author: TERRI F. LOVE, Judge.

text:
    STATE of Louisiana v. Shanzelle LANDRY.
    No. 2010-KA-1225.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 16, 2011.
    Leon A. Cannizzaro, Jr., District Attorney, Matthew Caplan, Assistant District Attorney, New Orleans, LA, for The State of Louisiana.
    Jee Park, Orleans Public Defenders, New Orleans, LA, for Appellant, Shanzelle Landry.
    (Court composed of Judge DENNIS R. BAGNERIS, SR„ Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR.).
   TERRI F. LOVE, Judge.

liThe State of Louisiana charged Defendant Landry with one count of prostitution, third offense. The State then amended the bill to charge Ms. Landry with prostitution, second offense. Defendant Landry appeals, arguing that the trial court erred in denying her motion to quash the bill of information based upon a claim that La. R.S. 14:82 C is unconstitutional.

We find that the trial court did not err in denying the appellant’s motion to quash in that La. R.S. 14:82 C provides that a first offense conviction exposes a defendant to a misdemeanor sentence, while a second conviction or third conviction exposes her to a felony sentence.

FACT AND PROCEDURAL BACKGROUND

The State of Louisiana charged Shan-zelle Landry (“Ms.Landry”) with one count of prostitution, third offense. Ms. Landry pled not guilty to the charge at her arraignment, and after the trial court conducted a preliminary hearing, the court found probable cause to hold Ms. Landry for trial.

Thereafter, Ms. Landry filed three motions to quash the charge against her, which the trial court denied. The State then amended the bill to charge Ms. Landry with prostitution, second offense. Ms. Landry pled guilty to the amended bill, preserving her right to appeal the court’s denial of her motions to quash under State v. Crosby, 338 So.2d 584 (La.1976). Ms. Landry waived all delays, and the court sentenced her to two years at hard labor, suspended, and placed her on one year active probation. Ms. Landry appeals.

Recitation of the facts is not necessary given the assignments of error raised on appeal.

ERRORS PATENT

A review of the record reveals no patent errors.

MOTION TO QUASH

In her sole assignment of error, the appellant contends that the trial court erred in denying her motion to quash the bill of information based upon a claim that La. R.S. 14:82 C, the statute under which penalties for repeated acts of prostitution are enhanced, is unconstitutional. She argues that the United States Supreme Court’s ruling in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and the Louisiana Supreme Court’s ruling in State v. Brown, 2003-2788 (La.7/06/04), 879 So.2d 1276, mandate a finding that La. R.S. 14:82 C is unconstitutional in that the statute allowed the State to increase the maximum sentence to which she was exposed based upon at least one prior misdemeanor conviction for which she was not entitled to a jury trial. She acknowledges that this argument is the same as that rejected by the Supreme Court in State v. Jefferson, 2008-2204 (La.12/1/09), 26 So.3d 112, where it was raised with respect to enhanced penalties provided in La. R.S. 40:966 E, second or third offense | ^marijuana possession. Nonetheless, she now asserts this claim “to complete and preserve her issues on appeal.”

In rejecting these arguments with respect to La. R.S. 40:966 E, the Court in Jefferson stated:

After reviewing the statute, the jurisprudence, and the constitutional provisions at issue, we find,- contrary to the conclusion of the district court, that LSA-R.S. 40:966(E)(2) does not suffer from a constitutional infirmity. For the reasons set forth, we find that the Sixth and Fourteenth Amendments, as construed in Apprendi and Brown, do not preclude the sentence-enhancing use of a prior valid, fair, and reliable conviction of a misdemeanor, obtained against an adult, where the misdemeanor proceeding included all the constitutional protections applicable to such proceedings, even though these protections do not include the right to trial by jury. Accordingly, we reverse the judgment of the district court granting the defendant’s motion to quash and declaring LSA-R.S. 40:966(E)(2) unconstitutional, and remand for further proceedings.

Jefferson, at pp. 1-2, 26 So.3d at 113. The Court acknowledged that in Apprendi the U.S. Supreme Court held that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63. The Jefferson Court interpreted “prior conviction” to mean any prior conviction, whether or not the defendant had been entitled to a jury trial, noting that a defendant charged with a misdemeanor “is entitled to all the procedural protections available to a defendant in a felony prosecution, with the exception of the right to a jury trial, which the U.S. Supreme Court has determined is not essential to fair and reliable fact finding in a misdemeanor case involving a petty or non-serious crime. Duncan v. Louisiana, 391 U.S. 145, 158, 88 S.Ct. 1444, 1452, 20 L.Ed.2d 491 (1968) (‘[W]e hold no ^constitutional doubts about the practices, common in both federal and state courts, of accepting waivers of jury trial and prosecuting petty crimes without extending a right to jury trial.’).” Jefferson at p. 12, 26 So.3d at 119. The Court stated:

Our examination of the Apprendi line of cases convinces us that reliability, assured through proceedings that included all the procedural protections the Constitution requires for those proceedings, is the sine qua non for use of prior convictions to enhance a sentence under the “prior conviction” exception, and not the right to a jury trial. Indeed, it makes little sense to conclude, under Apprendi, that a judgment of criminality which the Sixth and Fourteenth Amendments deem fair and reliable enough, when rendered, to impose criminal penalties upon a defendant is nonetheless constitutionally inadequate for later use to establish the defendant’s recidivism.

Id. at p. 13, 26 So.3d at 120.

As here, the defendant in Jefferson also argued that the Court’s ruling in Brown mandated that a misdemeanor conviction cannot be used to enhance a sentence. In Brown, the Court held that a juvenile adjudication for which a defendant was not entitled to a jury could not be used to enhance a subsequent felony conviction. The Jefferson Court rejected this argument, refusing to equate a misdemeanor adult conviction with a juvenile adjudication for enhancement purposes. While acknowledging that one of the factors the Brown Court relied upon to exempt the use of juvenile adjudications in multiple bill proceedings was the lack of a jury trial, the Jefferson Court emphasized that its holding in Brown was grounded on the fundamental differences between an adult conviction and an adjudication of delinquency from a juvenile court, which “under the guise of parens patriae ... emphasize[s] treatment, supervision, and control rather than punishment.” Brown, at p. 19, 879 So.2d at 1289. The Court concluded:

lain the final analysis, we find that Louisiana’s statutory scheme of increased punishment for recidivist marijuana possession is in line with the constitutional principles of Apprendi and its progeny, and does not conflict with our ruling in Brown, which is limited to juvenile adjudications and the unique nature of the juvenile justice system. More specifically, we find that the Sixth and Fourteenth Amendments, as construed in Apprendi and Brown, do not preclude the sentence-enhancing use, against an adult, of a prior valid, fair, and reliable conviction of a misdemean- or, obtained as an adult, where the misdemeanor proceeding included all the constitutional protections applicable to such proceedings, even though these protections do not include the right to trial by jury. Louisiana’s statutory scheme satisfies the requirement of due process because under the Sixth and Fourteenth Amendments, states are allowed the presumption that in petty crimes and offenses, trial judges are capable of reliable fact finding.

Jefferson at p. 20, 26 So.3d at 124.

In State v. George, 2008-1193, 2008-1338, 2009-0561, 2009-0630, 2009-0867, (La.App. 4 Cir. 3/11/10), 34 So.3d 941, this court rejected the same arguments as those raised in Jefferson with respect to La. R.S. 40:966 E.

Here, the statute that the appellant contends is unconstitutional, La. R.S. 14:82 C, is similar to La. R.S. 40:966 in that the sentence for a conviction is enhanced if a defendant has been previously convicted of the same offense. Like La. R.S. 40:966 E, La. R.S. 14:82 C provides that a first offense conviction exposes a defendant to a misdemeanor sentence, while a second conviction or third conviction exposes her to a felony sentence. Citing Apprendi and Brown, the appellant argues that any enhancement based on a misdemeanor conviction is unconstitutional. However, for the same reasons set forth in Jefferson and George, the trial court did not err in denying the appellant’s motion to quash based upon this ground. This assignment of error has no merit.

