author: CARAWAY, J.

text:
    STATE of Louisiana, Appellee, v. Sara M. WATSON, Appellant.
    No. 41,094-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 28, 2006.

      Charles L. Kincade, for Appellant.
    Jerry L. Jones, District Attorney, Stephen T. Sylvester, Assistant District Attorney, for Appellee.
    Before BROWN, WILLIAMS and CARAWAY, JJ.
   CARAWAY, J.

|, Defendant was charged by bill of information with four counts involving sexual offenses affecting minors, including felony carnal knowledge of a juvenile, in violation of La. R.S. 14:80(A)(1), molestation of a juvenile, in violation of La. R.S. 14:81.2(C), and two counts of pornography involving juveniles, in violation of La. R.S. 14:81.1(A)(1). The bill also charged malfeasance in office in violation of La. R.S. 14:134.1. Defendant pled guilty to carnal knowledge of a juvenile less than 17 years of age in exchange for the state’s dismissal of the other charges. After accepting defendant’s guilty plea, the trial court imposed a 4-year sentence at hard labor with credit for time served. Defendant appeals the sentence as excessive. We affirm.

Matters of record reveal that defendant, Sara M. Watson, was employed by the state at its Swanson Correctional Facility in Monroe, Louisiana, as a counselor in the mental health unit. On January 7, 2005, Det. Tracy Heath of the Monroe Police Department began investigating allegations that a female counselor had sex with one or two male juveniles housed at the institution. Det. Heath obtained an arrest warrant for Watson. Immediately before arresting Watson, he obtained a recorded statement in which she admitted having sex with J.R.S. in her office at Swanson on three occasions when he was between 16 and 17 years old. The bill of information alleged that these offenses occurred between September 1, 2004, and January 10, 2005.

LA trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, we may not set aside a sentence as excessive. State v. Guzman, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App.2d Cir.5/12/04), 873 So.2d 939. In reviewing claims of excessive sentence, an appellate court uses a two-step process. 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 a rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). A trial judge shall exercise his discretion to impose a sentence according to the individualized circumstances of the offense and the offender. State v. Rogers, 405 So.2d 829 (La.1981). In tailoring the sentence to the individual, the important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, the seriousness of the offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, 394, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385. Second, whether the sentence imposed is too severe depends on the | acircumstances of the case and the background of the defendant. A sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, supra.

A trial judge has broad sentencing discretion because he remains in the best position to assess the aggravating and mitigating circumstances presented by each case. State v. Gray, 32,177 (La.App.2d Cir.8/18/99), 747 So.2d 608, citing State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957. Absent a showing of manifest abuse of discretion, this court does not set aside a sentence as excessive. State v. Gray, supra. A plea bargain which brings about substantial benefit to the defendant is a legitimate consideration in sentencing. State v. Gray, supra. A trial court is not required to order a suspended or probated sentence for a first felony offender. State v. DeGueurce, 30,334 (La.App.2d Cir.2/25/98), 710 So.2d 296.

Prior to imposing the sentence, the trial court discussed several factors listed in the pre-sentence investigation report. The trial court noted defendant’s status as a first felony offender and was particularly impressed with her academic credentials of achieving a master’s degree. He acknowledged receiving letters from her family, friends and former cojworkers4 written in her support. The counter-weighing factors included the victim’s peculiar vulnerability due to his age, the special counselor/patient relationship, the custodial environment and the multiple sexual acts which defendant admitted in her recorded statement. Additionally, the trial court considered the testimony of the victim’s mother, who testified that J.R.S. was depressed and on suicide watch after the defendant was arrested. In mitigation, the trial court noted that defendant’s guilty plea shielded J.R.S. from the ordeal of going through a trial. The trial court considered that the defendant needed correctional treatment for the purposes of both punishment and deterrence.

Felony carnal knowledge of a juvenile is punishable by a fíne and/or imprisonment, with or without hard labor, for not more than ten years. La. R.S. 14:80(D). The trial court sentenced defendant to 4 years at hard labor with credit for time served. On this record, we do not find constitutional error. The sentence is lawful and less than one-half of the maximum sentence exposure. Defendant also received substantial benefit from her plea bargain in which four other counts were dismissed. The maximum sentence for the dismissed charge of molestation of a juvenile is fifteen years. La. R.S. 14:81.2(C). Thus, we do not find the sentence imposed grossly disproportionate to the severity of the offense nor is it shocking to our sense of justice.

For the foregoing reasons, the sentence is affirmed.

AFFIRMED.

      . J.R.S.’s date of birth is November 16, 1988.


source: Caselaw Access Project

author: STEWART, J.

license: Public Domain

text:
    Hubert BATTLE, Plaintiff-Appellee v. PILGRIM’S PRIDE CORPORATION, Defendant-Appellant.
    No. 41,056-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    June 28, 2006.

      Huval, Veazey, Felder & Aertker, by Dona K. Renegar, for Appellant.
    Jeansonne & Remondet, by Peter B. Derouen, Street & Street, by C. Daniel Street, Monroe, for Appellee.
    Before BROWN, STEWART and PEATROSS, JJ.
   STEWART, J.

11 Pilgrim’s Pride Corporation (“Pilgrim’s Pride”) appeals the decision of the Workers’ Compensation Judge (WCJ) awarding benefits to Hubert Battle. Finding no error in the decision of the WCJ, we affirm.

FACTS

On October 31, 2003, Hubert Battle was working as a floor man at Pilgrim’s Pride when a pallet of containers fell on him injuring his back. He sought treatment from Dr. Wyatt Webb who removed him from work immediately. Pilgrim’s Pride began the payment of indemnity benefits. Dr. Webb referred Battle to Dr. Timothy Spires, an orthopedist, for further treatment. Battle testified that he felt better while getting the therapy, but his problems did not resolve as he continued to suffer from constant pain from his back and waist area to his feet on both sides from the time of the accident to the time of trial. Battle was under the care of Dr. Spires until January 2004 when Dr. Spires released him to the care of a neurosurgeon at Battle’s request. Battle was next seen by a neurosurgeon of Pilgrim’s Pride’s choosing, Dr. Donald Smith. Dr. Smith examined Battle and determined that he did not need further treatment and could return to work. Dr. Smith’s report was forwarded to Dr. Spires who agreed with his findings.

Following receipt of these two opinions, Pilgrim’s Pride offered Battle a position at the facility where he previously worked. However, Battle did not return to work, but instead submitted a request to be seen by Dr. Bennie McHugh, a neurosurgeon, and this request was approved. Dr. McHugh performed an MRI which revealed degenerative disc changes of lathe L3-^4 and L4-5 with mild posterior disc bulges or protrusions with a tiny annular rent or tear at L3-4. It also showed that these findings caused mild effacement of the anterior thecal sac more prominent to the right at L4-5 and more prominent to the left at L3-4. Dr. McHugh recommended pain management therapy until Battle could return to work. Doctors Spires and Smith opined that Battle needed no further treatment and should return to work.

Pilgrim’s Pride then terminated Battle’s indemnity benefits and refused to approve any medical treatment. Trial of this matter was held June 1, 2005, and the parties stipulated to employment, accident in the course and scope of employment, and a workers’ compensation rate of $271.54. The WCJ determined that Battle was temporarily totally disabled from August 3, 2004, until his treating physician, Dr. McHugh, declared Battle to be at maximum medical improvement. The Court also found that Battle was entitled to temporary total disability benefits (TTD) of $271.54 per week until Dr. McHugh declares him to be at maximum medical improvement. The court awarded Battle $2,000.00 as a penalty for Pilgrim’s Pride’s failure to reinstate worker’s compensation benefits on August 3, 2004, failure to approve Battle’s request to see Dr. McHugh, and failure to approve pain management for the claimant. The court also awarded Battle’s attorney $6,000.00. This appeal ensued.

DISCUSSION

Standard of Review

Factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of appellate review. Smith v. Louisiana Dep’t of Corrections, 93-1305 (La.02/28/94), 633 So.2d 129; Freeman v. Poulan/Weed Eater, 93-1530 (La.01/14/94), 630 So.2d 733. Under the manifest error rule, the reviewing court does not decide whether the factual findings are right or wrong, but whether they are reasonable. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. If the WCJ’s findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse, even if convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Banks, supra; Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Graham v. Georgia-Pacific Corporation, 26,165 (La.App. 2d Cir.9/23/94), 643 So.2d 352.

