author: THIBODEAUX, Chief Judge.

text:
    STATE of Louisiana v. Tommy CLOUD.
    No. 06-877.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 13, 2006.

      . Douglas L. Hebert, Jr., District Attorney — 33rd Judicial District Court, Oberlin, LA, for Plaintiff/Appellee, — State of Louisiana.
    Mark Owen Foster, Louisiana Appellate Project, Natchitoches, LÁ, for Defendant/Appellant, — Tommy Cloud.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and BILLY HOWARD EZELL, Judges.
   THIBODEAUX, Chief Judge.

1-,The Defendant, Tommy Cloud, was charged by bill of indictment with sexual battery in violation of La.R.S. 14:43.1, oral sexual battery in violation of La.R.S. 14:43.3, molestation of a juvenile in violation of La.R.S. 14:81.2, and indecent behavior with a juvenile in violation of La. R.S. 14:81. Pursuant to a plea bargain, the Defendant pled guilty to sexual battery and oral sexual battery. The remaining two charges were dismissed. The Defendant was sentenced to two consecutive terms of nine years at hard labor, without benefit of probation, parole, or suspension of sentence.

The Defendant appealed his conviction, claiming that his guilty plea was not knowingly and intelligently made because the plea bargain contained an impossible condition. The Defendant’s conviction was subsequently reversed, his guilty plea and sentences were, vacated, and the case was remanded to the trial court for further proceedings. State v. Cloud, 04-838 (La. App. 3 Cir. 2/2/05), 893 So.2d 220.

Following remand to the trial court, a jury convicted the Defendant on all four counts. Prior to sentencing, the Defendant was arraigned on a multiple offender bill and pled not guilty. The trial court found the Defendant guilty of being a multiple offender. After waiving sentencing delays, the Defendant was sentenced to life at hard labor without benefit of parole, probation, or suspension of sentence. Later, the trial court clarified that the Defendant was sentenced on all four charges and ordered the Defendant’s life sentences to run concurrently. He appeals, primarily on the basis of double jeopardy and exces-siveness of the sentences.

\9LAW AND DISCUSSION

Double Jeopardy

The Defendant argues that his convictions for the previously dismissed charges of molestation of a juvenile and indecent behavior of a juvenile violated his constitutional right against double jeopardy and his procedural due process fights to an appeal. The Defendant contends that sentencing in a plea bargain begins jeopardy and the retrial of charges dismissed in the plea bargain are barred by double jeopardy.

As noted by this court in State v. Francois, 05-1385 (La.App. 3 Cir. 4/5/06), 926 So.2d 744,

The Fifth Amendment to the United States Constitution and Article 1, § 15 of the Louisiana Constitution of 1974 prohibit placing a person twice in jeopardy of life or limb for the same offense. La.Code Crim.P. art. 591. Double jeopardy protects an accused not only from a second prosecution for the same offense but also multiple punishments for the same criminal act. State v. Murray, 00-1258 (La.9/18/01), 799 So.2d 453.

Further, the supreme court in State v. Crandell, 05-1060 (La.3/10/06), 924 So.2d 122,129 stated:

Inherent in the guarantee against double jeopardy are three constitutional protections: 1) against a second prosecution for the same offense after acquittal; 2) against a second prosecution for the same offense after conviction; 3) against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2089, 23 L.Ed.2d 656 (1969) ...

In opposition to the Defendant’s argument, the State maintains that pursuant to La.Code Crim.P. art. 591, double jeopardy does not attach when a defendant himself moves to set aside' his conviction, citing State v. Smith, 406 So.2d 1314, 1315 (La. 1981). Article 591 states that, “No person shall be twice put in jeopardy of life or liberty for the same offense, except, when on his own motion, a new trial has been granted or judgment has been arrested, or where there has been|3a mistrial legally ordered under the provisions of Article 775 or ordered with the express consent of the defendant.” (emphasis added).

The defendant’s initial guilty pleas and sentences were vacated. Therefore, a valid sentence was not imposed in the first instance. La.Code Crim.P. art. 592. “When a defendant pleads guilty, jeopardy begins when a valid sentence is imposed.” Id. (Emphasis added). Consequently, this defendant was not placed in double jeopardy by his subsequent trial on the previously filed charges and those that had been previously dismissed, since jeopardy never attached in the first place. See State v. Boudreaux, 402 So.2d 629 (La. 1981) (finding that once a plea is vacated, the situation reverts to the pre-plea stage). However, the fact that he received harsher treatment, i.e., being charged with the previously dismissed crimes after he successfully appealed his prior guilty pleas and received a longer sentence, requires a determination as to whether he has suffered a deprivation of due process. Id. (citing North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)).

The Pearce court explained the due process issue raised, as such:

Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to- appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such retaliatory motivation on the part of the sentencing judge.

Pearce, 395 U.S. at 725, 89 S.Ct. 2089.

In Boudreaux, the supreme court held that “[tjhere is no appearance of retaliation when a defendant is placed in the same position as he was before he accepted the plea bargain.” Boudreaux, 402 So.2d at 633 (citing U.S. v. Anderson, 514 F.2d 583 (7th Cir.1975)). Therefore, “[wjhen the plea to conviction is vacated, |4the condition precedent to the Government’s agreement not to prosecute on the greater offense no longer existed.” Bou-dreaux, 402 So.2d at 631. Rather, the government is then free to prosecute the defendant without placing him twice in jeopardy, otherwise the double jeopardy clause will operate to give the defendant more than the “benefit of his bargain” and will ensure that the defendant will avoid being placed in jeopardy even once under certain circumstances. Id. (citing Anderson, 514 F.2d 583). Consequently, this approach seems to mean that, after the setting aside of the earlier plea-verdict, a later trial on those charges that were originally dismissed and which, as a result of the trial, now result in harsher punishment, does not constitute double jeopardy. Id. Instead, this is a situation of “continuing jeopardy that has application where criminal proceedings against an accused have not run their full course.” Boudreaux, 402 So.2d at 632 (quoting Price v. Georgia, 398 U.S. 323, 326, 90 S.Ct. 1757, 1759, 26 L.Ed.2d 300 (1970)).

The two charges dismissed pursuant to the plea bargain in this case were resurrected when the guilty plea was reversed and vacated by this court; thus, the parties were in the same position as they were prior to acceptance of the plea bargain. See State v. Smith, 04-338 (La.App. 3 Cir. 9/29/04), 883 So.2d 505 and State v. Boudreaux, 402 So.2d 629. Accordingly, the trial and convictions on the dismissed charges did not amount to double jeopardy.

Multiple Convictions for Same Offense

The Defendant argues that he was “overcharged,” violating his constitutional protections against multiple punishments. The Defendant maintains that the allegations are clearly limited to one transaction that occurred in a few minutes.

| Jn the State’s opposition, a Jackson analysis is provided to show that sufficient evidence was presented to find the Defendant guilty of all four charges. However, the issue presented is not whether there was sufficient evidence to convict the Defendant of the individual charges. Instead, the issue is whether the State used the same evidence to prove sexual battery and oral sexual battery that it used to prove molestation of a juvenile and indecent behavior with a juvenile resulting in double jeopardy.

In State v. Barton, 02-163, pp. 17-18, (La.App. 5 Cir. 9/30/03), 857 So.2d 1189, 1201-02, writ denied, 03-3012 (La.2/20/04), 866 So.2d 817, the court summarized the two tests used by Louisiana courts use in examining violations of double jeopardy as follows:

The “distinct fact” test, commonly referred to as the Blockburger test, is taken from Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932) as follows:
The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.
Accord, State v. Knowles, 392 So.2d 651, 654 (La.1980).
The second test is the “same evidence” test. In State v. Steele, 387 So.2d 1175, 1177 (La.1980), the Louisiana Supreme Court explained that test as follows:
If the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one. The test depends on the evidence necessary for conviction, not all the evidence introduced at trial....
|fiThe “same evidence” test is broader than Blockburger, “the central idea being that one should not be punished (or put in jeopardy) twice for the same course of conduct.” State v. Steele, 387 So.2d at 1177. Although the Louisiana Supreme Court has accepted both the Blockburger test and the same evidence test, it has principally relied on the “same evidence” test to evaluate double jeopardy claims. State v. Miller, 571 So.2d 603, 606 (La.1990).

With regard to the charges of sexual battery and oral sexual battery, the Defendant concedes that the State could have charged him with both offenses based on State v. Burnett, 33,739 (La.App. 2 Cir. 10/4/00), 768 So.2d 783, writ denied, 00-3079 (La.11/02/01), 800 So.2d 864. In Burnett, the court held that within a short span of time, a person can commit the distinct crimes of sexual battery and oral sexual battery by touching a child’s genitals and by engaging in oral sex on the child’s genitals.

The Defendant, however, challenges the charges of molestation of a juvenile and indecent behavior with a juvenile, arguing that the evidence required to prove these charges is the same used by the State to prove sexual battery and oral sexual battery. More specifically, the Defendant maintains that the evidence adduced at trial that he forced the twelve-year-old victim onto his bed, fondled her and then licked her genitalia is the same evidence the State used to prove molestation and indecent behavior. The Defendant asserts that both offenses require proof of a lewd and lascivious act on a minor child and contends that fondling or oral sex are lewd and lascivious acts. Further, the Defendant argues that the force used to prove lack of consent in proving sexual battery and oral sexual battery is the same that is required in molestation.

