author: MARION F. EDWARDS, Chief Judge.

text:
    Lenai BOYE v. DAIQUIRIS & CREAMS NO. 3, INC.
    No. 11-CA-118.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 15, 2011.
    Joseph M. Miller, Benjamin B. Saunders, Davis Saunders, PLC, Mandeville, LA, for Plaintiff/Appellant.

      Guy D. Perrier, Richard C. Ely, Jr., Trent P. Roddy, Perrier & Lacoste, LLC, New Orleans, LA, for Defendants/Appel-lees.
    Panel composed of MARION F. EDWARDS, SUSAN M. CHEHARDY, and JUDE G. GRAVOIS, Judges.
   MARION F. EDWARDS, Chief Judge.

| gThis is an appeal by the plaintiff/appellant, Lenai Boye (“Ms. Boye”), from the trial court’s judgment granting a motion for summary judgment filed by the defendant/appellee, Daiquiris & Creams No. 3, Inc. (“Daiquiris”), which also dismissed Ms. Boye’s action with prejudice. For reasons that follow, we reverse the grant of summary judgment, and we remand the matter to the trial court for further proceedings.

Ms. Boye filed an action for damages sustained when she fell while exiting the ladies’ room facility at the Daiquiris establishment in Metairie, Louisiana. Ms. Boye and her husband stopped at the bar at about 8:00 p.m. so that Ms. Boye could use the facilities. While Mr. Boye went to the bar, Ms. Boye went to the restroom. She entered the restroom safely, but she missed the step at the threshold of the restroom when exiting. She fell on her chin, causing injuries to her chin, jaw, and hneck. Ms. Boye also suffered a broken wrist in the fall. Ms. Boye filed this action against Daiquiris for damages.

Discovery was conducted by both parties, and Daiquiris filed a motion for summary judgment asserting that there is a step at the threshold of the restroom that requires one to step up to enter and down to exit. Daiquiris also asserted that Ms. Boye saw the step and was able to step up and enter the restroom with no trouble. Thus, Daiquiris reasons that Ms. Boye had actual knowledge of the step and is precluded from bringing the action for damages. After a hearing on the matter, the trial court granted summary judgment and dismissed Ms. Boye’s action with prejudice.

Ms. Boye appeals that decision.

LAW AND ANALYSIS

In support of its motion for summary judgment, Daiquiris offered the deposition testimony of several employees who testified that the door to the restroom was marked with “Step Up” and “Step Down” signs at the time of the incident in question. There was also testimony that the vanity lights inside the ladies’ room, as well as those outside in the alcove, are always on when the establishment is open. They also testified that there is reflective tape on the step as well.

However, Ms. Boye offered testimony controverting those facts. Danielle Dayton, who lives near the Daiquiris and visits often, stated that the lights leading to the alcove near the ladies’ room were not on and there was no reflective tape on the step at the time of the fall. She also testified that it was always dark in the hallway leading up to the ladies’ room and that she must be very careful not to trip when using the facility.

|4Ms. Boye testified that she had never been in the Daiquiris before the evening of April 30, 2008. On that day, at about 8 p.m., she and her husband were driving to a barbeque given by a friend who lived near the Daiquiris. Ms. Boye asked her husband to stop so she could use the restroom. Mr. Boye went to the bar to order a beer, and Ms. Boye went to the ladies’ room. She testified that the facility is located in a small, dimly lit alcove in the back of the bar. She went in the restroom without incident. However, when she opened the door and stepped out of the restroom, she went “free-falling” and landed on her chin. Photos in the record show that the threshold of the door drops off to the hall floor several inches below the restroom floor. Ms. Boye broke her wrist in the fall and eventually landed on her chin. She returned to the ladies’ room' to get some paper towels to contain the bleeding. When she reported the incident to the woman behind the bar, the woman said, “Oh, I bet you didn’t see that big high step.” Ms. Boye stated she did not see any warning signs or reflective tape. She also stated that the vanity lights outside of the ladies’ room in the small alcove were not lit and that it was dark.

Summary judgment should be granted only if pleadings, depositions, answers to interrogatories, admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact, and mover is entitled to judgment as matter of law. Summary judgments are favored in the law and the rules should be liberally applied. The summary judgment procedure shall be construed to accomplish the ends of just, speedy, and inexpensive determination of allowable actions. The mover bears the burden of proof; however, the mover need only to “point out to the court that there is an absence of factual support for one or more | ^elements essential to the adverse party’s claim....” Once the mover has made a prima facie showing that the motion shall be granted, the burden shifts to the adverse party to present evidence demonstrating that material factual issues remain.

The facts remaining to be decided must be material facts in order to preclude a summary judgment. For summary judgment purposes, a fact is material if its existence or non-existence may be essential to the cause of action under the applicable theory of recovery, or if the fact potentially insures or precludes recovery, affects the ultimate success of plaintiff or determines the outcome of the legal dispute. However, the mere belief that the litigant will not prevail on the merits is not sufficient to warrant a summary judgment and thus deprive the party of a trial on the merits.

Appellate courts review summary judgments de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Any decision as to the propriety of a grant of the motion must be made with reference to the substantive law applicable to the case. Only in the context of the applicable substantive law can issues of material fact be ascertained.

Ms. Boye’s action for damages must be analyzed pursuant to La. C.C. arts. 2317.1 and 2322. Article 2322, provides, in pertinent part, that:

The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice or defect in its original construction. However, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known of the vice [fior defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care....

The owner of a building cannot be held responsible for all injuries resulting from any risk posed by his building, only those caused by an unreasonable risk of harm to others. A defect under La. C.C. art. 2322 cannot be inferred simply because an accident occurred. The question of a defect turns on whether the thing presents an unreasonable risk of harm. There is no fixed rule for determining whether the thing presents an unreasonable risk of harm. To assist the trier-of-fact, many factors are to be considered and weighed, including: (1) the claims and interests of the parties; (2) the probability of the risk occurring; (3) the gravity of the consequences; (4) the burden of adequate precautions; (5) individual and societal rights and obligations; and (6) the social utility involved. The method for determining whether a thing under garde poses an unreasonable risk of harm is similar to that of taking into account all of the social, moral, economic and other considerations as would a legislator regulating the matter, and the analysis is virtually identical to the risk-utility balancing test used in both negligence and product liability theories.

In 1996, the Louisiana Legislature altered the tort law of strict liability by adding the requirement of knowledge on the part of the owner or custodian of the thing. That revision effectively turned strict liability into a negligence claim and established a negligence standard that dictates an owner’s duty is to exercise | Treasonable care to recognize and repair or remove a vice or defect in the building which presents an unreasonable risk of harm to others.

In brief to this Court, Ms. Boye argues the trial court used the outdated concept that contributory negligence is a bar to recovery in a tort action. Daiquiris takes the position that this is a case in which the hazard was open and obvious and, therefore, did not present an unreasonable risk of harm. In support of its position, Daiquiris refers us to several cases in which awareness of the hazard by a plaintiff has precluded recovery.

In the motion for summary judgment, Daiquiris asserted that summary judgment should be granted because “the step was an open and obvious condition and Plaintiff had actual knowledge of the subject step before her alleged fall.”

From the written Reasons for Judgment, it is clear that the trial court held that Daiquiris could not be found liable for a condition that Ms. Boye had actually observed just prior to her accident. The trial court further stated, “[m]ost important, Ms. Boye presented no evidence to establish that the conditions existing at the time of entering the bathroom were any different from the conditions existing moments later upon her exit from the bathroom.” It is also clear from the transcript that the trial court relied on Eisenhardt v. Snook in granting summary judgment.

