text:
    STATE of Louisiana, Appellee v. Wayne J. GUIDRY, Jr. Appellant.
    No. 41,694-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 28, 2007.

      Louisiana Appellate Project Counsel by Mary Constance Hanes, for Appellant.
    Walter E. May, Jr., District Attorney, Hugo A. Holland, Jr., Kenneth P. Haines, Assistant District Attorney, for Appellee.
    Before GASKINS, MOORE and LOLLEY, JJ.
   LOLLEY, J.

11 Defendant, Wayne J. Guidry, Jr., appeals a judgment from the Second Judicial District Court, Parish of Claiborne, where a jury found him guilty as charged of the second degree murder of Stephanie Pepper Sims. He was sentenced to life imprisonment without benefits. For the following reasons, we affirm.

FACTS

Stephanie Pepper Sims disappeared on January 5, 2003. On February 13, 2003, after a six-week search, her body was found in a secluded hole located in the Jackson Bienville Wildlife Management Area (“Wildlife Management Area”) near Quitman, Louisiana. She had suffered a single gunshot wound to the chest. Wayne Guidry was subsequently indicted for second degree murder. After a nine-day jury trial at which the following facts were adduced, Guidry was found guilty as charged.

Background

Stephanie, 30, was an assistant professor of English at Louisiana Tech University (“Tech”). She was married to David Sims in August of 1998, and they lived together in Ruston, Louisiana. She met the defendant, Wayne Guidry, on the evening of November 20, 2002, when she and a friend, Ginger Hoover, went to Stow’s Bar in Ru-ston to mark the end of the semester. Guidry introduced himself to the women and engaged them in small talk for several hours. He said he was in town for the weekend to hunt and described himself as a professional golfer who was in his off-season. Stephanie spent the rest of that evening and the weekend with |2Guidry, which marked the beginning of their six-week clandestine romantic affair.

After having known Stephanie for only a few days, Guidry professed his love for her. Stephanie separated from David within a week of meeting Guidry. David, unaware of Stephanie’s affair, helped her move out of their Ruston home and into an apartment in West Monroe, Louisiana. According to David, Stephanie was looking forward to being on her own for the first time in her life.

Ever the opportunist, Guidry began living with Stephanie. Stephanie financially provided everything for him while they were together. Stephanie visited Guidry’s hometown of Luling, Louisiana, to meet his family that Christmas. Stephanie eventually introduced Guidry to her mother, Barbara Pepper. She also told her father, Howard Pepper, about Guidry and the two were going to meet the week Stephanie came up missing.

After a few weeks, Stephanie and Gui-dry began to have frequent arguments. Stephanie told Ginger that she was ready for Guidry to “not be there all the time.” Ginger was also present during a discussion between Stephanie and Guidry involving the possibility of Stephanie getting $100,000.00 if she were to divorce David. Ginger’s last conversation with Stephanie was when Stephanie called and wanted to make plans for New Year’s Eve because she and Guidry were not getting along.

Sunday, January 5, 2003: Stephanie’s disappearance

At about 8:30 a.m. on Sunday, January 5, 2003, Stephanie called her mother and discussed her plans for the day. Stephanie told her mother that|sshe was going to church with David in Ruston and that Gui-dry wanted her to return to West Monroe afterward because he “had a surprise for her.” Stephanie told her mother that she would call her later to tell her about the surprise. This was the last time Barbara spoke to Stephanie.

Stephanie arrived at her Ruston home at about 9:30 a.m. When Stephanie and David arrived at the church at about 9:45 a.m., the parking lot was empty. David then remembered that there was going to be a community-wide send-off that day for military troops going to Iraq and the local churches were participating. David then entered the church foyer to return a book. Phone records and the church pastor confirmed David’s testimony regarding the phone call and stop at the church.

David and Stephanie then left the church and went shopping at Wal-Mart at about 10:00 a.m., as verified by the surveillance tape. Surveillance photographs further verified David’s testimony that they then went to a Citgo station for Stephanie to get a beverage at about 10:45 a.m. Afterward, Stephanie and David went to their home, where Stephanie wrote a check to pay a dry-cleaning bill. The check was later found in an envelope in Stephanie’s car. David explained to Stephanie that he had accepted the fact that their marriage might end in divorce, and he was starting to try to make the best of the situation. Stephanie asked David if he would be willing to go to counseling and he agreed.

14At about 11:15 a.m., Stephanie and David walked outside to Stephanie’s car, where they were observed by their neighbor. Stephanie then left in her car to return to West Monroe at about 11:30 a.m. This was the last time David saw Stephanie alive. David spent the rest of day and evening at his Ruston home. David’s neighbor verified that she saw his truck was under his carport at various intervals throughout that afternoon and evening.

Barbara did not hear back from Stephanie that Sunday afternoon. She began calling both her cell and apartment phone numbers, but was unable to reach her. Barbara, worried that something had happened to Stephanie, alternated dialing both phone numbers all night until she finally fell asleep.

Monday, January 6, 2003: The Search for Stephanie

On the morning of January 6, Howard Pepper called Tech to see if Stephanie arrived to teach her 8:00 a.m. class, but nobody had seen or heard from her and her classroom was still locked. Howard and Barbara immediately drove to Stephanie’s West Monroe apartment. An apartment maintenance man unlocked Stephanie’s apartment door for the Peppers sometime between 10:30 and 11:00 a.m. The apartment looked normal and orderly and neither her purse nor her cell phone was found inside. Her computer was on and connected to the internet through a dial-up connection that used the phone line. When they terminated the internet connection, Stephanie’s phone immediately began to ring. Barbara answered the phone.

The caller was Guidry inquiring about Stephanie. Barbara told Guidry that they were looking for her and asked Guidry when he last saw|RStephanie. He said he saw her “last night at the apartment.” Guidry also told Barbara that he last talked to Stephanie on the phone at about 6:30 a.m. Guidry explained to Howard that he was driving home to get his vehicle. He suggested to Howard that perhaps Stephanie’s car would not start this morning and told them she kept a spare key in a magnetic key holder behind the gas cap. The Peppers went outside to check Stephanie’s car, which was located in the apartment parking lot. They noticed that the driver’s seat was positioned far back and the engine was still warm to the touch, indicating that the car had been driven within the last three hours. They also noticed that the exterior of Stephanie’s car was uncharacteristically muddy on the sides and fender wells. Using the hidden key, the car started up immediately. It was then that the Peppers contacted police to report that Stephanie was missing.

Barbara had contacted David early that morning to find out if he had seen or heard from Stephanie. After checking with Stephanie’s office at Tech, David called Stephanie’s apartment repeatedly. In an effort to help find Stephanie, David also contacted Ginger. It was on this day that David first became aware of Stephanie’s affair and heard Wayne Guidry’s name for the very first time.

That evening, the Peppers received a phone call from Guidry. He told them he was concerned about Stephanie and planned to return later in the week to help find her. Howard urged Guidry to contact the West Monroe Police Department immediately. Guidry called the Peppers again and told them that he could not reach the police station and said that it must be | ficlosed. It was later established that the police station was not closed at the time Guidry allegedly called.

Guidry also told the Peppers in a later conversation that Stephanie had recently attempted to commit suicide. He explained that she was in the bathroom taking her bath when the apartment lights went out. When he jumped up to check on her in the bathroom, Guidry said Stephanie was standing in the tub with the hair dryer down in the tub. This information raised “red flags” for Howard Pepper, who understood electricity and electrical code requirements and knew the apartment lights would not go out if the bathroom outlet was overloaded.

Over the next 6 weeks: The investigation

The investigation began as a search for a missing person. It was determined that Stephanie’s apartment showed no signs of forced entry, nor were there any other indications that it was a crime scene. Detectives performed an experiment in Stephanie’s apartment bathroom and determined that it was physically impossible for the hair dryer to reach the tub while plugged into the electrical outlet. It was further determined that the apartment bathroom had a circuit breaker/ground fault interrupt electrical outlet. When the outlet was overloaded, the lights in the apartment did not go out. Also, the Lor-cin .25 caliber automatic pistol Stephanie’s father gave her in 1996 to use for protection was not located, but two boxes of .25 caliber ammunition were found in an open metal box in the bedroom closet of her apartment.

|7Every aspect of the detectives’ interviews with David regarding his last hours with Stephanie was corroborated by witnesses and physical evidence. Investigators decided they needed to speak with Guidry after learning of his relationship with Stephanie and the fact that, by his own admission, he was the last person to see and speak to Stephanie.

1) Interviews with Wayne Guidry

On the evening of January 7, Detective Jeff Terrell of the West Monroe Police Department conducted his first interview with Guidry, who was advised of and waived his Miranda rights. Guidry told Detective Terrell that he had returned to the area to help find Stephanie. Guidry described how he and Stephanie met and their relationship. He said that Stephanie told him she loved him within just a few days, and soon decided to leave her husband and move into an apartment. Guidry related that Stephanie asked him to move in with her, and she provided everything for him. Guidry said Stephanie told him to sell his truck, and she gave him a $3,000.00 check to use to fix his other vehicle. He claimed that she also allowed him to use her credit card to purchase golf clothes and clubs totaling about $5,000.00.

