author: WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana v. Humberto VARGAS.
    No. 10-KA-788.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 10, 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.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

On March 30, 2006, defendant, Humberto Vargas, was indicted by a Jefferson Parish grand jury with aggravated rape (Count I), in violation of LSA-R.S.14:42, and aggravated burglary (Count II), in violation of LSA-R.S. 14:60. Defendant pled not guilty at arraignment. On the trial court’s own motion, a preliminary hearing was held on October 19, 2006, and continued to February 1, 2007. On February 1, 2007, the trial court decided not to continue forward with the preliminary exam and found that there was probable cause to proceed to trial.

After a hearing on defense counsel’s application to appoint a sanity commission, the trial court deemed defendant competent to stand trial. Trial commenced on December 15, 2008, and jury selection began. On that same date, |aprior to jury selection, defense counsel orally moved the trial court to quash the indictment arguing that the two-year time limit for the institution for prosecution had expired. The trial court immediately denied defendant’s motion to quash asserting that part of the reason for the delay was due to defense counsel’s request for continuances in order to obtain evidence taken from defendant in Miami, where defendant was arrested.

On December 16, 2008, after opening arguments, Count I of the bill of indictment was amended, in accordance with a plea agreement, to allege a violation of LSA-R.S. 14:42.1, forcible rape. At that time, defendant withdrew the not guilty plea and pled guilty as charged. On the same day, defendant was sentenced to twenty years with the Department of Corrections on Counts I (as amended) and II, to run concurrently with each other and with a six month misdemeanor sentence in case number 05-5130, to which defendant also pled guilty.

The defendant filed an application for post-conviction relief on December 28, 2009. The trial court dismissed defendant’s application while granting his request for an out-of-time appeal on January 8, 2010. This out-of-time appeal follows.

FACTS

As this matter did not proceed to trial, the pertinent facts were deduced from the direct examination of the victim at the preliminary examination hearing held on October 19, 2006. At that time, the victim stated that she met defendant at a party sometime in February of 2005, and they dated for about two and a half months. Shortly after they started dating, defendant began to ask the victim to marry him to which she responded maybe. However, the victim ended the relationship because she felt he was not a suitable partner.

|4The victim explained that the defendant would follow her around and “always impulse his presence” even when she wanted to be alone. She further testified that when she ended the relationship, she told him that she wanted nothing more to do with him to which defendant responded “no, no” because he wanted to marry her on May 26, 2005, which was her birthday. The victim again instructed the defendant that the relationship was over because he continued to contact her at work and “he would talk bad about her and say that she was a bad person.”

After the victim ended the relationship, defendant would continue to contact her. He brought her flowers to work to get her to change her mind. Additionally, he would call her at work, home, as well as on her cell phone, where he would leave numerous harassing messages. She then expressed that defendant would leave messages on her phone calling her a “disgraceful bitch, not worth anything.” When the victim asked defendant to stop calling her, he ignored her requests and continued to call.

Initially, the victim did not call the police about the harassment. However, she did call the police in May of 2005, when the defendant met her unannounced at the airport where the victim was returning from visiting her mother in Guatemala. She did not notify defendant of her travel plans; however, the departure and return dates were written down in her calendar at home. The defendant broke into her house and retrieved the information. When the victim returned home, she found her bathroom on the second floor dirty and the victim’s neighbor informed the victim that she heard noises in the apartment but she was afraid to enter.

At the airport, the defendant began “accosting” the victim: pulling her arm, insulting her, telling her she was “disgraceful”, and that she had to leave with him because he needed to speak with her. Security personnel noticed the situation, 1 .^escorted the victim safely to her brother, who picked her up, and instructed her to call the police.

When the victim arrived at home, she observed the defendant driving around her block. She called the police, and her neighbor, Maria Paniaqua, assisted her in explaining the incident to the police because she did not speak English well enough. When the policemen arrived on the scene, the defendant was not in the area; however, he started calling her on the phone instead. At that time, the police officers instructed the victim to change her locks and to call again if she saw defendant near or if he began to harass her again.

On a separate occasion, also in May of 2005, the victim’s friend and neighbor, Maria Paniaqua, called the police because the defendant chased the victim in her vehicle. When the victim was leaving work, she observed defendant in his vehicle at the corner near a Taco Bell. The defendant chased behind the victim in his vehicle and she became very nervous. She drove around the back of her house where defendant hit her vehicle. The victim called Ms. Paniaqua, who came outside. As the victim turned the corner, the defendant hit her vehicle for a second time. The defendant then began banging on the windows of her vehicle while he was saying that she was “disgraceful, bewitched, [and] that he was going to kill [her].”

When Ms. Paniaqua called the police, the defendant left. One of the policemen who arrived on the scene was the same officer who was called out the first time victim called the police. This officer called defendant on his cell phone and told him that he needed to stop following the victim, and that he wanted to talk to the defendant. The defendant told the police officer that he had done nothing. |fiThe police officers took pictures of the damage to the victim’s car and left the scene.

The defendant continued to harass the victim. Specifically, he threw rocks at her windows and her eight-year-old daughter got so scared she started crying and hid underneath the table. The victim testified that she did not call the police because the young men in the neighborhood vowed to protect her. The defendant would call her and accuse her of having sexual relationships with the men and that was the reason why they were protecting her. On that particular day, one of the young men came outside and defendant left. The victim further testified that defendant continued to watch her and he would let her know he was watching her by calling and telling her who she was talking to on the phone or what she was doing at that particular time.

On June 2, 2005, the victim was working at Maria’s Hair Salon, in Metairie, and defendant called her at work at around 11:00 a.m. The victim’s co-worker told defendant that she was not there so he hung up and called back around 1:00 p.m. The victim’s co-worker again told defendant that she was not there, but included that she would come back because she left her car there, reasoning that defendant may have been outside watching the victim. The victim left the salon at approximately 3:40 p.m.

The victim went straight home because she was afraid of defendant following her. When she got home she locked her doors with double locks also using the chain. When she turned around, she observed defendant in the middle of her kitchen so she asked him what he was doing there. Defendant grabbed the victim by her hair and began insulting her and hitting her. The victim started screaming knowing the owner of the apartment was there, because her neighbor, Ms. Paniaqua, moved out. Defendant then turned on the television very loudly so 17that no one could hear the altercation. Defendant then put a pillow over the victim’s face to choke her as he said: “Die you disgraceful woman, die.”

The defendant began to drag the victim to the second floor, the victim refused, so he then attempted to lock her in the first floor bathroom. The victim struggled with the defendant as he continued to hit her. He then told her to take her clothes off to which she said “no.” The defendant then pulled out a knife from the back of his pants and told the victim that he was going to kill her and disfigure her face.

Next, defendant took the victim into the kitchen, threw her on the floor, and ripped her clothes off. Defendant bit the victim on the vagina, opened his pants, and began to sexually assault her. He told her not to move or make a sound or he would kill her. Defendant was interrupted when the victim’s son and ex-husband knocked on her door. The victim convinced defendant to let her answer the door to give her son a key, promising that she would return to him in the kitchen. She put her clothes on, opened all of the locks and started yelling that defendant wanted to kill her. The defendant left the knife on the kitchen counter and ran out the back door, hopping over the fence. The victim’s ex-husband observed him and chased him to no avail. Defendant stole her passport, green card, pictures, jewelry, and money. The victim’s ex-husband called the police and after they arrived, defendant started calling the victim again. One of the policemen talked to defendant and told him to give himself up to which defendant replied that he did not do anything to the victim.

According to the police reports, defendant contacted a friend who drove him to Miami, Florida. Defendant was arrested in Miami when the police there learned of the warrant in Jefferson Parish. Defendant was extradited from Miami to Jefferson Parish. After defendant was arrested, he continued to call the victim and 18he also wrote her a letter. He asked the victim for her forgiveness for what he did, explaining that he had already asked God to forgive him.

ANDERS BRIEF

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (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, 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.

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).

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 á 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. In her brief, appellate counsel notes that there is no ruling of the trial court to be challenged because the defendant pled guilty and it was not a Crosby plea. Additionally, appellate counsel considered raising an issue regarding excessive sentence; however, she concluded that defendant was informed of his sentence in the guilty | mplea form, and the trial court informed defendant of his sentence in the plea colloquy. Moreover, the defendant understood that the State agreed not file a multiple offender bill and it also reduced Count I to forcible rape, in exchange for the plea. Appellate counsel noted that the sentencing range for the amended charge was 5-40 years for forcible rape; therefore, she concluded that the 20 year sentence was not constitutionally excessive.

