author: SEXTON, Judge.

text:
    STATE of Louisiana, Appellee, v. Randy D. THARPE, Appellant.
    No. 16243-KA, 16244-KW.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1984.
    Rehearing Denied Nov. 29, 1984.
    Writ Denied Feb. 8, 1985.

      Norris & Placke by Allan L. Placke, West Monroe, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Johnny Parkerson, Dist. Atty., Robert S. Kennedy, Jr., Asst. Dist. Atty., Monroe, for appellee.
    Before HALL, FRED W. JONES, Jr. and SEXTON, JJ.
   SEXTON, Judge.

Randy D. Tharpe appeals his convictions and sentence for driving in violation of a habitual offender judgment and - reckless driving. These two separate causes are herein consolidated in this appeal. We affirm.

The salient facts follow. Deputy Paul Benjamin testified that while he was on routine patrol in West Monroe, Louisiana, on April 5, 1983, between 8:00 and 11:00 p.m., he stopped in the parking lot of the Tango Lounge. The proprietor, Mr. Russel Crabtree, approached the deputy and asked him if he knew Ronnie Metcalf and Randy Tharpe. The deputy stated that he knew Metcalf but did not know Tharpe. Crab-tree explained that he had had trouble with the pair earlier in the evening and did not want them to come back to his establishment. He described the vehicle in which Metcalf and Tharpe had left the lounge.

Later in the evening, the officer passed another lounge and saw the previously described vehicle parked outside. The deputy travelled down the highway a short distance, turned around and came back toward the parking area. As he did so, he observed the pickup truck leave the lot, squealing its tires and fishtailing slightly. The officer followed the truck and saw it run off the road approximately a foot onto the shoulder on two occasions. At this point, the officer pulled the truck over. The defendant was driving and Ronnie Met-calf was his passenger.

The defendant was unable to produce a valid driver’s license but gave the officer an expired license. A check of the license number through the computer revealed that Tharpe had been adjudged a habitual offender and that his driver’s license had been revoked. He was arrested for driving under revocation.

The defendant was subsequently charged in separate bills of information with a violation of LSA-R.S. 32:1480, the operation of a motor vehicle after having been determined to be a habitual motor vehicle offender, and with reckless driving in violation of LSA-R.S. 14:99. After the denial of motions to quash and suppress, and a subsequent guilty verdict on both offenses, the defendant appealed, asserting six assignments of error. The defendant was sentenced to one year in jail on the habitual offender charge and was sentenced to pay a fine of $100 and costs, or in default thereof, to serve thirty days on the reckless driving charge.

Assignments of Error Nos. 2 and 5

Assignment of Error No. 2 presents the threshold issue in this appeal. In this assignment the defendant complains of the denial of his motion to suppress all evidence in the case, asserting that the initial stop which led to his convictions was without probable cause.

Assignment No. 5 is related in that the defense therein contends that under the analysis required by Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), there was insufficient evidence to prove his guilt beyond a reasonable doubt of the offense of reckless driving.

As to Assignment No. 2, we have no doubt that the officers were justified in stopping this defendant. In this case the officer had a report of difficulty in a lounge caused by this defendant and another individual and had been given a description of their vehicle. Subsequently, the officer saw the described vehicle in the parking lot of another lounge. The officer observed this vehicle to fishtail and squeal its tires as it exited that parking lot. After the vehicle was observed to leave the roadway twice, the officer turned on his light and siren and stopped it, which lead to the defendant’s arrest. Under these circumstances at least an investigatory stop, requiring something less than probable cause, but necessitating the officer to have an articulable knowledge of sufficient facts to reasonably suspect the detained person of criminal activity, was warranted. State v. Edsall, 385 So.2d 207 (La.1980). We thus find no merit to Assignment No. 2.

However, a more difficult question is presented with respect to Assignment No. 5 which questions the sufficiency of evidence used to determine the defendant’s guilt on the charge of reckless operation. Of course, our standard is whether the evidence, when viewed in the light most favorable to the prosecution, is sufficient for the trier of fact to have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, supra. Criminal negligence is an essential element of the crime of reckless operation. City of Shreveport v. Baylock, 107 So.2d 419 (La.1958). Criminal negligence is conduct amounting to a gross deviation below the standard of care expected to be maintained by a reasonably careful person under like circumstances. LSA-R.S. 14:12.

As we noted, the previous complaint to the officer in this cause together with the defendant’s action in fishtailing and driving off the road on two occasions was at least sufficient for an investigatory stop. The question here, then, is whether the spinning and accelerating of the tires together with the fishtailing upon the exit of the premises coupled with driving off the right side of the road on two occasions closely attenuated in time is sufficient evidence of criminal negligence to sustain this conviction.

In State ex rel. Palermo v. Hawsey, 377 So.2d 338 (La.1979), the Supreme Court held that the act of one “accelerating, spinning his tires” and “still accelerating” was insufficient evidence of careless and reckless driving to amount to probable cause to arrest for that offense — thus sustaining a motion to suppress and reversing a defendant’s conviction of possession of dangerous drugs which resulted from the stop. We find, however, that State ex rel. Palermo is of limited guidance. That opinion arguably assists the defendant here in that it found that the activity complained of in that case did not even amount to probable cause. On the other hand, it was rendered as a per curiam, was decided by a four to three margin, and apparently involved less deviant behavior than the ease at bar.

All of the factors in this case considered, we are narrowly of the opinion that, when viewed in the light most favorable to the prosecution, the actions witnessed by the officer are sufficient to sustain this conviction.

Assignments of Error Nos. 1, 3, ⅛ and 6

All of these assignments deal with the issue of whether this defendant can properly be convicted of driving subsequent to a motor vehicle habitual offender judgment.

Assignment No. 1 contends that the trial court committed error in failing to sustain defendant’s motion to quash which asserted the inadequacy of the predicate convictions used to adjudicate the defendant as a multiple offender.

Assignment No. 3 complains of the failure of the trial court to allow evidence from the defendant during the trial itself of the inadequacy of the underlying convictions. It is obviously an effort to preserve appellant’s position in this regard should an appellate court determine that a motion to quash is an inappropriate means to challenge the underlying convictions.

Assignment No. 4 complains that insufficient evidence was presented as a matter of law concerning the predicate convictions because they were unconstitutionally obtained.

Assignment No. 6 contends that because the underlying convictions are constitutionally infirm, defendant’s sentence is therefore unconstitutional.

These assignments are all obviously in-terelated and will be discussed jointly as they present the sole issue of whether the defendant may collaterally attack the predicate convictions underlying the motor vehicle habitual offender judgment which he was charged with violating.

The defendant’s habitual offender judgment was rendered on March 31, 1982. The judgment prohibited the defendant from driving upon the roads, streets and highways of this state for a period of five years. The convictions upon which the judgment was based are: (1) DWI on March 22, 1979; (2) DWI, on May 22, 1979; and (3) DWI — 2nd offense and driving under revocation on January 7, 1982. He seeks to attack the January 7, 1982 convictions, complaining that he was effectively denied his right to counsel and was not properly Boykinized before his guilty pleas were accepted.

The issue of whether predicate convictions may be attacked after the violation of a habitual offender judgment is res nova in Louisiana. In State v. Moore, 420 So.2d 1099 (La.1982), the Court granted writs to consider the issue but the matter was rendered moot upon the defendant’s subsequent guilty plea without reservation of his right to appellate review. In State v. Woodard, 387 So.2d 1066 (La.1980), the Court declined to address the defendant’s complaint that he was unrepresented by counsel at a previous guilty plea because the record did not factually support his claim.

The defendant was unrepresented by counsel at his January 7, 1982 conviction. The record reflects that the defendant asked for appointment of counsel but the trial court denied the request, considering it “tardy.” Further, the State stipulated that the three right articulation rule of Boykin was not met when the challenged pleas were accepted. The issue, then, of whether a collateral attack on a predicate conviction may be made during proceedings for violation of a habitual offender judgment is properly framed and before this Court for decision.

The jurisprudence is that the defendant may not collaterally attack predicate convictions during the proceedings which lead to a habitual offender judgment. State v. Love, 312 So.2d 675 (La.App. 2d Cir.1975). The rationale supporting this decision is that the lack of constitutional safeguards do not completely invalidate an uncounseled misdemeanor conviction. Only the loss of liberty or imprisonment which results from the conviction is invalid; consequential civil disabilities are not. As the proceeding to declare a person a habitual offender is a civil proceeding by which defendant’s liberty is not threatened, no attack on predicate offenses may be heard.

However, proceedings for violating the prohibition against driving after a habitual offender adjudication has been rendered are criminal in nature. State v. Bates, 391 So.2d 1164 (La.1980). Indeed, LSA-R.S. 32:1480 provides that any person found to be a habitual offender who is thereafter convicted of operating a motor vehicle in violation of that judgment shall be punished by imprisonment for not less than one year nor more than five years.

In succinct terms, the defendant has suffered civil disability as a result of an unconstitutional conviction. Our jurisprudence, State v. Love, supra, finds no constitutional infirmity in such a procedure, holding that “only the loss of liberty or imprisonment resulting from the conviction is invalid.” On the other hand, it has been held that such a conviction in derogation of a defendant’s rights under Boykin may not be used as the basis for finding the defendant guilty as a second offender. For example, when the defendant is charged with driving while intoxicated, second offense. State v. Jones, 404 So.2d 1192 (La.1981).

Our review of the genesis of the right to counsel in misdemeanor offenses, Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), causes us to reject appellant’s position here. In our view, the crux of that decision is contained in the following passage:

Under the rule we announce today, every judge will know when the trial of a misdemeanor starts that no imprisonment may be imposed, even though local law permits it, unless the accused is represented by counsel. He will have a measure of seriousness in gravity of the offense and therefore know when to name a lawyer to represent the accused before the trial starts.
The run of misdemeanors will not be affected by today’s ruling. But in those that end up in the actual deprivation of a person’s liberty, the accused will receive the benefit of “the guiding hand of counsel” so necessary when one’s liberty is in jeopardy. Argersinger, supra, 92 S.Ct. at p. 2014.