Additionally, Guidry said that Stephanie told him that she would be getting about $100,000.00 in her divorce from David. After she got the money, Guidry explained that they planned to move to Tennessee where he would play golf and she would go back to school. Charges to Stephanie’s credit card for the internet purchase of golf equipment on January 4th at 8:36 a.m. for $4,775.99 and on January 5th at 10:52 a.m. for $832.41, and | sthe subsequent shipment of the second order, were all later verified by trial testimony and physical evidence. It was also verified that Guidry sold his truck to a wrecking service.

In that first interview, Guidry explained his version of what happened on January 5, 2003. Guidry said Stephanie returned to the apartment about 11:45 a.m. after spending the morning with David in Ru-sten. He then fixed lunch and they ate. His account of that day’s events resumed at about 11:45 p.m. Guidry said he was watching a movie when the apartment lights went out. He got up to check on Stephanie and discovered her in the bathtub holding a hair dryer. She unemotionally told him, “Oh, it didn’t work.” Guidry said that they then got into an argument about him going to Luling, and she told him to leave the apartment. He asked her what he should do with the $3,000.00 check, and she told him to keep it.

Guidry claimed that he picked up his bags, went outside and waited in the cold for about 20 to 30 minutes. Then he used Stephanie’s spare car key to open the car to stay warm. He then drove her car around West Monroe and later returned to the apartment. During this time he said he tried to reach Stephanie on her home and cell phones, but Stephanie did not answer. Guidry told Det. Terrell that he also tried to open the apartment door, but it was locked. During the early morning hours of the next day, Guidry claims that he tried unsuccessfully to get a rental vehicle. He said that he drove Stephanie’s car back to the apartment at about 6:00 a.m. the next morning and called her. He could hear the phone ringing inside, but. she did not Ranswer. Guidry left in Stephanie’s car again and went to the bank to cash the $3,000.00 check.

Then he drove back to the apartment, parked Stephanie’s car, walked to a gas station and rented a U-Haul to drive to Luling. In Luling, Guidry explained that he got his own vehicle, an Isuzu Rodeo, out of the shop and bought four new tires. Guidry then suggested to the detectives that Stephanie might be with her friend Ginger. He also told police that Stephanie had “lots” of boyfriends — more than 30. The cashing of the check at Community Bank at 8:09 a.m., the rental of the U-Haul, and the repairs and new tires on Guidry’s vehicle were all verified by trial testimony and physical evidence; however, the phone calls were not verified.

Guidry consented to the search of his vehicle and of his family’s camp, where two duffle bags, some golf clubs, Stephanie’s laptop computer and a U-Haul receipt were found. The owner of several camps located near the Wildlife Management Area verified that she saw the two duffle bags and some other items on the porch of Guidry’s nearby camp on January 6. Several days later, Guidry arrived at the camp in a red jeep-type vehicle and picked up the items.

In a second interview on January 9, Guidry, who was advised of and waived his Miranda rights, gave Det. Terrell new details about his last day with Stephanie. He added that he and Stephanie had sex on January 5th, and had driven around to several places outside West Monroe, including Quitman. Guidry explained that they returned to the apartment before sunset. He later used Stephanie’s car to try to get a rental car for his trip to 11flLuling. When he was unable to get the rental, he filled Stephanie’s car with gasoline at the Chevron station, paid for the gas with Stephanie’s credit card, and returned to the apartment. Then Stephanie told him to leave. Guidry also added that at some point during that night, he drove Stephanie’s ear to the camp and dropped off his golf clubs. Detective Terrell construed these additional facts and the failure to mention the “hair dryer suicide attempt” in Guidry’s second statement as significant inconsistencies. A charge for gasoline made on Stephanie’s Chevron credit card on January 5th was later verified.

When asked about Stephanie’s pistol, Guidry said he last saw it in the door pocket of Stephanie’s car on January 5th when he was driving the vehicle. This conflicted with information obtained from David, who stated that he had only seen her pistol once, and he never knew her to keep it in her car. Also, after being asked four or five times if he had anything else of value belonging to Stephanie, Guidry finally admitted that he had Stephanie’s laptop computer. Later during this second statement, Guidry suggested to Det. Terrell several rural locations where Stephanie might have gone to commit suicide, including one location in or near the Wildlife Management Area. However, he had no explanation of how Stephanie could have committed suicide at one of these locations and return her car to the apartment parking lot. By this January 9th interview, Wayne Guidry, Jr., had become a prime suspect in Stephanie’s disappearance.

After being advised of and waiving his Miranda rights, Guidry gave a third interview on January 23, which was recorded. This time Guidry |ubrought up the possibility that he had a “black-out” due to a chemical imbalance. When the detectives mentioned using infrared radar technology to locate Stephanie’s body, Guidry asked if it could detect heat “underground.” Gui-dry further suggested that David had something to do with Stephanie’s disappearance, but ultimately placed blame for his predicament on Stephanie.

2) Further Investigation

Telephone records and forensic computer analysis indicated that internet access was obtained from Stephanie’s apartment on January 5th from 8:26 a.m. through 11:14 a.m., during which golf and pornographic websites were viewed. Then, after a six and a half hour lapse of time, internet activity resumed at 5:25 p.m. The websites viewed at various times throughout the evening included pornographic sites, the Community Bank, Greyhound Bus, U-Haul and the Yellow Pages for an automotive business. Then centerfold and golf websites were viewed intermittently throughout the early morning hours. All internet activity from Stephanie’s apartment ceased at 4:34 a.m. on January 6th.

Further investigation revealed that the last person to see Stephanie alive other than Guidry was Sarah Fitzpatrick, a convenience store clerk at Handy Foods in Quitman. Sarah remembered seeing her at Handy Foods on that Sunday, January 5th.

| ^February 13, 2003: The discovery of Stephanie’s body

Detectives spoke with Wayne Guidry, Sr., the defendant’s father, and Eric Du-frene, a close friend of Guidry’s, who hunted with him at the Wildlife Management Area on several occasions. Based on information obtained from these interviews, it was learned that Guidry found a hole in Wildlife Management Area and had actually shown the hole to Dufrene. Guidry also had described the location of the hole to his father in such detail that his father was able to provide a detective with directions to the hole. When asked by detectives where they should look for Stephanie’s body if Guidry had something to do with her disappearance, Dufrene told them to look for that hole in the Wildlife Management Area. After two unsuccessful searches, a massive search of the described area conducted on February 13, 2003, involving hundreds of officers from different agencies led to the discovery of Stephanie’s body in the secluded hole.

The autopsy revealed that Stephanie died of a single gunshot wound to her mid-chest inflicted at a slightly downward angle. In addition to her torn clothing, Stephanie’s body also had post-mortem drag abrasions. This evidence indicated that the murderer shot Stephanie, waited for her to die, dragged her body by the feet, and dumped her in the hole. Analysis of evidence taken from a sexual assault kit revealed that sperm cells on the vaginal smear slide contained DNA matching that of the defendant. However, there were no signs of vaginal or rectal trauma.

The bullet recovered from Stephanie’s body at the autopsy was a small caliber jacketed bullet — likely fired from one of 30 different weapon | isbrands. Although the murder weapon was never recovered, it was established that the bullet recovered from Stephanie’s body could have been fired from a Lorcin .25 caliber automatic pistol like the one Stephanie owned. Stephanie’s pistol was also never located; however, the two boxes of .25 caliber ammunition found in her bedroom closet were also determined to be consistent with the bullet taken from her body.

Procedural History

Guidry was subsequently indicted for second degree murder. A defense motion for a change in venue was granted and the trial was moved to Claiborne Parish. Proceedings on various other pretrial motions were held. Guidry entered a plea of not guilty.

Among the evidence produced during Guidry’s trial, the state presented testimony of inmate Terry Coleman regarding Guidry’s jailhouse confession of guilt in Stephanie’s murder. The jury was made aware that Coleman was incarcerated in Jackson Parish on a first degree murder charge and of his mental status. Coleman, who stated that he had been promised nothing in return for his testimony, appeared at Guidry’s trial with counsel and told his story. Coleman was extensively cross-examined at trial on issues impacting his credibility as a witness.

After the nine-day jury trial, Guidry was found guilty as charged of second degree murder. Defense motions for new trial and post-verdict judgment of acquittal were heard and denied. Guidry was sentenced to serve a term of life imprisonment at hard labor without benefit of probation, parole or suspension of sentence. This appeal followed.

luLAW AND DISCUSSION

Sufficiency of the Evidence

Guidry argues that the evidence was insufficient to support his conviction for second degree murder. Specifically he contends that since Terry Coleman’s testimony was not credible, and all other evidence was circumstantial, the state failed to exclude every reasonable hypothesis of innocence.

