author: |,THOMAS F. DALEY, Judge.

text:
    STATE of Louisiana v. Timothy P. MACCRACKEN.
    No. 02-KA-1163.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 29, 2003.

      Paul D. Connick, Jr., District Attorney, Andrea F. Long, Terry M. Boudreaux, Walter G. Amstutz, Assistant District Attorneys, 24th Judicial District, Parish of Jefferson, Gretna, LA, for Plaintiff/Appel-lee.
    Philip E. O’Neill, Ray J. Dupepe, Jr., O’Neill & Burton, Gretna, LA, for Defendant/Appellant.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   |,THOMAS F. DALEY, Judge.

Defendant Timothy P. MacCracken appeals his conviction of one count of illegal possession of stolen things valued at over $500.00 in violation of LSA-R.S. 14:69 and five counts of purse snatching in violation of LSA-R.S. 14:65.1. We affirm.

On appeal, defendant makes six Assignments of Error:

1. The trial court was clearly wrong or manifestly erroneous when it denied the defense’s motion to declare defendant incompetent to proceed at trial.
2. The trial court was clearly wrong or manifestly erroneous when it failed to suppress the evidence on the basis that defendant’s arrest was illegally obtained.
3. The trial court was clearly wrong or manifestly erroneous when it did not allow defense counsel to withdraw.
4. The trial court was clearly wrong or manifestly erroneous when it failed to recuse the Jefferson Parish District Attorney’s office.
5. The trial court was clearly wrong or manifestly erroneous when it failed to suppress defendant’s confession.
6. The trial court was clearly wrong or manifestly erroneous when it failed to suppress the identification of the defendant.

J¿PROCEDURAL HISTORY

On August 7, 2001, the Jefferson Parish District Attorney’s Office filed a Bill of Information charging defendant, Timothy MacCracken, with one count of illegal possession of stolen things valued at over $500.00 in violation of LSA-R.S. 14:69 and five counts of purse snatching in violation of LSA-R.S. 14:65.1. On August 8, 2001, defendant was arraigned on the charges and pled not guilty. On January 15, 2002, defendant’s previously filed Motion to Re-cuse the Jefferson Parish District Attorney’s Office from prosecuting his case was heard and denied. Defendant thereafter applied to this Court for a Supervisory Writ seeking review of the trial court’s ruling on the Motion to Recuse the Jefferson Parish District Attorney’s Office. The writ was denied. On February 7, 2002, defendant filed a Motion to Appoint a Sanity Commission. On April 3, 2002, a competency hearing was held and defendant was ruled competent to stand trial. On June 13, 2002, defendant’s previously filed motions to suppress evidence, identification, and statements were heard and denied. On June 17, 2002, defense counsel’s Motion to Withdraw, defendant’s Motion to Continue and Motion to Suppress Evidence were heard and denied.

On June 18, 2002, the day of trial, defendant withdrew his former plea of not guilty and entered a plea of guilty to one count of possession of stolen things valued at $500.00 or greater and five counts of purse snatching. Defendant’s guilty plea was made under the provisions of North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) and State v. Crosby, 338 So.2d 584 (La.1976). Defendant was sentenced to ten years at hard labor for possession of stolen things and twenty years at hard labor on each count of purse snatching. The sentences were ordered to run concurrently with one another and any other sentences.

l4The State thereafter filed a multiple offender Bill of Information alleging defendant to be a second felony offender. Defendant entered an admission to the allegations contained in the multiple offender ■bill and was found to be a second felony offender. The trial court vacated the previous sentence and imposed a sentence of twenty years at hard labor without benefit of probation or suspension of sentence to run concurrently with any other sentence. On June 21, 2002, defendant filed a timely Motion for Appeal.

FACTS

Because the defendant pled guilty, the fact narrative was taken from testimony given at various suppression hearings. Lisa McClendon, a deputy with the Jefferson Parish Sheriffs Office, testified that, on June 16, 2001, she was on patrol when she recognized the license plate on a vehicle parked at the E-Z Serve at Transcontinental as belonging to a vehicle that had been reported stolen. Deputy McClendon noticed four individuals inside of the vehicle. Deputy McClendon ordered the occupants out of the car at which time defendant and another individual, Mark Cambre, exited the vehicle. Deputy McClendon then ordered defendant and Cambre to walk to the back of the stolen vehicle and to lie on the ground. After defendant and Cambre were lying on the ground, the vehicle from which they had exited sped off. Deputy McClendon remained with defendant and Cambre and placed them under arrest for possession of stolen things and transported them to the Jefferson Parish Detective Bureau.

Sergeant Scott Fontaine of the Jefferson Parish Sheriffs Office Robbery Division testified that he was assigned to investigate a series of robberies that occurred in Jefferson Parish. As a result of his investigation, Sergeant Fontaine had been able to identify defendant as a suspect in connection with the robberies. | R On June 16, 2001, Sergeant Fontaine, after advising defendant of his constitutional rights and-obtaining a written waiver of those rights, obtained a statement from defendant detailing his involvement in four purse snatchings. Sergeant Fontaine testified that, during the course of his interview of defendant, defendant turned over to him numerous credit cards containing the names of victims of the purse snatchings. Sergeant Fontaine also testified that pursuant to his investigation, he was able to present a photographic lineup to one victim who positively identified defendant as the perpetrator.

Detective John Carroll of the Jefferson Parish Sheriffs Office testified that, after obtaining a signed waiver of defendant’s constitutional rights, he obtained a statement from defendant concerning another purse snatching. In the statement, defendant indicated his involvement in the robbery of an elderly gentleman that occurred on June 18, 2001.

Detective Sergeant Joseph Picone of the Jefferson Parish Sheriffs Office testified that, as part of his investigation of the robberies, he presented a photographic lineup to two Wal-Mart cashiers who witnessed one of the robberies. The witnesses, after individually being shown the photographic lineup, both positively identified defendant.

ASSIGNMENTS OF ERROR NUMBER ONE

The trial court was clearly wrong or manifestly erroneous when it denied the defense’s motion to declare defendant incompetent to proceed at trial.

Louisiana law provides that “[mjental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense.” LSA-C.Cr.P. art. 641.

|fiIn the lead case on mental capacity, State v. Bennett, 345 So.2d 1129 (La.1977) on reh’g, 345 So.2d 1129, 1138 (La.1977), the Louisiana Supreme Court discussed factors to be considered in determining whether the accused is aware of the nature of the proceedings against him and his ability to assist in his defense:

Appropriate considerations in determining whether the accused is fully aware of the nature of the proceedings include: whether he understands the nature of the charge and can appreciate its seriousness; whether he understands what defenses are available; whether he can distinguish a guilty plea from a not guilty plea and understands the consequences of each; whether he has an awareness of his legal rights; and whether he understands the range of possible verdicts and the consequences of conviction. Facts to consider in determining an accused’s ability to assist in his defense include: whether he is able to recall and relate facts pertaining to his actions and whereabouts at certain times; whether he is able to assist counsel in locating and examining relevant witnesses; whether he is able to maintain a consistent defense; whether he is able to listen to the testimony of witnesses and inform his lawyer of any distortions or misstatements; whether he has the ability to make simple decisions in response to well-explained alternatives; whether, if necessary to defense strategy he is capable of testifying in his own defense; and to what extent, if any, his mental condition is apt to deteriorate under the stress of trial.
State v. Bennett, 345 So.2d at 1138.

Louisiana law presumes that a defendant is competent to proceed. Defendant has the burden to prove his incapacity to stand trial by a preponderance of the evidence. State v. Carmouche, 01-0405 (La.5/14/02), — So.2d -, 2002 WL 984306. A trial court’s determination of competency will not be overturned on appeal absent abuse of the trial court’s vast discretion. State v. Castleberry, 98-1388 (La.4/13/99), 758 So.2d 749, cert denied, 528 U.S. 893, 120 S.Ct. 220, 145 L.Ed.2d 185 (1999).

Defendant filed a Motion to Appoint Sanity Commission to Determine Defendant’s Competency to Stand Trial on February 7, 2002. The trial court granted the Motion and appointed Dr. Richard Ri-choux and Dr. Rafael Salcedo to examine MacCracken and report their findings and opinions at a hearing set for April 3, 2002. Both doctors testified regarding their examinations of the defendant. His past psychiatric history was noted (primarily depression and |7substance abuse), although the doctors deemed this history not relevant to the defendant’s present ability to understand the charges against him and aid his counsel in his defense. Dr. Salcedo found that defendant met all of the Bennett criteria and found defendant competent to stand trial, saying that it was not even a “close call.” Dr. Richoux concurred in Dr. Salcedo’s findings and opinions.

Thereafter, the defendant took the stand and disputed the doctors’ testimonies regarding the length of time of their examination, and noted that they misstated his marital status in their report. After the matter was submitted, the trial court found the defendant competent to stand trial and effectively assist counsel. The trial court noted, at a later hearing, that the defendant was conferring with counsel all through the sanity hearing and participating in the proceeding.

Our review of the record shows that the trial court did not abuse its vast discretion when it found the defendant competent to stand trial. This assignment has no merit.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant argues that probable cause did not exist for his arrest and any resulting evidence should have been suppressed as “fruit of the poisonous tree.” The State responds that probable cause existed for defendant’s arrest and defendant’s arguments to the contrary are devoid of both factual and legal support.

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. War-rantless searches and seizures are considered unreasonable per se, unless justified by a specific exception to the warrant requirement. A warrantless arrest |Rin a public place is not “illegal” if there is probable cause. Probable cause to arrest exists when the facts and circumstances within an officer’s knowledge, and of which he has reasonable trustworthy information, are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed or is committing a crime. An arrest without probable cause is illegal and the seizure of evidence pursuant thereto is also illegal.

