author: 3THOMAS F. DALEY, Judge.

text:
    INVESTORS BANK & TRUST COMPANY v. SEA PACK INTERNATIONAL, INC., et al.
    No. 02-CA-999.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 25, 2003.

      James E. Shields, Gretna, LA, for Ap-pellanVDefendant, James E. Shields, Sr.
    Robert F. Fadaol, Gretna, LA, for Ap-pellee/Plaintiff, Investors Bank & Trust Company.
    Daniel A. Ranson, Windhorst, Gaudry, Ranson, Higgins & Gremillion, L.L.C., Gretna, LA, for Appellee/Defen-dant/Third-Party Defendant, Joseph Cal-darera.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY, and SUSAN M. CHEHARDY.
   3THOMAS F. DALEY, Judge.

Appellant/third party plaintiff, James E. Shields, Sr. (Shields), filed an incidental action seeking indemnity and/or contribution from Joseph Caldarera (Caldarera), a co-defendant in the original action, following Shields’s payment of $30,000.00 to plaintiffs. In the original action, filed in 1989, original plaintiff, Investors Bank & Trust, sued Shields and Caldarera on an obligation for a promissory note guaranteed by Shields and Caldarera, among others. On the promissory note’s indebtedness, judgment was rendered against Shields on January 25, 1993, and against Caldarera on June 30, 1997. The 1997 judgment declared that Caldarera and Shields were liable in solido. Caldarera moved for a new trial, which was granted. At this point, the matter has not been retried as to Caldarera, because Caldarera moved to bifurcate the trial of the main demand (his liability on |4the promissory note) and Shields’s incidental demand, arguing that trial of Shields’s demand would be shorter in duration and might be dis-positive of the main demand. The trial court granted the Motion to Bifurcate and trial proceeded on September 5, 2001, only on Shields’s third party demand, which alleged that he had paid the entire indebtedness on the promissory note and was therefore entitled to contribution from Cal-darera, his co-guarantor. The trial court found that Shields’s payment of the $30,000.00 was for his virile share only and that the entire indebtedness had not been satisfied. The trial court found that the plaintiff had reserved its right against any other obligors on the note (which could possibly be Caldarera), and dismissed Shields’s third party demand against Cal-darera. This appeal follows.

After thorough consideration of the record before us, we amend the revised judgment. We find that the evidence shows that Shields’s payment of $30,000.00 satisfied the 1993 judgment against him, but did not pay off the full indebtedness due on the promissory note. Shields failed to bear his burden of proof that he had a verbal agreement with the bank that his tender satisfied the entire indebtedness on the note. Because the record does not establish the full amount of the indebtedness, the trial court erred, however, in concluding that Shields’s payment satisfied only his virile share of the indebtedness. Only when the total amount of the indebtedness is established, and how many people are obligors, can the trial court determine whether the $30,000.00 was in payment of only Shields’s virile share, or if he is entitled to some contribution from his co-obligors.

Analysis

The factual findings by the trial judge are subject to the manifest error or clearly wrong standard of appellate review. In applying this standard of review, we must determine not whether the trier of fact was right or wrong, but whether the | ^conclusion was a reasonable one. When there are two permissible views of the evidence, a fact finder’s choice between them can never be manifestly erroneous or clearly wrong. Kaiser v. Western-Southern Ins. Co., 01-1393 (La.App. 5 Cir. 5/15/02), 821 So.2d 52.

Shields makes seven Assignments of Error, the first four of which essentially go to the issue of whether the evidence showed he had a verbal agreement with the bank regarding whether the debt was paid in full or not by his $30,000.00 tender. First, Shields argues that the evidence shows that he, in September of 2000, entered into an agreement with appellee bank to pay $30,000.00 to satisfy the entire indebtedness and to seek contribution against third party defendants; second, Shields argues that his filing of the second amended third party action indicated intent and the meeting of the minds [with appellee]; third, that the bank did not prepare a satisfaction of judgment in conformity with the verbal agreement and the meeting of the minds; and fourth, that the appellee bank did not give Shields a release and satisfaction of judgment on October 28, 2000. Shields also argues that Exhibits 9a and 9b should be stricken from the record because they were produced for the first time at trial and are post facto; that he is not bound by a receipt and release that he did not sign, and that the judgment of September 21, 2001 is contrary to the law and evidence.

LSA-C.C. art. 1804 governs contribution among solidary obligors. It states:

Art. 1804. Liability of solidary obligors between themselves
Among solidary obligors, each is liable for his virile portion. If the obligation arises from a contract or quasi-contract, virile portions are equal in the absence of agreement or judgment to the contrary. If the obligation arises from an offense or quasi-offense, a virile portion is proportionate to the fault of each obli-gor.
A solidary obligor who has rendered the whole performance, though subro-gated to the right of the obligee, may claim from the other obligors no more than the virile portion of each.
|fiIf the circumstances giving rise to the solidary obligation concern only one of the obligors, that obligor is liable for the whole to the other obligors who are then considered only as his sureties.

LSA-C.C. art. 3057 states:

Art. 3057. Limitation upon right of contribution
A surety who pays the creditor more than his share may recover the excess from his co-sureties in proportion to the amount of the obligation each is to bear as to him. If a surety obtains the conventional discharge of other co-sureties by paying the creditor, any reduction in the amount owed by those released benefits them proportionately.

Shields failed to show, by a preponderance of the evidence, that Shields and the bank had a verbal agreement that his tender satisfied the indebtedness in full He alleged at trial that he entered into an oral agreement with Mr. Fadaol, the plaintiffs’ attorney, to this effect. At trial, Mr. Fa-daol disagreed. Mr. Fadaol stated that the liability on the promissory note, by the date of settlement, was considerably more than $30,000.00, and that his clients did not, and had no reason to, accept only $30,000.00 in full satisfaction of the debt. Mr. Fadaol claimed that Mr. Shields’s tender was only for satisfaction of the 1993 judgment against him and for his virile share, with the bank reserving its right to pursue Caldarera and other co-guarantors for their virile shares. Mr. Fadaol stated that the 2000 agreement for Shields to tender $30,000.00 came about because the 1993 judgment against Shields, which was recorded, was clouding the title to a piece of immovable property that Shields desired to sell, and Shields wanted to get the judgment erased and consummate the sale to avoid being sued by the purchaser. Shields did not recall these specific circumstances, but did not deny that the judgment did cloud title to the land he wanted to sell.

Shields argued that his filing of the Amended Petition (Second Amended Third Party Action) on September 22, 2000, showed the intent and verbal agreement reached between him and the bank that the debt would be fully satisfied. |7We disagree. Pleadings are not evidence; they are merely the allegations that a party wishes to prove. Law Offices of Robert M. Becnel v. Ancale, 00-295 (La.App. 5 Cir. 9/26/00), 769 So.2d 761; Department of Health and Hospitals v. Teachers’ Retirement System of Louisiana, 95-1034 (La.App. 1 Cir. 12/15/95), 665 So.2d 748.

Shields argues that the Satisfaction of Judgment prepared by the bank and sent to him shows that the entire indebtedness was satisfied. He also argues that several subsequent documents entitled Satisfaction of Judgment should be stricken from the record because they were produced for the first time at trial, and were clearly prepared after he had tendered the money. Entered into evidence were three separate documents entitled “Satisfaction of Judgment,” including the Exhibits 9a and 9b that Shields argues should be stricken from the record. The first one, which Mr. Shields testified was the only one he had ever received and was attached to his brief as Exhibit 6, contained numerous mistakes of form (misspelling names, incorrect date of underlying 1993 judgment). Mr. Fadaol told the trial court that the Clerk’s office in Jefferson Parish had rejected this document because of the mistakes of form, and in consequence thereof he refiled a corrected copy with the names spelled correctly and the correct date, January 25, 1993, of the underlying judgment against Shields. The only signature on any of these documents is Fadaol’s. The corrected copy that was ultimately filed in the parish records, but not forwarded to Shields (according to him), additionally recites that the judgment was satisfied as to Shields only.

We find that these documents do not support Shields’s assertion that the indebtedness was paid in full. Even the first Satisfaction of Judgment, the one rejected by the Clerk, but the only one allegedly received by Shields, clearly refers only to the 1993 judgment against Shields. It does not state that the promissory note’s total indebtedness has been satisfied.

| sShields testified that he had received the Receipt, Release, and Indemnity Agreement from plaintiffs sometime after he paid the money, in or about February 2001, but did not object to its language until trial. Shields testified that he didn’t type up the document or sign it, and that it didn’t reflect his agreement with plaintiffs. He argued that he was not bound by a document he didn’t sign. The evidence shows that Shields did receive this document well before trial and failed to object to the wording of it until trial, which undercuts his position that an agreement contrary to it existed.

We find that the evidence clearly shows that Shields’s tender of $30,000.00 satisfied the 1993 judgment against him, but he did not prove by a preponderance of the evidence that the bank took this payment in satisfaction of the total debt. However, the trial judge erred dismissing Shields’s third party demand against Cal-darera for contribution. This ruling was premature. The evidence did not establish the dollar amount of the total indebtedness on the promissory note because the interest due was never calculated. Various figures were discussed in the record, from $48,000.00 to $58,000.00. Under LSA-C.C. art. 3057, Shields has a right to receive contribution from his co-obligors for any amount he paid that is over his virile share. Unless there is a provision in the promissory note to the contrary, virile shares are by heads. There is no contrary provision. Assuming arguendo that there are two or more obligors, and that the total indebtedness was under $60,000.00, Shields may have paid more than his virile share and thus would be entitled to contribution from his co-obligors for the excess payment. Until the total amount of the indebtedness is established with certainty, and until the matter has been tried as to Caldarera’s status as a co-obligor on the note, dismissal of the third party demand was premature. Therefore, we will reverse that portion of the judgment.

| ¡^Accordingly, we amend that portion of the September 21, 2001 judgment that finds that Shields’s payment was for his virile portion only, and find that he has satisfied the 1993 judgment against him only. We reverse that portion of the judgment that dismissed Shields’s third party demand against Caldarera, and reinstate that action. We remand for further proceedings consistent with this opinion.

