreme Court have recognized that a new basis for an objection may not be raised for the first time on appeal. State v. Cooks, 97-0999, p. 11 (La.9/9/98), 720 So.2d 637, 644, cert. denied, 526 U.S. 1042, 119 S.Ct. 1342, 143 L.Ed.2d 505 (1999); State v. Burdgess, 434 So.2d 1062, 1067 (La.1983); State v. Winfrey, 97-427, p. 23 (La.App. 5th Cir.10/28/97), 703 So.2d 63, 77, writ denied, 98-0264 (La.6/19/98), 719 So.2d 481. The purpose behind the contemporaneous objection rule is to put the trial judge on notice of an alleged irregularity so that he may cure the problem, and to prevent the defendant from gambling on a favorable verdict, then resorting to appeal on errors that might easily have been corrected by an objection. State v. Rodriguez, 02-334, p. 42 (La.App. 5th Cir.1/14/08), 839 So.2d 106, 134, writ denied, 03-0482 (La.5/30/03), 845 So.2d 1061. Since the Defendant did not raise this objection at trial, he failed to preserve the issue for appellate review.

Even had the Defendant properly preserved this issue for appeal, we would be precluded from reviewing it because the record does not contain the transcript of Chambliss’s guilty plea that the Defendant quoted from in his brief. The courts of appeal have no authority to receive or review evidence not contained in the In district court record. State v. Oubichon, 422 So.2d 1140, 1141 (La.1982); State v. Bibb, 626 So.2d 913, 924 (La.App. 5th Cir.1993), writ denied, 93-3127 (La.9/16/94), 642 So.2d 188.

IMPROPER COMMENTS

The Defendant next asserts in his pro se brief that the trial judge improperly commented on the value of the testimony by the defense witnesses. The comment referred to by the Defendant occurred in the context of the bench conference regarding the absent officers who had been subpoenaed by the defense, as follows:

MR. TOUZET [defense counsel]:
But, you know, one out of the three gave me some great stuff that I — that I needed, and so I don’t know what these last two are going to do.
THE COURT:
I must have been asleep.
MR. TOUZET:
Hey man, great stuff for me. One man’s trash is another man’s treasure.
THE COURT:
You got a lot of trashy treasure.

Thereafter, the bench conference concluded and the attorneys returned to their seats. Although the Defendant asserts that the jury and spectators laughed out loud at the comment, the record is devoid of any evidence of laughter in the courtroom. Also, the record does not reflect that the comment was overheard by the jury. In addition, the Defendant failed to object to the comment. Thus, he failed to preserve the objection for appellate review. La.C.Cr.P. art. 841.

119LACK OF FOUNDATION

Next, the Defendant contends that the State failed to present any foundation for the testimony that the Defendant was apprehended after being tracked by the canine unit dog.

The record reflects that the Defendant did not object to any of the testimony regarding the use of the dog and the dog’s discovery of the Defendant on the staircase. Again, the Defendant is precluded from raising this objection for the first time on appeal. C.Cr.P. art. 841. In addition, we note that defense counsel questioned the officers about the dog’s part in the apprehension of the Defendant.

INEFFECTIVE COUNSEL

The Defendant contends that his trial counsel was ineffective because he failed to file a motion to quash the habitual offender bill of information on the basis that double jeopardy principles precluded his sentence from being enhanced as a third felony offender.

A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution of 1974. In assessing a claim of ineffective assistance of counsel, a two-pronged test is employed. The Defendant must show that (1) his attorney’s performance was deficient, and (2) the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); State v. Smothers, 02-277, p. 12 (La.App. 5th Cir.12/30/02), 836 So.2d 559, 567. The error is prejudicial if it was so serious as to deprive the Defendant of a fair trial, or “a trial whose result is reliable.” Strickland, 466 U.S. at 686, 104 S.Ct. at 2064; Smothers, 02-277 at 12, 836 So.2d at 567.

In order to show prejudice, a defendant must demonstrate that the outcome of the trial would have been different, but for counsel’s unprofessional conduct. Strickland, 466 U.S. at 693, 104 S.Ct. at 2068; Smothers, 02-277 at 12, 836 So.2d at 567. Effective assistance of counsel does not mean errorless counsel, or counsel who may be judged ineffective on mere hindsight. State ex rel. Graffagnino v. King, 436 So.2d 559, 564 (La.1983). However, there is no precise definition of reasonably effective assistance of counsel and, thus, any inquiry into the effectiveness of counsel is specific to the facts of the case. State v. Peart, 621 So.2d 780, 787 (La.1993); Smothers, 02-277 at 12, 836 So.2d at 567.

