author: JUDE G. GRAVOIS, Judge.

text:
    STATE of Louisiana v. Darryl MOODY.
    No. 11-KA-343.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 28, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Shannon K. Swaim, Assistant District Attorneys, Gretna, LA, for PlaintiffiAppellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges WALTER J. ROTHSCHILD, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   JUDE G. GRAVOIS, Judge.

| ¡¿Defendant Darryl Moody appeals his conviction for one count of armed robbery with a firearm, in violation of La. R.S. 14:64 and 14:64.3. On appeal, he argues that the trial court erred in denying his motion to suppress his statement. For the following reasons, we affirm. We also remand for the correction of errors patent as noted below.

PROCEDURAL HISTORY

On September 13, 2007, the Jefferson Parish District Attorney filed a bill of information charging defendant, Darryl Moody, with one count of armed robbery with a firearm, in violation of La. R.S. 14:64 and 14:64.3. Defendant was subsequently arraigned and pled not guilty.

Defendant filed a Motion to Suppress Confession, Identification and Physical Evidence, which was denied by the trial court. On January 13, 2010, [,-¡defendant proceeded to trial. After a three-day trial, a twelve-person jury found defendant guilty as charged. On January 27, 2010, the trial court sentenced defendant to 15 years in the Department of Corrections without the benefit of parole, probation or suspension of sentence. The trial court then ordered defendant’s sentence to be enhanced by an additional five years imprisonment under the firearm enhancement provision of La. R.S. 14:64.3. On that same date, defendant filed a motion to reconsider sentence, which the trial court denied. This timely appeal followed.

FACTS

The victim, Mylinda Gettys, testified that on July 24, 2007, she went to Clear-view Mall in Metairie to make a credit card payment at Sears. After exiting Sears, she got into her Honda Accord and put her purse on the passenger seat. As she leaned over to close her car door, a van pulled up into the vacant handicapped parking spot next to her car. Before Ms. Gettys was able to close her car door, the individual seated on the passenger’s side of the van quickly exited the van and approached her with a gun. He stood in the opening of her car door, leaned over, and put the gun against her body. He demanded that she give him her money and her car key. She handed him her purse and her car key. He then demanded that she get out of the car. She complied. She testified that they were face-to-face for “probably 10, 15 seconds.” She stated that she was staring at him, waiting for him to tell her what to do. She was afraid he was going to shoot her. The driver then got out of the van. At that point, she decided to run to the back of her car and duck |4down. As she was ducked down, she tried to move a couple of car lengths away. She then called 911 from her cell phone.

Sergeant John Carroll, a detective with the robbery division of the Jefferson Parish Sheriffs Office, was assigned to investigate the robbery. When he arrived at the scene, he spoke with Ms. Gettys, who gave him a description of the perpetrator, which he documented in his supplemental report.

A week later, on July 31, 2007, Sergeant Andre LeBlanc, a New Orleans police officer, responded to a 911 dispatch regarding suspicious activity in the Wal-Mart parking lot in Algiers. Upon his arrival, Sergeant LeBlanc detained defendant and another individual, Terrance Brown, who met the description of the individuals in the suspicious persons complaint. Sergeant LeBlanc then reviewed the Wal-Mart surveillance video, which showed the two individuals arriving in a grayish or silver colored Honda Accord. He ran the license plate number of the Honda Accord and learned that it had been carjacked. He then searched defendant and Mr. Brown and discovered the key to the Honda in Mr. Brown’s possession. Defendant and Mr. Brown were arrested for possession of a stolen vehicle and placed in the rear of the police unit. Sergeant LeBlanc then contacted Jefferson Parish detectives via dispatch, and Sergeant Carroll and Detective David Mascaro of the Jefferson Parish Sheriffs Department subsequently arrived.

Upon his arrival at Wal-Mart, Sergeant Carroll saw defendant and Mr. Brown detained in the back of a New Orleans police car. He also saw Ms. Gettys’ Honda Accord in the back of the parking lot. He contacted the Jefferson Parish crime scene unit to process the vehicle. Defendant and Mr. Brown were ^transported to the Fourth District station of the New Orleans Police Department and charged with possession of a stolen vehicle. Sergeant Carroll and Detective Mascaro then interviewed the suspects at the Fourth District station. That afternoon, defendant gave a statement in which he confessed to robbing Ms. Gettys at the Clearview Mall in Metairie.

That same day, Ms. Gettys went to the New Orleans Police Station to see her car. Sergeant Carroll testified that Ms. Gettys did not see defendant or Mr. Brown at the police station, and Sergeant Carroll did not inform her that anyone had been arrested in connection with the crime. Ms. Gettys similarly testified that she was unaware that anyone had been apprehended in connection with the robbery when she went to the Fourth District station to see her car. When Sergeant Carroll returned to Jefferson Parish, he prepared arrest warrants for defendant and Mr. Brown for the armed robbery of Ms. Gettys.

The next day, Sergeant Carroll showed Ms. Gettys a six-picture photographic lineup, which included a photograph of defendant. Ms. Gettys identified defendant as the perpetrator and signed the back of the photographic line-up. On that same day, Ms. Gettys gave a taped statement documenting her positive identification.

At trial, Ms. Gettys identified defendant as the perpetrator. The prosecutor asked, “Ms. Gettys, are you absolutely positive that [defendant] sitting right here (indicating) is the person who robbed you?” Ms. Gettys responded, ‘Tes.” She further testified that at the time of the crime, it was daylight outside and the perpetrator did not have a mask on his face or anything covering his head.

[f,Ms. Charles Colleen Barjon, a counsel- or coordinator for the Recovery School District, testified for the defense. She stated that she was the custodian of records for the district, and that she was responsible for maintaining student records in 2007, including defendant’s 2007 summer school records from Douglas High. She testified that the records reflected that defendant was enrolled in the morning and afternoon summer school sessions in July 2007. The records further indicated that defendant was present for both the morning and afternoon sessions of class on July 24, 2007, the date of the robbery. She acknowledged, however, that the attendance/grade sheet for the week of July 23, the week of the robbery, appeared to be identical to the week of July 2 and the week of July 9, in that every student, including defendant, had identical grades and attendance.

The records further reflected that defendant was present for the morning and afternoon sessions on July 31, 2007. However, Ms. Barjon acknowledged that the attendance/grade sheet for the week of July 30 appeared to be identical to the week of July 23, as every student received the same grades and attendance for both weeks. Additionally, defendant could not have been present in class on the afternoon of July 31, 2007 because he was in police custody at that time.

Mr. Albert Robinson, defendant’s summer school teacher, testified that his records were reliable, even though defendant was marked present and given a grade on the day he was in police custody.

At trial, defendant denied robbing Ms. Gettys on July 24, 2007. He denied being at the Clearview Mall on the afternoon of the robbery, pointing a gun at Ms. Gettys, and taking her purse. He testified that on July 24, 2007, the date of the armed robbery, he had attended both sessions of summer school.

|70n July 31, 2007, the date he was arrested, defendant stated that he completed his exams for session one and two in the morning session and then left school. He testified that Mr. Brown drove the Honda Accord, which ran out of gas when they arrived at Wal-Mart. He stated that they were headed to Mr. Brown’s mother’s job on Behrman Highway to get some money when they were arrested. He testified that he had no knowledge that the Honda had been stolen when he was with Mr. Brown on July 31.

ASSIGNMENT OF ERROR — Denial of motion to suppress statement

In his only assignment of error, defendant argues that the trial court erred in denying his motion to suppress his statement. He contends that he was physically threatened by Detective Mascaro. Specifically, he contends in brief that Detective Mascaro grabbed him “by the back of the neck and slapped him around the hairline where no bruising would appear.” He argues in brief that he was small and easily physically intimidated by the detectives, and that the detectives “interrogated him until they got [him] to say exactly what they wanted.” Defendant contends that the State failed to “prove to beyond a reasonable doubt” that defendant’s statements were voluntary.