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 proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App. 2d Cir.04/02/97), 691 So.2d 347, writ denied, 1997-1203 (La.10/17/97), 701 So.2d 1333.

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, 1996-1048 (La.10/04/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 1994-_J11615 (La.10/16/95), 661 So.2d 442. 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 circumstances established by that evidence must be sufficient for a rational 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.09/25/98), 719 So.2d 610, writ denied, 1998-2723 (La.02/05/99), 737 So.2d 747.

Even without considering the testimony regarding Guidry’s jailhouse confession, a review of the record reveals that the state’s evidence was indeed sufficient to support Guidry’s conviction for the second degree murder of Stephanie Pepper Sims. Specifically, the state proved by direct and circumstantial evidence that Guidry began a romantic affair with Stephanie, and she subsequently separated from her husband, David. Stephanie financially supported Guidry, and he anticipated that she would get a large sum of money from her divorce. On the day of her disappearance, the state proved that Stephanie spent the morning with her husband and testimony from her mother indicated that Stephanie planned to see Guidry, who had a “surprise” for her.

Guidry admitted that he took Stephanie for an afternoon drive. They stopped at a convenience store in Quitman, which is near Guidry’s family’s 11fihunting camp and the Wildlife Management Area. Stephanie’s body was later found in a secluded hole located in the Wildlife Management Area. Guidry had previously disclosed the location of the hole to two trusted persons — his father and a close family friend. Further, Stephanie’s car was found with unusual amounts of mud on the car, and the driver’s seat was too far back for Stephanie to be the last driver. The state showed that beginning at 5:25 p.m., Guidry viewed internet websites for a local bank, Greyhound Bus, U-Haul, and an automotive business-indicating his next move. Early the next morning, Guidry cashed Stephanie’s $3,000.00 check, then fled to Luling in a U-Haul. There he spent Stephanie’s money to fix up his vehicle. Gui-dry admitted to Stephanie’s parents and the police that he was the last person to see or talk to Stephanie. Of notable interest were his inconsistent statements during his three interviews with the detectives, including all the uncorroborated phone calls he allegedly made. In addition, Stephanie’s gun was never found, and evidence presented at trial proved she was shot in the chest with a bullet consistent with one from her own .25 caliber Lorcin. In light of .the evidence establishing that her body showed signs of being dragged and her vehicle was found at her apartment, the state also discounted Guidry’s implications that Stephanie committed suicide.

Finally, Terry Coleman’s testimony only supplemented the wealth of evidence already ascertained to convict Wayne Gui-dry, Jr. His jailhouse confession included that Guidry shot the victim in the Wildlife Management Reserve, threw her into a hole, and disposed of the gun in a pond near the hole. Sheriff Andrew Brown confirmed that the letter, written by Terry |17Coleman, contained details of the crime that were not known to the media. Attempts by Guidry to place blame on David Sims and on Stephanie herself are totally unsupported by the record. We conclude that the presented evidence was overwhelming and more than sufficient to eliminate every reasonable hypothesis of innocence for the second degree murder of Stephanie Pepper Sims.

Admission of the Jailhouse Confession

Guidry also argues that the trial court erred in allowing Terry Coleman to testify regarding the alleged jailhouse confession despite the fact that the trial court knew Coleman had been diagnosed as a paranoid schizophrenic with auditory hallucinations.

Louisiana C.E. art. 601 provides that every person of proper understanding is competent to be a witness except as otherwise provided by legislation. Furthermore, a witness may testify to a matter based on personal knowledge. La. C.E. art. 602. Great weight is given to the trial judge’s determination of competency because of his or her opportunity to see and hear the witness. La. C.E. art. 104(A); State v. Willars, 27,394 (La.App. 2d Cir.09/27/95), 661 So.2d 673. Matters such as mental defect go to the witness’ credibility, not to competency. State v. Wilkerson, 448 So.2d 1355 (La.App. 2d Cir. 1984), writ denied, 450 So.2d 361 (La.1984).

The trial court conducted a competency hearing outside the presence of the jury, during which Terry Coleman admitted that he had been found incompetent to proceed in his pending murder proceedings. The following questioning transpired:

11sMr. Holland: All right. Mr. Coleman, do you know the difference in telling the truth and telling a lie?
Mr. Coleman: Yes.
Mr. Holland: Do you know what perjury is?
Mr. Coleman: Yes.
Mr. Holland: Would you explain to the Court what your understanding of perjury is?
Mr. Coleman: Perjury is lying under oath.
Mr. Holland: All right. The determination the Court would need to make is that you know the difference in telling the truth and telling a lie right now.
Mr. Coleman: Sure.

Following the hearing, which included direct and cross-examination of Terry Coleman, the trial court determined that he was competent to testify as a witness at Guidry’s trial. The trial court gave a summary of the facts and explained its reasoning. It acknowledged that Coleman had been incarcerated since 1998 on a first degree murder charge. The seven-year pretrial detention was explained by Coleman being found incompetent to stand trial due to substantial mental illnesses including schizophrenia with auditory hallucinations.

Although the trial court observed that the second part of the inquiry — Coleman’s personal knowledge-was “troublesome,” it found that the state established that Coleman had a proper understanding to testify by showing that he understood the difference between truth and lies. The trial court noted that issues of any disability relate to Coleman’s credibility and not his competency to testify. In Wilkerson, this court stated:

Certainly, this witness’ defects of capacity, sensory or mental, which would have lessened her ability to perceive the facts which [the witness] purports to have observed were provable to attack the credibility of the witness, either upon cross-examination or producing other witnesses to prove the |1fldefect. However, such matters go to [the witness’] credibility, not to [the witness’] competency, which was properly determined by the trial court. (Internal citations omitted.)

State v. Wilkerson, 448 So.2d at 1361-1362. Finally, we note that the Louisiana Supreme Court has never ordered a blanket exclusion of jailhouse witness testimony. State v. Robinson, 2002-1869 (La.04/14/04), 874 So.2d 66, cert, denied, 543 U.S. 1023, 125 S.Ct. 658, 160 L.Ed.2d 499 (2004).

The record supports the trial court’s ruling that Coleman was competent to testify as a witness at Guidry’s trial. Coleman’s answers to questioning demonstrated that he had proper understanding and his testimony was based on personal knowledge. Although Coleman’s testimony did not include information regarding his actual diagnosis, it did include sufficient information regarding his prior mental incompetency to stand trial and history of auditory hallucinations. Therefore, based on our thorough review of this record it cannot be said that the trial court’s determination was manifestly erroneous.

Fair Trial

Next, Guidry argues that he was denied a fair trial as a result of the introduction of Terry Coleman’s testimony. The Fifth and Fourteenth Amendments of the U.S. Constitution and La. Const, art. 1, § 2 provide that no person shall be deprived of life, liberty or property without due process of law. Other than the general reference to the Due Process Clause of the Fifth and Fourteen Amendments and the claim that the use of Coleman’s testimony deprived Guidry of a fair trial, Guidry offers no legal support for his argument. In fact, Guidry merely reargues issues of evidence sufficiency | anand witness competency. However, this court has determined the evidence to be sufficient without consideration of Coleman’s testimony, and further that the trial court did not err in finding Coleman competent to testify; therefore Guidry’s argument is meritless.

Ineffective Assistance of Counsel

Finally, Guidry contends that he received ineffective assistance of counsel. Specifically, he argues that his counsel failed to introduce evidence or testimony to explain the significance of Terry Coleman’s adjudication as incompetent to stand trial and his mental diagnosis. 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 evidentiary 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. 2d Cir.06/21/00), 764 So.2d 1164. A motion for new trial is also an accepted vehicle by which to raise such a claim. Id. Here, the record is sufficient for review of Guidry’s claim of ineffective assistance of counsel. It may therefore be resolved on direct appeal in the interest of judicial economy. State v. Ratcliff, 416 So.2d 528 (La.1982).

The right of a defendant in a criminal proceeding to effective assistance of counsel is mandated by the Sixth Amendment to the U.S. Constitution. State v. Wry, 591 So.2d 774 (La.App. 2d Cir.1991). A claim of ineffectiveness of counsel is analyzed under the two-prong test developed Is^by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

To establish that his attorney was ineffective, Guidry first must show that counsel’s performance was deficient. The relevant inquiry is whether counsel’s representation fell below the standard of reasonableness and competency as required by prevailing professional standards demanded for attorneys in criminal cases. Strickland, supra. The assessment of an attorney’s performance requires his conduct to be evaluated from counsel’s perspective at the time of the occurrence. A reviewing court must give great deference to trial counsel’s judgment, tactical decisions, and trial strategy, strongly presuming he has exercised reasonable professional judgment. State v. Moore, 575 So.2d 928 (La.App. 2d Cir. 1991); see also State v. Tilmon, 38,003 (La.App. 2d Cir.04/14/04), 870 So.2d 607, writ denied, 2004-2011 (La.12/17/04), 888 So.2d 866.