Defendant initially argues that Deputy McClendon’s testimony, as it concerns the facts surrounding defendant’s arrest, is “suspect.” Defendant contends that he was never inside or near the stolen vehicle at the time the arresting officer arrived on the scene. In support of his version of events, defendant refers to the affidavit of Mark Cambre, attached as Exhibit “A” to defendant’s brief, which was given on June 19, 2002, the day after defendant accepted the plea agreement. Additionally, defendant argues that Deputy McClendon s testimony is further discredited because the defendant’s criminal history report filed by McClendon (attached to defendant’s brief as Exhibit “B”) indicates that he was arrested for outstanding municipal or traffic attachments and not for possession of stolen property. Cam-bre’s affidavit and defendant’s criminal history report were not introduced into evidence at any trial court proceeding and as such are not a part of the record. Both the Louisiana Supreme Court and this Court have recognized that courts of appeal have no authority to receive or review evidence not contained in the district court record. Thus, the only evidence concerning defendant’s arrest was the testimony of Deputy Lisa McClendon.

Deputy McClendon testified that, on June 16, 2001, she observed a vehicle parked at an E-Z Serve on Transcontinental. Deputy McClendon recognized the | pvehicle because the vehicle’s license plate number had been broadcast numerous times over her police radio as belonging to a stolen vehicle. Deputy McClendon observed four individuals seated in the vehicle and proceeded to call for back-up. She then ordered the four occupants out of the vehicle. Defendant and Cambre exited the vehicle and Deputy McClendon ordered them to lie on the ground after which the stolen vehicle sped off. Deputy McClen-don then placed defendant and Cambre under arrest for possession of stolen things.

During cross-examination, defense counsel asked Deputy McClendon if she noticed defendant and Cambre near a payphone outside of the car or whether she had noticed them carrying anything they had purchased from the store to which Deputy McClendon responded in the negative. Defense counsel then questioned McClen-don as to the specific charge for which defendant was arrested. Deputy McClen-don testified that both defendant and Cam-bre were detained for the possession of a stolen vehicle. Defense counsel then referred Deputy McClendon to defendant’s criminal history report, which was not introduced into evidence at the suppression hearing, but which is attached to defendant’s brief as Exhibit “B.” Referring to the report, defense counsel suggested that Deputy McClendon arrested defendant on two municipal traffic attachments. Deputy McClendon, however, testified that she did not recall arresting defendant for any attachments and that defendant was arrested for possession of a stolen vehicle. Even if this Court were to consider defendant’s criminal history report improperly attached as an exhibit, it is clear that the report indicates that Deputy McClendon placed defendant under arrest for possession of a stolen vehicle and not for traffic attachments as argued by defendant.

Additionally, defendant argues that Deputy McClendon’s testimony is further discredited because the occupants of the stolen vehicle could not have driven off as Deputy McClendon testified because the deputy’s vehicle was inj^front of the stolen ear and the defendant and Cambre were on the ground behind the stolen car. However, Deputy McClendon’s testimony reveals that defendant and Cambre were six feet behind the stolen vehicle. Such a distance does not appear to prohibit the occurrence of events in the manner described by Deputy McClendon.

Based on Deputy McClendon’s testimony that defendant was an occupant in a stolen vehicle and the lack of any evidence to the contrary, the trial court did not err in finding probable cause for defendant’s arrest and denying defendant’s Motion to Suppress.

ASSIGNMENTS OF ERROR NUMBER THREE

Defendant contends that the trial court was clearly wrong when it did not allow defense counsel to withdraw. The record shows that on June 17, 2002, the day before trial, defendant informed the trial court that he wanted to fire his trial counsel, citing reasons ranging from deceit to incompetency. The trial court ruled that defense counsel would not be permitted to withdraw the day before trial and noted the lengthy procedural delays in the case attributable to the defendant.

Generally, a criminal defendant has the right to counsel of his choice. State v. Leggett, 363 So.2d 434, 436 (La.1978). A defendant, however, must exercise his right to counsel of his choice at a reasonable time, in a reasonable manner and at an appropriate stage of the proceedings. State v. Bridgewater, 00-1529 (La.1/15/02), 823 So.2d 877. The defendant’s right to counsel of his choice “cannot be manipulated to obstruct the orderly procedure of the courts and cannot be used to interfere with the fair administration of justice.” State v. Zapata, 97-1230 (La.App. 5 Cir. 5/27/98), 713 So.2d 1152, 1161, writ denied, 98-1766 (La.11/6/98), 727 So.2d 443. The issue of withdrawal of counsel largely rests with the discretion of Inthe trial court, and the court’s ruling will not be disturbed in the absence of a clear showing of abuse of discretion. Id. at 1161.

After reviewing the record and applicable law, we find that the trial court did not abuse its discretion in refusing to permit defense counsel to withdraw. As the trial court noted, the defendant had already discharged one retained attorney and was seeking to replace his second attorney the day before trial. Counsel for defendant informed the trial court that he was willing to remain on the case, was prepared to complete the motion hearings, and was ready to proceed to trial. Therefore, the record supports the trial court’s conclusion that the defendant’s attempt to discharge his current counsel was a delay tactic designed to force a continuance of the trial and delay resolution of the case. We find no merit to this Assignment of Error.

ASSIGNMENTS OF ERROR NUMBER FOUR

The trial court was clearly wrong or manifestly erroneous when it failed to re-cuse the Jefferson Parish District Attorney’s Office.

By this Assignment of Error, the defendant alleges that the Jefferson Parish District Attorney’s Office had a personal interest in the case that conflicts with the fair and impartial administration of justice. Specifically, he argues that his father, Calvin MacCracken, is employed by the District Attorney’s Office as an investigator, and was, therefore, concerned about the appearance of impropriety.

Defendant’s Motion to Recuse was heard on January 15, 2002. The trial court denied the Motion. Thereafter, the defendant filed an Application for Supervisory Writ in this court seeking review of the trial court’s ruling. This Court denied the writ, finding an insufficient basis on which to disturb the ruling of the trial court, and specifically finding that under LSA-C.Cr.P. art. 680, defendant had | ^failed to show that the District Attorney’s Office had a personal interest in the cause.

LSA-C.Cr.P. art 680 provides that:

A district attorney shall be recused when he:
(1) Has a personal interest in the cause or grand jury proceeding which is in conflict with fair and impartial administration of justice;
(2) Is related to the party accused or to the party injured, or to the spouse of the accused or party injured, or to a party who is a focus of a grand jury investigation, to such an extent that it may appreciably influence him in the performance of the duties of his office; or
(3) Has been employed or consulted in the case as attorney for the defendant before his election or appointment as district attorney.

The defendant bears the burden of showing by a preponderance of the evidence that the district attorney has a personal interest in conflict with the fair and impartial administration of justice. State v. Guidroz, 98-377 (La.App. 5 Cir. 10/14/98), 721 So.2d 480, 485, writ denied, 98-2874 (La.2/26/99), 738 So.2d 1061 (quoting State v. Bourque, 622 So.2d 198, 216-217 (La.1993).)

Our review of the record establishes that the trial court correctly determined that the defendant did not satisfy his burden in the instant case. First, though Calvin MacCracken was employed as an investigator with the DA’s office at the time of the relevant proceedings, all of his assignments related to Juvenile Court. Mr. MacCracken never worked in the Felony Division and never worked on any case involving his son or a co-defendant or his son relative to this case. Additionally, when Mr. MacCracken was asked if he were aware of any reason that the DA’s office wanted to maintain the prosecution of his son’s case in the instant matter, he answered no. He could not suggest any bias or personal interest in his son’s case that would support a recusal of the office. Defendant faded to demonstrate ground for recusal based upon his father’s employment with the prosecuting office.

| ^Defendant bolsters his argument by pointing out that the DA’s office recused itself in a previous prosecution of defendant, and therefore recusal is required in this matter also. The record shows that the DA’s office recused itself voluntarily in a prior prosecution of defendant just before District Attorney Paul Connick took office. No grounds were stated for the recusal, and the trial court appointed the Attorney General’s office to represent the State. Mr. Calvin MacCracken testified to his subjective belief that the previous recu-sal occurred because of an office policy of Mr. Connick to defer prosecution of the family members of employees to the Attorney General’s Office. Defendant’s mother also testified regarding her impression of the reasons for the recusal, but neither witness has personal knowledge as to the definitive grounds under which the DA’s office sought recusal in the previous case.

The record fails to show that the DA’s Office had a personal interest in the case that was in conflict with the fair and impartial administration of justice. This Assignment of Error has no merit.

ASSIGNMENT OF ERROR NUMBER FIVE

Defendant argues that the trial court erred in denying his Motion to Suppress evidence because defendant’s statements were not voluntarily given because he had not slept in five days and was heavily under the influence of crack cocaine and alcohol. The State responds that defendant failed to demonstrate that drugs or alcohol were present in his system when he gave his statements or that any substance negated his comprehension and rendered him unconscious of the ramifications of his statements.

In State v. Robinson, 384 So.2d 332, 335 (La.1980), the Louisiana Supreme Court addressed the issue of intoxication when challenging the admissibility of a confession:

luWhere the free and voluntary nature of a confession is challenged on the ground that the accused was intoxicated at the time of interrogation, the confession will be rendered inadmissible only when the intoxication is of such a degree as to negate defendant’s comprehension and to render him unconscious of the consequences of what he is saying. Whether intoxication exists and is of a degree sufficient to vitiate the voluntariness of the confession are questions of fact. State v. Rankin, 357 So.2d 803 (La.1978). The admissibility of a confession is in the first instance a question for the trial judge. His conclusions on credibility and weight of the testimony relating to the voluntariness of a confession will not be overturned unless they are not supported by the evidence. State v. Hutto, 349 So.2d 318 (La.1977).

