author: JUDE G. GRAVOIS, Judge.

text:
    STATE of Louisiana v. Lawrance W. BRUCE.
    No. 10-KA-121.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 9, 2010.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desirée M. Valenti, Assistant District Attorneys, Gretna, LA, for State Of Louisiana.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   JUDE G. GRAVOIS, Judge.

^Defendant Lawrance W. Bruce appeals his conviction and sentence for armed robbery, a violation of LSA-R.S. 14:64. On appeal, he argues that the evidence was insufficient to convict, he received an excessive sentence, and that fundamental errors of due process occurred during his multiple offender proceeding. After thorough consideration of the law and the record, we affirm.

PROCEDURAL HISTORY

On February 11, 2009, the Jefferson Parish District Attorney filed a bill of information charging defendant, Law-rance W. Bruce, with one count of armed robbery. Defendant pled not guilty at arraignment on February 12, 2009. Defendant filed a Motion to Suppress Identification, which was denied by the court on April 2, 2009.

On June 3, 2009, defendant proceeded to trial before a twelve-person jury. The jury found defendant guilty of armed robbery. Defendant filed a Motion for New Trial on June 17, 2009, which was denied by the court. Sentencing delays |swere waived, and on June 17, 2009, defendant was sentenced to 75 years in the Department of Corrections without benefit of probation, parole, or suspension of sentence. After sentencing, defendant filed a written motion for appeal, which was granted on June 17, 2009.

Defendant filed a Motion to Amend Sentence, which was denied by the court on August 20, 2009. The State filed a multiple offender bill of information on the same day, and defendant denied the allegations therein. After a hearing on August 20, 2009, the trial court found that defendant was a second felony offender. The trial court vacated defendant’s original sentence and imposed an enhanced sentence of 100 years imprisonment at hard labor, with the first 99 years to be served without benefit of probation, parole, or suspension of sentence and the remaining one year to be served without the benefit of probation or suspension of sentence, in accordance with LSA-R.S. 15:529.1. Trial counsel objected to the sentence as excessive. Defendant’s timely appeal followed.

FACTS

On January 10, 2009, at approximately 9:00 p.m., Deputy Mark Monson of the Jefferson Parish Sheriffs Office received a call regarding an armed robbery at 1308 Bolo Court, Apartment # 3, in Bridge City, Louisiana. Deputy Monson met with and obtained a written statement from the victim, Adadin Caraballo, who advised that he had been robbed in his apartment at knifepoint. Mr. Caraballo identified the robber as a man named “Tony.” Deputy Monson, who frequently patrolled the area, had knowledge that defendant regularly used the name “Tony.”

Mr. Caraballo advised Deputy Monson that the defendant entered his apartment and pulled out a medium-sized kitchen knife. Defendant approached Mr. Cara-ballo, who stumbled backwards in fear. At the same moment, defendant |4grabbed a gold Figaro chain with a Jesus medallion from around Mr. Caraballo’s neck. Mr. Caraballo testified that although he did not know defendant, he had seen defendant around the neighborhood and had heard people address him as “Tony.” Mr. Cara-ballo testified that he had paid approximately $1,600 for the chain and medallion. After defendant left the apartment, Mr. Caraballo and his roommates attempted to find defendant and recover the chain. When they were unsuccessful, Mr. Cara-ballo reported the robbery to the police.

The following day, Deputy Monson compiled a photographic lineup that included defendant’s picture. That same day, Mr. Caraballo positively identified defendant as the person who robbed him. Defendant was subsequently arrested and charged with armed robbery.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant argues that the evidence at trial was insufficient to support the verdict. Defendant notes that there was no weapon recovered, no eyewitnesses to the alleged armed robbery, and no independent evidence to support the existence or value of the property that was allegedly stolen. Defendant also notes the lack of a verbal reference to the weapon during the incident, such as “Give it up.” Finally, defendant contends that there was no testimony specifically supportive of force or intimidation. As such, defendant argues that any rational trier of fact would have grave and reasonable doubt as to defendant’s guilt, and that the verdict should be set aside.

|KThe State responds that the victim’s testimony at trial, which was uncontradict-ed, is sufficient to prove beyond a reasonable doubt that defendant robbed the victim while armed with a dangerous weapon. The State asserts that the credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. The State contends that, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found that the State proved the essential elements of the charged offense beyond a reasonable doubt.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), 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 beyond a reasonable doubt. See State v. Ortiz, 96-1609, p. 12 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. Bailey, 04-85, p. 4 (La.App. 5 Cir. 5/26/04), 875 So.2d 949, 954-55, writ denied, 04-1605 (La.11/15/04), 887 So.2d 476, cert. denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005) (quotation omitted). Under the Jackson standard, a review of a criminal conviction record for sufficiency of evidence does not require the court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. State v. Jones, 08-20, p. 6 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240. Rather, the reviewing court is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. Id., 08-20 at 7, 985 So.2d at 240.

It is not the function of the appellate court to assess the credibility of witnesses or to re-weigh the evidence absent impingement on the fundamental due | (¡process of law. Bailey, 04-85 at 5, 875 So.2d at 955; Jones, 08-20 at 7, 985 So.2d at 240. 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. Johnson, 03-903 (La.App. 5 Cir. 12/9/03), 864 So.2d 645, 650.

Evidence may be either direct or circumstantial. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. Jones, 08-20 at 7, 985 So.2d at 240. Where circumstantial evidence forms the basis of the conviction, the evidence must exclude every reasonable hypothesis of innocence, “assuming every fact to be proved that the evidence tends to prove.” State v. Frith, 08-52, p. 9 (La.App. 5 Cir. 4/29/08), 985 So.2d 792, 797 (citing LSA-R.S. 15:438; State v. Neal, 00-0674, p. 9 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002)). This is not a separate test from that stated in Jackson, but rather provides a helpful basis for determining the existence of reasonable doubt. State v. Kempton, 01-572, p. 7 (La.App. 5 Cir. 12/12/01), 806 So.2d 718, 722.

Ultimately, both the direct and circumstantial evidence must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Harrell, 01-841, p. 7 (La.App. 5 Cir. 2/26/02), 811 So.2d 1015, 1019 (citing Jones, 772 So.2d at 791). The reviewing court is not required to determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory explanation of events. Rather, the reviewing court must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Mitchell, 99-3342, p. 7 (La.10/17/00), 772 So.2d 78, 83.

|7In the present case, defendant was charged with armed robbery in violation of LSA-R.S. 14:64. To support a conviction for armed robbery, the State must prove beyond a reasonable doubt that there was a taking of anything of value from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon. LSA-R.S. 14:64(A); State v. Thomas, 08-813, p. 6 (La.App. 5 Cir. 4/28/09), 13 So.3d 603, 606, writ denied, 09-1294 (La.4/5/10), 31 So.3d 361.

Encompassed in proving the elements of an offense is the necessity of proving the identity of the defendant as the perpetrator. State v. Fuller, 07-319, p. 5 (La.App. 5 Cir. 2/19/08), 980 So.2d 45, 49, writ denied, 2008-0705 (La.10/10/08), 993 So.2d 1282. Positive identification by only one witness is sufficient to support a conviction. Fuller, 07-319 at 6, 980 So.2d at 49.

In the instant case, the jury was presented with the victim’s testimony, which was uncontradicted, and the testimony of the responding police officer, Deputy Mon-son. We find that the State presented evidence sufficient to prove that defendant robbed the victim while armed with a dangerous weapon. Mr. Caraballo positively identified defendant as the perpetrator. Mr. Caraballo further stated that he had seen defendant around the neighborhood and knew he went by the name “Tony.” As noted above, positive identification by only one witness is sufficient to support a conviction. Fuller, 07-319 at 6, 980 So.2d at 49.

Mr. Caraballo also testified that defendant entered his apartment and pulled out a medium-sized kitchen knife. Defendant approached Mr. Caraballo, who was scared and stumbled backwards, and grabbed a gold Figaro chain with a Jesus medallion from Mr. Caraballo’s neck. Mr. Caraballo testified that he paid approximately $1,600 for the chain. Mr. Caraballo expressed no doubt that defendant was the individual who robbed him while armed with a knife.

| sIn this case, the knife was not produced at trial. However, the production of a weapon, or other physical evidence, is not paramount in an armed robbery prosecution providing the State’s witnesses can otherwise establish, by their observations at the crime scene, all elements of the offense charged beyond a reasonable doubt, including the fact that an alleged armed robber did have and make use of a dangerous weapon. State v. Cotton, 94-384, p. 2-3 (La.App. 5 Cir. 11/16/94), 646 So.2d 1144, 1146; State v. Brown, 591 So.2d 791, 794 (La.App. 5 Cir.1991).