Second, Guidry must show that counsel’s deficient performance prejudiced his defense. This element requires a showing the errors were so serious as to deprive the defendant of a fair trial, i.e., a trial whose result is reliable. Strickland, supra. Guidry must prove actual prejudice before relief will be granted. He must show that but for counsel’s unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Strickland, supra; State v. Pratt, 26,862 (La.App. 2d Cir.04/05/95), 653 So.2d 174, writ denied, 1995-1398 (La.11/03/95), 662 So.2d 9.

[ ¡¡¡¡In the case at bar, the record reflects that through the defense counsel’s skilled and thorough cross-examination, the jury was given a plethora of information regarding Coleman’s mental health to use in judging his credibility. In fact, at one point during questioning, Coleman was asked, “Do you believe that you would believe the letter of a crazy man saying somebody confessed to me?” Coleman responded, “I sure wouldn’t.”

Even if the alleged failure of defense counsel to introduce such testimony and medical reports were considered to be unprofessional error, Guidry has not shown that, but for this alleged error, there is a reasonable probability the outcome of the trial would have been different. We find Guidry’s argument to be without merit.

CONCLUSION

For the foregoing reasons, the conviction and sentence for Wayne Guidry, Jr. is affirmed.

AFFIRMED.

      . The surveillance tape had a date stamp of 23:40:31 — a military designation which translates to 11:40 p.m. However, the footage was clear that Stephanie and David were at the Citgo during daylight hours, and a still photograph of the same image was date stamped 11:44 a.m. Further evidence revealed that the video and cameras had not been changed to reflect daylight savings time which would explain the hour time difference.

      . Pornographic websites were referred to at trial as ''centerfold” websites to prevent any undue prejudice to the defendant.


source: Caselaw Access Project

author: LOLLEY, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Abe WILLIAMS, Appellant.
    No. 41,816-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 28, 2007.

      Louisiana Appellate Project, by Mary C. Hanes, Clark G. Garret, for Appellant.
    Paul J. Carmouche, District Attorney, Tommy J. Johnson, Brady D. O’Callaghan, Assistant District Attorney, for Appellee.
    Before WILLIAMS, DREW and LOLLEY, JJ.
   LOLLEY, J.

|, This appeal arises from the First Judicial District Court, Caddo Parish, Louisiana. Abe Williams was charged by bill of information with one count of possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1. After a trial by jury, Williams was found guilty as charged. The trial court sentenced him to serve fifteen years’ imprisonment at hard labor without benefit of probation, parole or suspension of sentence. Williams now appeals, urging only that his sentence is excessive. For the following reasons, we affirm.

Facts

On April 15, 2005, Williams was driving in Shreveport, Louisiana when a Shreveport police officer stopped him for not wearing a seatbelt. During the encounter, the officer asked Williams to step out of his car. When the officer performed a pat-down search of Williams, the officer found a loaded Hi-Point .380 caliber handgun in Williams’ pants. After being advised of his rights, Williams volunteered that he had just been released on parole for a manslaughter charge. Williams was charged with possession of a firearm by a convicted felon. After a jury trial, he was convicted as charged.

Williams’ prior conviction was for manslaughter. On June 21, 1999, Williams pled guilty in the First Judicial District Court to one count of manslaughter in exchange for the reduction of the charge from second-degree murder. He was sentenced in November 1999 to serve seven years’ imprisonment at hard labor. In deciding the appropriate sentence for Williams on his felon-in-possession conviction, the trial judge recited the | ¡.facts of the manslaughter offense. At sentencing, the trial court noted that Williams left school in the ninth grade, was not married and claimed to have four children. Based upon Williams’ prior conviction and his possession of a weapon so soon after his release on parole, the trial court determined that Williams was a dangerous person who needed to be incarcerated for a lengthy period of time. The trial court, having reviewed the pre-sentence investigation, found no mitigating circumstances.

Williams was sentenced to serve fifteen years’ imprisonment at hard labor, without benefits and ordered to serve the sentence consecutively to any other sentence he may have to serve. The trial court also imposed a $1,000 fine upon Williams to be paid through inmate banking. Williams filed a motion to reconsider the sentence, urging that the sentence was excessive and that the trial judge failed to consider relevant mitigating circumstances. The trial court denied that motion, and Williams now appeals.

Discussion

On appeal, Williams raises only one assignment of error, arguing that the fifteen-year sentence for possession of a firearm by a convicted felon is excessive under the circumstances of the case. We disagree.

Louisiana R.S. 14:95.1 B provides:

Whoever is found guilty of violating the provisions of this Section shall be imprisoned at hard labor for not less than ten nor more than fifteen years without the benefit of probation, | ¡¡parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars.

The trial court opted to impose the maximum sentence of imprisonment and the minimum fíne upon Williams.

The test imposed by the reviewing court in determining the excessiveness 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 trial judge is not required.to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Hines, 39,613 (La.App. 2d Cir.04/06/05), 899 So.2d 744. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Landos, 419 So.2d 475 (La.1982).

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, 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. Hines, supra. 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. Hines, supra.

LHere, even though the trial court failed to precisely articulate reasons for the sentence, its decision that Williams is a dangerous person is clearly supported by the record and supports the imposition of the maximum sentence of imprisonment in the narrow sentencing range outlined by the legislature. The record reflects that the trial court considered the pre-sentence investigation report and found no mitigating factors existed. After reviewing the pre-sentence investigation, we find no manifest error in the trial court’s conclusion that there were no mitigating factors in this case.

Further, a factual basis for the imposed sentence clearly exists. Williams committed the crime of possession of a firearm by a convicted felon. Notably, the underlying felony conviction by Williams was manslaughter, which he committed by using a firearm to kill a man during an argument simply over loud music. He received a substantial benefit as a result of his plea bargain, reducing a second-degree murder charge to manslaughter and obtaining a seven-year sentence instead of a potential life sentence. Only four months after being released early on his seven-year sentence, Williams had again armed himself with a firearm in violation of the law and in violation of the terms of his parole.

A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, we may not set aside a sentence as excessive. State v. Guzman, 1999-1528, 1999-1753 (La.05/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App.2d Cir.05/12/04), 873 So.2d 939. Here, the maximum sentence imposed for this defendant was within the trial court’s broad discretion. We conclude that | ¡Williams’ assignment of error is without merit, and accordingly, his conviction and sentence are hereby affirmed.

AFFIRMED.

      . Williams had gotten into an argument with Gary Sams about the volume of Williams' car stereo. Williams, who was eighteen years old at that time, then got into a fistfight with Sams. When Sams punched Williams in the face, Williams produced a revolver and shot Sams either four or five times, killing Sams. Williams was paroled in December 2004 in the manslaughter case. Only four months later, he was arrested for possession of a handgun, the instant crime.


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. James Lewis SERMONS, Jr., Appellant.
    No. 41,746-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 28, 2007.

      Mark O. Foster, for Appellant.
    Paul J. Carmouche, District Attorney, Catherine M. Estopinal, Scott Chafín, Jr., Assistant District Attorney, for Appellee.
    Before WILLIAMS, DREW and LOLLEY, JJ.
   WILLIAMS, J.

hThe defendant, James Lewis Sermons, Jr., was charged by bill of information with driving while intoxicated (“DWI”), fourth offense, a violation of LSA-R.S. 14:98. Following a trial by jury, the defendant was convicted as charged. He was sentenced to serve 10 years in prison at hard labor without benefit of probation, parole or suspension of sentence, consecutive with any other sentence, and court costs. For the following reasons, we affirm the defendant’s conviction, and we amend the defendant’s sentence to impose the $5,000 fine mandated by statute. The sentence is affirmed as amended.

FACTS

On August 3, 2005, at approximately 7:40 a.m., Corporal William Lunsford, Jr. of the Caddo Parish Sheriffs Office responded to a call of a suspicious person at a church located on Colquitt Road in Shreveport, Louisiana. Cpl. Lunsford arrived at the church and found the defendant sitting inside a van parked next to a dumpster. Cpl. Lunsford questioned the defendant, and the defendant stated he had left his girlfriend’s house after a disagreement and had pulled into the parking lot. The defendant stated he had been drinking the previous night. Suspecting the defendant was intoxicated, the deputy called to the scene another police unit equipped with a video recorder.

Corporal Gregory Ardoin arrived at the scene with the video recorder and conducted various field sobriety tests on the' defendant. The defendant performed poorly. He was placed under arrest and transported to a substation where he submitted to a breath Intoxilyzer test. The test results | ¿revealed that the defendant’s blood alcohol concentration was .207 percent. The defendant was charged with DWI, fourth offense. Following a jury trial, the defendant was convicted as charged. He was sentenced to serve 10 years in prison at hard labor without benefit of probation, parole or suspension of sentence, consecutive with any other sentence, and court costs. This appeal followed.