The Defendant further maintains that indecent behavior with a juvenile is a lesser and included offense of molestation of a juvenile, citing State v. Leblanc, 506 So.2d 1197 (La.1987). See also State v. Busby, 94-1354 (La.App. 3 Cir. 4/5/95), 653 So.2d 140, unit denied, 95-1157 (La.9/29/95), 660 So.2d 854. The Defendant also maintains that the facts of this case are distinguishable from State v. Tay lor, 95-179 (La.App. 3 Cir. 10/04/95), 663 So.2d 336, wherein this court found that a defendant could be convicted of both sexual battery and attempted indecent behavior with a juvenile. In Taylor, the defendant was found guilty of sexual battery and attempted indecent behavior with a juvenile. On appeal, this court concluded that the evidence needed for conviction of sexual battery would not have supported a conviction for attempted indecent behavior with a juvenile which requires evidence of age; thus, the defendant’s convictions for sexual battery and attempted indecent behavior with a juvenile did not subject him to double jeopardy.

Comparing the facts of Taylor to his case, the Defendant asserts that there was no evidence of acts of indecent behavior. In Taylor, the defendant removed his clothes and bathed with the child prior to the sexual battery. In this case, the Defendant avers that the State never adduced any evidence of separate acts that would constitute molestation or indecent behavior, but relied solely on the evidence of fondling and oral sex to prove the offenses of molestation and indecent behavior with a juvenile.

Sexual battery is defined in La.R.S. 14:43.1(A) as:

... the intentional engaging in any of the following acts with another person, who is not the spouse. of the offender, where the offender acts without the consent of the victim, or where the other person has not yet attained fifteen years of age and is at least three years younger than the offender:
(1) The touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender; or
|s(2) The touching of the anus or genitals of the offender by the victim using any instrumentality or any part of the body of the victim.

Oral sexual battery is defined in La.R.S. 14:43.1(A) as:

... the intentional engaging in any of the following acts with another person, who is not the spouse of the offender when the other person has not yet attained fifteen years of age and is at least three years younger than the offender:
(1) The touching of the anus or genitals of the victim by the offender using the mouth or tongue of the offender; or
(2) The touching of the anus or genitals of the offender by the victim using the mouth or tongue of the victim ...

Thus, the evidence necessary for a conviction of sexual battery and oral sexual battery includes lack of consent, that the victim was not the spouse of the Defendant, proof of the victim’s and Defendant’s ages, and that the victim’s genitals were touched by the Defendant.

Molestation of a juvenile is defined in La.R.S. 14:81.2(A) as:
... the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. Lack of knowledge of the juvenile’s age shall not be a defense ...

Thus, the evidence necessary for a conviction of molestation of a juvenile is proof of the victim’s and Defendant’s ages, a lewd or lascivious act, intent of arousal or gratification and the use of force.

| gFirst, molestation, like sexual battery and oral sexual battery, requires evidence to prove the age of the Defendant and victim and the use of force to commit the offenses. Also, at trial, the same evidence of age and force used to prove sexual battery and oral sexual battery was the same used to prove molestation. Molestation, however, does not require evidence that the Defendant touched the victim’s genitals. The State need only to have submitted evidence that the Defendant committed a lewd or lascivious act that is separate and apart from the touching of the victim’s genitals. The Defendant maintains, however, that the evidence used to prove he touched the victim’s genitals was the same evidence used to prove he performed a lewd and lascivious act.

However, additional evidence was offered at trial which may be considered under the definition of lewd and lascivious, but would not support a conviction of sexual battery or oral sexual battery. As noted in State v. Rollins, 581 So.2d 379, 382 (La.App. 4 Cir.1991), “A lewd or lascivious act is one which tends to excite lust and to deprave the morals with respect to sexual relations and which is obscene, indecent, and related to sexual impurity or incontinence carried on in a wanton manner. State v. Holstead, 354 So.2d 493 (La.1977); State v. Prejean, 216 La. 1072, 45 So.2d 627 (1950).” In this case, before touching her genitals with his hand and tongue, the Defendant rubbed his body against the minor, kissed her lips and put his tongue into her mouth.

In State v. Rideaux, 05-446 (La.App. 3 Cir. 11/2/05), 916 So.2d 488, 497, this court stated, “... a Mss is proscribed behavior under § 14:81 when it is repeated or accompanied by other acts that seem more likely to excite lust and to deprave morals, generally genital contact.” We conclude that the State did not use the same evidence to prove the offense of molestation of a juvenile and that the |inDefendant’s actions of rubbing and Mssing the victim prior to touching her genitals constituted lewd and lascivious acts:

Indecent behavior with a juvenile is defined by La.R.S. 14:81.2(A) as:

... the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person ...

Although not listed in La.Code Crim.P. art 814 as a responsive verdict to molestation of a juvenile, the jurisprudence clearly establishes that it is. Further, the same evidence used to prove molestation was used to prove indecent behavior. Accordingly, the charge and conviction for indecent behavior of a juvenile results in double jeopardy, and the conviction is reversed and the charge is dismissed..

Excessive Sentence

The Defendant argues that his sentencing in excess of his original sentences violates his procedural due process rights under the Fourteenth Amendment and his constitutional right against excessive sentences. The Defendant maintains that if the sentences are upheld, defendants with otherwise valid grounds for appeal will not exercise their right of appeal in fear of being punished with an increased sentence if they successfully appeal.

In support of his argument, the Defendant references this court to North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, wherein the United States Supreme Court concluded that there would be a violation of the Fourteenth Amendment should a trial court impose a heavier sentence on a re-convicted defendant in order to punish him for having successfully appealed his original conviction. Accordingly, a defendant cannot be given a more severe sentence unless objective reasons | n concerning conduct occurring after the time of original sentencing affirmatively appear.

In its opposition, the State maintains that the life sentence imposed was proper under La.R.S. 15:529.1 regarding the Defendant’s conviction as a fourth felony offender and denies it has committed any vindictive acts. Additionally, the State asserts that although it used all four of the Defendant’s convictions on the. habitual offender bill, any one of the convictions alone would have sufficed as the fourth felony offender conviction.

This issue of vindictiveness along with a similar set of facts was addressed in State v. Boudreaux, 402 So.2d 629. In Bou-dreaux, the defendant was originally charged with armed robbery. He entered a plea of guilty to the lesser and included offense of simple robbery and was sentenced five years at hard labor. Later, the defendant filed an application for a writ of habeas corpus, alleging that his guilty plea should be set aside because he was not informed of his right to confront witnesses against him and his right to compulsory process. The supreme court vacated the plea, and the defendant was rearraigned on the crime of armed robbery. The defendant subsequently filed a motion to quash in the trial court, claiming that rear-raignment on armed robbery subjected him to double jeopardy. The trial court denied the motion and the defendant sought writs. The supreme court concluded as follows:

In the case at bar, it appears that retrial on the greater charge will impose no Pearce due process limitation on the possible sentence imposed, provided of course that the sentence is otherwise in conformity with law. The court retains its sentencing discretion due to the fact that the state never elected on which charge it would try the defendant if the case went to trial. The greater charge was dropped in return for a plea to the lesser one. After the plea was vacated the situation reverted to the pre-plea stage. Here we have a situation where there has been a major change | ^other than just an appeal by his own hand, defendant has upset his bargain and now pleaded not guilty to both charges. There is no appearance of retaliation when a defendant is placed in the same position as he was before he accepted the plea bargain. See, United States v. Anderson, supra, at 514 F.2d at 587-588.

Id. at 682-33. ,

Likewise, after the Defendant’s guilty plea was vacated in this matter, the case reverted to it pre-plea stage, resurrecting the original charges. As stated in Boudreaux, - there is no. appearance of retaliation because the Defendant was placed in the same position as he was before he accepted the plea bargain. This factual situation was not present in the jurisprudence cited and relied upon by the Defendant.

Additionally, the Defendant did not simply receive a harsher sentence for the original charges, but was charged as a habitual offender. The Defendant submits, however, that Pearce applies to the State seeking to increase the sentence with a habitual offender adjudication. The Defendant’s assertion is not supported in the jurisprudence or by the statute. The Defendant simply concludes that La.R.S. 15:529.1 does not give the State carte blanche to use it unconstitutionally to increase his sentence after a successful appeal. Accordingly, there was no Pearce violation when the Defendant received a greater sentence following the withdrawal of his guilty plea and subsequent trial and convictions.

