author: CLARENCE E. MCMANUS, Judge.

text:
    STATE of Louisiana v. Brandon M. NAQUIN.
    No. 10-KA-474.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 15, 2011.
    Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Andrea F. Long, Matthew R. Clauss, Megan L. Gor-man, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and JUDE G. GRAVOIS.
   CLARENCE E. MCMANUS, Judge.

| gDefendant appeals his conviction and sentence for simple burglary. For the following reasons, we affirm defendant’s conviction and sentence.

STATEMENT OF THE CASE

On October 9, 2007, the Jefferson Parish District Attorney filed a bill of information that charged defendant, Brandon M. Na-quin, with simple burglary in violation of LSA-R.S. 14:62. Defendant pled not guilty at his arraignment on October 23, 2007. Defendant proceeded to trial on November 10, 2009. The following testimony was elicited at trial.

Keith Jones testified that on September 7, 2007, he went to work in his Nissan Maxima and left his vehicle in a parking lot because his employer, Campo’s Medical Pharmacy Company, provided him with a company van for his deliveries. Before leaving, he locked his vehicle. At approximately 11:20 p.m., when he returned from making his deliveries and turned off of Mounes Street onto Distributor Row in Harahan, he noticed that the lights on his vehicle were flashing and the dome light in his vehicle was on. He then observed a young, white male in the backseat of his vehicle, leaning over to the front with an object in his hand and trying to break the facing from around his radio.

laMr. Jones testified that the subject then jumped out of his vehicle and ran across the street. Mr. Jones pursued him in the van. When defendant ran toward some buildings, Mr. Jones went around the back on Elmwood Parkway. He caught up with the subject as he was attempting to get into an orange, low-rider truck. However, when the subject noticed the van, he ran off again. Mr. Jones exited the van, went to the door of the orange truck, and had a conversation with the driver of the truck. Mr. Jones agreed that the driver said he did not know the identity of the person trying to get into the truck. After realizing he would not catch the subject, Mr. Jones returned to his vehicle and called 9-1-1. He noticed that the door hinge on his vehicle was “messed up” and the back vent window was gone. He also noticed a wallet by the back door that was about two and one-half feet away from the vehicle. According to Mr. Jones, he did not pick up the wallet or look into it. He also noticed that the interior of the vehicle was damaged. He explained that the bottom part of the facing around the radio was broken and it appeared from the side area that the subject was trying to pry it apart to get the radio out.

At 11:33 p.m., Deputy Ronald David Ray, Jr. of the Jefferson Parish Sheriffs Office received the dispatch in reference to a vehicle burglary and responded to 660 Distributors Row. As he arrived, he noticed a black male trying to flag him down near a vehicle with its hazard flashers on. The deputy inspected the vehicle and noticed pry marks and that the door was damaged. He explained that the handle was damaged and the rear vent window on that same side was gone. He also noticed that inside of the vehicle the mounting bracket in the center console around the stereo was damaged. He recovered a wallet that was on the ground a short distance from the vehicle. Deputy Ray picked up the wallet and inspected its contents. The wallet contained a Louisiana driver’s license with a photograph, a social security card, a Chase Visa debit card, a certification card, ajochase Visa rewards card, and a health insurance card, all of which reflected defendant’s name. Deputy Ray testified that defendant’s wallet was in his possession at 11:40 p.m.

According to Mr. Jones, the officer did not show him the wallet. Mr. Jones told the police what he had observed. Deputy Ray then learned from headquarters that someone called to report a robbery at gunpoint. The subject, who was named “Brandon” was at the Wal-Mart on Jefferson Highway near Clearview. Because of additional information provided in the dispatch, Deputy Ray responded to the Wal-Mart location, where defendant and a juvenile subject named Russell Gautro were present. Defendant explained to Deputy Ray that he and Gautro left the movies and were approached by a black male who had a gun and demanded his wallet and the stereo in his vehicle. Defendant claimed his wallet was stolen. Deputy Ray testified that defendant and Gautro were unable to provide any details of the claimed robbery. Defendant did tell Deputy Ray that the robbery was about 15 minutes before he called the Sheriffs Office. Defendant called 9-1-1 at 12:25 a.m. As such, Deputy Ray concluded the robbery would have happened about 12:10 a.m. Deputy Ray explained that although defendant said his wallet was stolen at this time, he had defendant’s wallet in his possession since 11:40 p.m.

Mr. Jones later went to the Wal-Mart parking lot in a patrol car to see if he recognized the two subjects. Upon his arrival, he recognized the orange truck. He was able to identify defendant as the person who robbed him and also identified the driver of the orange truck. He testified that he was 100 percent certain of the identifications and that this was the truck he saw defendant run to. After defendant was positively identified, he was advised of his Miranda rights and was arrested. |aGautro was arrested as well. Mr. Jones also identified defendant at trial as the person that was trying to steal his stereo.

Aischa Prudhomme, an expert in fingerprint examination, testified that a fingerprint recovered from the vehicle matched the right index finger of Louis Morris. Other fingerprints were insufficient for identification purposes. Mr. Jones testified that Louis Morris was a co-worker and friend of his who had previously been in his car on several occasions with his permission, including two days prior to the incident.

Defendant, his mother, and Russell Gau-tro testified as defense witnesses. Beverly Naquin, defendant’s mother, testified that she received a call from defendant between 11:00 and 12:00 from the Wal-Mart parking lot on the night he was arrested. She testified that defendant was panicking and crying, stating that he had just been “held up” at gunpoint. She told defendant to stay where he was and she would meet him. She also told him to call 9-1-1. She said it took her ten minutes to get there and she arrived around 11:30 p.m. She testified that when she arrived the officers were already there. She examined defendant’s truck and noticed that the stereo system and the speaker systems were missing. She testified that the dashboard was “tore up pretty bad,” and defendant’s cell phone and wallet were missing. She explained that the police’s attitude toward her and defendant was that defendant was a “known thief.”