The State argues in brief that there is no evidence that defendant’s statements were coerced or unconstitutionally obtained “other than [defendant’s] self-serving trial testimony.” The State further contends that defendant failed to argue that his statement was the product of abuse or coercion in his motion to suppress; thus, he is precluded from raising this issue on appeal. Additionally, the IsState argues that defendant’s “trial testimony regarding coercion does not affect the admissibility of his statement, but rather, his testimonial evidence merely affects the weight of the evidence which was presented to the jury,” citing State v. Tucker, 332 So.2d 797 (La.1976).

A defendant bears the burden of asserting the basis for his motion to suppress in order to give the State adequate notice so that it may present evidence and address the issue. State v. Cambrice, 10-26, p. 18 (La.App. 5 Cir. 4/26/11), 64 So.3d 363, 375 (citing State v. Jackson, 04-1388, p. 5 (La.App. 5 Cir. 5/31/05), 904 So.2d 907, 911, writ denied, 05-1740 (La.2/10/06), 924 So.2d 162 (citing La.C.Cr.P. art. 703(E); State v. Smith, 94-120, p. 4 (La.App. 5 Cir. 5/31/94), 638 So.2d 452, 455)). After defendant files a motion to suppress, the State has the burden to prove defendant’s confession was of a free and voluntary nature. Cambrice, supra (citing Jackson, supra (citing La.C.Cr.P. art. 703(D))); see also State v. Favors, 09-1034, p. 9 (La.App. 5 Cir. 6/29/10), 43 So.3d 253, 258, writ de nied, 10-1761 (La.2/4/11), 57 So.3d 309 (citing La.C.Cr.P. art. 703(D)).

On appeal, the defendant is limited to the grounds he articulated at trial and may not raise a new basis for the claim on appeal, even if it would be meritorious. Cambrice, supra (citing Jackson, supra), see also State v. Merritt, 04-204, p. 6 (La.App. 5 Cir. 6/29/04), 877 So.2d 1079, 1082, writ denied, 04-1849 (La.11/24/04), 888 So.2d 228.

In the present case, defendant filed a Motion to Suppress Confession, Identification and Physical Evidence on September 17, 2007. The motion sought to suppress defendant’s statement on the grounds that the statement was not given freely and voluntarily, but was “made under the influence of fear, intimidation, threats or other duress, ...; and/or [defendant had not been advised of his rights |9under Miranda, or had invoked his right to remain silent or to have an attorney and this right had not been honored.”

During the suppression hearing, defense counsel only asked a few questions regarding defendant’s statement. He asked Sergeant Carroll why he had not obtained a witness’s signature on defendant’s Waiver of Rights form. Sergeant Carroll responded that Detective Mascaro was not present when defendant signed the form. Defense counsel then asked, ‘You couldn’t wait until a witness was present to sign that form along with Mr. Moody?” Sergeant Carroll responded, “No. I didn’t have to.” Defense counsel asked questions concerning Ms. Gettys’ identification of defendant. Defense counsel did not present any witnesses or offer any evidence, and defendant did not testify. Defense counsel stated that he had a brief argument, at which time he asked for the identification of defendant to be suppressed “because the State failed to get Ms. Gettys to identify [defendant] in open court.” However, defense counsel never argued that defendant’s statement was the result of abuse or coercion nor did he verbally request that defendant’s statement be suppressed. The trial court denied defendant’s motion to suppress, finding that there were no violations and that defendant understood his rights. Defense counsel objected to the trial court’s ruling.

In Cambrice, supra, defendant argued that the trial court erred in denying his motion to suppress his statement, claiming that he was coerced by the police into giving the statement, and therefore, his statement was not given freely or voluntarily. He contended that he was placed in a holding cell that was “extremely crowded, noisy and depressing” and that he was “hungry and sleepy” when he was questioned. Defendant also argued that the sergeant “threatened him and coerced him to confess to robbing the store” and told him that “he could charge [defendant] |inwith multiple crimes that could result in him not being able to see his sickly mother before she dies.” Thus, defendant alleged that he agreed to say whatever the sergeant wanted him to say “out of fear.” Id., 10-26, p. 14-15, 64 So.3d at 373. This Court held that defendant failed to present any evidence or argument at the motion to suppress hearing regarding the specific grounds for suppression that he argued on appeal, particularly the “abuse” conditions alleged in his appellate brief. Accordingly, this Court held that these grounds were not properly before the court on appeal, and declined to consider them. Id., 10-26 at 18, 64 So.3d at 375.

In the present case, given defendant’s failure to present any evidence or argument at the motion to suppress hearing regarding the specific grounds for suppression that he now argues on appeal, particularly the abusive conditions that he now alleges in his appellate brief, we find that these grounds are not properly before this Court. Nevertheless, a review of defendant’s claim shows that it has no merit.

A trial court is afforded great discretion when ruling on a motion to suppress, and its ruling will not be disturbed absent an abuse of that discretion. Favors, 09-1034 at 9, 43 So.3d at 259 (citing State v. Lee, 05-2098 (La.1/16/08), 976 So.2d 109, 122, cert. denied, 555 U.S. 824, 129 S.Ct. 143, 172 L.Ed.2d 39 (2008); State v. Nicholas, 06-903, p. 6 (La.App. 5 Cir. 4/24/07), 958 So.2d 682, 686). An appellate court is not limited to the evidence presented at the motion to suppress hearing but also may consider pertinent evidence presented at trial. Favors, 09-1034 at 9, 43 So.3d at 259 (citing State v. Mollette, 08-138 (La.App. 5 Cir. 11/25/08), 2 So.3d 461, 467, writ denied, 09-155 (La.10/16/09), 19 So.3d 472).

InBefore an inculpatory statement made during a custodial interrogation may be introduced into evidence, the State must prove beyond a reasonable doubt that the defendant was first advised of his Miranda rights, that he voluntarily and intelligently waived his Miranda rights, and that the statement was made freely and voluntarily and not under the influence of fear, intimidation, menaces, threats, inducement, or promises. Loeb, 09-341 at 11, 34 So.3d at 924-25 (citing LSA-R.S. 15:451). Whether a defendant’s purported waiver of Miranda rights was voluntary is determined by the totality of the circumstances. Loeb, 09-341 at 11, 34 So.3d at 925. The critical factor in a knowing and intelligent waiver is whether the defendant was able to understand the rights explained to him and voluntarily gave the statement. Id. at 925. Testimony of the interviewing police officer alone may be sufficient proof that a defendant’s statements were freely and voluntarily given. State v. Mackens, 35,350, p. 13 (La.App. 2 Cir. 12/28/01), 803 So.2d 454, 463, writ denied, 02-0413 (La.1/24/03), 836 So.2d 37.

In the present case, Sergeant LeBlane, Sergeant Carroll and Ms. Gettys testified for the State at the suppression hearing. Sergeant Carroll testified regarding the circumstances surrounding defendant’s statement. He stated that on July 31, 2007, he executed a Rights of Arrestee form in the name of defendant, Darryl Moody, while at the NOPD Fourth District Police Station in Algiers. He stated that he advised defendant of his Miranda rights and defendant affixed his initials next to each and every one of those rights and then signed the form, indicating that he had been read his rights and he understood the rights that were read to him. Additionally, Sergeant Carroll testified that defendant signed the Waiver of Rights form indicating that he wished to waive his rights and provide a 112statement without consulting an attorney. Sergeant Carroll denied forcing, threatening or coercing defendant into providing a statement. He also denied promising him anything in exchange for his statement. Sergeant Carroll further stated that he had audiotaped defendant’s statement, which was subsequently transcribed. He stated that the transcript was a clear and accurate depiction of what is contained on the tape. He further testified that Detective David Mascaro was present when he took defendant’s statement.

