text:
    CITIBANK SOUTH DAKOTA, N.A., Plaintiff-Appellee v. Karla K. STANFORD, Defendant-Appellant.
    No. 42,191-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 9, 2007.
    W. Jarred Franklin, John W. Evans, Jr., Bossier City, for Appellant.
    Edward F. Bukaty, III, Metairie, Warren W. Wingerter, Jr., for Appellee.
    Before BROWN, GASKINS, and MOORE, JJ.
   BROWN, Chief Judge.

11 Defendant, Karla K. Stanford, appeals from the city court’s judgment granting a motion for summary judgment in favor of plaintiff, Citibank South Dakota, N.A. For the following reasons we reverse and remand.

Facts

In June 2004, Citibank filed suit against Stanford seeking an amount allegedly owed on a VISA credit card account. Stanford filed an answer denying Citibank’s allegations and asserting that Citibank’s attorney never provided her with verification of the purported debt. Citibank filed a motion for summary judgment. Attached to the motion was an affidavit executed by Leola Phenix, identified as a “designated agent” of Citibank who, in pertinent part, asserted that she was personally familiar with the account at issue and that the balance due by Stanford was $2,908.60 “as more fully described in Exhibit I attached hereto and made a part hereof....” However, there was no Exhibit I attached to the affidavit.

In opposition to the motion, Stanford filed her own affidavit that stated as follows:

I have never entered into any agreement with the Plaintiff in this matter regarding borrowing money from it or the repayment of any money allegedly advanced to me by the Plaintiff. I have never entered into any “Card Agreement” as referred to by the attorney for the Plaintiff in this matter. I’ve never entered into any agreement with the attorney for the Plaintiff in this matter for the payment of any money to him, either. I have requested verification of the debt, which is the subject of this lawsuit from both the Plaintiff and from its attorney of record, but have never received same from either party. I have never been provided with any promissory note or other form of promise to pay which purports to evidence any debt owed by me to the Plaintiff. I do not believe that I owe the Plaintiff any money, nor that I owe any money to the Plaintiffs attorney, Edward Bukaty.

IgOn January 5, 2005, the trial court heard argument and then denied Citibank’s motion for summary judgment. Almost a year later, in December 2005, Citibank filed a pleading entitled “Motion to Reset Summary Judgment.” Filed with Citibank’s motion was a memorandum in support of the motion for summary judgment with the following attachments: 1) an unsigned copy of a credit card agreement; 2) copies of monthly statements addressed to Stanford showing usage and payments on the account; and 3) a copy of a “Professional Litigation, LLC” check allegedly signed by Stanford and payable to Citibank. None of these attachments, however, were accompanied by an affidavit explaining their relation to this case or verifying their authenticity. Even so, the trial court in June 2006 granted summary judgment in favor of Citibank. It is this judgment from which defendant appealed.

Discussion

On appeal, Stanford argues that the trial court erred in granting Citibank’s second motion for summary judgment. She argues that nothing had factually changed subsequent to the original hearing on Citibank’s initial motion for summary judgment in January 2005. Stanford also asserts that the trial court failed to give any weight to her affidavit regarding the disputed account agreement and contested amounts.

| oOn the other hand, Citibank argues on appeal that when plaintiff filed its “new motion” for summary judgment, it submitted new evidence, including the monthly statements and a signed check; thus, the court properly rendered judgment in its favor. Citibank’s position is that Stanford did not have to sign a contract as she agreed to the terms of the credit card agreement by her use of the card as demonstrated by the monthly statements.

An appellate court reviews a grant of summary judgment de novo. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.07/05/94), 639 So.2d 730; Kelly v. City of Bossier City, 41,705 (La.App.2d Cir.12/13/06), 945 So.2d 229. Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein; sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. La. C.C.P. art. 967(A). A document that is not an affidavit, that is not sworn to, or that is not certified or attached to an affidavit, has no evidentiary value on a motion for summary judgment. Wells v. Red River Parish Police Jury, 39,445 (La. App.2d Cir.03/02/05), 895 So.2d 676; Boland v. West Feliciana Parish Police Jury, 03-1297 (La.App. 1st Cir.06/25/04), 878 So.2d 808, writ denied, 04-2286 (La.11/24/04), 888 So.2d 231.

In the instant case, the only difference in the evidence offered in support of the first motion for summary judgment and the evidence offered in support of the subsequent motion for summary judgment consisted of copies of an example of an agreement, monthly statements, and a check without a sworn affidavit of explanation and verification. As presented, these items were not competent evidence and should not have been considered. Accordingly, the trial court should have denied summary judgment.

Conclusion

For the reasons set forth above, the trial court’s grant of summary judgment is hereby reversed, and the case is remanded to the Shreveport City Court for further proceedings. Costs are assessed to plaintiff-appellee, Citibank South Dakota, N.A.

REVERSED AND REMANDED.

      . On January 25, 2006, the trial court granted summary judgment in Citibank’s favor; however, Stanford subsequently filed a motion to annul the judgment arguing that she had filed an exception of res judicata on January 12, 2006, that apparently was overlooked by the trial court. Rather than set the matter for hearing, the trial court simply signed an order granting the motion and annulling the January 25, 2006 judgment. Then, on February 21, 2006, Citibank filed an ex parte motion to vacate the order nullifying the judgment. In June 2006, after conducting a hearing, the trial court set aside its annulment of the-January 2006 summary judgment. The effect of the new judgment was to reinstate summary judgment in favor of Citibank. This appeal followed.

      . We note that the agreement filed was dated 2003 while the credit card use began in 2001. How the two were connected is not explained. A review of the alleged monthly statements shows that the credit card was primarily used to withdraw money from ATMs located at Shreveport/Bossier casinos. A further review shows that the last use of the card was the withdrawal of $215 on May 22, 2003. No payments were made nor was the card used thereafter. However, each month thereafter, the bill increased by the imposition of a $35 ‘'overcredit limit fee," a finance charge and an advance finance charge (the last exhibit presented was dated March 22, 2004). Also, a $35 late fee was charged for each month until December 2003. Stanford also disputes the legal efficacy of these fees and charges. Any new motion for summary judgment needs to address the law concerning these charges.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Terry Glen HILL, Appellant.
    No. 42,025-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 9, 2007.

      William J. Franklin, for Appellant.
    Terry Glen Hill, Pro Se.
    Paul J. Carmouche, District Attorney, John F. McWilliams, Jr., Edward M. Bros-sette, Geya D. Williams Prudhomme, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, GASKINS and DREW, JJ.
   WILLIAMS, J.

hA Caddo Parish grand jury returned an indictment charging the defendant, Terry Glen Hill, with the second degree murder of Eric George, a violation of LSA-R.S. 14:30.1. Following a jury trial, the defendant was found guilty as charged and was sentenced to life in prison at hard labor without benefit of probation, parole or suspension of sentence. For the reasons that follow, we affirm the defendant’s conviction and sentence.

FACTS

On June 28, 2005, a group of men, including the defendant and George, gathered behind a liquor store on Blanche Street, in Shreveport, Louisiana, to play dominoes. At some point during the evening, the defendant left the scene and returned carrying a hollow metal pipe, approximately four feet long. At that time, George was seated at a table playing dominoes with his back to the direction from which the defendant approached. The defendant spoke to George, and when George stood up and began to turn around to face the defendant, the defendant struck him on the side of the head with the metal pipe.

It is not entirely clear from the testimony what precipitated the attack. The testimony indicated that George had somehow obtained a watch belonging to the defendant and apparently had refused to return it. None of the witnesses who were present during the attack had knowledge of any serious disagreement between George and the defendant. George and the defendant were described as being friends of each other, and the defendant’s attack upon George was unexpected.

William Jackson was one of the witnesses to the incident. He ^testified that he was seated at the table playing dominoes when he heard the defendant state, “I’m going to get mine.” The defendant left the scene and returned a while later carrying a metal pipe. He stated that the defendant approached George from behind and “just drew back and hit him like he was trying to knock a home run.” Similarly, George’s brother, Darrell Washington, testified that the defendant’s swing was “more like hitting a baseball.” Another witness, Gary Mitchell, testified that the defendant swung “like he was trying to hit a ball.”

Immediately after the attack, Washington said something to the defendant about striking George, and the defendant began swinging the pipe at Washington. Washington managed to raise his arm, presumably to avoid being hit on the head, and was struck on the arm.

After striking Washington, the defendant approached George, who was lying unconscious on the ground. He took the watch from George’s arm and fled the scene.

George was transported to Louisiana State University Health Sciences Center, where tests revealed that he had suffered a subarachnoid hemorrhage. He was placed on life support and never regained consciousness. He was pronounced dead on July 2, 2005. The coroner determined the cause of George’s death was “acute myocardial ischemia” and “severe closed-head injuries.”

The defendant was arrested on July 11, 2005. After signing a waiver of rights form, he gave a recorded statement in which he admitted that he struck George with the pipe. A Caddo Parish grand jury returned anjjindictment charging the defendant with second degree murder. Following a jury trial, the defendant was found guilty as charged. The trial court denied the defendant’s “Motion for Post Verdict Modification of Verdict” and sentenced him to life in prison at hard labor without benefit of probation, parole or suspension of sentence. This appeal followed.

DISCUSSION

Sufficiency of the Evidence

In his first assignment of error, the defendant contends the evidence was insufficient to prove guilt of the offense of second degree murder beyond a reasonable doubt. Specifically, he argues that there was no evidence of robbery or specific intent to kill or inflict great bodily harm. He further contends sufficient provocation existed to negate specific intent.

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proven beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992).