The manifest error standard accords great deference to the WCJ for, as fact finder, he is in the superior position to assess the demeanor and tone of voice that are crucial to the issue of credibility. Rosell v. ESCO, 549 So.2d 840 (La.1989). The WCJ’s decision to credit the testimony of one of two or more witnesses can virtually never be plainly wrong. Id. Thus, “if the [factfinder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

Mediation Testimony

When error is detected, it must be weighed to determine whether such either is harmless or prejudicial. Short v. Gaylord Chem. Corp., (La.App. 3d Cir.04/01/00), 731 So.2d 493. Pilgrim’s pride argues that the WCJ erred in allowing Battle’s counsel to testify concerning the statements made by claims adjuster, Lisa Vincent, at the mediation of this matter. Apparently, the references to the testimony given during the mediation were given to resolve the issue of whether Battle was timely granted his choice of neurosurgeon. There was also a question of whether Dr. Smith was Battle’s choice of neurosurgeon. Of course, the record reveals that it was Dr. McHugh who was Battle’s choice of neurosurgeon. Nonetheless, we find no error in the admission of the testimony. It is clear from the reasons for judgment that the WCJ did not rely on the dispute concerning the timeliness of the approval of treatment by Dr. McHugh or whether Battle was given his choice of neurosurgeon as a basis for the judgment at issue. Any admission of this testimony was harmless error. Thus, this assignment is without merit.

Temporary Total Disability Benefits (TTD)

An employee is entitled to receive TTD benefits only if he proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment. Nelson v. City of Grambling, 31,303 (La.App. 2d Cir.12/9/98), 722 So.2d 358; Knotts v. Snelling Temporaries, 27,773 (La.App. 2d Cir.12/6/95), 665 So.2d 657; Johnson v. Temple-Inland, 95-948 (La.App. 3rd Cir.1/31/96), 670 So.2d 388. To prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable, that is, much more probable than its nonexistence. Nelson v. City of Grambling, supra; Knotts v. Snelling Temporaries, supra; Johnson v. Temple-Inland, supra.

Since the 1989 amendment to 23:1221(l)(d), maximum medical improvement alone has not been the standard for the termination or eligibility of TTD benefits. Rather, an employee is ineligible for TTD benefits when his physical condition has resolved itself to the point that a “reasonably reliable determination of extent of disability” may be made and “continued, regular treatment by a physician is not required,” or six months after the injury, whichever occurs first. Mitchell v. AT & T, 27,290 (La.App. 2d Cir.8/28/95), 660 So.2d 204. However, upon reaching maximum medical improvement (“MMI”), an injured worker who is able to return to work, even in pain, is no longer eligible for TTD benefits, but instead is relegated to SEB. Nelson v. City of Grambling, supra; Foster v. Liberty Rice Mill, 96-438 (La.App. 3rd Cir.12/11/96), 690 So.2d 792.

To qualify for SEB, a plaintiff is required to prove by a preponderance of the evidence that a work related injury resulted in the inability to earn 90% or more of the pre-injury wages. LSA-R.S. 23:1221(3)(a); Nelson v. City of Grambling, supra; Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. The purpose of SEB is to compensate the injured employee for the wage-earning capacity he has lost as a result of his accident. Nelson v. City of Grambling, supra; Banks v. Industrial Roofing & Sheet Metal Works, Inc., supra.

«Under LSA-R.S. 23:1221(3)(a), an employer may preclude SEB by establishing that the employee is physically able to perform a certain job and that the job was offered to the employee, or that the job was available to the employee, in his or the employer’s community or reasonable geographic region. Nelson v. City of Grambling, supra; Banks v. Industrial Roofing & Sheet Metal Works, Inc., supra. Once the employer demonstrates the employee is capable of work, and appropriate work is available, then the claimant must prove by clear and convincing evidence, unaided by a presumption of disability, that he is unable to perform the employment offered. The parties stipulated to the occurrence of a work related injury, and Pilgrim’s Pride never demonstrated that Battle was capable of returning to work; therefore, it was error to terminate his disability benefits.

Penalties

The employer’s failure to provide payment of compensation or medical benefits owed shall result in the assessment of a penalty and reasonable attorney fees, unless the employer has reasonably controverted the claim. La. R.S. 23:1201(F). To reasonably controvert a claim, the employer must have sufficient factual or medical information to reasonably counter the evidence provided by claimant. Lewis v. Chateau D'Arbonne Nurse Care Center, 38,394 (La.App. 2d Cir.4/7/04), 870 So.2d 515; Thomason v. Wal-Mart Stores, Inc., 37,520 (La.App. 2d Cir.9/4/03), 852 So.2d 1283. La. R.S. 23:1121(B) gives an injured employee an absolute right to select one physician in any field wi000thout the approval of the employer. Smith v. Southern Holding, Inc., 2002-1071 (La.1/28/03), 839 So.2d 5. Selection of a new physician in a different specialty does not require such approval. Thompson v. The Animal Hospital, 39,-154 (La.App.2d Cir.12/15/04), 889 So.2d 1193; Davis v. Sheraton Operating Corporation, 1997-2784 (La.App. 4th Cir.5/20/98), 713 So.2d 814.

Statutory provisions permitting the assessment of penalties and attorney fees for nonpayment of workers’ compensation benefits are penal in nature and must be strictly construed. Lewis v. Chateau D’Arbonne Nurse Care Center, supra. The WCJ has great discretion in awarding or denying penalties and attorney fees. Thomason v. Wal-Mart Stores, Inc., supra. The WCJ’s decision concerning whether or not to assess statutory penalties and attorney fees will not be disturbed absent an abuse of discretion. Lewis v. Chateau D’Arbonne Nurse Care Center, supra.

The WCJ determined an employer may not avoid penalties for arbitrary nonpayment by relying on initial optimistic report if the employer receives subsequent evidence to indicate that the employee has a continuing disability. See Davidson v. Horseshoe Casino, Inc., 31,166 (La.App. 2d Cir.10/28/98), 720 So.2d 785. Consequently, we find no abuse of discretion in the WCJ’s decision to award $2,000.00 in penalties because of Pilgrim’s Pride’s failure to reinstate benefits.

Attorney Fees

La. R.S. 23:1201.2 provided for an assessment of attorney fees when the employer arbitrarily and capriciously discontinued benefits without probable cause. Thomason v. Wal-Mart Stores, Inc., 37,-520 (La.App. 2d Cir.9/04/03), 852 So.2d 1283, writ denied, 2003-2774 (La.12/19/03), 861 So.2d 573.

|sThe factors to be considered in the imposition of the attorney fee in workers’ compensation cases include the degree of skill and ability exercised by the attorney, the amount of the claim, the amount recovered for the claimant, and the amount of time the attorney devoted to the case. Lewis v. Chateau D’Arbonne Nurse Care Center, supra. There is no requirement that the trial court hear evidence concerning the time spent or the hourly rates charged to make an award of attorney fees since the record will reflect much of the services rendered. Tatum v. St. Patrick’s Psychiatric Hospital, 34,957 (La.App. 2d Cir.8/22/01), 794 So.2d 958. The degree of bad faith exhibited by the employer is not an appropriate factor in determining the amount of attorney fees to be awarded. Thompson v. The Animal Hospital, supra.

The amount of attorney fees awarded rests within the discretion of the WCJ, and that determination will not be disturbed absent an abuse of that discretion. McCarroll v. Airport Shuttle, Inc., 00-1123 (La.11/28/00), 773 So.2d 694; Ward v. Phoenix Operating Co., 31,656 (La.App. 2d Cir.2/24/99), 729 So.2d 109. The factors to be considered in determining the amount of the attorney fees include the degree of skill and ability exercised by the attorney, the amount of the claim, the amount recovered for the employee, and the amount of time the attorney devoted to the case. McCarroll, supra; Ward, supra. Counsel for the claimant represented his client well, securing the payment of workers’ compensation benefits owed and not paid for almost an entire year.

| aAlthough this employer initially paid weekly benefits to Battle, it stopped when it disregarded the report of Battle’s treating physician, Dr. McHugh. The WCJ determined that Pilgrim’s Pride had reasonable cause to terminate Battle’s benefits on March 8, 2004, when it received the report of Dr. Smith, but that the basis for the stoppage of benefits ended on August 3, 2004, when Dr. McHugh recommended pain management and released Battle from work until his pain management evaluation. Given these conflicting reports, Pilgrim’s Pride could have reinstated benefits pending further evaluation. Instead it chose to blindly rely on the favorable report of its own physician to the detriment of Mr. Battle. Considering these facts, we cannot conclude that the trial court erred in awarding these penalties and attorney fees for Pilgrim’s Pride’s failure to pay benefits.

CONCLUSION

Based on the above, we affirm the judgment of the trial court reinstating workers compensation benefits to Hubert Battle and awarding penalties and attorney fees against Pilgrim’s Pride. Costs assessed against the appellant.

