author: SAVOIE, Judge. EDWARDS, Judge,

text:
    STATE of Louisiana v. James FLEMING.
    No. 84 KA 0078.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.
    Writ Denied Dec. 14, 1984.

      Ossie Brown, Dist. Atty. by Luke Lav-ergne, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    R. Judge Eames, Lewis 0. Unglesby, Baton Rouge, for defendant-appellant.
    Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   SAVOIE, Judge.

James Fleming was charged by bill of information with possession of pentazocine with intent to distribute in violation of L.S. A.-R.S. 40:967 A. Defendant pled not guilty and waived trial by jury. The trial judge found defendant guilty of the lesser included offense of possession of pentazo-cine, a violation of L.S.A.-R.S. 40:967 C and sentenced him to serve three years at hard labor. On appeal, defendant argues that the trial court erred in denying his motion to suppress physical evidence seized. We have found no error in the trial court’s denial of the motion to suppress and, accordingly, affirm.

ASSIGNMENT OF ERROR NO. 1

Defendant contends that the evidence seized resulted from an illegal search and is, therefore, inadmissible.

The fourth amendment of the United States Constitution and La. Const, art. 1, § 5 protect persons against unreasonable searches and seizures. However, the right of law enforcement officers to stop and interrogate one reasonably suspected of criminal conduct is recognized by La.C. Cr.P. art. 215.1, as well as by state and federal jurisprudence. State v. Andrishok, 434 So.2d 389 (La.1983); see also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The right to make an investigatory stop and question the particular individual detained must be based upon reasonable cause to believe that he has been, is, or is about to be engaged in criminal conduct. State v. Andrishok, supra.

When a person is actually stopped without reasonable cause or when such stop is imminent, the right to “be left alone” is violated. Therefore, property abandoned or otherwise disposed of as a result of such a stop cannot be legally seized by the police. If, however, the property is abandoned without any prior unlawful intrusion into a person’s right to be free from governmental interference, then such property may be lawfully seized. In such instances, there is no expectation of privacy and thus no violation of a person’s custodial rights. See State v. Andrishok, supra.

The courts have looked objectively to the manner and circumstances in which a police officer approaches the person to determine whether the approach indicated that some form of detention was imminent. See State v. Wheeler, 416 So.2d 78 (La.1982). As long as the person remains free to disregard the encounter and walk away, there has been no intrusion upon that person’s liberty or privacy which would require some particularized and objective justification under the fourth amendment. State v. Belton, 441 So.2d 1195 (La.1983), cert. denied, — U.S.-, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984).

Our inquiry, therefore, is two-fold: First, we must determine whether there was any unlawful intrusion into defendant’s right to be left alone. If it is found that there was an unlawful intrusion, we must then determine whether defendant abandoned the property in question prior to such unlawful intrusion.

As to the first part of this test, we have held that reasonable cause for the investigatory detention is something less than probable cause and must be determined under the facts of each case by whether the officer had sufficient knowledge of facts and circumstances to justify an infringement on the individual’s right to be free from governmental interference. The right to make an investigatory stop and question the particular individual detained must be based upon reasonable cause to believe he has been, is, or is about to be engaged in criminal conduct. The totality of the circumstances, “the whole picture,” must be considered in determining whether reasonable cause exists. State v. Belton, supra. In this case, the fact that the location was a notorious one because it was consistently being used by individuals either dealing in or using drugs to the extent that citizens had complained to the police and the police had instituted a task force to attempt to control same, together with the fact that there was a congregation of individuals at this notorious location would be factors leading to a finding of reasonable cause. However, the mere presence of a group of citizens at a notorious corner is, of itself, insufficient to justify an investigatory stop. A complete examination of the record in the present ease shows that there are no other factors present, and therefore we conclude that the stop was indeed unlawful.

We must then proceed to the next step in the inquiry; that is, whether the defendant abandoned the property prior to such unlawful intrusion. The circumstances surrounding the incident in question were adduced at the hearing on the motion to suppress and at the trial. The record reflects that, as part of the above task force, the officers were patrolling the area where the instant offense occurred. This area was one of the notorious locations referred to above. According to Sgt. Pruett who testified at both proceedings, he was headed south on 36th Street in an unmarked police car when, as he neared the intersection of 36th and Cain Streets, he observed the defendant exit a car recently parked at the intersection. Sgt. Pruett speculated that defendant had not observed him, but rather was looking in a westerly direction and noticed another vehicle approaching eastward on Cain Street. Immediately thereafter, Sgt. Pruett saw defendant “hook shot” an object which fell to the ground behind defendant’s parked car. Sgt. Pruett exited his vehicle in order to retrieve the object. At the same time that Sgt. Pruett was retrieving the object, other police officers, travelling in the vehicle heading east on Cain Street, stopped and gathered defendant and some other men standing in the vicinity and began to pat them down. As these officers were in the process of patting down the men, Sgt. Pruett approached with the retrieved object. He advised the other police officers of the contents of the bag thrown down by defendant and because of the unlawful nature of the contents, requested that defendant be arrested.

It is apparent from the events surrounding this incident that the police officers did not approach the defendant in a manner or under circumstances which indicated that some form of detention was imminent until after defendant disposed of the contraband. Thus, the property was abandoned without any unlawful infringement of the defendant’s rights and, therefore, lawfully seized.

Accordingly, the trial court correctly denied defendant’s motion to suppress.

AFFIRMED.

EDWARDS, J., concurs and assigns reasons.

EDWARDS, Judge,

concurring.

The proper inquiry is whether, prior to the abandonment of the evidence, there was an unlawful intrusion into defendant’s constitutional right to be left alone. The legality of the stop which occurred after defendant abandoned the evidence is not at issue in determining whether the evidence must be suppressed.

An unlawful intrusion occurs when there is an actual stop without reasonable cause, or when a stop without reasonable cause is imminent. State v. Belton, 441 So.2d 1195, 1199 (La.1983). At the time defendant threw down the evidence, he had not actually been stopped. Hence the only issue is whether a stop was imminent.

Defendant had parked his car on 36th Street just past the intersection of Cain Street, and started walking across 36th toward a group of men, when someone in the group motioned in the direction of an unmarked police car approaching on Cain Street. Sergeant Pruett, in another unmarked police car traveling on 36th Street near the intersection, saw defendant throw down the evidence. The officers approaching on Cain Street stopped defendant, and Sergeant Pruett retrieved the abandoned evidence.

This situation does not even approach those in which courts have found that a stop was imminent. For example, a stop was imminent when the defendant in Belton dropped a bag containing drugs as police chased him. In State v. Chopin, 372 So.2d 1222 (La.1979), the police drove past defendant, turned around and came back toward him, turned on the bright lights, and stopped three to four feet in front of him. Defendant then ran and dropped a bag containing drugs. Although defendant was not actually stopped when he dropped the bag (because he was running from the officers), a stop was imminent.

In the instant case, there was no indication of an imminent stop. There was no chase, not even any show of authority by the officers until after defendant abandoned the evidence. Whether those officers intended eventually to stop him is immaterial; no detention was imminent at the time he abandoned the evidence. Accordingly the evidence was legally seized and therefore is admissible.

      . At the close of the state’s evidence, defense counsel moved for a judgment of acquittal under La.C.Cr.P. art. 778. The trial court granted the motion as to the crime of possession of a controlled dangerous substance with the intent to distribute.

      . Defendant appealed his conviction on the basis of three assignments of error. However he failed to brief Assignments of Error Nos. 2 and 3. As a result, these assignments are considered abandoned. Uniform Rules, Courts of Appeal, Rule 2-12.4.

      . In determining whether a ruling on a motion to suppress was correct, we are not limited to the evidence adduced at the hearing on that motion. We may consider all pertinent evidence given at the trial of the case. State v. Chopin, 372 So.2d 1222, 1223 n. 2 (La.1979).

      . This vehicle, approaching eastward on Cain Street, was an unmarked police car manned by two plain-clothes policemen who were also participating in the task force.


source: Caselaw Access Project

author: PONDER, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Jeffrey LIVELY.
    No. 84 KA 0136.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.

      Aubert D. Talbot, Dist. Atty., Napoleon-ville, for the State.
    Lawrence W. Bell, Gonzales, for defendant-appellant Jeffrey Lively.
    Before GROVER L. COVINGTON, LOT-TINGER and PONDER, JJ.
   PONDER, Judge.

Defendant was convicted of second-degree murder, a violation of LSA-R.S. 14:30.1. He was sentenced to mandatory life imprisonment at hard labor, without benefit of probation, parole or suspension of sentence.

Defendant asserts three assignments of error: (1) admission into evidence of bedsh-eet purportedly taken by law enforcement officials from the victim’s bed; (2) admission into evidence of certain photographs of the victim; and (3) excessive sentence, constituting cruel and unusual punishment.

We affirm.

The seventeen year old defendant and a friend, on their way home from a bar one early morning, illegally entered the home of the ninety-two year old victim, who was asleep in her bed. The unfortunate woman was subsequently awakened, then brutally beaten and raped in her bed. Her death several days later was a direct result of the beating she had received.

Defendant argues that the state failed to prove that a bedsheet, stained with human blood and semen, and introduced into evidence at trial, was the same bedsheet removed by law enforcement officials from the bed of the victim a few hours after the rape.

For demonstrative evidence to be admitted at trial, the law requires that the object be identified. The identification can be visual or by chain of custody, i.e., by establishing the custody of the object from the time it was seized to the time it was offered into evidence at trial. The evidence as a whole must establish that it is more probable than not that the object introduced was the same as the object originally seized. State v. Taylor, 422 So.2d 109 (La.1982); State v. Godeaux, 378 So.2d 941 (La.1979).