DECREE

|6The trial court did not err in denying Defendant’s motion to quash. Defendant’s conviction and sentence are affirmed.

CONVICTION AFFIRMED; SENTENCE AFFIRMED.

      . Although she filed two other motions to quash in the trial court on other grounds, she only assigns error on appeal as to the constitutionality of La. R.S. 14:82 C.


source: Caselaw Access Project

author: CHARLES R. JONES, Judge.

license: Public Domain

text:
    Shannon S. GEBHARD v. Sean M. GEBHARD.
    No. 2010-CA-1412.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 16, 2011.

      Jennifer Gaubert, Gaubert Law, New Orleans, LA, for Plaintiff/Appellee.
    Walter R. Woodruff, Jr., Bopp Law Corporation, Mandeville, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, SR., and Judge MAX N. TOBIAS, JR.).
   CHARLES R. JONES, Judge.

bln this appeal, Sean Gebhard seeks review of the district court judgment denying his motion to modify child and spousal support. Specifically, Mr. Gebhard argues that a material change in circumstances justifies a modification of the amount of child and spousal support provided in the parties’ consent judgment. For the following reasons, we affirm.

Mr. Gebhard and Ms. Shannon Gebhard married in 1987. During the marriage, two children were born: Samantha (d.o.b. July 11,1989) and Sean Michael, Jr. (d.o.b. April 6, 1993). Also during the marriage, Mr. Gebhard incorporated his construction company and formed Gebhard Enterprises, Inc. Ms. Gebhard testified that she worked at Gebhard Enterprises during the marriage.

The parties separated on June 4, 2006, and received a judgment of divorce on August 28, 2007. On August 28, 2007, the parties additionally entered into a consent judgment regarding spousal support and child support, among other things. The consent judgment-bears the signatures of Mr. Gebhard and his counsel, Ms. Gebhard and her counsel, as well as the district court judge. The consent judgment provides that Mr. Gebhard is to pay spousal support to Ms. Gebhard in the amount of $2,000.00 per month, as both interim and permanent spousal support, for a period of ten years, beginning September 1, 2007. Beginning'July 1, 2017, Mr. Gebhard is to pay $1,500 for an additional ten years, with the last payment on July 1, 2027. The consent judgment 12provides that Mr. Geb-hard is to pay child support to Ms. Geb-hard in the amount of $2,000 per month for the support of Samantha and Sean. Further, the consent judgment states that “[t]he $2,000[.00] per month child support will remain in effect and is not subject to reduction until the youngest child, Sean Michael, Jr., reaches the age of 18 years and graduation from secondary school.” In addition to child support, Mr. Gebhard agreed to pay for Sean Michael, Jr.’s secondary educational expenses, as well as college expenses for both children.

On September 17, 2009, Ms. Gebhard filed a rule for contempt, attorneys’ fees, motion and order for judgment for past due spousal support and incidental obligations, motion and order to transfer community property for satisfaction of judgment of community property obligations and other incidental obligations. For purposes of this appeal, the relevant allegations in Ms. Gebhard’s rule are that Mr. Gebhard failed to pay spousal and child support, as well as tuition, as ordered.

In response, Mr. Gebhard filed a motion to rescind and/or modify consent judgment. Mr. Gebhard testified that Ms. Gebhard threatened to bring the children to court and “drag his name through the mud” if he did not sign the August 23, 2007 consent judgment. Mr. Gebhard averred the only reason he entered into the ^consent judgment was to protect his children. As his consent was vitiated by duress, Mr. Gebhard argued the consent agreement should be rescinded.

Alternatively, Mr. Gebhard argued that a severe decrease in his earnings justified a modification of the August 23, 2007 consent judgment. Mr. Gebhard testified that at the time of the consent judgment, he was earning $200,000 per year through Gebhard Enterprises. Mr. Gebhard testified that 2007 started out okay for Geb-hard Enterprises, but that business tapered off in the middle or end of 2007. Mr. Gebhard stated that in 2008, Gebhard Enterprises was just barely getting by and in 2009, fell on its face. Mr. Gebhard testified that Gebhard Enterprises is basically dormant, although the accounts receivable amount is about $200,000 and there are bids on jobs that he is hoping to be awarded. Mr. Gebhard noted that some of the’ equipment used by Gebhard Enterprises is owned outright and that other equipment is burdened by a note thereon. Mr. Gebhard also testified that he owes approximately $140,000 on a line of credit for the business. Mr. Gebhard stated that a decline in the industry forced him to take a project manager position with Carubba, Inc. Mr. Gebhard testified that Gebhard Enterprises had done business with Garubba for the past fifteen years. Mr. Gebhard acknowledged that key former Gebhard Enterprises employees were working at Icon Enterprises, a company formed by his current wife, Nikki. Mr. Gebhard testified that he was trying to hang on to his key employees. He stated that Icon Enterprises was securing jobs up to $50,000, though he was accustomed to $500,000-$2,000,000.

[4Nikki Gebhard testified that she went to work for Gebhard Enterprises in 2005, after Hurricane Katrina. As of 2007, Nikki received a salary of $300 per week. Nikki testified that in December of 2007 or January of 2008, she received a $30,000 bonus from Gebhard Enterprises. Nikki stated that half of the proceeds of the bonus were used as a down payment on the house she currently shares with Mr. Gebhard. Nikki noted that another employee, William LeBouef, received a $75,000 bonus in 2007.

Nikki testified that she and Mr. Geb-hard married in October of 2009 in Panama City Beach, Florida. Shortly after the wedding, Nikki utilized $8,000 from cash wedding gifts and opened Icon Enterprises, a construction company that performs small jobs. Nikki testified that Icon Enterprises was opened to bring money into their home. Nikki testified that Mr. Geb-hard does not work at Icon Enterprises, but noted that he does supply her with knowledge and guidance. Nikki stated that Icon Enterprises has one employee, Anthony Bryan. Nikki testified that Icon Enterprises put down a slab for Carubba. She also testified that she also works as a nurse at St. Tammany Parish Hospital and receives money for picking up a friend’s child from school.

Roy Carubba testified that he hired Mr. Gebhard near the end of 2009 at a salary of $52,000 per year. Mr. Carubba testified that his practice is mainly in commercial buildings and that there has been a decline in that market since 2007.

At the close of the hearing, the district court denied Mr. Gebhard’s motion to rescind and/or modify consent judgment and took Ms. Gebhard’s rule for contempt 15under advisement. Thereafter, the court granted Ms. Gebhard’s rule for contempt. The district court found Mr. Gebhard in arrears in the amount of $79,226.81 on child and spousal support. The district court sentenced Mr. Gebhard to serve thirty days in the parish prison unless Mr. Gebhard discharged the arrearage amount within thirty days. This appeal followed.

DISCUSSION

The trial court has great discretion in decisions concerning modification of support decrees, and such decrees will not be disturbed on appeal absent a clear abuse of discretion. Hansel v. Hansel, 2000-1914, p. 4 (La.App. 4 Cir. 11/21/01), 802 So.2d 875, 879. (Citations omitted). An appellate court must not base its determination on whether it considers the trier of fact’s conclusion to be right or wrong, but on whether the fact finder’s conclusion was reasonable. Durfee v. Dwrfee, 44,281, p. 3 (La.App. 2 Cir. 5/13/09), 12 So.3d 984, 987.

Mr. Gebhard argues the district court erred in denying his motion for modification. Mr. Gebhard avers that a change in circumstances occurred between the time of the consent judgment and the time of the motion in that his income changed. He argued that at the time of the consent judgment, he earned $200,000 per year, and that he was forced to take a job working for Carubba at a salary of $52,000 per year. Ms. Gebhard counters that the consent judgment provides a specified time for spousal support to end, and specifies that child support is not subject to reduction. In the alternative, Ms. Gebhard argues that Mr. Gebhard failed to prove that a material change in circumstances had occurred.

| (¡First, we address Ms. Gebhard’s contention that the consent judgment bars modification to either spousal support or child support.