In defendant’s audiotaped statement, he acknowledged that he signed and initialed the Rights of Arrestee form, which indicated that the officers had read him his rights and that he understood those rights. He further conceded that he signed the Waiver of Rights form, indicating that he was willing to make a statement and answer questions. In his statement, he admitted that he approached the victim in her Honda at Clearview Mall and said, “Give me your purse.” He stated that he had a BB gun in his hand. However, he denied that she gave him her car keys.

At trial, the State introduced the transcription of defendant’s audiotaped statement and the micro-cassette tape used to record defendant’s statement. Defense counsel objected to the introduction of the tape itself because “the detective did not state how he was able to recognize [the] micro-cassette tape.” The trial court noted the objection, but admitted the tape into evidence. The State then played defendant’s statement for the jury.

At trial, Sergeant Carroll testified that when he arrived at the Fourth District station, the two suspects had been placed in separate areas. Sergeant Carroll stated that he read defendant his rights from a Jefferson Parish Sheriffs Office Rights of Arrestee form, and then defendant signed the form. When the prosecutor asked if defendant seemed capable of understanding those rights, Sergeant Carroll stated, “Yes.” When asked if he forced defendant to sign the form, he stated, “No.” The | ^prosecutor further asked, “Did anyone hit [defendant] ... yourself or Detective Mascaro? ... Did anyone pull — pull a weapon on him? ... Did anyone touch him in any way to get him to sign this form?” Sergeant Carroll responded, “No.” Defendant gave a taped statement forty-eight minutes after signing the form.

Sergeant Carroll testified that after defendant signed the form, he conducted a pre-interview, during which time he tried to obtain a confession from defendant. Sergeant Carroll stated that it was not too difficult to obtain defendant’s confession because he had information from a co-defendant, and he also knew that defendant had been caught in the victim’s car at Wal-Mart. Sergeant Carroll stated that defendant was cooperative.

The interview was taken in a trailer. Sergeant Carroll testified that “when you walk in [sic] it’s wide open,” but they conducted the interview on the left side of the trailer. He stated, “They had people going in [sic] out the other side of the trailer because we can’t stop NOPD operation[s] just because we’re there working a case, but they were doing their thing on the opposite side of the trailer.” The prosecutor asked, “Were you able to see other people?” Sergeant Carroll responded, “Yes.” The prosecutor asked, “[I]n this case did you do anything to threaten [defendant] into giving that statement? Did you threaten any of his family members?” He responded, “No.”

At trial, Detective Mascaro testified that he was not present when defendant was initially read his rights, but he was present for defendant’s taped statement and for portions of the pre-interview. He testified that defendant was cooperative and agreed to go on tape. The prosecutor asked Detective Mascaro, “[W]hen you spoke to [defendant] and Sergeant Carroll spoke with [defendant], did either one of you tell him what to say on that tape?” Detective Mas-caro responded, “No.”

|MAt trial, defendant testified that, upon arriving at the police station, he was brought to a trailer, which consisted of an open room. He admitted that he signed a Rights of Arrestee form, although he testified that he was pressured and coerced into signing the form. He stated, “Masca-ro put his hand around my neck ... [f]rom behind.” He further testified that they slapped him on the side and back of his head. He stated that he was alone with the detectives in the trailer. He acknowledged giving a statement, but testified that he had been pressured into giving the statement and that it was not correct. He testified that they told him to say that he robbed Ms. Gettys. When asked what happened during the pre-interview, defendant stated that “they told me to find directions on the paper ... the paper they had got from [Mr. Brown].”

The State then recalled Sergeant Carroll. Sergeant Carroll denied that he directed defendant how to respond during his taped statement. The prosecutor then asked, “Did you during the taped statement ever lay a hand or did you ever see Detective Dave Mascaro lay a hand on the defendant?” Sergeant Carroll responded, “No.” The State then recalled Detective Mascaro, who denied grabbing defendant by the neck and slapping him on the neck.

In the present case, defendant was advised of his Miranda rights. He initialed next to each of his rights and signed the bottom of the Rights of Arrestee form, indicating that he had read the statement of his rights. Furthermore, he signed under the waiver of rights section prior to giving his audio recorded statement. By signing, he indicated that he was willing to make a statement and answer questions. His signature further indicated that he did not want a lawyer, and that no promises or threats had been made to him, and he had not been pressured or coerced.

[ ifiThe State showed that defendant made a knowing and intelligent waiver of his right to remain silent. Even though defendant argues that the statement should have been suppressed because he was coerced by the police into giving the statement, and as such, his statement was not freely or voluntarily made, the State’s evidence shows that defendant was read his rights and that he indicated that he understood those rights. Because defendant did not invoke his right to remain silent, and because he subsequently made a valid waiver, the trial court did not abuse its discretion in denying defendant’s motion to suppress. This assignment of error is without merit.

ERRORS PATENT DISCUSSION

The record was reviewed for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

The transcript reflects that defendant was found guilty by a jury. However, the commitment states that defendant was “found guilty by a judge.” Where there is a conflict between the transcript and the minute entry, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Therefore, it is ordered that the commitment be amended to conform to the transcript. See State v. Jefferson, 03-820, p. 10 (La.App. 5 Cir. 1/27/04), 866 So.2d 931, 943-44, writ denied, 04-727 (La.9/24/04), 882 So.2d 1166. Further, it is ordered that the clerk of court of the district court transmit the original of the amended commitment to the officer in charge of the institution in which defendant is incarcerated, and to the Legal Department of the Louisiana Department of Corrections. See La.C.Cr.P. art. 892 B(2); State ex rel. Stark v. State, 06-1457 (La.2/16/07), 949 So.2d 409, 410.

| if,The record further indicates that the trial judge failed to notify defendant of the two-year prescriptive period for filing an application for post-conviction relief, as required by La.C.Cr.P. art. 930.8. Although the commitment/minute entry indicates that defendant was advised of the prescriptive period for filing for post-conviction relief, the sentencing transcript indicates that he was not so advised. When there is a discrepancy between the transcript and the commitment/minute entry, the transcript governs. Lynch, supra. Accordingly, defendant is advised by way of this opinion that no application for post-conviction relief, including an application which seeks an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La.C.Cr.P. arts. 914 and 922, as per La.C.Cr.P. art. 930.8.

The commitment reflects that the trial court sentenced defendant to an additional five years under the firearm penalty enhancement and that the five years was “to run consecutive with the 15-year sentence.” However, the transcript does not reflect that the trial court explicitly stated that the sentences were to run consecutively. However, La. R.S. 14:64.3(A) provides that the additional penalty imposed pursuant to this Subsection shall be served consecutively to the sentence imposed under the provisions of R.S. lí:6L (Emphasis added.) The word “shall” makes these statutory requirements mandatory. La. R.S. 1:3; La.C.Cr.P. art. 5. In this case, because sentencing on the enhancement is not a matter of judicial discretion but is mandated by statute, no corrective action is required.

11 ^CONCLUSION

For the foregoing reasons, defendant’s conviction is affirmed. This matter is remanded to the trial court for amendment of the commitment as instructed above.

AFFIRMED; REMANDED WITH INSTRUCTIONS

      . This was defendant’s second trial. Defendant’s first trial, which started on June 23, 2009, resulted in a mistrial.

      . Defendant was resentenced on February 24, 2010. Defendant received the same sentence as he did on January 27, 2010. The purpose of resentencing may have been to clarify defendant’s sentence with regard to the firearm enhancement provision. The reason for re-sentencing is unclear from the record.

      . James Willie, the head of security at the Wal-Mart in Algiers, called 911 on July 31, 2007, regarding the suspicious activity.

      .Aischa Prudhomme, a latent print examiner for the Jefferson Parish Sheriff's Office Crime Lab, testified that defendant’s right index finger and right middle finger were identified on the exterior of the right front door of the Honda Accord.