Detective Anthony Bacala of the Ascension Parish Sheriffs Office identified the bedsheet admitted into evidence as the one he removed from the bed of the victim and delivered, sealed in an evidence envelope, to the state crime lab. This testimony, along with that of the forensic scientist, Shirley Phillips, who analyzed the bedsheet, establishes that it is more probable than not that the bedsheet which was introduced into evidence was the same bedsheet removed from the victim’s bed a few hours after the rape.

Defendant’s first assignment of error has no merit.

Defendant contends that the admission into evidence of five photographs of the victim constitutes reversible error because their probative value was minimal compared to their inflammatory effect upon the jury. The state argued at trial that their admission was necessary to rebut the defendant’s statements that he did not strike or have intercourse with the victim. The defendant counters that verbal testimony by investigating police officers, attending physicians and the coroner who conducted the autopsy of the victim sufficiently rebutted defendant’s statements.

The test of admissibility of allegedly gruesome photographs is whether their probative value outweighs their possible prejudicial or inflammatory effect upon the jury. State v. Perry, 420 So.2d 139 (La.1982); State v. Huntley, 418 So.2d 538 (La.1982). Generally, photographs of a deceased victim have been held relevant to prove the death, or corpus delicti; to corroborate other evidence of the manner in which the death occurred; to establish the nature, severity and location of the wounds; and to establish the identity of the victim. State v. Spears, 350 So.2d 603 (La.1977); State v. Lang, 430 So.2d 1239 (La.App. 1st Cir.1983).

Two of the color photographs depict the victim, a ninety-two year old woman, lying in a hospital bed within a few hours of the attack upon her. These show her face, covered with bruises. The remaining three color photographs were taken after the victim’s death; they reveal a very large bruise on her side, bruises on her head and a tear in the flesh at the vaginal entrance.

We find no error in the trial judge’s determination that the possible inflammatory effect of the photographs on the jury was outweighed by their probative value. They are relevant to prove the corpus de-licti, and the wounds on the victim’s body corroborated the state’s theory that either: (1) an aggravated rape or aggravated burglary was perpetrated in connection with the killing, or (2) defendant had the specific intent to kill or to inflict great bodily harm, essential elements of the crime charged. In addition, they are relevant to corroborate medical testimony concerning the cause of death and to refute the defendant’s statements that he did not hit the victim or attempt to rape her.

This assignment of error is also without merit.

Defendant further contends that the sentence imposed, life imprisonment at hard labor, without benefit of probation, parole or suspension of sentence, is excessive and constitutes cruel and unusual punishment.

This argument against the mandatory sentence has been consistently rejected. State v. Parker, 416 So.2d 545 (La.1982); State v. Daniel, 378 So.2d 1361 (La.1979); State v. Trevathan, 432 So.2d 355 (La.App. 1st Cir.1983). Life imprisonment is not an excessive penalty for the crime of second-degree murder. State v. Landry, 388 So.2d 699 (La.1980); State v. Brooks, 350 So.2d 1174 (La.1977).

Although the sentence is mandatory, it is still subject to review for excessiveness. State v. Sepulvado, 367 So.2d 762 (La.1979). We do not find the sentence imposed so grossly disproportionate to the crime committed, as to shock our sense of justice. State v. Williams, 448 So.2d 659 (La.1984).

For the foregoing reasons, we find no reversible error in the case and thus affirm defendant’s conviction and sentence.

AFFIRMED.


author: EDWARDS, Judge.

text:
    STATE of Louisiana v. Tonja STAMPLEY.
    Nos. 84-KA-0154 to 84-KA-0159.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.

      Ossie Brown, Dist. Atty. by Michael Erwin, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Anne L. Jordan, Appellate Counsel, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   EDWARDS, Judge.

Tonja Stampley pleaded guilty to two separate offenses of forgery, two separate offenses of felony theft, and two separate offenses of misdemeanor theft, respective violations of LSA-R.S. 14:72 and 14:67 and all committed over a year and a half period from July 1981 to February 1983.

After a proper Boykin examination, the trial judge accepted her plea and sentenced her to ten years imprisonment at hard labor for the two forgery convictions, and two years imprisonment at hard labor for one of the felony theft convictions, all three sentences to run consecutively. He sentenced her to eighteen months imprisonment at hard labor for the remaining felony theft conviction, and five months imprisonment for each of the misdemeanor theft convictions, with these latter sentences to run concurrently with the former.

Stampley now appeals, contending first that the trial judge failed to comply with the requirements of LSA-C.Cr.P. art. 894.-1, and second that he imposed an excessive sentence when he imposed the maximum prison term for three of her convictions and made them consecutive.

Under Article 894.1, the trial judge should consider three basic factors before imposing a prison sentence: (1) that there is an undue risk that the defendant will commit another crime during the period of suspension or probation, (2) that the defendant is in need of services of a custodial environment provided most effectively by a commitment to an institution, and (3) that a lesser sentence would deprecate the seriousness of the crime. The trial judge should also consider and accord some weight to other factors, such as the defendant’s prior criminal record, the seriousness of the offense, the defendant’s personal history and his potential for rehabilitation, though he need not state them all for the record. See State v. Knox, 425 So.2d 707 (La.1982); State v. Lang, 430 So.2d 1239 (La.App. 1st Cir.1983). But he must state for the record those considerations taken into account and the factual bases supporting his sentencing choice.

If the trial judge chooses a prison term, he should reserve the maximum sentence “for the most egregious and blameworthy of offenders within a class.” State v. Telsee, 425 So.2d 1251, 1253 (La.1983). See also State v. Jones, 398 So.2d 1049 (La.1981). However, under LSA C.Cr.P. art. 883, concurrent rather than consecutive sentences should be imposed only for convictions arising out of a single course of conduct, unless there exists some specific reason for imposing consecutive sentences. Article 883 specifically states that “[ojther sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently” (emphasis added). See also State v. Armstead, 432 So.2d 837 (La.1983); State v. Rivers, 446 So.2d 913 (La.App. 1st Cir.1984).

At the sentencing hearing in the instant case, the trial judge considered and based the sentences imposed on the following factors: The defendant has been arrested at least 33 times, 28 of those for forgery and theft. She has been convicted several times for theft and forgery, and has still more felony charges pending. She is an admitted drug user, does not work, has no work record, and in the words of the trial judge, “apparently just makes her income by stealing.”

In light of these facts, the trial judge adequately complied with the requirements of Article 894.1 and did not abuse his sentencing discretion in imposing the maximum sentence. The defendant’s extensive criminal record indicates both the worst kind of habitual offender and a likelihood of repeated future offenses. Moreover, the present convictions arose out of a series of separate offenses extending over a year and a half period, and not out of a single course of criminal conduct. Therefore, the trial judge did not abuse his discretion in imposing maximum consecutive sentences for three of the defendant’s six convictions.

Accordingly, defendant’s convictions and sentences are affirmed.

AFFIRMED.

      . The bill of information filed September 17, 1981, charges Stampley with forgery of a check on or about July 20, 1981.
      The bill of information filed July 29, 1982, charges her with felony theft of assorted children’s clothes valued at less than 1500.00 but more than $100.00 on or about June 5, 1982.
      The bill of information filed August 11, 1982, charges her with misdemeanor theft of merchandise valued at less than $100.00 on or about July 12, 1982.
      The bill of information filed August 25, 1982, charges her with misdemeanor theft of goods valued at less than $100.00 on or about April 27, 1982.
      The bill of information filed December 7, 1982, charges her with felony theft of merchandise valued at less than $500.00 but greater than $100.00 on or about October 21, 1982.
      The bill of information filed February 24, 1983, charges her with forgery of a check on or about February 6, 1983.

      . The court minutes incorrectly record the sentence for the second felony conviction to run consecutively with the other convictions. At the sentencing hearing, the trial judge specifically ordered that the 18-month prison term is to run concurrently with the other sentences.
      Moreover, the misdemeanor theft convictions are nonappealable. However, in the interest of judicial economy, we have consolidated all six convictions and sentences for review.


author: ALFORD, Judge.

text:
    STATE of Louisiana v. William SCHULER.
    No. KA 84 0160.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.
    Writ Denied Dec. 14, 1984.

      Ossie Brown, Dist. Atty., by Luke Lav-ergne, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Anne L. Jordan, Appellate Counsel, Asst. Public Defender, Baton Rouge, for defendant-appellant.

      Before WATKINS, CRAIN and ALFORD, JJ.
   ALFORD, Judge.

William Schuler was charged- by bill of information with possession or dealing in an unregistered or illegally transferred weapon in violation of LSA-R.S. 40:1785. Defendant initially entered a plea of not guilty at arraignment. After the trial judge denied defendant’s motion to suppress physical evidence, defendant withdrew his former plea of not guilty and entered a plea of guilty as charged, expressly reserving his right to appeal the trial judge’s denial of his pre-plea motion to suppress. State v. Crosby, 338 So.2d 584 (La.1976). After accepting defendant’s guilty plea, the court sentenced defendant to serve five years at hard labor, to pay a $1,000.00 fine, and to pay court costs of $123.10.

On appeal, defendant relies on two assignments of error:

(1) The trial court erred when it denied defense motion to suppress.
(2) The trial court erred when it imposed an excessive sentence.

ASSIGNMENT OF ERROR NUMBER 1:

Defendant contends the trial judge erred in denying his motion to suppress the physical evidence. Evidence adduced at the preliminary examination reveals that on or about March 7, 1982, Lieut. Bradford of the East Baton Rouge Sheriff’s Office and another deputy were working extra detail at the Disco Palace in the City of Baton Rouge.