ERROR PATENT

In his final assignment of error, the Defendant argues that the trial court erred in sentencing him to four habitual offender enhanced sentences for convictions obtained the same day and arising from the same criminal act. Specifically, the Defendant complains that the bill of information sought habitual offender adjudication on all four convictions and that the trial court sentenced him to four 11shabitual offender sentences. The Defendant maintains that pursuant La.R.S. 15:529.1, only one count of a multiple count bill of information can be used to enhance a penalty when the convictions were entered on the same day and from the same transaction, citing State v. Soileau, 95-1214 (La.App. 3 Cir. 5/15/96), 677 So.2d 518. In Soileau, this court observed as follows:

The Fifth Circuit Court of Appeal squarely addressed this issue in the recent case of State v. Brown, 95-124 (La. App. 5 Cir. 5/30/95); 656 So.2d 1070, wherein the court stated:
Only one count of a multi-count indictment/information can be used to enhance the penalty pursuant to La.R.S. 15:529.1 when the convictions were entered on the same day. State v. McIntyre, 496 So.2d 1204, 1207 (La. App. 5th Cir.1986). Although it appears that the trial court imposed the enhanced sentence based on one count and not on all counts, that assumption cannot be stated with certainty. See State v. McIntyre, supra. Furthermore, because two of the counts arose from a single criminal episode, the defendant could not have been sentenced as a multiple offender on all counts. State ex rel. Porter v. Butler, 573 So.2d 1106, 1108 (La.1991). Convictions on more than one count entered on the same day should be treated as one conviction for purposes of the habitual offender statute. Id. Therefore, the enhanced sentence imposed must be vacated and the case remanded to the trial court for resen-tencing.
Brown, 95-124 at pp. 8-9; 656 So.2d at 1077.

Id. at 520.

As a result of this error, the defendant’s sentence was vacated and the case remanded to the trial court for resentencing.

The State concedes that it listed all four of the Defendant’s convictions in the habitual offender bill of information, but argues that the trial court did not 114sentence the Defendant to four habitual offender enhanced sentences. The transcript of the hearing on the habitual offender bill and sentencing held on March 23, 2006, reflects as follows:

The present convictions are sex crimes as defined by Louisiana Revised Statute 15:540 with the victim under the age of 18 at the commission of the offense. In accordance with Louisiana Revised Statute 15:529.1(A) 1(c) 2, the defendant, because the burglaries are punishable to twelve or more years, and because the prior indecent behavior was defined in 15:540 with the victim under the age of 18, and the current offense is also a sexual offense as defined by 15:540 with the victim under the age of 18, the defendant is sentenced to imprisoned with the Department of Corrections for the remainder of his natural life without benefit of probation or suspension of sentence.

Thus, the Defendant received only one sentence based on all four convictions. However, at the Defendant’s hearing on his motion to reconsider sentence held on May 23, 2006, the trial court stated:

The only thing that the Court will do, is I don’t think I stated — I stated that the sentence was for the four counts, but I don’t think that I — I am going to state now that you are sentenced to imprisonment at hard labor for the remainder of your natural life without benefit of parole, probation or suspension of sentence, on each of those four counts: the sexual battery, the oral sexual battery, the molestation of a juvenile, and the indecent behavior with a juvenile, and that those sentences are to run concurrently with each count. So, it is not going to be four life sentences consecutive, it is four life sentences to run concurrently.

Thus, it appears that the Defendant received four life sentences, not just one as indicated at the original sentencing. Further, at the original sentencing, the trial court did not specify which of the four counts in the habitual offender bill was being enhanced. Accordingly, the Defendant’s sentences are vacated and the case remanded to the trial court for resentenc-ing.

\ ^CONCLUSION

The Defendant’s conviction and sentence for indecent behavior with a juvenile is reversed and vacated. Also, the Defendant’s sentences on the remaining convictions are vacated and the case remanded to the trial court for resentencing, in accordance with this opinion.

CONVICTION FOR INDECENT BEHAVIOR REVERSED AND SENTENCE VACATED.

CONVICTIONS FOR MOLESTATION OF A JUVENILE, SEXUAL BATTERY, AND ORAL SEXUAL BATTERY AFFIRMED. SENTENCES VACATED AND REMANDED TO TRIAL COURT.


source: Caselaw Access Project

author: LOLLEY, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Keetron RASCO, Appellant.
    No. 41,419-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 13, 2006.

      Keetron Rasco, Pro Se.
    Louisiana Appellate Project, by Christopher A. Aberle, for Appellant.
    Jerry Jones, District Attorney, Geary Aycock, Madeleine Slaughter-Young, Assistant District Attorneys, for Appellee.
    Before STEWART, GASKINS and LOLLEY, JJ.
   LOLLEY, J.

hThe defendant, Keetron Rasco, appeals a judgment from the Fourth Judicial District Court, Ouachita Parish, State of Louisiana. Rasco pled guilty to possession of marijuana with intent to distribute and received the agreed suspended sentence of ten years at hard labor. He was placed on supervised probation for a term of five years. Rasco’s out-of-time appeal from the sentence imposed in this matter was granted by the trial court. For the following reasons, we affirm.

FACTS

Rasco was charged by bill of information with count one, possession of marijuana with intent to distribute (La. R.S. 40:966); count two, possession of cocaine (La. R.S. 40:967); and count three, possession of a firearm by a convicted felon (La. R.S. 14:95.1). As the result of a plea bargain agreement, Rasco entered a guilty plea to count one and the other two charges were dismissed. The state agreed not to file a habitual offender bill. The trial court imposed the agreed sentence of ten years at hard labor, to be served consecutively with any other sentence. The sentence was suspended, and Rasco was ordered to serve a five-year term of supervised probation.

Rasco’s appellate counsel filed a Benjamin brief and motion with this court stating that he has conscientiously and thoroughly reviewed the trial court record and found no non-frivolous issues to raise on appeal, nor any trial court ruling which arguably would support an appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Mouton, 95-0981 (La.04/28/95), 653 So.2d 1176; and State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990). In addition to summarizing the procedural history and the facts of the case, the court-appointed attorney’s brief provided a detailed, reviewable assessment of whether the appeal was worth pursuing. State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241.

In accordance with Anders, Mouton, and Benjamin, supra, appellate defense counsel also notified Rasco of his right to file a pro se brief and sought to withdraw from the case. We held the motion to withdraw in abeyance and advised Rasco of his right to file an appellate brief within 30 days of our June 8, 2006, order deferring a ruling on counsel’s motion to withdraw. Rasco responded to the notice and this appeal ensued.

LAW AND DISCUSSION

Rasco argues in his pro se appellate brief that his plea bargain agreement was breached, and his conviction in this case should be “vacated.” He contends that in the guilty plea entered on September 22, 2004, in District Court Docket No. 04-F0883, he agreed to plead guilty and “the state would agree to dismiss' all pending charges.” The basis for his complaint is the guilty plea he entered in March 2005, to possession of marijuana with intent to distribute in District Court Docket No. 04-F1734. In short, he argues that the March 2005 guilty plea, which is the subject of the instant appeal, was involuntary and/or coerced because he was led to believe that he would receive a lesser sentence and/or the charge should have been dismissed under the agreement in the September 2004 guilty plea.

| .^However, the record reflects that at the September 2004 guilty plea, the state agreed to dismiss and/or not to prosecute any other offense arising out of the February 13, 2004 offense date. We note that the March 2005 guilty plea was to offenses committed on April 30, 2004. Hence, Ras-co’s claim that his March 2005 guilty plea was covered under his previous September 2004 guilty plea is clearly unsupported by the record. This pro se assignment of error is therefore without merit.

We also note that Rasco prematurely filed for Post-Conviction Relief where he asserts the same arguments and issues raised in his appellate brief. We advise by this opinion that an application for post-conviction relief shall be considered if it is filed within two years after the judgment of conviction and sentence has become final under the provisions of La. C. Cr. P. arts. 914 or 922. See La. C. Cr. P. Art. 930.8.

We have examined all the pleadings filed in the trial court, the court proceedings, the bill of information and all transcripts contained in the record. Rasco was properly charged by bill of information. Rasco was present in court and represented by counsel at all important stages of the proceedings.-

Even if we were to review the constitutionality of Rasco’s sentence, we find that the sentence neither shocks the sense of justice, nor constitutes a purposeless and needless infliction of pain and suffering. The 10-year hard labor sentence imposed is lawful. The statutory range for possession of marijuana with intent to distribute is a term of imprisonment at hard labor for not less than 5 nor more than 30 years and a fíne of not more than | ¿$50,000. La. R.S. 40:966 B(3). There is no showing of an abuse of the trial court’s discretion in the imposition of this mid-range hard labor sentence which is not constitutionally excessive. Our independent review disclosed no non-frivolous issues and no rulings which arguably support an appeal. We also examined the record for errors patent. Finding none, we affirm the conviction and sentence. Additionally, appellate counsel’s motion to withdraw is granted.

CONCLUSION

For the foregoing reasons, the conviction and sentence are affirmed.

AFFIRMED.


author: DREW, J.

text:
    STATE of Louisiana, Appellee v. William Alexander GOURDINE, Appellant.
    Nos. 41,469-KW, 41,431-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 13, 2006.

      E. Ray Kethley, Jr., Shreveport, LA, for Appellant.
    Paul Joseph Carmouche, District Attorney, Tommy Jan Johnson, Edward M. Brossette, Assistant District Attorneys, for Appellee.
    Before BROWN, DREW and MOORE, JJ.
   DREW, J.

_JjWe have before us a criminal appeal filed by the defendant and a writ for supervisory review filed by the state. William Alexander Gourdine was convicted of vehicular homicide after voluntarily waiving his right to a jury trial. The trial court sentenced Gourdine to eight years at hard labor, suspending seven years of the sentence, and ordering that one year be served without benefit of parole, probation, or suspension of sentence.

We affirm defendant’s conviction but vacate the sentence and remand the matter for resentencing, with instructions. We direct the trial court to order and closely examine a thorough and detailed presen-tence investigation report, before resen-tencing the defendant.