      . See assignment of error for discussion of defendant’s interview.

      . Ms. Gettys testified that Sergeant Carroll did not in any way suggest to her which person to pick out from the photo line-up. She stated that he did not tell her that the person who robbed her was in the photo lineup, and he did not force her to pick out someone or promise her something in exchange for picking someone out.

      .The attendance/grade sheet for the week of July 23, the week of the robbery, appears to be a photocopy of either the week of July 2 or July 9 with the dates changed at the top of the page.

      . Defendant further states that at the suppression hearing, the detectives gave the "usual, self-serving litany that no promises were made; the statement was not forced; there was no physical touching or threats; and [defendant] willingly gave an incriminating statement.” Defendant contends that Sergeant Carroll's credibility has been called into question by recent events in which he was arrested for conspiracy to distribute cocaine, domestic abuse and simple criminal damage to property and fired from the police force.

      . Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966).

      . The United States Supreme Court defined “custodial interrogation" as the “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda v. Arizona, 384 U.S. at 444, 86 S.Ct. at 1612.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Andrel JOHNSON.
    No. 11-KA-375.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 28, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appel-lee.
    Lieu T. Vo Clark, Attorney at Law, Mandeville, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   JUDE G. GRAVOIS, Judge.

| aThe defendant, Andrei Johnson, has appealed the sentences imposed for his convictions of three counts of first degree robbery in violation of LSA-R.S. 14:64.1. After being found guilty by a 12-person jury, the trial judge sentenced the defendant to 30 years imprisonment on each count, with the sentences on counts two and three to run consecutively, resulting in a total sentence of 60 years. For the reasons that follow, we affirm the sentences and remand with instructions for correction of the commitment.

FACTS

At trial, Ronald Harris testified that on the evening of December 15, 2008, he answered a knock on the door of his apartment and was met by a man who asked for a woman named Joyce. Mr. Harris informed this individual that no one named Joyce lived there. A few minutes later, the same man knocked again, and when Mr. Harris answered the door, a second man, later identified as the defendant, placed a gun in his face and pushed him back inside the apartment. Three men, including the defendant who was armed, entered the apartment. The man who originally knocked at the door did not. After bringing Mr. Harris Rupstairs, the three subjects took Mr. Harris’ wallet and money clip, containing money, from his pants pocket. One of the subjects inside the residence took Mr. Harris’ ATM card from his wallet, obtained his PIN number from him, left the residence for approximately forty minutes, and withdrew money from his bank account. The other two subjects, one being the defendant, remained in the residence and took other items belonging to Mr. Harris. Mr. Harris testified that when the third subject returned from the ATM with $200, the three subjects began arguing over how to split the money. The defendant claimed that he should receive the extra money because he had planned the robbery; another of the subjects claimed that he should get the additional money because he had gone to the ATM and obtained it. Mr. Harris testified that the subjects reminded him that “New Orleans was the murder capital of the U.S.” He took this as an implied threat. After receiving some of the money that had been withdrawn from the ATM, the defendant stated: “Now we’re gangsters.” Mr. Harris stated that the perpetrators told him to sit on the stairs and not call the police while they left. A short time later, Mr. Harris called the police. Neighbors reported seeing the four men escape in a white Cadillac Esca-lade.

Mr. Wayne Barber and his girlfriend, Jolie St. Germain, who were the victims of the second robbery, also testified at the trial. They testified that shortly after returning home on the evening of December 19, 2008, their lights suddenly went out. Mr. Barber then went outside to check on the power. While outside, Mr. Barber was approached by two unknown black males who were armed with guns and wearing bandanas covering their faces. The men attempted to force Mr. Barber back inside; however, he refused and began to run down the street in an attempt to lure the men away from the house. Eventually, the men backed off and made their way into the house. Mr. Barber went to a neighbor’s house for help.

|4Ms. St. Germain testified that the lights came back on. She walked into the bedroom and was met by an armed black male who demanded money from her. She then went into the kitchen to get her purse where she observed two additional black males, who were also armed. The gunman with Ms. St. Germain took her purse and threw it to one of the other men and directed Ms. St. Germain to return to the bedroom where he pushed her face down on the bed and nudged up against her. Suddenly, the gunman became startled, backed away, and left the room. Ms. St. Germain locked the door and escaped through a window in the bedroom.

Mr. Barber observed three men run out of the house and drive away in a white Escalade. Ms. St. Germain’s purse, along with Mr. Barber’s wallet and watch, were taken in the robbery.

Testimony from the investigating officers indicated that they suspected that the two incidents might be related because the suspects in both cases were described as four black males, traveling in a white Cadillac Escalade. A white Escalade was stopped minutes after the December 19, 2008 robbery. The defendant was seated in the front passenger’s seat of the Esca-lade. The other suspects were also in the Escalade. Items belonging to Mr. Barber were recovered from them. Before the vehicle was stopped, officers observed unknown, dark items and papers being discarded out of the window of the Escalade.

Deputy Daniel Lincoln of the Jefferson Parish Sheriffs Office testified that he participated in the stop of the vehicle. He took custody of the defendant, and, after performing a search for officer safety, recovered a man’s watch from the defendant’s pocket. When questioned as to why the watch was not on his wrist, the defendant stated that it did not belong to him. After canvassing the scene with another deputy, a pair of brown gloves and receipts from Ms. St. Germain’s purse were discovered and placed into evidence.

|5The defendant was taken to the detective’s bureau, was advised of his rights, and gave a statement to Terry Graffeo, who was a detective for the Jefferson Parish Sheriffs Office at the time of the incident. In his statement to Detective Graf-feo, the defendant admitted to being on the scene, but denied knowledge or involvement of the robbery. The defendant claimed that after leaving the scene, one of the other perpetrators threw a watch to him just before they were stopped by police.

The vehicle was towed, a search warrant was obtained and executed, and some of the missing items belonging to Mr. Harris, including his Crossman .357 replica pellet gun, were recovered inside of the vehicle. A bandana, a C02 cartridge, and a box of Crossman pellets were also recovered from inside of the vehicle.

In response to a court order, Chase Bank provided surveillance footage of the suspects withdrawing money from Mr. Harris’ account. Chase Bank also provided Mr. Harris’ bank account records, which reflected that a $200 withdrawal was made on December 15 at approximately 10:30 p.m. Mr. Harris and Ms. St. Ger-main identified the defendant in a photographic lineup.

Reverend Rodney S. Lemon, Sr. testified for the defense. He stated that the defendant had been a member of his church for fourteen years. At the time of. the robberies, the defendant was in college. He had received a full football scholarship to the University of Arkansas at Monticello. Rev. Lemon testified that the defendant had a good reputation and was recognized in the community for his athletic accomplishments in football. On cross-examination, Rev. Lemon admitted that the defendant’s family was not poor, they wore nice clothes and drove decent cars, one being the Cadillac Escalade.

1 «ASSIGNMENTS OF ERROR

The trial court erred in denying the motion to reconsider sentence.

The sentence is constitutionally excessive.

Because the defendant’s two assignments of error are substantially similar, they will be discussed together.

The defendant argues that the trial court erred in denying his motion to reconsider sentence as the sentence was constitutionally excessive because it was imposed without support from the record or the benefit of a pre-sentence investigation. He claims that the trial court failed to properly consider the mitigating factors as required by LSA-C.Cr.P. art. 894.1. He further argues that there was no justification for imposing consecutive sentences on counts two and three because they arose out of the same act or transaction. The defendant argues that concurrent sentences are ordinarily imposed upon offenders without a felony record, especially where the convictions arise out of the same course of conduct within a relatively short period. The defendant concludes that the sentence imposed shocks the sense of justice and is nothing more than a needless infliction of pain and suffering.