AFFIRMED IN PART AS AMENDED; REVERSED IN PART AND REMANDED

      . In 1992, Investors sold the promissory note to Ben A. Seal, L.J. Boudreaux, and Claude Autin, d/b/a Ja-Bob Investment Co. They were substituted as parties plaintiff for Investors on January 5, 1993.

      . The promissory note was in the name of Sea Pack International, Inc., dated March 21, 1986, in the original sum of $21,000.00, bearing interest rate of 14% per annum payable to Investors Bank & Trust and endorsed in blank by C. Paul Alonzo, president of Sea Pack, and further endorsed by C. Paul Alonzo, James E. Shields, Wayne Abreu, Michael A. Faia, Jr., Robert W. Abney, Otis Burmaster, and Joseph Caldarera.

      . Caldarera moved for a new trial based on new evidence that the promissory note's indebtedness had been discharged in full in the bankruptcy proceedings of Otis Burmaster, another co-endorser of the note.


source: Caselaw Access Project

author: 2JAMES L. CANNELLA, Judge.

license: Public Domain

text:
    John LAPEYROUSE v. EAST BANK CONSOLIDATED FIRE DEPARTMENT.
    No. 02-CA-864.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 25, 2003.

      William Ken Hawkins, LaPlace, LA, for Appellant.
    Wade A. Langlois, III, James J. Young, IV, Gretna, LA, for Appellee.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS and SUSAN M. CHEHARDY.
   2JAMES L. CANNELLA, Judge.

The Plaintiff, John Lapeyrouse, appeals from a workers’ compensation judgment dismissing his case against the Defendant, East Bank Consolidated Fire Department a/k/a Jefferson Parish Fire Department, for supplemental earnings benefits, penalties and attorney’s fees. We affirm.

The Plaintiff worked as a fireman for the Defendant from 1971 until December 9, 1998, when he sustained a non-fatal heart attack while fighting a fire. In February of 1999, he sought and obtained pension benefits under the Firefighters Heart and Lung Act and receives a retirement income of 99% of his salary. He also received workers’ compensation benefits. On May 5, 2000, the workers’ compensation insurer, Constitution State Services (Travelers) terminated the benefits asserting that the Plaintiff was released to full duty. On May 26, 2000, the Plaintiff filed a claim for reinstatement of benefits in the form of supplemental earnings benefits (SEBs). After discovery and the deposition of the treating physician, Dr. Kevin White, indicated that the Plaintiff had not been released to return to work without further tests, the Defendant agreed to pay benefits from May 5, 2000 through December 9, 2000, along with $2,600 in attorney’s fees. Dr. White released him to return to “office activities” in March |aof 2001. The Plaintiff was not notified of this until November of 2001. A month later, on his own, he obtained a small part-time job with Sellanomix International, earning substantially less than his earnings as a firefighter. The Defendant refused to pay any further benefits, claiming that the Plaintiff was retired and that under the law, the Plaintiff was not entitled to any further payments.

The case went to trial on December 27, 2001. In a judgment issued on February 15, 2002, the workers’ compensation judge found that the Plaintiff retired in February of 1999, and thus he is not entitled to SEB’s. The workers’ compensation judge further concluded that the Defendant was not arbitrary and capricious in terminating the Plaintiffs benefits.

On appeal, the Plaintiff argues that the workers’ compensation judge erred in finding that he is not entitled to SEBs.

The Plaintiff argues that the issue at trial should not have been his retirement, but whether he could return to work as a firefighter. He contends that if he was not able to return to work as a firefighter, and not able to earn wages equal to his prior wages with his current restrictions and capabilities, then the Defendant must provide vocational rehabilitation and attempt to find work for him. The Plaintiff argues that vocational rehabilitation should have commenced on March 27, 2001, when the Plaintiff was released to sedentary duty. Yet, the Defendant never inquired as to whether the Plaintiff could return to work. The Plaintiff contends that he can not earn 90% or more of his previous wages, stipulated to be $966.02, because of his age and physical restrictions and because he only has a high school education.

The Plaintiff asserts that he is a respected member of the community who served for 27 years as a firefighter, 16 years of which he served as a Captain. RHe contends that his testimony was credible and there was no credible evidence that he had retired, yet he was attacked by the Defendant at trial. He argues that the Defendant’s insurer never reviewed his personnel file, which would have disclosed his numerous awards and his commendation for bravery.

The Defendant contends that the evidence shows that the Plaintiff retired in 1999. The Defendant also argues that the Plaintiff obtained employment solely to secure compensation benefits, and that he never requested vocational rehabilitation.

The record reflects that the parties stipulated prior to trial that the sole issue to be resolved was whether the Plaintiff was retired. The Plaintiff also agreed that a retired worker is only entitled to 104 weeks of benefits pursuant to La.R.S. 23:1221(3) (d) (iii), the full sum of which he had already received. R.S. 23:1221(3)(d) (iii) states that, “When the employee retires however, the period during which supplemental earnings benefits may be payable shall not be less than one hundred four weeks.”

The manifest error standard of review applies to factual findings in a workers’ compensation case. Chaisson v. Cajun Bag & Supply Co., 97-1225, p. 13 (La.3/4/98), 708 So.2d 375, 380. In applying the manifest error-elearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Id. Where there are two permissible views of the evidence, a factfinder’s choice of them can never be manifestly erroneous or clearly wrong. Chaisson, at p. 14, 708 So.2d at 381. Thus, if the factfinder’s findings are reasonable in light of the record, the court of appeal may not reverse or modify the judgment. Id.

The Plaintiff admitted that he is a retired fireman. He testified that, after his heart attack in February of 1999, he submitted his request to retire under the | b30 year regular retirement plan. The Plaintiff currently receives a pension of 99% of his salary under that plan. He did not seek disability retirement because the regular retirement pays more than he would receive under disability retirement. Thus, by his own testimony, the Plaintiff is retired. That he is engaged in an odd job to supplement his income does not change his retirement. He clearly intended to withdraw from the work force. He sought regular retirement soon after the accident. He listed himself as retired on medical bills and tax returns and the job he sought and obtained was for approximately 8-14 hours per week. Contrary to the Defendant’s argument, the fact that he obtained this job shortly before trial is irrelevant because he was not notified of his medical release to return to work until shortly before he obtained the odd job. Nevertheless, we find no manifest error in the worker’s compensation judge’s conclusion that the Plaintiff was retired for purposes of workers’ compensation. Furthermore, as there is no provision in the workers’ compensation law that permits a retired worker to receive more than 104 weeks of SEBs, we find that the workers’ compensation judge did not err in finding that the Plaintiff is not entitled to further benefits.

The record also discloses no basis to award penalties and attorney’s fees. Any defect in the payment of his benefits was settled by the parties prior to trial, and attorney’s fees were paid for the Defendant’s actions in terminating his benefits prematurely. Thus, we find no error in the ruling by the workers’ compensation judge denying the Plaintiffs claim for penalties and attorney’s fees. Accordingly, the workers’ compensation judgment is hereby affirmed.

Costs of the appeal are to be divided by the parties.

AFFIRMED.


author: 2SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Daimon WILLIAMS.
    No. 02-KA-1016.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 25, 2003.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District Court, Jefferson Parish, Terry M. Boudreaux, Alan D. Alario, II, Assistant District Attorneys, Appellate Counsel, Gretna, LA, for Appellee, State of Louisiana.
    Bruce G. Whittaker, Louisiana Appellate Project, New Orleans, LA, for Appellant, Daimon Williams.
    Panel composed of Judges, JAMES L. CANNELLA, THOMAS F. DALEY and SUSAN M. CHEHARDY.
   2SUSAN M. CHEHARDY, Judge.

On May 4, 2001, the Jefferson Parish District Attorney filed a bill of information charging defendant, Daimon Williams, with possession of cocaine on or about March 30, 2001, in violation of La. R.S. 40:967(C). On September 14, 2001, the six-person jury unanimously found defendant guilty as charged. On September 25, 2001, the trial court sentenced defendant to imprisonment at hard labor for five years. Defendant orally objected to the sentence and moved for an appeal.

On September 27, 2001, the State filed a bill of information alleging that defendant was a fourth felony offender. Defendant denied the allegations of the multiple bill on that same date. On October 31, 2001, defendant filed a motion to appoint sanity commission to determine competency to proceed. After a competency hearing was held on February 6, 2002, defendant was found competent to proceed with the multiple offender hearing.

On April 23, 2002, the trial court found defendant to be a fourth felony offender, vacated the original sentence, and sentenced defendant to thirty years at hard labor. Defendant orally objected to the sentence and moved for an appeal. |s On April 26, 2002, defendant filed a written motion for appeal, which was granted. Defendant’s motion to reconsider sentence filed that same day was denied.

Facts

On March 30, 2001, Officer Raymond J. Lassiegne, and his partner, Officer Sarah Goodwin, both assigned to the Community Policing Section of the Gretna Police Department, were patrolling the Suburban Park area of Gretna, Louisiana, in a marked police unit. On that date, Officer Lassiegne had been assigned to Suburban Park, an area with “plenty” of drug activity, for approximately two years. At about 4:00 p.m. that afternoon, the officers were traveling east on Kepler Street towards the Westbank Expressway. When they turned north from Kepler onto LeBoeuf Street, Officer Lassiegne observed two black males standing in front of an apartment complex on the corner of LeBoeuf and Solon Street. Both men looked up at the police car, turned away quickly, and started walking up Solon Street toward the Westbank Expressway.

Because Officer Lassiegne thought their behavior was suspicious, he proceeded down LeBoeuf Street and turned onto Solon Street. When Officer Lassiegne turned onto the street, the two men were approximately halfway down the block. When defendant looked back and saw the police car, he started running. The other man continued to walk.

Officer Lassiegne pursued the defendant who ran across a parking lot toward a building. Officer Lassiegne saw defendant throw an object, with his right hand, into the bushes near the corner of the building. Defendant ran again, but then suddenly stopped.