FACTS

On the afternoon of April 3, 2004, 17-year-old Amanda Laurenson was driving a white Acura RSX, two-door coupe, heading south on Blom Boulevard. She stopped at a stop sign at the intersection of Blom Boulevard and Crabapple Drive in a residential area of Shreveport. As she crossed the center line of the intersection, she was broadsided by the defendant, who was speeding west on Crabapple, well over the speed limit, driving a gray Acura MDX, an SUV. His SUV violently crushed the driver’s side of her coupe. The actual point of impact was partially in the eastbound lane of Crabapple, meaning that the young lady was close to clearing the intersection. The devastating impact killed Laurenson instantly.

Anthony Paul Nabors testified that:

1 ¡>* he was driving east on Crabapple towards the intersection at Blom when he witnessed the accident;
• he saw the white car stop at the intersection before proceeding across Cra-bapple at a normal rate of speed;
• the intersection was clear when the white car accelerated across Crabap-ple, but the gray SUV quickly came around the corner and appeared to have suddenly come “out of nowhere;”
• he did not see the gray SUV until it struck the white car in the eastbound lane, spinning it two to three times and sending it into the air;
• the gray SUV continued forward, veering into a front yard until it hit a tree;
• the speed limit for the area was 35 mph;
• it was a winding road;
• it was a school zone;
• it was in a busy residential neighborhood;
• the distance from the curve to the intersection was approximately 75 yards; and
• the only obstruction was a tall pile of debris, approximately eight feet high at the northeast corner of the intersection.

Richard Smith testified that:

• he was visiting family that lived near the intersection of Blom and Crabap-ple;
• he saw from the backyard the gray SUV traveling at a high rate of speed and estimated it was traveling approximately 75-80 mph;
• he turned to say something to his brother-in-law about how fast the vehicle was traveling in this residential neighborhood when he heard the crash; and
• it sounded as though the gray SUV actually accelerated before the crash.

1 aLeland McNabb and Bryon Mangum, registered paramedics with the Shreveport Fire Department, testified that Laurenson had no pulse, was not breathing, and had a large amount of blood coming from her mouth and ears when they assessed her. She was found wearing her seatbelt when McNabb and a bystander removed her from her vehicle, through the passenger door, as the driver’s door was inoperable.

McNabb and Mangum testified that Laurenson appeared to have died instantly. The Shreveport Fire Department transported Laurenson to LSU Medical Center, but efforts to resuscitate her were unsuccessful. The state and defense stipulated that Vicki Grant of the Caddo Parish Coroner’s Office would have testified that an autopsy performed on Laurenson showed that she died from massive trauma, especially head injuries, and that she tested negative for alcohol or drugs.

Defendant was also taken to LSU Medical Center for treatment. Because the accident caused a fatality, because the defendant smelled of alcohol, and because the defendant appeared to be under the influence of alcohol, Shreveport police officers directed a registered nurse to draw blood from defendant. The sample was taken to the North Louisiana Crime Lab, and it showed Gourdine’s blood alcohol concentration (BAC) to be 0.13 percent, well over the legal limit of 0.08 percent. Defendant told Shreveport Police Officer Troy Flores that he was traveling west on Crabapple when a white car pulled out in front of him and that he was unable to stop.

Denise Laurenson, the victim’s mother, testified that she was talking to her daughter on her cell phone at the time of the accident. Ms. Laurenson | ¿testified that her daughter was telling her that she was on her way to her boyfriend’s house when she suddenly stopped talking and she heard a noise on the phone. Ms. Lauren-son testified that she tried to call her back several times and thought there was something wrong with the phone. Shortly thereafter, Ms: Laurenson drove her car past the scene of the accident and recognized her daughter’s car. Ms. Laurenson then drove to LSU Medical Center, where she learned of her daughter’s death.

Shreveport police officers took measurements of the accident site and impounded both vehicles. Officer Flores testified that the debris pile at the intersection was approximately four feet high. Corporal William Vincent with the Shreveport Police Crash Investigation Unit testified that the collision occurred just left of the double yellow line in the lane opposing the defendant’s lane of traffic, and that the victim’s car had almost cleared the defendant’s lane of traffic when the collision occurred. Corporal Vincent testified that it was normal for a driver to veer to the left if a threat was coming from the right. Corporal Vincent testified that the impact caused the victim’s car to rotate approximately three times, over a curb and two road signs, while defendant’s car continued onward until it knocked over a mailbox and hit a tree.

. Based upon the distance from the point of impact to the place where both cars came to a rest, Corporal Vincent estimated that defendant’s pre-impact speed was 65-70 mph, and that his post-impact speed was 46-50 mph. Corporal Vincent estimated that the victim’s pre-impact speed was 15-20 mph and that her post-impact speed was 40-45 mph. Corporal | ¡Vincent testified that interviews with witnesses confirmed his speed calculations. Corporal Vincent also testified that speed was a factor in the accident and that it was his opinion that Gourdine would have been able to stop before the accident if he had been driving the speed limit of 35 mph. Corporal Vincent also testified that speed was a factor in the accident because of the horrific damage to the victim’s car.

Kevin Batts, an expert in accident reconstruction, testified that he estimated Gourdine’s pre-impact speed to be 70-75 mph and - that he estimated the victim’s pre-impact speed to be 15-20 mph. Batts testified that there was some evidence that defendant applied his brakes and veered to the left shortly before impact. Batts testified that if a driver is traveling at 35 mph, it will take approximately 135 feet to come to a complete stop. Batts also testified that the faster a vehicle is traveling, the more distance is needed to stop. Batts testified that the distance from the middle of the curve before the intersection, up to the point of impact was approximately 680 feet.

• Jimmy Barnhill, the director of the North Louisiana Crime Lab and a forensic toxicologist, testified as an expert on the effects of alcohol on the human body. Barnhill testified that studies have shown that a person with a blood alcohol concentration of 0.08 percent is sufficiently impaired so that they cannot safely operate a motor vehicle. Barnhill testified that blood alcohol concentration decreases from the time at which a person stops consuming alcohol, but that blood alcohol concentration at the time of the accident can be estimated. Because Gourdine’s blood alcohol concentration |fiwas 0.13 percent at the time he was tested, an hour and a half after the accident, Barnhill estimated that Gourdine’s blood alcohol concentration at the time of the accident was between 0.15 to 0.168 percent, approximately twice the legal limit of 0.08 percent.

Barnhill testified that:

• once a person’s blood alcohol concentration level is 0.05 percent and higher, that individual begins to experience vision problems such as double vision, loss of peripheral vision, the -dazzling effect of lights at night, and sudden blindness from bright lights due to dilated pupils;
• people also experience a decrease in reaction time, reduced inhibitions, impaired judgment and decision-making, and impaired perception of distances;
• a person with a blood alcohol concentration between 0.13 and 0.16, driving between 45 and 70 mph in a residential neighborhood presents a very dangerous situation;
• a person driving with this blood alcohol concentration would be dangerous even when driving at the speed limit because of the physical and mental impairments caused by alcohol, but the danger would be increased by speeding; and
• he believed that Gourdine’s blood alco-hoi concentration was a factor in this accident.

Gourdine presented the testimony of Richard Fox, an expert in accident reconstruction, who testified that:

• Gourdine was traveling at approximately 48 mph at the time of impact, and between 43-53 mph before taking evasive action;
• using crush analysis, the victim’s car would have been split into two pieces if he had been traveling 70 mph at the .point of impact;
• based upon his speed calculations for Gourdine, the normal reaction time to respond to an obstacle is 1.6 to 1.9 seconds, but that Gourdine took evasive action within 1.1 seconds;
• he believed the accident was caused by the debris pile that may have blocked the victim’s view of Crabapple, by the victim talking on her |7cell phone at the time of the accident, and by the victim pulling out in front of Gourdine; and
• he did not think Gourdine’s blood alcohol concentration caused the accident; however, he declined to state that Gourdine’s blood alcohol concentration had nothing to do with the accident.

At the close of the bench trial, the trial court found Gourdine guilty of vehicular manslaughter.

DISCUSSION

Causation

The defendant’s argument is that:

• the state failed to present sufficient evidence to prove that his blood alcohol concentration was a proximate or direct cause of Amanda Laurenson’s death;
• the state failed to prove that his alcohol consumption and speeding caused the victim’s death because she was talking on her cell phone and distracted when she pulled out in front of his vehicle;
• the victim was the sole cause of the accident;
• Gourdine’s blood alcohol concentration did not cause him to speed;
• the state did not prove that driving slower would have avoided the accident or increased the victim’s chance of survival;
• the state’s experts did not use crush analysis in estimating his speed;
• there was no evidence of alcohol consumption playing any role in the accident; and
• the “but for” standard of causation was not the appropriate standard.
The state argues that:
• sufficient evidence of causation was presented;
• evidence was presented that the defendant was not within sight when the victim attempted to cross Crabapple;
Is* defendant’s high rate of speed while traveling around the curve before the intersection caused the collision to occur before the victim could clear the intersection;
• defendant’s speeding in a residential neighborhood was due to his blood alcohol concentration impairing his judgment.

The law on sufficiency is well settled.