A consent judgment is a bilateral contract which is voluntarily signed by the parties and accepted by the court. Durfee, 44,281, p. 4, 12 So.Sd at 987-988. (Citations omitted.) It has binding force from the voluntary acquiescence of the parties. Id. A contract is unlawful when the enforcement of the obligation would produce a result prohibited by law or against public policy. Id.

Whether the amount of spousal support awarded through a consent judgment can be modified depends upon the language employed in the consent judgment. Ray v. Ray, 2005-0873, p. 5 (La.App. 1 Cir. 3/23/07), 960 So.2d 174, 178. To bar modification of the duration and/or amount of spousal support, the consent judgment must evidence clear intent of the parties to do so. Id.

In Williams v. Poore, 2010-1087, p. 1 (La.App. 4 Cir. 1/12/11), 55 So.3d 953, the consent judgment provided that Mr. Poore was to pay to Ms. Poore “permanent spousal support in the amount of $1,500.00 per month beginning on August 1, 1998, and continuing thereafter until such time as Nina Day Williams Poore remarries or dies.” The Court stated that “the mere listing of events which will terminate spousal support does not evidence a clear intent that the amount of spousal support can never be changed.” Id., p. 5. (Citations omitted.) As the consent judgment lacked non-modification language, the Court agreed that Mr. Poore could seek a modification of the amount of spousal support. Id.

|7In this case, the consent judgment provides that Mr. Gebhard is to pay spousal support to Ms. Gebhard in the amount of $2,000 per month, as both interim and permanent spousal support, for a period of ten years, beginning September 1, 2007. Beginning July 1, 2017, Mr. Gebhard is to pay $1,500 for an additional ten years, with the last payment on July 1, 2027. The consent judgment further provides that, “[t]he interim spousal support and permanent spousal support are to remain in full force and effect for the entire twenty (20) year period regardless if Shannon Gebhard remarries or not.” While the consent judgment provides for a specific duration, the consent judgment lacks non-modification language regarding the amount of spousal support. Absent such language, Mr. Gebhard is entitled to seek a modification of spousal support.

Conversely, as to child support, the consent judgment at issue contains non-modification language. Specifically, the consent judgment provides that “[t]he $2,000 per month child support will remain in effect and is not subject to reduction until the youngest child Sean Michael Geb-hard, Jr. reaches the age of 18 years and graduation from secondary school.”

Fathers and mothers, by the very act of marrying, contract together the obligation of supporting, maintaining and educating their children. La. C.C. art. 227. The obligation of support imposed by La. C.C. art. 227 is “firmly entrenched in our law and is a matter of public policy.” Durfee, 44,281, pp. 4-5, 12 So.3d at 988. Consequently, child support agreements are generally subject to modification upon a showing of a change in circumstances regardless of language to the | ^contrary. Megison v. Megison, 1994-152, pp. 4-5 (La.App. 5 Cir. 9/14/94), 642 So.2d 885, 888; Ellefson v. Ellefson, 616 So.2d 221, 224 (La.App. 5 Cir.1993). Therefore, regardless of the non-modification language contained in the consent judgment at issue, Mr. Gebhard is entitled to seek a modification of the amount of child support.

The law provides that an award of child support may be modified if the circumstances of the child or of either parent materially change. La. C.C. art. 142. Likewise, an award of periodic support may be modified if the circumstances of either party materially changes. La. C.C. art. 114. As it relates to child support, La. R.S. 9:311 further provides that “an award for support shall not be modified unless the party seeking modification shows a material change in circumstances of one of the parties between the time of the previous award and the' time of the rule for modification of the award.” La. R.S. 9:311(A). The comments provide:

To obtain a reduction or increase in support the change in circumstances of one of the parties must be material, defined as a change in circumstances having real importance or great consequences for the needs of the child or the ability to pay of either party. The amendment specifying that the court first consider the threshold matter of materiality of the change in circumstance overrules Stogner v. Stogner, 739 So.2d 762 (La.1999)[sic], in which the Louisiana Supreme Court held that any change in circumstances is sufficient to justify a reduction or increase in child support, a conclusion extended to spousal support by the court of appeal in Council v. Council, 775 So.2d 628 (La.App. 2 Cir.2000)[sic].

La. R.S. 9:311 Comments (a). (Emphasis in the original).

IgThus, in order to bear his burden of proof, Mr. Gebhard needed to prove a change in circumstances having real importance or great consequences on his ability to pay. To meet this burden, Mr. Gebhard testified that Gebhard Enterprises is dormant and that he was required to take a job with Carubba. At the time of the consent judgment, Mr. Gebhard was making $200,000 per year. Mr. Carubba testified that his salary was now $52,000 per year. However, Mr. Gebhard also testified that Gebhard Enterprises has about $200,000 in accounts receivable and several outstanding bids. Additionally, Mr. Geb-hard testified that Gebhard Enterprises started experiencing a tapering off of business in the middle or end of 2007. Yet, Mr. Gebhard paid Mr. LeBouef a $75,000 bonus in 2007, and paid Nikki, his current wife, a $30,000 bonus in December of 2007 or January of 2008.

Further, while Mr. Gebhard’s current wife Nikki testified that her construction company, Icon Enterprises, receives only guidance and knowledge from Mr. Geb-hard, Mr. Gebhard’s testimony reveals more. Mr. Gebhard testified that he suggested Nikki start Icon Enterprises and further said to her:

I’m in [the] construction' business, anything we can pick up and run. Some of my former employees are doing several little, small jobs through her new company, and again, you know, they’re small. I’m trying to hold on to my key employees so — bring Gebhard Enterprises back, you know, get some contracts. Believe me, $50,000 contract, you know, I’m not going far. You know, I’m used to half a million, million, $2,000,000 jobs. (Emphasis supplied.)

Nikki also testified that one of the jobs that Icon Enterprises performed was putting down a slab for Carubba. Nikki testified that she has yet to receive income from Icon Enterprises, but that she has been reimbursed the $8,000 received as | mwedding gifts that she used to start the business. Nikki testified that she runs Icon Enterprises on her days off from her nursing job. Nikki stated that when she does work on Icon Enterprises, she pretty much cuts checks as Icon Enterprises is a brand new business. Clearly, Mr. Geb-hard is providing more than guidance and knowledge to Icon Enterprises.

Further, Mr. Gebhard submitted no documentation regarding his income or his expenses, for either Gebhard Enterprises or his personal expenses (i.e., no tax returns, no bank statements). In contrast, Ms. Gebhard submitted two subcontractor contracts whereby Gebhard Enterprises was to perform work for Carubba. Both of the contracts were entered into in 2009. One contract contained a total contract amount of $460,000, and the other contained a total contract amount of $55,000. Furthermore, Mr. Gebhard received six (6) income-producing properties in the community property partition. Mr. Gebhard provided no documentation regarding any of these properties. In attempting to prove a material change of circumstances, Mr. Gebhard relied on testimony alone. Where the fact finder’s conclusions are based on determinations regarding credibility of a witness, the manifest error standard demands great deference to the trier of fact because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Dwrfee, 44,281, pp. 8-4, 12 So.3d at 987.

In this instance, given the lack of documentary evidence, the inconsistencies between Mr. Gebhard and Nikki Gebhard’s testimony regarding Icon Enterprises, 1 uthe bonuses awarded when Gebhard Enterprises was tapering off, and the great deference given the trier of fact in determining credibility, we find the denial of Mr. Gebhard’s motion to modify to be reasonable and not an abuse of the district court’s discretion.

DECREE

For the foregoing reasons, the judgment of the district court denying the motion to modify is affirmed.

AFFIRMED.


author: DREW, J.

text:
    STATE of Louisiana, Appellee v. Yulia SEROVA, Appellant.
    No. 46,176-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 13, 2011.