DISCUSSION

Sufficiency of the Evidence

The defendant argues the evidence was insufficient to support a conviction. Specifically, the defendant contends the state failed to prove he was actually operating his vehicle while intoxicated. The defendant also argues that the state failed to present evidence that the parked van was operable.

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, 99 S.Ct. 2781, 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.9/05/03), 852 So.2d 1020. This standard, now legislatively embodied in LSA-C.Cr.P. art. 821, does not provide the appellate court with a vehicle to |ssubstitute 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 circumstances established by that evidence must be sufficient for a rational 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, 98-2723 (La.2/5/99), 737 So.2d 747.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La. App. 2d Cir.9/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 |4(La.6/27/03), 847 So.2d 1255, cert, denied, 540 U.S. 1185, 124 S.Ct. 1404,158 L.Ed.2d 90 (2004).

LSA-R.S. 14:98 provides, in pertinent part:

A. (1) The crime of operating a vehicle while intoxicated is the operating of any motor vehicle, aircraft, watercraft, vessel, or other means of conveyance when: (a) The operator is under the influence of alcoholic beverages; or (b) 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....

To convict a 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. LSA-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.

In the instant case, the state presented the testimony of several witnesses, including Cpl. Lunsford. Cpl. Lunsford testified that he was responding to a call at a church on Colquitt Road when he noticed the defendant sitting in a van parked next to a dumpster in the parking lot of the church. He questioned the defendant and the defendant stated he had left his girlfriend’s house following an argument and pulled into the parking lot. The defendant admitted he had been drinking but stated he was not drinking at that time. Cpl. Lunsford radioed to have a video camera-equipped unit respond to the scene.

Cpl. Ardoin arrived on the scene in response to Cpl. Lunsford’s call. Cpl. Ar-doin testified that he initially noticed the defendant had a very strong |,.¡odor of alcohol on his breath, swayed while standing and had slurred speech. Cpl. Ardoin, an instructor for field sobriety testing, administered several standard field sobriety tests, including the horizontal gaze nystag-mus test, the finger count and a count backwards test. The defendant performed poorly on all tests administered. The defendant admitted he had been driving the van and that he had been drinking the night before. According to the defendant, he had stopped drinking around midnight the night before submitting to the tests. The defendant was arrested for DWI after his poor performance on the field sobriety tests. The defendant admitted he did not have a driver’s license and that he had three previous DWI convictions. The defendant was Mirandized at the sheriffs office south substation in Keithville, Louisiana.

The defendant submitted to an Intoxi-lyzer test on a machine which the state showed was certified and properly maintained. The test results revealed that the defendant’s blood alcohol concentration was .207 percent. After the administration of the testing, Cpl. Ardoin questioned the defendant who again admitted he had been driving the van. The defendant stated he had been driving from his girlfriend’s house to the store. The defendant’s admissions were recorded by the patrol unit camera and thereafter by cameras inside the substation. The videotape was played for the jury. Cpl. Ardoin testified his car radio was playing during the stop, causing | ^background noise. On cross examination, Cpl. Ardoin acknowledged he did not actually see the defendant driving the vehicle nor did he conduct any interviews with anyone who saw the defendant operating the vehicle.

Patricia Hobbs, the defendant’s girlfriend of three years, testified on his behalf. Ms. Hobbs testified at approximately 10:00 p.m. on August 2, 2005, the defendant had called her and asked her to come and visit with him or pick him up from the church, where the couple attended services. Ms. Hobbs went to the church (approximately one-half mile from her home) and the defendant rode to her home with her. After talking and consuming “a couple of beers” Ms. Hobbs decided to go to bed sometime around midnight. She invited the defendant to sleep over in her grandson’s room.

Ms. Hobbs testified that she awakened the following morning between 7:00 and 7:30. She stated that she rushed to have the defendant leave her home because she was expecting her father who did not like the defendant. Ms. Hobbs testified she drove the defendant to his van at the church. As the defendant was slow in becoming alert, Ms. Hobbs stated she took the defendant’s keys and started his van then moved it near the trash dumpsters so the defendant could clean it out. Ms. Hobbs then rushed the defendant out of her truck so she would be at her home when her father arrived. When she returned home and discovered it was not as late as she had thought, Ms. Hobbs returned to the church to deliver some food to the 17defendant. She stated that it was her intention to return to the church to pick the defendant up after her father left her home.

According to Ms. Hobbs, approximately 15 minutes after she returned home, she received a telephone call from the deputies informing her that the defendant had been arrested and they wanted her to come to pick up the van. A deputy eventually picked Ms. Hobbs up from her home to take her to the church. Ms. Hobbs was unable to start the vehicle with the keys given to her on the scene so she was returned to her home. She was told that the van would have to be towed. Ms. Hobbs testified the van had not been moved from the dumpster area where she had parked it. On cross examination, Ms. Hobbs indicated she was not aware that the defendant admitted he had been driving the van.

On the videotape admitted into evidence, the defendant could be heard telling the deputy that he had just left his girlfriend’s house and was en route to his mother’s home. He explained that his girlfriend’s parents were coming to her house and he could not be there when they arrived. The defendant informed the deputy that he had stopped drinking at approximately midnight the previous night. The defendant also stated that he had pulled into the church parking lot to retrieve a large piece of plastic he had seen near the dumpster. He stated that he had planned to use the plastic to cover the carpet in his van. Later in the video, the defendant told the deputy that he had just left his girlfriend’s house to go to the store.

The videotape of the interview at the sheriffs substation shows Cpl. Ardoin receiving a telephone call from someone who appeared to be near | sthe defendant’s van. Cpl. Ardoin questioned the defendant with regard to the location of the keys to the vehicle. The defendant indicated that the keys were either in the ignition of the vehicle or in a compartment. The defendant also stated that it was necessary to manipulate the key in the ignition in order to start the vehicle.

This court has previously found sufficient evidence to support a conviction in factual situations similar to the instant case. In State v. Joseph, 36,776 (La.App. 2d Cir.1/29/03), 836 So.2d 1206, the defendant caused a motor vehicle accident and fled the scene, leaving his vehicle behind. The abandoned vehicle’s registration was located in the glove compartment, and two police officers proceeded to the address listed on the registration. Approximately 25 minutes after the accident, the officers encountered the defendant at the address on the registration and could detect an odor of alcohol on him. The defendant was arrested and transported to the police station where he underwent field sobriety testing and submitted to an Intoxilyzer test. The defendant admitted that he had been driving the vehicle at the time of the accident and he had been drinking on the morning of the accident. The result of the Intoxilyzer, which was administered approximately two hours after the accident, was 0.155 percent blood alcohol concentration. This court concluded that the evidence was sufficient to support the defendant’s conviction, noting that in the videotape of the defendant’s sobriety testing, the defendant had admitted to consuming alcohol prior to the accident and to driving the vehicle at the time of the accident.

|9In State v. Edens, 465 So.2d 954 (La. App. 2d Cir.1985), the sheriffs department responded to a call that a van had struck an obstacle on Interstate 20. The deputy arrived at the scene and found a locked and abandoned van on the interstate. Soon thereafter, a state trooper stopped a vehicle in which the defendant was a passenger. The defendant stated that he had consumed four beers, fell asleep while driving the van and struck a bridge on the interstate. The defendant performed poorly on the field sobriety test and subsequent test results revealed a .17 percent blood alcohol concentration. On appeal, this court rejected the defendant’s argument that the state had failed to prove that he was operating a motor vehicle while intoxicated. This court concluded that the state was permitted to rely upon the defendant’s inculpatory statement to the police officer and had met its burden of proving that the defendant had been operating a motor vehicle.

In the instant case, considering the evidence in the light most favorable to the prosecution, we find the evidence was sufficient to establish that the defendant was under the influence of alcohol and was operating the vehicle while under the influence of alcohol. The defendant admitted to the deputies that he had been drinking the previous night and he had driven his van from his girlfriend’s house to the church. The defendant failed multiple field sobriety tests and he tested well above the legal limit on the Intoxilyzer test administered after his arrest.

Ms. Hobbs’ testimony that she had moved the van to its location near the dumpster was contrary to the defendant’s videotaped statements to the deputies. Her testimony was also belied by the fact that she was unable to |instart the van after she was brought to the scene to move it from the parking lot. Had Ms. Hobbs actually moved the van, it is probable that she would have known, as the defendant informed the deputy on the videotape, that the van was difficult to start without the ignition being manipulated.

Additionally, there is no evidence to support the defendant’s contention that the van was inoperable. It is clear from the evidence presented during trial that the van started after the tow truck driver manipulated the key in the ignition as instructed by the defendant. Additionally, in his statements to the arresting officers, the defendant admitted that he had driven the van to the church that morning.

This assignment of error is without merit.

Excessive Sentence

The defendant further contends his sentence is excessive in that it fails to provide for mandatory substance abuse treatment as required by statute. The defendant points out that he had a prior conviction for DWI, fourth offense and the sentence received for that conviction did not provide for substance abuse treatment. Therefore, according to the defendant, that sentence should not be considered as a previous probation which would mandate that he receive a sentence without benefits for the instant offense.