In the present case, defendant argues that his confession should be suppressed because it was not voluntarily given due to the facts that he had not slept in five days and was heavily under the influence of crack cocaine and alcohol. Defen-dant s first statement, the only one directly addressed in defendant’s brief, was given to Sergeant Scott Fontaine on June 16, 2001, the day of defendant’s arrest for possession of a stolen vehicle. At the hearing on defendant’s Motion to Suppress, Sergeant Fontaine testified that he advised defendant of his constitutional rights and reviewed an advice of rights form with the defendant. Sergeant Fon-taine testified that defendant gave no indication that he did not understand any of his rights or what was being explained to him. On cross-examination, Sergeant Fontaine testified that he did not recall defendant mentioning his recent alcohol or drug intake nor did he recall defendant making any comments concerning his sleep deprivation, although defendant did mention he had a drug addiction. When asked by defense counsel if defendant appeared incoherent, Sergeant Fontaine responded, “To me, he did not appear incoherent at all.” It should also be noted that the arresting officer, Deputy McClendon, testified at a subsequent unrelated Motion to Suppress evidence that defendant did not appear to be disoriented at the time of his arrest.

lisA case that addressed a similar issue is State v. Quest, supra. In Quest, defendant sought to suppress his confession claiming that he was under the influence of heroin at the time of his statement. This Court held that the trial court did not err in finding a statement was freely and voluntarily given reasoning that while defendant had stated that he had use heroin some six hours earlier that day, the investigating officers did not perceive any evidence of defendant’s intoxication. The interviewing officers testified that defendant’s speech and ability to balance were normal and that the defendant appeared coherent and did not appear intoxicated.

In the present case, although there was some evidence that defendant may have been under the influence of drugs or alcohol at the time his first statement was taken, it appears that the State presented sufficient evidence that defendant’s statements were freely and voluntarily given. Like Quest, the investigating officers testified that defendant did not appear incoherent or intoxicated. Thus, it does not appear that the trial judge erred in denying the defendant’s Motion to Suppress his confession.

ASSIGNMENT OF ERROR NUMBER SIX

Defendant contends that the trial court erred when it failed to suppress a photographic lineup identification of the defendant by a purse snatching victim because of discrepancies in the victim’s initial description and defendant’s photograph as presented in the photographic lineup. The State responds that the trial court did not err because the identification procedure was not suggestive, nor was there a likelihood of misidentification as a result of the identification procedure.

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

A photographic lineup is considered suggestive if the photographs display the defendant in such a manner that the witness’s attention is unduly focused on the defendant. A lineup is also suggestive if there is not a sufficient resemblance of characteristics and features of the persons in the lineup.

In Manson v. Brathwaite, the United States Supreme Court set forth five factors to consider in determining if an identification is rehable: 1) the opportunity of the witness to view the criminal at the time of the crime; 2) the witness’ degree of attention; 3) the accuracy of the prior description of the criminal; 4) the level of certainty demonstrated at the confrontation; and 5) the time between the crime and the confrontation. A trial court’s determination of the admissibility of an identification should be accorded great weight and will not be disturbed on appeal unless the evidence reveals an abuse of discretion. Id.

Defendant contends that the lineup was unduly suggestive because of asserted discrepancies in the initial description of one of the two perpetrators and defendant’s actual description. In support of his argument, defendant attaches |17pages of a police report not introduced into evidence, but attached to defendant’s brief as Exhibit “D” in which the victim gave a description of two suspects involved in the purse snatching. As previously noted, courts of appeal have no authority to receive or review evidence not contained in the district court record. Therefore, the only evidence available to this Court concerning the identification is the testimony of Sergeant Fontaine and any exhibits introduced in conjunction with his testimony.

Sergeant Fontaine testified that pursuant to his investigation he presented a photographic lineup to a victim of one of the purse snatehings, Rosemary Heirseh, on June 19, 2001. The photographic lineup, which was introduced into evidence as State’s Exhibit Number Three, consisted of an array of six photographs, one of which was a photograph of defendant. The photographs were of white males sharing similar characteristics such as hair and eye color. Fontaine testified that he presented the lineup to Heirseh and asked her if she recognized anyone, at which time she immediately selected the photograph of defendant. Fontaine testified that he did nothing suggestive in order to have Heirseh select a photo from the lineup.

Based on the evidence at trial, it does not appear that the photographic lineup was suggestive. Accordingly, the trial judge did not err in denying defendant’s Motion to Suppress identification.

ERROR PATENT DISCUSSION

The review reveals two errors patent in this case.

The State failed to specify in the multiple bill which of the five counts of purse snatching was being considered for enhanced sentence. The trial court, after having found defendant to be a multiple offender, vacated defendant’s previous | issentence and imposed an enhanced sentence without specifying which count was being enhanced. It appears from the record that, although the trial court meant to impose the enhanced sentence on one of the purse snatching counts, since that was the conviction referred to in the multiple bill, the indefinite reference to the “sentence of twenty years previously imposed is vacated” does not specify which of the five counts of purse snatching is being enhanced. Therefore, the matter is remanded to the trial court and the trial court is instructed to re-sentence defendant and in so doing clarify which of the defendants convictions is being vacated and enhanced. Finally, discrepancies appear to exist between the transcript and commitment/minute entry. The commitment/minute entry incorrectly states that defendant pled guilty to receiving stolen goods valued at $300.00 or greater instead of $500.00 or greater. Where there is a discrepancy between the transcript and the minute entry, the transcript will prevail. As a result, this Court remands the matter to the trial court to amend the commitment/minute entry to conform to the transcript.

AFFIRMED AND REMANDED.

      . The record does not indicate which count was enhanced under the multiple offender Bill of Information. The matter is addressed in the Errors Patent Discussion.

      . Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); State v. Moreno, 619 So.2d 62, 66 (La.1993); State v. Quest, 00-205 (La.App. 5 Cir. 10/18/00), 772 So.2d 772, 779, writ denied, 00-3137 (La.11/2/01), 800 So.2d 866; State v. Green, 97-702 (La.App. 5 Cir. 12/30/97), 706 So.2d 536, 538.

      . United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); State v. Anthony, 98-0406 (La.4/11/00), 776 So.2d 376, 389, cert. denied, 531 U.S. 934, 121 S.Ct. 320, 148 L.Ed.2d 258 (2000).

      . State v. Scales, 93-2003 (La.5/22/95), 655 So.2d 1326, 1331, cert. denied, 516 U.S. 1050, 116 S.Ct. 716, 133 L.Ed.2d 670 (1996); State v. Quest, 772 So.2d at 779.

      . Id.; State v. Green, 706 So.2d at 538.

      . State v. Oubichon, 422 So.2d 1140, 1141 (La.1982); State v. Bibb, 626 So.2d 913, 924 (La.App. 5 Cir.1993), writ denied, 93-3127 (La.9/16/94), 642 So.2d 188.

      . Evidence of intoxication relied upon by defendant was extrapolated from his second statement to police taken on June 20, 2001 concerning the robbery of an elderly gentleman on June 13, 2001. Defendant stated that he had "been up for like four or five days smoking crack cocaine and drinking alcohol without sleeping, without stopping.” (State’s Exhibit Number Five). Defendant does not raise the issue of the voluntariness of his second statement in his brief.

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

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

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

      . State v. Biglane, 99-111 (La.App. 5 Cir. 5/19/99), 738 So.2d 630, 634.

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

      . State v. Oubichon, 422 So.2d at 1141; State v. Bibb, 626 So.2d at 924.

      . 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).

      . State v. Lynch, 441 So.2d 732, 734 (La.1983); State v. Cowart, 01-1178 (La.App. 5 Cir. 3/26/02), 815 So.2d 275, 291.

      . See, State v. Jones, 01-177 (La.App. 5 Cir. 10/17/01), 800 So.2d 958, 964.


source: Caselaw Access Project

author: | .MARION F. EDWARDS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Larry SIMS.
    No. 02-KA-1244.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 29, 2003.

      Paul D. Conniek, Jr., District Attorney, Alan D. Alario, II, Terry M. Boudreaux, Assistant District Attorneys, Gretna, LA for Appellee.
    Holli Herrle-Castillo, Marrero, LA, for Appellant.
    Panel composed of Judges SOL GOTHARD, MARION F. EDWARDS and SUSAN M. CHEHARDY.
   | .MARION F. EDWARDS, Judge.

Defendant, Larry Sims, appeals his conviction for four counts of armed robbery. For the following reasons, we affirm and remand the matter for resentencing.

Defendant, Larry Sims, was charged in a bill of information on November 3, 2000 with four counts of armed robbery in violation of LSA-R.S. 14:64. Sims pled not guilty and filed several pre-trial motions including motions to suppress the evidence and his two statements. A hearing was held on Sims’ motions to suppress the evidence and his statements, and the trial court granted the motion to suppress Sims’ last statement but denied the motion to suppress the evidence and his first two statements.

Sims proceeded to trial on May 7, 2002, and was found guilty as charged on all four counts. He was sentenced to 99 years without the benefit of parole, probation, or suspension of sentence on each count, with each count to run concurrently.

The State subsequently filed a multiple offender bill of information alleging Sims to be a multiple offender based on count one and two 1996 guilty pleas for 1 .distribution of cocaine and aggravated battery. A multiple bill hearing was held and the trial court found Sims to be a second felony offender. The trial court vacated Sims’ original 99-year sentence on count one and resentenced him to 110 years without benefits and ordered his enhanced sentence to run concurrently with the sentences defendant was presently serving. Sims presently appeals both his conviction and sentence.

On October 19, 2000 at approximately 9:30 a.m., two men wearing hooded sweatshirts entered the Hibernia Bank at the intersection of Medical Center Blvd. and the Westbank Expressway armed with guns and ordered everyone to lie on the floor.. The shorter of the two men, later identified as Sims, remained in the lobby while the taller man, identified by Sims as Floyd Falkins, jumped the teller counter. While behind the teller counter, Falkins put his gun to two of the tellers’ heads. He told one of the four tellers, Betty Higgins, to shut up or he would shoot her. Falkins proceeded to take approximately $15,800 from the tellers’ drawers. The perpetrators then fled the bank. None of the bank employees could identify the robbers because Sims covered his face with a red bandanna and Falkins covered his face with a black ski mask.

Meanwhile, Sylvia Bourg was sitting in the parking lot of the Hibernia Bank waiting for her daughter to cash a check inside the bank. Thinking it was taking her daughter longer than it should, Ms. Bourg exited her vehicle and walked toward the bank. Two black men wearing hooded sweatshirts exited the bank carrying a bag and crossed the street. Ms. Bourg noted it was too warm for the men to be wearing sweatshirts. She then saw red smoke coming out of the bag and realized what had happened. Ms. Bourg last saw the men in front of the Rite Aid store. She could not see their faces because they were wearing hoods.