      Frank E. Brown, Jr., Shreveport, for Appellant.
    Charles Rex Scott, II, District Attorney, J. Aaron Crawford, Suzanne Morelock Owen, Assistant District Attorneys, for Appellee.
    Before BROWN, WILLIAMS and DREW, JJ.
   DREW, J.

|!Yulia Serova was convicted of one count of prostitution, second offense, in violation of La. R.S. 14:82(A)(2) and (B)(2). She was sentenced to one year at hard labor, suspended, and one year of supervised probation, subject to special conditions, a fine of $250, and court costs, in default of which she would serve 30 days in the parish jail. The defendant appeals. We affirm.

FACTS

On September 6, 2007, the Shreveport Police Department conducted a sting operation to determine whether local escort services were actually fronts for illegal prostitution.

Corporal Paul Vines contacted Ace Escorts to get someone to meet him at Sam’s Town Casino, where the department had rented two adjoining rooms. Vines was contacted by the defendant, who asked that he meet her in the lobby.

Vines told the defendant that he worked for a check printing company and was in town on business. She asked Vines to show her his company vehicle. He told her that he had left his keys in the room and requested that she accompany him there. In the room, the defendant thoroughly searched the room. She then asked Vines for identification. He produced a valid Texas I.D. card and credit cards. She asked to see his health insurance card from his employer and when he could produce none, she insisted that they |2go to the parking garage to see his vehicle. All during this time, she was placing calls from the bathroom after each of which she would insist on new proof. Vines told defendant her conduct was making him nervous, that he was having second thoughts and he offered to pay her for her time.

She exposed her breasts to reassure him that she was not law enforcement. She then recited her pricing schedule:

• the agency fee was $150,
• a “hand job” was $100;
• oral sex was $300; and
• straight sex was $500.

Vines had been provided $700 in marked $100 bills. Defendant took $200 for her agency fee. After negotiating a fee of an additional $400 for “regular sex,” defendant directed Vines to the bed. She undressed to her underwear and Vines removed his pants and underwear. Defendant retrieved a condom and Vines asked her to remove her underwear to facilitate the application of the condom. When Ser-ova told him that would cost an additional $100, Vines allowed her to take the last $100 bill from his wallet. She removed her underwear. Vines gave the prearranged signal, but the officers could not enter the room because the defendant had engaged the safety latch. Vines and defendant both raced to the door where Vines was able to disengage the latch to let in the officers. She was then arrested.

Detective Jack Miller was working surveillance in a room across the hall. He testified that the plan had been to conduct and record both video and audio surveillance of the events transpiring inside the room. However, | ^because the rooms were diagonally across the hall from each other, Miller testified that the video signal was very weak and made it hard to discern anything that transpired. The audio requires less signal strength and was clearly audible to Miller. Unfortunately, it did not record because of technical problems.

Miller testified that Vines had made the initial contact with an escort agency listed in the phone book while they were all in the same room. Vines then received a call back from someone who instructed him to meet her in the lobby. Miller went to the surveillance room to wait for Vines to return from the lobby.

Upon his return, Vines was accompanied by a woman who was asking many questions concerning his identity. Miller heard the woman quote the price list.

Miller testified that Vines did not initiate the conversation about money for sex. He heard Vines and the woman agree to the price of $400 for “straight sex.” Once Vines gave the “code word,” Miller and another officer, Lt. Ricky Scroggins, went to the room, gaining entry once Vines released the latch. They placed the nude defendant under arrest and recovered the $700.

Lieutenant Ricky Scroggins testified that he was the vice unit supervisor on the evening in question and was working on the arrest team' with Det. Miller. He monitored the peephole from the surveillance room, Lwhere he was able to see when the defendant first arrived at Vines’ room. Other than briefly seeing Vines or the defendant cross in front of the camera on the video feed, Scroggins did not hear or see anything that transpired in the room. Upon entry, he physically stopped her from accessing her belongings, until he could make sure she had no weapon. The $700 in marked money was recovered.

Lt. Owen McDonnell, a fingerprint expert, testified that the defendant’s fingerprints, taken in open court, were those of the person who pled guilty on October 11, 2006, to one count of prostitution under Docket No. 254,281.

When the state rested, defendant moved for an acquittal based on insufficient evidence. The motion was denied, after which the defense rested. The trial court found the defendant guilty as charged and remanded her into state custody pending sentencing. On June 14, 2010, she was sentenced as noted above.

DISCUSSION

Best Evidence

Defendant alleges that the video would be the best evidence, and that the trial court erred in allowing eyewitness testimony in lieu of the video evidence.

The defendant fails to argue this assignment of error. Because of this omission, it is deemed abandoned and we will not consider it. Rule 2-12.4, Uniform Rules, Courts of Appeal; State v. Dewey, 408 So.2d 1255 (La.1982).

| BSufficiency of the Evidence

Defendant argues that the evidence was insufficient to convict her under La. R.S. 14:82(A)(2) because the evidence did not establish that she ever solicited the officer to engage in sexual intercourse for compensation.

The state argues that the evidence proved that:

• the initial contact between defendant and the officer was initiated by defendant;
• she instructed the officer where to meet her;
• she initiated the sex for money discussion; and
• she quoted a fee schedule for various sexual acts.

The state urges that these facts, along with defendant’s previous conviction for prostitution, were sufficient to support a conviction for prostitution, second offense.

Our law on an appellate review of sufficiency of the evidence is well settled.

IfiA conviction under La. R.S. 14:82(A)(2) requires the state to prove the defendant solicited “another with the intent to engage in indiscriminate sexual intercourse with the latter for compensation.”

Defendant cites two cases in which the courts found the evidence insufficient to support a prostitution conviction due to a lack of proof as to solicitation. In the first, State v. Jackson, 381 So.2d 454 (La.1980), an officer telephoned the defendant and informed her that she had been recommended to him. When she declined due to the lack of a reference, the officer had another officer call pretending to be a customer of a former call girl to whom he was trying to refer business. The defendant subsequently allowed the two officers to come over. After she was satisfied as to their identities, she stated that it would cost them $75 each for a half-hour. Having agreed on the price, one of the officers accompanied her into her bedroom, where in due course she was arrested.

In State v. Russell, 448 So.2d 798 (La.App. 2d Cir.1984), writ denied, 450 So.2d 956 (La.1984), the defendant was one of three women summoned to a Shreveport hotel in a law enforcement sting operation. The police had initially made contact with another person who brought the defendant with her to the hotel. Once there, the defendant was asked by a detective how much the date would cost him, to which the defendant responded $75. Asked what he would receive in exchange, the defendant 17answered “anything goes.” Finding the defendant was not guilty of violating the prostitution statute under the solicitation provision, this Court stated that the defendant “simply arrived at the appointed time, quoted the officer a price and engaged in intercourse.”

The facts of the present case are distinguishable from Jackson, supra, and Russell, supra.

Here, Vines contacted an escort service and spoke to someone other than the defendant. There is no indication that Vines mentioned sex in his initial contact. The defendant then called Vines back and instructed him to meet her in the lobby of his hotel. Once at the hotel, defendant made extensive inquiries regarding Vines’ actual identity until he finally tried to terminate the engagement. At that point, defendant partly disrobed and started to quote her fees for certain acts of sexual intercourse. There is no evidence that prior to this point Vines had ever mentioned or insinuated that the defendant have sex with him in exchange for compensation. Once she quoted her fees, they agreed on a price of $400 for “straight” or “regular” sex. Defendant removed the remainder of her clothing and was attempting to place a condom on Vines when the arrest team officers arrived.

This defendant initiated the discussion about sex for money. Vines may have solicited defendant’s presence at the hotel, but defendant solicited Vines to engage in indiscriminate sexual intercourse for compensation.

|sThe state proved its case. The sentence is reasonable. We find no errors patent.

DECREE

The defendant’s conviction and sentence are AFFIRMED.

      . The charging instrument correctly lists sub-paragraph (B)(2) as the statutory provision setting forth the sentencing provisions in effect at the time of this crime. After the instant offense, the statute was amended by La. Acts 2008, No. 138, adding a new subpara-graph B, which defined “sexual intercourse.” Former subparagraph B and its subparts were redesignated'as subparagraph C.