The standard of appellate review for a sufficiency claim, as set forth in Jackson v. Virginia, sttpra, is now legislatively embodied in LSA-C.Cr.P. part. 821. This standard does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. The reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.

LSA-R.S. 14:30.1 provides, in pertinent part:

A. Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm; or
(2)(a) When the offender is engaged in the perpetration or attempted perpetration of aggravated rape, forcible rape, aggravated arson, aggravated burglary, aggravated kidnapping, second degree kidnapping, aggravated escape, assault by drive-by shooting, armed robbery, first degree robbery, second degree robbery, simple robbery, cruelty to juveniles, second degree cruelty to juveniles, or terrorism, even though he has no intent to kill or to inflict great bodily harm.
* * ⅜

In this case, there is no contention that the defendant was engaged in the perpetration of a robbery or any of the other felonies enumerated in LSA-R.S. 14:30.1(A)(2)(a) at the time of the offense. Thus, no further discussion of the defendant’s argument with regard to robbery is necessary.

The main crux of the defendant’s argument is that, at most, the evidence is sufficient to support a conviction of manslaughter, rather than a |ficonviction of second degree murder. Thus, the primary issues in this matter are whether the defendant possessed the requisite specific intent to kill or inflict great bodily harm upon George and whether sufficient provocation existed to negate specific intent.

Specific intent is that state of mind that exists when the circumstances indicate the offender actively desired the proscribed criminal consequences to follow his act or failure to act. LSA-R.S. 14:10(1); State v. Lindsey, 543 So.2d 886 (La.1989), cert. denied, 494 U.S. 1074, 110 S.Ct. 1796, 108 L.Ed.2d 798 (1990). Specific intent can be formed in an instant. State v. Harris, 2001-2730 (La.1/19/05), 892 So.2d 1238; State v. Cousan, 94-2503 (La.11/25/96), 684 So.2d 382. Specific intent need not be proven as a fact; it may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Graham, 420 So.2d 1126 (La.1982); State v. Murray, 36,137 (La. App.2d Cir.8/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.9/05/03), 852 So.2d 1020. Specific intent may be established by circumstantial evidence alone if every reasonable hypothesis of innocence is excluded. State v. Cousan, supra. The determination of whether the requisite intent is present in a criminal case is for the trier of fact. State v. Jasper, 28,187 (La.App.2d Cir.6/26/96), 677 So.2d 553, writ denied, 96-1897 (La.2/21/97), 688 So.2d 521; State v. Brown, 618 So.2d 629 (La.App. 2d Cir. 1993), writ denied, 624 So.2d 1222 (La.1993).

Manslaughter is a homicide which would be either first or second degree murder, but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average ^person of his cool reflection and self-control. LSA-R.S. 14:31(A)(1). The elements of “sudden passion” and “heat of blood” are mitigatory factors in the nature of a defense, and when the defendant establishes such factors by a preponderance of the evidence, a verdict for murder is inappropriate. State v. Leger, 2005-0011 (La.7/10/06), 936 So.2d 108; State v. Deal, 2000-0434 (La.11/28/01), 802 So.2d 1254, 1260, cert. denied, 537 U.S. 828, 123 S.Ct. 124, 154 L.Ed.2d 42 (2002). In addition, provocation and time for cooling are questions for the jury to be determined under the standard of the average or ordinary person, one with ordinary self-control. Id. “If a man unreasonably permits his impulse and passion to obscure his judgment, he will be fully responsible for the consequences of his act.” Leger, supra, quoting Reporter’s Comment to LSA-R.S. 14:31.

After reviewing the record, we find that the evidence in this case is sufficient to support the defendant’s conviction for second degree murder. It is undisputed that the defendant struck the unarmed George in the head with a metal pipe using great force. The requisite specific intent to kill or inflict great bodily harm was demonstrated by the weapon used and by the great force used. The testimony revealed that the defendant wielded the metal pipe as if he was “hitting a ball” and “trying to knock a home run.” Simply stated, when an individual strikes another in the head with a four-foot long metal pipe with such great force, the jury can reasonably find that the offender actively desired the prescribed criminal consequences to follow his act.

With regard to provocation, the evidence indicates that the defendant |7was responding to a trivial matter, the possession of a watch, and that he had ample time to allow his anger to abate. The defendant left the scene and returned later with the metal pipe. Furthermore, he apparently spoke to George prior to striking him. While the witnesses had some contradictions in their testimony, the testimony made it clear that the defendant was not in a highly agitated state when he struck George. Instead, he was described as speaking in a voice that was calm and as being in a state “kind of in between” angry and calm when he swung the pipe. Furthermore, the witnesses did not note any argument between the defendant and George, much less any fighting, prior to the defendant striking George in the head. Thus, the jury could reasonably have concluded that an average person’s blood would have cooled, even if “heat of blood” existed prior to the time that the defendant committed the offense.

This assignment lacks merit.

Excessive Sentence

The defendant also contends the sentence imposed is excessive. He asserts that the sentence is grossly disproportionate to the crime and “represents nothing more than the needless imposition of pain and suffering.” According to the defendant, nothing in the record indicates that the sentence is necessary to avoid any further criminal activity by him or damage to society.

The defendant was convicted of second degree murder. The mandatory sentence for second degree murder is punishment by life imprisonment at hard labor without benefit of parole, probation or ^suspension of sentence. LSA-R.S. 14:30.1(B). The argument that the mandatory life sentence for second degree murder is a violation of the prohibition against excessive punishment in the Louisiana Constitution has been repeatedly rejected. State v. Parker, 416 So.2d 545 (La.1982); State v. Brooks, 350 So.2d 1174 (La.1977); State v. Roberson, 40,809 (La.App.2d Cir.4/19/06), 929 So.2d 789.

In State v. Dorthey, 623 So.2d 1276 (La.1993) and State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, the supreme court addressed the issue of mandatory sentences in the context of the habitual offender law. The court held that the downward departure from a mandatory minimum sentence may occur if the defendant rebuts the presumption of constitutionality by showing clear and convincing evidence that he is exceptional, namely, that he is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the gravity of the offense, the culpability of the offender, and the circumstances of the case. This rule has been extended to mandatory sentences beyond habitual offender cases. See State v. Fobbs, 99-1024 (La.9/24/99), 744 So.2d 1274; State v. Chandler, 41,063 (La.App.2d Cir.9/8/06), 939 So.2d 574.

In this case, the mandatory sentence imposed is not illegal, grossly disproportionate to the severity of the offense nor shocking to the sense of justice. The defendant neither argued nor provided any evidence to show that he is exceptional or that there were unusual circumstances not considered in this case. The evidence demonstrated that the defendant approached the unarmed victim from behind and struck him forcefully on |sthe head with a metal pipe. The violent and heinous nature of the offense justifies the mandatory life sentence. This assignment is therefore without merit.

CONCLUSION

For the foregoing reasons, we affirm the defendant’s conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Nathaniel MITCHELL, Appellant.
    No. 41,931-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 9, 2007.

      Louisiana Appellate Project, by Margaret S. Sollars, for Appellant.
    Nathaniel Mitchell, Pro Se.
    J. Schuyler Marvin, District Attorney, Sherburne Sentell, III, John M. Lawrence, Assistant District Attorneys, for Appellee.
    Before STEWART, CARAWAY and MOORE, JJ.
   MOORE, J.

| Nathaniel Mitchell appeals his conviction and sentence for possession of cocaine and marijuana with intent to distribute. After a remand from this court, the district court resentenced him to 15 years at hard labor, including five years without benefits, on the cocaine charge, and five years at hard labor and a fine of $10,000 on the marijuana charge, but made these sentences concurrent instead of consecutive. For the reasons expressed, we amend the sentence to delete the fine but otherwise affirm.

Procedural Background

This court thoroughly recited the factual basis in Mitchell’s initial appeal, State v. Mitchell, 37,916 (La.App. 2 Cir. 3/3/04), 869 So.2d 276, writ denied, 2004-0797 (La.9/24/04), 882 So.2d 1168, cert. denied, 543 U.S. 1068, 125 S.Ct. 905, 160 L.Ed.2d 801 (2005). For the present purposes, it suffices to note that Mitchell was driving an older model GMC van on Interstate 20 through Webster Parish when a sheriffs deputy stopped him for improper lane usage and suspected impaired driving. Because of Mitchell’s evasive conduct, the deputy asked his consent to search the van; Mitchell agreed. The search disclosed a fanny pack containing 36 individual bags of crack cocaine (three more were found in a subsequent search); six Baggies of marijuana; six marijuana “blunts”; $1,135.00 in currency; an Intratec 9mm handgun with a full magazine of 31 rounds; a .40 cal. Ruger pistol, with two loaded magazines, beside the driver’s seat; and three bags of coffee beans.

Mitchell was arrested and charged with possession of cocaine with intent to distribute, La. R.S. 40:967; possession of marijuana with intent to distribute, La. R.S. 40:966; and two counts of conspiracy to commit these | ¡.crimes, La. R.S. 40:979. A jury found him guilty as charged on all counts. The district court sentenced him to 15 years at hard labor (including two years without benefits) on the cocaine charge, and five years for conspiracy to commit this crime, to run concurrently; and 10 years at hard labor on the marijuana charge, and five years for conspiracy to commit that crime, to run concurrently; but ordered the cocaine and marijuana sentences to run consecutively. On appeal, this court affirmed the stop and search, as well as the sufficiency of the evidence on the charges of possession with intent to distribute. However, we reversed the conspiracy convictions and vacated all sentences, remanding the case for the district court to reconsider the length and consecutive nature of the sentences. State v. Mitchell, supra.