At the same time, Jeanne Pierre was sitting in the Rite Aid parking lot when she saw a man, who was being followed by another man, throw “smoke” into a Rbush. The men were wearing hooded sweatshirts. One man was carrying a mask in his hand and the other man had a gun that he was tucking into his pants. Ms. Pierre saw the two men enter a burgundy Maxi-ma that was parked in the parking lot and was driven by a third man. The Maxima drove off on the Westbank Expressway toward the Harvey Tunnel but Ms. Pierre managed to get the license plate number which she gave to the police.

Deputy George Giron heard the description of the vehicle over the police radio. He proceeded to the high rise portion of the expressway to see if he could spot the vehicle. A vehicle matching the description passed and he stopped the vehicle. Deputy Giron ordered the driver out of the vehicle and the driver complied. He then ordered the driver to the rear of the vehicle at which time the driver jumped off the high-rise. The two passengers, Sims and Falkins, were immediately taken into custody. The officer observed a weapon protruding from under the front passenger seat and a dye-stained sweatshirt, gloves and bag in the rear of the car. A search warrant was obtained for the car and yielded a semi-automatic black handgun and a .357 magnum revolver, which the victims identified as being the guns used during the bank robbery, bullets, a black knit ski mask, a red bandanna, a black nylon bag, $15,839.00, three security dye packs, and a blue/gray hooded sweatshirt.

After his arrest, Sims was advised of his rights. He waived his rights and gave an oral statement to Sergeant Grey Thurman. In his statement, Sims admitted his involvement in the bank robbery. He stated he armed himself with a semi-automatic gun, entered the bank, and ordered the people in the bank to lie down. He explained he stayed in the lobby while Fal-kins took the money. He then stated they left the bank in a car driven by his brother, Dwayne Sims.

In his first assignment of error, Sims argues the oral statement given to Sgt. Thurman should have been suppressed because he did not understand his rights Iswhen he signed the waiver of rights form. Sims contends his statement was not voluntary, instead asserting that he was confused about his rights, as indicated by his subsequent taped statement when he stated he wanted an attorney. Sims points out he does not read well and that he is a schizophrenic.

Prior to trial, Sims filed a generic motion to suppress all his statements on the basis they were involuntary. A hearing was held which revealed defendant gave three statements to Sgt. Thurman. Sims first gave an unrecorded oral statement and then two subsequent taped statements.

Before talking with Sims, Sgt. Thurman reviewed a Rights of Arrestee or Suspect form with him. Defendant indicated he had difficulty reading so Sgt. Thurman read the form aloud using his finger to follow along the words on the form. Sims initialed each right and then signed in two places indicating he read and understood his rights and that he wished to waive his rights. Sgt. Thurman knew defendant from a prior homicide case where defendant was a witness and felt Sims was capable of understanding and did in fact understand the rights he was waiving. Thereafter, Sgt. Thurman and defendant discussed the incident at which time Sims conveyed the story of what happened. This statement was not recorded.

Sgt. Thurman then obtained a tape recorder and began taking a recorded statement. At the beginning of the first taped statement, Sgt. Thurman again reviewed Sims’ rights and referenced the waiver of rights form, which Sims had previously executed. When Sims was asked whether he understood everything on the waiver of rights form, he responded by inquiring into his right to an attorney. Sims then stated he was confused and that he wanted an attorney present.

Sgt. Thurman asked if Sims was confused prior to that point and defendant replied in the negative. Sims stated he was confused now because he was getting sleepy and his medication was making him drowsy. Sgt. Thurman then asked Sims if he had understood the waiver of rights form 30 minutes earlier when he|fisigned it and Sims indicated that he did. Sims admitted he did not request an attorney when he signed the waiver of rights form and had not requested an attorney prior to the instant moment. He acknowledged that he had given Sgt. Thurman a statement after signing the waiver of rights form and before the present recorded statement. Thereafter, despite having asked twice for an attorney, Sims stated he wanted to “go ahead” and talk but Sgt. Thurman concluded the statement. Ten minutes later, Sims gave a second recorded statement at the beginning of which Sgt. Thurman again reviewed defendant’s rights. This second recorded statement contained substantive facts regarding the incident.

The trial court granted the motion to suppress any statement given after Sims stated he wanted an attorney present, which occurred on page six of his first recorded statement, and denied the motion to suppress any statement given prior to that point. Thus, the trial court ruled Sims’ unrecorded oral statement and his first recorded statement were admissible and his second recorded statement was inadmissible. In finding Sims’ first two statements admissible, the trial court reasoned that the written wavier of rights was valid and well-executed and that defendant’s waiver of rights at that time was voluntary and knowing.

The State contends that Sims failed to preserve his right to appeal the trial court’s ruling on his motion to suppress his statements because defendant failed to object to the trial court’s ruling. However, LSA-C.Cr.P. art. 841(B) patently states that no objection is required to a ruling on a written motion in order to permit the ruling to be considered on appeal.

Before an inculpatory statement, made during a custodial interrogation, may be introduced into evidence, the State must prove beyond a reasonable doubt that the defendant was first advised of his Miranda rights, that he voluntarily and intelligently waived his Miranda rights, and that the statement was made freely and |7voluntarily and not under the influence of fear, intimidation, menaces, threats, inducement or promises. A de-termination of voluntariness is made on a case-by-case basis, depending on the totality of the facts and circumstances of each situation.

The admissibility of a confession or statement is a determination for the trial judge and his conclusions on the credibility and weight of the testimony relating to the voluntary nature of the confession or statement are entitled to great weight and will not be overturned unless unsupported by the evidence. In reviewing the trial court’s ruling, the evidence presented at trial may be considered in addition to the evidence presented at the hearing on the motion to suppress.

Sims does not allege that he was not advised of his Miranda rights but rather that he did not knowingly waive them. The record shows Sgt. Thurman adequately reviewed defendant’s rights prior to interviewing him. Sgt. Thurman was aware Sims had difficulty reading and took care to read the form to defendant. Sgt. Thurman knew defendant from a prior homicide case where Sims was a witness. He stated that in connection with the homicide case, he spoke to Sims at length on numerous occasions. Based on his prior experiences with defendant, Sgt. Thurman believed Sims understood his rights. Sgt. Thurman specifically noted defendant appeared of a “normal nature” and did not appear dragged or drunk.

These facts support the trial court’s conclusion that defendant knowingly waived his rights prior to speaking with Sgt. Thurman and giving an unrecorded statement. Additionally, by his own statement, Sims admits he understood his rights at the time he initially waived them. He admitted he did not request an |sattorney at that time and that he gave an unrecorded statement to Sgt. Thurman. There is nothing in the record that indicates defendant did not understand his rights when he initially waived them or that he was coerced into giving an unrecorded statement. This assignment is without merit.

In his second assignment of error, Sims asserts his 110-year enhanced sentence and three 99-year concurrent sentences are excessive. He contends the trial court failed to consider mitigating factors such as the fact no one was injured, no shots were fired, defendant was not the “leader” of the crime, and defendant’s history of mental disorders. Sims further argues he had only a “slight” criminal history for a 46-year-old man which does not justify an effective life sentence.

Because of an error patent that requires the three 99-year sentences to be vacated, we will only address the excessiveness of defendant’s enhanced 110-year sentence.

Both the United States and the Louisiana Constitution prohibit the imposition of excessive or cruel punishment. 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 sentences 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 | ssentence. 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.

Sims was convicted of four counts of armed robbery. As a second felony offender, defendant faced an enhanced sentencing range on count one between 49 years and 198 years. Sims received 110 years which is in the mid-range.

Higher sentences for a second felony offender where the predicate offense is armed robbery have been upheld. Armed robbery is a serious offense against the person. In this case we note that Sims, age 46, and his accomplice placed the bank employees as well as the bank customers in fear of their lives. The employees and customers were made to lie on the floor at gunpoint. Two of the victims had a gun held to their head and at least one of the victims was expressly threatened with her life. Sims had two prior convictions including one for aggravated battery, another violent offense against the person. Based on these facts, we find that the trial court did not abuse its discretion in sentencing defendant to the mid-range of 110 years as a second felony offender. This assignment is without merit.

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, and State v. Weiland, The review reveals two errors patent in this case.

l1flThe trial court sentenced defendant immediately after denying his motion for new trial and motion for post verdict judgment of acquittal. LSA-C.Cr.P. art. 873 requires a 24-hour delay in sentencing after denial of a motion for new trial or in arrest of judgment, unless the defendant waives the delay. The record shows that defendant did not waive this delay. As a general rule, when a defendant challenges a non-mandatory sentence, and the delay is not waived, the defendant’s sentence must be vacated and the matter remanded for resentencing. However, when the original sentence is set aside at a multiple offender proceeding, the failure to observe the 24-hour delay is harmless.

Sims’ original sentence on count one was vacated at the multiple offender proceeding. Thus, as to count one, the failure to observe the 24-hour delay was harmless. However, because defendant challenges his remaining three non-mandatory 99-year sentences as excessive, his sentences on counts two, three and four are hereby vacated and we remand the matter for resentencing.

We also note that Sims’ motion for appeal was premature when it was filed after conviction and sentence but before sentencing as a multiple offender. However, this procedural defect was cured by the subsequent re-sentencing of defendant as a multiple offender.

Accordingly, based on the foregoing, the defendant’s conviction is affirmed, and we remand for resentencing.

AFFIRMED; REMANDED.

      . See also, State v. Stripling, 354 So.2d 1297, 1301 (La.1978).

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

      . LSA-R.S. 15:451; State v. Comeaux, 93-2729 (La.7/1/97), 699 So.2d 16, 29, cert. denied. 522 U.S. 1150, 118 S.Ct. 1169 140 L.Ed.2d 179 (1998); State v. Quest, 00-205 (La.App. 5 Cir. 10/18/00), 772 So.2d 111, 780, writ denied, 00-3137 (La.11/2/01), 800 So.2d 866;

      . State v. Quest, supra at 780.