Gautro testified that he was 16-years old on September 7, 2007, and on that day he “hung around” with defendant before they went to see a movie together. He testified that after the movie he threw his ticket stub away. He explained that about five minutes after they left the movie, they were pulled over by a car and then robbed by Mr. Jones and three other men in another vehicle. He denied that the robber had a gun. He said the robber walked up to the driver’s side window | fiand said for them to get out. Then another car pulled up behind them. He testified that two cell phones, speakers, and a wallet were taken out of defendant’s truck. Gau-tro stated that after the robbery defendant called his mother. Gautro said defendant used his cell phone to call his mother and then they went to Wal-Mart and called the police.

Gautro testified that when Mr. Jones arrived he and defendant were in police units. Gautro said he drove defendant’s truck that night, but before they went to see the movie. He also stated that defendant never left him alone in the vehicle while he was driving. He denied that defendant tried to get into the truck and then ran off. He testified that defendant could not have burglarized the vehicle at 11:30 p.m. without his knowledge. He agreed that he went to juvenile court for the incident and was “convicted” of accessory after the fact to simple burglary.

Defendant testified that they left the movie and were driving down Elmwood Parkway when they were robbed by three black males. He testified that a van pulled up and they were told to get out of the truck. He said two other vehicles pulled up behind them. He said they took his speaker box, his phones, and his wallet that was in the center console. Defendant testified that he was robbed between 11:20 and 11:30 on Distributors Row and Pepsi Street. Defendant said he called his mom and then immediately called the police. He told them his name, that he was robbed, and that he was at Wal-Mart. Defendant testified that the police arrived about five to ten minutes after he called them, if that long. He said he requested that the police fingerprint his truck. Defendant denied breaking into Mr. Jones’ vehicle. He admitted that he was convicted of three counts of simple burglary in St. Charles Parish on September 19, 2006.

A unanimous, six-person jury found him guilty as charged and on November 19, 2009, defendant was sentenced to ten years imprisonment at hard labor. On 17this same date, defendant filed a motion for appeal, and the appeal was granted on December 3, 2009.

Thereafter, on December 10, 2009, the State filed a multiple offender bill of information, alleging that defendant was a second felony offender. On January 14, 2010, defendant admitted the allegations of the multiple bill. His original sentence was vacated, and he was sentenced to 20 years imprisonment at hard labor without benefit of probation or suspension of sentence. This appeal follows.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues on appeal that the evidence was insufficient to support this conviction when not all reasonable hypotheses of innocent activity were eliminated. Defendant argues that his theory that Mr. Jones robbed defendant was plausible. He argues that facts presented at trial supported his claim and explained that' he could have been wrong about precise times because he was a victim of a robbery. He adds that his testimony was essentially the same as Gautro’s testimony. He contends that defendant called the police instead of running, and his fingerprints were not found in the burglarized car. He also notes that no effort was made to check his truck for fingerprints. Defendant argues that the State failed to eliminate every reasonable hypothesis of innocent activity and failed to establish beyond a reasonable doubt that he burglarized Mr. Jones’ car.

The State responds that 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. The State contends that Mr. Jones testified that defendant was in his vehicle, without his permission, and was trying to break the facing around the radio. The State further contends that it proved the identity of the perpetrator and negated any reasonable probability of misidentification. Finally, the State contends that the jury found the testimony of |sthe State witnesses more credible than that of the defense witnesses. The State explains that the jury would have considered as highly suspect that the defendant and Gautro were unable to offer anything more than a vague account of their whereabouts at the time of the charged offense and were unable to provide specific details of the alleged robbery. The State suggests that the defendant’s story was especially problematic for him at trial given that his initial report to police placed the timing of the robbery where his wallet was taken as having occurred after the police had already recovered defendant’s wallet from the scene of the burglary. The State notes that the testimony of the defense witnesses at trial were inconsistent with prior statements and one another’s statements on key points, such as the existence of a weapon during the alleged robbery and the number of persons reportedly involved.

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). 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.

“Circumstantial evidence is evidence of facts or circumstances from which one might infer or conclude, according to reason and common experience, the ^existence of other connected facts.” State v. Kempton, 01-572, p. 7 (La.App. 5 Cir. 12/12/01), 806 So.2d 718, 722. “The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” LSA-R.S. 15:438. 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 evaluate the evidence in a light most favorable to the State and 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 (quotation omitted).

Defendant was convicted of simple burglary, which is defined in LSA-R.S. 14:62(A) as “the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, or any cemetery, with the intent to commit a felony or any theft therein, other than as set forth in R.S. 14:60 [aggravated burglary].” Specific intent is required under LSA-R.S. 14:62, and it may be inferred from the circumstances and actions of the accused. State v. Arceneaux, 07-692, pp. 10-11 (La.App. 5 Cir. 3/25/08), 983 So.2d 148, 153, writ denied, 08-0892 (La.11/10/08), 996 So.2d 1067. Specific criminal intent is defined as “ ‘that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.’ ” Arceneaux, 07-692 at 11, 983 So.2d at 153-54 (quoting LSA-R.S. 14:10(1)). Whether a criminal defendant possessed the requisite intent is for the trier of fact, and a review of the correctness of that determination is guided by the Jackson standard. Arceneaux, 07-692 at 11, 983 So.2d at 154.

| mAs such, to convict the defendant, the State was required to prove beyond a reasonable doubt that defendant entered the vehicle without authorization and had the specific intent to commit a felony or theft therein. See State v. Ewens, 98-1096, p. 5 (La.App. 5 Cir. 3/30/99), 735 So.2d 89, 93, writ denied, 99-1218 (La.10/8/99), 750 So.2d 179. In addition to proving the statutory elements of the charged offense at trial, the State is required to prove defendant’s identity as the perpetrator. Where the key issue is identification, the State must negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Ingram, 04-551, p. 6 (La.App. 5 Cir. 10/26/04), 888 So.2d 923, 926. Positive identification by only one witness is sufficient to support a conviction. State v. Weary, 03-3067, p. 18 (La.4/24/06), 931 So.2d 297, 311, cert. denied, 549 U.S. 1062, 127 S.Ct. 682, 166 L.Ed.2d 531 (2006); State v. Williams, 02-645, p. 10 (La.App. 5 Cir. 11/26/02), 833 So.2d 497, 503, writ denied, 02-3182 (La.4/25/03), 842 So.2d 398.