To be found guilty of vehicular homicide, the state must prove that the defendant operated a motor vehicle while his blood alcohol concentration was 0.08 percent or more and that there was a causal connection between the impaired driving and the death of the victim. State v. Bradford, 29,654 (La.App.2d Cir.09/24/97), 700 So.2d 1046, 1048 (citing La. R.S. 14:32.1; State v. Taylor, 463 So.2d 1274 (La.1985)). “The evident purpose of the vehicular homicide statute is to curb traffic fatalities caused by the consumption of alcohol. It is not aimed at persons involved lflin vehicular fatalities whose alcohol consumption does not cause but merely coincides with such an accident.” State v. Copes, 566 So.2d 652 (La. App. 2d Cir.1990).

On this cold record, we do not assess any blame for this accident on the victim. This accident was caused 100% by the impaired operator, his excessive speed, and his blunted instincts (occasioned by his excessive alcohol usage).

The trial court indicated that this accident was a comparative situation. We disagree, but even accepting this finding, arguendo, the trial court was correct in finding Gourdine guilty as charged.

This court stated in State v. Baker, 31,-162 (La.App.2d Cir.10/28/98), 720 So.2d 767, 772-773, unit denied, 1999-0007 (La.04/23/99), 742 So.2d 880, that the defendant’s intoxicated driving need not be the only cause contributing to the death of the victim:

In State v. Matthews, 450 So.2d 644 (La.1984), the Louisiana Supreme Court held that it is not essential that the state prove that the defendant’s action was the sole cause of death; it is sufficient if the defendant’s conduct hastened the termination of life, or contributed, medi-ately or immediately, to the death, in a degree sufficient to be a clearly contributing cause. Subsequent cases by the Louisiana Supreme Court have used the “substantial factor” standard, and subsequent cases by this court have used both standards. These standards are used interchangeably, and therefore, the basic determination is whether the defendant’s act was a proximate cause of the victim’s death.
In State v. Kalathakis, 563 So.2d 228 (La.1990), and State v. Martin, 539 So.2d 1235 (La.1989), the Supreme Court used the “substantial factor” standard and cited State v. Matthews, supra. In State v. Martin, supra, the court stated that proof that the defendant’s conduct was a proximate cause of death is sufficient to satisfy causality requirements.
I min State v. Beason, 26,725 (La. App.2d Cir.4/7/95), 653 So.2d 1274, this court stated that the defendant’s conduct need not be the sole proximate cause of the victim’s death; it is sufficient for the defendant’s acts to be a contributing cause or a substantial factor. In State v. Mosely, 475 So.2d 76 (La.App. 2d Cir.1985), this court mentioned both standards from State v. Matthews, supra, in finding that the beating inflicted upon an eighteen-month-old child was the cause of death of the child rather than the alleged inadequate medical care. The court noted that a conviction will be upheld in some instances even if the medical assistance later rendered to the victim is inadequate. State v. Mosely, supra.
Although the trial court’s charge to the jury failed to mention the “substantial factor” language along with the “contributing cause” language, this omission does not prejudice the defendant. The standards are used interchangeably. The question for the judge or jury was whether the defendant’s act was a proximate cause of the victim’s death. Therefore, both of the above standards provide an adequate definition of proximate cause.

Further, this court has previously stated in State v. Copes, supra, that when the defendant’s intoxicated operation of a motor vehicle is a cause of the victim’s death, the fact that “the victim’s own negligence was also a contributing cause of the accident and resulting death is not a defense.”

In the present case, the evidence, viewed in a light most favorable to the state, was sufficient to convict Gourdine of vehicular homicide. The evidence of his guilt is overwhelming. In making its findings of fact, the trial court found that the state proved beyond a reasonable doubt that defendant was driving a motor vehicle on a roadway in Caddo Parish, Louisiana, and that defendant’s blood alcohol concentration exceeded the legal limit of 0.08 percent. In regard to causation, the trial court stated the following:

JjjThe only question, then, for the defendant to be found guilty the State must prove beyond a reasonable doubt that there was causation. Now, the Court has reviewed the totality of the testimony as well as the exhibits which have been received into evidence. This Court believes that the victim while using her cell telephone was distracted and failed to yield the right-of-way; and in doing so, she drove into an intersection where the favored oncoming traffic should have been respected. Whether or not the victim’s view of the westbound traffic was obstructed by any debris that was on the side of the road, I recognize it’s possible, but from the evidence it’s not clear enough for this Court to consider that as a factor.
However, this Court believes that the State has proved beyond a reasonable doubt that the defendant exceeded the posted speed limits and I will say substantially. And substantially in this Court’s opinion is anything above 10 miles per hour, and that the collision by the excessive speed caused the killing of the victim. Now, whether the Court is applying the principles correctly or not, this Court takes a literal reading of the statute, that the State must prove that the defendant’s unlawful blood alcohol concentration' combined with his operation of the vehicle caused the death.
This Court concludes that the defendant’s unlawful blood alcohol concentration along with his operating of the motor vehicle with such excessive speed caused the death of the victim. -The Court has no problem in finding that the defendant’s speeding was the result of his impairment based upon his alcohol blood concentration. Speed did not cause the accident, it was the defendant’s actions of operating the motor vehicle in an excessively fast manner which caused the death, because had he not been using alcohol and driving so fast, notwithstanding there being an accident, this Court does not believe that the victim would have died.
Based upon the totality of the evidence the Court finds that the State has proven all three elements beyond a reasonable doubt, and the Court will find the defendant guilty as charged.

According to this court’s previous holding in State' v. Copes, supra, defendant’s intoxicated state while operating a motor vehicle may still be a proximate cause of the victim’s death even though the trial court found that |1Pthe victim was distracted by her cell phone and that the victim drove into the intersection where she did not have the right of way. Given the testimony regarding the massive injuries that caused Laurenson’s instantaneous death, the state presented evidence from which a reasonable factfinder could determine that defendant’s substantial speeding, impairment, and delayed reaction time were the proximate cause of victim’s death in this side-impact collision. The state presented evidence from which a reasonable factfinder could determine that defendant’s judgment was impaired by his high blood alcohol concentration and that this caused him to drive at a high rate of speed along a winding road in a busy, residential neighborhood.

Further, the state presented evidence from which a reasonable factfinder could have determined that the intersection was clear at .the time the victim initially accelerated from the stop sign. Through the testimony of the state’s accident reconstruction expert regarding the distance between the curve before the intersection and the distance needed to stop when traveling at the posted speed limit of 35 mph, the state presented evidence from which a reasonable factfinder could have determined that Laurenson would have been able to clear the intersection or that defendant could have stopped and avoided the accident, had he not been speeding. Accordingly, the state presented sufficient evidence from which a reasonable factfin-der could determine that Gourdine’s intoxicated operation of a motor vehicle caused the death of Amanda Laurenson. This assignment is therefore without merit.

113iSentencing

The trial court sentenced the defendant to serve eight years at hard labor, with seven years suspended, subject to three years’ active supervised probation. The one year of actual prison time was to be served without benefit of probation, parole, or suspension of sentence.

The state applied for a writ of supervisory review, wherein it argued that the trial court abused its vast discretion by failing to consider defendant’s prior criminal history, by misapplying the sentencing guidelines of La. C. Cr. P. art. 894.1, and by refusing to order a presentence investigation. We find merit in the state’s unusual request, and we vacate this facially lenient, though legal, sentence. We remand, with instructions, for resentencing, based on these findings:

1. Presentence Investigation and Complete Criminal History

Both the state and the defendant requested that the court order a presen-tence investigation. The trial court declined to do so. We recognize that there is no right to have a presentence investigation report, absent an abuse of the trial court’s discretion. State v. Bell, 377 So.2d 275 (La.1979). This is, however, just such a case.

The defendant’s prior criminal history of substance abuse — related crimes would appear to be extremely relevant in crafting a just sentence in this tragic matter.

Nonetheless, the learned trial court refused to consider a prior arrest for driving while intoxicated in Hahnville, Louisiana, which did not lead to a conviction. In selecting a proper sentence for a criminal defendant, a trial hjudge is not limited to considering only prior convictions and may review all evidence of prior criminal activity. State v. Cooks, 36,613 (La.App.2d Cir.12/04/02), 833 So.2d 1034.

In addition, and despite a certified copy of defendant’s driving record from the North Carolina Department of Transportation, reflecting a prior conviction for driving while intoxicated, the trial court refused to consider this conviction because the original North Carolina records had been administratively destroyed.

Despite the DWI arrest in Hahn-ville and the DWI conviction in North Carolina, the trial court concluded that the defendant had no prior criminal activity. This factual conclusion appears to be grievously incorrect and an abuse of discretion.

When evaluating a defendant’s criminal history, trial courts may consider evidence at sentencing that would otherwise be inadmissible at trial. State v. Myles, 94-0217 (La.06/03/94), 638 So.2d 218; State v. Jackson, 612 So.2d 993 (La. App. 2d Cir.1993). For example, the trial court may consider records of prior arrests, hearsay evidence of suspected criminal activity, conviction records, and evidence of uncharged offenses or offenses that were nolle prossed. State v. Emerson, 31,408 (La.App.2d Cir.12/09/98), 722 So.2d 373; State v. Myles, supra.