Officer Lassiegne then stopped defendant. By that time, the man who had been walking with the defendant, later identified as Michael Williams, reached the |4parking lot and, at Officer Lassiegne’s instruction, walked toward his police car. For his safety, Officer Lassiegne checked the two men for weapons. At that point, Detective Russell Lloyd, a Group Supervisor of the Narcotics Division of the Gretna Police Department, arrived at the scene to assist Officer Lassiegne.

When Detective Lloyd arrived, he observed Officer Lassiegne and two black males with their hands on the hood of the police car. Officer Lassiegne asked-Detective Lloyd to watch the defendant so that he could retrieve the object that defendant had thrown in the bushes. Detective Lloyd, for safety reasons, moved defendant away from Officer Lassiegne’s car, where Michael Williams was being detained, to his unmarked patrol car.

Officer Lassiegne recovered a clear plastic bag, which contained small, off-white colored rocks, from the bushes. Although Officer Lassiegne did not show the object to defendant or tell him what he found, defendant started to struggle and screamed, “That’s not mine, that’s not for me, that’s not for me.” The officers restrained defendant and handcuffed him without further incident.

Detective Lloyd testified that Michael Williams did not struggle or try to run away from him during the stop. When Detective Lloyd field-tested the substance from the plastic bag, it tested positive for cocaine. At trial, Detective Lloyd identified State’s Exhibit 1 as the plastic bag that Officer Lassiegne retrieved.

Officer Lassiegne testified that he did not see Michael Williams discard any objects at any time that afternoon and he also did not see Michael near the bushes where the plastic bag was found. He further testified that, in the two years that he had been patrolling this neighborhood, he had never seen either man before that day. Moreover, he testified that neither of their home addresses are near the location where the incident occurred.

| ¡¡Importantly, Officer Lassiegne testified that Michael Williams did not admit that the drugs belonged to him at the scene that day. Lastly, Officer Lassiegne testified that he issued a summons to Michael Williams for public consumption of alcohol and allowed Michael to leave.

Michael Williams, who testified for the defendant, waived his Fifth Amendment right against self-incrimination. He testified that, on the day in question, he and defendant were walking across a parking lot off of Solon Street drinking daiquiris. Michael saw the police car going through the neighborhood on their daily route. Defendant also saw the police car. When the police car went around the corner, defendant ran because of an outstanding attachment.

Michael testified that the drugs belonged to him. Michael stated that defendant did not encourage or assist him in buying the drugs. Michael Williams also testified that, by the time the police car had pulled up to the corner of the building that day, he had already thrown the drugs into the bushes.

According to Michael, defendant fell down after the first police car arrived then got up, tried to walk, but then stopped. The police then stopped both of them, put them on the police car, and handcuffed the defendant.

According to Michael, when defendant later tried to walk off, the police officers slammed him on the ground. They picked him up then slammed him on the police car. After that, the officers asked Michael his name and ran both of their names through the computer. Then the officers walked around the bushes for about five minutes until they found the drugs and said, “You know what I’m taking you for.” Defendant denied the drugs belonged to him.

The officers put defendant in the back of the police car and put Michael in the front of the police car. The police officers then said, “We weren’t going to bother you, but thanks to your compadre, who ran, we came.” According to Michael, the white male police officer said to him, “Your com-padre says that it’s | fiyour drugs.” Michael did not admit, however, to the police officer at that point that the drugs belonged to him.

On cross-examination, Michael admitted that defendant was his uncle. Michael testified that he had no felony convictions. Michael testified that he was not going to use the drugs, but distribute them. He also testified that he told the police at the scene that he would come to the police station to tell them what really happened. Michael admitted that he never went to the police station.

When Officer Lassiegne was recalled by the State, he stated that Michael Williams did not even get to the parking lot until after defendant had thrown the drugs into the bushes and that he was nowhere near where defendant threw the drugs at any point before the drugs were retrieved. Officer Lassiegne also testified that Michael did not say that he would come to the police station to explain the situation.

When Detective Lloyd was recalled by the State, he testified that he did not retrieve any drugs in this case and did not search the area for narcotics. Further, Michael Williams did not tell him that he wanted to come down to the police station to explain the situation.

After hearing the testimony and evidence, the six-person jury unanimously found defendant guilty as charged. On appeal, defendant assigns four errors: it was error to fail to order a pre-trial competency hearing; the trial court erred in failing to declare a mistrial premised upon the prosecutor’s closing argument reference to appellant’s criminal record, the trial court imposed an excessive sentence and assigned as error are all errors patent.

Law and Argument

In his first assignment of error, defendant argues that the trial court erred in denying his motion to appoint a sanity commission. He contends that his motion should have been granted because he had been placed on suicide watch while 17incarcerated and he had a history of mental illness for which he had been prescribed Thorazine. Defendant asserts that the trial court’s off-the-record proceeding, beyond the reach of trial counsel or this reviewing Court, did not satisfy defendant’s due process rights and placed into question the validity of the entire proceeding against him. The State responds that defendant presented no reasonable grounds to doubt his mental capacity to proceed either in his pleadings or in oral argument.

We have reviewed the record, which reflects the following events, with respect to a pre-trial competency hearing. On September 13, 2001, the first day of trial, defense counsel stated in court that he was not ready for trial because defendant had spent a week on suicide watch. On the record, the trial judge stated that the deputy, who escorted defendant from the jail to court, had informed her that defendant was on security watch, which is different from suicide watch. Defense counsel insisted that he saw a sign where defendant was incarcerated that said “Suicide watch,” that defendant was either taking Thorazine or had been prescribed Thorazine, and that there should be a mental health history in the records.

Defense counsel also stated that he had filed a motion for appointment of a sanity commission, which was “dated and signed and stamped within the last 10 minutes.” We note that the record does not contain a copy of a written motion for appointment of a sanity commission filed on September 13, 2001. The prosecutor, however, must have reviewed a copy of a motion because he ^subsequently responded that the motion did not state sufficient grounds or a reasonable basis for appointment of a sanity commission.

Defense counsel stated that he could “instanter subpoena” defendant’s medical record; the record, however, does not contain a copy of defendant’s medical record from Jefferson Parish Correctional Center. Defense counsel also stated that defendant was prescribed Thorazine within the last 60 days but that defendant quit taking this medication. Further, defendant had disciplinary problems at the jail, which defense counsel asserted indicated his mental condition.

The prosecutor responded that defense counsel’s argument did not provide any reasonable grounds to suggest that the defendant did not possess the mental capacity to proceed. Finally, the prosecutor argued that Thorazine is an anti-depressant, not an anti-psychotic.

The trial judge then, without objection from defense counsel or the prosecutor, spoke with the Jefferson Parish Correctional Center’s social worker on the telephone. The trial judge subsequently denied the motion for a sanity commission without providing reasons, and defense counsel noted an objection.

In State v. Washington, this Court set forth the pertinent law regarding competency issues:

According to La.C.Cr.P. art. 641, “Mental 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.” A defendant’s mental incapacity to proceed may be raised by the defense, the district attorney, or the court at any time. La.C.Cr.P. art. 642; State v. Clark, 367 So.2d 311, 313 (La.1979); State v. Payne, 586 So.2d 652, 654 (La.App. 5th Cir.1991).
The law presumes a defendant’s sanity. La. R.S. 15:432; State v. Bibb, 626 So.2d 913, 927 (La.App. 5th Cir.1993), writ denied, 93-3127 (La.9/16/94), 642 So.2d 188. A defendant has the burden of proving by a preponderance of the evidence that, as a result of a mental disease or defect, he lacks the capacity to understand the | flproceedings against him or to assist in his defense. State v. Brooks, 541 So.2d 801, 805 (La.1989); State v. Bibb, supra. The trial court is required to order a mental examination of the defendant only when it has reasonable grounds to doubt the defendant’s mental capacity to proceed. La. C.Cr.P. art. 643; State v. Bibb, at 928. The ordering of a sanity commission rests in the sound discretion of the trial court. State v. Fish, 99-1280 (La.App. 5th Cir.4/12/00), 759 So.2d 937. Furthermore, when the issue of a defendant’s incapacity to proceed is presented by “bare allegations without supporting evidence, the exercise of discretion conferred on the trial judge will not be disturbed.” State v. Wilkerson, 403 So.2d 652, 658 (La.1981).

State v. Washington, 769 So.2d at 1238.

Reasonable ground in this context refers to information which, objectively considered, should reasonably raise a doubt about the defendant’s competency and alert the court to the possibility that the defendant can neither understand the proceedings, appreciate the proceedings’ significance, nor rationally aid his attorney in his defense.

In Washington, supra, defendant orally requested that the trial court appoint a sanity commission to determine the defendant’s present mental capacity based on certain responses on the intake booking sheet. According to defense counsel, question five on the sheet asked whether the inmate appeared despondent, down or depressed, or irrational, crazy, hearing voices or reacting strangely. The word “yes” was checked next to this question. Additionally, defense counsel asserted that the defendant had recently indicated he had taken the medications Elavil and Thorazine when he was previously incarcerated in the parishes of East Baton Rouge and Orleans, and that he was currently taking Sinequan. The trial court denied the motion.

On appeal, this Court found that defense counsel had presented no evidence of the defendant’s inability to proceed except the answer to question five and the information regarding the defendant’s medication. The Washington court held that the trial court did not abuse its discretion in denying the motion to appoint a sanity | mcommission, and that defense counsel did not meet his burden of proof of calling defendant’s ability to proceed into question.

Louisiana courts have affirmed the denial of a motion for a sanity commission under similar circumstances when the motion is unsubstantiated. In State v. Wilkerson, supra, the motion contained allegations that the Defendant was confused, depressed, and had no recollection of the charged offense, that the defendant had suffered severe blows to the head in the past two years and that the defendant had been sent to the state’s mental hospital on a prior occasion. Finally, the motion alleged that the defendant’s mental condition prevented him from understanding the proceedings against him and from assisting counsel in his defense. Id. at 658. The Louisiana Supreme Court noted that the defendant did not request a hearing on the motion, nor did he present any evidence in support of the allegations therein. The Court held that the trial judge had not abused his discretion in denying the defendant’s motion, since the defendant had not met his burden of proof and “did not attempt to do so by means other than unsubstantiated allegations in his motion.” Id. at 658.