      . While no recording of the video portion was offered in court, Miller did not unequivocally state that no video recording existed. Miller stated only that the quality was so poor that he could not remember whether it was recorded or not.

      . The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir. 1/9/08), 974 So.2d 181, writ denied, 2008-0499 (La. 11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir. 1/14/09), 1 So.3d 833, writ denied, 2009-0310 (La.11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v.

        Smith, 94-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 2009-0725 (La. 12/11/09), 23 So.3d 913, cert. denied, — U.S. -, 130 S.Ct. 3472, 177 L.Ed.2d 1068 (2010); State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La. 12/14/07), 970 So.2d 529. See also, State v. Bowie, 43,374 (La.App.2d Cir.9/24/08), 997 So.2d 36, writ denied, 2008-2639 (La.5/22/09), 9 So.3d 141, (same deference applies to bench trial).
      In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,032 (La.App.2d Cir.2/13/08), 975 So.2d 753; State v. Burd, 40,480 (La.App.2d Cir. 1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La. 11/9/06), 941 So.2d 35. Such testimony alone is sufficient even where the state does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant. State v. Robinson, 36,147 (La.App.2d Cir.12/11/02), 833 So.2d 1207; State v. Ponsell, 33,543 (La.App.2d Cir.8/23/00), 766 So.2d 678, writ denied, 2000-2726 (La.10/12/01), 799 So.2d 490.

      . The defendant in Russell had been convicted of two counts of prostitution, one for engaging in sexual intercourse for compensation and one for soliciting another to engage in sexual intercourse for compensation. The defendant’s conviction for actually engaging in sexual intercourse with others for compensation was affirmed. Russell, supra.


author: GASKINS, J.

text:
    STATE of Louisiana, Appellee v. Darren Dewayne NICKLES, Appellant.
    No. 46,189-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 13, 2011.

      Peggy Sullivan, Louisiana Appellate Project, for Appellant.
    Charles Rex Scott, District Attorney, Jason Brown, Damon Daniel Kervin, Assistant District Attorneys, for Appellee.
    Before STEWART, GASKINS and LOLLEY, JJ.
   GASKINS, J.

[ ¶ The defendant, Darren Dewayne Nickles, was convicted of one count of distribution of cocaine. He was adjudicated a fourth felony offender and was sentenced to serve 40 years at hard labor “without benefit.” The defendant appealed. We affirm the defendant’s conviction and, as amended, affirm his sentence.

FACTS

On the evening of January 23, 2009, members of the Shreveport Police Department conducted a citywide buy-bust operation to apprehend drug dealers. Agent Steve McKenna was driving an unmarked vehicle equipped with video surveillance equipment to record criminal activity. He was accompanied by Officer Ann Ferguson and another officer from the Shreveport Police Department. Agent McKenna went to a house on West 77th Street known for narcotics sales. As the officers drove up to the house, they were approached by the defendant, who told them they could not block the driveway and asked what they were looking for. According to Agent McKenna, this question meant that the defendant wanted to know what kind of drugs the officers wanted to buy.

Agent McKenna stated that he wanted to buy some “hard” — a street term for crack cocaine. Agent McKenna was carrying “buy funds,” money retrieved from forfeitures and used in buy-bust operations. The bills, with their serial numbers, were photocopied before the operation. In exchange for a $20 bill in buy funds, Agent McKenna received a rock of crack cocaine from the defendant.

IgAfter he received the crack cocaine, Agent McKenna gave a verbal signal to other police officers on the arrest team who moved in and took the defendant into custody. The $20 in buy funds was recovered from the defendant.

Officer Terry Sanders of the Shreveport Police Department was the case agent in this matter. Officer Sanders claimed that the defendant made threatening statements to him after the arrest. According to Officer Sanders, the defendant told him, “I got something for you the next time that you jump out on me.” When asked what he meant, the defendant stated, “Oh, you’ll see.”

The defendant was charged by bill of information with one count of distribution of cocaine and one count of public intimidation. The defendant was tried by jury. On October 1, 2009, he was convicted of distribution of cocaine, but was found not guilty of public intimidation.

The state filed a habitual offender bill of information asserting that the defendant was a fourth felony offender. The state alleged that the defendant had previous convictions for simple burglary in October 1991, false representation of controlled dangerous substances in August 1994, and unauthorized entry of an inhabited dwelling in March 2008. A hearing was held on February 18, 2010; the defendant was adjudicated a fourth felony offender.

After ordering a presentence investigation (PSI) report, the trial court held a sentencing hearing in March 2010. The defendant’s motions for new trial and for post verdict judgment of acquittal were denied by the trial | .¡court. The trial court referred to the PSI report and outlined the extensive list of the defendant’s prior criminal offenses. He was then ordered to serve 40 years at hard labor “without benefit.”

The defendant appealed his conviction and sentence. The defendant alleged that the trial court erred in denying defense counsel’s objection to allegedly improper prejudicial comments made by the prosecution during closing arguments. He also asserted that the sentence of 40 years at hard labor was excessive. The defendant filed a pro se brief on appeal in which he alleged that the trial court erred in denying his right to counsel of his choice as guaranteed by the Sixth Amendment of the United States Constitution and Article I, Section IB of the Louisiana Constitution.

CLOSING ARGUMENT BY PROSECUTION

The defendant argues that the trial court erred in denying his objection to allegedly improper comments made by the prosecution during closing arguments. This argument is without merit.

La. C. Cr. P. art. 774 provides:

The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
The argument shall not appeal to prejudice.
The state’s rebuttal shall be confined to answering the argument of the defendant.

While the trial judge has broad discretion in controlling the scope of closing arguments, Louisiana jurisprudence on prosecutorial misconduct has allowed prosecutors wide latitude in choosing closing argument tactics. | ¿Nonetheless, the prosecutor should refrain from making personal attacks on defense strategy and counsel. State v. Brumfield, 96-2667 (La.10/20/98), 737 So.2d 660, cert. denied, 526 U.S. 1025, 119 S.Ct. 1267, 143 L.Ed.2d 362 (1999).

A prosecutor retains considerable latitude in making closing arguments. Even when the Louisiana Supreme Court has found that the prosecutor has exceeded that latitude, it has often criticized the improper arguments without finding that they constitute reversible error. The supreme court will not overturn a guilty verdict on the basis of improper arguments unless firmly convinced that the jury was influenced by the remarks and that they contributed to the verdict. See State v. Taylor, 93-2201 (La.2/28/96), 669 So.2d 364, cert. denied, 519 U.S. 860, 117 S.Ct. 162, 136 L.Ed.2d 106 (1996); State v. Smith, 31,955 (La.App.2d Cir.5/5/99), 740 So.2d 675, unit denied, 2000-1404 (La.2/16/01), 785 So.2d 840.

Much credit should be accorded to the good sense and fair-mindedness of jurors who have seen the evidence and heard the arguments, and have been instructed repeatedly by the trial judge that arguments of counsel are not evidence. See State v. Mitchell, 94-2078 (La.5/21/96), 674 So.2d 250, cert. denied, 519 U.S. 1043, 117 S.Ct. 614, 136 L.Ed.2d 538 (1996); State v. Snyder, 98-1078 (La.4/14/99), 750 So.2d 832; State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).

| ¡(During the state’s rebuttal argument to the defendant’s closing argument, the following exchange took place between the prosecutor and the attorney for the defendant:

[PROSECUTOR]: Let me try to remember where I was.
In my opinion, which is my opinion, this is a simple case. It behooves the defendant to try to argue that it is not a simple case. That’s his job, is to try to confuse you all. You all saw the evidence here.
[DEFENSE COUNSEL]: Your Honor, I have to object to that. That’s highly inappropriate for him to say what my job is to confuse the jury.
THE COURT: It is his closing argument, so it’s overruled.

The defense’s objection was preserved for appeal after the jury was excused from the courtroom to deliberate. Defense counsel argued that the prosecution had waged a personal attack on defense counsel by stating that he was trying to confuse the jury. The trial court noted the objection and stated, “I don’t think [it’s] going to make any difference one way or the other. I certainly don’t think it’s reversible error.” Counsel for the state contended that the statement was meant to define the roles of the parties and was not a personal attack.