The State agrees with appellate counsel and also submits that she has shown a conscientious and thorough review and recitation of the procedural history of the case. The State also noted that that appellate counsel properly noted that the defendant, when entering his guilty plea, did not preserve his right to appeal any adverse ruling through Crosby, supra. The State included that defendant initialed and signed an acknowledgement of constitutional rights and waived those rights, including the right to appeal. The State urged that this waiver of rights was again given orally in court. The State also mentioned that appellate counsel reviewed the sentence and concluded it was not excessive. Last, the State included that during sentencing, the defendant was made aware that he had two years to seek post-conviction relief.

Appellate counsel has filed a motion to withdraw as attorney of record which states she notified defendant of the filing of her motion and has advised defendant of his right to file a pro se brief in this appeal. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until November 11, 2010, to file a pro se supplemental brief. Defendant failed to file a brief in this matter.

An independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal. When an Anders brief |nis filed, the appellate court reviews: 1) the bill of information/indictment to insure the defendant was properly charged, 2) all minute entries to insure the defendant was present at all crucial stages of the proceedings, the jury composition and verdict were correct, and the sentence is legal, 3) all pleadings in the record, and 4) all transcripts to determine if any ruling provides an arguable basis for appeal. State v. Bradford, supra at 1110-1111.

In conducting this review, we fail to find any arguable basis for appeal. Defendant was properly charged by a grand jury indictment. Defendant was also present at all crucial stages of the proceedings. After trial commenced and opening arguments were complete, defendant waived his right to a jury trial and pled guilty. His guilty plea and sentence were part of a plea bargain. His 20-year concurrent sentences were legal as authorized by LSA-R.S. 14:42.1 and 14:60. Moreover, a defendant cannot seek review of a sentence imposed in conformity with a plea agreement. LSA-C.Cr.P. art. 881.2(A)(2) and State v. Washington, 05-211, p. 5 (La.App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173.

Additionally, a review of the pleadings and transcripts do not reveal any basis for appeal. However, two of the trial court’s rulings merit further review.

In reference to the first ruling, the record reflects that defendant was indicted on March 30, 2006, and that the preliminary examination was held on October 19, 2006. The hearing was continued on October 19, 2006, shortly after defense counsel began cross-examination of the victim. On February 1, 2007, when the matter was taken up again, the trial court would not allow defense counsel to finish his cross-examination, ruling that “the Court was not going to go forward with any preliminary examination in this case ... [because] it would serve no purpose and defendant would have his rights at trial. Defense counsel “strenuously” objected to 112the court’s ruling on the basis that they had a preliminary examination in which the State presented a witness and the defense was being deprived of the constitutional right to cross-examination. The court further ruled that it had no obligation to grant a preliminary exam, it did on its own motion, and it would deny both the State and defendant a request to pursue the preliminary examination. Ultimately, the trial court found probable cause to hold defendant over on the charges.

Upon review, we find that the constitutional argument raised by defendant at that time regarding the court’s ruling which prohibited defendant’s right to full cross-examination is meritless. This Court has held that the right to confrontation contained in the United States Constitution and the Louisiana Constitution is not implicated in a pre-trial matter. State v. Ayo, 08-468, p. 17 (La.App. 5 Cir. 3/24/09), 7 So.3d 85, 97, unit denied, 09-1026 (La.3/5/10), 28 So.3d 1006, (citing State v. Harris, 08-2117, p. 1 (La.App. 5 Cir. 12/19/08), 998 So.2d 55, 56).

Moreover, the issue was not preserved for appellate review. LSA-C.E. art. 103(A)(2) provides that in order to preserve the right to appeal a trial court ruling that excludes evidence, the defendant must make known the substance of the evidence to the trial court; therefore we find that defendant is precluded from raising this issue on appeal. Accordingly, we find that there was no violation of the defendant’s constitutional right to confrontation in this pre-trial matter.

Secondly, the defendant objected to the State introducing a consent search form, through which it obtained defendant’s DNA. Defendant argued that the consent obtained from defendant was accomplished well after his indictment and he was entitled to have counsel present, and the State obtaining consent to search 113from defendant without counsel was inappropriate. The trial court overruled defendant’s objection finding that defendant “volunteered to the sample” after being advised of his rights, knowing he could refuse and speak with his attorney.

It is undisputed that the collection of a saliva sample for DNA analysis is a search requiring a warrant implicating the Fourth Amendment. State v. Lee, 2005-2098 (La.01/16/08), 976 So.2d 109, cert. denied, 555 U.S. 824, 129 S.Ct. 143, 172 L.Ed.2d 39 (2008). Therefore, the right to counsel does not apply.

As for the buccal swab, defendant consented to the test which is a valid exception to the warrant requirement. See State v. Bradley, 44,963, p. 10 (La.App. 2 Cir. 3/3/10), 33 So.3d 931, 937, writ denied, 10-1090 (La.12/10/10), 51 So.3d 723. A warrantless search and seizure is presumed unreasonable unless it is justified by one of the narrowly drawn exceptions to the warrant requirement. Id. (citing State v. Talbert, 449 So.2d 446 (La.1984); See also State v. Enclade, 03-353, p. 4 (La.App. 5 Cir. 9/16/03), 858 So.2d 8, 12; Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). A valid consent search is a well-recognized exception to the warrant requirement, but the burden is upon the state to prove that the consent was given freely and voluntarily. Id.; See also Enclade, 03-353 at 4, 858 So.2d at 13; (citing Schneckloth v. Bustamonte, supra; State v. Wilson, 467 So.2d 503 (La.1985), cert. denied, 474 U.S. 911, 106 S.Ct. 281, 88 L.Ed.2d 246 (1985). An oral consent to a search is valid. Id.

Voluntariness is a question of fact to be determined by the trial judge under the facts and circumstances of each case. Bradley, 44,963 at 10, 33 So.3d at 937; State v. Carthan, 377 So.2d 308, 312(La.1979),(whether the defendant consented a fact to be determined by all of the facts and circumstances of the case; the trial judge’s conclusions on credibility are entitled to great weight)(citing Schneckloth v. Bustamonte, supra; State v. Dunbar, 356 So.2d 956 (La.1978); State v. Tennant, 352 So.2d 629 (La.1977), cert. denied, 435 U.S. 945, 98 S.Ct. 1529, 55 L.Ed.2d 543 (1978); State v. Schouest, 351 So.2d 462 (La.1977); State v. Temple, 343 So.2d 1024 (La.1977). These factual determinations are to be given great weight on appellate review. Id. (citing State v. Edwards, 434 So.2d 395 (La.1983); Carthan, supra.

In the instant case the defendant underwent a procedure by which his mouth was swabbed in order to obtain DNA evidence against him. Based on the record, we find that the trial judge did not err in ruling that defendant consented to the search, which is a recognized exception to the warrant requirement. Further, it is noted that defense counsel agreed to stipulate to the lab report regarding the DNA analysis admitting that the victim’s DNA may be present on the victim and that this was not a material issue in the case.

Additionally, as both appellate counsel and the State correctly pointed out, that defendant did not plead guilty reserving his right under Crosby. Moreover, neither appellate counsel nor the defendant brings up issues on appeal regarding any of the trial court’s rulings. Therefore, we find defendant waived appellate review of the trial court’s rulings.

Generally, when 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. Turner, 09-1079, pp. 7-8 (La.App. 5 Cir. 7/27/10), 47 So.3d 455, 459, (citing State v. Wingerter, 05-697, pp. 5-6 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 665). Additionally, 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. Id. 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 to a reduced charge of forcible rape, aggravated burglary, as well as to a misdemeanor charge. He was advised of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination, as required by Boykin, on both the charges. Defendant was advised of these rights by means of the waiver of rights and guilty plea form. The defendant signed the waiver of rights and guilty plea form indicating that he understood that he was waiving these rights by pleading guilty. Defendant was also advised of these rights during the guilty plea colloquy with the trial court in which the court separately advised defendant of his rights with regard to his guilty pleas.. Defendant indicated during the colloquy that he understood that he was waiving these rights.

During the guilty plea colloquy, defendant indicated that he understood that he would be sentenced to twenty years at hard labor on the forcible rape charge, with two of those years without the benefit of parole, probation, or suspension of sentence; and twenty years at hard labor on the aggravated burglary charge, both to |1firun concurrently, to be served with the Department of Corrections. The waiver of rights and guilty plea form also indicated the defendant’s acknowledgement of the sentence he was to receive.

As defendant indicated his understanding of the sentence, both in court and on his waiver of rights and guilty plea form, the proceedings surrounding defendant’s guilty plea and sentence do not present any non-frivolous issues to be raised on appeal.

Because appellant 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 conviction and sentence are hereby affirmed and appellate counsel’s motion to withdraw as attorney of record be granted.

ERROR PATENT DISCUSSION

The defendant requests an error patent review. However, this Court routinely reviews the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990) regardless of whether defendant makes such a request. The following matters were discovered:

The citation for forcible rape, which is LSA-R.S. 14:42.1, was omitted from Count I of the amended bill of indictment. However, the State, both in its written and oral amendments to Count I of the indictment, includes that the amended charge is forcible rape. Further, both the guilty plea colloquy, and the guilty plea form, which was signed and initialed by the defendant, reflect the proper charge of forcible rape.

