text:
    STATE of Louisiana v. Dale YOUNG.
    No. 05-KA-795.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 14, 2006.

      John Crum, District Attorney, Rodney Brignac, Assistant District Attorney, Fortieth Judicial District Parish of St. John the Baptist, State of Louisiana, LaPlace, Louisiana, for Plaintiff/Appellee.
    Katherine M. Franks, Attorney at Law, Louisiana Appellate Project, Slidell, Louisiana, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and WALTER ROTHSCHILD.
   MARION F. EDWARDS, Judge.

1 j>This is defendant Dale Young’s second appeal. On May 14, 2002, he was convicted of two counts of distribution of cocaine in a drug free zone, in violation of LSA-R.S. 40:967(A) and 40:981.3, and one count of distribution of cocaine, in violation of LSA-R.S. 40:967(A). This Court affirmed his convictions but vacated the sentences because the trial court failed to observe the twenty-four-hour delay between denying the motion for new trial and imposing sentence. The matter was remanded for re-sentencing.

On remand, a sentencing hearing was held, at which time the trial court re-sentenced Young to twenty-five year’s on each of the two counts of distribution of cocaine in a drug free zone and ten years on the one count of distribution of cocaine, which was the same as his original sentence. The court ordered the sentences to run consecutively and imposed a $50,000 fine on each of the three counts. In imposing sentence, the only sentencing factor articulated by the court |swas that the matters were distinct and not part of a single action. Young appeals his sentences as excessive.

The facts of this case have been set forth in the first appeal and need not be repeated here. On appeal, Young contends that the sentences are individually excessive under the circumstances of the case, both because of their length and because of the order that they be served consecutively. He argues that the narcotics transactions forming the basis for the sentences were part of a single course of conduct, that each transaction was set up and carried out by the same female undercover officer, and that Judge Snowdy articulated no factors encompassed within the jury’s verdict to demonstrate that either lengthy or consecutive sentences were warranted. He further urges that counsel was ineffective in failing not only to object specifically to the sentences and the failure of the trial judge to articulate any special justification, but also in failing to file a motion to reconsider the excessive sentences so as to preserve all issues relating to the sentences for appellate review.

Although defense counsel failed to file a motion to reconsider sentence, Young timely filed a pro se motion for reconsideration of sentence asserting his cumulative sentences were constitutionally excessive, which motion was denied. This Court routinely reviews a defendant’s sentence for constitutional excessiveness, even in the absence of a motion for reconsideration of sentence or objection.

The Eighth Amendment to the United States Constitution and Article I, Section 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive, even when it is within the | ¿applicable statutory range, if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering.

In reviewing a sentence for ex-cessiveness, the appellate court must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock our sense of justice. The trial judge is afforded wide discretion in determining sentence, and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. In reviewing a trial court’s sentencing discretion, three factors are considered: 1) the nature of the crime, 2) the nature and background of the offender, and 3) the sentence imposed for similar crimes by the same court and other courts. Even though a sentence is within statutory limits, it may nevertheless be constitutionally excessive by reason of its length.

The sentencing range for distribution of cocaine in a drug free zone is between two and forty-five years and the range for distribution of cocaine is between two and thirty years.

LSA-C.Cr.P. art. 883 provides in pertinent part:

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently.

| RIt has been held that multiple drug transactions occurring on different days are separate and distinct acts so as to render Article 883 inapplicable and to justify consecutive sentences, even when they involved the same undercover officer and the transaction occurs at the same location. Therefore, the trial court was not required to articulate particular justification for imposing consecutive sentences.

In the present matter, Young sold $100 worth of cocaine on two different occasions and $50 on one occasion, within a one and one-half month period.

This Court has upheld a twenty-two-year sentence for a defendant who, in addition to a violation of LSA-R.S. 40:981.3, had one earlier felony drug conviction and had been previously arrested on eight pri- or occasions. He was charged with a total of seventeen offenses in these arrests, six of which involved firearms charges, three were for drug-related offenses (one of which resulted in the felony conviction mentioned above), five were for crimes against persons, and three for crimes against property. In that opinion, we noted that this Court has previously upheld sentences of fifteen years of imprisonment for commission of this offense where the defendants did not have a criminal history.

This Court has also affirmed a defendant’s two, fifteen-year consecutive sentences for two counts of distribution of cocaine, where the defendant sold cocaine to two different undercover agents on two separate occasions approximately one month apart. In upholding his consecutive sentences, we noted that defendant had a history of prior criminal activity. We have upheld a defendant’s five, twenty-year consecutive sentences for five counts of distribution Rof cocaine. However, there the defendant had a criminal history of prior felony convictions for issuing worthless checks and simple robbery and also received a life sentence after being adjudicated a third felony offender. In comparison, another defendant received eighteen-year sentences on each of his five counts of distribution of cocaine, which were ordered to run concurrently. He had a history of dealing narcotics and was later found to be a second felony offender. In another case, we upheld a twenty-year enhanced sentence for distribution of cocaine in violation of LSA-R.S. 40:981.3 after the defendant was adjudicated a fourth felony offender. Finally, we affirmed a sixty-five-year enhanced sentence for a defendant found to be a third felony offender for distribution of cocaine in violation of LSA-R.S. 40:981.3.

Looking to other appellate courts, a sentence of fifteen years in prison for distribution of cocaine has been affirmed by the Second Circuit in a case where a defendant was a fourth felony offender, with numerous prior arrests and convictions for drug-related offenses. The Second Circuit also found three concurrent twelve-year sentences constitutionally excessive where a thirty-six-year-old defendant made three separate sales of cocaine on the same day to two undercover officers.

The Fourth Circuit has noted that twenty-year sentences for distribution of cocaine have been found to be excessive where the amount of cocaine involved is small. In that case, the defendant was convicted of six counts of distribution of cocaine and sentenced to six consecutive terms of twenty years each. In finding |7the cumulative sentence excessive, the court reviewed other cases involving more egregious defendants and concluded that the court abused its sentencing discretion.

After review, we find that Young received a much more severe penalty than more egregious offenders of the same offense. The consecutive nature of Young’s sentences is constitutionally excessive considering that the record on appeal does not establish that Young is a large-scale drug dealer or that he has a history of selling drugs, and the quantity of drugs and the money involved in each transaction was small. The defendant was thirty-one years of age at the time of sentencing, and although the record alludes to prior criminal activity, the State did not establish such. These factors militate in favor of a lesser aggregate sentence than Young received.

Accordingly, we find that the sentences are excessive, and we remand this case to the trial court for re-sentencing.

In view of this finding, the assignment of error regarding ineffective assistance of counsel is moot.

SENTENCES VACATED; REMANDED FOR RE-SENTENCING.

      . State v. Young, 04-1318 (La.App. 5 Cir. 4/26/05), 902 So.2d 461.

        . State v. McLelland, 03-498 (La.App. 5 Cir. 10/15/03), 860 So.2d 31, 37, writ denied, 03-3372 (La.3/26/04), 871 So.2d 347.

      . State v. Wickem, 99-1261 (La.App. 5 Cir. 4/12/00), 759 So.2d 961, 968, writ denied, 00-1371 (La.2/16/01), 785 So.2d 839.

      . State v. Brown, 04-230 (La.App. 5 Cir. 7/27/04), 880 So.2d 899, 902.

      . Id.

      . State v. Rogers, 2001-2139 (La.App. 4 Cir. 3/6/02), 812 So.2d 809, writ denied 2002-0945 (La. 11/22/02), 829 So.2d 1035 (citing State v. Walker, 414 So.2d 1245 (La.1982)).

      . LSA-R.S. 40:967(B)(4)(b) and 40:981.3(E); State v. Johnson, 03-903 (La.App. 5 Cir. 12/9/03), 864 So.2d 645, 653.

      . State v. Scott, 92-667 (La.App. 5 Cir. 12/29/1992), 612 So.2d 293; State v. Miller, 561 So.2d 892 (La.App.2d Cir.5/9/90), writ denied, 566 So.2d 983 (La.9/28/90).

