author: GASKINS, J.

text:
    STATE of Louisiana, Appellee v. Jeffrey Keith THURMAN, Appellant.
    No. 46,391-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 22, 2011.
    Rehearing Denied Aug. 4, 2011.

      Cary J. Ellis, III, Louisiana Appellate Project, for Appellant.
    Robert W. Levy, District Attorney, Ashley L. Page, John F. Belton, Laura L. Whitten, Stephen K. Hearn, Jr., Cary T. Brown, Assistant District Attorneys, for Appellee.
    Before GASKINS, PEATROSS and DREW, JJ.
   GASKINS, J.

| jThe defendant, Jeffrey Keith Thurman, was convicted of six counts of distribution of cocaine. He was adjudicated a third felony offender and was sentenced as such on all six counts of distribution of cocaine. The trial court ordered that the defendant serve 45 years at hard labor, without benefit of parole, probation, or suspension of sentence, for each of the six counts of distribution of cocaine, with the sentences to be served concurrently. The defendant appealed, arguing that the sentence is excessive and that it is indeterminate. For the following reasons, we affirm the defendant’s convictions and, as amended, affirm his sentences.

FACTS

The Ruston Police Department and the Lincoln Parish Narcotics Enforcement Team (LPNET) received information from a reliable confidential informant, Donald Fields, that the defendant was selling cocaine. Mr. Fields had known the defendant since 2000, and had talked with the defendant around Easter in 2008 about buying drugs. On May 28, 2008, Mr. Fields and Lieutenant Michael Lestage of the Ruston Police Department and the LPNET began an investigation into the defendant’s drug activities. Mr. Fields contacted the defendant and discussed purchasing cocaine. Mr. Fields went to the LPNET office where his vehicle and person were searched to insure that Mr. Fields was not in possession of any drugs. Mr. Fields was given $100 in “buy money.” The money was photocopied to record the serial numbers. Mr. Fields was fitted with audio-video recording equipment. Mr. Fields drove his vehicle to a prearranged |2location to meet the defendant. Law enforcement officials followed him. Mr. Fields met the defendant and bought cocaine from him for $100.

Mr. Fields returned to the LPNET office where he handed over the cocaine along with the audio-video equipment. The cocaine was checked in as evidence and eventually transferred to the North Louisiana Crime Lab (“Crime Lab”) where it was tested and determined to be cocaine. The recording from the audio-video equipment was transferred to a computer and put on a DVD. The defendant was not arrested at that point. According to Lieutenant Lestage, law enforcement officials wanted to show that this was not happenstance for the defendant, but something that he did on a regular basis. Mr. Fields contacted the defendant and made cocaine purchases on five more occasions.

On June 5, 2008, Mr. Fields went to the LPNET office, his vehicle and person were searched, he was fitted with audio-video equipment and he was given $100 in buy money. He made contact with the defendant, who told Mr. Fields to meet him at “Elzie’s house.” He was then directed to another location. Mr. Fields met the defendant at the designated location and followed him to a vacant lot. Mr. Fields purchased $100 worth of cocaine from the defendant. Mr. Fields returned to the LPNET office and handed over the audio-video equipment and the cocaine. The cocaine was placed into evidence. The contraband was transferred to the Crime Lab where it was tested and determined to be cocaine.

On June 10, 2008, the same procedure was followed where law enforcement officials searched Mr. Fields and his vehicle, gave him $100 in |sbuy money, and equipped him with audio-video equipment. Mr. Fields went to Elzie’s house and called the defendant to tell him he was in the area and was ready to make a drug buy. Elzie appeared and said he would take the money to the defendant and bring back the cocaine. Mr. Fields called the defendant and told him that he did not want any complications. The defendant assured Mr. Fields that there would not be any problems. Mr. Fields watched Elzie walk down the street to the defendant’s house and then return with the cocaine. Mr. Fields turned the audio-video equipment over to the police along with the cocaine which was processed as evidence and transferred to the Crime Lab where it was tested and determined to be cocaine.

On June 12, 2008, Mr. Fields went to the LPNET office and followed the same procedure used in the past. He was given $100 in buy money and called the defendant to make a drug purchase. Mr. Fields told the defendant to come to Elzie’s house. The defendant stated that he was around the corner. However, when Mr. Fields arrived, a young man walked up to his vehicle. Mr. Fields asked where the defendant was and the man replied, “I have it. I’ve got it.” Mr. Fields paid the man the $100 and received cocaine. The cocaine was turned over to law enforcement officers, tested by the Crime Lab, and determined to be cocaine.

Lieutenant Lestage did not participate in the last two instances in which Mr. Fields bought drugs from the defendant. Lieutenant Chris Bittick, who had previously aided Lieutenant Lestage, was in charge of the last two drug buys. The focus of the investigation was Miketavious Brooks, |4not the defendant. Mr. Fields had furnished information to law enforcement officials that this individual was selling drugs.

Mr. Fields went to the LPNET office on August 5, 2008. His person and vehicle were searched, he was equipped with audio-video equipment, and he was given $80 in buy money. Mr. Fields telephoned Mr. Brooks from a convenience store and was told to come to Elzie’s house and then to proceed to the end of a certain dead-end street if no one was at Elzie’s. Mr. Fields followed the instructions and saw several men under a tree. Mr. Brooks did not appear, but the defendant came up to him and sold him $80 in cocaine. Mr. Fields was not able to get the defendant on the video recording because the transaction occurred so quickly. The cocaine was turned over to Lieutenant Bittick and eventually transferred to the Crime Lab where it was tested and determined to be cocaine.

On August 7, 2008, Mr. Fields again worked with Lieutenant Bittick with the goal of making a drug buy from Mr. Brooks. The same procedure was followed and Mr. Fields was given $80 in buy money. Mr. Fields contacted Mr. Brooks about buying drugs and went to the location directed by Mr. Brooks. Mr. Brooks did not appear, but the defendant arrived as a passenger in a car driven by an unknown female. Mr. Fields purchased $80 in cocaine from the defendant. He gave the cocaine to Lieutenant Bittick, who transferred it to the Crime Lab where it was tested and determined to be cocaine.

On November 20, 2008, the defendant was charged by bill of information with six counts of distribution of a controlled dangerous ^substance, cocaine. The defendant was tried by jury. The prosecution presented the testimony of Lieutenant Lestage, Lieutenant Bittick, and Donald Fields. The audio-video recordings of the drug buys were played for the jury. The defendant called Mr. Fields to testify. According to Mr. Fields, he was introduced to the defendant by Iva Jean Caldwell several years before the incidents forming the basis of this case. Iva Jean Caldwell testified; she denied introducing Mr. Fields to the defendant and said that Mr. Fields had a reputation in the community for not being truthful. The defendant also called Terry Stanley as a witness. He testified that Mr. Fields had a reputation for not telling the truth. The defendant was found guilty of all six counts.