Art. 1, § 13 of the Louisiana Constitution requires that an indictment inform a defendant of the nature and cause of the accusation against him. State v. Page, 08-531, p. 16 (La.App. 5 Cir. 11/10/09), 28 So.3d 442, 453, writ denied, 09-2684 (La.6/4/10), 38 So.3d 299. This requirement is implemented by LSA-C.Cr.P. art. 464 which provides:

The indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It shall state for each count the official or customary citation of the statute which the defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice. (Emphasis added).

Moreover, LSA-C.Cr.P. art. 487 states that an indictment shall not be invalidated because of a defect as to its form; and, the court may amend the indictment to correct a formal defect at any time.

In the present case, there is no indication that the defendant was prejudiced by the State’s omission of the statutory citation for forcible rape. The guilty plea form, as well as the transcript of the guilty plea colloquy indicates that the defendant knew the correct charge to which he pled, forcible rape and was not misled as to the accusation against him.

We also note that the trial judge failed to impose defendant’s sentence on Count I without the benefit of parole, probation, or suspension of sentence for at least two years, as required by LSA-R.S. 14:42.1(B). Although the trial judge failed to mention the restriction, such conditions are deemed to exist by operation of law, under LSA-R.S. 15:301. State v. Tapps, 02-574, pp. 13-14 (La.App. 5 Cir. 10/29/02), 832 So.2d 995, 1004, writ denied, 02-2921 (La.4/21/03), 841 So.2d 789; (citing State v. Williams, 00-1725, pp. 14-15 (La.11/28/01), 800 So.2d 790, 801). Normally, such a situation would negate the necessity for a remand to the district court. However, in this case, as in Tapps, supra, the language of the applicable sentencing provision, LSA-R.S. 14:42.1, implicates the discretion of the trial judge in determining the exact length of time that benefits are to be withheld. Accordingly, we must remand the case for clarification of the sentence in compliance with LSA-R.S. 14:42.1(B).

In all other respects, the conviction and sentence of defendant Humberto Vargas is affirmed. The matter is remanded for clarification of the sentence as discussed above. Appellate counsel’s motion to withdraw is granted.

CONVICTION AND SENTENCE AFFIRMED; CASE REMANDED FOR CLARIFICATION; MOTION TO WITHDRAW GRANTED

      . The preliminary examination concluded at the beginning of cross-examination of the victim due to a conflict with defense counsel's interpreter. Further, defense counsel was only able to ask a few questions before the issue arose and the hearing was continued.

      . The victim testified through an interpreter.

      . 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.

      . 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).

      . State v. Crosby, 338 So.2d 584 (La.1976).

      . A copy of the letter this Court sent to defendant on October 12, 2010, is attached.

      . Defendant's sentencing range was in between 5 and 14 years for the forcible rape and between 1 and 30 years for the aggravated rape.

      .In Ayo, the trial court curtailed cross-examination of a witness by the defense at a combined hearing on a motion to suppress and preliminary examination. 08-468 at 16-17, 7 So.3d at 97. The defendant objected to the suppression of evidence; however, he failed to proffer the testimony. Id. This Court held that defendant’s constitutional confrontation rights were not affected in a pre-trial matter; and, further, that he was precluded from raising the issue for review on appeal because there was no proffer of the excluded testimony. Id.

      . A buccal sample is taken by rubbing a Q-tip in the inside of the mouth in order to obtain fluid to test a person’s DNA. State v. Polizzi, 05-478, p. 7 (La.App. 5 Cir. 2/14/06), 924 So.2d 303, 308, writs denied, 06-1052 (La. 11/3/06), 999 So.2d 751 and 08-2006 (La. 1/30/09) 6 So.3d 1274.

      . State v. Crosby, 338 So.2d 584 (La.1976)(there is no bar from reviewing assignments of error specifically reserved at the time of the guilty plea, where the trial court accepted the guilty plea upon the condition).

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

      . It is noted that the guilty plea colloquy reflects that defendant understood that two years of defendant’s sentence on the forcible rape charge would be served without benefit of parole, probation, or suspension of sentence. However, neither the transcript of formal sentencing nor the commitment reflects that the sentence will be served without benefits for at least two years.


source: Caselaw Access Project

author: FREDERICKA HOMBERG WICKER, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Larce M. SPIKES.
    No. 10-KA-831.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 10, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Shannon K. Swaim, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Holli A. Herrle-Castillo, Attorney at Law, Louisiana Appellate Project, Marre-ro, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

12Pefendant/relator, Mr. Larce Spikes, appeals his convictions and sentences for simple burglary of an inhabited dwelling and illegal possession of stolen things, arguing that the two offenses subjected him to double jeopardy. Because we find that the two offenses do not arise from the same conduct, the convictions are affirmed, but the case is remanded to the district court for the correction of a sentencing error.

Facts and Procedural Background

On January 26, 2008, Mr. Spikes committed the simple burglary of an inhabited dwelling belonging to Mr. Robert Guidry. A few months later, he was found to be in possession of casino chips, valued over $500, which also belonged to Mr. Guidry. He was subsequently charged by bill of information with one count of simple burglary of an inhabited dwelling (Count One) and one count of illegal |spossession of stolen things (Count Two), in violation of La. R.S. 14:62.2 and La. R.S. 14:69, respectively. Mr. Spikes pled not guilty at the arraignment but later withdrew his not guilty pleas and pled guilty to both offenses.

During the Boykin hearing, Mr. Spikes was sentenced to 10 years imprisonment on count one with the first year to be served without the benefit of probation, parole, or suspension of sentence. In regards to count two, he was likewise sentenced to 10 years imprisonment. The sentences were to run concurrently. The State then filed a multiple bill on count one. Mr. Spikes pled guilty to being a second felony offender. The transcript indicates that the trial court vacated the sentence it imposed on count two and resentenced Mr. Spikes pursuant to La. R.S. 15:529.1 to 10 years imprisonment with the Department of Corrections. The sentence was to run concurrently with the other sentence imposed.

Discussion

In his sole assignment of error, Mr. Spikes contends that his convictions and sentences for simple burglary of an inhabited dwelling and illegal possession of stolen things violate the double jeopardy clause of the United States and Louisiana constitutions.

The Fifth Amendment to the United States Constitution, as well as Article 1, § 15 of the Louisiana Constitution of 1974, prohibit placing a person twice in jeopardy of life or limb for the same offense. State v. Barton, 02-163 (La.App. 5 Cir. 9/30/03), 857 So.2d 1189, 1201; see La.C.Cr.P. art. 591. The concept of double jeopardy, under both the federal and state constitutions, embodies the dual purpose of preventing both multiple punishments and multiple convictions for a single criminal wrong. State v. Cotten, 438 So.2d 1156, 1160 (La.App. 1 Cir.1983). Thus, every double jeopardy analysis begins with the inquiry into whether a single offense or several offenses are involved. Id.

Louisiana courts utilize two tests in examining violations of double jeopardy. The “distinct fact” or Bloclcburger test is applicable where the same act or transaction constitutes a violation of two distinct statutory provisions. Barton, supra. In that instance, “the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact that the other does not.” Id.

The other test, the “same evidence test,” is primarily relied upon by Louisiana courts. Id. citing State v. Miller, 571 So.2d 603, 606 (La.1990). The Louisiana Supreme Court explained the “same evidence test” as follows:

If the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy for only one. The test depends on the evidence necessary for conviction, not all evidence introduced at trial. State v. Steele, 387 So.2d 1175, 1177 (La.1980).

The “same evidence test” is slightly broader in concept than Bloclcburger — the central idea being that one should not be punished twice for the same course of conduct. Id., Barton supra.

In this case, the crux of Mr. Spikes’ claim is that his convictions for simple burglary of an inhabited dwelling and illegal possession of stolen things have placed him in jeopardy twice for the same course of conduct. Simple burglary of an inhabited dwelling is “the unauthorized entry of an inhabited dwelling, house, apartment or other structure used in whole or in part as a home or place of abode by a person or persons with the intent to commit a felony or any theft therein.” La. R.S. 14:62.2. Illegal possession of stolen things is “the intentional possessing, |,^procuring, receiving, or concealing of anything of value which has been the subject of any robbery or theft, under circumstances which indicate the offender knew or had good reason to believe that the thing was the subject of one of these offenses.” La. R.S. 14:69

In State v. Vincent, 387 So.2d 1097 (La.1980), the Louisiana Supreme Court discussed whether these two offenses subjected a defendant to double jeopardy. Applying the distinct fact test, the Supreme Court determined that each crime was a separate offense which required proof of a fact that the other did not. Id. at 1101. In Vincent, the court stated:

Simple burglary requires proof of an unauthorized entry with the intent to commit a felony or theft therein. Receiving stolen things does not require this proof. Conversely, receiving stolen things requires proof that the thing was the subject of a robbery or theft; simple burglary does not require this proof. Hence, the two crimes are not the same offense. Id.