AFFIRMED.


author: DREW, J.

text:
    STATE of Louisiana, Appellee, v. Devangalo Deon GRAHAM, Appellant.
    No. 41,050-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 28, 2006.
    Joseph David Toups, Jr., for Appellant.
    DeVangalo Deon Graham, Pro Se.
    Don M. Burkett, District Attorney, Richard Zemry Johnson, Jr., Assistant District Attorney, for Appellee.

      Before WILLIAMS, DREW and MOORE, JJ.
   DREW, J.

hDevangalo Deon Graham was charged by bill of information with two counts of armed robbery. Pursuant to a plea agreement, he pled guilty to one count of armed robbery. The trial court imposed a sentence of 25 years at hard labor, without benefit of parole, probation, or suspension of sentence. The defendant filed an untimely motion to reconsider sentence on November 9, 2005. The defendant now appeals, assigning as error that his sentence is excessive and that the trial court did not adequately comply with the sentencing guidelines. We affirm in all respects.

On August 9, 2003, the defendant, along with his co-defendant, John Davis, entered the home of O.D. Hawkins, a 79-year-old male who was in bed recovering from a stroke. Hawkins was being cared for by his 96-year-old mother, Adelle Hawkins. Davis and Graham brandished a shotgun, stealing money and a wallet which was found underneath the victim’s pillow.

When, as here, a defendant fails to timely file a La. C. Cr. P. art. 881.1 motion to reconsider sentence, the appellate court’s review is limited to considering the bare claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Duncan, 30,453 (La.App.2d Cir.2/25/98), 707 So.2d 164. La. C. Cr. P. art. 881.1 precludes the defendant from presenting sentencing arguments to the court of appeal which were not presented to the trial court. Therefore, the defendant’s constitutional review turns upon whether the sentence is grossly disproportionate to the severity of the offense or shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La.1992); State v. White, 37,815 (La.App.2d Cir.12/17/03), 862 So.2d 1123.

A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864. A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, that sentence should not be set aside as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158.

The defendant contends that the court failed to adequately consider the sentencing guidelines and did not sufficiently articulate the reasons for the imposed sentence.

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. P. art. 894.1. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. Here, the record shows an adequate basis for the imposed sentence. Prior to imposing the sentence, the trial court stated that the pre-sentence investigation report indicated that the defendant is a first felony offender. The court also took into consideration the statements of the victim and defendant. The court noted the sentencing guidelines and aggravating and mitigating circumstances.

1 /file sentencing range for armed robbery is imprisonment at hard labor for not less than 10 years nor more than 99 years, without the benefit of probation, parole, or suspension of sentence. La. R.S. 14:64.

The trial court imposed a sentence of 25 years at hard labor, without benefit of parole, probation, or suspension of sentence. Considering the totality of the record, this sentence, one-fourth of the maximum sentence, is lawful and clearly not constitutionally excessive. Additionally, the defendant received substantial benefits as a result of the plea bargain agreement, which did away with another charge of armed robbery. We do not find that the sentence imposed is grossly disproportionate to the severity of the offense, nor is it shocking to the sense of justice.

DECREE

We affirm the defendant’s conviction and sentence.

AFFIRMED.

      . Had the bill of information included reference to La. R.S. 14:64.3, relative to the use of a firearm, the minimum would have been 15 years, and the maximum 104 years.


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee, v. Reginald Jerome THOMAS, Appellant.
    No. 41,060-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 28, 2006.

      Paula C. Mai*x, Brian C. McRae, Laura M. Pavy, for Appellant.
    William R. Jones, District Attorney, Robert E. Bethard, Assistant District Attorney, for Appellee.
    Before WILLIAMS, STEWART and PEATROSS, JJ.
   WILLIAMS, J.

hThe defendant, Reginald J. Thomas, was charged by amended bill of information with aggravated second degree battery, a violation of LSA-R.S. 14:34.7. After a bench trial, the defendant was found guilty of a lesser included offense, second degree battery, a violation .of LSA-R.S. 14:34.1. The trial court sentenced the defendant to a prison term of three years, with all but one year suspended, and two years of supervised probation. For the reasons that follow, we affirm the defendant’s conviction. However, we vacate his sentence and remand the matter for imposition of a determinate sentence.

FACTS

On April 22, 2005, the defendant and Arthur Bates had a verbal altercation at the Silver Dollar, a small complex of buildings which houses a restaurant in Coushatta. The argument soon escalated, and a “scuffle” ensued. At some point, both men fell to the floor. After the men were separated, the defendant was asked to leave the restaurant. He left the building, but remained in the parking lot. Bates remained in the restaurant for a short time. Shortly after Bates exited the restaurant, witnesses observed him “staggering across the parking lot,” and the defendant was seen nearby holding a beer bottle. Bates soon fell to the ground and lost consciousness. One witness testified that he saw the defendant push Bates, who fell and struck his head.

When the authorities arrived at the scene, Bates was lying unconscious in a pool of blood. He was transported to a hospital where he was diagnosed with severe injuries to his brain.

[aThe defendant was arrested and charged with aggravated battery. The bill of information was subsequently amended, and the defendant was charged with aggravated second degree battery. Following a trial, the defendant was convicted of a lesser included offense, second degree battery, in violation of LSA-R.S. IkMl. The trial court sentenced the defendant to serve three years in prison, with all but one year suspended, and two years of supervised probation. The trial court did not specify whether the prison sentence was to be served with or without hard labor. The defendant appeals his sentence, contending it is constitutionally excessive.

DISCUSSION

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in LSA-C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. The articulation of the factual basis for a sentence is the goal of LSA-C.Cr.P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary, even where there has not been full compliance with LSA-C.Cr.P. art. 894.1. 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, 2004-2380 (La.6/3/05), 903 So.2d 452. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of the offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864. There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,-111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385.

Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, supra.

In this case, prior to imposing a sentence, the court discussed several factors which were listed in the pre-sentence investigation report. The court noted that the defendant was 46 years old at the time of sentencing. The court also noted that the defendant was a second felony offender, who had been previously convicted of distribution of marijuana.

Responding to the sentencing guidelines, the court noted that there was significant permanent injury and economic loss to the victim. The court found that, based on the severe damage to the victim, any lesser sentence would deprecate the seriousness of the offense. As mitigating factors, the court noted that the defendant was a functioning member of society who has been working at the same place of employment for 15 years, and he has not been persistently involved in similar offenses.

Second degree battery carries a penalty of imprisonment, with or without hard labor, for not more than five years, a fine not more than $2,000, or both. The trial court imposed a sentence of three years, with all but one year suspended. The defendant is a second felony offender with a prior conviction of distribution of marijuana, and the pain and suffering caused to the victim is irreparable. The record does not demonstrate that the sentence imposed is grossly disproportionate to the severity of the offense or that it is shocking to our sense of justice. For this reason, we do not find the sentence to be constitutionally excessive.

|,.ERROR PATENT

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

The sentencing transcript reveals the trial court did not state whether the sentence was to be served with or without hard labor. However, the minutes of sentencing show the trial court ordered the sentence to be served at hard labor. A review of the sentencing transcript reveals that the trial court stated:

... Mr. Thomas ... I’m going to confine you to the Department of Corrections for a period of three years. I’m going to suspend two of the three-year sentence. So, that will be one year. I’ll give you credit for any time you may have served [a]nd have you on two years supervised probation.

When there is a conflict between the transcript and the minutes, the transcript prevails. State v. Lynch, 441 So.2d 732 (La.1983). As stated above, the sentencing provision for the offense for which the defendant was convicted provides for the sentence to be imposed either with or without hard labor. Because the trial court failed to state whether the sentence is to be served with or without hard labor, the sentence is indeterminate and contrary to LSA-C.Cr.P art. 879. See, State v. White, 35,235 (La.App.2d Cir.10/31/01), 799 So.2d 1165. Therefore, we must vacate the defendant’s sentence and remand this matter for the imposition of a determinate | fisentence wherein the trial court shall specify whether the sentence is to be served with or without hard labor.

CONCLUSION

For the foregoing reasons, we affirm the defendant’s conviction. His sentence is vacated and the matter is remanded to the trial court for resentencing as specified in this opinion.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED.

      . LSA-R.S. 14:34.1 provides:
      Second degree battery is a battery committed without the consent of the victim when the offender intentionally inflicts serious bodily injury.
      For purposes of this article, serious bodily injury means bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.
      Whoever commits the crime of second degree battery shall be fined not more than two thousand dollars or imprisoned, with or without hard labor, for not more than five years, or both.