This passage emphasizes that Argersinger affects only the case at hand when it is possible that the. same proceeding could result in the deprivation of the person’s liberty. In a prosecution for DWI-2nd, for example, the defendant’s first offense conviction is an element of the offense of DWI-2nd and therefore must be proven by the state beyond a reasonable doubt. However, in the prosecution at hand, the defendant’s status has been previously adjudged under a specific procedure established in our law. The offenses leading to that previous adjudication are not an element of the offense with which the defendant has been charged. We thus see a distinction between a situation where an improperly obtained conviction is one of the elements of the offense charged, and the circumstances of the instant case.

In this case, the predicate convictions are not an element of the state’s proof. The defendant had been previously adjudged, because of a serious driving record, to have forfeited his privilege to operate a motor vehicle on the highways of this state. Thus, the question at issue in this cause is created by the defendant’s unilateral determination to violate the previously imposed civil disability. We believe the nexus between the convictions complained of and appellant’s ultimate imprisonment to have been broken by his unilateral determination that he was entitled to drive without a valid license. See Whorley v. Brillhart, 373 F.Supp. 83 (1974) for a similar federal holding.

Therefore, we hold that one found to be a habitual motor vehicle offender and subsequently charged under LSA-R.S. 32:1480, may not collaterally attack the predicate convictions leading to the habitual offender status in the criminal proceedings charging him with a violation of that status. For the above reasons, defendant’s convictions and sentences for driving in violation of a habitual offender judgment and for reckless operation of a motor vehicle are affirmed.

AFFIRMED.

      . However, the Third Circuit has indicated in obiter dictum that a defendant may raise his constitutional rights as a defense to a further criminal proceeding under LSA-R.S. 32:1481. State v. Free, 321 So.2d 50 (La.App. 3rd Cir. 1975).


source: Caselaw Access Project

author: JASPER E. JONES, Judge.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Jimmy Ray BERRY, Appellant.
    No. 16395-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1984.
    Randal Fish, Bossier City, and J. Spencer Hays, Benton, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Henry N. Brown, Jr., Dist. Atty., A.L. Blondeau, Asst. Dist. Atty., Benton, for appellee.
    Before JASPER E. JONES, SEXTON and NORRIS, JJ.
   JASPER E. JONES, Judge.

The defendant, Jimmy Ray Berry, was charged by bill of information with forcible rape in violation of LSA-R.S. 14:42.1 and aggravated burglary in violation of LSA-R.S. 14:60. He was tried by a jury and found guilty on both charges. He subsequently pled guilty to a multiple offender bill under LSA-R.S. 15:529.1 and was sentenced to sixty years at hard labor on the forcible rape charge with four years to be without benefit of probation, parole or suspension of sentence and to fifty years at hard labor on the burglary charge. The sentences were ordered to run concurrently. Defendant appeals his convictions and sentences relying on two assignments of error. We affirm.

Facts

The defendant was charged with these offenses because he broke into the home of a 67 year old arthritic woman who was also suffering from Parkinson’s disease and raped her. Defendant was armed with a “Buck” knife and he threatened to kill the victim if she screamed or did not cooperate. Defendant was intoxicated at the time and went to sleep in the victim’s bed after raping her. The victim, who is a semi-invalid because of her medical problems, went to a neighbor’s home and told Natalie Ochoa and Michael Ritter, who were babysitting for the neighbor, what happened to her. The police were called and defendant was arrested while asleep in the victim’s bed.

Assignment # 1

By this assignment defendant contends the trial court erred in permitting Ritter and Ms. Ochoa to relate the statements made by the victim when she arrived at the neighbor’s home. These witnesses testified the victim told them she had been raped by the defendant who had a knife.

The Louisiana Supreme Court has long recognized an exception to the hearsay rule permitting those who hear the early complaints of a rape victim to relate in court these declarations made by the victim. State v. Middlebrooks, 409 So.2d 588 (La.1982). In some cases the court states the victim’s statements made following the rape are admissible under the res gestae exception. State v. Adams, 394 So.2d 1204 (La.1981); State v. Brown, 302 So.2d 290 (La.1974). In other cases the court implies there is a separate “early complaints of a rape victim” exception to the hearsay rule. State v. Hatcher, 372 So.2d 1024 (La.1979); State v. Elzie, 351 So.2d 1174 (La.1977). In order for such testimony to be admissible there must be no unexplained lapse of time between the rape and the victim’s complaint and the utterance must be spontaneous. State v. Middlebrooks, supra; State v. Elzie, supra.

Defendant argues the complained of testimony was inadmissible because there was no showing made of the time which elapsed between the rape and the complaint. This argument is not supported by the record. The victim went to the neighbor’s home which was only a few feet from the victim’s home and told Ritter and Ms. Ochoa what happened as soon as possible after defendant went to sleep.

Defendant also argues the complaint was not spontaneous. We assume he is complaining that Ritter and Ms. Ochoa elicited the fact the victim was raped by means of question and answer rather than by the victim giving a narrative of what happened. In State v. Elzie, supra, a neighbor’s testimony as to what the victim told her was held to be admissible where the neighbor learned that the victim had been raped by asking her questions. The record in the instant case indicates that because of the victim’s medical problems, she is incapable of giving a coherent sustained narrative of events.

This assignment of error lacks merit.

Assignment # 2

By this assignment defendant contends the sentences imposed are excessive.

The sentences imposed are well within the statutory maximum. Defendant was sentenced as a third felony offender. As such he could have received maximum sentences of eighty years on the forcible rape conviction, LSA-R.S. 15:529.1A(2)(a) and 14:42.1, and sixty years on the aggravated burglary conviction, LSA-R.S. 15:529.-lA(2)(a) and 14:60.

The sentencing judge is given wide discretion in imposing a sentence within the statutory limits and such a sentence should not be set aside as excessive in the absence of a manifest abuse of discretion by the sentencing judge. State v. Hammonds, 434 So.2d 452 (La.App. 2d Cir.1983); State v. Brooks, 431 So.2d 865 (La.App. 2d Cir. 1983); State v. Square, 433 So.2d 104 (La.1983).

A sentence is constitutionally excessive in violation of Louisiana Constitution of 1974 Art. 1, § 20 if it is grossly out of proportion to the severity of the offense or nothing more than a needless and purposeless imposition of pain and suffering. State v. Bonanno, 384 So.2d 355 (La.1980); State v. Cunningham, 431 So.2d 854 (La.App. 2d Cir.1983).

The sentencing guidelines of LSA-C.Cr.P. art. 894.1 provide the criteria to consider in determining whether a sentence is excessive. State v. Tully, 430 So.2d 124 (La.App. 2d Cir.1983); State v. Sepulvado, 367 So.2d 762 (La.1979). While the trial judge need not articulate every aggravating and mitigating circumstance outlined in LSA-C.Cr.P. art. 894.1, the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant. State v. Hammonds, supra; State v. Cunningham, supra; State v. Smith, 433 So.2d 688 (La.1983).

The record from the sentencing hearing reveals adequate compliance with LSA-C.Cr.P. art. 894.1. Although the trial judge did not articulate each and every mitigating factor contained in the article, he indicated that he considered the mitigating factors but felt them to be far outweighed by the aggravating factors. The aggravating factors alluded to by the trial judge were the circumstances of the instant offenses and defendant’s prior criminal record.

The trial judge obviously felt that the circumstances of the instant offenses were most serious violations of those offenses. Defendant, who is approximately seven feet tall and weighs over 200 pounds, raped and terrorized an elderly victim who is almost completely helpless. He knew the victim previously and was aware of'her physical condition. We agree with the trial judge’s assessment of the serious nature of the offenses.

The presentence investigation report compiled at the direction of the trial judge shows that defendant has an extensive history of committing sexual offenses. His two previous felony convictions were for simple kidnapping'and forcible rape. The bill of information on the simple kidnapping charge, which formed the basis for the first of the two convictions, was amended from forcible rape. Defendant received a probated sentence on that offense and was still on probation when he was convicted on the prior forcible rape charge. The defendant was arrested two other times on rape charges but was not formally charged for those offenses.

The record supports the trial court’s determination that the circumstances of the instant offenses and defendant’s prior record outweigh any possible mitigating circumstances. Defendant has persisted in committing sexual offenses and his former probation and relative short period of incarceration has not rehabilitated him. Society must be protected from the defendant. That goal is best accomplished by incarcerating the defendant for a lengthy period of time. We find no manifest abuse of discretion in the sentences imposed.

This assignment of error lacks merit.

Defendant’s convictions and sentences are AFFIRMED.

      . In his assignments of error filed with the trial court defendant alleged five errors. Only two of those were briefed and defense counsel did not argue before this court. Assignments of error neither briefed nor argued are deemed abandoned and are not considered. State v. Buxton, 416 So.2d 71 (La.1982); State v. Rowe, 416 So.2d 87 (1982); State v. White, 446 So.2d 1317 (La.App. 2d Cir.1984).


author: MARVIN, Judge.

text:
    STATE of Louisiana, Appellee, v. George E. BUTLER, Appellant.
    No. 16422-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1984.
    Davenport, Files & Kelly by Lavalle B. Salomon, Monroe, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Johnny Parkerson, Dist. Atty., Michael J. Fontenot, Asst. Dist. Atty., Monroe, for appellee.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   MARVIN, Judge.

The criminal code crimes of criminal damage to property under See. 55 and of illegal use of a dangerous instrumentality under Sec. 94 are not lesser included offenses of the crime of attempted second degree murder under Sees. 27 and 30.1. CCrP Art. 558, State v. Cook, 372 So.2d 1202 (La.1979).

State v. Cook, supra, emphasizes the effect of the State’s failure to amend the original bill as the law requires. The State did not attempt to supplement the record on appeal and did not comply with our request before oral argument to brief State v. Cook. When defendant pleaded guilty to the non-existent amended bills, the State informed the trial judge that the amended bills would be filed later.