The court further stated that although the same incident led to the charges of burglary and receiving stolen things, they did not result from the same conduct. Id.

Mr. Spikes argues, however, that In re Bradley, 08-0346 (La.2/13/2009), 1 So.3d 459 is persuasive here. In that case, the defendant was charged with illegal possession of stolen things and armed robbery. In ruling that those two offenses violated double jeopardy, the Supreme Court cited State v. Robertson, 386 So.2d 906, 907 (La.1980) in which it stated, “a defendant cannot be prosecuted for receiving stolen things, after having been convicted and sentenced for armed robbery, where the thing received and the object of the theft in the armed robbery are the same.” Id.

Unlike Bradley, the offenses of simple burglary of inhabited dwelling and illegal possession of stolen things do not result from the same conduct. In this case, the burglary was completed when Mr. Spikes entered Mr. Robertson’s home, whereas illegal possession of stolen things did not occur until the coins had become the subject of a robbery or theft. Therefore, Mr. Spikes could legally be prosecuted for both offenses without being placed in double jeopardy for the same offense.

Error Patent Discussion

We have reviewed the record for errors patent in conformity with La.C.Cr.P. art. 920. See State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

We first note that Mr. Spikes was not properly advised of the time delay within which to file an application for post-conviction relief. Although the commitment and Boykin form reflect the correct time delay, the trial transcript only states that Mr. Spikes was informed that he had “two years to file for post-conviction relief.”

In the past, this Court has ordered the trial court to properly advise defendant of the prescriptive period under LSA-C.Cr.P. art. 930.8 by written notice within ten days of the rendition of this Court’s opinion and then to file written proof in the record that defendant received the notice. However, in State v. Morris, 40,322 (La.App. 2 Cir. 1/25/06), 920 So.2d 359, 363, the Second Circuit corrected this error patent by way of its opinion rather than a remand. State v. Davenport, 08-463, p. 11 (La.App. 5 Cir. 11/25/08), 2 So.3d 445, 457.

Accordingly, we hereby advise Mr. Spikes that pursuant to La. C.Cr.P. art. 930.8, no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La.C.Cr.P. art. 914 or 922.

17We also note that both the commitment and multiple-offender bill indicate that the offense being enhanced pursuant to La. R.S. 15:529.1 was count one — simple burglary of an inhabited dwelling. During the multiple-bill hearing, however, the trial court erroneously vacated the sentence imposed on count two and multiple-billed Mr. Spikes on that count.

We, therefore, vacate the multiple-offender sentence for correction of this sentencing error. The original sentence on count two is hereby reinstated. The case is remanded to the district court to impose the multiple-offender sentence on count one — simple burglary of an inhabited dwelling — in conformity with the commitment and multiple-offender bill.

We also note that the trial judge failed to state that the enhanced sentence was imposed at hard labor and without benefits. Because we vacate the multiple-offender sentence, those errors are rendered moot. We, nevertheless, advise the trial judge that on remand, the enhanced sentence should be imposed at hard labor and that pursuant to La. R.S. 15:529.1(G) all habitual offender sentences are to be served without the benefit of probation or suspension of sentence. State v. George, 09-886, p. 20 (La.App. 5 Cir. 3/23/01), 39 So.3d 671, 683.

Conclusion

For the foregoing reasons, Mr. Spikes’ convictions for simple burglary of an inhabited dwelling and illegal possession of stolen things are hereby affirmed. The multiple-offender sentence is vacated. The original sentence imposed on count two is reinstated. The case is remanded to the district court to resentence the defendant in accordance with the instructions stated herein.

CONVICTIONS AFFIRMED; MULTIPLE-OFFENDER SENTENCE VACATED; ORIGINAL SENTENCE ON COUNT TWO REINSTATED; REMANDED TO DISTRICT COURT

      . The multiple offender bill and commitment reflect that Mr. Spikes was multiple-billed on count one — simple burglary of an inhabited dwelling. The trial court, however, erroneously stated that it was vacating the sentence imposed on count two — illegal possession of stolen things. The effect of this is discussed more fully in the error patent section of the opinion.

        . Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

      . In Vincent, La. R.S. 14:69 was called "receiving stolen things.” That section previously read: "Receiving stolen things is the intentional procuring, receiving, or concealing of anything of value which has been the subject of any robbery or theft, under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses.”


text:
    STATE of Louisiana v. Michael R. HART.
    No. 10-KA-905.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 10, 2011.

      Paul D. Connick, District Attorney, Terry M. Boudreaux, Gail D. Schlosser, Michael Escudier, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS.
   WALTER J. ROTHSCHILD, Judge.

On September 8, 2008, the Jefferson Parish District Attorney filed a bill of information charging defendant, Michael R. Hart, with distribution of cocaine within 1000 feet of Williams Playlot in violation of LSA-R.S. 40:981.3. Defendant pled not guilty to this charge when he was arraigned on September 18, 2008. On February 4, 2009, the State amended the bill of information to charge defendant with distribution of cocaine in violation of LSA-R.S. 40:967(A). On this same date, defendant withdrew his plea of not guilty to the original charge and pled guilty to the amended charge. Defendant was sentenced to 15 years imprisonment with the Department of Corrections, with the first two years of the sentence to be served without benefit of parole, probation, or suspension of sentence. This sentence was also ordered to run concurrent with any other sentence he was serving at the time.

|sThe State filed a multiple bill in this matter, alleging that defendant was a second felony offender. Defendant stipulated to these allegations. His original sentence was vacated, and he was sentenced to 15 years imprisonment at hard labor without benefit of probation or suspension of sentence, to run concurrently with any other sentence he was serving at the time.

On June 15, 2010, defendant filed his pro se “Motion to Vacate and Set Aside an Illegal Habitual Offender Sentence” as well as a supporting memorandum. On June 21, 2010, the district court denied defendant’s motion, finding that defendant failed to point to a claimed illegal term in his sentence. Defendant filed a notice of intent to seek writs, and the district court set a return date. Defendant sought relief in this Court by filing a writ application in case number 10-KH-637. On August 30, 2010, this Court granted defendant’s writ for the limited purpose of vacating the district court’s June 21, 2010 order and remanding the matter to allow the defendant an opportunity to seek reinstatement of his appellate rights by filing an application for post-conviction relief to seek an out-of-time appeal. Defendant filed his application on September 28, 2010, and on October 4, 2010, the district court granted defendant an out-of-time appeal. His appeal follows.

DISCUSSION

Because defendant pled guilty without proceeding to trial, the facts were established from the amended bill of information and the guilty plea colloquy, i.e., defendant distributed cocaine in Jefferson Parish on March 5, 2008.

By this appeal, defendant argues that the trial court failed to advise him of his right to remain silent before he admitted his guilt to the prior 1997 conviction. He asserts that he responded affirmatively to the trial court’s inquiry as to whether he was a multiple offender before he was asked if he had read the multiple offender 14form and if it was explained to him by his attorney. Because of this and because of the absence of independent evidence as to defendant’s identity and the predicate offenses, defendant concludes his adjudication must be reversed and his enhanced, illegal sentence vacated.

The State responds that defendant failed to raise a claim cognizable of an illegal sentence, and instead challenges the habitual offender adjudication. Further, the State contends that defendant is not entitled to relief on the merits of his claim because the trial court advised the defendant of his right to remain silent before accepting the stipulation to the multiple bill, defense counsel explained defendant’s rights to him prior to the hearing, and defendant signed and initialed a waiver of rights form, which included the multiple offender rights. The State concludes that even if the trial court erred, any such error would be harmless because the record reveals the proceeding accorded defendant fundamental fairness and due process of law.

Defendant concludes that his sentence is illegal because of an error he alleges occurred when he stipulated to being a second felony offender. On review, this Court has the discretion to correct an illegal sentence at any time. LSA-C.Cr.P. art. 882. However, we find that defendant is not arguing that a term of his sentence is illegal. Instead, he argues that his sentence is illegal because he was not advised of his right to remain silent before he stipulated to his multiple offender status.

In order for a defendant to be found a habitual offender, the State is required to prove the existence of a prior felony conviction and that the defendant is the same person who was convicted of the prior felony. State v. Jones, 09-788, p. 8 (La.App. 5 Cir. 4/13/10), 35 So.3d 1162, 1167. LSA-R.S. 15:529.1 D(1)(a) provides that the trial court shall inform a defendant of the allegations contained in the bill of information and of his right to be tried as to the truth thereof according to law. Implicit in this directive is the additional requirement that the defendant be advised of his constitutional right to remain silent. Jones, supra. Generally, a trial court’s failure to advise the defendant of his right to a habitual offender hearing or his right to remain silent is considered harmless error when the defendant’s habitual offender status is established by competent evidence offered by the State at a hearing rather than by admission of the defendant. Id. However, reversible error occurs when a defendant is not properly advised of his rights and admits to being a multiple offender. See State v. Babineaux, 08-705, p. 11 (La.App. 5 Cir. 1/13/09), 8 So.3d 621, 627-28; State v. Bourgeois, 08-211, pp. 3-5 (La.App. 5 Cir. 10/28/08), 998 So.2d 165, 166-67.