Having been advised by the manager of the Disco Palace that defendant was acting suspiciously and had an unusual bulge in the back of his left leg, Lieut. Bradford went to the rear of the facility where he observed that defendant’s behavior was unusual and loud. As defendant leaned over to shoot pool, Lieut. Bradford also observed something bulging out of the back of defendant’s trousers.

Lieut. Bradford admitted that he was not certain of the identity of the bulge but knew that it was “something that shouldn’t be there.” At that point Lieut. Bradford approached defendant, identified himself and frisked defendant for weapons. The barrel of a .20 gauge sawed-off shotgun was removed from defendant’s left back area, and the stock of the gun was removed from the center of defendant’s back. One shell was found in the gun and two other shells were found in defendant’s right front pocket. Defendant was thereafter placed under arrest.

In determining the validity of the seizure of the gun, there are two actions of Lieut. Bradford that must be examined: the initial detention of defendant and the subsequent frisk. If either action was not justified, the evidence obtained is inadmissible.

The Fourth Amendment to the United States Constitution and La. Const, art. 1, Section 5 (1974) protect against unreasonable searches and seizures. However, the right of a law enforcement officer to stop and interrogate one he reasonably suspects is committing, has committed, or is about to commit an offense is recognized by La.C.Cr.P. art. 215.1, as well as by both state and federal jurisprudence. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Andrishok, 434 So.2d 389 (La.1983). The right to make such an investigatory stop must be based upon reasonable cause to believe that the detained individual has been or is about to be engaged in criminal conduct. Terry, supra; Andrishok, supra.

Reasonable cause to suspect a detainee of criminal activity is something less than probable cause and must be determined under the facts of each case. The determinative factor in such a query is whether the officers had sufficient knowledge of particular circumstances to permit them to infringe upon the individual’s right to be left alone free of governmental interference with his liberty. State v. Jernigan, 377 So.2d 1222 (La.1979), cert. denied, 446 U.S. 958, 100 S.Ct. 2930, 64 L.Ed.2d 816 (1980). In order to assess the reasonableness of an officer’s conduct, it is necessary to balance the need to search or seize against the harm of invasion. State v. Bolden, 380 So.2d 40 (La.1980), cert. denied, 449 U.S. 856, 101 S.Ct. 153, 66 L.Ed.2d 70 (1980).

Although Lieut. Bradford was not certain of the identity of the bulge observed on defendant’s person, he suspected that it might be a weapon. Such a situation presented an immediate danger to the public, particularly in a night club setting. The potential for harm was high not only to the investigating officer, but also to the innocent patrons.

In State v. Wade, 390 So.2d 1309, 1312-1313 (La.1980), cert. denied, 451 U.S. 989, 101 S.Ct. 2326, 68 L.Ed.2d 848 (1981), the Louisiana Supreme Court noted:

The purpose of allowing a limited weapons search is to prevent harm to police officers by allowing action prior to a crisis stage. Terry, supra. Police officers are not required to stand by and give a suspect the first move before taking action. “The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry, 392 U.S. at 27, 88 S.Ct. at 1883. Equally important is the protection of the suspect, presumed innocent by law, from the harm that could result to him should he naively do an act interpretable as reaching for a weapon at a time when a police officer may reasonably suspect the presence of a weapon. Within this class of actions could be such innocent acts as reaching into the back pocket to produce a wallet or thrusting a hand into a jacket for a pack of cigarettes.

It is sufficient that an officer establish a substantial possibility of danger by pointing to particular facts which support such an inference. State v. Bolden, supra, at 42. Such was clearly the case here. Lieut. Bradford was justified in conducting a limited protective search of defendant for weapons.

Accordingly, the trial judge did not err in denying defendant’s motion to suppress the gun obtained. Assignment of Error Number 1 is without merit.

ASSIGNMENT OF ERROR NUMBER 2:

Defendant next urges that the sentence imposed was excessive in violation of La. Const, art. 1, Section 20 (1974). The standard of review to be exercised by an appellate court is circumscribed by rather narrow limits. A trial judge has wide discretion to impose a sentence within statutory limits. In the absence of manifest abuse of discretion, the sentence imposed will not be set aside as excessive. State v. Lanclos, 419 So.2d 475 (La.1982).

Defendant was sentenced to serve five years at hard labor, the maximum period of incarceration under LSA-R.S. 40:1791 for a first violation, a $1,000.00 fine and court costs. Maximum sentences are appropriately imposed in cases involving the most serious violations of the described offense and the worst kind of offender. State v. Jones, 398 So.2d 1049 (La.1981).

Defendant argues that the court considered only defendant’s extensive criminal record in imposing the sentence and did not consider any of the mitigating factors required to be considered under La.C.Cr.P. art. 894.1.

When the trial judge recites some of the La.C.Cr.P. art. 894.1 factors such as defendant’s lengthy criminal history or the risk that defendant would commit another crime, a factual basis for the sentence is presented. It is not necessary for the trial judge to enumerate each factor under that article. State v. Mott, 409 So.2d 263 (La. 1982); State v. Burns, 441 So.2d 1294 (La. App. 1st Cir.1983), cert. denied, 444 So.2d 1242 (La.1984). The record reveals that the court sufficiently contemplated and articulated its reasons for imposition of the sentence. Particularly noteworthy is defendant’s status as a third felony offender, with numerous misdemeanor arrests. During pendency of the instant prosecution, defendant was arrested for yet another weapon violation.

Although defendant argues failure of the trial judge to articulate every mitigating factor enumerated in art. 894.1, not even one of the mitigating factors is urged as being applicable in the instant case.

We cannot say that the sentence imposed is excessive under the circumstances. We find that the trial judge fully considered the range of sentencing alternatives and individualized the sentence to the particular defendant for the particular crime involved.

The assignment of error is without merit.

CONVICTION AND SENTENCE AFFIRMED.

      . Motion to Suppress physical evidence was submitted to the court on the testimony from the preliminary hearing.

      . A Louisiana deputy sheriff never truly goes off duty. At all times pertinent, we find that Lieut. Bradford was acting in his capacity as a law enforcement officer. See State v. Wilkerson, 367 So.2d 319 (La.1979).

      . Lieut. Bradford noted that the bulge "could have been a club or ... anything.


author: LOTTINGER, Judge.

text:
    STATE of Louisiana v. Ray Lee HENRY.
    No. KA 84 0187.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.
    A. Zach Butterworth, Asst. Dist. Atty., St. Francisville, for plaintiff.
    Clayton M. Perkins, Jr., St. Francisville, for defendant.
    Before COVINGTON, LOTTINGER and PONDER, JJ.
   LOTTINGER, Judge.

Defendant, Ray Lee Henry, was charged by Grand Jury indictment with having committed armed robbery in violation of La. R.S. 14:64. After pleading not guilty, defendant was tried by jury and found guilty as charged. The trial judge sentenced defendant to forty (40) years at hard labor without benefit of probation, parole, or suspension of sentence. Defendant now appeals his conviction and sentence alleging as a sole assignment of error that the evidence introduced at trial is insufficient to support the jury’s verdict of guilty.

At approximately 7:30 a.m. on the morning of July 15, 1983, the victim, a 51 year old female, opened the back door of her residence intending to put out the household garbage. Upon opening the door, she was confronted by a nude black man who was wearing only a pair of gloves, and was armed with a knife in each hand. The assailant then forced his way into the home and the victim grabbed his wrists. A struggle ensued and the victim was overpowered and thrown to the floor. The victim then offered the assailant her money and led him to her purse and wallet.

After taking a one hundred dollar bill and several smaller bills, another struggle ensued and the victim locked herself in the bathroom and shouted for help from a window. The assailant fled the scene and the police soon thereafter arrived.

Defendant was arrested and taken into custody later that day. Defendant was advised of his Miranda rights and was interrogated by police officers. Defendant signed a rights waiver form and rendered an oral confession which was handwritten by a police officer and signed and sworn to by defendant. In the confession, defendant admitted committing the robbery. In addition to admitting to the crime, defendant admitted giving the money to a friend to hold for him. This money was later recovered from this friend.

Defendant then voluntarily accompanied two police officers back to the scene of the crime. He led the police officers to the area where he discarded the gloves and knives. The gloves were then recovered and the knives were found later in the same area.

At trial, defendant testified that the confession was made out of fear for his life in that someone was trying to kill him. He testified that an unknown assailant tied defendant to a tree at gunpoint at approximately 3:00 a.m. that morning and later released defendant at approximately 8:00 a.m. that morning, after the robbery had occurred. Defendant, upon returning to his automobile discovered the gloves, money and knives in his automobile. Since he had lost his keys defendant ran home, discarding the gloves and knives on the way. He was later arrested at his home.

'At trial the victim testified regarding the incident and made a positive identification of defendant as the robber. In addition the state introduced into evidence the gloves and knives used by the assailant, as well as the confession rendered by defendant. Furthermore, two police officers testified regarding the interrogation and confession of defendant, as well as the fact that defendant led them to the area where the gloves and knives were found.

However, defendant’s testimony at trial differed substantially from his confession and the evidence introduced by the state.