The State responds that the trial court properly denied the defendant’s motion to reconsider sentence because the sentence was not constitutionally excessive. The State argues that the defendant is limited to a constitutional excessiveness claim because his motion to reconsider sentence lacks specificity. It further argues that the trial court gave proper weight to the aggravating and mitigating circumstances before sentencing the defendant and that comparable |7sentences have been upheld under similar circumstances. The State concludes that the trial court did not abuse its sentencing discretion, thus the defendant’s claims have no merit.

Under LSA-C.Cr.P. art. 881.1, a defendant must either move for reconsideration of his sentence at the time of sentencing orally, or file a written motion to reconsider his sentence setting forth the specific grounds upon which the motion is based. The failure to state the specific grounds upon which the motion is based precludes the defendant from raising the issue on appeal. State v. Schieffler, 02-1047, p. 4 (La.App. 5 Cir. 2/25/03), 841 So.2d 1000, 1002, writ denied, 03-0741 (La.9/19/03), 853 So.2d 636 (citation omitted). Such a failure limits a defendant to a bare review of the sentence for constitutional excessiveness. State v. Carter, 07-270, 10 (La.App. 5 Cir. 12/27/07), 976 So.2d 196, 203.

In the present case, defense counsel orally objected to the sentence by stating, “... at this time, we would note our objection to the verdict, as well as the sentence ... ”. In his written motion for reconsideration of sentence, the defendant argued that his 60-year sentence was excessive and the trial court should reconsider the sentence to afford the defendant the benefit of LSA-C.Cr.P. art. 893(E), which would allow the defendant’s sentences to be suspended and the defendant to be placed on probation. During the hearing on the defendant’s motion to reconsider sentence, the defendant argued that the sentence was excessive because he was offered a 30-year plea deal for three counts of armed robbery; however, he was convicted of the lesser verdicts of first degree robbery and yet received a 60-year sentence, which was double the plea offer. The ^defendant did not specifically raise the issues regarding the trial court’s noncompliance with the sentencing guidelines set forth in LSA-C.Cr.P. art. 894.1 or the consecutive nature of the sentences in either his oral objection, his written motion for reconsideration of sentence, or in his oral argument on the motion for reconsideration of the sentence.

At the hearing on the motion to reconsider, the defense attorney stated that the trial court imposed “30 years on each count and ran it consecutive, such that the total sentence would be 60 years.” This statement was a reiteration of the sentence imposed at the sentencing hearing rather than a specific objection to the consecutive nature of the sentence. Moreover, defense counsel proceeded to argue only the issue involving the disparity in the sentence and the original plea offer made to the defendant. Therefore, the issue of consecutive sentences was not specifically preserved for review.

Nevertheless, this issue is meritless. LSA-C.Cr.P. art. 883 provides: “If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently.... Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently ... In State v. Hymes, 04-320, p. 10 (La.App. 5 Cir. 10/12/04), 886 So.2d 1157, 1163, writ denied, 04-3102 (La.4/1/05), 897 So.2d 599, this Court upheld consecutive sentences where the defendant was convicted of nine offenses, two counts of attempted first degree robbery and seven counts of first degree robbery, which occurred on six separate days over a two-week period. This Court opined that the consecutive sentences were justified because of the separate and distinct nature of the acts, and because of the seriousness of the offenses. Id. Likewise, the instant offenses were separate and distinct, involving 13different locations and victims, and the offenses were quite serious and disturbing as noted by the trial court. Thus, even if the issue of consecutive sentences had been preserved for appellate review, the defendant would not be entitled to relief.

The defendant is entitled to review of his sentence for constitutional ex-cessiveness. The Eighth Amendment to the U.S. Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. State v. Nguyen, 06-969, p. 5 (La.App. 5 Cir. 4/24/07), 958 So.2d 61, 64, writ denied, 07-1161 (La.12/7/07), 969 So.2d 628. A sentence is constitutionally excessive, even if it is within the statutory limits, if it is grossly disproportionate to the severity of the offense or imposes needless and purposeless pain and suffering. Nguyen, 06-969 at 5-6, 958 So.2d at 64. Trial judges are granted great discretion in imposing sentences and sentences will not be set aside as excessive absent clear abuse of that broad discretion. Schieffler, 02-1047 at 5, 841 So.2d at 1003. The court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed. LSA-C.Cr.P. 881.4(D).

In reviewing a sentence for ex-cessiveness, the reviewing court shall consider the crime and the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock the court’s sense of justice, while recognizing the trial court’s wide discretion. Nguyen, 06-969 at 6, 958 So.2d at 64. In reviewing a trial court’s sentencing discretion, three factors are considered: 1) the nature of the crime, 2) the nature and background of the offender, and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Allen, 03-1205 (La.App. 5 Cir. 2/23/04), 868 So.2d 877, 880 (citation omitted).

In the present case, the defendant was convicted of three counts of first degree robbery. As such, he was subjected to a sentencing range from three to forty years without benefits for each count. LSA-R.S. 14:64.1. Therefore, the Immaximum sentencing exposure was 120 years, without benefits. The defendant received a 30-year sentence on each count, with the sentence on counts two and three to run consecutively, resulting in a total sentence of 60 years, which was half of the possible maximum sentence and was within the sentencing limits prescribed by the statute.

The record reflects that the trial court carefully considered the gravity of the offenses and the nature and background of the offender. At the sentencing hearing, the defendant’s mother testified that at the time of these offenses, the defendant was a freshmen in college on a football scholarship, a “good kid,” and had never been arrested. The defendant addressed the court and requested leniency asserting that his acts were out of his character and he was a first-time offender requesting a second chance. Defense counsel also argued that it was the defendant’s first offense and the 60-year sentence the court was intent on imposing seemed excessive in that no one was hurt.

In sentencing the defendant, the trial court stated:
... I have to go off what facts I hear. Okay. And the facts that I heard in this case, were very disturbing. They involved two home invasions. And for the life of me, I can’t think of any situation, to put anybody at risk, and for the person that doesn’t know that it’s not an actual handgun, that it’s a fake pellet gun, that’s not any comfort to the three people that got robbed....
... I am just saying all of the factors that go into a sentence ... that you have somebody knock on a door, the individual opens the door, you ask if an individual is there, he says, no, he closes the door; ten minutes later, you knock on the door, this time he is asked a question and answers it, and somebody puts a gun to his head. And then you bring them inside, and then the individual has his ATM card taken.... And when they came about to divide the money, your client said that he was the mastermind and should deserve the large share of that.
... [T]he troubling nature of this is that when they go to leave, and he is told, Don’t tell, because you do realize New Orleans is the murder capítol [sic] of the world, and the fact that they glorify each other because they’re gangsters now....
|n... We don’t even have to get to the next house; in which ... two individuals come home from spending the night out.... The guy goes out — now this is the worst I could imagine ... the lights go out, and the first thing you do is go, Which circuit did I trip? [sic], and walk outside, and somebody walks up to you with a gun. You’ve been lured outside the safety of your house, to have a gun put to your head; then you don’t know if you’re going to die at that point or not, so you’re trying to get away; and other people go inside the house, and you know your girlfriend’s inside the house; there’s nothing you can do to help her. They go inside grab the girl, lead her to different areas taking things. Now I can’t think of anything worse than those two scenarios I just presented....
... [A]nd it wasn’t a murder. Thank, God, it wasn’t a murder....
... The only thing that was said [about the defendant] was that he was a great athlete. And I can appreciate that.... That’s a lot of hard work, too.
... I’m not sentencing him to the maximum. I am sentencing him to a middle range of that offense; because as I’ve stated, I’m greatly disturbed how someone could plan these things, and be bragging about being a gangster ... that ... disturbs me.
... And under the Code of Criminal Procedure, Article 894.1 of the sentenc-mg guidelines, that I considered that when a defendant has been convicted of a felony, which he has, the Court should impose a sentence of imprisonment if any of the following occurs: there is an undue risk that during a period of suspended sentence or probation, the defendant will commit another crime; the defendant is in need of a correctional treatment or custodial environment that can be provided most effectively by his commitment to an institution; any lesser sentence would deprecate the seriousness of the offense; and under B, the offender conducted — the conduct during the commission of the offense manifests deliberate cruelty to the victim, and ... under B-13, the offender was the leader....
... In my opinion, this man was the leader; so I will leave it at that.