After viewing the evidence in the light most favorable to the State, we find that any rational trier of fact could have found that defendant committed simple burglary of Mr. Jones’ vehicle beyond a reasonable doubt. The State presented evidence of the elements of the offense as well as evidence that defendant was the person who committed the offense.

Mr. Jones testified that he locked his vehicle before leaving it in the parking lot. Mr. Jones testified that at approximately 11:20 p.m. when he returned he noticed the lights on his vehicle were flashing and the dome light in his vehicle was on. He then observed defendant inside of his vehicle with an object in his hand, trying to break the facing from around his radio. The State presented sufficient evidence of intent by demonstrating the damage caused to the vehicle. Testimony established there was damage to the interior of Mr. Jones’ vehicle |naround the radio and to the exterior of the vehicle as well. The door hinge was “messed up” and the back vent window was gone. Deputy Ray also testified regarding the pry marks and damage to the vehicle. Mr. Jones denied giving defendant permission to enter his vehicle.

According to Mr. Jones, he was about ten to fifteen feet from the vehicle when he first observed defendant inside his vehicle. Mr. Jones testified that defendant looked up and he was able to get a good look at his face. At trial, he testified that he was 100 percent confident that the person in his vehicle that was trying to steal his stereo was defendant.

Defendant’s wallet was left about two and one-half feet from Mr. Jones’ vehicle. Defendant admitted that the driver’s license, the social security card, and the other cards that were shown to him at trial were from his wallet. Mr. Jones observed defendant trying to get into an orange, low-rider truck. This truck, which was identified by Mr. Jones, was registered to defendant. Mr. Jones later went to the Wal-Mart parking and recognized the orange truck. He identified defendant as the person who had robbed him. He also identified the driver of the orange truck. He testified that he was 100 percent certain of the identifications and that this was the truck he saw defendant run to.

Although defendant and Gautro claimed they were robbed, they were not able to provide details of the robbery and their stories changed. Additionally, the timing of when defendant claims his wallet was stolen appears questionable.

The dispatch for the vehicle burglary was received at 11:33 p.m., and Deputy Ray had defendant’s wallet in his possession at 11:40 p.m. However, defendant told Deputy Ray that the robbery was about fifteen minutes before he called the Sheriffs Office and was certain about that answer. Defendant called 9-1-1 at 12:25 a.m. As such, Deputy Ray concluded the robbery would have 112happened about 12:10 a.m. Deputy Ray testified that defendant could not explain how his wallet was in the deputy’s possession since 11:40 p.m. Defendant attempted to change the timing of the robbery at trial when he testified that he was robbed between 11:20 and 11:30 p.m. However, defendant still testified that the police arrived about five to ten minutes after he called them, if that long.

Deputy Ray testified that although defendant and Gautro’s stories were consistent, neither could provide any details of the robbery. Defendant did not know the name of the movie, the time the movie started or ended, or which way the black male ran after robbing him. He also could not give the exact location of the robbery and did not have any ticket stubs from the movie. Deputy Ray agreed that in his experience, often victims of traumatic events had difficulties in estimating times and distances after the events. However, he testified that defendant and Gautro did not appear traumatized.

Deputy Ray learned from headquarters that someone called to report a robbery at gunpoint. Defendant’s mother also testified that defendant told her when he called that he was robbed at gunpoint. However, Gautro testified that the robber did not have a gun. Gautro testified after he and defendant left the movie, they were pulled over by a car and then robbed by Mr. Jones and three other men who were in another vehicle. Defendant testified that he and Gautro were robbed by three black males. He testified that a van pulled up and they were told to get out of the truck. He said two other vehicles pulled up behind them. He said they took his speaker box, his phones, and his wallet that was in the center console. However, it appears that Deputy Ray was told that there was one black male robber.

Defendant’s mother testified that defendant called her from the Wal-Mart parking lot. However, Gautro denied that they were already at Wal-Mart when 113defendant called his mother. Further, as previously mentioned, defendant called 9-1-1 at 12:25 a.m. However, defendant’s mother said it took her ten minutes to get to the parking lot and she arrived around 11:30 p.m.

Gautro testified that defendant never left him alone in the vehicle while he was driving. He denied that defendant tried to get into the truck and then ran off. He testified that defendant could not have burglarized the vehicle at 11:30 p.m. without his knowledge. Further, defendant denied breaking into Mr. Jones’ vehicle. However, based on the verdict, the jury did not believe this testimony.

The credibility of witnesses presenting conflicting testimony on factual matters is within the sound discretion of the trier of fact. State v. Jones, 08-20, p. 7 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240. The trier of fact shall evaluate the witnesses’ credibility, and when faced with a conflict in testimony, is free to accept or reject, in whole or in part, the testimony of any witness. Id. 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. Id.

The jury was presented with all of the evidence, and it appears the jury rejected defendant’s theory that Mr. Jones was the person who robbed him. After viewing the evidence in the light most favorable to the State, we find any rational trier of fact could have found that defendant committed simple burglary of Mr. Jones’ vehicle beyond a reasonable doubt. As such, we affirm defendant’s conviction.

| uERROR PATENT DISCUSSION

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

We find there are discrepancies in the commitments and transcripts regarding the advisal of the prescriptive period for filing post-conviction relief pursuant to LSA-C.Cr.P. art. 930.8. Both the commitment for the underlying conviction and the multiple bill commitment reflect proper advisals pursuant to LSA-C.Cr.P. art. 930.8. However, the transcripts reflect incomplete advisals because the trial judge advised that defendant had “two years to seek post-conviction relief.” The waiver of rights form for the multiple bill contains no advisal. The transcript prevails when there is a discrepancy between the commitment and the transcript. State v. Lynch, 441 So.2d 732, 734 (La.1983).

This Court has held that the failure to advise a defendant that the prescriptive period runs from the time his conviction and sentence become final is incomplete. State v. Grant, 04-341, p. 5 (La.App. 5 Cir. 10/26/04), 887 So.2d 596, 598. Therefore, we advise defendant, by way of this opinion, that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of LSA-C.Cr.P. arts. 914 or 922.