On appeal, the defendant argues that the comments by the prosecution were a personal attack on defense strategy and counsel, injected issues broader than the defendant’s guilt or innocence under the law, and diverted the jury from its duty of deciding the case on the evidence. He argues that the prosecution’s comment that the statement was “aimed at defining roles” was intended to convince the jury that defense counsel wanted to prevent them from “getting at the truth.”

| Ample evidence was presented upon which to base the defendant’s conviction for distribution of cocaine. The prosecution’s statement, alleging that defense counsel was attempting to confuse the jury, even if improper, does not appear to have influenced the jury or to have contributed to its verdict. There is no showing in this record that the comment amounted to reversible error. The trial court did not err in overruling the defendant’s objection to the prosecution’s statement on rebuttal.

EXCESSIVE SENTENCE

The defendant argues that his sentence of 40 years at hard labor as a habitual offender was excessive in light of the facts and circumstances of this case and the defendant’s past history. This argument is without merit.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. McDaniel, 42,926 (La.App.2d Cir.1/9/08), 974 So.2d 146. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728. There is no requirement that specific matters 17be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 2000-1467 (La.2/2/01), 783 So.2d 385; State v. McDaniel, supra.

Second, a sentence violates La. Const, art. I, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. McDan iel, supra. A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. McDaniel, supra.

La. R.S. 40:967 provides in pertinent part:

A. Manufacture; distribution. Except as authorized by this Part or by Part VII-B of Chapter 5 of Title 40 of the Louisiana Revised Statutes of 1950, it shall be unlawful for any person knowingly or intentionally:
(1) To produce, manufacture, distribute, or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance or controlled substance analogue classified in Schedule II;
B. Penalties for violation of Subsection A. Except as provided in Subsection F, any person who violates Subsection A with respect to:
(4)(b) Distribution, dispensing, or possession with intent to produce, manufacture, distribute, or dispense cocaine or cocaine base or a mixture or substance containing cocaine or its analogues as provided in Schedule 11(A)(4) of R.S. 40:964 or oxycodone as provided in Schedule II(A)(l)(o) of R.S. 40:964 |Ror methadone as provided in Schedule II(B)(11) of R.S. 40:964 shall be sentenced to a term of imprisonment at hard labor for not less than two years nor more than thirty years, with the first two years of said sentence being without benefit of parole, probation, or suspension of sentence; and may, in addition, be sentenced to pay a fine of not more than fifty thousand dollars.

La. R.S. 15:529.1 provides in pertinent part:

A. Any person who, after having been convicted within this state of a felony, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government of a crime which, if committed in this state would be a felony, thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:
(4) If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then:
(a) The person shall be sentenced to imprisonment for the fourth or subsequent felony for a determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life;
G. Any sentence imposed under the provisions of this Section shall be at hard labor without benefit of probation or suspension of sentence.

The defendant argues that the sentence of 40 years is excessive because the defendant is not a drug dealer, but has a drug abuse problem and is in need of treatment rather than incarceration. He contends that none of his prior offenses demonstrate that he is a drug dealer.

The defendant was adjudicated a fourth felony offender after the prosecution proved that he had prior convictions for simple burglary, false representation of controlled dangerous substances, and unauthorized entry 19of an inhabited dwelling. In sentencing the defendant, the trial court referred to the PSI report which showed that the defendant had prior convictions for several counts of criminal mischief and simple battery, in addition to convictions for misdemeanor theft, simple burglary, simple assault, criminal trespass, false representation of controlled dangerous substances, entering and remaining after being forbidden, possession of drug paraphernalia, simple criminal damage to property, unauthorized entry of an inhabited dwelling, public drunkenness, and resisting an officer, as well as the present offense of distribution of cocaine. Based upon these factors, the trial court sentenced the defendant to serve 40 years at hard labor “without benefit” under the multiple offender statute.

Given the defendant’s extensive criminal record and prior opportunities for rehabilitation, the trial court’s sentence that the defendant serve 40 years at hard labor is not excessive and is not an abuse of the trial court’s discretion in imposing sentence.

PAROLE ELIGIBILITY

We note that the trial court ordered that the sentence of 40 years at hard labor, with credit for time served, be served “without benefit.” The minutes in this matter state that “[t]he court ordered said sentence served without benefit of probation, parole, or suspension of sentence and the defendant be given credit for time served.” We amend the sentence to provide that it is to be served without benefit of probation or suspension of sentence and that the first two years of the sentence are to be served without benefit of parole.

| inLa. R.S. 15:529.1(G) provides that any sentence imposed under the provisions of this section shall be at hard labor without benefit of probation or suspension of sentence. Regarding the imposition of a sentence without benefit of parole, the conditions imposed on the sentence are those called for in the sentencing provisions for the underlying felony offense. See State v. Bruins, 407 So.2d 685 (La.1981); State v. Richard, 550 So.2d 300 (La.App. 2d Cir.1989). The sentence conditions required by La. R.S. 15:529.1(G) are additions to, rather than replacements of, those conditions required by the sentencing provisions for the underlying offense. State v. Robinson, 46,330 (La.App.2d Cir.2/18/11), 54 So.3d 1292. See also State v. Thomas, 42,322 (La.App.2d Cir.8/15/07), 962 So.2d 1119, writ denied, 2008-0316 (La.10/24/08), 992 So.2d 1031; State v. Hollingsworth, 42,317 (La.App.2d Cir.8/15/07), 962 So.2d 1183; State v. Brown, 37,736 (La.App.2d Cir.3/12/04), 868 So.2d 289, writ denied, 2004-2216 (La.6/3/05), 903 So.2d 445; State v. Holloway, 37,021 (La.App.2d Cir.5/16/03), 847 So.2d 200, writs denied, 2003-1720 (La.12/19/03), 861 So.2d 558, 2003-1929 (La.12/19/03), 861 So.2d 560; State v. Shields, 614 So.2d 1279 (La.App. 2d Cir.1993), writ denied, 620 So.2d 874 (La.1993).

La. R.S. 40:967 provides that only the first two years of a sentence for distribution of cocaine are to be served without benefit of parole, probation, or suspension of sentence. Accordingly, we amend the defendant’s sentence to provide that only the first two years of the sentence are to be served without benefit of parole.

J^RIGHT TO COUNSEL OF CHOICE

The defendant alleges in his pro se brief that he was denied the right to retained counsel of his choice in violation of the Sixth Amendment of the United States Constitution and Article I, Section 13 of the Louisiana Constitution. This argument is without merit.

A similar argument was made in State v. Leggett, 363 So.2d 434 (La.1978). In that case, the Louisiana Supreme Court stated:

Both the federal and state constitutions provide that the accused has the right to counsel of his own choosing to defend him on a criminal charge. However, this right does not permit arbitrary action which obstructs orderly procedures in the courts. State v. Dickerson, 353 So.2d 262 (La.1977); State v. Mackie, 352 So.2d 1297 (La.1977). Rather the right to choose one’s attorney is a right to be exercised at a reasonable time, in a reasonable manner, and at an appropriate stage within the procedural framework of the criminal justice system. There is |12no constitutional right to make a new choice of counsel on the very date the trial is to begin, with the attendant necessity of a continuance and its disrupting implications to the orderly trial of cases. Once the trial day has arrived, the question of withdrawal of counsel rests largely within the discretion of the trial judge. State v. Cousin, 307 So.2d 326 (La.1975); State v. St. Amand, 274 So.2d 179 (La.1973). This court has frequently upheld the trial court’s denial of motions for continuances or withdrawal of counsel made on the day of trial when defendant is dissatisfied with his present attorney but had ample opportunity to retain private counsel. State v. Anthony, 347 So.2d 483 (La.1977); State v. Hegwood, 345 So.2d 1179 (La.1977); State v. Wiggins, 337 So.2d 1172 (La.1976); State v. Alexander, 334 So.2d 388 (La.1976); State v. Austin, 258 La. 273, 246 So.2d 12 (1971).