In the present case, defendant stipulated to being a second felony offender. On February 4, 2009, a “Waiver of Rights— Plea of Guilty Multiple Offender — La.R.S. 15:529.1” form was executed and signed by defendant, his counsel, and the trial judge. By means of this form, defendant admitted to being a second felony offender, and indicated by notation and by his signature that he understood that he was waiving certain rights, including his right to deny the allegations and to have a hearing. The District Attorney’s burden of proof at such a hearing was also explained in this form. The form also provided the following: “I understand that I have a right to remain silent throughout such a hearing and not have my silence held against me.” Defendant was advised of his sentencing range and the sentence he would receive if his stipulation was accepted. By means of the form, defendant indicated that he was satisfied with his attorney and the court in their efforts to explain his rights that were being waived. He also indicated that he had not been forced, coerced, or threatened to plead guilty and that he understood all the possible legal consequences of pleading guilty. He indicated that he wished to Implead guilty and the judge signed the form, accepting his plea as knowingly, intelligently, freely, and voluntarily made. The multiple bill commitment also indicated that defendant was advised of his rights to a trial by judge or jury, of confrontation, and against self-incrimination.

The February 4, 2009 transcript also contains a colloquy of defendant’s stipulation to the multiple bill. Prior to stipulating to the multiple bill, defendant pled guilty to the underlying distribution of cocaine offense after being advised of his constitutional rights, including his right to remain silent. Thereafter, the State acknowledged that a “double bill” was filed. Defense counsel stated that the multiple bill was reviewed and that it alleged a previous 1997 conviction. Defense counsel waived a reading of the multiple bill and stated that defendant would stipulate to being the same person convicted in 1997 of that charge and waive his right to a hearing. Thereafter, the trial judge asked defendant if he understood that the State was accusing him of being a multiple offender. Defendant indicated that he understood. The judge then asked defendant if he was in fact a multiple offender. Defendant responded, “Yes sir.” The judge then asked if defendant had read the multiple bill plea form and if it had been explained to him by his attorney. Defendant responded, “Yes sir.”

The judge then went on to explain defendant’s right to a hearing and the State’s burden of proof at the hearing. The judge also explained the following: ‘You can remain silent at a hearing like that and not have your silence held against you, and even now you can assert a plea of not guilty to the multiple bill.” The judge asked if defendant understood he had those rights, and defendant responded affirmatively. Again, the judge asked defendant if he understood that if he pled guilty he would be waiving those rights. Defendant indicated that he understood this. The trial court then asked defendant if he understood that he was pleading [ 7guilty to a violation of LSA-R.S. 15:529.1 and was agreeing this was his second felony conviction, and defendant responded that he did. Thereafter, his stipulation was accepted by the trial judge as knowingly, intelligently, freely, and voluntarily made.

Louisiana jurisprudence provides that if the record reflects that the defendant was advised of his multiple offender rights by the trial judge and/or his attorney, then the defendant intelligently waived his rights. State v. Delmore, 08-313, p. 4 (La.App. 5 Cir. 9/30/08), 996 So.2d 541, 543; State v. Perrilloux, 01-509, p. 9 (La.App. 5 Cir. 11/14/01), 802 So.2d 772, 777. When the defendant’s status as a multiple offender is established by his own stipulation or admission to the habitual offender bill of information without having been informed of his right to a hearing or his right to remain silent, by either the trial court or his attorney, there is reversible error. State v. Reichard, 04-110, pp. 10-11 (La.App. 5 Cir. 7/27/04), 880 So.2d 97, 103.

As such, it does not matter if the trial judge or defendant’s attorney advised defendant of his multiple offender rights pri- or to the multiple offender stipulation. The waiver of rights form regarding the multiple bill was executed on the same date as the colloquy for the stipulation. From the context of the transcript, we find that defendant read the plea form and the form was explained to him by his counsel prior to the colloquy that is presented in the transcript. Immediately after defendant agreed he was a multiple offender, he was asked if he read the form and if the form was explained to him by his attorney. He responded affirmatively. The waiver of rights form set forth the rights defendant was waiving, including his right to remain silent.

In State v. Williams, 05-582, p. 7 (La.App. 5 Cir. 2/14/06), 924 So.2d 327, 332, this Court recognized on error patent review that the record reflected that the 1 strial judge failed to advise the defendant of his multiple offender rights prior to his stipulation to the multiple bill. This Court found that although the judge did not advise the defendant in court of his multiple offender rights, the colloquy indicated that defense counsel had advised the defendant of those rights and the record contained a waiver of rights form that listed the multiple offender rights, where the defendant initialed that he understood the rights. This Court also noted that the form was dated on the same date that the defendant stipulated to the multiple bill, which was signed by the defendant, his counsel, and the judge. After considering the exchange that took place among the parties and the waiver of rights form, this Court found that the defendant was adequately advised of his rights before he stipulated to the multiple bill and that he knowingly and intelligently waived those rights. Id., 05-582 at 9, 924 So.2d at 333.

The instant case is distinguishable from State v. Jones, 99-972 (La.App. 5 Cir. 2/29/00), 757 So.2d 110, writ denied, 00-1186 (La.9/21/01), 797 So.2d 58, where this Court vacated a habitual offender adjudication and sentence after finding that the defendant was not properly advised of his right to remain silent in the habitual offender proceeding before he stipulated that he was a second felony offender. In Jones, the trial judge asked the defendant if he was a multiple offender. The record contained no discussion of the defendant’s right to remain silent. Although in Jones there was a waiver of rights form in the record, it was unclear from the record whether the form was executed before or after the defendant admitted the multiple offender allegations. Id., 99-972 at 7-8, 757 So.2d at 114. In the present case, the judge does mention the right to remain silent in the transcribed colloquy and the contents of the colloquy suggest the form was reviewed and explained to defendant before the colloquy between defendant and the judge.

Further, we find that defendant was advised of his rights by the judge before completing his stipulation to the multiple bill. At the outset of the colloquy, defendant only agreed to being a multiple offender. Even after he initially indicated he was a multiple offender, the context of the record indicates that this admission was not considered a completed stipulation to the multiple bill and was not accepted at that time as the stipulation. Instead, defendant was given multiple opportunities to deny the allegations against him in the multiple bill after he was advised of his rights. Even the wording used by the trial judge suggests that the stipulation was ongoing or had not yet happened. See State v. Hannon, 98-0957, p. 11 (La.App. 4 Cir. 5/26/99), 736 So.2d 323, 330, writ denied, 99-1911 (La.12/17/99), 751 So.2d 872, where the Louisiana Fourth Circuit Court of Appeal recognized that the trial court’s carefully chosen words indicated that the defendant’s admission was in progress during the dialogue and therefore, the trial judge specifically advised the defendant of his right to remain silent in this dialogue prior to the defendant’s acknowledging his guilt. “In a grammarian’s terms, when the judge says ‘by admitting to this’ he uses the present progressive tense indicating the defendant is involved in ‘some activity in progress, something not finished, or something continuing.’ ” Hannon, 98-0957 at 11, 736 So.2d at 330 n. 3 (quoting Muriel Harris, Prentice Hall Reference Guide to Grammar and Usage sec. lc (1991)). In the present case, after the initial admission to being a multiple offender that defendant complains of, defendant was told he had a right to remain silent at a hearing, and “even now you can assert a plea of not guilty to the multiple bill.” The trial judge also asked defendant if he understood that “if you plead guilty you’re waiving or giving up those rights?” The judge then asked defendant if he understood that he was “pleading guilty to a violation of R.S. 15:529.1.” We find that the verbs used by the trial judge suggest an ongoing or further action, not an action that had already been completed at a time before the judge advised defendant of his multiple offender rights.