In July 2009, the defendant was charged by bill of information with being a third felony offender. The prosecution alleged that the defendant had pled guilty to two counts of possession of cocaine in October 1999 and had entered a guilty plea to possession of cocaine and attempted possession of a firearm by a convicted felon in November 2005. The state requested that the defendant be sentenced as a third felony offender for all six counts of distribution of cocaine. A habitual offender hearing was held on March 9, 2010. The defendant was adjudicated a third felony offender on all counts. The defendant filed motions for new trial and for post verdict judgment of acquittal, which were denied by the trial court.

The defendant appeared before the court for sentencing on July 14, 2010. The trial court observed that, although the defendant had been adjudicated a third felony offender, he had previously been convicted of five | (ifelonies. The defendant had three convictions for distribution of cocaine that occurred outside the 10-year cleansing period of La. R.S. 15:529.1(C). The court concluded that the defendant had made his living by distributing drugs. According to the court, there was an undue risk of the defendant committing another crime, the defendant was in need of correctional treatment or a custodial environment best provided by commitment to an institution, and a lesser sentence would deprecate the seriousness of the offense. As an aggravating factor, the trial court considered that the defendant obtained substantial income and resources from ongoing drug activities. The court noted that, based upon the defendant’s adjudication as a third felony offender, the range for sentencing on each of the six counts of distribution of cocaine for which he had been convicted was 20 years to 60 years at hard labor. The trial court sentenced the defendant to serve 45 years at hard labor, without benefit of parole, probation, or suspension of sentence for each of the six counts of distribution of cocaine for which he was convicted, with the sentences to be served concurrently. The defendant made an oral motion to reconsider the sentences which was denied by the trial court. The defendant appealed, claiming that the sentences were constitutionally excessive and that the sentences were indeterminate.

EXCESSIVE SENTENCES

The defendant argues that the concurrent sentences of 45 years at hard labor without benefit of parole, probation, or suspension of sentence for each of his six convictions for distribution of cocaine are excessive. He contends that the sentencing court focused only on his criminal history and 17did not consider his family ties, social history, health, or employment. The defendant urges that by focusing only on his criminal past, the trial court failed to particularize the sentence to this defendant. This argument is without merit.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. McDaniel, 42,926 (La.App.2d Cir.1/9/08), 974 So.2d 146. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. State v. Autry, 45,029 (La.App.2d Cir.1/27/10), 30 So.3d 1068. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728. There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 2000-1467 (La.2/2/01), 783 So.2d 385; State v. McDaniel, supra.

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

The trial judge is given wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Williams, 2003-3514 (La.12/13/04), 893 So.2d 7; State v. Autry, supra.

A person convicted of distribution of cocaine shall be sentenced to a term of imprisonment at hard labor for not less then two years nor more than 30 years, with the first two years of said sentence being without benefit of parole, probation, or suspension of sentence. La. R.S. 40:967(B)(4)(b).

At the time of the defendant’s adjudication as a third felony offender, La. R.S. 15:529.1 provided in pertinent part:

A. (1) Any person who, after having been convicted within this state of a felony ..., thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:
[9(b) If the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life then:
(i) The person shall be sentenced to imprisonment for a determinate term not less than two-thirds of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction; ....

Under this statutory scheme, the sentencing range for a third felony habitual offender on each count of distribution of cocaine was no less than 20 years nor more than 60 years at hard labor. The sentences imposed in this matter are not excessive. The trial court took cognizance of the sentencing factors set forth in La. C. Or. P. art. 894.1. The court noted that it considered the defendant’s past criminal record, the likelihood that he would commit another crime if given a suspended sentence or probation, the fact that a lesser sentence would deprecate the seriousness of the offense, and the fact that this offense concerned the distribution of controlled dangerous substances. The court considered the defendant’s extensive criminal history, his prior convictions, and his failure to refrain from further criminal activity.

The six counts were separate offenses committed on different days. The trial court could have sentenced the defendant consecutively, but gave him a great benefit in ordering that the sentences for all counts be served concurrently.

The sentences imposed do not shock the sense of justice. The sentence of 45 years at hard labor on each count of distribution of cocaine falls approximately in the middle of the sentencing range. Given the | ^defendant’s criminal history and his repeated activity in selling illegal drugs, the sentences are not excessive.

INDETERMINATE SENTENCE

The defendant argues that the trial court erred in imposing an indeterminate sentence in this case. He claims that at the sentencing, the trial court ordered him to serve 45 years at hard labor on each count of distribution of cocaine, without benefit of parole, probation, or suspension of sentence, and ordered that the sentences be served concurrently. The defendant contends that the trial court did not delineate which of the six counts of distribution of cocaine was the subject of enhancement pursuant to the habitual offender status of the defendant. He urges that if a court fails to impose a sentence for each conviction of two or more convictions or fails to specify which of the sentences is being enhanced under the habitual offender statute, the sentence or sentences should be set aside and remanded for resentencing. This argument is without merit.

If a defendant who had been convicted of an offense is sentenced to imprisonment, the court shall impose a determinate sentence. La. C. Cr. P. art. 879. La. R.S. 15:529.1 exposes a person who has previously been convicted of a felony to enhanced penalties for any felony committed after the date of the prior felony conviction. There is no statutory bar to applying the habitual offender law in sentencing for more than one conviction obtained on the same date, whether the convictions result from separate felonies committed at separate times or arise out of a single criminal act or episode. State v. Shaw, 2006-2467 (La.11/27/07), 969 So.2d 1283. See also State v. Montgomery, 44,877 (La.App.2d Cir.1/27/10), 31 So.3d 560; writ denied, 2010-0494 (La.9/24/10), 45 So.3d 1073.

This case is distinguishable from State v. Mayweather, 28,271 (La.App.2d Cir.6/26/96), 677 So.2d 594, cited by the defendant. In Mayweather, a defendant was found guilty of two counts of armed robbery, was adjudicated a habitual offender, and was given one sentence to serve 60 years at hard labor, without benefit of parole, probation, or suspension of sentence. The trial court did not specify whether the sentence was for either or both armed robbery counts. This court found that, under those circumstances, the sentence was indeterminate. In the present case, the state asked the trial court to enhance each of the defendant’s six convictions for distribution of cocaine under the habitual offender statute. The trial court, in imposing sentence, clearly imposed the habitual offender enhancement to each of the six convictions. Therefore, the sentence in this case complied with La. C. Cr. P. art. 879.