      . LSA-C.Cr.P art. 879 provides:
      If a defendant who has been convicted of an offense is sentenced to imprisonment, the court shall impose a determinate sentence.


author: PEATROSS, J.

text:
    STATE of Louisiana, Appellee, v. Tommy Lee GIBBS, Appellant.
    No. 41,062-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 28, 2006.

      Louisiana Appellate Project, by Mary Constance Hanes, for Appellant.
    William R. Coenen, Jr., District Attorney, Penny Douciere, Kenneth Douglas Wheeler, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART & PEATROSS, JJ.
   PEATROSS, J.

1 defendant, Tommy Lee Gibbs, was convicted by a jury of possession of a Schedule II CDS, namely cocaine, with intent to distribute, and was sentenced to 25 years’ imprisonment at hard labor. Defendant now appeals, assigning as error that the trial court erred in allowing other crimes evidence at trial. For the reasons stated herein, Defendant’s conviction and sentence are affirmed.

FACTS

On July 10, 2004, Sgt. Thomas Alexander and Officer Tamario Turner of the Rayville Police Department were on patrol and approached Defendant to question him about a matter unrelated to the instant case. The officers testified that they asked Defendant if “they could talk,” at which point Defendant fled on foot. The officers chased Defendant into a ditch, Officer Turner on foot and Sgt. Alexander in the patrol vehicle.

Sgt. Alexander testified that he observed Defendant take an object out of his pocket and drop it on the ground as he jumped into a ditch. Sgt. Alexander explained that the discarded object was a cellophane wrapper from a cigarette package, and he believed the contents of the wrapper to be crack cocaine. Defendant was searched and was found to have $164 in cash and 19 small clear plastic baggies. The contents of the cigarette bag were later confirmed to be 6 rocks of crack cocaine valued at approximately $140.

Defendant was originally charged with simple possession of cocaine, but the charge was later increased to possession with intent to distribute in light of inculpa-tory statements he made when questioned about an unrelated | ¿matter. During questioning, Defendant stated, “I sell drugs to get money to support my habit.” On June 27, 2005, a hearing was held, and the trial court denied pre-trial motions presented by Defendant, which included a motion to quash the amended bill of information and a motion to suppress the inculpatory statement, along with other pro se motions.

The State gave Defendant notice of its intention to use “other crimes” evidence involving three counts of distribution of marijuana in 1994. On June 27, 2005, after a hearing, the trial court ruled the “other crimes” evidence was admissible and denied Defendant’s motion in limine. For the record, the defense noted its formal objection to the trial court’s ruling. On June 29, 2005, a 12-person jury found Defendant guilty as charged. As previously stated, Defendant was sentenced to 25 years at hard labor with credit for time served. A timely motion to reconsider was denied.

DISCUSSION

Assignment of Error Number One (verbatim): The trial court erred in allowing into evidence (in Mr. Gibbs’ 2005 trial for possession with intent to sell crack cocaine), over defense counsel’s objection, the testimony of undercover officers concerning “other crimes,” specifically the defendant’s purported sale of marijuana in 1994.

Defendant argues that the trial court erred in allowing the State to introduce evidence of his alleged sale of marijuana in 1994. Defendant further argues that the introduction of “other crimes” was not harmless error under the circumstances of the case.

At trial, Officers Fleming and Wilson testified that they conducted a “controlled buy” operation in 1994 when Defendant sold them small bags of marijuana. Defendant was arrested, but never tried because the physical ^evidence was lost. Defendant asserts that, since he was never convicted of the alleged offense, the alleged prior acts were inadmissible as the acts did not fall within the exceptions of Article 404(B). He contends that the acts were not near in time to the current offense and was not the sale of the same drug. According to Defendant, therefore, the prior 1994 acts do not show that he intended to sell cocaine in 2004. Defendant further asserts that the probative value of the evidence did not outweigh the prejudicial effect and the trial court erred in allowing the evidence at trial.

Defendant argues, by extension, that the guilty verdict was attributable to the introduction of the alleged 1994 sales as evidence, and, therefore, its admission does not constitute harmless error. Defendant asserts that there was hardly any evidence that he had any intent to sell the cocaine he possessed at the time of arrest. According to Defendant, the alleged inculpa-tory statement about selling drugs was vague and would not insure a jury’s finding on the intent to sell.

The State argues that Officer Fleming had a clear recollection of the circumstances surrounding Defendant’s previous arrest and that the case was not tried due to the loss of the marijuana, not because of Defendant’s innocence. The State contends that the purpose, namely Defendant’s intent to distribute, was proved to the trial court’s satisfaction at the hearing and at trial.

The State cites State v. House, 325 So.2d 222 (La.1975); and State v. Moore, 40,311 (La.App.2d Cir.1/13/06), 920 So.2d 334, for the factors to be considered by the trier of fact when determining an individual’s intent to | ¿sell or distribute: (1) packaging in a form usually associated with distribution; (2) evidence of other sales or attempted sales by the defendant; (3) a large amount or quantity of the drug such as to create an inference of intent to distribute; (4) expert or other testimony that the amount was inconsistent with personal use; and (5) the existence of any paraphernalia, such as baggies or scales, evidencing an intent to distribute.

The State cites a number of other eases where evidence of past sales of drugs have been held admissible at trial for a subsequent offense to prove the element of the intent to sell. See State v. Davis, 05-543 (La.App. 3d Cir.12/30/05), 918 So.2d 1186; and State v. Lee, 25,917 (La.App.2d Cir.5/4/94), 637 So.2d 656, writ denied, 94-1451 (La.10/7/94), 644 So.2d 631. Defendant suggests that these cases are distinguishable due to the different narcotic sold in the previous offenses; however, the State- bolsters its reliance on these cases by pointing out that Defendant admitted selling “drugs,” not just cocaine, to support his habit.

The State further asserts that the fact Defendant was not convicted of the 1994 charges does not automatically mean that the prior act cannot be used as other crimes evidence at trial. There is no requirement that the State have obtained a conviction for other crimes evidence to be admissible. In the case sub judice, the State explains that, through the testimony of Officers Fleming and Wilson, the marijuana distribution was proven by clear and convincing evidence. Furthermore, the State points out that the court instructed the jury on the limited purpose of this evidence.

| ^Finally, the State asserts that, in the event that the introduction of the “other crimes” was erroneous, such error was harmless. There were several factors and other evidence of Defendant’s intent to sell the drugs in his possession; and, therefore, the State contends that Defendant’s conviction should be upheld. We agree with the State.

Louisiana Code of Evidence Article 404 states, in pertinent part, that:

B. Other crimes, wrongs, or acts.
(1) Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

For evidence of other crimes to be admissible, the state must prove with clear and convincing evidence (1) that the other acts or crimes occurred and were committed by the defendant, (2) that the other acts satisfy one of the requirements of La. C.E. art. 404 B(l) [motive, intent, knowledge, identity, absence of mistake or accident], and (3) that the probative value of the evidence outweighs its prejudicial effect. State v. Baker, 39,696 (La.App.2d Cir.5/11/05), 902 So.2d 1247, writ denied, 05-2055 (La.4/28/06), 927 So.2d 281.

A trial court’s ruling on the admissibility of evidence of other crimes will not be overturned absent an abuse of discretion. State v. Scales, 93-2003 (La.5/22/95), 655 So.2d 1326, cert. denied, 516 U.S. 1050, 116 S.Ct. 716, 133 L.Ed.2d 670 (1996); State v. Blackwell, 30,281 (La.App.2d Cir.11/10/97), 701 So.2d 1389, writ denied, 97-3073 (La.2/13/98), 709 So.2d 755.

Generally, evidence of other crimes committed by the defendant is inadmissible due to the “substantial risk of grave prejudice to the defendant.” State v. Prieur, 277 So.2d 126 (La.1973). Pursuant to La. C.E. art. 404(B)(1), evidence of other crimes, wrongs or acts are generally not admissible to prove character. The article, however, provides for exceptions to this rule, which include admission for the purposes of proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident or when the evidence relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

In the instant case, the trial court held a Prieur hearing to determine the admissibility of the “other crimes” evidence the State sought to introduce. In accordance with La. C.E. art. 404(B), adequate notice of the State’s intent to use “other crimes” was provided. At the hearing, the trial court heard testimony from Officer Fleming, who conducted the undercover operation targeting Defendant in March 1994. After several drug transactions where Defendant sold small bags of marijuana to the undercover agents, Defendant was charged with three counts of distribution of marijuana. Officer Fleming identified Defendant at the hearing and explained that, since the drug evidence was lost, Defendant was never |7convicted. The trial court subsequently ruled the “other crimes” evidence was admissible.