Generally, an ineffective assistance of counsel claim is addressed through an application for post-conviction relief, so as to afford the parties an adequate record for review. Peart, 621 So.2d at 787. However, the Court can address the issues if the record contains sufficient evidence to decide the issue, and the issue is properly raised by assignment of error on appeal, State v. Hamilton, 92-2639 (La.7/1/97), 699 So.2d 29, 31, cert. denied, 522 U.S. 1124, 118 S.Ct. 1070, 140 L.Ed.2d 129 (1998); Smothers, 02-277 at 13, 836 So.2d at 567. In this case, the issue is easily addressed.

The United States Constitution provides that no person shall “be subject for the same offense to be twice put in jeopardy of life and limb.” La. Const., art. I, § 15. Accord, La.C.Cr.P. art. 591. However, a defendant is not subjected to double jeopardy when his sentence is enhanced pursuant to La.R.S. 15:529.1. State v. Dorthey, 623 So.2d 1276, 1279 (La.1993); State v. Davis, 02-387, p. 12 (La.App. 5th Cir.9/30/02), 829 So.2d 554, 561. See also, Ewing v. California, 538 U.S. 11, 123 S.Ct. 1179, 1188, 155 L.Ed.2d 108 (2003), recognizing that the United States Supreme Court has rejected double jeopardy challenges to recidivist statutes.

Based on the jurisprudence holding that double jeopardy protections do not apply to habitual offender proceedings, we find that Defendant’s counsel was not ineffective for failing to file a motion to quash the bill of information on the basis of double jeopardy.

luEXCESSIVE SENTENCE

The Defendant contends that his 66 year enhanced sentence as a third felony offender is constitutionally excessive.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Lobato, 603 So.2d 739, 751 (La.1992); State v. Terrase, 02-1009, p. 6 (La.App. 5th Cir.2/25/03), 841 So.2d 947, 951.

It is presumed that a mandatory minimum sentence under the Habitual Offender Law is constitutional. State v. Johnson, 97-1906, p. 6 (La.3/4/98), 709 So.2d 672, 675; State v. Williams, 01-1007, p. 11 (La.App. 5th Cir.2/26/02), 811 So.2d 1026, 1032. However, if the trial judge finds that an enhanced punishment mandated by La.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 has the option and duty to reduce such sentence to one that would not be constitutionally excessive. State v. Dorthey, 623 So.2d 1276, 1280 (La.1993).

A trial judge may only depart from the mandatory sentence if he finds clear and convincing evidence that would rebut the presumption of constitutionality. Johnson, 97-1906 at 7, 709 So.2d at 676; Williams, 01-1007 at p. 11, 811 So.2d at 1032. However, the burden is on the defendant to rebut the presumption of constitutionality by showing that he is exceptional because of unusual circumstances and that the sentence is not meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. Johnson, 97-1906 at p. 8, 709 So.2d at 676, quoting State v. Young, 94-1636, pp. 5-6 (La.App. 4th Cir.10/26/95), 663 So.2d 525, 528, writ denied, 95-3010 (La.3/22/96), 669 So.2d 1223. The Louisiana Supreme Court has cautioned that downward departures from the mandatory minimum sentences should be made only in rare cases. State v. Lindsey, 99-3256, p. 5 (La.10/17/00), 770 So.2d 339, 343.

As a third felony offender, the Defendant was subject to a sentence of not less than two-thirds of the longest term and not more than twice the longest term for the underlying felony. La.R.S. 15:529.1(A)(l)(b)(i). Armed robbery is punishable by not less than ten nor more than 99 years of imprisonment at hard labor without benefit of probation, parole or suspension of sentence. La.R.S. 14:64(B). Thus, the Defendant faced a sentencing range between 66 and 198 years of imprisonment at hard labor.

In this case, the Defendant failed to meet the guidelines set out in Johnson and Lindsey for the sentence to be declared unconstitutionally excessive. The Defendant does not even acknowledge on appeal that he received the mandatory minimum sentence and does not offer any reason to support his allegation that the sentence is excessive. Further, the Defendant did not make any argument at the sentencing hearing or in his motion to reconsider sentence to rebut the presumption of the constitutionality of the mandatory minimum 66 year enhanced sentence. Therefore, we find that the trial judge did not err in sentencing the Defendant to 66 years.

The Defendant also argues that the trial judge erroneously and unintentionally sentenced him to 66 years of imprisonment as a third felony offender. He argues that the trial judge actually intended to impose an enhanced |1(isentence of not more than 51 years based on his comments in the original sentencing hearing.