In the case at bar, the only issue before the trial court was whether the fact Ms. Boye safely entered the restroom precludes her action for damages. The trial court granted summary judgment without consideration of any other material facts relating to a finding of unreasonable risk of harm. We find this to be legal error.

| sEisenhardt and other cases relied upon by the court and Daiquiris do not hold that knowledge of a defect alone is sufficient to preclude recovery. On the contrary, the Eisenhardt court stated:

If the facts of a particular case show that the complained-of condition should be obvious to all, the condition may not be unreasonably dangerous, and the defendant may owe no duty to the plaintiff. The degree to which a danger may be observed by a potential victim is one factor in the determination of whether the condition is unreasonably dangerous. A landowner is not liable for an injury which results from a condition which should have been observed by the individual in the exercise of reasonable care, or which was as obvious to a visitor as it was to the landowner.... It is the court’s obligation to decide which risks are unreasonable based upon the facts and circumstances of each case. (Omitted citations noted in footnote 19 below.)

We find that the determination of which risks are unreasonable, based on a full consideration of all of the facts and circumstances, is required to determine liability. In this case, the trial court only considered one factor in granting summary judgment, that of knowledge of the hazard. Lighting, signage, utility and condition of the step at the time of the fall are all still at issue and are material facts remaining to be decided by a trier of fact at a trial on the merits. Therefore, we find this case was not in an appropriate posture for summary judgment.

Accordingly, we reverse the trial court’s grant of summary judgment, and we remand the matter for further proceedings in compliance with this opinion.

REVERSED AND REMANDED

      . Ms. Boye added Daiquiris’ insurer, Colony Insurance Company, as an additional defendant in a supplemental and amending petition. The motion for summary judgment includes both defendants.

      . La. C.C.P. art. 966.

      . Nutt v. City of Gretna, 00-1864 (La.App. 5 Cir. 5/16/01), 788 So.2d 617.

      . La. C.C.P. art. 966; Perricone v. East Jefferson Gen. Hosp., 98-343 (La.App. 5 Cir. 10/14/98), 721 So.2d 48.

      . La. C.C.P. art. 966(C)(2).

      . Perricone v. East Jefferson Gen. Hosp., supra.

      . Dearie v. Ford Motor Co., 583 So.2d 28, 30 (La.App. 5 Cir.1991).

      . Id.

        . Nutt v. City of Gretna, supra.

      . Johnson v. Folse, 07-1031 (La.App. 5 Cir. 5/27/08), 986 So.2d 110, writ denied, 992 So.2d 991, 08-1377 (La.9/26/08).

      . Entrevia v. Hood, 477 So.2d 1146, 1149 (La.1983).

      . Dufour v. E-Z Serve Convenience Stores, Inc., 98-996 (La.App. 5 Cir. 3/30/99), 731 So.2d 915.

      . Dupree v. City of New Orleans, 99-3651 (La.8/31/00), 765 So.2d 1002, 1012.

      . Pepper v. Triplet, 03-0619 (La. 1/21/04), 864 So.2d 181, 190.

        .Carr v. Wal-Mart Stores, Inc., 00-896 (La.App. 5 Cir. 10/31/00), 112 So.2d 865, writ denied, 00-3247 (La. 1/26/01), 782 So.2d 636.

      . See current versions of La. C.C. arts. 2317.1 and 2322.

      . Specifically, Fluence v. Marshall Bros. Lincoln-Mercury, 10-482 (La.App. 5 Cir. 11/23/10), 54 So.3d 711; Pryor v. Iberia Parish Sch. Bd., 10-1683 (La.3/15/11), 60 So.3d 594; Dauzat v. Curnest Guillot Logging, Inc., 08-0528 (La. 12/2/08), 995 So.2d 1184; and Eisenhardt v. Snook, 08-1287 (La.3/17/09), 8 So.3d 541.

      . 08-1287 (La.3/17/09), 8 So.3d 541.

      . Eisenhardt, supra at 544-45 (citing Dauzat v. Curnest Guillot Logging, Inc., 08-0528 (La.12/2/08), 995 So.2d 1184; Hutchinson v. Knights of Columbus, 03-1533 at p. 9 (La.2/20/04), 866 So.2d 228, 234; Pitre v. La. Tech Univ., 95-1466, 95-1487 at p. 11 (La.5/10/96), 673 So.2d 585, 591; Harris v. Pizza Hut of La., Inc., 455 So.2d 1364, 1371 (La.1984)).


source: Caselaw Access Project

author: WALTER J. ROTHSCHILD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Tiron DICKERSON.
    No. 11-KA-236.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 15, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appel-lee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Tirón Dickerson, I.P.P., Cottonport, LA, Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

12Pefendant, Tirón Dickerson, was charged with one count of distribution of heroin in violation of LSA-R.S. 40:966(A) (count one), three counts of distribution of cocaine in violation of LSA-R.S. 40:967(A) (counts two, three, and four), and two counts of distribution of heroin within 1000 feet of a posted drug-free zone in violation of LSA-R.S. 40:981.3 (counts five and six). Defendant pled not guilty to these charges, and the bill of information was subsequently amended as to count six to charge defendant with distribution of cocaine, instead of heroin, within 1000 feet of a posted drug-free zone.

Defendant then withdrew his not guilty pleas and pled guilty as charged to all counts, including the amended offense in count six. The trial judge imposed concurrent, 17-year sentences with the Department of Corrections. The first five years of the sentences imposed for counts one, five, and six were ordered to be served without the benefit of parole, probation, or suspension of sentence. The |3first two years of the sentences imposed for counts two, three, and four were ordered to be served without the benefit of parole, probation, or suspension of sentence. Following sentencing, defendant filed a pro se “Motion to Amendment [sic] and/or Modify Sentence,” which was denied by the trial court.

On the same date, the State filed a multiple offender bill of information, alleging that defendant was a second felony offender. Defendant stipulated to the allegations in the multiple bill. The trial judge then vacated defendant’s original sentence on count two and sentenced defendant to 17 years imprisonment at hard labor without the benefit of probation or suspension of sentence, to run concurrently with all other counts.

This appeal follows.

FACTS

Defendant pled guilty to the charges, without proceeding to trial. The allegations in the bill of information indicate that defendant distributed heroin on or about December 28, 2007 (count one). He distributed cocaine on or about December 19, 2007 (count four), December 27, 2007 (count two), and January 4, 2008 (count three). On or about January 10, 2008, defendant distributed heroin and cocaine within 1000 feet of a posted drug-free zone (counts five and six).

ANDERS BRIEF

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530-31 (La.App. 4 Cir.1990), appointed appellant 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 |4any non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests to withdraw as counsel of record.

DISCUSSION

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) (quotation 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 objections lack merit. The 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. Bradford, 95-929 at 4, 676 So.2d at 1110. If, after an | .^independent review, the reviewing court determines 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 appellant counsel. Id.

Defendant’s appellate counsel sets forth a procedural history of the case and notes that the facts in the case were not revealed since defendant pled guilty and no motions were heard and transcribed. She provides that after a conscientious and thorough review of the trial court record she can find no non-frivolous issues to raise on appeal. She also contends that she can find no ruling of the trial court which arguably supports the appeal. She explains that there is no ruling to challenge because no motions were heard or transcribed, noting that defendant pled to the charges and the subsequent multiple bill. She provides that she considered raising an excessive sentence argument but concluded that such a claim would be frivolous, noting that defendant was told what his sentence would be. She contends that defendant was told the sentencing range that he faced as a second felony offender and was informed of his underlying sentence in the plea colloquy. She claims that defendant’s 17-year sentence would not be considered constitutionally excessive. She requests that this Court grant her motion to withdraw as counsel of record.