At trial, in addition to Officer Fleming’s testimony, Deputy Wilson, one of the undercover agents from the 1994 drug transaction at issue, testified to the same sequence of events leading to Defendant’s arrest. Both officers identified Defendant as the same person involved with the other crime and noted that, at the time of the prior arrest, Defendant’s arm was in a cast and in a sling. We conclude that the testimony provided by the State was clear and convincing evidence that the other crime was committed by Defendant and that Defendant’s intent with the prior drugs establishes the same with the instant offense. We further find no error in the trial court’s determination that the probative value of the evidence outweighed the prejudicial effects.

During closing arguments, defense counsel and the district attorney addressed the limited purpose of “other crimes” evidence. Furthermore, the trial court instructed the jury as follows:

[ejvidence that Defendant was involved in the commission of an offense other than the offense for which he is on trial is to be considered only for a limited purpose. The sole purpose for which such evidence may be considered is whether it tends to show guilty knowledge, intent, system, motive, or identity.

The jury instructions provided a safeguard for allowing the “other crimes” as evidence. For - these reasons, we conclude that the admission of the other crimes evidence was not erroneous.

Assuming, arguendo, that the other crimes evidence was erroneously admitted, we conclude that its admission was harmless error as there was |sample evidence to find Defendant guilty of the charged offense. Harmless error analysis begins with the premise that the evidence is otherwise sufficient to sustain the conviction if viewed from the perspective of a rational fact finder and asks whether beyond a reasonable doubt the error could not have contributed to the verdict actually returned by the defendant’s jury. State v. Haddad, 99-1272 (La.2/29/00), 767 So.2d 682, cert. denied, 531 U.S. 1070, 121 S.Ct. 757, 148 L.Ed.2d 660 (2001); State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94. The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993).

In the case sub judice, Defendant was in possession of 6 rocks of cocaine, 19 small baggies and $164 in cash. Sgt. Alexander, admitted as an expert, testified as to the significance of the amount of money, the size and amount of the rocks of cocaine and the purpose of the little baggies Defendant had at the time of his arrest. Sgt. Alexander further testified that all of these items were consistent with the intent to distribute and not for personal use.

Furthermore, when Defendant was questioned by Officer Ken Sanders about an unrelated matter, he made the statement, “I sell drugs to get money to support my habit.” This statement was documented, confirmed by Officer Sanders and signed by Defendant. Prior to being questioned, Defendant had been properly Mir-andized, and Officer Sanders ^testified that Defendant did not seem confused and that he was cooperative. In light of the other evidence produced at trial, the guilty verdict actually rendered in this trial was unattributable to the error.

CONCLUSION

For the foregoing reasons, the conviction and sentence of Defendant, Tommy Lee Gibbs, are affirmed.

AFFIRMED.


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee, v. Jack KING, Appellant.
    No. 41,083-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 28, 2006.
    Rehearing Denied Aug. 4, 2006.

      Jack King, Pro Se Appellant.
    Carey J. Ellis, III, David R. McClat-chey, for Appellant.
    Paul J. Carmouche, District Attorney, Dhu Thompson, Ron Christopher Stamps, Lea R. Hall, Jr., Assistant District Attorneys, for Appellee.
    Before STEWART, MOORE and LOLLEY, JJ.
   LOLLEY, J.

11 Jack King was convicted by a unanimous jury in the First Judicial District Court, Parish of Caddo, Louisiana for armed robbery using a firearm. La. R.S. 14:64 and 14:64.3 He was subsequently adjudicated a second felony habitual offender and sentenced to 203 years at hard labor, with credit for time served. King appealed. For the following reasons, King’s conviction is affirmed, his sentence is amended, and as amended, affirmed.

Facts

On May 18, 2004, King entered the customer line at a Hibernia Bank branch in Shreveport, Louisiana. When King reached the teller, he handed her a pillowcase, displayed a portion of his gun and demanded money. The teller stuffed at least $5,000 into the pillowcase, along with a dye pack. Once King received the pillowcase, he left the bank and the dye pack exploded. King ran from the bank with red dust from the dye pack covering him.

Patrick Knight, a customer at Hibernia Bank, chased King and forced him to the ground. At that time, King had the pillowcase and the gun in his possession. Knight kicked away the gun as he held King to the ground until the police arrived.

Following a trial, King was convicted by a unanimous jury of armed robbery using a firearm on May 26, 2005. The state subsequently filed a habitual offender bill of information seeking to have King declared a second felony habitual offender based on a 1983 manslaughter conviction and the subject armed robbery conviction. King filed a pro se motion to quash the 1 ¡^habitual offender bill, which alleged in part that, during plea negotiations for his prior convictions, he was not advised that the convictions could or would be used for future enhancement purposes.

At the habitual offender hearing, the trial court held that King’s allegations were without merit. The trial court also denied his post-trial motions. Although King’s second degree murder bill of indictment did not have fingerprints, the state introduced the bill of indictment, along with the minutes of his guilty plea to manslaughter, as Exhibit S-l. Despite King’s objection to the introduction of S-l because the certification was improper, the trial court found King to be a second felony offender.

On July 22, 2005, King was sentenced to 203 years at hard labor, with credit for time served. King subsequently filed a motion to reconsider sentence, which was denied by the trial court. This appeal by King ensued.

Discussion

In King’s first assignment of error, he maintains that the state did not comply with the requirements necessary to adjudicate him as a second felony offender under the habitual offender law. Specifically, King cites La. R.S. 15:529.1 and contends that more than 10 years have elapsed between his manslaughter conviction on July 5, 1983, and the commission of the present armed robbery offense on May 18, 2004. Additionally, he argues that the state failed to offer sufficient proof of the alleged manslaughter conviction. He urges that it is the state’s initial burden to show that there was a conviction and that the defendant was represented by counsel, or waived counsel, at the time he entered his plea. He contends that, although |sthe state submitted court minutes from the proceeding, the state failed to establish whether or not the prior guilty plea was informed and voluntary, and made with the articulated waiver of the three Boykin rights. Finally, King argues that the state failed to adequately establish his identity as the individual previously convicted of manslaughter as charged in the habitual offender bill of information. For the following reasons, we disagree.

Louisiana R.S. 15:529.1(D)(1) governs the procedure for preserving these issues on appeal. The procedure requires the court in which the subsequent conviction was obtained to bring the offender before the court, inform him of the allegations contained in the information and of his rights, and require the offender to say whether the allegations are true. If the offender denies the allegation, refuses to answer, or remains silent, his plea or the fact of his silence is entered on the record and he shall be given 15 days to file particular objections to the information. Any challenge to the previous conviction or adjudication of delinquency not made before sentence is imposed, may not thereafter be raised to attack the sentence. La. R.S. 15:529.1(D)(l)(b); State v. Jones, 29,805 (La.App.2d Cir.09/24/97), 700 So.2d 1034, writ denied, 1999-2487 (La.02/18/00), 754 So.2d 961.

In a habitual offender proceeding, the state is only required to establish a prior felony conviction, and that the defendant is the person convicted of the earlier offense. On appeal, the sole issue to be resolved is whether evidence was introduced upon which the trial judge could find the defendant to be the same person as the previously convicted felon. State v. White, 28,095 (La.App.2d Cir.05/08/96), 674 So.2d 1018, writs denied, 96-1459 (La.11/15/96), 682 So.2d 760, 1998-0282 (La.06/26/98), 719 So.2d 1048, citing State v. Shepherd, 566 So.2d 1127 (La.App. 2d Cir.1990).

Prima facie proof of a prior felony conviction may be established by compliance with La. R.S. 15:529.1(F). However, this provision is not the exclusive method of proving a prior felony conviction: any other competent evidence may be used to establish such proof. White, supra; State v. Young, 27,237 (La.App.2d Cir.08/23/95), 660 So.2d 548. Identification of the accused may be by testimony of witnesses, by expert opinion as to the fingerprints of the accused when compared to those in the prison record introduced, or by photographs contained in the duly authenticated record. White, supra; Young, supra; Shepherd, supra.

In State v. Shelton, 621 So.2d 769 (La.1993), the Louisiana Supreme Court discussed the state’s burden of proof in a habitual offender proceeding as follows:

If the defendant denies the allegations of the bill of information, the burden is on the State to prove the existence of the prior guilty pleas and that the defendant was represented by counsel when they were taken. If the State meets this burden, the defendant has the bur■den to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant is able to do this, then the burden of proving the constitutionality of the plea shifts to the State. The State will meet its burden if it introduces a “perfect” transcript of the taking of the guilty plea, one which reflects a colloquy between judge and defendant wherein the defendant was informed of and specifically waived his right to trial by jury, his privilege against self incrimination, and his right to confront his accusers. If the State introduces anything less than a “perfect” transcript, for example, a guilty plea form, a minute entry, an “imperfect” transcript, or any combination thereof, the judge then must weigh the evidence submitted by the defendant and by the State to determine | ^whether the State has met its burden of proving the defendant’s prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boy-kin rights.

