author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee v. Jason Eric SCOTT, Appellant.
    No. 42,997-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 13, 2008.

      Charles R. Whitehead, Jr., Natchitoches, for Appellant.
    William R. Jones, District Attorney, Julie C. Jones, Assistant District Attorney, for Appellee.
    Before BROWN, C.J., and PEATROSS, and LOLLEY, JJ.
   BROWN, Chief Judge.

| defendant, Jason Eric Scott, in separate indictments was charged with the aggravated rape of his 4-year-old niece (potentially a capital offense) and pornography involving juveniles. During pretrial proceedings, defendant filed a motion to suppress inculpatory statements. Defendant’s motion to suppress in the rape case was presented in two parts. He sought to suppress a statement following an alleged illegal entry of his residence by his brother, who was also the victim’s father and a sheriffs deputy; and, second, to suppress statements given while in custody at the sheriffs office. After the motion was denied, defendant entered a guilty plea to a reduced charge of molestation of a juvenile, reserving his right to appeal the trial court’s adverse ruling on his motion to suppress. See State v. Crosby, 338 So.2d 584 (La.1976). The pornography charge was dismissed. Defendant was sentenced to ten years imprisonment at hard labor. The trial court’s decision is affirmed; however, the case is remanded solely for notification of the sex offender registration requirements.

Discussion

Events Leading to Defendant’s Arrest

The incident leading to the rape charge occurred on January 13, 2005, in Red River Parish. Defendant, who was nineteen years old, was the younger brother of Tracy Scott, who was the chief deputy for the Red River Parish Sheriffs Office. Deputy Scott arrived home from work shortly after 4:30 p.m. on January 13, 2005. His 9-year-old son and 4-year-old daughter were at home with defendant, who had been babysitting. Defendant left shortly thereafter and went to his mother’s house, where he lived, which | awas approximately 150 to 200 yards from Deputy Scott’s mobile home. Both homes were on a ten-acre tract bought by Deputy Scott’s parents.

Deputy Scott noticed that his 4-year-old daughter was upset and crying. After his wife, Stacie Scott, came home from work they both talked to the child, who stated that defendant had been messing with her. Apparently, the child provided no further details about what had happened.

Deputy Scott changed into his civilian clothes (although he kept on his work pants, which had a pair of handcuffs in them) and got into his wife’s car and drove the short distance to his mother’s house. Upon arriving at his mother’s house, Deputy Scott knocked, opened the unlocked door, entered and called out for defendant. Deputy Scott testified that he frequently entered his mother’s house in this manner. Deputy Scott testified that he wanted to find out why his daughter was upset.

Deputy Scott saw defendant near the kitchen. Defendant was wearing only gym shorts, no shirt or shoes. Deputy Scott asked defendant why his daughter was crying. At first, defendant denied that anything had taken place. Upon further questioning, defendant admitted that he had touched the child on her bare butt and ducked his head and said, “I’m sick.” At that point, Deputy Scott handcuffed defendant, then used the house phone to call the sheriffs office to send a deputy. When he learned that there were no officers in the vicinity, Deputy Scott took defendant back to his mobile home to make a switch to his patrol car. Deputy Scott testified that he read | sdefendant his Miranda rights on the way to the sheriffs office. When he arrived at the sheriffs office parking lot, Deputy Scott gave custody of defendant to Deputy Emmett Moore.

Defendant’s Confession while in Custody

Shortly after arriving at the sheriffs office, defendant was interviewed by Detective Johnny Taylor and Deputy Michael Antilley. After determining defendant’s ability to read and write and his educational level, Detective Taylor gave defendant a written copy of the Miranda rights card and read the rights form to him. Detective Taylor testified that as he read the rights to defendant, he occasionally made eye contact with defendant to see whether he looked confused. Detective Taylor read the first paragraph to defendant (which advised defendant of his Miranda rights), and at the conclusion, asked defendant if he understood those rights. Defendant responded that he did. Detective Taylor proceeded to read the second paragraph of the card concerning whether defendant wished to waive those rights. After reading the paragraph, Det. Taylor asked defendant if he wanted to waive the rights and make a statement. Defendant said yes and signed the form.

Defendant made statements that were transcribed by Deputy Antilley as they were talking. Defendant admitted that he touched the child on her bare butt and genital areas on several occasions with both his finger and tongue.

| ¿Officer Antilley testified that he placed defendant back in the holding cell after their first interview so that he could retrieve a computer disk on which to save the statement (rather than doing so on the computer’s hard drive). Deputy Antilley brought defendant back out into the booking room shortly thereafter, at which time defendant gave an additional statement admitting that the child had touched his penis. During the second interview, only Det. Antilley and defendant were present.

The Alleged Illegal Entry

Defendant argues that the warrantless entry and arrest by Deputy Scott were illegal. The Fourth Amendment to the United States Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated and no warrants shall issue, but upon probable cause ...” The Fourth Amendment’s purpose is to protect citizens against unreasonable searches and seizures by the government. See, Camara v. Municipal Court of City & County of San Francisco, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967).

For Fourth Amendment purposes, a search or seizure requires a governmental intrusion into an area where an individual has a reasonable expectation of privacy. The Fourth Amendment protects people, not places, but place has an important role in determining whether the individual’s Fourth Amendment rights are implicated. See Minnesota v. Carter, 525 U.S. 83, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998). It does not apply, however, to searches or seizures performed by individuals acting in their capacity as private parties. United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). See, U.S. v. Ginglen, 467 F.3d 1071 (7th Cir.2006), holding that a warrantless entry of defendant’s home by defendant’s son, an off-duty police officer from another city who suspected that his father was wanted in connection with a bank robbery, was lawful because he did not act in an official capacity but rather as private citizen out of concern for his father.

Useful criteria in determining whether an individual was acting as a private party or as an instrument or agent of the government are whether the government knew of and acquiesced in the intrusive conduct, whether the private party’s purpose in conducting the search was to assist law enforcement agents or to further its own ends, whether the private actor acted at the request of the government and whether the government offered the private actor a reward. U.S. v. Ginglen, supra.

Great weight is given to the trial court’s factual finding; however, the ultimate issues of the legality of the entry, arrest, and voluntariness of subsequent statements are legal questions which this court reviews de novo. Where, as in this case, the trial court has made no findings of fact, a reviewing court must reach into the record to determine the underlying history. State v. Hemphill, 41,526 (La.App.2d Cir.11/17/06), 942 So.2d 1263, writ denied, 06-2976 (La.03/09/07), 949 So.2d 441. This Court considers the entire record when passing on the correctness of a suppression | ¿ruling. State v. Blank, 04-0204 (La.04/11/07), 955 So.2d 90, cert. denied, — U.S. -, 128 S.Ct. 494, 169 L.Ed.2d 346 (2007).

The record shows that Deputy Scott went to his mother’s house to find out why his 4-year-old daughter was upset. He did not wear his uniform, drive his patrol car, notify his office, or take a radio. His actions in entering the home are consistent with a concerned father attempting to address a private inter-family issue. Deputy Scott did not collect any physical evidence while inside the home. Moreover, after learning of the circumstances involving a serious danger to others, Deputy Scott acted responsibly by calling the sheriffs office. He tried unsuccessfully to have the sheriffs office send another deputy to the house to handle the matter. Deputy Scott had to use the house phone to make the call as he did not bring a police radio or cell phone. When he was advised that there were no other deputies in the area, Deputy Scott went back to his home to switch to his patrol car. It is clear that Scott’s primary objective in entering the house pertained to his children’s well-being rather than law enforcement.

Deputy Scott’s personal motivation supports the trial court’s and this court’s conclusion that he acted as a private citizen and not as a government agent when he entered his mother’s home.

Moreover, Deputy Scott’s entry into his own mother’s home was not unreasonable. The evidence adduced does not establish that defendant had a subjective expectation of privacy to preclude his own brother from entering their mother’s house (a house in which Scott used to reside) or that such expectation is one that society is prepared to recognize as reasonable |7and legitimate in this unique situation. See, State v. Horton, 42,199 (La.App.2d Cir.06/20/07), 962 So.2d 459. Deputy Scott testified that he frequently entered the house without knocking and called out for his brother or mother, and he was never precluded from doing the same. Even on this particular occasion, defendant did not ask Deputy Scott to leave but voluntarily engaged in conversation with his brother in the house. The evidence also shows that defendant had equal authority to enter Deputy Scott’s trailer just down the road. The totality of the circumstances compels a finding that the entry was not illegal under the particular circumstances of this case.

The Arrest

It is axiomatic that a valid arrest for criminal activity is not a constitutionally unreasonable seizure. La. C. Cr. P. art. 213 provides, in pertinent part that a peace officer may make a warrantless arrest when (1) the person to be arrested has committed a felony, although not in the presence of the officer, or (2) the officer has reasonable cause to believe that the person to be arrested has committed an offense, although not in the presence of the officer. Here, based on defendant’s admissions to Deputy Scott, the trial court was correct when it found that Deputy Scott had probable cause to believe that defendant had committed a felony.

Statement to Deputy Scott and Custodial Confession

Defendant seeks to suppress his incriminating statements made to Deputy Scott because he was not advised of his Miranda rights prior to Deputy Scott’s questioning. Defendant also argues that his confession to IsDetective Taylor and Officer Antilley is inadmissible. Specifically, defendant complains that his emotional and physical distress rendered his confession involuntary.