      . State v. McCraney, 01-439 (La.App. 5 Cir. 9/25/01), 798 So.2d 227.

      . See, State v. Bartley, 00-1370 (La.App. 5 Cir. 2/14/01), 782 So.2d 29; State v. Curtis, 97-769 (La.App. 5 Cir. 2/11/98), 707 So.2d 1328.

      . State v. Sanders, 98-855 (La.App. 5 Cir. 5/19/99), 734 So.2d 1276, writ denied, 99-1980 (La. 1/7/00), 752 So.2d 175.

      . State v. Dillon, 01-906 (La.App. 5 Cir. 2/26/02), 812 So.2d 770, writ denied, 02-1189 (La.4/21/03), 841 So.2d 779.

      . State v. Converse, 03-0711 (La.App. 5 Cir. 12/30/03), 864 So.2d 803, writ denied, 04-0195 (La.6/4/04), 876 So.2d 74.

      . State v. Johnson, 03-903 (La.App. 5 Cir. 12/9/03), 864 So.2d 645.

      . State v. McCloud, 04-1112 (La.App. 5 Cir. 3/29/05), 901 So.2d 498.

      . State v. Hines 39,613 (La.App. 2 Cir. 4/6/05), 899 So.2d 744.

      . State v. Wyatt, 591 So.2d 761 (La.App. 2d Cir.1991).

      . State v. Rogers, supra.


source: Caselaw Access Project

author: FREDERICKA HOMBERG WICKER, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Rodney NORMAN.
    No. 05-KA-794.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 14, 2006.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet Clark, Paige Cline, Cameron Mary, Assistant District Attorneys, Gretna, LA, for PlaintifflAppel-lee.
    Mary Constance Hanes, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

^Defendant, Rodney Norman, appeals his conviction and sentence on a charge of second degree murder in violation of La. R.S. 14:30.1. For reasons that follow, we affirm.

Defendant was charged with the second degree murder of Keith Landry by grand jury indictment. He entered a plea of not guilty and filed a motion to suppress his confession and identification. The motion was denied and the matter went to a trial by jury, after which defendant was found guilty as charged. In due course he was sentenced to life imprisonment without benefits. Defendant moved for a timely appeal that was granted.

FACTS

la At approximately 4:45 a.m. on July 21, 2002, Deputy Jimmy Mendez of the Jefferson Parish Sheriffs Office was dispatched to Club James in Jefferson Parish and upon arrival observed a black male lying on the ground face down. The victim, Keith Landry, was shot in the back of the head. A medical unit checked the victim and found no sign of life.

At trial, Carlos Nichols testified that on the night of the murder he and the victim were drinking prior to their arrival at Club James where a friend of the victim’s was having a birthday party. Mr. Nichols testified that the victim was drunk, but did not fight with anyone that night, including defendant.

Mr. Nichols did not know defendant, but saw him at the Club James on the night of the murder. Mr. Nichols stated that defendant took pictures with Shawn, the person who was celebrating his birthday, and Shawn’s girlfriend, Kizzy. At the time the pictures were taken the defendant was holding a gun in his hand. Kizzy gave the victim a cake to bring out to Shawn’s vehicle. The victim left the club with the cake. Mr. Nichols had one more beer then went outside to join the victim.

According to Mr. Nichols, he looked over his shoulder and saw defendant push the victim, although they were not “throwing punches.” Then he heard the victim say, “what the f* * *.” Mr. Nichols testified that defendant was fumbling with a 9 mm gun in his waist for about six seconds. The defendant’s hand was shaking as he pointed the gun at the victim’s face. Thereafter, the victim looked at defendant and said, “f* * * it.” The victim turned his back and took a step, and then the defendant shot him. Mr. Nichols explained that when the victim walked towards him he saw blood coming out of his ears, nose and mouth and he then fell back three or four feet from where he was. After defendant shot the victim he put the gun back in his waistband and walked towards the Westbank Expressway. Mr. Nichols stated that he identified the perpetrator to a uniformed deputy and was |4later shown a photographic lineup. In this lineup, Mr. Nichols confirmed his identification of the defendant. Mr. Nichols testified that there was no doubt in his mind that the defendant shot the victim on the morning of July 21, 2002.

Detective David Morales, a homicide detective with the Jefferson Parish Sheriffs Office, was assigned to investigate the murder at the Marrero nightclub. At the scene, he located a spent 9 mm cartridge casing. Detective Morales testified that after the interview with Mr. Nichols and other witnesses on the scene, defendant became a suspect. The detective admitted that he was sure that some of the people interviewed had been drinking. He testified that Sergeant Dennis Thornton took Mr. Nichols’ original statement and then Sergeant Thornton showed Mr. Nichols the photographic lineup. Later the Sergeant took a second statement from Mr. Nichols. After Mr. Nichols positively identified the defendant, Detective Morales secured an arrest warrant, but was unable to locate defendant. Consequently, a wanted bulletin was prepared. A search warrant was conducted at defendant’s house; however, nothing was recovered. About six weeks later defendant turned himself into authorities. At that time, the defendant gave a recorded statement which was transcribed and played for the jury.

In defendant’s statement, he stated he turned himself in to tell his side of the story regarding a shooting at the Club James on Sunday, July 21st around 4:43 a.m. Defendant maintained that on Saturday night he went to Shawn’s birthday party at Club James. Defendant stated that he took a gun out of his car and took pictures with it at the birthday party. Defendant stated that he had two fights that night. Defendant did not know the victim, but after the detective showed him a picture of Keith Landry from the birthday party, the defendant identified the victim as the person with whom he fought. The first fight was at the Shell Station at Ames and the Westbank Expressway. According to the defendant the victim pushed him, |sthen he punched the victim and they began fighting. The defendant’s friends pulled him away and he went to Club James. The defendant stated that the gun was in the waistband of his pants underneath his shirt. According to defendant, he was fighting with the victim near the front door of Club James when the gun dropped. The defendant stated that the victim was reaching for the gun, so he grabbed the victim to stop him from getting the gun while they were fighting. The defendant said that when he picked the gun up he heard the victim say, “[m]an, why don’t you go head.” Defendant said he picked the gun up and as he did the gun just went off. At first, he was not even aware that he had shot the victim. He paused for a minute and then began running towards the Westbank Expressway. During the flight from the scene, the defendant threw the gun in an empty lot. He stated that he was drunk and was sorry. He said he did not mean to kill the victim. The defendant denied striking him on the head with the barrel of the gun.

Detective Morales testified that he took a statement from defendant’s nephew, Joseph Norman. He testified that Joseph Norman advised him that his uncle had been drinking heavily and had told Joe that he thought he saw the person that had previously shot him. The defendant began fighting with the victim behind the Auto Zone. Although the fight was broken up, the two began fighting again in front of Club James. Joseph Norman then stated that the defendant went up behind the victim and struck him on the head with the barrel of a gun. Then, defendant shot the victim.

Detective Morales also interviewed Kenneth Beauford, who stated he was riding his bicycle near the Auto Zone when he saw two men fussing and one of the men had a pistol. According to Kenneth Beau-ford, friends convinced the man with the pistol to put it away and let the other man go. Kenneth Beauford’s description of the person with the pistol matched the description given of the defendant that | finight. Detective Morales testified that, based on those two statements, he believed there was at least one altercation between the victim and defendant before the shooting.

Dr. Karen Ross, a stipulated expert in the field of forensic pathology, conducted an autopsy on the victim on July 22, 2002. She testified that the victim had a gunshot wound to his head, with the bullet entrance on the back of the left side of the head. The examination revealed no defensive wounds. In her opinion, the victim died as a result of a gunshot wound of the head and the manner of his death was a homicide. Further, Dr. Ross testified that the victim was shot in the back of the head; therefore, he was not face to face with the shooter when he was shot, and at least the muzzle of the weapon had to be behind him. Dr. Ross found no firearm residue, so the muzzle of the weapon was at least approximately three feet away from the victim at the time the weapon was discharged.

Dr. Ross testified that according to the victim’s toxicology results, he had recently ingested cocaine and was most likely still drinking just before his death.