Id. at 779-80 (footnotes omitted).

Objections/Time Delay

King argues that he was not allowed to file objections to the habitual offender bill of information and contends that although he attempted to file an objection by filing a motion to quash the habitual offender bill of information, neither he nor his trial counsel were afforded 15 days to file a written response to the bill pursuant to La. R.S. 15:529.1(D).

The record shows that King filed a pro se motion to quash the habitual offender bill, which alleged that, during plea negotiations for his prior convictions, he was not advised that the convictions could or would be used for future enhancement purposes. It also alleged that “the legislature failed to enact statutes which would have allowed the defendant to plea bargain with confidence” and that multi-bill statutes are unconstitutional because they are used to intimidate a defendant. At the habitual offender hearing, King waived formal reading of the bill of information. Because trial counsel waived delays regarding the habitual offender hearing, King’s argument that he was not afforded the requisite time delay in which to file objections to the habitual offender bill is without merit.

“Cleansing Period

King also argues that the stated failed to prove that the 10-year “cleansing period” between the 1983 conviction and the current 2004 |ficonviction had not elapsed. He further contends that there is no evidence in the record that 10 years had passed between the date of discharge and the date of commission for the present offense. Finally, King maintains that the state failed to provide evidence as to when he was discharged, and that his discharge could have taken place before the theoretical date of discharge.

Louisiana R.S. 15:529.1(C) provides that:

The current offense shall not be counted as, respectively, a second, third, fourth, or higher offense if more than ten years have elapsed behueen the date of the commission of the current offense or offenses and the expiration of the maximum sentence or sentences of the previous conviction or convictions, or adjudication or adjudications of delinquency, or between the expiration of the maximum sentence or sentences of each preceding conviction or convictions or adjudication or adjudications of delinquency alleged in the multiple offender bill and the date of the commission of the following offense or offenses. In computing the intervals of time as provided herein, any period of servitude by a person in a penal institution, within or without the state, shall not be included in the computation of any of said ten-year periods between the expiration of the maximum sentence or sentences and the next succeeding offense or offenses. (Emphasis added.)

See also State v. Everett, supra. The penalty under subsection La. R.S. 15:529.1(A) is employed to determine the appropriate sentence if ten years or less has elapsed between the defendant’s discharge from being subject to penitentiary confinement for the previous conviction and the commission of the under lying felony. Id. In a habitual offender proceeding, the state bears the burden of proving that the period of time between adjacent offenses has not expired. State v. Ignot, 29,745 (La.App.2d Cir.08/24/97), 701 So.2d 1001, writ denied, 1999-0336 (La.06/18/99), 745 So.2d 618.

| /Technically, King is correct in his assertion that the state did not provide direct evidence as to his actual date of discharge. However, the trial court did not err in making a theoretical calculation based on the evidence it was presented as to King’s discharge. Here, King was convicted of manslaughter on July 5, 1983, and was sentenced to serve 21 years at hard labor with credit for time served. The record reflects that he was subject to penitentiary confinement for the previous offense until February 21, 2005. King committed the present offense of armed robbery on May 18, 2004. At trial, King testified that he was convicted of manslaughter and was still on parole for the previous offense when he committed the present armed robbery offense. He also stated his belief that his manslaughter sentence would not be completed until July 17, 2005. Notably, during the habitual offender hearing, King did not raise the issue of his date of discharge. Accordingly, the trial court did not err in concluding that a ten-year period had not elapsed between the two convictions for purposes of determining King to be a habitual offender.

Identity

King also contends that the state failed to establish his identity as the person charged of the predicate felony and that, in the proceeding, there was no witness to establish that he was the same person who in fact committed the predicate offense of manslaughter. Here, the state did not provide fingerprint evidence to establish identity. However, the fact that the state failed to provide a fingerprint expert or fingerprint evidence does not undermine the conclusion that King was the same person who had been |sconvicted of the previous felony. King’s identity as the person who was convicted of the predicate felony was proven by his own admissions at the armed robbery trial and the certified bill of information and court minutes from the previous conviction. See State v. Keys, 29,369 (La.App.2d Cir.05/07/97), 694 So.2d 1107, writs denied, 97-1387, 97-1497 (La.10/31/97, 703 So.2d 21). We consider the evidence sufficient to identify King as the person convicted of the predicate offense. Therefore, this argument is without merit.

Sufficient Proof/Manslaughter Guilty Plea

King also argues that the state failed to offer sufficient proof of the alleged manslaughter conviction and that the state failed to establish that the guilty plea was informed and voluntary. During the habitual offender hearing, the state introduced into evidence a certified photocopy of the bill of indictment charging King with second degree murder, which was alleged to have occurred on May 23, 1983. The state also introduced a certified photocopy of the court minutes wherein King entered a plea of guilty to manslaughter. The state did note that, “due to some unexplainable reason, the fingerprints for this particular conviction, as far as I can tell, do not exist.” The state did, however, adopt and incorporate King’s admission at trial that he was convicted of manslaughter. King objected to the introduction of Exhibit S-l alleging that the certification was improper because the dates were not placed on the seal at the same time the seals were placed on the bill and minutes; however, he did not specifically object to the lack of fingerprint exhibits. Additionally, there was no objection to the adoption of King’s trial testimony on the issue.

|9The evidence presented by the state, including the bill of indictment and minutes from the guilty plea, was sufficient to establish that King was properly informed of his rights pursuant to Boykin v. Alabama. The state used King’s testimony to show that he was the person charged, and the minutes reflected that King was represented by counsel. Specifically, the minutes of the manslaughter guilty plea stated that King was present with counsel and advised of “his constitutional rights as per Boykin v. Alabama.” Once the state proved the existence of the prior guilty plea, the burden shifted to King to establish infringement on his rights or a procedural irregularity in taking the guilty plea. State v. Shelton, supra. Here, King failed to present any evidence of infringement upon his rights. Furthermore, based upon King’s testimony and the evidence, the prosecution established that he was a second felony offender. Therefore, the prosecution met its burden of proof under La. R.S. 15:529.1, and we conclude that argument is also without merit.

Sentencing

King also argues that the trial court erred in imposing an excessive sentence, because he accepted responsibility for the crime and expressed remorse at trial and sentencing. King concludes that the 203-year sentence is shocking to one’s sense of justice and that the goals of punishment can better be accomplished with a less severe sentence. Furthermore, in his pro se brief, King argues that the imposed sentence is illegally lenient because the trial court failed to order that the sentence be served without benefit of | inparole, probation or suspension of sentence. In this regard, King concludes that the sentence should be set aside and the case remanded for resentencing.

In reviewing claims of excessive sentence, an appellate court uses a two-step process. 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 a rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). A trial judge shall exercise his sentencing discretion to impose sentences according to the individualized circumstances of the offense and the offender. State v. Rogers, 405 So.2d 829 (La.1981). In tailoring the sentence to the individual, the important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Bradford, 29,519 (La.App.2d Cir.04/02/97), 691 So.2d 864. There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.03/01/00), 754 So.2d 392, 394, writ denied, 2000-1467 (La.02/02/01), 783 So.2d 385.

Second, whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence jn violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, supra.

A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion we may not set aside a sentence as excessive. State v. Guzman, 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.

Here, the record shows more than adequate compliance with the statutory considerations. Prior to imposing the sentence, the trial court discussed several factors, which were listed in the pre-sentence investigation report. The trial court noted that King was 55 years old at the time of the offense. The trial court also noted that King has been arrested at least 30 times for different offenses. King is a second felony offender, who has been convicted of manslaughter, and he has also been convicted of two federal felonies. Additionally, the trial court noted that King has a history of violating probation and parole. The trial court commented that, based on his criminal record, it appeared that King had a problem functioning without | ^committing felonies or violent crimes. The trial court also stated that any lesser sentence would deprecate the seriousness of the crime. The court took into consideration King’s testimony at the sentencing hearing and that he admitted at trial to committing the armed robbery.

The sentencing range for armed robbery using a firearm is not less than 10 years and not more than 99 years, without the benefit of parole, probation or suspension of sentence. La. R.S. 14:64. Since a firearm was used in the commission of the robbery, there is a mandatory addition of 5 years to be served consecutively and without benefits. La. R.S. 14:64.3. As a second felony habitual offender, the defendant faced a minimum sentence of 49½ years and a maximum sentence of 198 years without benefit of parole, probation or suspension of sentence. La. R.S. 15:529.1.