In her motion to withdraw, appellate counsel contends that she has notified defendant of the filing of her motion and advised him of his right to file a pro se brief in the appeal. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed. Defendant subsequently filed a pro se brief, arguing that his sentence is “harsh.”

|fiThe State responds that counsel has shown a conscientious and thorough review and recitation of the procedural history of the case and has cast an advocate’s eye over the record and determined that there are no significant non-frivolous issues upon which to base an appeal. The State contends that no pretrial motions were heard, ruled upon, or preserved for review. The State notes that defendant signed a waiver of rights form that included his right to a trial by jury, his right to confront witnesses, and his right against self-incrimination. The State also notes that there was an oral Boykin examination in court. The State explains that a guilty plea normally waives all non-jurisdictional defects in the proceedings prior to the entry of the guilty plea and precludes review of such defects. The State concludes that there are no jurisdictional defects in the proceedings.

Further, the State contends that defendant is procedurally barred from appealing his sentence that was given in accordance with a plea agreement, noting that this was the reason that the court denied defendant’s motion to amend or modify his sentence. The State further explains that defendant was made aware of the sentence he would receive as a multiple offender. The State contends that defendant’s sentence in this case is proper and not subject to further review. The State concludes that appellate counsel has conformed with and followed the procedures set forth in Anders and Jyles and should be granted her request to withdraw.

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 defendant and presents no non-frivolous issues supporting an appeal. As required, it plainly and concisely states the essential facts constituting the offenses charged. It also sufficiently 17identifies defendant and the crimes charged. See generally LSA-C.Cr.P. arts. 464-66.

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

Further, defendant pled guilty and admitted to being a second felony offender as alleged in the multiple bill. If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and precludes review of such defects either by appeal or post-conviction relief. State v. Wingerter, 05-697, p. 5 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 664. An unconditional plea, willingly and knowingly made, waives any and all non-jurisdictional defects and bars a defendant from later asserting on appeal that the State failed to produce sufficient proof at the multiple offender hearing. State v. Schaefer, 97-465, p. 9 (La.App. 5 Cir. 11/25/97), 704 So.2d 300, 304.

Several pretrial motions were filed in this case, including motions to suppress a statement, evidence, and identification. The record does not reflect that these motions were ruled upon prior to the guilty plea. When a defendant does not object to the trial court’s failure to hear or rule upon a pretrial 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. Further, no rulings were preserved for appeal under the holding in State v. Crosby, 338 So.2d 584 (La.1976).

We find that the record does not reveal any irregularities in defendant’s guilty pleas. 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.

The record shows that defendant was aware he was pleading guilty to one count of distribution of heroin, three counts of distribution of cocaine, one count of distribution of heroin within a school zone area, and one count of distribution of cocaine within a school zone area. Although counsel did not contend in her brief that she had considered whether defendant was properly advised of his rights, we find the advisal was proper. Defendant 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. Defendant was advised of these rights by means of the waiver of rights form, where he initialed each right, and the colloquy between defendant and the judge. Defendant indicated that he understood that he was waiving these rights.

Defendant further indicated that he was satisfied with the way his attorney and the trial judge handled his case. He stated that he had not been forced, coerced, or threatened to enter his guilty pleas. Defendant indicated that he understood the possible legal consequences of pleading guilty, but wished to plead guilty at that time. He also indicated that he understood that by pleading guilty to a felony that a future felony conviction could result in the sentence being enhanced. The judge indicated that he was satisfied that there was a factual basis for the [9acceptance of the pleas and accepted them as knowingly, intelligently, freely, and voluntarily made.

By the waiver of rights form, defendant was advised that he faced possible sentencing ranges of 5 to 50 years for count one, 2 to 30 years for counts two, three, and four each, and 0 to 45 years for counts five and six each. Defendant was told that if his guilty pleas were accepted, he would receive 17-year sentences at hard labor, with each count to run concurrently.

During the colloquy, the judge advised defendant that he faced the following penalty ranges: 5 years with the Department of Corrections and without benefit of parole, probation, or suspension of sentence to 50 years with the Department of Corrections for count one; 2 years with the Department of Corrections and without benefit of parole, probation or suspension of sentence to 30 years with the Department of Corrections for counts two, three, and four; 5 years with the Department of Corrections and without benefit of parole, probation, or suspension of sentence to 75 years with the Department of Corrections for count five; and 5 years with the Department of Corrections and without benefit of parole, probation, or suspension of sentence to 45 years with the Department of Corrections for count 6. Defendant was told that if the judge accepted the guilty pleas he would be sentenced to 17 years with the Department of Corrections on each count, to run concurrently with one another. He was further advised that for counts one, five, and six, the first five years of the sentence must be served without benefit of parole, probation, or suspension of sentence. He was further told that for counts two, three, and four, the first two years must be served without benefit of parole, probation, or suspension of sentence.

Additionally, defendant later admitted to a prior conviction that was the result of a guilty plea, thus indicating he had prior experience with the criminal | injustice system. See State v. Davis, 02-387 (La.App. 5 Cir. 9/30/02), 829 So.2d 554, 560.

Defendant’s sentences do not present issues for appeal. Defendant’s sentences were imposed pursuant to a plea agreement. Defendant knew what his sentences would be if he chose to plead guilty. Defendant received sentences in conformity with the 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. See State v. Washington, 05-211, p. 5 (La.App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. Further, defendant’s sentences fall within the sentencing ranges prescribed by statute.

Defendant pled guilty to one count of distribution of heroin (count one) in violation of LSA-R.S. 40:966(A). LSA-R.S. 40:966(B)(1) provides for a sentence of imprisonment for not less than 5 years, nor more than 50 years at hard labor, with at least 5 years to be served without the benefit of probation or suspension of sentence. In addition, a fine may be imposed for this violation of not more than $50,000. Defendant was sentenced to 17 years imprisonment to be served with the Department of Corrections, with the first 5 years being served without the benefit of parole, probation, or suspension of sentence.

Defendant pled guilty to three counts of distribution of cocaine (counts two, three, and four) in violation of LSA-R.S. 40:967(A). For a sentence for distribution of cocaine, LSA-R.S. 40:967(B)(4)(b) provides for a sentence of imprisonment at hard labor for not less than 2 years nor more than 30 years, with the first 2 years of the sentence to be served without benefit of parole, probation, or suspension of sentence. Further, LSA-R.S. 40:967(B)(4)(b) provides for a possible fine of not more than $50,000. See McKenzie, 09-893 at 10, 61 So.3d at 59. |n Defendant was sentenced to 17 years imprisonment with the Department of Corrections, with the first 2 years of the sentences to be served without the benefit of parole, probation, or suspension of sentence. Of note, the sentence for count two was vacated before defendant was resentenced as a multiple offender.