On remand, the district court sentenced Mitchell to 15 years at hard labor (including five years without benefits) on the cocaine charge; five years at hard labor, plus a fine of $10,000 and costs, on the marijuana charge; and made the sentences consecutive. Mitchell again appealed; in an unpublished opinion, this court again affirmed both convictions but vacated the sentences for failure to state a particular justification for consecutive imposition as required by La. C. Cr. P. art. 883; we also ordered the court to hold a hearing to determine indigency in accord with State v. Collins, 32,409 (La.App. 2 Cir. 9/22/99), 763 So.2d 618 (on rehearing). State v. Mitchell, 39,913 (La.App. 2 Cir. 8/17/05), 909 So.2d 45 (table).

On second remand, the district court imposed the same individual sentences: 15 years at hard labor (including five years without benefits) on the cocaine charge, and five years at hard labor, plus a $10,000 fine andjjcosts, on the marijuana charge. However, the court directed these sentences to be concurrent instead of consecutive. Mitchell then took the instant appeal. He is represented by the Louisiana Appellate Project, but has also filed a pro se brief.

Discussion: Excessive Sentence

Both through counsel and pro se, Mitchell urges his sentence is excessive. He shows that the presentence investigation report (“PSI”) recommended a sentence of no more than 10 years on each count, and moreover the PSI was riddled with factual errors. He contends that the district court failed to articulate any reasons for sentence, when in fact his criminal history, the small quantity of drugs found, and the legally registered firearms all prove he did not pose any unusual risk of danger to the public. He also submits that he is unable to pay the $10,000 fine because he has no independent assets and, upon his release, he will be 60 years old and have limited employment options because of his criminal record. He urges this court either to vacate the sentences previously imposed and remand for appropriate sentencing, or to enter appropriate sentences on its own.

The state responds that Mitchell’s sentence is within statutory limits. It further argues that the concurrent five-year sentence for possession of marijuana with intent to distribute was fully supported by sentencing factors considered upon original sentencing. The state contends that Mitchell poses a significant danger to public safety as a second offender who possessed two deadly firearms that could be used for violent purposes. The state also ^submits that the fine was authorized by La. R.S. 40:967 B(4)(b); further, Mitchell admitted having numerous industrial skills and technical certifications, and being gainfully employed from 1989 until 2000, and should thus be able to pay the fine.

Appellate review of sentences for alleged excessiveness is a two-pronged inquiry. First, the record must show that the sentencing court complied with La. C. Cr. P. art. 894.1. The court need not list every aggravating or mitigating factor so long as the record reflects that it adequately considered the guidelines. State v. Smith, 433 So.2d 688 (La.1983); State v. Quiambao, 36,587 (La.App. 2 Cir. 12/11/02), 833 So.2d 1103, writ denied, 2003-0477 (La.5/16/03), 843 So.2d 1130. When the record shows an adequate factual basis for the sentence imposed, remand is unnecessary even in the absence of full compliance with the article. State v. Lanclos, 419 So.2d 475 (La.1982). In other words, evidence elsewhere of record may clearly illumine the sentencing choice. State v. Davis, 449 So.2d 452 (La.1984); State v. Franklin, 31,068 (La.App. 2 Cir. 9/23/98), 719 So.2d 578, writ denied, 98-2982 (La.3/19/99), 739 So.2d 781. The court is not required to assign any particular weight to any specific matters at sentencing. State v. Quiambao, supra.

In the first appeal, this court “admonished the trial court to articulate more factors to support the consecutive sentences,” and found, on first remand, that the court “only recited the same factors it stated in the original sentencing.” Mitchell correctly shows that at the second re-sentencing, the Lcourt made no effort to expand on its earlier findings; however, because the court made the sentences concurrent, in accordance with the presumption of Art. 883, it was no longer required to fashion a particular justification for consecutive imposition. Instead, the court needed only to show adequate consideration of the guidelines of Art. 894.1, and the court’s findings at the two prior hearings, related in detail in this court’s two prior opinions, were sufficient to create a factual basis for sentence.

The second prong is constitutional excessiveness. A sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 92-3120 (La.9/10/93), 623 So.2d 1276; State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is deemed grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice or makes no reasonable contribution to acceptable penal goals. State v. Guzman, 99-1753 (La.5/16/00), 769 So.2d 1158.

The instant concurrent sentences, though lengthy, do not shock the sense of justice. With the district court, we note several positive factors: Mitchell was a high school graduate, served in the Marine Corps from 1973 until 1989 with an honorable discharge, worked all his life and supported his four children. On the negative side, Mitchell is a second-felony offender, and the circumstances of these offenses— the manner of packaging the crack and marijuana, the significant amount of cash, the two semiautomatic handguns with plenty of ammo — suggest some level of 1 ¿involvement in the drug trade. The sentence is not grossly disproportionate.

Mitchell next contends that the PSI contained errors upon which the district court relied in passing sentence. He correctly asserts that the defendant is entitled to review the PSI and traverse any errors it may contain. State v. Bosworth, 360 So.2d 173 (La.1978). However, the record does not show that Mitchell traversed his PSI or proved any errors therein beyond those omissions already noted by this court in the prior opinion. We perceive no prejudicial error. State v. Washington, 414 So.2d 313 (La.1982); State v. Helsley, 457 So.2d 707 (La.App. 2 Cir.1984).

Mitchell’s complaint with the $10,000 fine, however, has merit. In our prior opinion, we directed the district court to hold a hearing pursuant to State v. Collins, supra, and stated, “If the trial court determines that Mitchell does not have the financial means to pay, it should delete the default jail time from Mitchell’s sentence.” At this hearing, Mitchell admitted that he was a certified diesel mechanic and technician, and would be able to get some kind of employment after his release. He also testified, however, that after six years in prison he lacked any income or assets. The district court stated, “The court does not believe that Mr. Mitchell has the financial means to pay a fine in this matter,” but then it incongruously imposed the same fine as before. The record fully supports the district court’s initial finding that Mitchell is utterly without means to pay; the imposition of the fine is an abuse of discretion. The sentence will be amended to delete it.

fyFor the reasons expressed, Mitchell’s sentence is amended to remove the imposition of the fine, but is otherwise affirmed.

Other Arguments

By his first pro se assignment of error, Mitchell urges that he received ineffective assistance of counsel. He raises a litany of perceived errors, but this court has already considered and rejected all claims of ineffective assistance at trial. State v. Mitchell, 37,916 at pp. 13-19, 869 So.2d at 286-289. We will not revisit them here. He further contends that appointed trial counsel was incompetent for failing to help him prepare a pro se brief in the second appeal, but the record shows that the Louisiana Appellate Project had already been appointed to represent him. Contrary to Mitchell’s argument, there is no error or conflict of interest in trial counsel’s failure to provide appellate representation.

By his third pro se assignment of error, Mitchell complains of “judicial prejudice.” The gist of this diffuse argument seems to be that the district court allowed Mitchell to be represented by obviously incompetent trial counsel, thereby denying him a fair trial. Mitchell has not stated, however, any grounds which, if timely raised, would have warranted recusing the district court. La. C. Cr. P. art. 671. Mitchell has not even shown that the concept of judicial prejudice is recognized as a basis of appellate relief in Louisiana; his principal citation, Jones v. White, 992 F.2d 1548 (11 Cir.1993), cert. denied, 510 U.S. 967, 114 S.Ct. 448, 126 L.Ed.2d 381 (1993), rejected a claim of prosecutorial bias, and obviously has no bearing on the instant case. This assignment lacks merit.

| ¿Conclusion

Finally, we have reviewed the entire record and find nothing we deem error patent. La. C. Cr. P. art. 920(2). For the reasons expressed, Nathaniel Mitchell’s conviction is affirmed; the sentence is amended to remove the imposition of the fine, but is otherwise affirmed.

CONVICTION AFFIRMED; SENTENCE AMENDED AND AFFIRMED.

      . In its "Law and Argument” section, however, the State misstates the fíne as $1,000; it is actually $10,000.

      . The court did not specify jail time in default of payment, but this is implicit in any sentence that includes a fine or costs. La. C. Cr. P. art. 884.


author: GASKINS, J.

text:
    STATE of Louisiana, Appellee v. Bobby WILTCHER, Jr., Appellant.
    No. 41,981-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 9, 2007.

      Mark O. Foster, Louisiana Appellate Project, for Appellant.
    Robert W. Levy, District Attorney, Laurie Whitten, Cliff Strider, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, GASKINS and DREW, JJ.
   GASKINS, J.

hThe defendant, Bobby Wiltcher, Jr., was convicted of driving while intoxicated-fourth offense, a violation of La. R.S. 14:98. He was sentenced to 25 years at hard labor without benefit of probation, parole, or suspension of sentence, to be served consecutively with the sentence he was already serving for a probation revocation. The defendant appeals. We affirm his conviction and sentence.

FACTS

Shortly after midnight on August 18, 2004, Investigator George Webb of the Lincoln Parish Sheriffs Office responded to a call regarding a tree blocking a portion of Highway 167 between Dubach and Ruston, Louisiana. As he approached the vehicles stopped on the highway, Investigator Webb noticed an individual standing outside of a vehicle urinating on the side of the road. Investigator Webb stopped his patrol ear behind the vehicle and activated his emergency lights while shining his spotlight into the vehicle. The person who had been outside the vehicle got back inside it on the passenger side. Investigator Webb approached the vehicle with the intention of warning the individual about his behavior. As he neared the vehicle, Investigator Webb smelled a strong odor of alcohol.