State v. Washington, 769 So.2d at 1239.

In this case, defense counsel argued that defendant was on suicide watch, was taking Thorazine, had disciplinary problems, and had been “locked down.” He failed, however, to introduce evidence in support of these allegations. He did not subpoena or call witnesses to testify regarding defendant’s alleged incompetency and he failed to introduce medical records to support his contentions. Based on the foregoing, we find, as in Washington, that the trial court did not err in denying defendant’s motion to appoint a sanity commission. Accordingly, this assignment of error lacks merit.

In his second assignment of error, defendant argues that the trial court erred in failing to declare a mistrial based upon the prosecutor’s reference to his criminal record during closing argument. Defendant claims the prosecutor’s comments were made in response to his defense that the drugs belonged to his cousin, Michael Williams. The State responds that a mistrial was not warranted because the prosecutor did not expressly refer to other crimes committed by defendant.

Inin his closing argument, the prosecutor during rebuttal stated, “[y]ou know this is one of the smoke screens exactly what [defense counsel] said [sic]. Let’s bring in somebody else that [sic] really doesn’t have any prior convictions, knows that he can get probation, if [the State] can even prosecute him to begin with.... ” Defense counsel objected and asked to argue the objection at the end of closing arguments. The prosecutor continued in the same vein,

Doesn’t have any prior background, knows that he can come in here and put this in front of you and very possibly get probation. Very possibly get probation in all likelihood for a first offender and walk out of this court. So he knows that he can get away with it. If, if we would be able to prosecute him.

At the end of closing arguments, defense counsel argued that:

[t]he District Attorney said words to the effect that Michael Williams was the only one who could take the charge because he had no prior record. Implying clearly that the defendant couldn’t because he has a prior record.[sic] And that was as direct a comment as possible on the fact that the defendant had a prior record.”

The trial judge denied the motion for mistrial. Defense counsel objected but did not request an admonition.

La.C.Cr.P. art. 774 provides the scope of closing argument as follows:

The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom and to the law applicable to the case.
The argument shall not appeal to prejudice.
The state’s rebuttal shall be confined to answering the argument of the defendant.

Even if closing arguments go beyond the scope of La.C.Cr.P. art. 774, the errors are harmless unless the reviewing court is thoroughly convinced that the remarks influenced the jury and contributed to the verdict.

La.C.Cr.P. art. 770 provides in pertinent part:

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, [^district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
* * *
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.

The decision to grant or deny a mistrial is within the sound discretion of the trial court. The denial of a motion for a mistrial will not be reversed on appeal unless the court has abused its discretion. Mistrial is a drastic remedy and is warranted only where remarks result in substantial prejudice sufficient to deprive defendant of a fair trial. A determination of whether prejudice has resulted lies within the sound discretion of the trial judge.

In this case, the prosecutor’s remarks during rebuttal closing argument were not a reference to another crime by defendant. It is important to remember that defense counsel’s main argument against convicting defendant of cocaine possession was that Michael Williams, defendant’s nephew, testified at trial that the drugs belonged to him. During rebuttal, the prosecutor was arguing that Michael-Williams admitted the drugs belonged to him in order to protect his uncle. The prosecutor was explaining that Michael Williams was able to claim that the drugs were his without fearing a long prison term because Michael did not have any prior convictions and, therefore, would probably get probation.

Based on the foregoing, we find that the prosecutor’s remarks were not impermissible references to other crimes. Further, we hold that the trial court did not err in failing to grant a mistrial.

|13In his third assignment of error, defendant argues that his 30-year sentence for possession of cocaine as a fourth felony offender is constitutionally excessive, even though it falls within the statutory limits provided by the Legislature. He contends that three of his four felony convictions were for possession of small amounts of cocaine, which does not merit the penalty imposed. Defendant claims the sentence is disproportionate to the harm occasioned by his crime, that he has a history of nonviolent drug offenses indicating he has been addicted to cocaine for his entire adult life, that the most recent conviction was for a small amount of cocaine suitable for personal use, and that he was not a major narcotics trafficker.

Before addressing the merits of defendant’s third assignment of error, we must address the leniency of his sentence. On April 28, 2002, defendant was found to be a fourth-felony offender and sentenced to 30 years at hard labor pursuant to La. R.S. 15:529.1.

Defendant’s underlying conviction is a felony drug offense committed on March 30, 2001. On that date, La. R.S. 15:529.1(A)(2)(c)(ii) read as follows:

If the fourth or subsequent felony or any of the prior felonies is a felony defined as a crime of violence under R.S. 14:2(13) or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for more than five years or of any other crime punishable by imprisonment for more than twelve years, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence. [Emphasis added.]

In Act 403 of the 2001 Regular Session, effective June 15, 2001, the Louisiana Leg-Mature amended La. R.S. 15:529.1(A)(2)(c)(ii) to read as follows:

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

114This Court has held that the pre-amendment version of La. R.S. 15:529.1 applies when the underlying offense is committed before the effective date of Act 403, even when the sentence is imposed after the effective date of Act 403. As noted above, defendant’s underlying offense was committed on March 30, 2001; thus, under our current jurisprudence, the pre-amendment statute is applicable in this case.

Under the pre-amendment statute, the mandatory minimum sentence for defendant is life imprisonment without benefit of parole, probation, or suspension of sentence. Defendant’s thirty-year sentence is, thus, illegally lenient.

This Court has authority under La.C.Cr.P. art. 882 to correct an illegally lenient sentence despite the failure of either party to raise the issue in the district court or on appeal. Nonetheless, we also recognize that La.C.Cr.P. art. 882 is permissive. Further, this Court has recognized that the trial judge, as in this case, may consider the legislative change to the habitual offender statute as evidence of its intent. Thus, while we recognize that defendant received an illegally lenient sentence, we decline to exercise the discretion provided in La. C.Cr.P. art. 882 under the facts presented in this case.

Now, we reach the merits of defendant’s argument that his sentence was constitutionally excessive. The Eighth Amendment to the United States Constitution and Article I, Section 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain ligand suffering. The trial judge has wide discretion in imposing sentences within the statutory limits, and sentences will not be set aside absent manifest abuse of that broad discretion. Three factors should be considered in reviewing a judge’s sentencing discretion: (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. There is no requirement that specific matters be given any particular weight at sentencing.

At the hearing on the multiple-offender bill, the trial judge discussed defendant’s potential sentence exposure with the prosecutor and defense counsel. Further, the trial judge inquired into defendant’s previous periods of incarceration. In response, the prosecutor indicated that defendant received a suspended sentence on his first conviction. Defense counsel indicated that, beginning in 1997, defendant served two years at hard labor. Further, on another felony, defendant was, in 1997, also sentenced to 658 days at hard labor but given credit for time served.

At the multiple bill hearing, defense counsel argued that a long-term jail sentence would not best serve defendant or the community. In support of her argument, defense counsel cited defendant’s long-term cocaine addition, the fact that he had never received any type of drug treatment, his mental illness that requires medication, his young age, and the newly amended habitual offender law indicative of changing societal views on drug-related offenses. Thereafter, the trial judge vacated the original sentence in the underlying felony and imposed a 30 year sentence.

After reviewing the record in this case including the certified copies of defendant's three predicate convictions, we do not believe that a sentence of thirty years for this defendant on his fourth felony offense is constitutionally excessive. Under the amended habitual offender statute, the sentencing range for defendant is 20 years to life. La. R.S. 15:529.1(A)(2)(c)(i). The trial court sentenced defendant to 30 years, which is at the lower end of the sentencing range. Moreover, under the pre-amendment version of La. R.S. 15:529.1, the mandatory minimum sentence for a defendant with three drug felonies and a violent felony was life imprisonment without benefit of parole, probation, or suspension of sentence. In sum, we find no merit in defendant’s argument that his thirty-year sentence is excessive.

In his final assignment of error, defendant assigns all errors patent. We have reviewed the record for errors patent and found none requiring remand. La.C.Cr.P. art. 920.

AFFIRMED.

      . The mission of Gretna Police Department’s Community Policing Section, or “COPS,” is to target specific neighborhoods to eliminate drug activity and other problems in those neighborhoods.

      . That day, defendant was also issued a misdemeanor summons for public consumption of alcohol, which is not at issue in this appeal.

      . The record contains a Motion to Appoint Sanity Commission that was filed on October 31, 2001, about six weeks after defendant’s trial on this charge. The trial court granted that motion and a competency hearing was held on February 6, 2002. At that hearing, Dr. Richard Richoux, a psychiatrist, testified that he and Dr. Raphael Salcedo, also a psychiatrist, examined defendant on January 9, 2002. Dr. Richoux explained that it was their conclusion that, while the presence of a functional mental illness or some form of a psychotic disorder, could not be ruled out, it was under good control, if it was present, as of that time, and it in no way prevented defendant from being able to understand the legal proceedings or to prevent him from being able to assist counsel. The trial judge found defendant competent to proceed with the multiple offender hearing and trial on an unrelated criminal charge that was later dismissed.

      . 00-301 (La.App. 5 Cir. 9/26/00), 769 So.2d 1235, writs denied, 00-2971 (La.9/28/01), 798 So.2d 106, 00-3041 (La.9/28/01), 798 So.2d 108, writ granted on other grounds, 02-1316 (La.5/31/02), 816 So.2d 863.

      . State v. Snyder, 98-1078 (La.4/14/99), 750 So.2d 832, 851 (quoting Lokos v. Capps, 625 F.2d 1258, 1261 (5th Cir.1980)).

      . State v. Byrne, 483 So.2d 564 (La.1986), cert. denied, Byrne v. Louisiana, 479 U.S. 871, 107 S.Ct. 243, 93 L.Ed.2d 168 (1986).