So considering, we do not find the maximum sentence for this defendant to be constitutionally excessive. However, a review of the record reveals that the total sentence of 203 years is illegal. When imposing the sentence, the trial court stated that he was ordering “the maximum sentence possible under the law which is 203 years at hard labor as a multiple offender.” It is apparent that the trial court imposed a sentence of twice the maximum (99 years x 2, i.e. 198) plus the 5-year enhanced penalty pursuant to La. R.S. 14:64.3 to reach King’s total sentence of 203 years. Although we do not find a maximum sentence for King to be excessive, we conclude that the total number of years calculated by the trial court, i.e. 203 years, was in error.

|13A sentence under the habitual offender law effectively replaces the sentence for the underlying crime under La. R.S. 14:64 and 14:64.3. State v. White, 39,634 (La.App.2d Cir.06/16/05), 907 So.2d 180, writ denied, 2005-2097 (La.03/10/06), 925 So.2d 510. Thus, the state’s choice thereafter to proceed under the habitual offender law and adjudicate King as a second felony offender subjected King only to the sentence as specified under the habitual offender law. The applicable sentence under the habitual offender law effectively replaces the sentence for the underlying crime under La. R.S. 14:64 and 14:64.3. The imposition of an additional five years under La. R.S. 14:64.3 by the trial court was erroneous and resulted in an illegal sentence. Therefore, we amend the sentence to delete the additional five year term and affirm King’s remaining sentence of 198 years as a second time habitual offender.

Additionally, we note that the sentence is illegally lenient. The trial court failed to order that King’s sentence be served without benefits. Louisiana R.S. 15:529.1(G) provides that sentences under the provisions of the habitual offender statute be served without benefit of probation or suspension of sentence. See State v. Sweat, 40,625 (La.App.2d Cir.04/12/06), 926 So.2d 779. The trial court’s failure to state that the sentence will be served without those benefits is automatically corrected by operation of La. R.S. 15:301.1. See State v. Cooper, 38,743 (La.App.2d Cir.09/22/04), 882 So.2d 657. Thus, King’s 198-year sentence is to be served without the benefits of probation or suspension of sentence.

1 uPro Se Assignments of Error

In his pro se appellate brief, King raises two additional assignments of error. First, King argues that the trial court erred by designating a particular place of commitment, Angola, where he will serve his term of imprisonment. Specifically, the trial court sentenced King to hard labor and remanded him “to the custody of the sheriff for transfer to the Department of Corrections, Angola.” King maintains that the designation of his confinement to Angola was in error, and his sentence should be vacated and remanded for re-sentencing. We disagree.

La. R.S. 15:824 reads in pertinent part, as follows:

A. Notwithstanding any provision of law to the contrary, any individual subject to confinement in a state adult penal or correctional institution shall be committed to the Louisiana Department of Public Safety and Corrections and not to any particular institution within the jurisdiction of the department. The director of corrections shall assign each newly committed inmate to an appropriate penal or correctional facility. The director may transfer an inmate from one such facility to another, insofar as the transfer is consistent with the commitment and in accordance with treatment, training and security needs established by the department; however, no juvenile may be transferred to a penal or correctional facility for persons committed by a court having criminal jurisdiction except in accordance with the provisions of R.S. 15:1062.
C. Notwithstanding any provision of law to the contrary, only individuals actually sentenced to death or confinement at hard labor shall be committed to the Department of Corrections.

As we have already discussed herein, as a second felony offender, King’s penalty is a minimum sentence of 49½ years and a maximum 11Ksentence of 198 years without benefit of probation or suspension of sentence. La. R.S. 15:529.1. Therefore, the sentence is to be served at hard labor and King should be committed to the Department of Corrections. La. R.S. 15:824 C. Despite the fact that the trial court stated “Angola” at the end of the sentence, the trial court properly committed King to the custody of the Department of Corrections. Use of the designation “Angola” at the end of the sentence was obviously used for emphasis only and was not in error. This assignment is without merit.

Ineffective Assistance of Counsel

In another pro se assignment of error, King submits that his trial counsel was ineffective for failing to adequately investigate, confer or otherwise interview King in the course of his defense. Specifically, King argues that his trial counsel failed to adequately confer with him prior to trial. King contends that he filed a motion to recuse his counsel which was denied by the trial judge. He also contends that trial counsel did not know whether he had decided to testify prior to trial. King concludes that his trial counsel failed in his duty to make a reasonable investigation.

As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief in the trial court than by appeal. This is because PCR creates the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. State v. Williams, 33,581 (La.App.2d Cir.06/21/00), 764 So.2d 1164. A motion for new trial is also | í ^an accepted vehicle to raise such a claim. Id. However, when the record is sufficient, this court may resolve the issue on direct appeal in the interest of judicial economy. State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Willars, 27,394 (La.App.2d Cir.09/27/95), 661 So.2d 673.

The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment to the U.S. Constitution. The relevant inquiry is whether counsel’s representation fell below the standard of reasonableness and competency as required by prevailing professional standards demanded for attorneys in criminal cases. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The assessment of an attorney’s performance requires that his conduct be evaluated from counsel’s perspective at the time of the occurrence. A reviewing court must give great deference to a trial counsel’s judgment, tactical decisions and trial strategy. There is a strong presumption that trial counsel has exercised reasonable professional judgment. State v. Tilmon, 38,003 (La.App.2d Cir.04/14/04), 870 So.2d 607, writ denied, 2004-2011 (La.12/17/04), 888 So.2d 866.

Second, the defendant must show that counsel’s deficient performance prejudiced his defense. This element requires a showing that the errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland, supra; Tilmon, supra. The defendant must prove actual prejudice before relief will be granted. It is not sufficient for the defendant to show the error had some conceivable effect on the outcome of the proceedings. Rather, he must show that but for counsel’s | ^unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Strickland, supra; State v. Pratt, 26,862 (La.App.2d Cir.04/05/95), 653 So.2d 174, writ denied, 95-1398 (La.11/03/95), 662 So.2d 9.

A defendant making a claim of ineffective assistance of counsel must identify certain acts or omissions by counsel which led to the claim: general statements and conclusory charges will not suffice. Strickland, supra; State v. Jordan, 35,643 (La.App.2d Cir.04/03/02), 813 So.2d 1123, writ denied, 2002-1570 (La.05/30/03), 845 So.2d 1067.

Here, King’s claim would have best been raised in an application for post-conviction relief, but the record is sufficient to address this issue on appeal. In this particular case, this defendant has failed to show that this trial counsel committed any error or that his performance was deficient. King argues that his trial counsel failed to adequately represent him at trial. The record shows that King’s trial counsel filed numerous pretrial motions, including a motion for discovery. Although King claims that his trial counsel did not know that he decided to testify prior to trial, it is clear that King was advised of his right not to testify. At trial, King’s trial counsel stated, out of the presence of the jury, that he had advised King of his right not to testify and that if he chose not to testify then the court would instruct the jury not to hold that against him. King’s trial counsel also stated that he told King that if he did testify then the state could question him about his prior criminal record. King confirmed to the trial court that his attorney discussed his right not to testify in detail. He also told the court that he 11swanted to testify and King then admitted to committing armed robbery. During the trial and prior to King’s testimony, his trial counsel cross-examined witnesses, and he filed a motion for post-verdict judgment of acquittal and motion for appeal. King’s trial counsel also filed a timely motion to reconsider sentence. Additionally, at the habitual offender hearing, King’s attorney objected to the certification of the bill of indictment and the minutes. He also objected to the state offering the defendant’s felony convictions for sentencing purposes because it was not relevant to the habitual offender determination. The record suggests that King’s trial counsel was completely competent and that his actions did not prejudice King or deprive him of a fair trial in any manner whatsoever. So considering, King has totally failed to demonstrate that he was prejudiced by any perceived deficiencies in his trial counsel’s performance. This assignment is therefore without merit.

Conclusion

For the foregoing reasons, Jack King’s conviction is affirmed and his sentence is amended from 203 years to 198 years, without benefit of probation or suspension of sentence.

CONVICTION AFFIRMED AND SENTENCE AMENDED; AS AMENDED, AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, CARAWAY, MOORE, and LOLLEY, JJ.

Rehearing denied.

      . The Louisiana Supreme Court has admonished against the use of the term “cleansing period.” See State v. Everett, 2000-2998 (La.05/14/02), 816 So.2d 1272.

      . During the habitual offender hearing, the state introduced into evidence a certified copy of the indictment, the judgment and probation commitment order relating to King’s felony charges. The federal convictions were presented for sentencing purposes only.