      . Id.

        . State v. Fisher, 97-1133 (La.9/9/98), 720 So.2d 1179, 1182.

      . U.S. Const, amend. VIII; La. Const, of 1974, Art. I, § 20.

      . 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.

      . 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.

      . LSA-R.S. 15:529.1.

      . In State v. Jackson, 96-661 (La.App. 5 Cir. 4/9/97), 694 So.2d 440, 451, writs denied, 97-1050 (La.10/13/97), 703 So.2d 609, and 97-1255 (La.10/13/97), 703 So.2d 612, this Court upheld defendant’s 198-year enhanced sentence on an armed robbery conviction as a second felony offender.

      . 312 So.2d 337 (La.1975).

      . 556 So.2d 175 (La.App. 5 Cir.1990).

      . State v. Parker, 01-0958 (La.App. 5 Cir. 2/13/02), 812 So.2d 86, 91.

      . See, State v. Brown, 01-41 (La.App. 5 Cir. 5/30/01), 788 So.2d 694, 705.

      . See, State v. Odoms, 01-1033 (La.App. 5 Cir. 3/26/02), 815 So.2d 224, 226, fn. 1, writ denied, 02-1185 (La.11/22/02), 829 So.2d 1037.


author: I «SOL GOTHARD, Judge.

text:
    STATE of Louisiana v. Justin ISIDORE.
    No. 02-KA-1121.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 29, 2003.

      Paul D. Connick, Jr., District Attorney, Thomas J. Butler, Terry M. Boudreaux, Frank Brindisi, Assistant District Attorneys, Parish of Jefferson, State of Louisiana, Gretna, LA, for Plaintiff/Appellee.
    Jane L. Beebe, Louisiana Appellate Project, Gretna, LA, for Defendant/Appellant.
    Panel composed of Judges SOL GOTHARD, JAMES L. CANNELLA and SUSAN M. CHEHARDY.
   I «SOL GOTHARD, Judge.

The defendant, Justin Isidore, pled guilty to two counts of third offense operating a vehicle while intoxicated (DWI), violations of La. R.S. 14:98(D). Pursuant to State v. Crosby, 338 So.2d 584 (La.1976), he reserved his right to appeal the judge’s denial of his motion to quash. He was sentenced to one year at hard labor on each count, with 222 days of each of the sentences to be suspended and was placed on active probation for one year. On each sentence, the trial judge ordered defendant to pay a fíne of $2,000.00, court costs, and $100.00 commissioner’s fee. Further, the trial judge ordered the sentences to be served concurrently with each other and with sentences on misdemeanor offenses that were also imposed that day, but are not at issue in this appeal. Defendant now appeals from his felony convictions.

In his first allegation of error, the defendant alleges that the trial court erred in denying his motion to quash because the predicate guilty pleas are constitutionally infirm. Specifically, defendant contends that the 1994 predicate is invalid because he was told when pleading guilty in 1994, that the conviction | .¡would be cleansed after five years. Defendant contends that the 1999 predicate is invalid because he was not advised of his right to compulsory process.

The Louisiana Supreme Court established the procedure for the defendant to challenge a predicate guilty plea in State v. Carlos, 98-1366 (La.7/7/99), 738 So.2d 556, 559. Pursuant to Carlos, when a defendant challenges the constitutional validity of a predicate DWI conviction resulting from a guilty plea, the State bears the initial burden of proving the existence of the guilty plea and that an attorney represented the defendant during the plea. State v. Carlos, 738 So.2d at 559. If the State meets this burden, the defendant must produce affirmative evidence indicating an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant is able to meet his burden, the State must prove the constitutionality of the plea. State v. Carlos; Accord, State v. Rodrigue, 01-377 (La.App. 5 Cir. 8/28/01), 795 So.2d 488, 492.

In this case, there was no evidence introduced at the hearing on the motion to quash. However, defendant attached the waiver of rights and bill of information of the 1994 guilty plea to his motion to quash. The waiver of rights form contains signature lines for the defendant, the defendant’s attorney, and the trial judge. All three lines contain signatures. The waiver of rights form shows the existence of a guilty plea and indicates that defendant was represented by counsel when he entered the guilty plea. Furthermore, defendant does not contest the existence of the plea, nor does he assert he was unrepresented at the time.

The State’s initial burden under Carlos was satisfied. It then became incumbent upon the defendant to produce affirmative evidence indicating an infringement of his rights or a procedural irregularity in the taking of the plea. Defendant claims the 1994 guilty plea was invalid because the waiver of rights |4form indicates that he was told that the “conviction would be cleansed within five years.” As pointed out by the State’s brief, however, the waiver of rights form does not so inform defendant. Rather, the form provides the penalty ranges from first offense through fourth offense DWI. Further, the form indicates that the court would not consider any DWI conviction that had occurred more than five years before the offense to which defendant pled guilty in 1994. Finally, the form does not indicate that defendant was told the 1994 conviction would-be “cleansed” within five years.

Defendant also asserts that the applicable cleansing period in effect when defendant pled guilty in 1994 had lapsed by the time defendant committed the next offense. Again, the defendant’s position is not well founded. As of the date of defendant’s guilty plea on July 27, 1994, the cleansing period was ten, not five years. La. R.S. 14:98(F)(2) was amended by 1993 La. Acts No. 669, § 1 to increase the cleansing period from five to ten years. In State v. Rolen, 95-0347 (La.9/15/95), 662 So.2d 446 (per curiam), the court held that applying the amended cleansing period to DWI offenses committed after the amendment did not violate the Ex Post Facto clauses of the United States and Louisiana Constitutions.

The defendant failed to meet his burden of showing that there was an infringement of his rights or a procedural irregularity in the taking of the 1994 guilty plea.

Defendant contends that the second predicate plea, entered on October 28, 1999, was constitutionally invalid because he was not advised of his right to compulsory process. As stated above, pursuant to Carlos, the State’s initial burden is to show the existence of a guilty plea and that defendant was represented at the time. No evidence relating to the 1999 guilty plea was introduced at the motion to quash hearing. However, the defendant attached the waiver of rights form from the 1999 guilty plea to his motion to quash. As with the 1994 guilty plea, the waiver Lof rights form from the 1999 guilty plea contains signature lines for the defendant, the defendant’s attorney, and the trial judge. All three lines contain signatures. The waiver of rights form shows the existence of a guilty plea and indicates that defendant was represented by counsel when he entered the guilty plea. Again, defendant does not contest the existence of the plea, nor does he assert he was unrepresented at the time. Rather, defendant challenges this plea on the basis that he was not advised of the right to compulsory process.

However, the right to compulsory process is not a right of which a defendant must be advised before pleading guilty. In Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the Supreme Court explained that three federal constitutional rights are waived by a guilty plea: the privilege against self-incrimination, the right to trial by jury, and the right to confront one’s accusers. A waiver of these rights cannot be presumed by a silent record. Boykin, 395 U.S. at 243, 89 S.Ct. at 1712. The Boykin court did not mention, however, the right to compulsory process as one of the rights waived by a guilty plea.

In State v. Crayton, 34,990 (La.App. 2 Cir. 9/26/01), 796 So.2d 87, 91, the court found that the defendant’s predicate guilty plea was valid even though the defendant was not advised of the right to compulsory process. -The court reasoned that “Boykin ... [does not] ... include the right to compulsory process.” Id. See also, State v. Jones, 31-613 (La.App. 2 Cir. 04/01/99), 733 So.2d 127, 144-145, writ denied, 99-1185 (La.10/01/99), 748 So.2d 434; State v. Salter, 515 So.2d 609 (La.App. 1 Cir.1987).

Advising a defendant of the right to compulsory process is not a constitutional component of a guilty plea. Since defendant failed to produce any affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea, he failed to meet his burden as provided in State v. Carlos, supra. We find that the trial judge properly denied defendant’s motion to quash.

We have reviewed the record for errors patent, according to La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990), and find that the defendant’s sentence is illegally excessive. The trial judge ordered 222 days of the one-year sentence to be suspended, leaving 138 days that were not suspended. (360 days - 222 days = 138 days). The trial judge was only authorized to order the defendant to serve thirty (30) days of imprisonment.

La. R.S. 14:98(D) was amended by 2001 La. Acts 1163, § 2, effective August 15, 2001. Although the sentencing range is the same, the amendment altered the manner in which the sentence is to be served. The mandatory term of imprisonment has been reduced from six months imprisonment without benefit of probation, parole or suspension of sentence to thirty days without benefits. La. R.S. 14:98(D)(l)(a). The statute also provides that “[t]he remainder of the sentence of imprisonment shall be suspended and the offender shall be required to undergo an evaluation to determine the nature and extent of the offender’s substance abuse disorder.” Id. (Emphasis added). This evaluation includes a term of treatment at an inpatient facility for not less than four weeks and not more than six weeks, after which the defendant shall serve the remaining portion of the sentence in home incarceration. La. R.S. 14:98(D)(l)(b) & (d) and La. R.S. 14:98(D)(3)(a)-(c).

Section G of the newly amended statute provides the following statement of legislative purpose:

G. The legislature hereby finds and declares that conviction of a third or subsequent DWI offense is presumptive evidence of the existence of a substance abuse disorder in the offender posing a serious threat to the health and safety of the public. Further, the legislature finds that there are successful treatment methods available |7for treatment of addictive disorders. Court-approved substance abuse programs provided for in Subsections B, C, and D of this Section shall include a screening procedure to determine the portions of the program which may be applicable and appropriate for individual offenders and shall assess the offender’s degree of alcohol abuse.

In the present case, defendant committed both the offenses after the amendment’s effective date, with the first offense in September 2001 and the other in February 2002. Thus, defendant clearly fell within the ambit of the amended penalty provisions. Nevertheless, the trial judge suspended only 222 days of defendant’s one-year sentence when he should have suspended all but the mandatory thirty days without benefits. Further, the trial judge failed to impose the sentence with the treatment provisions now available to third and fourth DWI offenders convicted after August 15, 2001.