When reviewing the sufficiency of evidence to support a conviction, the proper standard is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Allen, 442 So.2d 737 (La.App. 1st Cir.1983). Where there is conflicting testimony as to factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, this is a matter of the weight of the evidence, not of its sufficiency. State v. Johnson, 446 So.2d 1371 (La.App. 1st Cir.1984); State v. Kent, 434 So.2d 1258 (La.App. 1st Cir.1983), writ denied, 440 So.2d 727 (La.1983). A determination of the weight of the evidence is a question of fact of which this court has no appellate jurisdiction in criminal cases. La. Const, art. V § 10(B). State v. Norman, 448 So.2d 246 (La.App. 1st Cir.1984). Thus, a determination of the weight of the evidence rests solely in the sound discretion of the trier of fact and is not reviewable on appeal.

The jury’s verdict indicates that after considering the credibility of the witnesses and weighing the evidence it accepted the testimony of the victim and the evidence offered by the state, and rejected the testimony of the defendant. Our review of the evidence presented at trial convinces us that such evidence is sufficient to uphold the determination of the jury. Accordingly, there is no merit to this assignment of error.

For the foregoing reasons we affirm the conviction and sentence.

AFFIRMED.


author: WATKINS, Judge.

text:
    STATE of Louisiana v. Clifford NOLAN.
    No. 84 KA 0190.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.
    Writ Denied Dec. 14, 1984.

      Ossie Brown, Dist. Atty. by Richard Sherburne, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Kathleen S. Richey, Appellate Counsel, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before WATKINS, CRAIN and ALFORD, JJ.
   WATKINS, Judge.

Defendant, Clifford Nolan, was charged by grand jury indictment with aggravated rape, aggravated kidnapping, and armed robbery. LSA-R.S. 14:42, 44, 64. He plead not guilty and after trial by jury was found guilty as charged. The trial judge sentenced defendant to life imprisonment without benefit of probation, parole, or suspension of sentence on the aggravated rape charge, to life imprisonment without benefit of probation, parole, or suspension of sentence on the aggravated kidnapping charge, and to twenty years of hard labor without benefit of probation, parole, or suspension of sentence and court costs or an additional one year on the armed robbery charge. All sentences are to run concurrently.

Defendant now appeals his conviction and sentence alleging twenty-two assignments of error. Defendant has briefed only assignments of error nos. 1, 10, and 22. The remaining assignments of error were not briefed on appeal and, therefore, are considered abandoned. Uniform Rules — Courts of Appeal, Rule 2-12.4.

FACTS:

On June 25, 1983, the victim was shopping at Howard Brothers Department Store located at Florida Boulevard and Donmoor Avenue in Baton Rouge. She left the store and was entering her car when a man placed a knife to her neck and forced himself into the car with her. The victim was made to lie face down on the floor.

The assailant then drove the victim to a deserted area and placed a bandana over her eyes. He then raped her and forced her to perform oral sex. The assailant then forced the victim back into the car and drove to another location where he again raped her.

The assailant then drove the victim to Baton Rouge Meat Supply on Harry Drive. He told her that he was going to get out of the car first and take the car keys with him. The victim was instructed to wait sixty seconds, go into the store and cash a check, and return to the car with the money-

The assailant got out of the car first. The victim waited, then removed the bandana and went into the store. She told the manager of the store what had happened and the police were called. The victim then spotted defendant in the store and identified him as the assailant. The police arrived and arrested defendant. Several items of the victim’s property, including her car keys, were found on defendant. Defendant admitted having stolen the items from the victim’s car but denied all other charges.

ASSIGNMENTS OF ERRORS NOS. 1 and 10:

In these assignments of error, defendant contends that the trial court erred when it failed to sequester the victim-witness after she testified on direct and cross-examination.

LSA-C.Cr.P. art. 764 provides for sequestration of witnesses. It states:

Upon its own motion the court may, and upon request of the state or the defendant the court shall, order that the witnesses be excluded from the courtroom or from where they can see or hear the proceedings and refrain from discussing the facts of the case or the testimony of any witness with anyone other than the district attorney or defense counsel. The court may modify its order in the interest of justice.

The purpose of sequestration is to assure that a witness will testify as to his own knowledge of events, to prevent the testimony of one from influencing the testimony of others, and to strengthen the role of cross-examination in developing facts. State v. Sonnier, 402 So.2d 650 (La.1981), cert. denied — U.S. —, 103 S.Ct. 3571, 77 L.Ed.2d 1412 (1983). It is within the sound discretion of the trial judge to exclude witnesses from the sequestration order and to permit witnesses who have violated the order to testify. This may be done where the purpose of the sequestration order has not been thwarted or there is no evidence that the victim’s testimony has been tainted. See: State v. Mitchell, 344 So.2d 1026 (La.1977); State v. Marchese, 430 So.2d 1303 (La.App. 1st Cir.1983).

Defendant contends that because the victim heard the testimony of the manager of Baton Rouge Meat Supply she was able to later contradict his testimony on rebuttal. The manager testified that when the victim first spoke to him she was unable to identify her assailant but when she saw defendant in the store, she identified him. On direct and cross-examination, the victim testified that she “got a good look” at her assailant when he first approached her in the parking lot. On rebuttal, she again testified that she got a good look at her assailant. Based on the record, it is evident that the victim’s testimony on rebuttal was a reiteration of her earlier testimony and was not altered or tainted as a result of non-sequestration.

Defendant next contends that the victim heard the testimony of defendant and as a result was able to contradict it on rebuttal. Defendant testified that he stole the victim’s car keys and other items from her car without having personal contact with the victim. The victim testified that she heard the assailant going through her purse but, because her eyes were covered, she could not say whether he had taken the items, put them back in her purse, or thrown them on the floorboard. When the victim was recalled to the stand on rebuttal, she was asked whether the items were on the floorboard when she removed the bandana from her eyes and left the car to go into Baton Rouge Meat Supply. She testified that the items were not on the floor at that time. It is clear from the record that the victim did not alter her testimony in any way on rebuttal but merely offered additional testimony in line with her previous statements.

We fail to see any actual prejudice to defendant. The defendant has failed to show that the victim’s testimony was altered or tainted because she was not sequestered. On rebuttal, the victim reiterated previous testimony and offered additional testimony in line with her previous testimony. We find no merit to these assignments of error.

ASSIGNMENT OF ERROR NO. 22:

In this assignment of error, defendant argues that the verdict is contrary to the law and evidence.

Defendant first contends that the State failed to present sufficient evidence to establish venue with respect to the offense of aggravated rape.

When reviewing the sufficiency of evidence, it must be determined 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 beyond a reasonable doubt. LSA-C.Cr.P. art. 821; State v. Korman, 439 So.2d 1099 (La.App. 1st Cir.1983).

All trials shall take place in the parish where the offense has been committed unless venue is changed. LA. Const, of 1974, Art. 1, § 16, LSA-C.Cr.P. art. 611. The State has the burden of proving proper venue beyond a reasonable doubt on the trial of the offense. LSA-C.Cr.P. art. 615.

In State v. Hayes, 414 So.2d 717, 723 (La.1982), the Court noted:

[T]he state did not ask the victims or other witnesses whether the offenses occurred in East Baton Rouge Parish. However, this does not necessarily mean that the state did not prove that the offenses occurred in that parish, for venue could have been shown in another manner.

In the instant case, defendant argues that the victim was blindfolded and was driven to an unknown location. The victim testified that she was abducted from Howard Brothers at Florida Boulevard and Donmoor Avenue and was finally released at Baton Rouge Meat Supply which is located just behind Howard Brothers. With this evidence before them, the jurors could have concluded beyond a reasonable doubt that the rapes occurred in East Baton Rouge Parish.

Secondly, defendant argues that the verdict was based upon insufficient evidence to convince a rational trier of fact of guilt beyond a reasonable doubt. Defendant contends that the issue is one of identity, and nothing points to defendant as the assailant except the victim’s assertions.

Where there is conflicting testimony as to factual matters the resolution of which depends on a determination of the credibility of the witnesses, this is a matter of the weight of the evidence, not its sufficiency. Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982); State v. Kent, 434 So.2d 1258 (La.App. 1st Cir.1983), writ denied, 440 So.2d 727 (La.1983). A determination of the weight of the evidence is a question of fact and this court has no appellate jurisdiction to review questions of fact in criminal cases. La. Const, of 1974, Art. V, § 10(B). Thus, a determination of the weight of the evidence rests solely in the sound discretion of the trier of fact and is not reviewable on appeal. State v. Korman, supra, 439 So.2d at 1101.

The victim herein testified that she saw her assailant when he approached her initially. She thereafter identified defendant as her assailant. In addition, the victim’s car keys and other items were found on defendant. To some extent, this corroborated the victim’s testimony. In finding defendant guilty, it is obvious that the jury believed the victim rather than the defendant. Applying the standard set forth in Korman, at 439 So.2d 1101, we find no merit in this argument.

This assignment of error is without merit.

Accordingly, defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: ANIER, Judge.

text:
    STATE of Louisiana v. Lester HART.
    No. KA 84 0203.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.
    Ossie Brown, Dist. Atty. by Jesse Bank-ston, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Anne L. Jordan, Appellate Counsel, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before COLE, CARTER and LANIER, JJ.
   ANIER, Judge.

The defendant, Lester Hart, was charged with simple burglary in violation of La.R.S. 14:62. Hart appeared in district court on July 14, 1983, in proper person for arraignment and advised the court that he was represented by J.R. Coxe, Jr. Pursuant to advice of his counsel, Hart entered a plea of not guilty. Trial was set for September 21, 1983.

On September 21, 1983, Hart again appeared in court in proper person. He waived his right to counsel and entered a plea of guilty. After a Boykin examination, the district court judge accepted the guilty plea. A presentence investigation was ordered and sentencing was fixed for November 22, 1983.