In Cotton, the prosecution did not introduce a weapon at trial. Cotton, 94-384 at 3, 646 So.2d at 1146. Like the instant case, the victim, who was the only eyewitness to the crime, testified that the defendant approached him and pressed a hard, sharp object to his side. The victim further testified that the defendant told him to look straight ahead and he wouldn’t get hurt. Id. The victim, thinking the defendant had a knife, complied, and the defendant robbed him. The defendant denied the use of a weapon. Id. Finding that the prosecution submitted sufficient evidence to support the armed robbery conviction, this Court held that when a defendant creates an atmosphere of intimidation prompting the victim to reasonably react with fear for his life, an armed robbery conviction is justified. Id.

In State v. Calvin, 00-1505 (La.App. 5 Cir. 2/28/01), 781 So.2d 827, 831, the defendant contended that the State provided insufficient evidence that he was armed with a dangerous weapon. This Court noted that the jury evidently accepted the victim’s testimony that based on her familiarity with guns the object looked like the barrel of a gun wrapped in a towel. Id. at 832. As such, this Court held that, viewing the evidence in the light most favorable to the prosecution, the jury could have reasonably concluded that the defendant was armed with a dangerous weapon. Id.

|3In Brown, the defendant contended that the evidence was insufficient because the gun was not produced at trial. Brown, 591 So.2d at 793. The victim, an undercover officer working a drug trafficking investigation, testified that the defendant produced a gun and ordered the officer to return the rocks of cocaine he had offered to sell to the officer. Id. At trial, the defendant denied his involvement in the robbery. Id. Reviewing the officer’s testimony in the light most favorable to the prosecution, this Court held that a rational trier of fact could have found beyond a reasonable doubt that the defendant, while armed with a handgun, took drugs from the officer by threatening him with the gun. Id. at 794.

The jurors clearly found the victim’s testimony regarding the incident to be credible. As discussed above, 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. Johnson, 864 So.2d at 650. It is not the function of the appellate court to second-guess the credibility of witnesses as determined by the trier of fact or to reweigh the evidence absent impingement on the fundamental due process of law. Bailey, 04-85 at 5, 875 So.2d at 955. The jury was presented with and clearly accepted Mr. Caraballo’s testimony that defendant, while armed with a knife, took a gold Figaro chain and medallion from Mr. Caraballo by use of force or intimidation.

Based on the foregoing, the evidence, viewed in a light most favorable to the State, was sufficient to establish that defendant was guilty of the charged offense beyond a reasonable doubt. As such, this assignment of error has no merit.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends that it was error to adjudge defendant as a habitual offender following a hearing at which defendant was not afforded fundamental due Improcess. Specifically, defendant points to the conduct of his attorney, asserting that she abandoned her role as counsel for defendant and instead adopted the position of the State. First, defendant claims that during her cross examination of the State’s fingerprint expert, counsel for defendant simply underscored the fact that there was no way the fingerprints could belong to anyone other than defendant. Next, defendant alleges that by engaging defendant in open court on the history of his prior plea, trial counsel caused defendant to waive his right to remain silent at the multiple offender hearing. Defendant asserts that rather than zealously representing defendant in his contention that his predicate plea was invalid because it was made with the understanding that it was a plea to a misdemeanor, trial counsel argued with defendant that his belief was unfounded, interrupting him and chastising him, and therefore failed to provide defendant with meaningful representation at the multiple offender hearing.

The State contends that defendant’s claim is -without merit because defendant has not demonstrated a constitutional deficiency within the multiple bill or articulated how the State failed to meet its burden under LSA-R.S. 15:529.1 and State v. Shelton, 621 So.2d 769 (La.1993). The State notes that the evidence presented at the multiple bill hearing included testimony by a latent fingerprint analyst that the fingerprints taken of defendant on the day of the hearing matched the fingerprints corresponding, to defendant’s prior felony conviction, as well as documentary evidence of defendant’s prior felony conviction, including a Boykin form and guilty plea. The State contends that because it satisfied its burden of proving both the existence of a prior guilty plea and that defendant was represented |nby counsel when the plea was taken, and because defendant did not produce affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea, the trial court’s finding that defendant is a second felony offender was proper.

Defendant contends that his attorney should have argued that his plea on the predicate felony was invalid because it was made with the understanding that it was a plea to a misdemeanor, not a felony. Instead, because trial counsel abandoned her role as counsel for defendant and adopted the position of the State in seeking to prove that there was a valid predicate felony upon which defendant should be sentenced as a multiple offender, defendant argues trial counsel failed to provide him with any meaningful representation at the multiple offender hearing. Defendant also contends that, by engaging him in open court on the history of his prior plea, trial counsel caused defendant to waive his right to remain silent at the multiple offender hearing. In order to address claims of an inadequate defense to the multiple offender bill, we must first determine whether the evidence presented at the multiple offender hearing was sufficient to support the trial court’s determination that defendant was a second felony offender. Grimes, 09-2 at 11, 16 So.3d at 426.

Based on the evidence presented at the multiple offender proceedings, including the testimony of the witnesses and the documents presented, we find that the State proved defendant’s multiple offender status. To prove that a defendant is a habitual offender, the State must initially prove the prior felony convictions and that the defendant is the same person who was convicted of the felonies. Grimes, 09-2 at 11, 16 So.3d at 426. The latter can be established by expert testimony matching the accused fingerprints with those in the record from the prior proceedings. Id. When the State relies on a prior conviction that is based on a]_^guilty plea in proving the defendant’s multiple offender status and the defendant denies the multiple bill’s allegations, the State bears the burden of proving the existence of the prior guilty plea and that the defendant was represented by counsel when they were taken. Grimes, 09-2 at 11, 16 So.3d at 426.

The multiple offender bill of information filed on June 17, 2009 alleged a prior felony conviction by guilty plea to a charge of simple burglary. At the hearing on the multiple bill, defendant denied the allegation that he was a second felony offender. The State presented testimony by a latent fingerprint analyst that the fingerprints taken of defendant on the day of the hearing matched the fingerprints corresponding to defendant’s prior felony conviction. The State then presented a certified copy of defendant’s prior felony conviction for simple burglary, including the Boykin form, Waiver of Rights form, and entry of a plea of guilty to the charge of simple burglary. As evidenced by the form from his prior conviction, defendant was advised of his right to a trial by jury or by the Court alone, advised of his right to confront his accusers, and advised of his right against self-incrimination. Defendant was further advised that if he was convicted of a subsequent offense, his guilty plea could be used against him to enhance that penalty. The Boykin form also indicates that the waiver was free and voluntary. The evidence also established that defendant was represented by counsel at the proceedings on the 2007 felony conviction. Finally, the cleansing period had not tolled on the prior felony, as was evident from the record.

Accordingly, we find that the trial court was correct in its determination that defendant was a second felony offender. Grimes, 09-2 at 12, 16 So.3d at 427. The State met this burden prior to any exchange between the defendant and his counsel at the multiple bill hearing. Because defendant has not shown that he was prejudiced as a result of an alleged deficient performance by his attorney, this | ^assignment of error, if addressed, would have no merit. Grimes, 09-2 at 14, 16 So.3d at 428; see also State v. Lacy, 1999-2225, p. 5 (La.App. 4 Cir. 2/21/01), 782 So.2d 47, 51 (holding that counsel was not ineffective for failing to object to use of prior conviction to support multiple bill when State offered evidence sufficient to meet its burden under LSA-R.S. 15:529.1 and Shelton).

As detailed above, by proving the prior felony conviction and that the defendant is the same person who was convicted of the felony, the State met its initial burden under Shelton. The burden then shifted to defendant to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. Shelton, 621 So.2d at 779-780. Defendant failed to produce such affirmative evidence. Accordingly, this assignment of error has no merit.

ASSIGNMENT OF ERROR NUMBER THREE

Defendant contends that his sentence is constitutionally excessive because he received a “flat” sentence of 100 years imprisonment at hard labor for an armed robbery in which the victim was neither injured nor verbally threatened. Defendant further contends that the virtual life sentence he received shocks the conscience and should be set aside.

The State responds that defendant’s sentence is not excessive because the sentence is not outside the bounds of the statute and the trial court did not abuse its broad sentencing discretion. The State notes defendant’s mistaken assertion that he was sentenced to a “flat” 100 years imprisonment for the charge of armed robbery, and contends that defendant’s sentence as a second felony offender falls within the 49½ to 198 year range prescribed by LSA-R.S. 15:529.1.