See also State v. Seiss, 428 So.2d 444 (La.1983); State v. Shumaker, 40,275 (La.App.2d Cir.10/28/05), 914 So.2d 1156; State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747; State v. Brooks, 431 So.2d 865 (La.App. 2d Cir.1983).

In this case, counsel was appointed to represent the defendant on January 26, 2009. Numerous pretrial motions were filed on his behalf and the defendant was represented by appointed counsel at pretrial hearings. Trial on this matter began on September 30, 2009. On that date, the defendant was present in court with his court-appointed attorney. Defense counsel informed the trial court that the defendant’s family had hired private counsel to represent him. On that basis, the court-appointed counsel announced that the defense was not ready for trial.

Retained counsel was not present in the courtroom and did not file a motion to enroll as counsel. Neither the defendant nor his family informed the court of the name of the retained counsel. The trial court determined that court-appointed counsel had an opportunity to meet with the defendant and |i3discuss the facts and defenses in the case. Defense counsel also had ample time to subpoena any witnesses. The trial court continued with the trial with the defendant represented by court-appointed counsel.

The defendant did not make a contemporaneous objection to the trial court’s action in commencing the trial. However, even if he had, under these circumstances, the trial court did not err in going forward with the trial instead of granting a continuance to allow the defendant to have retaining counsel appear in court. The defendant raised the issue of retained counsel on the day of trial and made no showing that counsel had in fact been retained. The defendant had ample opportunity to retain counsel prior to commencement of the trial. Court-appointed counsel had prepared a defense for the defendant. The trial court acted within its discretion in denying the request to continue the matter in order for the allegedly retained counsel to appear.

CONCLUSION

For the reasons set forth above, the defendant’s conviction for distribution of cocaine and his adjudication as a fourth felony offender are affirmed. We affirm the defendant’s sentence to serve 40 years at hard labor, without benefit of probation or suspension of sentence, with credit for time served, but amend his sentence to provide that only the first two years of the sentence are to be served without benefit of parole.

CONVICTION AFFIRMED; SENTENCE AFFIRMED AS AMENDED.

      . U.S. Const, amend. VI, provides:
      In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.
      La. Const, art. I, § 13 states:
      When any person has been arrested or detained in connection with the investigation or commission of any offense, he shall be advised fully of the reason for his arrest or detention, his right to remain silent, his right against self incrimination, his right to the assistance of counsel and, if indigent, his right to court appointed counsel. In a criminal prosecution, an accused shall be informed of the nature and cause of the accusation against him. At each stage of the proceedings, every person is entitled to assistance of counsel of his choice, or appointed by the court if he is indigent and charged with an offense punishable by imprisonment. The legislature shall provide for a uniform system for securing and compensating qualified counsel for indigents.


author: KITCHENS, Justice, LAMAR, Justice,

text:
    A.B. v. Y.Z.
    No. 2009-CA-01575-SCT.
    Supreme Court of Mississippi.
    March 10, 2011.
    Rehearing Denied May 12, 2011.
    A.B., Appellant, pro se.
    James W. Newman, III, attorneys for appellant.
    Y.Z., Appellee, pro se.
   KITCHENS, Justice,

for the Court:

¶ 1. A.B. appeals an order of the chancery court committing him to the East Mississippi State Hospital for involuntary treatment for substance abuse. The order was the result of a petition for commitment filed by his brother, Y.Z. We affirm, finding that once A.B. had admitted the allegations of his brother’s petition, he had waived his right to a hearing, and the petition, after that point,- could not be dismissed upon agreement of the parties.

Facts and Procedural History

¶ 2. On June 26, 2009, A.B.’s brother, Y.Z., filed a “Petition and Affidavit for Detention, Care and Treatment of Alcohol and Drug Addiction” in the Chancery Court of Perry County. In his petition, Y.Z. asked that the chancery court commit A.B. for treatment, alleging that A.B.’s addiction to alcohol, illegal narcotics, and prescription medications had rendered A.B. unfit to look after his affairs and had caused A.B. to become a danger to himself and to others. See Miss.Code Ann. § 41-31-3 (Rev.2009) (outlining requirements of petition for involuntary commitment of an alcoholic or drug addict). Because A.B. is an attorney who practices law in the Perry County Chancery Court, all the chancellors in that district recused themselves. This Court specially appointed Chancellor Joe Dale Walker to preside over the matter.

¶ 3. On July 20, 2009, A.B., Y.Z., and Y.Z.’s attorney signed an agreed order whereby A.B. agreed to submit to an evaluation at COPAC, the “Conducive Out>Patient Addiction Center.” See In re Reinstatement of Baldwin, 890 So.2d 56, 57 n. 1 (Miss.2003). A.B. agreed to submit to an evaluation within forty-five days of signing the order, and Y.Z. was to pay for A.B.’s evaluation and treatment. A.B. also agreed that he would not operate a motor vehicle after consuming alcoholic beverages. This agreed order is not a part of the record before us, but the chancellor referred to it repeatedly during the hearings, and there appears to be no dispute concerning its contents.

¶ 4. When A.B. did not submit to an evaluation within forty-five days, and after he had been charged with at least one driving under the influence (DUI) offense in the interim, Y.Z. filed a motion for contempt. A hearing was held on September 11, 2009, and at the conclusion of that hearing, the chancellor found that A.B. had violated the July 20, 2009, agreed order, and he ordered A.B. to be taken into custody and transported to COPAC. The chancellor also ordered that a detailed report of A.B.’s evaluation at COPAC be forwarded to the court so that the court might order further treatment if necessary.

¶ 5. A.B. made several arguments during the September 11 hearing as to why the proceedings should be dismissed or continued. For example, A.B. argued that he had been too busy with his law practice to go for an evaluation, that he needed additional time to secure an attorney, and that the allegations in the petition were essentially untrue. The chancellor rejected all of A.B.’s arguments, concluding that the court could not undo the agreed order without good cause.

¶ 6. While A.B. was being transported to COPAC, he dictated an Emergency Petition for Stay of the Order, which was immediately filed with this Court. Emergency relief was denied in a single-justice order, but the order reserved a final ruling on the stay. The petition later was dismissed by a panel of this Court, because it had not been served on the respondent or the trial court.

¶ 7. On September 28, 2009, another hearing was held. The chancellor noted that he had received a fourteen-page report from COPAC indicating that A.B. was addicted to alcohol and drugs and was suffering of bipolar disorder. The COPAC report recommended that A.B. undergo intensive inpatient treatment and that he participate in the Mississippi Lawyers and Judges Assistance Program (LJAP).

¶ 8. A.B., who was represented by counsel, attempted to have the proceedings dismissed via a joint stipulation of dismissal, signed by both A.B. and Y.Z. and prepared by Y.Z.’s attorney. The chancellor refused to dismiss the action, reasoning that the stipulation could not undo the court’s September 11 order or the COPAC evaluation. The chancellor found that, based on the COPAC report, and the fact that he had received “several” DUIs, A.B. was in need of treatment. The chancellor ordered that A.B. be committed to the East Mississippi State Hospital for ninety days and that A.B. complete a program as directed by LJAP. In his written order, the chancellor stated that “the allegations of the Petition are true as admitted by the Respondent in his Answer and Waiver and said Answer and Waiver is made a part of this record, and that this finding is by clear and convincing evidence.” The Answer and Waiver is not a part of the appellate record, and A.B. does not mention it in his brief.

¶ 9. A.B. timely appealed the order of commitment. Shortly thereafter, Y.Z.’s attorney withdrew from the case. Y.Z. did not file a brief in this matter, although he did write a letter to this Court’s clerk advising that he wanted to “drop” the case.

Issues

¶ 10. A.B. raises two issues on appeal: (1) whether the trial court erred by refusing to dismiss the case based on the stipulation of dismissal; and (2) whether the trial court erred by committing A.B. for treatment without a full hearing.