At the first suppression hearing only Deputies Scott and Taylor testified. At the second hearing testimony was taken from Deputy Scott, Detective Taylor, and Officer Antilley, as well as from defendant. Defendant testified that Deputy Scott was loud and that he hit him in the face during the discussion at their mother’s house. Defendant denied making any statements to Deputy Scott about what he did to the child. Defendant also testified that Deputy Scott allowed his wife, Stacie, to punch defendant in the back of the head for several minutes while switching between cars. Defendant admitted that he could read and write, and he read the waiver of rights form at the hearing but indicated that he was unable to read three words (i.e., “presence,” “appointed,” and “interrogation”). Defendant testified that he had no formal education past the seventh grade and that he had to repeat both the second and seventh grades.

Defendant’s Statements to Deputy Scott

With respect to defendant’s complaints about the lack of Miranda warnings prior to his incriminating statements to Deputy Scott, such warnings are not required when there is no custodial interrogation. Under the dictates of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), custodial interrogation is questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Here, defendant lflwas not in custody and was not deprived of his freedom in any significant way at the time he made his statements to his brother. See State v. Blank, supra. Defendant made no further incriminating statements to Deputy Scott after he was arrested.

Statements Made During Custodial Interrogation

At a suppression hearing, the state bears the burden of proving beyond a reasonable doubt the free and voluntary nature of the confession. State v. Hills, 354 So.2d 186 (La.1977); State v. Roddy, 33,-112 (La.App. 2d Cir.04/07/00), 756 So.2d 1272, writ denied, 00-1427 (La.05/11/01), 791 So.2d 1288. Testimony of the interviewing police officers alone may be sufficient to prove that the statement was given freely and voluntarily. State v. Henderson, 31,986 (La.App.2d Cir.08/18/99), 740 So.2d 240.

With respect to defendant’s confession to Detective Taylor and Officer Antilley, there is no question that defendant was informed of his Miranda rights prior to his confession. The central issue is whether defendant sufficiently understood his Miranda rights to make a knowing intelligent waiver of such rights, and whether his confession was otherwise voluntary. This is necessarily a case-by-case endeavor where the court must weigh the totality of the circumstances and examine their impact on |indefendant as to each of his statements. There are “red flags” which arouse suspicion and close scrutiny.

At all times, defendant stated that he understood his rights and he never appeared to be unable to do so. At the second suppression hearing, defendant was able to read aloud the waiver of rights form and could provide a logical and lucid explanation of his rights notwithstanding his purported inability to understand three particular words. Although admittedly defendant was upset and crying throughout the custodial interrogation, this did not prevent him from giving a detailed account of his actions with respect to the child. At no point during the interrogation did defendant ask to stop the questioning. Indeed, his first custodial statement represented an attempt to minimize the wrongdoing, and the evolution of his story over time reveals a state of mind which cannot be readily associated with any finding that he lacked understanding of his constitutional rights.

Defendant also complains about purported physical distress. An obvious “red flag” which bears close scrutiny is that defendant was wearing only gym shorts, he was cold, and was never offered an opportunity to put on more clothes. We note that it was after dark and in January.

Defendant’s attire was the way he presented himself when visited by Deputy Scott at their mother’s house. Certainly, Deputy Scott was wrong in not having defendant dress before taking him from his residence and the custodial interrogators should have given defendant appropriate clothing before continuing their questioning. Defendant, however, never once complained during the interrogation that he was cold, asked for clothes, or otherwise required that the interview be terminated. Defendant was not stripped of his clothing by police or otherwise made to cower in fear for a [nprolonged period of time. Cf. Malinski v. New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029 (1945); Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897). The totality of the circumstances do not indicate that defendant’s capacity for self-determination was critically impaired. State v. Blank, supra; see also, Jurek v. Estelle, 623 F.2d 929 (5th Cir.1980) (en banc) (holding that a first confession, given within 24 hours of arrest, was voluntary even though defendant lacked socks, shoes, or a shirt).

As for the purported physical mistreatment by Deputy Scott and his wife, it is apparent that the trial court credited the testimony of Deputy Scott over that of defendant on this issue. This finding is supported by the record and should not be disturbed on appeal.

Defendant’s minimal formal education (he dropped out of school at the 7th grade level) and purported limited comprehension skills also do not render his confession involuntary under these facts. Clearly defendant understood the circumstances and had the capacity to make choices. See State v. Green, 94-0887 (La.05/22/95), 655 So.2d 272; State v. Brooks, 92-3331 (La.01/17/95), 648 So.2d 366; State v. King, 41,084 (La.App.2d Cir.06/30/06), 935 So.2d 815, writ denied, 06-1803 (La.02/16/07), 949 So.2d 411.

In light of the foregoing, there is no error in the trial court’s ruling that defendant’s statements were made freely and voluntarily. This assignment is without merit.

Error Patent

A review of the record reveals one error patent. At all relevant times, molestation of a juvenile has been defined as a sex offense by La. R.S. 15:541(14.1). La. R.S. 15:542 provides registration requirements for sex 112offenders. In addition, La. R.S. 15:543 requires that the trial court notify a defendant charged with a sex offense in writing of the registration requirements, and that such notice be included on any guilty plea forms and judgment and sentence forms provided to defendant. Here, the forms provided to defendant made no mention of the sex registration requirements. There being no indication in the record as to whether defendant is even aware of the sex offender registration requirements, we remand this matter to the trial court solely for the purpose of providing the appropriate written notice to defendant of the sex offender registration requirements within 10 days of the rendition of the opinion and the filing of written proof that defendant received notice in the record of the proceedings. See, e.g., State v. Turner, 05-75 (La.App. 5th Cir.05/31/05), 904 So.2d 816, writ denied, 05-2591 (La.05/26/06), 930 So.2d 20; State v. Williams, 02-0707 (La.App. 3rd Cir.03/05/03), 839 So.2d 1095.

Conclusions

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

      . Deputy Scott's father died intestate several years earlier and although a succession had not been open, under Louisiana law Deputy Scott would be considered the owner of an undivided interest in this property subject to his mother’s usufruct.

      . Rape is the act of anal, oral, or vaginal sexual intercourse committed upon a person without his or her lawful consent. La. R.S. 14:41.

      . The Louisiana Constitution provides that "[e]very person shall be secure in his person, properly, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy.” La. Const. art. I, § 5.

      . Defendant's appellate counsel does argue in his brief that defendant "was never advised by any law enforcement official of the charges forming this investigation and interrogation until after he was booked,” as purportedly required by Article 1, Sec. 13 of the Louisiana Constitution. This is a mischaracterization of the testimony. Officer Antilley merely testified that they never "read him any criminal code articles about what crimes he was being investigated for” until after he was booked. Indeed, defendant testified that he was aware of the reasons for the questioning at the time. The constitution does not require that a defendant be read the technical definition of a crime in order to be fully advised of the reason for his arrest or detention. State v. Jackson, 27,855 (La.App.2d Cir.04/03/96), 672 So.2d 215, writ denied, 96-1386 (La.11/01/96), 681 So.2d 1258, cert. denied, 520 U.S. 1252, 117 S.Ct. 2409, 138 L.Ed.2d 175 (1997).

      . The Louisiana legislature has since substantially revised the sex offender registration and notification requirements effective January 1, 2008. The newly enacted registration and notification requirements now set forth the particular form to be used by the trial courts in notifying sex offenders of the registration requirements, among other things. La. R.S. 15:543.1 (eff. 1/1/08). Acts 2007, No. 460 (which amended the registration and notification laws effective January 1, 2008) provide in part:

        Any person under an obligation to register as of the effective date of this Act shall comply with the requirements contained in this Act and shall be given credit for having fulfilled their obligations to register for the length of time equal to their previous registration in compliance with law. (Emphasis added.)
      (Given the opinion in this matter will not be rendered until after January 1, 2008, the trial court should follow these new registration and notification requirements).


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Kendall M. DELANEY, Appellant.
    No. 42,990-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 13, 2008.

      Louisiana Appellate Project, by Annette Roach, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Joseph Gregorio, Assistant District Attorneys, for Appellee.
    Before GASKINS, DREW and MOORE, JJ.
   MOORE, J.

hThe defendant, Kendall M. Delaney, was convicted of armed robbery with a firearm. He was adjudicated as a second felony offender and sentenced to 50 years at hard labor on the armed robbery charge and five years at hard labor on the firearm charge to be served consecutively and without the benefit of probation, parole, or suspension of sentence. The defendant now appeals. We affirm defendant’s conviction, but vacate and set aside Delaney’s adjudication as a habitual offender and vacate the enhanced sentence based thereon. We remand for a new habitual offender proceeding and re-sentencing.

FACTS

On the morning of March 27, 2006, Christina Keck, the owner of Peter’s Country Store, went to Hibernia Bank on Benton Road to make a deposit and withdraw $14,000 cash for funds on hand to cash payroll checks at her store. She walked out of the bank with the money in a green Hibernia money bag tucked under her arm. As she walked to her car parked outside the bank, she noticed two men, one older and one younger, sitting in a green Dodge parked nearby. When she opened her car door, a man whom she identified as the younger man in the green Dodge, wrestled her down onto the front seat where the money bag lay underneath her. She testified that the defendant, who was on top of her, said something like, “Give me the bag, bitch.” She answered, “No.” He again demanded, “Give it to me,” and she again said, “No.” She then recognized a gun brush by her face, hitting her nose, and, fearing that she was about to be killed, she relinquished the | ¿money bag to the defendant.