11/Though defendant filed a Motion to Amend Sentence with regard to his original sentence, he did not make or file a motion to reconsider sentence pursuant to LSA-C.Cr.P. art. 881.1 after he was re-sentenced pursuant to LSA-R.S. 15:529.1. Instead, defendant merely objected to his sentence as excessive at the sentencing hearing, without alleging any specific grounds for excessiveness. The failure to file a motion to reconsider sentence, or to state specific grounds upon which the motion is based, limits a defendant to a review of his sentence for constitutional excessiveness only. State v. Warmack, 07-311, p. 7 (La.App. 5 Cir. 11/27/07), 973 So.2d 104, 108; see also LSA-C.Cr.P. art. 881.1. Where a new sentence has been imposed following vacation of a prior sentence, the defendant is required to file a new motion for reconsideration of sentence in the trial court, in order to preserve appellate review of the newly-imposed sentence. State v. Evans, 09-477, p. 11 (La.App. 5 Cir. 12/29/09), 30 So.Sd 958, 965. The court cannot assume that the defendant’s objections to the earlier sentence are equally applicable to the new sentence imposed. Id. As such, defendant is limited to a review of his sentence for constitutional excessiveness only.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. State v. Pearson, 07-382, p. 15 (La.App. 5 Cir. 12/27/07), 975 So.2d 646, 655. A sentence is considered excessive, even when it is within the applicable statutory range, if it imposes needless pain and suffering and is grossly disproportionate to the seriousness of the offense. Warmack, 07-311 at 7, 973 So.2d at 109. In reviewing a sentence for excessiveness, the appellate court must consider the punishment and the crime in light of the harm to society and gauge whether the |1Bpenalty is so disproportionate as to shock the sense of justice. Pearson, 07-332 at 15, 975 So.2d at 655-56. The trial judge is afforded wide discretion in determining sentence, and the court of appeal will not set aside a sentence absent a clear abuse of the trial court’s discretion. Id. at 15, 975 So.2d at 656 (citing State v. Brown, 04-230, p. 4 (La.App. 5 Cir. 7/27/04), 880 So.2d 899, 902).

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. Pearson, 07-332 at 15-16, 975 So.2d at 656. The relevant question on appeal is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784, p. 3 (La.5/31/96), 674 So.2d 957, 959 cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). Generally, the maximum sentences are reserved for cases involving the most serious violations of the offense charged and the worst type of offender. Warmack, 07-311 at 8, 973 So.2d at 109.

Defendant was found guilty of armed robbery. LSA-R.S. 14:64(B) provides that whoever commits armed robbery shall be imprisoned at hard labor for not less than ten years and for not more than ninety-nine years, without benefit of parole, probation or suspension of sentence. On June 17, 2009, defendant was sentenced to 75 years at hard labor without the benefit of probation, parole, or suspension of sentence. In determining defendant’s sentence, the court reviewed defendant’s criminal history, which included a felony conviction for simple burglary in 2007, two simple robbery convictions in 1989 in which he robbed the same victim on two separate occasions, and another conviction for burglary of an inhabited dwelling.

| lfiAfter defendant was sentenced, the State filed a multiple offender bill of information. At a hearing on August 20, 2009, the trial court found that defendant was a second felony offender. The trial court vacated defendant’s original sentence and imposed an enhanced sentence of 100 years imprisonment at hard labor, with the first 99 years to be served without benefit of probation, parole, or suspension of sentence, and the remaining one year to be served without the benefit of probation or suspension of sentence in accordance with LSA-R.S. 15:529.1. As a second felony offender, defendant faced a possible sentencing range of 49½ to 198 years imprisonment. LSA-R.S. 15:529.1(A)(l)(a). Defendant received a 100 year sentence.

Reviewing similar cases, the sentence is supported by comparison. In State v. Douglas, 389 So.2d 1263, 1264-67 (La.1980), the defendant, who had a criminal history that included three prior felony convictions, robbed the victim at gunpoint after the victim responded to the defendant’s knock at his door. The defendant pushed a pistol into the victim’s stomach, entered the house, and ordered the victim to hand over his wallet. Id. at 1264-65. The victim was not injured. However, noting that an armed invasion of a victim’s home at night presents an especially terrifying scene, the Supreme Court affirmed the ninety-nine year sentence, finding no abuse of the trial court’s discretion. Id. at 1267-68.

In State v. Allen, (36,180 La.App. 2 Cir. 9/18/02), 828 So.2d 622, the defendant, who entered a store and robbed the night clerk armed with a knife, was convicted of armed robbery and sentenced to 99 years at hard labor. Allen, 828 So.2d at 624. The defendant was subsequently adjudicated a third felony offender and received a sentence of life imprisonment at hard labor. Id. at 625-26. In reviewing the sentence for excessiveness, the court noted that the defendant’s 117voluminous criminal history, which included prior felony convictions for forgery and robbery, supported the imposition of the life sentence. Id. at 631.

In State v. Carter, 570 So.2d 234, 235 (La.App. 5 Cir.1990), the defendant, who robbed a pizza delivery man while armed with a knife, was convicted of armed robbery and sentenced to 99 years imprisonment at hard labor. In reviewing the sentence for excessiveness, this Court noted that the defendant had a history of prior criminal activity, including felony convictions of possession of cocaine with intent to distribute and attempted simple burglary, and that the sentence was based on the trial court’s opinion that the circumstances that caused the defendant’s conduct were likely to recur. Id. at 237. This Court determined that, while the amount of property taken was minimal, the defendant placed the victim in fear for his life and committed a dangerous crime. Id. at 238. Finally, in finding no abuse of discretion, this Court concluded that, as this was defendant’s third felony conviction, there was no question that the defendant had a propensity for felonious behavior. Id.

In State v. James, 545 So.2d 560 (La.App. 4 Cir.1989), writ denied, 551 So.2d 618 (La.1989), a defendant with three prior felony convictions was sentenced to 99 years after he was convicted of armed robbery. The defendant and his co-defendant pointed an automatic handgun at the victim and robbed her. Id. at 562. The victim was ordered to lie down on the sidewalk and the perpetrators subsequently fled. Id. The Supreme Court found no abuse of discretion in the sentencing. Id. at 565.

In State v. Armstrong, 95-1665, p. 1 (La.App. 3 Cir. 10/11/96), 683 So.2d 1261, 1264, writ denied, 97-0596 (La.9/5/97), 700 So.2d 505, the defendant was convicted of armed robbery and sentenced as a habitual offender to a term of 99 years. Citing similar cases in which 99-year sentences have been upheld, and 11Rnoting the defendant’s two prior robbery convictions and a conviction for simple escape, the court determined that the sentence was not excessive, even though no one was killed or injured in the robbery. Armstrong, 95-1665 at 16, 683 So.2d at 1271.

Armed robbery has been recognized as a serious offense against the person. State v. Francois, 01-807 (La.App. 5 Cir. 4/10/02), 817 So.2d 213, 216. Herein, defendant entered the victim’s home at night, pulled a knife on the victim, and grabbed a gold chain from his neck, thereby placing the life of the victim at risk of death or great bodily harm. Defendant has an extensive criminal history, including a felony conviction for simple burglary in 2007, two convictions for simple robbery in 1989, and another conviction for burglary of an inhabited dwelling, and has exhibited a propensity for felonious behavior.

The Louisiana Supreme Court has stated that the question on review is not whether another sentence would have been more appropriate, but whether the trial court abused its broad sentencing discretion. State v. Jones, 99-2207, p. 3 (La.1/29/01), 778 So.2d 1131, 1138. While another judge might have weighed the circumstances in this case differently, the question on review is whether the trial judge abused his discretion in this case, not whether another sentence might have been more appropriate. Jones, 99-2207 at 3, 778 So.2d at 1133. Given the facts of this ease, and the similarity to the above-cited cases, we find that the trial court did not abuse its broad discretion in imposing the 100 year sentence. This assignment of error is accordingly without merit.

TERROR PATENT DISCUSSION

A review of the transcript of the multiple offender proceeding reveals that the trial judge did not advise defendant of the prescriptive period for filing post-conviction relief after defendant was re-sentenced following adjudication as a second felony offender, although the commitment states otherwise. However, the record reveals that defendant was advised of the time limitations in LSA-C.Cr.P. art. 930.8 after his original sentencing on June 17, 2009. LSA-C.Cr.P. art. 930.8 does not require a trial court to advise the defendant of the time limitations for filing post conviction relief more than once. State v. Harris, 01-1380 (La.App. 5 Cir. 4/30/02), 817 So.2d 387, 390. Because the trial judge properly advised defendant at his original sentencing on June 17, 2009, no corrective action is required.