On November 22, 1983, Hart again appeared in court in proper person. He was sentenced to serve two years in the custody of the Department of Corrections. The district court judge advised Hart of his right to appeal and appointed the Office of the Public Defender to represent him for purposes of appeal.

On December 12, 1983, the Office of the Public Defender filed a motion for an “out-of-time” appeal contending that on or about November 23, 1983, a written motion for an appeal was filed with the Clerk of the Nineteenth Judicial District Court but that the Clerk’s office “has no record of the motion.” No affidavits were attached to the motion and the record does not reflect that evidence was taken to establish the facts alleged. The district court judge apparently summarily granted the motion on December 16, 1983. Hart then perfected this appeal contending he did not validly waive his right to counsel or his Boykin rights and that the sentence was excessive.

La.C.Cr.P. art. 914 provides as follows:

A motion for an appeal may be made orally in open court or by filing a written motion with the clerk. The motion must be made no later than five days after the rendition of the judgment or ruling from which the appeal is taken. The motion shall be entered in the minutes of the court. (Emphasis added).

An application for an appeal to this court must be timely filed for this court to have appellate jurisdiction over the case. Guilliot v. City of Kenner, 326 So.2d 359 (La.1976); State ex rel. McIsaac v. Sigler, 236 La. 773, 109 So.2d 89 (1959). Where no formal appeal has been timely perfected, there is nothing for an appellate court to review, and the appeal should be dismissed. State v. Washington, 278 So.2d 484 (La.1973); Louisiana State Bar Association v. Cox, 250 La. 755, 199 So.2d 534 (1967); State v. Breaux, 441 So.2d 811 (La.App. 3rd Cir.1983); State v. Metoyer, 427 So.2d 93 (La.App. 3rd Cir.1983).

Because Hart contends his motion for appeal was filed within the five day delay period (and thus was timely), this is not properly an “out-of-time” appeal. It is well established that a defendant’s appeal cannot be defeated by action (or inaction) of the clerk of court for which the defendant is not responsible. Davidge v. Magliola, 346 So.2d 177 (La.1977); Mackiewicz v. Westinghouse Electric Corp., 402 So.2d 314 (La.App. 4th Cir.1981). However, a district court should not allow the perfecting of an appeal where a claim similar to that in the instant case is made unless the defendant has established his factual allegations at an evidentiary hearing. Accordingly, this cause is remanded to the district court for such a hearing.

Because this case was lodged in this court on February 16, 1984, and to prevent further delay, we order that if the district court rules that Hart has established his factual claim, this appeal shall be forthwith returned to this court and placed on the next open docket before this panel (D). If the district court finds that Hart has failed to factually prove his claim, it shall rescind its order of appeal, reserving to Hart the right to seek relief under the supervisory jurisdiction of this court.

REMANDED.

      . Rule 3-2 of the Uniform Rules — Courts of Appeal provides that an "out-of-time” or delayed appeal may be sought when a defendant “has failed to timely take an appeal”. Further, the proper procedure was not followed to obtain an “out-of-time” appeal. Compare Rule 3-2 and State v. Braxton, 428 So.2d 1153 (La.App. 3rd Cir.1983) with State v. Holmes, 440 So.2d 1384 (La.App. 2nd Cir.1983). We question the authority of a court to create appellate jurisdiction when the statutory period for perfecting it has expired.


text:
    STATE of Louisiana v. Eddie L. JOHNSON.
    No. KA 84 0210.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.

      Ossie Brown, Dist. Atty. by Ralph L. Roy, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Kathleen S. Richey, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before WATKINS, CRAIN and ALFORD, JJ.
   ALFORD, Judge.

Defendant, Eddie Lee Johnson, was charged with armed robbery, tried by a jury on June 10, 1980, and found guilty of the responsive verdict of simple robbery. Defendant appeals his subsequent adjudication as an habitual offender, LSA-R.S. 15:529.1.

As background, we note that defendant’s conviction was affirmed by the Louisiana Supreme Court. See State v. Johnson, 406 So.2d 153 (La.1981). A bill of information charging defendant as an habitual offender was filed on November 21, 1980. Defendant was first adjudicated a second felony offender on December 8, 1981. However, the Louisiana Supreme Court reversed that adjudication and remanded the case to the trial court for resentencing. See State v. Johnson, 432 So.2d 815 (La.1983).

On November 16, 1983, defendant was adjudged a second time to be an habitual offender and sentenced to serve fourteen years at hard labor. It is from this adjudication that defendant brings the instant appeal, urging the following four assignments of error:

1. The trial court committed error when it overruled defense objection to retrial of the habitual offender petition.
2.- The trial court committed error when it overruled the defense objection to the admissibility of the “rap sheet”.
3. The, trial court committed error when it adjudged the defendant to be a second felony offender.
4. The trial court committed error when it imposed an excessive sentence.

Assignment of Error Number 1 was not briefed and is thereby considered abandoned. Uniform Rules — Courts of Appeal, Rule 2-12.4.

As Assignment of Error Number 3 is dispositive of this case, we will deal solely with it. Defendant argues that his adjudication as a second felony offender was in error because the State failed to meet the requisite criteria of proof. We agree.

In order for a court to impose enhanced punishment under the habitual offender law, the State must prove two things: (1) the prior felony conviction(s) alleged and (2) the present defendant’s identity with the individual previously convicted. State v. Blackwell, 377 So.2d 110 (La.1979).

LSA-R.S. 15:529.1 permits the establishment of prima facie proof of a prior felony conviction by compliance with subsection F. However, the State did not meet the requisites of subsection F; nor did it seriously argue that it did. The State does contend that it complied with LSA-R.S. 15:585 and that, accordingly, the certified copy of defendant’s rap sheet was properly received as “prima facie proof of its contents and proper and accurate collection and custody.” We disagree. The introduction into evidence of the rap sheet clearly was not accompanied by the statutorily required signed specifications referenced in the statute. Accordingly, we find that no prima facie proof was established under the statute.

Jurisprudence has additionally provided that the necessary facts which permit enhanced punishment may be proved by other competent evidence. State v. Curtis, 338 So.2d 662 (La.1976). We find no such showing in this case. In an attempt to show that defendant was previously convicted in Missouri of a felony, the State introduced defendant’s rap sheet into evidence and had defendant fingerprinted in open court. The State also put on a latent fingerprint examiner who testified that the fingerprints made in court were the same as those accompanying defendant’s rap sheet.

However, as clearly shown from the record, defendant’s rap sheet contained no fingerprints from the alleged Missouri conviction. The State’s fingerprint examiner took the fingerprints made in court and compared them to a single set of defendant’s fingerprints from a prior arrest in Louisiana. The prior Louisiana arrest was not the basis for the habitual offender adjudication, rather, the alleged Missouri conviction was used. In fact, the State offered no fingerprints from the alleged Missouri conviction. The only item in the record that indicated that defendant had been convicted in Missouri was a line entry (without accompanying fingerprints) on defendant’s rap sheet. That entry merely showed that someone named Eddie Lee Johnson had been convicted of armed robbery in Missouri.

In State v. Curtis, supra, at 664, the Louisiana Supreme Court stated:

Various methods of proof to establish identity have been recognized. We do not consider that identity of name of defendant and the person previously convicted is sufficient evidence of identity. Identification of the accused may be by testimony of witnesses, by expert opinion as to the fingerprints of the accused when compared with those in the prison record introduced, or by photographs contained in the duly authenticated record. This court, in State v. Hardy, 174 La. 458, 141 So. 27 (1932), considered photographs attached to the certificate of the warden of the state penitentiary sufficient evidence in themselves of identification, without the evidence of fingerprints. In State v. Morris, 222 La. 480, 62 So.2d 649 (1952), the properly authenticated penitentiary records, together with photographs and fingerprints of the person imprisoned, were considered sufficient proof under La.R.S. 15:529.1, the court noting that defendant offered no testimony.

Accordingly, we find that the State has failed to meet its burden of proof under LSA-R.S. 15:529.1, and that this case miist be remanded. Defendant is not protected from being tried again under the Habitual Offender Law. See State v. Johnson, 432 So.2d 815 (La.1983).

For the reasons assigned, the ruling of the district court is reversed, defendant’s sentence is vacated, and the case is remanded to the trial court for resentencing in proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . LSA-R.S. 15:529.1, subsection F, reads as follows:
      The certificates of the warden or other chief officer of any state prison, or of the superintendent or other chief officer of any penitentiary of this state or any other state of the United States, or of any foreign country, or of any chief officer of any parish or county jail in this state or any other state of the United States, or of the clerk of court of the place of conviction in the state of Louisiana, under the seal of his office, if he has a seal, containing the name of the person imprisoned, the photograph, and the fingerprints of the person as they appear in the records of his office, a statement of the court in which a conviction was had, the date and time of sentence, length of time imprisoned, and date of discharge from prison or penitentiary, shall be prima facie evidence of the imprisonment and of the discharge of the person, either by a pardon or expiration of his sentence as the case may be under the conviction stated and set forth in the certificate.

      . LSA-R.S. 15:585: Admissibility of bureau records in evidence
      Any original record including fingerprints, pictures, photographs, other documents or data, or any copy thereof, when certified by the deputy secretary or his authorized representative, shall be admissible as evidence in all criminal cases in courts of this state. Any certified record, or copy thereof, received by the court shall be received as prima facie proof of its contents and proper and accurate collection and custody; provided, when the record is presented for admission into evidence it is accompanied by a statement signed by the deputy secretary or his authorized representative which specifies:
      (1) The date on which the record was received by bureau.
      (2) The agency of origin of each record.
      (3) The nature or type of record received and by what method of transfer.
      (4) The date the bureau compiles the record for the purpose of evidence.
      (5) The name of the bureau émployee who prepares the record for admission as evidence.