      . State v. Ratcliff, 98-101 (La.App. 5 Cir. 2/23/99), 731 So.2d 356, 363, writ denied, 99-1112 (La.9/3/99), 747 So.2d 541.

      . State v. Overton, 618 So.2d 439, 441 (La.App. 5 Cir.1993).

      . State v. Smith, 430 So.2d 31, 44 (La.1983).

      . See State v. Ventress, 01-1165 (La.App. 5 Cir. 4/30/02), 817 So.2d 377, 380-383; State v. Flagg, 01-965 (La.App. 5 Cir. 3/26/02), 815 So.2d 208, 209-212, with one judge dissenting with reasons.

      . State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790.

      . State v. Jordan, 02-820 (La.App. 5 Cir. 12/30/02), 836 So.2d 609.

      . State v. Ventress, 817 So.2d at 384 (citing State v. Clark, 391 So.2d 1174, 1176 (La.1980)).

      . State v. Lobato, 603 So.2d 739, 751 (La.1992); State v. Munoz, 575 So.2d 848, 851 (La.App. 5 Cir.1991), writ denied, 577 So.2d 1009 (La.1991).

      . State v. Lanclos, 419 So.2d 475, 478 (La.1982); State v. Rainey, 98-436 (La.App. 5 Cir. 11/25/98), 722 So.2d 1097, 1106, writ denied, 98-3219 (La.5/7/99), 741 So.2d 28.

      . State v. Le, 98-1274 (La.App.6/30/99), 738 So.2d 168, 171, writ denied, 00-2174 (La.4/12/01), 789 So.2d 587; State v. Medious, 98-419 (La.App. 5 Cir. 11/25/98), 722 So.2d 1086, 1092, writ denied, 98-3201 (La.4/23/99), 742 So.2d 876.

      . State v. Jones, 33,111 (La.App. 2 Cir. 3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385.


text:
    STATE of Louisiana v. Karen TERRASE.
    No. 02-KA-1009.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 25, 2003.

      Bruce G. Whittaker, New Orleans, LA, for Appellant.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux — Appellate Counsel, Alan D. Alario, II — Counsel of Record on Appeal, Assistant District Attorneys, Gret-na, LA, for Appellee.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY and SUSAN M. CHEHARDY.
   2JAMES L. CANNELLA, Judge.

The Defendant, Karen Terrase, appeals from her conviction of theft of over $500 and sentence as a habitual offender to five years imprisonment at hard labor. We conditionally affirm the conviction and finding as a second felony offender, vacate the enhanced sentence, and remand for evidentiary hearing, re-sentencing, amendment of commitments and notice.

On September 27, 2000 the Defendant was charged with a violation of La. R.S. 14:67 B. She pled not guilty. On the date of trial, January 24, 2002, defense counsel indicated that the Defendant waived a jury trial. Following the bench trial, the Defendant was found guilty as charged. In April of 2002, she filed a motion for new trial and the State filed a habitual offender bill of information alleging her to be a second felony offender. On April 11, 2002, the trial judge denied the Defendant’s motion for new trial. The Defendant waived sentencing delays and she was sentenced to five years imprisonment at hard labor. The Defendant then admitted the allegations in the habitual offender bill of information, waiving a hearing on the matter. The trial judge then vacated the original sentence and imposed an enhanced sentence of five years imprisonment at hard labor. On the same day, the Defendant filed a motion for appeal and it was granted. Her motion for reconsideration of sentence was denied.

13At trial, Judy Velasquez (Velasquez) testified that her family owns and runs Meineke Discount Mufflers (Meineke) in Harvey. She was working there on September 5, 2000 with the Defendant, an employee, and friend. Velasquez testified that the shop has no cash register, so money is kept in drawers behind the counter. Velasquez regularly begins each business day with fifty dollars in a cash drawer. Another drawer, termed the “drop box,” holds the shop’s bank deposits, and might contain up to five thousand dollars at any given time. The drop box is kept locked at all times and the key hangs on a rack behind the counter. Velasquez testified that anyone working with her has access to the key.

When the theft occurred, Velasquez was standing in the doorway between the garage area and the customer service area, talking on the telephone with a friend, Donna Davis (Davis). She saw the Defendant take money from the lock box and leave the premises. Velasquez told Davis that “Karen just ripped off the drawer and she’s leaving in her car.” Davis testified that, during the conversation, Velasquez said “Donna, Karen just took my money.”

According to Velasquez’s calculations, the Defendant stole one thousand dollars. Afterwards, Velasquez telephoned the Defendant and asked her to return the money. The Defendant made no effort to repay the money and Velasquez never heard from the Defendant again. Velasquez testified that she was required to replace the missing money herself.

Deputy Chad Gautreaux of the Jefferson Parish Sheriffs Office testified that, on September 7, 2000, he received the report of a theft at Meineke that had occurred on September 5, 2000. The deputy stated that Velasquez told him that she saw the Defendant close the money drawer and leave the shop in a hurry. Velasquez told him that one thousand dollars was stolen. The deputy did not recall Velasquez telling him that she actually saw the Defendant take the money from the drawer.

I/The Defendant denied stealing the money. She testified that she was working at Meineke on September 5, 2000 and that her job was to perform personal and business errands for Velasquez. She claimed that she did not leave the shop that day until closing time. The Defendant further testified that she did not have access to the drop box key and that Velasquez kept the key. The Defendant claimed that Velasquez’ accusation stemmed from a dispute over the Defendant’s former boyfriend.

On appeal, the Defendant contends that the trial judge erred in allowing her to proceed to a bench trial without first obtaining from her a waiver of her right to trial by jury and that her sentence is excessive. She also requests a patent error review.

La.C.Cr.P. art. 782 and La. Const, art. I, § 17 provides that a defendant is entitled to a trial by jury of six persons when the sentence is with or without hard labor. The sentence for theft of over $500 is with or without hard labor. La.R.S. 14:67 B (1). Although the right to a jury trial may be waived in non-capital cases, it must be “knowingly and intelligently” waived. La.C.Cr.P. art. 780 A. Waiver of this right is never presumed. State v. McCarroll, 337 So.2d 475, 480 (La.1976).

Prior to the commencement of trial, the following exchange took place:

Mr. Credo [prosecutor]:
Your Honor, State would then ask that Counsel could waive jury in this matter? Is that correct?
Mr. Fleming [defense counsel]:
Yes, we would in fact elect a bench trial in this matter, Judge.

The record contains no further discussion of Defendant’s jury rights.

The State argues that defense counsel’s statement constitutes sufficient evidence that the Defendant knowingly and intelligently waived her right to trial by jury. We disagree. In State v. Pierre, 98-1123, p. 8 (La.App. 5th Cir.4/14/99), 733 So.2d 674, 679, we held that the defense attorney’s statement that, “we’re going to waive the jury, Your Honor” did not, on its own, constitute a valid waiver of the defendant’s right to a trial by jury. The facts here are comparable to those in Pierre.

Where no valid jury waiver is found in the record, Louisiana appellate courts have traditionally set aside the defendant’s conviction and remanded for a new trial. State v. Williams, 404 So.2d 954 (La.1981); State v. Miller, 517 So.2d 1113 (La.App. 5th Cir.1987), writ denied, 523 So.2d 1335 (La.1988). However, the Louisiana Supreme Court, in State v. Nanlal, 97-0786 (La.9/26/97), 701 So.2d 963, 964, set out a procedure by which the case is initially remanded to the trial court for an evidentiary hearing on the question of whether the defendant validly waived the right to a jury trial. The Nanlal Court held that, if the evidence shows the defendant did not make a valid waiver, the trial court must set aside the conviction and sentence and grant the defendant a new trial. The Supreme Court reserved the defendant’s right to appeal any adverse ruling of the waiver issue. Id. This Court has followed the procedure set out in Nanlal. See: State v. Hampton, 00-1002, p. 12 (La.App. 5th Cir.1/24/01), 782 So.2d 1045, 1054; State v. Vortisch, 00-67, p. 9 (La.App. 5th Cir.5/30/00), 763 So.2d 765, 770; Pierre, 98-1123 at p. 8, 733 So.2d at 679.

Based on the foregoing, we will remand for an evidentiary hearing on the question of whether the Defendant in this case validly waived her right to a jury trial. If she did not, the trial judge must set aside the conviction and sentence. If she did, then the trial judge should rule that she did and this Court affirms the conviction and enhanced sentence. In this last instance, we reserve the Defendant’s right to appeal the adverse ruling of the waiver issued.

Next, the Defendant asserts that the trial judge imposed an excessive sentence. She argues that the sentence was not proportionate to the crime. In the | (¡motion to reconsider sentence under La. C.Cr.P. art. 881.1, the Defendant only stated that she is “a single mother, and a sentence of incarnation [sic] places an undue hardship on defendant, her child, and her family.”

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Lobato, 603 So.2d 739, 751 (La.1992); State v. Munoz, 575 So.2d 848, 851 (La.App. 5th Cir.1991), writ denied, 577 So.2d 1009 (La.1991).

The Defendant’s sentence of five years imprisonment at hard labor as a second felony offender was the minimum allowed under La.R.S. 14:67 B(l) and La. R.S. 15:529.1 A(l)(a). It is presumed that a mandatory minimum sentence under the Habitual Offender Law is constitutional. State v. Williams, 01-1007, p. 11 (La.App. 5th Cir.2/26/02), 811 So.2d 1026, 1032. However, if the trial judge finds that an enhanced punishment mandated by La. R.S. 15:529.1 makes no “measurable contribution to acceptable goals of punishment” or that the sentence amounts to nothing more than “the purposeful imposition of pain and suffering” and is “grossly out of proportion to the severity of the crime,” the trial judge has the option and duty to reduce such sentence to one that would not be constitutionally excessive. State v. Dorthey, 623 So.2d 1276, 1280 (La.1993).