The defendant took the bag and got into the passenger seat of the green Dodge, the motor still running, and which was being driven by Aaron Delaney. The vehicle hastily backed out and sped off from the parking lot, but apparently not quickly enough to escape the determined pursuit of Ms. Keck. The victim quickly started her vehicle, called 9-1-1 on her cell phone and followed the green Dodge. She remained on the telephone with 9-1-1, reporting her whereabouts as she followed the vehicle. She testified that, as she was tailing the vehicle, she saw the defendant in the passenger seat, bobbing his head up and down when he opened the money bag and saw the cash. The driver made his way in Bossier City back to Interstate 20 West, heading toward Shreveport. Ms. Keck continued her pursuit on the interstate, following the vehicle down the exit ramp at Hearne Avenue, at which time, Ms. Keck said, she believed the robbers recognized that she was following them because the driver made an attempt to lose her. The driver of the Dodge feigned a right turn onto Hearne, but suddenly turned left instead. Ms. Keck kept up the chase behind him, however, and remained on her cell phone, reporting her movements to 9-1-1 along the way. While following the assailants onto Hearne, she recognized that a Bossier Police unit had joined the chase behind her, at which time, Ms. Keck said she “pulled over and let them take over.”

Shortly after exiting 1-20 at Hearne Avenue, the green Dodge ran over a traffic sign and came to a stop. The defendant exited the vehicle and jumped over a nearby fence. Aaron Delaney was removed by officers from |sthe driver’s side of the wrecked vehicle.

A K-9 unit was called to the scene, and the defendant was apprehended from under a house in the vicinity. The bank bag, now containing $12,000, was retrieved from under the house. The remaining $2,000 was found in the defendant’s pants’ pocket. The gun was retrieved from the green Dodge, in the area between the driver’s seat and the console.

After being advised of their Miranda rights, Aaron Delaney and the defendant gave statements to the police. The defendant told police that Aaron Delaney held him at gunpoint, forced him to drive away from the crime scene, and ordered him to run away after the car wrecked. Aaron Delaney denied knowing the defendant and stated that the defendant made him drive away from the bank by force. Aaron Delaney died prior to trial.

In an amended bill of information, the defendant was charged with armed robbery with a firearm, a violation of La. R.S. 14:64 and 14:64.3. On February 13, 2007, a jury trial commenced in which the jury returned a verdict of guilty as charged. On April 24, 2007, the state filed a multiple offender bill charging the defendant as a third felony offender. After an habitual offender hearing, the defendant admitted to one of the previous offenses in the habitual offender bill. Thereafter he was adjudicated as a second felony offender and sentenced to 50 years at hard labor on the armed robbery charge and five years at hard labor on the firearm charge. The sentences were ordered to run consecutively and to be served without the benefit of probation, parole, or suspension of sentence. A motion to reconsider sentence was filed on June 4, 2007 and denied without a hearing. J^This appeal ensued.

DISCUSSION

By his first assignment of error, the defendant alleges that the trial court erred in allowing into evidence a statement made by Aaron Delaney to Officer Patrick McWilliams, a criminal investigator of the City of Bossier. Aaron Delaney died prior to trial and prior to a hearing on whether his statement was voluntary. The defendant asserts that since Aaron Delaney could not be cross-examined at trial, admission of this statement violated Kendall Delaney’s constitutionally guaranteed right of confrontation as set forth in the Sixth Amendment to the United States Constitution, La. Const. art. I, § 16 and Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The defendant further argues that this error was especially prejudicial because the bill of information still listed Aaron Delaney as a code-fendant in the armed robbery, and the clerk and the trial judge read to the jury the bill of information charging the defendant and Aaron Delaney as codefendants.

In State v. Tennessee, 340 So.2d 1360 (La.1976), the defendant, Tennessee, and an accomplice, Phillips, were jointly charged with armed robbery. Prior to trial Phillips died, but the state did not file a new bill of information nor amend the original bill so that only Tennessee was charged. Defendant was convicted of the armed robbery and he appealed, assigning two errors based on the failure of the district attorney to file a new bill: | ¿first, that the codefendant’s death operated as a de facto court-ordered severance requiring that a separate bill be filed; and second, that the defendant was prejudiced because the indictment (information) went to the jury containing the name of Phillips and the district attorney asserted that the defendant was a participant in a shoot-out which led to Phillips’ death.” Id. at 1361.

The supreme court rejected both assignments, holding that there is no authority requiring that a new indictment be filed when one of the jointly charged defendants dies, and in this case, Tennessee was not prejudiced from the fact that information went to the jury containing Phillips’ name. In rejecting the defendant’s claim that his defense was prejudiced, the court observed that the defendant himself interjected that Phillips had been killed in a shoot-out in connection with another crime. The court also concluded that the defendant waived any complaint to whatever writings went into the jury room by failing to object at that time. Id., citing La. C. Cr. P. art. 841. Unlike the instant case, however, the court also noted that there was no reference to Phillips when the bill of information was read to the jury, although the bill sent to the jury room contained Phillips’ name on the bill.

The facts of State v. Tennessee, supra, can be distinguished in that the clerk and the trial court in the instant case did read to the jury the name of Aaron Delaney as a codefendant in the armed robbery. Nevertheless, we conclude that the defendant was not prejudiced by that fact alone or in conjunction with Officer McWilliams’ hearsay testimony regarding the statement Aaron Delaney made to him. First, the basis of defendant’s ^defense against the charge was that he (Kendall Delaney) was an unwilling participant in his uncle’s (Aaron Delaney’s) attempt to avoid capture after the latter had committed an armed robbery. In both his opening statement and closing argument, the defense argued that his uncle committed the armed robbery and drove the escape vehicle forcing the defendant at gunpoint to go with him. Counsel for the defendant contended that he (the defendant) was guilty only of poor judgment by fleeing the scene after the vehicle crashed. Moreover, the defendant made no objection to the bill of information at trial, and therefore waived the right to assert an objection to the bill on appeal. State v. Tennessee, supra; La. C. Cr. P. art. 841. Hence, insofar as the bill of information charges Aaron Delaney with the armed robbery, the bill raises no factual assertion that the defendant himself was not also asserting at trial. We find no prejudice in the state’s failure to file a new bill of information. Nor do we find that naming Aaron Delaney as a codefendant on the bill resulted in even greater prejudice as a result of Officer McWilliams’ testimony regarding his written recollection of Aaron Delaney’s statement in which Aaron Delaney asserted that Kendall Delaney was the actual culprit in the crime.

McWilliams testified that on the afternoon of the robbery, he interviewed both Aaron Delaney and Kendall Delaney in separate rooms, going back and forth between the two. Each asserted that the other had committed the robbery and each asserted that the other had forced him at gunpoint to escape from the bank parking lot in the green Dodge vehicle. Aaron Delaney claimed he had never seen Kendall Delaney in his life and |7that he was the victim of carjacking by the other suspect. However, when McWilliams confronted Aaron Delaney with Kendall Delaney’s admission that Aaron was his uncle and his accusation that he (Aaron) committed the robbery, Aaron refused to make any further statements.

Prior to trial, on October 31, 2006, the state filed a “Notice of Intent to Request Pretrial Determination of Admissibility of Defendant’s Statement and Other Evidence.” At the hearing on this motion, the defense sought to suppress Kendall Delaney’s statement to police by alleging that it was made under duress caused by the police K-9 bite wounds on his arms that he had received when he was captured after his attempted escape, and therefore the statement was not voluntary or reliable. During this hearing the state brought up the matter of McWilliams’ recollection and written notes of Aaron Delaney’s statement. The defense objected to the state using McWilliam’s recollection of Aaron’s statement as evidence at trial on grounds that Aaron Delaney had died, and counsel had no way of knowing whether the statement was voluntary, nor could he challenge Aaron Delaney regarding the substance statement. The district court ruled that Aaron Delaney’s statement was voluntary and presumably ruled that the statement was admissible, but it limited its ruling strictly to the voluntariness issue, preserving the defendant’s right to “reopen the matter.” The defense never raised an objection before or during Officer McWilliams’ testimony at trial, and thus the court never ruled beyond the issue of whether Aaron Delaney’s statement was voluntary.

At trial, Officer McWilliams’ testified regarding the substance | ¡¡Aaron's statement accusing the defendant as the sole culprit. This evidence was apparently introduced to counter testimony of Officer McWilliams adduced by the defense that the gun used in the robbery was found between the console and driver’s seat. The Hibernia bag contained the money and Aaron Delaney’s personal papers that included pay check stubs, his car registration, job applications and an eviction notice. The defense’s strategy was to implicate Aaron Delaney, and not the defendant, as the actual robber. Defense counsel had asserted this argument in his opening statement. During Officer McWilliams’ testimony regarding the substance of Aaron Delaney’s statement, the defense raised no evidentiary or confrontation objection. The defendant now contends on appeal that he was denied his constitutional right to confront Aaron Delaney through cross-examination of him regarding the statement. Clearly Officer McWilliams’ testimony was hearsay, but the question on appeal goes to Aaron Delaney’s statement, and involves the more serious and distinct issue of Kendall Delaney’s constitutional right to confront an unavailable witness.