The State’s failure to file the amended bills unfortunately creates an error patent on the face of the record and requires our reversal of the trial court’s actions, even though the trial judge was not at fault. C.Cr.P. Art. 920. The trial court simply was without jurisdiction to accept defendant’s guilty pleas to non-existent amended bills of information. State v. Cook, supra.

Defendant’s pleas to the non-existent amended bills and the sentences imposed under those pleas are set aside. Under this posture, the defendant remains charged with attempted second degree murder. We remand the case to the trial court to allow defendant to be tried on the original charge or to allow for further proceedings after proper amendment of the original bill.

REVERSED AND REMANDED.


text:
    STATE of Louisiana, Appellee, v. Jack Hudson CAMP, Appellant.
    No. 16443-KA, 16444-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1984.
    Rehearing Denied Nov. 29, 1984.
    Writ Denied Jan. 7, 1985.

      Johnson & Johnson by Neal G. Johnson, Monroe, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Johnny Parkerson, Dist. Atty., Joseph T. Mickel, Bruce G. Whittaker, Asst. Dist. Attys., Monroe, for appellee.
    Before JASPER E. JONES, SEXTON and NORRIS, JJ.
   SEXTON, Judge.

Jack Hudson Camp was convicted of the offenses of possession of a firearm by a convicted felon and attempted possession of marijuana with intent to distribute. In these consolidated appeals, he advances four arguments which he asserts warrant reversal of his convictions and sentences.

The contraband which forms the basis of these charges was seized in connection with the execution of two search warrants on October 27, 1982. One warrant authorized the search of defendant’s residence, and the other, his automobile.

On the date of execution of the warrant, the authorities arrived at the residence described therein at approximately 8:40 p.m. The defendant looked out his window and saw the officers approaching. Two officers entered the house from the rear while another officer forcefully entered the front. Defendant was confronted and read his Miranda rights. After indicating that he understood these rights, defendant was asked to declare the whereabouts of any controlled dangerous substances in the house. Defendant indicated that there were drugs under a green chair in the corner of the living room. A round plastic container containing a plastic bag of marijuana was retrieved from that location. Subsequently, the house was searched and a number of items were seized including smoking paraphernalia, controlled dangerous substances in capsule form, plastic baggies, partially smoked marijuana cigarettes, containers filled with marijuana, hashish and hashish oil, scales, and cash. Additionally, three pistols and ammunition were found in the master bedroom and seized. The officers also seized a key ring from defendant’s pocket. One of the keys unlocked a motorcycle trailer, of the variety designed to be hitched to and pulled by a motorcycle, located in the back yard. After unlocking the storage-type trailer, the officers discovered a blue travel bag containing a substantial amount of marijuana. From the right front floorboard of Camp’s automobile, the narcotics officer seized one round tin container holding loose marijuana. Camp was subsequently charged in a single bill of information with possession of marijuana with intent to distribute, possession of codeine, and possession of flurazep-am. In a separate bill, Camp was charged with unlawful possession of a firearm. After two separate jury trials, defendant was convicted of the offenses of which he now complains.

Sufficiency of the Warrant

Defendant contends that the affidavits in support of the search warrants were insufficient to establish probable cause to search his residence and automobile.

Probable cause may be provided by an informant’s tip if the underlying credibility of the informant is established. State v. Burton, 416 So.2d 73 (La.1982); State v. Morace, 446 So.2d 1274 (La.App. 2d Cir.1984). Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) abrogated the rule of Aguilar/Spinelli for determining whether an informant’s tip establishes probable cause for issuance of a warrant and substituted a “totality of the circumstances” approach. The court explained that the task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, there is a fair probability that contraband or evidence of a crime will be found in a particular place. The duty of a reviewing court under Gates is to ensure that the magistrate had a substantial basis for concluding that probable cause existed.

Prior to the Gates decision, the Supreme Court adhered to a two-prong test for determining an informant’s credibility. The reliability of both the informant and his information had to be shown. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Reliability of the reported information may be supported by, among other factors, direct personal observation by the informant or, if the information came indirectly to the informant, detailed reasons with which to evaluate the reliability of both the source and the information. Factors to support the credibility of an unidentified informant include prior accurate reports or any specific independent corroboration of the accuracy of the instant report. State v. Bible, 389 So.2d 42 (La.1980), vacated on other grounds, 453 U.S. 918, 101 S.Ct. 3153, 69 L.Ed.2d 1001, dissented 401 So.2d 966 (La.1981), on remand, 406 So.2d 138 (La.1981); State v. Tassin, 343 So.2d 681 (La.1976); State v. Green, 437 So.2d 302 (La.App. 2d Cir.1983).

In the instant case, the informant who provided the information for both affidavits was known to Detective Bryan Boney, the affiant. Both affidavits state that past information received from the confidential informant has directly resulted in at least four marijuana arrests with convictions obtained. The affidavit in support of the issuance of the search warrant authorizing the search of Camp’s residence recites that the confidential informant contacted the af-fiant and stated that within a forty-eight hour period the confidential informant had been in the above-described residence, and had observed approximately one pound of marijuana in the possession of Jack Camp. The affidavit further states that “Jack Camp represented the substance as being marijuana to the confidential informant and the marijuana was for sale.” The affidavit in support of the search warrant authorizing a search of defendant’s vehicle indicates that the confidential informant contacted the affiant within a seventy-two hour period and had observed approximately two ounces of marijuana in hashish form in the vehicle described in the affidavit. The affidavit continues that the hashish was in the possession of a white male known to the confidential informant as Jack Camp.

Therefore, under the statements asserted in the affidavits, reliability of the reported information was supported by the direct personal observation of the informant. Additionally, the credibility of the unidentified informant was supported by the references to his prior accurate reports, in the form of four previous tips which led to marijuana convictions. Under the totality of the circumstances, we conclude that the issuing magistrate had a substantial basis for concluding that probable cause to search Jack Hudson Camp’s automobile and residence was well established. This assignment lacks merit.

Unlawful Seizure of Firearms

Defendant asserts that the search warrant authorizing the search of his residence for “controlled dangerous substances especially but not limited to marijuana and instruments used in the packaging, distribution, and use of controlled dangerous substance (sic)” did not authorize the seizure of the three firearms.

Louisiana C.Cr.P. Art. 161 provides:

Art. 161. Property subject to seizure
A judge may issue a warrant authorizing the search for and seizure of any thing within the territorial jurisdiction of the court which:
(1) Has been the subject of theft;
(2) Is intended for use or has been used as a means of committing an offense; or
(3) May constitute evidence tending to prove the commission of an offense.
A judge may also issue a search warrant in all other cases specifically provided by law. A justice of the peace may issue a search warrant only in those cases specifically provided by law.

Louisiana C.Cr.P. Art. 165 provides:

Art. 165. Authority of peace officer in executing a search warrant
While in the course of executing a search warrant, a peace officer may make photographs, lift fingerprints, seize things whether or not described in the warrant that may constitute evidence tending to prove the commission of any offense, and perform all other acts pursuant to his duties.

Article 165 thus authorizes the seizure of evidence or contraband located by the searching officers during the course of the search, even if that evidence or contraband is not listed in the warrant. It is axiomatic that such a seizure is described in search and seizure terms as being based on the “plain view” doctrine. The constitutional standards for that doctrine were formerly enunciated in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). For the “plain view” doctrine to apply, Coolidge required a) a lawful initial intrusion, b) that incriminating evidence must be discovered inadvertently, and c) that it be “immediately apparent” that the item observed is evidence or contraband. Where the officers are searching on the authority of a warrant, as in this case, the authority of that warrant and the search for the items listed satisfies the first two requirements of the plain view doctrine. Thus the issue in this case, and in any other where the officers are acting on a warrant and evidence or contraband is seized which is not listed in the warrant, is whether the third or “immediately apparent” requirement is satisfied.

However, the “immediately apparent” requirement was substantially modified recently by the United States Supreme Court in Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) when that court stated:

Decisions by this court since Coolidge indicate that the use of the phrase “immediately apparent” was very likely an unhappy choice of words since it can be taken to imply that an unduly high degree of certainty as to the incriminatory character of evidence is necessary for application of the “plain view” doctrine. Brown, supra, 103 S.Ct. at 1542.

It is unclear what phrase or label might be used to replace that of “immediately apparent.” However, the Brown court stated that “the rule from Payton, supra [Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)], requiring probable cause for seizure in the ordinary case, is consistent with the fourth amendment and we reaffirm it here.” Brown, supra, 103 S.Ct. at p. 1542. We may perhaps then change the label of the third requirement to that of “probable cause” to believe that the item is evidence or contraband.

In a case such as this, where a large amount of dangerous drugs are seized together with other evidence indicating organized distribution, we believe there is probable cause to seize these weapons— and thus the current “plain view” standards are met. The weapons are an indication of dominion and control over the drugs, suggesting a willingness to use force to protect the residence and the substances therein. This further suggests a knowledge of the valúable and illegal character of these substances. Moreover, the volitility of a search where large amounts of dangerous drugs are expected is manifest. Even though the defendant may apparently be restrained and there may apparently be no others in or about the premises, common sense indicates that the weapon should be at least temporarily seized for the protection of the officers.

We additionally note defendant’s contention regarding this assignment that the state did not prove in the motion to suppress that the officers had knowledge on the defendant’s previous felony conviction and thus the seizure is inappropriate because of the state’s failure regarding that burden. With respect to this contention, as well as with respect to this entire assignment, it is important to note that since the items at issue were seized pursuant to a warrant, the defendant bears the burden of proving his contentions. LSA-C. Cr.P. Art. 703 D.

This assignment lacks merit.

Rejection of the Guilty Plea

In addition to the instant charges which form the basis of this appeal, defendant was charged with possession of marijuana, a misdemeanor. Before his trial on the charge of possession of marijuana with intent to distribute, he tendered a plea of guilty to the misdemeanor charge. The trial court rejected the plea, as the matter was not properly before it. Defendant argues that he had an absolute right to plead guilty to the misdemeanor charge and that by refusing to accept his tendered plea, the trial court deprived him of a claim of double jeopardy to the instant prosecution.