In denying the defendant’s motion for reconsideration of sentence, the trial court reiterated that the nature of the offenses was troubling and maintained that it was relying on all of the reasons given at the original sentencing.

Clearly, as demonstrated by the trial judge’s statements, the trial court carefully considered the gravity of the offenses, the defendant’s background, and the relevant factors of LSA-C.Cr.P. art. 894.1 in this case.

| |2The defendant maintains that the sentence is excessive given that he is a young, first-time offender, and no one was hurt. This argument is meritless because a defendant’s youth, by itself, is an insufficient basis to depart from the sentencing scheme set by the legislature. State v. Robinson, 07-832 (La.App. 5 Cir. 4/15/08), 984 So.2d 856, 868, writ denied, 08-1086 (La.12/19/08), 996 So.2d 1132.

The defendant also contends that the sentence was punitive in light that the defendant was offered a single concurrent 30-year sentence for the greater offenses of armed robbery. This Court, however, has recognized that when a defendant chooses not to accept the plea bargains offered by the State, he takes the risk of a greater penalty upon a jury conviction. State v. Lee, 09-37, p. 10 (La.App. 5 Cir. 5/12/09), 15 So.3d 229, 235 (citation omitted). Particularly, the risk of penalty becomes greater upon jury conviction because the court has the benefit of witness testimony, allowing it to more fully consider the severity of the offense. Id. As the trial court stated during the sentencing hearing and the hearing on the motion to reconsider sentence after trial, it had the benefit of witness testimony that made it aware of the disturbing nature of the facts in the case.

Further, the sentences imposed are supported by comparison. In State v. Mitchell, 35,970, p. 1 (La.App. 2 Cir. 5/8/02), 818 So.2d 807, 810, the 16-year-old defendant was charged with armed robbery, convicted of the lesser charge of first degree robbery, and sentenced to 30 years. The trial court noted that it felt that armed robbery had been proved, but the jury made a compromise verdict. Mitchell, 35,970 at 17-18, 818 So.2d at 811. The appellate court upheld the sentence notwithstanding that it was defendant’s first offense and he was young, 11snoting the cruelty of the offense to the victims, and the involvement of juveniles. Mitchell, 35,970 at 19, 818 So.2d 807 at 819.

Similarly, in this case, the trial court considered the defendant’s youth, criminal background, and personal history, as well as the nature and cruelty of the offense when sentencing the defendant. The trial court implied that the crime of armed robbery had been proved, but the jury convicted on the lesser verdict due to the additional firearm charge, which had not been proven. It is also noted, by the defendant’s own admission, that his 15-year-old brother was also involved in the offenses.

Therefore, in light of the nature and gravity of the offenses, given the defendant’s age and background, we find that the trial court did not abuse its broad discretion in sentencing the defendant. Accordingly, the trial court did not err in denying the defendant’s motion to reconsider the sentences.

These assignments of error are without merit.

ERRORS PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

The record indicates that the trial court failed to observe the 24-hour delay between denying the defendant’s motions for a new trial and sentencing, as required by LSA-C.Cr.P. art. 873. The trial court also failed to observe the 24-hour delay between the ruling on the post-judgment verdict of acquittal and [ ^sentencing. Although the Article does not explicitly require a 24-hour delay in sentencing after a motion for a post-verdict judgment of acquittal has been denied, this Court has applied the 24-hour delay in Article 873 to motions for post-verdict judgment of acquittal. State v. Nicholas, 10-866, p. 10 (La.App. 5 Cir. 5/24/11), 67 So.3d 610, 617.

In State v. James, 527 So.2d 504, 505 (La.App. 5 Cir.1988), this Court held that the delays were waived when counsel affirmatively responded to the trial court that the defendant was ready for sentencing. Also, in State v. Green, 04-357, p. 10 (La.App. 5 Cir. 11/16/04), 890 So.2d 6, 12, this Court found a valid waiver of delays, even though defense counsel did not expressly state that the defendant was ready for sentencing, because he agreed with the trial court that the defendant needed to be sentenced.

The record in this case indicates that at the beginning of the sentencing hearing on October 30, 2009, defense counsel acknowledged that the matter was set for sentencing and informed the trial court of the outstanding motions for new trial and for post-verdict judgment of acquittal. After both motions were denied, defense counsel stated: “Your Honor, those motions being concluded and decided upon and objected to at this time, the matter would be now present for sentencing. Judge, I would request to take testimony of Mr. Johnson’s parents, as well as Mr. Johnson himself.” The trial court allowed the testimony, and arguments from defense counsel before he sentenced the defendant. We find these actions constituted a waiver of the required delays.

Further, in State v. Wilson, 99-105, p. 6 (La.App. 5 Cir. 7/27/99), 742 So.2d 957, 960, writ denied, 99-2583 (La.2/11/00), 754 So.2d 935, the defendant did not object at sentencing or raise the trial judge’s failure to observe the delay as error, yet he specifically challenged the sentence as excessive. This Court found under the particular circumstances of the case, that failure to waive the delays was harmless because the case was on remand for re-sentencing, the defendant did not object at re-sentencing, and the trial court had already reconsidered the defendant’s sentences at a hearing on a motion to reconsider the sentence. Id. The court further found that, under the particular circumstances, remand would be a useless formality. Id.

Similarly, in the instant case, the defendant did not object at sentencing or raise the trial judge’s failure to observe the delay as error; however, he did object to the sentence as excessive. The trial court also reconsidered the defendant’s sentences at the hearing on the motion to reconsider sentence. Accordingly, even if we were to find that the defendant did not waive the delay, our review indicates that the defendant was not prejudiced by the trial court’s failure to observe the delays and remand would be a useless formality.

Also, the commitment reflects that the defendant is to serve a term of 30 years at hard labor, giving credit for time served; however, the transcript is silent in reference to hard labor and credit for time served. In addition, the transcript reflects that the trial court imposed a term of 30 years on each count, with counts two and three to run consecutively, for a total prison term of 60 years. Generally, when there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Accordingly, this matter is remanded to the trial court for correction of the commitment; the trial court is ordered to make the entries in the minutes reflecting the change and direct the clerk |,fiof court to transmit the original of the minute entry to the officer in charge of the institution to which the defendant has been sentenced and to the Legal Department of the Louisiana Department of Corrections. See LSA-C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam).

The record also reflects that the trial court failed to impose defendant’s sentence at hard labor as required by LSA R.S. 14:64.1. However, because the statute mandates hard labor and there is no discretion allowed, the failure by the trial judge to state that the sentence is to be served at hard labor is harmless error and no correction is required. State v. Horton, 09-250, p. 11 (La.App. 5 Cir. 10/27/09), 28 So.3d 370, 377.

In addition, receiving credit for time served is self-operating, pursuant to LSA-C.Cr.P. art. 880. State v. Johnson, 05-180, pp. 10-11 (La.App. 5 Cir. 11/29/05), 917 So.2d 576, 582, writ denied, 06-1254 (La.12/15/06), 944 So.2d 1282. As the commitment already reflects that the defendant was sentenced, giving him credit for time served, corrective action is needless.

CONCLUSION

The defendant’s sentences are affirmed. This matter is remanded for the limited purpose of correcting the commitment as ordered above.

SENTENCE AFFIRMED; REMANDED WITH INSTRUCTIONS

      . The defendant stated that his 15-year-old brother, Joshua Johnson, his 20-year-old step-brother, Floyd Grant, and Nicholas Howard were also with him.