      .We note that the evidence presented herein by the state was practically identical to that presented at the original habitual offender adjudication, which was reversed by the Louisiana Supreme Court. See State v. Johnson, 432 So.2d 815 (La.1983). The original adjudication was reversed because defendant was compelled to testify as to his alleged prior Missouri conviction, in contravention of the Fifth Amendment of the United States Constitution and Article I, Section 16 of the Louisiana Constitution. However, as to the proof offered by the state in the original adjudication, we further note that the Louisiana Supreme Court stated twice in its opinion that there was no admissible evidence adduced by the state to prove that Johnson was the same person convicted in Missouri. State v. Johnson, 432 So.2d 815, at 815, 817.


author: CRAIN, Judge.

text:
    STATE of Louisiana v. David A. NEVELS.
    No. 84 KA 0211.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.

      Ossie Brown, Dist. Atty., District Attorney’s Office by Samera Abide, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Anne L. Jordan, Appellate Counsel, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before WATKINS, CRAIN and ALFORD, JJ.
   CRAIN, Judge.

Defendant, David Nevels, was charged by bill of information with felony theft, in violation of La.R.S. 14:67. The minutes indicate that at arraignment defendant was advised of his right to counsel and his right to court-appointed counsel in the event of indigency. Defendant advised the court he would obtain counsel and then entered a plea of not guilty to the charge. He was to return approximately six weeks later to name counsel. When defendant did not appear, a bench warrant was issued for his arrest. On September 12, 1983, defendant was present in court without counsel to answer the bench warrant. He was adjudged guilty of contempt of court, and the trial court deferred ruling until the trial date. On September 21, 1983, the trial date, the transcript shows that defendant was again present in court without counsel. After a Boykin examination, the trial court allowed defendant to withdraw his not guilty plea and plead guilty. Subsequently, on November 18, 1983, defendant, without the assistance of counsel, was sentenced to two years at hard labor. The trial court advised defendant of his right to appeal and his right to be represented by counsel for appellate purposes and his right to court-appointed counsel if indigent. Defendant requested the court to appoint an attorney. The Public Defender’s Office was appointed for appeal. Defendant appeals his conviction and sentence, alleging that the trial court erred in accepting an uncounselled guilty plea and in imposing an excessive sentence.

ASSIGNMENT OF ERROR NUMBER 1

Defendant contends that the trial court erred when it accepted his guilty plea without assistance of counsel. Specifically, he argues that the trial judge failed to adduce enough information to support the conclusion that defendant made a knowing and intelligent waiver of counsel. We agree and reverse defendant’s conviction.

The right to assistance of counsel is fundamental in our legal system and essential to insure a fair trial. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 2009, 32 L.Ed.2d 530 (1972), State v. LaFleur, 391 So.2d 445 (La.1980). At each stage of the proceedings, every person is entitled to assistance of counsel of his choice, or appointed by the court if he is indigent and charged with an offense punishable by imprisonment. La. Const, of 1974, art. 1 § 13. Absent a knowing and intelligent waiver of this right, no person may be imprisoned for any offense, whether classified as petty, misdemeanor or felony, unless he is represented by counsel at trial. Argersinger v. Hamlin, supra 92 S.Ct. at 2012; State v. LaFleur, supra.

Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation so that the record will establish that he knows what he is doing and his choice is made with eyes open. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975). In Faretta, the defendant clearly and unequivocally declared to the trial judge that he wanted to represent himself and did not want counsel. In upholding Faretta’s right to represent himself, the United States Supreme Court noted that the record affirmatively showed that “Faretta was literate, competent, and understanding, and that he was voluntarily exercising his informed free will.”

The Supreme Court in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), stated, “The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding the case, including the background, experience and conduct of the accused.”

The instant case is analogous to City of Monroe v. Wyrick, 393 So.2d 1273 (La.1981), in which the defendant pled guilty without counsel, in City Court to simple battery and was sentenced to six months in jail. In that case, the trial judge initially instructed all present in the courtroom that they had a right to representation and a court-appointed counsel if they could not afford to hire a lawyer. If they remained silent, he would assume arrangements were made or that they did not wish to be represented by counsel. Thereafter, when defendant was called and pled guilty the trial judge asked, “Do you enter a plea of guilty understanding your right to be represented by an attorney?” Defendant answered yes and no further questioning occurred; no attempt was made to ascertain whether defendant understood or appreciated the consequences of his action. The Louisiana Supreme Court found that the trial judge failed to adduce sufficient information in the record (emphasis theirs) to form a basis for his conclusion that defendant made a knowing and intelligent waiver of counsel. The mere failure to request counsel after instructions in the en masse address did not suffice to make the affirmative showing of waiver which is required. The court held that the single question to defendant did not conform to the Faretta standards and requirements. Furthermore, the court held that the personal knowledge of a judge before whom an accused appears, stated into the record, may not be substituted for the requirements of instruction as to right to counsel and a proper waiver of this right.

In the case sub judice the following colloquy took place between defendant and the trial judge at the Boykin examination:

THE COURT: You’re here today without an attorney. I know you’ve been advised of your right to counsel previously but I’m going to go through it again. You understand that you have the right to be represented by counsel. If you are indigent I would appoint the Office of the Public Defender to represent you free of charge. Do you understand that right to counsel and do you wish to plead guilty at this time without a lawyer?
MR. NEVELS: Yes, sir. I wish to plead guilty, yes, sir.

That question and answer is the total inquiry into defendant’s waiver of his right to counsel. From his answers, we are not even certain that defendant actually waived his right to counsel. In fact, most of the discussions with reference to counsel concerned whether defendant was going to retain counsel or whether the court was going to appoint counsel. As it turned out, neither was done. Moreover, with the exception of one question about defendant’s educational background, the record reflects no attempt to assess defendant’s literacy, competency, understanding and volition. In cases in which the record is devoid of an indication that the trial judge investigated these factors, the Louisiana Supreme Court has failed to conclude a waiver of counsel. State v. LaFleur, supra at 448; State v. Bell, 381 So.2d 393 (La.1980).

The constitutional right to be represented by counsel invokes the protection of the trial court. In Johnson v. Zerbst, supra, the United States Supreme Court stated:

This protecting duty imposes the Serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record. 58 S.Ct. at 1023.

Therefore, since the record does not support a showing that defendant made a knowing and intelligent waiver of his right to counsel, we find reversible error.

Inasmuch as we find reversible error on the basis of defendant’s first assignment of error, we pretermit discussion of his remaining assignment of error.

For the foregoing reasons, we hold that defendant’s conviction and sentence must be reversed, and the case remanded to the trial court for further action consistent with the views expressed in this opinion.

REVERSED AND REMANDED.

      . The minutes reflect the statement made that the defendant was found guilty of contempt, but the trial court deferred ruling until trial date. It appears that sentence would have been deferred under these circumstances. However, the minutes further reflect that on the date of trial defendant was adjudged not guilty of contempt. We cannot reconcile the minutes, but the contempt issue is not before us.

      . The court’s opinion included the en masse address and colloquy between the defendant and the trial judge:
      “Everyone knows these days, but I'll just mention it again, that you have the right to be represented by an attorney. If you're too poor to hire a lawyer, you may be entitled to the Court appointment of one. If you want me to consider the appointment of a lawyer in your case, let me know of your desire here today. If you remain silent about the attorney, I’ll assume that you've made your own arrangements or that you don’t care to be represented by one. This is what it all pretty much summarizes down to.”
      Thereafter the defendant’s name was called and the following colloquy took place between the trial judge and the defendant:
      "Mrs. Hendrix: Kenneth Wyrick.
      BY THE COURT: You're charged with committing a battery on Lisa Jacobs. How do you plead.
      Mr. Wyrick: Guilty.
      BY THE COURT: Do you enter a plea of guilty understanding your right to be represented by an attorney?
      Mr. Wyrick: Yes sir.”
      No further questioning occurred; there was no additional attempt to ascertain whether defendant understood or appreciated the consequences of his action.


author: SHORTESS, Judge.

text:
    STATE of Louisiana v. Joseph P. CHAISSON.
    No. 84 KW 0259.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.

      Alexander Doyle, Asst. Dist. Atty., Hou-ma, for State.
    Jackie M. Marve, Houma, for Joseph P. Chaisson.
    Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   SHORTESS, Judge.

We granted a writ of certiorari in this case because of our concern that La.R.S. 56:330 was in direct conflict with Article I, § 11 of the Louisiana Constitution.

Joseph P. Chaisson (defendant) was charged on July 2, 1983, with violating La.R.S. 56:330 because at approximately 12:38 a.m. that same day in the Ninth Ward of Terrebonne Parish he unlawfully and intentionally had in his possession a .357 Smith and Wesson firearm while hunting frogs. Defendant filed a motion to quash, arguing that the statute under which he was charged was unconstitutional because it was in direct conflict with the Louisiana Constitution. The motion to quash was denied, and the matter proceeded to trial. At that time defendant withdrew his plea of “not guilty” and entered a plea of “nolo contendere,” specifically reserving his right to have an appellate court judicially review the denial of his motion to quash. State v. Crosby, 338 So.2d 584 (La.1976). He was found guilty and fined $75.00 plus court costs. Payment of the fine was suspended for thirty days after appellate review was final.

We granted defendant’s application for writs and ordered the record transmitted to us on or before the 1st day of June, 1984, and the City Court of Houma and the State of Louisiana were ordered to show cause why the relief sought by defendant should not be granted. Respondents have not responded in any fashion to our order.