With regard to the discrepancies between the transcript of the multiple offender proceeding and the August 20, 2009 commitment, the transcript generally prevails where there is a discrepancy between the minutes and the transcript. State v. Lynch, 441 So.2d 732, 734 (La.1983). Accordingly, we hereby remand the matter to the trial court to have the August 20, 2009 commitment corrected to reflect that defendant was not informed of the prescriptive period for seeking post-conviction relief so as to maintain consistency with the transcript.

CONCLUSION

For the reasons assigned above, defendant’s conviction and sentence are affirmed. The matter is remanded for correction of the record as noted above.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . Defendant had been arrested on an unrelated matter shortly after the robbery occurred, on January 11, 2009, at approximately 3:40 a.m. At the time he was arrested, defendant was not a suspect in the robbery of Mr. Cara-ballo.

      . When the issues on appeal relate to both the sufficiency of evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence by considering the entirety of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992). If the reviewing court determines that the evidence was insufficient, then the defendant is entitled to an acquittal, and no further inquiry as to trial errors is necessary. Id. Therefore, the sufficiency of the evidence is addressed before defendant’s other assignments.

      . Although defendant's brief infers that he received ineffective assistance at the hearing on the multiple offender bill, defendant does not assign as error or brief the issue of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A claim of ineffective assistance of counsel is most appropriately addressed through an application for post conviction relief rather than direct appeal, so as to afford the parties an adequate record for review. State v. Robertson, 08-297, p. 12 (La.App. 5 Cir. 10/28/08), 995 So.2d 650, 659, writ denied, 08-2962 (La.10/9/09), 18 So.3d 1279.

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      . According to LSA-C.Cr.P. art. 881.1(E), the “[fjailure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.”

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


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Edward WILLIAMS Jr.
    No. 10-KA-265.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 9, 2010.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Assistant District Attorneys, Parish of Jefferson, Gretna, LA, for PlaintifflAppellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., JUDE G. GRAVOIS, and MARC E. JOHNSON.
   JUDE G. GRAVOIS, Judge.

| ¡.Defendant Edward Williams, Jr. appeals alleged errors in his sentencing for the offenses of aggravated rape and sexual battery. In this appeal, defendant argues that: (1) he received an illegal sentence on Count One because the trial judge referenced the wrong offense while sentencing him; and (2) the imposition of the sentence on Count Two to be served consecutively to the life sentence on Count One renders the sentence unconstitutionally excessive. For the following reasons,' we affirm defendant’s sentences, but remand for correction of the minute entry and other matters.

PROCEDURAL HISTORY

This is defendant’s third appeal. On October 13, 2004, a jury found defendant guilty, on Count One, of aggravated rape of A.L., and guilty, on Count | qTwo, of sexual battery of B.B. Defendant filed a motion for a new trial on October 27, 2004, but the trial court did not rule upon it. On November 15, 2004, the trial court sentenced defendant to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence on the aggravated rape conviction (Count One), and imprisonment at hard labor for ten years on the sexual battery conviction (Count Two), with the sentences to run consecutively. Defendant filed a motion for appeal that was granted.

In his first appeal, defendant argued that the trial court erred by failing to suppress his statements, by denying his motion to sever the rape counts, and by imposing consecutive sentences. This Court, noting the lack of a ruling on defendant’s motion for a new trial, conditionally affirmed the convictions, vacated the sentences, and remanded to the trial court for a ruling on the motion for a new trial and for resentencing. State v. Williams, 05-317, p. 3 (La.App. 5 Cir. 11/29/05), 918 So.2d 466, 468-69, writ denied, 06-0638 (La.10/6/06), 938 So.2d 64.

The trial judge subsequently denied the motion for a new trial on March 16, 2009. On March 24, 2009, the district court judge sentenced defendant to “life without probation, parole, or suspension of sentence ... at hard labor.” That day, defendant filed a timely motion for appeal, which was granted. State v. Williams, 09-365, p. 3 (La.App. 5 Cir. 10/27/09), 28 So.3d 385, 387.

In his second appeal, defendant argued that he was convicted of aggravated rape and sexual battery, but received only one sentence on remand. This Court agreed that defendant must receive a separate sentence for each offense. As such, on October 27, 2009, this Court affirmed defendant’s convictions, vacated the sentence imposed, and remanded for imposition of sentence for each conviction. State v. Williams, 09-365 at 4-5, 28 So.3d at 387-88.

|4On December 11, 2009, on remand from this Court, the trial judge resen-tenced defendant on Count One to life imprisonment without benefit of parole, probation, or suspension of sentence, and on Count Two to imprisonment at hard labor for ten years, to run consecutively to the sentence on Count One. On December 17, 2009, defendant filed a timely motion for appeal that was granted.

FACTS

Defendant had sex with his stepdaughter, A.L., from the time she was eight or nine years old until she was approximately twelve years old (from 1998 until 2003). State v. Williams, 05-317 at 4, 918 So.2d at 469. Defendant sexually touched his ex-wife’s sister, B.B., from the time she was eight years old until she was twelve years old (from 1988 until 1992). Id., 05-317 at 5-6, 918 So.2d at 469-70. Defendant gave statements to the police admitting he had sex with A.L.; however, he denied having sex with B.B., explaining that they only engaged in horse play, kissing, and having “pretend sex with clothes on.” Id., 05-317 at 6-8, 918 So.2d at 470-71.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues that he received an illegal sentence on Count One because the trial judge referenced the wrong offense while sentencing him. He contends that, instead of imposing sentence on his aggravated rape conviction, the trial judge imposed sentence on an aggravated battery conviction. Defendant asserts that this error patent renders the sentence on Count One illegal. The State responds that this misstatement was harmless and does not warrant the sentence to be vacated a third time. However, the State requests that this Court order the commitment to be |5corrected to reflect that the life sentence was for aggravated rape and not for aggravated battery.

The record reflects that when the trial judge resentenced defendant, she stated: “With respect to count No. 1, aggravated battery, I’m imposing the sentence of life in prison without benefit of probation, parole, or suspension of sentence. With respect to count 2, which is sexual battery, I’m imposing the sentence of ten years at hard labor, and that is to run consecutively with your life sentence.”

In State v. Session, 04-1825 (La.App. 5 Cir. 4/26/05), 902 So.2d 506, cited by the State in its brief, defendant was convicted of attempted simple robbery. On appeal, defendant pointed out that the trial judge referred to the wrong offense when he sentenced him, stating that defendant had been convicted of attempted armed robbery, rather than attempted simple robbery. This Court found nothing in the remainder of the sentencing transcript to indicate whether this was an inadvertent error in reference or an actual mistaken belief by the trial court. It noted that the imposed sentence fell within the sentencing range for both offenses. This Court stated that, since it was impossible to determine that the sentence was not imposed in error for the wrong offense, it had to be vacated. Id., 04-1325 at 4-5, 902 So.2d at 507-08.

The record shows that in the instant case, the trial judge referred to the wrong offense when sentencing defendant. She stated that she was sentencing defendant on Count One, aggravated battery, rather than the crime he was actually convicted of, aggravated rape. In the instant case, similar to Session, the sentencing transcript does not indicate whether this was an inadvertent error in reference or an actual mistaken belief by the trial court. However, unlike Session, the imposed sentence of life imprisonment does not fall within the sentencing grange for both offenses. An aggravated rape conviction carries a penalty of life imprisonment at hard labor, whereas an aggravated battery conviction carries a penalty of imprisonment, with or without hard labor, for not more than ten years. LSA-R.S. 14:34.

After review of this record, we find that the trial judge made an inadvertent error when she referred to Count One as aggravated battery, rather than aggravated rape. The imposed sentence of life imprisonment does not fall within the sentencing range for both offenses. It only falls within the sentencing range for an aggravated rape offense. Also, as the State noted in its brief, the trial judge may have inadvertently combined the first word of Count One (aggravated) with the last word of Count Two (battery). Additionally, the record indicates that the trial judge was aware that this case had been remanded for resentencing.