In this regard, it should be noted that in the instant case, the trial court denied a defense motion to compel the state to designate priority of cases for purposes of trial. Writs were denied by this court but granted by the Louisiana Supreme Court. That court ordered the district attorney to designate the order in which the charges against defendant would be tried. The district attorney complied with this order. As such, defendant was apprised of the fact that he was to be tried initially on the possession of marijuana with intent to distribute charge.

The trial judge obviously would not accept the plea on the misdemeanor charge because the court was aware that the defendant’s efforts were a tactical ploy to raise the double jeopardy issue.

It seems logically possible that the defendant could have possessed at least two separate quantities of marijuana, one for distribution and one for personal consumption. Considering the varying quantities found, their packaging and location, such seems probable here. However, the record before us is deficient in many respects in this vein. It is only by virtue of statements in the defendant’s brief and the inclusion therein of a copy of the simple possession charge that we are aware of its existence. We are of course aware of the quantity, packaging and location of the marijuana found by virtue of the return on the warrant and the testimony of the witnesses in the various proceedings. As we have already noted, this evidence implies that the marijuana was found in circumstances such as to strongly suggest the appropriateness of the two separate charges.

We express no real disagreement with the general proposition espoused by the defendant that he has a right to plead guilty if he wishes. However, under the circumstances of this cause, where the evidence found could more likely than not support both a charge of simple possession and a charge of possession with intent, the act of the trial judge in refusing to entertain the guilty plea to the possession charge under the circumstances here presented is not error where the intent of the plea is to avoid the imminent trial on the more serious charge.

We find no merit to this assignment.

Scope of the Search

The greatest quantity of marijuana was seized from a blue travel bag located inside the locked motorcycle trailer found in the fenced backyard close to the house. An examination of the exhibits contained in the record affirms that the trailer was located approximately five to ten feet from the house proper. Defendant asserts that the search of this trailer, a storage compartment designed for attachment to a motorcycle, exceeded the scope of the warrant to search his residence.

The warrant in question authorized the search of a “residence located on Louisiana Highway 151, further described as a red brick house with a gray roof. The residence is located approximately two miles from the intersection of Louisiana Highway 151, Louisiana Highway 837, Claiborne Road in Ouachita Parish. The residence is also approximately Vio of a mile from the intersection of Sibley Road and Highway 151. There are no other houses in close proximity of this house. This residence is occupied by Jack Camp, W/M, DOB 1-26-55.”

In State v. Roach, 322 So.2d 222, (La.1975), the Supreme Court defined the scope of a residence search authorized by warrant:

In any event, a search warrant authorizing the search of the “premises” at a stated address must reasonably be interpreted to permit a search of the dwelling house proper, the garage, and any other out buildings within close proximity of the house proper that one normally associates with and includes within the word “house” or “premises.” United States v. Long, 449 F.2d 288 (8th Cir.1971), cert. denied, 405 U.S. 974, 92 S.Ct. 1206, 31 L.Ed.2d 247 (1972); Fine v. United States, 207 F.2d 324 (6th Cir.1953), cert. denied, 346 U.S. 923, 74 S.Ct. 310, 98 L.Ed. 417 (1954); State v. Brochu, 237 A.2d 418 (Me.1967).

Roach concluded that the search of a motorcycle in a garage located in the rear of the house was authorized by the warrant. In State v. Michel, 422 So.2d 1115 (La.1982), a warrant was issued for the search of the premises, person or vehicle located on a certain piece of property. In the course of executing the search warrant, officers noticed a tree located three feet from the northwest corner of the house trailer that appeared to have been “shot up” by some type of weapon. The officers then removed a bullet slug from the tree that matched the one taken from the body of a murder victim. The court held that the officers did not exceed the scope of the warrant by removing the slug from the tree. In State v. Stroud, 438 So.2d 1172 (La.App. 3rd Cir.1983), the search warrant authorized a search of “... a woodframe dwelling, white color, located 4.15 miles on Hwy. 123 from it’s (sic) intersection with Hwy. 8, travelling in north easterly direction toward US 167. House located on the left following these directions. This will include any outbuildings or immov-ables.” The seizure of marijuana found in a storage shed included on the premises was found to be encompassed by the terms of the warrant.

The scope of a residence or premises search authorized by warrant has long been settled in the federal courts. In Brooks v. United States, 416 F.2d 1044, (5th Cir.1969) cert. denied, 400 U.S. 840, 91 S.Ct. 81, 27 L.Ed.2d 75, the Fifth Circuit found that law enforcement officials were justified on the basis of their warrant which authorized a search of “the premises known as the lot and cabin of Andy Shaw” in searching a car parked on the lot and very close to the cabin. A warrant to search the premises at a certain address was held to be sufficient to embrace the search of a camper bus parked in the driveway in U.S. v. Napoli, 530 F.2d 1198 (5th Cir.1976), cert. denied, 429 U.S. 920, 97 S.Ct. 316, 50 L.Ed.2d 287 (1976). In so holding, the court rejected the argument that the language contained in the warrant, to-wit: “... a large multiple-story, wooden-frame residential dwelling” limited the ambit of the government’s authority to search. More recently, the Fifth Circuit held that a warrant authorizing a search of the premises located at 256 Seadrift Road was sufficiently particular to permit a search of the defendant’s Jeep parked on the premises off the street and close to the house. U.S. v. Freeman, 685 F.2d 942 (5th Cir.1982).

Contrary to defendant’s assertions, the holding of State v. Massey, 310 So.2d 557 (La.1975) does not mandate a conclusion different from the result we herein reach. In Massey, the officers had a warrant to search the apartment of one Dwyer. In the course of that search, car keys belonging to the defendant Massey were located. It is unclear from the opinion whether Mr. Massey was in Mr. Dwyer’s apartment, though the implication is that he was. In Massey, the court, on a four to three basis, held that the warrant to search Mr. Dwyer’s apartment did not extend to Mr. Massey’s vehicle also located on the grounds of the apartment complex, even though Mr. Massey also maintained an apartment there. In a similar vein, also see State v. Koncir, 367 So.2d 365 (La.1979), where the warrant “for the search of Jean Koncir’s residence” did not authorize the search of the vehicle of her father, Mr. Hutchens, located in the driveway.

Considering the foregoing, we have little difficulty concluding that the warrant authorizing the search of the defendant’s particularly described residence encompassed the authority to search the motorcycle trailer located in close proximity to the residence in the backyard. This assignment lacks merit.

For the foregoing reasons, the convictions and sentences of Jack Hudson Camp are affirmed.

AFFIRMED.

      . In State v. Huston, 445 So.2d 67 (La.App. 2d Cir.1984), at footnote 2, this author characterized the new requirement as "a reasonable probability.” However, the "probable cause” suggested here, while perhaps being synonomous with “reasonable probability” is more instructive in classical criminal law terms.

      . Mr. Hutchens is described as an “occupant” and thus the implication from the opinion is that the residence belonged to his daughter, Jean Koncir, and that he was visiting the residence' at that time.


text:
    STATE of Louisiana, Appellee, v. Tracy Delane MOSES, Appellant.
    No. 16461-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1984.

      David G. Haynes, West Monroe, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Johnny Parkerson, Dist. Atty., Monroe, for appellee.
    Before HALL, MARVIN, and FRED W. JONES, Jr., JJ.
   MARVIN, Judge.

A sentence of eight years at hard labor is not excessive for a 23-year-old defendant who pleaded guilty to a 1983 burglary, who had had revoked a suspended sentence for a 1979 burglary and was on parole after partially serving sentences for two 1980 burglaries when he committed the 1983 burglary. LSA-Const. Art. 1, § 20.

SENTENCE AFFIRMED.


text:
    KAUFMAN & ENZER JOINT VENTURE, Plaintiff-Appellant, v. BETHLAN PRODUCTION CORPORATION, Defendant-Appellee.
    No. 16464-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1984.
    Rehearing Denied Nov. 29, 1984.

      Hudson, Potts & Bernstein by James A. Rountree, Monroe, for plaintiff-appellant.
    Charles R. Blaylock, Monroe, for defendant-appellee.
    Before PRICE, MARVIN and SEXTON, JJ.
   SEXTON, Judge.

Plaintiff filed suit to place defendant corporation in receivership. The trial court sustained defendant’s peremptory exception of no cause of action, and dismissed plaintiff’s claim. We reverse.

Plaintiff in this cause is Kaufman & En-zer Joint Venture, a California general partnership (hereinafter referred to as Kaufman). Defendant herein is Bethlan Production Corporation, a Louisiana corporation domiciled in Ouachita Parish (hereinafter referred to as Bethlan Corporation). Bethlan Corporation is a general partner, and Kaufman is a limited partner in a partnership named Bethlan Production 1981-C, LTD. (hereinafter referred to as Production, LTD.)

The plaintiff Kaufman filed suit against defendant Bethlan Corporation on October 11, 1983, seeking to have that corporation placed in a receivership. Plaintiff’s petition alleged in general terms that plaintiff was a creditor of defendant Bethlan Corp., and that Bethlan Corp. was wasting, misusing or misapplying its corporate assets.

Plaintiff alleged, more particularly, that it had purchased a limited partnership interest in Production, LTD. for $423,309.38. Plaintiff alleged that Bethlan Corporation assigned some twenty oil wells owned by it to part-owner and corporate Vice-President, James S. Kyser, III. Plaintiff alleged that this assignment to Kyser was a sham transaction executed for the purpose of disposing of Bethlan’s corporate assets to the prejudice of creditors. Plaintiff alleged that the defendant corporation executed a $400,000 mortgage on ten oil wells “in an attempt to defraud [its] creditors.”

Plaintiff alleged that the defendant-corporation, Bethlan, as the general managing partner of Production, LTD. had misappropriated and converted to its own use partnership income due plaintiff as a limited partner under the false pretense of discharging operational expenses. Plaintiff alleged, in specific terms, that defendant has deducted operational expenses owed to Sterlington Oil and Gas Supply, Inc. from plaintiffs partnership income under the guise of discharging business debts, without ever having actually paid these operational expenses and debts to Sterlington. Plaintiff also alleged that Sterlington has filed two suits against the defendant to recover these sums.