An inspection of the entire habitual offender proceedings indicates that the proceedings were “fundamentally fair and afforded the defendant due process of law.” See State v. Kennon, 34,455 and 34,456, p. 8 (La.App. 2 Cir. 2/28/01), 781 So.2d 734, 740 (where the Louisiana Second Circuit Court of Appeal considered the arraignment on the multiple bill to conclude the habitual offender proceedings were valid). In State v. Harris, 95-0900 (La.5/19/95), 654 So.2d 680 (per curiam), on application for post-conviction relief, the court of appeal reversed the petitioner’s adjudication and sentence as a multiple offender on the grounds that the trial court failed to advise him of his rights at the habitual offender hearing before defense counsel stipulated to petitioner’s identity. The State sought review from this ruling with the Louisiana Supreme Court. The Louisiana Supreme Court reversed the court of appeal’s ruling and reinstated the petitioner’s adjudication and sentence as a habitual offender after recognizing that in the absence of any allegation or showing that the admission was involuntary, the availability of post-conviction relief turns on whether the proceedings as a whole accorded the petitioner fundamental fairness and due process of law. The Court noted that multiple offender proceedings simply should not be equated (at least for purposes of determining the validity of an admission) to trials of guilt or innocence and recognized that it had declined to adopt as a constitutional prerequisite to a valid admission of identity at a multiple offender proceeding a procedure analogous to the Boykin colloquy which must accompany a valid guilty plea. Id. (quotation omitted). The Louisiana Third Circuit Court of Appeal determined that Harris, Inwhich involved an application for post-conviction relief, applies to cases on appeal. State v. Payne, 94-1628, p. 2 (La.App. 3 Cir. 5/22/96), 677 So.2d 527, 528.

Considering the foregoing jurisprudence, as well as the waiver of rights form and the exchange that took place between the trial judge and defendant, we find that defendant was adequately advised of his multiple offender rights, including his right to remain silent. Defendant’s assignment has no merit.

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. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990). The following was discovered:

The multiple bill commitment reflects that the court found defendant to be a multiple offender and sentenced him under the multiple bill statute. However, this commitment fails to reflect defendant’s specific status as a second felony offender. Since the transcript correctly states that the defendant was found to be a second felony offender, this Court hereby remands this matter with instructions to the trial court to correct the commitment to reflect that defendant was sentenced as a second felony offender. See State v. Alvarez, 08-558, p. 8 (La.App. 5 Cir. 8/31/10), 47 So.3d 1018, 1023. Also, we direct the district court to make the entries in the minutes reflecting these changes and we 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. 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).

In addition, our review revealed a discrepancy between the commitment and transcript involving the original sentence. According to the transcript, the original sentence was ordered to run concurrent with any other sentence defendant was serving. However, the commitment does not reflect this. The transcript prevails. |iaWe hereby order the trial court to correct the commitment to reflect the original sentence was ordered to run concurrent.

AFFIRMED; CASE REMANDED WITH INSTRUCTIONS

      . It is noted that the court in Hannon recognized that the trial court did not rely only on the defendant’s admission of his identity, but also examined the documentation of the defendant’s prior offenses. Hannon, 98-0957 at 12, 736 So.2d at 330.


author: TERRI F. LOVE, Judge.

text:
    STATE of Louisiana v. Jeffery M. PLEASANT.
    No. 2010-KA-1533.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Nisha Sandhu, Assistant District Attorney, New Orleans, LA, for the State of Louisiana.
    Sally Dunlap Fleming, Owen M. Cour-reges, Law Office of Sally Dunlap Fleming, P.L.C., New Orleans, LA, for Jeffery M. Pleasant.
    (Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge PAUL A. BONIN).
   TERRI F. LOVE, Judge.

This appeal arises from a conviction of second degree battery. The defendant waived sentencing delays and received a three-year suspended sentence with active probation immediately after trial. The defendant was also ordered to attend a domestic violence course and submit to eight drug tests. Given the evidence in the record, we do not find that the trial court erred by entering the jury’s verdict. The conviction and sentence are affirmed.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Jeffrey and Molly Pleasant were married for twelve years and had three children. They were visiting New Orleans for Mr. Pleasant’s board meeting. That morning, Mr. Pleasant went to his meeting. Late in the morning, a friend, Steven, visited Mrs. Pleasant, and they went to Antoine’s for lunch. Shortly after they arrived at the restaurant, Mr. Pleasant joined them, and the group ate and had drinks before taking a walk on Bourbon Street. According to Mr. Pleasant, he arrived at Antoine’s at approximately 1:30 or 1:45 p.m. Another friend of Mrs. Pleasant’s, Wendy, joined the group.

According to Mr. Pleasant, he became angry and decided to return to the hotel at approximately 6:00 p.m. He testified that he was upset that Mrs. Pleasant would not go back with him because he was concerned for her safety. Mr. Pleasant 12stated that Mrs. Pleasant had been drinking all day and reached her limit. He admitted that he consumed a beer at each of the six bars on Bourbon Street he alleges the group attended. He estimated he consumed some six to eight beers that day, but denied consuming any more alcohol when he returned to the hotel.

According to Mrs. Pleasant, they went to a maximum of three bars, and she did not recall how many drinks she consumed. After Mr. Pleasant returned to the hotel, Mrs. Pleasant went to Wendy’s apartment, which is located above Restaurant August. Mrs. Pleasant called Mr. Pleasant to invite him to eat dinner with them, but he said he was leaving her, packing, throwing her things away, and returning to Monroe. Concerned, Mrs. Pleasant asked Wendy to give her a ride to the hotel at approximately 8:00 or 8:30 p.m.

Mrs. Pleasant arrived at her hotel room as a food delivery boy was leaving. Mr. Pleasant was still angry. He ordered a burger and fries, but would not let Mrs. Pleasant share. Mrs. Pleasant ordered a pizza from room service and changed, into her nightgown. She then allegedly attempted to watch a game with her husband.

Mrs. Pleasant’s pizza was delivered, and Mr. Pleasant went to the bedroom. Mrs. Pleasant testified that she followed him and sat on the bed, trying to talk to him and quell the fight. According to Mr. Pleasant, she was drunk and came in the bedroom, belly flopped on the bed, and lay across him, which obstructed his view of the game. He stated that he picked Mrs. Pleasant up, carried her back into the living room, and placed her on the couch. Mrs. Pleasant testified that she returned to the bedroom, exclaiming, “Let’s stop. This is dumb.” Mr. Pleasant carried her out again, and Mrs. Pleasant returned to the bedroom again, trying to talk to him. According to Mrs. Pleasant, Mr. Pleasant picked her up from behind, threw her onto the couch, and her head hit the coffee table. According to Mr. Pleasant, Mrs. IsPleasant struggled this last time, and they both fell to the couch. Mr. Pleasant claimed he sustained bruises from this fall. Mrs. Pleasant testified that when she turned around from her position on the floor, Mr. Pleasant was throwing the pizza plate at her, like a frisbee. The pizza plate struck Mrs. Pleasant, which she described as “horribly, horribly painful.”

Mr. Pleasant admitted throwing the pizza plate, but averred that he did not throw it at her and denied throwing it like a frisbee. According to Mr. Pleasant, Mrs. Pleasant’s pizza arrived after he put her on the couch. He testified that she exclaimed, “[d]on’t think you’re getting f-ing pizza.” According to Mr. Pleasant, he responded by grabbing the pizza plate, tossing it onto the couch, and walking back into the bedroom. He averred that he did not intend to hit Mrs. Pleasant, and that he did not know where the plate went after he tossed it. He heard Mrs. Pleasant exclaim, “Ow,” but did not check on her. Mr. Pleasant denied intending to hit Mrs. Pleasant and opined that her injuries may have occurred when he took her from the bedroom to the couch. He asserted that a cushion on the couch next to Mrs. Pleasant was the intended target of the pizza plate. Mr. Pleasant responded with an “Umph,” and returned to the bedroom.

Mrs. Pleasant called for help immediately. Hotel security arrived, and the police arrived a few minutes later. Hotel security treated her arm with a bag of ice.

Upon arriving at the scene, Officer Mark Anthony Vasquez found Mrs. Pleasant in an hysterical state and observed “a large bruise on her right arm with a little swelling around it and it was real red.” Officer Travis Ward, who responded with Officer Vasquez, also described the injury as “a large, raised bruise on her right arm, upper arm area.” Officer Vasquez continued, “[i]t was a bruise with raised swelling.” He observed alcoholic “drinks all over the room, in both rooms.” |4Mrs. Pleasant “was holding her arm like clutching her arm in pain.” The bruise was two or three inches long and approximately an inch wide. The bruise was “real red” and looked like a straight line, as though Mrs. Pleasant had been hit with a straight edged object. The officers identified pictures taken of Mrs. Pleasant’s arm, which they described as accurate depictions, despite their lack of clarity. Officer Vasquez also identified the plate, which was recovered from the scene. Mrs. Pleasant advised the police that she would seek medical attention for her arm later, if needed.

Officer Vasquez testified that Mr. Pleasant was placed under arrest for domestic abuse battery after he admitted throwing the plate. He continued, “[t]he aggravated battery being that he used a pretty, pretty significant — you know, the plate’s pretty, pretty large, heavy item, you know. If he would have hit her in the face he could have caused pretty serious damage, you know.” On cross examination, Officer Vasquez was asked about his difficulty in identifying Mr. Pleasant at the preliminary hearing. He claimed his view of Mr. Pleasant was obstructed at the hearing.