Contrarily, the state urges that the defendant’s sentence without benefits is mandated by statute as the defendant previously received the benefit of suspension of sentence and probation for his prior DWI, fourth offense conviction. The state further notes that the defendant was on probation at the time of the commission of the instant offense.

|nThe test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in LSA-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. 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 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 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. 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 (LaApp. 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, 37,442 (LaApp. 2d Cir.8/20/03), 852 So.2d 1162.

Sentencing under LSA-R.S. 14:98 E(l) 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 (LaApp. 2d 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. 1 Cir. 6/10/05), 917 So.2d 33, writ denied, 2005-1656 (La.2/3/06), 922 So.2d 1174.

After denying several post-trial motions, the trial court revoked the defendant’s probation in his previous DWI, fourth offense case. The previously imposed 15-year sentence was reduced to 12 years. In the instant case, the trial judge sentenced the defendant to 10 years at hard labor without benefit of probation, parole, or suspension of sentence to run consecutively with any other sentence. The defendant was also ordered to pay court costs within one day or serve one day with credit for time served.

After being sentenced, the defendant inquired with regard to whether his sentences could be imposed concurrently. The following exchange took place between the defendant, his attorney and the court:

DEFENDANT: It cannot be consecutive?
COURT: They are run consecutive.
DEFENDANT: They can’t run concurrent?
COURT: No, sir, that’s in accordance with the statute I read to you. It cannot be suspended, and it must be consecutive, and that’s under 14:98(4)(b).

J^DEFENSE COUNSEL: Your Honor, we would object to the sentence based on the fact that there is no evidence that Mr. Sermons received any inpatient treatment or was part of substance abuse counseling. We believe that he would fall within the category where it could be suspended.

COURT: I will note that for the record; however, the (4)(a) brings that into play, but (4)(b) dictates what happens to Mr. Sermons in this particular case, but your objection is noted for the record.

The defendant now argues that he was not required to participate in substance abuse treatment upon his first conviction for DWI, fourth offense. Therefore, on this, his second fourth offense conviction, he should be sentenced to the mandatory treatment as required by statute.

LSA-R.S. 14:98(E) provides, in pertinent part:

(l)(a) Except as otherwise provided in Subparagraph (k)(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 (Emphasis added).
* * *
114(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.

Pursuant to the plain language of the statute, the defendant’s argument clearly fails. As the trial court noted, the defendant was sentenced in accordance with LSA-R.S. 14:98(E)(1) and (E)(4)(b), as was proper in this instance. Following his pri- or conviction for DWI, fourth offense, the defendant was placed on probation and was actually on probation at the time of the instant offense. The defendant’s previous suspension of sentence and probation for DWI, fourth offense require that the defendant be sentenced in accordance with LSA-R.S. 14:98(E)(4)(b). This sentencing provision statutorily mandates 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.

Considering this defendant had a prior DWI fourth offense conviction, and the fact that the defendant was on probation at the time of the commission of the instant offense, the sentence imposed in this case is |1Bnot constitutionally excessive. The trial court imposed the minimum sentence possible in this matter. The defendant has not shown any circumstances which would indicate that this statutorily mandated sentence is excessive when applied to him. When this repeat offender’s crime and minimum punishment are viewed in light of the harm done to society, there is nothing about this sentence that shocks the sense of justice. There is no showing of abuse of the trial court’s wide discretion in sentencing this defendant.

This assignment of error is without merit.

ERRORS PATENT

In accordance with LSA-C.Cr.P. art. 920, all appeals are reviewed for errors patent on the face of the record. A review of the record herein reveals three errors patent.

Sentencing Delay

The record reveals that the trial court denied the defendant’s motions for new trial and post-verdict judgment of acquittal in open court on May 4, 2006, the same day the sentence was imposed. There is no indication in the record that the defendant expressly waived the sentencing delay. LSA-C.Cr.P. art. 873, provides:

If a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.

When the defendant makes no showing of prejudice, the trial court’s h(¡failure to observe LSA-C.Cr.P. art. 873 is a harmless error, and there is no need to remand for resentencing. State v. Moossy, 40,566 (La.App. 2d Cir.3/10/06), 924 So.2d 485, 488 (citing State v. White, 404 So.2d 1202 (La.1981); State v. Drane, 36,-230 (La.App. 2d Cir.9/19/02), 828 So.2d 107, writ denied, 2002-2619 (La.3/28/03), 840 So.2d 566).

In this case, the defendant has not objected to the trial court’s failure to observe the delay. In fact, upon denying the defendant’s motions, the trial court inquired, “Are you ready for sentencing?” Defense counsel responded, “We are ready for sentencing.” Moreover, there was no showing of prejudice. Thus, the trial court’s failure to observe the statute with regard to the sentencing delays was harmless error.

Default Jail Time/Indigent Defendant

In imposing the defendant’s sentence, the trial court also ordered the defendant to pay court costs or, in default thereof, to serve one day in jail, “concurrently, credit for time served.”

LSA-C.Cr.P. art. 884 provides:

If a sentence imposed includes a fine or costs, the sentence shall provide that in default of payment thereof the defendant shall be imprisoned for a specified period not to exceed one year....

In this case, the trial court gave the defendant “credit for time served” in default of payment of the fines. The record indicates that the defendant was arrested on August 3, 2005 and remained incarcerated when the preliminary hearing was held on September 26, 2005. Thus, the defendant has the necessary credit for time served to satisfy his sentence of one day in jail in the event of default of payment of the court costs. Thus, this matter 117requires no action from this court.

Mandatory Fine

LSA-R.S. 14:98(E)(l)(a) provides that upon conviction of DWI, fourth offense, in addition to the prison sentence, the offender “shall be fined five thousand dollars.” In this case, the trial court failed to impose the mandatory fine, resulting in an illegally lenient sentence.

A court of appeal has the authority on its own motion to correct the sentence imposed under LSA-R.S. 14:98(E)(l)(a) by directing the trial court to add the mandatory fine of $5,000 required by that statute. State v. DeCrevel, 2003-0259 (La.5/16/03), 847 So.2d 1197. See State v. Williams, 2000-1725 (La.11/28/01), 800 So.2d 790; State v. Clemons, 2001-1032 (La.App. 5 Cir. 2/26/02), 811 So.2d 1047, writ denied, 2002-0866 (La.11/22/02), 834 So.2d 972. See also, State v. Masters, 37,967 (La.App. 2d Cir.12/17/03), 862 So.2d 1121. Further, an appellate court may amend a defendant’s sentence without the necessity of remanding the matter to the 1 istrial court. State v. Volgamore, 38,054 (La.App. 2d Cir.1/28/04), 865 So.2d 237. Therefore, we hereby amend the defendant’s sentence to impose the statutorily mandated fine of $5,000.

CONCLUSION

For the foregoing reasons, the defendant’s conviction is affirmed. The sentence is hereby amended to impose the mandatory fine of $5,000 in addition to the term of imprisonment imposed, and the sentence is otherwise affirmed.

CONVICTION AFFIRMED; SENTENCE AMENDED AND AFFIRMED.

      . In imposing the sentence, the trial court noted that the offense was committed while the defendant was on probation for a previous conviction of DWI, fourth offense. The trial court revoked the defendant's probation, reduced the original 15-year sentence to 12 years and ordered the sentence to run consecutive with the current sentence.

      . The state presented evidence of Cpl. Ar-doin’s certification as an instructor in standardized field sobriety testing. During his testimony Cpl. Ardoin provided an in-depth description of the various field tests that can be administered to determine if an individual may be under the influence of alcohol and/or controlled dangerous substances.

      . The parties stipulated that the defendant had three prior convictions for DWI, and the state also introduced documents evidencing the defendant’s prior convictions.

      .After the defendant was transported to the police substation, Cpl. Lunsford conducted an inventory of the van and found a set of vehicle keys. The defendant’s girlfriend was brought to the scene by Cpl. Lunsford to retrieve the vehicle, but she was unable to start the van. A tow truck was called, and the driver of the tow truck was able to manipulate the key to start the vehicle.

      . On March 15, 2004, the defendant was sentenced after entering a guilty plea to DWI, fourth offense. The defendant was sentenced to 15 years in prison at hard labor, with all but 60 days of the sentence suspended, and the defendant was placed on supervised probation for four years.