Accordingly, defendant’s conviction and sentence for simple burglary are affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: FREDERICKA HOMBERG WICKER, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Crystal REED.
    No. 10-KA-527.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 15, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet Clark, Andrea F. Long, Assistant District Attorneys, Parish of Jefferson, Gretna, LA, for Plain-tifftAppellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and Jude G. GRAVOIS.
   FREDERICKA HOMBERG WICKER, Judge.

| aThis matter is before us on appeal following the defendant’s, Crystal Reed’s, guilty pleas and sentences to three counts of second degree kidnapping in violation of La. R.S. 14:44.1 and two counts of armed robbery in violation of La. R.S. 14:64. Ms. Reed complains that the trial court erred in denying her motion to recuse the trial judge. She also complains that each of the five sentences the trial court imposed was constitutionally excessive. For the reasons fully discussed herein, we affirm the convictions and sentences.

Facts and Procedural History

In this devastating case, the defendant Crystal Reed, and her co-defendant, Johnny Cheek, embarked on a crime spree in the early morning hours that resulted in a wounded deputy, a murdered deputy, and three people — including an 81-year-old elderly woman and 12-year-old boy — bound and held hostage in their home.

At approximately 1:00 A.M. on Friday, June 16, 2006, Ms. Reed and Mr. 1 oCheek were traveling from Texas to Louisiana on Interstate 10 when St. John the Baptist Parish sheriffs deputy, Detective Monty Adams, attempted to make a traffic stop in Laplace, Louisiana. Mr. Cheek, who was driving, ignored Det. Adams’ warning, accelerated the vehicle, and exited the interstate. After leaving the interstate, Mr. Cheek made a U-turn near a Race-Trac gas station to face the oncoming officer. Mr. Cheek, thereafter, fired two shots, wounding the detective.

To further evade the police, the defendants escaped down a dark road and turned off their headlights. Assuming they were in the clear, Mr. Cheek turned the vehicle around to head back toward the main highway when they noticed another officer, Commander Octavia Gonzales, approach from behind. Ms. Reed left the vehicle and hid behind a house while Mr. Cheek confronted the officer. After three or four gunshots were fired, Mr. Cheek reappeared pulling Commander Gonzales’ lifeless body.

Before fleeing the murder scene, the defendants confiscated the commander’s duty weapon, back-up weapon, and assault rifle and fled to Kenner — the next town over — in the commander’s expedition where they abandoned it. Knowing their capture was imminent, the defendants orchestrated a scheme to gain entrance into a residence for refuge. While walking through a nearby neighborhood, Ms. Reed, in a rehearsed state of hysteria, frantically knocked on someone’s door at approximately 2:00 A.M. Yelling that she had been the victim of a robbery, Ms. Reed said she needed to use the telephone. Martha Harris, an 81-year-old elderly woman, answered the door. Almost simultaneously with the opening of the door, Mr. Cheek, who had been hiding, pushed the door in, and knocked Ms. Harris to the ground, breaking her hip. Hearing all the commotion, Lori Parham, Ms. Harris’ daughter-in-law, was |4awakened and headed to the front of the house where she saw the defendant, Ms. Reed, standing in the foyer.

Once inside the residence, Ms. Reed inspected the house to ensure that no one other than Ms. Harris, Ms. Parham, and the twelve-year-old boy were present. Finding no one else in the home, Mr. Cheek took Ms. Parham on a scavenger hunt throughout the house looking for telephone cords in order to tie them up. Ms. Parham testified that, while she was forced to help Mr. Cheek look for phone cords, she saw Ms. Reed in her mother-in-law’s bedroom rummaging through her purse for the keys to the car parked outside. The entire ordeal lasted at least 45 minutes.

Once Mr. Cheek restrained the three victims, he and Ms. Reed escaped in Ms. Harris’ vehicle. A police chase quickly ensued, ending when Mr. Cheek crashed into a ditch. Mr. Cheek was able to escape; but Ms. Reed, who was pinned between the air bags, surrendered to the police. Ms. Reed was taken to the Kenner Police Department where she was questioned by Sergeant Royal Burke, a criminal investigator for St. John the Baptist Parish Sheriffs office. She was advised of her rights, signed the Advice of Rights form, and gave a voluntary audio-taped statement about the events that had transpired. Approximately eight hours after being held hostage in her home, Ms. Par-ham positively identified Ms. Reed from a photographic lineup.

Ms. Reed was arrested and charged with three counts of second degree kidnapping in violation of La. R.S. 14:44.1; two counts of armed robbery in violation of La. R.S. 14:64(F); and one count of aggravated burglary in violation of La. R.S. 14:6o. She pled not guilty to each of the charged crimes. During the course of the proceedings, Ms. Reed filed a motion to suppress her statement, a |amotion to suppress the photo identification, and a motion to recuse the trial judge.

After the motions were denied, Ms. Reed withdrew her not guilty pleas and entered unqualified guilty pleas to each of the five charges. Pursuant to a plea agreement, Ms. Reed was sentenced to 40 years imprisonment at hard labor for each count of second degree kidnapping with the first two years to be served without the benefit of parole, probation, or suspension of sentence. As to both counts of armed robbery, Ms. Reed was sentenced to 50 years at hard labor without the benefit of parole, probation, or suspension of sentence. The sentences were to run concurrently.

Assignments of Error

Ms. Reed avers that the trial court erred in denying the motion to recuse and in imposing excessive sentences.

Discussion

Crosby Plea

It is well settled that a plea of guilty normally waives all nonjurisdictional defects in the proceedings prior to the plea. State v. Crosby, 338 So.2d 584, 586 (La.1976), citing State v. Torres, 281 So.2d 451 (La.1973); State v. Foster, 263 La. 956, 269 So.2d 827 (1972). However, a defendant may be allowed appellate review, if, at the time he enters a guilty plea, he expressly reserves his right to appeal a specific adverse ruling in the case. State v. Raines, 00-1942 (La.App. 5 Cir. 5/30/01), 788 So.2d 630, 632 citing, Crosby, supra; see also State v. McCoil, 05-658, p. 4 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1122.