Mrs. Pleasant described the resulting injury as “a softball sized bruise for two months on my arm.” She said the bruise was “almost black it was so deep.” When presented with pictures of her arm, Mrs. Pleasant said the picture did not accurately depict her injury. Instead, she said it was “very red” and “raised” and described it as “a straight line that was already raised immediately it started to swell.” The day after, the injury spread, growing and darkening. She described the injury as “huge” two days after the pizza plate struck her.

As a result, Mr. Pleasant was charged with aggravated battery with a dangerous weapon, “TO WIT: A GLASS PLATE UPON MOLLY PLEASANT.” During discovery, Mr. Pleasant filed a subpoena duces tecum seeking “A copy of the personnel file, including any and all information regarding any formal reprimands or suspensions, for Officer Travis Ward,” which the trial court denied.

Mr. Pleasant was tried by a jury that returned a responsive verdict of second degree battery. Mr. Pleasant waived sentencing delays and received a three-year suspended sentence with active probation. Mr. Pleasant was also ordered to attend a domestic violence course and submit to eight drug tests. A “stay away order” was also in effect. This appeal followed.

ERRORS PATENT

The record contains no errors patent.

INSUFFICIENT EVIDENCE

Mr. Pleasant asserts that the evidence in the record is insufficient to sustain a second degree battery conviction. His argument is twofold. Initially, Mr. Pleasant argues that Mrs. Pleasant’s injuries were not severe enough to constitute “serious bodily injury.” See La. R.S. 14:34.1(B). In response to the State’s assertion that he did not object to any responsive verdicts and that the record could support an aggravated battery conviction, Mr. Pleasant then avers that the pizza plate or tray does not constitute a “dangerous weapon.” See La. R.S. 14:34 and La. R.S. 14:2(A)(3).

When assessing the sufficiency of evidence to support a conviction, the reviewing court must determine whether, viewing the evidence in the light most favorable to the prosecution, a rational fact finder could have found the defendant 1 guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). This review must include the whole record, as a rational fact finder does. State v. Mussall, 523 So.2d 1305, 1310 (La.1988), State v. Black, 09-1664, p. 15 (La.App. 4 Cir. 6/17/10), 41 So.3d 1243, 1251. “If rational finders of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all of the evidence most favorable to the prosecution must be adopted.” Black, 09-1664, p. 15, 41 So.3d at 1251. “It is not the function of the appellate court to assess the credibility of witnesses or reweigh the evidence.” State v. Johnson, 619 So.2d 1102, 1109 (La.App. 4th Cir.1993). “[Credibility determinations, as well as the weight to be attributed to the evidence, are soundly within the province of’ the fact finder. State v. Brumfield, 93-2404, p. 5-6 (La.App. 4 Cir. 6/15/94), 639 So.2d 312, 316. Moreover, “[cjonfiicting testimony as to factual matters is a question of weight of the evidence, not sufficiency.” State v. Jones, 537 So.2d 1244, 1249 (La.App. 4th Cir.1989). Like all factual matters, credibility determinations are “entitled to great weight and will not be disturbed unless contrary to the evidence.” Id. “Absent internal contradiction or irreconcilable conflict with the physical evidence, a single witness’s testimony, if believed by the fact finder, is sufficient to support a factual conclusion.” State v. Marshall, 04-3139, p. 9 (La.11/29/06), 943 So.2d 362, 369.

Mr. Pleasant was originally charged with aggravated battery, a violation of La. R.S. 14:34. The jury found Mr. Pleasant guilty of second degree battery, a violation of La. R.S. 14:34.1, and a statutory responsive verdict to aggravated battery pursuant to La. C.Cr.P. art. 814(A)(14). Mr. Pleasant contends that the record does not contain sufficient facts supporting conviction of second degree battery because the State did not prove the battery was committed “when the 17offender intentionally inflicts serious bodily injury.” La. R.S. 14:34.1. The State does not controvert Mr. Pleasant’s assertion that Mrs. Pleasant did not suffer serious bodily injury. Instead, the State argues that Mr. Pleasant’s failure to object to the responsive verdict requires the affirmation of his conviction if the record supports the original charge.

In State ex rel. Elaire v. Blackburn, 424 So.2d 246, 251 (La.1982), the Louisiana Supreme Court held that a defendant must “make a contemporaneous objection to the instruction on responsive verdicts in order to complain on appeal of the insufficiency of evidence supporting the responsive verdict.” See also State v. Williams, 99-1581, p. 10 (La.App. 4 Cir. 6/14/00), 766 So.2d 579, 584. It is sufficient that this objection be made after the jury is charged, but before the jury begins to deliberate. State v. Rideau, 05-0462, p. 18 (La.App. 4 Cir. 12/6/06), 947 So.2d 127, 138. In adopting this rule, the Court reasoned:

[i]t would be unfair to permit the defendant to have the advantage of the possibility that a lesser “compromise” verdict will be returned (as opposed to being convicted of the offense charged) and then to raise the complaint for the first time on appeal, that the evidence did not support the responsive verdict to which he failed to object.

Blackburn, 424 So.2d at 251-52. Absent an objection entered at a time when the trial judge may take action, a reviewing court may affirm if the evidence supports a conviction of the greater offense, aggravated battery in this case. Blackburn, 424 So.2d at 251. If the evidence in this case supports an aggravated battery conviction, Mr. Pleasant’s second degree battery conviction must be affirmed.

“Aggravated battery is battery committed with a dangerous weapon.” La. R.S. 14:34. “Battery is the intentional use of force or violence upon the person of another.” La. R.S. 14:33. In order to maintain a conviction for aggravated battery, |8the record must support a jury’s finding that Mr. Pleasant intentionally used force or violence upon Mrs. Pleasant with a dangerous weapon (i.e. the pizza plate/tray).

Mr. Pleasant contends that the pizza plate or tray that he threw at Mrs. Pleasant is not a dangerous weapon pursuant to La. R.S. 14:2(3). La. R.S. 14:2(A)(3) defines a dangerous weapon as “any gas, liquid or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm.” This Court has noted that “virtually any item, no matter how innocuous, can be considered a dangerous weapon provided that the manner in which it is used is likely to produce death or bodily harm.” State v. Black, 09-1664, p. 16 (La.App. 4 Cir. 6/17/10), 41 So.3d 1243, 1252. The dangerousness of an object by reason of the manner in which it was used is an issue of fact for the jury or fact finder to decide. State v. Bonier, 367 So.2d 824, 826 (La.1979), In re K.M., 10-0649, p. 5 (La.App. 4 Cir. 9/29/10), 49 So.3d 460, 464. Louisiana jurisprudence has upheld determinations that “a stick, an ink pen, rum, a tennis shoe, and a metal pipe” were dangerous weapons in the manners used in individual cases. See State v. Pamilton, 43, 112, p. 8 (La.App. 2 Cir. 3/19/08), 979 So.2d 648, 654.

The pizza plate/tray recovered from the hotel room was introduced into the record, identified by Officer Vasquez, and inspected by the jury. Interpreting this evidence in a light most favorable to the State, the physical presentation of the plate/tray could have influenced the jury, which caused the jury to determine that the plate/tray was a dangerous weapon. The conclusion that Mr. Pleasant intended to hit Mrs. Pleasant is supported by Mrs. Pleasant’s testimony that Mr. Pleasant threw the object at her like a frisbee. A finding of intent supports the conclusion that the plate/tray was used in a manner “calculated or likely to produce death or | ggreat bodily harm.” La. R.S. 14:2(A)(3).

Reasonable minds could differ on this conclusion, but the record does not indicate that the fact finder abused its discretion. Thus, Mr. Pleasant’s throwing of the plate/tray like a frisbee at Mrs. Pleasant supports a fact finder’s decision that it was a dangerous weapon for purposes of La. R.S. 14:33. Accordingly, we find the record sufficient to support a conviction of second degree battery and, therefore, affirm Mr. Pleasant’s conviction.

OFFICER’S PERSONNEL FILE

Mr. Pleasant asserts that the trial court erred in not allowing him to obtain one of the investigating officers’ personnel file. He submits that the file would have shown that the officer in question was suspended after his arrest. Mr. Pleasant suggests that the file could have provided impeachment evidence, asserting that the officer in question “provided the most substantive testimony backing up Ms. Pleasant’s characterization of her injury, which ... did not appear to be” serious bodily injury “as defined by Louisiana law.” However, Mr. Pleasant cites to the law on producing exculpatory evidence enunciated in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Mr. Pleasant does not propose that anything in the officer’s file was exculpatory, other than the suggestion that it contains evidence of disciplinary proceedings, which in some way would impeach the officer’s testimony.