Plaintiff has moreover alleged that the defendant corporation has not paid plaintiff the partnership income due it for several months, “diverting such sums to its own benefit or to the personal benefit of the principals of the corporation.”

Plaintiff attached to its petition a document dated July 8, 1983, and styled “Outline of Settlement Agreement.” This document expressed the agreement of defendant Bethlan Production and Production, LTD., to repurchase or “buy out” plaintiff’s interest in Production, LTD. Partnership for a sum of $444,465.36. This agreement thus signifies that defendant corporation is at least jointly liable to plaintiff Kaufman for the $444,465.36 sum.

Defendant filed a peremptory exception of no cause of action to plaintiff’s petition. On December 20, 1983, the trial court sustained defendant’s exception of no cause of action and dismissed plaintiff’s suit.

The peremptory exception of no cause of action is properly triable on the face of plaintiff’s petition and compels the court to gauge the legal sufficiency of com7 plainant’s petition. In determining whether a plaintiff’s petition has stated a cause of action, the court must presume the truth of plaintiff’s allegations and apply the pertinent substantive law to the facts alleged. The peremptory exception of no cause of action is appropriately sustained only when, assuming plaintiff’s allegations to be true, plaintiff has not stated a claim for which he can receive legal remedy under the applicable substantive law. Any reasonable doubt as to the sufficiency of the petition must be resolved in favor of a finding that plaintiff’s petition has stated a cause of action. LSA-C.C.P. Art. 927. Scariano Bros., Inc. v. Hammond Construction, 428 So.2d 564 (La.App. 4th Cir. 1983); Smith v. Livingston Parish Police Jury, 423 So.2d 5 (La.App. 1st Cir.1982); Frain as Tutrix of Beason v. State Farm Insurance Co., 421 So.2d 1169 (La.App. 2d Cir.1982); Godwin v. East Baton Rouge Parish, 372 So.2d 1060, (La.App. 1st Cir. 1979), writ denied 373 So.2d 527 (La.1979); Langley v. Copolymer Rubber and Chemical Corp., 233 So.2d 353 (La.App. 1st Cir.1970). Documents and exhibits attached to plaintiff’s petition must be considered in evaluating whether plaintiff has stated a cause of action, and the contents of such addenda must also be accepted as true. Godwin, supra; Guillory v. Nicklos Oil and Gas Co., 315 So.2d 878 (La.App. 3d Cir.1975); Clark v. Reed, 122 So.2d 344 (La.App. 2d Cir.1960).

The effect of the appointment of a receiver is to wrest the administration of a corporation’s assets and affairs from its officers, and vest a qualified title in.the corporation’s property to a court-appointed, officer who is empowered to administer the corporation’s affairs in a manner designed to safeguard the interests of the corporation’s creditors, debtors and stockholders. Reynaud v. Uncle Sam Planting & Mfg. Co., 152 La. 811, 94 So. 405 (1922); J.B. Beaird Corp. v. Johnson, 152 So. 789 (La.App. 2d Cir.1934).

LSA-R.S. 12:151(A) sets forth numerous grounds for the judicial appointment of a receiver to assume the administration of a corporation’s affairs. However, the only-statutory basis for a corporate receivership which is germane to this appeal is contained in Subsection 151(A)(1). This subsection states that:

A. The court may, after trial, appoint a receiver to take charge of the corporation’s property when it is made to appear, in a proceeding instituted against the corporation:
(1) By any shareholder or creditor, that the directors or officers of the corporation are jeopardizing the rights of its shareholders or creditors by grossly mismanaging the business, or by committing gross and persistent ultra vires acts, or by wasting, misusing or misapplying the assets of the corporation.

The prerequisites to corporate receivership stipulated by Subsection 151(A)(1) may be broken down into two functional components. This section first requires the complainant’s status: the petitioner must be a shareholder or creditor of the corporation. This section secondly requires the requisite content and tenor of the respondent-corporation’s acts: gross mismanagement, persistent and flagrant illegality, or the wasteful dissipation of corporate assets.

It is clear in the first instance that, assuming the truth of the petition’s allegations, the instant plaintiff is a creditor of the defendant corporation and thus possesses the requisite status delineated by Section 151(A)(1). A “creditor” is defined by Civil Code Article 2132 in the following terms: “[H]e to whom the obligation [to do, or not to do, or to give] is made is ... called the obligee or the creditor.” “Creditor” is similarly defined by Civil Code Article 3556(20) as “the person in favor of whom some obligation is contracted, whether such obligation be to pay a sum of money, or to do or not to do something.”

Plaintiff’s Status as a creditor of the defendant corporation derives in part from the settlement agreement, attached to plaintiff’s petition. This contractual act apparently acknowledges and establishes defendant’s obligation to pay plaintiff in an amount exceeding $400,000, and documents plaintiff’s status as a creditor “in favor, of whom some obligation [has been] contracted.” LSA-C.C. Art. 3556(20). Plaintiff’s creditor status may also be conceptually predicated upon the defendant-corporation’s misappropriation and arrogation of partnership revenues to which plaintiff was legally entitled. The defendant-corporation is liable to the plaintiff as its business partner for any profits the defendant has accumulated through the breach of its fiduciary duty to its partners. LSA-C.C. Art. 2809. Thus, the plaintiff is the creditor or obligee of the defendant’s obligation to compensate the breach of the defendant’s fiduciary duty as a partner. The plaintiff is for identical reasons a creditor of the defendant for the past business revenues owed it.

Having established that plaintiff is a creditor of the defendant-corporation, it is next necessary to ascertain whether, under plaintiffs allegations, the defendant has committed sufficiently egregious acts to justify a corporate receivership, whether through gross mismanagement, illegal acts, or the waste of corporate assets. The principal factual assertion, in the context of defendant’s actions, is that defendant transferred or assigned some twenty oil wells to corporate officer/part owner, John Kyser, for the express purpose of frustrating creditors’ claims. Plaintiff’s petition is not specific on this point, but indulging every reasonable factual hypothesis in petitioner’s favor as the law instructs us to do, we assume that these transfers were uncompensated, or at least under-compensated. We conclude that, because of their apparent size and extent, these assignments manifest the waste, dissipation and misuse of corporate assets and gross mismanagement.

A similar factual scenario arose in Carmouche v. Sylvester House Moving, Inc., 244 So.2d 361 (La.App. 3d Cir.1971), in which a defendant-corporation divested itself of its physical assets in favor of the son of a corporate insider in order to “avoid payment of the ... indebtedness to plaintiffs, and thus to defraud them.” 244 So.2d at 368. The Third Circuit therein held that a creditor may rightfully seek to have a debtor-corporation placed in receivership, where that corporation is dissipating its physical assets for the purpose of frustrating creditors’ claims. As the courts of this state have consistently maintained, the appointment of a corporate receivership is proper where a complainant’s rights are placed in imminent danger by fraudulent practices which dissipate corporate assets. Kerlin v. Bryceland Lumber Co., 134 La. 463, 64 So. 289 (1914); Fincher v. Claiborne Butane Co., Inc., 349 So.2d 1014 (La.App. 2d Cir.1977); West v. Certified Credit Corporation, 162 So.2d 589 (La.App. 2d Cir.1964).

Thus, plaintiff has alleged with sufficient specificity that it is a creditor of the defendant-corporation, and that defendant is committing acts of wasteful dissipation or gross mismanagement. We hold that, on the strength of plaintiff’s allegations, the petitioner is entitled to its day in court.

The judgment of the trial court sustaining the peremptory exception of no cause of action is accordingly reversed, and this cause is remanded to the trial court for further proceedings not inconsistent herewith. The costs of this appeal are assessed to defendants.

REVERSED and REMANDED.

      . LSA-R.S. 12:151(A) reads as follows:
      § 151. Appointment of receiver
      A. The court may, after trial, appoint a receiver to take charge of the corporation’s property when it is made to appear, in a proceeding instituted against the corporation:
      (1) By any shareholder or creditor, that the directors or officers of the corporation are jeopardizing the rights of its shareholders or creditors by grossly mismanaging the business, or by committing gross and persistent ultra vires acts, or by wasting, misusing or misapplying the assets of the corporation; or
      (2) By any shareholder or creditor, that the corporation’s property has been abandoned, or that, by failure of the shareholders to elect directors, or the failure of the directors or officers to serve, there is no one authorized to take charge of or conduct its affairs; or
      (3) By any creditor, that the corporation is, insolvent, or such creditor’s claim has been reduced to judgment, on which execution has been issued and returned "nulla bona”; or
      (4) By any creditor, that property of the corporation has been seized under judicial process by fraud or collusion between the corporation, its directors, officers or shareholders, and any creditor; or
      (5) By any shareholder, that a majority of the shareholders are violating the rights of minority shareholders and endangering their interests; or
      (6) By a shareholder or shareholders, severally or jointly, who have been registered owners for a period of not less than six months of not less than twenty per cent of the entire outstanding shares of the corporation, that either of the grounds for involuntary dissolution set forth in R.S. 12:143(A)(4) and (5) exists.

        . See, e.g., Blanchard v. Employers Liability Assurance Corp., 197 So.2d 386 (La.App. 2d Cir. 1967); Stanley v. Missouri Pacific Railroad Co., 179 So.2d 490 (La.App. 3d Cir.1965).


text:
    Freddie Lee WILSON, Plaintiff-Appellant, v. L.C. JACOBS, Et Al., Defendants-Appellees.
    No. 16476-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1984.
    Writ Denied Dec. 7, 1984.

      Brittain, Williams & McGlathery by Joe Payne Williams, Natchitoches, for plaintiff-appellant.
    Culpepper, Teat, Caldwell & Avery by James D. Caldwell, Jonesboro, for defendants-appellees.
    Before JASPER E. JONES, FRED W. JONES, Jr. and SEXTON, JJ.
   SEXTON, Judge.

Freddie Lee Wilson appeals the rejection of his demand for acceleration of worker’s compensation benefits under LSA-R.S. 23:1333. We affirm.