LAW

In his only assignment of error, defendant asserts the evidence presented at trial is insufficient to support the conviction for second degree murder because he lacked the requisite intent required. Defendant maintains his actions amounted to no more than negligent homicide. He also challenges the credibility of the prosecution witness, Carlos Nichols.

The State responds that the evidence is constitutionally sufficient to establish the defendant’s specific intent to ldll or inflict great bodily harm beyond a reasonable doubt. Further, the State argues that the trier of fact rationally concluded that Mr. Nichols’ testimony was credible.

|7The reviewing court must determine whether, viewing the evidence, direct and circumstantial, in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Ortiz, 96-1609 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998).

To prove second degree murder, the State must show (1) the killing of a human being, and (2) that the defendant had the specific intent to Mil or inflict great bodily harm. La. R.S. 14:30.1(A)(1); State v. Pagan, 04-1478 (La.App. 5 Cir. 5/31/05), 905 So.2d 435, 441. Specific intent is “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La. R.S. 14:10(1). Because specific intent is a state of mind, it need not be proven as a fact, it may be inferred from the circumstances and actions of the defendant as well as the extent and severity of the victim’s injuries. State v. Pagan, 905 So.2d at 441. The discharge of a firearm aimed at a victim is indicative of intent to kill or inflict great bodily harm. State v. Robinson, 91-883 (La.App. 5 Cir. 3/31/92), 598 So.2d 407; State v. Brown, 96-1002, (La.App. 5 Cir. 4/09/97), 694 So.2d 435; writ denied, 97-1310 (La.10/31/97), 703 So.2d 19.

In the matter before us, defendant admits he shot the victim and that the two had fought previously. His statement that the two were fighting just before the shooting and the gun just “went off’ is inconsistent with the eyewitness testimony and the physical evidence that shows the victim was shot in the back of the head from at least three feet away.

Whether a defendant possessed the requisite intent in a criminal case is for the trier of fact, and a review of the correctness of this determination is guided by |sthe Jackson standard. State v. Simmons, 98-841 (La.App. 5 Cir. 6/1/99), 738 So.2d 1131, 1134, writ denied, 99-2419 (La.4/20/00), 760 So.2d 333. Given the facts presented in this case, we find the evidence presented was constitutionally sufficient to support the jury’s finding that the defendant had the specific intent to kill or inflict great bodily harm to the victim.

In our review for errors patent we note an inconsistency between the transcript and the commitment with regard to sentencing. Although the commitment indicates defendant was sentenced to life imprisonment at hard labor, in the transcript the trial judge failed to state that the sentence was to be served at “hard labor.” If a discrepancy exists between the commitment and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732 (La.1983). La.C.Cr.P. Art. 879 requires a court to impose a determinate sentence. If there were some discretion allowed by the applicable sentencing statute, the failure to indicate whether the sentence was to be served at “hard labor” would be an impermissible indeterminate sentence. However, since the defendant herein was sentenced pursuant to La. R.S.14:30.1 which requires a mandatory sentence of life imprisonment at hard labor, the sentence is determinate and the failure to state such is harmless error. See, State v. Porter, 99-1722 (La.App. 3 Cir. 5/3/00), 761 So.2d 115.

Accordingly, we affirm defendant’s conviction and sentence.

AFFIRMED.


author: MARION F. EDWARDS, Judge.

text:
    STATE of Louisiana v. Harold R. WINGERTER, Jr.
    No. 05-KA-697.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 14, 2006.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appel-lee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.

      Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and CLARENCE E. McMANUS.
   MARION F. EDWARDS, Judge.

| ¡¡The defendant, Harold R. Wingerter Jr., appeals from his convictions of possession of heroin and theft of a gun. We affirm.

On December 4, 2002, the Jefferson Parish District Attorney’s Office charged Win-gerter with knowingly and intentionally possessing a controlled dangerous substance, heroin, a violation of LSA-R.S. 40:966(C), and in count two with theft of a gun valued at between $300 and $500, a violation of LSA-R.S. 14:67. At his arraignment, Wingerter pled not guilty, but later, he withdrew his not guilty plea on both counts and entered a “best interest” or Alford plea to the charged offenses. In accordance with a plea agreement, Win-gerter was sentenced to five years with credit for time served for possession of heroin and to two years with credit for time served for the theft. Both sentences were to run concurrently with each other and any other sentence being served. On the same date, the State |afiled a multiple offender bill charging Wingerter as a second felony offender. As part of a plea bargain regarding the multiple bill, Win-gerter pled guilty as a second felony offender’ on both the possession of heroin and the theft. The trial court vacated Wingerter’s previous sentences on both counts and sentenced him, on count one, to five years at hard labor without benefit of probation, suspension of sentence, or good time, with credit for time served, to run concurrently with any other sentence being served; and, on count two, to four years at hard labor without benefit of probation, suspension of sentence, or good time, with credit for time served, to run concurrently with his sentence on the multiple bill for possession of heroin and any other sentence being served. Wingerter was serving a sentence for parole violation.

Subsequently, Wingerter filed a pro se Motion and Order to Correct Illegal Sentence, which the trial court dismissed with prejudice for failure to use the uniform application for post-conviction relief approved by the Supreme Court of Louisiana. Wingerter filed an application for supervisory writs alleging that the trial court erred in dismissing his motion to correct an illegal sentence “due to a failure to submit the claim in an application relief.” This Court denied the writ taken finding that the application disclosed no error in the trial court’s ruling on the motion. Subsequently, Wingerter filed a filed a pro se application for supervisory writs asking this Court to order the district court to consider an “out-of-time” application for post conviction relief. This court granted the writ and ordered the district court to consider and rule on the defendant’s motion for an out-of-time appeal. The present appeal followed.

In this appeal, the only error assigned is patent error. Wingerter’s appellate counsel has filed an Anders brief and a motion to withdraw.

14AppelIate counsel’s Anders brief was filed in conformity ■ with the procedures approved by the United States Supreme Court in that case, asserting that appellate counsel has reviewed the record and that it contains no non-frivolous issues that may be raised on appeal. In Anders, the United States Supreme Court stated that “if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw.” The Anders requirements were adopted by this Court, and later expanded by the Louisiana Supreme Court. Under the applicable cases, appellate counsel must not only review the procedural history of the case and the evidence presented at trial, but his brief must contain “ ⅛ detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place.’ ”

If the Anders brief simply states that there are no non-frivolous issues, without some discussion, and only requests a review for errors patent, it is ordinarily disallowed. After independent review, if the appellate court finds an arguable legal point on the merits, it may either deny appellate counsel’s motion to withdraw and order him to file a brief arguing that point, or it may grant the motion to withdraw and appoint substitute counsel.

In compliance with the proper procedures, a letter was sent from the Clerk of this Court advising Wingerter that he should file a supplemental brief, complying with Rule 2-12 of the Uniform Rules of Louisiana Courts of Appeal, with this Court by November 5, 2005. As of the date of this opinion, he has not filed a supplemental brief.

[ ¡When counsel files an Anders brief, an appellate court reviews (1) the bill of information, to insure that the defendant was properly charged, (2) all minute entries, to insure that the defendant was present at all crucial stages, (3) all pleadings in the record, and (4) all transcripts, to determine whether any ruling provides an arguable basis for appeal. If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and precludes review of such defects either by appeal or post-conviction relief.

In the instant case, Wingerter was charged with possession of heroin while he was a patient in the emergency room at East Jefferson Hospital. Prior to his plea, he orally moved for continuances in order that an expert be appointed at the State’s expense, or that his family be allowed an opportunity to retain an expert to evaluate his state of mind at the time of the alleged offense. Wingerter claimed that his detoxification from heroin and hospital administered sedatives, as well as his placement in four-point restraints for his own safety, affected his state of mind and his ability to discern right from wrong. The State objected and the court denied the motions, finding they were made for purposes of delay.