Changing the focus of his stop to determining the source of the odor, Investigator Webb approached the driver’s side of the vehicle. The defendant was in the driver’s seat with his hands on the steering wheel, and the engine was running. Investigator Webb asked the defendant to exit the vehicle. The defendant complied with the request; when asked to produce his driver’s license, he responded that he did not have one. Investigator 1 ¡Webb then advised the defendant of his Miranda rights. When asked how much he had had to drink that night, the defendant said, “I’ve had too much.” The defendant agreed to submit to field sobriety testing and performed poorly on the tests administered by Investigator Webb.

After the testing, Investigator Webb placed the defendant under arrest and transported him to the Lincoln Parish Detention Center. After the defendant was advised of his rights regarding the Intoxi-lyzer 5000, the defendant refused to submit to the breath analyzer testing. A review of the defendant’s criminal history revealed numerous arrests and convictions for DWI. The defendant was eventually charged with DWI-fourth offense.

The defendant was convicted as charged following a jury trial in February 2006. His motions for new trial and for post verdict judgment of acquittal were denied.

In May 2006, he was sentenced to 25 years at hard labor without benefit of probation, parole, or suspension of sentence, to be served consecutively with the sentence the defendant was already serving for a probation revocation. His motion to reconsider was denied.

SUFFICIENCY OF EVIDENCE

The defendant argues that the state failed to prove all essential elements of its case. In particular, he claims that the state did not prove he was actually operating his vehicle while intoxicated. The state contends that it presented ample evidence to support the conviction.

| .-¡¿aw

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App.2d Cir.8/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.9/5/03), 852 So.2d 1020. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstantial evidence must be sufficient for a | national trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 1998-2723 (La.2/5/99), 737 So.2d 747.

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35.

The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 1999-0023 (La.1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).

La. R.S. 14:98 provides, in part, that the crime of operating a vehicle while intoxicated is the operating of any motor vehicle when the operator is under the influence of alcoholic beverages or the operator’s blood alcohol concentration is 0.08 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood.

The term “operating” is broader than the term “driving.” Operating in some circumstances may mean handling the controls of a vehicle. The definition of operating, however, should not dictate the result in all cases. |sThe result should be determined by the sufficiency of the evidence in each particular case. City of Bastrop v. Paxton, 457 So.2d 168 (La.App. 2d Cir. 1984).

To convict the defendant of DWI, the prosecution need only prove that he was operating a vehicle and that he was under the influence of alcohol or a controlled dangerous substance. La. R.S. 14:98; State v. Presson, 39,688 (La.App.2d Cir.4/6/05), 900 So.2d 240; State v. Taylor, 38,574 (La.App.2d Cir.8/18/04), 880 So.2d 197. Some behavioral manifestations, independent of any scientific test, are sufficient to support a charge of driving while intoxicated. State v. McDonald, 33,013 (La.App.2d Cir.3/1/00), 754 So.2d 382. It is not necessary that a conviction of DWI be based upon a blood or breath alcohol test, and the observations of an arresting officer may be sufficient to establish a defendant’s guilt. Intoxication is an observable condition about which a witness may testify. State v. Allen, 440 So.2d 1330 (La.1983); State v. Blackburn, 37,918 (La. App.2d Cir.1/28/04), 865 So.2d 912; State v. McDonald, supra.

Discussion

When asked how much he had been drinking, the defendant replied “I’ve had too much.” The defendant agreed to submit to field sobriety testing. Investigator Webb performed several tests including the walk-and-turn and the horizontal gaze nystagmus. The defendant performed poorly on all of the tests administered. In his testimony, Investigator Webb described in great detail the procedures employed during the testing. Investigator Webb noticed that the defendant swayed as he was |fistanding outside the vehicle, his speech was slurred, and he was unsteady on his feet while walking during the testing. Considering the totality of the circumstances, including the odor of alcoholic beverages, the swaying, the slurred speech, and the poor performance on the field sobriety testing, Investigator Webb opined that the defendant was intoxicated and placed him under arrest for DWI.

After the defendant was arrested, Investigator Webb went back to the vehicle and observed full and empty Budweiser beer bottles throughout the passenger compartment of the vehicle. There were both opened and unopened bottles that still contained liquid. Investigator Webb testified he transported the defendant to the Lincoln Parish Detention Center. At the detention center, Investigator Webb advised the defendant of his rights relating to chemical testing. The defendant refused to submit to the testing and also refused to sign the rights form indicating his refusal. Investigator Webb completed the form, certifying the defendant’s refusal to cooperate. Investigator Webb asked the defendant a series of standard questions including whether the defendant had any physical defects, whether he had taken any medicine within the last 24 hours, and whether he was driving the vehicle. The defendant responded negatively to each of these questions.

During a lengthy cross-examination, Investigator Webb was questioned regarding the field sobriety testing he performed. According to Investigator Webb, the defendant did not indicate he had any type of physical defect which could have altered the field sobriety testing results. Investigator Webb testified that he believed he employed the proper |7procedures during the testing process. He also stated that he did not believe that all results would be invalidated by a failure to adhere to the proper testing standards.

The state also presented the testimony of Courtney Reed, a passenger in the vehicle at the time of the defendant’s arrest. Mr. Reed testified that the defendant picked him up from his trailer home sometime during the early evening prior to the incident. Mr. Reed stated he and the defendant rode around in the defendant’s vehicle for three to four hours drinking beers with no particular destination in mind. The defendant was driving the vehicle and drank beers as the pair rode around. Mr. Reed testified they stopped to pick up Tommy Warrick and then decided to travel to Ruston. While in route to Ruston, the defendant pulled the vehicle over and stopped. The group had been sitting in the vehicle for a few minutes when they encountered the deputy.

Mr. Reed testified the defendant was arrested while he and Mr. Warrick were initially told they could leave. Thereafter, Mr. Warrick was found to have an outstanding warrant and was also arrested. Mr. Reed was issued a ticket for an open container violation. Mr. Reed stated he had consumed approximately one-half a case of beer prior to the encounter with the deputy, but he was unaware of how much the defendant had to drink that evening. The witness was able to state that he knew the defendant had been drinking after picking up Mr. Warrick, but was unsure of the defendant’s prior consumption. Mr. Reed testified he was unsure if the defendant was intoxicated. Mr. Reed admitted to having been convicted of DWI 11 times, | sand that he had been convicted of DWI-third offense 11 months prior to the defendant’s instant arrest.

Billy Meredith was the defendant’s probation agent when the defendant was arrested on the instant charge. Mr. Meredith testified the defendant made a statement to him admitting he had been drinking beer during the morning hours on the day of the arrest.

The defense called one witness to testify, Joseph Wright, a former correctional officer and shift supervisor for the Lincoln Parish Detention Center. According to Mr. Wright, he had no independent recollection of the defendant or his arrival at the detention center. Mr. Wright testified it was the general policy of the detention center to separate individuals who were intoxicated from the general population. Mr. Wright further testified that, through his experiences, he was able to recognize an individual who was intoxicated. In reviewing records from the detention center known as the “head count,” Mr. Wright noted that the defendant had been brought to the detention center and placed in general population when he should have gone to a holding cell. Mr. Wright stated he did not believe the detention center’s policy, regarding placement of intoxicated prisoners, was followed with the defendant. In attempting to explain this fact, Mr. Wright testified it was possible that the defendant had been inappropriately placed and not moved prior to a shift change. Mr. Wright stated he may not have come in contact with the defendant on the night of the arrest and this could have led to the defendant’s incorrect placement. He also noted that they were busy at the | [Retention center on the night of the defendant’s arrest, booking in 14 individuals.

We find that the state’s evidence was sufficient to establish the essential elements of the crime. While the defendant argues the evidence presented for each element could have been interpreted differently, this court should not reweigh the evidence or the credibility determinations made by the jury in this case. Evidence presented by the state was sufficient to establish that the defendant was in fact operating his vehicle when he encountered Investigator Webb. At the time of the encounter, the defendant smelled of alcohol, exhibited signs of being intoxicated, and admitted to having too much to drink. The state was able to substantiate the fact that the defendant was the driver of the vehicle through the testimony of a passenger in the defendant’s vehicle. The jury chose to believe Investigator Webb’s determination that the defendant was intoxicated. The investigator was extensively cross-examined as to alleged inaccuracies in the field sobriety testing; however, the jury apparently chose to dismiss the defendant’s contentions that the testing was flawed and the results were therefore invalid. Additionally, the defendant stipulated to the fact that he had at least three previous convictions for DWI. In viewing the evidence in the light most favorable to the prosecution, there was sufficient evidence to prove the essential elements of the charged offense.

This assignment of error is without merit.

ImOTHER CRIMES EVIDENCE

The defendant alleges the trial court erred in allowing the state to present prejudicial evidence of other crimes evidence in that the state included four prior convictions for DWI in an attempt to establish the predicate offenses for the DWI-fourth offense. The defendant argues that the trial court should not have permitted the state to identify the offense number for the prior convictions. The state contends the evidence was presented to establish the necessary predicate offenses and the jury was entitled to hear a reading of the entire bill of information for predicate offenses.

Law

La C. Cr. P. art. 483 provides that if it is necessary to allege a prior conviction in an indictment, it is sufficient to allege the name or nature of the offense and the fact, date, and court of the conviction. An indictment shall not contain an allegation of a prior conviction of the defendant unless such allegation is necessary to fully charge the offense.

Where an accused is charged as a second, third, or fourth DWI offender, the information or indictment must allege the prior convictions. State v. Franklin, 461 So.2d 640 (La.App. 1st Cir.1984). The prior DWI convictions used by the state in a repeat offender prosecution under La. R.S. 14:98 are essential matters of proof at trial. State v. Rolen, 95-0347 (La.9/15/95), 662 So.2d 446. Further, where there is a jury trial, the indictment charging the multiple offenses should be read to the jury. The prior offense l„or offenses must be proved as part of the state’s case; otherwise the conviction will be set aside. State v. Franklin, supra.