PAROLE ELIGIBILITY

We note that the concurrent sentences of 45 years at hard labor for each of the six counts of distribution of cocaine were ordered by the trial court to be served without benefit of parole, probation, or suspension of sentence. We amend the sentences to provide that only the first two years of the sentences are to be served without benefit of parole.

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

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

CONCLUSION

For the reasons stated above, we affirm the convictions of the defendant, Jeffrey Keith Thurman, for six counts of distribution of cocaine and his adjudication as a third felony offender. We affirm that portion of 113the sentences ordering that the defendant, pursuant to his adjudication as a third felony offender, serve 45 years in prison at hard labor without benefit of probation or suspension of sentence and that the sentences be served concurrently. We amend the sentences to provide that only the first two years of the sentences are to be served without benefit of parole.

CONVICTIONS AFFIRMED; SENTENCES AFFIRMED AS AMENDED.

APPLICATION FOR REHEARING

Before WILLIAMS, GASKINS, PEATROSS, DREW and MOORE, JJ.

Rehearing denied.

      . The version of the statute in effect at the time of the defendant’s adjudication as a habitual offender is set forth here. The statute was amended in 2010. None of die amendments are relevant to this case and would not make a difference in the sentence.


source: Caselaw Access Project

author: MOORE, J. CARAWAY, J.,

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Steven L. ENTERKIN, Appellant.
    No. 46,386-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 22, 2011.

      Louisiana Appellate Project, Monroe, LA, by Peggy J. Sullivan, for Appellant.
    John M. Lancaster, District Attorney, Johnny R. Boothe, Penny Douciere, Assistant District Attorneys, for Appellee.
    Before CARAWAY, DREW and MOORE, JJ.
   MOORE, J.

11 Steven L. Enterkin appeals as excessive his sentence of 30 years at hard labor, the first 25 without benefits, arising from his conviction of one count of molestation of a juvenile, La. R.S. 14:81.2. For the reasons expressed, we affirm.

The incident occurred on August 19, 2006, when 21-year-old Enterkin was spending the evening with the 11-year-old victim’s mother at their house in Wisner, Louisiana. After drinking and having sex with the mother, Enterkin came out of the bedroom and into the living room, where the victim was sleeping on the couch. He lay down beside her, asked if she had a condom (she did not), performed oral and then anal sex on her, asked her not to tell anyone about it, and then returned to the mother’s bedroom. The victim did not report this until she told her grandmother in September 2008. Enterkin was arrested in January 2009. The indictment, filed March 12, 2009, charged him with aggravated rape that occurred “on or about July 14, 2006.” However, at a pretrial hearing in January 2010, the state amended the indictment, without objection, to recite that the offense occurred on August 19, 2006.

Enterkin went to trial on the aggravated rape charge over three days in January 2010. The 12-member jury found Enter-kin guilty of the lesser included offense of molestation of a juvenile.

Enterkin filed a motion that included a request for modification of verdict. The district court stated that the state had proved aggravated rape, but agreed that the evidence did not support a finding of force, violence, duress or the other essential elements of molestation of a juvenile. At the ^state’s suggestion, the court entered an amended verdict of guilty of sexual battery. It then sentenced Enterkin to 30 years at hard labor, the first 25 to be without benefit of parole, probation or suspension of sentence, and ordered him to register as a sex offender.

On initial appeal, this court found sufficient evidence to convict but reversed the modified verdict. State v. Enterkin, 45,655 (La.App. 2 Cir. 11/17/10), 56 So.3d 257. We reinstated the verdict of molestation of a juvenile and remanded for resentencing. After a hearing in November 2010, the district court again sentenced Enterkin to 30 years at hard labor, the first 25 to be without benefits, and sex offender registration. Enterkin made an oral motion to reconsider, which the court denied.

Enterkin now appeals, urging by one assignment of error that his sentence is excessive in light of the circumstances (he was barely 21 years old at the time of the offense, with no felony record) and the fact that the offense occurred just days after the legislature drastically increased the penalty for molestation of a juvenile. He shows that prior to August 15, 2006, La. R.S. 14:81.2 B provided a penalty of only 1 to 10 years at hard labor. However, 2006 La. Acts No. 103 added a new penalty provision, R.S. 14:81.2 E(l), whereby if the victim is under the age of 13, the sentence range is 25 to 99 years at hard labor, of which the first 25 must be without benefits. The amendment took effect August 15, 2006, a, mere four days before his offense. He argues that the close proximity of the amendment, and the ambiguous evidence about the precise date of the offense, make the sentence excessive.

|sThe state responds that the sentence is not excessive, in that the evidence was (as the district court noted) sufficient to prove aggravated rape, which carries a mandatory life sentence; the victim had suffered emotional harm from this, her first sexual experience; and the district court meticulously justified the 30-year sentence in accordance with La. C. Cr. P. art. 894.1. The state also asserts that the applicable penalty is the one in effect at the time of the offense; Act 103 contained no “grace period” for offenders to adjust to the new, harsher penalty. The state urges affir-mance.

Appellate review of sentences for alleged excessiveness is a two-pronged inquiry. ⅛ First the record must show that the sentencing court complied with La. C. Cr. P. art. 894.1. However, when the defendant files a motion to reconsider sentence that raises no “specific grounds” for reconsideration under La. C. Cr. P. art. 881.1, he is relegated to the bare claim of constitutional excessiveness. State v. Mims, 93-0808 (La.6/18/93), 619 So.2d 1059; State v. Jenkins, 45,873 (LaApp. 2 Cir. 1/26/11), 57 So.3d 405. Enterkin’s motion raised no specific grounds, only a general claim for reconsideration, so he is not entitled to review for compliance with Art. 894.1. We would note, however, that the district court was in full command of the factual basis, having sat through a three-day trial and, at the second sentence hearing, reading the PSI into the record almost in extenso.

The second prong is constitutional excessiveness. A sentence violates La. Const. Art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 92-3120 (La.9/10/03), 623 So.2d 1276. A sentence is deemed grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice or makes no reasonable contribution to acceptable penal goals. State v. Guzman, 99-1753 (La.5/16/00), 769 So.2d 1158. The sentencing court has broad discretion to sentence within the statutory limits; absent a showing of manifest abuse of that discretion, the appellate court will not disturb a legal sentence. Id.; State v. Givens, 45,354 (La.App. 2 Cir. 6/23/10), 42 So.3d 451, writ denied, 2010-1584 (La.1/14/11), 52 So.3d 902.