Ordinarily, in order to preserve an issue for appellate review, a party must state an objection contemporaneously with the occurrence of the alleged error, as well as the grounds for the objection. La. C. Cr. P. art. 841(A). It is well-established that a defendant is limited to the grounds for objection articulated at trial and a new basis for an objection may not be raised for the first time on appeal. The one exception to the requirement of an objection is a court’s ruling on any written motion. La. C. Cr. P. art. 841(B). In this instance, the court ruled on the state’s written motion filed on October 31, 2006, wherein the defense challenged the admission of Aaron Delaney’s statement on grounds that it had no way to know its contents or whether it was voluntary. Assuming that this ruling meets the “ruling” requirement of Art. 841(B), for the following reasons, we conclude that this assignment is without merit.

By remaining a named codefendant on the bill of information, Aaron Delaney’s death prior to trial is closely analogous to a situation in which he survived to go to trial and exercised his right not to testify. Aside from the hearsay issue, which is an evidentiary issue, McWilliams’ testimony regarding the statement of codefendant Aaron Delaney implicating the defendant raises the constitutional issue of defendant’s right to confront his accuser. The Confrontation Clause of the Sixth Amendment guarantees the right of a criminal defendant “to be confronted with the witnesses against him.” The United States Supreme Court has held that this guarantee, which is extended to the States by the Fourteenth Amendment, includes the right to cross-examine witnesses. Cruz v. New York, 481 U.S. 186, 189, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987). In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the Supreme Court was faced with determining whether a defendant is deprived of the right under the Confrontation Clause to cross-examine “witnesses against him” where, in a joint trial, the codefendant’s confession that potentially incriminates defendant is introduced as evidence solely “against” the co-defendant, and the judge issues a limiting instruction to the jury that it be used only to assess the guilt of the codefendant. In that case, the codefendant chose not to testify and could not be cross-examined by the defendant. The Court held [ina defendant is deprived of his rights under the Confrontation Clause when a codefen-dant’s incriminating confession is introduced against the codefendant at their joint trial-even if the jury is instructed to consider that codefendant’s confession only against the codefendant. 391 U.S. at 126, 88 S.Ct. 1620, 20 L.Ed.2d 476.

In Cruz v. New York, supra, the Court considered whether Bruton should apply to bar the introduction of the jointly-tried codefendant’s confession as evidence “against” the codefendant even where the defendant’s own confession, which “interlocked” with the codefendant’s confession, had also been admitted as evidence against defendant at trial. Although four justices of the Court had previously intimated in Parker v. Randolph, 442 U.S. 62, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979), that Bruton was inapplicable in cases involving interlocking confessions because the introduction of the codefendant’s confession was not “devastating” to the case of a defendant whose own interlocking confession was introduced as evidence against him, the majority in Cruz rejected that approach. Noting that the introduction of a jointly-tried codefendant’s confession that interlocked with defendant’s confession was even more harmful to defendant because it corroborated defendant’s own guilty confession, the court decided to apply Bruton even in cases where codefen-dant’s and defendant’s confessions interlocked. Thus, Cruz held a non-testifying codefendant’s confession also incriminating the defendant is not admissible against the codefendant at their joint trial, even if the jury is instructed not to consider it against the defendant, and even if the defendant’s own interlocking confession is admitted against him. Cruz, 481 U.S. at 193, 107 S.Ct. 1714.

Importantly, however, the Court in Cruz noted Bruton and its progeny were limited to cases involving jointly-tried defendants where the codefendant’s confession is sought to be admitted as evidence solely against the codefendant. Bruton and Cruz would not operate to bar the introduction of a codefendant or co-perpetrator’s confession as evidence directly against the defendant, the Court held, where such introduction met the requirements of Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986). Cruz, supra, 481 U.S. at 193-94, 107 S.Ct. 1714.

In Lee, supra, defendant and a codefen-dant were jointly tried for a double murder in a bench trial. Although neither testified at trial, the trial judge expressly relied on the codefendant’s confession as substantive evidence against defendant. On appeal, defendant argued her right to cross-examine witnesses against her was violated by the trial court’s consideration of the codefendant’s confession as substantive evidence of her guilt where she had no opportunity to cross-examine the code-fendant insofar as he chose not to testify. The Court in Lee noted how the Confrontation Clause operates to advance the pursuit of truth in a criminal trial by: (1) insuring] that the witness will give his statements under oath-thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forcing] the witness to submit to cross-examination, the “greatest legal engine ever invented for the discovery of truth”; [and] (3) permit[ting] the jury that is to decide the defendant’s fate to observe the demeanor of the witness making his 112statement, thus aiding the jury in assessing his credibility (footnote omitted). Lee, supra, 476 U.S. at 540, 106 S.Ct. 2056 (quoting California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970)). A defendant is deprived of these truth-finding mechanisms where an accomplice’s confession, particularly one made during custodial interrogation when the accomplice’s motivation is highly suspect, is sought to be introduced against a defendant without benefit of cross-examination. Indeed, the Court in Lee noted a codefen-dant’s confession is presumptively unreliable “as to the passages detailing the defendant’s conduct or culpability because those passages may well be the product of the codefendant’s desire to shift or spread blame, curry favor, avenge himself, or divert attention to another.” Lee, 476 U.S. at 545, 106 S.Ct. 2056. As such, the Court held that accomplices’ confessions that incriminate defendants are generally presumptively unreliable and thus inadmissible for Confrontation Clause purposes; however, this presumption may be rebutted by a significant showing of trustworthiness and other indicia of reliability as to the accomplice’s confession. In doing so, the Court implied one factor to be considered in determining the trustworthiness of the declarant and his statement was whether the co-perpetrator’s statement interlocked to some degree with defendant’s admitted statement. Lee, supra, 476 U.S. at 543-545, 106 S.Ct. 2056.

In Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990), however, the Court clarified that the particularized guarantees of trustworthiness required for the admission of such a statement under the | ^Confrontation Clause must be drawn from the totality of circumstances surrounding the making of the statement that render the declar-ant particularly worthy of belief and not from the fact that other evidence was introduced at trial that corroborated the statement. Significantly, the Court noted that whether the co-perpetrator’s statement interlocked with a confession by the defendant was not an appropriate factor to be considered in determining the trustworthiness and reliability of the declarant and his statement. Idaho, supra, 497 U.S. at 822-824, 110 S.Ct. 3139.

The facts of this case involve the introduction of, as substantive evidence of defendant’s guilt, a hearsay account of an accomplice’s statement implicating defendant, that does not interlock with defendant’s statement, wherein he accuses the accomplice as the sole culprit in the armed robbery. Under the Lee and Idaho v. Wright line of cases of the Supreme Court, Aaron Delaney’s statement is presumptively unreliable and therefore inadmissible under the Confrontation Clause unless the presumption can be overcome by sufficient indicia of reliability and trustworthiness indicated solely by the totality of circumstances surrounding the making of the statement. The weight of this presumption cannot be ignored and, indeed, in application, can be overcome only in the most rare circumstances. State v. Harris, 1998-2113 (La.App. 1 Cir. 6/25/99), 739 So.2d 312.

As noted by the panel in Harris, supra, the Fifth Circuit Court of |14Appeals appears to view these statements as being barred in almost all circumstances. In United States v. Flores, 985 F.2d 770 (5th Cir.1993), the court observed:

[TJhere is [a] category of statements against penal interest that should generally be regarded as inadmissible under the Confrontation Clause, particularly where the declarant’s unavailability is due simply to invocation of the Fifth Amendment in response to actual or potential prosecution, namely statements accusatory of another taken by law enforcement personnel with a view to prosecution. Such statements have two characteristics that together make them inherently unreliable: (1) the declarant makes accusatory statements that inculpate another; and (2) these statements are made to non undercover law-enforcement personnel after the commission of the offense. In that generic situation there always exists the strong possibility that the declarant has the “desire to shift or spread blame, curry favor, avenge himself, or divert attention to another.”
It is precisely in these circumstances that cross-examination, the “greatest legal engine ever invented for the discovery of truth,” is preeminently suited to determining the trustworthiness of a de-clarant’s statements as envisioned by the framers of the Confrontation Clause.
The Supreme Court has never allowed the admission against a defendant of a codefendant’s hearsay inculpatory statements to law enforcement authorities, although it has suggested that theoretically such hearsay could be admitted in appropriate circumstances.

Flores, supra, 985 F.2d at 780, 782 (citations and footnote omitted).

However, in this case, we need not determine whether the circumstances surrounding Aaron Delaney’s statement indicate sufficient reliability and trustworthiness because, even assuming the trial court erred in allowing his statement as evidence against defendant, such error was harmless beyond a reasonable doubt. See State v. Harris, supra.

| ^Confrontation right claims are subject to a Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) harmless error analysis. See Delaware v. Van Arsdall, 475 U.S. at 684, 106 S.Ct. at 1438; State v. Robinson, 2001-0273 (La.5/17/02), 817 So.2d 1131, 1137; State v. Hawkins, 96-0766 (La.1/14/97), 688 So.2d 473, 478; State v. Wille, 559 So.2d 1321, 1332 (La.1990).

The correct inquiry is whether, assuming that the damaging potential (to the state’s case) of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case. Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986); State v. Robinson, supra at 1137.