Wingerter then stated that he understood that he was found to be in possession of heroin at East Jefferson Hospital. The State claimed that Wingerter was in the hospital when a friend came to visit him and brought him the heroin. In addition, according to the State, Wingerter admitted to the police that he was caught with the heroin by hospital staff and he knew what it was because a friend gave it to him. The State claimed that Wingerter knew his friend gave him heroin, and it was his intent to possess it. Both Wingerter and defense counsel stated that, under the particular circumstances, the pleas were in the defendant’s best interest.

| (¡Appellate counsel, in her brief, noted that Wingerter was informed what his plea would be and understood that he was charged as a second felony offender. He pled guilty to the multiple bill and was again informed what his sentence would be before it was imposed. Appellate counsel noted in her brief that Wingerter pled before the trial court ruled on any pre-trial motions but did not discuss this issue. Nevertheless, by pleading guilty any possible defect was waived. In our review of the record we find neither a basis for reversing this ruling, nor any non-frivolous issues. Therefore, we grant defense counsel’s motion to withdraw.

The record was reviewed for errors patent, and none were found.

Accordingly, the convictions and sentences are affirmed.

AFFIRMED.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . Anders, 386 U.S. at 744, 87 S.Ct. at 1400.

      . See, State v. Bradford, 95-929, p. 3 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110

      . See, State v. Jyles, 96-2669, p. 3 (La. 12/12/97), 704 So.2d 241, 242 (per curiam ).

        .State v. Jyles, supra.

      . State v. Leonard, 04-708, p. 4 (La.App. 5 Cir. 12/14/04), 892 So.2d 66.

      . State v. Leonard, supra.

      . Id.


text:
    STATE of Louisiana v. Casey WILLIAMS.
    No. 05-KA-673.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 14, 2006.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Andrea F. Long, Gevin P. Grisbaum, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Martin E. Regan, Jr., Karla M. Baker, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges JAMES L. CANNELLA, SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

^Defendant, Casey Williams, appeals his conviction and sentence on a charge of simple rape in violation of La. R.S. 14:43. For reasons that follow, we affirm.

The Jefferson Parish District Attorney filed a bill of information charging the defendant, Casey Williams, with forcible rape, a violation of La. R.S. 14:42.1. The defendant pled not guilty at arraignment. The defendant subsequently filed various pre-trial motions, none of which are at issue on appeal. On November 30, 2004, the defendant proceeded to trial before a twelve-person jury, which found him guilty of the responsive verdict of simple rape, a violation of La. R.S. 14:43.

On April 18, 2005, the trial judge sentenced the defendant to 15 years of imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. This timely appeal follows.

| ¿FACTS

At trial, B.V. testified that she was 23-years-old. In November of 2003, B.V., a resident of Memphis, was staying with friends who lived on Hennessey Street, not far from the French Quarter. On the evening of November 8, 2003, B.V. went to Checkpoint Charlie’s, a bar in the French Quarter to listen to a band at the bar. She drank nine or ten beers while listening to music and left when the band finished playing, between 4:00 and 5:00 a.m. She left the bar to locate a bus stop to return to Hennessey Street.

While B.V. was looking for the bus stop, a man, later identified as the defendant, pulled alongside her in a red truck. He struck up a conversation with her. B.V. offered to pay the defendant to bring her home. The defendant accepted the money and began driving. They engaged in small talk, and the defendant stopped at a store. Thereafter, the defendant resumed driving. It was not until they reached the interstate that B.V. realized that something was amiss. B.V. told the defendant that he was going the wrong way, but the defendant replied that he knew where he was going. The defendant proceeded on the interstate, heading toward the Mississippi River.

When B.V. again questioned the defendant about their direction, the defendant replied that he would let her out or take her where she wanted if she agreed to perform oral sex on him. B.V. refused, but the defendant told her that she had to do what he said or else she wasn’t getting out of the truck. They ultimately reached the Westbank, where they passed a tall, round hotel. The defendant kept driving on the elevated Expressway. Eventually they reached the ground level of the road, but the defendant continued driving. B.V. didn’t remember the defendant stopping at any traffic lights on the ground level. The [¿defendant crossed the Huey P. Long Bridge and kept driving on to Jefferson Highway.

At some point, the defendant slowed the vehicle. B.V. attempted to get out of the truck, but the defendant grabbed B.V.’s left arm, preventing her from escaping. The defendant unfastened his pants and put a condom on his erect penis. He stopped the vehicle in the parking lot of a warehouse. He then shoved B.V. against the passenger’s side door and pulled her pants to her ankles. He pushed her legs over her shoulders, held her arms and legs and put his penis inside her vagina. B.V. struggled to get away and sustained a swollen lip in the struggle. B.V. was crying and told the defendant “no.” When the defendant did stop, he removed the condom, which he threw out of the window while driving. The defendant made a U-turn heading back towards the Huey P. Long Bridge. As the truck slowed, B.V. opened the door and jumped out of the truck. She went to the median to try to flag down a car.

Between 7:30 a.m. and 8:00 a.m., Sylvia Roberts was on her way to work at Oasis Horticultural on Jefferson Highway. She saw B.V. sitting in the median. B.V. was crying and Ms. Roberts stopped to see if she needed help. B.V. told Ms. Roberts that she did need help because she had just been raped behind nearby warehouses. Ms. Roberts asked B.V. to meet her across the street. While B.V. was crossing the street, a red truck stopped. According to B.V., the defendant begged her to get back in the truck. B.V. told him to get away from her. Ms. Roberts observed the confrontation, and said that B.V. began screaming “This is him. This is him.” The red truck then drove away. B.V. ran towards Ms. Roberts, who dialed 911. B.V. kept repeating the license plate numbers to Ms. Roberts.

| ¡jAfter the police arrived, Ms. Roberts observed the red truck traveling east on Jefferson Highway. Ms. Roberts alerted the police to the truck. Deputy Christy Clement of the Jefferson Parish Sheriffs Office saw the witness signaling to her. Deputy Clement pursued the truck, which was about 10 car lengths in front of her unit. Deputy Clement activated the unit’s lights and sirens and commanded the driver, later identified as the defendant, to pull over. The defendant did not comply and continued driving for approximately one-half mile. Ultimately, the defendant stopped at a gas station at Eagle Street and Claiborne. Deputy Clement ordered the defendant out of the vehicle, read him his rights, and advised him that he was under investigation for rape. Although the defendant initially remained silent, the defendant later told the police that B.V. was in his truck, but denied that he had sex with her. Deputy Clement returned to Jefferson Highway to interview the victim. After the victim told Deputy Clement what had transpired, Deputy Clement brought her to the location where the defendant was stopped, and she immediately identified the defendant and the truck. Thereafter, Deputy Clement took B.V. to Lakeside Hospital, where she was examined by Dr. Kathryn Wild, an expert in obstetrics and gynecology. On the victim’s left arm, Dr. Wild found bruises, which she believed were recently sustained. She also noted that the victim’s upper lip was swollen and that there was an abrasion on the underside of the victim’s upper lip. Dr. Wild found no trauma to the victim’s vagina, and she noted that the victim’s genital area was clean-shaven. Dr. Wild found a pubic hair inside of the victim’s vagina. Dr. Wild opined that the hair had been inside the victim for less than 24 hours.

The record indicated that the hair was lost and that it was not submitted for testing. Sharon Lawrence, the supervising nurse in charge of recovered evidence Lin the rape examination, testified that her usual procedure would have been to place the hair in a box, which would have been turned over to the police. Ms. Lawrence acknowledged that the hair was not listed as having been placed in the box. Ms. Lawrence said she did not know what happened to the hair.

An examination of the defendant’s truck, which had a manual transmission, yielded a barrette that B.V. identified as the one that fell out of her hair in the struggle with the defendant. While doing a trace lift in the truck, in which an adhesive substance is applied to fabric, the police found an eyelash and a pubic hair. DNA testing revealed that the eyelash did not match the victim and the hair was not submitted for testing. The police searched a four-block area of Jefferson Highway for the condom that B.V. said the defendant had discarded, but did not find it.

At trial, B.V. acknowledged that she and others were arrested for public intoxication and interfering with a police investigation on November 3, 2003 and that she pled guilty as charged. She also acknowledged that she pled guilty to DWI in September of 2004.