Thirty years is a long time, but we are constrained to observe that it is actually on the lower end of the 25- to 99-year range prescribed by R.S. 14:81.2 E(l). It appears to give adequate regard to the mitigating factors such as Enterkin’s youth, work history, absence of prior felonies, and the possibility (disclosed to the court at sentencing) that he might be the father of a child born shortly after he was jailed. On the other hand, the evidence would have supported the charged offense of aggravated rape; the victim has reported psychological problems; Enterkin had a poor probation record on two prior convictions of misdemeanor DWI; and he still denied his guilt, telling the court in a letter, “I never touched the young girl.” On this record, we do not find that the sentence imposed shocks the sense of justice or makes no reasonable contribution to acceptable penal goals.

Because the motion to reconsider did not assert the amendment to R.S. 14:81.2 as a specific ground for relief, we need not address the issue. Because of the dramatic increase in penalty exposure, however, we would |sreiterate that the victim testified the incident occurred “close to the time for school to start,” and the other witnesses generally corroborated this. Her grandmother placed it sometime in August or September; her mother said it was between July 14 (the date the victim’s father died) and September 2006; her 15-year-old sister, who was in the house at the time, also recalled it as being after July 14; the state’s expert in child abuse, Dr. Meade O’Boyle, testified that the victim reported it happened in October 2006. On this testimony, this court has already found the evidence sufficient to prove the offense occurred on August 19, 2006. State v. Enterkin, supra at p. 5, 56 So.3d at 264.

As a general rule, the law in effect at the time of the commission of the offense determines the penalty which the convicted accused must suffer. State v. Dick, 2006-2283 (La.1/26/07), 951 So.2d 124; State v. Morrison, 45,620 (La.App. 2 Cir. 11/24/10), 55 So.3d 856. Recent cases are instructive, as they involved defendants who committed drug offenses shortly before new legislation drastically reduced the penalties for those offenses. See, e.g., State v. Parker, 2003-0924 (La.4/14/04), 871 So.2d 317; State v. Hardy, 36,666 (La.App. 2 Cir. 1/29/03), 836 So.2d 1249. In such cases, the courts have applied the law in effect at the time of the offense, and we decline to deviate from that precedent.

Finally, Enterkin argues that remand is necessary because the court failed to state precisely which version of the (frequently amended) sex offender registration statute applied. However, Enterkin admitted on the record that he received a handout detailing his registration requirements and | (¡that he understood them; he raised no objection. The failure to object waived any complaint about this aspect of the sentence. La. C. Cr. P. art. 841; State v. Roland, 36,786 (La.App. 2 Cir. 6/5/03), 850 So.2d 738, aff'd in part, rev’d on other grounds, 2003-1930 (La.1/16/04), 865 So.2d 692.

In addition to the assigned error, we have reviewed the entire record and find nothing we consider to be error patent. La. C. Cr. P. art. 920(2). For the reasons expressed, the conviction and sentence are affirmed.

AFFIRMED.

CARAWAY, J., concurs with written reasons.

CARAWAY, J.,

concurring.

|TIn this very unique case involving a change in law for the crime’s punishment, the state presented evidence that the date of the offense occurred just four days after the law’s enactment. With adults having not been alerted to the sexual assault for over two years, this required the reconstruction of events by memory in order to pinpoint the date. This circumstantially raised a critical fact issue. The jury, however, was never charged to determine as an element of the crime that the offense occurred after August 15, 2006. The jury was only charged to determine that the age of the victim was under the age of 13 at the time of the offense or under the age of 17 for the lesser included offense of molestation of the juvenile. Yet, since the child was 11 years old in the summer of 2006, the jury’s consideration of this temporal element of the crime did not require the determination of the actual date in 2006 when the crime occurred. Therefore, the jury as charged by the trial court was not asked to determine beyond a reasonable doubt that the crime occurred four days after the change in the law on August 15, 2006. With these unique circumstances given the constitutional protections under the Ex Post Facto Clause (U.S. Const, art. I, § 10, cl. 1) and the right to trial by jury (U.S. Const, art. VI) as examined in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2848, 147 L.Ed.2d 435 (2000), I believe that a special jury charge for the determination of the date of the offense was necessary. Nevertheless, under La.C.Cr.P. art. 801, the defendant’s failure to timely object to the jury charge precludes appellate review.


author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee v. Troy WATSON, Appellant.
    No. 46,380-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 22, 2011.
    Carey J. Ellis, Louisiana Appellate Project, for Appellant.
    Jerry Jones, District Attorney, Fred McGaha, Michael J. Fontenot, Assistant District Attorneys, for Appellee.
    Before BROWN, WILLIAMS, and MOORE, JJ.
   BROWN, Chief Judge.

Lin the early morning hours of March 19, 2009, officers from both the Monroe Police Department and the Ouachita Parish Sheriffs Office were dispatched to the Liberty Village Apartments on Deloach Street in Monroe, Louisiana, in response to a shooting. Officers found a seriously wounded victim, Lee Cox, sitting inside an SUV. Cox told police that he was shot by his friend “Trey.” A few weeks later, the suspect “Trey” was identified as defendant, Troy Watson. Defendant was arrested and charged with attempted second degree murder. Following a jury trial, defendant was convicted as charged. Thereafter, he was sentenced to 34 years imprisonment at hard labor without the benefit of parole, probation or suspension of sentence. Defendant appeals his sentence. His one assignment of error is that his sentence was excessive. We affirm.

Discussion

The victim, Lee Cox, was twenty-one years old. Cox was living with his sister-in-law, Quiana Jackson, while he went to school to obtain his GED. Cox stated that he met defendant on his way home from school one day, approximately two months prior to the shooting. The two became friends and would see each other on a daily basis. On the evening of March 18, 2009, Cox and defendant were “hanging out” as usual. Some time after midnight, defendant asked Cox if he could use Ms. Jackson’s cell phone. Cox got the phone from Ms. Jackson and gave it to defendant so he could make some calls. About 15 to 20 minutes later, Cox asked defendant for the phone back so he could return it to Ms. Jackson. At that time, Cox stated |2that he felt “heat” on his neck, and he turned and began running home. As Cox ran, defendant chased him and shot at him. Cox had gunshot wounds to his chest, one of his thighs, his buttocks area, his back and one foot. Once he made it to the apartment, Cox stumbled in the door and kicked it shut. Cox told Ms. Jackson that he had been shot. Ms. Jackson went to the neighbor’s house to call 911 because the cell phone defendant had was their only phone. Ms. Jackson then carried Cox outside to her SUV. Once she got him inside the vehicle, the officers arrived.