Discussion

During the trial, the defendant agreed to stipulate to his prior convictions. The state placed the convictions on the record by reading directly from the bills of information, the nature of each charge, the adjudication date, and the sentencing date.

The state was required to prove all essential elements of its case. To carry the burden in this instance, it was necessary to prove that the defendant did in fact have at least three prior convictions for DWI within the 10-year cleansing period. By stipulation, the evidence of the defendant’s prior convictions was entered into the record. The mere reading of the bills for the purposes of identifying the crimes for which the defendant had previously been convicted is not error in that it established an essential element of the crime. Inclusion of the reading of the number of the offense is not in error. The jury was merely presented with the defendant’s offense of conviction in each instance. Despite the stipulation related to the evidence, the state had the opportunity to determine the manner in which it would present the evidence to substantiate its case.

This assignment of error is meritless.

SENTENCE

The defendant argues that the trial court erred in not sentencing him to substance abuse treatment and home incarceration under La. R.S. 14:98(E)(l)(a). The defendant also contends that the sentence imposed in |12this case is almost a maximum sentence which should be reserved for the worst type of offenders.

Inpatient treatment and home incarceration.

The sentencing provisions of La. R.S. 14:98 for DWI-fourth offense are as follows:

E. (l)(a) Except as otherwise provided in Subparagraph (4)(b) of this Subsection, on a conviction of a fourth or subsequent offense, notwithstanding any other provision of law to the contrary and regardless of whether the fourth offense occurred before or after an earlier conviction, the offender shall be imprisoned with or without hard labor for not less than ten years nor more than thirty years and shall be fined five thousand dollars. Sixty days of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence. The court, in its discretion, may suspend all or any part of the remainder of the sentence of imprisonment. If any portion of the sentence is suspended, the offender shall be placed on supervised probation with the Department of Public Safety and Corrections, division of probation and parole, for a period of time not to exceed five years, which probation shall commence on the day after the offender’s release from custody.
(4)(a) If the offender has previously been required to participate in substance abuse treatment and home incarceration pursuant to Subsection D of this Section, the offender shall not be sentenced to substance abuse treatment and home incarceration for a fourth or subsequent offense, but shall be imprisoned at hard labor for not less than ten nor more than thirty years, and at least three years of the sentence shall be imposed without benefit of suspension of sentence, probation, or parole.
(b) If the offender has previously received the benefit of suspension of sentence, probation, or parole as a fourth offender, no part of the sentence may be imposed with benefit of suspension of sentence, probation, or parole, and no portion of the sentence shall be imposed concurrently with the remaining balance of any sentence to be served for a prior conviction for any offense.

Sentencing under La. R.S. 14:98(E)(1) is unavailable to defendants who have previously been required to participate in substance abuse treatment and home incarceration as third offenders or who have previously | ^received the benefit of suspension of sentence, probation, or parole as fourth offenders. State v. Curry, 39,153 (La.App. 2nd Cir.12/15/04), 889 So.2d 1202, writ denied, 2005-1678 (La.3/17/06), 925 So.2d 532; State v. Corbitt, 2004-2664 (La.App. 1st Cir.6/10/05), 917 So.2d 33, writ denied, 2005-1656 (La.2/3/06), 922 So.2d 1174.

In State v. Wiltcker, 36,491 (La.App.2d Cir.10/23/02), 830 So.2d 434, this court directed that the defendant in the instant case be resentenced in the Third Judicial District on two DWI-fourth offense convictions to receive the benefit of the 2001 amendment to La. R.S. 14:98, which allowed more lenient sentences for repeat DWI offenders. On remand, in May 2004, the trial court imposed upon the defendant concurrent sentences of 10 years at hard labor, all but 60 days of which were suspended, with a $5,000 fine, on both offenses. He was also placed on supervised probation for five years with specific conditions including home incarceration, electronic monitoring, plus both inpatient and outpatient treatment. The defendant was arrested on the instant DWI offense about three months later while on probation for these offenses, as well as another DWI offense for which he was sentenced in the 26th Judicial District Court in April 2004. In that case, the defendant pled guilty to DWI-third offense and was sentenced to five years at hard labor, with all but 30 days suspended, and was placed on supervised probation with special conditions of home incarceration, electronic monitoring, curfew restrictions, multiple weekly AA or NA meetings, limited driving privileges, and inpatient and outpatient treatment, plus a fine of $2,000.

| uThe defendant complains that he did not receive the benefit of Subsection La. R.S. 14:98(E)(l)(a) and get intensive substance abuse treatment for his prior DWI convictions. However, it should be noted that the defendant was precluded from receiving such treatment as a result of his commission of the current offense and resulting incarceration.

The defendant was properly sentenced under La. R.S. 14:98(E)(4)(a) and (E)(4)(b). These sentencing provisions statutorily mandate that the sentence must be imposed without benefit of suspension of sentence, probation, or parole, and the sentence must be imposed consecutively with the remaining balance of the sentence for the revoked probation. This portion of the defendant’s sentencing argument is without merit.

Excessiveness

The test imposed by the reviewing court in determining the exees-siveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The second inquiry involves a determination of whether the sentence imposed is too severe. This inquiry depends on the circumstances of the case and the background of the defendant. State v. McCall, 37,442 (La.App.2d Cir.8/20/03), 852 So.2d 1162, writ denied, 2004-0039 (La.12/17/04), 888 So.2d 858. A sentence violates La. Const, art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a needless and purposeless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is grossly disproportionate if, when the crime and |1Bpunishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 2000-1467 (La.2/2/01), 783 So.2d 385.

A trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of discretion, this court will not set aside a sentence as excessive. State v. Square, 433 So.2d 104 (La.1983); State v. McCall, supra.

In imposing sentence, the trial court noted the defendant’s extensive criminal history which dated back more than 20 years. While the defendant initially had problems with drugs and alcohol, in the past decade he was apparently involved mostly with alcohol. The court noted that the defendant had been shown leniency on many occasions. As previously noted, he was also on probation for three DWI convictions at the time of this arrest. Furthermore, his criminal history included simple battery arrests and convictions which were apparently also related to his use of alcohol.

The trial court emphasized its grave concern for the safety of the defendant and the safety of others as a result of his “severe substance abuse problem.” The court also noted the risk of death or great bodily harm that the defendant knowingly created every time he chose to drink and drive. |16The court found that the defendant was unlikely to respond to treatment. Additionally the court held that a lesser sentence would deprecate the seriousness of his crime.

The defendant faced a maximum sentencing exposure of 30 years at hard labor. The trial court imposed a sentence which is in the upper range of the sentencing spectrum; however, the sentence is not excessive in this instance. The record reveals that the trial judge considered the appropriate factors and tailored the sentence for this defendant. There is no showing that the trial court abused its wide discretion in imposing this 25-year sentence. When this repeat offender’s crimes and the punishment imposed are viewed in light of the harm done to society, this sentence does not shock the sense of justice.

This assignment of error is without merit.

CONCLUSION

The defendant’s conviction and sentence are affirmed.

AFFIRMED.


text:
    STATE of Louisiana, Appellee, v. Charles A. ESTES, Appellant.
    No. 42,093-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 9, 2007.
    Judgment rendered May 9, 2007.

      Louisiana Appellate Project by Annette Roach, for Appellant.

      Jerry L. Jones, District Attorney, Cynthia P. Lavespere, Assistant District Attorney, for Appellee.
    Before BROWN, GASKINS and MOORE, JJ.
   MOORE, J.

_J^The defendant pled guilty to armed robbery in exchange for the dismissal of other charges and no habitual offender filing. The court sentenced him to 75 years at hard labor without benefit of probation, parole or suspension of sentence. The defendant now appeals his conviction and sentence. We affirm.

FACTS

The matters of record establish that at 8:29 p.m. on July 18, 2005, the West Monroe Police Department received a report that an armed robbery had occurred at 206 N. 4th Street in West Monroe. The victim of the robbery, Mr. Gene Anding, stated that the defendant knocked on his door and asked for “Greg.” He told the defendant that there was no Greg at the residence. The defendant turned his back as though leaving, and then he suddenly lunged toward the door, pushing it open and knocking Mr. Anding to the floor. The defendant pounced upon Mr. Anding, placed a knife to his throat, and demanded his truck keys. Mr. Anding relinquished his keys, and the defendant drove off in Mr. Anding’s 2001 Ford Ranger pickup. Police at the scene of the crime observed a small cut on Mr. Anding’s neck; however, Mr. Anding refused medical treatment for the injury.

Later that evening, the stolen pickup was located by police in Ruston at a service station/convenience store where the defendant had abandoned it Rafter carjacking another vehicle. Several items had been removed from the vehicle, and the front seat was damaged. Mr. Anding viewed a surveillance tape of the individual suspected of the carjacking at the Ruston convenience store. He identified that individual as the same person who committed the armed robbery. The suspect was later identified as the defendant.

In the early morning hours of July 19, 2006, a Louisiana state trooper working near Opelousas observed a speeding vehicle traveling northbound on 1-49. Attempts to stop the vehicle led to a chase during which the vehicle left the interstate highway and crashed into a ditch. The sole occupant, who was later identified as the defendant, ran from the vehicle. The defendant was apprehended nearby and then placed under arrest. The defendant gave the arresting officer a false name, but later revealed his true identity. After the trooper learned the defendant was driving a stolen vehicle, he contacted the Ruston Police Department as well as the West Monroe Police Department.