The defendant rested without putting on any evidence or calling any witnesses.

LAW

In his first assignment of error, defendant contends that the evidence was insufficient tó support his simple rape conviction because B.V.s’ testimony was not credible, and because there was no evidence that B.V. was incapable of resisting due to intoxication. The State contends that this Court need not determine |7whether the evidence was sufficient to support the verdict of simple rape because the evidence supported the charged offense of forcible rape.

When a defendant does not object to a legislatively responsive verdict, the defendant’s conviction will not be reversed, whether or not that verdict is supported by the evidence, as long as the evidence is sufficient to support the offense charged. State v. Harrell, 01-841 (La.App. 5 Cir. 2/26/02), 811 So.2d 1015, 1017. Accord, State v. Wilkinson, 00-339 (La.App. 5 Cir. 10/18/00), 772 So.2d 758, 766, writ denied, 00-3161 (La.10/12/01), 799 So.2d 494.

In the present case, the record contains no objection from the defendant to the trial judge’s jury charges, which included simple rape as a responsive verdict. Because the defendant failed to timely object to a legislatively responsive verdict, the defendant is entitled to a reversal of his conviction only if the evidence is insufficient to support a conviction of the charged offense, forcible rape. See, State v. Wilkinson, supra.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. State v. Ortiz, 96-1609 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998). The rule as to circumstantial evidence is “assuming every fact to be proved that the evidence tends to prove, in order to |Rconvict, it must exclude every reasonable hypothesis of innocence.” La. R.S. 15:438. This is not a separate test from the Jackson standard, but rather provides a helpful basis for determining the existence of reasonable doubt. State v. Wooten, 99-181 (La.App. 5 Cir. 6/1/99), 738 So.2d 672, 675, writ de nied, 99-2057 (La.1/14/00), 753 So.2d 208. Ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. Id.

Forcible rape is defined in La. R.S. 14:42.1 in pertinent part:

A. Forcible rape is rape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) When the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’ testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Robinson, 02-1869 (La.4/14/04), 874 So.2d 66, 79, cert. denied, 543 U.S. 1023, 125 S.Ct. 658, 160 L.Ed.2d 499 (2004). In the case of sexual offenses, the testimony of the victim alone can be sufficient to establish the elements of a sexual offense, even where the State does not introduce medical, scientific or physical evidence to prove the commission of the offense. State v. Hotoph, 99-243 (La.App. 5 Cir. 11/10/99), 750 So.2d 1036, 1045, writ denied, 99-3477 (La.6/30/00), 765 So.2d 1062 and writ denied, 00-0150 (La.6/30/00), 765 So.2d 1066. See, State v. Tapps, 02-0547 (La.App. 5 Cir. 10/29/02), 832 So.2d 995, 1001, writ denied, 02-2921 (La.4/21/03), 841 So.2d 789, where this Court held that the victim’s testimony alone, |3even absent any additional physical evidence, was sufficient to establish the elements of the offense of forcible rape.

In support of his argument that B.V.’s testimony was not credible, the defendant urges that it would have been impossible for him to put on a condom while driving the truck, which had a standard transmission. He also contends that it was impossible for him to keep her from escaping the small truck. B.V. testified that after 30 minutes of the defendant driving, she became apprehensive. She acknowledged that the defendant was not restraining her the entire time, but she said that her door was locked. She said that she was able to unlock the door at some point, but could not recall whether she opened the door or not. Nevertheless, she maintained that she tried to unlock the door to get out of the truck numerous times. When the defendant slowed the truck and put on the condom, she attempted to get out of the door, but the defendant grabbed her arm. Thereafter, he forced her against the door and raped her while holding her legs over her shoulders.

Although there was no direct physical evidence, such as DNA or seminal fluid, to prove the defendant had sexual contact with B.V., expert serologist Christine Ro-gos testified that there could be sexual activity without sperm or seminal fluid when a condom is used. Further, Dr. Wild explained that the absence of sperm, seminal fluid or evidence of forcible penetration is not indicative of whether or not a victim has been sexually assaulted.

Moreover, there was physical evidence to support the victim’s account of the events. Dr. Wild noted that B.V.’s lip was swollen and that there were fresh bruises on B.V.’s left arm. Photographs of her injuries were introduced into evidence. In addition, the barrette that B.V. said she lost during the struggle with the defendant was found on the passenger’s seat of the defendant’s truck.

ImWhile the defendant attacks B.V.’s credibility, the record reflects that B.V.’s account of the events was unwavering. Further, Deputy Clement testified that B.V.’s report of the rape was consistent with what B.V. told Dr. Wild. Deputy Clement also observed that B.V. was hysterical and crying, which is expected in a rape victim. B.V. immediately identified the defendant as her attacker shortly after the assault and again at trial.

A careful review of the record reveals that, viewed in the light most favorable to the prosecution, the evidence was sufficient for rational jurors to conclude that the State proved the essential elements of the charged offense, forcible rape, beyond a reasonable doubt. Hence, the jury did not err in returning the responsive verdict of simple rape.

In his second assignment of error defendant contends that the trial judge erred in failing to declare a mistrial because the prosecutor made two prejudicial comments during voir dire on the defendant’s choice not to testify. First, the defendant points to the prosecutor’s statement that, “it would take fifteen thousand pounds of chains to keep me off the stand if I was accused of a crime.” The defendant also challenges the prosecutor’s remark that, “wild horses couldn’t keep me off the stand, nothing can prevent me from getting up there and claiming my innocence; you know I would crawl over the table to get to the stand when presented with the opportunity.” The defendant concedes that his trial counsel failed to object to these remarks, but contends that the failure to object resulted in ineffective assistance of counsel, which he raises in Assignment Four. The State responds that the defendant is precluded from raising his claim on appeal due to the lack of an objection. The State asserts that, in any event, the prosecutor’s remarks were merely directed at exploring the prospective jurors’ views on a |1¶ defendant who invokes his right to remain silent, and were not improper comments on the defendant’s right to remain silent.

The remarks singled out by the defendant were made immediately after the prosecutor’s explanation of the presumption of innocence and during the prosecutor’s discussion of a defendant’s right not to testify. The prosecutor began his comments by telling the jury that the defendant did not have to testify and that the jury could not hold it against him. The prosecutor then asked the following question, which contained the first set of the comments the defendant challenges:

Just by a show of hands, would any of y’all say it would take fifteen thousand pounds of chains to keep me off the stand if I was accused of a crime? Any of you all?

The record reflects that affirmative indications were given.

The next comment occurred when the prosecutor was interviewing one of the jurors who equivocated when asked if she could accept the concept of a defendant’s asserting his right not to testify:

THE STATE:
Okay. Well, let’s talk about it. What (sic) you’re unsure about?
JUROR:
If I was innocent I would be so righteously angry that I was accused.
THE STATE:
Okay. And that’s alright. But you understand what the law is. The law is that you can’t hold it against them.
JUROR:
Yeah, I know.
THE STATE:
Alright. Even though you feel that way and you say wild horses couldn’t keep me off the stand, nothing can prevent me from getting up there and claiming my innocence; you know, I would crawlj^over the table to get to the stand when presented with the opportunity. That’s you.
JUROR:
Uh huh. (Affirmative response).

The defendant did not object to these comments or move for a mistrial.

La.C.Cr.P. art. 770(3) provides that, upon the defendant’s motion, a mistrial shall be ordered when the prosecutor makes a remark or comment during the trial or in argument, within the hearing of the jury, that refers directly or indirectly to the failure of the defendant to testify in his own defense. See, State v. Mitchell, 00-1399 (La.2/21/01), 779 So.2d 698, 701. During voir dire, the State may mention the defendant’s constitutional privilege against self-incrimination to the jurors, and then inquire into the weight jurors will give to the defendant’s testimony if he decides to testify. State v. Shea, 421 So.2d 200, 206 (La.1982), rev’d on other grounds, 470 U.S. 51, 105 S.Ct. 1065, 84 L.Ed.2d 38 (1985).