Defendant pled guilty to one count of distribution of heroin within 1000 feet of a posted drug-free zone (count 5) in violation of LSA-R.S. 40:981.3. LSA-R.S. 40:981.3(E)(1) provides for imposition of the maximum fine and imprisonment for not more than one and one-half times the longest term of imprisonment authorized by the applicable provisions of LSA-R.S. 40:966 through R.S. 40:970. According to LSA-R.S. 40:981.3(E)(2), the sentence is not subject to parole, probation, or suspension of sentence to the extent that the minimum sentence for violation of the felony provision of LSA-R.S. 40:966 through R.S. 40:970 is not subject to parole, probation, or suspension of sentence. LSA-R.S. 40:966(B)(1) provides for the sentencing on a distribution of heroin violation. LSA-R.S. 40:966(B)(1) provides for a sentence of imprisonment for not less than 5 years, nor more than 50 years at hard labor, with at least 5 years to be served without benefit of probation or suspension of sentence. In addition, a fine may be imposed for this violation of not more than $50,000. As such, for this count, defendant faced a sentence of imprisonment of not more than 75 years without benefit of probation or suspension of sentence for at least 5 years. Also, he should have received a fine of $50,000. See LSA-R.S. 40:966(B)(1); LSA-R.S. 40:981.3. Defendant was sentenced to 17 years imprisonment with the Department of Corrections, with the first 5 years required to be served without the benefit of parole, probation, or suspension of sentence.

Defendant pled guilty to one count of distribution of cocaine within 1000 feet of a posted drug-free zone (count 6) in violation of LSA-R.S. 40:981.3. Pursuant toJjjLSA-R.S. 40:981.3 and LSA-R.S. 40:967, the sentencing range for distribution • of cocaine in a drug-free zone is between 2 and 45 years at hard labor with a fine of $50,000. Further, the sentence is required to be imposed without benefit of parole, probation, or suspension of sentence for the first two years. McKenzie, 09-893 at 10, 61 So.3d at 59. Defendant was sentenced to 17 years imprisonment with the Department of Corrections, with the first 5 years required to be served without the benefit of parole, probation, or suspension of sentence.

Based on the foregoing, the proceedings surrounding defendant’s guilty pleas and his sentences do not present any non-frivolous appealable issues.

As to the multiple bill proceedings, defendant executed a waiver of rights form, which reflects that defendant admitted that he was a second felony offender with a prior felony conviction as listed in the multiple bill that was attached to the waiver of rights form. The form reflects that a copy of the multiple bill was given to him and reviewed by him, as well as by his attorney. By means of this form, defendant indicated that he understood that he was giving up his right to have a hearing. The form explains what the District Attorney was required to prove at such a hearing. He also indicated that he understood that he had the right to remain silent throughout the hearing and that his silence would not be held against him. Defendant also initialed these rights in which he was waiving. The form reflects that defendant faced a sentencing range of 15 to 60 years as a multiple offender, and that defendant would receive 17 years with the “DOC.” Defendant indicated that he was satisfied with his attorney and the court in their efforts to explain the rights he was waiving and the consequences of his guilty plea. Defendant indicated that he was not forced, coerced, or threatened to plead guilty. He further indicated that he understood the possible legal consequences of pleading guilty and wished to plead guilty at the time. The form was signed by defendant, his attorney, 113and the judge, who indicated he was accepting the plea as knowingly, intelligently, freely, and voluntarily made by defendant.

During the multiple bill colloquy, defendant indicated that he recognized the waiver form and multiple bill and went over them with his attorney, who answered any questions he may have had. Defendant agreed he was a multiple offender. The Court then advised defendant he had a right to a hearing and explained what the State would be required to prove at the hearing. He also advised defendant he had a right to remain silent at such a hearing. Defendant agreed he was a second felony offender, and the court provided that it was satisfied with the factual basis and accepted defendant’s stipulation as to the multiple bill as knowingly, intelligently, freely, and voluntarily made by defendant. Defendant was not advised during the colloquy as to the sentencing range he was exposed to or as to what sentence he would receive if his stipulation was accepted by the trial judge. However, as noted before, the waiver of rights form for the multiple bill did set forth the sentencing range and the enhanced sentence he would receive.

Of note, the record does not reflect that defendant was informed, either by the waiver of rights form or during the colloquy, about the restriction of benefits for his enhanced sentence. However, this does not affect the voluntariness of his stipulation to the multiple bill. See State v. Harrell, 09-364, pp. 16-17 (La.App. 5 Cir. 5/11/10), 40 So.3d 311, 321; State v. Landfair, 07-751, pp. 5-6 (La.App. 5 Cir. 3/11/08), 979 So.2d 619, 622-23, writ denied, 08-1143 (La.1/9/09), 998 So.2d 713. The record does not indicate that the availability of benefits was a material factor affecting defendant’s decision to plead guilty. Additionally, the record in this case shows defendant was advised of his Boykin rights and that his guilty pleas appear knowing and voluntary.

| ^After stipulating to the multiple bill, the trial judge imposed a sentence in conformity with the plea agreement. This Court has consistently recognized that LSA-C.Cr.P. art. 881.2 precludes a defendant from seeking review of an enhanced sentence to which the defendant agreed prior to “pleading guilty.” State v. Moore, 06-875, p. 15 (La.App. 5 Cir. 4/11/07), 958 So.2d 36, 46. Further, defendant’s sentence was within the sentencing range. The term of imprisonment for a second felony offender “shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction.” See LSA-R.S. 15:529.1. A conviction on a charge of distribution of cocaine carries a term of imprisonment at hard labor for not less than 2 years nor more than 30 years, with the first 2 years of the sentence being without benefit of parole, probation, or suspension of sentence. See LSA-R.S. 40:967(B)(4)(b). Thus, as a second felony offender, defendant was subject to a sentencing range of 15 to 60 years, without benefit of probation or suspension of sentence for the entire term, and without parole, probation, or suspension of sentence for the first 2 years. State v. Hill, 09-89, p. 6 (La.App. 5 Cir. 5/26/09), 15 So.3d 1042, 1045 n. 5.

Further, by stipulating to the multiple bill, defendant waived his right to a hearing and to any possible non-jurisdictional defects. Defendant is barred from asserting on appeal that the State failed to produce sufficient proof at the multiple bill hearing when he waived the hearing. See Schaefer, supra.

Based on the foregoing, the proceedings surrounding defendant’s stipulation to the multiple bill, as well as his enhanced sentence, do not present any non-frivolous appealable issues.

Defendant filed a pro se motion to amend and/or modify his sentence in the interest of justice which was denied by the trial court, noting that defendant had already begun serving his sentence at hard labor and that he could not seek review | lfiof the sentences, which were imposed in conformity with a plea agreement. This ruling does not present any issues for appeal. As stated previously herein, defendant received sentences in accordance with his plea agreements.

In his pro se appellate brief, defendant challenges his sentence. Defendant argues that after he was adjudicated a multiple offender he was sentenced to serve 17 years at hard labor without benefit of probation or suspension of sentence. He claims this sentence is harsh for non-violent charges and runs afoul of the Eighth Amendment to the United States Constitution. He also suggests that the trial court failed to consider mitigating factors in his case, noting that he is a young father with a family to support and a working class citizen who was apprehended for a small quantity of drugs. He concludes that the court failed to offer him rehabilitative alternatives to his sentence and/or tailor his sentence to fit his situation. He requests that the case be remanded to the trial court for resentencing under LSA-C.Cr.P. art. 894.1.