In this case, Ms. Reed entered unqualified pleas of guilty. During the colloquy with the trial judge, she stated that, by pleading guilty, she understood that she was waiving the right to a trial by jury; the right to confront her accusers; |fithe right to appellate review; and the right against self-incrimination. She manifested her assent thereto by signing the “Acknowledgment of Constitutional Rights and Waiver of Rights on Entry of a Plea of Guilty” form (Boykin form).

Both the signed form and colloquy in court are void of any suggestion that the guilty pleas were made subject to the reservation of appellate review. Because Ms. Reed did not tender her guilty pleas pursuant to Crosby, we find that she did, in fact, waive her right to appellate review of any non-jurisdictional defects.

Motion to Recuse

In her first assignment of error, Ms. Reed contends that the trial court erred in denying the motion to recuse; and because of that error, any decision the trial judge subsequently made in the case is without effect.

Because Ms. Reed did not tender her guilty pleas pursuant to Crosby, the question becomes whether the trial judge’s failure to recuse amounts to a jurisdictional defect. In State v. Sede, 08-547 (La.App. 5 Cir. 2/10/09), 8 So.3d 702, we said that it does not. There, we held, “the failure to recuse is not a jurisdictional defect, and, as such, is waived by an unconditional guilty plea.” Id. at 705. Therefore, Ms. Reed is precluded from raising this issue on appeal.

Excessive Sentence

In her second assignment of error, Ms. Reed argues that the trial court erred in imposing excessive sentences.

In this case, Ms. Reed received the maximum sentence of 40 years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence for each of the three counts of second degree kidnapping pursuant to La. R.S. 14:44.1(C). She was also sentenced to 50 years imprisonment at hard labor without the benefit of parole, probation, or 17suspension of sentence for each of the two counts of armed robbery pursuant to La. R.S. 14:64(B), which carried a maximum sentence of 99 years. All sentences were to run concurrently.

Ms. Reed signed the waiver form which set forth the sentences that she would receive. Moreover, during the colloquy in the district court, the trial judge informed her that if she pled guilty, she would receive the sentences that were ultimately handed down, and she acknowledged that she understood that.

A defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. La.C.Cr.P. art. 881.2(A), State v. Cross, 06-866, p. 4 (La.App. 5 Cir. 4/11/07), 958 So.2d 28, 30. Therefore, a defendant is precluded from raising a claim of exces-siveness on appeal when the imposed sentence is the product of a plea agreement. Id.; State v. Jones, 05-840, p. 14 (La.App. 5 Cir. 3/28/06), 927 So.2d 514, 528. Because Ms. Reed’s sentence was imposed pursuant to a plea agreement which she voluntarily agreed to, we find that she is precluded from raising this issue on appeal.

Errors Patent

The record was reviewed for errors patent in accordance with La.C.Cr.P. art. 920, and there is a discrepancy between the commitment and transcript. During the plea proceeding, Ms. Reed was sentenced to 50 years imprisonment at hard labor for each count of armed robbery, without restrictions. However, La. R.S. 14:64(B) provides that, “whoever commits the crime of 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.” While the commitment indicates that the sentence was imposed without benefits, this is not reflected in the transcript.

^Nevertheless, when a criminal statute requires that all or portion of a sentence be served without the benefit of probation, parole, or suspension of sentence, La. R.S. 15:301.1(A) provides:

[t]he failure of a sentencing court to specifically state that all or a portion of the sentence is to be served without benefit of probation, parole, or suspension of sentence shall not in any way affect the statutory requirement that all or a portion of the sentence be served without benefit of probation, parole, or suspension of sentence, (emphasis added).

In addition, the Louisiana Supreme Court stated, in State v. Williams, 00-1725, p. 10 (La.11/28/01), 800 So.2d 790, 799, that in instances where the restrictions are not recited at sentencing, La. R.S. 15:301.1(A) “deems that those required statutory restrictions are contained in the sentence, whether or not imposed by the sentencing court.” La. R.S. 15:301.1(A) self-activates the correction and eliminates the need to remand for a ministerial correction. Id.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . The aggravated burglary charge was subsequently dismissed.


author: MARION F. EDWARDS, Chief Judge.

text:
    STATE of Louisiana v. Jamal L. LEWIS.
    No. 10-KA-386.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 15, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Matthew R. Clauss, Vince Paciera, Jr., Assistant District Attorneys, Twenty-Fourth Judicial District, Gretna, Louisiana, for Plaintiff/Appellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, Louisiana, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, FREDERICKA HOMBERG WICKER, and ROBERT L. LOBRANO, Pro Tempore.
   MARION F. EDWARDS, Chief Judge.

12Pefendant/appelIant, Jamal L. Lewis (“Lewis”), appeals his conviction and sentence on a charge of manslaughter in violation of La. R.S. 14:31. For reasons that follow, we affirm.

Lewis was charged with manslaughter by a bill of information. He was arraigned and entered a plea of not guilty. Several defense motions, including motions to suppress the confession and identification, were considered by the trial court and subsequently denied. On October 20, 21, and 22, 2009, Lewis was tried before a twelve-person jury that unanimously found him guilty as charged.

Lewis’ post-trial motions for new trial and for post-verdict judgment of acquittal were denied by the trial court on October 29, 2009. On that same date, Lewis waived sentencing delays, and the trial judge sentenced him to imprisonment at hard labor for forty years without benefit of probation or ^suspension of sentence. Lewis filed a motion to reconsider sentence that was denied and a timely motion for appeal that was granted.

FACTS

On April 6, 2006, Deputy Michael Poletti of the Jefferson Parish Sheriffs Office (JPSO) was dispatched to 1500 Westwood Drive in Marrero in reference to an aggravated battery. Upon arrival, he observed a black male juvenile, later identified as fifteen-year-old Martell Callahan (“Callahan”), lying on his stomach on a sidewalk adjacent to the parking lot of the Concor-dia Apartments at Westwood Drive and Lapalco Boulevard. Callahan appeared to be unconscious, and his breathing was very shallow.