The statute under which defendant was charged and convicted, La.R.S. 56:330, provides as follows:

Frogs may be taken with the aid of a jacklight or any other visible light and by means of mechanical devices known as frog catchers. A person is also permitted to take frogs with device's that puncture the skin such as gigs and spears. No person shall carry or have in his possession any shotgun, rifle, or firearm while taking or hunting frogs during the nighttime. A person may take any species of small frogs known variously as greenfrogs, grassfrogs, leo-pardfrogs, springfrogs, etc., for scientific, educational, or for propagating purposes regardless of size, but not for food or sale.

(Underlining added.)

Defendant argues that the underlined portion of this statute purports to charge an offense which is in direct conflict with Article I, § 11 of the Louisiana Constitution, which provides as follows:

The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person.

Defendant’s argument has merit, and we find that said statute does indeed conflict with our Constitution and is unconstitutional. The prohibition against simple possession of a firearm while frogging bears no rational relationship to any legitimate State interest in protecting its natural resources. Had the statute prohibited the use of a firearm, then perhaps a different case would be presented because a valid exercise of the State’s police power might be to protect its natural resources from destruction by persons using firearms.

Neither do we find the challenged provision to be a manifestation of a State intent to protect frog hunters from themselves or other froggers. The prohibition is lodged in the statute between two provisions which prescribe the accepted method of taking frogs and the types of frogs and purposes for which they may be taken. We must conclude that the firearm provision, following as it does on the heels of the “gigs and spears” provision, was intended by the Legislature only to prevent the presence of firearms which might be used for the taking of frogs. The firearm provision we face is too broad to constitutionally accomplish this purpose, and nowhere in the statute do we find an indication that it is meant to protect human life.

We also note that Article 1, § 11 of the 1974 Louisiana Constitution differs from Article 1, § 8 of our 1922 Constitution and the Second Amendment of the U.S. Constitution relative to the right to keep and bear arms. Both of these constitutions speak of the right to keep and bear arms to support the militia. Our present Constitution, however, which in its preamble strengthens rights of individual citizens, makes no reference to a militia. It protects the right of each citizen to keep and bear arms, setting out that right in absolute terms, subject only to the proviso that the Legislature maintains the authority to prohibit and regulate firearms concealed on a person. This case presents a clear illustration of the reasoning behind the broad constitutional provision. A nighttime hunter in pursuit of frogs could be attacked by poisonous snakes, alligators or other predators and needs to protect himself.

DECREE

For the foregoing reasons, the judgment of the trial court denying defendant’s motion to quash is reversed. Defendant’s conviction and fine are vacated, annulled and set aside.

REVERSED.


text:
    STATE of Louisiana v. Claudia JOHNSON.
    No. 84 KA 0287.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.

      Ossie Brown, Dist. Atty. by Brett Gray-son, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Anne L. Jordan, Appellate Counsel, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before WATKINS, CRAIN and ALFORD, JJ.
   WATKINS, Judge.

Claudia Johnson was charged by a single bill of information with three counts of forgery in violation of LSA-R.S. 14:72. Defendant withdrew her original plea of not guilty, pleaded guilty as charged to each count and was subsequently sentenced to a term of five years imprisonment in the custody of the Department of Corrections on each count to run concurrently.

The record reveals that during the period from September 23, 1982 through December 1, 1982, two checks bearing forged drawer signatures and one check bearing a forged endorsement were presented and deposited into a savings account belonging to Claudia Johnson; the funds were thereafter withdrawn. The aggregate total of the three instruments was $600.00.

In bringing this appeal, defendant urges as her sole assignment of error that the sentence imposed was excessive in violation of Art. 1, § 20, LA. Const, of 1974.

The standard of review to be exercised by an appellate court is circumscribed by rather narrow limits. A trial judge has wide discretion to impose a sentence within statutory limits. State v. Sepulvado, 367 So.2d 762 (La.1979). In the absence of manifest abuse of discretion, the sentences imposed will not be set aside as excessive. State v. Lanclos, 419 So.2d 475 (La.1982).

Generally, a sentence is considered excessive if it is grossly disproportionate to the severity of the crime or is nothing more than the needless imposition of pain and suffering. State v. Thomas, 432 So.2d 325 (La.App. 1st Cir.1983). A sentence is considered grossly disproportionate if one’s sense of justice is shocked when comparing the punishment in light of the harm done to society. Id. at 327.

The maximum sentence which defendant could have received under LSA-R.S. 14:72 is imprisonment with or without hard labor for not more than ten years, a fine of not more than five thousand dollars, or both, on each count.

The record in this case reflects that the trial judge ordered a presentence investigation report and adequately considered the sentencing guidelines of LSA-C.Cr.P. art. 894.1. In pronouncing sentence the court noted that defendant had been convicted of similar charges in the past, and a less severe sentence would probably result in the commission of similar offenses in the future.

The defendant argues failure of the trial judge to articulate every mitigating factor enumerated in art. 894.1, but not even one of the mitigating factors is urged as being applicable in the instant case.

Although the defendant is young, the record reveals that she has an extensive juvenile history of delinquency and was on probation on similar charges when the instant offenses were committed.

We cannot say that the sentence imposed is excessive under the circumstances. We find that the trial judge fully considered the range of sentencing alternatives and individualized the sentence to the particular defendant for the particular crime involved.

The assignment of error is without merit.

The conviction and sentence are affirmed.

AFFIRMED.

      . The LA. Const, of 1974, Art. 1, § 20 provides that no law shall subject a person to "... cruel, excessive, or unusual punishment."

      . The trial judge need not articulate every aggravating and mitigating circumstance to comply with guidelines of LSA-C.Cr.P. art. 894.1. State v. Grey, 408 So.2d 1239 (La.1982).


author: CARTER, Judge.

text:
    STATE of Louisiana v. Charles PERRY.
    No. 84 KA 0289, 84 KA 0290.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.
    Ossie Brown, Dist. Atty. by Brett Gray-son, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Anne L. Jordan, Appellate Counsel, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before COLE, CARTER and LANIER, JJ.
   CARTER, Judge.

Charles Perry was charged by grand jury indictment with second degree murder in violation of LSA-R.S. 14:30.1. After trial by jury, he was found guilty of the responsive verdict of manslaughter in violation of LSA-R.S. 14:31. Perry was adjudged to be a second habitual offender pursuant to LSA-R.S. 15:529.1 and was sentenced to serve 21 years in the custody of the Department of Corrections.

Defendant appeals his conviction and sentence assigning six assignments of error. Since assignments of error nos. 1, 2, 3 and 6 were not briefed on appeal, they are therefore considered abandoned. Uniform Rules — Courts of Appeal, Rule 2-12.4.

In assignments of error nos. 4 and 5, defendant argues that the trial judge failed to comply with the provisions of LSA-C. Cr.P. art. 894.1 in that the sentence is excessive.

FACTS

The evidence adduced at trial indicates that on the evening of July 31, 1982, defendant left the house in which he was living and approached a group of people standing in the street. Apparently there had been some controversy over defendant’s “lady friend,” and defendant exchanged words with two of the men in the group, Reginald Wright and Sam Guy. Defendant went to his home, got a knife and returned and stabbed Sam Guy in the arm whereupon Guy immediately left the scene. Defendant then stabbed Reginald Wright in the chest, and Wright subsequently died on August 17, 1982, of the injuries sustained.

ASSIGNMENT OF ERROR NO. 4

In Assignment of Error No. 4, defendant contends that the trial court failed to properly follow the guidelines of LSA-C.Cr.P. art. 894.1. Defendant contends that the court considered defendant’s criminal record in imposing sentence but did not sufficiently consider the mitigating factors listed in LSA-C.Cr.P. art. 894.1.

The trial judge is required to state for the record the considerations taken into account by him and the factual basis therefor when imposing sentence. However, he need not set forth all the factors listed in the statute to which he accorded some weight. State v. Flowers, 441 So.2d 1288 (La.App. 1st Cir.1983). Further, when a trial judge recites some of the 894.1 factors such as defendant’s lengthy criminal record or the risk that defendant would commit other crimes, a factual basis for the sentence is present and it is not necessary for the trial judge to enumerate each factor under the article. State v. Burns, 441 So.2d 1294 (La.App. 1st Cir.1983), writ denied, 444 So.2d 1242 (La.1984). The trial court sufficiently articulated its reasons for imposition of the sentence.

The trial judge placed great weight on defendant’s prior record and the seriousness of the crime for which he was convicted. He felt that defendant’s prior record and the seriousness of the crime outweighed any mitigating factors that may be in his favor. The court has sufficiently articulated its reasons for the imposition of the sentence, and this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 5

In this assignment of error, defendant contends that the trial court imposed an excessive sentence.

A majority of the Louisiana Supreme Court has held that Article I, Section 20 of the Louisiana Constitution of 1974 prohibits the imposition by law of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant’s constitutional right against excessive punishment and is subject to appellate review. State v. Sepulvado, 367 So.2d 762 (La.1979). The trial judge is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Shields, 444 So.2d 287 (La.App. 1st Cir.1983), writ denied 446 So.2d 312 (La.1984).