However, as previously stated herein, defendant cannot seek review of his sentences, which were imposed in conformity with his 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. See Washington, 05-211 at 5, 916 So.2d at 1173. Likewise, this Court has consistently recognized that LSA-C.Cr.P. art. 881.2 precludes a defendant from seeking review of an enhanced sentence to which the defendant agreed. Moore, 06-875 at15, 958 So.2d at 46. Although defendant argues that the trial court failed to properly consider the sentencing guidelines of LSA-C.Cr.P. art. 894.1, the mention of these guidelines was unnecessary because the sentences were agreed upon pursuant to a plea agreement. See State v. Scott, 44,509, p. 3 (La.App. 2 Cir. 8/19/09), 17 So.3d 1058, 1060. We therefore find no merit in defendant’s assignment of error.

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, defendant’s convictions and sentences, as well as his multiple offender proceedings and sentence, are hereby affirmed and appellate counsel’s motion to withdraw as attorney of record is granted.

ERROR PATENT DISCUSSION

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

According to the transcript, defendant pled guilty to distribution of heroin— count one. However, the commitment reflects that defendant pled guilty to “DIST/WITD ... HEROIN.” Generally, the transcript prevails where there is an inconsistency between the minute entry and the transcript. State v. Lynch, 441 So.2d 732, 734 (La.1983). We find that the commitment must be corrected to avoid any confusion as to the offense. See State v. Goodwin, 05-51, p. 7 (La.App. 5 Cir. 6/28/05), 908 So.2d 56, 60.

Further, the offense for which defendant pled guilty for counts two, three, and four are described in the commitment as “DIST/POSS. WITD OF A CDS COCAINE.” The transcript provides that defendant pled guilty to distribution of cocaine for counts two, three, and four. Again, the transcript prevails. See Lynch, supra. The commitment must be corrected to avoid any confusion as to the offenses. See State v. Roche, 09-684, p. 7 (La.App. 5 Cir. 3/23/10), 39 So.3d 706, 710, writ denied, 10-0930 (La.11/19/10), 49 So.3d 396.

117Although the commitment does not specify that each individual sentence was imposed at hard labor, the commitment does reflect that the 17-year sentence was to be served at hard labor. The commitment must also be corrected to show that each individual sentence was imposed at hard labor.

Next, the record shows that defendant received an illegal sentence for his distribution of heroin sentence for count one. Defendant was sentenced to 17 years imprisonment, with the first 5 years being served without the benefit of parole, probation, or suspension of sentence. LSA-R.S. 40:966(B)(1) provides for a sentence of imprisonment with at least 5 years of the imprisonment to be served without probation or suspension of sentence. The statute does not provide for the prohibition of parole. When a sentencing error involves the imposition of restrictions beyond what the legislature has authorized in the sentencing statute, the Louisiana Supreme Court has ruled that the Courts of Appeal “should not rely on La.R.S. 15:301.1(A) to correct the error as a matter of law but should correct the sentence on its own authority under La.C.Cr.P. art. 882 to correct an illegal sentence ‘at any time.’ ” State v. Sanders, 04-0017 (La.5/14/04), 876 So.2d 42 (per curiam). Pursuant to LSA-C.Cr.P. art. 882(A), we hereby amend defendant’s sentence to delete the prohibition on parole. See State v. Dee, 09-712, pp. 17-18 (La.App. 5 Cir. 2/23/10), 34 So.3d 892, 903, writ denied, 10-0705 (La.10/29/10), 48 So.3d 1097.

Further, for count five, distribution of heroin within 1000 feet of a drug-free zone, defendant’s sentence should have been imposed without benefit of probation or suspension of sentence for five years. See LSA-R.S. 40:966(B)(1); LSA-R.S. 40:981.3. However, in sentencing defendant on count five, the trial judge said the first five years would be without benefit of parole, probation, or suspension of | issentence. Pursuant to LSA-C.Cr.P. art. 882(A), we amend defendant’s sentence to delete the prohibition on parole for count five as well.

We further find that defendant also received an illegal sentence for count six, distribution of cocaine within 1000 feet of a drug-free zone. Pursuant to LSA-R.S.40:981.3 and LSA-R.S. 40:967, the sentence was required to be imposed without benefit of parole, probation, or suspension of sentence for the first two years. McKenzie, 09-893 at 10, 61 So.3d at 59 (Emphasis added). Defendant was sentenced to 17 years imprisonment with the Department of Corrections, with the first five years to be served without the benefit of parole, probation, or suspension of sentence. We therefore amend defendant’s sentence to reflect that only two years of the sentence for count six is without the benefit of parole, probation or suspension of sentence.

DECREE

The conviction of defendant Tirón Dickerson is hereby affirmed. The sentence is amended to delete the prohibition of parole for counts one and five, and to reflect that only two years of the sentence imposed on count six is without the benefit of parole, probation or suspension of sentence. As amended, the sentence is affirmed. The matter is further remanded for correction of the commitment as follows: count one— distribution of heroin; counts two, three and four — distribution of cocaine. Finally, the commitment should be corrected to reflect that the sentences for each count were imposed at hard labor. We also direct the district court to make the entries in the commitment reflecting this change and direct the clerk of court to transmit the original of the minute entry to the officer in charge of the institution to which the defendant has been sentenced and the Department of Correction’s Legal Department. 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). Appellate counsel’s motion to withdraw is granted.

CONVICTION AFFIRMED; SENTENCE AFFIRMED AS AMENDED; CASE REMANDED FOR CORRECTION OF THE COMMITMENT; MOTION TO WITHDRAW GRANTED

      . The procedure set forth in Benjamin for compliance with Anders was sanctioned by the Louisiana Supreme Court in State v. Mouton, 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: CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Austin LOWERY.
    No. 11-KA-258.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 15, 2011.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appel-lee.
    Gwendolyn K. Brown, Attorney at Law, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and JUDE G. GRAVOIS.
   CLARENCE E. McMANUS, Judge.

^Defendant’s appointed counsel has filed an Anders brief on defendant’s behalf, asserting there is no basis for a non-frivolous appeal and has filed a motion to withdraw as attorney of record. For the reasons which follow, we affirm defendant’s conviction and sentence and grant appellate counsel’s motion to withdraw as attorney of record.

STATEMENT OF THE CASE

On November 14, 2007, the Jefferson Parish District Attorney filed a bill of information charging defendant, Austin Lowery, with four counts of attempted armed robbery with a firearm, violations of LSA-R.S. 14:27, 14:64 and LSA-R.S 14:64.3; one count of attempted second degree murder, in violation of LSA-R.S. 14:27 and 14:30 and one count of armed robbery with a firearm, in violation of 14:64 and LSA-R.S 14:64.3. Defendant pled not guilty at arraignment. Thereafter, defendant filed various omnibus motions as well as numerous pre-trial motions. On April 14, 2010, the Jefferson Parish District Attorney filed an amended bill of information charging defendant with two counts of aggravated burglary, in violation of LSA-R.S. 14:60; one count of attempted aggravated burglary in violation of LSA-R.S. 14:27 and 14:60; and two counts of attempted second degree murder in violation of LSA-R.S. 14:27 and 14:30.1. Defendant withdrew his not guilty plea and pled guilty as |3charged to all counts under North Carolina v. Alford on August 30, 2010. The State provided the following recitation of facts upon defendant’s plea of guilty.

DISTRICT ATTORNEY:

Judge, in 07-5353, on September 6, 2007 the defendant — once [sic] second, Your Honor. This should be — that’s correct, September 6, 2007 the defendant committed an aggravated burglary at 4800 Fourth Street, Apartment B.
On September 7, 2007 the defendant committed an attempt [sic] aggravated burglary at 2541 delta Point in Marrero.
On September 7, 2007 the defendant committed an aggravated burglary at 236 Sunrise Drive.
On September 6, 2007 the defendant committed attempt (sic) second degree murder of Miguel Turcio. On that same date he committed attempt (sic) second degree murder of Dany Turcio.
All those crimes occurred in Jefferson Parish.