Deputy Poletti asked the crowd standing around if anybody saw what happened. Shortly thereafter, an anonymous black male juvenile told officers that a black male wearing a black T-shirt and tan pants committed the crime. Deputy Po-letti then directed other deputies to secure the scene and disperse the crowd. As he was doing so, he was approached by a black male wearing a black T-shirt and tan pants, later identified as Lewis, defendant/appellant herein, who said, “We was just playing. Is he okay?” Deputy Polet-ti immediately placed Lewis in handcuffs and advised him of his rights.

Lewis stated that he and Callahan were “play fighting,” and he accidentally stabbed Callahan with a folding knife, which he threw into a wooded area across the street. Deputy Poletti and Lewis, along with other deputies, proceeded to that location and looked for the knife, but they were unable to locate it. Lewis stated that he and Callahan were not having an argument, nor were they mad at each other at the time of the incident.

l4JPSO Detective Roger Gorumba testified that Lewis had a slight abrasion to his right hand on the knuckle area, which Lewis said was from a fight that occurred before he stabbed Callahan. The detective also testified that Lewis had blood on his pants, which Lewis explained came from the knife he used to stab Callahan. Detective Gorumba took a statement from Lewis, age seventeen, which was played for the jury.

Detective Gorumba also took a statement from eyewitness Brian Johnson (“Johnson”), age thirteen. At trial, Johnson testified that, two or three days before the homicide, he was walking home through the Concordia Apartments on his way home from band practice. As Johnson was walking, he tried to call his mother on his cell phone to ask her to come and pick him up because it was raining. Lewis, whom Johnson did not know, approached Johnson and asked him if he could use Johnson’s cell phone. Johnson gave the cell phone to Lewis, but Lewis did not use it. When Johnson asked Lewis to return his cell phone, Lewis just walked away with it. Because of his smaller size, Johnson was afraid to confront Lewis. Johnson went home without the cell phone, but he did not tell his mother that his cell phone was gone because he was afraid of punishment.

According to Johnson’s testimony, on the day of the homicide, Callahan went to Johnson’s house, and they decided to go to Nicholson Playground to play basketball. At approximately 3:00 to 4:00 p.m., Callahan and Johnson got on a bicycle to go to the playground. Callahan was pedaling the bicycle, and Johnson rode on the handlebars. Because there was a lot of traffic on Westwood Drive, they turned into the parking lot of the Concordia Apartments.

|sAs they were riding through the apartment complex parking lot, Johnson saw Lewis sitting down close to the apartments. Johnson testified that he politely asked Lewis to return the cell phone, but Lewis did not respond. Instead, Lewis got up and began “fussing” in a loud tone. Lewis walked up to them, pushed Johnson off the bicycle, and began talking about fighting. Johnson told Lewis he was not going to fight him because he (Johnson) was small, and Lewis was big and strong.

At this point Callahan, who was about the same height as Lewis, stepped in and tried to protect Johnson. Johnson saw Lewis walk back to his patio, and he thought Lewis was going to get the cell phone. Lewis knelt down, picked something up, and walked back to the parking lot.

When Lewis walked back toward them, Callahan walked toward Lewis with his hands up in a boxing pose preparing to fight. Lewis had his left hand behind his back holding his right hand. At some point, Johnson saw that Lewis had a knife in his hand, and Johnson called out to warn Callahan. At that point, Lewis stabbed Callahan and ran away. Callahan ran approximately twenty or thirty feet and then collapsed.

Johnson went over to Callahan, who told Johnson to take his (Callahan’s) cell phone out of his pocket and call his parents. Johnson called Callahan’s parents and then 911. Right after the incident, Lewis’ mother walked toward them. When Johnson told her that Lewis had stabbed his friend, she started crying. Johnson waited for the ambulance, which took Callahan away. Four days later, Johnson talked to the police, and he positively identified Lewis as the perpetrator.

Dr. Karen Ross, who performed the autopsy on Callahan, testified that the cause of death was a stab wound to the abdomen. She explained that the stab wound went through the cartilage, liver, pancreas, splenic vein, and the two major Rblood vessels in the body, the aorta and the vena cava. Dr. Ross stated that the stab wound went at least four and one-half inches deep into the body and was one inch long, and that it went all the way through Callahan’s body to his spine.

After the State rested its case, Lewis testified that he met Johnson sometime in 2006, and he recognized Callahan, but they were not friends. Lewis then recounted an incident that led to the confrontation that ended in the stabbing. Lewis testified that before the day of the homicide, Johnson and “Greg” came around in Greg’s sister’s car. Greg was driving, and Johnson was in the passenger seat. Lewis and his friend, “Alonzo,” were standing outside. Greg and Johnson exited the car, and they were clowning around. Greg and Johnson subsequently drove off, and Lewis and Alonzo threw iced tea on their car. Greg, his sister, and Johnson came back again. Greg’s sister told Lewis she wanted him to wash her car, but Lewis refused; however, Lewis gave Greg’s sister five dollars the next day to get the car washed. Lewis testified that Greg and Johnson were “fussing” because they could not get the matter handled their way.

On the day of Callahan’s homicide, at approximately 3:00 p.m., Lewis was walking home from work. Thirty minutes later, as he was walking through the Concor-dia Apartments, Greg and Alonzo exited a car, and another “dude” was driving. Greg ran at Lewis, and they fought for a minute. After the fight, Lewis went inside his residence at Apartment 13C and talked to his girlfriend on the phone. While Lewis was talking, he was playing with his butterfly knife, which he described as “cool” and “fancy.”

About an hour after the fight with Greg, Lewis heard a knock on the door, and his sister said Alonzo was at the door for him. When Lewis looked out the window, he saw Alonzo walking off. Lewis hurried downstairs while he was |7talking on the phone, and he put the knife in his pocket. Lewis went outside and saw Johnson and Callahan in front of Alonzo’s apartment at 13A.