Accordingly, we vacate defendant’s sentences and remand this matter for resen-tencing in accordance with the amendment to La. R.S. 14:98(D). State v. Joseph, 36,766 (La.App. 2 Cir. 1/29/03), 836 So.2d 1206; State v. Eppinette, 36,825 (La.App. 2 Cir. 2/11/03), 838 So.2d 189.

For the above-discussed reasons, the defendant’s convictions are affirmed. His sentences are vacated and the matter is remanded for resentencing.

CONVICTIONS AFFIRMED; SENTENCES VACATED.

      . State v. Carlos extended the burden-shifting principles applicable to multiple offenders, as established in State v. Shelton, 621 So.2d 769, 779-780 (La.1993), to the recidivist provisions of the DWI statute. See, State v. Naquin, 00-291, 00-296 (La.9/29/00), 769 So.2d 1170 (per curiam).


author: 1 .MARION F. EDWARDS, Judge.

text:
    Lynne COCHRAN, et al. v. SAFEGUARD SELF-STORAGE, INC. and Republic Western Insurance Company. Suzanne Gioiello, et al. v. Safeguard Self-Storage, Inc. and Republic Western Insurance Company. Floris Verda, Wife of/and Vincent Verda and John Marquez v. Safeguard Self-Storage, Inc. and Republic Western Insurance Company.
    Nos. 02-CA-1272, 02-CA-1273, 02-CA-1274.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 29, 2003.

      Phillip T. Hager, Metairie, LA, for Appellants.
    Lindsay A. Larson, III, George B. Jur-gens, III, T.A., New Orleans, LA, for Ap-pellees.
    Panel composed of Judges SOL GOTHARD, MARION F. EDWARDS and SUSAN M. CHEHARDY.
   1 .MARION F. EDWARDS, Judge.

Plaintiffs/Appellants appeal from the trial court’s judgment in favor of defendants, granting the defendants’ Motion for Summary Judgment. For the following reasons, we affirm.

Plaintiffs leased storage space from defendant, Safeguard Self-Storage, Inc., in building D of facility No. 11 at Safeguard’s Kenner location in Jefferson Parish. The respective leases for storage provided for the non-liability of Safeguard for property stored unless “due to the willful acts of gross negligence of (Safeguard Self-Storage), his agents, servants, or employees.” The lease further excluded all warranties by Safeguard, and specified that any insurance obligation was the occupant’s sole responsibility.

On July 8, 1997, the owner of Safeguard, Bruce Roch, noticed that the lights in Building D were not functioning properly. After investigating, he determined that the circuit breaker in the junction box had been tripped, and |3would not resume the “on” position. Accordingly, he made a service call to Marvin Electric Company, who sent an electrician, Marvin Stein, to detect the source of the problem. Stein observed that two wires behind an electrical outlet near the rear of the building had shorted out because of an overload in the outlet. Stein then repaired the affected portions of the wiring and placed a plate over the outlet to prevent further use. Stein did not observe any other electrical, difficulties, nor did he indicate to Roch that there was a problem with the building’s wiring.

On October 8, 1997, a fire in building D of the Safeguard facility destroyed plaintiffs’ property. An investigation by the Jefferson Parish Arson Investigative Unit concluded that the fire was accidental and had likely originated at an electrical junction box within the northwest section of the building. The investigator also concluded that there was no visible indication of an electrical fault within the junction box and wiring. The junction box was not part of the plaintiffs’ leased premises.

Lessees of Safeguard filed several suits in the Twenty-Fourth Judicial District Court for the Parish of Jefferson against Safeguard Self-Storage, Inc, and Republic Western Insurance Company, Safeguard’s insurer (“defendants”). On December 15, 1998, defendants filed an ex parte motion for consolidation of all property damage lawsuits, and the trial court granted defendants’ motion on that same day. Thereafter, plaintiffs filed a RMotion To Amend and Supplement their petition, in order to add several more defendants.

On May 81, 2000, Safeguard filed a Motion for Summary Judgment seeking dismissal of all plaintiffs’ claims. The trial court granted Safeguard’s motion on July 19, 2002, entering final judgment on August 1, 2002. Plaintiffs timely filed the present appeal.

LAW AND ANALYSIS

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. An appellate court must ask the same questions as does the trial court in determining whether summary judgment is appropriate: Whether there is a genuine issue of material fact remaining to be decided, and whether the appellant is entitled to judgment as a matter of law. The appellate court must consider whether the summary judgment is appropriate under the circumstances of the case. There must be a “genuine” or “triable” issue on which reasonable persons could disagree. Under the amended version of LSA-C.C.P. art. 966, the burden of proof remains on the mover to show “that there is no genuine issue as to material fact and that the |fimover is entitled to judgment as a matter of law.” A material fact is one that would matter on the trial of the merits.

Plaintiffs first argue that the trial court erred in failing to apply a strict liability standard in deciding the Motion for Summary Judgment. In their second assignment of error, plaintiffs assert that the trial court erred in finding that the defendants did not know or should have known of the defects in the wiring that caused the fire. Finally, plaintiffs argue that the trial court erred in finding that the defendants took reasonable steps to remedy any defects in the wiring within a reasonable period of time.

In 1996, the legislature adopted Civil Code article 2317.1, accompanied by an amendment to Civil Code article 2322, which created fundamental changes to the burden of proof in strict liability. A plaintiff alleging negligence under strict liability now has to prove the following elements: (1) that the defendant knew or should have known of the vice or defect; (2) that the damage could have been prevented by the exercise of reasonable care; and (3) that defendant failed to exercise such reasonable care. The addition of knowledge as an element has effectively eliminated strict liability in most circumstances.

La. C.C. art. 2317 states, in relevant part:

We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.

La. C.C. art. 2317.1 further states:

IfiThe owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

La. C.C. art 2322 provides:

The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice or defect in its original construction. However, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known of the vice or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

La. C.C. art. 2695 provides:

The lessor guarantees the lessee against all the vices and defects of the thing, which may prevent its being used even in case it should appear he knew nothing of the existence of such vices and defects, at the time the lease was made, and even if they have arisen since, provided they do not arise from the fault of the lessee; and if any loss should result to the lessee from the vices and defects, the lessor shall be bound to indemnify him for the same.

At trial on the Motion for Summary Judgment, the trial court indicated that it was granting defendant’s motion based upon LSA R.S. 9:3221, which reads:

The owner of premises leased under a contract whereby the lessee assumes responsibility for their condition is not liable for injury caused by any defect therein to the lessee or anyone on the premises who derives his right to be thereon from the lessee, unless the owner knew or should have known of the defect or had received notice thereof and . failed to remedy it within a reasonable time.

It is not disputed that the plaintiffs in this case, by signing the rental agreement contract with defendant, assumed sole risk for items stored at the facility, unless damage or loss occurred from the willful acts or gross negligence of the defendant. Plaintiffs argue, however, that LSA R.S. |79:3221 is not applicable to “damages incurred by the lessee resulting from a defect in the property which was not a part of the leased premises” over which the lessee had no supervision or control. Specifically, citing cases such as Dorion v. 1111 Building, plaintiffs assert that “common areas” .of a leased premises are under the control of a landlord and therefore are not under the purview of LSA R.S. 9:3221.

In Dorion, supra, the plaintiff sustained injuries resulting from a slip and fall accident in a building owned by Eleven Eleven Building and leased by Dorion Advertising and Public Relations Agency, Inc. The accident occurred at the entrance of the leased premises. The court found that the common area was the responsibility of the landlord, noting:

When the common accessory, such as a stairway, is under the control of a lessor, the lessee can maintain an action for damages flowing from the injury caused by the defect in the accessory, notwithstanding his contractual assumption of responsibility for defects in the leased premises. Ostrander v. Parkland Villa Apartments, 511 So.2d 1293 (La.App. 2 Cir.1987).
In effect, the courts of this state have consistently treated common areas the same way that they treat non-leased premises, i.e., the landlord is not entitled to claim the exculpatory benefits of La. R.S. 9:3221. There is no contrary authority. The rationale for this conclusion is that no single individual tenant normally assumes exclusive responsibility for the care and maintenance of common areas.

Plaintiffs analogize the Dorion case to the present facts to the extent that in the present case the fire originated in an area not leased by them.

We find the principles outlined in Dorion to be applicable, and agree with plaintiffs that the trial court erred in failing to apply a strict liability standard in this case, based upon our finding that the plaintiffs did not intend to assume liability over the areas of the building not covered by their lease. After a review of the record, however, we cannot say that the trial Iscourt erred in finding that the defendant did not know or should have known of the vice or defect that ultimately caused the fire, an essential element to hold a property owner strictly liable.

In this case, the trial court summarized the facts upon which it determined that Safeguard did not have notice of a potentially hazardous situation on its property:

The undisputed facts in this case are that in July, 1997 there was an electrical difficulty. Mr. Roth [sic] called Mr. Stein, a Certified Electrician to come remedy the problem. Mr. Stein took certain actions and reported to Mr. Roth [sic] that he had done the appropriate inspection; determined the cause of the problem, and resolved the cause of the problem. That was the notice Mr. Roth [sic] had, the fact of July, 1997. The undisputed evidence is that between July 1997 and October, 1997, at the time of this unfortunate fire, which may have well been caused by some major electrical difficulty, Mr. Roth [sic] had. — there were no further circuit breaks. There is no evidence that Mr. Roth [sic] — that anything else occurred on the premises to give Mr. Roth notice anew that there as an electrical difficulty ...
[I]n this case-in July Mr. Roth [sic] was put on notice. In response to that notice Mr. Roth [sic] took a specific action. That action was the calling of a Certified Electrician; which is the common sense action, which would be expected of any homeowner, commercial or otherwise. And Mr. Roth [sic] received information that the problem had been corrected. There was no other reasonable actions for Mr. Roth [sic] to take at that time ...
Further, I find that there are no material issues of fact. That on the fact, clear and unequivocally Mr. Roth [sic] did not know or should he have known of the defect. He had not received notice. And with regard to the previous notice he had received, he had within a reasonable period of time taken appropriate act (sic) to remedy the situation.