In this case, the defendant neither objected nor moved for a mistrial based on the prosecutor’s remarks. In order to preserve an issue for appellate review, a party must state an objection contemporaneously with the occurrence of the alleged error, as well as the grounds for the objection. La.C.Cr.P. art. 841. See, State v. Johnson, 03-620 (La.App. 5 Cir. 10/28/03), 860 So.2d 180, 187, writ denied, 03-3171 (La.3/19/04), 869 So.2d 849. The purpose behind the contemporaneous objection rule is to put the trial judge on notice of an alleged irregularity so that he may cure the problem, and to prevent the defendant from gambling on a favorable verdict, then resorting to appeal on errors that might easily have been corrected by an objection. State v. Johnson, supra. In State v. Wesley, 33,402 (La.App. 2 Cir. 5/10/00), 759 So.2d 286, writ denied, 00-1702 (La.4/12/01), 788 So.2d 1201, the court held that because the defendant failed to object or move for a mistrial based |lson an alleged prosecutorial comment on the defendant’s failure to testify, the defendant was precluded from raising that issue for the first time on appeal. In the instant case, we find that the defendant is likewise precluded from raising this issue for the first time on appeal, considering that the defendant failed to object or move for a mistrial.

In his third assignment of error, the defendant contends that his sentence is excessive because the trial judge did not adequately consider the guidelines in La. C.Cr.P. art. 894.1. The defendant further contends that the trial judge imposed an excessive sentence “because the trial judge was mad at defense counsel, Martin Re-gan, who was hired on the case prior to sentencing.” The State responds that the defendant is limited to a constitutional review of his sentence because he did not file a motion to reconsider sentence and the record supports the sentence imposed.

In this case, defendant did not make or file a motion to reconsider the sentence on specific grounds. Rather, he merely noted his objection to the sentence. Nevertheless, this Court has , recognized that the failure to file a motion to reconsider sentence, or to state specific grounds upon which the motion is based, limits a defendant to a review of his sentence for constitutional excessiveness only. State v. Pendelton, 00-1211 (La.App. 5 Cir. 3/14/01), 783 So.2d 459, 465, writ denied, 01-1242 (La.1/25/02), 807 So.2d 243.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive, even if it is l14within the statutory limits, if it is grossly disproportionate to the severity of the offense or imposes needless and purposeless pain and suffering. State v. Lobato, 603 So.2d 739, 751 (La.1992).

In reviewing a sentence for exces-siveness, the reviewing court must consider the crime and the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice, recognizing at the same time the wide discretion afforded the trial judge in determining and imposing the sentence. State v. Allen, 03-1205 (La. App. 5 Cir. 2/23/04), 868 So.2d 877, 879.

In reviewing a trial court’s sentencing discretion, three factors are considered: 1) the nature of the crime, 2) the nature and background of the offender, and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Allen, 868 So.2d at 880. The trial judge is afforded wide discretion in determining a sentence, and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed, even when the trial judge does not provide reasons for the sentence. State v. Uloho, 04-55 (La.App. 5 Cir. 5/26/04), 875 So.2d 918, 933, writ denied, 04-1640 (La.11/19/04), 888 So.2d 192.

Simple rape is punishable by imprisonment, with or without hard labor, without benefit of parole, probation, or suspension of sentence, for not more than twenty-five years. La. R.S. 14:43(B). The trial judge sentenced the defendant as follows:

THE COURT:
The Court has read the PSI that was prepared. The Court sat through the trial and heard the evidence that was presented.
And in light of that and the guidelines in connection with 894.1, the Court hereby sentences you to serve 15 years in the Department of Corrections at hard labor. That sentence will be 11swithout benefit of probation, parole, or suspension of sentence, and you’ll be given credit for time served.

The presentence investigation report (PSI) reflects that the defendant was 24-years-old at the time of the commission of the offense. While the PSI reflects this is the defendant’s first felony conviction, the defendant has a 2003 Texas misdemeanor conviction for “Assault Causes Bodily Harm.” The defendant’s 15-year sentence is in the mid-range of the possible 25-year sentencing exposure. In State v. Wilkinson, supra, this Court held that the defendant’s 20-year sentence for simple rape was not excessive, despite the defendant’s argument that the trial judge failed to consider his lack of prior felonies. In that case, the defendant was charged with forcible rape and this Court found that the evidence supported a verdict of forcible rape. Id., at 772 So.2d at 771.

The question presented when reviewing a defendant’s sentence is not “whether another sentence would have been more appropriate but whether the trial court abused its broad sentencing discretion.” State v. Jones, 99-2207 (La.1/29/01), 778 So.2d 1131, 1133. Although the trial judge restricted benefits for the entire sentence, the trial judge imposed a mid-range sentence. Considering all of the circumstances in this case, including that the evidence supports a verdict of forcible rape, we find that the trial judge did not abuse her discretion by imposing the 15-year sentence for the simple rape conviction.

In defendant’s fourth assignment of error, he argues he had ineffective assistance of counsel in several respects. The defendant contends that his trial attorneys 1) failed to subject the prosecution’s case to meaningful adversarial testing; 2) failed to call any witnesses; 3) failed to urge the defendant to testify in his own defense; 4) failed to request to have the jury inspect the defendant’s truck; 1165) engaged in confusing behavior throughout trial; 6) failed to submit the rape kit for DNA testing; and 6) failed to object to the prosecutor’s improper comments during voir dire on his right not to testify at trial.

The State responds that the defendant’s allegations are best addressed in an application for post-conviction relief, but that relief is not warranted in any event.

Generally, a claim for ineffective assistance of counsel is most appropriately addressed through an application for post-conviction relief, filed in the trial court where a full evidentiary hearing can be conducted, rather than by direct appeal. State v. Peart, 621 So.2d 780, 787 (La. 1993); State v. McIntyre, 97-876 (La.App. 5 Cir. 1/27/98), 708 So.2d 1071, 1075, writ denied, 98-1032 (La.9/18/98), 724 So.2d 753. When the record contains sufficient evidence to rule on the merits of the claim and the issue is properly raised by an assignment of error on appeal, it may be addressed in the interest of judicial economy. Id. Where the record does not contain sufficient'evidence to fully explore a claim of ineffective assistance of counsel, the claim should be relegated to post-conviction proceedings under La.C.Cr.P. arts. 924-930.8; State v. Rose, 97-943 (La.App. 5 Cir. 1/27/98), 708 So.2d 1093, 1095, writ denied, 98-0673 (La.8/28/98), 723 So.2d 416.

We have reviewed the defendant’s allegations of ineffective assistance of counsel made herein and find that there is sufficient evidence to consider some, but not all, of the allegations. Therefore, we find this assignment of error and its supporting allegations of ineffective assistance of counsel are best considered in their entirety by the trial court on post-conviction relief at an evidentiary hearing. Accordingly, we pretermit further discussion of this assignment of error in this direct appeal. See, State v. Taylor, 04-346 (La. App. 5 Cir. 10/26/04), 887 So.2d 589, 595.

_JjjFinally, the record was reviewed for errors patent, according to La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). It is noted that there is a discrepancy between the commitment and the transcript. The transcript indicates that the trial judge did not advise the defendant of the two-year prescriptive period for filing post-conviction relief as required by LSA-C.Cr.P. art. 930.8. The commitment indicates that defendant was properly advised of this prescriptive period. Where there is a discrepancy between the commitment and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). It is further noted that defendant was convicted of simple rape, which is defined as a sex offense by La. R.S. 15:541(14.1). La. R.S. 15:540, et seq. require registration of sex offenders, and La. R.S. 15:543(A) requires the trial court to notify a defendant of the sex offender registration requirements of La. R.S. 15:542. The record does not reflect that the defendant was informed of the registration requirements as provided by La. R.S. 15:543(A).

Therefore, we remand the matter to the district court and order the district court to inform the defendant of the provisions of La.C.Cr.P. art. 930.8 and La. R.S. 15:543(A) by sending appropriate written notice to the defendant within ten days of the rendition of this Court’s opinion and to file written proof that defendant received the notice in the record. See, State v. George, 99-887 (La.App. 5 Cir. 1/4/00), 751 So.2d 973, 975; State v. Stevenson, 00-1296 (La.App. 5 Cir. 1/30/01), 778 So.2d 1165, 1166-1167.