Plaintiff-appellant was seriously injured by a falling tree on August 19, 1980, during the. course and scope of his employment. His injuries left him totally and permanently disabled. Wilson subsequently filed suit against his direct employer, L.C. Jacobs, and others with whom he claims to have had a statutory employment relationship, namely: James Lowe, d/b/a Lowe Manufacturing; Allen Pulpwood, Inc. and their insurer, Southern Casualty Insurance Company; and Mrs. E.L. Mobley. The trial court rendered judgment rejecting plaintiff’s demands. On appeal, this Court found that Allen Pulpwood was the statutory employer of Wilson and, accordingly, reversed the trial court judgment insofar as that judgment rejected plaintiff’s claim against Allen Pulpwood, Inc. and its insurer, Southern Casualty Insurance Company. 438 So.2d 1119. Weekly benefits were awarded in the amount of $45, as well as medical expenses of $35,011.35, with legal ■interest on both amounts from date due until paid, and for all costs of the proceeding. Rehearing from this decision was denied on October 20, 1983. Writs were perfected by Allen Pulpwood, Inc. and Southern Casualty Insurance Company was denied by the Louisiana Supreme Court on December 9, 1983, 443 So.2d 587, making the judgment of this Court final on that date. LSA-C.C.P. Art. 2166(D).

On January 24, 1984, Freddie Lee Wilson filed a rule to show cause against Allen Pulpwood, Inc. and Southern Casualty Insurance Company. In this rule it was alleged that the defendants had arbitrarily and capriciously failed to pay the worker’s compensation benefits in accordance with the judgment of this Court for more than six weeks, entitling plaintiff to an acceleration of these benefits, and additionally, to statutory penalties, attorney’s fees, and costs. In response, both defendants filed exceptions of no cause of action claiming that LSA-R.S. 23:1333 did not provide for an award of penalties or attorney’s fees. Further, Southern Casualty Insurance Company filed an additional exception of no cause of action, claiming that the statute in question, LSA-R.S. 23:1333, did not apply to insurers. These exceptions were referred to the merits. After a hearing, the trial judge sustained the exceptions and dismissed the plaintiff’s claim.

The trial court found that in the interim between the notification of the judgment in favor of plaintiff and the tender of payment on January 24, 1984, the parties were attempting to amicably resolve various matters such as interest due on the weekly payments, interest due on medical payments, and were exploring the possibility of a lump sum settlement. Payment of past due compensation benefits was tendered on January 24, 1984, the day the rule was filed and plaintiff’s attorney was notified of the mailing of the check on that same day. The trial court found it significant that the rule was filed exactly six weeks after finality of judgment. This judgment forms the basis of this appeal.

We perceive a significant question as to whether the trial court was correct in its determination that there was not a “willful refusal” to pay. However, we pretermit a determination in this regard because of our view that the statute in question is not applicable to this cause. LSA-R.S. 23:1333 states:

If the employer against whom a judgment awarding compensation has been rendered becomes insolvent or fails to pay six successive installments as they become due, the installments not yet payable under the judgment shall immediately become due and exigible and the judgment shall become executory for the whole amount; but if the employee or his dependant is adequately protected by insurance and receives payments thereunder this right shall not accrue. (Emphasis ours)

As our Supreme Court pointed out, “Generally, Section 1333 provides two instances when installments not yet payable under the judgment may be accelerated — when the employer becomes insolvent or fails to pay six successive installments as they become due.” Johnson v. Continental Insurance Companies, 410 So.2d 1058, 1060 (La.1982). Justice Lemmon in his concurrence further expounds:

R.S. 23:1333 was not designed to punish the arbitrary refusal by an insurer to make compensation payments under a final judgment or to provide an additional method for executing a compensation judgment. The statute was designed to protect an employee against the insolvency or approaching insolvency of an uninsured employer by granting the employee the right to obtain a judgment for the employer’s entire accelerated compensation liability when the employer either (1) becomes insolvent or (2) approaches insolvency, as evidenced by the failure to make six successive payments. The employee can then assert the entire claim (which has been reduced to judgment) in the bankruptcy proceeding or can enjoy a favorable secured position for the entire amount in the ranking of creditors of the employer. Johnson, supra, at 1063 (Lemmon, J. concurring)

The scholarly literature is in accord with the position that the statute has applicability only when an insolvent uninsured employer is involved. Malone and Johnson explain that the section “has no application at all against an insolvent employer if the claim is protected by insurance, which in practice means that instances of its use will be very few.” W. Malone and A. Johnson, Louisiana Civil Law Treatise: Worker’s Compensation § 389 at 283 (1980).

In conclusion, as a penal statute, Section 1333 must be strictly construed. Johnson, supra. The wording of the statute indicates it is only applicable to protect an employee who has no personal insurance against the prospective insolvency of his uninsured employer. Such jurisprudence and scholarly comment as exist are in accord with this view.

AFFIRMED at appellant’s cost.


author: HALL, Judge.

text:
    STATE of Louisiana, Appellee, v. Kenneth R. DALEY, Appellant.
    No. 16478-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1984.
    Rehearing Denied Nov. 29, 1984.
    Writ Denied Feb. 4, 1985.

      Mary A. Brown and Richard E. Hiller, Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Richard L. Carney, John A. Broadwell, Shreveport, for appellee.
    Before HALL, MARVIN, and SEXTON, JJ.
   HALL, Judge.

The defendant, Kenneth R. Daley, appeals his conviction and sentence for Possession of a Schedule II Controlled Dangerous Substance, cocaine, contrary to the provisions of LSA-R.S. 40:967. The defendant was sentenced to serve 18 months at hard labor. Pursuant to a plea bargain agreement with the state, the defendant pled guilty to possession of cocaine, reserving his right to appeal the trial court’s denial of his motion to suppress under the authority of State v. Crosby, 338 So.2d 584 (La.1976). Finding no merit in the defendant’s assignments of error, we affirm.

The Facts

On May 19, 1983, Officer T.L. Hardin of the Shreveport Police Department was traveling westbound in the 400 block of Milam Street in Shreveport when he observed the defendant get out of the passenger side of a vehicle that was parked on the south side of Milam at the intersection of Marshall Street. Officer Hardin observed the defendant walk around to the driver’s side, open the door, obtain a brown attache ease, and place a large caliber pistol in the case. Officer Hardin testified that he then observed the defendant proceed westbound on Milam on foot while carrying the case. Officer Hardin attempted to follow the defendant, but due to traffic, he had to circle the block causing him to lose sight of the defendant.

Officer Hardin radioed for assistance. The officer then parked his car and was joined by Officer M.F. Head. Officers Hardin and Head then proceeded to walk down Milam Street until they located the defendant in Rick’s Rings N’ Things, a store on Milam Street.

Officer Hardin approached the defendant and asked for his identification and additionally asked him if he could see the weapon which he had observed the defendant place in the attache case. Not having the gun with him, the defendant led the officers to a van parked on Marshall Street. The defendant opened the van, retrieved a briefcase, then showed the officers the pistol. After a check was run on the gun, it was discovered that the weapon was stolen. The defendant stated to the two officers that he had purchased the gun from an unknown black male behind Guys & Dolls for $150.

At the time the report came back that the weapon was stolen, Officer Hardin was required to leave the scene; however, Detective C.A. Lewis of the Shreveport Police Department arrived at the scene as Officer Hardin was leaving. At this point, Detective Lewis placed the defendant under arrest and advised the defendant of his Miranda rights.

After the defendant had arrived at the police station, he informed the officers that he had to urinate. However, before allowing the defendant to go to the restroom, the detectives ordered the defendant to empty his pockets. Additionally, the defendant was searched by Detective Lewis. In one of the defendant’s rear pockets, a small plastic bag containing white powder was found. Tests results of the substance indicated that the white powdery substance was cocaine. The defendant was then placed under arrest for possession of cocaine.

On appeal, the defendant asserts the following assignments of error:

(1) The trial court erred in denying defendant’s motion to suppress statements; and

(2) The trial court erred in imposing an excessive sentence of 18 months imprisonment at hard labor.

Assignment of Error No. 1:

By this assignment, the defendant asserts that the trial court erred in failing to suppress certain statements that he had made upon his arrest and items of physical evidence that had been seized at the police station after his arrest. The defendant asserts that there was no probable cause to arrest the defendant, thus making all statements made and items seized inadmissible due to their unconstitutionality.

The Fourth Amendment to the United States Constitution and Art. 1, § 5 of the Louisiana Constitution protects 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 LSA-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. Belton, 441 So.2d 1195 (La.1983); State v. Andrishok, 434 So.2d 389 (La.1983).

The principal issues before us center around the legality of the initial stop by the police officers and the probable cause for the defendant’s subsequent arrest. Whenever a police officer accosts an individual and restrains his freedom to walk away, he has seized that person, Terry v. Ohio, supra, the Fourth Amendment, and state law require that the seizure be “reasonable”. United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); LSA-C.Cr.P. Art. 215.1. Because of the limited nature of seizures less intrusive than a traditional arrest, stops of the sort in the present case may be justified on facts that do not ampunt to the probable cause required for an arrest. Instead, the conduct involved must be tested by the Fourth Amendment’s general prescription against unreasonable searches and seizures. Terry v. Ohio, supra; State v. Flowers, 441 So.2d 707 (La.1983).

Reasonable cause for an 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 that he has been, is, or is about to be engaged in criminal conduct. LSA-C.Cr.P. Art. 215.1; State v. Belton, supra; State v. Andrishok, supra.

The totality of the circumstances must be considered in determining whether reasonable cause exists. United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).

A review of the facts in the present case indicates that when the officers stopped and questioned the defendant one of the officers, Officer Hardin, had observed the defendant conceal a weapon inside an attache case. The actions of the defendant in concealing the weapon, contrary to law, justifies the questioning by the officers. The concealment of the weapon by the defendant gave reasonable suspicion to the officers that a crime had been committed in concealing the weapon and, additionally, that the defendant may have intentions of committing some other violent crime in the area. Therefore, we find that the stop of the defendant by the police officers was based upon reasonable suspicion as required by LSA-C.Cr.P. Art. 215.1 and both state and federal constitutions.