Accordingly, we find that the sentence on Count One is not illegal and does not require remand for resentencing.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant also argues that his consecutive sentences were constitutionally excessive. He contends that, if his life sentence for aggravated rape were commuted in the future, or if he were paroled, that the ten-year consecutive sentence for sexual battery would preclude him from being released from prison. He further contends that imposition of a sentence that mandates imprisonment beyond a natural life makes no sense. He also notes that the trial judge gave no reasons for the imposition of consecutive sentences.

The State responds that defendant failed to file a motion to reconsider sentence and failed to object to the consecutive nature of the sentences when he 17orally objected to the sentence. As such, the State argues that defendant preserved only his right to a review of his sentences on a bare claim of constitutional excessiveness. The State notes that the life sentence for aggravated rape was mandatory. It contends that there was no showing that the sentences were so disproportionate as to shock one’s sense of justice. The State also points out that the trial judge properly imposed consecutive sentences in accordance with LSA-C.Cr.P. art. 883 because the two counts were separate offenses that occurred on separate dates and involved separate victims.

The record does not reflect that defendant filed a motion to reconsider sentence. The failure to file a motion to reconsider sentence limits a defendant to a review of the sentence for constitutional excessiveness. LSA-C.Cr.P. art. 881.1(E); State v. Dupre, 03-256, p. 7 (La.App. 5 Cir. 5/28/03), 848 So.2d 149, 153, writ denied, 03-1978 (La.5/14/04), 872 So.2d 509. Additionally, although defendant orally objected to the excessiveness of both sentences, he failed to explicitly state an objection to the consecutive nature of the sentences. Therefore, he is not entitled to review of that issue here. State v. McGee, 04-963, p. 20 (La.App. 5 Cir. 1/11/05), 894 So.2d 398, 412, writ denied, 2005-0593 (La.5/20/05), 902 So.2d 1050. Accordingly, the only issue to be considered herein is whether defendant’s sentences are constitutionally excessive.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Lobato, 603 So.2d 739, 751 (La.1992); State v. Wickem, 99-1261, p. 10 (La.App. 5 Cir. 4/12/00), 759 So.2d 961, 968, writ denied, 00-1371 (La.2/16/01), 785 So.2d 839.

| sThe factors to be considered in reviewing a sentence for excessiveness are (1) the nature of the crime; (2) the nature and background of the offender; and (3) the sentences imposed for similar crimes by the same court and other courts. State v. Tracy, 02-227, p. 21 (La.App. 5 Cir. 10/29/02), 831 So.2d 503, 516, writ denied, 02-2900 (La.4/4/03), 840 So.2d 1213. Trial judges are granted great discretion in imposing sentences, and a sentence will not be set aside as excessive absent a clear abuse of that discretion. State v. Parker, 03-288, p. 4 (La.App. 5 Cir. 7/29/03), 853 So.2d 67, 69. The issue on appeal is whether the trial judge abused his discretion, and not whether another sentence might have been more appropriate. Id.

Defendant was convicted of the aggravated rape of A.L., a violation of LSA-R.S. 14:42, which provides for a mandatory sentence of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. LSA-R.S. 14:42 D(2)(b).

A trial court has the authority to determine whether a mandatory minimum sentence is constitutionally excessive as applied to a particular defendant. State v. Dorthey, 623 So.2d 1276, 1281 (La.1993).

To rebut the presumption that the mandatory minimum sentence is constitutional, a defendant must show, by clear and convincing evidence, that, “because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.” State v. Johnson, 97-1906, p. 8 (La.3/4/98), 709 So.2d 672, 676. Downward departures from a mandatory minimum sentence should only occur in rare cases. State v. Brown, 01-160, p. 15 (La.App. 5 Cir. 5/80/01), 788 So.2d 667, 675, citing State v. Johnson, 97-1906 at 8, 709 So.2d at 677.

| ¡¡Courts have upheld life sentences for similarly situated defendants convicted of the aggravated rape of a minor. In the instant case, the evidence showed that defendant committed an offensive and disturbing crime by having sex numerous times with A.L., his stepdaughter, starting when she was eight or nine years old and continuing until she was twelve years old. As the Louisiana Supreme Court noted in State v. Foley, 456 So.2d 979, 983 (La.1984), aggravated rape inflicts mental and psychological damage to its victim and undermines the community sense of security.

We find that defendant has failed to prove by clear and convincing evidence unusual circumstances that demonstrate that he is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. Furthermore, defendant failed to prove any unusual circumstances warranting a departure from the mandatory minimum sentence provided by the legislature. Accordingly, the life sentence imposed upon defendant for his aggravated rape conviction is not constitutionally excessive.

Defendant was also convicted of sexual battery against B.B., a violation of LSA-R.S. 14:43.1. On remand, the trial court resentenced defendant to the maximum 10-year sentence for the sexual battery of B.B. without providing reasons for the sentence.

Maximum sentences are generally reserved for the most serious violators of the relevant statute, and for the worst type of offenders. State v. Fletcher, 03-60, p. 7 (La.App. 5 Cir. 4/29/03), 845 So.2d 1213, 1219. Courts have upheld the maximum ten-year sentence for similarly situated defendants convicted of the | insexual battery of a minor. In State v. Jackson, 27,056, pp. 1-3 (La.App. 2 Cir. 6/21/95), 658 So.2d 722, 723-24, the appellate court concluded that a sentence of ten years at hard labor for sexual battery against an eight-year-old female victim was not excessive, considering the substantial benefit received through plea bargaining and the “acutely deleterious consequences” of the offender’s conduct.

In State v. Burt, 02-258 (La.App. 4 Cir. 10/9/02), 828 So.2d 717, writ denied, 02-2915 (La.4/4/03), 840 So.2d 1214, the Fourth Circuit found that, considering defendant’s past criminal history and the physical and psychological trauma suffered by the victim, the trial court did not abuse its sentencing discretion and the maximum ten-year sentence was not excessive. Id., 02-258 at 18, 828 So.2d at 725.

In the instant case, the record supports the sentence imposed. The evidence showed that defendant sexually abused B.B., his ex-wife’s sister, from the time she was eight years old until she was twelve years old. Although defendant was convicted of the lesser included verdict of sexual battery, the evidence supported a conviction for aggravated rape, which would have resulted in a mandatory life sentence. Also, sexual offenses against young children are particularly odious. We find that the maximum ten-year sentence for sexual battery was warranted in this case and not constitutionally excessive.

Additionally, even had the excessiveness issue regarding the consecutive nature of the sentences had been properly preserved, such claim has no merit. Consecutive sentences are indicated under LSA-C.Cr.P. art. 888 where the bills of information allege offenses that occurred on different dates, and at different locations. See State v. Wilson, 99-105, p. 4 (La.App. 5 Cir. 7/27/99), 742 So.2d 957, 959, writ denied, 99-2583 (La.2/11/00), 754 So.2d 935. In the instant case, | nthe bill of information alleged offenses that occurred on different dates to two different juveniles at different locations. This assignment of error accordingly has no merit.

ERROR PATENT DISCUSSION

This Court previously conducted an errors patent review of the original record in this case at the time of defendant’s first appeal. State v. Williams, 05-317 at 21, 918 So.2d at 478 n. 21. Defendant is now only entitled to an errors patent review of his resentencing. State v. Sampognaro, 09-671 (La.App. 5 Cir. 3/23/10), 39 So.3d 632.

The transcript reflects that the trial judge did not state that the sentence on Count One was to be served at hard labor; however, the commitment reflected that the sentence on Count One was to be served at hard labor. The transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983).

The defendant in this case was sentenced pursuant to a statute which required a mandatory sentence of life imprisonment at hard labor without the benefit of parole, probation or suspension. As such, the sentence was determinate; the trial judge’s failure to state that the sentence be served at hard labor, where the commitment accurately reflected the sentence to be served, is not an error requiring corrective action. See State v. Laviolette, 06-92 (La.App. 5 Cir. 9/26/06), 943 So.2d 527, writ denied, 06-2585 (La.5/18/07), 957 So.2d 149.

The transcript reflects that the trial judge failed to state that the sentence on Count Two for sexual battery was to be served without benefit of parole, probation, | 12or suspension of sentence as mandated by the statute. LSA-R.S. 14:43.1 C. The commitment is unclear. Although the commitment indicates that the “sentence” is to be served without benefit of parole, probation, or suspension of sentence, the commitment does not indicate which sentence contained those sentencing restrictions. However, no corrective action is necessary as the sentence is deemed to contain those restrictions. LSA-R.S. 15:301.1. State v. Vincent, 07-239, p. 15 (La.App. 5 Cir. 12/27/07), 978 So.2d 967, 976.