Cox was transported to the hospital. He required extensive surgery and remained in the intensive care unit on a respirator in a coma for three weeks. In the meantime, Ms. Jackson helped police officers and Detective Mark Johnson locate “Trey,” who was identified as defendant, Troy Watson. Once Cox came out of the coma, Ms. Jackson contacted Det. Johnson, who brought a photograph of defendant to the hospital. Cox identified the person in the photo as the person who shot him. Ms. Jackson also identified the person in the photo as the person she knew as “Trey.”

Defendant was arrested and charged by bill of information with the attempted second degree murder of Lee Cox, a violation of La R.S. 14:30.1 and 14:27. Thereafter, a jury rendered a verdict of guilty as charged of attempted second degree murder.

The court ordered a PSI. Prior to the sentencing hearing, defense counsel filed a memorandum urging the court to be lenient with defendant because defendant was not the worst type of offender. Counsel also asked |3the court to consider defendant’s age. Defendant was 16 years old when he shot the victim.

The trial court reviewed the PSI which indicated that the instant conviction was defendant’s first adult felony conviction, noting, however, that defendant had a juvenile criminal record. The court also noted that there was an undue risk that defendant would commit another crime if given any type of probated sentence, and that defendant was in need of correctional treatment that could be provided most effectively by his commitment to an institution. The court further found that any lesser sentence than 34 years would deprecate the seriousness of the offense.

The court noted several aggravating factors, including defendant’s conduct during the commission of the offense which created a risk of death or great bodily harm to more than one person and resulted in significant permanent injury and economic loss to the victim and his family. The court also indicated that it considered defendant’s age to be a mitigating factor.

The trial court noted defendant’s social history which indicated that defendant was born to unmarried parents and did not know his father’s name. Defendant completed the eighth grade, had never worked, was not married and had no children. He came to Monroe after he and his mother were displaced by Hurricane Katrina. The court was also aware of the probation officer’s comments about defendant, one of which was that “while his (defendant’s) years are young, his actions are those of a hardened criminal.” The court considered letters written by defendant wherein he continued to deny culpability for shooting Cox. The court also took into Raccount statements by the victim and his mother. According to the victim’s mother, her son still has nightmares, he suffers a great deal of pain, he is unable to work, and he fears retaliation for his testimony at trial.

Asserting that defendant’s sentence is excessive, defense counsel argues that the trial court ignored the mitigating factors in this case. Specifically, the court failed to consider that defendant is a troubled youth who grew up in an unfortunate environment. Defense counsel further urges that adequate punishment can be accomplished by a sentence of less than 34 years, which is an oppressive sentence for a young first-time felony offender.

Second degree murder is punishable by life imprisonment at hard labor. La. R.S. 14:30.1(B). The punishment for attempted second degree murder is imprisonment at hard labor for not less than 10 nor more than 50 years without benefit of parole, probation or suspension of sentence. La. R.S. 14:27(D)(l)(a).

A sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 01-2574 (La.01/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.01/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La. App.2d Cir. 01/24/07),5 948 So.2d 379; State v. Bradford, 29,519 (La.App.2d Cir.04/02/97), 691 So.2d 864.

A trial court has broad discretion to sentence within the statutory limits. State v. Dunn, 30,767 (La.App.2d Cir.06/24/98), 715 So.2d 641; State v. Guzman, 99-1528, 99-1753 (La.05/16/00), 769 So.2d 1158. Absent a showing of manifest abuse of that discretion, the appellate court may not set aside a sentence as excessive. Id.

The sentencing range for the offense of conviction was 10 to 50 years. La. R.S. 14:27(D)(l)(a). The 34-year sentence imposed is 16 years less than the maximum the court could have imposed. The court, although it was inclined to impose the maximum sentence, did not do so due to defendant’s young age. The court felt, however, that any lesser sentence would deprecate the seriousness of defendant’s actions in “nearly taking the life of (the young victim) whose life will never be the same.” We find this sentence to be neither grossly disproportionate to the severity of the offense nor shocking to the sense of justice.

Conclusion

Defendant’s conviction and sentence are AFFIRMED.

      . By the time of trial, Cox’s brother and Ms. Jackson were married.


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Timothy Dewayne CUMMINGS, Appellant.
    No. 46,373-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 22, 2011.
    Timothy D. Cummings, Pro Se.
    Douglas L. Harville, Louisiana Appellate Project, for Appellant.
    Charles R. Scott, II, District Attorney, Dhu Thompson, Brian H. Barber, Jason T. Brown, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and LOLLEY, JJ.
   LOLLEY, J.

|! This criminal appeal arises from the First Judicial District Court, Parish of Caddo, State of Louisiana. The defendant, Timothy Dewayne Cummings, was convicted of possession with intent to distribute a Schedule II controlled dangerous substance, namely cocaine, a violation of La. R.S. 40:967(A). He was adjudicated a third felony offender and sentenced to life imprisonment. This appeal ensued. For the following reasons, we affirm Cummings’ conviction and sentence.

Facts

On April 8, 2009, Corporal Robert Robinson III of the Shreveport Police Department (“SPD”) and the Shreveport-Caddo Narcotics Task Force along with Corporal Terry Sanders of the SPD and other members of the Special Weapons and Tactics (“SWAT”) team executed a search warrant on room number 43 of the Levingston Motel in Caddo Parish. Inside the room, the officers found Cummings along with a plate on a dresser next to the bed. This plate contained a larger rock of crack cocaine that had been cut into smaller pieces as well as a razor blade. The officers also found a digital scale and assorted baggies inside a nightstand drawer, as well as a photograph of Cummings with an unidentified female.

Cummings was arrested and transported to the police station where he was advised of his Miranda rights. He signed a waiver of these rights and was subsequently questioned. Cummings stated he had been living at the hotel for three months and admitted that the cocaine found by the officers belonged to him. He also admitted that for the past month he would 12frequently purchase cocaine, cut it up, and sell it for profit from the hotel room. Never did Cummings deny that he possessed and distributed cocaine.