Plaintiffs take issue with the trial court’s findings in several respects: They assert that the electrical problem of July 3, 1997, in and of itself, was sufficient to place Roch on notice that there were potential electrical problems elsewhere in the wiring, especially when taking into account the explanation of the electrical problem to both Roch and his manager by Stein; the failure of Stein to inspect any other wiring in the building; the known |9factors that can cause an overload that results in fire, and; Roch’s failure to report the electrical fire which would have resulted in a mandatory inspection.

The electrician who serviced the Safeguard building in question, Thomas Stein, provided that following narrative in his deposition: In trying to determine the electrical problem, he found a tripped circuit at the electrical box. He tried to throw the switch and it tripped again. Stein then testified that the electrical problem was traced back to an outlet. He pulled wire out of the outlet and observed that it appeared that the wire had overheated. Stein then replaced the wire and made a new junction box, after which he placed a blank plate over the suspected outlet to prevent further use. Stein concluded that an overload of the outlet over time had caused the wire to overheat. Stein did not advise Roch or his manager that there was a problem with wiring in the building, and, in fact, concluded that after he made repair to outlet there was no problem with the wiring.

Based on this testimony, we find that the trial court’s conclusion that there was no further notice to Safeguard of a vice or defect is supported by the record.

We further find that the trial court did not err in concluding that defendants took reasonable steps to remedy the defects within the wiring within a reasonable time. In his deposition, Roch states that he contacted Marvin Electric on the same day he noticed the problem with the lights. He further relied upon the assertion by Stein that the problem had an overloaded circuit had been repaired. There was no further indication of an electrical problem between when the circuit was repaired and when the fire occurred.

Finally, plaintiffs argue that actions Roch could have taken as a means to possibly prevent the fire constitute genuine issues of material fact, L Argument of counsel and briefs, however, no matter how artful, are not sufficient to raise a genuine issue of material fact, and allegations without substance will not support a summary judgment. As previously stated, we find that the trial court did not err in its conclusion that there was no issue of material fact regarding whether Roch had no prior knowledge of a defect in the premises, and therefore the summary judgment was properly granted.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . Lynne Cochran and Philip Hagar filed suit on October 2, 1998; Suzanne and Philip Gioiello filed suit on October 5, 1998; Floris and Vincent Verda, and John Marquez filed suit on October 8, 1998. Dennis Bass had also filed suit, but did not appeal the final judgment in favor of appellees. All claimed property damage as a result of the fire.

      . The additional defendants were: Safeguard Self-Storage Management Services, Inc., Safeguard No. 11 partners, L.L.C. and/or Safeguard 11, L.L.C., Dorothy Virginia Harrison, wife op and Bruce C. Roch and/or Bruce C. Roch, Sr. and Bruce C. Roch, Jr. and Marvin Dushan d/b/a Marvin Electric Company (“Marvin Electric”).

      . Bua v. Dressel, 96-79 (La.App. 5th Cir.5/28/96), 675 So.2d 1191; writ denied, 96-1598 (La.9/27/96), 679 So.2d 1348; citing Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180.

      . Tassin v. City of Westwego, 95-307 (La.App. 5th Cir.12/13/95), 665 So.2d 1272.

      . Rowley v. Loupe, 96-918 (La.App. 5th Cir.4/9/97), 694 So.2d 1006.

      . Id. at 1008.

      . J.W. Rombach, Inc. v. Parish of Jefferson, 95-829 (La.App. 5th Cir.2/14/96), 670 So.2d 1305.

      . Greenhouse v. C.F. Kenner Associates Ltd. Partnership, 98-0496 (La.App. 4 Cir. 11/10/98) 723 So.2d 1004.

      . Id.

      . Id.

      . 1998-3018 (La.App. 4 Cir. 5/12/99), 737 So.2d 878.

      . Id. at 881.

      . Attardo v. Brocato, 96-1170 (La.App. 4 Cir. 2/5/97), 688 So.2d 1296, writ denied. 97-0584 (La.4/18/97), 692 So.2d 453.

      . Davenport v. Amax Nickel, Inc., 569 So.2d 23, 27 (La.App. 4th Cir.1990), writ denied, 572 So.2d 68 (La.1991).


text:
    Norman P. STUMPF & Alice C. Stumpf v. HIBERNIA NATIONAL BANK and Stephen F. Damore and XYZ Insurance Company.
    No. 02-CA-1254.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 29, 2003.

      Corinne Ann Morrison, James C. Young, Heather M. Valliant, Chaffe, McCall, Phillips, Toler & Sarpy, L.L.P., New Orleans, LA, for Defendant/Appellant, Hibernia National Bank.
    Harry C. Stumpf, Gretna, LA, for Plaintiffs/Appellees, Stumpf.
    Panel composed of Judges SOL GOTHARD, MARION F. EDWARDS and CLARENCE E. McMANUS.
   I «SOL GOTHARD, Judge.

Defendant, Hibernia National Bank, appeals from the granting of summary judgment in favor of plaintiffs, Norman P. Stumpf and Alice C. Stumpf. For the reasons that follow, we affirm the judgment of the trial court.

Stumpf Drugs, Inc. (hereinafter SDI) operated a drug store. In 1996, SDI obtained a commercial loan from defendant Hibernia. To secure the note, SDI pledged its funds on deposit with Hibernia, and a security interest in its inventory and equipment. In addition, plaintiffs personally pledged a CD on deposit at Hibernia and shares of Hibernia stock.

On June 1, 1998, SDI filed for relief under Chapter 11 of the Bankruptcy Code. Pursuant to the bankruptcy code, a debtor in possession (DIP) account was opened with Hibernia and $161,219.24 from the sale of merchandise and inventory was deposited. On August 7, 1998, Hibernia declared SDI to be in default of its loan and demanded payment in full. At that time, in addition to the DIP account, Hibernia was also holding four accounts: # 9692 (savings) for $17,441.59; # 6788 (operating) for $19,924.76; #2275 (credit card) for $1,589.93; and, # 6810 (lottery) for $2,273.36.

I ¡¡On August 12, 1998, the bankruptcy court rendered an order which lifted the automatic stay of 11 U.S.C. § 362, “so as to permit Hibernia National Bank to enforce its security rights including, but not limited to, the following described property: All inventory, All equipment.” No bank accounts were listed in the order lifting the stay.

On August 24, 1998, the Bankruptcy Court signed an order converting the case from Chapter 11 (reorganization) to Chapter 7 (liquidation) of the Bankruptcy Code. Hibernia thereafter, released accounts # 6788 ($19,924.76) and 6810 ($2,278.36) to the trustee.

On September 23, 1998, Hibernia released the DIP account ($161, 219.24) to the trustee. This action was done at the request of the trustee; however, there was no formal motion and no order was signed by the bankruptcy court.

Thereafter, on October 7, 1998, Hibernia filed a motion to lift the automatic stay and for turnover of funds, naming account numbers 9692, 6788, and 6810. In a supplemental memorandum in support of its motion, Hibernia referred to the DIP account, but did not name that account by number. On December 22, 1998, the bankruptcy court granted the motion in part and allowed turnover of account number 9692 ($17,441.59). - The bankruptcy judgment denied the motion with regard to account numbers 6788 and 6810. The bankruptcy judge found that by the turnover of those funds to the trustee, Hibernia no longer had a security interest, and it became an unsecured creditor.

Hibernia filed a second motion for turnover on September 24, 2000, seeking release of the funds from the DIP account. On June 20, 2000, the bankruptcy court denied this motion. In its reasons for judgment, the bankruptcy court found that this second motion was subject to res judi-cata.

| thereafter, on July 23, 2001, Hibernia seized the funds from the CD pledged by plaintiffs personally. Plaintiffs filed this suit to recover the value of the CD and the stocks pledged, which remain in Hibernia’s possession.

Plaintiffs filed a motion for summary judgment for the return of funds and stock. The trial court granted the motion, and ordered Hibernia to pay to plaintiffs the sum of $41,674.77 with legal interest from July 2, 2001, and to release the shares of stock. In oral reasons, the court stated that “the bank had the opportunity and the right to off set the debt against the principle debtor rather than rely upon the security by a third party.”

The facts are not in dispute in this lawsuit. The plaintiffs contend that, by releasing the funds in the DIP account to the trustee, Hibernia took possession of the collateral and therefore the release constituted full payment of the debt. Thus, once the debt had been satisfied, Hibernia had no recourse against them as surety for the debt.

Set-off and compensation are affirmative defenses that take place by operation of law when two persons owe to each other sums of money which are liquidated and presently due. In such a case, compensation extinguishes both obligations to the extent of the lesser amount. La. C.C. art. 1893; Bonomolo Limousines, Inc. v. Scheuermann, 99-832 (La.App. 5 Cir. 12/15/99), 747 So.2d 207.

Pursuant to 11 USC § 553, any right to set-off to which a creditor may be entitled is preserved when a debtor petitions for bankruptcy. In this case, the bank had a right of set-off against SDI’s accounts in its possession. Although the automatic stay provision of 11 USC § 362 prevented defendant from immediately utilizing SDI accounts to offset its debt, defendant could have obtained relief from the stay by petition to the court. Citizens Bank of Maryland v. Strumpf 516 U.S. 16, 116 S.Ct. 286, 138 L.Ed.2d 258 (1995). SDI had more than adequate funds to |Ksatisfy the debt owed. Defendant was not required to turn over the funds on deposit because of a mere request on the part of the bankruptcy trustee, and should have petitioned for offset as provided by the Bankruptcy Code.

Hibernia attempts to distinguish Citizens Bank of Maryland v. Strwmpf, supra, by stating that the debt at issue was not in default at the time SDI filed for bankruptcy, whereas the debtor in the Strwmpf case was in default at the time of the filing of the bankruptcy petition. However, the right to set-off may be asserted in bankruptcy even though one of the debts involved is absolutely owing but not presented due when the petition is filed. Hart v. Hart, 50 B.R. 956 (Bankr.Nev.1985), citing 4 Collier on Bankruptcy para. 558.10[2],

La. C.C. art.3062 provides that:

The modification or amendment of the principal obligation, or the impairment of real security held for it, by the creditor, in any material manner and without the consent of the surety, has the following effects.
An ordinary suretyship is extinguished.
A commercial suretyship is extinguished to the extent the surety is prejudiced by the action of the creditor, unless the principal obligation is one other than for the payment of money,

Defendant’s actions in releasing the monies without exercising its right of set-off was an impairment of that security and operated to extinguish the obligations of the surety, plaintiffs herein. Because the surety’s obligation had been extinguished, defendant was in error in seizing the surety’s assets for the satisfaction of this debt.