      . As the State points out, a pre-sentence investigation report is merely an aid to the court and not a right to the accused. State v. Robinson, 07-832, p. 19 (La.App. 5 Cir.4/15/08), 984 So.2d 856, 869, writ denied, 08-1086 (La.12/19/08), 996 So.2d 1132.

      . Although defendant maintains that his sentences are excessive, he does not argue on appeal that the sentences should be suspended under LSA-C.Cr.P. art. 893(E). Nevertheless, this issue is meritless because imposition of a suspended sentence pursuant to LSA-C.Cr.P. art. 893(E) is prohibited when the offense is defined as a crime of violence as is first degree robbery. See LSA-R.S. 14:2(B)(22). Furthermore, the benefits of suspension and probation are restricted for the entirety of the sentence pursuant to the statute. LSA-R.S. 14:64.1.

      . See also, State v. Tucker, 591 So.2d 1208, 1218-19 (La.App. 2 Cir.1991), writ denied, 594 So.2d 1317 (La.1992), where the appellate court upheld the imposition of a 30-year sentence for first degree robbery, and two 45-year sentences for armed robbery, which were imposed consecutively and was at mid-range compared to the ultimate sentencing exposure; State v. Wallace, 522 So.2d 1184 (La.App. 4 Cir.1988), where the appellate court upheld a 40-year sentence for a first time offender convicted of first degree robbery in conjunction with a concurrent 30-year sentence for an attempted second degree murder conviction.

      . In Nicholas, supra, this Court noted a split in the circuits on this issue. The First Circuit, in State v. Dixon, 620 So.2d 904 (La.App. 1 Cir.1993), is in accord with this Court in finding that a motion for post-verdict judgment of acquittal is included in LSA-C.Cr.P. art. 873. Id. However the Second and Fourth Circuits, in State v. Harris, 42,376 (La.App. 2 Cir. 9/26/07), 966 So.2d 773, writ denied, 07-2109 (La.3/28/08), 978 So.2d 304, and State v. Robinson, 10-0885 (La.App. 4 Cir. 12/21/10), 54 So.3d 1208, disagree and find that LSA-C.Cr.P. art. 873 does not apply to a motion for post-verdict judgment of acquittal.

      . LSA-R.S. 14:64.1(B) states: "Whoever commits the crime of first degree robbery shall be imprisoned at hard labor for not less than three years and for not more than forty years, without benefit of parole, probation or suspension of imposition or execution of sentence."


author: CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Eric JEFFERSON.
    No. 11-KA-391.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 28, 2011.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Megan Gorman, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Lieu T. Vo Clark, Attorney at Law, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   CLARENCE E. McMANUS, Judge.

|2Pefendant, Eric Jefferson, appeals his conviction for failure to register as a sex offender. For the reasons which follow, we affirm defendant’s conviction and sentence.

STATEMENT OF THE CASE

On October 16, 2009, the Jefferson Parish District Attorney filed a bill of information charging defendant, Eric Jefferson, with a violation of LSA-R.S. 15:542 for failing to comply with registration and/or notification requirements pursuant to LSA-R.S. 15:542 et seq. “relative to registration of sex offender and child predator.” Defendant pled not guilty at his arraignment on November 4, 2009. Thereafter, defendant filed a motion to quash the bill of information on May 24, 2010. This motion was denied by the trial court on May 27, 2010, and defendant sought writs with this Court. This Court denied defendant’s writ application, # 10-K-534, on July 19, 2010. On August 23, 2010, defendant filed a | spro se motion to be relieved of registration and notification requirements. His motion was denied on the following date.

On September 7, 2010, defendant filed a motion to quash the bill of information based on improper venue and double jeopardy. This motion was denied by the trial court on January 18, 2011.

On January 18, 2011, defendant withdrew his not guilty plea and pled guilty to failure to register as a sex offender. Defendant was sentenced to three years imprisonment at hard labor, to run concurrently with any other sentence he was presently serving. On February 7, 2011, in proper person, defendant filed a motion for appeal and for appointment of counsel. Defendant filed another motion for appeal and for appointment of counsel on February 8, 2011. The trial court granted defendant’s appeal on February 16, 2011.

ASSIGNMENT OF ERROR NUMBER ONE

On appeal, defendant argues that the trial court should have granted his motion to quash because venue was improper in Jefferson Parish. He argues that the trial court was without jurisdiction to accept his plea and to sentence him because he was living in Orleans Parish at the time of the offense that was alleged in the bill of information. Defendant admits that he entered an unqualified guilty plea, but contends that improper venue is a jurisdictional defect.

The State notes that defendant made an unqualified guilty plea and failed to reserve his right to appeal the denial of his pro se Motion to Quash pursuant to State v. Crosby, 338 So.2d 584 (La.1976). Nevertheless, the State recognizes the jurisdictional nature of the issue and contends that it provided sufficient evidence to prove venue was proper in Jefferson Parish, noting that defendant gave the Harvey address to the Georgia Department of Corrections and to the Louisiana Department of Motor Vehicles, and that defendant’s mother told Trooper Lacoste |4that he had lived at the Harvey address. The State contends that defendant did not prove that he did not reside in Jefferson Parish, but only proved he may have also lived in Orleans Parish.

On January 18, 2011, a hearing was held on defendant’s pro se motion to quash filed on September 7, 2010, which was adopted by defense counsel. Trooper Chad La-coste of the Louisiana State Police and defendant both testified at the hearing.

Trooper Lacoste testified that in October of 2009 he investigated defendant. He explained that he handled sex offender violations and the case was brought to his attention by the Baton Rouge Headquarters regarding defendant being in violation. He testified that defendant had served some time in the Department of Corrections in Georgia and was “signed up” in Georgia as a convicted sex offender. He testified that defendant had listed the Jefferson Parish address he was moving to with the Georgia Department of Corrections as 1308 Estelot Street in Harvey. He testified that since that time defendant had obtained a Louisiana Identification. He explained that once that happens the Department of Motor Vehicles conducts background checks. The background check revealed that defendant had moved here and was a recently released, convicted sex offender. As such, the investigation was sent to the state police to make sure he was not in violation.

The State introduced a copy of defendant’s Louisiana Identification with the 1308 Estelot Street address in Harvey as State’s Exhibit 1. The address on the identification was verified as the address from the Georgia Department of Corrections. Trooper Lacoste later discovered defendant possibly had another address in Jefferson Parish on James Drive. This was the address Trooper Lacoste listed on the arrest warrant, because he believed that was the most current address 15at the time. Trooper Lacoste testified that he spoke to defendant’s mother, who lived at 1308 Estelot, and that she confirmed that defendant had lived with her at that address months before. However, she told Trooper Lacoste that she had not seen or spoken to him since.

Defendant introduced another copy of a Louisiana Identification in defendant’s name with an address of 2938 Americus Street in New Orleans. Trooper Lacoste testified that he was aware of an address on Americus Drive in New Orleans. The two identification cards from Louisiana had the same identification numbers and expiration dates, but different addresses. Defendant also introduced a Correctional Release Identification Card from Georgia, in defendant’s name. The address on this card was 2938 Americus Street.

Trooper Lacoste testified that he was aware of both addresses. When asked why he did not search for defendant in New Orleans, Trooper Lacoste responded that he did. He said he followed up on the Orleans Parish address in an attempt to locate defendant but was unsuccessful. He explained that he received both addresses from the database. He agreed that he had seen the Department of Motor Vehicles issue two identification cards before with the same expiration dates and identification numbers and with different addresses, but that he did not think this was customary. Trooper Lacoste testified that he was aware that two separate identifications from the same office were obtained on the same day. Trooper Lacoste testified, however, that the Estelot Street address was the most accurate information he had available to him, and that this address was later confirmed by defendant’s mother. When asked about the house on Estelot Street not existing until 2009, Trooper Lacoste indicated he was not aware of that.