Following his guilty plea, defendant was sentenced to 27 years and 6 months at hard labor on counts 1, 3, 4, and 5, all to run concurrently, and 15 years on count 2, to run concurrently with all other counts. Defendant was granted an appeal on October 7, 2010.

ANDERS BRIEF

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (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, p. 3 (La.12/12/97), 704 So.2d 241, 242 (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 |4accompanied 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).

In State v. 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 objections 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.” State v. 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 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.

Defendant’s appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Counsel notes that defendant filed a pre-trial motion to suppress that was denied by the trial court, but, upon pleading guilty, defendant did not preserve his right to object to the ruling under State v. Crosby, 338 So.2d 584 (La.1976). Counsel also indicates that the plea form signed by defendant and the colloquy with the trial judge demonstrates that defendant was informed of and considered the rights he was waiving by pleading guilty, as well as the sentences that he would receive.

Appellate counsel has filed a motion to withdraw as attorney of record which states she has mailed defendant a copy of her brief. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until April 29, 2011, to file a pro se supplemental brief. Defendant has not filed a pro se supplemental brief with this Court.

The State filed a response to appellate counsel’s brief, noting that the brief shows a complete and thorough recitation of the procedural history of the case. The State contends that counsel has “cast an advocate’s eye” over the record and found no significant non-frivolous issues upon which to base an appeal. The State requests that this Court affirm 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 properly charged defendant. As required, it plainly, concisely, and definitely states the essential facts constituting the offenses charged, and cites the statutes defendant violated. It also sufficiently identifies defendant and the crimes charged. Also, as reflected by the minute entries and commitment, defendant | r,appeared at each stage of the proceedings, including his arraignment, guilty plea and sentencing.

Further, defendant pled guilty as charged. If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and precludes review of such defects either by appeal or post-conviction relief. State v. Wingerter, 05-697, p. 5 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 664. 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 Boykin' , 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. In such a case, the defendant has been denied due process of law in that the plea was not given freely and knowingly. State v. Dixon, 449 So.2d 463, 464 (La.1984).

The record shows that defendant was aware he was pleading guilty as charged to two counts of aggravated burglary, in violation of LSA-R.S. 14:60; one count of attempted aggravated burglary in violation of LSA-R.S. 14:27 and 14:60; and two counts of attempted second degree murder in violation of LSA-R.S. 14:27 and 14:30.1. On the waiver of rights form and during the colloquy with the trial court, defendant was advised of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination. On the waiver of rights form, defendant initialed next to each of these rights and signed the form, indicating that he understood that he was waiving these rights by pleading guilty. Further, during |7the colloquy with the trial court, defendant indicated that he understood that he was waiving these rights.

Defendant further indicated that he had not been forced, coerced, or threatened to enter his guilty plea. He was also informed that his convictions could be used to enhance a penalty for any future conviction.

Defendant was advised that he faced a maximum possible sentence of 30 years for each count of aggravated burglary, 15 years for attempted aggravated burglary, and 50 years at hard labor for each count of attempted second degree murder.

During the colloquy, defendant was told that he would be sentenced to 27 years and 6 months at hard labor on counts 1, 3, 4, and 5, all to run concurrently, and 15 years on count 2, to run concurrently with all other counts. He was also advised that the Court would recommend that he receive any treatments, educational or for drug abuse, that he may be eligible for while serving his time in the Department of Corrections. By signing the waiver of rights form, defendant also indicated that he understood the sentence he would receive.

Finally, we find that all of defendant’s sentences fall within the sentencing ranges set forth in the respective statutes and do not present any non-frivolous issues for 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 affirm defendant’s convictions and sentences and 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 following issues were discovered.

It appears that defendant received an illegally lenient sentence with respect to counts 4 and 5, for attempted second degree murder. The sentence for attempted second-degree murder pursuant to La. R.S. 14:27 and 14:30.1 is a term of imprisonment at hard labor without benefit of parole, probation or suspension of sentence. In this case, the district court failed to restrict benefits. However, LSA-R.S. 15:301.1 provides in part:

A. When a criminal statute requires that all or a portion of a sentence imposed for a violation of that statute be served without benefit of probation, parole, or suspension of sentence, each sentence which is imposed under the provisions of that statute shall be deemed to contain the provisions relating to the service of that sentence without benefit of probation, parole, or suspension of sentence. The 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.

Thus, even though we note the illegally lenient sentence, we also find that the self-activating provision of LSA-R.S. 15:301.1 makes defendant ineligible for benefits. Therefore, no corrective action by this Court is necessary. Additionally, we find that this issue does not warrant further briefing by defense counsel. See State v. Landfair, 07-751 (La.App. 5 Cir. 3/11/08), 979 So.2d 619, writ denied, 08-1143 (La.1/9/09), 998 So.2d 713.

Accordingly, we affirm defendant’s conviction and sentence and grant defense counsel’s motion to withdraw.

CONVICTION AND SENTENCE AFFIRMED; MOTION TO WITHDRAW GRANTED

      . 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

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


author: JUDE G. GRAVOIS, Judge.

text:
    STATE of Louisiana v. Kenneth W. PROCTOR.
    No. 11-KA-286.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 15, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet Clark, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Lieu T. Vo Clark, Attorney at Law, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.

      Panel composed of Judges WALTER J. ROTHSCHILD, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   JUDE G. GRAVOIS, Judge.

^Defendant, Kenneth W. Proctor, was convicted of possession of cocaine, a violation of LSA-R.S. 40:967(C). He now appeals his adjudication as a fourth felony-offender, arguing that the State failed to prove one of the predicate convictions. He also argues that his multiple offender sentence is excessive. Finding no error in the adjudication, we affirm defendant’s adjudication as a fourth felony offender. We further find that defendant’s sentence is not excessive. Finding that defendant’s sentence is indeterminate, however, we vacate the sentence and remand with instructions. On remand, the trial court is further instructed to properly inform defendant of the prescriptive period within which to apply for post-conviction relief.

FACTS

The facts regarding defendant’s conviction for the underlying offense of possession of cocaine are not germane to the issues brought in this appeal |3pertaining to his sentencing as a multiple offender. Following defendant’s conviction on June 9, 2009 for possession of cocaine, the State filed a multiple offender bill of information charging that defendant was a fourth felony offender. On December 16, 2010, defendant was adjudicated a fourth felony offender. Defendant’s original sentence was vacated, and he was resentenced to 20 years imprisonment.

ASSIGNMENT OF ERROR NUMBER ONE — Sufficiency of the evidence

The trial court etred in adjudicating Mr. Proctor to be a fourth felony offender.

In his first assignment of error, defendant argues that the evidence is insufficient to prove beyond a reasonable doubt that he was the person convicted of multiple offender theft in 1997 in case number 388^440 in Criminal District Court for the Parish of Orleans, as alleged in the multiple bill, which was entered into evidence as State’s Exhibit 3. Defendant does not appear to attack the validity of the other convictions. Defendant asserts that the State’s latent print expert was unable to verify that the fingerprints from case number 388-440 were in fact his. Defendant concludes that the State therefore did not produce sufficient evidence to prove identity in one of the predicate convictions, and accordingly, he should not have been adjudicated a fourth felony offender.