The confrontation error in this case was harmless beyond a reasonable doubt even if the full potential of a cross-examination of Aaron Delaney were realized. First, we note in our review of the trial transcript that the defense’s cross-examination of Officer McWilliams regarding Aaron Delaney’s statement was as effective, if not more so, than an actual cross-examination of Aaron Delaney, and showed, if anything, that Aaron | ^Delaney’s statement to police was unreliable. The transcript reveals the tone of McWilliams’ responses to questioning by the defense and reflect McWilliams’ own incredulous view of Aaron Delaney’s statement. In particular, McWilliams testified that Aaron Delaney “claimed” himself to be a victim and he “claimed” he had never in his life seen Kendall Delaney before the robbery. However, McWilliams testified that when he confronted Aaron Delaney with the fact that he knew he was Kendall Delaney’s uncle, Aaron Delaney reacted angrily, and refused to discuss anything further.

More importantly, the state’s case was based primarily on the testimony of Ms. Keck. She testified that she saw Aaron Delaney and Kendall Delaney in the parked car together before the robbery as she was returning to her car. She identified Kendall Delaney as her assailant. She identified the car, the money bag, the amount and denominations of the money taken, the paper license plate as well as the facts regarding the escape. At best, Aaron Delaney’s statement accusing Kendall Delaney of committing the robbery is very weakly cumulative since the victim herself identified the defendant as the armed robber and the other physical evidence against the defendant was strong.

The full damaging potential of a cross-examination of Aaron Delaney would have been to undermine the credibility of Aaron Delaney’s statement exculpating himself that he was not involved in the robbery, that he did not know Kendall Delaney, and that Kendall Delaney forced him to drive the vehicle. However, the testimony of Ms. Keck and the other facts developed by the defense, namely the fact that the gun was found between Aaron 117Pelaney’s seat and the console, and the personal papers Aaron Delaney found in the money bag all tend to show that Aaron Delaney was involved in the robbery along with Kendall Delaney, but these facts do not undermine the verdict against Kendall Delaney that he was guilty of armed robbery beyond a reasonable doubt.

Accordingly, for the foregoing reasons, we conclude initially, that by failing to object to McWilliams’ testimony as hearsay, the defendant waived the right to assert a hearsay objection on appeal; we further conclude that any error in the court’s pre-trial ruling on whether the Aaron Delaney’s statement was voluntary and admitting Officer McWilliams’ testimony regarding Aaron Delaney’s statement which was not subject to cross-examination was harmless error in this case. Accordingly, this assignment is without merit.

By his second assignment of error, appellant alleges that the trial court erred in sentencing him under the habitual offender laws. The court failed to advise the defendant of his rights and obtain a proper waiver of these rights and receive an admission to the habitual offender bill from Kendall Delaney before imposing sentence under the habitual offender laws.

Specifically, the defendant argues that the trial court failed to advise him of the specific allegations contained in the habitual offender bill, his right to a full hearing, and his right to remain silent and failed to obtain a proper waiver of these rights. The defendant further argues that it was improper to sentence him as a second felony offender as the transcripts of the habitual offender proceedings do not contain sufficient discussion to support a finding that he entered an admission to one of the two predicate offenses | ^listed in the habitual offender bill.

We conclude that this assignment has merit.

Before accepting a defendant’s admission that he is a multiple offender, the trial judge must specifically advise the defendant of his right to a formal hearing, his right to require the state to prove his identity as a multiple offender, and his right to remain silent. La. R.S. 15:529.1(D); State v. Brown, 42,188 (La.App. 2 Cir. 9/26/07), 966 So.2d 727. A trial court’s failure to properly advise a defendant of his rights under the Habitual Offender Law constitutes patent error on the face of the record and requires that the habitual offender’s adjudication and sentence be vacated. State v. Odom, 34,054 (La.App. 2 Cir. 11/1/00), 772 So.2d 281, 288.

In State v. Mason, 37,486 (La.App. 2 Cir. 12/10/03), 862 So.2d 1077, this court explained that failure to inform a defendant of his rights during the habitual offender proceedings is error patent, but that under certain circumstances the error may be harmless. We stated:

La. R.S. 15:529.1(D)(1)(a) requires that the Defendant be advised of the specific allegations contained in the habitual offender bill of information and his right to a formal hearing at which the State must prove its case. Implicit in this requirement is the additional requirement that the Defendant be advised of his constitutional right to remain silent. Generally, the failure of the trial court to advise the Defendant of his right to a hearing and his right to remain silent is not considered reversible error where the Defendant’s habitual offender status is established by competent evidence offered by the State at a hearing rather than by admission of the Defendant. However, when the guilt of the Defendant is proven by his own stipulation or admission to the habitual offender bill of information, without having been informed of his right to a hearing or his right to remain silent by either the trial court or his attorney, there is reversible error. State v. Bell, 03-217(La.App. 5 Cir. 5/28/03), 848 So.2d 87, 90.

|1fiIn this case, the transcripts of the habitual offender proceedings do not reflect that the trial court advised the defendant of any rights relative to a habitual offender proceeding. According to State v. Mason, supra, this failure could be harmless error if the defendant’s guilt “is established by competent evidence offered by the State at a hearing, rather than by admission of the Defendant.”

The transcripts do reflect that the defendant stipulated to one prior felony conviction for possession of cocaine of which he was alleged to have been convicted on July 29, 2002. However, the state failed to submit competent evidence, such as certified copies of the bills of information, court minutes, or transcripts corresponding to those prior convictions, to establish that the defendant was a habitual offender outside of his stipulation. Accordingly, the trial court’s failure to properly advise the defendant of his rights constitutes patent error on the face of the record and requires that the habitual offender’s adjudication and sentence be vacated.

By his third assignment of error, defendant alleges that the trial court erred by imposing a separate five-year hard labor sentence for the firearm enhancement provisions contained in La. R.S. 14:64.3.

The defendant argues that the sentences should be set aside because the trial court imposed sentences under both the habitual offender statute and under the firearm enhancement statute for the single crime of armed robbery with a firearm. In the event that this court disagrees, the defendant argues that the sentence should be amended to delete the requirement that the additional five years be served at hard labor as the statute did not provide forj^a hard labor sentence at the time of the commission of the offense.

The defendant’s principal argument was rejected recently in State v. King, 2006-1903 (La.10/16/07), 969 So.2d 1228. We therefore conclude that in light of State v. King, supra, the trial court was correct in sentencing the defendant to an additional five-year term for a violation of La. R.S. 14:64.3. We also note, however, that the trial court erred in ordering the additional five-year sentence imposed under La. R.S. 14:64.3 to be served at hard labor. When the defendant committed the present offense, the statute did not provide for a hard labor sentence. See King, supra at 1232.

CONCLUSION

For the foregoing reasons, the defendant’s conviction for Armed Robbery with a Firearm is affirmed. The adjudication and enhanced sentence as a habitual offender is vacated. We remand for a new habitual offender proceeding and re-sentencing. The five-year sentence imposed pursuant to La. R.S. 14:64.3 should be amended to delete the provision requiring the sentence to be served at hard labor, but affirming that it must be served consecutively.

CONVICTION AFFIRMED; HABITUAL OFFENDER SENTENCE VACATED; CASE REMANDED FOR RE-SENTENCING AND AMENDMENT.

      . Ms. Keck testified that she arrived at the bank shortly before the bank opened that morning.

      . The defendant asserted at trial that Phillips was killed in a shoot-out during an incident (kidnapping) unrelated to the armed robbery while he (defendant) was in Houston. The defendant asserted on appeal that the district attorney stated at trial that Phillips was fatally wounded during the armed robbery.

      . Under Lee, supra, and Idaho, supra, reliability must be shown without reference to any corroboration provided by the interlocking nature of the two statements (codefendant and defendant). However, in this case, the two statements do not interlock, since each codefendant accused the other as the sole culprit in the armed robbery.


text:
    STATE of Louisiana, Appellee v. Oscar K. JAMES, Appellant.
    No. 42,976-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 13, 2008.

      Annette F. Roach, Louisiana Appellate Project, for Appellant.
    Jerry L. Jones, District Attorney, Holly A. Chambers-Jones, Assistant District Attorney, for Appellee.
    Before BROWN, C.J., and WILLIAMS, and DREW, JJ.
   BROWN, Chief Judge.

| defendant, Oscar K. James, conditionally pled guilty to possession of cocaine with intent to distribute. He reserved his right to appeal the trial court’s denial of his motion to suppress evidence seized from his vehicle and his confession. See State v. Crosby, 338 So.2d 584 (La.1976). Defendant was sentenced to 20 years at hard labor, with the first two years to be served without benefit of parole. In addition to the denial of his motion to suppress, defendant appeals his sentence as excessive. We affirm defendant’s conviction and sentence.

Discussion

Motion to Suppress

Defendant moved to suppress the cocaine seized from his vehicle and the confession that followed as fruits of an illegal stop and arrest.