Immediately after sentencing the Defendant to 41 years of imprisonment for the armed robbery conviction, the trial judge stated:

If the State seeks the multiple bill, I probably will consider it, and if they’re successful in proving a triple bill, I’m going to go from forty-one (41) years to fifty-one (51). I’m not going to do the maximum of ninety nine (99.)
I can forewarn the State now, so they can make the decision if it’s worth going after.

The trial judge’s remarks indicate that he did not intend to impose the maximum sentence on the Defendant if the State billed the Defendant as a third felony offender. However, he referred to the incorrect sentencing range. At the habitual offender sentencing, the trial judge correctly stated that the sentencing range for a third felony is between 66 and 198 years. Considering that the sentencing ranges mentioned by the trial judge at the original sentencing are not reflective of the sentencing range for a third felony offender, it is reasonable to infer that the trial judge simply made a mistake, although it is clear he did not intend to impose the maximum sentence. He then imposed the correct, mandatory minimum sentence of 66 years at the habitual offender enhanced sentencing. Despite the Defendant’s contention to the contrary, we find that the trial judge did not mistakenly impose the 66 year sentence.

PATENT ERROR

The record was reviewed for patent error pursuant to La.C.Cr.P. art. 920, State v. Oliveaux, 312 So.2d 337 (La.1975) and State v. Perrilloux, 99-1314 (La.App. 5th Cir.5/17/00), 762 So.2d 198. The review reveals no patent errors in this case.

Accordingly, the Defendant’s conviction and sentence are hereby affirmed.

AFFIRMED.

      . Robert Chambliss (Chambliss), was charged as a co-defendant.

      . We note that the Defendant filed a pro se brief raising five assignments of error in this Court on June 9, 2003. On the same day he filed a motion for the production of a copy of his transcript and requesting to file another pro se brief raising an additional four assignments of error. We ordered the Defendant to file his brief by July 10, 2003 and noted that the transcripts were previously provided. On July 15, 2003, the Defendant filed a supplemental brief. However, it is identical to the first pro se brief and does not raise any additional issues.

      . Even though Article 709 refers to a continuance based on the absence of a witness, the same criteria apply for obtaining a recess. See, State v. Hampton, 98-0331 (La.4/23/99), 750 So.2d 867, 877, cert. denied, 528 U.S. 1007, 120 S.Ct. 504, 145 L.Ed.2d 390 (1999).

      . We note that, if the Defendant had committed the armed robbery before June 15, 2001, he would have been subject to a mandatory life sentence as a third felony offender. Prior to 2001 La. Acts 403, § 4, effective June 15, 2001, the habitual offender statute mandated life imprisonment for third felony offenders when the underlying or any of the predicate felonies were crimes of violence, or other qualifying offenses that are not present here. As of the 2001 amendment, a third felony offender is subject to a mandatory life sentence only if the underlying and the two predicate offenses are qualifying offenses. See, LSAR.S. 15:529. l(A)(l)(b)(ii).


author: I «WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana v. Deskameko DEVARE.
    No. 03-KA-610.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 28, 2003.

      John M. Crum, Jr., District Attorney, Rodney A. Brignac, Assistant District Attorney, LaPlace, LA, for the State of Louisiana, Plaintiff-Appellee.
    Margaret S. Sollars, Thibodaux, LA, for Deskameko Devare, Defendant-Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS and WALTER J. ROTHSCHILD.
   I «WALTER J. ROTHSCHILD, Judge.

The District Attorney for the Parish of St. John the Baptist filed a bill of information on December 10, 2001, charging the defendant, Deskameko Devare, with theft of $500 or more from Ace Hardware, a violation of LSA-R.S. 14:67. The defendant pled not guilty at arraignment.

On August 19, 2002, the defendant withdrew her not guilty plea and admitted that, while she was employed at Ace Hardware in LaPlace, she stole $12,005.44 through fraudulent transactions over a period of eight months. After being advised of her rights, she pled guilty as charged pursuant to LSA-C.Cr.P. art. 893. The trial judge sentenced the defendant to three years of imprisonment at hard labor, but suspended the sentence and placed the defendant on three years of active probation. As conditions of probation, the court ordered the defendant to pay a fine of $500, reimbursement to the Indigent Defender Board in the amount of $250, probation fees of $55 per month, $200.50 in court costs, and restitution in the amount of $12,005.44, subject to credit for payments that she had already made. The court set the defendant’s payments at $350 per month, payable over three years. Immediately thereafter, the prosecutor stated that the victim’s insurance company had paid $11,804.25 to the victim and was seeking ^reimbursement. The court then ordered the defendant to reimburse the victim’s insurance company in the foregoing amount and pay the balance of the restitution to the victim.