The authorized sentence for a defendant convicted of manslaughter as a second felony offense is imprisonment at hard labor for not less than seven years nor more than forty-two years. LSA-R.S. 14:31; LSA-R.S. 15:529.1. The sentence imposed in the present case of twenty-one years is one-half the maximum sentence that defendant could have received. The record does not support defendant’s claim of an excessive sentence. The trial judge noted defendant’s recurrent involvement in criminal activity, the seriousness of the offense for which defendant was convicted, and the risk of additional criminal activity by defendant. The trial judge also noted several prior violations of probation and in one case defendant even absconded from supervision. At the time the present offense occurred, the defendant was on probation from a prior conviction. Considering all of the above, we cannot say that the sentence imposed by the trial court is an abuse of the much discretion afforded to him, and accordingly, the sentence imposed is affirmed.

AFFIRMED.

      . The grand jury indictment for second degree murder identified defendant as Charles Perry. The bill of information for the habitual offender charge identified the defendant as Charles Perry, Jr. In testifying, defendant identified himself as Charles Perry, Jr. Apparently, defendant is referred to both as Charles Perry and Charles Perry, Jr.

      . The trial judge gave the following reasons for imposition of the sentence:
      All right, pursuant to your being — uh—adjudged an habitual offender, Mr. Perry, because of your previous record, which consists, as a juvenile, you were arrested on September the 12th, 1971, by Baton Rouge City Police Department, charged with aggravated battery. The charges were dismissed at the request of the victim therein. You were rearrested on April the 4th of 1973, and charged with burglary and theft. You were placed on probation. And, you were, again, arrested on August the 22nd, 1974, and charged with felony theft. You were counseled and warned pursuant to that — uh—arrest as a juvenile. As an adult you were charged with two counts of simple burglary and you spent one year in parish prison and placed on three years of probation on December the 9th, 1977. Uh— you were — you had absconded from supervision. And, on January the 10th of 1980, a warrant was issued for your arrest. You were arrested in San Francisco, California, for felony robbery on November the 14th of 1980, and returned to Baton Rouge. There were other charges, at this time, pending — uh— DWI, West Baton Rouge Parish and some other — uh—minor misdemeanors. And, you were terminated from your probation as unsatisfactory. You were rearrested for simply burglary on October the 24th of 1981, and placed on three years of probation by the Sixteenth Judicial District Court in St. Mary Parish. You were released from jail on January the 24th of 1982, and you failed to report to probation and parole. And, you absconded again from supervision on your probation. You were — uh—a preliminary hearing was held on October — uh—September the 1st of 1982, pursuant to your probation violations. And, on you (sic) own admissions probable cause was established that you violated your conditions under that probation. And, then, you were arrested and convicted for the sentence herein or — uh—the penalty herein, crime herein. And, convicted by a jury after being tried for second degree murder for manslaughter. The — uh—jury’s decision with regard to this particular matter was, in this court's opinion, appropriate — uh—since you did — uh—kill, take the life of another human without being justified to do so. And, pursuant to Article 894.1, the fact that you were on probation when this offense occurred, there is a strong undue risk that additional criminal activity would take place if you were placed on probation, which is not even appropriate under the law. That you are in need of correctional treatment in a custodial environment that can be provided most effectively by your commitment to an institution. And, obviously, a lesser sentence would depricate the seriousness of your — the defendant’s crime herein, since another life was taken — a human life was taken. The other mitigating factors listed in the guidelines pursuant to Article 894.1 has been considered by this court but in light of your previous record and the seriousness of this particular crime, Mr. Perry, I do not feel that they are appropriate and should not be entered in the court’s decision insofar as the sentence is concerned.

      . See State v. Lewis, 430 So.2d 1286 (La.App. 1st Cir.1983), writ denied 435 So.2d 433 (La.1983) and concurring opinion therein.


author: COLE, Judge.

text:
    STATE of Louisiana v. Rayfield BANKS. (2 Cases)
    Nos. KA 84 0296, KA 84 0297.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.

      Ossie Brown, Dist. Atty. by Ernest Smithling, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Anne L. Jordan, Appellate Counsel, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before COLE, CARTER and LANIER, JJ.
   COLE, Judge.

The issues presented in this case are whether the trial court erred in denying defendant’s motion to withdraw his guilty plea and whether the sentences imposed upon defendant are excessive.

Defendant, Rayfield Banks, was charged by separate bills of information with forgery and felony theft in violation of La.R.S. 14:72 and R.S. 14:67, respectively. Following a Boykin examination on April 22, 1982, the trial court allowed defendant to withdraw his previous pleas and accepted pleas of guilty to forgery and attempted felony theft.

Defendant failed to appear for sentencing for approximately seventeen months. He finally appeared in court with counsel on November 14, 1983. At that time he moved to withdraw his guilty pleas, claiming he had pled guilty to attempted forgery rather than forgery and that he had pled guilty pursuant to a plea bargain of which the trial court was unaware. Defense counsel also moved to withdraw as counsel of record at this time. The trial court denied both motions. Defendant was then sentenced to ten years at hard labor for forgery and one year in parish prison for attempted felony theft, both sentences to run concurrently. Defendant filed and was granted an out-of-time appeal in which he raises the above noted issues.

Initially, we note defendant’s out-of-time appeal was not timely perfected. Defendant’s December 9, 1983 motion for an out-of-time appeal was filed in the trial court after appeal delays had already lapsed. Code Crim.P. art. 914. The trial court was thus without jurisdiction to grant an appeal to defendant upon ex parte motion. State v. Davis, 457 So.2d 848 (La. App. 1st Cir.1984). However, we do not find it necessary at this time to dismiss this appeal as improperly granted, but prefer to treat this motion as an application for post conviction relief. La.Code Crim.P. arts. 924, 924.1; State v. Dorsey, 447 So.2d 636 (La.App. 1st Cir.1984). We will, therefore, treat defendant’s motion as an application for post conviction relief. State v. Davis, supra.

Defendant contends the trial court erred in denying his motion to withdraw his guilty plea to the charge of forgery. Specifically, defendant argues he believed a plea bargain had been made as to the forgery count, but realized at the sentencing hearing his attorney had not made such an agreement. He also argues the trial court was arbitrary in refusing to grant a hearing on his motion.

Whenever a guilty plea rests in any significant degree on an agreement or promise by the prosecutor so that it can be viewed as part of the inducement or consideration, such promise must be fulfilled, State v. Bosworth, 415 So.2d 912, 927 (La.1982), on rehearing, or the defendant given an opportunity to withdraw the plea, State v. Lockwood, 399 So.2d 190, 193 (La.1981).

La.Code Crim.P. art. 559 provides in pertinent part “the court may permit a plea of guilty to be withdrawn at any time before sentence.” Discretion to permit the withdrawal of a guilty plea is vested in the trial judge and défendant may not withdraw a guilty plea simply because the sentence to be imposed is heavier than anticipated. State v. Deakle, 372 So.2d 1221 (La.1979). It is not unreasonable for a trial judge to deny defendant the luxury of gambling on his sentence, then withdrawing his plea if and when he discovers, before imposition the sentence is not to his liking. State v. Deakle, Id.

The record does not reveal the existence of any plea bargain in the present case. Defendant claims he pled guilty upon his attorney’s advice that a plea bargain was possible and only realized at the sentencing hearing a plea agreement had not been made. There is no evidence, nor does defendant allege, he pled guilty on the basis of an actual plea bargain with the State or a justifiable belief that such a bargain with the State actually existed. Rather, defendant only alleges he pled guilty on his attorney’s advice. He does not even make specific allegations regarding the contents of the agreement, if any, his attorney allegedly hoped to make, other than his belief that his maximum sentence would be one year. Accordingly, for the above reasons and particularly in view of the fact that the district attorney’s office was clearly in no way involved in this alleged agreement, we find no abuse of discretion in the trial court’s denial of defendant’s motion. We do note, however, that in ruling on defendant’s motion the trial court stated it was unable to look beyond the Boykinization. This statement is erroneous. The trial court could have ordered an evidentiary hearing. See e.g., State v. Andrasi, 343 So.2d 175 (La.1977). However, defendant did not request a hearing at the time and only now, in brief, argues as error the trial court’s failure to grant a hearing. In any event, we conclude there was no need for an evidentiary hearing in the present case. The trial court was correct in its ruling, particularly since defendant does not now assert what evidence he could present at a hearing which would possibly alter the correctness of the trial court’s decision. See State v. Lockwood, supra.

Defendant also contends the trial court erred in imposing an excessive sentence. Specifically, he argues the trial court failed tó adequately comply with the guidelines of La.Code Crim.P. art. 894.1.

La.Code Crim.P. art. 894.1 requires the trial court to weigh both aggravating and mitigating circumstances in determining whether or not to impose incarceration. While the trial court is not required to articulate every such circumstance in imposing sentence, the record must reveal adequate consideration of the guidelines enumerated in art. 894.1. State v. Collins, 448 So.2d 260 (La.App. 1st Cir.1984).

The trial court complied sufficiently with La.Code Crim.P. art. 894.1 in the present ease. In pronouncing sentence the court cited in particular defendant’s lengthy criminal record, his need for correctional treatment in a custodial environment and the lack of mitigating factors.

Wide discretion is given the trial judge in the imposition of a sentence within the applicable statutory limits. In the absence of manifest abuse, a sentence will not be set aside as excessive. State v. Wroten, 433 So.2d 249 (La.App. 1st Cir.), writ denied, 440 So.2d 731 (La.1983). In light of the reasons given by the trial court and the facts present, particularly defendant’s extensive criminal record and his failure to show up for sentencing for a period of 17 months, we find no abuse of discretion in the sentences imposed.

For the above reasons, we dismiss defendant’s application for post conviction relief.

APPLICATION DISMISSED.

      . Defendant contended at the sentencing hearing he had pled guilty to attempted forgery rather than to forgery. The trial court found, and correctly so, the transcript of the Boykinization clearly does not support this contention.