He was charged with possession with intent to distribute a Schedule II controlled dangerous substance, namely cocaine, a violation of La. R.S. 40:967(A). Although Cummings chose to violate court orders by not being present, a jury trial was held and he was convicted as charged. Cummings then filed a Motion for New Trial and a Motion for Post-Verdict Judgment of Acquittal; both were denied. A habitual offender hearing followed in which Cummings was found to be a third felony habitual offender. Cummings was sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence, according to the provisions of the habitual offender statute. Cummings then filed a Motion to Reconsider Sentence and Deviate from the Constitutionally Excessive Fourth Habitual Offender Sentence. The trial court denied this motion as well. This appeal followed.

Law and Discussion

In his sole assignment of error, Cummings alleges his sentence is unconstitutionally excessive because the sentencing court did not adequately consider the factors set forth in La. C. Cr. P. art. 894.1. Cummings was convicted of possession of cocaine with intent to distribute. He was sentenced as a third felony habitual offender under La. R.S. 15:529.1, which provides:

A. Any person who, after having been convicted within this state of a felony ... thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows ...
|s(3) If the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life then:
(b) If the third felony and two prior felonies are felonies defined as a crime of violence under R.S. 14:2(B) ... or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or any other crimes punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

A first conviction for possession of cocaine with intent to distribute carries a sentencing range of 2 to 30 years, a term that fits the criteria of the habitual offender statute as being less than Cummings’ natural life. La. R.S. 40:967(B)(4)(b); La. R.S. 15:529.1(A)(3). The two predicate offenses, second degree battery and aggravated battery, upon which the habitual offender imposition was based, are defined as crimes of violence under R.S. 14:2(B). The third and current felony of possession of cocaine with intent to distribute is a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for 10 years or more. La. R.S. 40:967(B)(4)(b). Thus, the habitual offender statute mandates that Cummings be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence. La. R.S. 15:529.1(A)(3)(b).

Because the sentence imposed for the habitual offender adjudication is prescribed by statute, the trial court’s compliance with La. C. Cr. P. art. 894.1 is not required. State v. Lee, 39,969 (La.App.2d Cir.08/17/05), 909 So.2d 672, writ denied, 2006-0247 (La.09/01/06), 936 So.2d 195. It would be an exercise in futility for the trial court to discuss factors enumerated in that article when the trial court had no discretion in sentencing the defendant. Id.

As this court stated in State v. Ponsell, 33,543 (La.App. 2d Cir.08/23/00), 766 So.2d 678, writ denied, 2000-2726 (La.10/12/01), 799 So.2d 490:

Although ... the Louisiana Supreme Court stated that courts have the power to declare a mandatory minimum sentence excessive under Article I, Section 20 of the Louisiana- Constitution, this power should only be exercised in rare cases and only when the court is firmly convinced that the minimum sentence is excessive. (Citations omitted.)

Since the habitual offender law in its entirety is constitutional, the minimum sentences it imposes upon multiple offenders are also presumed to be constitutional. State v. Johnson, 1997-1906 (La.03/04/98), 709 So.2d 672. The mandatory life sentences required are presumptively constitutional and should be accorded great deference by the judiciary. State v. Lee, supra. The burden is on a defendant to rebut the presumption that a mandatory minimum sentence is constitutional. In order to do so, it must be clearly and convincingly shown by the defendant that he is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. State v. Johnson, 709 So.2d at 672.

Here, Cummings has failed to rebut this presumption by showing that he is exceptional. On the contrary, Cummings was charged as a third 15habitual offender when he could actually have been charged as a fourth. Additionally, the predicate offenses were crimes of violence and Cummings had only been out of prison for three months when he committed the instant offense. Therefore, it is apparent that Cummings was not rehabilitated during his prior prison term. This type of recidivism is the very type of behavior La. R.S. 15:529.1 was designed to deter. This assignment of error is without merit.

Conclusion

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

AFFIRMED.

      . While there seems to be some confusion as to whether Cummings was charged as a third or a fourth felony offender, the record shows he was charged as a third. The trial court noted, however, that whether sentenced as a third or a fourth habitual offender, the mandated sentence was the same-imprisonment for the remainder of his natural life without benefit of parole, probation, or suspension of sentence. La. R.S. 15:529. l(A)(3)-(4).


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. Clarence SMITH, Jr., Appellant.
    No. 46,343-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 22, 2011.

      James E. Beal, Jonesboro, LA, for Appellant.
    Jerry L. Jones, District Attorney, Brandon B. Brown, David O’Brian Harkins, Jr., Neal G. Johnson, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, GASKINS and CARAWAY, JJ.
   WILLIAMS, J.

hThe defendant, Clarence Smith, Jr., was charged by bill of information with armed robbery, a violation of LSA-R.S. 14:64. Following a jury trial, he was convicted of first degree robbery, a lesser included offense. He was adjudicated a second-felony offender and sentenced to serve 70 years in prison at hard labor, without benefit of parole, probation or suspension of sentence. He was also ordered to pay restitution in the amount of $810. For the following reasons, we affirm.

FACTS

On March 28, 2009, Otto J. Doucet received a “rapid refund” income tax refund in the amount of $880. Doucet’s friend drove him to a check cashing establishment on Louisville Avenue in Monroe, Louisiana to cash the check. Doucet left the establishment with approximately $860 in cash. Doucet and his friend then went across the street to a gas station/convenience store, where Doucet purchased $30 in gas and two soft drinks. While inside the store, Doucet encountered the defendant and three other men who asked Dou-cet whether he did any drugs; Doucet responded, “No.”

When Doucet left the store, the defendant and his accomplices asked Doucet if he wanted to purchase a CD. As Doucet peered into the rear door of their vehicle to view the CDs, he was pushed inside and the door was shut behind him. While Doucet was inside the vehicle, one of the accomplices held a gun on Doucet while the defendant forcibly took more than $800 from Doucet. After exiting the vehicle, Doucet got into his friend’s vehicle and told him that he had been robbed. Doucet and his 12friend pursued the assailants’ ve-hide, and the defendant placed a 9-1-1 call.

Following an investigation, the defendant’s brother, James Smith, was arrested. Smith admitted to being inside the vehicle when the robbery occurred and implicated the defendant. The defendant was arrested and charged -with armed robbery with the use of a firearm. Following a jury trial, the defendant was convicted of first degree robbery, a lesser included offense. Thereafter, the state filed a habitual offender bill of information, charging the defendant as a second-felony offender. Following a hearing, the defendant was adjudicated a second-felony offender and was sentenced to serve 70 years in prison at hard labor, without the benefit of parole, probation or suspension of sentence. He was also ordered to pay restitution in the amount of $810.

The defendant appeals.