On the morning of August 4, 2006, Lt. Mike Rowland and Agent Passman with the Metro Narcotics Unit in Monroe drove in an unmarked Ford Mustang to the homeless shelter in the 800 block of DeS-iard Street. They saw defendant, who was driving a maroon Grand Prix, turn into the alley next to the shelter and park. The officers pulled in behind defendant. Lt. Rowland walked to the driver’s side of defendant’s car and Agent Passman went to the passenger side. Lt. Rowland, who was dressed in street clothes, carried his handgun at his side. His intent was to arrest defendant for a drug sale to Lt. Rowland two days earlier (August 2, 2006). As Lt. Rowland approached the driver’s side of the vehicle, he observed defendant’s hand down in the area between the door and the driver’s seat. Lt. Rowland ordered defendant to place his hands on the steering wheel and 1 ?had Agent Passman call for back-up. Because defendant was a large man weighing over 300 pounds, Lt. Rowland did not have defendant get out of the car until back-up units arrived. While waiting for the back-up units to arrive, Lt. Rowland looked into the car in the area where defendant was reaching and observed a clear cellophane bag containing white rocks that appeared to be crack cocaine. At this point, Lt. Rowland advised defendant of his Miranda rights. After back-up units arrived at the scene, Lt. Rowland instructed defendant to exit the car and asked defendant for his consent to search the vehicle. Defendant responded affirmatively, and Lt. Rowland retrieved the bag of cocaine which contained 40 to 50 rocks. Defendant told Lt. Rowland that the crack cocaine belonged to him. Defendant stated that his passenger had nothing to do with the cocaine and she was released after her handbag was searched.

Defendant was arrested and transported to the offices of the Metro Narcotics unit. Lt. Rowland testified that he advised defendant of his Miranda rights again and took a video, recorded statement from defendant in which defendant confessed to selling crack cocaine for about a year and gave the names of other drug dealers.

In explaining why he arrested defendant, Lt. Rowland testified as to the events that had occurred two days earlier. After being advised by informants and a volunteer employee of the homeless shelter that drugs were being sold in the area around the shelter, Lt. Rowland began an undercover operation to buy drugs. In particular, on August 2, 2006, he made contact with Christian Bilberry, a female whose street name was |s“Mississippi,” to purchase a rock of crack cocaine. Lt. Rowland stated that while he was sitting in his vehicle, he observed “Mississippi” walk to a picnic table about 10 to 12 feet from Lt. Rowland and obtain the crack cocaine from defendant. When “Mississippi” returned to him with the cocaine, he handed her a twenty-dollar bill, and as he was driving off, he observed “Mississippi” hand the money to defendant. Lt. Rowland stated that he was personally familiar with defendant as he had dealt with him previously. Lt. Rowland also testified that he saw a maroon Grand Prix parked in the alley in close proximity to defendant. A check of the license plate showed that the car was registered to defendant. No arrest was made at this time as Lt. Rowland was still working the area.

Defendant argues that the officers acted unreasonably in deciding to arrest him on August 4, 2006. According to La. C. Cr. P. art. 213, a law enforcement officer may arrest a person without a warrant when that officer has “reasonable cause” to believe that the person to be arrested has committed an offense. State v. Hathaway, 411 So.2d 1074 (La.1982). The Louisiana Supreme Court has defined “reasonable cause” similarly to “probable cause” by stating that “[reasonable cause for an arrest exists when facts and circumstances known to- the arresting officer and of which he has reasonable trustworthy information are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime.” Id.; State v. Smith, 42,089 (La.App.2d Cir.06/20/07), 960 So.2d 369.

LContrary to defendant’s argument, this was not a stop of a moving vehicle. His automobile was parked in an alleyway behind the shelter. The officers had concluded their undercover operation and went back to the area at which time they recognized defendant and his automobile. Defendant had been involved in a drug sale two days earlier in the same area. Lt. Rowland had probable cause to arrest defendant for the crime committed two days earlier. Lt. Rowland testified that two days earlier, he had personally observed the exchange of drugs and currency between defendant and “Mississippi” in the same location. Moreover, Lt. Rowland stated that he had started his undercover actions in July and had made many buys. Throughout this period he saw defendant and believed that defendant was the main supplier of cocaine in the area. Lt. Rowland knew from his investigation that defendant came to the area in the morning and stayed until 2:00 or 3:00 p.m. The circumstances set forth in the record support the conclusion that Lt. Rowland had probable cause to arrest defendant for the sale of cocaine two days earlier. When Lt. Rowland observed defendant’s hand reaching down between the seat and door, he was justified to react to protect himself from possible harm. He ordered defendant to put his hands on the steering wheel and looked at the area where defendant was reaching. It was then that the officer saw what appeared to be contraband drugs.

When a police officer has made a lawful custodial arrest of an occupant of an automobile, the officer may search the passenger compartment of that vehicle as a contemporaneous incident of arrest and as an exception to the warrant requirement. Thornton v. United States, 541 U.S. 615, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004); State v. Canezaro, 07-668 (La.06/01/07), 957 So.2d 136; State v. Warren, 05-2248 (La.02/22/07), 949 So.2d 1215.

Defendant not only consented to the search of his vehicle, but admitted to the officers that the crack cocaine belonged to him. There is no evidence that defendant was coerced, threatened, misled or mistreated in any manner. Further, nothing in the record indicates that defendant did not understand what he was doing or that his actions were not voluntary.

In summary, probable cause existed to arrest defendant, the ensuing search of defendant’s vehicle and seizure of the crack cocaine were incidental to a lawful arrest, and defendant’s statements were free and voluntary. Thus, the trial court properly denied defendant’s motion to suppress.

Excessive Sentence

A trial court has broad discretion to sentence within the statutory limits. 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 La. C. Cr. Art. 894.1. Absent a showing of manifest abuse of that discretion, this court may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.05/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App.2d Cir.05/12/04), 873 So.2d 939.

The trial court complied with La. C. Cr. P. art. 894.1 in the imposition of defendant’s sentence. The trial court reviewed a pre-sentence investigative report which showed the defendant’s age, limited employment | ^record, drug addiction, and his allegation that he was only a street dealer. The pre-sentence investigation report also detailed defendant’s lengthy criminal history. The court noted that defendant had four prior felony convictions for offenses including simple burglary, forgery, and distribution of cocaine. The trial court also noted that defendant had received the benefit of probated sentences in the past and was on supervised probation when he committed the instant offense.

Defendant’s sentence is not too severe given the circumstances of the case and defendant’s criminal history. Defendant benefitted from a plea agreement in which the state agreed not to prosecute him on habitual offender charges.

Conclusion

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


author: GASKINS, J.

text:
    Melissa GUTHRIE, et al., Plaintiffs-Appellants v. LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY, et al., Defendants-Appellees.
    No. 42,974-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 13, 2008.

      James D. Caldwell, for Plaintiffs-Appellants.
    Hudson, Potts & Bernstein, L.L.P., by Gordon L. James, for Defendants-Appel-lees, H. Clint McCready, M.D. & LAMMI-CO.
    Guste, Barnett and Shusan, L.L.P., by Gerald F. Arceneaux, Richard L. Weil, for Defendant-Appellee, Randolph H. Taylor, M.D.
    Marc W. Judice, for DefendanL-Appel-lee, The Medical Protective Company.
    Before BROWN, GASKINS and CARAWAY, JJ.
   GASKINS, J.

liThe plaintiffs, Melissa Guthrie, Liz Ficker, Danny Talley, and Kenneth Talley, appeal from a trial court ruling which granted summary judgment in favor of Medical Protective Company in connection with malpractice claims arising from the death of their father, Malvin H. Talley. For the following reasons, we affirm the trial court judgment.

FACTS

The plaintiffs filed a wrongful death and survival action against Dr. Randolph H. Taylor, his insurer, the Medical Protective Company (MPC), Dr. H. Clint McCready, and his insurer, Louisiana Medical Mutual Insurance Company (LAMMICO), arising from the death of their father, Malvin H. Talley, following a left knee replacement which became infected. Dr. Taylor performed the surgery in May 2002. In March 2003, the knee became infected and Mr. Talley was admitted to the hospital. On March 26, 2003, Dr. Taylor removed the knee joint and Mr. Talley was sent to rehabilitation under the care of Dr. McCready. In June 2003, Mr. Talley was readmitted to the hospital. He continued to have problems with infection in the knee and Dr. Taylor performed a total left knee replacement revision. Mr. Talley’s condition deteriorated and on July 17, 2003, he died of sepsis.

On July 19, 2004, the plaintiffs convened a medical review panel. The panel decided adversely to the plaintiffs. On May 16, 2006, the plaintiffs filed the present suit alleging various acts of malpractice by Drs. Taylor and McCready in failing to deal with the infection in Mr. Talley’s knee.

li>The MPC filed exceptions of no cause and no right of action, asserting that Dr. Taylor had a “claims made” policy which terminated on June 20, 2004. Under such policies, coverage applies upon the bringing of a claim, not upon the occurrence of the event giving rise to the claim. The plaintiffs’ claim was filed with the Louisiana Patient’s Compensation Fund (PCF) on July 19, 2004, one month after the MPC policy expired. Dr. Taylor had originally arranged to purchase extended coverage with the MPC (also known as tail coverage), but decided instead to become self-insured. He posted security with the PCF and obtained occurrence coverage rather than “claims made” coverage. The effective date of the occurrence coverage was from June 20, 2004, until June 20, 2007.