Defense counsel showed Trooper La-coste a document, which appeared to be an inquiry from the Office of Motor Vehicles that listed the Estelot address and the |,;Americus Street address. Trooper La-coste said he was seeing on the form for the first time that it appeared that the Estelot Street address identification was suspended.

The State offered State’s Exhibit 2 as a true and accurate copy of a certified conviction from the 16th Judicial District Court in defendant’s name, listing the 1308 Estelot Street address. The bill of information in this matter was filed in 2007, and defendant pled guilty in 2009, without providing a change of address to the court.

Defendant testified that on May 26, 2009, he was residing at 2938 Americus Street in New Orleans. He testified that the Louisiana Identification copied in State’s Exhibit 1 had to have been altered in some way because he was not living on Estelot Street on March 18, 2009. He argued that his signatures did not match. He claimed his signature was on the identification with the Americus address, but denied that his signature was on the other. He testified that he only obtained one identification card on March 18th at the DMV and never obtained another with the Estelot address. He claimed at the time the Estelot address did not have a house on the property for him to reside. He said his mother did not move there until May when she brought a mobile home there. He claimed that on February 5, 2009, the Georgia Department of Corrections issued him a release identification card that included the Americus Street address on the card. He said that he was living on Americus Street until he was arrested on August 21, 2009. He denied residing on Estelot Street in 2009. Defendant also identified sewerage and water bills introduced at the hearing with both Brandy Small and his name on them, dated May 14, 2009 and June 15, 2009. He also introduced a letter from Georgia dated April 20, 2009, with the Americus Street address. He introduced another letter and |7a credit report addressed to defendant at the Americus Street address dated May 7, 2009 and July 27, 2009.

Defendant argued that he established that he was a resident in Orleans Parish in May of 2009. The State argued that it believed it had established that defendant resided in Jefferson Parish. The State explained that defendant had provided the Jefferson Parish address to the DMV Office and in 2009 defendant’s mother informed Trooper Lacoste that he was staying at that address, and that defendant provided that address to the Georgia Department of Corrections. The State argued that, if anything, it proved defendant in fact had been maintaining dual residency and did not register in either parish.

Following the hearing, the court noted that on at least two instances the Estelot address was used — on the certified conviction in the 16th JDC and on a Louisiana Identification card. The court noted that it had compared the signatures on both cards and failed to see any differences in the signatures. The court found that the State proved that defendant was living on Estelot Street at the time of the offense or that defendant was living at two residences, maintaining a dual residence. Accordingly, the trial court denied the motion to quash. Defendant objected to this denial.

Defense counsel contends that the trial judge did not allow defendant to plead pursuant to Crosby, so at that time counsel noted intent to file for a “Writ of Review.” In defendant’s motion for appeal, he stated that during the plea process he made it known orally on the record that he desired to appeal the denial of the motion to quash. He states that out of abundance of caution he filed the instant motion for appeal. The motion provides the following: “Defendant avers that there are valid issues in this matter that are appealable, that were made know [sic] to the court during the several motion hearings held, and that should be resolved by |sthe appellate court despite the guilty plea[.]” Defendant entered an unqualified guilty plea, but now contends that his argument regarding improper venue was a jurisdictional defect.

A guilty plea normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and precludes review of such defects either by appeal or post-conviction relief. State v. Raines, 00-1942 (La.App. 5 Cir. 5/30/01), 788 So.2d 630, 632. A defendant may be allowed appellate review, however, if at the time he enters a guilty plea, he expressly reserves his right to appeal a specific adverse ruling in the case. State v. Turner, 10-995 (La.App. 5 Cir. 9/27/11), 75 So.3d 491, 491-92.

However, in Crosby, the Louisiana Supreme Court held that even an unqualified plea of guilty does not preclude review of jurisdictional defects. Crosby, 338 So.2d at 588. Jurisdictional defects are those which, even conceding a defendant’s factual guilt, do not permit conviction of the charged offense. Id. The supreme court listed the following examples of jurisdictional defects: (1) the lack of jurisdiction of the sentencing court, (2) the conviction represents double jeopardy, (3) the prosecution had prescribed at the time it was instituted, (4) the State lacked constitutional or legal power to try the defendant for the charged offense, (5) the statute under which prosecution is brought is unconstitutional, (6) the charge in the indictment does not constitute a crime, and (7) certain types of patent errors that prevent conviction for the offense. Id.

In State v. Burnett, 33,739, pp. 8-9 (La.App. 2 Cir. 10/4/00), 768 So.2d 783, 790, writ denied, 00-3079 (La.11/2/01), 800 So.2d 864, the court recognized that a guilty plea waives all defects prior to the plea except those jurisdictional defects which appear on the face of the pleadings and proceeding. In Burnett, the court found that the alleged jurisdictional defect concerning venue did not appear |9on the face of the bill of information or other pleadings and the crime was not shown to have been committed outside of the parish in the testimony at any court proceeding. The court found that because the attorney filed a motion to quash raising venue but then withdrew the motion, it should not consider the assigned error. The court decided that the failure to contest the venue issue and his guilty plea amounted to a waiver of any defense the defendant may have raised regarding jurisdiction.

However, in State v. Schneider, 07-943, p. 14 (La.App. 3 Cir. 4/2/08), 981 So.2d 107, 115, writ denied, 08-0942 (La.12/12/08), 997 So.2d 558, the Louisiana Third Circuit Court of Appeal recognized that because venue is jurisdictional, the failure of a party to object to improper venue does not give jurisdiction to that venue to act. The Schneider court concluded that a criminal matter must be brought in the proper venue in order for the courts to have the power and jurisdiction to act. Id. Thus, we will address the merits of defendant’s assigned error regarding the denial of his motion to quash based on improper venue.

La. Const. Art. 1, § 16 guarantees the right to be tried in the parish where the offense occurred, unless venue is changed in accordance with law. The Louisiana legislature has codified this state constitutional guarantee in the Title XIX of the Louisiana Code of Criminal Procedure. State v. Mueller, 10-0710, p. 10 (La.App. 4 Cir. 12/8/10), 53 So.3d 677, 684. LSA-C.Cr.P. art. 611(A) provides in pertinent part: “[a]ll trials shall take place in the parish where the offense has been committed, unless the venue is changed.” Further, if acts constituting an offense occurred in more than one place, the offense is deemed to have been committed in any parish in this state in which any such act occurred. LSA-C.Cr.P. art. 611(A).

LSA-C.Cr.P. art. 615 provides the following:

| ^Improper venue shall be raised in advance of trial by motion to quash, and shall be tried by the judge alone. Venue shall not be considered an essential element to be proven by the state at trial, rather it shall be a jurisdictional matter to be proven by the state by a preponderance of the evidence and decided by the court in advance of trial.

In the present case, defendant did file a motion to quash based on venue. After considering the testimony and evidence presented at the motion to quash hearing, the trial court found that the State proved by a preponderance of the evidence that defendant was living in Jefferson Parish. Even though defendant also provided proof that he may have been living in Orleans Parish, this does not change the fact that defendant’s address was listed as the Estelot Street address in Jefferson Parish as was given to the Georgia Department of Corrections, to the Louisiana DMV Office, and in the 16th JDC case. Further, Trooper Lacoste testified that defendant’s mother stated that he had lived at the address in Jefferson Parish a few months before Trooper Lacoste met with her. LSA-R.S. 15:542(B) provides that the person required to register as a sex offender must register in the parish of his residence or his residences, if there is more than one. As such, regardless of whether defendant was also living in Orleans Parish, we find the trial court did not err in denying defendant’s motion to quash, finding venue was proper in Jefferson Parish.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990). We find no errors patent that require corrective action.

Accordingly, we affirm defendant’s conviction and sentence.

AFFIRMED