Callahan said to Lewis, “You had a fight with my friend.” When Lewis asked Callahan the identity of his friend, Callahan said, “Greg.” Johnson had a gray metal pole in his hand, and Johnson and Callahan were standing next to each other. Lewis testified that he did not go inside because he did not want to turn his back on Johnson and Callahan. Lewis was frightened because Callahan was talking about “smashing” him, which meant Callahan was going to beat him up or kill him.

Lewis then pulled out the knife that was in his pocket to scare Johnson and Callahan, and he tossed the phone to Alonzo. Lewis told Johnson and Callahan to get away from him, and he did not want any problems with them. Callahan walked up to Lewis, who backed up. Callahan then charged Lewis and swung. Lewis swung at Callahan with the knife and hit him once, but he did not intend to hit him. Afterward, Lewis retrieved his phone from Alonzo, and he called 911 while going inside his (Lewis’) apartment.

After Lewis called 911, he went back outside. Lewis stated that, after the incident, he was scared. So, he removed the knife from his pocket, walked down the street, threw it in the woods, and went back inside. Then, Lewis went outside again, walked up to the police, and asked them if Callahan was alright. The police said Lewis fit the description of the suspect, so Lewis put his hands behind his back. Lewis told Detective Gorumba that he was just playing, he did not mean to do it, and he was only trying to scare Callahan. Lewis denied telling Deputy Poletti that he and Callahan were not arguing and not mad at each other.

Lewis testified that he had two prior convictions: one for an aggravated battery committed two days prior to the Callahan homicide and one for having | scontraband in a correctional facility. He pled guilty to both offenses on June 13, 2007, and received two concurrent one-year sentences.

On appeal, Lewis assigns two errors for our review. In the first, he asserts the evidence presented by the State was insufficient to support his conviction for manslaughter. In the second, Lewis maintains his sentence is excessive.

SUFFICIENCY OF EVIDENCE

Lewis argues that the evidence was insufficient to support a manslaughter conviction when only the elements of negligent homicide were proven beyond a reasonable doubt. Lewis admits he stabbed Callahan. However, he asserts the evidence presented at trial only proves the elements of negligent homicide, not manslaughter. Lewis argues that the evidence shows the stabbing was accidental, not intentional. Lewis further contends that Johnson’s trial testimony was inconsistent with his statement and with his testimony at the suppression hearing. The State responds that, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of manslaughter beyond a reasonable doubt.

In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt.

In cases involving circumstantial evidence, the trial court must instruct the jury that, “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” The | nreviewing 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.

In the matter before us, Lewis was convicted of manslaughter, which is defined by La. R.S. 14:31 as:

(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed; or
(2) A homicide committed, without any intent to cause death or great bodily harm.
(a) When the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Article 30 or 30.1, or of any intentional misdemeanor directly affecting the person; or
(b) When the offender is resisting lawful arrest by means, or in a manner, not inherently dangerous, and the circumstances are such that the killing would not be murder under Article 30 or 30.1.

The jury was instructed on both the specific intent manslaughter and felony/misdemeanor manslaughter theories. Further, the jury was instructed that, in order to find Lewis guilty under the second theory, it had to find that Lewis killed Callahan, and Lewis was engaged in the perpetration or attempted perpetration of aggravated battery, simple battery, or aggravated assault at the time of the killing.

1mA battery is the intentional use of force or violence upon the person of another. A simple battery is a battery committed without the consent of the victim. Simple battery is a general intent offense. An aggravated battery is a battery committed with a dangerous weapon. Aggravated battery also requires proof of general intent. General criminal intent is present when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act. General intent may be proved by evidence that the defendant did the acts which have been declared criminal. The fact that a defendant does not specifically intend the greater degree of harm to the victim does not prevent the jury from taking into account the reasonably foreseeable consequences, which aggravate the seriousness of the battery offense, in assessing the defendant’s culpability.

An assault is an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery. An aggravated assault is an assault committed with a dangerous weapon. An aggravated assault conviction requires proof of only general criminal intent.

Lewis does not dispute that he stabbed and killed the victim; rather, he argues that the stabbing was an accident, and he had no intent to kill the victim. As such, he contends that he should have been convicted of negligent homicide, which [ uis the killing of a human being by criminal negligence. Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances. The jury was instructed that negligent homicide was a responsive verdict to the charge of manslaughter.

In the matter before this Court, the jury was presented with two versions of how the fight that led to Lewis stabbing Callahan occurred. The jury was also properly instructed on the different theories of manslaughter and on the elements of negligent homicide.

The jury was presented with conflicting testimony, including some inconsistencies, but obviously found the State’s witnesses more credible than Lewis. The credibility of a witness 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; therefore, the credibility of witnesses will not be reweighed on appeal.

Given the testimony of the State’s witness regarding the circumstances surrounding the stabbing, and the additional testimony from Dr. Ross relating to the severity of the fatal wound, the jury could have found the elements of manslaughter beyond a reasonable doubt. We find no merit in this assignment.

EXCESSIVE SENTENCE

Lewis asserts his maximum forty-year sentence is unconstitutionally excessive because he is an adolescent who did not intend to kill or inflict great bodily harm upon the victim. Lewis points out that he was only seventeen when h2the incident occurred, and it was the result of a fight between two teenage boys. Lewis also points to his 911 call to get help for the victim, his concern for the victim, his readiness to give police a statement, and his remorse and regret as proof that he is not the worst of offenders.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice.

In the instant case, Lewis was convicted of manslaughter. Whoever commits manslaughter shall be imprisoned at hard labor for not more than forty years. Lewis received the maximum forty-year sentence. Generally, maximum sentences are reserved for cases involving the most serious violations of the offense charged and the worst type of offender.

A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. The appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. In reviewing a trial court’s sentencing discretion, three factors are considered: 1) the 11snature 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.

After hearing from the family and friends of both Lewis and Callahan, the trial judge found that, although Lewis alleged self-defense, claiming for the first time at trial that the thirteen-year-old had a pipe, that allegation was not reflected in any of Lewis’ prior statements and was entirely incredible. She also found that Lewis was the clear aggressor in the situation, and he could have retreated from the encounter at any time, but chose not to. Instead, the trial judge noted that Lewis chose to inflict grave bodily harm upon Callahan resulting in death.