Pursuant to La.C.Cr.P. art. 718, defendants are entitled to production of documents within the possession, custody, or control of the State that are “material and relevant to the issue of guilt or punishment.” Mr. Pleasant suggests that he could have used evidence of a suspension to impeach an officer’s testimony. However, La. C.E. art. 607 provides, in pertinent part:

|inC. Attacking credibility intrinsically. Except as otherwise provided by legislation, a party, to attack the credibility of a witness, may examine him concerning any matter having a reasonable tendency to disprove the truthfulness or accuracy of his testimony.
D. Attacking credibility extrinsically. Except as otherwise provided by legislation:
(1) Extrinsic evidence to show a witness’ bias, interest, corruption, or defect of capacity is admissible to attack the credibility of the witness.
(2) Other extrinsic evidence, including prior inconsistent statements and evidence contradicting the witness’ testimony, is admissible when offered solely to attack the credibility of a witness unless the court determines that the probative value of the evidence on the issue of credibility is substantially outweighed by the risks of undue consumption of time, confusion of the issues, or unfair prejudice.

La. C.E. art. 608 provides:

A. Reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of general reputation only, but subject to these limitations:
(1) The evidence may refer only to character for truthfulness or untruthfulness.
(2) A foundation must first be established that the character witness is familiar with the reputation of the witness whose credibility is in issue. The character witness shah not express his personal opinion as to the character of the witness whose credibility is in issue.
(3) Inquiry into specific acts on direct examination while qualifying the character witness or otherwise is prohibited.
B. Particular acts, vices, or courses of conduct. Particular acts, vices, or courses of conduct of a witness may not be inquired into or proved by extrinsic evidence for the purpose of attacking his character for truthfulness, other than conviction of crime as provided in Articles 609 and 609.1 or as constitutionally required.
C. Cross-examination of character witnesses. A witness who has testified to the character for truthfulness or untruthfulness of another witness may be cross-examined as to whether he has heard about particular acts of that witness bearing upon his credibility.

In State v. Thompson, 08-0874, p. 7 (La.App. 4 Cir. 4/8/09), 10 So.3d 851, 855, writ denied, 09-1044 (La.1/29/10), 25 So.3d 827, this Court rejected the defendants’ post-trial claims that his right to present a defense was violated by the trial court’s refusal to allow the defense to present evidence of a police officer’s pending disciplinary investigations. The trial court granted the State’s motion in limine and prohibited the defense from mentioning any published accounts of an investigation concerning a police officer witness that did not result in a conviction. Id., 08-0874 at pp. 3^, 10 So.3d at 853. On appeal, Thompson argued that this ruling unfairly limited his right to impeach the officer’s credibility. Id., 08-0874 at p. 3, 10 So.3d at 853. This Court rejected the argument, noting that pursuant to La. C.E. art. 608 B, particular acts could not be used for the purpose of impeaching a witness’ credibility. Id., 08-0874 at p. 5, 10 So.3d at 854. This Court also noted:

La. C.E. art. 607 B above reiterates the relevancy test of La. C.E. art. 403, which provides that even if evidence is relevant, the court my [sic] exclude it if its probative value is “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.”

Id. This Court further recognized that even though only convictions may be used for impeachment under La. C.E. art. 609. 1, that

cases have held that possible or ongoing prosecutions that have not resulted in a conviction can be used to show bias or interest under La. C.E. art. 607(D)(1). As stated in State v. Vale, 95-0577, 95-1230, p. 4 (La.1/26/96), 666 So.2d 1070, 1072:
This court granted certiorari because the trial court’s ruling [prohibiting the defense from cross-examining the witness about a pending charge], affirmed by the court of appeal, conflict ed with numerous decisions by this court that to the extent exposure of a witness’s motivation is a proper and important function of the constitutionally protected right of cross-examination, a witness’s “hope or knowledge that he will receive leniency from the state is highly relevant to establish his bias or interest.” State v. Brady, 381 So.2d 819, 822 (La.1980) (collecting cases); see also State v. Nash, 475 So.2d 752, 755-56 (La.1985). A witness’s bias or interest may arise from arrests or pending criminal charges, or the prospect of prosecution, even when he has made no agreements with the state regarding his conduct. Id.
Thus, alleged criminal conduct which has not resulted in a conviction may be elicited from a witness at trial to show bias or interest. However, here, no testimony given by Officer Lapene was elicited that could have been directly impeached by extrinsic evidence of the alleged investigation against him. For example, in State v. Cureaux, 93-0838 (La.App. 4 Cir. 10/27/94), 645 So.2d 1215, this court held that a defendant could impeach an officer’s testimony that he had been a police officer for four years with extrinsic evidence that the officer had been suspended for some sixteen months. Also, cf., State v. Hollins, 97-627 (La.App. 5 Cir. 11/25/97), 704 So.2d 307 (the court found that evidence of an officer’s suspension was inadmissible for impeachment purposes because it did not involve a conviction. In a footnote, the court noted that had the officer testified at trial that he was an employee in good standing with the sheriffs office, then the defendant could have impeached him with extrinsic evidence that he had in fact been suspended). In sum, we find that the motion in limine was properly granted by the district court because the evidence of the alleged investigation was inadmissible under La. C.E. arts. 608 B and 609.1 B.

Thompson, at pp. 6-7, 10 So.3d at 854-55.

Similarly, this case involves a post-trial complaint that Mr. Pleasant should have been allowed to use a testifying officer’s disciplinary file to demonstrate bias or interest. The difference, however, is that Mr. Pleasant disputes the discoverability, not the admissibility. A trial court’s decision regarding the issuance of a subpoena duces tecum in discovery proceedings is subject to review for abuse of discretion. State v. Marcelin, 10-2036, p. 2 (La.10/15/10), 46 So.3d 191, 193. Mr. Pleasant did not demonstrate how the personnel file would be used to impeach Officer Ward. Thus, he has failed to show the trial court abused its discretion. Moreover, any impact of Officer Ward’s testimony on this case is negligible. His trial testimony duplicated Officer Vasquez’s testimony, and the most damaging testimony against Mr. Pleasant was that of the victim, his wife, Mrs. Pleasant. Therefore, we do not find that the trial court erred or abused its discretion.

DECREE

For the reasons stated above, Mr. Pleasant’s conviction and sentence are affirmed.

CONVICTION AFFIRMED; SENTENCE AFFIRMED

      . "B. For purposes of this Section, 'serious bodily injury' means bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.”

      . La. R.S. 14:2(A)(3) provides that a " '[d]an-gerous weapon’" includes any gas, liquid or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm.


author: MARION F. EDWARDS, Chief Judge.

text:
    STATE of Louisiana v. Kenneth W. PROCTOR.
    No. 09-KA-956.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 24, 2011.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appel-lee.

      Lien T. Yo Clark, Attorney at Law, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   MARION F. EDWARDS, Chief Judge.

Defendant/appellant, Kenneth W. Proctor (“Proctor”), appeals from his conviction and sentence for possession of cocaine, a violation of La. R.S. 40:967(C). For the reasons to follow, we dismiss the appeal.

Following his conviction on July 10, 2009, Proctor was sentenced to two years of imprisonment at hard labor. On the same day, following sentencing, the State filed a multiple offender bill of information ‘alleging that Proctor was a quadruple felony offender. Proctor denied the allegations in the multiple bill. Also on that same day, Proctor filed a motion for appeal and reconsideration of sentence. The appeal order was signed on July 13, 2009, and the Motion for Reconsideration was later signed on July 16, setting the matter for hearing. On the day the motion was to be heard, Proctor did not appear, and the matter was continued. This pattern continued for some time, with multiple continuances usually due to Proctor’s failure to appear. On June 18, 2010, the court ordered an attachment for Proctor’s arrest. Proctor was finally brought before the court for a multiple bill hearing on November 29, 2010 and, on December 16, 2010, he was 1..¡adjudicated a fourth felony offender. His original sentence was vacated, and he was sentenced to imprisonment at hard labor for twenty years without benefit of parole, probation, or suspension of sentence, with credit for time served.

On appeal, Proctor contends that the court erred in failing to rule on the Motion for Reconsideration of Sentence and that the case should be remanded to the trial court with instructions to rule on the outstanding motion.

We note that the Motion for Appeal was premature because it was filed after Proctor was convicted and sentenced for the offense and arraigned on the habitual offender charges but before he was tried on the habitual offender bill and re-sentenced. However, that procedural defect was cured by the subsequent re-sentencing. Nevertheless, the only issue raised on appeal is moot as it is related to Proctor’s original sentence, which has been vacated.

For the foregoing reasons, this appeal is dismissed.

DISMISSED

      . See, State v. Page, 96-227 (La.App. 5 Cir. 8/28/96), 680 So.2d 104, writ denied, 96-2543 (La.9/19/97), 701 So.2d 153; State v. Payne, 10-0046 (La.App. 5 Cir. 1/25/11), 59 So.3d 1287.