Because of the errors patent noted above and the unclear commitment, we remand this matter and direct the district court to amend the commitment to reflect that defendant was sentenced on Count One, aggravated rape, to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence; and on Count Two, sexual battery, to imprisonment at hard labor for ten years without benefit of parole, probation, or suspension of sentence, with the sentence on Count Two to run consecutively to the sentence on Count One. The district court is also directed to transmit the original of the minute entry to the officer in charge of the institution to which defendant has been sentenced. 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 transcript reflects that the trial judge advised defendant that he had “two years prescription period to seek post-conviction reliefl.]” The transcript’s advisory is incomplete because it did not advise defendant that he had two years after judgment of conviction and sentence become final in which to seek post-conviction relief. State v. Ridgley, 08-675, p. 22 (La.App. 5 Cir. 1/13/09), 7 So.3d 689, 703, writ denied, 09-0374 (La.11/6/09), 21 So.3d 301. Accordingly, we |1sremand this matter to the trial court with instructions to inform defendant of the prescriptive period set forth by LSA-C.Cr.P. art. 930.8, by sending written notice to defendant within ten days of the rendition of this opinion and to file written proof in the district court record that defendant has been given such notice. State v. Fazande, 05-901, p. 10 (La.App. 5 Cir. 3/28/06), 927 So.2d 507, 513-14.

CONCLUSION

Accordingly, for the reasons assigned above, defendant’s sentences for his convictions of aggravated rape and sexual battery are affirmed. The matter is remanded for the corrections of the minute entry and for the trial court to properly advise defendant of the prescriptive period for filing post-conviction relief as noted above.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . For a complete recitation of the facts, see State v. Williams, 05-317 at 4-10, 918 So.2d at 469-72.

      . It is noted that, in 2008, the United State Supreme Court held that the death penalty as punishment for aggravated rape was unconstitutional. Kennedy v. Louisiana, 554 U.S. 407, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008).

      . This review extends to all mandatory minimum sentences and not just those imposed under the habitual offender law. State v. Fobbs, 99-1024 (La.9/24/99), 744 So.2d 1274, 1275 (per curiam).

      . State v. Smith, 98-1193, pp. 3-4 (La.App. 5 Cir. 4/14/99), 734 So.2d 103, 104-05; State v. Vicks, 00-1700, pp. 13-14 (La.App. 4 Cir. 9/26/01), 798 So.2d 308, 315-316, writ denied, 00-0199 (La. 11/27/02), 831 So.2d 276; State v. Viree, 95-176, pp. 6-7 (La.App. 3 Cir. 3/6/96), 670 So.2d 733, 736-37, writ denied, 96-0885 (La.9/20/96), 679 So.2d 431.

      . In the instant case, at the time the last offense occurred in 2003, LSA-R.S. 14:42 provided for a penalty of either death or life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Because the State did not seek the death penalty in this case, and, as was stated previously, the U.S. Supreme Court has held that the death penalty as punishment for aggravated rape is unconstitutional, the only sentence available to the trial judge was life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Kennedy v. Louisiana, supra.

      . The transcript prevails. State v. Lynch, supra.

      . However, the commitment shows that the trial judge informed defendant he had two years after judgment of conviction and sentence has become final to seek post-conviction relief. The transcript prevails. State v. Lynch, supra.


text:
    STATE of Louisiana v. Damien J. DELATTE.
    No. 10-KA-314.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 9, 2010.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Virginia Skaer, Assistant District Attorneys, Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and JUDE G. GRAVOIS.
   JUDE G. GRAVOIS, Judge.

li>The defendant, Damien Delatte, has appealed his conviction and sentence for possession of heroin. For the reasons that follow, we affirm.

FACTS

On February 7, 2007, the Jefferson Parish District Attorney filed a bill of information charging the defendant with possession of heroin in violation of LSA-R.S. 40:966(C). The defendant initially pled not guilty, then on October 27, 2009, the defendant withdrew his not guilty plea and pled guilty as charged. Pursuant to a plea agreement, the defendant was sentenced to ten years imprisonment at hard labor. The trial judge ordered this sentence to run concurrent with “all other sentences.”

On February 1, 2010, the defendant was granted an out-of-time appeal pursuant to his pro se application for post-conviction relief.

\ ANDERS BRIEF

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530-31 (La.App. 4 Cir.1990), appointed appellate counsel has filed an Anders brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241 (per curiam), asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests to withdraw as counsel of record.

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if she finds her case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by “ ‘a brief referring to anything in the record that might arguably support the appeal’ ” so as to provide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability” and to assist the reviewing court “in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.” McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988) (citation omitted).

In Jyles, 96-2669 at 2, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or |4objections lack merit. The Supreme Court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” Jyles, supra.

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. State v. Bradford, 95-929, p. 4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110. If, after an independent review, the reviewing court determines that there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellate counsel. Id.

In the instant case, the defendant’s appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. We note that the appellate counsel was mistaken when she stated in the procedural history of the brief that the defendant was charged with distribution of heroin and pled guilty. As pointed out in the State’s brief, the defendant actually was charged with and pled guilty to possession of heroin.

Appellate counsel states that there is no ruling of the trial court to be challenged. She explains that the defendant pled guilty as charged and did not do so under State v. Crosby, 338 So.2d 584 (La.1976). She further explains that there were no pretrial rulings. She contends that the trial court performed a complete [ ^colloquy to assure that the defendant’s plea was made with all constitutional considerations. She concluded that raising a claim of excessive sentence would be frivolous when the defendant was informed of the considered ten-year sentence and his sentence was ordered to run concurrent with a 15-year sentence on a multiple bill imposed in another case on the same day.

Appellate counsel has filed a motion to withdraw as attorney of record that states that she has made a conscientious and thorough review of the trial court record and can find no non-frivolous issues to raise on appeal and no rulings of the trial court which arguably would support the appeal. She contends she has notified the defendant of the filing of her motion and advised him of his right to file a pro se brief in this appeal. Additionally, this Court sent the defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until June 2, 2010 to file a pro se supplemental brief. The defendant has not filed a brief.

The State responds that appellate counsel shows a complete and thorough recitation of the procedural history of the case and that counsel has cast an advocate’s eye over the record, determining there were no significant non-frivolous issues upon which to base an appeal. The State requests that this Court affirm the defendant’s conviction and sentence.

An independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal.

The bill of information in this case properly charged the defendant and presents no non-frivolous issues supporting an appeal. As required, it plainly, concisely, and definitely states the essential facts constituting the offense charged. It also sufficiently identifies the defendant and the crime charged. See generally LSA-C.Cr.P. arts. 464-66.

IfiAs reflected by the minute entries and commitment, the defendant appeared at each stage of the proceedings against him. He attended his arraignment, his guilty plea, and his sentencing. As such, the defendant’s presence does not present any issue that would support an appeal.

Further, the defendant pled guilty as charged. If a defendant pleads guilty, he normally waives all non-jurisdietional 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. Wingerter, 05-697, p. 5 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 664.

The defendant filed several pre-trial motions, including motions to suppress the confession, evidence, and identification. The record reflects that these motions were not ruled upon prior to the time that the defendant pled guilty. When a defendant does not object to the trial court’s failure to hear or rule on a pre-trial motion prior to pleading guilty, the motion is considered waived. See State v. Corzo, 04-791, p. 2 (La.App. 5 Cir. 2/15/05), 896 So.2d 1101, 1102. Thus, there were no rulings to preserve for appeal under the holding in State v. Crosby, 338 So.2d 584 (La.1976).

Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. State v. McCoil, 05-658, p. 7 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boy-kin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. McCoil, supra.

|7The record in the instant case shows that the defendant was aware he was pleading guilty to possession of heroin. He was advised of his right to a judge or jury trial, his right to confrontation, and his privilege against self-incrimination, as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The defendant was advised of these rights by means of the waiver of rights form as well as during the colloquy with the trial judge. The defendant indicated during the colloquy that he understood that he was waiving these rights. The commitment also reflects that the defendant was advised of his Boykin rights.

The defendant further indicated that he was satisfied with the representation of his attorney and that he had not been forced, coerced, or threatened to enter his guilty plea. He was informed that this guilty plea could be used to enhance a penalty for any future felony conviction should he be convicted of another felony in the future.

The defendant was also advised that he faced a possible sentencing range of four to ten years and that he would be sentenced to ten years at hard labor, to run concurrent with his other sentences. The defendant stated that he understood the consequences of pleading guilty and wished to plead guilty.