Accordingly, we affirm the defendant’s conviction and sentence and remand the case to the district court with the above instructions.

AFFIRMED AND REMANDED.

      . It is noted that the defendant filed several writ applications. This Court did not grant any of the writ applications. Two writs, 04-K-1106 and 04-K-1354, dealt with the defendant’s speedy trial motions. Another writ, 04-K-1383, dealt with the trial judge's ruling on the defendant's motion to quash because of missing evidence, to wit, a hair allegedly recovered during the victim’s rape exam. Finally, writ number 04-K-1384 dealt with the trial judge's denial of the defendant’s motion in limine to exclude testimony regarding the discovery of the hair.

      . The victim is identified by initials to protect her identity. See La. R.S. 46:1844(W)(3).

      . B.V. testified that she was not wearing underpants.

      . It is noted that B.V. said that she burned her lip when she was smoking a cigarette while on the phone with 911. It is unclear whether the abrasion Dr. Wild noted on the underside of B.V.’s lip was the cigarette burn.

      . Detective David Spera explained that the hair was not submitted for testing because the victim’s genital area did not have hair. As such, the hair could not have linked the victim to the defendant’s truck.

      . Simple rape is defined in pertinent part in La. R.S. 14:43:
      A. Simple rape is a rape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of a victim because it is committed under any one or more of the following circumstances:
      (1) When the victim is incapable of resisting or of understanding the nature of the act by reason of a stupor or abnormal condition of mind produced by an intoxicating agent or any cause and the offender knew or should have known of the victim's incapacity. '
      (2) When the victim is incapable, through unsoundness of mind, whether temporary or permanent, or understanding the nature of the act and the offender knew or should have known of the victim's incapacity.

      . It is noted that the trial judge set a rule for contempt on Mr. Regan because he was late for court. Thomas Calogero was standing in for Mr. Regan until he arrived. Moreover, the defendant was represented at sentencing by the attorneys who represented him during trial because the trial judge did not allow the trial attorneys to withdraw.

      . The'facts of Wilkinson are slightly different from the instant case, considering that the victim in Wilkinson was a 14-year-old girl and B.V. was in her early twenties.

      . The defendant references the same prosecu-torial comments as in Assignment Two.


author: THOMAS F. DALEY, Judge.

text:
    GULF NATIONAL, L.L.C. v. ALFORTISH, INCORPORATED d/b/a Alfortish, Inc.
    No. 05-CA-804.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 14, 2006.

      Mark C. Landry, Newman, Mathis, Brady, & Spedale, Metairie, Louisiana, for Plaintiff/Appellant.
    David H. Alfortish, Attorney at Law, Gretna, Louisiana, for Defendants/Appel-lees.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY, and WALTER J. ROTHSCHILD.
   THOMAS F. DALEY, Judge.

pin this suit to enforce three promissory notes, Gulf National, L.L.C., appeals a judgment granting defendant, Alfortish, Inc.’s, Exception of Prescription. The central question in this appeal is whether prescription runs in favor of a debtor whose debt is secured by a pledge. Finding that Louisiana law answers this question in the negative, we reverse and remand.

Alfortish, Inc. (hereinafter referred to as Alfortish), the primary defendant in this matter, executed three promissory notes in favor of Hibernia National Bank: the first, dated May 3, 1990, in the principal amount of $48,010.85; the second, dated May 3, 1990, in the principal amount of $30,030.00; and the third, dated February 15, 1989, in the principal amount of $16,851.38. In conjunction with the May 3, 1990 loans, Alfortish executed, in addition to the hand notes, a collateral mortgage note, a collateral mortgage, and a “Pledge of Collateral Mortgage Note.” The collateral mortgage note was paraphed for identification with an act of collateral mortgage dated May 3, 1990, encumbering certain property owned by Alfortish in Jefferson Parish. Co-defendant, Reuben P. Alfortish (hereinafter | ?,“Reuben”), executed in favor of Hibernia a continuing guaranty of all of the obligations of Alfortish.

PROCEDURAL HISTORY

When the notes went into default, Hibernia filed a Petition for Executory Process against Alfortish, and named as defendants Reuben and other guarantors of the loans. The original promissory notes and collateral mortgage note were attached as exhibits to the Petition. The original Petition for Executory Process was supplemented on July 23, 1997, by a supplemental petition that converted the executory proceeding into an ordinary proceeding. Thereafter, judgment by default was rendered against three of the guarantors of the loans, but no judgment was ever rendered against Alfortish or Reuben. There was no action taken against either Alfortish or Reuben for a period of more than three years, and as to them, that action was dismissed, by operation of law, as abandoned, pursuant to LSA-C.C.P. art. 561.

On September 27, 2002, Hibernia sold all three notes to Gulf National, and transferred to Gulf National all of its rights in the collateral securing the loans, and in the judgment taken against the three guarantors. On October 21, 2004, Gulf National filed a motion to have itself substituted as party plaintiff in the Hibernia suit, and it filed a motion to withdraw from the record the three original promissory notes and the collateral mortgage note, noting that it wished to file a different law suit to enforce the same. The court granted both motions on October 28, 2004.

On November 4, 2004, Gulf National filed this suit against Alfortish. Initially, the suit sought judgment on the notes, and sought to enforce the pledge of the collateral mortgage note and collateral mortgage by ordinary process. Prior to 14service of process on Alfortish, Gulf National filed a Supplemental and Amending Petition that added Reuben as a defendant, and deleted any attempt to enforce the collateral mortgage note or the collateral mortgage. The supplemental petition did specifically plead the constant acknowl-edgement rule of Scott v. Corkern, 231 La. 368, 91 So.2d 569 (1956), Succession of Picard, 234 La. 455, 115 So.2d 817 (1959), and Kaplan v. University Lake Corp., 381 So.2d 385 (La.1979), referencing the pledge of the collateral mortgage note to Hibernia.

Both defendants filed an Exception of Lis Pendens, noting that the original suit (No. 482,176) was still pending. At a hearing, however, it was noted that as to Al-fortish and Reuben, the lawsuit was dismissed without prejudice as having been abandoned. The Exception of Lis Pen-dens was therefore overruled, and judgment was entered accordingly on May 31, 2005.

The defendants filed an Exception of Prescription, arguing that the three promissory notes had prescribed. Gulf National argued the constant acknowledgement rule of the security device of pledge. At the hearing on June 24, 2005, the trial court ruled in favor of defendants, stating:

The Court is not persuaded that the mechanism here, the pledge, has as one of it’s [sic] qualities an in perpetuity characteristic, that is to say it can run in perpetuity until the person holding the pledge decides to release it. I don’t think that’s what’s intended or was intended. Your exception is granted. Thereafter, Gulf National perfected this appeal.

ANALYSIS

Pledge is a security device whereby the debtor gives something to the creditor as security for his debt. LSA-C.C. art. 3133.

[/The law of this state is clear that ‘prescription does not run in favor of the debtor whose debt is secured by a pledge, and that it remains interrupted, as long as the thing pledged is in possession of the pledgee,’ and that ‘it is not the contract or act of pledge that interrupts prescription but rather the detention by the pledgee of the thing pledged, such possession serving as a constant acknowl-edgement of the debt and hence a constant renunciation of prescription.’ Succession of Picard, 238 La. 455, 115 So.2d 817 (La. 1959), citing Scott v. Corkern, 231 La. 368, 91 So.2d 569 (La.1956). See also Gulf Coast Bank & Trust Co. v. Donnaud’s Inc., 99-1228 (La.App. 5 Cir. 4/25/00), 759 So.2d 268.

It is not essential to the validity of the pledge that physical possession of the thing pledged be in the creditor himself; it is sufficient that it be in someone who holds on behalf of the creditor. Scott v. Corkern, 91 So.2d at 572.