Next, it must be determined whether the subsequent arrest of the defendant for illegal possession of stolen things was based upon probable cause. Probable cause to arrest without a warrant exists when the facts and circumstances within the officer’s knowledge, or of which he had reasonably trustworthy information, are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State v. Ruffin, 448 So.2d 1274 (La.1984); State v. Edwards, 406 So.2d 1331 (La.1981).

In the present case, the defendant was placed under arrest when the officers received information from police headquarters that the gun found in the possession of the defendant had in fact been reported stolen. Therefore, it is apparent that the officers had reasonably trustworthy information to justify a belief that defendant had committed a crime. Therefore, we find that the officers had probable cause to make the arrest of the defendant.

Subsequent to the arrest, the defendant was transported to the Shreveport Police Department. Upon arrival at the police station, the defendant stated that he had to urinate badly. Defendant was told that before he would be allowed to go to the restroom he would have to remove all items from his pockets and ‘that he would be searched. Upon searching the defendant, Detective C.A. Lewis discovered in the defendant’s right rear pocket a small plasti-cene envelope. The defendant was then additionally charged with possession of cocaine.

A search incident to arrest is a recognized exception to the rule that a war-rantless search is unreasonable. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); State v. Ruffin, supra. The justification for the warrantless search of a person arrested for a crime is based upon exigency of removing any weapons and of preserving any evidence in immediate reach of the arrested person. State v. Gibson, 391 So.2d 421 (La.1980). Additionally, confiscation of an arrestee’s property at the time he is booked on a charge is authorized under Louisiana law. LSA-C. Cr.P. Art. 228; State v. Duplantis, 388 So.2d 751 (La.1980). Having found that the police did have probable cause to arrest the defendant, the subsequent search of the defendant at the police station falls within the well-recognized exception for searches incident to arrest and booking.

Having found no constitutional or statutory violations of the defendant’s rights, we find no error in the trial court’s denial of the motion to suppress. Therefore, this assignment of error is without merit.

Assignment of Error No. 2:

By this assignment, the defendant asserts that the trial court erred in imposing an excessive sentence of 18 months imprisonment at hard labor. The defendant contends that the conclusions reached by the trial court were not supported by the facts in that the facts considered by the court were highly speculative in nature and that the trial court did not give sufficient weight to various mitigating factors. Therefore, the defendant argues that the sentence imposed was excessive in violation of Art. 1, § 20 of the Louisiana Constitution.

A sentence is constitutionally excessive in violation of Art. 1, § 20 of the Louisiana Constitution if the sentence is grossly out of proportion to the severity of the offense or nothing more than a needless and purposeless imposition of pain and suffering. State v. Bonanno, 384 So.2d 355 (La.1980). Additionally, it is well settled that the sentencing judge is given wide discretion in imposing a sentence within the statutory limits and such a sentence should not be set aside as excessive in the absence of a manifest abuse of discretion by the sentencing judge. State v. Square, 433 So.2d 104 (La.1983).

In the present ease, the defendant was sentenced to 18 months at hard labor for possession of cocaine. The maximum penalty for possession of cocaine under LSA-R.S. 40:967 is five years at hard labor and/or a fine of not more than $5,000.

At the sentencing hearing, the judge indicated that he had reviewed the defendant’s pre-sentence investigation report. The report indicated that the defendant had no prior criminal record. The court noted, however, that the charge of receiving stolen goods was dismissed in accordance with the defendant’s plea bargain agreement with the state. Further, the^defendant had pending a charge of simple burglary of an inhabited dwelling. Therefore, the trial court found that there was an undue risk that, during a period of suspended sentence or probation, the defendant would commit other crimes because the defendant was in the process of attempting to sell or pawn items that had been stolen and because the defendant admitted to regular use of controlled dangerous substances. The court found that the defendant was in need of correctional treatment in a custodial environment and that a lesser sentence would deprecate the seriousness of the defendant’s offense. It was also the trial court’s opinion that controlled dangerous substances threatened serious harm.

The defendant takes issue with the trial court’s finding that the appellant’s offense threatened to cause serious harm. The defendant asserts that there was no factual support at all for holding that the defendant has threatened harm in any way and that it was improper for the trial judge to interject its personal belief about the substance involved in this case. The trial court found that the offense did not directly attribute to causing serious harm, but noted that dangerous substances are just that, and that the matter of their harm was controlled by the legislature. It is not improper for a trial judge to take into account public concerns in imposing sentence as long as the sentence is particularized to the defendant. The threat of harm to society of the use of controlled dangerous substances is a proper factor to consider in particularizing the sentence to the defendant.

Next, the defendant asserts that the trial court erred in considering the fact that the charge of receiving stolen goods was dismissed and that the defendant had a pending charge of simple burglary of an inhabited dwelling. This contention is without merit. Any and all relevant factors can and should be taken into account by the trial court. The aim of LSA-C.Cr.P. Art. 894.1 is to make the punishment fit the criminal as well as the crime. To meet that ideal, a trial judge must consider every circumstance surrounding the offense, including the plea bargaining. To do otherwise would be to ignore clearly relevant information which has an important bearing on the true nature of the defendant’s conduct and the type of punishment most appropriate for that conduct. See State v. Lanclos, 419 So.2d 475 (La.1982).

Third, the defendant asserts that the trial court erred in speculating that the defendant was attempting to pawn stolen merchandise when stopped by the police. The defendant asserts that there was no basis in the record to substantiate this statement by the court. A review of the record supports defendant’s assertion that there was no evidence in the record to indicate that the defendant was attempting to pawn the stolen weapon. However, we do not find this to be reversible error since this was but one of many considerations articulated by the court in sentencing the defendant for possession of cocaine. LSA-C.Cr.P. Art. 921.

We find that the trial court adequately complied with the guidelines set forth in LSA-C.Cr.P. Art. 894.1. We further find that the record reflects that the trial court did adequately consider these guidelines in particularizing the sentence to the defendant. The sentence imposed does not appear to be out of proportion to the severity of the offense or nothing more than a needless and purposeless imposition of pain and suffering. Therefore, this assignment of error is without merit.

Decree

Finding no error by the trial court, the defendant’s conviction and sentence are affirmed.

Affirmed.


author: NORRIS, Judge.

text:
    STATE of Louisiana, Appellee, v. Richard W. McKETHAN, Appellant.
    No. 16481-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1984.

      Timothy R. Fischer and William T. Allison, Shreveport, for appellant.
    Paul J. Carmouche, Dist. Atty., Carey T. Schimpf and John A. Broadwell, Asst. Dist. Attys., Shreveport, for appellee.
    Before JASPER E. JONES, SEXTON and NORRIS, JJ.
   NORRIS, Judge.

Defendant was arrested on two charges of distribution of marijuana, LSA-R.S. 40:966 A(l). He entered a plea bargain whereby the prosecution would drop one count in exchange for his guilty plea on the other. The validity of this guilty plea is not questioned. The district judge sentenced him to two and one half years at hard labor. The maximum sentence for this offense would have been ten years at hard labor and a fine of $15,000.

Defendant has appealed and brings two assignments of error. In the first, he contends the sentencing judge erroneously based his sentence in part on a twenty year old burglary conviction. In the second, he claims the sentencing judge erroneously denied his motion to suppress the prior burglary conviction because it resulted from a guilty plea made without representation of counsel and allegedly without intelligent waiver of counsel. We find no merit in either of these assignments and we therefore affirm.

ASSIGNMENT OF ERROR NO. 1

Defendant’s contention is that the sentencing judge should not have considered the 1964 burglary conviction because of its age. According to defendant, but for this burglary conviction he would have received a suspended or probated sentence under LSA-C.Cr.P. art. 893.

The fatal flaw with this argument is that defendant has misinterpreted the meaning of article 893. This led him to misconstrue the sentencing intent of the judge. Article 893 says, in pertinent part:

When it appears that the best interest of the public and of the defendant will be served, the court, after conviction of a felony for which the punishment is with or without hard labor or a felony which is a violation of the Controlled Dangerous Substances Law of Louisiana, non-capital felony, may suspend for the first conviction only the imposition or execution of any sentence, where suspension is allowed under the law....

Defendant assumes that this article mandates a suspended or probated sentence for any first felony offender. This is not correct. The purpose of article 893 is to divest the sentencing judge of discretion to suspend a sentence if a defendant has a previous felony conviction. See State v. Wimberly, 414 So.2d 666 (La.1982). On the first conviction, the judge may consider whatever factors and evidence he deems important to a determination of the best interest of the public and the defendant. Article 893 does not guarantee defendant suspension of sentence or probation on a first offense.

Defendant has asked this court to analogize article 893 to the Habitual Offender Statute, LSA-R.S. 15:529.1. As expressly stated therein, 15:529.1 shall not be applicable where more than five years have elapsed since the expiration of the maximum sentence, or sentences, of the previous conviction, or convictions, and the time of the commission of the last felony for which a defendant has been convicted. Defendant urges us to apply the same period of limitation to convictions used for purposes of article 893. We recognize that article 893 and R.S. 15:529.1 share many characteristics and objectives. See State v. Wimberly, supra. Yet article 893 significantly omits the five-year cleansing period and we refuse to read such a provision into that article.

We think the proper analogy is to LSA-C.Cr.P. art. 894.1, which lists factors to be considered by the sentencing judge in fixing a just sentence within the usually wide limits of criminal statutes. Under this article a sentencing judge may consider any prior criminal activity of a defendant, even if that activity did not result in conviction or arrest. State v. Washington, 414 So.2d 313 (La.1982); State v. Brown, 410 So.2d 1043 (La.1982); LSA-C. Cr.P. art. 894.1 B(7). With equal force, the sentencing judge should be able to consider a conviction even though it is very old, provided the guidelines of article 894.1 are substantially followed.