The trial judge said she took into account the fact that Lewis called 911 shortly after the stabbing and reported that somebody got stabbed. She also took into account that, two days before this stabbing, Lewis broke a bottle over the head of a mentally challenged boy in the same parking lot. The trial judge stated that she listened carefully to the testimony of the families of Lewis and Callahan and felt their pain. However, she concluded that, under the circumstances, it was her considered judgment that it was appropriate to sentence Lewis to the maximum forty-year sentence.

We have considered Lewis’ arguments in this assignment and are confronted with the following facts: Lewis thrust the knife into Callahan’s abdomen with such force that it went through several organs and two major arteries to his spine. Although Lewis claimed it was an accident, Dr. Ross testified that it was extremely unlikely that this was an accidental injury because of the depth of the wound. As the trial judge reasonably found, Lewis was the clear aggressor in this situation, and he could have retreated from it at any time, but he chose not to. Also, the fifteen-year-old victim was killed because he came to the aid of Johnson, a |14thirteen-year-old boy who was younger and smaller than Lewis, whom Lewis was threatening to fight. Additionally, Callahan’s mother and father testified that the loss of their son had caused them great pain and that their lives would never be the same.

We also note, as did the trial judge, that Lewis had a criminal history, including a crime of violence. Also, this is not Lewis’ first adult offense. He pled guilty to aggravated battery in June of 2007, as a result of an incident where he broke a bottle over the head of a mentally challenged person two days before the death of the victim in the instant case. Lewis also pled guilty on that same date to bringing contraband into a prison facility. Further, Lewis was involved in a separate fight one hour prior to the incident in the instant case.

Given the facts of this case, the applicable law, and the trial judge’s reasons for sentencing, we find no abuse of the trial court’s vast sentencing discretion.

ERRORS PATENT

We have reviewed the record before us for errors patent on the face and find that, while the transcript reflects that the trial judge sentenced Lewis to imprisonment at hard labor for forty years without benefit of probation or suspension of sentence, the commitment shows that the trial judge sentenced Lewis to imprisonment at hard labor for forty years without benefit of parole, probation, or suspension of sentence. The transcript prevails. We hereby order the trial court to correct the commitment to accurately reflect the sentence imposed by the trial judge. It is further ordered that the Clerk of Court for the Twenty-Fourth 11BJudicial District transmit the corrected commitment to the officer in charge of the institution to which Lewis has been sentenced.

We also note that there is a conflict between the transcript and the commitment regarding the information given to Lewis regarding the prescriptive period for applying for post-conviction relief. Although the commitment correctly states that Lewis has two years from the date his conviction and sentence becomes final in which to apply for post-conviction relief, the prevailing transcript shows that the trial judge incorrectly states the prescriptive period runs “from today’s date to seek post-conviction relief.” We hereby advise Lewis that he has two years from the date his conviction and sentence becomes final to apply for such relief.

For the foregoing reasons, we affirm Lewis’ conviction and sentence, and we inform him of the proper prescriptive period for applying for post-conviction relief as set forth in this opinion. We further remand the matter to the trial court with orders to correct the commitment and to transmit the corrected commitment to the proper institution.

AFFIRMED; REMANDED WITH ORDER.

      . Lewis also filed an application for post-conviction relief seeking an out-of-time appeal that the trial judge dismissed as moot due to his pending appeal.

      . Lewis’ statement and trial testimony were very similar. Additionally, in his statement, Lewis explained that the victim ran up to him swinging while Lewis was swinging the butterfly knife, and the knife stabbed the victim in the side. Lewis admitted in his statement that the victim did not have anything in his hands, and the victim's hands were balled up into fists. Lewis also said in his statement that, prior to the fight, either the victim or his friend knocked on Lewis’ door.

      . Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-674 (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).

      . La. R.S. 15:438.

      . State v. Mitchell, 99-3342 (La.10/17/00), 772 So.2d 78, 83; State v. Washington, 03-1135 (La.App. 5 Cir. 1/27/04), 866 So.2d 973, 977.

      . La. R.S. 14:33.

      . La. R.S. 14:35.

      . State v. Lee, 01-2082 (La.App. 4 Cir. 8/21/02), 826 So.2d 616, 623, writ denied, 02-2549 (La.9/5/03), 852 So.2d 1019.

      . La. R.S. 14:34.

      . State v. Edwards, 06-643 (La.App. 5 Cir. 3/27/07), 957 So.2d 185, 190, writ denied, 08-1988 (La.8/29/08), 989 So.2d 110.

      . La. R.S. 14:10(2).

      . Id.

      . Id.

      . La. R.S. 14:36.

      . La. R.S. 14:37.

      . State v. Hill, 35,013 (La.App. 2 Cir. 9/26/01), 796 So.2d 127, 131.

      . La. R.S. 14:32.

      . La. R.S. 14:12.

      . State v. Macon, 06-0481 (La.6/1/07), 957 So.2d 1280, 1285-86; State v. Rowan, 97-21 (La.App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056.

      . State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1, 4.

      . Id.

      . State v. Lawson, 04-334 (La.App. 5 Cir. 9/28/04), 885 So.2d 618, 622.

      . La. R.S. 14:31(B).

      . State v. Pearson, 07-332 (La.App. 5 Cir. 12/27/07), 975 So.2d 646, 656.

      . State v. Dorsey, 07-67 (La.App. 5 Cir. 5/29/07), 960 So.2d 1127, 1130.

      . State v. Pearson, 975 So.2d at 656.

      . Id.

      . State v. Lynch, 441 So.2d 732, 734 (La.1983).

      . La. R.S. 14:31 provides that a person convicted of manslaughter "shall be imprisoned at hard labor for not more than forty years.” There is no prohibition against parole, probation or suspension of sentence. However, La.C.Cr.P. art. 893 provides that persons convicted of violent offenses listed in La. R.S. 14:2(B)(4) (manslaughter) are to be denied the benefit of probation and suspension of sentence.

        .See, La.C.Cr.P. art. 930.8.