A trial judge may only depart from the mandatory sentence if he finds clear and convincing evidence that would rebut the presumption of constitutionality. Williams, 01-1007 at p. 11, 811 So.2d at 1032; State v. Johnson, 97-1906, p. 8 (La.App. 5th Cir.3/4/98), 709 So.2d 672, 676. However, the burden is on the defendant to rebut the presumption of constitutionality by showing that he is exceptional because of unusual circumstances and that the sentence is not meaningfully tailored to the culpability of the offender, the gravity of the offense, |7and the circumstances of the case. Johnson, 97-1906 at p. 8, 709 So.2d at 676, quoting State v. Young, 94-1636, pp. 5-6 (La.App. 4th Cir.10/26/95), 663 So.2d 525, 528, writ denied, 95-3010 (La.3/22/96), 669 So.2d 1223. The Louisiana Supreme Court has cautioned that downward departures from the mandatory minimum sentences should be made only in rare cases. State v. Lindsey, 99-3256, p. 5 (La.10/17/00), 770 So.2d 339, 343.

Here, the Defendant failed to show any unusual or special circumstances that might serve to rebut the presumption of constitutionality. After our review, we find that the sentence was not excessive.

The record was reviewed for errors patent. LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Perrilloux, 99-1314 (La.App. 5th Cir.5/17/00), 762 So.2d 198. The review reveals several patent errors.

First, both the original and habitual offender commitments indicate that the Defendant was found guilty of “theft $300 + ,” rather than theft valued at over five hundred dollars. The two offenses involve different sections of the statute and different penalties. Thus, we will order the commitments corrected.

Second, both the original and habitual offender commitments show that the Defendant’s sentence is to be served at hard labor. However, the transcripts do not reflect that the trial judge ordered the sentence to be served at hard labor. Generally, where the transcript conflicts with the minute entry, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Thus, we vacate the enhanced sentence and remand for re-sentencing as a second felony offender, since the method of sentence was not in the transcripts and hard labor is not mandatory for this offense. See: La.R.S. 14:67 B (1).

s Third, although the commitments reflect otherwise, the sentencing transcripts indicate that the trial court did not advise the Defendant of the two-year prescriptive period for applying for post-conviction relief pursuant to La.C.Cr.P. art. 930.8. Thus, we will remand the case with an order for the trial judge to send written notice, within 10 days of the rendering of this opinion, informing the Defendant that she has two years from the date the conviction and sentence become final to file her application for post-convietion relief, then to file written proof in the record that the Defendant received the notice.

Accordingly, we hereby conditionally affirm the Defendant’s conviction and finding as a second felony offender. We vacate and set aside her enhanced sentence and order her to be re-sentenced. We remand for an evidentiary hearing on the question of whether the Defendant validly waived her right to a jury trial and for further proceedings, if necessary, pursuant to Nanlal. We further order the commitments to be corrected to show that the Defendant was convicted of theft of goods of over five hundred dollars. Also, we remand the case with an order to the trial judge to send to the Defendant written notice within 10 days from the rendering of this opinion informing the Defendant that she has two years from the date the conviction and sentence become final to file her application for post-conviction relief, then to file written proof in the record that the Defendant received the notice.

CONVICTION AND FINDING AS A SECOND FELONY OFFENDER CONDITIONALLY AFFIRMED. CASE REMANDED FOR EVIDENTIARY HEARING, RE-SENTENCING, CORRECTION OF COMMITMENTS AND NOTICE OF POST-CONVICTION PRESCRIPTIVE PERIOD.

      . We also note that the trial judge did not specifically find that the Defendant was a second felony offender. However, where the habitual offender bill alleges only one prior felony, the trial judge's finding that the Defendant is a habitual offender can only relate to a second offense. See, State v. Esteen, 01-879 atp. 28, 821 So.2d at 78, fn. 22.


text:
    STATE of Louisiana v. John DAVIS.
    No. 02-KA-1008.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 25, 2003.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District Court, Parish of Jefferson, Terry M. Boudreaux, Alison Wallis, Assistant District Attorneys, Gretna, LA, for Appellee, State of Louisiana.
    Holli Herrle-Castillo, Louisiana Appellate Project, Marrero, LA, for Appellant, John Davis.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY and SUSAN M. CHEHARDY.
   2SUSAN M. CHEHARDY, Judge.

On June 7, 2000, the Jefferson Parish District Attorney filed a bill of information charging defendant, John Davis, with possession of cocaine, in violation of La. R.S. 40:967 C. Defendant was arraigned on June 9, 2000, and pled not guilty. On December 15, 2000, the trial court heard and denied defendant’s motion to suppress evidence. That same day, trial commenced. Also that day, the six-person jury found the defendant guilty as charged.

On February 9, 2001, defendant filed a Motion for New Trial, which was denied. After the defendant waived the statutory delays, the trial judge sentenced him to five years at hard labor. Defendant also filed a Motion to Reconsider Sentence that same day, which the trial judge denied. Also that day, the State filed a habitual offender bill of information, alleging defendant to be a third felony offender. Defendant thereafter denied the allegations in the habitual offender bill.

On April 20, 2001, defendant filed a motion to quash the habitual offender bill of information, which the trial judge heard and denied on June 1, 2001. That same day, the trial court held the habitual offender hearing and found that defendant is a third felony offender. The trial judge then vacated defendant’s original sentence and imposed an enhanced sentence of 20 years at hard labor. |sBecause the trial judge deviated from the life sentence, which is the minimum mandatory sentence, required by the Habitual Offender Law, the State objected to the sentence as illegally lenient. Defendant made an oral motion to reconsider sentence, which the court denied. Defendant also filed a Motion for Appeal on that day, which the trial judge granted on June 1, 2001.

FACTS

Deputy Lance Williams of the Jefferson Parish Sheriffs Office (“JPSO”) testified that, at 1:59 a.m. on May 28, 2000, he responded to a call at Club 2000, a nightclub located on Brown Avenue near the Westbank Expressway in Harvey. Williams was accompanied by Deputy-Trainee Cory Newby. Deputy Michael Aicklen also responded to the scene.

Deputy Williams testified that defendant appeared nervous and agitated when he saw the officers enter. The deputies escorted defendant out of the bar. Deputy Williams attempted, for his safety, to pat-down the defendant after they exited the club. Defendant pushed Deputy Williams and attempted to flee. In response, Deputy Williams placed defendant in a “compliance hold” and escorted defendant to his patrol car. Deputy Williams placed defendant against the car, handcuffed him, and again attempted a pat-down of defendant.

During the course of the pat-down, defendant kicked Williams and knocked him to the ground by striking him in the chest with his knee. Still handcuffed, defendant fled on foot across the Westbank Expressway. Deputies Williams, Newby and Aick-len pursued him. Williams tackled defendant, knocking him to the ground, and subduing him. Deputy-Trainee Newby escorted defendant to the police car.

14Peputy Newby testified that he searched defendant and recovered six small, off-white rocks, wrapped in plastic bags, from his left front pants pocket and a bag of green, leafy, vegetable-like material from his other front pocket. Newby gave the items to Deputy Williams. Daniel Waguespack, an expert in the analysis and identification of narcotics, testified that he tested two of the six white rocks, and the result was positive for cocaine. After hearing the evidence, the six-person jury found the defendant guilty as charged of possession of cocaine.

On appeal, defendant argues, in his first assignment of error, that the evidence should have been suppressed. He specifically complains that the officers lacked reasonable suspicion to stop him and, thus, the cocaine, which was found after the stop, should not have been admitted at trial. In its brief, the State implies that defendant is not entitled to challenge the trial court’s ruling because his motion to suppress evidence was not in writing and did not allege specific grounds for suppression.

Here, although the record does not contain a written motion to suppress the evidence, the record clearly shows that a suppression hearing was, in fact, held on December 15, 2000. That day, after hearing testimony from State’s witnesses and argument from the defense and prosecution, the trial judge denied defendant’s motion. Initially, we note that the State did not making a timely objection to the alleged “sufficiency” of the defendant’s motion below and, as such, has not preserved that issue for review. Moreover, there is no legal basis for the State’s argument because our Code of Criminal Procedure does not contain a procedural bar to defendant’s challenge of the trial court’s denial of his motion to suppress evidence.

The Fourth Amendment to the United States Constitution and Article I, Section V of the Louisiana Constitution prohibit unreasonable searches and seizures. However, the right of law enforcement officers to stop and interrogate one reasonably suspected of criminal behavior is recognized by state and federal jurisprudence. The Terry standard is codified in La.C.Cr.P. art. 215.1, which allows a police officer “to stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense” and to demand that the person identify himself and explain his actions.

Reasonable suspicion for an investigatory stop is something less than probable cause, and must be determined under the facts of each case by whether the officer had sufficient knowledge of the facts and circumstances to justify an infringement on the individual’s right to be free from governmental interference. Absent reasonable suspicion, an investigatory stop is illegal, and the evidence seized as a result is suppressible.

The determination of reasonable, grounds for an investigatory stop, or probable causé for arrest, does not rest on the officer’s subjective beliefs or attitudes, but turns on a completely objective evaluation of all the circumstances known to the officer at the time of his challenged action. In considering those circumstances, a reviewing court should give deference to the inferences and deductions of a trained police officer “that might well elude an untrained person.” An officer’s experience, his knowledge of recent criminal patterns, and his knowledge of an area’s frequent incidence of crime, are factors that may support | ((reasonable suspicion for an investigatory stop. In determining whether the trial court’s ruling on a defendant’s motion to suppress is correct, the appellate court may consider pertinent evidence adduced at both the suppression hearing and at trial.

In this case, the testimony at the suppression hearing provides more information regarding the events leading up to defendant’s arrest than the evidence at trial does. At the suppression hearing, Deputy Lance Williams testified that, in the early morning hours of May 28, 2000, he and Cory Newby, a JPSO trainee, received a dispatch that the owner of Club 2000, a nightclub located in a high-crime area of Harvey, needed assistance with an unruly patron. The club owner, Bobby Wilkerson, reported that a patron, who had previously been banned from the club, was in the club refusing to leave.