Later that day, a detective handling the investigation obtained a warrant for the arrest of the defendant, traveled to St. Landry Parish, and interviewed the defendant. During the interview regarding the armed robbery, the defendant stated that he arrived in West Monroe two days prior to the incident and that his girlfriend dropped him off at an aunt’s house. The defendant denied knowing the victim or using a knife to take the truck keys, but admitted wrestling with the victim to get the keys. The defendant further stated he left the vehicle at a convenience store where he jumped |sinto another car and left, traveling to south Louisiana. The defendant was transported back to West Monroe where he was eventually charged with armed robbery.

During the investigation of the armed robbery, West Monroe detectives learned that the defendant was the suspect of a carjacking at an apartment complex in a Dallas, Texas, suburb on July 17, 2006. In that incident, the victim was unloading packages from his car when he was approached by a black male who asked about the location of an apartment in the complex. A few minutes later, the victim moved his car. While exiting his vehicle, the same black male reappeared, wielding a whitehandled, 6 to 8 inch knife, and demanded the victim’s car keys, wallet, cell phone, and any other keys the victim had. The victim complied, and the black male drove off in the victim’s car.

The stolen car was subsequently located in a parking lot in Carenero, Louisiana, where police learned from the defendant’s girlfriend, Niki Babineaux, that the defendant drove the vehicle from the Dallas area to Carenero. He told her that he had borrowed the vehicle from a friend. After leaving the vehicle in a parking lot, the defendant and Ms. Babineaux rode in her car to have breakfast. After breakfast, the defendant drove Ms. Babineaux’s vehicle while she slept in the vehicle. She stated that she had worked the night before. When she awoke, the defendant was traveling to the Monroe area. The defendant stopped at a convenience store in West Monroe. Ms. Babineaux told police that while the defendant was inside the store, she drove away leaving the defendant in the store. Ms. Babineaux |4then returned to Carenero.

A grand jury indicted the defendant on one count of armed robbery, a violation of La. R.S. 14:64, charging that the defendant wilfully and unlawfully committed armed robbery of Gene C. Anding while armed with a knife. In exchange for dismissing other charges, which, according to the guilty plea transcript, included attempted first degree murder, attempted aggravated escape, battery on a correctional officer, and unauthorized use of a motor vehicle, defendant agreed to plead guilty to the armed robbery charge. The state also agreed not to file an habitual offender bill. After accepting the guilty plea, the court sentenced the defendant on February 27, 2005 to 75 years imprisonment at hard labor without benefit of probation, parole or suspension of sentence. On June 28, 2006, defendant filed a motion to reconsider sentence and a notice and order for out-of-time appeal. The district court denied the motion to reconsider and granted the appeal.

DISCUSSION

By his first assignment of error, defendant contends that he was denied due process when the trial court accepted his guilty plea without ascertaining strong evidence of guilt. Although defendant did not file a motion to withdraw the guilty plea in the trial court, he contends the constitutionally infirm plea may be set aside on appeal. He alleges that the trial court was required to ascertain a “significant factual basis” for the guilty plea after the defendant protested his innocence.

The state contends the defendant did not make a contemporaneous objection to any alleged defect in the guilty plea colloquy nor did the | ¡^defendant make any attempt to withdraw the plea prior to the instant appeal. The defendant’s claim that he was denied due process is based on the following oral exchanges between the court and the defendant at the guilty plea proceeding:

The Court: Are you pleading guilty because you are in fact guilty of armed robbery, sir?
The defendant: I’m saying, I’m pleading guilty to, I know that’s less weight off my back.
The Court: Okay. Is it in your best interest to plead guilty, you think?
The defendant: Hmmm

At this point, the defendant’s counsel asked for an opportunity to confer and the court went off the record. Counsel then stated to the court:

I did have an opportunity to converse with my client, Mr. Estes. I did explain to him the offer decision. That oftentimes folks may feel that they’re not guilty to an offense, but it’s in their best interest to enter them plea because there may [be] some other circumstances that ah, that may present itself [sic] to the Court that may make that sentence or that penalty with other offenses more harsh than what they are with the plea deal. I’ve also explained to him the elements of the offense of armed robbery....
And I told him it’s his option whether or not he intends to advise the Court that he’s pleading under Alford in his best interest or whether or not he’s pleading guilty because he’s in fact guilty of armed robbery.

Defendant’s counsel also said he had given the defendant examples to illustrate the elements of the other charged crimes that would be dismissed as a result of the plea. He stated that Mr. Estes understands these things and was ready to proceed. At this point in the proceeding, the trial court explained an Alford plea to the defendant. However, the assistant district attorney, Ms. Lavespere, said that no Alford plea had been discussed and | fishe did not have authority to agree to the Alford plea. After Ms. Lavespere contacted the district attorney by telephone, Mr. Jerry Jones, the proceedings resumed.

Subsequently, the state recited the facts of the case and the following exchange between the court and Mr. Estes took place:

The Court: Okay. Mr. Estes, have you been able to hear Ms. Lavespere state what the facts the state would set forth or intends to prove?
The defendant: Yes, sir
The Court: Is that substantially correct to the best of your knowledge? And she indicated Mr. Anding, is it Ms. or Mr. Anding? Gene?
ADA: Mr.
The Court: Mr. Gene Anding alleges that a knife was put to his neck and that his neck or throat area was somehow cut. And that someone forced him to give the keys to his car. He says he saw a videotape and also saw a photograph. And he says that that [sic ] person was identified as you. Are you that person, sir? You have to, speak up.
The defendant: Yes, sir.
The Court: Sir, you are in fact guilty of the crime of armed robbery, is that your is that my understanding? [sic]
The defendant: Yes, sir
The Court: The facts and circumstances that she went over, do you basically agree with the recitation? Does that sound basically like what happened in your, from your memory?
The defendant: Not all of it
The Court: Not all of it?
The defendant: No sir
The Court: What about the part about the ah, the victim saying that someone came to his house and put a, a knife to his throat?
|7The defendant: That’s the part I don’t remember.
The Court: You don’t remember?
The defendant: No, sir
The Court: Okay. Are you pleading guilty because you’re in fact guilty, sir?
The defendant: Pm in jail, I mean, what else can I do?
The Court: Okay. Mr. Estes, I can-I can’t play games with you. And I won’t play games with you.
Defense Counsel: May I have a minute? The defendant then conferred with his attorney.
The Court: Okay. Mr. Pierre?
The Court: Okay. Like what [sic ] I told you earlier Mr. Estes, I can only accept a guilty plea if you’re in fact guilty. If you’re not guilty then we’ll set a trial date and do a trial by judge or jury or go in another direction. But when I asked you the question which is the ultimate question. Are you in fact the same person who they accuse of committing armed robbery on or about the day of July 18, 2005, wherein Gene Anding in Ouachita Parish had a knife placed to his throat and the keys to his car were handed over without his consent or permission while the offender was armed with a dangerous, to-wit a knife. Ah, are you in fact that person, sir?
The defendant: Yes, sir.
The Court: Is the record, “yes, sir”?
The defendant: Yes, sir.

At this point, the judge accepted the guilty plea. Later the defendant stated, “I mean, I know it ain’t, it ain’t nobody’s fault but mine, you know what I’m saying. And I’d like to plea.”

Regarding guilty pleas generally, courts usually only review guilty pleas to ensure that they were both counseled and voluntary. State v. 8Brooks, 38,963 (La.App. 2 Cir. 9/22/04), 882 So.2d 724, 730, writ denied, 2004-2634 (La.2/18/05), 896 So.2d 30; State v. Gobert, 02-771 (La.App. 3 Cir. 11/12/03), 865 So.2d 779. The entry of a guilty plea must be a free and voluntary choice on the part of a defendant. State v. Brooks, supra; State v. Garth, 622 So.2d 1189 (La.App. 2 Cir.1993). A valid guilty plea requires a showing that the defendant was informed of and waived his constitutional rights of trial by jury and confrontation and the privilege against compulsory self-incrimination. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971); State v. Monroe, 25,825 (La.App. 2 Cir. 3/30/94), 635 So.2d 481.

What the accused understood is determined in terms of the entire record and not just certain “magic words” used by the trial judge. State v. Strain, 585 So.2d 540 (La.1991); State v. Brooks, supra; State v. Munholland, 34,941 (La.App. 2 Cir. 10/12/01), 797 So.2d 778, writ denied, 01-3077 (La.9/13/02), 824 So.2d 1185. Everything that appears in the record concerning the predicate offense, as well as the trial judge’s opportunity to observe the defendant’s appearance, demeanor and responses in court, should be considered in determining whether or not a knowing and intelligent waiver of rights occurred. State v. Munholland; State v. Cadiere, 99-0970 (La.App. 1 Cir. 2/18/00), 754 So.2d 294; State v. Lodrigue, 97-1718 (La.App. 1 Cir. 5/15/98), 712 So.2d 671. Factors bearing on the validity of this determination include the age, education, experience, background, competency, and conduct of the accused, as well as the nature, | flComplexity and seriousness of the charge. State v. Munholland, supra at 782.

Viewing the transcript in its entirety and the applicable jurisprudence, we conclude that the defendant knowingly and intelligently entered a guilty plea to the crime of armed robbery in this case.

The record shows that at the beginning of the proceedings, the defendant told the court he wanted to plead guilty to armed robbery with a pre-sentence investigation. During the actual colloquy, the court explained the charge of armed robbery and the requirement that the robbery be committed while the culprit is armed with a dangerous weapon. The defendant stated that he understood, and he stated that he had not been threatened, coerced, or intimidated to offer the plea. However, when the court asked him if he was pleading guilty because he was in fact guilty of armed robbery, he stated that he was pleading guilty to [armed robbery] because he knew “that’s less weight off my back.” The court took that to mean that the defendant was pleading guilty because it was in his “best interest” to so plead.