The defendant’s sentence does not present any issues for appeal because his ten-year sentence falls within the sentencing range prescribed by statute. See LSA-R.S. 40:966(C). Further, the defendant’s sentence was imposed pursuant to a plea agreement. LSA-C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of his sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea. State v. Washington, 05-211, p. 5 (La.App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173.

Based on the foregoing, we find that the proceedings surrounding the defendant’s plea of guilty and his sentence do not present any non-frivolous issues | sto be raised on appeal. Because appellate counsel’s brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal and an independent review of the record supports counsel’s assertion, we hereby grant appellate counsel’s motion to withdraw as attorney of record.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The review did not reveal any errors patent.

CONCLUSION

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . Also on this date, the defendant admitted the allegations of a multiple bill, pled guilty, and was sentenced in other cases — case numbers 07-0865, 07-1845, 07-2619, and 08-3825. The trial court ordered that the defendant's sentence run concurrent with "all other sentences.” After reviewing the context of the transcript, we interpret this to mean that the defendant's sentence is to run concurrent with all the other sentences imposed on that same day.

      . The procedure set forth in Benjamin for compliance with Anders was sanctioned by the Louisiana Supreme Court in State v. Mou

        ton, 95-0981, pp. 1-2 (La.4/28/95), 653 So.2d 1176, 1177 (per curiam), and adopted by this Court in State v. Bradford, 95-929, pp. 3-4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11.

      . The United States Supreme Court most recently reaffirmed its position in Anders in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).


author: EZELL, Judge. AMY, J.,

text:
    STATE of Louisiana v. Terrance A. MARTIN.
    No. KA 10-588.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 2010.

      John Foster DeRosier, District Attorney Fourteenth Judicial District Court, David Palay, Carla Sue Sigler, Assistant District Attorneys, Lake Charles, LA, for Plaintiff/Appellee, State of Louisiana.
    Paula Corley Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Terrance A. Martin.
    William Jarred Franklin, Louisiana Appellate Project, Bossier City, LA, for Defendant/Appellant, Terrance A. Martin.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

_Jj_On October 21, 2009, the Defendant, Terrance A. Martin, was charged by bill of information with possession of Carisopro-dol (Soma), a schedule IV controlled dangerous substance (CDS), a violation of La. R.S. 40:969(C). On February 10, 2010, several matters were taken up. First, the Defendant’s probation for prior convictions and sentences was revoked, and the trial court imposed the previously suspended sentences. Next, the Defendant’s motion to suppress, filed in the instant case, was heard and subsequently denied.

Immediately following the probation revocation and suppression hearings, the Defendant entered a guilty plea to the charge herein, pursuant to State v. Crosby, 338 So.2d 584 (La.1976). As part of the plea agreement, the State dismissed charges pending in an unrelated docket number and agreed not to file a habitual offender bill against the Defendant. He was then sentenced to serve five years at hard labor, to run concurrently with the sentences imposed following the revocation of his probation. A motion to reconsider sentence was not filed.

The Defendant is now before this court on appeal, asserting that the trial court erred in denying his motion to suppress and that his sentence is excessive.

FACTS

The following facts were set forth at hearing on the Defendant’s motion to suppress. On August 16, 2009, the Defendant was walking out of a convenience store when he was approached by Corporal Matthew Thomas Gibbs of the Calcasieu Parish Sheriffs Office. Corporal Gibbs asked the Defendant for his identification so that he could check for outstanding warrants. At that time, Corporal Gibbs noticed that the Defendant was nervous and was sweating profusely. He then asked the Defendant if he had anything illegal on his person. The Defendant responded, “Yes, sir, I got | ¡¡four Somas in my pocket.” Corporal Gibbs then patted down the Defendant, recovered the pills, and arrested him for possession of same.

ASSIGNMENT OF ERROR NUMBER ONE

By this assignment of error, the Defendant argues that the trial court erred in denying his motion to suppress. The Defendant sought to suppress evidence seized in the instant matter as well as in the unrelated docket number that was dismissed as part of his plea agreement. On appeal, the Defendant argues that the trial court erred in denying both motions to suppress, including the dismissed matter. The trial court’s denial of the Defendant’s motion to suppress filed in the unrelated matter is moot, however, and is not addressed herein.

The Defendant contends that Corporal Gibbs did not have reasonable suspicion that a crime had been, was being, or was about to be committed. Because Corporal Gibbs had no reason to detain the Defendant or to question him regarding possible criminal conduct, the Defendant maintains that any evidence seized as a result of the illegal detention should have been suppressed as fruit of the poisonous tree, pursuant to Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

As noted by this court in State v. Bargeman, 98-617, p. 5 (La.App. 3 Cir. 10/28/98), 721 So.2d 964, 967, writ denied, 99-33 (La.5/28/99), 743 So.2d 658:

When a trial court rules on a defendant’s motion to suppress, the appellate court must look at the totality of the evidence presented at the hearing on the motion to suppress. The appellate court should not overturn a trial court’s ruling, unless the trial court’s conclusions are not supported by the evidence, or there exists an internal inconsistency in the testimony of the witnesses, or there was a palpable or obvious abuse of discretion. State v. Burkhalter, 428 So.2d 449 (La.1983), and State v. Gaspard, 96-1279 (La.App. 3 Cir. 2/11/98); 709 So.2d 213. The admissibility of evidence seized without a warrant is a question for the trial court. Its conclusions on credibility and the weight of testimony regarding the voluntariness of a consent for admissibility purposes will not be overturned on appeal, unless the conclusions are unsupported by the evidence. State v. Gachot, 609 So.2d 269 (La.App. 3 Cir.1992), writ denied, 617 So.2d 1180 (La.1993), cert. denied, 510 U.S. 980, 114 S.Ct. 478, 126 L.Ed.2d 429 (1993).

Pursuant to La.Code Crim.P. art. 215.1(A), “A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.” In State v. Perrot, 600 So.2d 805, 807, (La.App. 3 Cir.1992), this court explained:

The right of law enforcement officers to stop and interrogate one reasonably suspected of criminal conduct is recognized by La.C.Cr.P. art. 215.1 as well as both state and federal jurisprudence. An officer may stop a person with less than probable cause for arrest if he has specific and articulable facts to suspect possible criminal activity. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The validity of the investigatory stop depends on whether the officer has adequate articulable knowledge of particular facts, enough to warrant infringement on the person’s constitutional right to be left alone. State v. Shy, 373 So.2d 145 (La.1979).
However, in the case of State v. Neyrey, 383 So.2d 1222 (La.1979) the Louisiana Supreme Court stated that the suspicion requirements of La.C.Cr.P. art. 215.1, Article I, Section 5 of the Louisiana Constitution and the Fourth Amendment of the U.S. Constitution are necessary only when the stop is forcible. “Police officers do not need probable cause to arrest, or reasonable cause to detain, in order to converse with its citizens.” State v. Shy, [373 So.2d at 147]. In Neyrey, the officer approached a parked car that was blocking a driveway to an apartment. The officers testified no reasonable suspicion concerning commission of a crime existed. The defendant was inside the car passed out. Officers awakened him and asked him to leave at which time he passed out again. The officers then asked him to exit the car and, in complying, a bag of cocaine fell from defendant’s lap. The court held there was no forcible detention as defendant was free to leave at any time. Therefore, the reasonable suspicion standard did not apply.
Furthermore, as long as the person to whom questions are put remains free to disregard questions and walk away, there has been no intrusion upon that person’s liberty or privacy as would require some particularized and objective justification under the fourth amendment. See State v. Belton, 441 So.2d 1195 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984); State v. Lanter, 391 So.2d 1152 (La.1980); State v. Duplessis, 391 So.2d 1116 (La.1980).

| 4Also, in State v. Bargeman, 721 So.2d at 967-68, this court noted:

A “hunch” or generalized suspicion is not sufficient. However, if the police officer has a specific suspicion of criminal activity, he may further detain the individual or the property while he diligently pursues a means of investigation likely to quickly confirm or dispel the particular suspicion. U.S. v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985).

Additionally, in State v. Hall, 581 So.2d 337, 338-39 (La.App. 3 Cir.1991), this court found:

[W]hen the officer decided to pat down the defendant, the “questioning phase” ended and the incident became a stop. It is axiomatic that reasonable cause for an investigatory stop is something less than probable cause. The totality of the circumstances, “the whole picture,” must be considered in determining whether reasonable cause exists. Although flight, nervousness, or a startled look at the sight of a police officer is, by itself, insufficient to justify an investigatory stop, this type of conduct may be highly suspicious and, therefore, may be one of the factors leading to a finding of reasonable cause. State v. Belton, 441 So.2d 1195 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984).