On February 26, 2007, the MPC filed a motion for summary judgment, claiming that it provided a “claims made” insurance policy to Dr. Taylor which terminated June 20, 2004, and the plaintiffs’ claim was not filed with the PCF until July 19, 2004. The MPC basically asserted the same claims raised in the exceptions of no right and no cause of action and urged that it should be dismissed because it did not provide coverage to Dr. Taylor for the plaintiffs’ claims.

A hearing was held on April 12, 2007, on the motion for summary judgment. On April 27, 2007, a judgment was filed by the trial court granting the MPC’s motion for summary judgment. All the plaintiffs’ claims against the MPC were dismissed and the trial court certified the judgment as an appealable final judgment. The plaintiffs appealed.

__[¿‘CLAIMS MADE” POLICY

The plaintiffs argue that the MPC’s “claims made” policy is void because it is in contravention of the statutory provisions of La. R.S. 22:629. At the time the plaintiffs’ claim was made, the statute provided that insurance contracts cannot limit the right of action against the insurer to a period of less than one year from the time when the cause of action accrues. The plaintiffs contend that the “claims made” policy reduced the prescriptive period they had to file suit to less than one year from the accrual of the action, in violation of La. R.S. 22:629. This argument is without merit.

|4Legal Principles

Appellate courts review summary judgments de novo under the same criteria that govern a district court’s consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La.1991); Costello v. Hardy, 2003-1146 (La.1/21/04), 864 So.2d 129. A court must grant a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). Summary judgment procedure is favored and is designed to secure the just, speedy and inexpensive determination of actions. La. C.C.P. art. 966(A)(2); Mosley v. Temple Baptist Church of Ruston, Louisiana, Inc., 40,546 (La.App. 2d Cir.1/25/06), 920 So.2d 855.

Interpretation of an insurance policy usually involves a legal question which can be resolved properly in the framework of a motion for summary judgment. An insurance policy is a contract between the parties and should be construed using the general rules of interpretation of contracts set forth in the Civil Code. The judicial responsibility in interpreting insurance contracts is to determine the parties’ common intent. La. C.C. art. 2045; Bonin v. Westport Insurance Corporation, 2005-0886 (La.5/17/06), 930 So.2d 906. Words and phrases used in an insurance policy are to be construed using their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning. La. C.C. art. 2047; Bonin v. Westport Insurance Corporation, supra. An insurance policy should not be interpreted in an unreasonable or a strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Unless a policy conflicts with statutory provisions or public policy, it may limit an insurer’s liability and impose and enforce reasonable conditions upon the policy obligations the insurer contractually assumes. Bonin v. Westport Insurance Corporation, supra.

Discussion

The “claims made” policy in this case specifies in pertinent part:

In consideration of the payment of the premium, receipt of which is hereby acknowledged, and subject to the limits of liability and other terms of the policy, the Company hereby agrees to DEFEND and PAY DAMAGES, in the name and on behalf of the Insured of his estate,
A. IN ANY CLAIM FOR DAMAGES, FILED DURING THE TERM OF THIS POLICY, BASED ON PROFESSIONAL SERVICES RENDERED OR WHICH SHOULD HAVE BEEN RENDERED AFTER THE RETROACTIVE DATE, BY THE INSURED OR ANY OTHER PERSON FOR WHOSE ACTS OR OMISSIONS THE INSURED IS LEGALLY RESPONSIBLE, IN THE PRACTICE OF THE INSURED’S PROFESSION AS HEREINAFTER LIMITED AND DEFINED.
IF REPORTED TO THE COMPANY, THE FOLLOWING SHALL BE DEEMED TO BE A CLAIM FILED DURING THE TERM SO THIS POLICY:
a) the receipt, by the Insured, of a notice of legal action for damages as described above, or
b) the receipt, by the Insured, of a notification of an intention to hold the Insured responsible for damages as described above.

lain Anderson v. Ichinose, 1998-2157 (La.9/8/99), 760 So.2d 302, the Louisiana Supreme Court quoted the following material distinguishing “claims made” from occurrence policies:

With the development of a more complex society, it became more reasonable, particularly with respect to the activities of professionals, to insure against the making of claims, rather than the happening of occurrences, and “claims made” insurance developed to meet a need for professionals to insure against the making of a claim as the insured event, rather than having to struggle with traditional concepts and difficulties inherent in determining whether the “event” insured against was the commission of an act, error or omission or the date of discovery thereof or the date of injury caused thereby.
The major distinction between the “occurrence” policy and the “claims made” policy constitutes the difference between the peril insured. In the “occurrence” policy, the peril insured is the “occurrence” itself. Once the “occurrence” takes place, coverage attaches even though the claim may not be made for some time thereafter. While in the “claims made” policy, it is the making of the claim which is the event and peril being insured and, subject to policy language, regardless of when the occurrence took place.

Therefore, under a “claims made” policy, such as the one at issue here, the making of a claim is the event insured rather than the occurrence giving rise to the claim. The purpose of the claims made and reported requirement of the policy in the Anderson case was observed to be to alleviate problems in determining when a claim is made or whether an insured should have known a claim is going to be made. A “claims made” policy works perfectly as long as the insured who is covered under the retroactive date requirement continues to purchase successive policies from the same insurer. Problems sometimes arise, however, when the insured changes insurers or when the insured, for whatever reason, does not renew |7the policy and does not obtain extended coverage. See Anderson v. Ichinose, supra.

In the Anderson case, a physician allegedly misdiagnosed a mole biopsy from the plaintiffs toe as being noncancerous in October 1986, but recommended removal of the mole because of its potential to develop into a cancerous condition. The plaintiff delayed removal until the mole became painful due to trauma to the toe. The mole was removed in December 1987 and sent to Dr. Ichinose, who reported that the mole was cancerous. Several weeks later, the plaintiff had his toe amputated. Reexamination of the October 1986 biopsy revealed the misdiagnosis. In November 1988, the plaintiff filed suit against the doctor. The doctor’s insurer was added in May 1995. The insurer claimed that it issued a “claims made” policy to the doctor covering the period from October 1, 1986, to October 1, 1987. Because the claim was made after the expiration of the policy period, the insurer asserted that there was no coverage.

In finding that there was no insurance coverage for this claim, the Anderson court stated that, unless there is a conflict with statutory provisions or public policy, insurers are entitled to limit their liability and to impose and enforce reasonable conditions upon the policy obligations they contractually assume. The court found in Anderson that the application of the requirements of the “claims made” policy, under the facts of that case, did not violate public policy. The Anderson case did not discuss the applicability of La. R.S. 22:629.

|sThe holding in Anderson was based, in part, on Livingston Parish School Board v. Fireman’s Fund American Insurance Company, 282 So.2d 478 (La.1973). In that case, the school board sued an engineer when the roof of a building collapsed on July 14, 1969. The engineer filed a third party claim against his insurer. The insurer had issued a “claims made” policy with a termination date of July 11, 1969. The supreme court determined that “claims made” policies were not against public policy. Summary judgment dismissing the claims against the insurer was found to be proper.

In Anderson, the supreme court observed that in the 26 years since the Livingston Parish School Board case was decided, the trend nationwide has been generally to uphold “claims made” policies. The court noted that, as a result, insurers have further refined such policies, and the use of that type of coverage in certain settings, especially those in which “long tail liability” is presented, has become commonplace.

Other courts in this state have considered the question of whether “claims made” policies conflict with the provisions of La. R.S. 22:629. Under some circumstances, those courts have found a conflict and have enforced coverage. In Hedgepeth v. Guerin, 96-1044 (La.App. 1st Cir.3/27/97), 691 So.2d 1355, writ denied, 97-1377 (La.9/26/97), 701 So.2d 983, a podiatrist had a “claims made” policy effective from October 2, 1985, until November 10, 1985. On October 2, 1985, within the policy period, the podiatrist treated the diabetic plaintiffs foot which resulted in an infection and partial amputation. A medical malpractice claim was filed July 23, |fl1986, against the podiatrist and his insurer. The insurer filed a motion for summary judgment asserting that it was not informed of the claim within the policy period and therefore there was no coverage.

The first circuit found that, by limiting the occurrence and reporting time to the policy period, the plaintiff had less than one year from the date of the malpractice to file suit. Finding that this scenario violated the provisions of La. R.S. 22:629, the first circuit ruled that the policy provision was without effect. This reasoning has been followed by the first circuit in Bennett v. Krupkin, 1999-2702 (La.App. 1st Cir.12/22/00), 779 So.2d 923, writ denied, 2001-0193 (La.3/30/01), 788 So.2d 1190; LeBlanc v. Succession of Raggio, 2000-2407 (La.App. 1st Cir.2/20/02), 818 So.2d 140, writ denied, 2002-0870 (La.5/31/02), 817 So.2d 95, and Hood v. Cotter 2006-1390 (La.App. 1st Cir.12/28/07), — So.2d -, 2007 WL 4554253.

The third circuit has also followed this reasoning in Gary v. Witherspoon, 1998-1810 (La.App. 3d Cir.6/2/99), 743 So.2d 708. See and compare Case v. Louisiana Medical Mutual Insurance Company, 624 So.2d 1285 (La.App. 3d Cir.1993), which excluded coverage for alleged malpractice which occurred during the coverage period but no claim was made until after the policy period. The applicability of La. R.S. 22:629 was not discussed. See also Robicheaux v. Adly, 2000-1207 (La.App. 3d Cir.1/31/01), 779 So.2d 1048; Regions Bank v. Kountz, 2005-1106 (La.App. 3d Cir.5/31/06), 931 So.2d 506; and Marsh Engineering, Inc. v. Parker, 2006-1137 (La.App. 3d Cir.2/7/07), 951 So.2d 492, writ denied, 2007-0472 (La.4/20/07), 954 So.2d 168, in which claims were made several years after the act giving rise to the claim.