The State counters that it established the existence of the prior counseled guilty pleas and that defendant failed to establish any irregularity in the taking of the pleas. The State further contends that defendant did not deny the existence of any of the prior guilty pleas.

Defendant’s multiple offender adjudication was held on November 9, 2010. Donna Quintanilla was offered by the State as an expert in latent print examination |4and comparison and was accepted by the Court without objection. The State provided Ms. Quintanilla with four exhibits and questioned her about them on direct examination.

Ms. Quintanilla identified State’s Exhibit 1 as a ten-print fingerprint card that she had obtained from defendant, Kenneth Proctor, on that same date. She further identified defendant in the courtroom. Next, Ms. Quintanilla reviewed State’s Exhibit 2, which contained a set of fingerprints from 24th Judicial District Court case number 00-0044. After comparing the prints from State’s Exhibit 2 and State’s Exhibit 1, Ms. Quintanilla concluded that the fingerprints were made by the same person. This finding was verified by another latent print examiner, Sergeant Joel Olear.

The State then introduced State’s Exhibit 3, a “cert-pack for 388440” from Division “K” of New Orleans Criminal District Court. Ms. Quintanilla was unable to compare the prints in Exhibit 3 to those in State’s Exhibit 1 because they were not legible. On cross-examination, Ms. Quin-tanilla reiterated that she could not make an identification on the fingerprints contained in State’s Exhibit 3. She also testified that she was not present during any of defendant’s prior pleas.

State’s Exhibit 4 consisted of a “cert-pack from case number 94-5469,” which originated in Division “P” of the 24th Judicial District Court. Ms. Quintanilla concluded that the person who made the fingerprints in Exhibit 4 also made the fingerprints in Exhibits 1 and 2.

The multiple offender proceeding resumed on December 16, 2010, at which time defendant testified. Defendant testified that he had been addicted to drugs for the last fifteen years and that all of his previous convictions were drug-related. Defendant also stated that his mother passed away at the time when his case was lflset for trial, and that his brother had been fatally wounded by a gunshot the day before his testimony.

The Louisiana Supreme Court has held that even in the absence of fingerprints, a predicate conviction may be proven by competent evidence. In State v. Payton, defendant argued that the State failed to prove one of his predicate convictions because of the lack of the defendant’s fingerprints on the bill of information and guilty plea form. In rejecting this argument, the Court reasoned:

Although defense counsel focused on the lack of defendant’s fingerprints on the bill of information and guilty plea form, this Court has held a conviction may be maintained by other competent evidence. “This Court has repeatedly held that [the Habitual Offender Act] does not require the State to use a specific type of evidence to carry its burden at an habitual offender hearing and that prior convictions may be proved by any competent evidence.” State v. Lindsey, 770 So.2d at 344 n. 3 (citations omitted) (emphasis added). As such, we are unpersuaded by defense counsel’s argument.

In this case, State’s Exhibit 2 contains a bill of information, fingerprint card, bill of information, Boykin form, minute entries and commitments for 24th Judicial District Court case number 00-0044. In case number 00-0044, defendant stipulated to the multiple offender bill of information, for which one of the predicate convictions used was case number 388-440 arising from Division “K” in Orleans Parish. Specifically, the multiple offender bill of information read with respect to that particular offense:

... KENNETH PROCTOR was duly charged in case number 388-440 of the docket of Division ‘K’ of the Criminal District Court of the State of Louisiana, in and for the Parish of Orleans, with the crime of violating Louisiana Revised Statute 14:67(D), relative to Multiple Offender Theft, a felony under the law of Louisiana; that afterwards the said KENNETH PROCTOR pled guilty as charged guilty [sic] on the -20th day of May, 1997 and was sentenced by the Court, on the 20th day of May, 1997, to serve one year at hard labor in the custody on the Director of the Department of Corrections.

^State's Exhibit 3 contains a bill of information, Boykin form, minute entries and arrest register for case number 388-440 arising from Division “K” in Orleans Parish. The information in Exhibit 3 correlates to the multiple offender bill in State’s Exhibit 2. Specifically, the defendant in case number 388^140 is “Kenneth Proctor.” The defendant was charged with violating LSA-R.S. 14:67(D). The defendant pled guilty as charged on May 20, 1997, and was also sentenced on that date to one year in the custody of the Department of Corrections.

Because the State was able to match the certified copy of defendant’s Multiple Offender Theft conviction in State’s Exhibit 3 to State’s Exhibit 2 through the defendant’s name, case number, and date of guilty plea, we find that the State met its burden of proving that defendant was the same person who pled guilty in Orleans Parish case number 388-440.

Furthermore, defendant has failed to show any irregularity in the prior guilty pleas. Where the prior conviction resulted from a plea of guilty, the State must show that the defendant was advised of his constitutional rights and that he knowingly waived those rights prior to this plea of guilty, as required by Boykin v. Alabama, The Louisiana Supreme Court set forth the burden of proof in multiple offender proceedings in State v. Shelton. This Court summarized that burden in State v. Conrad, as follows:

If the defendant denies the multiple offender allegations then the burden is on the State to prove (1) the existence of a prior guilty plea, and (2) that defendant was represented by counsel when the plea was taken. Once the State proves those two things, the burden then shifts to the defendant to produce affirmative evidence showing (1) an infringement of his rights, or (2) a procedural irregularity in the taking of the plea. Only if the defendant meets that burden of proof does the burden shift back to the State to prove the constitutionality of the |7guilty plea. In doing so, the State must produce either a ‘perfect’ transcript of the Boykin colloquy between the defendant and the judge or any combination of (1) a guilty plea form, (2) a minute entry, or (3) an ‘imperfect’ transcript. If anything less than a ‘perfect’ transcript is presented, the trial court must weigh the evidence submitted by the defendant and the State to determine whether the State met its burden of proof that defendant’s prior guilty plea was informed and voluntary.

In this case, for each of the defendant’s predicate convictions used, the record shows that the State proved (1) the existence of a prior guilty plea, and (2) that defendant was represented by counsel when the plea was taken. Conversely, the record does not reflect that defendant presented affirmative evidence showing an infringement of his rights, or a procedural irregularity in the taking of the previous pleas. Accordingly, we find no merit to this assignment of error.

ASSIGNMENT OF ERROR NUMBER TWO — Excessive sentence

The sentence is constitutionally excessive.

Defendant next argues that the minimum sentence of 20 years as a fourth felony offender is excessive considering the facts of the instant offense as well as his prior criminal history.

Defendant did not file a motion to reconsider sentence. Accordingly, we conduct a review of his sentence for constitutional excessiveness only.

Both the United States and the Louisiana Constitution prohibit the imposition of excessive or cruel punishment. A sentence is constitutionally excessive, even if it is within the statutory limits, if it is grossly disproportionate to the severity of the offense or is nothing more than the needless and purposeless imposition of pain and suffering. If the trial judge finds that an enhanced |spunishment mandated by the Habitual Offender Law, LSA-R.S. 15:529.1, makes no “measurable contribution to acceptable goals of punishment” or that the sentence amounts to nothing more than “the purposeful imposition of pain and suffering” and is “grossly out of proportion to the severity of the crime,” the court has the option and duty to reduce such sentence to one that would not be constitutionally excessive.