At the hearing, Corporal Gibbs testified that as he was walking into a convenience store in Moss Bluff, Louisiana, he saw the Defendant walking out. Corporal Gibbs stated that he knew the Defendant when they both lived in Westlake, Louisiana, and that he used to see the Defendant at football games and about town. According to Corporal Gibbs, he asked the Defendant how he was doing.

Corporal Gibbs knew the Defendant had been in trouble in Lake Charles, Louisiana, so he proceeded to ask the Defendant for his identification to check for outstanding warrants. After the Defendant gave Corporal Gibbs his identification, they continued to talk a bit. At this time, Corporal Gibbs noticed that the Defendant was nervous and that he was sweating profusely. According to Corporal Gibbs, he then asked the Defendant if he had anything illegal on his person. The Defendant responded that he had four Somas in his pocket.

|fiAs stated in Perrot, 600 So.2d 805, Corporal Gibbs did not need probable cause to arrest, or reasonable cause to detain the Defendant for the purpose of conversing with him. However, Corporal Gibbs went a step further and detained the Defendant to check for outstanding arrest warrants. At that point, the casual conversation allowed under Perrot ended because the Defendant was no longer free to disregard Corporal Gibbs’ questions and walk away. The stop became forcible, an intrusion upon the Defendant’s liberty and/or privacy, when Corporal Gibbs asked the Defendant for his identification to check for outstanding warrants. Thus, the inquiry at that point is whether Corporal Gibbs had reasonable suspicion that the Defendant was committing, had committed, or was about to commit an offense to justify detaining him. At the hearing, Corporal Gibbs testified:

I was walking into the Five Star in Moss Bluff. I saw Terrence [sic]. He was walking out. I knew Terrence [sic] from when he lived in Westlake. I lived in Westlake. I used to see him at football games, out and about town. I asked him how he was doing. I knew he had been in some trouble in Lake Charles, so I asked him for his ID, to check him for warrants. He said — he gave me his ID. We talked a little bit. He was nervous, sweating profusely. So I asked him, I said, you know, “Terrence [sic], you got anything illegal on you?” He said, ‘Yes, sir, I got four Somas in my pocket.” And from there, I had to pat him down, recover the Somas, arrested him and booked him in for possession.

A few more details were revealed on cross-examination:

Q So it’s your testimony that you asked him if he was carrying anything,—
A Illegal.
Q —and he — and he just said he had four Somas?
A Yes, sir. I wish he wouldn’t have. I was hungry; I was ready to eat.
Q So, you’re saying — you didn’t just search him—
A No, sir.
Q —because he’s Terrence [sic]?
|fiA No, sir. I checked him for warrants because he’s Terrence [sic], but I didn’t search him, I asked him.
Q Did he have any warrants?
A No, sir, he didn’t have warrants.
Q How many times do you know of that Terrence [sic] has been arrested?
A I couldn’t even guess.
Q You were dressed similar to how you are today, more or less?
A Exactly how I’m dressed today.
Q Wouldn’t that explain somebody, with that history, being nervous?
A I encountered Terrence [sic] before dressed like this at football games and other civic functions in the city of Westlake and he hadn’t appeared that way.

Corporal Gibbs also indicated that there were no bystanders or witnesses to his conversation with the Defendant. He also denied asking the Defendant, first, if he was carrying any drugs, and upon his denial of same, proceeding to ask for the Defendant’s identification and searching him regardless of his response. Corporal Gibbs maintained that the only reason he searched the Defendant was because he admitted to carrying drugs. Corporal Gibbs then clarified that he never searched the Defendant, just recovered the Soma pills after the Defendant reported they were in his pocket.

On redirect examination, the State revisited its questioning regarding Corporal Gibbs’ past experiences with the Defendant. According to Corporal Gibbs, the Defendant acted differently during the various social functions than he did the day of the instant offense. Corporal Gibbs testified that the Defendant is usually very sociable and does not mind speaking to officers. They usually laugh, joke, and cut up, yet on the day of the offense, Corporal Gibbs stated that the Defendant was trying [7to avoid him. He did not elaborate, however, on the Defendant’s behavior. The difference in the Defendant’s behavior prompted Corporal Gibbs to ask the Defendant if he had anything illegal.

The trial court concluded that Corporal Gibbs had probable cause to search the Defendant because he voluntarily acknowledged, in response to a question, that he was in possession of the Soma pills. The trial court did not address the Defendant’s initial detention and whether or not Corporal Gibbs had reasonable suspicion to detain the Defendant.

Considering La.Code Crim.P. art. 215.1 and the jurisprudence cited herein, Corporal Gibbs’ testimony did not include any articulable facts or particularized suspicions about the Defendant’s involvement in criminal conduct prior to detaining him. Corporal Gibbs opted to detain the Defendant based on the sole fact that he knew the Defendant had previously been in trouble. This knowledge was nothing more than a generalized suspicion or hunch and is not a sufficient basis for detaining an individual. State v. Bargeman, 721 So.2d 964. Other than this fact, Corporal Gibbs did not give any legal justification for detaining the Defendant, nor was there any evidence of suspicious activity prior to stopping the Defendant. The Defendant was simply walking out of the store. According to Corporal Gibbs, the Defendant appeared nervous and was sweating profusely after he was detained.

Accordingly, viewing the picture as a whole, the State did not show that Corporal Gibbs had articulable knowledge of particular facts upon which reasonable inferences could be drawn to provide reasonable grounds of past, present, or future criminal activity. As such, we find that the trial court erred in denying the Defendant’s motion to suppress, and thus, the Defendant’s conviction and sentence should be reversed and set aside.

^ASSIGNMENT OF ERROR NUMBER TWO

By this assignment of error, the Defendant argues that his sentence is excessive. In light of our decision to reverse and set aside the Defendant’s conviction and sentence, this alleged error is now moot.

CONCLUSION

The Defendant’s conviction and sentence are reversed and set aside.

REVERSED.

AMY, J., dissents and assigns reasons.

AMY, J.,

dissenting.

_JjThe majority finds that the trial court erred in denying the defendant’s motion to suppress, thus reversing the defendant’s conviction and sentence. I respectfully dissent, as I find an affirmation is appropriate.

In State v. Herrera, 09-1783, p. 1 (La.12/18/09), 23 So.3d 896, 897, our supreme court stated:

A law enforcement officer may approach any person and ask simple questions without a requirement of reasonable suspicion of criminal activity. State v. Sherman, 05-0779, p. 7 (La.04/04/06), 931 So.2d 286, 291. Mere communications between officers and citizens implicate no Fourth Amendment concerns where there is no coercion or detention. Id. An officer’s request for identification does not turn the encounter into a forcible detention unless the request is accompanied by an unmistakable show of official authority indicating to the person that he or she is not free to leave. I.N.S. v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984); Sherman, 05-0779 at 7, 931 So.2d at 291.
The distinction between a permissible encounter and a seizure was set forth in Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983). The Court held that “law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.... ” Id.

The majority reverses, finding the officer did not give legal justification for detaining the defendant and that there is no evidence of suspicious activity prior to the officer stopping the defendant. However, I do not find that the encounter | ^between the officer and the defendant rose to the level necessitating a finding of reasonable suspicion under the Fourth Amendment.

In this case, the officer approached the defendant and began conversing with him, asking him “how he was doing.” The record reveals that the officer then asked the defendant for his identification, which the defendant handed over, and the two continued to “talk[ ] a little bit.” The officer then asked the defendant if he had anything illegal on his person, to which the defendant responded affirmatively.

Relying on the above jurisprudence, I conclude that the officer in this case had the right, without any reasonable suspicion of criminal activity, to approach the defendant and ask for his identification and ask questions. Further, I find that there is no evidence that the officer’s request was followed by an “unmistakable show of official authority indicating to the [defendant]” that he was not free to leave. See Herrera, 23 So.3d at 897 (citing I.N.S. v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984)). The defendant voluntarily complied with the officer’s request for identification. Further, he voluntarily offered a response to the officer’s potentially incriminating question. There is no evidence that the defendant’s response to the officer was coerced. I note that the officer testified that he was familiar with the defendant from previous encounters around town such as football games and other civic functions The officer related that the defendant had previously been sociable and willing to speak to officers.

In light of the above, it is my view that the officer acted permissibly. For these reasons, I would affirm the trial court’s denial of the defendant’s motion to suppress.