This court considered the exact claims made by the plaintiff in the present case in Burns v. CLD, Inc., 38,998 (La.App. 2d Cir.10/27/04), 886 So.2d 607, writ denied, 2004-2906 (La.2/18/05), 896 So.2d 31. In Burns, alleged malpractice was committed by the staff of a nursing home on Decern-ber 24, 2001. The patient died as a result of the alleged malpractice on January 11, 2002. A medical malpractice complaint was filed with the PCF on September 17, 2002. A wrongful death and survival action was filed on December 18, 2002. A “claims made” policy was in effect from December 31, 2000, until December 31, 2001. The insurer obtained summary judgment on the basis that there was no insurance coverage because no claim was made during the policy period.

The nursing home in Bums appealed, arguing that the “claims made” policy, requiring suit to be filed within the policy period, limits the prescriptive period for filing suit for damages arising from the alleged malpractice to less than one year, in contravention of La. R.S. 22:629. This court expressly rejected the reasoning of Hedgepeth, Bennett, and Gary. Based upon Anderson v. Ichinose, supra, we found that “claims made” policies are not violative of public policy and do not conflict with the provisions of La. R.S. 22:629.

The facts of the present case are very similar to those in Burns. As in Burns, the plaintiffs allege both a survival action and a wrongful death Inaction arising from alleged malpractice. The survival action accrues simultaneously with the tort, permits recovery only for damages suffered by the victim from the time of the injury to the moment of death, and is transmitted to the victim’s beneficiaries upon his death. Burns v. CLD, Inc., supra. The wrongful death action accrues when the victim dies. It compensates the beneficiaries for their own individual injuries that occur at the moment of the victim’s death and thereafter. When the two events occurred in this case giving rise to the causes of action against the doctor, there was no insurance coverage under the MPC policy definition of risk. The survival and the wrongful death actions would only be covered by a “claims made” insurance policy if a claim is made within the policy period. In this case, no such claims were made within the policy period.

Based upon our reasoning in Bums, we find that the trial court did not err in granting summary judgment in favor of the MPC. “Claims made” policies, such as the one at issue here, do not limit the time in which a plaintiff has to file suit following an alleged act of malpractice. Rather, the policy contractually limits the risk insured. The policy simply sets forth the parameters of the contractual agreement between the insured and the insurer. The plaintiff may file within the time limits set forth under the law. However, under the provisions of a “claims made” policy, if the claim is not brought within the policy period, the claim will not be covered. Such is the result in the present case. There was no limitation on the time period set forth by statute in which the claim was required to be filed against Dr. Taylor. There was simply a limit on the insurance coverage for the claim. | T{The trial court did not err in granting summary judgment in favor of the MPC.

CONCLUSION

For the reasons stated above, we affirm the decision of the trial court granting summary judgment in favor of the Medical Protective Company, dismissing all claims brought against it by the plaintiffs in this matter. Costs in this court are assessed to the plaintiffs.

AFFIRMED.

      . La. R.S. 22:629 provided in pertinent part:
      A.No insurance contract delivered or issued for delivery in this state and covering subjects located, resident, or to be performed in this state or any group health and accident policy insuring a resident of this state, regardless of where made or delivered shall contain any condition, stipulation, or agreement:

      (3) Limiting right of action against the insurer to a period of less than twelve months next after the inception of the loss when the claim arises under any insurance classified and defined in R.S. 22:6(10), (11), (12), and (13), or to a period of less than one year from the time when the cause of action accrues in connection with all other insurances unless otherwise specifically provided in this Code.
      This statute was amended by Acts 2006, No. 739, § 1 and Acts 2007, No. 43, § 1. The amended provision, which is not applicable to this case, now provides in pertinent part:
      B. No insurance contract delivered or issued for delivery in this state and covering subjects located, resident, or to be performed in this state, or any health and accident policy insuring a resident of this state regardless of where made or delivered, shall contain any condition, stipulation, or agreement limiting right of action against the insurer to a period of less than twenty-four months next after the inception of the loss when the claim is a first-party claim, as defined in R.S. 22:1210.92, and arises under any insurance classified and defined in R.S. 22:6(6), (7), (10), (11), (12), (13), and (15) or to a period of less than one year from the time when the cause of action accrues in connection with all other insurances unless otherwise specifically provided in this Code.
      C. Any such condition, stipulation, or agreement in violation of this Section shall be void, but such voiding shall not affect the validity of the other provisions of the contract.

      . See also Johnston v. Broussard, 41,477 (La.App. 2d Cir.9/20/06), 940 So.2d 79.


author: DREW, J.

text:
    STATE of Louisiana, Appellee, v. Douglas FULLER, Appellant.
    No. 42,971-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 13, 2008.

      Louisiana Appellate Project by Edward Kelly Bauman, for Appellant.
    Indigent Defender Board by Mary Ellen Halterman, J. Schuyler Marvin, District Attorney, John M. Lawrence, C. Sher-burne Sentell, III, Assistant District Attorneys, for Appellee.
    Before BROWN, WILLIAMS and DREW, JJ.
   DREW, J.

h Douglas Fuller, originally charged with forcible rape, La. R.S. 14:42.1, entered a plea of guilty to one count of felony carnal knowledge of a juvenile. La. R.S. 14:80(A)(1). The trial court imposed a sentence of imprisonment at hard labor for eight years with credit for time served. We affirm.

On or about June 13, 2006, the defendant, then 26 years old, had vaginal intercourse with D.M., whose date of birth is November 27, 1992. The offense occurred during a family reunion which D.M. was attending with her mother, A.M., in Webster Parish, Louisiana. As a result, D.M. became pregnant and underwent an abortion. DNA testing on the fetus indicated that the likelihood of someone other than the defendant being the father was 1 in 3.83 million.

Defendant was charged by bill of information filed on December 8, 2006, with one count of forcible rape, a violation of La. R.S. 14:42.1. The defendant initially entered a plea of not guilty. On March 19, 2007, after reaching a plea agreement with the state, the defendant withdrew his plea of not guilty and pled guilty to the amended charge of felony carnal knowledge of a juvenile, a violation of La. R.S. 14:80(A)(1). The state dropped the forcible rape charge. After accepting the defendant’s plea, the state ordered a presentence investigation. On May 14, 2007, the defendant was sentenced to eight years at hard labor.

Defendant appeals his sentence, claiming it is excessive. Our jurisprudence as to review for excessiveness of sentence is well settled.

| pin the instant case, the trial court ordered a presentence investigation (“PSI”) and indicated at sentencing that:

• it had reviewed the PSI report;

• it had considered the factors set forth in the La. C. Cr. P. art. 894.1;

• defendant had caused the victim great damage, given her young age and the fact that she underwent an abortion as a result of the offense; and

• the defendant’s age was considered as an aggravating factor on the basis that the defendant was old enough at the time of the offense to have clearly crossed the “threshold of being an adult,” and should have known better.

This eight-year hard labor sentence is not excessive, particularly when considering that defendant’s exposure under the original charge was far greater.

On this record, we do not find constitutional error. While the trial court’s articulation of the factual basis under La. C. Cr. P. art. 894.1 was ^certainly not exhaustive, the record indicates an adequate factual basis for the sentence imposed. The defendant’s social history indicates no grounds tending to excuse or justify his conduct and does not indicate that his incarceration will cause an excessive hardship on dependents. While the record reflects that the defendant was a first felony offender, it also reflects a misdemeanor history which includes driving under the influence and drug possession. The defendant received substantial benefits as a result of the plea bargain agreement. Given the seriousness of the offense, the impact on the victim, and the benefit of the plea bargain received by the defendant, the sentence does not shock the sense of justice nor is it disproportionate to the severity of the offense.

ERROR PATENT

The trial court failed to advise the defendant at sentencing that he has two years from the time his conviction and sentence are final to seek post-conviction relief as required by La. C. Cr. P. art. 930.8. The statute contains supplicatory language which does not bestow an enforceable right on an individual defendant. State v. Hunter, 36,692 (La.App.2d Cir.12/20/02), 834 So.2d 6. Furthermore, this defect has no bearing on whether the sentence is excessive and, thus, is not grounds to reverse the sentence or to remand the case for resentencing. State v. Ferrell, 26,649 (La.App.2d Cir.12/7/94), 647 So.2d 427. We now advise the defendant by this opinion that no application for post-conviction relief shall be considered if it is filed more than two years after the judgment of conviction and sentence have become final under the provisions of La. C. Cr. P. arts. 914 or 922.

^CONCLUSION

The defendant’s conviction and sentence are AFFIRMED.

      . 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 La. 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. Lanclos, 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. 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. Lanclos, supra.

      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. 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. Robinson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379.
      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. Shirley, 41,608 (La.App.2d Cir.12/13/06), 945 So.2d 267. Absent a showing of manifest abuse of that discretion we may not set aside a sentence as excessive. State v. Guzman, 99-1528 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App.2d Cir.5/12/04), 873 So.2d 939.