After the inconclusive discussions regarding whether the state would agree to allow an Alford plea, the court had the assistant district attorney recite the facts of the case. After the factual recitation, the court addressed the defendant stating that “Mr. Gene Anding alleges that a knife was put to his neck and that his neck or throat was somehow cut. And that someone forced him to give the keys to his car. He says he saw a photograph. And he says that that person was identified as you. Are you that person, sir? You |inhave to speak.” The defendant responded, “yes, sir.” To make sure that the defendant was in fact stating that he was the person who committed the offense, the court then said, “Sir, you are in fact guilty of the crime of armed robbery, is that your, is that my understanding?” The defendant responded, “yes, sir.” When asked if he agreed to the factual recitation of the district attorney, the defendant stated that he did not agree with all of it, namely, he could not remember the part about putting a knife to the victim’s throat.

The court then told the defendant that he could not accept his guilty plea unless he was in fact guilty. Otherwise, the matter would be set for trial. He then asked if defendant was the person “who they accuse” of the armed robbery of Gene Anding ... “placed a knife to his throat and the keys to his car were handed over.... Ah, are you in fact that person, sir?” To which, the defendant answered, “yes, sir.” The court then confirmed the defendant’s response, “is the record, ‘yes, sir’?” To which the defendant responded, “yes, sir.”

Although the phrase, “who they accuse” casts a slight degree of ambiguity to the transcript, especially in light of the defendant’s ambivalence regarding the factual recitation by the assistant district attorney, it is clear that the court went to great pains to be certain that the defendant knowingly and voluntarily entered a guilty plea to the charge of armed robbery, and we will not disregard its conclusion. There was no objection when the court accepted the guilty plea, and it is clear that the defendant, the defendant’s attorney, the court and the assistant district attorney all believed that the defendant was voluntarily pleading guilty to the crime of armed robbery and l^not, as now argued, simply agreeing that he was the person charged with the offense, but never intended to plead guilty. Defense counsel and the court went to significant pains to make absolutely certain that the defendant understood the charge and the elements of the crime. The court expressly told the defendant that it would not accept a guilty plea unless the defendant admitted that he was in fact guilty. Defendant was informed of the elements of the crime. Each element was explained. He was informed of the evidence against him on this charge, as well as the elements and evidence of the other charges. Defendant clearly did not want to go to trial in light of the evidence regarding the crime of conviction as well as the evidence of the other charges.

We observe that “the due process clause imposes no constitutional duty on state trial judges to ascertain a factual basis prior to accepting a guilty plea. Louisiana law, unlike [federal law] has no statutory provision requiring accompaniment of a guilty plea by the recitation of a factual basis.” State v. Wynne, 40,921 (La.App. 2 Cir. 4/12/06), 926 So.2d 789 (citing State v. Griffin, 633 So.2d 358 (La.App. 1 Cir.1993)), writ denied, 94-0240 (La.10/14/94), 643 So.2d 157. Due process requires a finding of a significant factual basis for a defendant’s guilty plea only when a defendant proclaims his innocence or when the trial court is otherwise put on notice that there is a need for an inquiry into the factual basis. State v. Brooks, supra. An express admission of guilt is not a constitutional requirement for the imposition of a criminal penalty. The fact that a defendant believes that he is innocent, and makes such belief known to the court, does not preclude | ^him from entering a guilty plea. The presence of significant evidence of actual guilt provides a means by which the court may test whether a plea was intelligently entered. However, it should be noted that a defendant has no absolute right to have his guilty plea accepted by the trial court. State v. Linear, 600 So.2d 113 (La.App. 2 Cir.1992) (citations omitted).

In this instance, the defendant did not actually protest his innocence as in a full-fledged Alford plea. However, he did not agree with or could not remember that part of the factual recitation stating that he “put a knife to the throat” of the victim. Because the crime of armed robbery requires a dangerous weapon, this ambiguity would ordinarily be troublesome. However, the denial itself is ambivalent. The defendant did not deny that he was armed with a knife when he took the victim’s keys; he simply stated that he did not remember the part stating that he “put a knife to the victim’s throat.”

Even if we assume that the defendant intended to deny that he was armed with a knife such that he was essentially denying this requisite element of the crime of armed robbery, under an Alford-type “best interest” plea scenario, we conclude that the district court correctly determined that there was an adequate factual basis to support the charge and that the guilty plea was intelligently and voluntarily entered. The record shows that the judge determined that the evidence supported the charge of armed robbery, and determined that this evidence, coupled with the other circumstances of the plea, demonstrated that the plea represents a voluntary and intelligent choice among the alternatives. State v. Orman, 1997-2089 (La.1/9/98), 704 13 So.2d 245. Defendant was facing numerous other charges. The record shows that his attorney explained the other charges and possible sentence scenarios. The defendant indicated that he understood these matters, and stated that he was satisfied with his representation. During the plea hearing, the state acknowledged the terms of the plea agreement for the record. As a result of the plea, the state agreed to dismiss pending felony charges in Ouachita Parish and agreed not to file an habitual offender bill. The court also explained to him that any possible pending charges in other jurisdictions would not be affected by the plea agreement.

Additionally, during the plea colloquy, the court thoroughly explained to the defendant the rights he would be waiving by entering a guilty plea. The trial court covered the right to trial by judge or jury, right to remain silent, presumption of innocence, right against self-incrimination, right of confrontation, right of cross examination, and the right of compulsory process. The trial judge also informed the defendant that there was no agreement as to sentencing in the case and that the sentencing range was not less than 10 years, but could be as long as 99 years and that no matter what sentence was imposed, it must be served without benefit of probation, parole or suspension of sentence. As to all these matters, the defendant unequivocally said he understood and wished to plead guilty.

We therefore conclude, that when the record is reviewed in its entirety, it firmly establishes that the defendant voluntarily and intelligently entered a guilty plea to armed robbery in accordance with the due process requirements. This assignment of error is without merit.

|uBy his second assignment of error, defendant contends that the near maximum sentence imposed on this second felony offender is cruel, unusual and excessive, and in violation of Article I, § 20 of the Louisiana Constitution of 1974 as it serves no useful purpose of rehabilitation. The defendant was sentenced to 75 years at hard labor without benefits. Thus, for practical purposes, it is essentially a life sentence for the 24-year-old defendant.

The defendant argues that his sentence is not supported by the record and is nothing more than cruel and unusual punishment. He contends the sentencing court’s findings regarding the defendant’s criminal history are unfounded. Specifically, the defendant argues the trial judge incorrectly noted the offense for his prior conviction, and the judge was unduly influenced by crimes that occurred after the instant offense.

When a defendant fails to timely file a La. C. Cr. P. art. 881.1, motion to reconsider sentence, the appellate court’s review is limited to the bare claim that the sentence is constitutionally excessive. State v. Mims, 619 So.2d 1059 (La.1993); State v. Jones, 41,449 (La.App. 2 Cir. 9/20/06), 940 So.2d 61; State v. Duncan, 30,453 (La.App. 2 Cir. 2/25/98), 707 So.2d 164.

Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense or shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La.1992); State v. Livingston, 39,390 (La.App. 2 Cir. 4/6/05), 899 So.2d 733. Whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. 1, § 20 |1ñif it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276, 1280 (La.1993); State v. Bonanno, 384 So.2d 355, 358 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288, 291 (La.1985).

There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App. 2 Cir. 03/01/00), 754 So.2d 392, 394, writ denied, 2000-1467 (La.02/02/01), 783 So.2d 385. The trial court shall exercise its sentencing discretion to impose sentences according to the individualized circumstances of the offense and the offender. State v. Rogers, 405 So.2d 829, 831 (La.1981). Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Black, 28,100 (La.App. 2 Cir. 2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. Absent a showing of manifest abuse of that discretion, we may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App. 2 Cir. 5/12/04), 873 So.2d 939; State v. Lingefelt, 38,038 (La. App. 2 Cir. 1/28/04), 865 So.2d 280, writ denied, 04,057 (La.9/24/04), 882 So.2d 1165.

|t RIn selecting a proper sentence, a trial judge is not limited to considering only a defendant’s prior convictions but may properly review all prior criminal activity. State v. Jackson, 612 So.2d 993 (La.App. 2 Cir.1993); State v. Russell, 40,526 (La.App. 2 Cir. 1/27/05), 920 So.2d 866. The sources of information relied upon by the sentencing court may include evidence usually excluded from the courtroom at the trial of guilt or innocence, e.g., hearsay and arrests, as well as conviction records. State v. Myles, 94-0217 (La.6/3/94), 638 So.2d 218. These matters may be considered even in the absence of proof that the defendant committed the other offenses. State v. Jones, 31,569 (La.App. 2 Cir., 12/9/98), 724 So.2d 810; State v. Anderson, 30,060 (La.App. 2 Cir. 10/29/97), 702 So.2d 40, 42. In this instance, no motion to reconsider sentence was filed, and thus we limit our review to the claim of excessiveness, which is the sole argument presented by the defendant. The trial court imposed a sentence of 75 years at hard labor without benefit of probation, parole, or suspension of sentence.