On September 10, 2002, the defendant filed a motion to modify the conditions of her probation. The motion asserted that the $350 monthly payments were too onerous and that the defendant’s sentence was illegal because the insurance company was not the proper party to whom restitution should be made.

At a hearing on February 5, 2003, the trial judge partially granted the motion, finding merit in the defendant’s position that the insurance company could not receive restitution. The court imposed the same sentence, but ordered that the $12,005.44 in restitution be paid directly to the victim, “Kenneth Fisher of Ace Hardware.” The defendant objected to the sentence.

On February 13, 2003, the defendant filed a motion to further modify the conditions of probation on the basis that the restitution condition should be deleted from the sentence because the victim had been reimbursed by the insurance company. The defendant also re-urged that the $350 monthly payments were excessive. At a hearing on March 12, 2003, the trial judge denied the defendant’s motion. On March 14, 2003, the defendant filed a motion for appeal, which was granted by the trial court.

DISCUSSION

On appeal, the defendant argues that the trial court erred by imposing an illegal sentence that was unduly oppressive and doomed her to fail. The defendant argues that her sentence is excessive and illegal, because the trial judge ordered her to pay restitution even though the victim had been reimbursed by his insurance company.

|4The Eighth Amendment of the United States Constitution and Article I, Section 20 of the Louisiana Constitution prohibit the imposition of excessive or cruel punishment. A sentence is generally considered to be excessive if it is grossly disproportionate to the offense or imposes needless pain and suffering. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Lobato, 603 So.2d 739, 751 (La.1992); State v. Williams, 98-1146 (La.App. 5 Cir. 6/1/99), 738 So.2d 640, 655, unit denied, 99-1984 (La.1/7/00), 752 So.2d 176. 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, unit denied, 99-2733 (La.3/24/00), 758 So.2d 145.

When a court places a defendant on probation, it may impose any specific condition of probation that is reasonably related to rehabilitation, including a requirement that the defendant make “reasonable reparation or restitution to the aggrieved party for damage or loss caused by his offense in an amount to be determined by the court.” LSA-C.Cr.P. art. 895(A)(7). LSA-C.Cr.P. art. 895.1 provides in pertinent part:

A. (1) When a court places the defendant on probation, it shall, as a condition of probation, order the payment of restitution in cases where the victim or his family has suffered any direct loss of actual cash, any monetary loss pursuant to damage to or loss of property, or medical expense. The court shall order restitution in a reasonable sum not to exceed the actual pecuniary loss to the victim in an amount certain. However, any additional or other damages sought by the victim and available under the law shall be pursued in an action separate from the establishment of the restitution order as a civil money judgment provided for in Subparagraph (2) of this Paragraph. The restitution payment shall be made, in discretion of the court, either in a lump sum or in monthly installments based on the earning capacity and assets of the defendant.

(Emphasis added.)

|sLSA-C.Cr.P. art. 895.1 further provides that, when the court suspends the imposition or execution of sentence and places the defendant on probation, the court has the discretion to order, as a condition of probation, that the defendant pay an additional amount to compensate the victim for his loss and inconvenience, and this amount “may be in addition to any amounts ordered to be paid by the defendant under Paragraph A herein.” LSA-C.Cr.P. art. 895.1(B)(5). The Louisiana Supreme Court has stated that the primary focus of restitution pursuant to LSA-C.Cr.P. art. 895.1 is restitution for “pecuniary losses caused by the criminal activity and not on providing criminal sanctions to enforce collection of civil damages.” State v. Diaz, 615 So.2d 1336, 1337 (La.1993) (per curiam).

The thrust of the defendant’s argument is that restitution is an illegal condition of probation because the victim has been compensated for the stolen money. In State in the Interest of R.L.K, 95-1277 (La.App. 1 Cir. 12/19/95), 666 So.2d 427, writ denied, 95-3120 (La.1/26/96), 666 So.2d 1084, the delinquent child asserted that his disposition was improper for a number of reasons, including that the trial court had failed to consider the possibility that the victim had been reimbursed by insurance or by a restitution order against the co-perpetrator and failed to consider the child’s ability to pay the amount of restitution. The appellate court agreed with the child that the disposition was improper, vacated the disposition and remanded for the trial court to impose a new disposition. Although the disposition was vacated for reasons other than restitution, the appellate court instructed the trial court to determine the restitution amount at the new disposition hearing, “after first considering whether or not the victim otherwise has been compensated for the loss and considering the child’s ability to pay any amount ordered.” Id. at 432-433.