      . We are cognizant of the jurisprudence which provides that an indigent defendant may not be subjected to imprisonment because he is unable to pay a fine which is part of his sentence. Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983); State v. Monson, 576 So.2d 517 (La.1991). In this case, the defendant was represented at trial and on appeal by the indigent defender's office and the Louisiana Appellate Project. While it is presumed that the defendant is indigent, this is a rebuttable presumption. See, State v. Monson, supra; State v. Collins, 32,409 (La.App. 2d Cir.9/22/99), 763 So.2d 618.
      For example, in State v. Collins, supra, the defendant was represented by the indigent defender board during the trial, and this court deleted the portion of his sentence providing for a fine. However, this court granted rehearing and remanded the matter for a hearing to determine whether the defendant was in fact indigent. See also, State v. Furgerson, 34,344 (La.App. 2d Cir.3/2/01), 781 So.2d 1268, writ denied, 2001-1102 (La.3/22/02), 811 So.2d 921; State v. Ebarb, 34,010 (La. App. 2d Cir.l 1/1/00), 772 So.2d 299. Contrast, State v. White, 39,681 (La.App. 2d Cir.5/11/05), 903 So.2d 580, in which this court concluded from the record that the defendant was indigent because he was represented at trial by the indigent defender office and on appeal by the Louisiana Appellate Project.


author: STEWART, J.

text:
    Jessie Mae HARGROVE, Plaintiff-Appellant, v. Ezell GOODS, In His Official Capacity, The City of Tallulah, Fire Department and St. Paul Fire & Marine Insurance Company, Defendants-Appellees.
    Nos. 41,817-CA, 41,934-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 28, 2007.

      Raymond L. Cannon, Tallulah, for Appellant, Jessie Mae Hargrove.
    Hudson, Potts, & Bernstein by D. Brian Allen, Johnny R. Huckabay, II, Monroe, for Appellees, St. Paul Fire & Marine Ins. Co., The City of Tallulah, Tallulah Fire Department and Ezell Goods, In his Official Capacity.
    Hayes, Harkey, Smith & Cascio by Thomas M. Hayes, III, Laura S. Achord, Monroe, Mulhearn and Smith by Leroy Smith, Jr., Tallulah for Appellee, Walker & Wells Contractors, Inc.
    Before STEWART, CARAWAY and DREW, JJ.
   STEWART, J.

Liu these consolidated cases, Jessie Mae Hargrove (“Hargrove”) appeals the trial court’s denial of her motion for continuance and its grant of the defendants’ motion for summary judgment. For the reasons explained more fully herein, we affirm the trial court.

FACTS

On July 22, 2002, a fire occurred at 310 Fish Street (also referred to as Wyche Street), in Tallulah, Louisiana. This home was being rented by Jessie Mae Hargrove (“Hargrove”). Ms. Hargrove alleged that the Tallulah Fire Department (“TFD”) arrived at the scene and proceeded to stand around and watch her home burn, and when they decided to attempt to put out the fire, the fire truck had no water. Har-grove further alleged that TFD failed to call for backup. As a result, her abode completely burned, and she suffered numerous damages. Plaintiff has sued Chief Goods in his official capacity as the chief of TFD, the City of Tallulah, the TFD, and St. Paul Fire and Marine Insurance Company, the City of Tallulah’s insurance carrier. On May 2, 2006, Ms. Hargrove added Walker and Wells Contractor, Inc. (“Walker and Wells”) as a defendant.

On October 31, 2005, defendants filed a motion for summary judgment contending that plaintiff could not maintain a cause of action because they were immunized from liability by law. Further, because they were performing policymaking or discretionary acts, they owed no duty to plaintiff in their actions on these premises. On November 28, 2005, plaintiff filed a motion to continue the hearing on the motion for summary judgment because of various issues with plaintiffs counsel’s schedule and ^workload, and the resolution of outstanding discovery matters. The hearing on the motion for summary judgment was reset three times. Finally, the hearing on the motion for summary judgment was set for June 7, 2006, at which time the trial court denied the plaintiffs motion for continuance of the hearing and granted the defendants’ motion for summary judgment. This appeal ensued.

DISCUSSION

Standard of Review

On appeal, a trial court’s ruling on a motion for summary judgment is reviewed pursuant to the de novo standard of review. Jones v. Estate of Santiago, 03-1424 (La.4/14/04), 870 So.2d 1002.

Our law provides that the summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by law; the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2); Racine v. Moon’s Towing, 2001-2837 (La.05/14/02), 817 So.2d 21. If the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law, then summary judgment shall be rendered. La. C.C.P. art. 966; Patton v. Strogen, 39,829 (La.App.2d Cir.8/17/05), 908 So.2d 1282, writ denied, 2005-2397 (La.3/17/06), 925 So.2d 548.

As explained in La. C.C.P. art. 966(C)(2) and throughout our jurisprudence, the burden of proof on a motion for summary judgment | ¡¡remains with the movant. However, when the movant will not bear the burden of proof at trial on the matter before the court on the summary judgment motion, the burden does not require the movant to negate all essential elements of the adverse party’s claim, but rather to point out that there is an absence of factual support for one or more elements essential to that claim. La. C.C.P. art. 966(C)(2). If the adverse party then fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial, there is no genuine issue of material fact. Id.

As provided in La. C.C.P. art. 967(B), the adverse party may not rest on the mere allegations or denials of his pleading in response to a properly made and supported motion for summary judgment; rather, his response, by affidavits or otherwise, must set forth specific facts showing a genuine issue for trial. Otherwise, summary judgment shall be rendered against him, if appropriate. La. C.C.P. art. 967(B).

A material fact is one whose existence or nonexistence may be essential to the plaintiffs action under the applicable theory of recovery. Such facts potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the dispute. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.07/05/94), 639 So.2d 730; Patton, supra. Not all disputed facts are material, and summary judgment may be granted if contested facts present no legal issues. Harvey v. Francis, 2000-1268 (La.App. 4th Cir.3/21/01), 785 So.2d 893. Whether a disputed fact is material is determined in light of the substantive law applicable to the |4case. Id. Genuine issues are triable issues for the fact that reasonable persons could disagree as to the conclusion. Patton, supra.

A denial of a motion for continuance will not be disturbed absent a showing of an abuse of discretion by the trial court. Woods v. City of Shreveport, 30,393 (La.App.2d Cir.10/26/05), 914 So.2d 635.

Hargrove contends that the trial court erred in granting summary judgment finding that the firemen were entitled to qualified immunity under La. R.S. 9:2793.1, because the firemen were not grossly negligent and there was water pumping to fight the fire within minutes of their arrival at the scene. The plaintiff made requests for production from the defendants of all of the results of drug tests and its drug testing policies and procedures for the last eight years as well as the city’s fire ratings provided by insurance companies. Each of the requests was objected to by the defendants as irrelevant, but the defendants tendered all available drug testing policies and results to the plaintiff. Plaintiff asserts that a September 2002 drug test of a TFD fireman which shows a positive test for cannabis is indicative of a pattern of behavior within the department and sufficient to meet its burden of proof that there is a genuine issue of material fact concerning the liability of the defendants. However, the fire at issue occurred in July 2002. Moreover, the plaintiff has not demonstrated that the trial court should have considered this evidence of this positive drug test as a triable issue of fact regarding the impairment of the TFD employees the day of the fire.

Lastly, plaintiff sought a continuance of the hearing on the defendants’ motion for summary judgment on the grounds that plaintiff | ¿needed to conduct discovery on the responsibility of the third party contractor, who had been identified by the defendants as responsible for not maintaining the fire hydrants which were “dry” when the defendants sought to use them to extinguish the fire at plaintiffs residence. Plaintiff also argued that the role of third party contractor, Walker and Wells, in diverting water improvements from the plaintiffs neighborhood was illegal and a cause in fact of the plaintiffs damage.

We find that summary judgment was proper in the instant case. A party may not rest on mere allegations, but must give specific facts to avoid defeat via summary judgment. The plaintiffs allegation that she was told by Harold Allen that there was only 150 gallons of water in the fire truck is unsubstantiated. Moreover, the TFD call log shows that the alarm time was 2:39 a.m., and the arrival time was 2:40 a.m. The fire department arrived with two trucks. Chief Good testified that the trucks had at least 700 to 750 gallons of water in them, and there is no evidence that the pump was not working. The testimony of two other firemen also supports the fact that there was plenty of water to fight the fire. The plaintiff has submitted no evidence to support her allegation of malfunction. No firemen have been deposed by the plaintiff in the three years this matter has been pending, so there is no support for this self-serving claim.

The affidavits submitted by the plaintiff concerning the quality and nature of the efforts of the TFD were given by lay persons who are not experts in fire prevention or firefighting and are unsubstantiated by any credible evidence under La. C.C.P. art 967.

| ^Furthermore, there is no cause of action against the defendants as they have qualified immunity under La. R.S. 9:2793.1, which states that there is no cause of action against a public entity or the officers and employees thereof for damage to property at the site of a crime, accident, or fire, including without limitation the destruction or deterioration of property, while the officer or employee was acting in the course and scope of his office or employment. The scenario contemplated by this lawsuit is exactly the set of circumstances under which the TFD is entitled to immunity. Industrial Risk v. New Orleans Public Serv., 735 F.Supp. 200, 205 (E.D. La. 1990).

In the absence of gross negligence, plaintiff cannot maintain this cause of action, and she has failed to allege gross negligence. Nothing in the plaintiffs petition fits within the parameters of the definition of gross negligence. Each of the plaintiffs allegations concerning the care exercised by TFD in fighting the fire are unsupported by the record.