As a result of the plea agreement entered into between the defendant and the state, the defendant pled guilty to armed robbery in exchange for dismissal of other pending charges in Ouachita Parish, and the defendant would not be billed as an habitual offender. After the defendant entered his guilty plea, a pre-sen-tence investigation (PSI) was ordered. At sentencing, the trial judge reviewed the defendant’s PSI on the record. The trial judge stated the defendant had not led “a law abiding life in the past” and that the defendant had a violent criminal history.

|17In reviewing the defendant’s criminal history, the judge noted the defendant had one prior felony conviction for unauthorized entry of an inhabited dwelling and the defendant’s probation for this offense was revoked. The defendant’s probation officer described the defendant as young, immature, somewhat arrogant and disrespectful to authority. The defendant’s record includes two misdemeanor convictions for possession of marijuana (Dallas, TX), several traffic offenses, and several charges (unauthorized entry of a vehicle, possession of marijuana, 8.4 grams) originating from Dallas, TX, with no disposition available at the time of the sentencing. The defendant was also arrested for offenses that occurred after the armed robbery including attempted second degree murder, attempted simple escape, and aggravated escape. The trial judge noted the defendant made at least two unsuccessful escape attempts while the instant charges were pending. The trial judge found the defendant’s propensity to commit crimes against persons was “not only significant and severe but completely unwarranted and basically unexplainable.”

The PSI described the facts of several crimes against persons, including an offense against the defendant’s girlfriend, Niki Babineaux, who suffered facial and retina bruising after an altercation with the defendant. The court also described an incident that occurred after the | ^defendant’s arrest for the instant offense, during the time the defendant was being interviewed by an indigent defendant board (IDB) employee. After the defendant’s interview concluded, the defendant took a pen left on a table by another interviewer, jumped across a table and stabbed the female IDB employee in the neck several times with the pen. The victim, who was interviewing another inmate at the time of the attack, had not even spoken to the defendant. The defendant had to be restrained as he continued to pursue the victim. The defendant was charged with attempted first degree murder, battery of a police officer, attempted simple escape, and aggravated escape for this incident; however, as a result of the plea agreement in the instant case, all these charges were dismissed. The defendant argues that the trial judge gave too much consideration to this incident when determining the defendant’s sentence.

In considering the factors of La. C. Cr. P. art 894.1, the trial court concluded that the defendant’s conduct caused or threatened serious harm, and that the defendant contemplated whether his criminal conduct would cause or threaten harm. The judge did not believe the defendant acted under strong provocation nor did the judge find there were grounds to justify the defendant’s conduct or that the victim facilitated the commission of the crime. According to the trial judge, the defendant’s conduct was likely to recur, and the defendant had shown a pattern of disrespecting authority. Additionally, the trial judge believed the defendant was likely to commit another crime if not incarcerated.

|iaThe trial court noted that the defendant was given a chance to address the court during the preparation of the PSI and during sentencing but declined both times. When Officer Greg Bridges attempted to interview him for the PSI, the defendant refused to speak (other than to give his name). The court likewise gave defendant an opportunity to address the court but he declined. As the trial judge reviewed the aggravating circumstances of this case, he determined defendant showed a “troubling” lack of remorse during the proceedings, and he had not accepted responsibility for his actions. He also misled the court regarding the prior felony conviction. The trial judge found there was an undue risk that the defendant would commit another crime during a period of suspended sentence or probation and that the defendant was in need of correctional treatment or custodial environment that can be provided most effectively by commitment to an institution. The judge concluded that any lesser sentence would deprecate the seriousness of the defendant’s crime and concluded that a 75-year sentence was appropriate for this defendant, a second felony offender with a propensity for violent behavior.

It is noted that the record supports the exercise of the trial court’s vast discretion in sentencing this defendant. As a result of his plea agreement, the defendant reduced his sentencing exposure to a maximum of 99 years at hard labor without benefits as opposed to the potential maximum sentence of 198 years the defendant faced as a second felony offender who committed armed robbery. The defendant was involved in a crime spree over the course of several days in two states. Even after being arrested for armed robbery, lanthe defendant continued to commit violent acts against others, and the court correctly considered the stabbing incident while defendant was in jail. State v. Jones, 33,111 (La.App. 2 Cir. 03/01/00), 754 So.2d 392, 394, writ denied, 2000-1467 (La.02/02/01), 783 So.2d 385. Considering the facts and circumstances of this case and the defendant’s criminal history, the sentence imposed is not grossly disproportionate to the seriousness of the defendant’s actions nor is it a purposeless or needless infliction of pain and suffering. The record does not support the defendant’s contentions. This assignment of error is without merit.

By his third assignment, defendant contends his counsel rendered ineffective assistance by failing to file the motion to reconsider sentence timely. According to the defendant, his right to appeal his sentence on the basis of excessiveness should not be denied because of his trial attorney’s failure to timely file the motion. The defendant further alleges he was prejudiced by trial counsel’s action, or lack thereof.

As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief (“PCR”) in the trial court than by appeal. This is because PCR creates the opportunity for a full evidentia-ry hearing under La. C. Cr. P. art. 930. State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Williams, 33,581 (La.App. 2 Cir. 6/21/00), 764 So.2d 1164. When the record is sufficient, this issue may be resolved on direct appeal in the interest of judicial economy. State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Willars, 27,394 (La.App. 2 Cir. 9/27/95), 661 So.2d 673.

121The mere failure to file a motion to reconsider sentence does not in and of itself constitute ineffective assistance of counsel. A basis for ineffective assistance of counsel may only be found if a defendant can show a reasonable probability that but for counsel’s error, his sentence would have been different. State v. Louis, 32,347 (La.App. 2 Cir. 10/27/99), 744 So.2d 694.

The defendant was sentenced on February 27, 2006. On March 1, 2006 the defendant’s trial attorney filed a motion to be relieved as counsel of record. The motion was denied on March 8, 2006, wherein the trial court stated the motion would likely be granted after the filing of post-sentencing motions or the record contained an acknowledgment that the defendant did not desire to appeal his sentence. The ruling further indicated that Louisiana Appellate Project (LAP) could potentially be appointed after the filing of the post-sentencing motions. The defendant filed a pro-se motion for production of transcripts on March 29, 2006. On June 19, 2006, apparently in response to a “motion to be relieved as counsel of record” the trial court ordered a status hearing be held in the case.

On the day of the status hearing (June 28, 2007), the defendant’s trial counsel filed several motions including a motion to reconsider sentence. The motion to reconsider sentence was denied for failure to comply with La. C. Cr. P. art. 881.1. The defendant’s counsel also filed a “notice of out of time appeal,” designation of record, assignments of error, and “motion to appoint [counsel].” These motions were granted.

lasFor the reasons stated in our review of the defendant’s excessive sentence claim, that is, that the 75-year sentence is not excessive, the defendant has failed to prove that, but for trial counsel’s failure to file a motion to reconsider sentence, his sentence would have been different. State v. Louis, supra. The trial court properly considered the sentencing factors set forth in La. C. Cr. P. art. 894.1, and then, within its discretionary authority, tailored the sentence to both this offense and this offender. The record does not reveal that the defendant was prejudiced by the failure to timely file the motion to reconsider sentence. This assignment is without merit.

Defendant’s assignment of errors patent:

The defendant contends this court should recognize as error patent the fact that the defendant’s indictment did not contain the statutorily mandated language “contrary to the law of the State of Louisiana and against the peace and dignity of the same.”

The state did not respond to this contention.

Article VII, § 1 of the Louisiana Constitution of 1921 did require the formal conclusion as cited by the defendant. However, the requirement was not repeated in the Constitution of 1974.

La. C. Cr. P. art. 462 provides, in part, “The indictment by a grand jury may be in substantially the form” which includes the previously held mandatory language. The permissive nature of the language of La. C. Cr. P. art. 462 does not require inclusion of the language cited by the defendant nor | asdoes the failure of the state to include the specific language constitute error patent. It is noted that the defendant failed to file a motion to quash or raise any objection to the error in the trial court. See La. C. Cr. P. art. 841(A); La. C. Cr. P. art. 521; La. C. Cr. P. art. 531 et seq.

This assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.

      . The defendant was sentenced on February 27, 2006; however, the defendant's motion for appeal was not filed until June 28, 2006, when the defendant requested an "out-of-time” appeal. The appropriate procedural vehicle for requesting an out-of-time appeal is by filing a post-conviction relief application. State v. Counterman, 475 So.2d 336, 338-339 (La.1985); State v. Adams, 39,792 (La.App. 2 Cir. 06/29/05), 907 So.2d 844, 847, writ denied, 2006-0259 (La.8/18/06), 935 So.2d 136. This court may consider a defendant's motion for out-of-time appeal as a proper application for post-conviction relief and entertain the appeal in the interest of judicial economy, as the defendant would be entitled to reinstatement of his appellate rights. State v. Counterman, supra.

      . In the victim’s PSI impact statement, Mr. Anding reported the loss of a $400 scanner, $78 detector, a $180 cell phone, and $250 in damage to the front seat of the vehicle.

      . In brief, the defendant provides a copy of the bill of information and minutes for this prior conviction. The bill, originally charging unauthorized entry of an inhabited dwelling was amended to unauthorized entry of a place of business (La. R.S. 14:62.4), and the defendant pled guilty to the latter offense.

      . Traffic offenses were improper lane usage, no driver’s license, no vehicle registration, open container in vehicle, unsafe vehicle, and expired motor vehicle license.

      . This incident occurred in June 2004 while the couple lived together in Dallas, TX. Ms. Babineaux was living in Carenero, LA, when the defendant visited her in July 2005.

      . It is unclear whether this was a newly filed motion or reconsideration of the previously denied motion to relieve counsel.

      . Article VII, § 1 of the Louisiana Constitution of 1921 stated in part, ''[A]U prosecutions shall be carried on in the name and by the authority of the State of Louisiana, and shall conclude: "against the peace and dignity of the same." ”