Gulf National’s predecessor in interest in the notes, Hibernia, held physical possession of the pledged collateral mortgage note until the time Hibernia sued Alfortish and other defendants to collect the underlying debt. When Hibernia filed suit, it attached the notes and the collateral mortgage note to the Petition, and they were held by the Clerk of Court until the time that Gulf National, Hibernia’s assign-ee and successor in interest to the notes and pledge, who had been substituted for Hibernia as plaintiff, moved to withdraw them from the first suit so as to pursue enforcement of the debt in a second suit. Clearly, the Clerk of Court held the pledged item, the collateral mortgage note, on behalf of Hibernia and Gulf National, maintaining the pledge.

It is equally clear that since the creditor and then its assignee have had constant physical possession and then constructive possession, through the Clerk of Court, of the collateral mortgage note, prescription of the underlying debt remains | (¡interrupted. The trial court clearly erred in maintaining the defendants’ Exception of Prescription.

The trial court stated its disagreement with the idea that the pledge had a characteristic of “perpetuity until the person holding the pledge decides to release it.” The creditor does not have unfettered discretion to retain the pledged item. The creditor is bound to return the pledged item to the debtor upon the whole payment of the underlying debt and any interest and costs. LSA-C.C. art. 3164. According to the pleadings, that event has not occurred in this case.

Though not addressed by the court in its reasons for ruling, counsel for defendants argued that pledge is a contract; consent is necessary for a contract; and that once Hibernia sued defendants for enforcement of the debt, the relationship between pled-gor and pledgee changed into one of plaintiff and defendant and thus consent to the contract of pledge was vitiated and the security device was voided. There is no support for such a position in Louisiana law. Under such reasoning, any time a creditor sued to enforce a debt secured by a pledge, that security device would evaporate. The jurisprudence is full of reported cases of creditors suing to collect debts secured by pledges and no such result obtains. Further, as Succession of Picard points out, it is not the contract of pledge that interrupts prescription, but the creditor’s physical detention of the thing pledged that serves as a constant acknowl-edgement of the debt and hence interrupts prescription of the debt.

Accordingly, the trial court clearly erred, as a matter of law, in maintaining defendant’s Exception of Prescription. The judgment is reversed and the matter remanded for further proceedings. Costs of appeal are taxed to appellee.

REVERSED AND REMANDED

      . The Petition was filed in the 24th JDC and bears case No. 482,176.

      . The parties do not dispute the fact that the filing of the first lawsuit is not considered to have interrupted prescription, since it was abandoned, as per LSA-C.C. art. 3463.


author: DREW, J.

text:
    STATE of Louisiana, Appellee v. Dudley LEWIS, Appellant.
    Nos. 40,802-KA, 40,803-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 22, 2006.

      Louisiana Appellate Project by G. Paul Marx, for Appellant.

      John Schuyler Marvin, District Attorney, John Michael Lawrence, Charles A. Smith, Assistant District Attorneys, for Appellee.
    Before STEWART, DREW and MOORE, JJ.
   DREW, J.

|, Dudley Lewis seeks review of his concurrent sentences for aggravated incest (La. R.S. 14:78.1) and attempted manslaughter (La. R.S. 14:31 and 27). The trial court imposed sentences of 19 years at hard labor on each conviction and denied a motion for reconsideration of sentences. We affirm.

Between January 1998 and June 2001, the defendant committed “lewd or lascivious acts” upon his wife’s niece, who was born in 1989, with the intent to arouse sexual desires.

Between November 2003 and December 2003, the defendant spoke with another individual about forming plans to kill his wife by giving her an overdose of pills. The defendant was arrested after retrieving the pills to be used in the murder from a predetermined location.

The defendant was initially charged with oral sexual battery, aggravated incest, attempted second degree murder, and conspiracy to commit second degree murder.

On September 20, 2004, the defendant pled guilty to aggravated incest and the responsive charge of attempted manslaughter. The oral sexual battery and conspiracy charges were dismissed according to the terms of the plea agreement. The defendant was sentenced to 19 years at hard labor on each count, to be served concurrently.

When, as here, a defendant’s motion for reconsideration urges merely that the sentence is excessive, he is relegated only to a claim ofLconstitutional excessiveness. State v. Mims, 619 So.2d 1059 (La. 1993); State v. Duncan, 30,453 (La.App.2d 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. White, 37,815 (La.App.2d Cir.12/17/03), 862 So.2d 1123. A sentence violates La. Const, art. I, § 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, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (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 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

A plea bargain which brings about substantial benefits to a defendant is a legitimate consideration in sentencing. State v. Strange, 28,466 (La.App.2d Cir.6/26/96), 677 So.2d 587; State v. Lighten, 516 So.2d 1266 (La.App. 2d Cir.1987). A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, an appellate court 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. Lingefelt, 38,038 (La.App.2d Cir.1/28/04), 865 So.2d 280, writ denied, 2004-0597 (La.9/24/04), 882 So.2d 1165.

A -person convicted of aggravated incest shall be fined an amount not |ato exceed $50,000, or imprisoned, with or without hard labor, for a term not less than 5 years nor more than 20 years, or both. La. R.S. 14:78.1(D). Whoever commits attempted manslaughter shall be imprisoned at hard labor for not more than 20 years. La. R.S. 14:27; La. R.S. 14:31(B).

In his first assigned error, the defendant argues that the trial court erred in denying him a pre-sentencing evidentiary hearing to consider mitigating evidence. Pre-sentencing hearings are not required by our Code of Criminal Procedure, and due process does not necessarily require a full scale evidentiary hearing. Here, the defendant has not alleged that any prejudicial information considered at the sentencing hearing was false. A review of the record shows no attempts by the defendant to introduce mitigating evidence. The defendant did not request an eviden-tiary hearing until after the sentences had been imposed. • Therefore, he failed to timely request such a hearing, and the trial court did not err in refusing the request. See State v. Telsee, 388 So.2d 747 (La.1980).

The defendant was sentenced to 19 years at hard labor for each count, to be served concurrently. Prior to imposing sentence, the district court considered a PSI report and reviewed the terms of the plea bargain. After the trial court announced the sentences, defense counsel objected that the sentences were excessive. Those objections were overruled and noted for the record. The defendant filed a motion to reconsider sentence which argued only excessiveness of sentence.

The defendant greatly benefitted from the plea bargain, which reduced the charge of attempted second degree murder to attempted | ¿manslaughter, thereby reducing the sentencing range from 10 to 50 years at hard labor without benefits to the more lenient range of not more 20 years at hard labor, with benefits. The plea agreement also stipulated that the two sentences for attempted manslaughter and aggravated incest run concurrently and that the other charges be dismissed.

The trial court noted that the defendant’s sexual relations with his wife’s niece was not “an isolated incident” and that the defendant had likely been conducting an ongoing sexual relationship with the child. The trial court stated that the police had evidence of conversations the defendant had with the child in which he made reference to past sexual experiences as well as plans to continue the acts. The trial court also discussed the fact that the police had received information that the defendant had planned his wife’s murder in detail and retrieved pills from a prearranged location in furtherance of the plot.

On this record, we do not find constitutional error. The sentences are lawful and are neither grossly disproportionate to the severity of the offense of conviction nor shocking to our sense of justice. The defendant greatly benefitted from the plea agreement. There is no showing of an abuse of the district court’s discretion in the imposition of this sentence.

The sentences are AFFIRMED.

      . Kinship by affinity is sufficient for the crime of aggravated incest (La.R.S.14:78.1). This contrasts with a prosecution for the crime of incest (La. R.S. 14:78), which requires proof of blood kinship (relationship by consanguinity)-

      . The sentence for aggravated incest is also with benefits.

      . The trial court failed to state aggravating and mitigating factors as required by La. C. Cr. P. art. 894.1. Given the seriousness of the offenses, the benefits of the plea agreement, and the failure of the defendant to allege more than a constitutionally excessive sentence, we choose not to remand for re-sentencing; however, we stress to the learned trial court the importance of articulating determinative factors considered at sentencing, as this facilitates fair and complete reviews of sentences.