DISCUSSION

Jury Instructions

The defendant contends the trial court gave an improper jury instruction on the reasonable doubt standard, thereby denying him of his right to a fair trial. He argues that the “beyond reasonable doubt” instruction given in this case suggests a higher degree of doubt than what is required for an acquittal under the reasonable doubt standard.

In the instant case, the trial court instructed the jury as follows:

[sThe burden is entirely upon the State to prove the defendant’s guilt beyond a reasonable doubt. This does not mean that the State must prove the defendant guilty beyond a shadow of doubt. The standard is beyond a reasonable doubt.
It is the duty of the jury in considering the evidence, or lack thereof, to apply to that evidence the law as given by the Court and to give the defendant the benefit of every reasonable doubt arising out of the evidence or out of the lack of evidence. It is the duty of the jury, if not convinced of the guilt of a defendant beyond a reasonable doubt as to any fact or element necessary to constitute the defendant’s guilt, to give him the benefit of that doubt and return a verdict of not guilty. And even where the evidence demonstrates probability guilty, yet, if it does not establish it beyond a reasonable doubt, you must find him not guilty. This doubt must be a reasonable one; that is, one founded upon a real and substantial basis and not upon mere possibility, conjecture, or whim. It is not a doubt concocted in your mind out of a feeling of sympathy for the defendant to escape the just penalty of the law. Instead, it is a doubt arising out of the evidence or lack of evidence in the case. If, after giving a fair and impartial consideration to all facts in the case, you find the evidence or lack of evidence unsatisfactory upon any single point indispensably necessary to constitute the defendant’s guilt, this would give rise to such a reasonable doubt as would justify you in rendering a verdict of not guilty. On the other hand, if you have no reasonable doubt and the State has convinced you of the defendant’s guilt, your duty then is to render a verdict of guilty.

Unless objected to contemporaneously, an irregularity or error in the charge to the jury may not be asserted on appeal. LSA-C.Cr.P. art. 801(C). Although the procedural law set forth in LSA-C.Cr.P. art. 801 states that the failure to assert a timely objection waives the issue on appeal, the jurisprudence has carved out an exception to this rule where such alleged trial errors raise overriding due process considerations. State v. Williamson, 389 So.2d 1328 (La.1980); State v. Lowery, 33,905 (La.App.2d Cir.2/28/01),4 781 So.2d 713, writ denied, 2001-1041 (La.2/22/02), 809 So.2d 978. To determine whether such an overriding consideration is implicated, it is necessary to examine the instruction in light of the requirements of the Due Process Clause. In Victor v. Nebraska, 511 U.S. 1, 5, 114 S.Ct. 1239, 1243, 127 L.Ed.2d 583 (1994), the United States Supreme Court explained:

The beyond a reasonable doubt standard is a requirement of due process, but the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course. Indeed, so long as the court instructs the jury on the necessity that the defendant’s guilt be proved beyond a reasonable doubt, the Constitution does not require that any particular form of words be used in advising the jury of the government’s burden of proof. Rather, taken as a whole, the instructions [must] correctly conve[y] the concept of reasonable doubt to the jury.

In State v. Smith, 91-0749 (La.5/23/94), 637 So.2d 398, cert. denied, 513 U.S. 1045, 115 S.Ct. 641, 130 L.Ed.2d 546 (1994), the jury was given the following charge on the “beyond reasonable doubt” standard:

If you entertain any reasonable doubt as to any fact or element necessary to constitute the defendant’s guilt, it is your sworn duty to give him the benefit of that doubt and return a verdict of acquittal.
This doubt must be a reasonable one, that is one founded upon a real, tangible, substantial basis and not upon mere caprice, fancy or conjecture. It must be such a doubt as would give rise to a grave uncertainty raised in your minds by reason of the unsatisfactory character of the evidence; one that would make you feel that you had not an abiding conviction to a moral certainty of the defendant’s guilt.
A reasonable doubt is not a mere possible doubt. It should be an actual or substantial doubt. It is such a doubt as a reasonable person would seriously entertain. It is a serious doubt for which you could give a good treason.

Id. at 399. After deliberating for approximately three hours, the jury found Smith guilty as charged of second degree murder. The defense did not make a contemporaneous objection to the jury charge, but appealed Smith’s conviction arguing that the beyond reasonable doubt charge was unconstitutional.

In interpreting the decisions in Victor, supra, and Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990) (overruled on other grounds by Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991)), the Louisiana Supreme Court has stated:

Terms like “moral certainty” and “substantial doubt” were included in the Victor jury charges, and they have passed constitutional muster in this most recent expression on the reasonable doubt instructions by the United States Supreme Court. However, while Cage focused on the presence of the suspect terms in the instruction, the Victor court considered the relationship of the terms to the instruction as a whole to determine whether the jurors were reasonably likely to have misapplied the instruction. The Court found that each charge (and the same can be said although perhaps to a lesser degree regarding the Cage instruction) contained an interplay of concepts and supplemental instructions which put the reasonable doubt focus in a proper perspective.

State v. Smith, supra. Citing Victor, supra, the supreme court concluded that “considering the instruction as a whole,” the jury instruction was not constitutionally deficient.

lfiIn the instant case, we find that the jury instruction did not violate the defendant’s right to a fair trial. Taken as a whole, the instruction correctly conveyed the concept of reasonable doubt to the jury and did not suggest a higher degree of doubt than that required under the reasonable doubt standard. This assignment lacks merit.

Habitual Offender Adjudication

The defendant contends the evidence was insufficient to determine that he was a second-felony offender. He argues that the state only proved that the same individual made the fingerprints on the booking cards for the two offenses listed in the habitual offender bill of information, but did not prove that he was that individual.

To prove that a defendant is a habitual offender, the state, among other things, must establish by competent evidence, that there is a prior felony conviction and that the defendant is the same person who was convicted of that prior felony. State v. Chaney, 428 So.2d 1092 (La.1982); State v. Winslow, 45,414 (La. App.2d Cir.12/15/10), 55 So.3d 910. The Louisiana Supreme Court has repeatedly held that LSA-R.S. 15:529(F) does not require the state to use a specific type of evidence to carry its burden at a habitual offender hearing and that prior convictions may be proven by any competent evidence. State v. Linsdey, 99-3302 (La.10/17/00), 770 So.2d 339; State v. Winslow, supra.