At the time of defendant’s underlying conviction, defendant faced a sentencing range of twenty years to life under LSA-R.S. 15:529.1. It is presumed that a mandatory minimum sentence under the Habitual Offender Law is constitutional. A court may only depart from the mandatory sentence if it finds clear and convincing evidence in the particular case before it that would rebut this presumption of constitutionality. In order to rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must clearly and convincingly show that he is exceptional; that is, because of unusual circumstances 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.

The record must contain substantial evidence to rebut the presumption of constitutionality. The “trial court may not depart from the legislatively mandated minimum simply because of some subjective impression or feeling about the defendant.” The Louisiana Supreme Court has strongly emphasized that ^downward departures from a mandatory minimum sentence should only occur in rare situations.

In this case, defendant’s testimony at the multiple bill hearing consisted merely of his assertion that he had been addicted to drugs for the past fifteen years, and that his addiction accounted for all of his previous convictions. Defendant also stated that his mother passed away at the time when his case was set for trial, and that his brother had been fatally wounded by a gunshot the day before his testimony. Defendant made no showing of exceptional circumstances to justify a downward departure from the mandatory minimum sentence. Accordingly, we find that the minimum sentence imposed upon defendant as a fourth felony offender is not excessive. This assignment of error is without merit.

ERRORS PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920, State v. Oliveaux, and State v. Weiland.

The commitment indicates that defendant was sentenced to “imprisonment at hard labor for a term of 20 years.” However, the transcript shows the trial judge failed to specify that the sentence was to be served at hard labor. The transcript prevails. Because defendant was sentenced prior to the 2010 amendment to LSA-R.S. 15:529.1(G), which made hard labor mandatory in multiple offender | insentences, and because the applicable sentencing statute, LSA-R.S. 40:967(C), allows the trial court discretion in determining whether or not to impose a sentence at hard labor, the failure to indicate whether the multiple offender sentence is to be served at hard labor constitutes an impermissible indeterminate sentence. Accordingly, we must vacate the multiple offender sentence imposed by the trial court and remand for resentencing.

We note that the multiple offender bill of information incorrectly reflects that defendant’s underlying charge was a violation of LSA-R.S. 40:966(C). The defendant was actually charged and convicted of a violation of LSA-R.S. 40:967(C).

The purpose of a bill of information is to inform a defendant of the nature and cause of the accusation against him. A clerical error does not require dismissal of a bill of information or for reversal of a conviction if the error did not mislead the defendant to his prejudice.

In this case, there is no indication that defendant was prejudiced by this clerical error. Defendant knew the underlying conviction upon which the multiple bill of information was based because it contained the correct case number and section of court. Also, the underlying conviction had been obtained only several weeks before the multiple offender bill was filed. Therefore, there was no prejudice to defendant.

1 nAlso, the trial judge failed to advise defendant of the time period within which to apply for post-conviction relief, as required by LSA-C.Cr.P. art. 930.8. Accordingly, this matter is remanded to the trial court to properly inform defendant of the prescriptive period upon resentencing, and to file written proof in the record that defendant has received such notice.

CONCLUSION

For the above reasons, we affirm defendant’s adjudication as a fourth felony offender. We further find that defendant’s sentence is not excessive. Finding that defendant’s sentence is indeterminate, however, we vacate the sentence and remand for resentencing in accordance with the instructions set forth above. We further instruct the trial court to properly inform defendant of the prescriptive period within which to apply for post-conviction relief, as required by LSA-C.Cr.P. art. 930.8, upon resentencing, and to file written proof in the record that defendant has received such notice.

MULTIPLE OFFENDER ADJUDICATION AFFIRMED; SENTENCE VACATED; REMANDED WITH INSTRUCTIONS

      . 00-2899 (La.3/15/02), 810 So.2d 1127.

      . See State v. Anderson, 99-1407 (La.App. 4 Cir. 1/26/00), 753 So.2d 321.

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

      . 621 So.2d 769 (La.1993).

      . 94-232, pp. 3-4 (La.App. 5 Cir. 11/16/94), 646 So.2d 1062, 1064, writ denied, 94-3076 (La.4/7/95), 652 So.2d 1345.

      . State v. Hester, 99-426 (La.App. 5 Cir. 9/28/99), 746 So.2d 95, writ denied, 99-3217 (La.4/20/00), 760 So.2d 342.

      . U.S. Const, amend. VIII; La. Const, of 1974, art. I, § 20.

      . State v. Wickem, 99-1261 (La.App. 5 Cir. 4/12/00), 759 So.2d 961, writ denied, 00-1371 (La.2/16/01), 785 So.2d 839.

      . State v. Dorthey, 623 So.2d 1276, 1280 (La. 1993).

      . State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672.

      . State v. Lindsey, 99-3256 c/w 99-3302 (La. 10/17/00), 770 So.2d 339, cert. denied, 532 U.S. 1010, 121 S.Ct. 1739, 149 L.Ed.2d 663 (2001); State v. Johnson, supra.

      . State v. Bell, 97-1134 (La.App. 5 Cir. 2/25/98), 709 So.2d 921, 927, writ denied, 98-0792 (La.9/16/98), 721 So.2d 477.

      . State v. Lindsey, supra; State v. Johnson, supra.

      . See, State v. Bell, 42,394 (La.App. 2 Cir. 12/5/07), 972 So.2d 1207, where the court upheld the minimum mandatory sentence for a fourth felony offender who claimed drug abuse, among other factors, as factors justifying a downward departure. See also State v. Wuneburger, 03-490 (La.App. 5 Cir. 10/15/03), 860 So.2d 78, writ denied, 03-3357 (La. 1/7/05), 891 So.2d 673, where this Court found no merit in the defendant’s claim that his sentence as a third felony offender was excessive and that his family background, which included an alcoholic mother, the suicide death of his sister, and the loss of his father at an early age, as well as his own history of drug abuse, justified a deviation from the mandatory life sentence.

      . 312 So.2d 337 (La.1975).

      . 556 So.2d 175 (La.App. 5 Cir.1990).

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

      . Prior to its amendment by Acts 2010, No. 69, LSA-R.S. 15:529.1(G) contained no explicit requirement that offenders sentenced under the provisions of the Habitual Offender Law be sentenced to a term of imprisonment at hard labor, even as a fourth felony offender. As previously noted by this Court, the multiple offender statute in effect at the time the offense is applicable. State v. Fletcher, 01-809 (La.App. 5 Cir. 2/26/02), 811 So.2d 1010. In this case, the underlying offense was committed on June 16, 2008. However, the change to LSA-R.S. 15:529.1(G) did not become effective until June 10, 2010.

      . LSA-R.S. 40:967(C) provides in relevant part: (2) Any person who violates this Subsection as to any other controlled dangerous substance shall be imprisoned with or without hard labor for not more than five years and, in addition, may be sentenced to pay a fine of not more than five thousand dollars.

      . State v. Norman, 05-794, p. 8 (La.App. 5 Cir. 3/14/06), 926 So.2d 657, 661, writ denied, 06-1366 (La. 1/12/07), 948 So.2d 145.

      . See State v. Duplichan, 06-852 (La.App. 3 Cir. 12/6/06), 945 So.2d 170, 174, writ denied, 07-148 (La.9/28/07), 964 So.2d 351.

      . State v. Proctor, 09-956 (La.App. 5 Cir. 5/24/11), 66 So.3d 59.

      . Louisiana Constitution, Article I, § 13.

      . LSA-C.Cr.P. 464, and State v. Carey, 04-1073, p. 8 (La.App. 5 Cir. 3/29/05), 901 So.2d 509, 513.