Standard of Review

¶ 11. This Court applies a limited standard of review to a chancellor’s findings of fact. Miller v. Pannell, 815 So.2d 1117, 1117 (Miss.2002). “The chancellor’s findings will not be disturbed upon review unless the chancellor was manifestly wrong, clearly erroneous or applied an incorrect legal standard.” Id. (quoting Reddell v. Reddell, 696 So.2d 287, 288 (Miss.1997)). Questions of law are reviewed de novo. Biglane v. Under The Hill Corp., 949 So.2d 9, 14 (Miss.2007) (citing Cummings v. Benderman, 681 So.2d 97, 100 (Miss.1996)).

I. Once A.B. had admitted the allegations of his brother’s petition for involuntary commitment, the parties could not stipulate to a dismissal.

¶ 12. A.B. argues that the chancellor was required to dismiss the case pursuant to Mississippi Rule of Civil Procedure 41(a)(l)(ii):

Subject to the provisions of Rule 66, or of any statute of the State of Mississippi, and upon the payment of all costs, an action may be dismissed by the plaintiff without order of court ... by filing a stipulation of dismissal signed by all parties who have appeared in the action.

A.B. cites the comment to the rule, which provides, “[a] voluntary dismissal by stipulation is effective immediately and does not require judicial approval.” M.R.C.P. 41 cmt.

¶ 13. However, Rule 81(a)(6) provides that the Rules of Civil Procedure have only limited applicability to “proceedings pertaining to the adjudication, commitment, and release of narcotic and alcohol addicts and persons in need of mental treatment.” Moreover, Rule 41(a)(l)(ii) clearly provides that a voluntary dismissal is “subject to ... any statute of the State of Mississippi.” Thus, Mississippi Code Section 41-31-5 (Rev.2009), which governs involuntary commitment of alcoholics and drug addicts, is controlling.

¶ 14. Section 41-31-5 states, in pertinent part,

If the 'alleged alcoholic or drug addict shall admit the truth and correctness of the allegations of said petition ... then [the chancellor] shall enter an order so finding, and shall order that such person be remanded and committed to and confined in the proper institution or in the case of an alcoholic to an approved public or private treatment facility....

(Emphasis added.) Thus, this section imposes on the chancellor a mandatory duty to order the commitment of the respondent if the respondent admits that the allegations in the petition are true.

¶ 15. While we are not provided a copy of the Answer and Waiver signed by A.B., the chancellor found that A.B. had admitted the allegations of his brother’s petition in this pleading, and that “this finding is by clear and convincing evidence.” A.B. fails to mention the Answer and Waiver in his brief, and never addresses the chancellor’s finding that he had admitted the allegations in his brother’s petition. As the appellant, A.B. has the burden of demonstrating that the chancellor erred. Because he does not provide any evidence to the contrary, or even allege that he never made the admission, we must accept the finding of the chancellor that A.B. had admitted the allegations contained in his brother’s petition. Once A.B. admitted the allegations, the chancellor was duty bound by the statute to commit him for treatment, precluding a dismissal of the matter by stipulation under Mississippi Rule of Civil Procedure 41(a)(l)(ii).

II. A.B. waived his right to a hearing by admitting the allegations in the petition for involuntary commitment.

¶ 16. In the alternative, A.B. argues that the chancellor erred in committing him without a hearing. A.B. cites the portion of Mississippi Code Section 41-31-5 which provides that “[a]t the time fixed, the chancellor shall hear evidence on said petition ... and all persons interested shall have the right to appear and present evidence touching upon the truth and correctness of the allegations of said petition.” However, as noted above, the statute also provides that, once A.B. had admitted the contents of the petition, the chancellor was required ■ to order his commitment for treatment. Miss.Code Ann. § 41-31-5 (Rev.2009). Therefore, when he admitted the facts of the petition, A.B. thereby waived any and all right to contest the petition, and thus, this issue likewise is without merit.

Conclusion

¶ 17. Once A.B. had admitted that the contents of his brother’s petition were true, he was bound by that admission, and the chancellor did not err in committing him for treatment. We therefore affirm the order committing A.B. for involuntary treatment.

¶ 18. AFFIRMED. ‘

WALLER, C.J., CARLSON, P.J., AND CHANDLER, J., CONCUR. LAMAR, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J. RANDOLPH, PIERCE AND KING, JJ„ NOT PARTICIPATING.

LAMAR, Justice,

Dissenting:

¶ 19. Because I disagree that the chancellor had the authority to commit A.B. after the parties filed a joint stipulation of dismissal, I respeetfülly dissent.

¶ 20. Mississippi Rule of Civil Procedure 41(a)(l)(ii) governs voluntary dismiss-ais and controls in this case: “[A]n action may be dismissed by the plaintiff without order of court:

.... (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action.” (Emphasis added.) The majority is correct that Mississippi Rule of Civil Procedure 81(a)(6) limits the applicability of the Rules of Civil Procedure in proceedings pertaining to the commitment of drug and alcohol addicts. But Rule 81(a) also provides that “statutory procedures specifically provided for each of the above proceedings shall remain in effect and shall control to the extent they may be in conflict with these rules; otherwise these rules apply.” (Emphasis added.) Nothing in the statutes governing the commitment of alcoholics conflicts with Rule 41(a). I would find that the rules apply, and that the action was properly dismissed by the parties.

¶ 21. The comment to Rule 41 supports this finding and states, in pertinent part, that there are:

two methods by which a plaintiff may dismiss an action without obtaining the consent of the court: He may do so at any time by stipulation of all the parties .... A voluntary dismissal by stipulation is effective immediately and does not require judicial approval.

Miss. R. Civ. P. 41 cmt.

¶ 22. Nothing in the statutory scheme governing the commitment of alcoholics prevents parties from voluntarily dismissing suits once they have been brought. In fact, the statutes are completely silent as to dismissals which, according to the plain language of Rule 81, means that Rule 41 applies. Thus, because the chancellor was without authority to proceed once the parties had filed a joint stipulation of dismissal, I would reverse this case and render a judgment in favor of A.B.

¶ 28. I also find merit in A.B.’s second assignment of error that the court erred in committing him without a hearing. Mississippi Code Section 41-31-5 explicitly requires the chancellor to hold a hearing before committing anyone. The relevant text, some of which the majority reads out of the statute, states:

Whenever such a petition be shall be filed the chancellor of said court shall, by order, fix a time upon a day certain for the hearing thereof .... The person alleged to be an alcoholic or drug addict shall be served with a citation to appear at said hearing .... At the time fixed, the chancellor shall hear evidence on said petition, with or without the presence of the alleged alcoholic or drug addict, and all persons interested shall have the right to appear and present evidence touching upon the truth and correctness of the allegations of said petition. The said chancellor, in his discretion, may require that the alleged álcoholie or drug addict be examined .... and may consider the results of such examination in reaching a decision in said matter. If the alleged alcoholic or drug addict shall admit the truth and correctness of the allegations of said petition, or if the chancellor should find from the evidence that such person is an alcoholic or drug addict, and is in need of detention, care and treatment in an institution, and that the other material allegations of said petition are true, then he shall enter an order so finding, and shall order that person be remanded and committed to and confined in the proper state institution or in the case of an alcoholic to an approved public or private treatment facility....

Miss.Code Ann. § 41-31-5 (Rev.2009) (emphasis added).

¶ 24. The organization of this statute is important. The filing of a petition automatically requires a chancellor to set a hearing. At the hearing, the chancellor shall hear evidence. And if — during the hearing — the alleged alcoholic or drug addict admits the truth and correctness of the petition, or if — after the hearing — the chancellor finds from the evidence the truth of the petition, only then shall the chancellor order and commit an alcoholic or drug addict to an institution or facility.

¶ 25. The statutory language clearly contemplates a hearing. And in this case, such a hearing did not take place.

DICKINSON, P.J., JOINS THIS OPINION.

      . The record suggests that A.B. may have been charged with two DUIs after signing the order.

      . Henry Glaze, Jr., from LJAP was present at this hearing.