Pursuant to a motion for reconsideration, the trial court corrected its omission of the required fines and court costs that defendant was to pay as part of his sentence; however, it refused to otherwise modify the sentence.

|1BAs a general rule, the trial court has wide discretion to sentence within the statutory limits. State v. Randle, 31,070 (La.App.2d Cir.09/23/98), 719 So.2d 169; State v. Matthews, 26,550 (La.App.2d Cir.12/21/94), 649 So.2d 1022, writ denied, 95-0435 (La.06/16/95), 655 So.2d 341. Sentences are reviewed for “manifest abuse of discretion” because it is presumed that the trial court is in the best position “to observe the defendant, evaluate the circumstances of the crime and judge its impact on the community.” State v. Jackson, supra. The Louisiana Sentencing Guidelines, as codified in La. C. Cr. P. art. 894.1, are advisory, and the trial court has the discretion to reject them and impose any sentence within the statutory range of the crime for which the defendant was convicted that is not constitutionally excessive. State v. Matthews, supra.

The sentencing transcript reflects a paucity of information about the defendant’s past. A presentence investigation will clear up the defendant’s criminal history and provide the trial court a clearer factual basis by which to render a just and appropriate sentence.

2. Misapplication of La. C. Cr. P. Article 894..1(B)(5)

The state also argued that the trial court misapplied Article 894.1(B)(5) by not finding that Gourdine’s drunk driving at a high rate of 11fispeed in a residential neighborhood created a risk to more than one person. We agree.

Though we recognize that sentencing is the province of the trial court, we find that this extremely lenient sentence, though legal, was imposed without the court considering all the facts available to it. We further discern from the sentencing and resentencing record that the trial court incorrectly concluded that it could not consider certain material relative to the defendant’s prior criminal history.

When reviewing the sentence imposed by the trial court, the appellate court does not determine whether another sentence would have been more appropriate or substitute its judgment for that of the trial court; rather, the appellate court reviews whether the trial court abused its broad discretion. State v. Murdock, 416 So.2d 103 (La.1982); State v. Blackmon, 1999-391 (La.App. 3d Cir.11/03/99), 748 So.2d 50, writ denied, 1999-3328 (La.04/28/00), 760 So.2d 1174. Based upon what is in this record, and upon what is not in this record, we conclude that the trial court abused its discretion:

• by not ordering and considering a pre-sentence investigation,
• by not considering the defendant’s pri- or arrests and convictions, and
• by holding offerings at sentencing to the same high evidentiary standards required at trial.

Accordingly, we affirm the conviction, vacate the trial court’s sentence, and remand this matter for resentencing, with the trial court being directed to order and thoroughly consider a presentence investigation before |17sentencing. The trial court is further directed to provide a full record of its reasons and justifications for the sentence finally imposed.

DECREE

CONVICTION AFFIRMED, SENTENCING VACATED, AND REMANDED WITH INSTRUCTIONS.

      . Particularly regarding prior criminal history relative to violations involving substance abuse,

      . The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, reviewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La. 1992); State v. Bosley, 29,253 (La.App. 2d Cir.04/02/97), 691 So.2d 347, writ denied, 97-1203 (La. 10/17/97), 701 So.2d 1333. The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, supra. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/04/96), 680 So.2d 1165.
      The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of witnesses, the matter is one of the weight, not the sufficiency, of the evidence. State v. Allen, 36,180 (La.App. 2d Cir.09/18/02, 828 So.2d 622), writ denied, 02-2595 (La.03/28/03), 840 So.2d 566, 02-2997 (La.06/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.08/30/02, 827 So.2d 508), writ denied, 2002-3090 (La. 11/14/03), 858 So.2d 422.

      . Had. the accident happened 135 days later, the defendant would have faced a mandatory minimum sentence of five years at hard labor, without benefits. In Act No. 750 of the 2004 Louisiana Legislative Session, the Louisiana Legislature amended La. R.S. 14:32.1(B) to include the following mandatory minimum sentencing requirements:
      If the operator's blood alcohol concentration is 0.15 percent or more by weight based upon grams of alcohol per one hundred cubic centimeters of blood, then at least five years of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence. If the offender was previously convicted of a violation of R.S. 14:98, then at least five years of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence.


text:
    Ivan HAWTHORNE and Healthworks International, LLC, Plaintiff-Appellant v. Michael R. COUCH, Defendant-Appellee.
    No. 41,603-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 20, 2006.

      See also 911 So.2d 907.

      James A. Rountree, for Appellants, Ivan Hawthorne and Healthworks International, LLC.
    Cook, Yancey King & Galloway, by Herschel Erskine Richard, Jr., Shreveport, John Tucker Kalmbach, Jason B. Nichols, for Appellees, Michael R. Couch and The Apostolic Tabernacle, Inc.
    Before STEWART, DREW and LOLLEY, JJ.
   DREW, J.

| t Ivan Hawthorne and Healthworks International, LLC, of which Hawthorne is a member, appeal a judgment dismissing their suit against defendants, Michael Couch and Apostolic Tabernacle, Inc., the church where Couch is pastor. The trial court granted defendants’ exceptions of res judicata and lack of subject matter jurisdiction, and awarded attorney fees and expenses of $22,852.19 to defendants after dissolving plaintiffs’ writ of sequestration. We affirm.

FACTS

Much of the relevant background in this case can be gleaned from an opinion in a previous appeal involving a lawsuit (“Hawthorne I”) brought by Hawthorne against these same defendants:

This case is solely one regarding tithes paid by Hawthorne to the Apostolic Tabernacle, Inc. In July 2004, Ivan Hawthorne filed suit against Michael R. Couch and the Apostolic Tabernacle, Inc. (the “Apostolic Tabernacle”). In his petition, Hawthorne sought repayment to him of tithes he paid the church, in addition to damages, reasonable attorney fees, and costs of the proceedings. The petition alleged that Couch, the pastor of the Apostolic Tabernacle, obtained Hawthorne’s tithe by exerting a powerful influence over members of his church, demanding total submission to his authority, and gaining complete control of the members’ minds and money. Hawthorne further alleged that Couch involved himself in the day-to-day business of Healthworks International, LLC, “the business plaintiff shared with Sam Noble” (“Healthworks”). According to Hawthorne, Couch exerted “complete control over the minds of plaintiff and Noble and other executives in Health-works International.” In particular, Hawthorne alleged that Couch told him and Noble that they had to increase their tithes, and that Couch convinced them to pay tithes on the gross income of Healthworks; Couch allegedly threatened Hawthorne with “judgment and hell” if he did not pay up.
|2Hawthorne stated in his petition that Couch knew his teaching was not biblical, but that Couch was “overwhelmed with greed and power” and at some point had the idea that he would take over Healthworks. Hawthorne alleged that the effort to comply with Couch’s false teaching was bankrupting the company, and when Couch felt he had the owners and the company “on their knees,” he offered to purchase the business for a nominal sum. Hawthorne indicated that he always intended to tithe on his income, as opposed to the gross receipts of Health-works, that Hawthorne gave money to the appellees under duress, and that Hawthorne felt he did not have free will. Hawthorne also asserted that Couch’s “misrepresentation of the Bible” was fraud, that Couch knew his teaching was false, and that Couch knew Hawthorne was relying upon that teaching in making excessive contributions to the appel-lees’ enrichment. Finally, Hawthorne asserted that when Couch had “sucked [Hawthorne] dry,” he turned on Hawthorne and attempted to drive a wedge between Hawthorne and his wife who remained a member of the Apostolic Tabernacle.
The exceptions came on for hearing at the trial court. After hearing witness testimony and considering argument of counsel, the trial court took the matter under advisement. Ultimately the exceptions filed by Couch and the Apostolic Tabernacle were granted. ■ As to the exception of no right of action, the trial court noted that Hawthorne had conceded he must amend his petition to include Healthworks as a party-plaintiff. The exception of lack of subject matter jurisdiction was also granted, with the trial court noting that under both federal and state jurisprudence, civil courts are prohibited from resolving church disputes requiring the interpretation of church laws and practices, as well as being prohibited from interfering with ecclesiastical and administrative church matters....

Hawthorne v. Couch, 40,162 (La.App.2d Cir.9/21/05), 911 So.2d 907, 908-9 (footnote omitted). This court affirmed the judgment granting the defendants’ exception of no right of action and lack of subject matter jurisdiction.

| sWhile that appeal was pending, Hawthorne and Healthworks filed suit- (“Hawthorne II”) against Couch on July 1, 2005. It was alleged in Hawthorne II that Couch was in possession of a bulldozer, a welding machine, and a trailer that belonged to one or both plaintiffs. Plaintiffs complained that when they attempted to recover these items from Couch, he asserted that the equipment had been donated .by Health-works to him. Plaintiffs also alleged that they had a lessor’s lien on an airplane that had been stored in their hangar until shortly before the petition was filed. The remedies sought by plaintiffs were an award of rent for Couch’s possession of the bulldozer, welding machine, and trailer, and use of the hangar, and the issuance of a writ of sequestration against the three pieces of equipment and the airplane. The trial court subsequently ordered the seizure of the airplane, bulldozer, trailer, and welding machine.