It is true that the first fire hydrant that the TFD attempted to use was not working. However, there was no reason for the officers to suspect that the hydrant was deficient. Moreover, upon discovering the problem, the firemen quickly moved to two nearby hydrants and proceeded to take measures to stop the fire. There is nothing in that sequence of events that suggests wanton or gross negligence.

Not only are defendants entitled to qualified immunity under La. R.S. 9:2793.1, but they are protected under the Public Duty Doctrine, La. R.S. 9:2798.1, which states:

17B. Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise their policymaking or discretionary acts when such acts are within the course and scope of their duties.

Therefore, any acts or omissions by the defendants in the course and scope of fighting the fire which consumed the plaintiffs home are shielded from liability by this statute.

Even in the absence of any immunity by statute, plaintiff has failed to show the breach of any duty by the defendants under Louisiana tort law. It is illogical to suggest that a firefighter has breached his duty because an already burning building is damaged in the course of extinguishing the subject fire.

Moreover, the trial court properly denied the plaintiffs request for continuance. There is no absolute right to delay summary judgment until discovery is finished. The purported evidence plaintiff sought was not relevant to the ultimate issue of liability. The 2002 drug test of fireman Terry Cooper was two months after the fire at issue and irrelevant to any liability of the TFD in July. There was no just reason for further delay given by the plaintiff. The purported “Katrina phenomenon,” whereby there have been extraordinary delays in various legal proceeding because of the disruption caused by the storm, is not as germane to North Louisiana as it is in areas directly affected by the storm. Quite simply, plaintiff has had two attorneys and three years to conduct discovery and has failed to do so. Thus, the trial court properly denied her continuance and granted the motion for summary judgment.

|sThe plaintiff added defendant Walker and Wells as a co-defendant more than four years after the fire occurred. Her amended petition set forth a cause of action against Walker and Wells based solely in tort.

The trial court properly granted the defendant’s exception of prescription. Plaintiff failed to introduce evidence to establish that her action against Walker and Wells lies in contract or was for a violation of the public bid law. Plaintiff argues that her action against the defendant was in contract because she was a third party beneficiary of the City of Tallu-lah’s water distribution improvement contract with Walker and Wells. However, to maintain an action in tort as a third party beneficiary, Louisiana law requires that the contract clearly express the intent of contracting the parties to stipulate to the advantage of a third person. Wall v. First Nat’l Bank, 482 So.2d 865 (La.App. 2d Cir.1986). Plaintiff has offered no such evidence. Moreover, even if she established the existence of a public improvement contract:

The contracts of a city ... are entered into for public benefit ... but these contracts are not stipulations pour au-trui in favor of the inhabitants individually ... a municipal corporation is nothing more than a fictitious being created for the purpose of administering the affairs of the public, and necessarily all its contracts are for ‘public benefit’; but is does not follow that they are all stipulations pour autrui in favor of the inhabitants individually, and that the latter may bring suit thereon.

Neighborhood Action Comm. v. State, 652 So.2d 693 (La.App. 1 Cir.1995), quoting Allen & Currey Mfg. Co. v. Shreveport Waterworks Co., 113 La. 1091, 37 So. 980, 986 (1905).

| flContrary to plaintiffs allegations, the Public Bid Law does not permit a citizen to recover damages from a contract for alleged bid law violations.

In sum, plaintiff has failed to demonstrate that prescription was suspended, interrupted or otherwise renounced. Thus, the trial court was correct in granting the exception.

CONCLUSION

Therefore, we affirm the judgment of the trial court denying the plaintiffs motion for continuance and granting the defendants’ motion for summary judgment and exception of prescription.

AFFIRMED.


text:
    STATE of Louisiana, Appellee v. Carlos O. TRAYLOR, Appellant.
    Nos. 41,840-KA, 41,841-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 28, 2007.

      Louisiana Appellate Project by G. Paul Marx, Lafayette, for Appellant.
    Jerry L. Jones, District Attorney, Geary S. Aycock, Assistant District Attorney, for Appellee.
    Before BROWN, STEWART and MOORE, JJ.
   STEWART, J.

| defendant, Carlos 0. Traylor, seeks review of the sentences imposed for his convictions on one count each of (1) distribution of cocaine; (2) possession of cocaine with intent to distribute; and, (3) possession of cocaine, second offense. La. R.S. 40:967(A) and (C), and La. R.S. 40:982, respectively. On each of the first two counts, the trial court imposed concurrent ten-year sentences at hard labor, with the first two years to be served without the benefit of parole, probation, or suspension of sentence. On the third count, the trial court imposed a sentence of four years imprisonment at hard labor to be served consecutive to the sentences on the previous convictions. We affirm.

FACTS

On January 5, 2005, the defendant was arrested after selling cocaine to an undercover police officer for $20 during a buy-bust operation conducted under video surveillance. During the arrest, the defendant dropped another cocaine-containing baggy. There was what appeared to be crushed cocaine on the pavement around his feet. In all, the police recovered 32 rocks of crack cocaine in the operation. The defendant was charged with one count of distribution of cocaine and one count of possession of cocaine with intent to distribute, both in violation of La. R.S. 40:967.

On June 30, 2005, the defendant was a passenger in a vehicle that was the subject of a law enforcement traffic stop. The officer witnessed the defendant trying to conceal a plastic bag in his left hand. The bag was seized and subsequent testing of its contents indicated that the bag | gcontained two rocks of crack cocaine. The defendant was charged with one count of possession of cocaine, second offense. The defendant had previously been convicted in 1993 for distribution of cocaine.

On February 27, 2006, the defendant pled guilty as charged to one count of distribution of cocaine, one count of possession with intent to distribute, and one count of possession of cocaine, second offense. During his plea, the defendant acknowledged the prior 1993 conviction. In exchange, the state agreed not to file a multiple offender bill against the defendant and dismissed additional pending charges for possession with intent to distribute cocaine and unauthorized entry of an inhabited dwelling.

On May 3, 2006, the defendant was sentenced to ten years’ imprisonment at hard labor on the cocaine distribution conviction and ten’ years imprisonment at hard labor on the possession with intent to distribute conviction, with the sentences to be served concurrently and the first two years to be served without the benefit of parole, probation, or suspension of sentence. He was sentenced to four years imprisonment at hard labor on the second offense possession of cocaine conviction, said sentence to be served consecutively to the two concurrent ten-year terms. The defendant’s motion to reconsider the sentence for exces-siveness was denied. He now appeals.

DISCUSSION

The test imposed by the reviewing court in determining the excessiveness 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 articulation of the factual basis for a sentence is the goal of LLa. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. There is no requirement that specific matters be given any particular weight at sentencing. State v. Landos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La. App. 2d Cir.1/28/04), 865 So.2d 284, writs denied, 2004-0834 (La.3/11/05), 896 So.2d 57 and 2004-2380 (La.6/3/05), 903 So.2d 452; State v. Jones, 33,111 (La.App. 2d Cir.3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385.

Second, 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. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; 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. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La. 1992).

Furthermore, a trial court has broad discretion to sentence within the statutory limits. 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. 2d 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 hsentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App. 2d Cir.5/12/04), 873 So.2d 939.

In the instant case, the trial court reviewed the record as well as the pre-sen-tence investigation report. The trial court noted the defendant’s almost non-existent work history and failure to have any responsible relationship with his child. The trial court found the present convictions to be the latest in a series of criminal conduct engaged in by the defendant. As observed by the trial court, the defendant’s latest convictions arose out of offenses committed while he was still on probation from an earlier conviction. Moreover, the defendant’s arrest on June 30, 2005, occurred while he was out on bond from the buy-bust arrest of January 5, 2005. The trial court correctly noted that these facts suggest that the defendant is likely to be a repeat offender.

The defendant argues that the trial court made no inquiry into his possible drug problems and that the sentence offers no hope of change and serves no worthwhile purpose. We find nothing in the record to suggest that the defendant’s drug-related crimes were committed because of addiction on his part, and the trial court stated that nothing in the pre-sen-tence investigation report suggested the defendant was dealing drugs either to support his own habit or support his family. The trial court noted that the defendant offered no justification for the crimes. Though the defendant complains of the excessiveness of the 14-year total sentence, he obtained a substantial reduction in sentencing exposure under the plea agreement by |Rwhich additional charges were dropped and an habitual offender bill was not filed. With the maximum possible sentence of 30 years on each of the first two convictions and a maximum of 10 years on the third, the trial court was well within the sentencing guidelines with the mid-range sentences imposed on the defendant.

On this record, we do not find constitutional error. The defendant received substantial benefits as a result of the plea bargain agreement. The sentence does not shock the sense of justice, nor is it disproportionate to the severity of the offense. The sentence complained of is not constitutionally excessive. Therefore, the assigned error is without merit.

CONCLUSION

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

AFFIRMED.