|fiThe defendant cites State v. Dauzat, 590 So.2d 768 (La.App. 3 Cir.1991), writ denied, 598 So.2d 355 (La.1992) and State v. Schmidt, 558 So.2d 255 (La.App. 5 Cir.1990) in support of her position. Although these cases are not exactly on point, they do provide some guidance. In State v. Dauzat, the trial court ordered the defendant, who was found guilty of theft over $500, to pay restitution minus payments made by the victim’s insurance company. Because the trial court failed to specify the actual dollar amount of restitution, the Dauzat court vacated the sentence and remanded for resentencing for the trial judge to “determine the amount of money taken by the defendant which was not covered by insurance.” State v. Dauzat, supra at 775. In State v. Schmidt, supra, this Court affirmed the defendant’s sentence where the court ordered the defendant, who pled guilty to vehicular homicide, to pay $25,000 in restitution to the victim’s family, subject to a $10,000 credit for proceeds paid by the defendant’s insurance company.

In the present case, the defendant asserts that the victim will receive double recovery if the restitution order is not vacated. The record reflects that the victim’s insurance company reimbursed him in the amount of $10,804.25. The record further shows that the victim executed a release in favor of the insurance company in this amount and that the insurance company has asserted its rights of subrogation. Therefore, it appears that the victim will not receive double recovery, because the ultimate recipient of the restitution ordered by the court would be the insurance company, not the victim. However, because the caselaw and LSA-C.Cr.P. art. 895.1 indicate that restitution may be ordered only to compensate the victim, not the victim’s insurance company, we find that the trial judge should have credited the restitution order by the amount that the victim’s insurance company reimbursed the victim. Accordingly, we vacate the restitution order, and we remand the matter for the trial court to hold a hearing to determine the appropriate amount of restitution owed by the defendant to the victim. We further 17order the trial court to set a reasonable and determinate monthly payment schedule for the restitution payments, after determining the proper amount of restitution to be paid by the defendant to the victim.

The defendant further contends that her sentence is illegal because it provides that she will have to serve prison time if she fails to pay the restitution. Specifically, the defendant asserts that she cannot be imprisoned if she defaults on her monetary obligations since she is indigent. The defendant urges this Court to delete the portion of her sentence that imposes a term of imprisonment in default of paying restitution.

An indigent person may not be incarcerated merely because he is unable to pay a fíne that is part of his sentence. Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983); State v. Monson, 576 So.2d 517 (La.1991). However, the imposition of fines and costs on an indigent is not unconstitutional so long as time in jail is not ordered in event of default. State v. Duncan, 601 So.2d 374, 375 (La.App. 5 Cir.1992), unit denied, 604 So.2d 1317 (La.1992); State v. Johnson, 592 So.2d 818, 820 (La.App. 5 Cir.1991).

The record reflects that the defendant was represented at trial by the Indigent Defender Board and on appeal by the Louisiana Appellate Project. In State v. Cox, 02-0333 (La.App. 5 Cir. 9/30/02), 829 So.2d 521, 524, this Court concluded that the defendant was indigent when represented by the Indigent Defender Board and the Louisiana Appellate Project. Thus, in the instant case, it is clear that the defendant is indigent. However, the record does not reflect that the defendant was sentenced to jail time upon default of payment. The minute entry of re-sentencing dated February 5, 2003 provides that the defendant’s three-year sentence at hard labor was suspended and subject to conditions, but does not state that the defendant should be imprisoned in the event of default of payment. Therefore, the sentence is not in violation of-the rule that an indigent should not be imprisoned for |snonpayment of costs. We note that if the defendant fails to pay the restitution, court costs or fines, collection may be enforced as a money judgment in a civil case pursuant to LSA-C.Cr.P. art. 886. See State v. Monson, supra; State v. Johnson, supra at 820.

The récord 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). The review revealed that there are no patent errors in this case.

DECREE

For the reasons set forth above, we vacate the restitution order and remand the matter to the trial court for a hearing to determine the appropriate amount of restitution owed by the defendant to the victim. We further order the trial court to set a reasonable and determinate monthly payment schedule, after determining the correct amount of restitution.

REVERSED AND REMANDED.

      . The record contains the release executed by the victim in favor of the insurance company, which reflects that the victim was paid $10,804.25.

      . See also, LSA-C.Cr.P. art. 883.2, which requires the court to order the defendant to pay restitution as part of the sentence when the court finds the victim suffered an actual pecuniary loss or when costs have been incurred by the victim in connection with a criminal prosecution.