Couch filed a motion to dissolve the writ of sequestration on July 12, 2005., Among the grounds that Couch cited in support of his motion was that the writ should be dissolved as to the bulldozer, trailer, and welding machine because he did not assert any interest in any of that property. He also contended that the writ should be dissolved as to the airplane because plaintiffs had not asserted the existence of a lease to support their claim of a lessor’s privilege.

On July 25, 2005, in response to plaintiffs’ main demand in the petition, Couch filed the exceptions of res judicata, lack of subject matter ^jurisdiction, prescription, no cause of action, and lack of procedural capacity. On July 27, 2005, the trial court granted leave to Hawthorne and Health-works to amend their petition to add Apostolic Tabernacle, Inc., as a defendant.

Following a hearing in which the trial court heard testimony and accepted various documents into evidence, the trial court granted the exceptions of res judica-ta and lack of subject matter jurisdiction, dissolved the writ of sequestration, and dismissed Hawthorne and Healthworks’ claim with prejudice. Regarding the dissolution of the writ of sequestration, the trial court awarded attorney fees of $22,582.19 to defendants. Hawthorne and Healthworks appealed, complaining that the trial court erred in sustaining the exceptions of lack of subject matter jurisdiction and res judicata, and in awarding attorney fees related to the dissolution of the writ of sequestration.

DISCUSSION

Lack of Subject Matter Jurisdiction

In Glass v. First United Pentecostal Church of DeRidder, 95-1442 (La.App. 3d Cir.6/12/96), 676 So.2d 724, 728-9, the court discussed the prohibition against courts refereeing disputes that are grounded upon matters of ecclesiastical doctrine. Attached as an appendix to that opinion were the trial court’s reasons for judgment, which set forth the relevant law on that issue:

The First Amendment of the United States Constitution and Article 1, Section 8 of the Louisiana Constitution both guarantee religious freedom and have been interpreted to forbid courts from interfering in the ecclesiastical matters of religious Rgroups. The Serbian Eastern Orthodox Diocese for the U.S. and Canada v. Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976); Wilkerson v. Battiste, 393 So.2d 195 (La.App. 1 Cir.1980). This prohibition extends to matters of religious discipline, faith, or custom,. as well as to the appointment and removal of ministers. Milivojevich, supra; Joiner v. Weeks, 383 So.2d 101 (La.App. 3 Cir.1980). However, there are limits to this prohibition, and in those cases where religious doctrine is not involved, or may be deferred to, civil courts retain the power to resolve disputes. LeBlanc v. Davis, 432 So.2d 239 (La.1983); Bourgeois v. Landrum, 396 So.2d 1275 (La.1981); Thomas v. Craig, 424 So.2d 1090 (La.App. 1 Cir.1982); Rose Hill Baptist Church v. Jones, 425 So.2d 348 (La.App. 3 Cir.1982); Wilkerson v. Battiste, supra.

Although Hawthorne II is concerned with the donation of equipment instead of money as in Hawthorne I, this suit once again involves the parties in a controversy that is ecclesiastical in nature. At the hearing on the exceptions and the motion to dissolve the writ, the trial court listened to testimony from Couch, Hawthorne, Sam Noble (the other member of Healthworks), and Mark Batterton (the manager of Healthworks). The trial court found that there was no doubt that the equipment and hangar space had been donated to satisfy a tithing obligation, and that backtithing was at the core of the parties’ positions as to the property at issue.

The transfer of ownership of the equipment is evidenced by three acts of donation that were executed on May 22, 2003, and were signed on behalf of Healthworks by Batterton as CFO. These acts of donation list Healthworks as the donor and Apostolic Tabernacle, Inc., as the donee. Couch then wrote three letters on May 27, 2003, to Healthworks to serve as receipts of the donations for tax purposes.

| fiHawthorne testified that he was not aware of these donations until May or June of 2005. Hawthorne stated that Bat-terton lacked authority to donate Health-works’ property, and that he never authorized Batterton to execute the donations. Noble stated that he did not become aware of the acts of donation until a few weeks prior to the hearing on the exceptions. Batterton testified that Noble had said that the equipment was going to be donated to the church to take care of some of the backtithe. Batterton could not recall actually signing the-acts of donation.

Couch had discussions with Noble, Hawthorne, and Batterton about tithing, and specifically about not decreasing Health-works’ income subject to tithing by deducting certain expenses. Couch recalled that Noble felt that some backtithing was owed to compensate for tithing that had been overlooked. Couch also recalled Noble saying that donated equipment could be used against any backtithe that was owed by Healthworks.

Noble believed that the discussions regarding backtithing took place in 2000. One occurred during a budget meeting for Healthworks, when Couch was present to give advice. After discussing the matter with Couch, Noble felt that they should pay backtithes so the company would be blessed. Noble admitted that Hawthorne was not supportive of having to pay back-tithes, but recalled that Hawthorne agreed to go along with it.

Hawthorne thought the discussion with Couch about backtithing took place at a budget meeting in 2003. At the time, Healthworks was in financial trouble. Hawthorne remembered Couch telling them that if they paid the tithes correctly, then Healthworks would be blessed. Couch 17thought Healthworks was not paying the proper amount of tithe because certain operating expenses were being deducted from income before the tithe was calculated. Hawthorne testified that his response was to tell Couch that what Couch was saying was “false doctrine.” Hawthorne further testified that although he initially said that he would go along with the idea of backtithing, telling Batter-ton and Noble that he would submit to Couch, he soon disagreed that it was a valid debt. Hawthorne said he disputed Couch’s concept of how the tithe for Healthworks was to be calculated, but he submitted to it.

Noble explained that because Health-works was facing financial difficulties, he and Hawthorne began selling Health-works’ assets. Noble came up with the idea that instead of selling some of the equipment, they would donate it to the church and the value would be deducted from what they owed in tithes. Noble recalled that when he told Hawthorne about this idea, Hawthorne did not object and said that if it was a debt, they would pay their debts.

Hawthorne testified that he agreed to the baektithes, although he thought it was wrong and a false teaching. Hawthorne added that he “agreed” to it, but never “executed” it. Later in his testimony, Hawthorne stated that he did not tell Bat-terton and Couch that he “agreed” to the backtithe, but only that he would “submit” to it. Hawthorne also denied telling Noble that the backtithe was a debt and they were going to pay it, because he did not view it as a debt.

IsCouch said that both Hawthorne and Noble told him to keep the church’s airplane in their hangar, but there was never any discussion about payment of rent. He said that when asked, he agreed that $250.00 per month would be a fair amount for them to deduct from their tithe obligation in return for the church’s use of the hangar. Noble recalled speaking with Couch about the church’s plane staying in the hangar in return for a rent that would be offset against the amount owed as back-tithe, and that Hawthorne agreed to this.

Appellants’ attorney, James Rountree, asked the witnesses numerous questions about how donations were treated within the church. He questioned Couch about whether donations would go to Couch or the church if the donations were for purposes of tithing. When Couch answered that the donations would go to the church, Rountree asked Couch about whether tithes go to the “Levite” in his religion. Rountree also examined Couch about the difference between an offering and a tithe. Rountree asked Noble about the differences between a donation and an offering, and whether the tithe goes to the Levite and the offering goes to the church. Rountree asked Batterton about whether tithes go to the pastor and offerings go to the church.

Rountree examined Hawthorne about why he disagreed with Couch regarding baektithes. Hawthorne explained that he thought that Couch was giving false teachings on the issue. Rountree also asked Hawthorne about the difference between offerings and tithes.

| ¡¡In addition to the testimony, another indication that this is a religious dispute is a June 16, 2004, letter from Rountree to Couch, in which Rountree wrote, “Mr. Hawthorne and I both prefer to deal with this religious problem in a religious forum, but that requires your agreement.” In a specific reference to the equipment at issue, Rountree also wrote in this letter:

You may recall that Messrs. Hawthorne and Noble discussed transferring certain property to you consisting of a dirt buggy, aircraft hangar, welding machine and trailer, gooseneck trailer, and bulldozer, and perhaps other things. Mr. Hawthorne advises that he discussed the' transfer of these items in connection with your assertion that he owed “back tithes” for failing to contribute 10% of Healthworks’ expenses.
' As you will certainly understand under the circumstances, Mr. Hawthorne no longer desires to transfer this property to you unless he receives fair market value for it. Please advise within ten days whether you wish to purchase these items or return them.

That letter was followed by a May 25, 2005, letter from Hawthorne to Couch. Most notably, Hawthorne wrote, “Since you were made aware in writing on June 16, 2004 that it was not my desire to transfer ownership of certain equipment listed below in connection with ‘Back Tithe’ owed to you that I strongly dispute is accurate or true.” The equipment listed in the letter included the bulldozer, welding machine, and trailer. Clearly, Hawthorne believed that the validity of the donations and the accuracy of Couch’s concept of back tithes were intertwined.

What is apparent is that Hawthorne I and II are both centered on Hawthorne’s acquiescence in, and then reluctance about, Couch’s theory of how Healthworks’ income should be calculated so as to maximize the tithe |10to his church. Hawthorne obviously believed that Couch’s theory was false doctrine without support in the religion. This is an ecclesiastical dispute in which this court is prohibited from interfering. The exception of lack of subject matter jurisdiction was properly granted.

Res Judicata

The grounds for the exception of res judicata are set forth in La. R.S. 13:4231, which provides, in relevant part:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action. ■

Under La. R.S. 13:4231, a second action is precluded by res judicata when all of the following are satisfied: . (1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation. Burguieres v. Pollings, 2002-1385 (La.2/25/03), 843 So.2d 1049.