Williams testified that, when he and Newby arrived at the nightclub, Wilkerson met them at the door, pointed to defendant, and told the officers that he wanted defendant removed from the premises. When Wilkerson pointed out the defendant to the deputies, he was just “hanging around.” As soon as defendant saw the officers, he put down his drink and began to back away from them. Defendant’s demeanor changed, and he began to look wildly around the room. To Deputy Williams, defendant was looking for an escape route.

Deputy Williams then approached defendant, told defendant that the owner wanted him to leave, and asked defendant to leave the premises. Although the noise level in the club was high, defendant appeared to understand him. The officers escorted defendant to the door, one walking on either side of him. Williams testified that he didn’t have any physical contact with defendant at that time. The officers were at the bar investigating a call from the owner regarding a 17patron who was apparently disturbing the peace and/or trespassing. Williams testified that defendant was free to go anywhere he wished, as long as he left the nightclub.

Williams stated that defendant appeared nervous and excited. As the officers escorted defendant to the door, defendant attempted to evade them by walking out ahead of them. Based on defendant’s demeanor and his attempts to get away from the officers, Williams felt as if there was something amiss. He testified, “There was a reason that he was so crazy to get away from me. I didn’t know if maybe he was carrying a weapon.” Williams stopped defendant from leaving the area. He asked whether defendant had identification, and defendant replied that he did not. The officer asked defendant to put his hands against a wall so that he could perform a pat-down search. Defendant refused to comply, so Williams pushed defendant against the wall.

At the suppression hearing, the prosecutor asked Williams whether, at that time, he had “a reasonable suspicion to believe that perhaps a crime was about to be committed or had been committed.” Williams responded, “Something was up, yes, ma’am.” On cross-examination, the deputy testified that, while he hadn’t seen a crime committed at that point, he was suspicious of defendant because he was trying so hard to get away from the officers. He strongly believed defendant wanted to leave because he was either carrying a weapon or drugs or he was wanted for some criminal offense.

Our initial inquiry is whether the facts elicited were sufficient to justify a Terry stop at this point. At the suppression hearing, the trial judge ruled, in part:

I’m going to deny the motion. I heard testimony that the — uncontradict-ed testimony ... that satisfies me that there was nervous evasive behavior, that it was in a high drug activity area, and that all of these put together, as well as some other minor factors that the officer testified to, provides for the objective justification for a brief detention under Terry and other cases....

a We agree with the trial court’s finding that the stop was proper. A defendant’s presence in a high crime area, coupled with nervousness, startled behavior, flight or suspicious actions upon the approach of officers, is sufficient to justify and investigatory stop. All of those factors were present in the instant case.

Because Williams had the reasonable suspicion necessary to make a Terry stop, he was entitled under La.C.Cr.P. 215.1 to question defendant about his identity and demand an explanation for his actions. The officer also had the authority to frisk defendant’s outer clothing, if he reasonably suspected defendant had a weapon.

When Williams attempted to do a pat-down search, however, defendant pushed himself away from the wall and collided with Deputy Williams. Williams then took defendant by the arm, walked defendant to his police car, and handcuffed defendant, with the intention of arresting him for battery on a police officer. Deputy Williams positioned defendant against the vehicle and again attempted to frisk him. While Deputy Williams was frisking him, defendant kicked back at Williams with both legs, turned, and kicked Deputy Williams in the chest with his knee. When Deputy Williams was knocked off balance, defendant fled on foot across the West-bank Expressway.

Both Deputy Williams and Deputy-Trainee Newby chased defendant. Williams tackled defendant and, after subduing him, advised defendant of his Miranda rights. Deputy Williams then handed defendant over to Deputy-Trainee Newby and another deputy, who escorted defendant back to the patrol car. Newby searched defendant, pursuant to a search incident to arrest, and found the cocaine.

Our next inquiry is whether the search that resulted in the cocaine seizure was valid. A search conducted without a warrant issued upon probable cause is per | flse unreasonable, unless justified by a specific exception to the warrant requirement. When the constitutionality of a warrantless search is at issue on a motion to suppress, the State bears the burden of affirmatively showing that the search was justified by one of the exceptions to the warrant requirement. One recognized exception is where a search is incident to a lawful arrest. In a search incident to a lawful arrest, the officer may search the suspect’s person and the area within his immediate control in order to remove weapons and prevent evidence from being destroyed.

An arrest is lawful when it is based on probable cause. La.C.Cr.P. art. 201 provides:

Arrest is the taking of one person into custody by another. To constitute arrest there must be an actual restraint of the person. The restraint may be imposed by force or may result from the submission of the person arrested to the custody of the one arresting him.

The determination of whether an arrest occurred depends on the totality of the circumstances, but several factors distinguish an arrest from lesser infringements on personal liberty. A prime characteristic of any Fourth Amendment seizure of a person is whether, under the totality of the circumstances, a reasonable person would not consider himself or herself free to leave. Ultimately, whether a person has been arrested depends on circumstances indicating an intent to impose an extended restraint on the person’s liberty. In Fisher, the court found that forcibly restraining the defendant by handcuffing him and putting him in the back seat of |inthe police car constituted an arrest, as no reasonable person could have believed he was “free to go” at that point.

Deputy Williams testified at the suppression hearing that, even though he considered defendant under arrest after defendant was handcuffed, he did not advise defendant that he was under arrest until after defendant ran from him. Nonetheless, Deputy Williams testified that, after he subdued defendant following the foot chase, he advised defendant of his Miranda rights, which clearly indicates that defendant was under arrest at that time. Deputy-Trainee Newby searched defendant and recovered the cocaine in his pocket subsequent to his arrest.

We find that the initial stop and subsequent arrest were lawful and, thus, the cocaine seized from defendant’s pocket following his arrest was the result of a valid search incident to arrest. Based on those findings, we conclude that the seizure did not violate defendant’s Fourth Amendment rights, and the trial court did not err in denying defendant’s motion to suppress.

In his second assignment of error, defendant argues that his request for a mistrial should have been granted. Specifically, he contends that he was entitled to a mistrial when the State made references to the marijuana seized from defendant at the time of his arrest. He further asserts that he was prejudiced by the introduction of this “other crimes” evidence.

After defendant was arrested, Deputy-Trainee Newby seized marijuana from defendant’s pocket. Defendant was charged in a separate bill of information since the possession of marijuana is a misdemeanor offense, triable by a judge. Prior to trial, the parties agreed that the trial judge would hear the marijuana charge and the jury would hear the cocaine charge in the same proceedings. The prosecutor | nHientioned the seizure of the marijuana in her opening statement, without objection by the defense.

Apparently, the prosecution and the defense also agreed to have the State’s expert chemist identify the marijuana outside of the jury’s presence. During direct examination of the chemist, Daniel Wag-uespack, however, the prosecutor produced a package containing all of the narcotics evidence, which included the marijuana. The prosecutor also asked Waguespack if he had tested “a green leafy material” and six off-white colored rocks for this case. Waguespack began to describe the procedure he followed in handling the evidence. Further, during Waguespack’s testimony, the marijuana itself was on display.

Out of the jury’s presence, defense counsel moved for a mistrial, on grounds that the State had produced “other crimes” evidence. The prosecutor argued that the marijuana was admissible as res gestae. The trial judge correctly noted that defense counsel did not make a timely objection during the opening statement. After hearing arguments on the matter, the trial court denied the mistrial motion.

Generally, evidence of other crimes committed by the defendant is inadmissible at trial because of the risk of grave prejudice to the defendant. Moreover, La.C.Cr.P. art. 770 provides, in pertinent part:

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;

| ^Mistrial is a drastic remedy which should be employed only where remarks result in a substantial prejudice sufficient to deprive the defendant of a fair trial. A determination of whether prejudice has resulted lies within the sound discretion of the trial judge.

Initially, we note that defendant is not entitled to raise, on appeal, the prosecutor’s mention of the marijuana in her opening statement because he failed to make a contemporaneous objection as required under La.C.Cr.P. art. 841. Further, the prosecutor’s reference to the marijuana during Waguespack’s testimony arguably falls under the doctrine formerly known as res gestae. Under this doctrine, evidence that constitutes an integral part of the crime is admissible without prior notice to the defense. A close connexity between the charged and uncharged conduct is required to insure that the evidence is not admitted simply to depict the defendant as a bad person, “but rather to complete the story of the crime on trial by proving its immediate context of happenings near in time and place.”

Nevertheless, even if the marijuana reference was not necessary to complete the story of the crime at issue but was merely used to show defendant’s bad character, it is well settled that, on appellate review, improper references to other crimes are subject to the harmless error rule. The test for determining harmless error is whether the verdict actually rendered in the case was surely unattributable to the error.

Defendant concedes, in his appellate brief, that his own counsel mentioned the seizure of the marijuana in his closing argument. Thus, the verdict rendered, in this case, cannot be attributed solely to the erroneous reference by the prosecutor. |1S Defendant’s trial counsel contributed to any prejudice defendant may have suffered. We find that, even if the trial court erred in allowing the prosecutor to refer to the marijuana, its denial of defendant’s mistrial motion was harmless.

In his third assignment of error, defendant argues that his motion to quash the multiple bill should have been granted. Specifically, he argues that the State failed to meet its burden of showing that his guilty plea to one of the predicate felonies in the habitual offender bill was made knowingly and voluntarily.

Here, the two prior felonies alleged by the State were a conviction for distribution of cocaine in Jefferson Parish in 1996 (case number 96-6214), and a conviction for possession of cocaine with intent to distribute in Jefferson Parish in 1990 (case number 89-4982). Defendant allegedly pled guilty to both offenses.

On April 20, 2001, defendant filed a motion to quash the habitual offender bill, alleging that his guilty plea in case number 89-4982 was defective because he was not informed of his right against self-incrimination. Defendant attached, to his motion, a transcript of the guilty plea proceedings in case number 89^1982 and guilty plea/ad-visal of rights forms for both cases (89-4982 and 96-6214).