We therefore find it was proper for the judge to consider the prior burglary conviction as evidence of defendant’s past criminal history. In his oral reasons he adequately justified both the sentence imposed and the denial of probation. The factors he mentioned apply equally to determination of the public’s and the defendant’s best interest, under article 893, as they do to the appropriateness of the sentence, under article 894.1. Furthermore, we will not set aside a sentence in the absence of abuse of the sentencing judge’s wide discretion. See State v. Square, 433 So.2d 104 (La.1983); State v. Brooks, 431 So.2d 865 (La.App.2d Cir.1983); State v. Hammonds, 434 So.2d 452 (La.App.2d Cir.1983), writ denied 439 So.2d 1074 (La.1983).

The judge noted that defendant’s present criminal acts were neither provoked nor justified and that defendant was apparently engaged in drug sales as a wilful commercial enterprise. He had been arrested on two counts. At the age of forty-seven, he is old enough to grasp the seriousness of his offense and to understand the dangers spawned by drug trafficking. Defendant had a “significant” history of misdemeanor offenses and the judge considered him likely to return to criminal ways without correctional treatment. Finally, there was the burglary conviction, which was many years ago.

The judge also noted a number of mitigating factors. Defendant had pled guilty, thereby showing some penitence for his conduct, and he had been regular in his child support payments for some time. While out on bail, he was seriously injured in an automobile accident which left him permanently disabled and would make it very difficult for him to serve time at hard labor. All these factors encouraged the sentencing judge to place defendant’s sentence in the lower end of the scale of his potential exposure.

We reiterate that LSA-C.Cr.P. art. 893 does not automatically entitle a first offender to suspension or probation. It does give the sentencing judge wide discretion to consider any factors that may bear upon the public’s and the defendant’s best interest. We conclude the sentencing judge properly considered the earlier burglary conviction for that purpose. This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

In this assignment, defendant claims the trial judge erred by failing to suppress the burglary conviction on grounds that it was constitutionally infirm. His theory is that a conviction based on an invalid guilty plea should not count as a conviction and should not, consequently, deprive him of possible probation or suspension under LSA-C.Cr.P. art. 893.

Defendant has mentioned, without elaboration, the case of Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), and its progeny. Johnson holds that a conviction against a defendant who did not effectively waive his constitutional right to assistance of counsel is null and void. Defendant’s argument is that liis earlier conviction should have been suppressed by the sentencing judge for the same reasons that led the U.S. Supreme Court to declare the conviction null in Johnson. Defendant has also mentioned some degree of coercion in his 1964 guilty plea.

Recent jurisprudence, however, imposes on the defendant the burden of proving that his earlier guilty plea is invalid when, as here, he attacks the plea collaterally, the plea was entered before December 8, 1971, and the transcript of the arraignment is regular on its face. See State v. Holden, 375 So.2d 1372 (La.1979) and State v. Roland, 379 So.2d 721 (La.1979). Thus it was defendant’s burden to prove that his 1964 guilty plea was either involuntary or unknowing. State v. McGinnis, 413 So.2d 1307 (La.1981). Defendant did not meet this burden; he merely alleged that he was unrepresented at the time, while the colloquy at arraignment clearly shows that the judge informed him three times of his entitlement to appointed counsel and that defendant expressly waived that right. Furthermore, defendant has admitted not only that he was guilty of the burglary but that he had previously negotiated a guilty plea in federal court and thus was he fully aware of his constitutional right to counsel. Defendant has also failed to prove the degree of coercion and threats that would entitle him to reversal under Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962). Under these circumstances, we can find no constitutional infirmity such as defendant complains of. The lower court correctly refused to suppress the burglary conviction.

Even had it been error not to suppress the burglary conviction, we find the sentencing judge placed very little emphasis on it, thus bringing the failure to suppress into the purview of the harmless error rule. LSA-C.Cr.P. art. 921. Although the sentencing judge mentioned the conviction several times, he summarized its influence on him as follows:

Additionally, we would note that the defendant is not eligible for a suspended sentence, by virtue of the fact that the burglary conviction about which the Court just discussed and ruled, makes him ineligible for a suspended sentence. Even if he was, we are not satisfied that he could respond affirmatively to probationary treatment, because of his past history. R.p. 55
[Emphasis added.]

Thus, the judge admitted the burglary conviction and considered it in imposing sentence, but the amount of weight he placed on it was so small that his result would not have been different otherwise. Whether or not his refusal to suppress the conviction was erroneous, defendant’s substantive rights were not affected and there is no grounds for reversal. LSA-C.Cr.P. art. 921.

Furthermore, for reasons expressed in our discussion of the first assignment of error, the trial judge had the discretion to impose a sentence of imprisonment for even a first offense. Suppression of the burglary conviction would not have guaranteed defendant a suspension of sentence or probation. State v. Wimberly, supra. Nor would suppression of the burglary conviction have resulted in a different sentence in the instant case. Defendant’s second assignment of error is without merit.

Accordingly, defendant’s conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.

      . Before he was sentenced, defendant successfully suppressed a 1959 federal felony conviction under the Dyer Act, 18 U.S.C. § 2312. The sentencing judge’s rationale for suppressing this felony conviction was that the particular conduct proscribed under the Dyer Act would have translated into only a misdemeanor under Louisiana law, LSA-R.S. 14:68, unauthorized use of a movable. For reasons expressed in this opinion, we think the Dyer Act conviction would have been admissible as evidence of criminal conduct under LSA-C.Cr.P. arts. 894.1 and 893.

      . Defendant’s record of Louisiana misdemeanor convictions includes two of peeping tom and one each of theft of gasoline, selling intoxicants, obscenity and vagrancy. Defendant also has a number of misdemeanor arrests in Louisiana and in Columbus, Ohio, Dallas, Del Rio, and Big Spring, Texas for which no dispositions are shown. We agree with the sentencing judge’s assessment of this misdemeanor record.


text:
    STATE of Louisiana, Appellee, v. Raymond G. PRINGLE a/k/a Raymond G. Thomas, Appellant.
    No. 16486-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1984.
    Rehearing Denied Nov. 29, 1984.

      Indigent Defender Board by Wayne J. Blanchard, Richard E. Hiller, Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Robert W. Gillespie, Jr., John A. Broadwell, Asst. Dist. Attys., Shreveport, for appellee.
    Before HALL, MARVIN and SEXTON, JJ.
   SEXTON, Judge.

The defendant, Raymond G. Pringle, a/k/a Raymond G. Thomas, was 16 years old at the time of the instant offenses. The defendant was charged by bill of information with Aggravated Burglary in violation of LSA-R.S. 14:60 and with Attempted Aggravated Rape in violation of LSA-R.S. 14:42 and 14:27. The nature of these offenses permit the defendant to be charged and prosecuted as an adult (LSA-R.S. 13:1571.1). Pursuant to negotiations between the defendant’s appointed counsel and the State of Louisiana, the defendant pled guilty to Aggravated Burglary with the understanding that the defendant would receive a sentence between twenty and twenty-five years at hard labor of a maximum imposable thirty years at hard labor under LSA-R.S. 14:60. The remaining attempted aggravated rape charge was to be dropped. After receiving a twenty-four year hard labor sentence the defendant appealed claiming excessiveness of sentence. Finding no abuse of discretion in the trial court’s imposition of this twenty-four year hard labor sentence, the defendant’s sentence is affirmed.

It is well-settled that the sentencing judge is given wide discretion in imposing a sentence within the statutory limits and such a sentence should not be set aside as excessive in the absence of a manifest-abuse of discretion by the sentencing judge. State v. Square, 433 So.2d 104 (La.1983); State v. Brooks, 431 So.2d 865 (La.App.2d Cir.1983); State v. Hammonds, 434 So.2d 452 (La.App.2d Cir.1983), writ denied 439 So.2d 1074 (La.1983).

The sentencing guidelines of LSA-C. Cr.P. Art. 894.1 provide the criteria to consider in determining whether a sentence is excessive. State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Tully, 430 So.2d 124 (La.App.2d Cir.1983). While the trial judge need not articulate every aggravating and mitigating circumstance outlined in Art. 894.1, the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant. State v. Hammonds, supra; State v. Cunningham, 431 So.2d 854 (La.App.2d Cir.1983); State v. Smith, 433 So.2d 688 (La.1983).

The arrest and prosecution of the defendant arose from the following factual incident. Shortly after midnight on August 15, 1983, an 83 year old resident of the town of Ida, Louisiana was awakened by the sounds of someone making a forced entry into her residence. She obtained a .32 caliber revolver from beneath her pillow but her assailant, the defendant, beat her and obtained the pistol from her. The defendant then attempted to remove the underclothing of this female victim but was unable to do so. The defendant was arrested shortly thereafter for a separate offense of criminal trespass. Fingerprints obtained from the firearm taken from the female victim matched those of the defendant. Hair samples removed from the bed of the victim were determined to have sim-iliar characteristics to those of the defendant. The victim was hospitalized briefly for the injuries to her face. After consulting with his attorney and his father, this defendant entered a plea of guilty with a range of sentencing stipulated.

In spite of the limited articulation of sentencing considerations in this matter, we find adequate compliance with LSA-C. Cr.P. Art. 894.1 such that remand for re-sentencing is unnecessary. Both the facts of the instant offense and the pre-sentence investigation taken together with the remarks of the trial court in sentencing are sufficient to illumine the sentencing considerations of the trial court judge. The Court obviously considered the youth of the defendant at the time of the commission of this offense as a mitigating factor. The Court also apparently considered that considerable leniency had been granted the defendant as a result of the plea bargain entered into between the defendant and the State of Louisiana. The trial court had previously agreed to limit his sentence to a range between twenty and twenty-five years at hard labor. The trial court assessed a penalty somewhat less than the maximum available penalty. While a twenty-four year hard labor sentence is certainly a severe one for a juvenile offender, the offense committed by the defendant was indeed serious also. This offense involved a physical attack and beating of an elderly female. The facts of that offense merit the imposition of a severe penalty. We do not find inadequate articulation of sentencing considerations in this record to merit remand for resentencing and find no error in the trial court's imposition of a twenty-four year hard labor sentence on this defendant. Accordingly, the defendant’s sentence is affirmed.

AFFIRMED.