For the above-discussed reasons, the decision of the trial court granting summary judgment is affirmed. Costs are assessed against appellant.

AFFIRMED.


author: LMARION F. EDWARDS, Judge.

text:
    SUCCESSION OF Louis Anthony GALLO, Sr., M.D.
    No. 02-CA-1240.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 29, 2003.

      Robert F. Shearman, Kevin D. Shear-man, Metairie, LA, for Appellants.
    R. Scott Buhrer, Metairie, LA, for Ap-pellee.
    Panel composed of Judges SOL GOTHARD, MARION F. EDWARDS and CLARENCE E. McMANUS.
   LMARION F. EDWARDS, Judge.

Appellants appeal the trial court’s ruling that language in a statutory will was ambiguous, thereby requiring parole evidence to determine the testator’s intent. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On March 25, 1998, Louis Anthony Gallo, M.D. (“Dr.Gallo”), executed a Last Will and Testament that was prepared and notarized by his attorney, Joseph Bertrand. Dr. Gallo’s will provided that his current wife, Mary Lydia Fabacher Gallo (“Mrs.Gallo”), be appointed as Executrix of his estate. The will further made a number of specific bequests to Mrs. Gallo as well. Appellants, Cynthia Gallo Hull and Louis Anthony Gallo, Jr., were Dr. Gallo’s children from a previous marriage. The will specifically stated that they should only inherit under the forced heirship provisions of Louisiana law. At the time that Dr. Gallo’s will was drafted, both Hull and Gallo, Jr. had attained the age of majority.

| ¡After the death of Dr. Gallo on August 16, 2001, Mrs. Gallo filed a Petition To Present Notarial Will And For Appointment Of Executrix in the Twenty-Fourth Judicial District Court for the Parish of Jefferson, where Dr. Gallo was domiciled, on October 12, 2001. Cynthia Gallo Hull (“Hull”), filed an Opposition to Probate of Testament on October 19, 2001, alleging that the will was invalid for failure to comply “with the necessary formalities of a Statutory Will,” and that there were several inconsistencies that further compromised the integrity of the will. Hull later filed a Motion To Dismiss her opposition, which was granted by the court on February 22, 2002. On February 19, 2002, Hull filed a Petition For Possession, and later filed a Motion To Traverse Detailed Descriptive List filed by Mrs. Gallo on April 26, 2002.

On June 26, 2002, Mrs. Gallo, as Executrix, filed a Petition For Declaratory Judgment in which she alleged that Dr. Gallo’s will contained a typographical error that rendered the testament ambiguous. Specifically, Mrs. Gallo argued that a section of the will pertaining to “General Bequests” that read, “all residential property, both separate and community, movable or immovable shall go to my beloved wife, Mary Lydia Fabacher Gallo” (Emphasis added), was a typographical error that should have been “all residual property ...” (Emphasis added). Mrs. Gallo asserted that the sentence in question, if not determined to address the residual portion of Dr. Gallo’s estate, would require the residual portion of the estate to fall into intestacy, since no other language in the will provided for a disposition of the residual portion of Dr. Gallo’s estate.

On September 11, 2002, the trial court heard Mrs. Gallo’s Petition For Declaratory Judgment, and determined that certain language in the testament was ambiguous. The court heard parole evidence from Joseph Bertrand, the ^attorney who drafted the will, then granted Mrs. Gallo’s Petition for Declaratory Judgment, specifically finding “that the terms (sic) ‘residential’ as used in the last sentence of paragraph 3.2 of the Last Will and Testament of the decedent dated March 25,1998 was a typographical error and was intended to be the word ‘residual.’ ” The court further found Mrs. Gallo to be the sole residuary legatee of the estate of Dr. Gallo.

Appellants timely filed the present appeal.

LAW AND ANALYSIS

In their sole assignment of error, Appellants assert that the trial court erred when it held that Dr. Gallo’s testament was ambiguous and therefore required parole evidence to ascertain Dr. Gallo’s intent.

The Supreme Court in Succession of Williams, reviewed the law on will interpretation as follows:

The intent of the testator is the paramount consideration in determining the provisions of a will. La. Civ.Code art. 1712 [present La. Civ.Code art. 1611]. When a will is free from ambiguity, the will must be carried out according to its written terms, without reference to information outside the will. Id. However, when a provision in a will is subject to more than one equally reasonable interpretation, then the court may consider all circumstances existing at the time of the execution of the will (and not just the language of the will) which may aid in determining the intent of the testator. La. Civ.Code art. 1715 [present article 1611]. [Italics added].

The provision in Dr. Gallo’s will at issue is found in Section Three, paragraph 8.2, and reads, “All residential property, both separate and community, movable or immovable shall go to my beloved wife Mary Lydia Fabacher Gallo.” (Emphasis added).

Appellants argue that the term “movable residential property” refers to things such as “mobile homes,” and RV’s. It is noted, however, that the | ¿record is devoid of any indication that the estate contained such items, either at the time the will was drafted, or at the time of Dr. Gallo’s death. In addition, our own review of Louisiana jurisprudence has not produced a single reference to the term “movable residential property.”

While acknowledging the possibility that the will could convey separate and community immovable property, Mrs. Gallo contends that “residential movable property” is a term that is ambiguous at best, and disputes Appellants’ explanation of the term as written. Mrs. Gallo further contends that even if the term “movable residential property” were interpreted to mean “movables located at the residence,” then a question would still exist as to the extent of the items included in the definition, thereby rendering the bequest ambiguous and requiring parole evidence to determine Dr. Gallo’s intent.

When a provision in a will is not clear, a court must take into account entire context of the will. In this case, Mrs. Gallo argues that several portions of the will express Dr. Gallo’s intent that his children not inherit any portion of his estate. Mrs. Gallo asserts that the first example of this intent can be seen in paragraph 2.5 of the will in which Dr. Gallo indicates that should Mrs. Gallo predecease him, it is his intention to leave his portion of the community to her children, and not to the Appellants. Mrs. Gallo also references Section Three of the Will, in which Dr. Gallo indicates his intent to give only the forced portion of his estate to Cynthia Gallo Hull and Louis Anthony Gallo, Jr., as provided under the definition of incapacity in Section 3.1 of the will. Mrs. Gallo concludes that to put Appellants into possession of the residual portion of Dr. Gallo’s estate is a | ficlear contradiction to the wishes expressed by Dr. Gallo in the remainder of his will.

Conversely, Cynthia Gallo Hull and Louis Anthony Gallo, Jr. argue that certain statements in the will could be interpreted to mean that Dr. Gallo intended for them to inherit part of his estate. They refer to paragraph 5.2 of the testament that states, “Any gifts that I have made to any of my two children named in paragraph 1.1 during my lifetime, will be considered as an extra portion and not subject to collation.” Appellants conclude that Dr. Gallo must have intended for some portion of his estate to go them if he considered the gifts to be “an extra portion.” We disagree.

At the hearing, the trial court stated:

The court, after hearing the testimony, finds that ... the law intends for the will of the testator, whenever possible, to be followed. Other than one word, I think there would be no problem with this will. The one word is ... “residential.” Having listened to and having looked at the inconsistencies throughout the will, if you say inconsistencies about someone from the actual words taking someone’s intent, and then seeing what this word “residential” would do to that intent, it does not make sense to this court ...
The testimony of the person who put the will together from a legal point of view is that this was the wrong word, it was a mistake, it’s a typographical error, but, unfortunately, it’s the type of typographical error that makes another word. If it would make a nonsense word, it would be obvious to all apparent. But since it does not make a nonsense word, it makes another word that could have, possibly have, other meanings, the only other meaning would be that then it would have to throw a portion of his estate into an intestate estate. So it would mean that the residual of his estate would be intestate, not testate.
And it’s obvious that Dr. Gallo wanted to have a will, wanted to be testate. So I find that it is a typographical error, and I will declare the declaratory judgment in favor of Mrs. Mary Lydia Fa-bacher Gallo, and that she’s the residual legatee of the will.

The trial court’s interpretation of the disputed language in the will in light of the other provisions in the will, and its finding that Dr. Gallo did not intend for any portion of his estate to fall into intestacy, is in accord with Leases such as Succession of Fertel, in which the Louisiana Supreme Court noted:

If obscured by conflicting expressions, it seeks the intention in a purpose, consistent and rational, rather than the reverse; and, of two interpretations, it selects that which saves from total intestacy. The testator’s intention is his will. This is the first rule of interpretation, to which all others are reduced. The intention must be enforced as far as it can be done legally. Succession of Blacke- more[Blakemore], 43 La.Ann. 845, 9 So. 496.

In the present case, a finding that the term was not ambiguous would not result in the total intestacy of Dr. Gallo’s estate, however, it would, in our opinion, defeat an apparent intention by Dr. Gallo that Appellants only receive the forced potion of his estate.

As previously stated, our own review of Louisiana jurisprudence has not produced a single reference to the term “movable residential property.” Additionally it does not appear that Dr. Gallo’s estate contained the type of property that would fit Cynthia Gallo Hull and Louis Anthony Gallo Jr.’s own definition of “movable residential property.” Accordingly, after our review of the will, we agree with the trial court’s ruling that the term is ambiguous as written, and required parole evidence to determine Dr Gallo’s intent.

Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

      . The portion of the hearing in which Joseph Bertrand testified was not transcribed for the record.

      . 608 So.2d 973, 975 (La.1992).

      . Estate of Doucet, 94-61, 94-62 (La.App. 3 Cir. 10/5/94), 643 So.2d 882, 884.

      . 208 La. 614, 23 So.2d 234, (1945).