After a hearing on June 1, 2001, the trial judge denied the motion to quash. On the same day, the court held a habitual offender hearing and found defendant to be a third felony offender.

On appeal, defendant reasserts the arguments he made below. When the State relies on a prior conviction that is based on a guilty plea to prove the defendant’s habitual offender status, it has the burden of proving the existence of that guilty plea and that the defendant was represented by counsel. If the State meets that burden, then the burden shifts to the defendant to produce some affirmative evidence of an infringement of his rights or of a procedural irregularity. If the defendant meets this burden, the burden shifts back to the State to prove the | uconstitutionality of the plea. The State can meet this burden by producing a “perfect” transcript of the guilty plea colloquy.

A “perfect” transcript is one that reflects a voluntary, informed, and express waiver of the constitutional rights expressed in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969): the rights to trial by jury and confrontation, and the privilege against self-incrimination. Anything less than a “perfect” transcript, e.g., a guilty plea form, minute entry, or imperfect transcript, must be weighed by the trial judge, who makes a determination as to whether the defendant’s prior plea was knowing and voluntary.

Defendant maintains that the advisal was insufficient because the trial judge did not specifically inform him that he had the right to remain silent if he went to trial. We have examined the transcript of defendant’s guilty plea proceeding in case number 89-M982, submitted by defendant himself. We find that the transcript reflects that defendant was fully and properly advised of his Boykin rights at the time of his guilty plea. We find no error in the trial judge’s denial of defendant’s motion to quash.

Finally, as is our procedure under La. C.Cr.P. art. 920, we have reviewed the record for errors patent. First, we note that the trial court imposed an illegally lenient habitual offender sentence.

On June 1, 2001, defendant was found to be a third-felony offender and sentenced to 20 years at hard labor pursuant to La. R.S. 15:529.1.

Defendant’s underlying conviction is a felony drug offense committed on May 28, 2000. At the time defendant committed the underlying offense, the applicable portion of the Habitual Offender Law, LSA-R.S. 15:529.1(A)(l)(b)(ii), read as follows:

lnJf the third felony or either of the two prior felonies is a felony defined as a crime of violence under R.S. 14:2(18) or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for more than five years or any other crime punishable by imprisonment for more than twelve years, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

In Act 408 of the 2001 Regular Session, effective June 15, 2001, the Louisiana Leg-Mature amended La. R.S. 15:529.1(A)(1)(b)(ii) to read as follows:

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

This Court has held that the pre-amendment version of La. R.S. 15:529.1 applies when the underlying offense is committed before the effective date of Act 403, even when the sentence is imposed after the effective date of Act 403. As noted above, defendant’s underlying offense was committed on May 28, 2000; thus, under our current jurisprudence, the pre-amendment statute is applicable in this case.

Under the pre-amendment statute, the mandatory minimum sentence for defendant is life imprisonment without benefit of parole, probation, or suspension of sentence. Here, the trial judge sentenced defendant to 20 years at hard labor. Moreover, the trial judge failed to require that the sentence be served without benefit of parole, probation, or suspension of sentence. Defendant’s sentence is, thus, illegally lenient.

This Court has authority under La.C.Cr.P. art. 882 to correct an illegally lenient sentence despite the failure of either party to raise the issue in the district ^J^court or on appeal. Nonetheless, we also recognize that La.C.Cr.P. art. 882 is permissive. Further, this Court has recognized that the trial judge, as in this case, may consider the legislative change to the habitual offender statute as evidence of its intent.

In this case, the trial court acted in response to defense counsel’s request for leniency, based on State v. Dorthey, 623 So.2d 1276 (La.1993). Before imposing sentence, the trial judge commented, “And now in this case I don’t think it is the purposeless imposition of pain and suffering but I do think if I sentence him to life for possession it is grossly out of proportion to the severity of the crime.”

Considering that the trial court gave extensive and specific reasons under Dor-they for deviating from the mandatory minimum sentence, and the State does not challenge the sentence on appeal, we decline to exercise the discretion provided in La.C.Cr.P. art. 882 to correct defendant’s illegally lenient sentence under the facts presented in this case.

Finally, we note that the trial court’s advisal at defendant’s original sentencing of the time limits provided in La.C.Cr.P. art. 930.8 was incomplete. We remand, therefore, for the limited purpose of allowing the district court to inform the defendant of the provisions of Article 930.8 by sending appropriate 117written notice to the defendant within ten days of the rendition of the Court’s opinion and to file written proof of such notice in the record.

Based on the foregoing, defendant’s conviction and sentence are affirmed. We remand for the trial court to inform the defendant of the delays for filing for post-conviction relief.

AFFIRMED AND REMANDED.

      . Although the prosecutor noticed her intent to file an application for supervisory writs to challenge the defendant’s sentence, the record does not reflect that the State filed a writ application.

      . Williams explained that a "compliance hold” is a police technique in which the officer holds the suspect's arm, applying pressure between the elbow and the wrist.

      . La.C.Cr.P. art. 841.

      . See La.C.Cr.P. arts. 521 and 703; State v. Baker, 99-2846, p. 4 (La.App. 4 Cir. 10/18/00), 772 So.2d 225, 227, fn. 1.

      . State v. Ponder, 607 So.2d 857, 859 (La.App. 2 Cir.1992); State v. Belton, 441 So.2d 1195, 1198 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984).

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, supra; State v. Williams, 98-1006 (La.App. 5 Cir. 3/30/99), 735 So.2d 62, writ denied, 99-1077 (La.9/24/99), 747 So.2d 1118.

      . State v. Duckett, 99-314, p. 5 (La.App. 5 Cir. 4/11/01), 740 So.2d 227, 230.

      . State v. Kalie, 96-2650, pp. 1-2 (La.9/19/97), 699 So.2d 879, 880, per curiam; State v. Hill, 01-1372, p. 5 (5 Cir. 5/15/02), 821 So.2d 79, 83.

      . State v. Huntley, 97-0965, p. 2 (La.3/13/98), 708 So.2d 1048, 1049 (quoting United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)).

      . State v. Hughes, 02-11, p. 6 (La.App. 5 Cir. 5/29/02), 821 So.2d 491, 495, writ denied, 02-1782 (La.12/19/02), 833 So.2d 330.

      . State v. Nelson, 02-65, p. 4 (La.App. 5 Cir. 6/26/02), 822 So.2d 796, 799.

      . State v. Hughes, 02-11 atp. 6, 821 So.2d at 495; State v. Martin, 99-123, p. 6 (La.App. 5 Cir. 6/1/99), 738 So.2d 98, 102.

      . Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); State v. Moreno, 619 So.2d 62 (La.1993).

      . State v. Tatum, 466 So.2d 29 (1985); State v. Landry, 99-396, p. 4 (La.App. 5 Cir. 8/31/99), 742 So.2d 986, 989.

      . Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); State v. London, 01-1016, p. 7 (La.App. 5 Cir. 3/13/02), 815 So.2d 162, 165.

      . State v. London, 815 So.2d at 165-166.

      . State v. Fisher, 97-1133, p. 5 (La.9/9/98), 720 So.2d 1179, 1183.

      . State v. Fisher, 720 So.2d at 1183.

      . Id.

      . Id.

      . The judge also heard a misdemeanor charge of battery on a police officer. At the conclusion of trial, the judge found defendant guilty as to both misdemeanor charges. Those convictions are not part of this appeal.

      . State v. Curtis, 99-45, pp. 5-6 (La.App. 5 Cir. 7/27/99), 739 So.2d 931, 937, writs denied, 99-1950 (La. 12/17/99), 751 So.2d 873, 99-2679 (La.3/31/00), 758 So.2d 810.

      . State v. Eskano, 00-101, p. 14 (La.App. 5 Cir. 1/30/01), 779 So.2d 148, 155.

      . Id.

        . See also, State v. Rogers, 98-2501 (La.App. 1 Cir. 9/24/99), 757 So.2d 655, writ denied, 99-3526 (La.6/16/00), 764 So.2d 962 (failure to object during prosecution’s opening statement to alleged reference to “other crimes” evidence precluded appellate review of the claim).

      . State v. Charles, 00-1586, p. 5 (La.App. 5 Cir. 6/27/01), 790 So.2d 705, 708 (quoting State v. Colomb, 98-2813 (La.10/1/99), 747 So.2d 1074.)

      . Id. At 709 (quoting State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94, 102).

      . State v. Shelton, 621 So.2d 769 (La.1993); State v. Flagg, 01-65, pp. 13-14 (La.App. 5 Cir. 7/30/01), 792 So.2d 133, 143, writ denied, 01-2534 (La.9/20/02), 825 So.2d 1159.

      . See State v. Ventress, 01-1165 (La.App. 5 Cir. 4/30/02), 817 So.2d 377, 380-383; State v. Flagg, 01-965 (La.App. 5 Cir. 3/26/02), 815 So.2d 208, 209-212, with one judge dissenting with reasons.

      . State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790. Although the State objected to the leniency of the sentence at the multiple offender proceeding, the State did not argue the illegality of the sentence on appeal.

      . State v. Jordan, 02-820 (La.App. 5 Cir. 12/30/02), 836 So.2d 609.

      . State v. Ventress, 817 So.2d at 384 (citing State v. Clark, 391 So.2d 1174, 1176 (La.1980)).

      . In Dorthey, the supreme court held that the trial judge is empowered to deviate from a mandatory minimum sentence in a habitual offender proceeding.
      If ... the trial judge were to find that the punishment mandated by R.S. 15:529.1 makes no "measurable contribution to acceptable goals of punishment” or that the sentence amounted to nothing more than "the purposeful imposition of pain and suffering” and is "grossly out of proportion to the severity of the crime,” he has the option, indeed the duty, to reduce such sentence to one that would not be constitutionally excessive.

        Dorthey, 623 So.2d at 1280-1281.

      . Defendant's sentence will be served without benefits under the self-activating provisions of La. R.S. 15:301.1 A.

      . See, State v. Stelly, 98-578, p. 6 (La.App. 5 Cir. 12/16/98), 725 So.2d 562, 564.