In State v. Payton, 2002-2899 (La.3/15/02), 810 So.2d 1127, 1130-31, the supreme court stated:

To obtain a multiple offender conviction, the State is required to establish both the prior felony conviction and 17that the defendant is the same person convicted of that felony. In attempting to do so, the State may present: (1) testimony from witnesses; (2) expert opinion regarding the fingerprints of the defendant when compared with those in the prior record; (3) photographs in the duly authenticated record; or (4) evidence of identical drivers license number, sex, race and date of birth.

(Internal citations omitted).

An arrest register containing the defendant’s fingerprints, when admitted with a bill of information, matching the name, arrest date and item number from the arrest register, may be used in lieu of a fingerprinted bill of information to prove a prior conviction by a defendant. State v. Lindsey, supra; State v. Winslow, supra.

In the instant case, a habitual offender hearing was held on May 13, 2010. During the hearing, the state presented evidence that a Clarence Smith, Jr. was arrested for a simple robbery committed on April 23, 2006. The state introduced the following documents into evidence: (1) a bill of information charging the defendant with simple robbery in docket number 06-F2159-1, along with the defendant’s fingerprints; (2) a certified copy of the minutes of docket number 06-F2159-1, evidencing that the defendant pled guilty and was sentenced on September 25, 2008; (3) the booking report of the defendant in docket number 06-F2159-1, which included his date of birth, social security number, sex, race, fingerprints and photograph.

Deputy Renee Johnson of the Ouachita Parish Sheriffs Department was accepted by the court as an expert in fingerprint identification and comparison. Deputy Johnson’s testimony established that the defendant convicted of simple robbery on September 25, 2008, in docket number 06-_jF2159-l8 is the same defendant arrested for armed robbery in the instant case.

After reviewing the record, we find that the state submitted sufficient evidence to prove that the defendant was the same person who was convicted of simple robbery on September 25, 2008. The record in the instant matter shows that the defendant’s date of birth, social security number, sex, race and fingerprints were identical to those of the person who committed the offense in the prior matter. This assignment lacks merit.

Excessive Sentence

The defendant also contends the sentence imposed is excessive for this offense, given the mitigating factors of his age and that he is the father of young children. The defendant also argues that the trial court disregarded the fact that he was not the person who was actually holding the weapon during the robbery.

We first note that the defendant failed to make or file a motion to reconsider sentence. When a defendant fails to timely file a motion to reconsider sentence under LSA-C.Cr.P. art. 881.1, the appellate court’s review is limited to the bare claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Richie, 44,783 (La.App.2d Cir.10/28/09), 25 So.3d 879, writ denied, 2009-2492 (La.4/30/10), 34 So.3d 280.

A sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

The trial judge is given wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Williams, 2003-3514 (La.12/13/04), 893 So.2d 7; State v. Thompson, 2002-0333 (La.4/9/03), 842 So.2d 330; State v. Hardy, 39,233 (La.App.2d Cir.1/26/05), 892 So.2d 710.

In the instant case, the defendant was convicted of first degree robbery. LSA-R.S. 14:64.1(B) provides:

B. Whoever commits the crime of first degree robbery shall be imprisoned at hard labor for not less than three years and for not more than forty years, without benefit of parole, probation or suspension of imposition or execution of sentence.

However, since the defendant was adjudicated a second-felony offender, he was subjected to an enhanced penalty under LSA-R.S. 15:529.1, which, at the time of the commission of this offense, provided, in pertinent part:

A. Any person who, after having been convicted within this state of a felony ... thereafter commits any subsequent felony -within this state, upon conviction of said felony, shall be punished as follows:
110(1) If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment 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[.]

Accordingly, under LSA-R.S. 15:529.1(A)(1), the defendant was subject to a sentence of not less than 20 years and not more than 80 years at hard labor, without benefit of probation, parole or suspension of sentence.

Prior to imposing the sentence, the trial court ordered and reviewed a presentence investigation report (“PSI”) and noted the provisions of LSA-C.Cr.P. art. 894.1. The court noted the defendant’s significant criminal history, given his young age (22 years old) and noted that his criminal conduct was of an escalating nature. While the court took notice of the fact that the defendant had three young children, it also noted the defendant’s failure to provide support for those children. The court also found that there is an undue risk that the defendant will commit another crime and that any lesser sentence would deprecate the seriousness of the crime. Additionally, the court noted that the defendant took something of value from the victim while using threats of violence.

The court gave thorough reasons for imposing the sentence which, although lengthy, was within the statutory range for a second-felony [¶1 offender. The defendant’s conduct constituted a crime of violence which, at a minimum, posed a substantial threat that the victim could have suffered great bodily harm. Additionally, the defendant’s lengthy criminal history was deserving of special consideration as an aggravating factor. The present crime was committed approximately six months after the defendant was convicted of simple robbery, his first felony. Furthermore, after the defendant committed the present crime of conviction, he was stopped for careless operation of a vehicle, during which he fled from the officers and resisted arrest, conduct for which he currently has charges pending. The defendant also has charges pending for allegedly calling the victim in the instant matter prior to the trial in an attempt to dissuade him from testifying.

The sentence imposed, 70 years at hard labor, is within the range of the 20 to 80 years mandated by statute for a second felony offense adjudication of first degree robbery. Although we note that the sentence is quite lengthy, we find no abuse of the trial court’s discretion.

CONCLUSION

For the foregoing reasons, we affirm the defendant’s conviction, adjudication as a second-felony offender and sentence.

CONVICTION AFFIRMED; ADJUDICATION AS SECOND-FELONY OFFENDER AFFIRMED; SENTENCE AFFIRMED.

      . The tape of the 9-1-1 call reflects that the defendant told the operator that he had just been the victim of a robbery at gunpoint.

      . In Cage, the Court held that a jury instruction which defined reasonable doubt as a "grave uncertainty" or an "actual substantial doubt” suggested a higher degree of doubt than that required for acquittal and that when considered in reference to "moral certainty” rather than evidentiary certainty, a reasonable jury could find the defendant guilty on a degree of proof less than a reasonable doubt.
        Cage at 41, 111 S.Ct. at 329, 112 L.Ed.2d at 342.

      . In State v. Dillard, 45,633 (La.App.2d Cir. 11/3/10), 55 So.3d 56, the defendant was convicted of first degree robbery and adjudicated a second-felony offender. This court found that the sentence imposed, 60 years in prison at hard labor without benefits, was not excessive. Similarly, in State v. Jackson, 31,-849 (La.App.2d Cir.3/31/99), 734 So.2d 54, the defendant was convicted of first degree robbery and adjudged a second-felony offender. He was sentenced to serve 50 years in prison, and this Court found that the sentence was not excessive.