      . King also raises as a pro se assignment of error the issue of his illegally lenient sentence, which issue is addressed in our discussion regarding his sentence.


text:
    STATE of Louisiana, Appellee v. Monolo Anton BAKER, Appellant.
    No. 40,997-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 28, 2006.
    Rehearing Denied Aug. 17, 2006.
    Louisiana Appellate Project by Annette Fuller Roach, Lake Charles, for Appellant.
    Paul Joseph Carmouche, District Attorney, Tommy Jan Johnson, Dhu Thompson, Lea R. Hall, Jr., Assistant District Attorneys, for Appellee.
    Before BROWN, CARAWAY and DREW, JJ.
   DREW, J.

| ^onolo Anton Baker has appealed his adjudication and sentence as an habitual offender, contending that his habitual offender conviction was an impermissible double enhancement of a previous penalty. We affirm.

BAKER’S RELEVANT CRIMINAL HISTORY

• Aggravated Battery Conviction on December 16, 1996;

• Felony Possession of Stolen Things Conviction on September 13,1999;

• Possession of a Firearm by a Convicted Felon Conviction on January 27, 2005; and

• Habitual Offender adjudication (at issue) on July 25, 2005.

PROCEDURAL HISTORY

Using his December 16, 1996, conviction of aggravated battery as a predicate, the state charged Baker with possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1, to which Baker entered a guilty plea as charged on January 27, 2005. On March 16, 2005, the trial court sentenced Baker to 11½ years’ imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. on the firearm conviction.

The state then filed an habitual offender bill pursuant to La. R.S. 15:529.1, based upon Baker’s firearm violation and the September 13, 1999, conviction for felony possession of stolen things. The court adjudicated Baker a second felony offender following a July 25, 2005, hearing. The trial court vacated the initial sentence for being a felon in possession, and instead sentenced Baker to 15 years at hard labor without the benefit of probation, parole, or suspension of sentence.

^DISCUSSION

In Baker’s view, the trial court erroneously adjudicated him a multiple offender by improperly basing the adjudication on his conviction as a felon in possession of a firearm under La. R.S. 14:95.1, declaring this an impermissible double enhancement of his conviction as a felon in possession under 14:95.1.

In this matter, two separate underlying (prior) felonies were utilized as predicates by which to support Baker’s felony firearm conviction and his habitual offender adjudication. The state argued that enhancement under La. R.S. 15:529.1 was allowable. No “double enhancement” occurred because the 1996 aggravated battery conviction supported Baker’s firearm violation, while the 1999 possession of stolen things conviction was used to support the habitual offender charge.

Baker relied upon State v. Sanders, 337 So.2d 1131 (La.1976), and State v. Firmin, 354 So.2d 1355 (La.1978). In Sanders, supra, a 1955 armed robbery conviction, a 1961 armed robbery conviction, and a 1970 attempted simple burglary were used as predicates in a 1975 conviction for possession of a concealed weapon by a convicted felon. The same two armed robbery convictions and the attempted simple burglary conviction were used to support a multiple offender indictment. In affirming the quashing of the multiple offender indictment, Justice Calogero wrote:

[W]e find that the penalty provisions enacted in R.S. 14:95.1 (felon in possession) were intended by the legislature to delimit the permissible punishment for that offense because the statute itself takes into account the fact of defendant’s previous felony conviction and the legislature gave no indication that it wanted the multiple-billing procedure (habitual offender proceedings) Uto remain available as a vehicle for further enlargement of the penalty.

Sanders, 337 So.2d at 1135.

The habitual offender law, La. R.S. 15:529.1, does not expressly define restrictions on which crimes may serve as predicates for certain status crimes. Sanders, supra, held that where the legislature does not demonstrate an express intent for additional enhancement through multiple billing, the law is to be strictly construed in the light most favorable to the defendant. In the absence of express legislative intent, doubt should be resolved in favor of leniency, and the court should not multiply the penalty imposed on the defendant. See State v. Cox, 344 So.2d 1024 (La.1977), where the court declined to permit an enhanced penalty for felony simple escape from the Department of Corrections to be used to support an habitual offender bill.

In Fimiin, supra, Firmin was convicted under La. R.S. 14:95.1 (felon in possession) based upon an earlier conviction for possession of narcotics. The state filed a second offender (habitual offender) bill under La. R.S. 15:529.1 based upon the felon in possession conviction and a federal conviction of violation of the Federal Gun Control Act of 1968. In a opinion, the supreme court relied upon Sanders, supra, to rule that the state could not rely upon a conviction under La. R.S. 14:95.1 (felon in possession) to charge the defendant as a multiple offender.

In State v. Hymes, 513 So.2d 371 (La.App. 4 Cir.1987), the Fourth Circuit stated that a felon in possession violation could support an habitual offender conviction so long as the same underlying felony was not used to Lsupport both. Hymes had two armed robbery convictions plus a conviction as a felon in possession. Following a conviction for possession with intent to distribute drugs, Hymes was convicted as a fourth felony offender. The Hymes court explained that the use of a conviction for possession of a firearm by a convicted felon, La. R.S. 14:95.1, to enhance the penalty of a subsequent felony conviction is permissible and is not double enhancement as long as the underlying felony used as an element of the firearm conviction is not also used as an element of the multiple offender bill. Because one of Hymes’ armed robbery convictions had been used to support both the felon in possession and the habitual offender convictions, the court found an impermissible double enhancement and set aside the enhanced sentence. Hymes, supra.

In State v. Harrison, 32,643 (La.App.2d Cir.10/27/99), 743 So.2d 883, writ denied, 99-3352 (La.6/30/00), 765 So.2d 327, this court vacated Harrison’s enhanced sentence as a third felony offender. The adjudication was based upon Harrison’s 1987 conviction for distribution of marijuana, a 1994 conviction for possession of marijuana, second offense, and his conviction for distribution of cocaine. Citing Hymes, supra, the court noted that the distribution of marijuana, second offense, required proof of the predicate offense, distribution of marijuana, which resulted in a double enhancement.

Following convictions for possession of crack cocaine, simple escape and aggravated battery, the defendant in State v. Smith, 2005-0375 (La.App. 4 Cir. 7/20/05), 913 So.2d 836, was convicted as a quadruple | soffender. The habitual offender conviction was based upon earlier convictions for possession of a stolen vehicle over $500; possession of marijuana, second offense; and attempted possession of cocaine. The Fourth Circuit rejected Smith’s argument that his multiple offender conviction resulted from a double enhancement of his conviction for possession of marijuana, second offense. The opinion distinguished Hymes and Harrison because the underlying offense for Smith’s conviction of distribution of marijuana, second offense, was not used to support his habitual offender conviction.

In State v. Iverson, 37,369 (La.App.2d Cir.9/24/03), 855 So.2d 835, writ denied, 2003-2950 (La.5/14/04), 872 So.2d 510, this court found no double enhancement because the predicate crime was only used to support the conviction of possession of cocaine, second offense, and not the subsequent habitual offender bill. Following his conviction for possession of cocaine, second offense, Iverson was adjudicated a third felony offender. The conviction for possession of cocaine, second offense, was based upon a 1997 conviction for possession of cocaine. His multiple offender conviction was based upon a July 1993 conviction for possession of stolen things, a December 1997 conviction of distribution of cocaine, and the present conviction of possession of cocaine, second offense. Since the predicate offense was not used to support the habitual offender adjudication, no impermissible double enhancement occurred.

Citing Iverson, supra, this court in State v. White, 39,634 (La.App.2d Cir.6/16/05), 907 So.2d 180, writ denied, 2005-2097 (La.3/10/06) 925 So.2d 510, noted that the prohibition against double enhancement does not apply to the use of multiple offender proceedings as long as the same offense is not used twice to enhance the penalty imposed. After the defendant was adjudicated a fifth felony offender, the court held that La. R.S. 14:64.3 (use of firearm in armed robbery) is not a status offense because it contemplates no use of a prior felony for conviction. Because no underlying felony underpinned the 14:64.3 conviction, its use in supporting White’s multiple offender adjudication was not a double enhancement.

Using his December 16, 1996, conviction of aggravated battery, the state charged Baker with possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1, and Baker entered a guilty plea. Based upon Baker’s firearm violation and the September 13,1999, conviction for felony possession of stolen things, Baker was adjudicated an habitual offender pursuant to La. R.S. 15:529.1. No impermissible double enhancement occurred in Baker’s case. Although Baker faced a maximum sentence of 22 years, the trial court sentenced Baker to serve 15 years as a second felony offender to be served without parole, probation, or suspension of sentence. No error occurred.

DECREE

For the preceding reasons, we affirm the habitual offender adjudication and the sentence.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, GASKINS, CARAWAY, DREW, and MOORE, JJ.

Rehearing denied.