The purpose of the doctrine of res judicata is to promote judicial efficiency and the final resolution of disputes. Avenue Plaza, L.L.C. v. Falgoust, 96-0173 (La.7/2/96), 676 So.2d 1077. However, the doctrine of lures judicata is stricti juris, and any doubt concerning application of the principle of res judicata must be resolved against its application. Kelty v. Brumfield, 93-1142 (La.2/25/94), 633 So.2d 1210.

The cause of action asserted by Hawthorne and Healthworks certainly existed at the time of the original lawsuit, which was filed in July of 2004. This is plainly evident from the petition in the second suit, which states that Couch had been in possession of the equipment at issue since 2003. It is also evident from the June 16, 2004, letter from Hawthorne’s attorney concerning the transfer of the equipment to Couch, as well as from a July 2005 note from Hawthorne to Noble which included a calculation sheet that listed the hangar as a contribution equivalent to $250.00 each for the months of March and April in 2003.

Although in this lawsuit appellants are complaining about the alleged donation of equipment and use of a hangar, as opposed to the donation of money at issue in Hawthorne I, this cause of action arises out of the transaction or occurrence that was the subject matter of Hawthorne I.

Hawthorne and Healthworks contend that res judicata does not apply in this matter because the trial court in the first lawsuit lacked subject matter jurisdiction. In support of their argument, they cite Kelty v. Brumfield, supra, where the supreme court stated that a claim is not barred by res judicata when the court in which the first action was brought lacked subject matter jurisdiction.

In LoCicero v. Jefferson Parish Dept. of Fleet Management and Human Resource Management, 98-521 (La.App. 5th Cir.12/16/98), 722 So.2d 1205, writ denied, 99-0527 (La.4/23/99), 742 So.2d 882, the Fifth Circuit faced the issue of whether a final judgment sustaining an exception of lack of subject matter jurisdiction could form the basis for an exception of res judicata in a second suit subsequently brought in the same court and based on the same transaction or occurrence. In deciding that it could, the LoCicero court noted that in Kelty, supra, and the cases cited therein, the second forum was different from the first, and typically the second forum had jurisdiction over the claim. The court also reasoned that:

The purpose of the concept of res judi-cata is to put an end to disputes between the same parties which arise from the same transaction or occurrence, see La. R.S. 13:4231, Comments-1990(a). While we recognize that a judgment rendered on the merits by a court without subject matter jurisdiction is generally a nullity, that rule cannot be applied to a judgment like the present one where the decision initially made was simply whether the court could proceed further with the case. Pursuant to La. Code Civ. Pro., Art. 925(A)(6), relating to the declinatory exception of lack of jurisdiction over the subject matter of the action, district courts are required to exercise their threshold jurisdiction in deciding this issue. It would be anomalous indeed were it to be held that a judgment sustaining this exception would be a nullity for res judicata purposes in a subsequent suit in the same court. Such a ruling would permit endless re-litigation of that issue in direct contravention of. the policy underlying the concept of res judicata.

LoCicero, 722 So.2d at 1209-10.

Permitting Hawthorne and Healthworks to escape the effects of res judicata in this matter solely because no civil court has jurisdiction to hear cases involving the interpretation of ecclesiastical doctrines would obviously thwart the purpose behind the doctrine of res judicata to prevent The | ^costly and unnecessary relitigation. judgment in Hawthorne I where the trial court dismissed Hawthorne’s demands with prejudice can serve as the basis for the exception of res judicata in this suit.

Hawthorne and Healthworks also argue that res judicata does not apply in this matter because Hawthorne I and Hawthorne II do not involve the same parties.

Although one of the requirements for the application of res judicata is that the parties be the same, it has been stated that this requirement does not mean that the parties must have the same physical identity, but that the parties must appear in the same capacities in both suits. See Burguieres v. Pollingue, supra.

Healthworks was not a named party in Hawthorne I, but Hawthorne clearly brought that lawsuit on behalf of himself and Healthworks. In fact, when dismissing Hawthorne I, the trial court wrote in its reasons for judgment that “[t]he petition seeks a return of excessive tithes, damages and attorney fees on behalf of Hawthorne and Healthworks International.” Emphasis added. Moreover, when addressing the exception of no right of action filed by defendants in that first suit, the trial court also noted in its reasons for judgment that Hawthorne had conceded that he must amend his petition to include Healthworks as a party plaintiff. Nevertheless, Healthworks was not a party in any capacity in Hawthorne I. .Accordingly, 1 uthe exception of res judicata was properly granted as to Hawthorne’s claims in Hawthorne II, but it did not bar Health-works’ cause of action in that suit.

Attorney Fees

Appellants also contest the award of attorney fees for the- wrongful issuance of the writ of sequestration on the ground that seizure of the equipment was proper at it was owned by Healthworks. ¡

The grounds for sequestration are set forth in La. C.C.P. art. 3571, which states:

When one claims the ownership or right to possession of property, or a mortgage, security interest, lien, or privilege thereon, he may have the property seized under a writ of sequestration, if it is within the power of the defendant to conceal, dispose of, or waste the property or the revenues therefrom, or remove the property from the parish, during the pendency of the action.

The application for a writ of sequestration is governed by La. C.C.P. art. 3501, which provides:

A writ of attachment or of sequestration shall issue only when the nature of the claim and the amount thereof, if any, and the grounds relied upon for the issuance of the writ clearly appear from specific facts shown by the petition verified by, or by the separate affidavit of, the petitioner, his counsel or agent.
The applicant shall furnish security as required by law for the payment of the damages the defendant may sustain when the writ is obtained wrongfully.

Finally, La. C.C.P. art. 3506 contains the provisions for dissolution of the writ and for damages for wrongful issuance:

The defendant by contradictory motion may obtain the dissolution of a writ of attachment or of sequestration, unless the plaintiff proves the grounds upon which the writ was issued. If the writ of attachment or of sequestration is dissolved, the action shall then proceed as if no writ had been issued.
' hsThe court may allow damages for the wrongful issuance of a writ of attachment or of sequestration on a motion to dissolve, or on a reconventional demand. Attorney’s fees for the services rendered in connection with the dissolution of the writ may be included as an element of damages whether the writ is dissolved on motion or after trial on the merits.

The writ of sequestration is an extremely harsh remedy, and the writ can only be maintained when the formalities of the law have been strictly complied with by the parties seeking the writ. Burton v. Jardell, 589 So.2d 610 (La.App. 2d Cir. 1991). The articles providing for the writ of attachment must also be strictly complied with because that remedy is likewise extremely harsh. See Barnett Marine, Inc. v. Van Den Adel, 96-1029 (La.App. 5th Cir.4/9/97), 694 So.2d 453, writ denied, 97-1236 (La.9/26/97), 701 So.2d 983. The validity of the attachment process is determined on the facts known and existing at the time the attachment is requested. Id.

Once Couch motioned to dissolve the writ, the burden was on plaintiffs to prove the grounds upon which the writ was issued. Plaintiffs failed to meet their burden.

Hawthorne and Healthworks filed their amended petition which added Apostolic Tabernacle, Inc., as a defendant on July 20, 2005, but this was 15 days after the trial court signed the order issuing the writ of sequestration. Therefore, at the time the writ was issued, plaintiffs had alleged that the equipment was in Couch’s possession, and that when they attempted to recover the equipment from him, he presented the May 2003 acts of donation. In addition, although the petition never referenced the l^owner of the airplane that plaintiffs sought to be seized under a lessor’s privilege, the inference was that the airplane was owned by Couch as he was the only defendant to the action at the time.

Couch had accepted the equipment on behalf of the church, and indeed some of the equipment was seized at his home, but he was not the owner of the equipment, as was reflected in the acts of donation which listed Apostolic Tabernacle, Inc., as the donee. The airplane also was not owned by Couch, and plaintiffs never established that Couch as an individual had entered into a lease of the hangar. The amended petition that added Apostolic Tabernacle, Inc., as a defendant did not cure these deficiencies in the writ which Couch had already motioned to dissolve. La. C.C.P. arts. 3501 and 3571 do not permit an amendment once the defendant has moved to dissolve a conservatory writ. Hancock Bank v. Alexander, 256 La. 643, 237 So.2d 669 (La.1970).

Accordingly, we find no error in the trial court’s dissolution of the writ of sequestration and the award of attorney fees and expenses of $22,852.19.

DECREE

At appellants’ cost, the judgment is AFFIRMED.

      . During the relevant periods, Hawthorne's ownership interest in Healthworks ranged from 50% to 60%.

      . In his affidavit attached to the original petition, Hawthorne asserted that both he and Healthworks joined in the petition because it was not clear whether the equipment or hangar was owned by Healthworks or him.

      . Although Hawthorne is no longer a member of Couch’s church, Noble still belongs to Couch's congregation.

      . Hawthorne testified that he did not participate in making these calculations, although he knew about them.

      . Hawthorne did not appeal the granting of the exception of no right of action. This court noted in a footnote that the trial court was correct in granting that exception in regards to claims filed by Hawthorne on behalf of Healthworks. Hawthorne v. Couch, supra, 911 So.2d at 910.